Healthcare Merger Enforcement Under the Obama Administration’s Revised Merger Guidelines 

Co-sponsored by the Antitrust and Business Law and Governance Practice Groups

Description

In April 2010, the Department of Justice and Federal Trade Commission released a draft of their proposed revised Merger Guidelines. The revisions were intended to make the Guidelines more flexible and more consistent with the Agencies’ actual practice while maintaining the basic principles of protecting competition.  Nevertheless, the shift in emphasis in the Guidelines from a step-by-step analytical paradigm to a “tool box” of techniques and approaches is potentially significant for healthcare entities—hospitals, physicians, ancillary service providers, health plans, pharmaceuticals, and others—considering transactions.

• The program will consider whether the revisions signal a change in enforcement priorities.
  
  
• It will also discuss the internal study recently completed by the Department of Justice on the likelihood of entry occurring in health insurance markets.
  
  
• It will outline the Merger Guidelines revisions most likely to affect healthcare transactions, including:
  
  
• Reduced emphasis on market definition;
  
• Unilateral effects, product differentiation, and measuring the closeness of substitution;
  
• Hospital merger simulation;
  
• Payor-provider bargaining models;
  
• Powerful buyer arguments; and
  
• Treatment of innovation competition.
  
  

Presenters

• Aimee E. DeFilippo, Esquire
  Associate
  Jones Day, Washington, DC
  
  
• Matthew J. Reilly, Esquire
  Assistant Director, Mergers IV Division
  Bureau of Competition
  U.S. Federal Trade Commission, Washington, DC
• Joshua H. Soven, Esquire
  Chief, Litigation I Section, Antitrust Division
  U.S. Department of Justice, Washington, DC
  

Moderator

• Christine L. White, Esquire
  Federal Trade Commission, New York, NY