In a recent article, “Antitrust Enforcement in Health Care Gets Mixed Reviews,” published in The Legal on September 12, we examined how federal enforcement of the antitrust laws may interact with the continued rollout of the Affordable Care Act (ACA). The ACA seeks to create savings by requiring greater collaboration among health care providers, and transparency in the pricing of health care products and services; but not at the expense of undue market concentration or other anticompetitive effects. In a speech September 13, senior Republican Federal Trade Commission Commissioner Maureen Ohlhausen noted that, while there is increased call for efficiency and integration under the ACA, “the act does not call for consolidations as an end in itself, and there is certainly no legal immunity for antitrust law under the act or its implementing regulations.” The FTC and U.S. Department of Justice will continue to vigorously oppose what they consider to be anticompetitive mergers, collusion among health care providers, and other agreements that they believe to be anticompetitive.
The federal agencies, collectively, are just one player in the antitrust world. Most lawsuits are brought by private parties: consumers suing drug companies and other health care providers, and health care competitors suing each other for alleged unreasonable restraints of competition. The U.S. Court of Appeals for the Third Circuit has a well-deserved reputation for careful and sophisticated analysis of antitrust issues and, for reasons explained below, the circuit is becoming a favorite venue for plaintiffs in health care antitrust suits. As a result, the antitrust health care docket in the Third Circuit is already extremely active and will grow more so going forward.
Suits Challenging Reverse Payment Settlements
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