Health Care Antitrust Practice

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Crowell & Moring is proud to have one of the nation’s leading health care antitrust practices. Our lawyers have extensive background in government health care antitrust law enforcement and in the antitrust and health law bars. Our health care antitrust team integrates exceptional antitrust capability with our longstanding preeminent national health care practice, and represents a broad range of health care organizations. We routinely handle important health care antitrust matters and issues of the day.

We recently represented Gwinnett Medical Center in its merger with Northside Hospital, clearing the deal through Federal Trade Commission review after a year-long investigation; Coventry, in connection with its $5.7 billion merger with Aetna; and Humana, in connection with its proposed $37 billion merger with Aetna. Other high profile matters described below range from provider mergers and joint ventures (e.g., ACOs) to successful defenses of industry leaders like Kaiser Permanente, Cardinal Health, and Owens & Minor in antitrust litigation.

Our antitrust practitioners provide practical and insightful advice and forceful representation in the full range of health care related antitrust matters including litigation, mergers and acquisitions and other transactions, as well as representing clients in connection with investigations by the FTC, Department of Justice, and state attorneys general. We work with the full spectrum of for-profit and not-for-profit health care entities, including providers, payers, and pharmaceutical and medical device distribution companies. We have attorneys with deep industry knowledge to help provide practical, business-focused advice in diverse areas of the health care industry and government programs, including extensive experience in the Affordable Care Act and health care reform, and attorneys who have testified before Congress, the FTC, and state health care bodies on health care competition policy issues.

Our Antitrust Litigation Practice has experience in both defending and pursuing antitrust claims. We have defended managed care organizations in provider network exclusion and boycott claims, and provider class actions challenging discrimination in contracting and payment terms. We have also defended hospitals in conspiracy and rate-setting litigation, and pharmaceutical companies and distributors against monopolization, restraint of trade, and price discrimination charges. We have also represented health plans as plaintiffs in lawsuits to recover overcharges.

Our integrated Health Care-Antitrust Practice makes us particularly effective in providing antitrust counsel to clients in this highly regulated industry. Delivering optimal advice requires sensitivity to the complex interplay of the market and regulation in health care matters, such as structuring joint ventures among service providers and payers, responding to investigations by the antitrust enforcement agencies, and helping clients protect themselves from the anti-competitive practices of others.

In handling the full range of antitrust litigation, transactional, and counseling matters for healthcare clients, we take pride in providing practical advice and effective representation. Typical engagements include the following:

Transactions: Representative Engagements

  • Represented Humana in its proposed $37 billion merger with Aetna, including in the related litigation brought by the DOJ and state attorneys general, as well as its acquisitions of Arcadian Management Services, Curo Health, and the Kindred-at-Home business of Kindred Healthcare.
  • Represented Gwinnett Medical Center in its merger with Northside Hospital, including compliance with a full second request and advocacy to FTC Commissioners.
  • Represented CareFusion Corporation in its acquisition by Becton Dickinson for $12.2 billion, accelerating Becton Dickinson’s expansion strategy in medication management and patient safety solutions.
  • Represented Siemens Healthcare in the sale of its global health information technology business unit to Cerner, and the divestiture of its clinical microbiology business to Beckman Coutler.
  • Represented Coventry Health Care in its $5.7 billion acquisition by Aetna, including successfully persuading the DOJ to allow the combination of two of the largest health insurance companies without any remedy.
  • Represented Fletcher Allen in connection with its affiliations with Central Vermont Medical Center, Champlain Valley Physicians Hospital, and Alice Hyde Medical Center.
  • Represented a vertically integrating multi-hospital system in its sale to a large multi-hospital health care system.
  • Represented vertically integrated health plan in connection with an FTC investigation of a merger involving a vertical integrated health plan and a health care provider organization.
  • Represent multi-hospital MSO formed to increase operational efficiencies, reduce costs, and enhance quality of care in key services lines.
  • Represented Humana Inc. in its acquisition of Arcadian Management Services. The acquisition increased Humana’s health plan membership by approximately 50,000 Medicare HMO members.
  • Represented multiple payers as third parties before the FTC in pharmaceutical, hospital merger, and pharmacy investigations.

Litigation & Enforcement: Representative Engagements

  • In re Blue Cross/Blue Shield Antitrust MDL Class Actions (Ongoing): In what may currently be the largest antitrust class action in the country, C&M represents eight BCBS companies in defending a nationwide antitrust class action by physicians and others, who allege a conspiracy to limit competition through exclusive service areas.
  • Northbay Healthcare v. Kaiser Foundation Health Plan (Ongoing): Secured dismissal on the pleadings for Kaiser in district court; case is before the 9th Circuit.
  • Suture Express v. Owens & Minor: C&M prevailed on summary judgment for Owens & Minor, the nation’s leading distributor of medical and surgical products, in an antitrust tying and exclusive dealing lawsuit alleging more than $400 million in damages brought by a competitor. In two earlier federal antitrust lawsuits, we defeated conspiracy and monopolization claims in both cases at the pleading stage, then prevailed on summary judgment on the remaining tying and exclusive dealing claims.
  • Prime Healthcare Services, Inc. v. Service Employees International Union, et al.: We represented Kaiser Permanente. Kaiser was sued for alleged antitrust violations with plaintiffs seeking damages in excess of $100 million. We prevailed on a motion to dismiss in district court, and that order was appealed to the Ninth Circuit, which affirmed. The Supreme Court denied the petition for certiorari.
  • PharmaRX Pharmaceutical v. Cardinal Health: We won dismissal of all PharmaRx’s claims under rule 12(b)(6) for Cardinal, whose business includes the leading chain of nuclear pharmacies in the U.S., of all antitrust claims. The Ninth Circuit affirmed.

View More

"Healthcare Antitrust in the Biden Administration: Steady Course or Big Changes Ahead?" Healthcare Ounce of Prevention Seminar (HOOPS) 2021: Health Care in the Biden Era (February 23, 2021). Presenters: Alexis J. Gilman and Megan L. Wolf.
"Election 2020: The Impact on Health Care," Crowell & Moring Webinar (October 23, 2020). Presenters: A. Xavier Baker, Troy A. Barsky, Jodi G. Daniel, Alexis J. Gilman, and James Flood.
Antitrust Analysis of Vertical Health Care Mergers (April/May 2020). Authors: Alexis J. Gilman and Akhil Sheth.
“Antitrust Hot Topics in Health Care Transactions.” 2019 AHLA Health Care Transactions Conference, Nashville, TN (May 1, 2019). Moderator: Alexis J. Gilman.
Multi-Agency Report Emphasizes Importance of Competition in Health Care (February 2019). Authors: Alexis Victoria DeBernardis and Akhil Sheth.
"Antitrust Trends and Issues in the Healthcare Industry," California Society for Healthcare Attorneys, 2018 Fall Seminar (November 9, 2018). Panelist: Alexis J. Gilman.
COPAs: A Way Around Federal Antitrust Enforcement to Get Your Hospital Merger Through? (May 2018). Authors: Alexis J. Gilman and Alexis Victoria DeBernardis.
ViroPharma's Escape From Suit Could Limit FTC Enforcement Bloomberg BNA (March 23, 2018)
Press Coverage
New FTC Makeup to Continue Robust Health-Care Enforcement Bloomberg BNA (March 13, 2018)
Press Coverage
Strong Scrutiny of Health Care Mergers May Continue In 2018: Crowell & Moring Report Corporate Counsel (March 7, 2018)
Press Coverage

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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