Antitrust

Health Hippo: Antitrust

US CODE || CFR || CASES || CONGRESSIONAL RECORD || BILLS || FEDERAL REGISTER

Everything in excess is opposed to nature.

According to Alan Greenspan, “The world of antitrust is reminiscent of Alice’s Wonderland: everything seemingly is, yet apparently isn’t, simultaneously.” In the health care arena, whether a particular transaction is or is not a violation of the antitrust laws may depend on the enforcement zeal of the current administration, the political cut of health reform, or even the judge assigned to a case.

U.S. Code

• 15 U.S.C. Chapter 1 MONOPOLIES
  AND COMBINATIONS IN RESTRAINT OF TRADE (Sherman Act)
  • Sec. 1 Trusts, etc., in restraint of trade illegal;
    penalty
  • Sec. 2 Monopolizing trade a felony; penalty
  • Sec. 3 Trusts in
    Territories or District of Columbia illegal; combination a felony
  • Sec. 4 Jurisdiction of courts;
    duty of United States attorneys; procedure
  • Sec. 5 Bringing in additional parties
  • Sec. 6 Forfeiture of property in transit
  • Sec. 6a Conduct involving trade or commerce
    with foreign nations
  • Sec. 7 “Person” or “persons” defined
  • Sec. 8 Trusts in
    restraint of import trade illegal; penalty
  • Sec. 9 Jurisdiction of courts; duty of United States
    attorneys; procedure
  • Sec. 10 Bringing in additional parties
  • Sec. 11 Forfeiture
    of property in transit
  • Sec. 12 Definitions; short title
  • Sec. 13 Discrimination
    in price, services, or facilities (Robinson-Patman Act)
  • Sec. 13a Discrimination in rebates,
    discounts, or advertising service charges; underselling in particular localities; penalties
  • Sec. 13b Cooperative association; return of net earnings or surplus
  • Sec. 13c
    Exemption of non-profit institutions from price discrimination provisions
  • Sec. 14 Sale, etc., on
    agreement not to use goods of competitor
  • Sec. 15 Suits by persons injured
  • Sec. 15a Suits by United States; amount of recovery; prejudgment interest
  • Sec. 15b Limitation of actions
  • Sec. 15c Actions by State attorneys general
  • Sec. 15d
    Measurement of damages
  • Sec. 15e Distribution of damages
  • Sec. 15f Actions by
    Attorney General
  • Sec. 15g Definitions
  • Sec. 15h Applicability of parens patriae
    actions
  • Sec. 16 Judgments
  • Sec. 17 Antitrust laws not applicable to labor
    organizations
  • Sec. 18 Acquisition by one corporation of stock of another (Clayton Act)
  • Sec. 18a Premerger notification and waiting period (Hart-Scott-Rodino Act)
  • Sec. 19 Interlocking directorates and officers
  • Sec. 21 Enforcement provisions
  • Sec. 21a
    Actions and proceedings pending prior to June 19, 1936; additional and continuing violations
  • Sec. 22 District in which to sue corporation
  • Sec. 23 Suits by United States;
    subpoenas for witnesses
  • Sec. 24 Liability of directors and agents of corporation
  • Sec. 25 Restraining violations; procedure
  • Sec. 26 Injunctive relief for private
    parties; exception; costs
  • Sec. 26a Restrictions on the purchase of gasohol and synthetic motor
    fuel
  • Sec. 26b Application of antitrust laws to professional major league baseball
  • Sec. 27 Effect of partial invalidity
  • Sec. 29 Appeals
  • Sec. 34 Definitions applicable to sections 34 to 36
  • Sec. 35 Recovery of damages, etc., for antitrust
    violations from any local government, or official or employee thereof acting in an official capacity
  • Sec. 36 Recovery of damages, etc., for antitrust violations on claim against person based on official
    action directed by local government, or official or employee thereof acting in an official capacity
  • Sec. 37 Immunity from antitrust laws
  • Sec. 37a Definitions
  • Sec. 37b Confirmation of antitrust status of graduate medical resident matching programs
  • Sec. 38
    Association of marine insurance companies; application of antitrust laws

• 15 U.S. Code Chapter 2, Subchapter I
  FEDERAL TRADE COMMISSION
  • Sec. 41 Federal Trade
    Commission established; membership; vacancies; seal
  • Sec. 42 Employees; expenses
  • Sec. 43 Office and place of meeting
  • Sec. 44 Definitions
  • Sec. 45 Unfair methods of competition unlawful; prevention
    by Commission
  • Sec. 45a Labels on products
  • Sec. 46 Additional powers of Commission
  • Sec. 46a Concurrent resolution essential to authorize
    investigations
  • Sec. 47 Reference of suits under
    antitrust statutes to Commission
  • Sec. 48 Information
    and assistance from departments
  • Sec. 49 Documentary
    evidence; depositions; witnesses
  • Sec. 50 Offenses and
    penalties
  • Sec. 51 Effect on other statutory
    provisions
  • Sec. 52 Dissemination of false
    advertisements
  • Sec. 53 False advertisements;
    injunctions and restraining orders
  • Sec. 54 False
    advertisements; penalties
  • Sec. 55 Additional
    definitions
  • Sec. 56 Commencement, defense,
    intervention and supervision of litigation and appeal by Commission or Attorney General
  • Sec. 57 Separability clause
  • Sec. 57a Unfair or deceptive acts or practices rulemaking
    proceedings
  • Sec. 57b Civil actions for violations of
    rules and cease and desist orders respecting unfair or deceptive acts or practices
  • Sec. 57b-1 Civil investigative demands
  • Sec. 57b-2 Confidentiality
  • Sec. 57b-2a Confidentiality and delayed notice of
    compulsory process for certain third parties
  • Sec. 57b-2b Protection for voluntary provision of
    information
  • Sec. 57b-3 Rulemaking process
  • Sec. 57b-4 Good faith reliance on actions of Board of
    Governors
  • Sec. 57b-5 Agricultural cooperatives
  • Sec. 57c Authorization of appropriations
  • Sec. 57c-1 Staff exchanges
  • Sec. 57c-2 Reimbursement of expenses
  • Sec. 58 Short title

Code of Federal Regulations

• 16 CFR CHAPTER I FEDERAL TRADE COMMISSION
  • SUBCHAPTER A ORGANIZATION, PROCEDURES AND
    RULES OF PRACTICE (Parts 0 to 16)
  • SUBCHAPTER B GUIDES AND TRADE PRACTICE
    RULES (Parts 17 to 260)
  • SUBCHAPTER C
    REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS (Parts 300 to 322)
    • 16 CFR PART 318 HEALTH BREACH NOTIFICATION RULE
      • Sec. 318.1 Purpose and scope.
      • Sec. 318.2 Definitions.
      • Sec. 318.3 Breach notification requirement.
      • Sec. 318.4 Timeliness of notification.
      • Sec. 318.5 Methods of notice.
      • Sec. 318.6 Content of notice.
      • Sec. 318.7 Enforcement.
      • Sec. 318.8 Effective date.
      • Sec. 318.9 Sunset.
  • SUBCHAPTER D TRADE REGULATION RULES (Parts
    408 to 460)
  • SUBCHAPTER E RULES,
    REGULATIONS, STATEMENT OF GENERAL POLICY OR INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND LABELING ACT
    (Parts 500 to 503)
  • SUBCHAPTER F THE
    FAIR CREDIT REPORTING ACT (Parts 600 to 698)
  • SUBCHAPTER G RULES, REGULATIONS, STATEMENTS
    AND INTERPRETATIONS UNDER THE MAGNUSON-MOSS WARRANTY ACT (Parts 700 to 703)
  • SUBCHAPTER H RULES, REGULATIONS, STATEMENTS
    AND INTERPRETATIONS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 (Parts 801 to 803)
  • SUBCHAPTER I FAIR DEBT COLLECTION PRACTICES
    ACT (Parts 901 to 902)

Cases

• Cardinal Health Inc.
  (FTC 2015)(resolves charges that Cardinal illegally monopolized 25 local markets for the sale and distribution of low-energy radiopharmaceuticals and forced hospitals and clinics to pay inflated prices for these drugs. The stipulated order requires Cardinal to pay $26.8 million and represents the second largest monetary settlement the FTC has obtained in an antitrust case)

• Endo Health Solutions Inc.
  (FTC 2014)(settlement preserves competition in the pharmaceutical markets for four prescription generic multivitamin
  drop products given to children in the United States who do not have access to fluoridated water)

• Thermo Fisher Scientific,
  Inc. (FTC 2014)(complaint alleged that the deal, as it was originally proposed, would have eliminated close
  competition between Thermo Fisher and Life and substantially increased concentration in the markets for short/small
  interfering ribonucleic acid (siRNA) reagents, cell culture media, and cell culture sera, enabling the combined firm
  to raise prices and reduce quality for consumers)

• LabMD, Inc.
  (FTC 2013)(complaint alleges that respondent’s failure to employ reasonable and appropriate measures to prevent
  unauthorized access to personal information, including dates of birth, SSNs, medical test codes, and health
  information, caused, or is likely to cause, substantial injury to consumers that is not offset by countervailing
  benefits to consumers or competition and is not reasonably avoidable by consumers. This practice was, and is, an
  unfair act or practice)

• St. Luke’s Health
  System, Ltd. (FTC 2013)(According to the joint complaint, the combination of St. Luke’s and Saltzer would give it
  the market power to demand higher rates for health care services provided by primary care physicians (PCPs) in
  Nampa, Idaho and surrounding areas, ultimately leading to higher costs for health care consumers)

• NC Board of Dental Examiners v.
  FTC (FTC 2013)(finding that the Board violated the FTC Act, 15 U.S.C. § 45, by engaging in
  unfair competition in the market for teeth-whitening services in North Carolina)

• Blue Cross v. Marshfield Clinic
  (1998) (clinic did not posses market power to support Sherman Act violation – remanded for damages on
  division of markets claim)

• Blue Shield Of Virginia v. Mccready (U.S. 1982) (no standing under Clayton Act Sec. 4)
• Federal Trade Comm’n v. Ticor Title Ins. 504
  U.S. 621 (1992) (state-action antitrust immunity not available under the title insurance regulatory schemes in
  Montana and Wisconsin)

• Jefferson County Pharmaceutical
  Association, Inc. v. Abbott Laboratories (U.S. 1983) (sale of pharmaceutical products to state and
  local government hospitals for resale in competition with private pharmacies not exempt from Robinson-Patman Act)

• Jefferson Parish Hospital District No. 2 v. Hyde
  (U.S. 1984) (hospital’s exclusive contract with firm of anesthesiologists did not violate § 1 of the
  Sherman Act)

Reports

• Federal Trade
  Commission Recent Federal Register documents including analysis of consent orders.

• Stakeholders’ Perspectives Differed on the Adequacy of
  Guidance for Collaboration among Health Care Providers (GAO 2012) The use of exclusive
  arrangements has the potential to improve or reduce competition, depending on the circumstances.

• Statement of Antitrust Enforcement
  Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (DOJ 2011) Applies to
  all collaborations among otherwise independent providers and provider groups that are eligible and intend, or have
  been approved, to participate in the Medicare Shared Savings Program.

• Private Health Insurance: Research on Competition in the
  Insurance Industry (GAO 2009) This report summarizes the findings of peer-reviewed research on
  concentration in private health insurance markets and the relationship between the level of competition and other
  variables, such as premium prices and provider reimbursement rates.

• Statements of Antitrust Enforcement Policy in
  Health Care (DOJ 1996) In these revised statements, the Agencies continue to analyze all types of health care provider
  networks under general antitrust principles. These principles are sufficiently flexible to take into account the
  particular characteristics of health care markets and the rapid changes that are occurring in those markets.

• Antitrust Enforcement Under Maryland’s Hospital All-PayerSystem (GAO 1994) One
  issue being raised in the debate over health care reform is how antitrust law should be applied to health care
  providers.

• Federal
  and State Antitrust Actions Concerning the Health Care Industry (GAO 1994) GAO
  found that of 397 acute care hospital mergers reviewed by Justice and the FTC in the 13 year period of fiscal year
  1981 through fiscal year 1993, less than 4 percent were challenged.

• Antitrust Issues Relating to Physicians and Third-Party Payers (GAO 1991) GAO reviewed physician antitrust issues, focusing on: (1) the effect of antitrust laws on physicians’ ability to act in groups to educate and discipline peers to reduce and eliminate ineffective practices and inappropriate utilization; and (2) how such issues relate to third-party payers’ adoption of practice guidelines.

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