The Antitrust Review of the Americas 2018

United States: Healthcare

11 September 2017

Introduction Unlike in other industries rarely in antitrust cross-hairs, healthcare antitrust policy and enforcement continues to be shaped by key political and judicial events. In the past year alone, three courts of appeals and one district court issued key antitrust decisions regarding healthcare mergers. Perhaps more importantly but leading to more uncertainy, the legislative direction of healthcare policy in the United States remains an open question. On 4 May 2017, the United States House of Representatives passed legislation to repeal and replace the Affordable Care Act (ACA).1 The consequences of this repeal are significant in that the ACA placed an emphasis on assuring collaboration and cooperation among providers that some viewed in contrast with antitrust policy's general disinclination for massively scaled enterprises. Action in the Senate, however, has stalled, so whether the ACA will persist is unknown. The result of a repeal of or a replacement to the ACA could have a significant impact upon antitrust enforcement by the Federal Trade Commission (FTC) and Department of Justice (DOJ) and adjudication in the federal courts. Only time will tell. Nevertheless, despite this uncertain backdrop, there remain key lessons from recent judicial activity of which all parties contemplating transactions in the healthcare space must be mindful.

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