United States: Healthcare


In summary

This article provides an overview of notable Federal Trade Commission (FTC) and Department of Justice (DOJ) enforcement actions in the healthcare industry from January 2020 to May 2021, such as preliminary injunctions to block mergers and criminal indictments brought by the DOJ. It also highlights major developments in agency enforcement due to the covid-19 pandemic.


Discussion points

  • FTC’s and DOJ’s continued enforcement of potentially anticompetitive transactions
  • FTC enforcement under the new COVID-19 Consumer Protection Act
  • Increased number of criminal indictments brought by DOJ

Referenced in this article

  • In re Matter of Thomas Jefferson University, et al
  • In re Matter of Hackensack Meridian Health, Inc, et al
  • In re Matter of Methodist Le Bonheur Healthcare, et al
  • In re Matter of Otto Bock HealthCare North America, Inc
  • In re Matter of Stryker and Wright Medical
  • US v Geisinger Health and Evangelical Community Hospital
  • US v Surgical Care Affiliates, LLC, et al
  • US v Sandoz, Inc
  • US v Florida Cancer Specialists & Research Center, LLC

Introduction

Healthcare has always been an industry that has been at the forefront of public interest in the United States, and 2020 was no exception: the provision of healthcare was consistent headline news across the country owing to the covid-19 pandemic. With a bright spotlight on healthcare, the protection of competition and consumers in this industry remained a key focus of the antitrust enforcement agencies, the FTC and Antitrust Division of the DOJ. The matters detailed below provide perspective into the types of enforcement actions the FTC and DOJ are pursuing. Reviewing these cases can offer helpful insight for firms considering transactions in this space.

The Federal Trade Commission

The FTC’s focus on healthcare matters remained vigilant. In addition to its regular monitoring of and intervention in potentially anticompetitive transactions, with three challenges to hospital combinations and seeking divestitures for various medical devices, as well as closely monitoring consumer protection claims stemming from covid-19.

Continued enforcement of hospital transactions

In re Matter of Thomas Jefferson University, et al

On 27 February 2020, the FTC sought federal intervention to block the proposed merger of Thomas Jefferson University’s hospitals (Jefferson) with Thomas Health and Albert Einstein Healthcare Network (Einstein).[1] Jefferson and Einstein are the leading providers of inpatient general acute care hospital services and inpatient acute rehab services in Philadelphia and Montgomery counties, Pennsylvania and, according to the FTC, have a long history of competing directly against each other.[2] Since 2015, Jefferson has acquired numerous hospital systems and inpatient rehabilitation facilities.[3] Notably, through its merger with Aria Health System, Jefferson now has a partial ownership stake in Health Partners Plan, a non-profit health maintenance organisation that offers managed government insurance to consumers in Southeastern Pennsylvania.[4]

In 2018, Jefferson and Einstein entered into an Integration Agreement whereby Jefferson would become the sole member and parent entity of Einstein.[5] The FTC argued the combined entity would operate 11 general acute care hospitals and eight inpatient rehabilitation facilities in Pennsylvania.[6] The FTC argued that the combined entity would have at least 60 per cent of inpatient general acute care hospital services market in the Northern Philadelphia Area and 45 per cent in the Montgomery Area.[7] In addition, the FTC alleged the merger would result in similar concentration in the market for rehabilitation services, with a combined share of at least 70 per cent.[8] The merger would allegedly increase the combined entity’s bargaining leverage over insurers and their health plan members, leading to higher reimbursement rates.[9] It would also eliminate non-price competition between competing hospitals in attracting patients and competition for quality and services.[10]

In December 2020, a federal judge found the FTC’s case was based on biased testimony from health insurers and dismissed the FTC’s complaint.[11] Specifically, the judge noted that the FTC was not viewing the merger from a patient’s perspective, even though they would be the most affected by increased prices in a lesser competitive market.[12] The judge explained that the commercial insurance provider market is much more consolidated than that of the regional medical services.[13] The FTC appealed to the Third Circuit, but chose to voluntarily withdraw the complaint in January 2021.[14]

In re Matter of Hackensack Meridian Health, Inc, et al

On 3 December 2020, the FTC sought to block Hackensack Meridian Health, Inc’s (Hackensack) proposed acquisition of Englewood Healthcare Foundation (Englewood), filing an administrative complaint and lawsuit in the US District Court for the District of New Jersey.[15] The FTC’s complaint alleged Hackensack is the largest healthcare system in New Jersey owing to several mergers over the past several years and, by acquiring Englewood, would control three of the six inpatient general acute care hospitals in Bergen County, New Jersey.[16] According to the FTC, the acquisition would leave insurers with few alternatives for inpatient general acute care services in Bergen County, potentially leading to higher insurance premiums, co-pays, deductibles, or other costs, as well as reducing incentives to improve patient care quality.[17] It would also eliminate direct competition between Hackensack and Englewood, removing incentives to keep prices lower and the quality of care higher, and eliminate non-price competition by way of quality, technology, amenities, equipment, access to care and service offerings.[18] At issue in this case was market definition. Hackensack and Englewood argued the FTC mischaracterised the relevant geographic market by failing to include hospitals and facilities outside of Bergen County; the FTC responded that all New Jersey hospitals outside of Bergen County and New York hospitals represented only 8.2 per cent and 13.9 per cent share of discharges of Bergen County residents, respectively. Similarly, the FTC argued that even assessing the market based solely on hospitals within Bergen County, post-transaction, Hackensack would control 65 per cent of the market. Hackensack also argued that, for payors, the hospitals are complements rather than substitutes. Hackensack is an academic medical center that performs highly complex services that a community hospital like Englewood does not provide. Hackensack and Englewood further defended the merger, stressing its procompetitive benefits, such as investing in more community programmes and increasing access to routine, tertiary and quaternary inpatient services.[19] The District Court heard arguments on the FTC’s preliminary injunction in May 2021 and on 5 August 2021, granted the FTC’s request.[20]

In re Matter of Methodist Le Bonheur Healthcare, et al

On 13 November 2020, the FTC sought to block the proposed acquisition between Methodist Le Bonheur Healthcare (Methodist) and Tenet Healthcare Corporation (Tenet).[21] Methodist sought to acquire two Tenet hospitals, Saint Francis Hospital – Memphis and Saint Francis Hospital – Bartlett, and its subsidiaries.[22] The FTC claimed that Methodist and Tenet directly compete and are only two of four providers of general acute care inpatient hospital services in the Memphis metropolitan region and that the acquisition would reduce the number of providers to just three.[23] The FTC explained that Tenet and Methodist directly compete for both inclusion in insurers’ networks and for patients.[24] However, Tenant and Methodist argued that Methodist compete with a rival insurance provider, Baptist, for inclusion in narrow networks, which are insurance networks that limit the number of hospitals that can participate in the network, and would actually increase competition.[25] The proposed combined entity would control about 60 per cent of the market.[26] The FTC further alleged that the merger would lead to decreased competition between Methodist and commercial insurers, who are likely to pass at least some of the increased costs to employers and plan members.[27] The merger would also eliminate direct competition between the hospitals when attracting patients.[28] On 23 December 2020, the parties announced that they were abandoning the transaction.[29]

Enforcement of medical devices

In re Matter of Otto Bock HealthCare North America, Inc

On 1 December 2020, the FTC approved Otto Bock HealthCare North America, Inc (Otto Bock)’s application to divest parts of its business it acquired through its consummated acquisition of FIH Group Holdings, LLC (FIH). Otto Bock has agreed to divest to Proteor, Inc (Proteor) all microprocessor prosthetic knew products and technology. In its application, Otto Bock claimed that Proteor had an established reputation throughout the world as a manufacturer and supplier of lower-limb prosthetic devices. By divesting FIH’s microprocessor prosthetic knee business, competition would be restored to its pre-transaction status, thus resolving the lessening of competition the FTC alleged in their complaint.

This divestiture stems from the Federal Trade Commission’s ruling in November 2019, upholding an administrative law judge’s decision, that Otto Bock’s consummated acquisition of FIH was anticompetitive for the manufacture and supply of microprocessor prosthetic knees in the US.[30] According to the FTC, Otto Bock and FIH are direct competitors and that Otto Bock considered FIH a serious competitive threat.[31] The FTC noted direct evidence of the parties’ head-to-head competition, new innovation, regular product upgrades, and various discounting promotions.[32] This divestiture to Proteor will remedy these concerns.

In re Matter of Stryker and Wright Medical

On 3 November 2020, the FTC issued both a complaint and a consent agreement regarding the proposed acquisition by Stryker Corporation (Stryker) of Wright Medical Group NV (Wright).[33] Stryker, a US company, and Wright, a Dutch company, both participate in the development, manufacturing, sale, and distribution of a broad range of medical devices.[34] The FTC was particularly concerned with the transaction’s possible effects on the markets for total ankle replacements and finger joint anthroplasty implants.[35] The FTC’s complaint alleges that Stryker and Wright accounted for 75 per cent and over 50 per cent of each market, respectively.[36] The FTC argued that it would be highly difficult for a new medical device manufacturer to enter the market given the time required to develop products and receive US Food and Drug Administration (FDA) approval.[37] Even with the required products and government approvals, a new entrant is unlikely to be substituted for a Stryker or Wright product without having developed a favourable reputation first.[38] As a result of Stryker’s and Wright’s current dominance and the relevant product markets, the FTC argued that the acquisition would likely create a monopoly for both product types, potentially leading to deceased research and development efforts, as well as higher prices for consumers.[39]

On 17 December 2020, the FTC approved the final order requiring the parties to divest their total ankle replacement and finger joint implants businesses to DJO Global, Inc (DJO) in order to consummate the acquisition.[40] The FTC found that DJO had a suitable reputation in the medical device industry and, by acquiring Stryker’s businesses, could become a viable competitor in the product markets.[41] Under the agreement, Stryker must help DJO with transitioning the businesses and act as an intermediary supplier until DJO received FDA approval.[42]

Covid-19 related enforcement action

The FTC has filed over 13 enforcement actions against companies since April 2020, including its first under the new COVID-19 Consumer Protection Act (the COVID Act) since the Act was enacted in December 2020.[43] This Act makes it ‘unlawful for any person, partnership, or corporation to engage in a deceptive act or practice in or affecting commerce associated with the treatment, cure, prevention, mitigation, or diagnosis of COVID-19 or a government benefit related to COVID-19’.[44] Liable parties can be charged interest and assessed other penalties on any amounts not reimbursed within 30 days for first-time violations, an uncharacteristic remedy not normally available to the FTC.[45]

The FTC also directed more than 350 companies to remove deceptive claims related to covid-19, prioritise enforcement actions related to conduct exacerbated by transitions to home-based work and schooling, and collected and tracked over 436,000 consumer fraud reports associated with covid-19.[46]

The Department of Justice

For its part, the Antitrust Division of the DOJ also remained active. In the spring of 2018, then-Deputy Assistant Attorney General Barry Nigro signalled a shifting focus on criminal antitrust enforcement regarding the healthcare industry while speaking at the American Bar Association’s Antitrust in Healthcare Conference. Despite the lack of an appointed Assistant Attorney General of the Antitrust Division for nearly all of 2020, the Antitrust Division maintained its focus on healthcare-related transactions as well as criminal antitrust enforcement in a series of indictments and deferred prosecution agreements.

In-patient hospital services

US v Geisinger Health and Evangelical Community Hospital

On 5 August 2020, the DOJ sought federal intervention via a permanent injunction to prevent a merger between Geisinger Health’s partial acquisition of Evangelical Community Hospital.[47] The DOJ argued that Geisinger and Evangelical considered each other their only true competitor for inpatient general acute-care services, particularly in central Pennsylvania, and that the acquisition would account for over 70 per cent of the market in this region.[48] The DOJ also argued that the partial acquisition would harm competition by impeding the ability of insurers to negotiate lower prices for services and discounted prices for religious communities who do not have insurance.[49] It would also impede pro-competitive actions meant to attract patients to their specific hospital, as was seen here when Evangelical’s CEO stated that she recommended building a new orthopedic facility given Geisinger’s existing orthopedic capabilities.[50] The DOJ’s complaint alleged that Geisinger was aware that a full merger would create a monopoly in the region given its pattern of acquiring community hospitals throughout Pennsylvania in the prior years,[51] and thus sought a partial acquisition to avoid requiring Attorney General approval.[52]

In March 2021, the DOJ announced a settlement with Geisinger and Evangelical, which allowed the partial acquisition to be completed, but under distinctly different terms.[53] Under the original agreement, Geisinger was to acquire a 30 per cent ownership interest in Evangelical in exchange for providing US$100 million to Evangelical to use for Geisinger-approved projects.[54] The original agreement also gave Geisinger certain rights over future transactions and joint ventures, the right to appoint six members to the Evangelical board of directors, and the right to have a say in selecting Evangelical’s CEO.[55] The settlement provided caps on Geisinger’s investments in Evangelical and limited other avenues for potential integration of the two hospitals, such as limiting Geisinger’s ownership interest to a 7.5 per cent passive interest. Final judgment was approved on 10 March 2021.[56]

The DOJ ultimately settled with Geisinger and Evangelical because it recognised the pro-competitive benefits of the transaction.[57] Evangelical will now benefit from new electronic health records IT systems and related IT from Geisinger, all of which will improve patient care delivery in central Pennsylvania.[58] Evangelical is also required to use the funding from Geisinger for patient-centric and community-based projects.[59]

US v Surgical Care Affiliates, LLC, et al

On 7 January 2021, the DOJ announced that a federal grand jury returned a two-count indictment charging Surgical Care Affiliates LLC and its related entity, Scai Holdings, LLC (together, SCA), for its role in a conspiracy its competitors to not solicit senior-level employees.[60] SCA owns and operates outpatient medical centres throughout the United States.[61] The DOJ alleged that SCA and an unnamed party, an owner and operator of a rival outpatient medical care facilities provider, agreed to not solicit each other’s senior-level employees.[62] SCA and the other party were alleged to have held meetings and engaged in conservations and communications where they discussed the terms of the alleged agreement not to solicit employees from one another.[63] SCA and the other party also allegedly monitored compliance and undertook other allegedly anticompetitive actions.[64]

In May 2021, SCA filed a proposed reply brief in support of its motion to dismiss.[65] SCA argued that the DOJ cannot bring criminal antitrust charges for activities courts have not already deemed per se illegal, such as non-solicitation agreements.[66] The DOJ reiterated its previous positions and the matter remains ongoing.[67]

Generic drug manufacturing

On 2 March 2020, the DOJ entered into a deferred prosecution agreement with Sandoz Inc (Sandoz) for is participation in three separate conspiracies with unidentified rival drug manufacturers to allocate customers and rig bids for, and stabilise, maintain, and fix prices of, generic drugs sold in the US, and for conspiring with Kavod Pharmaceuticals LLC to allocate customers and fix prices of benazepril HCTZ sold in the US.[68] According to the DOJ, the conspiracies allowed manufacturers and their executives to raise prices for critical medications,[69] thus retraining trade and competition within the generic drug market and HCTZ drug market.[70] Sandoz was the third pharmaceutical company that admitted to criminal antitrust violations as part of the DOJ’s ongoing investigation.[71] The proposed settlement requires Sandoz to produce documents when requested, to cooperate in any federal criminal proceeding and to immediately report any credible evidence of allegations on criminal antitrust violations affecting Sandoz or its subsidiary to DOJ.[72] Sandoz must also pay US$195 million to the US Treasury within 30 days after acceptance of the agreement.[73]

Oncology treatments

On 30 April 2020, the DOJ settled with Florida Cancer Specialists & Research Institute, LLC (FCS) for conspiring with rival Oncology Company A to allocate medical oncology treatments for cancer patients to FCS and radiation oncology treatments for cancer patients to Oncology Company A.[74] According to the DOJ, this scheme allowed FCS and its co-conspirators to criminally exploit cancer patients for monetary gain[75] while also suppressing and restraining competition between providers within the oncology treatment market.[76] Under the deferred prosecution agreement, FCS must produce documents to the DOJ upon request and immediately report any credible evidence or allegations of criminal violations by FCS, its subsidiaries, or its employees.[77] The agreements also included a non-compete waiver in which FCS agreed to not enforce any non-compete provisions with its current or former oncologists and other employees who open or join an oncology practice in Southwest Florida.[78] FCS also agreed to pay a US$100 million fine.[79]

On 23 September 2020, the DOJ announced a federal indictment for one count of conspiracy to restrain trade against Dr William Harwin, founder and former president of FCS for his role in the conspiracy.[80] According to the DOJ, beginning as early as 1999, Dr Harwin and his co-conspirators illegally agreed to allocate medical oncology treatments to FCS and radiation oncology treatments to a competing oncology group.[81] The indictment identifies FCS, a rival oncology group, and four individuals as co-conspirators, but not defendants.[82] Dr Harwin allegedly participated in conversations and communications where he agreed that FCS would not employ radiation oncologists in Southwest Florida and that the two groups would work together to ensure that there was no competition between medical oncology and radiation oncology in the region.[83] The alleged conspiracy suppressed and eliminated competition the oncology treatment market in Southwest Florida.[84] The indictment further alleges that Dr Harwin played an active role in monitoring and enforcing adherence to the illegal agreement.[85] If convicted, Dr Harwin faces a maximum penalty of 10 years in prison and a US$1 million fine, which may be increased to twice the gain derived from the crime or twice the loss suffered by victims if either amount is greater than US$1 million.[86]

Conclusion

The FTC and DOJ have shown once again just how committed regulators are to rooting out antitrust violations in the healthcare industry. The DOJ, in particular, has shown a willingness to use its criminal enforcement powers in this space. While much of antitrust and competition law remains in flux, it is especially important that all members of the healthcare community should be prepared for close scrutiny of their transactions, agreements and policies.


Notes

[1] In re Matter of Thomas Jefferson University, et al, Docket No. 9392 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09392_administrative_part_iii_complaint.pdf.

[2] ‘FTC and Commonwealth of Pennsylvania Challenge Proposed Merger of Two Major Philadelphia-area Hospital Systems’, FTC (27 February 2020), https://www.ftc.gov/news-events/press-releases/2020/02/ftc-commonwealth-pennsylvania-challenge-proposed-merger-two-major.

[3] In re Matter of Thomas Jefferson University, et al, Docket No. 9392, 5 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09392_administrative_part_iii_complaint.pdf.

[4] id.

[5] id. at 6.

[6] id.

[7] In re Matter of Thomas Jefferson University, et al, Docket No. 9392, 2 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09392_administrative_part_iii_complaint.pdf.

[8] id. at 3.

[9] id. at 12.

[10] id. at 12–15.

[11] ‘FTC Drops Opposition to Einstein Healthcare-Jefferson Health Merger’, HealthLeaders (1 March 2021), https://www.healthleadersmedia.com/strategy/ftc-drops-opposition-einstein-healthcare-jefferson-health-merger.

[12] Judge blocks FTC’s attempt to stop Jefferson-Einstein merger deal, Fierce Healthcare, Tina Reed (9 December 2020), https://www.fiercehealthcare.com/hospitals/ftc-s-attempt-to-block-jefferson-einstein-deal-stymied.

[13] id.

[14] ‘FTC Drops Opposition to Einstein Healthcare-Jefferson Health Merger’, HealthLeaders (1 March 2021), https://www.healthleadersmedia.com/strategy/ftc-drops-opposition-einstein-healthcare-jefferson-health-merger.

[15] In re Matter of Hackensack Meridian Health, In., et al, Docket No. 9399 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09399_administrative_part_3_complaint_-_public.pdf.

[16] ‘FTC Challenges Hackensack Meridian Health, Inc.’s Proposed Acquisition of Competitor Englewood Healthcare Foundation’, FTC (3 December 2020), https://www.ftc.gov/news-events/press-releases/2020/12/ftc-challenges-hackensack-meridian-health-incs-proposed.

[17] id.

[18] In re Matter of Hackensack Meridian Health, Inc, et al, Docket No. 9399], 8–9 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09399_administrative_part_3_complaint_-_public.pdf.

[19] Paavola, Alia, ‘FC asks judge to halt acquisition of New Jersey hospital system’, Becker’s Hospital Review (11 May 2021), https://www.beckershospitalreview.com/hospital-transactions-and-valuation/ftc-asks-judge-to-halt-acquisition-of-new-jersey-hospital-system.html.

[20] ‘FTC Challenges Hackensack Meridian Health, Inc.’s Proposed Acquisition of Competitor Englewood Healthcare Foundation,’ FTC (3 December 2020), https://www.ftc.gov/news-events/press-releases/2020/12/ftc-challenges-hackensack-meridian-health-incs-proposed.

[21] Complaint, In re Matter of Methodist Le Bonheur Healthcare, et al, Docket No. 9396 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d9396_administrative_part_3_complaint_public_version599815.pdf.

[22] id. at 1.

[23] id. at 1–2.

[24] id. at 2.

[25] Respondents’ Answers and Defences, In re Matter of Methodist Le Bonheur Healthcare, et al, Docket No. 9396, 5 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d09396_-_provisionally_accepted_respondents_answers_and_defenses_-_public.pdf.

[26] ‘FTC Sues to Block Proposed Acquisition of Two Memphis-Area Hospitals’, FTC (13 November 2020), https://www.ftc.gov/news-events/press-releases/2020/11/ftc-sues-block-proposed-acquisition-two-memphis-area-hospitals.

[27] id.

[28] Complaint, In re Matter of Methodist Le Bonheur Healthcare, et al, Docket No. 9396, 7 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/d9396_administrative_part_3_complaint_public_version599815.pdf.

[29] Statement of Daniel Francis, Deputy Director of the FTC’s Bureau of Competition, Regarding the Announcement that Methodist Le Bonheur Healthcare has Abandoned Its Proposed Acquisition of Two Memphis-area Hospitals from Tenet Healthcare, FTC (23 December 2020), https://www.ftc.gov/news-events/press-releases/2020/12/statement-daniel-francis-deputy-director-ftcs-bureau-competition.

[30] In re Matter of Otto Bock HealthCare North America, Inc, Docket No. 9378 (FTC 2017), https://www.ftc.gov/system/files/documents/cases/otto_bock_part_3_complaint_redacted_public_version.pdf.

[31] id. at 1–2.

[32] id. at 2.

[33] Complaint, In re Matter of Stryker Corp, et al, Docket No. C-4728 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/c4728_-_201_0014_stryker_and_wright_medical_-_complaint.pdf; see also ‘FTC Requires Medical Device Companies Stryker Corp. and Wright Medical Group N.V. to Divest Assets to Preserve Competition’, FTC (3 November 2020), https://www.ftc.gov/news-events/press-releases/2020/11/ftc-requires-medical-device-companies-stryker-corp-wright-medical.

[34] Complaint, In re Matter of Stryker Corp, et al, Docket No. C-4728, 1-2 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/c4728_-_201_0014_stryker_and_wright_medical_-_complaint.pdf.

[35] id. at 2.

[36] id. at 2–3.

[37] id. at 3.

[38] id.

[39] id.

[40] ‘FTC Approves Final Order Imposing Conditions on Stryker Corp.’s Acquisition of Wright Medical Group N.V.’, FTC (17 December 2020), https://www.ftc.gov/news-events/press-releases/2020/12/ftc-approves-final-order-imposing-conditions-stryker-corps.

[41] id.

[42] Decision, In re Matter of Stryker Corp, et al, Docket No. C-4728 (FTC 2020), https://www.ftc.gov/system/files/documents/cases/2010014c4728strykerwrightorder.pdf.

[43] ‘One Year into COVID-19 Pandemic, New FTC Staff Report Highlights Agency’s Ongoing Efforts to Protect Consumers’, FTC (19 April 2021), https://www.ftc.gov/news-events/press-releases/2021/04/one-year-covid-19-pandemic-new-ftc-staff-report-highlights; see also ‘Protecting Consumers During the COVID-19 Pandemic: A Year in Review’, FTC (April 2021), https://www.ftc.gov/system/files/documents/reports/protecting-consumers-during-covid-19-pandemic-year-review/covid_staff_report_final_419_0.pdf.

[44] ‘COVID-19 Consumer Protection Act of the 2021 Consolidated Appropriations Act’, FTC, https://www.ftc.gov/enforcement/statutes/covid-19-consumer-protection-act-2021-consolidated-appropriations-act; see also Pub. L. No. 116-260, 134 Stat. 1182, Division FF, Title XIV, § 1401, 210 https://www.congress.gov/116/bills/hr133/BILLS-116hr133enr.pdf.

[45] Pub. L. No. 116-260, 134 Stat. 1182, Division FF, Title XIV, § 1401, 210 https://www.congress.gov/116/bills/hr133/BILLS-116hr133enr.pdf; see also ‘In First Action Under COVID-19 Consumer Protection Act, FTC Seeks Monetary Penalties for Deceptive Marketing of Purported Coronavirus Treatments’, FTC (15 April 2021), https://www.ftc.gov/news-events/press-releases/2021/04/first-action-under-covid-19-consumer-protection-act-ftc-seeks.

[46] ‘One Year into COVID-19 Pandemic, New FTC Staff Report Highlights Agency’s Ongoing Efforts to Protect Consumers,’ FTC (19 April 2021), https://www.ftc.gov/news-events/press-releases/2021/04/one-year-covid-19-pandemic-new-ftc-staff-report-highlights.

[47] US v Geisinger Health, et al, No. 4:20-cv-001383-MBW (M.D. Pa. 2020), https://www.justice.gov/atr/case-document/file/1313051/download.

[48] id. at 2; see also Justice Department Sues to Block Geisinger Health’s Transaction With Evangelical Community Hospital, DOJ (5 August 2020), https://www.justice.gov/opa/pr/justice-department-sues-block-geisinger-health-s-transaction-evangelical-community-hospital.

[49] US v Geisinger Health, et al, No. 4:20-cv-001383-MBW, 7 (M.D. Pa. 2020), https://www.justice.gov/atr/case-document/file/1313051/download.

[50] id.

[51] id. at 5.

[52] id. at 9.

[53] ‘Resolution of the Antitrust Division’s Challenge to Geisinger Health’s Partial Acquisition of Evangelical Community Hospital’, DOJ (24 March 2021), https://www.justice.gov/atr/division-operations/division-update-spring-2021/resolution-antitrust-divisions-challenge-geisinger-healths-partial-acquisition-evangelical.

[54] id.

[55] id.; see also US v Geisinger Health, et al, No. 4:20-cv-001383-MBW, 9 (M.D. Pa. 2020), https://www.justice.gov/atr/case-document/file/1313051/download.

[56] ‘Resolution of the Antitrust Division’s Challenge to Geisinger Health’s Partial Acquisition of Evangelical Community Hospital,’ DOJ (24 March 2021), https://www.justice.gov/atr/division-operations/division-update-spring-2021/resolution-antitrust-divisions-challenge-geisinger-healths-partial-acquisition-evangelical.

[57] ‘Justice Department Resolves Antitrust Case Against Leading Central Pennsylvania Health Care Providers’, DOJ (3 March 2021), https://www.justice.gov/opa/pr/justice-department-resolves-antitrust-case-against-leading-central-pennsylvania-health-care.

[58] id.

[59] id.

[60] Indictment, US v Surgical Care Associates, LLC, et al, Case No. 3:21-cr-00011-L (N.D. Tex. 2021), https://www.justice.gov/atr/case-document/file/1373776/download; see also ‘Health Care Company Indicted for Labor Market Collusion’, DOJ (7 January 2021), https://www.justice.gov/opa/pr/health-care-company-indicted-labor-market-collusion.

[61] ‘Health Care Company Indicted for Labor Market Collusion’, DOJ (7 January 2021), https://www.justice.gov/opa/pr/health-care-company-indicted-labor-market-collusion.

[62] Indictment, US v Surgical Care Associates, LLC, et al, Case No. 3:21-cr-00011-L, 2-4 (N.D. Tex. 2021), https://www.justice.gov/atr/case-document/file/1373776/download.

[63] id. at 3-4.

[64] id.

[65] Perlman, Matthew, ‘Surgical Care Blasts DOJ Criminal Case Over Employee Pacts,’ Law360 (17 May 2021), https://www.law360.com/articles/1385417.

[66] id.

[67] id.

[68] ‘Major Generic Pharmaceutical Company Admits to Antitrust Crimes’, DOJ (2 March 2020), https://www.justice.gov/opa/pr/major-generic-pharmaceutical-company-admits-antitrust-crimes.

[69] id.

[70] Information, US v Sandoz Inc, Case No. 2:20-cr-00111-RBS, 1 (E.D. Pa.), https://www.justice.gov/atr/case-document/file/1256301/download.

[71] id.

[72] Deferred Prosecution Agreement, U.S. v. Sandoz Inc., Case No. 2:20-cr-00111-RBS , 5–8 (E.D. Pa. 2020), https://www.justice.gov/atr/case-document/file/1256306/download.

[73] id. at 8.

[74] ‘Leading Cancer Treatment Center Admits to Antitrust Crime and Agrees to Pay $100 Million Criminal Penalty’, DOJ (30 April 2020), https://www.justice.gov/opa/pr/leading-cancer-treatment-center-admits-antitrust-crime-and-agrees-pay-100-million-criminal.

[75] id.

[76] Information, US v Florida Cancer Specialists & Research Institute, LLC, Case No. 2:20-cr-00078-TPB-MRM, 1 (M.D. Fla. 2020), https://www.justice.gov/atr/case-document/file/1281676/download.

[77] Deferred Prosecution Agreement, US v Florida Cancer Specialists & Research Institute, LLC, Case No. 2:20-cr-00078-TPB-MRM, 5-7 (M.D. Fla. 2020), https://www.justice.gov/atr/case-document/file/1281681/download.

[78] ‘Leading Cancer Treatment Center Admits to Antitrust Crime and Agrees to Pay $100 Million Criminal Penalty’, DOJ (30 April 2020), https://www.justice.gov/opa/pr/leading-cancer-treatment-center-admits-antitrust-crime-and-agrees-pay-100-million-criminal.

[79] Deferred Prosecution Agreement, US v Florida Cancer Specialists & Research Institute, LLC, Case No. 2:20-cr-00078-TPB-MRM , 5-7 (M.D. Fla. 2020), https://www.justice.gov/atr/case-document/file/1281681/download.

[80] ‘Former Cancer Center President Indicted for Participation in Long-Running Antitrust Conspiracy’, DOJ (34 September 2020), https://www.justice.gov/opa/pr/former-cancer-center-president-indicted-participation-long-running-antitrust-conspiracy.

[81] id.

[82] US v Harwin, Case No. 2:20-cr-00115-JLB-MRM, 3 (M.D. Fla. 2020), https://www.justice.gov/atr/case-document/file/1324571/download.

[83] id. at 6.

[84] id. at 4.

[85] id. at 6.

[86] ‘Former Cancer Center President Indicted for Participation in Long-Running Antitrust Conspiracy’, DOJ (34 September 2020), https://www.justice.gov/opa/pr/former-cancer-center-president-indicted-participation-long-running-antitrust-conspiracy.

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