The Affordable Care Act appears to have caused an explosion of mergers in the healthcare sector. The Federal Trade Commission has been particularly active in challenging hospital mergers, seeking preliminary injunctions to block three transactions at the present time and an unblemished record of success over the last nine years. Perhaps in part to counteract the effect of these transactions, health plans also are closely examining merging their operations. The Antitrust Division is presently investigating two health plan mergers that, if consummated, would consolidate the five largest commercial health insurers into three—Anthem’s proposed acquisition of Cigna and Aetna’s proposed acquisition of Humana. It thus behooves those working with healthcare providers and insurers to understand the background and reasons for these transactions, the circumstances under which they likely will be investigated, the analysis applied in determining whether challenge is warranted, including the variables the agencies consider, and how challenged transactions have fared in the courts.
This seminar, presented by Jeff Miles of Ober|Kaler, focuses on how the enforcement agencies and courts analyze the lawfulness of these transactions under Section 7 of the Clayton Antitrust Act. Mr. Miles briefly discusses the background and reasons for the transactions and their enforcement history, and then discusses in some depth the analytical framework used by the agencies in assessing transaction lawfulness, the factors they consider, and the circumstances under which a challenge is likely, focusing first on hospital mergers, then on health plan mergers, and with brief remarks about the acquisition of physician practices by hospitals. He concludes with several practical suggestions for attempting to minimize the antitrust risk from these transactions.
I. Examine the current antitrust environment for provider and health plan mergers
II. Understand the reasons and purposes for the mergers
III. Identify the circumstances likely to lead to an investigation of and challenge to the mergers
IV. Grasp the antitrust framework and most important variables the enforcement agencies and courts consider in determining lawfulness
V. Discuss trends at the agencies and courts in analyzing these mergers
VI. Recognize the importance of early counsel involvement in attempting to avoid an investigation and challenge
Jeff Miles, Counsel in the Washington office, is a nationally recognized authority on antitrust law, particularly antitrust issues affecting the health care sector. Formerly chair of the Antitrust and Competition Group at Ober Kaler, he has practiced antitrust law for over 35 years, representing primarily hospitals, health care systems, hospital networks, physician practices, and physician contracting networks. His work focuses on provider mergers, joint ventures, contracting networks, and other affiliations, as well as on provider and health-plan exclusionary conduct. His practice consists primarily of antitrust counseling and representation of parties in investigations by the Antitrust Division, Federal Trade Commission, and state attorneys general.
Prior to private practice, Jeff was a trial attorney with the Antitrust Division of the U.S. Department of Justice, where most of is work related to health care antitrust enforcement. While there, he received a special commendation award from the Attorney General of the United States for serving as lead counsel in the government’s first successful hospital-merger challenge. Prior to his service with the Antitrust Division, he was the assistant attorney in charge of the Virginia Attorney general’s Antitrust Unit. He holds undergraduate and graduate degrees in economics from Virginia Tech and a law degree from the Washington & Lee University School of Law, where he graduated with high honors and was associate editor of the Washington & Lee Law Review.
Jeff’s work includes the successful representation of a four-hospital merger in the northeast in a Federal Trade Commission investigation; a hospital contracting network in investigations by the Antitrust Division and a state attorney general; the defendant health system in Little Rock Cardiology Clinic v. Baptist Health, 591 F.3d 591 (8th Cir. 2009); a defendant professional association in Neotonus, Inc. v. American Med. Ass’n, 554 F. Supp. 2d 1368 (N.D. Ga. 1997), aff’d, 270 Fed. App’x 813 (11th Cir. 2008); an IPA executive in Maine Health Alliance, 136 F.T.C. 616 (2003); a large physician practice in Read v. Med. X-Ray Ctr., 110 F.3d 543 (1997), and hospitals in White v. Rockingham Radiologists, 820 F.2d 98 (4th Cir. 1987), Friedman v. Del. County Mem’l Hosp., 672 F. Supp. 171 (E.D. Pa. 1987), aff’d, 849 F.2d 600 (3d Cir. 1988) (table), and Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68 (3d Cir. 1983). He has represented a number of physician contracting networks and merging hospitals in FTC, Antitrust Division, and state attorney general investigations resulting in consent decrees, and he obtained the first two FTC staff advisory opinions approving clinically integrated physician networks.
Jeff wrote and annually updates the six-volume Health Care & Antitrust treatise published by Thomson Reuters/Westlaw and has written or co-written number of other books, book chapters, law review articles, and shorter articles and papers dealing with almost every type of antitrust issue. He frequently lectures and presents papers on antitrust subjects to various bar and health care organizations, and he is an adjunct professor of law at the Washington & Lee University School of Law, where he teaches the antitrust law course.
Publications & Presentations
Enjoyed this course! Very interesting and informative!
Vet good info, thank you
Made me realize my choice to stay away from anti-trust issues and refer them out was a good idea. Excellent program.
Practical examples--more welcome
I really like this presentation and the speaker was EXCELLENT!
An excellent overview with very insightful commentary.
This was an excellent CLE. It would be very beneficial to have this speaker walk through one or two cases in great detail and to talk even more about the process advising a company contemplating merger and representing them throughout the process.
Very Well Done.
really enjoyed the topic...very informative
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