January 9, 2026 • 43 mins
In the eighth installment of their popular annual series, John D. Carroll, Partner, King & Spalding LLP, and Alexis J. Gilman, Partner, Alston & Bird LLP, discuss 2025's biggest antitrust developments and what attorneys should expect in 2026.
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SPEAKER_01 (00:04):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmerican Health Law.org.
SPEAKER_02 (00:17):
Hello, welcome everybody to our eighth
consecutive installment of thetop 10 healthcare antitrust
developments in 2025, and thetop 10 healthcare antitrust
developments or uh likelydevelopments that we are looking
forward to in 2026.
(00:37):
I'm your co-host, John Carroll,uh, here in Washington, D.C.
And I'm a partner at King andSpaulding, where I recently
returned just a few weeks ago.
And I have the pleasure of beingjoined by my friend Alexis
Gilman, uh, who is also inWashington, D.C., and a partner
at Alston and Byrd, where healso recently uh joined.
Not rejoined, but recentlyjoined uh just a few months ago.
(01:01):
So we were not so self-indulgentand self-centered as to include
those as the top 10 developmentsin 2025.
Uh we'll leave it up to you toconclude whether that would be
the case.
And as per usual, uh, for thoseof you who are returning
listeners, we're gonna gothrough 10 through 1, 2025, and
then 2026.
Um, on behalf of uh both of us,it's a pleasure to be doing this
(01:23):
for the American Health LawyersAssociation.
Uh definitely subscribe to theircontent where available.
Um, I will also point out, otherthan generally pointing out that
it's been an extraordinarilyactive year, that neither Alexis
nor I will be giving anyeditorial comment on any of
these developments.
Um, this is a just the factspodcast highlighting uh the most
(01:47):
important developments.
And again, at least in our, we'dlike to think somewhat objective
view, what we think will likelybe very important developments
in the year to come.
So with that, I'm happy to turnit over to you, Alexis, to kick
us off at number 10.
SPEAKER_00 (02:01):
Yeah, thanks, John.
Great to be doing uh this withyou yet again.
Uh, we have a lot to talk aboutand cover.
And as you said, um, this willreflect our best objective
assessment of top developments,but doesn't necessarily reflect
our views or those of clients orthe firm.
Um, but let me kick it off withnumber 10, missing, of course,
(02:22):
at just at 11, would it wouldhave been our moves to new
firms.
But but number 10 is just reallyTrump 2.0 and the effect that's
had on healthcare antitrustenforcement.
Um I think you see that in acouple places.
One is with respect topersonnel.
There's a new chair at the FTC,Andrew Ferguson, who was tapped
by the president to leave theFTC.
He's a former Solicitor Generalof the Commonwealth of Virginia.
(02:45):
Uh Mark Meador was um nominated,confirmed as another Republican
commissioner at the FTC.
He's a former FTC DOJ and Senatestaffer, and he worked in
private practice for a while.
Uh, he joined in April, andcommissioner, uh Republican
Commissioner Holyoke, made upthe third Republican for a time,
(03:06):
but she's now departed to becomethe U.S.
Attorney in Utah.
Um, another major developmentwas that the president uh
removed both Democrats from theFTC, Rebecca Slaughter and
Alvaro Badoya.
Um former Commissioner Slaughteris uh litigating uh a case to be
(03:26):
restored to her seat on thecommission.
And then over at the DOJ, GailSlater uh was confirmed, easily
confirmed, really, as the headof the DOJ's antitrust division.
And we've seen just a whole lotof policy developments.
We don't have time to go throughthem all one by one, and we'll
mention a couple of them inother parts of our top 10 for
the year, but I'll just pointout a couple, which is this
(03:48):
administration repealed uh theBiden administration's executive
order on competition, whichcalled for a whole of government
approach to competitionenforcement and also called out
consolidation as healthcare asone area of concern.
Uh the FTC and DOJ, perhapssurprisingly, um, have retained
the 2023 merger guidelines.
They've retained the HSR rulesthat were pushed out by the last
(04:13):
uh administration.
Uh, they've kept on the books aprior approval policy, which is
a little bit in the weeds.
Antitrust nerds speak forwhenever you kind of enter into
a settlement in a merger withthe government.
A prior approval provision givesthe FTC the right to give a pure
thumbs up or thumbs down ofwhether they approve the buyer's
acquisition in that same marketin the future for 10 years on
(04:37):
paper.
That policy has been retained,although uh implementation has
been inconsistent.
So maybe not, um maybe more onpaper than in enforcement.
Uh the healthcare statementsthat covered ACOs, information
sharing, and some other thingsuh that were repealed by the
last administration have notbeen uh re-implemented or any
plans to restore them beenmentioned.
(04:59):
Uh, antitrust guidelines forbusiness activities that really
covered labor issues, whichwe'll get into later.
Uh, that came out just before uhPresident Trump's inauguration
and over the objections ofRepublicans, but that policy
remains in place.
So we've really seen a mixed bagon the policy front of things
that have changed and thingsthat are um consistent and
(05:21):
haven't changed from the lastadministration.
So I think um that's our number10 development for 2025.
And I'll turn it over to you,John, for number nine.
SPEAKER_02 (05:30):
Sure.
So to get a little bit morespecific, as Alexis previewed,
one of the changes, or one ofthe developments rather in 2025,
that frankly to me was asurprise and impacts the
healthcare industry uh as muchas any other, is the fact that
the agencies, the federalagencies, the DOJ and the FTC,
kept in place the dramaticexpansion of the Hart Scott
(05:54):
Redino Act rules.
So for those of you who are notpractitioners, if you are uh
parties to a deal of a certainsize and scope, um, the agencies
get a preliminary view prior toclose of that transaction and
can assess the competitiveeffects of it.
And the information that partieshave to each give with respect
(06:16):
to that transaction and abouttheir own businesses is called
an HSR form.
That form um had not been reallychanged much in quite some time,
decade plus.
And um the Biden administrationhad proposed new rules that had
expanded it by the FTC's ownestimation, at least 4x in terms
(06:39):
of the time that it would taketo provide the information and
the amount of information itselfthat would need to be those
rules were finalized February10th, 2025, um, certainly after
Trump had been inaugurated andafter you know, he could have
had his administration couldhave had the power to place them
and hold to reduce to scale themback, etc.
(07:01):
And so for healthcare clients,you know, I know um there's a
lot of information that's calledfor these, particularly for
health systems, that doesn't fitneatly into those requests in
terms of you know identifyingsupplier uh relationships,
vendor relationships, thingslike that.
It's been a lot of fun.
That's my only editorial commentwith respect to the new HSR
(07:23):
rules, but certainly somethingthat has been um a big part of
antitrust merger practices andwith respect to healthcare and
life sciences.
Um, they've been dealing withthose new rules as well.
Turning it back to Alexis fornumber eight.
SPEAKER_00 (07:39):
Number eight is a uh merger litigation challenge
brought by the FTC against acouple medical device
manufacturers.
This is actually the second uhmerger litigation filed by the
Trump 2.0 FTC.
This one was filed in August toblock the Edwards Life Sciences
(07:59):
acquisition of Genovalvetechnology.
Uh, in that case, the FTC saidthat Edwards had agreed to
acquire Genovalve uh within daysof agreeing to acquire another
company, a competitor, JCMedical.
Um, both uh Genovalve and JCMedical are developing uh
(08:21):
transaortic valve replacementdevices for the treatment of uh
aortic regurgitation.
I'm sure uh folks from thehealthcare industry will know
what those are.
Um, but we'll call them T T A RVR AR devices.
Um and what's interesting, oneof the things that's interesting
is that this is really aninnovation case where, as most
(08:43):
merger challenges are aboutproducts that are already on the
market, this these are about twoproducts that are in development
that have not been FDA approvedyet, uh, or in the midst of that
process.
And the agency's uh claims focuson the harm to innovation
competition that also says it'lldiminish quality and potentially
(09:04):
increase prices.
Um, usually price harm isusually the lead theory in a
merger case, but here where youdon't have products on the
market yet, and products may ormay not even have planned
pricing to go to market.
Um, the focus here on this caseis innovation harm, which is an
interesting aspect of this case.
Um, and apparently, according tothe complaint, which gets
(09:26):
repeated notably a few times inthe complaint, um, the parties
rejected the FTC's urging thatthey divest the previously
acquired firm JC Medical.
Uh defendants say that no courthas ever blocked a deal where
the products are regulatedproducts that are still in
development, and that thecombination of these two firms
combines complementarycapabilities and really is the
(09:48):
best chance to resolve some uhmanufacturing issues that uh the
target company Genovalve uhapparently or purportedly has.
Uh, this case is pending, butreally an interesting um case in
terms of the development ofinnovation competition law uh in
the merger context.
So um certainly both a keydevelopment for 2025 and
(10:11):
certainly also one to watch innext year as well.
John, think about that next.
SPEAKER_02 (10:17):
Sure.
So turning to number seven,non-competes.
In the news a lot over the lastcouple of years.
And some of some of you may havenoticed that you know, just a
couple of months ago inSeptember, um, the FTC dropped
its its defense of thenon-compete rule, which had been
challenged in a few places, acouple of places, including in
the Fifth Circuit.
Um, but they are not finishedwhen it comes to the non-compete
(10:41):
issue.
Um and so they've issued arequest for information and
letters that are focused onhealthcare employers.
We're gonna talk about this alittle bit more.
I don't want to spoil uh whatwe're looking forward to, but uh
you know, healthcare antitrustcompetition issues and
non-compete, certainly not goinganywhere.
Um, but it was a big developmentin 2025 that the FTC uh took
(11:05):
steps to dismiss its appeal uhand to not enforce the national
rule.
Turning it back to Alexis fornumber six.
SPEAKER_00 (11:13):
Sure.
This is uh involving themulti-plan class actions, uh,
these are class actions filed byhealthcare providers against uh
multiplan and a group of payersalleging that they had illegally
fixed prices of outerout-of-network provider rates.
And the allegation is thatinstead of using usual customary
(11:36):
and reasonable benchmarks basedon publicly available pricing
information, charge data inparticular, that multi-plan had
this algorithm that combined uhthese insurance out-of-network
rates, and that the plansallegedly stopped competing with
one another to negotiateout-of-network with providers,
and instead delegated theirnegotiation of rates and the
(11:59):
actual out-of-network rates tomultiplan and its um algorithm.
Um, defendants uh in the casefiled the motion to smith
arguing, among other things, uh,that actually this multiplan
offered a new product, offeredanother alternative option for
insurers to calculateout-of-network rates.
(12:20):
And this had the effect ofactually lowering rates uh to
payers, and ultimately thosesavings would be passed on to
patients.
Uh, the DOJ uh not a party tothe case, but filed a statement
of interest in the case.
And in that statement ofinterest, argued, didn't take a
position on the merits, but saidthat use of a common algorithm
(12:42):
to set any aspect of price,either a starting price or a
maximum price, can be concertedaction that constitutes price
fixing or restrative trade, asection one violation of the
Sherman Act.
Um, even if the insurers in thiscase retain some pricing
discretion, and even if theirend out-of-network rates varied
among one another, uh the outDOJ also took the notable
(13:05):
position that informationsharing through a third party
can still violate section one ofthe Sherman Act.
Uh, so in June, the court, thedistrict court rejected the
defendant's motion to dismissthe case, uh, saying really less
so about using the algorithmbecause it wasn't clear that
confidential pricing ratiosbeing included in the algorithm,
but more that communicationsbetween the defendant, insurers,
(13:28):
and multi-plan had exchangedprice information and
communicating price informationwith your competitors was
against your self-interest,which might suggest an unlawful
agreement.
And that even if savings were uhpassed on to consumers, that
wouldn't justify a per seunlawful price fixing agreement.
So that was the basis forrejecting the motion to dismiss.
(13:50):
So that case is ongoing, butcertainly a notable development
in that class relating toinformation exchange, you know,
outsourcing of administration ofrates and negotiation of rates
and even algorithmic pricing.
So uh again, another case of bigdevelopment this year, but one
that we'll continue to bemonitoring uh next year as well.
(14:11):
Uh John, let me turn over to youfor number five.
SPEAKER_02 (14:14):
Yeah, so number five is interesting, and I think is
consistent with um the themethat Alexis laid out at the
beginning with Trump 2.0, whichis you know, um, we've been
surprised, I think, both of usas practitioners, just how
active the Trump administration2.0 has been with respect to
federal antitrust enforcement,and healthcare is no exception
(14:36):
to that.
So with that wind up, numberfive is the launch of the
anti-competitive tax task forceby the agencies.
You know, back in the early partof the year, um January 31st, to
be precise, Trump had signed anEO and executive order, uh
stating that the policy of theexecutive branch was that the
federal agencies should, quote,alleviate unnecessary regulatory
(14:58):
burdens placed on the Americanpeople.
Um, subsequent to that, hesigned another EO that directed
agencies to review allidentifications and identify
regs, then among other things,quote, impose undue burdens on
small businesses.
And consistent with that, theantitrust division was going to
be, you know, part of that.
And so then um flash forward uha couple of months into the
(15:23):
spring, and an anti-competitiveregulations task force was
launched to look at regulationsin a number of industries,
housing, transportation, etcetera.
But healthcare, right?
This is a healthcare antitrustpodcast.
Healthcare is one of them.
And the language here, um, andpublic comment, by the way, was
open until the end of May.
Um, language here uh withrespect to healthcare states
(15:47):
that laws and regs, regulationsin healthcare markets too often
discourage doctors and hospitalsfrom providing low-cost,
high-quality health care, andinstead encourage overbilling
and consolidation.
These kinds of unnecessaryanti-competitive regulations put
affordable health care out ofreach for millions of American
families.
So, this is a statement from youknow uh Trump's Justice
(16:08):
Department with respect toconsolidation and health care.
The public comment period, therewere a lot of comments that came
across.
Imagine the agencies aredigesting them.
Um often what we've seen iswhere there are these
investigations or these publiccomments or RFIs, whatever they
are from the agencies, that whatfollows is some sort of some
(16:30):
form of action.
And so we'll be looking to seewhat happens um next in terms of
anti-competitive um uhregulations that were identified
by the task force.
And then I have the pleasure ofgoing next uh for number four.
Number four is a bit morespecific, which is um the
emeticis united transaction.
Um that finally settled uh notthat long ago.
(16:51):
Uh, you know, home healthtransaction, it settled in in
August 7th, on August 7th ofthis year.
And, you know, for those of youwho may not be following with
bated breath every developmentin Antitrust, you know, one
change that was fairly notableunder um the Biden
administration was, I guess toput it mildly, a reluctance for
(17:11):
settlements, divestitures toremedy um concerns and
transactions.
And so this was kind of back insettlement land, um big
divestiture, 164, I think, um uhuh uh businesses that need to be
divested.
Um there's a lot of informationon this that's publicly
available, uh large significanttransaction that got to close.
(17:36):
Um, and the parties are now inthe process of divesting a lot
of assets.
So that was number four.
And happy to turn it back,Alexis, to you for number three.
SPEAKER_00 (17:46):
All right, number three is a case uh
unsuccessfully challenginganother medical device case.
Uh, this one was filed in Marchby the FTC and a handful of
state AGs that sought to blockuh GTCRs, a private equity
firm's acquisition of SERMOTICs.
Um, this is a case where thegovernment alleged that GTCR had
(18:07):
a subsidiary biocoat andcombining biocoat and
stromotics, uh, which both umprovided outsourced hydrophilic
coatings.
These are coatings that go onmedical instruments that are
inserted in the body, and thecoatings obviously help those
instruments go in more smoothlyand cause less damage to the
body.
Uh, the government in that casewas alleging that combined the
(18:30):
two firms would have a combined60% market share for outsourced
hydrophilic coatings, and as aresult, the usual allegations of
higher prices, lower quality,harmony innovation would result
from the transaction.
Uh, the defendants in the caseraise a couple main arguments.
One is that the FTC got themarket wrong, um, that the
(18:51):
parties um either were indifferent markets because they
provided two different types ofhydrophilic coatings, one based
on thermal curing of thosecoatings, and the other based on
UV light curing of thosecoatings, or that the market was
under-inclusive because it wasonly capturing the outsourcing
of the coatings as opposed toincluding the coatings that were
(19:12):
able to be in-sourced by uh OEMswho could do this in-house
themselves and just coat theirown instruments and devices.
Uh, the other main argument wasthat the parties had proposed
just before the case went totrial that they would divest a
number of assets of biocode to adivestiture by or integer that
eliminated the competitiveconcern.
(19:34):
And in November, we got adecision on the preliminary
injunction motion, the case inthe district court in an oral
ruling and no intent to issue awritten opinion.
So that's kind of notable.
Um, the district court deniedthe motion for preliminary
injunction.
Uh, in the case, the F the courtsaid that the government's
market definition was too narrowand including just the outsource
(19:55):
hydrophilic coatings.
It should have included umcaptured.
The in-source availability ofOEM to in-source uh hydrophilic
coatings.
Um, even so, it was kind ofinteresting.
The court still said that theplaintiffs had sufficed, uh,
sufficiently alleged prima phaseshare, met their prime case.
I'm not sure how that um works.
Usually, if you don't define therelevant market correctly, that
(20:18):
kind of ends the case.
But in this case, the decisionwent on.
Uh, the court went on to saythat the market shares were
overstated by the government andthat the defendants' market
share calculations reflected thecommercial realities more
accurately, and those shareswere you know much, much lower,
less than 30%, uh, relative towhat the FTC and the states were
alleging.
And finally, the court wasconvinced that the divesture
(20:40):
would resolve any competitiveconcerns, and the court um was
convinced that the divesturebuyer was adequate and had the
uh intent to compete in themarket.
So, this was the first uh filedmerger litigation filed by this
Trump 2.0 FTC, and it was thefirst loss by the FTC.
So I think it's an interestingcase.
It also shows that you knowdefendants are able to defeat
(21:02):
the government and marketdefinition, challenge their
market share calculations, andlitigation, litigating the fix
is still um a viable way tochallenge or uh defend your your
merger, and that seems to be uhsucceeded here.
So that was number three, andnumber two goes over to you,
John.
SPEAKER_02 (21:20):
Yes, and the government also um with respect
to defendants has gotten somewins in criminal cases, right?
So number two is um the UnitedStates against Lopez, USV Lopez,
where uh the division, theantitrust division of the
Department of Justice, got theirfirst big criminal conviction or
first criminal conviction uh fornurse wage fixing.
Um this is a a healthy reminderto our audience that antitrust
(21:45):
is not just about deals, it'snot just about litigation, but
that the antitrust laws um alsohave criminal liability.
Uh and so this was a caseagainst um someone who was
alleged and then convicted ofconspiring to fix the the wages
of nurses.
This is someone who was thensentenced to, I believe, 40
(22:06):
months in prison and uh who umalso convicted uh and is going
to pay over$3 million in finesand restitution, as well as
having to pay back um, I thinkthe$10 million or so from the
allegedly uh fraudulent sale ofhis business.
(22:27):
So um US US against low USVLopez, um, wage fixing with
respect to nurses, editorialcomment here.
Um I think we would any Anitrustpractitioner would advise
clients to be very careful whenit comes to information sharing
and certainly not agreeing, notjust on some of the things you
may be thinking about, but alsowith respect to compensation, as
(22:47):
there can be potentialliability.
So, Alexis, you have the honorof number one in 2025.
I'll turn it over to you forthat.
SPEAKER_00 (22:55):
Number one.
So I where we landed on this,and I suppose there's always up
for debate.
Um, but number one, uh, thisyear we have the Blue Cross Blue
Shield settlement uh in theprovider case.
This is a settlement that wasreceived final approval in
August from a district courtjudge in Alabama.
It's a$2.8 billion settlement ina case that started way back in
(23:18):
2012 uh against the associationand nearly three dozen uh member
plans.
Uh this settlement is again theprovider class, uh, which is
different from an earliersettlement that's going on about
five years now, with that was2.7 billion with employers and
individual subscribers.
Uh, we obviously don't have timeto cover the case, but just as a
(23:39):
super quick reminder, thisreally related to the allegation
that the defendants hadunlawfully divided up the
country into exclusiveterritories, you know, so-called
market allocation and antitrustterms.
Um, and in addition to themulti-billion dollar uh monetary
relief that settlement includesother preconditions on the
(24:00):
association, make internalchanges to operations to make
them more transparent, moreefficient, upgrades to technical
capabilities, including millionsof dollars in spending on
improving uh claim systems andother conditions related to
making uh data more readilyavailable.
Um, despite this uh very largemonetary settlement, uh a number
(24:24):
of providers have decided to optout of the settlement and are
bringing direct actions.
So uh while this settlement isour number one development for
2025, this is yet another casethat will continue on for uh at
least into 2026, and if not foryears to come.
So that's our wrap on the top 20top 10 developments for this
(24:46):
past year, and we'll turn itover to John to kick us off on
what we expect to be the top 10developments in 2026.
SPEAKER_02 (24:54):
Yeah, so this is what we're watching, right?
And this is a bit speculative,but just kind of forecasting.
I mean, who could have predictedwhat happened in 2025?
I I didn't go back and look atour track record, Alexis, but um
you know, I should also pointout and should have started
this, this this is beingrecorded on um December 8th.
And so uh wanna particularlyemphasize this in case we're
(25:16):
wrong.
Anything that we're predicting.
And in fact, I'll caveat itfurther by saying technically
this is simply what to watchfor.
So we are not making any actualpredictions.
Um, these are just things we aremonitoring for 2026.
Number 10, midterm elections,right?
Like we're both sitting here inWashington, D.C.
(25:38):
Um, can't help but ignore, orcan't help but not ignore, um,
what's happening um politicallyhere uh with our federal
government.
We have we have some verysignificant midterm elections
coming up in the fall.
And um look, antitrust is nostranger to congressional
investigations.
And so whether that is uh HouseJudiciary Committee
(25:59):
investigation of a company, ofan industry, of an agency, um,
you know, depending on who takesCongress and who's in
leadership, there could be a lotgoing on or there could be very
little.
So again, not predicting, um,but it is something that we are
keeping our eye on and will bekeeping our eye on uh over the
(26:20):
course of the next year.
Alexis, number nine.
SPEAKER_00 (26:24):
Number nine is uh, are we gonna have any more new
FTC commissioners?
Um, as I kind of alluded toearlier, on the president
removed the two Democrats on thecommission, and one of the
Republicans uh departed foranother post.
Uh so there are now twoRepublicans left on the
commission, which the FTC canoperate that way and has before.
(26:45):
That's sufficient for a quorum.
Um, there's been reports uh thatthe president may nominate Ryan
Bash to fill one of theRepublican seats.
Uh, he's um currently on theNational Economic Council in the
White House as a specialassistant to the president for
economic policy.
Uh, apparently he focuses ontech and AI issues and other
(27:07):
issues.
And he previously worked in theTexas Attorney General's office.
Um, but beyond uh it's not clearwhether we're gonna get any more
nominees.
As I mentioned, there's aSupreme Court case being heard
today uh for the uh one of theDemocrats' uh former FTC
commissioners that's trying tobe restored to a position.
And this case is really aboutwhether the president has the
(27:31):
authority to fire heads ofindependent agencies uh without
cause.
Um, and if the Supreme Courtsays he does, it's not clear
that we'll necessarily have anyuh Democratic nominees to the
FTC.
Um, and could certainly couldsee a certainly a big change uh
at the FTC about whatnominations look like both in
(27:51):
this administration and goingforward, about whether uh we see
minority party commissionersbeing uh nominated and confirmed
by any independent agencies,including the FTC.
It's not clear what incentive uhthey would have to nominate, but
even if uh such minority partynominees got posted to the FTC,
the president could presumablyfire them without cause the next
(28:13):
day if this case, Trumpyslaughter, goes the way uh many
are predicting.
So we'll all be watching what'sgoing to happen with the
leadership of the FTC uh goingforward in the light of this
Trumpy slaughter case.
Um that's number nine, and youcould really move that up
potentially a higher up thelist.
But for number now, let's turnit over to John for number
eight.
SPEAKER_02 (28:33):
Yeah, that's the fun with looking at things to watch
for, right?
It's hard to rank them becauseit depends on what happens.
But um but just kind of stickingwith the the political theme a
bit here, the congressionaltheme.
You know, there was a hearingback in, I think it was May in
the um the the House JudiciarySubcommittee um on the
administrative state, regulatoryform, and antitrust.
(28:55):
So I was calling them just HJC,and that wasn't quite accurate
earlier.
But this is, you know, one ofthe primary um groups really
over in Congress that examinesantitrust.
And with respect to health care,um there's been concern, right,
about um shortages with respectto providers, just particularly
in rural areas, but just moregenerally.
(29:17):
And so folks may not may notknow, but there is um uh an
exemption from antitrust becauseotherwise it would be
independent actors gettingtogether and agreeing on things
they shouldn't agree on withrespect to the residency,
medical residency program.
So there, you know, there's beena lot of noise around um ending
that exemption.
(29:37):
There was a a hearing on it, whoknows what's gonna happen with
Congress.
Um, it concerns healthcare, andso those are the building blocks
as to how we got to having thisbe uh something to uh take a
look at uh and and and monitor.
And we'll talk a little bit moreabout residency programs going
forward by way of preview.
(29:57):
But that's essentially why thatuh that gets us to eight.
Um Alexis, I believe numberseven is all you.
SPEAKER_00 (30:04):
Yeah, this is um the Good RX class actions.
Um, and it's really kind of asister or cousin case, I guess,
to the to the multi-plane casewe mentioned earlier.
This is um consisting of about adozen class actions filed by
pharmacies against Good Rx andfour PBMs that represent about
(30:24):
64, according to plaintiffs, 64%of all filled prescriptions in
the US.
And what the plaintiffs allegein this case is that PBMs use
Good RX's price aggregationalgorithm to fix the prices that
they pay for generic drugsdispensed by independent
pharmacies.
Um, basically, according toplaintiffs, PBMs are using this
(30:47):
pricing technology in theirclaim systems.
Uh, about 95% of uh PBMsrepresenting about 95% of
prescription claims allegedlyparticipate in some form of
information sharing with GODRX.
And according to plaintiffs,this means that the PBMs through
this Good RX system arebasically pay the lowest price
(31:09):
that any PBM has with thepharmacy for the generic
prescriptions.
Um, therefore, the plaintiffssay uh the the rates that paid
the fees paid to independentpharmacies by PBMs have gone
down.
And rather than compete forthose payments, they're using
Good RX to align their pricing.
Um these cases were recentlyconsolidated in a Rhode Island
(31:32):
NDL.
Um, again, this is just anotherin a line of cases kind of
relating to algorithm prices,using a third party to manage
pricing uh to counterparties umin the in the payment system.
So another area for reallyanyone in the healthcare
industry to watch uh when itcomes to payments, GPOs, PBM
(31:54):
issues.
So uh a continued uh area towatch in 2026.
That takes us to uh John's nextone at number six.
SPEAKER_02 (32:04):
Yep, number six.
By way, you know, we previewedit 20 minutes ago or so.
What's gonna happen withnon-compete, right?
I mean, we've got differentlayers to non-compete
enforcement.
There's sort of state law,contractual enforcement, right,
private litigation.
Um, but you know, more in thearena of federal antitrust
enforcement.
(32:24):
You know, we we just don't knowwhat's gonna what's gonna happen
since the FTC, you know, umvoluntarily uh dismissed its
case a couple of months ago, asI said, in the I think at least
in the Fifth Circuit.
And so, you know, this issomething where notwithstanding
its uh dismissal, the agenciessaid that they're gonna, you
know, take, I think it's to usethe healthcare metaphor, more of
(32:47):
a scalpel when it comes tonon-compete, um antitrust
enforcement.
They believe in their authority.
Um, they believe that um thatnon-compete in certain instances
are anti-competitive.
And so this isn't somethingthat's just completely gone
away.
Um, the question is, um, what'sit gonna look like?
What's this enforcement gonnalook like?
Is it going to be part of amerger investigation, a
(33:09):
settlement pursuant to that,right?
Is it going to be just anoutright, you know,
investigation of a non-competearrangement by a you know a
healthcare company of some sort?
And what authority is that goingto be brought under?
I mean, to get a little morespecific on the antitrust,
you've got you know uh authorityto enforce section one of the
(33:29):
Sherman Act, certainly by DOJ,or section two if the healthcare
company were to allege to havemarket power.
But then we've got section fiveof the FTC Act, which is under
um, you know, almost seeminglydecades-long discussion around
the scope of that authority tobring actions with respect to
unfair competition and whetherthat sort of exceeds the FTC's
(33:51):
authority beyond what'scoextensive with the antitrust
division.
So, with all that, uh I thinkit'll be interesting to see, and
we'll be watching, um, kind ofwhat happens with non-compete
enforced enforcement, uh,particularly in the healthcare
space.
Alexis, back to you to start usoff in the top five.
SPEAKER_00 (34:11):
Yeah, the the section five mention is a good
segue to this next uh item watchfor next year, which is the
FTC's case against uh PBMs andadministrative litigation.
Um this was a case started bythe Biden FTC, sued three large
PBMs and their affiliated GPOs.
Uh, it was filed in as anadministrative case, so not in
(34:32):
federal court.
And the FTC is what we call partthree administrative trial
process.
And in that case, the FTCalleges that the PBMs um
extracted higher rebates orsorry, extracted, yeah, higher
rebates through exclusionarydrug formularies, formularies
related to insulins.
(34:52):
Um, basically, in what the FTCcalls a chase the rebate scheme,
uh, the FTC says that theserebating practices incentivize
or encouraged and resulted inhigher list prices because, in
order to secure higher rebates,PBMs exclude lower cost insulins
from formularies in favor ofhigher cost drugs and a result
(35:14):
consumers were paying higherprices.
And what's notable, or one ofthe things that's notable about
this case, is not uh the FCC notalleging any Sherman Act
violations, but a pure sectionfive claimed uh that these
rebating practices constitutedan unfair method of competition,
as well as an unfair act orpractice under section five of
(35:34):
the FTC Act.
Um, case originally stalled fora little bit due to commissioner
recusals.
Chair Ferguson unrecusedhimself, so the case picked back
up again, and the defendantshave filed a motion to dismiss,
uh, raising a bunch of defenses,failure to find a relevant
market, failure to allege anyharm to consumers, failure to
tie the rebating practices tothe um to the harm.
(35:59):
So that motion to dismiss ispending, but obviously, given
sort of widespread concern aboutthe pricing of pharmaceuticals
across parties across Washingtonand across the country, I think
this is one case to continuewatching as sort of another way
that um the administration seemsto be trying to tackle uh high
cost of prescription drugs, butcertainly an important case uh
(36:22):
also for any trust uh purposesin terms of the FTC's Section 5
authority.
So that's number five.
Let's turn it over to John fornumber four.
SPEAKER_02 (36:30):
Yeah, so a bit a bit more nascent, but there have
been several class actionlawsuits um filed earlier this
year, um, alleging, you know, anumber of systems that um
alleging that the uh pharmacyresiding map residency match
system.
So maybe not something that'ssubject to that exemption, no
editorial comment.
(36:52):
Um, whether there's uh you know,there were this violated
antitrust laws through thesuppression of low wages.
Um sorry to give the shortshrift, but you know, something
that's just filed, something tokeep our eye on, and we'll see
sort of what happens in theclass action space here as we um
get into 2026.
So sorry to be so quick, Alexis,and put you on the spot back for
(37:14):
number three.
SPEAKER_00 (37:15):
Yeah, this is another NASCAI case, so this
will be relatively short too.
This uh relates to contractinguh practices by hospital in New
York, and there's been uh areport in the New York Times
that the DOJ is investigatingNew York Presbyterian's
contracts, which allegedlyinclude some anti-steering and
anti-teering provisions.
(37:37):
We've also seen a case filed uhin September by a union uh
related to these um contractingpractices that the hospital's
contracts allegedly includedanti-steering provision, all
products clauses, and terms thatum allegedly suppress price
transparency.
(37:57):
These are um issues we've seenin prior cases.
We saw them in the DOJ and NorthCarolina case against what was
then called Carolina's healthcare that ultimately settled.
We saw this in California whenthe AGE and some private cases
sued Sutter Health.
Those cases have now beensettled.
So it'll be interesting to watchthis particular case, but also
(38:19):
whether we see more antitrustenforcement against providers
contracting practice, especiallymulti-hospital systems, um,
where they may negotiate alltheir hospitals together and
whether we continue to see anincrease uh in in complaints or
concerns about these uh types ofcontracting provisions.
So that was number three.
(38:39):
And John, you have number two.
SPEAKER_02 (38:41):
I do.
Um happy to be talking second tolast about what we're gonna be
looking at.
So, you know, folks mayremember, you know, the the
roll-up action FTC broughtagainst a private equity firm
and you know, some in theanesthesia space.
Um, forgetting, at least, youknow, frankly, even I kind of
forgot a bit that there wasstill the action by the FTC
(39:04):
against USAP, US anesthesia,anesthesiology, anesthesia
partners, forgive me.
In fact, just you know, justrecently, right, there were some
motions regarding um theshutdown.
Now the FTC is back, um, as arethe rest of the agencies, uh,
alleging sort of differentmonopolization claims that that
that USAP um grew of a certainsize illegally.
(39:27):
Um, and so look, we'll see youknow what happens on this case
as well.
Um, sort of consistent with ourtheme, I guess.
Big picture, it's what's thegovernment gonna do?
Um, what's gonna happen onactions the government's already
taken?
And then what's going to happenum in cases that have been being
brought?
(39:47):
The the harder thing overall,kind of just pulling back from
these the the the list andspecific actions is you know, we
don't know what's gonna befiled, right?
And I mean, if we do, thenAlexis and I aren't saying
anything.
About non-public actions we'reinvolved with, certainly.
So that's the big sort of number11 Alexis.
I'm not trying to steal yourthunder from number one, but of
(40:09):
course, you know, there could beany number of interesting pieces
of litigation filed in thehealthcare space.
It's a complicated industry, um,filled with you know a lot of
players with a lot of differenttypes of incentives.
There are all sorts of dealsthat could be announced, and um
the government's always hard topredict.
So we'll be watching for a lotmore than just this top 10 list.
(40:31):
But um, I think this at leastthrough uh as Alexis takes us
home with number one, um, thoseare sort of the themes that that
we've been seeing from the lastyear and looking forward into
the next one.
SPEAKER_00 (40:43):
Maybe this reflects a little bit of our merger
practice bias, but uh weselected our uh number one topic
to be uh the seemingproliferation of state mini or
baby HSR bills and laws beingpassed.
Uh, as folks may know, more andmore states are passing
pre-merger notification filingrequirements uh, you know,
(41:06):
beyond what is currentlyrequired under the Federal HSR
Act.
I think currently there areabout 15 states or so that
require pre-merger noticerequirements for healthcare
deals in particular.
There's a couple states,Washington and Colorado, that
recently passed legislation thatrequires parties to submit
copies of their HSR filings iftheir state-specific thresholds
(41:28):
are met.
And one thing that's you knowcan be challenging for merging
parties that the given thisproliferation of state laws is
that a lot of these requirementsin the states are different in
terms of which transactionsrequire notification, what is
required in the notification,what is the timeline for the
review, period to the extent itsuspends closings.
(41:49):
So there's a lot, and thisobviously makes things more
complicated, more timeconsuming, and more costly for
merging parties, the more andmore of these that are passed by
the states.
Um, so one thing to watch in2026 is if we continue to see
this trend across states, uh,how states go about implementing
these laws and how it affectsthe merger view uh process for
(42:12):
merging parties.
And in turn, you know, what doesthis mean for state enforcement
of mergers enforcement?
We already see a time AGs are asactive as ever in merger
enforcement, and certainly theselaws would seem to give them uh
a greater ability to be evenmore active uh in examining and
potentially challenging mergers,particularly in the healthcare
(42:33):
space.
So that's certainly the area wethink bears watching in 2026.
So that's our uh totallyobjective, no room for argument
list of uh things to watch in in2026.
But John, defer to you on how toclose this out.
SPEAKER_02 (42:49):
Really appreciate it, Alexis.
It was uh the eighth time, youknow.
I think they keep gettingbetter.
So congrats on your move.
Um and we look forward tospeaking with you in just about
a year.
Take care, everybody.
Thanks so much.
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SPEAKER_02 (00:17):
Hello, welcome everybody to our eighth
consecutive installment of thetop 10 healthcare antitrust
developments in 2025, and thetop 10 healthcare antitrust
developments or uh likelydevelopments that we are looking
forward to in 2026.
(00:37):
I'm your co-host, John Carroll,uh, here in Washington, D.C.
And I'm a partner at King andSpaulding, where I recently
returned just a few weeks ago.
And I have the pleasure of beingjoined by my friend Alexis
Gilman, uh, who is also inWashington, D.C., and a partner
at Alston and Byrd, where healso recently uh joined.
Not rejoined, but recentlyjoined uh just a few months ago.
(01:01):
So we were not so self-indulgentand self-centered as to include
those as the top 10 developmentsin 2025.
Uh we'll leave it up to you toconclude whether that would be
the case.
And as per usual, uh, for thoseof you who are returning
listeners, we're gonna gothrough 10 through 1, 2025, and
then 2026.
Um, on behalf of uh both of us,it's a pleasure to be doing this
(01:23):
for the American Health LawyersAssociation.
Uh definitely subscribe to theircontent where available.
Um, I will also point out, otherthan generally pointing out that
it's been an extraordinarilyactive year, that neither Alexis
nor I will be giving anyeditorial comment on any of
these developments.
Um, this is a just the factspodcast highlighting uh the most
(01:47):
important developments.
And again, at least in our, we'dlike to think somewhat objective
view, what we think will likelybe very important developments
in the year to come.
So with that, I'm happy to turnit over to you, Alexis, to kick
us off at number 10.
SPEAKER_00 (02:01):
Yeah, thanks, John.
Great to be doing uh this withyou yet again.
Uh, we have a lot to talk aboutand cover.
And as you said, um, this willreflect our best objective
assessment of top developments,but doesn't necessarily reflect
our views or those of clients orthe firm.
Um, but let me kick it off withnumber 10, missing, of course,
(02:22):
at just at 11, would it wouldhave been our moves to new
firms.
But but number 10 is just reallyTrump 2.0 and the effect that's
had on healthcare antitrustenforcement.
Um I think you see that in acouple places.
One is with respect topersonnel.
There's a new chair at the FTC,Andrew Ferguson, who was tapped
by the president to leave theFTC.
He's a former Solicitor Generalof the Commonwealth of Virginia.
(02:45):
Uh Mark Meador was um nominated,confirmed as another Republican
commissioner at the FTC.
He's a former FTC DOJ and Senatestaffer, and he worked in
private practice for a while.
Uh, he joined in April, andcommissioner, uh Republican
Commissioner Holyoke, made upthe third Republican for a time,
(03:06):
but she's now departed to becomethe U.S.
Attorney in Utah.
Um, another major developmentwas that the president uh
removed both Democrats from theFTC, Rebecca Slaughter and
Alvaro Badoya.
Um former Commissioner Slaughteris uh litigating uh a case to be
(03:26):
restored to her seat on thecommission.
And then over at the DOJ, GailSlater uh was confirmed, easily
confirmed, really, as the headof the DOJ's antitrust division.
And we've seen just a whole lotof policy developments.
We don't have time to go throughthem all one by one, and we'll
mention a couple of them inother parts of our top 10 for
the year, but I'll just pointout a couple, which is this
(03:48):
administration repealed uh theBiden administration's executive
order on competition, whichcalled for a whole of government
approach to competitionenforcement and also called out
consolidation as healthcare asone area of concern.
Uh the FTC and DOJ, perhapssurprisingly, um, have retained
the 2023 merger guidelines.
They've retained the HSR rulesthat were pushed out by the last
(04:13):
uh administration.
Uh, they've kept on the books aprior approval policy, which is
a little bit in the weeds.
Antitrust nerds speak forwhenever you kind of enter into
a settlement in a merger withthe government.
A prior approval provision givesthe FTC the right to give a pure
thumbs up or thumbs down ofwhether they approve the buyer's
acquisition in that same marketin the future for 10 years on
(04:37):
paper.
That policy has been retained,although uh implementation has
been inconsistent.
So maybe not, um maybe more onpaper than in enforcement.
Uh the healthcare statementsthat covered ACOs, information
sharing, and some other thingsuh that were repealed by the
last administration have notbeen uh re-implemented or any
plans to restore them beenmentioned.
(04:59):
Uh, antitrust guidelines forbusiness activities that really
covered labor issues, whichwe'll get into later.
Uh, that came out just before uhPresident Trump's inauguration
and over the objections ofRepublicans, but that policy
remains in place.
So we've really seen a mixed bagon the policy front of things
that have changed and thingsthat are um consistent and
(05:21):
haven't changed from the lastadministration.
So I think um that's our number10 development for 2025.
And I'll turn it over to you,John, for number nine.
SPEAKER_02 (05:30):
Sure.
So to get a little bit morespecific, as Alexis previewed,
one of the changes, or one ofthe developments rather in 2025,
that frankly to me was asurprise and impacts the
healthcare industry uh as muchas any other, is the fact that
the agencies, the federalagencies, the DOJ and the FTC,
kept in place the dramaticexpansion of the Hart Scott
(05:54):
Redino Act rules.
So for those of you who are notpractitioners, if you are uh
parties to a deal of a certainsize and scope, um, the agencies
get a preliminary view prior toclose of that transaction and
can assess the competitiveeffects of it.
And the information that partieshave to each give with respect
(06:16):
to that transaction and abouttheir own businesses is called
an HSR form.
That form um had not been reallychanged much in quite some time,
decade plus.
And um the Biden administrationhad proposed new rules that had
expanded it by the FTC's ownestimation, at least 4x in terms
(06:39):
of the time that it would taketo provide the information and
the amount of information itselfthat would need to be those
rules were finalized February10th, 2025, um, certainly after
Trump had been inaugurated andafter you know, he could have
had his administration couldhave had the power to place them
and hold to reduce to scale themback, etc.
(07:01):
And so for healthcare clients,you know, I know um there's a
lot of information that's calledfor these, particularly for
health systems, that doesn't fitneatly into those requests in
terms of you know identifyingsupplier uh relationships,
vendor relationships, thingslike that.
It's been a lot of fun.
That's my only editorial commentwith respect to the new HSR
(07:23):
rules, but certainly somethingthat has been um a big part of
antitrust merger practices andwith respect to healthcare and
life sciences.
Um, they've been dealing withthose new rules as well.
Turning it back to Alexis fornumber eight.
SPEAKER_00 (07:39):
Number eight is a uh merger litigation challenge
brought by the FTC against acouple medical device
manufacturers.
This is actually the second uhmerger litigation filed by the
Trump 2.0 FTC.
This one was filed in August toblock the Edwards Life Sciences
(07:59):
acquisition of Genovalvetechnology.
Uh, in that case, the FTC saidthat Edwards had agreed to
acquire Genovalve uh within daysof agreeing to acquire another
company, a competitor, JCMedical.
Um, both uh Genovalve and JCMedical are developing uh
(08:21):
transaortic valve replacementdevices for the treatment of uh
aortic regurgitation.
I'm sure uh folks from thehealthcare industry will know
what those are.
Um, but we'll call them T T A RVR AR devices.
Um and what's interesting, oneof the things that's interesting
is that this is really aninnovation case where, as most
(08:43):
merger challenges are aboutproducts that are already on the
market, this these are about twoproducts that are in development
that have not been FDA approvedyet, uh, or in the midst of that
process.
And the agency's uh claims focuson the harm to innovation
competition that also says it'lldiminish quality and potentially
(09:04):
increase prices.
Um, usually price harm isusually the lead theory in a
merger case, but here where youdon't have products on the
market yet, and products may ormay not even have planned
pricing to go to market.
Um, the focus here on this caseis innovation harm, which is an
interesting aspect of this case.
Um, and apparently, according tothe complaint, which gets
(09:26):
repeated notably a few times inthe complaint, um, the parties
rejected the FTC's urging thatthey divest the previously
acquired firm JC Medical.
Uh defendants say that no courthas ever blocked a deal where
the products are regulatedproducts that are still in
development, and that thecombination of these two firms
combines complementarycapabilities and really is the
(09:48):
best chance to resolve some uhmanufacturing issues that uh the
target company Genovalve uhapparently or purportedly has.
Uh, this case is pending, butreally an interesting um case in
terms of the development ofinnovation competition law uh in
the merger context.
So um certainly both a keydevelopment for 2025 and
(10:11):
certainly also one to watch innext year as well.
John, think about that next.
SPEAKER_02 (10:17):
Sure.
So turning to number seven,non-competes.
In the news a lot over the lastcouple of years.
And some of some of you may havenoticed that you know, just a
couple of months ago inSeptember, um, the FTC dropped
its its defense of thenon-compete rule, which had been
challenged in a few places, acouple of places, including in
the Fifth Circuit.
Um, but they are not finishedwhen it comes to the non-compete
(10:41):
issue.
Um and so they've issued arequest for information and
letters that are focused onhealthcare employers.
We're gonna talk about this alittle bit more.
I don't want to spoil uh whatwe're looking forward to, but uh
you know, healthcare antitrustcompetition issues and
non-compete, certainly not goinganywhere.
Um, but it was a big developmentin 2025 that the FTC uh took
(11:05):
steps to dismiss its appeal uhand to not enforce the national
rule.
Turning it back to Alexis fornumber six.
SPEAKER_00 (11:13):
Sure.
This is uh involving themulti-plan class actions, uh,
these are class actions filed byhealthcare providers against uh
multiplan and a group of payersalleging that they had illegally
fixed prices of outerout-of-network provider rates.
And the allegation is thatinstead of using usual customary
(11:36):
and reasonable benchmarks basedon publicly available pricing
information, charge data inparticular, that multi-plan had
this algorithm that combined uhthese insurance out-of-network
rates, and that the plansallegedly stopped competing with
one another to negotiateout-of-network with providers,
and instead delegated theirnegotiation of rates and the
(11:59):
actual out-of-network rates tomultiplan and its um algorithm.
Um, defendants uh in the casefiled the motion to smith
arguing, among other things, uh,that actually this multiplan
offered a new product, offeredanother alternative option for
insurers to calculateout-of-network rates.
(12:20):
And this had the effect ofactually lowering rates uh to
payers, and ultimately thosesavings would be passed on to
patients.
Uh, the DOJ uh not a party tothe case, but filed a statement
of interest in the case.
And in that statement ofinterest, argued, didn't take a
position on the merits, but saidthat use of a common algorithm
(12:42):
to set any aspect of price,either a starting price or a
maximum price, can be concertedaction that constitutes price
fixing or restrative trade, asection one violation of the
Sherman Act.
Um, even if the insurers in thiscase retain some pricing
discretion, and even if theirend out-of-network rates varied
among one another, uh the outDOJ also took the notable
(13:05):
position that informationsharing through a third party
can still violate section one ofthe Sherman Act.
Uh, so in June, the court, thedistrict court rejected the
defendant's motion to dismissthe case, uh, saying really less
so about using the algorithmbecause it wasn't clear that
confidential pricing ratiosbeing included in the algorithm,
but more that communicationsbetween the defendant, insurers,
(13:28):
and multi-plan had exchangedprice information and
communicating price informationwith your competitors was
against your self-interest,which might suggest an unlawful
agreement.
And that even if savings were uhpassed on to consumers, that
wouldn't justify a per seunlawful price fixing agreement.
So that was the basis forrejecting the motion to dismiss.
(13:50):
So that case is ongoing, butcertainly a notable development
in that class relating toinformation exchange, you know,
outsourcing of administration ofrates and negotiation of rates
and even algorithmic pricing.
So uh again, another case of bigdevelopment this year, but one
that we'll continue to bemonitoring uh next year as well.
(14:11):
Uh John, let me turn over to youfor number five.
SPEAKER_02 (14:14):
Yeah, so number five is interesting, and I think is
consistent with um the themethat Alexis laid out at the
beginning with Trump 2.0, whichis you know, um, we've been
surprised, I think, both of usas practitioners, just how
active the Trump administration2.0 has been with respect to
federal antitrust enforcement,and healthcare is no exception
(14:36):
to that.
So with that wind up, numberfive is the launch of the
anti-competitive tax task forceby the agencies.
You know, back in the early partof the year, um January 31st, to
be precise, Trump had signed anEO and executive order, uh
stating that the policy of theexecutive branch was that the
federal agencies should, quote,alleviate unnecessary regulatory
(14:58):
burdens placed on the Americanpeople.
Um, subsequent to that, hesigned another EO that directed
agencies to review allidentifications and identify
regs, then among other things,quote, impose undue burdens on
small businesses.
And consistent with that, theantitrust division was going to
be, you know, part of that.
And so then um flash forward uha couple of months into the
(15:23):
spring, and an anti-competitiveregulations task force was
launched to look at regulationsin a number of industries,
housing, transportation, etcetera.
But healthcare, right?
This is a healthcare antitrustpodcast.
Healthcare is one of them.
And the language here, um, andpublic comment, by the way, was
open until the end of May.
Um, language here uh withrespect to healthcare states
(15:47):
that laws and regs, regulationsin healthcare markets too often
discourage doctors and hospitalsfrom providing low-cost,
high-quality health care, andinstead encourage overbilling
and consolidation.
These kinds of unnecessaryanti-competitive regulations put
affordable health care out ofreach for millions of American
families.
So, this is a statement from youknow uh Trump's Justice
(16:08):
Department with respect toconsolidation and health care.
The public comment period, therewere a lot of comments that came
across.
Imagine the agencies aredigesting them.
Um often what we've seen iswhere there are these
investigations or these publiccomments or RFIs, whatever they
are from the agencies, that whatfollows is some sort of some
(16:30):
form of action.
And so we'll be looking to seewhat happens um next in terms of
anti-competitive um uhregulations that were identified
by the task force.
And then I have the pleasure ofgoing next uh for number four.
Number four is a bit morespecific, which is um the
emeticis united transaction.
Um that finally settled uh notthat long ago.
(16:51):
Uh, you know, home healthtransaction, it settled in in
August 7th, on August 7th ofthis year.
And, you know, for those of youwho may not be following with
bated breath every developmentin Antitrust, you know, one
change that was fairly notableunder um the Biden
administration was, I guess toput it mildly, a reluctance for
(17:11):
settlements, divestitures toremedy um concerns and
transactions.
And so this was kind of back insettlement land, um big
divestiture, 164, I think, um uhuh uh businesses that need to be
divested.
Um there's a lot of informationon this that's publicly
available, uh large significanttransaction that got to close.
(17:36):
Um, and the parties are now inthe process of divesting a lot
of assets.
So that was number four.
And happy to turn it back,Alexis, to you for number three.
SPEAKER_00 (17:46):
All right, number three is a case uh
unsuccessfully challenginganother medical device case.
Uh, this one was filed in Marchby the FTC and a handful of
state AGs that sought to blockuh GTCRs, a private equity
firm's acquisition of SERMOTICs.
Um, this is a case where thegovernment alleged that GTCR had
(18:07):
a subsidiary biocoat andcombining biocoat and
stromotics, uh, which both umprovided outsourced hydrophilic
coatings.
These are coatings that go onmedical instruments that are
inserted in the body, and thecoatings obviously help those
instruments go in more smoothlyand cause less damage to the
body.
Uh, the government in that casewas alleging that combined the
(18:30):
two firms would have a combined60% market share for outsourced
hydrophilic coatings, and as aresult, the usual allegations of
higher prices, lower quality,harmony innovation would result
from the transaction.
Uh, the defendants in the caseraise a couple main arguments.
One is that the FTC got themarket wrong, um, that the
(18:51):
parties um either were indifferent markets because they
provided two different types ofhydrophilic coatings, one based
on thermal curing of thosecoatings, and the other based on
UV light curing of thosecoatings, or that the market was
under-inclusive because it wasonly capturing the outsourcing
of the coatings as opposed toincluding the coatings that were
(19:12):
able to be in-sourced by uh OEMswho could do this in-house
themselves and just coat theirown instruments and devices.
Uh, the other main argument wasthat the parties had proposed
just before the case went totrial that they would divest a
number of assets of biocode to adivestiture by or integer that
eliminated the competitiveconcern.
(19:34):
And in November, we got adecision on the preliminary
injunction motion, the case inthe district court in an oral
ruling and no intent to issue awritten opinion.
So that's kind of notable.
Um, the district court deniedthe motion for preliminary
injunction.
Uh, in the case, the F the courtsaid that the government's
market definition was too narrowand including just the outsource
(19:55):
hydrophilic coatings.
It should have included umcaptured.
The in-source availability ofOEM to in-source uh hydrophilic
coatings.
Um, even so, it was kind ofinteresting.
The court still said that theplaintiffs had sufficed, uh,
sufficiently alleged prima phaseshare, met their prime case.
I'm not sure how that um works.
Usually, if you don't define therelevant market correctly, that
(20:18):
kind of ends the case.
But in this case, the decisionwent on.
Uh, the court went on to saythat the market shares were
overstated by the government andthat the defendants' market
share calculations reflected thecommercial realities more
accurately, and those shareswere you know much, much lower,
less than 30%, uh, relative towhat the FTC and the states were
alleging.
And finally, the court wasconvinced that the divesture
(20:40):
would resolve any competitiveconcerns, and the court um was
convinced that the divesturebuyer was adequate and had the
uh intent to compete in themarket.
So, this was the first uh filedmerger litigation filed by this
Trump 2.0 FTC, and it was thefirst loss by the FTC.
So I think it's an interestingcase.
It also shows that you knowdefendants are able to defeat
(21:02):
the government and marketdefinition, challenge their
market share calculations, andlitigation, litigating the fix
is still um a viable way tochallenge or uh defend your your
merger, and that seems to be uhsucceeded here.
So that was number three, andnumber two goes over to you,
John.
SPEAKER_02 (21:20):
Yes, and the government also um with respect
to defendants has gotten somewins in criminal cases, right?
So number two is um the UnitedStates against Lopez, USV Lopez,
where uh the division, theantitrust division of the
Department of Justice, got theirfirst big criminal conviction or
first criminal conviction uh fornurse wage fixing.
Um this is a a healthy reminderto our audience that antitrust
(21:45):
is not just about deals, it'snot just about litigation, but
that the antitrust laws um alsohave criminal liability.
Uh and so this was a caseagainst um someone who was
alleged and then convicted ofconspiring to fix the the wages
of nurses.
This is someone who was thensentenced to, I believe, 40
(22:06):
months in prison and uh who umalso convicted uh and is going
to pay over$3 million in finesand restitution, as well as
having to pay back um, I thinkthe$10 million or so from the
allegedly uh fraudulent sale ofhis business.
(22:27):
So um US US against low USVLopez, um, wage fixing with
respect to nurses, editorialcomment here.
Um I think we would any Anitrustpractitioner would advise
clients to be very careful whenit comes to information sharing
and certainly not agreeing, notjust on some of the things you
may be thinking about, but alsowith respect to compensation, as
(22:47):
there can be potentialliability.
So, Alexis, you have the honorof number one in 2025.
I'll turn it over to you forthat.
SPEAKER_00 (22:55):
Number one.
So I where we landed on this,and I suppose there's always up
for debate.
Um, but number one, uh, thisyear we have the Blue Cross Blue
Shield settlement uh in theprovider case.
This is a settlement that wasreceived final approval in
August from a district courtjudge in Alabama.
It's a$2.8 billion settlement ina case that started way back in
(23:18):
2012 uh against the associationand nearly three dozen uh member
plans.
Uh this settlement is again theprovider class, uh, which is
different from an earliersettlement that's going on about
five years now, with that was2.7 billion with employers and
individual subscribers.
Uh, we obviously don't have timeto cover the case, but just as a
(23:39):
super quick reminder, thisreally related to the allegation
that the defendants hadunlawfully divided up the
country into exclusiveterritories, you know, so-called
market allocation and antitrustterms.
Um, and in addition to themulti-billion dollar uh monetary
relief that settlement includesother preconditions on the
(24:00):
association, make internalchanges to operations to make
them more transparent, moreefficient, upgrades to technical
capabilities, including millionsof dollars in spending on
improving uh claim systems andother conditions related to
making uh data more readilyavailable.
Um, despite this uh very largemonetary settlement, uh a number
(24:24):
of providers have decided to optout of the settlement and are
bringing direct actions.
So uh while this settlement isour number one development for
2025, this is yet another casethat will continue on for uh at
least into 2026, and if not foryears to come.
So that's our wrap on the top 20top 10 developments for this
(24:46):
past year, and we'll turn itover to John to kick us off on
what we expect to be the top 10developments in 2026.
SPEAKER_02 (24:54):
Yeah, so this is what we're watching, right?
And this is a bit speculative,but just kind of forecasting.
I mean, who could have predictedwhat happened in 2025?
I I didn't go back and look atour track record, Alexis, but um
you know, I should also pointout and should have started
this, this this is beingrecorded on um December 8th.
And so uh wanna particularlyemphasize this in case we're
(25:16):
wrong.
Anything that we're predicting.
And in fact, I'll caveat itfurther by saying technically
this is simply what to watchfor.
So we are not making any actualpredictions.
Um, these are just things we aremonitoring for 2026.
Number 10, midterm elections,right?
Like we're both sitting here inWashington, D.C.
(25:38):
Um, can't help but ignore, orcan't help but not ignore, um,
what's happening um politicallyhere uh with our federal
government.
We have we have some verysignificant midterm elections
coming up in the fall.
And um look, antitrust is nostranger to congressional
investigations.
And so whether that is uh HouseJudiciary Committee
(25:59):
investigation of a company, ofan industry, of an agency, um,
you know, depending on who takesCongress and who's in
leadership, there could be a lotgoing on or there could be very
little.
So again, not predicting, um,but it is something that we are
keeping our eye on and will bekeeping our eye on uh over the
(26:20):
course of the next year.
Alexis, number nine.
SPEAKER_00 (26:24):
Number nine is uh, are we gonna have any more new
FTC commissioners?
Um, as I kind of alluded toearlier, on the president
removed the two Democrats on thecommission, and one of the
Republicans uh departed foranother post.
Uh so there are now twoRepublicans left on the
commission, which the FTC canoperate that way and has before.
(26:45):
That's sufficient for a quorum.
Um, there's been reports uh thatthe president may nominate Ryan
Bash to fill one of theRepublican seats.
Uh, he's um currently on theNational Economic Council in the
White House as a specialassistant to the president for
economic policy.
Uh, apparently he focuses ontech and AI issues and other
(27:07):
issues.
And he previously worked in theTexas Attorney General's office.
Um, but beyond uh it's not clearwhether we're gonna get any more
nominees.
As I mentioned, there's aSupreme Court case being heard
today uh for the uh one of theDemocrats' uh former FTC
commissioners that's trying tobe restored to a position.
And this case is really aboutwhether the president has the
(27:31):
authority to fire heads ofindependent agencies uh without
cause.
Um, and if the Supreme Courtsays he does, it's not clear
that we'll necessarily have anyuh Democratic nominees to the
FTC.
Um, and could certainly couldsee a certainly a big change uh
at the FTC about whatnominations look like both in
(27:51):
this administration and goingforward, about whether uh we see
minority party commissionersbeing uh nominated and confirmed
by any independent agencies,including the FTC.
It's not clear what incentive uhthey would have to nominate, but
even if uh such minority partynominees got posted to the FTC,
the president could presumablyfire them without cause the next
(28:13):
day if this case, Trumpyslaughter, goes the way uh many
are predicting.
So we'll all be watching what'sgoing to happen with the
leadership of the FTC uh goingforward in the light of this
Trumpy slaughter case.
Um that's number nine, and youcould really move that up
potentially a higher up thelist.
But for number now, let's turnit over to John for number
eight.
SPEAKER_02 (28:33):
Yeah, that's the fun with looking at things to watch
for, right?
It's hard to rank them becauseit depends on what happens.
But um but just kind of stickingwith the the political theme a
bit here, the congressionaltheme.
You know, there was a hearingback in, I think it was May in
the um the the House JudiciarySubcommittee um on the
administrative state, regulatoryform, and antitrust.
(28:55):
So I was calling them just HJC,and that wasn't quite accurate
earlier.
But this is, you know, one ofthe primary um groups really
over in Congress that examinesantitrust.
And with respect to health care,um there's been concern, right,
about um shortages with respectto providers, just particularly
in rural areas, but just moregenerally.
(29:17):
And so folks may not may notknow, but there is um uh an
exemption from antitrust becauseotherwise it would be
independent actors gettingtogether and agreeing on things
they shouldn't agree on withrespect to the residency,
medical residency program.
So there, you know, there's beena lot of noise around um ending
that exemption.
(29:37):
There was a a hearing on it, whoknows what's gonna happen with
Congress.
Um, it concerns healthcare, andso those are the building blocks
as to how we got to having thisbe uh something to uh take a
look at uh and and and monitor.
And we'll talk a little bit moreabout residency programs going
forward by way of preview.
(29:57):
But that's essentially why thatuh that gets us to eight.
Um Alexis, I believe numberseven is all you.
SPEAKER_00 (30:04):
Yeah, this is um the Good RX class actions.
Um, and it's really kind of asister or cousin case, I guess,
to the to the multi-plane casewe mentioned earlier.
This is um consisting of about adozen class actions filed by
pharmacies against Good Rx andfour PBMs that represent about
(30:24):
64, according to plaintiffs, 64%of all filled prescriptions in
the US.
And what the plaintiffs allegein this case is that PBMs use
Good RX's price aggregationalgorithm to fix the prices that
they pay for generic drugsdispensed by independent
pharmacies.
Um, basically, according toplaintiffs, PBMs are using this
(30:47):
pricing technology in theirclaim systems.
Uh, about 95% of uh PBMsrepresenting about 95% of
prescription claims allegedlyparticipate in some form of
information sharing with GODRX.
And according to plaintiffs,this means that the PBMs through
this Good RX system arebasically pay the lowest price
(31:09):
that any PBM has with thepharmacy for the generic
prescriptions.
Um, therefore, the plaintiffssay uh the the rates that paid
the fees paid to independentpharmacies by PBMs have gone
down.
And rather than compete forthose payments, they're using
Good RX to align their pricing.
Um these cases were recentlyconsolidated in a Rhode Island
(31:32):
NDL.
Um, again, this is just anotherin a line of cases kind of
relating to algorithm prices,using a third party to manage
pricing uh to counterparties umin the in the payment system.
So another area for reallyanyone in the healthcare
industry to watch uh when itcomes to payments, GPOs, PBM
(31:54):
issues.
So uh a continued uh area towatch in 2026.
That takes us to uh John's nextone at number six.
SPEAKER_02 (32:04):
Yep, number six.
By way, you know, we previewedit 20 minutes ago or so.
What's gonna happen withnon-compete, right?
I mean, we've got differentlayers to non-compete
enforcement.
There's sort of state law,contractual enforcement, right,
private litigation.
Um, but you know, more in thearena of federal antitrust
enforcement.
(32:24):
You know, we we just don't knowwhat's gonna what's gonna happen
since the FTC, you know, umvoluntarily uh dismissed its
case a couple of months ago, asI said, in the I think at least
in the Fifth Circuit.
And so, you know, this issomething where notwithstanding
its uh dismissal, the agenciessaid that they're gonna, you
know, take, I think it's to usethe healthcare metaphor, more of
(32:47):
a scalpel when it comes tonon-compete, um antitrust
enforcement.
They believe in their authority.
Um, they believe that um thatnon-compete in certain instances
are anti-competitive.
And so this isn't somethingthat's just completely gone
away.
Um, the question is, um, what'sit gonna look like?
What's this enforcement gonnalook like?
Is it going to be part of amerger investigation, a
(33:09):
settlement pursuant to that,right?
Is it going to be just anoutright, you know,
investigation of a non-competearrangement by a you know a
healthcare company of some sort?
And what authority is that goingto be brought under?
I mean, to get a little morespecific on the antitrust,
you've got you know uh authorityto enforce section one of the
(33:29):
Sherman Act, certainly by DOJ,or section two if the healthcare
company were to allege to havemarket power.
But then we've got section fiveof the FTC Act, which is under
um, you know, almost seeminglydecades-long discussion around
the scope of that authority tobring actions with respect to
unfair competition and whetherthat sort of exceeds the FTC's
(33:51):
authority beyond what'scoextensive with the antitrust
division.
So, with all that, uh I thinkit'll be interesting to see, and
we'll be watching, um, kind ofwhat happens with non-compete
enforced enforcement, uh,particularly in the healthcare
space.
Alexis, back to you to start usoff in the top five.
SPEAKER_00 (34:11):
Yeah, the the section five mention is a good
segue to this next uh item watchfor next year, which is the
FTC's case against uh PBMs andadministrative litigation.
Um this was a case started bythe Biden FTC, sued three large
PBMs and their affiliated GPOs.
Uh, it was filed in as anadministrative case, so not in
(34:32):
federal court.
And the FTC is what we call partthree administrative trial
process.
And in that case, the FTCalleges that the PBMs um
extracted higher rebates orsorry, extracted, yeah, higher
rebates through exclusionarydrug formularies, formularies
related to insulins.
(34:52):
Um, basically, in what the FTCcalls a chase the rebate scheme,
uh, the FTC says that theserebating practices incentivize
or encouraged and resulted inhigher list prices because, in
order to secure higher rebates,PBMs exclude lower cost insulins
from formularies in favor ofhigher cost drugs and a result
(35:14):
consumers were paying higherprices.
And what's notable, or one ofthe things that's notable about
this case, is not uh the FCC notalleging any Sherman Act
violations, but a pure sectionfive claimed uh that these
rebating practices constitutedan unfair method of competition,
as well as an unfair act orpractice under section five of
(35:34):
the FTC Act.
Um, case originally stalled fora little bit due to commissioner
recusals.
Chair Ferguson unrecusedhimself, so the case picked back
up again, and the defendantshave filed a motion to dismiss,
uh, raising a bunch of defenses,failure to find a relevant
market, failure to allege anyharm to consumers, failure to
tie the rebating practices tothe um to the harm.
(35:59):
So that motion to dismiss ispending, but obviously, given
sort of widespread concern aboutthe pricing of pharmaceuticals
across parties across Washingtonand across the country, I think
this is one case to continuewatching as sort of another way
that um the administration seemsto be trying to tackle uh high
cost of prescription drugs, butcertainly an important case uh
(36:22):
also for any trust uh purposesin terms of the FTC's Section 5
authority.
So that's number five.
Let's turn it over to John fornumber four.
SPEAKER_02 (36:30):
Yeah, so a bit a bit more nascent, but there have
been several class actionlawsuits um filed earlier this
year, um, alleging, you know, anumber of systems that um
alleging that the uh pharmacyresiding map residency match
system.
So maybe not something that'ssubject to that exemption, no
editorial comment.
(36:52):
Um, whether there's uh you know,there were this violated
antitrust laws through thesuppression of low wages.
Um sorry to give the shortshrift, but you know, something
that's just filed, something tokeep our eye on, and we'll see
sort of what happens in theclass action space here as we um
get into 2026.
So sorry to be so quick, Alexis,and put you on the spot back for
(37:14):
number three.
SPEAKER_00 (37:15):
Yeah, this is another NASCAI case, so this
will be relatively short too.
This uh relates to contractinguh practices by hospital in New
York, and there's been uh areport in the New York Times
that the DOJ is investigatingNew York Presbyterian's
contracts, which allegedlyinclude some anti-steering and
anti-teering provisions.
(37:37):
We've also seen a case filed uhin September by a union uh
related to these um contractingpractices that the hospital's
contracts allegedly includedanti-steering provision, all
products clauses, and terms thatum allegedly suppress price
transparency.
(37:57):
These are um issues we've seenin prior cases.
We saw them in the DOJ and NorthCarolina case against what was
then called Carolina's healthcare that ultimately settled.
We saw this in California whenthe AGE and some private cases
sued Sutter Health.
Those cases have now beensettled.
So it'll be interesting to watchthis particular case, but also
(38:19):
whether we see more antitrustenforcement against providers
contracting practice, especiallymulti-hospital systems, um,
where they may negotiate alltheir hospitals together and
whether we continue to see anincrease uh in in complaints or
concerns about these uh types ofcontracting provisions.
So that was number three.
(38:39):
And John, you have number two.
SPEAKER_02 (38:41):
I do.
Um happy to be talking second tolast about what we're gonna be
looking at.
So, you know, folks mayremember, you know, the the
roll-up action FTC broughtagainst a private equity firm
and you know, some in theanesthesia space.
Um, forgetting, at least, youknow, frankly, even I kind of
forgot a bit that there wasstill the action by the FTC
(39:04):
against USAP, US anesthesia,anesthesiology, anesthesia
partners, forgive me.
In fact, just you know, justrecently, right, there were some
motions regarding um theshutdown.
Now the FTC is back, um, as arethe rest of the agencies, uh,
alleging sort of differentmonopolization claims that that
that USAP um grew of a certainsize illegally.
(39:27):
Um, and so look, we'll see youknow what happens on this case
as well.
Um, sort of consistent with ourtheme, I guess.
Big picture, it's what's thegovernment gonna do?
Um, what's gonna happen onactions the government's already
taken?
And then what's going to happenum in cases that have been being
brought?
(39:47):
The the harder thing overall,kind of just pulling back from
these the the the list andspecific actions is you know, we
don't know what's gonna befiled, right?
And I mean, if we do, thenAlexis and I aren't saying
anything.
About non-public actions we'reinvolved with, certainly.
So that's the big sort of number11 Alexis.
I'm not trying to steal yourthunder from number one, but of
(40:09):
course, you know, there could beany number of interesting pieces
of litigation filed in thehealthcare space.
It's a complicated industry, um,filled with you know a lot of
players with a lot of differenttypes of incentives.
There are all sorts of dealsthat could be announced, and um
the government's always hard topredict.
So we'll be watching for a lotmore than just this top 10 list.
(40:31):
But um, I think this at leastthrough uh as Alexis takes us
home with number one, um, thoseare sort of the themes that that
we've been seeing from the lastyear and looking forward into
the next one.
SPEAKER_00 (40:43):
Maybe this reflects a little bit of our merger
practice bias, but uh weselected our uh number one topic
to be uh the seemingproliferation of state mini or
baby HSR bills and laws beingpassed.
Uh, as folks may know, more andmore states are passing
pre-merger notification filingrequirements uh, you know,
(41:06):
beyond what is currentlyrequired under the Federal HSR
Act.
I think currently there areabout 15 states or so that
require pre-merger noticerequirements for healthcare
deals in particular.
There's a couple states,Washington and Colorado, that
recently passed legislation thatrequires parties to submit
copies of their HSR filings iftheir state-specific thresholds
(41:28):
are met.
And one thing that's you knowcan be challenging for merging
parties that the given thisproliferation of state laws is
that a lot of these requirementsin the states are different in
terms of which transactionsrequire notification, what is
required in the notification,what is the timeline for the
review, period to the extent itsuspends closings.
(41:49):
So there's a lot, and thisobviously makes things more
complicated, more timeconsuming, and more costly for
merging parties, the more andmore of these that are passed by
the states.
Um, so one thing to watch in2026 is if we continue to see
this trend across states, uh,how states go about implementing
these laws and how it affectsthe merger view uh process for
(42:12):
merging parties.
And in turn, you know, what doesthis mean for state enforcement
of mergers enforcement?
We already see a time AGs are asactive as ever in merger
enforcement, and certainly theselaws would seem to give them uh
a greater ability to be evenmore active uh in examining and
potentially challenging mergers,particularly in the healthcare
(42:33):
space.
So that's certainly the area wethink bears watching in 2026.
So that's our uh totallyobjective, no room for argument
list of uh things to watch in in2026.
But John, defer to you on how toclose this out.
SPEAKER_02 (42:49):
Really appreciate it, Alexis.
It was uh the eighth time, youknow.
I think they keep gettingbetter.
So congrats on your move.
Um and we look forward tospeaking with you in just about
a year.
Take care, everybody.
Thanks so much.
SPEAKER_01 (43:07):
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