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2016 antitrust developments: Foreshadowing 2017?

It’s that time of year again, when we reflect on what happened during the prior year and prepare for another one. Let’s take a moment to look at some trending antitrust topics from 2016, and take a stab at what we believe will be some of the hottest trending topics in antitrust law going forward.

Auto parts stalled?

While the gush of new cases has slowed to a trickle, it is remarkable to note that new cases are indeed still being filed – the most recent of which was filed in November 2016. Perhaps more remarkable than new cases however, …

DOJ challenges healthcare system’s use of anti-steering clauses

In its continuing fight against rising healthcare costs, the Justice Department (DOJ) has sued Charlotte, North Carolina’s largest healthcare system for using a common healthcare contracting tool, the anti-steering clause. U.S. and the State of North Carolina v. The Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Healthcare System (CHS), Case No. 3:16-cv-00311, filed on June 9, 2016.

A few years ago, the DOJ attacked another healthcare contracting tool, the most-favored-nation clause, which insurers employed to guarantee they would receive the lowest rates on any given service. According to the DOJ, those clauses, when utilized by dominant healthcare systems, stifle competition and …

ABA Section of Antitrust Law Spring Meeting 2016: The most important case of 2015 (that no one has ever heard of)

Continuing our series on the 2016 Spring Meeting, Brodie Butland summarizes the contentious panel discussion at the 2016 ABA Antitrust Conference, titled “Telemedicine: Are Old Definitions Restricting Competition?”

The Supreme Court’s 2014-15 term was nearly unprecedented. Same-sex marriage is now legal across all 50 states. The Affordable Care Act survived yet another challenge. Lethal injection protocols were upheld, as was a nonpartisan redistricting initiative. Free speech was considered three times, as was freedom of religion.

To be sure, all of the foregoing cases were important. But one case that has received almost no popular media coverage has the potential to …

Are data breaches covered under insurance policies?


In defending against a class action case where patient information was found online for months without being secured, the insurance company was found to have a duty to defend the defendant, who held an insurance policy that covered the publication of patient information. The case, Travelers Indemnity vs. Portal Healthcare, is important because it’s one of the first decisions to rule on whether data breach litigation is covered under commercial insurance policies.…

United we fall? 6th Circuit holds that members of hospital network may not be a single entity under the antitrust laws

The U.S. Court of Appeals for the 6th Circuit recently issued an opinion with potential antitrust impact on joint ventures—in the healthcare realm and beyond. The case was originally filed by a Dayton-area surgical center, The Medical Center at Elizabeth Place, against a competing local hospital network, Premier Health Partners. The plaintiff claims that Premier Health Partners (Premier) and four of its member hospitals conspired under Section 1 of the Sherman Act – which requires concerted conduct between distinct economic actors — to put it out of business.

The four defendant hospitals had operated independently before joining in 1995 to …

Health care data breaches – inevitable, but you can minimize the damage


Data breaches in health care can be the most devastating, both to the consumers whose personally identifiable information was exposed, but also to the institutions that possessed this sensitive data. In this podcast Jay and Christina Hultsch review the various issues surrounding such data breaches, including when to review data security policies, how to prepare for a potential breach and how to deal with third-party vendor access.…

Supreme Court to states – actively supervise your regulating boards or else

The North Carolina State Board of Dental Examiners can no longer regulate the practice of dentistry without active state supervision—and neither can other state professional boards controlled by active market participants. Last Wednesday, the U.S. Supreme Court concluded in North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC) that the state action doctrine does not protect the board from the Federal Trade Commission’s challenge to its policy prohibiting non-dentists from offering teeth whitening services.

We previously discussed the background of this case and the state action doctrine here and here. In short, the North Carolina Board …

Hospital pays six figures to settle data breach enforcement suit

At the end of last month, Boston hospital Beth Israel Deaconess Medical Center (BIDMC) settled a data breach lawsuit brought by the Massachusetts Attorney General related to the 2012 theft of a physician’s laptop. Under a consent decree entered on Nov. 20, 2014, BIDMC agreed to pay $100,000 and to take a number of steps to ensure future compliance with state and federal data security laws.

The state of Massachusetts filed the enforcement suit against BIDMC on the same day as the consent decree’s entry, alleging that an unauthorized person gained access to a BIDMC physician’s unlocked office on campus …

The importance of the state action exemption on state licensing boards


This podcast discusses the background and potential legal implications, particularly on state licensing boards, of North Carolina Board of Dental Examiners v. Federal Trade Commission, argued before the U.S. Supreme Court last month and previously summarized here. Jay Levine and Darcy Jalandoni, members of Porter Wright’s Antitrust Group, provide an overview of the state action doctrine at issue in the case, analyze possible outcomes, and assess the potential repercussions of the Court’s decision. In particular, Jay and Darcy discuss how the Court’s decision may affect how states will choose to license and oversee professionals (including medical professionals) …

How a smile might change the fortune of state licensing

One of the most important cases the U.S. Supreme Court will decide this year—at least with respect to antitrust law—involves the question of whether dentists in North Carolina can maintain a monopoly over teeth whitening services. While it hasn’t generated nearly the level of public attention as cases involving marriage equality or voting rights, North Carolina Board of Dental Examiners v. Federal Trade Commission, argued before the Court last week, could have a significant impact on the ability of state agencies to regulate specific industries and professions, particularly healthcare.

Created by state statute, the purpose of the North …

Part Three: Section two of The Sherman Act – unilateral conduct (cont’d)


Rounding out our discussion on the Sherman Act, host Jay Levine discusses how businesses enter into contracts utilizing specific tactics to ensure they stay competitive and under what circumstances those tactics become problematic.  Learn how most favored nation and non-discrimination clauses, as well as market share discounts and exchanging non-price information can be used to preclude competitive entry.  Should you include them in your contract? Listen to find out more.…

A merger for better healthcare…no problem, right? Wrong, says the FTC

In today’s economy it’s likely you have heard about the federal government challenging hospital and health system mergers. Even when the parties claim the opportunity will create a lower cost/higher quality standard, the government still seems to win. Jay Levine covers the implications of the Idaho decision in FTC v. St. Luke’s Health System with A merger for better healthcare…no problem, right? Wrong, says the FTC.…