Mid-Atlantic Health Law TOPICS
New Proposed Merger Guidelines
Recently, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) released Draft Merger Guidelines (Draft Guidelines) outlining various new factors the Agencies will consider when reviewing the legality of mergers and acquisitions.
The Draft Guidelines set forth 13 new frameworks that the Agencies will use to determine whether a merger violates antitrust laws, specifically Section 7 of the Clayton Act. Section 7 prohibits mergers that have an anticompetitive effect (that is, mergers which may substantially stifle competition in a relevant market or create a monopoly).
The Draft Guidelines contain considerable changes from the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines, including an expansion of what is considered an antitrust harm, and significant reductions in the standards for when the Agencies will presume antitrust harm.
This article outlines some of the crucial proposals that are predicted to impact future health care mergers, including notable changes to the regulatory review of vertical and serial mergers (known as “roll-ups”), and a new emphasis on the impact to health care employees.
Historically, the Agencies had limited authority to review or challenge vertical mergers. Vertical mergers are mergers between companies within the same supply chain. However, the Draft Guidelines expand the Agencies’ reach over vertical mergers.
For example, under the Draft Guidelines, a challenge may be brought if a merger has the effect of restricting a competitor’s access to sensitive data and information. This could impact mergers between hospitals and health tech companies.
Additionally, vertical mergers can be examined even when the merging companies have less than a 50% market share.
The Draft Guidelines would also allow the Agencies to consider both prior transactions and the possibility of future transactions when determining anticompetitive effect on a relevant market. Previously, the Agencies would review every transaction separately.
These changes could impact attempts by large hospital systems and private equity companies to acquire smaller physician practices.
Emphasis on Employees
There are also changes on the regulatory review of horizontal mergers. Notably, the Draft Guidelines include a requirement that merging companies include the proposed merger’s impact on the labor market, specifically physicians and nurses, as part of any required filing under the Hart-Scott-Rodino Act. This new information could be used to support an allegation of anticompetitive harm.
The Draft Guidelines also create a presumption of antitrust harm if the merged company would have a market share greater than 30%, which is a significant decrease from the previous 50% standard. Without considering overall market concentration, the Draft Guidelines contend that companies with over a 30% market share create an “impermissible threat of undue concentration” to relevant markets.
In practice, this would make it easier for the Agencies to challenge a merger by shifting the onus of proving non-anticompetitive effect onto the health care companies.
While the Draft Guidelines are not enforceable law, they offer insight into how the DOJ and FTC plan to review mergers in the future. Many legal experts predict that these guidelines could decelerate the rapid pace of mergers and acquisitions within the health care industry.
Nevertheless, the future impact of these proposed guidelines remains inconclusive when considering the DOJ’s and FTC’s losing streak in challenging recent merger deals. Whether courts will follow the DOJ’s and FTC’s new aggressive approach will only be determined as new challenges are brought.