Crowell & Moring is proud to have one of the nation’s leading health care antitrust practices. Our lawyers have extensive background in government health care antitrust law enforcement and in the antitrust and health law bar. Our health care antitrust team integrates exceptional antitrust capability with our longstanding preeminent national health care practice, and represents a broad spectrum of health care organizations. We routinely handle important health care-antitrust matters and issues of the day. We recently represented Humana, Inc., in its attempted $37 billion merger with Aetna—the second largest proposed healthcare insurer merger in U.S. history—and in the related litigation brought by the U.S. Department of Justice and state attorneys general. Other high profile matters described below range from provider mergers and joint ventures (e.g., ACOs) to successful defenses of industry leaders like Kaiser, Cardinal, and Owens & Minor in antitrust litigation.
Our Health Care-Antitrust Practice is built on our strong experience in both health care and antitrust, as exemplified by our partner, Art Lerner, recognized by peers and clients alike as a preeminent lawyer in both health care and antitrust law. Art brought boundless intellect, industry knowledge, and creativity to his work on antitrust, managed care, health reform, transactions, litigation, and fraud and abuse issues for health plans, hospitals, device companies and other health care entities. Many of our lawyers worked with Art throughout their careers, and we are committed to carrying on Art’s legacy of outstanding client service.
Our antitrust practitioners provide practical and insightful advice and forceful representation in the full range of health care related antitrust matters including litigation, mergers and acquisitions and other transactions, as well as government investigations. We work with the full spectrum of for-profit and not-for-profit health care entities, including payers, providers, and pharmaceutical and medical device companies. We have attorneys with deep industry knowledge to help provide practical, business focused advice in diverse areas of the health care industry and government programs, including extensive experience in the Affordable Care Act and health care reform, and attorneys who have testified before Congress and the FTC on health care competition policy issues.
Our Antitrust Litigation Practice has experience in both defending and pursuing antitrust claims. We have defended managed care organizations in provider network exclusion and boycott claims, and provider class actions challenging discrimination in contracting and payment terms. We have also defended hospitals in conspiracy and rate setting litigation, and pharmaceutical companies and distributors against monopolization, restraint of trade, and price discrimination charges. We have also represented health plans as plaintiffs in law suits to recover overcharges.
Our integrated Health Care-Antitrust Practice makes us particularly effective in providing antitrust counsel to clients in this highly regulated industry. Delivering optimal advice requires sensitivity to the complex interplay of the market and regulation in health care matters, such as structuring joint ventures among service providers and payers, responding to investigations by the Federal Trade Commission or the Department of Justice, and helping clients protect themselves from the anti-competitive practices of others.
We handle a full range of antitrust litigation, transactional, and counseling matters for healthcare clients, taking pride in providing practical and effective representation. Typical engagements include the following:
TRANSACTIONS: REPRESENTATIVE ENGAGEMENTS
- Represented Humana, Inc., in its proposed $37 billion merger with Aetna, including in the related litigation brought by the DOJ and state attorneys general.
- Advising several hospital systems in potential transactions with competitive implications.
- Currently drafting antitrust compliance policy for a large integrated health delivery system with locations across the U.S.
- Represented CareFusion Corporation in its 2015 acquisition by Becton Dickinson for $12.2 billion, accelerating Becton Dickinson’s expansion strategy in medication management and patient safety solutions.
- Represented Siemens Healthcare in the sale of its global health information technology business unit to U.S. electronic health records giant Cerner Corp., for $1.3 billion (clearance granted in 2014).
- Represented Siemens Healthcare in the divestiture of its clinical microbiology business to Beckman Coutler (clearance granted in 2014).
- Lead antitrust counsel for Coventry Health Care, Inc., in its $5.7 billion acquisition by Aetna Inc. The combination of two of the largest health insurance companies in the country was subject to antitrust review by DOJ, as well as by states attorneys general and insurance departments across the country. Following a lengthy investigation, we persuaded the Division to allow the companies to close the transaction in 2013 without any remedy.
- Represented Humana, Inc. in its 2013 acquisition of Arcadian Management Services. The acquisition increased Humana’s health plan membership by approximately 50,000 Medicare HMO members.
- Represented Siemens Healthcare in its global collaboration with Varian Medical Systems announced in 2012 to provide advanced diagnostic and therapeutic solutions and services for treating cancer.
- Represented Fresenius Medical Care AG & Co., in its $1.5 billion acquisition of Liberty Dialysis, Inc. The deal closed in 2012.
- Represented Fletcher Allen Partners, the leading hospital system in Vermont, in its 2012 combination with Champlain Valley Health Center in New York state.
- Represented Coventry Health Care in its 2011 acquisition of Children’s Mercy’s Family Health Partners, Inc., a Medicaid health plan.
- Represented Coventry Health Care in its 2010 acquisition of MHP, Inc., Sisters of Mercy Health Systems’ health plans.
- Represented Coventry Health Care in its 2009 acquisition of Preferred Health Systems.
- Represented Sierra Health Services through antitrust challenges related to its $2.6 billion sale to UnitedHealth Group, defending the deal through investigations by the Department of Justice, the Nevada Attorney General and the Nevada Division of Insurance, and obtaining approval of the final consent judgment, clearing the way for the acquisition’s close in 2008.
- Represented Humana, Inc., in its 2008 acquisition of PHP Companies, Inc. The transaction required regulatory approvals from the Department of Justice, the Federal Trade Commission, the Centers for Medicare and Medicaid, as well as the Tennessee Department of Commerce and Insurance.
LITIGATION & ENFORCEMENT: REPRESENTATIVE ENGAGEMENTS
- In re Blue Cross/Blue Shield Antitrust MDL Class Actions (Ongoing): In what may currently be the largest antitrust class action in the country, C&M represents eight BCBS companies in defending a nationwide antitrust class action by physicians and others, who allege a conspiracy to limit competition through exclusive service areas.
- Suture Express v. Owens & Minor: C&M prevailed on summary judgment for Owens & Minor, the nation’s leading distributor of medical and surgical products, in an antitrust tying and exclusive dealing lawsuit alleging more than $400 million in damages brought by a competitor. In two earlier federal antitrust lawsuits, we defeated conspiracy and monopolization claims in both cases at the pleading stage, then prevailed on summary judgment on the remaining tying and exclusive dealing claims in March 2016.
- Prime Healthcare Services, Inc. v. Service Employees International Union, et al.: We represented Kaiser Permanente. Kaiser was sued for alleged antitrust violations with plaintiffs seeking damages in excess of $100 million. We prevailed on a motion to dismiss in district court in 2013, and that order was appealed to the Ninth Circuit. In March 2016 the Ninth Circuit affirmed. The Supreme Court has since denied the petition for certiorari.
- PharmaRX Pharmaceutical v. Cardinal Health: We won dismissal of all PharmaRx’s claims under rule 12(b)(6) for Cardinal, whose business includes the leading chain of nuclear pharmacies in the U.S., of all antitrust claims. The Ninth Circuit affirmed in 2015.
- IHS Dialysis, Inc. v. DaVita HealthCare Partners: We represented DaVita, a leading provider of dialysis services in the U.S., in a federal antitrust lawsuit by a competitor for alleged monopolization. The case ended in a favorable settlement in September 2015.
- James Clayworth, et al. v. Pfizer, Inc., et al.: This case involved an alleged price-fixing conspiracy case brought by retail pharmacies and mid-stream distributors under California’s Cartwright Act and Unfair Competition Law. We won summary judgment in 2011 on behalf of our client Novartis. The California Court of Appeal affirmed the judgment, and the California Supreme Court declined to take the case.
- RP Healthcare, Inc., et al. v. Pfizer, Inc., et al.: We successfully represented Health Net, Inc. in this alleged price-fixing conspiracy case brought by independent retail pharmacies under California’s Cartwright Act and Unfair Competition Law. We were successful in convincing the plaintiffs to dismiss Health Net without any compensation, prior to any discovery or motion practice, based on our assembly of information and presentation of the facts to counsel for the plaintiffs, which demonstrated that the allegations were meritless as to Health Net.
- In re: Nevada State Attorney General Investigation of healthcare merger: We represented a major healthcare insurer in an investigation conducted by the Nevada State Attorney General. The investigation focused on concerns that our client has not complied with the requirements of a consent decree entered into to resolve concerns about the acquisition of a Nevada health insurer serving Medicare Advantage beneficiaries by a competitor. We negotiated a favorable settlement with the State of Nevada, which avoided extending the duration of the court’s consent decree.
- Recently concluded successful representation of two clients in Department of Justice and two State Attorneys General Investigations into the use of Most Favored Nation clauses in health care provider contracts, resulting in each of the investigations being closed without any enforcement actions.