Insights

Washington – January 11, 2023: Crowell & Moring has published Litigation Forecast 2023: What Corporate Counsel Need to Know for the Coming Year. The 11th-annual Litigation Forecast focuses on trends in litigation that are playing out in specific jurisdictions around the globe. 

Washington, D.C. – March 14, 2017: Crowell & Moring LLP is pleased to announce that client Owens & Minor Distribution, Inc., the nation’s largest distributor of medical-surgical supplies, prevailed in an appeal of summary judgment dismissing an antitrust tying and exclusive dealing lawsuit alleging over $200 million in damages brought by a competitor, specialty distributor, Suture Express, Inc.

Washington, D.C. – March 8, 2016: Crowell & Moring LLP is pleased to announce that client Owens & Minor Distribution, Inc. (O&M), the nation’s largest distributor of medical-surgical supplies, prevailed in an antitrust tying and exclusive dealing lawsuit alleging over $200 million in damages brought by a competitor, specialty distributor, Suture Express, Inc. (Suture Express). Suture Express challenged contracting practices that offer differential pricing to customers depending on whether they procure distribution of suture and endo products, which tend to be the most profitable, from O&M or Cardinal Health, a co-defendant to O&M in the case. Suture Express's theory was that the pricing differential was so large that it could not effectively compete for distribution of suture and endo products, and that customers have no choice but to agree because they need the other medical-surgical products that O&M and Cardinal Health, but not Suture Express, distribute. After extensive fact and expert discovery, O&M, along with its co-defendant Cardinal Health, filed a motion for summary judgment and Suture Express filed a cross motion for partial summary judgment on liability. On March 3, 2016, Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas granted O&M and Cardinal Health's motion for summary judgment and denied Suture Express's motion, dismissing all claims and awarding defendants costs. Judge Crabtree found that Suture Express failed to provide sufficient evidence that either O&M or Cardinal Health possessed the market power necessary to support Suture Express’s claims, or that competition had been harmed. Judge Crabtree acknowledged that the undisputed facts revealed a competitive market in which distribution prices and margins have been declining. Judge Crabtree also found that O&M and Cardinal Health successfully established procompetitive benefits from the challenged contracting practices, which further negated Suture Express’s claims.

In the latest sign that federal enforcers remain focused on increasing antitrust enforcement, last Thursday, the Justice Department (DOJ), Federal Trade Commission (FTC) and the Department of Health and Human Services (HHS) revealed an online portal, HealthyCompetition.gov, to encourage the public to submit reports on potential anticompetitive and monopolistic conduct in the healthcare sector.  The initiative seeks to address concerns that such behavior may affect healthcare affordability and quality, and employee wages. 

This week, the Federal Trade Commission announced a massive overhaul of the Hart-Scott-Rodino (HSR) Act’s rules and instructions for premerger filings to the U.S. antitrust agencies. The proposed rule represents the most significant revisions to the HSR process since its inception in 1976, vastly expanding the scope of information required to be submitted by parties. The proposed rules would impose significant additional substantive and procedural burdens, substantially increase the time and cost to prepare filings, and raise critical strategic questions for filing parties.

On March 2, 2023, the Federal Trade Commission (“FTC”) announced an enforcement action against California-based online counseling service BetterHelp, Inc. (“BetterHelp”) for allegedly sharing consumers’ health information, including sensitive information about mental health challenges, for advertising purposes in violation of Section 5 of the FTC Act.

Gain insightful knowledge on key cartel risk and compliance issues. Eminent officials from the European Commission and national competition authorities as well as leading private practitioners and in-house counsel will debate practical challenges to help you develop an effective strategy for your business needs and services.

Please join Crowell & Moring for the second in a series of webinars focused on key issues of importance to the health care industry. This program will focus on the latest developments in health care antitrust affecting providers, payors, and others in the health industry.

The Federal Trade Commission (FTC) recently lifted many guardrails that channeled its rulemaking authority for broad swaths of the U.S. economy. With an expected increase of rulemaking activity, regulation of competition may increasingly shift from ex-post antitrust enforcement to ex-ante regulatory obligations. Intended to intervene before any harm is caused, these obligations suggest a precautionary approach toward market innovations. How should regulators use the FTC rulemaking authority in today’s rapidly changing markets?