Antitrust and Competition - Health Sciences

Antitrust Counseling and Transactions

A significant portion of our practice involves counseling clients in the health sciences on how to avoid antitrust liability and implement effective compliance programs, and in regulatory review of proposed transactions. We are experienced in dealing with the staff and leadership of the antitrust divisions of the FTC and the DOJ’s Antitrust Division, and the offices of state attorneys general nationwide. We partner with the client and, when appropriate, leading economists to understand and advise on the implications of proposed transactions under these agencies’ health care and horizontal merger guidelines and the best strategies for steering such transactions through the enforcement agencies.  We have significant experience assisting clients in connection with Hart-Scott-Rodino filings and proceedings, including determination of whether filings are required, handling negotiation and narrowing of second requests, and advocating before the antitrust regulators. In recent years, we have shepherded dozens of transactions through this process and obtained approval for a number of transactions that were initially questioned by regulatory authorities.

Representative engagements include:

  • represent OSF Healthcare, an 11-hosptial integrated health care system, in connection with the antitrust issues raised in a variety of actual and potential affiliations, FTC merger investigations, physician acquisitions, group purchasing arrangements, development of rate structures, payer negotiations, joint venture formation, and antitrust compliance.

  • represented West Penn Allegheny Health System, the second-largest health system in Western Pennsylvania, in connection with state and federal regulatory and Orphans’ Court aspects of its acquisition by Allegheny Health Network and on formation of a for-profit purchasing group venture.

  • represented the Cleveland Clinic, a nonprofit corporation that operates a world-renowned multispecialty academic medical center in Cleveland and numerous regional hospitals and other facilities in Ohio, Florida, Nevada, Toronto and Abu Dhabi, in several corporate and business matters, including establishing the first clinically based GPO in the United States by creating a joint venture with a national GPO.

  • represented Princeton HealthCare System in numerous matters, including in connection with the full range of issues involving the disposition of hospital property and the acquisition of new property for the construction of a new hospital.

  • counseled Nemours Foundation, one of the largest health systems in the country devoted to caring for children, with respect to its corporate structure, including governance, antitrust, tax advice and regulatory compliance issues.

  • represent a leading provider of health plans through Medicaid, Medicare, the Health Insurance Marketplace and through its specialty services companies, and a provider of Pennsylvania Medicaid Managed Care, in the formation of a Pennsylvania domestic HMO and related matters.

  • counsel to the operator of more than 2,000 outpatient dialysis treatment centers nationwide, in business formation, structural and nonprofit and tax issues in connection with dialysis joint ventures with hospitals and physician groups.

  • represented a central Illinois hospital system regarding assessment of potential acquisition or collaboration targets and before the FTC.

  • advise pharmaceutical companies on antitrust issues relating to mergers, asset sales and purchases, pricing (including discounts and rebates), manufacturing and distribution agreements, licensing agreements, marketing agreements and other collaborations with competitors and market participants.

  • represented an animal health supply business in the FTC’s investigation of its acquisition by a veterinary supplier.To defend the acquisition we leveraged in-depth knowledge about pricing, supply and rebate arrangement with pharmaceutical companies, and the veterinary supply distribution business.

Antitrust Litigation

We have extensive trial experience in antitrust cases. That experience includes handling class action and multidistrict litigation, and often coordinating litigation filed by various plaintiffs in multiple jurisdictions. Our trial teams are carefully chosen to achieve client goals as quickly and efficiently as possible.

  • In re: Lamictal Antitrust Litigation (D.N.J.):  Obtained dismissal of a putative antitrust class action alleging that a “reverse payment” settlement of patent litigation between a major biopharmaceutical company and a generic drug manufacturer violated antitrust laws.

  • A.F. of L.--A.G.C. Building Trades Welfare Plan v. Teva Pharmaceuticals USA, Inc. (E.D. Pa.). Defense of Teva Pharmaceuticals USA, Inc. in a putative class action pending in federal court alleging violations of federal and state antitrust statutes and consumer protection laws relating to an alleged conspiracy among manufacturers to fix prices for the drug pravastatin sodium.

  • Symphony Health Solutions Corp. v. IMS Health, Inc. – defended a major health care data company against claims of monopolization and prosecuting counterclaims for misappropriation of trade secrets and unfair competition

  • Methodist Health Services Corp. v. OSF Healthcare System – obtained summary judgment for a major Central Illinois hospital system against claims of attempted monopolization; this case is currently on appeal

  • International Union of Operating Engineers Local 30 Benefits Fund v. Lannett Co., Inc., et al. (E.D.Pa.). Defense of West-Ward Pharmaceuticals in a putative class action alleging violations of federal and state antitrust statutes and consumer protection laws relating to an alleged conspiracy among manufacturers to fix prices for certain generic drugs. 

  • In Re: Generic Digoxin and Doxycycline Antitrust Litigation (E.D. Pa.):  Defense of West-Ward Pharmaceutical in an ongoing multi-district litigation alleging a conspiracy among generic manufacturers to fix the prices of digoxin and doxycycline; Pepper was appointed defense liaison counsel on this case.

  • Republic of Iraq v. ABB AG, et al. (S.D.N.Y.):  Defense of GSK and multiple foreign affiliates against RICO and Robinson-Patman Act claims alleging a conspiracy with Saddam Hussein to corrupt the United Nations Oil for Food program in Iraq. Dismissal has been upheld on appeal.

  • State of La. vs. Smithkline Beecham Corp.dba Glaxosmithkline PLC (Louisiana State Court): Defense of GSK in a Louisiana attorney general action alleging the company illegally delayed entry of generic Flonase.

  • State of Connecticut v. GlaxoSmithKline, P.L.C. and SmithKline Beecham Corporation: Defense of pharmaceutical companies for reimbursement for prescription drugs under the Connecticut Medical Assistance Program for misrepresentation of the Average Wholesale Price (AWP) and other pricing information, violations of Connecticut Unfair Trade Practice Act (CUTPA), and various Connecticut State statutes. After extensive litigation, advantageous settlement for GSK was reached.

  • Zoom Imaging, L.P. v. St. Luke’s Hospital and Health Network, et al. Defense of a hospital system, exclusive radiology provider, and chairs of Departments of Radiology and Surgery in antitrust case alleging conspiracy and group boycott of imaging center alleged to be competing with St. Luke’s and its exclusive radiology provider. The suit was dismissed with prejudice.

  • Home Health Specialists, Inc. v. Liberty Health Systems, et al. Defense of antitrust case alleging monopolization and conspiracy to preclude a home health agency’s participation in the market. Plaintiff’s claims were defeated on summary judgment, which was affirmed by the Third Circuit.

  • American Health Systems, Inc. v. Liberty Health System, et al. Defense of antitrust case alleging monopolization, attempt to monopolize, and conspiracy to restrain competition in the market for home health services. Case settled on terms favorable to client.

  • counseled a global biopharmaceutical company in an antitrust compliance dispute with another pharmaceutical company regarding screening of information and employees working in an alliance to develop and market new diabetes treatments, and negotiated revised global competition law compliance guidelines that ensured legal compliance while preserving operational flexibility for our client.

  • advised a global biopharmaceutical company regarding Robinson-Patman Act claims pleaded against other manufacturers relating to the offering of co-pay assistance, and counseled the company regarding its own co-pay assistance programs and their compliance with antitrust law.

  • counsel pharmaceutical clients on antitrust issues relating to Hatch-Waxman litigation settlements, Robinson-Patman Act issues relating to volume discounts, and potential antitrust rights and remedies against competitors' bundled discounting practices.

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