Ken’s antitrust practice comprises complex litigation, private actions, and merger and conduct investigations brought by federal and state authorities. Whether supporting clients through the initial exploratory stages of a strategic transaction, responding to in-depth investigations, or advocating for them in court, he partners with clients to advance their business interests.
Health Care Antitrust
Ken is a go-to adviser for the firm’s health care clients in need of strategic advice, guidance through proposed transactions with antitrust implications and possible disputes.
He guides clients — such as integrated health systems and hospitals, academic medical centers, physician groups, and post-acute providers — through antitrust scrutiny and seeks to ensure that business practices are in line with industry regulations. A key element of Ken’s approach is staying ahead of the changing health care landscape; he has helped clients, for instance, when building and expanding their clinically integrated networks, participating in tiered or narrow networks, and moving to more risk- and value-based contracting models —new strategies facilitated through the enactment of health care reform.
Ken has led multiple transactions on behalf some of the largest nonprofit health systems in the U.S., and defended clients in antitrust litigation involving their relationships with providers, payors, suppliers and business partners.
Antitrust M&A and Investigations
Clients look to Ken to secure antitrust clearance of strategic transactions—particularly those subject to heavy scrutiny— before the Federal Trade Commission (FTC) and Department of Justice (DOJ) and to negotiate settlements, when appropriate, that enable the transaction to proceed. In addition to M&A investigations, Ken represents clients in inquiries examining pricing practices, marketing and distribution arrangements, competitor collaborations, information exchanges and other potential antitrust violations.
He counsels clients throughout their business decision making, in areas such as competitor collaborations and joint ventures, pricing and distribution strategies, information exchanges and pre-closing conduct, and Hart-Scott-Rodino (HSR) Act compliance.
Antitrust and Complex Litigation
With creativity, attention to detail, and an eye to the potential impact of antitrust litigation on a client’s business, Ken litigates disputes brought by antitrust regulators, competitors, suppliers and customers alleging anticompetitive behavior including monopolization, exclusive dealing and price fixing. He helped lead a team that litigated the largest hospital merger challenge by the FTC in court (FTC v. Advocate Health Care Network, et al.).
Ken also represents real estate, hospitality, manufacturing, technology and financial services companies in complex disputes. He excels at early case assessment, focusing on finding creative, cost-effective solutions to issues such as wrongful termination, interference, fraud, unfair business practices and other contract-related matters.
Health Care Antitrust
- Antitrust counsel to Advocate Health Care including in its proposed merger with Aurora Health Care, which created the 10th largest not-for-profit, integrated health care system in the U.S. Also advised Advocate in its proposed merger with NorthShore University HealthSystem in an extended FTC investigation and litigation that terminated in 2017.
- Led and obtained antitrust approval for Mission Health in its $1.5 billion merger with HCA Healthcare. Mission, one of the largest integrated health systems in North Carolina, becomes an operating division of HCA Healthcare and is HCA’s first presence in the state.
- Guided Thomas Jefferson University and Jefferson Health through multiple strategic transactions, including mergers with Abington Health, Aria Health, Kennedy Health, and Rothman Specialty Hospital, and obtained FTC and state clearance without extended inquiries. Also represented Jefferson in connection with the university’s combination with Philadelphia University, uniting their graduate medical education and postsecondary educational institutions.
- Represented Meridian Health System before the FTC in its merger with Hackensack University Health Network to form Hackensack Meridian Health (HMH). Recently represented HMH in securing FTC clearance of its strategic affiliation with JFK Health, making Hackensack Meridian one of the New Jersey’s largest integrated health care networks.
- Successfully convinced the FTC to drop a non-public investigation of a leading physician clinic’s acquisition of an in-market hospital from a multi-state health system. The investigation focused on whether the two entities were actual or potential competitors in an outpatient surgery market.
- Represented both Orlando Health, one of the largest health systems in Orlando, FL, and Lakeland Regional Health System, the largest system in Lakeland, FL, in an FTC review of their merger affiliation in which Lakeland integrated into the Orlando Health system.
- Led a team—on behalf of Advocate Health Care, one of the largest health system in Illinois—that was responsible for securing a denial of an FTC request for a preliminary injunction in FTC v. Advocate Health Care, et al., one of the largest, and most closely watched antitrust merger challenges in recent years. While ultimately the companies terminated their affiliation agreement after nearly three years of litigation, the case challenged FTC orthodoxy in a number of areas of great importance to the industry, including the geographic parameters of health care markets in urban centers, and the nature of merger-related efficiencies in an era of population health and provider risk taking.
- Defended a Montana-based hospital system, Bozeman Deaconess Health, in two separate lawsuits brought by physicians alleging that the system had wrongfully prevented the physicians from practicing at the hospital in violation of antitrust laws and other state causes of action. Settled both matters favorably.
- Represented Charleston Area Medical Center (CAMC), one of the largest health systems in West Virginia, in a Department of Justice (DOJ) investigation and subsequent litigation regarding an alleged agreement between CAMC and another health system to allocate marketing territories. CAMC agreed to settle the matter without any admission of liability, with it establishing an antitrust compliance program. United States v. Charleston Area Medical Center (D.W.V.).
- Defended St. Peter’s Hospital, the only acute care, community hospital in Helena, Montana, in an antitrust litigation filed by a group of radiologists concerning hospital privileges for non-employed physicians. We secured dismissal of the case, represented St. Peter’s on appeal to the Montana Supreme Court, and represented the hospital following remand. We then obtained a successful resolution for the client.
Litigation and Investigations
- Represented Physician Dialysis of America (PDA), a Florida-based healthcare provider, and its capital partner, GMF Capital, before the FTC in their acquisition of seven dialysis facilities located in New Jersey and Texas from DaVita Inc. We assisted PDA and GMF in getting approval from the FTC to purchase the seven divested centers from DaVita, which enabled it to close its merger with Renal Ventures. As a result of this transaction, PDA doubled in size and now has fifteen locations across eight states.
- Defended an information technology company in courts in Virginia and California in a case brought by a former reseller of its technology products asserting antitrust, contract, and tort claims. Obtained dismissal of the majority of the plaintiff’s claims on the pleadings, and through an aggressive law and motion and discovery plan, recently secured summary judgment on all remaining claims.
- Defended two of the 21 hospital co-defendants in a class action price-fixing litigation challenging the use of “most favored nation” clauses by Michigan Blue Cross Blue Shield in its hospital contracts. We successfully secured dismissal of the proposed class’s action with prejudice. City of Pontiac v. Blue Cross Blue Shield of Michigan et al. (E.D. Mich.).
- Represented a global manufacturer of dental products in connection with federal and state antitrust investigations and litigation about alleged price fixing among dental distributors concerning discounting practices.
- Successfully represented two separate clients in settling FTC false advertising investigations concerning their marketing practices. One was on behalf of a U.S. hat manufacturer, The Bollman Hat Company, about its use of U.S. origin and “Made in the USA” claims in their advertising. The second was on behalf of a baby products manufacturer, Moonlight Slumber, about its use of “organic” and “natural” health-related advertising claims in the promotion of its products. Both FTC investigations were resolved through negotiated FTC consent decrees.