Health Care Antitrust
Ken has particular experience advising and representing health care industry clients as they contemplate, carry out and resolve disputes related to major transactions. He guides clients through antitrust scrutiny and regulatory approvals and helps them adapt to the legal and regulatory changes that emerge so often in the health care industry. He has led transactions on behalf of some of the largest nonprofit health systems in the U.S. and defended clients in antitrust litigation involving relationships with providers, payors, suppliers and business partners. Ken understands that different health care entities face distinct challenges, and he delivers strategies tailored to specific market segments, including hospitals, health systems, private clinics, long-term care facilities, nursing homes, pharmaceutical companies, medical device manufacturers, and information technology companies.
Health Care Antitrust
- Lead antitrust and trial counsel for Thomas Jefferson University (Jefferson), the largest health system in Philadelphia, in its acquisition of Albert Einstein Healthcare Network. This included a protracted investigation by the FTC and Pennsylvania Attorney General, both of whom subsequently filed suit to block the merger. This was the first FTC antitrust action to be defeated in the health care hospital/provider space in nearly two decades and was named in Law360’s “Top Merger Challenges to Watch in 2021.”
- In addition to the Einstein matter, guided Jefferson through multiple strategic transactions, including four major mergers with local health systems (2016-2019), and obtained FTC and state clearance without extended inquiries. Our antitrust work for Jefferson, which includes a large academic medical center and 10 other community hospitals, includes advising on clinical integration strategies, physician alignment and payor interactions.
- Lead antitrust and trial counsel for Hackensack Meridian Health, New Jersey’s largest integrated health system, in an FTC investigation and lawsuit to block HMH’s acquisition of Englewood Healthcare Foundation. Served as HMH’s antitrust advisor and counsel for several years as it has continued to expand, including its acquisition of Carrier Clinic (2019), its merger with JFK Health (2018), and in the formation of HMH (2016) as counsel to legacy Meridian Health when it merged with Hackensack University Health to form what is now HMH.
- Antitrust counsel to Advocate Aurora Health Care (AAH) and legacy Advocate on several matters, including: advising on a successful divestiture of assets related to its Central Illinois facilities to The Carle Foundation; the formation of its pediatric service line joint venture with NorthShore University Health System (NorthShore); and antitrust clearance of the Advocate Health Care and Aurora Health Care, which created AAH, the 10th largest nonprofit integrated health care system in the U.S. Prior to the AAH merger, our antitrust team was lead FTC and trial counsel to Advocate in its proposed merger with NorthShore, which involved an extended investigation and federal court litigation and appeal.
- 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.
- 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.
- 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.
- 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 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 health care 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.
- 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.