The US District Court for the Southern District of Texas has granted a motion to dismiss the FTC’s lawsuit filed by private equity firm Welsh, Carson, Anderson & Stowe (WCAS), but denied the motion to dismiss filed by its minority-owned portfolio company, US Anesthesiology Partners, Inc. (USAP). The FTC alleged that WCAS and USAP developed and pursued an anticompetitive acquisition strategy to “roll-up” multiple Texas-based aesthesia practices in violation of federal antitrust law. The court granted WCAS’s motion to dismiss because it found that its minority, non-controlling stake in USAP was insufficient to support a violation of federal antitrust law.

The Department of Justice’s (DOJ) Antitrust Division (“Division”) has launched the Task Force on Health Care Monopolies and Collusion. This new Task Force, made up of lawyers, economists, industry experts, data scientists, and technologists from across the Division, will work on investigations and policies across the healthcare space. In particular, the Task Force will focus on consolidated markets, particularly where business operations affect customer care, the use of healthcare data, labor issues, and technology services in the healthcare space.

The Department of Justice’s (DOJ) Antitrust Division has launched the Task Force on Health Care Monopolies and Collusion. This new Task Force, made up of lawyers, economists, industry experts, data scientists, and technologists from across the Division, will work on investigations and policies across the healthcare space. In particular, the Task Force will focus on consolidated markets, particularly where business operations affect customer care, the use of healthcare data, labor issues, and technology services in the healthcare space.

This week we kicked off our Annual Compliance Conference with key antitrust compliance topics that are impacting businesses today. Specifically, we discussed antitrust risk and enforcement in relation to vertical agreements, and how to manage compliance risk in the context of transactions.

Both the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) (collectively, “Agencies”) have submitted a joint Statement of Interest in a third-party dispute currently active in the Federal District of New Jersey. The Statement clarifies the Agencies’ positions on price fixing through the use of algorithms. The third-party dispute involves a class action against casino hotels in the Atlantic City, New Jersey area.

On 7 March 2024 at the American Bar Association’s 39th National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco announced several new initiatives the Department of Justice is implementing to address concerns around the use of AI in federal criminal activity along with potential corporate compliance failures that might facilitate the misuse of AI.

On 6 March 2024, California Assistant Attorney General Paula Blizzard announced at the American Bar Association’s annual National Institute on White Collar Crime the state’s intentions to reinvigorate criminal enforcement of the Cartwright Act, California’s primary antitrust statute. California has not criminally prosecuted violations of the Cartwright Act in 25 years. Blizzard’s announcement comes shortly after California enacted legislation to codify restrictions against no-poach and non-compete clauses. All-in-all, state officials appear poised to follow in the Biden administration’s footsteps and increase antitrust enforcement. Companies should be on notice of certain states like California that are taking steps to strengthen antitrust enforcement and alleged agreements to fix prices, divide markets, and rig bids could soon lead to criminal penalties under either state or federal statutes.

On 1 December 2023, the US Court of Appeals for the Fourth Circuit reversed a Sherman Act conviction of a former executive of an aluminum products manufacturer for failure to state a per se antitrust offense. In February 2022, the former executive was found guilty of six counts: conspiracy to rig bids, conspiracy to commit mail or wire fraud, three counts of mail fraud, and one count of wire fraud. The court affirmed the mail and wire fraud convictions, but reversed the Sherman Act conviction of conspiracy to rig bids. The Fourth Circuit held that the trial court erred in applying the per se rule without considering the fact that the alleged scheme took place within the context of a “dual distribution” relationship among competing bidders, who also maintained a supplier relationship.

On 1 December 2023, the US Court of Appeals for the Fourth Circuit reversed a Sherman Act conviction of a former executive of an aluminum products manufacturer for failure to state a per se antitrust offense. While DOJ is considering en banc review of this opinion, if upheld the decision could have lasting implications for how the DOJ proceeds with indictments involving parties that engage in dual distribution. We will continue to monitor for future developments in this case as it moves forward.

Last year, we warned that the Federal Trade Commission was starting to go after directors, owners and private equity firms in control of entities that violated American antitrust laws. That has now proven true.
On 21 September, the FTC filed a 106-page complaint in the US District Court for the Southern District of Texas against US Anesthesia Partners Inc. and its private equity investor, Welsh Carson Anderson & Stowe XI LP.