Competition Corner

On Tuesday, March 11, 2025, the Senate confirmed Gail Slater as the Assistant Attorney General for the U.S. Department of Justice (DOJ) Antitrust Division (Division). While Slater has been circumspect in her public comments regarding past and anticipated Division priorities, her prior experience and recent statements offer early insights into her expected approach.

A second Trump administration brings some uncertainty about the trajectory of non-merger antitrust enforcement. Under the Biden administration, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) took an aggressive approach to antitrust enforcement across several industries and were particularly hostile to mergers and acquisitions. President Trump’s nominees to lead the antitrust agencies signal that the new administration is likely to continue current levels of vigorous antitrust enforcement—particularly in Big Tech and other hot-button industries—but will likely relax M&A enforcement and return to more predictable and traditional tools and theories of harm.

On January 8, 2025, Massachusetts Governor Maura Healey signed a new law, House Bill 5159, expanding the state’s existing health care transaction notification requirement and creating new health care reporting requirements for private equity funds, health care real estate investment trusts, management services organizations, and pharmaceutical companies.

On December 10, President-elect Trump announced that he will elevate current FTC commissioner Andrew Ferguson to be the next Chair of the Federal Trade Commission. In a follow-up post, Trump also announced his selection of antitrust lawyer Mark Meador to serve as a new Republican FTC commissioner.

Health care companies and stakeholders should be prepared for an uptick in antitrust complaints and investigations in the short term, driven by the launch of HealthyCompetition.gov. Despite the anticipated short-term impact, the long-term impact remains uncertain and depends on the sustained engagement and use of the tipline by the public.

In the latest step in the U.S. antitrust agencies’ heightened enforcement against private equity, the Federal Trade Commission held a Workshop on Private Equity in Health Care yesterday with the U.S. Department of Justice and Department of Health and Human Services.

On September 27, 2023, a Louisiana federal court issued a landmark ruling addressing the intersection of the Hart-Scott-Rodino (HSR) Act and the Certificate of Public Advantage (COPA) regimes adopted by various states.

The Federal Trade Commission’s (FTC) continued scrutiny of private equity “roll-up” strategies resurfaced in a recent complaint filed in Texas federal court alleging that the private equity firm Welsh, Carson, Anderson & Stowe (Welsh Carson) and its portfolio company U.S. Anesthesia Partners, Inc. (USAP) entered into a “multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits.” 

Illinois has adopted a new antitrust law, effective January 1, 2024, requiring pre-merger notification of certain transactions between health care entities, including hospitals and provider groups. 

The Department of Justice’s Antitrust Division announced on Friday, February 3, that it is withdrawing three longstanding policy statements providing guidance concerning its enforcement of the antitrust laws in the health care industry, a move that leaves significant uncertainty in its stead.  Although focused on health care, the policy statements have long been relied upon as important guidance for competitor collaborations in other industries, particularly regarding sharing price- or cost-related information and joint purchasing.

While regulators are signaling their goals to revise and strengthen merger enforcement, they are picking a fight against a particular obstacle to achieving their vision in health care. Specifically, the Federal Trade Commission is currently pushing states to restrict their use of Certificates of Public Advantage. 

The U.S. Federal Trade Commission (FTC) and Department of Justice, Antitrust Division (DOJ) recently hosted a two-day virtual workshop titled “The Future of Pharmaceuticals: Examining the Analysis of Pharmaceutical Mergers.”

On June 2, 2022, the Federal Trade Commission (“FTC”) continued its aggressive scrutiny of health system mergers, announcing administrative challenges to two proposed mergers – one in Utah, and the other in New Jersey. The Utah challenge seeks to block the proposed merger between HCA Healthcare and Steward Health Care System in the Wasatch Front region of Utah, which surrounds Salt Lake City. The New Jersey challenge is aiming to prevent RWJBarnabas Health’s proposed acquisition of Saint Peter’s Healthcare System in Middlesex County, New Jersey. The FTC is also pursuing injunctive relief in federal court in both cases. The FTC voted unanimously to challenge both mergers.

In a recent speech, the Deputy Assistant Attorney General (DAAG) at the Department of Justice (DOJ) Antitrust Division stated that DOJ intends to closely examine certain private equity transactions; in particular, those in the health care industry. This speech continues a trend of public statements by top antitrust officials emphasizing enhanced antitrust scrutiny of private equity transactions.

A putative class of Connecticut citizens is alleging that Hartford HealthCare has amassed monopoly power to “extract higher prices from insurers, employers, and patients.” The suit, filed in Connecticut state court, alleges Hartford HealthCare has illegally monopolized the markets for inpatient hospital services and outpatient medical services in multiple geographic locations throughout Connecticut.

What impacts will the sweeping Executive Order on Promoting Competition have on companies? In this episode of Winston & Strawn’s Competition Corner Podcast, Attorneys Molly Donovan, David Dahlquist, Susannah Torpey, and Kevin Goldstein discuss the Order’s directives and recommendations targeting labor markets, the tech sector, and the healthcare and life sciences industries.

On July 9, 2021, President Biden issued the “Executive Order on Promoting Competition in the American Economy” (the Order) and the White House’s contemporaneous Fact Sheet with the intent to promote economic competition, rigorously enforce existing antitrust laws, and update regulations to combat practices not prohibited by existing antitrust law that may be used to anticompetitive ends. The Executive Order continues recent years’ bipartisan focus on the healthcare industry, a rare area in which Democrats and Republicans have sought common ground to bring down costs.

On May 19, 2021, the U.S. Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights convened a hearing to discuss hospital consolidation.

On April 29, 2021, the U.S. House of Representatives Subcommittee on Antitrust, Commercial, and Administrative Law met to discuss consolidation in health care markets.

On March 16, 2021, acting Federal Trade Commission (FTC) Chairperson Rebecca Slaughter announced the formation of an international working group that will seek “to identify concrete and actionable steps to review and update the analysis of pharmaceutical mergers,” specifically ensuring that the FTC and other regulatory bodies will utilize fresh approaches and “fully analyze the varied competitive concerns” that pharmaceutical mergers raise.