United States et al. v. Aetna et. al., No. 1:16-cv-01494 (D.D.C. July 21, 2016)

U.S. DOJ and plaintiff states sued to block the merger of two of the country’s largest health insurers. According to the complaint, alleges that their merger would substantially reduce Medicare Advantage competition in more than 350 counties in 21 states, affecting more than 1.5 million Medicare Advantage customers in those counties. Before seeking to acquire Humana, Aetna had pursued aggressive expansion in Medicare Advantage. Aetna, the nation’s fourth-largest Medicare Advantage insurer by membership, has nearly doubled its Medicare Advantage footprint over the past four years. Humana is the nation’s second-largest Medicare Advantage insurer by membership. The lawsuit also alleges that Aetna’s purchase of Humana would substantially reduce competition to sell commercial health insurance to individuals and families on the public exchanges in 17 counties in Florida, Georgia and Missouri, affecting more than 700,000 people in those counties. The lawsuit alleges that by buying Humana, Aetna would eliminate one of its strongest and most capable competitors in these markets. The district court granted the injunction, rejecting the parties arguments that the Medicare Advantage and Medicare programs were competing products that constrained one another’s prices, and noting that Aetna’s exit from several markets, allegedly because of the Affordable Care Act, appeared to be designed to eliminate a problem with the merger, rather than being an unrelated business decision.

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FTC and State of Ohio v. Promedica health System, No. 3:11CV0047 (N.D. Ohio Jan. 7, 2011)

State and FTC sought preliminary injunction in connection with an already consummated acquisition by Promedica of St. Luke’s hospital. The complaint alleged that ProMedica’s acquisition of St. Luke’s eliminated significant price and non-price competition between the two firms in both the general acute-care and inpatient obstetrical markets in Lucas County. According to the complaint, the acquisition also vests ProMedica with the ability to demand higher rates for services performed at its other hospitals as well, because the addition of St. Luke’s to the ProMedica hospital system has made ProMedica a “must-have” system for health plans seeking to do business in Lucas County, as plans can no longer offer consumers a viable provider network without including ProMedica’s hospitals. The preliminary injunction was granted, and the FTC proceeded with an administrative proceeding.

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Ohio v. Cargill, Tuscarawas Cty Ct. of Common Pleas (Mar. 21, 2012)

State alleged that two rock salt producers had agreed to divide up the Ohio market for rock salt, assigning different contracts to the two different producers. State alleged that the defendants actively submitted sham losing bids, which also excluded other bidders because Ohio’s “Buy Ohio” provisions give a preference to Ohio companies if at least two Ohio producers submit bids.The parties settled in June 2015 with a payments totaling $11.5 million.

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U.S. and Plaintiff States v. AT&T, No. 11-01560 (D.D.C, 2011)

AT&T sought to acquire T-Mobile. The transaction would have combined two of the only four wireless carriers with nationwide networks. US DOJ and six states filed suite to block the merger. The parties abandoned the merger three months later.

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U.S. and Plaintiff States v. American Express Co. et al. No. 10-4496 (E.D.N.Y. 2010)

U.S. DOJ and plaintiff states filed suit challenging rules made by American Express, MasterCard and Visa that prevent merchants from offering consumers discounts, rewards and information about card costs, ultimately resulting in consumers paying more for their purchases. Visa and MasterCard settled with the Department of Justice and the litigating states immediately after the complaint was filed. Under the terms of the settlement, the two companies will be required to allow merchants to offer discounts, incentives and information to consumers to encourage the use of payment methods that are less costly. The proposed settlement requires MasterCard and Visa to allow their merchants to: 1) offer consumers an immediate discount or rebate or a free or discounted product or service for using a particular credit card network, low-cost card within that network or other form of payment; 2) express a preference for the use of a particular credit card network, low-cost card within that network or other form of payment; 3) promote a particular credit card network, low-cost card within that network or other form of payment through posted information or other communications to consumers; 4) communicate to consumers the cost incurred by the merchant when a consumer uses a particular credit card network, type of card within that network or other form of payment.
American Express did not agree to settle,and a trial was held, in which the court found for the plaintiffs. . The trial focused on credit card “swipe fees” which generate over $50 billion annually for credit card networks. Plaintiffs argued that price competition over merchant swipe fees has been almost non-existent and for decades the credit card networks have not competed on price because of the rules imposed by each of the networks that limit merchants’ ability to take advantage of a basic tool to keep prices competitive. That tool – commonly used elsewhere in the economy – is merchants’ freedom to “steer” transactions to a network willing to lower its price. Each network has long prohibited such steering to lower-cost cards. The court held that the American Express anti-steering rules block merchants from using competition to keep credit card swipe fees down, which means higher costs to merchants’ customers. The decision means that agreements the plaintiffs reached previously with MasterCard and Visa can be fully implemented pending the conclusion of any appeals.
After remedy submissions from the parties, the court entered an order prohibiting American Express from adopting rules or entering contracts that block merchants from encouraging their customers to use a particular credit card. Under the order, merchants must be permitted to: offer discounts for the use of particular cards; express a preference for particular cards; disclose to customers the cost merchants incur when the customer uses particular credit cards; and engage in other conduct to encourage use of favored credit cards. The order also requires American Express to: repeal any rules that block merchant steering; notify merchants of their freedom to engage in steering activities; and adopt compliance measures to ensure that its employees understand that they cannot continue to block steering by merchants that accept American Express cards.
The Second Circuit reversed the lower court decision that the restraints had an actual anticompetitive effect on interbrand competition. The Second Circuit held that plaintiffs failed to meet their burden of demonstrating an anticompetitive effect on the whole market because “without evidence of the NDPs’ net effect on both merchants and cardholders, the District Court could not have properly concluded that the NDPs unreasonably restrain trade in violation of § 1.”

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United States et al. v. Ticketmaster, No. 1:10-cv-00139(D.D.C. 2010)

U.S. and 17 states sued to enjoin merger of Ticketmaster, the nation’s largest ticketing services company, and Live Nation, the nation’s largest concert promoter.
According to the Complaint, the parties announced their merger shortly after Live Nation had entered the concert ticketing business as Ticketmaster’s closest competitor. The complaint alleged that consumers and major concert venues would
face higher ticket service charges as a result of the merger
The settlement requires the merging parties to license its ticketing software to Anschutz Entertainment Group (AEG). AEG is the nation’s second largest promoter and the operator of some of the largest concert venues in the country. The merging parties are further required to divest Ticketmaster’s entire Paciolan business, which provides a venue-managed platform for selling tickets through the venue’s own web site. Paciolan is to be divested to Comcast/Spectacor, a sports and entertainment company with a management relationship with a number of concert venues. Comcast also has ticketing experience through its New Era ticketing company.The settlement also prohibits the merging parties from retaliating against venue owners who contract with the merging parties’ competitors.

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U.S. and Plaintiff States v. Republic Services

Two of the three largest waste hauling companies in the U.S. sought to merge. The United States and plaintiff states reached a settlement under which the parties would divest 11 landfills, 8 waste transfer stations and numerous routes within the plaintiff states.

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United States and Plaintiff States v. JBS S.A.

JBS, headquartered in Brazil, sought to acquire National Beef Packing, Inc., headquartered in Kansas City, Missouri. The U.S. Department of Justice and 13 states sued to block the transaction, which, according to the complaint, would substantially restructure the beef packing industry, eliminating a competitively significant packer and placing more than 80 percent of domestic fed cattle packing capacity in the hands of three firms: JBS, Tyson Foods Inc., and Cargill Inc. The complaint alleged that the acquisition would lessen competition among packers in the production and sale of USDA-graded boxed beef nationwide and would lessen competition among packers for the purchase of fed cattle ? cattle ready for slaughter ? in the High Plains, centered in Colorado, western Iowa, Kansas, Nebraska, Oklahoma and Texas, and the Southwest. In February 2009, the parties announced that they were abandoning the transaction.

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State of Ohio v. American International Group, et al,, No. 07-633857 (Oh. Ct. of Comm. Pleas, Cuyahoga Cty. 2007)

Plaintiff state alleged bid-rigging and fictitious quotes in suit against insurance brokers and major commercial insurers. Settled on behalf of 26 public entities for $9 million (AIG) plus $4.75 million (Marsh). Other cases pending

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State of Colorado et al v. Warner Chilcott, 1:05-cv-02182 (D.D.C.2005)

34 states filed suit alleging that Warner Chilcott entered into an illegal agreement with Barr Pharmaceuticals to raise the prices of Ovcon, an oral contraceptive. The lawsuit alleged that after Barr Pharmaceuticals publicly announced that it planned to have a generic version of Ovcon on the market by the end of the year, Warner Chilcott paid Barr Pharmaceuticals $1 million for an agreement designed to prevent Barr’s generic product from coming to market. Under the terms of the alleged agreement, once Barr received FDA approval to market generic Ovcon, Warner Chilcott had 90 days to pay Barr $19 million, after which Barr would refuse to bring the cheaper generic version to the market. The lawsuit alleged that as a result of the agreement, Warner Chilcott paid Barr a total of $20 million to keep it from marketing its generic version of Ovcon. In additon to a payment of $5.5 million, the settlement prohibits Warner Chilcott, for ten years, from entering into any agreement that would have the effect of limiting the research, development, manufacture, or sale of a generic alternative to one of its drugs. Furthermore, Warner Chilcott must provide the states notice of certain agreements it has entered into with generic manufacturers, and must continue to make its records available to the states for inspection to determine whether the company is complying with the terms of the agreement.

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