Antitrust enforcement scrutiny is nothing new for healthcare organizations. However, the changing procedural and substantive landscape in which healthcare transactions are being reviewed is. 

In a recent episode of the AHLA's Speaking of Health Law podcast, Bryan Perry, Senior Managing Director, FTI Consulting; Amanda Wait, Partner and Head of Antitrust, Michael Best & Friedrich; and Elizabeth Odette, Assistant Attorney General and Manager of the Antitrust Division, Office of the Minnesota Attorney General, discuss this trend. 

The following are a summary of the key takeaways from what Amanda shared.

When to Notify Your Transaction to the Federal Government

• If you have a transaction valued at over $100 million dollars, you need to consider whether a filing is required to the Federal Government, the Federal Trade Commission, and the US Department Justice's Antitrust Division.
• New filing requirements do require significantly more information to be provided.
  • There is now a requirement for more narrative descriptions. This includes things like descriptions of the competitive landscape, diagrams of deal structure, and discussions about the strategic rationale. 

Best Practice: Be prepared for it to take 20 business days to file vs. the old recommendation of just 5. 

Best Practices for Preparing for Antitrust Reviews

• In addition to filing your HSR or getting ready for your HSR early, take time to understand the potential risks associated with your transaction early on as well.
  • Bring in antitrust counsel as soon as possible so we can investigate and take a look at everything that is going on and provide you with actionable next steps you should take depending on your level of risk.
  • Knowing where you stand will impact nearly every decision you make from a business and commercial standpoint during the deal cycle.
• Be mindful of your document creation process very early on.
  • antitrust reviewers will scrutinize in detail everything you provide. It is best to avoid puffery and over-emphatic language and instead stick to the truth of each matter.
• Make sure that everyone on your team who is internally under the tent on the deal is following document preservation requirements as advised by counsel.
• Make sure you are aware of all the timing requirements for the deal. 

Tips to Have a Successful Deal Close

• Consider what kinds of local opposition your deal might face and have a plan as to how you will address those concerns.
• Have a clear communication strategy and a clear strategy for government relations and stakeholder communication as well.
• Rule of thumb: all parties to a transaction must continue to operate independently until closing is complete.
  • antitrust law requires and expects that until a deal is officially finalized, you will have to bid against your merging partner for one thing or another.
  • Until the deal is officially closed, it is best to stay in planning mode not implementation mode.

For more on how your healthcare facility can best prepare for transactions, please contact Amanda Wait. 

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