In healthcare transactions, people often think that antitrust is a big corporation’s problem. However, smaller companies need to think about these issues, too.

There have been recent developments on both state and federal levels, calling for greater regulation in the healthcare space. More statutes have been put in place to catch smaller transactions statewide, and in 2021, the Federal Trade Commission and Department of Justice were ordered to take a close look at antitrust in the healthcare industry. 

In the last couple of years, multiple criminal cases have been brought against individual healthcare providers and corporate entities alike. Oftentimes, these people don’t even realize that certain actions can subject them to criminal liability. 

Luckily, there are specific measures you can take to mitigate risk and ensure that you maintain antitrust compliance. From your pipeline strategy and business goals to team training and education, analyzing through an antitrust lens can help you avoid issues and efficiently secure a deal.

In this episode of The Professor’s Corner, host Geoff Cockrell interviews Holden Brooks, Partner of McGuireWoods’ Antitrust, Trade, and Commercial Litigation Department, to discuss the best practices to manage antitrust risk in the healthcare space. 

As an expert in antitrust law, Holden details new developments and regulations to help prepare you for deals and avoid antitrust risk — no matter the size of your business.  

 

Featured Guest

Name: Holden Brooks

What she does: Holden is a Partner of McGuireWoods’ Antitrust, Trade, and Commercial Litigation Department. Her practice focuses on mergers, complex litigation, civil and criminal enforcement, and counseling across industries with significant experience in the area of healthcare.

Organization: McGuireWoods

Words of wisdom: “I think there are a lot of ways that providers can get in trouble in that market allocation area, because I think there's always a sense that they're professionals, that making decisions about who's going to do what is part of practicing medicine in a collaborative way. But the antitrust division really is looking at that in the same way they would in any other industry where there's an effort to reach agreement about how you're going to compete or not compete.”

Connect: LinkedIn

 

Notes From The Professor’s Corner

Top takeaways from this episode

★ There are common antitrust myths regarding smaller companies. The biggest risk for healthcare businesses — even smaller ones — entering into transactions is that they don’t know what they don’t know. There are specific state requirements and federal enforcements that have recently developed. For example, in Nevada, Washington, and Connecticut, there are state statutes and sophisticated Attorney General offices that can catch smaller transactions. Ultimately, a greater amount of smaller deals in the healthcare space are being scrutinized.

★ Managing antitrust risk requires time in the pipeline stage. You can get great ROI if you’re smart about your pipeline, and this is the first step to help you manage risk. If you can create an acquisition strategy that doesn’t involve consolidation in anything within an antitrust-relevant market, then you can still harness the scale without incurring antitrust risk. 

★ Certain behaviors can tie into criminal aspects of antitrust. Within the last couple of years, there have been multiple criminal cases brought against individual healthcare providers and corporate entities. These criminal behaviors include price fixing, dividing the market by geography, or dividing the market by drugs. Sometimes, people have no idea they’re executing criminal behaviors. So, it’s important to get educated and train your team to understand the guardrails. 

Episode Insights

[01:19] The myth around antitrust issues: Holden explains why everyone needs to think about antitrust issues — not just big companies.

[02:06] State and federal statutes: Holden discusses the recent changes in specific state and federal statutes and how they could affect small roll-up deals. 

[05:39] Managing antitrust risk: Spend more time in the pipeline stage and highlight the positive motivations behind a transaction.

[08:42] Criminal aspects of antitrust: The different ways that individual healthcare providers and corporate entities can get in trouble.

[12:27] Educating your people on antitrust topics: Holden details what investors and businesses should do to get educated, train their people, save time and money, and ultimately avoid liability. 

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