- Federal antitrust agencies are now enforcing the antitrust laws in serial deals and “roll-up” acquisitions that may have a cumulative impact, even though those deals may not appear significant on an individual basis.
- The intersection of health care and private equity continues to be a major area of focus for federal antitrust enforcers. Caution is warranted even where the investor holds only a non-majority stake of its health care investment.
- Health care companies and their investors should work with experienced antitrust counsel to evaluate both the procompetitive and anticompetitive effects of their strategic business decisions, especially with regard to pricing and growth strategies.
The Federal Trade Commission (FTC), under the leadership of Chairperson Lina Khan, has for the past several years signaled its intent to ramp up enforcement of the antitrust laws in the health care and private equity spaces. Last week, the FTC gave teeth to these policy proclamations and sued both U.S. Anesthesia Partners, Inc. (USAP) and its investing private equity firm Welsh, Carlson, Anderson & Stowe (Welsh Carlson) in the Southern District of Texas. The FTC’s complaint alleges an anticompetitive scheme by both defendants to consolidate anesthesia practices in Texas through a “roll-up” acquisition strategy that allowed USAP to become the dominant provider of anesthesia services in the area. Until now, such “roll-up” acquisitions have largely not been subject to review under the antitrust laws because they are relatively small when considered individually.