Latest antitrust issues to be explored at ABA virtual health law conference
Leading government enforcers, economists and private counsel representing both plaintiffs and defendants will come together to share their insights and offer both practical advice and policy recommendations on health care reform, increased government enforcement and other important issues during the American Bar Association’s Antitrust in Healthcare Virtual Conference, February 10-12, sponsored by the ABA Health Law Section and the Antitrust Law Section
On Feb. 11 at 9 a.m. CST, Eric Welsh, chief, Healthcare and Consumer Products Section, Antitrust Division, U.S. Department of Justice, Washington, D.C., and on Feb. 12 at 9 a.m. CST, Mark Seidman, assistant director for Mergers IV Division, Bureau of Competition, Federal Trade Commission, Washington, D.C., will discuss the latest developments at their respective agencies.
Conference highlights include:
• “European Enforcers Roundtable” — An update on significant developments impacting health care in Europe. Topics will include the latest updates in pharmaceuticals, data, and changes due to COVID-19. Experts include Paul Csiszar, director of Basic Industries, Manufacturing and Agriculture, DG Comp, European Commission, Brussels, Belgium; Ann Pope, senior director, Competition and Markets Authority, London, United Kingdom; Martijn Snoep, chairman of the board, The Netherlands Authority for Consumers and Markets (ACM), The Hague.
• “Going Viral: Burning Healthcare and Pharmaceuticals Issues” — Many health care transactions involve not only review by the FTC or DOJ Antitrust Division, but also clearance by state attorneys general, insurance departments and other health care regulatory bodies. The issues addressed by many of these state-based regulators extend beyond the competitive impact of transactions, which requires coordination of multiple sets of stakeholders. A panel of experts, including Sarah Oxenham Allen, chair, NAAG Antitrust Taskforce; senior assistant attorney general and antitrust unit manager, Office of the Attorney General, Richmond, Virginia, will discuss the complex interaction of multiple types of regulatory review in transactions that raise potential competition concerns, and ideas for managing the “who goes first” problem.
• “Antitrust Legislation: New Powers for State and Federal Enforcers” — State and federal lawmakers are aggressively pursuing new legislation that would expand the ability of enforcers to block mergers and challenge anticompetitive conduct, with California and New York leading the way in enacting such measures. This session will cover updates on the latest antitrust bills pending before Congress and state legislatures. The speakers will include Amanda G. Lewis, FTC counsel on detail, to the U.S. House of Representatives, Washington, D.C.
• “Healthcare Merger Recap: Managing Multiple Regulatory Reviews” — Many health care transactions involve not only review by the FTC or DOJ Antitrust Division, but also clearance by state attorneys general, insurance departments and other healthcare regulatory bodies. The issues addressed by many of these state-based regulators extend beyond the competitive impact of transactions, which requires coordination of multiple sets of stakeholders. This panel will discuss the complex interaction of multiple types of regulatory review in transactions that raise potential competition concerns, and ideas for managing the “who goes first” problem.
• “Let’s Get an Understanding: Criminal Antitrust Enforcement in the Provider Space” — In April, the Deferred Prosecution Agreement in United States v. Florida Cancer Specialists resolved the first criminal enforcement action against a health care provider in nearly 30 years. What should physician practices, health systems and other clinicians understand about criminal antitrust enforcement now that it’s clear there isn’t a policy of exceptionalism for health care? Experts, including Jim Fredricks, chief, Washington Criminal II Section, Department of Justice, Antitrust Division, Washington, D.C., will provide strategies in managing risk through antitrust compliance programs and other self-reporting mechanisms to resolve conduct issues, options for avoiding exclusion from public payor programs through deferred prosecution agreements and other basics of criminal antitrust enforcement.
• “Difficult Deals and Tough Situations: Lessons Learned from Anthem-Cigna” — The aftermath of the failed Anthem-Cigna transaction led to the discovery of best practices and recognition of key problem areas for counsel to reference while managing long, complex merger reviews. A panel of experts will examine the lessons from these considerations, including developing a sound antitrust risk assessment and agency strategy; negotiating appropriate provisions in the purchase agreement; engaging with joint defense counsel; managing concurrent FTC/DOJ and state attorney general antitrust reviews; and advising clients on integration planning and information exchange during a lengthy pre-closing period.
• “Big Data Comes to a Healthcare Market Near You” — Big data in health care is rapidly evolving. Data on patients’ lifestyles and choices can be collected from electronic medical records, wearables, social media and supermarket data. What does it mean for antitrust law? Where is the balance between data as a tool to enhance patient outcomes or as an instrument that may suppress competition? An expert panel will delve into the benefits of big data, including improving patient care and reduction of duplicative testing and costs, as well as explore the potential dangers involving providers steering patients, and collusion.
A complete agenda and updated list of speakers can be found online. For additional information or to register, visit www.americanbar.org and click on “events.”
ABA names recipients of 2021 Stonewall Award honoring LGBT advancements in legal profession
Three longstanding LGBT legal activists will be honored by the American Bar Association Commission on Sexual Orientation and Gender Identity with its ninth annual Stonewall Award during a virtual ceremony on Feb. 20 at 5:30 p.m. CST at the ABA Midyear Meeting.
Named after the New York City Stonewall Inn police raid and riot of June 28, 1969, which was a turning point in the gay rights movement, the award recognizes lawyers who have considerably advanced lesbian, gay, bisexual and transgender individuals in the legal profession and successfully championed LGBT legal causes.
The 2021 award recipients:
Senator Tammy Baldwin (D-Wisconsin) is the first openly LGBTQ woman elected to the U.S. House of Representatives (in 1999) and to the Senate (in 2013). She began her career as a lawyer in private practice from 1989-92, then became the first openly lesbian member of the Wisconsin Assembly and one of a very few openly gay politicians in the country at the time. In 1994, Baldwin proposed legalizing same-sex marriage in Wisconsin and in 1995 proposed domestic partnerships in Wisconsin. In 2018, she was one of 20 senators who signed a letter to now former Secretary of State Mike Pompeo urging him to reinstate a policy that granted visas to same-sex partners of LGBTQ diplomats who had unions that were not recognized by their home countries. Baldwin has a B.A. from Smith College and J.D. from the University of Wisconsin Law School.
Judge Martin Jenkins, an associate justice of the California Supreme Court, is the first openly LGBTQ justice and the third African American man to serve on the court. He has a long record of public service, including as a deputy district attorney in Alameda County from 1981-83 and as a prosecutor for the U.S. Department of Justice Civil Rights Division from 1983-85. Jenkins then served as in-house counsel for Pacific Bell for four years before being appointed to the Alameda County Municipal Court in 1989. In 1992, he was appointed to the Alameda County Superior Court, where he served until 1997. President Bill Clinton nominated Jenkins in 1997 to the United States District Court for the Northern District of California, where he served until 2008, when then Gov. Arnold Schwarzenegger nominated him to fill the vacancy on the First District Court of Appeal. Immediately prior to joining the California Supreme Court, Jenkins served as judicial appointments secretary to Gov. Gavin Newsom. Jenkins has a B.A. from Santa Clara University and J.D. from the University of San Francisco School of Law.
Judge Sabrina McKenna is the first openly LGBTQ judge to sit on the Hawaii Supreme Court, where she has served since 2011. After attending the University of Hawaii at Manoa on a basketball scholarship as an early beneficiary of Title IX, she received a J.D. from the University of Hawaii William S. Richardson School of Law. McKenna started her career in private practice, then served as general counsel to Otaka, Inc. She became an assistant professor at the University of Hawaii Law School before being appointed a District Court judge in 1993. McKenna was elevated to the Circuit Courts in 1995. She co-chaired the Hawaii Supreme Court’s Committee on Equality and Access to the Courts and the Committee on Court Interpreters and Language Access, looking to provide opportunities for groups frequently underrepresented in the justice system. She was involved in the inclusion of gender identity and gender expression as protected categories in the judiciary’s anti-bias and harassment policies and in the inclusion of gender identity and gender expression as additional categories for which judicial bias or prejudice is prohibited under Hawaii’s version of Rule 2.3 of the Revised Code of Judicial Conduct. McKenna is currently working to make the Hawaii court rules and jury instructions non-binary and now makes her opinions non-binary.
