Antitrust Virtual Conference in Healthcare - FEBRUARY 10-12, 2021 - American Bar Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Antitrust
in Healthcare
Virtual Conference
CO-SPONSORED BY THE ABA ANTITRUST LAW SECTION
AND THE ABA HEALTH LAW SECTION
FEBRUARY 10–12, 2021
Additional Co-Sponsor:
Science & Technology Law Section
Antitrust in Healthcare Virtual Conference
February 10-12, 2021
Join your colleagues for the Antitrust in Healthcare Virtual Conference, February 10-12, 2021.
The Antitrust in Healthcare Conference continues a rich tradition with this jointly sponsored program
from the Antitrust Law and Health Law Sections. Healthcare providers, insurers, and pharmaceutical
and medical device manufacturers continue to be in the antitrust spotlight. Recently, federal and state
enforcers have filed multiple suits challenging the mergers and business conduct of a wide variety of
healthcare entities and their executives. These actions and private antitrust litigation have targeted
contracts, pricing, mergers, protection of data and other potentially anticompetitive activities. Our
expert faculty of leading government attorneys, private counsel representing both plaintiffs and
defendants, international enforcers, and economists will provide practical advice, insights, and policy
recommendations. Please join us to receive the most timely and significant information on key antitrust
issues affecting the healthcare industry.
The Antitrust in Healthcare Virtual Conference will be held on the Convene virtual conference
platform and the sessions will be recorded. You’ll receive an email from
HLSevents@americanbar.org, which will provide you with a unique link to access the platform.
Please note: CLE credit is not available for recorded programs of this conference. CLE credit is
available only by attending the live presentations.
This year, we’re also proud to use Crowd Compass as the event app for the Antitrust in
Healthcare Virtual Conference! Crowd Compass places conference information at your fingertips!
After you register, stay tuned for an email from HLSevents@americanbar.org with more details.
CONTENTS
2 Planning Committee
3 Schedule At-a-Glance
4 Conference Agenda
10 Faculty
12 Conference/CLE Information
13 Registration
14 Coming Events
1
2020-2021 American Bar Association 2020-2021 American Bar Association
Antitrust Law Section Chair Health Law Section Chair
Gary P. Zanfagna, Hal Katz,
Morris Plains, NJ Husch Blackwell, Austin, TX
Antitrust in Healthcare Virtual Conference Planning Committee
Co-Chairs:
Christi Braun, Peter Mucchetti,
Vanderbilt University Medical Center, Nashville, TN Clifford Chance, Washington, DC
• Dale Grimes, Bass, Berry & Sims PLC, Nashville, TN
• Emily Lentz, Cahill, Gordon & Reindel LLP, New York, NY
• Lauren Rackow, Cahill, Gordon & Reindel LLP, New York, NY
Health Law Section Staff Antitrust Law Planning Staff
Simeon Carson, Section Director Joanne Travis, Section Director
Carol Simmons, Associate Director Margaret Stafford, Meetings Director
Daryl C. Taylor, CMP, Senior Meeting Planner Mary Ernst, Program Assistant
Jason Billups, Program Specialist Guysheena Gibson, Program Specialist
Paige Rodenberg, Meeting Assistant Alexander Hawley, Program Specialist
Sara Calvillo, Administrative Assistant Maxim Sklodowski, Program Assistant
Andrea Whittington, Program Specialist
2
Schedule At-a Glance
Wednesday, February 10, 2021 – Day 1
9:00 – 9:10 am CST Welcome
9:15 – 10:15 am CST European Enforcers Roundtable (Non-CLE)
10:30 – 11:30 am CST Going Viral: Burning Healthcare and Pharmaceuticals Issues
11:45 am – 12:45 pm CST Healthcare Merger Recap: Managing Multiple Regulatory
Reviews
1:00 – 2:00 pm CST Antitrust Legislation: New Powers for State and Federal
Enforcers
2:15 – 3:15 pm CST Nibbles and Chatter (Non-CLE)
Thursday, February 11, 2021 – Day 2
9:00 – 9:30 am CST Discussion with the U.S. Department of Justice (Non-CLE)
9:45 – 10:45 am CST Let’s Get an Understanding: Criminal Antitrust Enforcement
in the Provider Space
11:00 am – 12:00 pm CST Anti-Steering and Anti-Tiering Provisions in Healthcare
Contracts
12:15 – 1:15 pm CST Difficult Deals and Tough Situations: Lessons Learned from
Anthem-Cigna
1:30 – 2:30 pm CST Now Trending: Vertical Healthcare Deals
Friday, February 12, 2021 – Day 3
9:00 – 9:30 am CST Discussion with the Federal Trade Commission (Non-CLE)
9:45 – 10:45 am CST What’s New in Reverse Payment Litigation
11:00 am – 12:00 pm CST Just What the Doctor Ordered? FTC Treatment of Medical
Device Mergers
12:15 – 1:15 pm CST Does the Innovation End Justify the Exclusionary Means?
1:30 – 2:30 pm CST Big Data Comes to a Healthcare Market Near You
3
CONFERENCE AGENDA
Wednesday, February 10 – Day 1
9:00 – 9:10 am CST
Welcome
• Christi Braun, Vanderbilt University • Peter Mucchetti, Clifford Chance,
Medical Center, Nashville, TN Washington, DC
9:15 – 10:15 am CST
European Enforcers Roundtable (Non-CLE)
Join us for an update on significant developments impacting healthcare from across the pond. Topics
will include the latest updates in pharmaceuticals, data, and changes due to COVID-19.
Moderator:
• E. Bill Batchelor, Skadden Arps Slate Meagher & Flom LLP, Brussels, BE
Speakers:
• Paul Csiszar, Director of Basic Industries, Manufacturing and Agriculture, DG Comp,
European Commission, Brussels, BE
• Ann Pope, Senior Director, Competition and Markets Authority, London, UK
• Martijn Snoep, Chairman of the Board, The Netherlands Authority for Consumers and
Markets (ACM), The Hague, NL
10:30 – 11:30 am CST
Going Viral: Burning Healthcare and Pharmaceuticals Issues
Recent enforcement actions involving federal and state governments and updated position or guidance
documents, including the recently issued DOJ/FTC Vertical Merger Guidelines and DOJ's Merger
Remedies Manual, will greatly affect healthcare merger enforcement and remedies.
Our experts will explore DOJ, FTC, and State Attorneys General enforcement actions involving
healthcare providers, payers, pharmaceutical manufacturers, and biotech firms, including the DOJ's
challenge to Geisinger's partial acquisition of Evangelical Community Hospital; the FTC suit against
the Jefferson/Einstein merger; and other activities to prepare attendees going forward.
Moderator:
• David Maas, Davis Wright Tremaine LLP, Seattle, WA
Speakers:
• Sarah Oxenham Allen, Chair, NAAG Antitrust Taskforce; Senior Assistant Attorney General
and Antitrust Unit Manager, Office of the Attorney General, Richmond, VA
• Thomas Greaney, UC Hastings College of the Law, San Francisco, CA
• Megan Jones, Hausfeld, San Francisco, CA
4Wednesday, February 10 (continued)
11:45 am – 12:45 pm CST
Healthcare Merger Recap: Managing Multiple Regulatory Reviews
Many healthcare 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.
Our panelists 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.
Moderator:
• Lisl J. Dunlop, Axinn Veltrop & Harkrider LLP, New York, NY
Speakers:
• Victor J. Domen Jr., Norton Rose Fulbright US LLP, Washington, DC
• Jesus Alvarado-Rivera, U.S. Department of Justice, Antitrust Division, Washington, DC
1:00 – 2:00 pm CST
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 multiple states leading or
enacting such measures. This session will cover updates on the latest antitrust bills pending before
Congress and state legislatures.
Moderator:
• Adam J. Biegel, Alston & Bird LLP, Washington, DC
Speakers:
• Amanda G. Lewis, Counsel on Detail, Federal Trade Commission to the United States House
of Representatives, Washington, DC
• Lumi Nodit, Assistant Attorney General, Washington Attorney General's Office, Antitrust
Division, Seattle, WA
• D. Daniel Sokol, University of Florida, Levin College of Law, Gainesville, FL
2:15 – 3:15 pm CST
Nibbles and Chatter (Non-CLE)
Join our virtual networking event for a wonderful opportunity to continue to the conversation and
make connections with registered attendees of diverse backgrounds.
5Thursday, February 11 – Day 2
9:00 – 9:30 am CST
Discussion with the U.S. Department of Justice (Non-CLE)
Moderator:
• Christi Braun, Vanderbilt University Medical Center, Nashville, TN
Speaker:
• Eric Welsh, Chief, Healthcare and Consumer Products Section, Antitrust Division
U.S. Department of Justice, Washington, DC
9:45 – 10:45 am CST
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?
Our experts 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.
Moderator:
• H. Holden Brooks, Foley & Lardner LLP, Milwaukee, WI
Speakers:
• Jim Fredricks, Chief, Washington Criminal II Section, U.S. Department of Justice, Antitrust
Division, Washington, DC
• Casey E. Lucier, McGuire Woods, Richmond, VA
• Lisa M. Phelan, Morrison & Foerster LLP, Washington, DC
11:00 am – 12:00 pm CST
Anti-Steering and Anti-Tiering Provisions in Healthcare Contracts
Anti-steering and anti-tiering clauses in healthcare contracts between hospitals and insurers are
receiving greater scrutiny from the DOJ. This session will analyze the pro-competitive reasons for why
hospitals and insurers negotiate such contracts, as well as how these arrangements can allow a
dominant hospital to limit the growth of a competitive provider market.
Moderator:
• Mark Horoschak, Bradley, Charlotte, NC
6Thursday, February 11 (continued)
Speakers:
• Lona Fowdur, Economists Incorporated, Washington, DC
• Catherine Reilly, U.S. Department of Justice, Washington, DC
• Lucas R. Smith, Bass Berry & Sims PLC, Nashville, TN
12:15 – 1:15 pm CST
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.
Our presenters 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 AG
antitrust reviews; and advising clients on integration planning and information exchange during a
lengthy pre-closing period.
Moderator:
• Alexis V. DeBernardis, Crowell & Moring LLP, Washington, DC
Speakers:
• Jan Rybnicek, Freshfields, Washington, DC
• Margaret A. Ward, Jones Day, San Francisco, CA
1:30 – 2:30 pm CST
Now Trending: Vertical Healthcare Deals
The ongoing trend of healthcare company amalgamations that offer diverse and complementary
services spans the last several years. The recently released DOJ/FTC Vertical Merger Guidelines is
welcomed by corporations and counsel as providing more transparency about the agencies’ analytical
decision making process in such transactions.
Our panel of private sector and government lawyers will consider the antitrust implications of vertical
healthcare deals, how helpful the guidelines will be in practice, and the extent to which the guidelines
may facilitate vertical transactions going forward.
Moderator:
• January Kim, Linklaters LLP, Washington, DC
Speakers:
• William E. Berlin, Hall, Render, Killian, Heath & Lyman, P.C., Washington, DC
• Nandu Machiraju, Federal Trade Commission, Washington, DC
• Jesse Solomon, Davis Polk & Wardwell LLP, New York, NY
7Friday, February 12 – Day 3
9:00 – 9:30 am CST
Discussion with the Federal Trade Commission (Non-CLE)
Moderator:
• Peter Mucchetti, Clifford Chance, Washington, DC
Speaker:
• Mark Seidman, Assistant Director for Mergers IV Division, Bureau of Competition
Federal Trade Commission, Washington, DC
9:45 – 10:45 am CST
What’s New in Reverse Payment Litigation
The seminal Supreme Court decision FTC v. Actavis has prompted expansive litigation, including
several new cases filed in the last year, while other actions have resulted in settlements totaling
hundreds of millions of dollars.
This session will examine how courts and parties continue to grapple with unresolved issues, including
how to define an unlawful “payment”, the strength of underlying patent litigation, and whether
acceleration clauses may be unlawful.
Moderator:
• Brendan Coffman, Wilson Sonsini Goodrich & Rosati, Washington, DC
Speakers:
• Eric Grannon, White & Case LLP, Washington, DC
• Robin A. Van Der Meulen, Labaton Sucharow LLP, New York, NY
11:00 am – 12:00 pm CST
Just What the Doctor Ordered? FTC Treatment of Medical Device Mergers
The Federal Trade Commission scrutinized multiple recent high-profile mergers of medical device
companies. Major transactions – including GE/Danaher, Ossur Americas Holdings/College Park
Industries, Boston Scientific/BTG, and Fresenius Medical Care/NxStage Medical – all have undergone
lengthy reviews.
Our panelists will discuss the number of competitors needed to prevent a lessening of competition, the
importance of potential competition, vertical aspects of mergers, and other key competitive issues in
the medical device industry.
Moderator:
• Michael Van Arsdall, Clifford Chance LLP, Washington, DC
8Friday, February 12 (continued)
Speakers:
• Stacy E. Frazier, Executive Counsel, Competition Law and Policy, General Electric,
Washington, DC
• Steve Mohr, Acting Deputy Assistant Director, Mergers I, Federal Trade Commission,
Washington, DC
12:15 – 1:15 pm CST
Does the Innovation End Justify the Exclusionary Means?
Patent and antitrust law recognize that some exclusion of competitors can benefit innovation. But
which is the better driver of innovation: competition or a period of limited exclusion? What does the
latest empirical work show, especially in sectors characterized by both innovation and dominance,
such as pharmaceuticals and medical devices? How should courts weigh innovation defenses to
exclusionary conduct?
Our presenters will highlight the practices of delaying or foreclosing competition and the possible
responses to these actions.
Moderator:
• Craig G. Falls, Dechert LLP, Washington, DC
Speakers:
• Eileen Cole, White & Case LLP, Washington, DC
• Richard Gilbert, University of California at Berkeley, Berkeley, CA
1:30 – 2:30 pm CST
Big Data Comes to a Healthcare Market Near You
Big data in healthcare 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?
Our subject matter experts 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.
Moderator:
• Maria Salgado, Cornerstone Research, San Francisco, CA
Speakers:
• Lucia Savage, Omada Health, San Francisco, CA
• Dan Gilman, Federal Trade Commission, Washington, DC
9FACULTY
Sarah Oxenham Allen Paul Csiszar
Chair, NAAG Antitrust Taskforce; Senior Director of Basic Industries, Manufacturing and
Assistant Attorney General and Antitrust Unit Agriculture, DG Comp
Manager European Commission
Office of the Attorney General Brussels, BE
Richmond, VA
Alexis V. DeBernardis
Jesus Alvarado-Rivera Crowell & Moring LLP
U.S. Department of Justice Washington, DC
Antitrust Division
Washington, DC Victor J. Domen Jr.
Norton Rose Fulbright US LLP
E. Bill Batchelor Washington, DC
Skadden Arps Slate Meagher & Flom LLP
Brussels, BE Lisl J. Dunlop
Axinn Veltrop & Harkrider LLP
William E. Berlin New York, NY
Hall, Render, Killian, Heath & Lyman, P.C.
Washington, DC Craig G. Falls
Dechert LLP
Adam J. Biegel Washington, DC
Alston & Bird LLP
Washington, DC Lona Fowdur
Economists Incorporated
Christi Braun Washington, DC
Vanderbilt University Medical Center
Nashville, TN Stacy E. Frazier
Executive Counsel, Competition Law and Policy
H. Holden Brooks General Electric
Foley & Lardner LLP Washington, DC
Milwaukee, WI
Jim Fredricks
Brendan Coffman Chief, Washington Criminal II Section
Wilson Sonsini Goodrich & Rosati U.S. Department of Justice, Antitrust Division
Washington, DC Washington, DC
Eileen Cole Richard Gilbert
White & Case LLP University of California at Berkeley
Washington, DC Berkeley, CA
10FACULTY (continued)
Dan Gilman Steve Mohr
Federal Trade Commission Acting Deputy Assistant Director
Washington, DC Mergers I
Federal Trade Commission
Eric Grannon Washington, DC
White & Case LLP
Washington, DC Peter Mucchetti
Clifford Chance
Thomas Greaney Washington, DC
UC Hastings College of the Law
San Francisco, CA Lumi Nodit
Assistant Attorney General, Washington
Mark Horoschak Attorney General's Office, Antitrust Division,
Bradley Seattle, WA
Charlotte, NC
Lisa M. Phelan
Megan Jones Morrison & Foerster LLP
Hausfeld Washington, DC
San Francisco, CA
Ann Pope
January Kim Senior Director, Competition and Markets
Linklaters LLP Authority
Washington, DC London, UK
Amanda G. Lewis Catherine Reilly
Counsel on Detail, Federal Trade Commission U.S. Department of Justice
United States House of Representatives Washington, DC
Washington, DC
Jan Rybnicek
Casey E. Lucier Freshfields
McGuire Woods Washington, DC
Richmond, VA
Maria Salgado
David Maas Cornerstone Research
Davis Wright Tremaine LLP San Francisco, CA
Seattle, WA
Lucia Savage
Nandu Machiraju Chief Privacy & Regulatory Officer
Federal Trade Commission Omada Health
Washington, DC San Francisco, CA
11FACULTY (continued)
Mark Seidman Jesse Solomon
Assistant Director for Mergers IV Division Davis Polk & Wardwell LLP
Bureau of Competition New York, NY
Federal Trade Commission
Washington, DC Michael Van Arsdall
Clifford Chance LLP
Lucas R. Smith Washington, DC
Bass Berry & Sims PLC
Nashville, TN Robin A. Van Der Meulen
Labaton Sucharow LLP
Martijn Snoep New York, NY
Chairman of the Board
The Netherlands Authority for Consumers and Margaret A. Ward
Markets (ACM) Jones Day
The Hague, NL San Francisco, CA
D. Daniel Sokol Eric Welsh
University of Florida Chief, Healthcare and Consumer Products
Levin College of Law Section, Antitrust Division
Gainesville, FL U.S. Department of Justice
Washington, DC
12CONFERENCE INFORMATION
Online registration: ambar.org/AT2021
Hashtag: #AT2021
Cancellation Policy
A refund will be issued upon written cancellation received no later than January 29, 2021, minus a $75
handling charge for each registration. Cancellations received after this date cannot be refunded but
substitutions are encouraged. The ABA reserves the right to cancel any program and assumes no
responsibility for personal expenses.
CLE Credit
The ABA will seek 11.0 hours of CLE credit in 60-minute states, and 13.20 hours of CLE credit in 50-
minute states for this program. Credit hours are estimated and are subject to each state’s approval and
credit rounding rules. Please visit the program website at ambar.org/AT2021 for program CLE details
or visit www.americanbar.org/mcle for general information on CLE at the ABA.
Antitrust, Health Law, and Science & Technology Law Section Membership
As an added bonus, the member’s tuition rate will be available to registrants who become new
members of the ABA’s Antitrust, Health Law, or Science & Technology Law Sections. Membership
dues are not deductible as charitable contributions for federal income tax purposes, but such dues may
be deductible as a business expense. American Bar Association membership is required to become a
member of the Antitrust, Health Law, and/or Science & Technology Law Sections.
Tax Deduction for Educational Expenses
An income tax deduction may be allowed for educational expenses undertaken to maintain or improve
professional skills. This includes registration fees, travel, meals, and lodging expenses. (See Treas.
Reg. 1.162-5) (Coughlin vs. Commissioners, 203 F. 2d 307).
Services for Persons with Disabilities
If special arrangements are required for an individual with a disability to attend this program, please
contact the Health Law Section staff at (312) 988-5146 or HLSevents@americanbar.org.
13Registration Information
Online only: ambar.org/AT2021
REGISTRATION FEES Full Conference Price:
Antitrust Member, Health Law Member or SciTech Member $199
In-House Counsel/Solo Practitioner $95
Government/Academic (must be full time) $95
Law Student $45
ABA Member - Non-Antitrust, Health Law Section or SciTech $299
Member
General Attendee $450
Please contact the Health Law Section at (312) 988-5176, or email HLSevents@americanbar.org, with
any questions about the registration process.
14Antitrust Law Section
UPCOMING EVENTS
Antitrust Virtual Spring Meeting
March 23-26, 2021
ambar.org/atspring
Antitrust Masters Course
May 20-22, 2021
Philadelphia, PA
Global Private Litigation Conference
June 14, 2021
Copenhagen
Consumer Protection Conference
July 2021
Colorado
ambar.org/atconsumer
ABA Annual Meeting
August 4-10, 2021
Please contact Maxim.Sklodowski@americanbar.org for more information or ambar.org/atevents for Antitrust
conference information.
Health Law Section
UPCOMING EVENTS
22nd Annual Conference on Emerging Issues in Healthcare Law
March 8-12, 2021
ABA Annual Meeting
August 4-10, 2021
Physicians Legal Issues: Healthcare Delivery & Innovation Conference
September 23-25, 2021
Washington Health Law Summit
December 6-7, 2021
Please contact the Health Law Section at (312) 988-5176, or email HLSevents@americanbar.org, for more
information.
15You can also read
