“We will fight for American workers including in connection with illegal mergers that substantially lessen competition for laborers.” So said Assistant Attorney General Jonathan Kanter recently. This sentiment, which once may have been outside the antitrust mainstream, is now widely shared among antitrust enforcers and policymakers alike. The U.S. antitrust agencies have now stated their intent to focus on labor markets, including in merger reviews. But courts’ limited past consideration of labor market issues provides no clear guidance. And while some economic studies purport to link concentration in labor markets with lower wages, they are not without flaws. The antitrust agencies’ shift puts labor competition in play for mergers across all industries, and healthcare is no exception. Agency staff have demonstrated a willingness to investigate and challenge even small or “under the radar” healthcare transactions, and the combination of a highly specialized workforce and past “no poach” conduct means healthcare will remain in their crosshairs. This paper analyzes how the agencies have approached labor market issues, the challenges they face in the future, and the potential steps merging healthcare parties can take to head off a potential fight with agency staff. 

By Peter Herrick, Lisl Dunlop & Matthew Hayden[1]

 

I. INTRODUCTION

“We will fight for American workers, including in connection with illegal mergers that substantially lessen compe

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