In this issue:

The FTC and DOJ have created a Draft Proposal regarding how they might analyze competitive aspects of ACOs created under ObamaCare.The Draft contains features from both conventional merger and health insurance analysis. Will this change the way conventional mergers are analyzed? We’ve asked four experts to sort and clarify this new approach from both a legal and economic viewpoint. And for a bonus article, we’re looking at the recent Siemens case decision that may shed light on the thorny issue of allocating cartel fines between parent and subsidiaries.

Antitrust Analysis and ACOs

David Argue, John Gale, May 12, 2011

Antitrust Markets and ACOs

It seems likely that the Agencies could begin to adopt Common Services and PSAs as antitrust markets more frequently in their full-fledged competition analyses. David Argue, & John Gale (Economists, Inc.)

Tasneem Chipty, May 12, 2011

Competitor Collaborations in Health Care: Understanding the Proposed ACO Antitrust Review Process

From a policy perspective, it is unclear whether the ACO review should be more or less stringent than the merger review process. Tasneem Chipty (Analysis Group, Inc.)

David Pearl, Toby Singer, May 12, 2011

A Not So Modest Proposal? The FTC/DOJ Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program

The removal of doubt regarding whether to apply the Rule of Reason seems to have shifted the emphasis forward such that the bulk of the Proposed Statement focuses on which ACOs need to undergo antitrust analysis in the first instance. Toby Singer & David Pearl (Jones Day)

Daniel Bachner, Mark Popofsky, Jane Willis, May 12, 2011

ACOs And Antitrust Enforcement: Familiar Rules Raise New Concerns

In particular, market-share based safety zones and mandatory review requirements place a premium on sound up-front antitrust analysis. Jane Willis, Mark Popofsky, & Daniel Bachner (Ropes & Gray)

Allocating Cartel Fines

Laura Atlee, Yves Botteman, May 12, 2011

Allocating Cartel Fines Among Companies of a Group

If the Commission receives the same amount of money irrespective of who in an undertaking is paying, will it care about how the fine is allocated to the various related entities? Laura Atlee & Yves Botteman (Steptoe & Johnson)