Media Mentions
2012
“Coventry Rips Sanctions Bid in OSF Hospital Merger Fight”
Law360, January 30, 2012
David Marx, William Schuman and Amy Carletti were noted as representing Rockford Health System in its proposed merger with OSF Healthcare System, a transaction now being contested by the Federal Trade Commission in federal court and in FTC administrative proceedings.
Amy J. Carletti, David Marx Jr., William P. Schuman PC, Antitrust & Competition, Trial
“Both Sides Appeal ALJ’s Initial Decision Concluding Hospital Merger Violates Law”
BNA Health Law Resource Center, January 5, 2012
David Marx, Stephen Wu, Erin Arnold and Amy Carletti in Chicago, and Jennifer Westbrook, Carrie Amezcua, Christine Devlin, Daniel Powers, James Camden and Pamela Davis in Washington were listed as McDermott’s team advising ProMedica Health System Inc. in its appeal to the full Federal Trade Commission challenging an administrative law judge’s conclusion that the proposed ProMedica/St. Luke’s merger violates the Clayton Act.
Carrie G. Amezcua, Erin Arnold, James Buchanan Camden, Amy J. Carletti, Christine G. Devlin, David Marx Jr., Daniel Powers, Jennifer L. Westbrook, Stephen Wu, Antitrust & Competition
2011
“ProMedica, FTC to Offer Closing Arguments”
The Deal Pipeline, September 29, 2011
David Marx and Stephen Wu represented client ProMedica in a case brought on by the Federal Trade Commission. Closing arguments in the in-house FTC trial were scheduled for the last week in September and will close out the administrative hearing phase of the agency’s attempt to force ProMedica to divest St. Luke’s Hospital, which ProMedica bought in 2010.
David Marx Jr., Stephen Wu, Antitrust & Competition
“Common Problem … But Three-Way Solution May Draw Legal Attention”
Modern Healthcare, August 29, 2011
David Marx, referring to the tension between healthcare reform’s emphasis on provider collaboration and the Obama administration's stricter antitrust enforcement, argued that antitrust regulators often take too narrow a focus if they reject a hospital merger. “Is it better for the community that you let one of [the merger candidates] fail and the assets are gone and you end up with one hospital anyway?” Mr. Marx asked. “That's a decision that's going to have to be made in a lot of communities around the country.”
David Marx Jr., Antitrust & Competition
“FTC Loses Lundbeck Baby Meds Fight Before 8th Circ.”
Law360, August 19, 2011
David Marx commented that the Eighth Circuit applied “a traditional merger analysis” in upholding a district court decision that rejected the FTC’s use of market definition to challenge a merger on antitrust grounds. “At least with respect to this case, the Eighth Circuit has said that if you’re going to challenge a merger in our circuit, you have to define the relevant market first,” Mr. Marx stated, adding that while new merger guidelines “reduce the importance of relevant market definition, the case law hasn’t.”
David Marx Jr., Antitrust & Competition
“E-Discovery Drives $576K Costs Levied on Plaintiffs”
Legal Intelligencer, August 2, 2011
David Marx Jr., Amanda Metts and Jennifer Smulin Diver were co-counsel for one of three artificial sweetener manufacturers in a plaintiff suit over alleged price-fixing that was dismissed by a Pennsylvania district court as upheld by the Third Circuit. Defense counsel for all three companies were also awarded e-discovery costs against the plaintiffs by the district court clerk.
Jennifer Smulin Diver, David Marx Jr., Amanda J. Metts, Antitrust & Competition, Trial
“Ill. Hospital Prevails in 7th Circ. Antitrust Case”
Law360, June 2, 2011
Stephen Wu said he and his Chicago area hospital client were “very pleased” with the Seventh Circuit’s dismissal of an antitrust lawsuit against the hospital. The court upheld a district court ruling that the hospital had a First Amendment right to lobby against the building of another medical facility nearby. “We think the panel was very thorough, analyzed the issues in-depth and came to the right conclusion,” Mr. Wu stated. David Marx, Jr. and Erin Arnold were part of the McDermott team representing the hospital.
Erin Arnold, David Marx Jr., Stephen Wu, Antitrust & Competition
“ProMedica Defends St. Luke’s Deal as FTC Trial Opens”
Deal Pipeline, May 31, 2011
David Marx, representing ProMedica at an in-house FTC antitrust hearing about its acquisition of a Toledo, Ohio hospital, asserted that “the question in this case is simple: will ProMedica be able to increase the rates it charges to commercial payors to supra-competitive levels?” Mr. Marx demonstrated that such a proposition is “simply not credible,” and that there is more than adequate competition in the market to keep prices in check.
David Marx Jr., Antitrust & Competition
“St. Luke’s says ProMedica Deal Essential to ‘Stop the Bleeding’”
Toledo Blade, February 12, 2011
David Marx told a federal district court hearing into objections over client ProMedica Health System’s acquisition of St. Luke’s Hospital in Toledo that the deal was necessary to maintain the hospital’s financial viability. “St. Luke's is not going to be able to compete successfully for the long term” without being acquired, Mr. Marx explained, adding that the hospital “doesn't have the financial wherewithal on its own to reposition itself as the market demographics change.”
David Marx Jr., Antitrust & Competition, Health - Antitrust
“ProMedica Defends Merger Bid in U.S. District Court”
Toledo Blade, February 11, 2011
David Marx, representing ProMedica Health System in a contested acquisition of a Toledo, Ohio hospital, said that for the FTC to successfully object it must show that post-acquisition health care costs will be higher than competitive rates. Mr. Marx noted that the local market is still competitive, saying, “It's not a point where ProMedica can say, 'Take us, or you won't get treated.”’ He added, however, “The complete truth is Toledo can't afford to support four independent hospitals and systems. It's just not big enough.”
David Marx Jr., Antitrust & Competition, Health - Antitrust
“Federal Trade Commission Wants ProMedica, St. Luke’s Deal on Hold”
Toledo Blade, January 14, 2011
David Marx, Jr., who represents a health system that seeks to acquire St. Luke’s hospital in Toledo, Ohio, said of the FTC’s effort to halt the purchase pending assessment of its impact on health care costs that “the government is not legally entitled to the temporary restraining order that they seek.” Adding that a grant of the order would leave no incentive for his client to make an agreed-upon investment in the hospital, Mr. Marx said such an outcome “will not only harm St. Luke’s, but it will harm the community St. Luke’s serves.”
David Marx Jr., Antitrust & Competition, Health - Antitrust, Trial
“Plaintiffs Appeal Toss of Paper Price-Fixing Suit”
Law360, January 7, 2011
David Marx, speaking on the efforts of commercial paper direct purchasers to appeal the dismissal of their antitrust lawsuit against McDermott client Stora Enso, said that the company “is disappointed that the plaintiffs have chosen to appeal Judge Underhill’s thorough and well reasoned opinion,” rendered in Connecticut federal district court. He added that McDermott and Stora Enso “are confident that the Second Circuit will affirm [Judge Underhill’s] grant of summary judgment on appeal.”
David Marx Jr., Antitrust & Competition, Trial
2010
“McDermott Eliminates Antitrust Class Action for Paper Company”
AmLaw Litigation Daily, December 22, 2010
David Marx, of the McDermott team that secured federal court summary judgment on direct purchaser antitrust claims against global paper manufacturer Stora Enso, declared on behalf of his client that “we’re gratified by the [court’s] decision.” McDermott lawyers had won a full 2007 acquittal on criminal antitrust charges against the company, and moved for summary judgment because, after six years of litigation, the plaintiffs had managed to produce only circumstantial evidence of a pricing conspiracy. Mr. Marx said both decisions made it clear that it was a mistake from the beginning for the Justice Department to have brought the charges.
David Marx Jr., Antitrust & Competition, Trial
“Stora Enso Gets Paper Antitrust Action Tossed”
Law360, December 15, 2010
David Marx, Jr., as co-counsel for Finnish paper supplier Stora Enso Oyj, said that his client was “very pleased” with the action by the U.S. District Court for the District of Connecticut to throw out a class action price-fixing lawsuit against the company. Given that two cases remain against Stora Enso, Mr. Marx added that the court’s decision “puts this investigation and litigation one step closer to being finally concluded.”
David Marx Jr., Antitrust & Competition, Trial
“DOJ Steps Up Enforcement With Two Big Cases”
National Law Journal, November 1, 2010
David Marx, Jr., observed that the U.S. Justice Department’s antitrust lawsuit against Blue Cross Blue Shield in Michigan was facilitated when Blue Cross abandoned an attempted merger after DOJ threatened to block it. Investigation of that deal meant DOJ had ample information about the company and its marketplace and, as Mr. Marx noted, “Anytime you let the government into your house, you never know what they might find.”
David Marx Jr., Antitrust & Competition
“Antitrust Suit Puts Favored Nation Users on Notice”
Law360, October 29, 2010
David Marx, Jr., said that the Justice Department’s antitrust lawsuit against Blue Cross Blue Shield of Michigan for rate agreements known as most favored nation clauses has broader implications. “There’s no question but that the filing of this complaint was intended to send a message – particularly to participants in the health care field who use most favored nation clauses – that they should tread carefully” with regard to anti-competitive impact and the government’s “renewed interest in their potential for misuse,” Mr. Marx stated.
David Marx Jr., Antitrust & Competition
“The High Cost of Fine Print”
Modern Healthcare, October 25, 2010
David Marx, Jr., noted that the U.S. Justice Department’s Michigan lawsuit over rate agreements between a major insurer and hospitals “signals they’re still in the enforcement business as it relates to healthcare insurance.” Speaking of such arrangements, Mr. Marx said, “They’re not per se anti-competitive, but depending on who is using them and how they are used, they have the potential to have anti-competitive effects.”
David Marx Jr., Antitrust & Competition
David Marx discussed for The Wall Street Journal (May 27) the antitrust implications from the efforts by both Hertz and Avis to acquire another leading rental car company, the Dollar Thrifty Automotive Group. “If prices are going to go up as a result of this transaction, no matter how [the companies] brand themselves, the FTC will see this transaction as bad for competition,” Mr. Marx stated. “The labels are way less important than actual prices.”
David Marx Jr., Antitrust & Competition
David Marx discussed government antitrust investigations of hospital and physician networks in an April 29 Boston Globe story (which also appeared May 2 in the Portfolio.com “Daily Brief”) about a specific such action in Massachusetts. Mr. Marx said that many investigations are closed without a determination that antitrust laws were violated, but noted that “networks that have been found to violate the law have been required to change the way they operate” – for example, by eliminating anti-competitive clauses in contracts with physicians and insurers. “You’re seeing more aggressive enforcement under this administration,” Mr. Marx added. “It’s a priority for the federal government because health care costs are significant, and there is a sense that competition is good.”
David Marx Jr., Antitrust & Competition, Health - Antitrust
David Marx was quoted in a February 19 Law360 story concerning a New York federal judge’s rejection of class certification for a group of nurses whose lawsuit alleges that a group of hospitals in upstate New York violated antitrust laws by conspiring to keep the nurses’ wages low. “We are happy that the judge reaffirmed his previous ruling that even a narrower class could not be certified as to the issues of injury-in-fact and damages,” declared Mr. Marx, who represents an Albany medical center that is one of the defendant in the suit. He added that Judge McAvoy’s ruling was particularly satisfying because it “rejected the plaintiffs’ belated attempt to seek certification of a different class, both because it was procedurally improper and factually unjustified.”
David Marx Jr., Health - Antitrust, Trial
David Marx was quoted by Law360 on February 18 concerning a Chicago federal court’s decision granting summary judgment in favor of Mr. Marx’s hospital client in an antitrust suit brought by developer and operator of medical centers. The suit had contended that the hospital had lobbied local officials in Lake Bluff, IL to reject a building permit for a new medical center. “This case reaffirms the principle that a land or zoning dispute, which frequently pits one competitor against another – like this case did – doesn’t necessarily constitute an antitrust case,” Mr. Marx said. He added that the case “helps illustrate the difference between legislative conduct and adjudicative conduct.”
David Marx Jr., Health - Antitrust, Trial
2009
David Marx, Jr., was quoted April 13 on AmericanLawyer.com concerning antitrust litigation against four major candy manufacturers. Referring to price-fixing allegations against the companies, Mr. Marx declared, "You can't just infer the existence of a price-fixing conspiracy from the fact that independent competitors in concentrated industries independently chose to raise their prices."
David Marx Jr., Antitrust & Competition, Trial
2008
David Marx was quoted in the December 30 issue of Global Competition Review in an article regarding Inverness Medical Innovations' settlement with the Federal Trade Commission (FTC) on charges that the company illegally sought to maintain its monopoly on pregnancy tests by acquiring assets from competitor ACON Laboratories. Inverness must sell the assets, including an intellectual property license for dye technology. "With this decision, the FTC shows it remains committed to enforcing antitrust laws in the health-care sector," said Mr. Marx. "The FTC has ensured that the market has returned to an even more competitive state than it was before Inverness acquired ACON's assets," he added.
David Marx Jr., Antitrust & Competition, Antitrust - IP, Health, Health - Antitrust, Intellectual Property
David Marx was quoted in the March issue of HealthLeaders in an article regarding the health industry's hospital consolidation wave. Mr. Marx discussed the effects of the FTC's investigation of a 2000 Evanston Northwestern Healthcare (ENH) merger that created a three-hospital system along Chicago's North Shore. Because the ENH case was so unusual in that the FTC waited so long after the merger to investigate, Mr. Marx noted that, "It is not discouraging anybody from doing what they think they need to do to be competitive in the marketplace, and that includes consolidations and collaborative ventures where appropriate." Mr. Marx warned, however, to keep the consumer in mind and remember that the FTC can challenge a merger after the fact, "…think about it from the perspective of the consumer because that's the way the agencies are going to look at the transaction and evaluate it," he said.
David Marx Jr., Health, Health - Antitrust, Hospital and Health System Transactions
David Marx was quoted in the January 7 issue of Modern Healthcare in an article regarding Mercy Medical Center's claim that the Aultman Health Foundation has sought to eliminate competition and to attain monopoly power over hospital care in Stark County, Ohio. Mr. Marx, an antitrust lawyer, commented on vertical integration and its effect on competition in the hospital care market. "Particularly in concentrated markets with relatively few players, it is somewhat of a minefield to compete in all segments of the market, both delivery and insurance," he said. "The critical issue will be whether (Mercy) is being foreclosed from so much of the potential marketplace that it will be (unable to compete). That's a pretty high burden to meet," Mr. Marx added.
David Marx Jr., Government Strategies
2007
David Marx was quoted in the February 17 issue of Modern Healthcare in regard to the Federal Trade Commission's request for additional information on Psychiatric Solutions' proposed acquisition of Horizon Health Corp. "It's indicative of an issue, but not necessarily indicative of a problem," commented Mr. Marx.
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
2003
David Marx was quoted in the February 17 issue of Modern Healthcare in regard to the Federal Trade Commission identifying health care antitrust as a priority. "To the extent that there is speechifying that isn't promptly followed with enforcement actions, whatever deterrent effects that might be created are lost, particularly, if at the end the day, the only remedy is go forth and sin no more," commented Mr. Marx.
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
David Marx was quoted in the February 10 issue of Modern Healthcare in an article addressing federal antitrust regulators increasing paying attention to the recent wave of physician job actions aimed at pressuring state legislatures to reform tort laws. Mr. Marx commented that "….when doctors make statements publicly so competitors hear, it becomes a form of signaling….the real issue is where do you cross the line from protected speech to concerted illegal actions."
David Marx Jr., Antitrust & Competition, Health - Antitrust
David Marx was quoted in the January 2 issue of the Miami Daily Business Review regarding prosecuting executives under the rising antitrust laws. Mr. Marx commented on Gary Spratling, the Department of Justice's antitrust division's deputy assistant attorney general, "…[He] pushed for bigger cases and international cooperation and converted the DOJ's corporate amnesty provision into the 'business development program' of the antitrust division." Mr. Marx's quote also appeared in the January issue of Corporate Counsel.
David Marx Jr., Antitrust & Competition
2002
David Marx was quoted in the November 18 issue of The National Law Journal in an article addressing the increased prosecution of executives in regard to antitrust violations. Mr. Marx commented on Gary Spratling, the antitrust division's deputy assistant attorney general in the 1990s who, "pushed for bigger cases and international cooperation and converted the Department of Justice's corporate amnesty provision into the 'business development program' of the antitrust division."
David Marx Jr., Antitrust & Competition
David Marx was quoted in the September 9 issue of Mergers & Acquisitions Report in regard to the FTC's recent decision to "reinvigorate the Commission's hospital merger program," with the creation of a merger litigation task force. Mr. Marx said that since the FTC hasn't won a case in court on a hospital merger in nearly a decade, most acquiring firms are not concerned about acquisition-related issues as a result of the new task force.
David Marx Jr., Health, Health - Antitrust, Health - M&A, Mergers & Acquisitions
David Marx was quoted in the August 9 issue of The New York Times in regard to the recent statement by the chairman of the Federal Trade Commission (FTC), which proclaimed his agency planned to step up scrutiny of past hospital mergers and groups of doctors to make sure they had not joined forces simply to fix prices. This new focus of the FTC, largely due to the increase of medical costs, will be determining whether previous hospital mergers have allowed them to charge more of if they have actually benefited patients. In regard to the agency's focus on the medical industry, Mr. Marx commented, "The FTC appears to be reinvigorated. Chairman Muris views health care as very, very important, and I think he is exerting considerable influence."
David Marx Jr., Health, Health - M&A, Mergers & Acquisitions
David Marx and James Sneed were quoted in the May 20 issue of Managed Care Outlook in regard to a few recent settlements between physician groups and the Federal Trade Commission regarding price fixing and other anti-competitive behavior. Mr. Marx commented that, "Most of the cases arise from non-risk contracts, where the physician network is supposed to be using a modified messenger model for negotiations, but in actual practice appears to be engaging in collusive price fixing activities." Mr. Sneed commented that the antitrust settlements are not likely to last and that the FTC’s recent actions will deter other doctors.
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
David Marx was quoted in an article addressing the U.S. Justice Department's Antitrust Division's recent decision to disband its 17-lawyer healthcare task force, published in the February 11 issue of Modern Healthcare. David commented that the state attorney generals' offices, who will now handling the responsibility of the task force, are sometimes "in deep hibernation, but some are not." He also mentioned that the antitrust lawyers in the state office are increasingly educated, trained and experienced.
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
David Marx was quoted in the January 14 issue of Modern Healthcare in regard to the recent reorganization at the U.S. Justice Department, which eliminated the antitrust division’s 17-attorney health care task force. Mr. Marx pointed out that the FTC nor the Justice Department has prevailed in a hospital merger court case in 10 years, "Hospitals won that war."
David Marx Jr., Antitrust & Competition, Health - Antitrust
2001
David Marx was quoted in the December 3 issue of Modern Healthcare regarding the tendency of government antitrust regulators not to get involved in cases they don't see, which serve the broad public interest. The focus of the article was the rise of antitrust lawsuits by commercial health insurers against hospitals and hospital-owned managed care plans.
David Marx Jr., Health, Health - Antitrust
David Marx was quoted in the November 19 issue of Modern Healthcare in regard to a federal consent decree forbidding contract negotiations between independent doctors and insurers for the Federation of Physicians and Dentists in Tallahassee, Florida.
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
David Marx was quoted in the October 29 issue of Modern Healthcare in response to the U.S. Justice Department’s decision to bar a Florida-based labor organization from acting as a collective-bargaining agent for competing doctors. Mr. Marx considers the decision a defeat for physicians, "who might consider unions to be a potential safe haven for otherwise collective negotiations with payers."
David Marx Jr., Antitrust & Competition, Health, Health - Antitrust
