iOn April 30, 2020, the US Department of Justice Antitrust Division (DOJ) announced that it had settled a criminal antitrust case against a group of physicians that has resulted in the payment of a $100 million penalty. Medical providers, take notice.
This action by the DOJ was brought against the Florida Cancer Specialists & Research Institute, LLC (FCS), an oncology group headquartered in Fort Myers, Florida. FCS was charged with conspiring to allocate medical and radiation oncology treatments for cancer patients in Southwest Florida.[1] FCS is one of the largest hematology and oncology practices in Florida, according to the Florida Attorney General’s Office (AGO). Public records filed by the DOJ state that beginning as early as 1999 and continuing through at least as late as September 2016, FCS participated in a criminal antitrust conspiracy with a competing oncology group in Southwest Florida to suppress and eliminate competition. [2] The agreement allocated medical oncology treatments for cancer patients to FCS and radiation oncology treatment for cancer patients to the co-conspirator, in violation of the Sherman Act. This agreement allowed the oncology groups to operate with minimal competition in Southwest Florida.
The press release from the DOJ noted that “[t]his charge is the first in the department’s ongoing investigation into market allocation in the oncology industry.” As part of the settlement, FCS signed a Deferred Prosecution Agreement (DPA). With the signing of the DPA, FCS agreed to a number of terms: (1) the statutory maximum penalty of $100 million; (2) complete continued cooperation with the Antitrust Division’s ongoing investigation; (3) waiver of non-compete provisions with any current or former oncologist or other worker who wishes to open an oncology practice in Southwest Florida; and (4) implementation and maintenance of a compliance program designed to prevent and detect antitrust violations throughout its operations. The AGO reached a simultaneous agreement with FCS settling a civil antitrust matter against the group for $20 million.[3]
The charges, in broad terms, are consistent with the DOJ’s increased focus on criminally prosecuting price fixing and market allocation conspiracies. That said, antitrust enforcement against medical providers is a new frontier in the Antitrust Division’s increasing use of its criminal enforcement power.[4] This action by the DOJ is an important signal that the Antitrust Division may be taking a hard look at the conduct of medical providers and physicians. The settlement’s requirement that medical providers waive their non-compete provisions may also indicate a renewed interest in scrutinizing such provisions. The $100 million penalty resulting from the charges should serve as a reminder of the serious consequences of Sherman Act violations, with the DOJ having sought and obtained the maximum statutory penalties that can be obtained against companies. Individuals, too, can be found criminally culpable under Section 1 of the Sherman Act, risking jail time of up to 10 years and a fine of up to $1 million. The DOJ’s decision to defer criminal charges against FCS is also a useful reminder of the Antitrust Division’s historic leniency offered to violating companies who “win the race,” being the first to blow the whistle on cartel behavior.[5]
In short, medical providers would do well to take note of the DOJ’s action and maintain vigilance in ensuring compliance with the antitrust laws. Now is a good time for medical providers to take stock of their compliance programs, and amend them as necessary to ensure that robust measures are in place that could prevent even unwitting violations of the antitrust laws. As an additional incentive, the Division has recently announced expanded protections to companies with robust compliance programs.[6]
[1] U.S. Dep’t of Justice, Antitrust Division, “Leading Cancer Treatment Center Admits to Antitrust Crime and Agrees to Pay $100 Million Criminal Penalty,” (April 2020), https://www.justice.gov/opa/pr/leading-cancer-treatment-center-admits-antitrust-crime-and-agrees-pay-100-million-criminal.
[2] U.S. v. Florida Cancer Specialists & Research Institute, LLC, Case No. 20, Deferred Prosecution Agreement (M.D. Flor., Apr. 30, 2020).
[3] Florida Att’y Gen., “Attorney General Moody Announces Multimillion-Dollar Agreement with Statewide Florida Oncology Practice,” (April 2020).
[4] Although there have been recent federal criminal antitrust prosecutions brought against pharmaceutical manufacturers and distributors, we only know of two DOJ criminal antitrust indictments against health care providers since 1990. United States v. Aaron L. (“Lanoy”) Alston et al. (CR 90-042-TUC, 02/07/90); United States v. Lake Country Optometric Society (W-95-CR-114, 12/15/95).
[5] Makan Delrahim, Asst. Att’y Gen., U.S. Dep’t Justice, Antitrust Div., Remarks at New York University School of Law Program on Corporate Compliance and Enforcement (July 11, 2019).
[6] See Robert M. Langer, Benjamin H. Diessel, Timothy C. Cowan, “Important New Guidance – How an Effective Antitrust Compliance Program Could Prevent Criminal Charges Against Your Company” (November 6, 2019).
