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The Numbers Are In: The Recently Released Hart-Scott-Rodino Annual Report for Fiscal Year 2018 Provides an Overview of Antitrust Merger Enforcement

On September 16, 2019, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) released their combined Hart-Scott-Rodino Annual Report (“Report”) for fiscal year 2018 (covering the time period of October 1, 2017, through September 30, 2018). This is the 41st annual report, and, as with the other reports, it provides revealing merger-related information.

During fiscal year 2018, there were 2,111 transactions meeting the size threshold of $90 million that were reported under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR Act”)—a 2.9 percent increase from the prior year. Of the reported transactions, the FTC conducted 22 merger enforcement challenges, 12 of which resulted in consent orders, five were abandoned, and five were subject to either an administrative or federal court litigation. DOJ conducted 17 merger enforcement challenges during this time period, eight of which were settled, four were abandoned, four were restructured to resolve DOJ concerns, and the remaining were actively litigated.

Of the reported transactions, only 45 (approximately 2.2 percent) resulted in a second request (26 issued by the FTC and 19 issued by the DOJ)—a decrease from the prior year when the federal enforcement agencies issued 51 second requests.

Also according to the Report, there were 33 hospital transactions, 50 ambulatory health care services transactions, and one nursing care facility transaction reported pursuant to the HSR Act during fiscal year 2018. However, only two hospital transactions and three ambulatory health care services transactions garnered second requests, and none of these transactions resulted in litigation. Furthermore, the FTC once again assumed primary responsibility for reviewing these health care-related transactions.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume IX, Number 269


About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements