Mergers and Acquisitions

On September 7, 2018, Governor Jerry Brown signed into law Assembly Bill No. 595, A.B. 595, which amends the California Health and Safety Code to increase oversight by the California Department of Managed Health Care (“DMHC”) of health care service plan mergers and acquisitions (M&A). (See, Cal. Health & Safety Code §§1399.65 and 1399.66). The law allows DMHC to reject M&A transactions that DMHC determines will have an adverse impact on, among other things, competition, subscribers and enrollees, and the stability of the health care delivery system. In addition, DMHC will be empowered to impose conditions that it believes will protect subscribers and enrollees and the public interest as a condition of approval of the transaction (as further described below).
Continue Reading New California Law re HMO M&A

Since 2014, there has been a steady increase in mergers and acquisitions in the Rehabilitation sector, with a total of 40 deals announced in 2016.  This is almost double the number of deals in 2014 (a total of 21), and includes deals with both publicly traded corporations as well as privately held acquirers.  Similarly, after seeing a sharp decline in M&A activity in 2015, the home health and hospice sectors saw an increase of 12% in M&A activity in 2016 with a total of 57 deals announced, including several deals involving private equity investors.
Continue Reading Merger and Acquisition Activity in the Rehabilitation, Home Health and Hospice Sectors Increased in 2016, But Will this Trend Continue?

The FTC just suffered a major setback in its concerted efforts to challenge the ever growing number of consolidations in the healthcare industry, failing to secure a preliminary injunction to block a hospital merger in central Pennsylvania.  In a decisive and strongly-worded opinion, the Honorable John Jones III of the Middle District of Pennsylvania concluded that (1) the FTC had fatally alleged an unrealistically narrow geographic market; and (2) the merger was likely to benefit (not harm) consumers, in part by allowing the merged entity to remain competitive in the new healthcare environment which “virtually compels” consolidations.  Federal Trade Commission et al. v. Penn State Hershey Med. Ctr. et al., Case No. 1:15-cv-02362 (May 9, 2016, M.D. Penn).
Continue Reading FTC Suffers Setback in Campaign to Slow the Rising Tide of Healthcare Consolidations

The Massachusetts Attorney General and others are currently advocating for legislation that would accord greater legal weight to the findings of an independent state agency, the Health Policy Commission, on the effects of proposed mergers and acquisitions.[1]  Currently, a “Cost and Market Impact Review” report is referred to the Attorney General’s Office if the Health Policy Commission determines that a transaction will likely result in a provider gaining a dominant market share, higher prices for services and increased medical spending. Under the legislation, such a report would be prima facie evidence that a transaction violates the Massachusetts Consumer Protection Act and could be used in an action brought by the Attorney General to block the transaction pending the outcome of litigation.
Continue Reading State Oversight of Anticompetitive Activity in Healthcare: Is a New Wave Ahead?

In almost all corporate transactions, the first piece of written documentation the parties exchange and execute (after a non-disclosure agreement) is a letter of intent or term sheet (“LOI”), which is intended to summarize the main deal points. And as many corporate transactions involve entities organized in Delaware, these documents often select Delaware as the governing law.
Continue Reading When Is a Non-Binding Term Sheet or Letter of Intent Enforced as a Binding Contract?