By Lisl J. Dunlop & Cristina M. Fernandez
At the same time that vertical mergers have become more commonplace in healthcare, the way in which such deals are evaluated in the U.S. has begun to shift. In 2018 and 2019, the U.S. federal agencies litigated a vertical merger challenge to judgment for the first time in nearly forty years, re-examined what remedies are appropriate where competitive issues are present in a proposed vertical merger, considered revision of the Non-Horizontal Merger Guidelines, and have contemplated an overhaul for how merger cases in general are tried in federal courts. But far from stymieing transactions with the potential to capture value for the merged entities and their customers, close examination of recent clearances and litigation indicates that vertical deals can survive enhanced antitrust scrutiny.
