Showing papers by "Spencer Weber Waller published in 2016"

How Much of Health Care Antitrust is Really Antitrust

Abstract: This is article about antitrust exceptionalism. The antitrust laws are intended as laws of general applicability subject to any legislative exemptions and immunities. They are intended to be transubstantive, applying to all parties in all disputes in all sectors unless Congress has spoken to the contrary. The Supreme Court has gone so far as to refer to the antitrust laws as “the magna carta of the free enterprise system.” It is increasingly hard to say with a straight face that these general principles apply when the antitrust laws have been applied to the health care sector. The health care sector has long maintained it is special and that application of traditional antitrust principles will produce bad results for society. Unlike most industries where variations of this argument have been quickly rejected by the courts since the earliest days of the Sherman Act, health care antitrust cases often come out differently. While I do not argue that this is true in every case on all issues, I seek to document how this has come to pass in critical areas of antitrust law over the past four decades and distorted the law for health care providers and in some cases infected other areas of antitrust law as well. I suggest that the law in action differs greatly for this sector from the law on the books. This in turn raises important rule of law and policy questions as the health care sector continues to grow and evolve and deal with non-antitrust regulatory changes imposed by the Affordable Care Act. In short we have reached a fork in the road, and must confront either returning to the application of traditional antitrust principles in the health care sector or creating a more conscious and well thought out comprehensive scheme of sectoral regulation that clearly lays out when competition rules are secondary to other policy goals.This essay proceeds as follows: Part I briefly outlines the general antitrust law framework that is supposed to apply to all market participants and the defenses and arguments that traditionally fail to persuade courts when faced with arguments that antitrust law produces bad results for society. Part II discusses how things often work differently in key health care antitrust issues where the lower courts have often conducted a guerilla campaign against accepted Supreme Court precedent. Part II specifically examines how lower courts have carved out their own peculiar body of health care antitrust law in four key areas, both creating outlier results from generally accepted antitrust policy and occasionally having these results influence or distort accepted antitrust doctrine more generally. Part III analyzes how similar arguments about antitrust exceptionalism are currently playing out against the background of continuing health care industry consolidation and the changes encouraged by the ACA. Part IV proposes the two paths going forward that we must choose between in order to have a consistent and meaningful law of health care antitrust rather than a series of ad hoc choices that deviate from general antitrust law and policy for the economy as a whole. Part V concludes.

The Fall and Rise of the Antitrust Class Action

Abstract: Antitrust class actions have narrowed significantly in the United States in recent years but still remain robust compared to aggregate litigation in the rest of the world. While the Supreme Court continues to narrow the doorway to class actions, the rest of the world is increasingly interested in creating new mechanisms for aggregate litigation to better support effective private damage litigation in competition cases, and in particular the large number of small claims cases that led to the class action boom in the United States in the first place. The challenge for the rest of the world will be to fashion new remedies consistent with the history, culture, substantive law, and procedural rules of their legal traditions rather than either adopt or reject the system that has evolved in the United States. This article provides an overview of the increasingly stringent requirements for antitrust class actions in the United States and provides a representative survey of the nascent movement toward collective actions abroad where competition cases have been at the forefront of the debate. Part I discusses the standards for class certification under Rule 23 and recent Supreme Court cases tightening those standards. Part II analyzes a separate line of Supreme Court cases which effectively eliminates class actions altogether when parties have entered into a contract requiring arbitration rather than litigation and further requires individual rather than collective arbitration proceedings.Part III continues with a survey of recent developments in the opposite direction outside the United States. This section examines ongoing changes in the EU, UK, other EU Member States, Mexico, and Canada to empower consumers and business with small claims in competition cases by creating collection action mechanisms of different types. This section also briefly discusses the decision of the EU to simply prohibit the type of forced arbitration clauses that the U.S. Supreme actively encourages. Part IV analyzes the critical aspect of whether foreign class actions will thrive or whither on the vine – the need for an opt-out mechanism rather than the opt-in mechanism favored in most jurisdictions outside the U.S. Finally, I conclude by pointing out the irony of the rest of the world struggling to figure out how best to empower plaintiffs to bring appropriate class action type proceedings while the U.S. Supreme Court remains principally concerned with how to restrain or eliminate the very same type of action.

Understanding and appreciating ec competition law

Abstract: The competition law and policy of the European Community (EC) is a complex system which deserves the widest possible appreciation, both for its everyday impact on international business transactions and for the insights it gives us into competition law from a comparative law perspective. While EC competition law is a massive subject which can only be addressed comprehensively in a substantial book length format,1 an appreciation of the goals of Community competition and the uniqueness of its approach can be gleaned through a relatively brief analysis of the competition provisions contained within Articles 85 and 86 of the Treaty of Rome2 and the more recent Merger Regulation.3