• About Us
  • Get Insights to Your Inbox
Friday, June 9, 2023
Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Insights@Questrom
  • Our Insights
    • All
    • Business Challenges
    • Business Education
    • Business Functions
    Inflation Causes Drivers to Switch Car Insurance Carriers

    Inflation Causes Drivers to Switch Car Insurance Carriers

    The Right Amount of Cards, Cash and ID to Carry in Your Wallet

    Inside the Push to Make Everyone Friends at Work

    Strategies for Onboarding in a Hybrid World

    Strategies for Onboarding in a Hybrid World

    How do sustainable supply chains improve the continuity of supply and protect the environment?

    How do sustainable supply chains improve the continuity of supply and protect the environment?

    3 Ways Boston University’s Online MBA Is A Disruptor In Business Education

    New Immigration Data Point To Larger U.S. Workforce Issues

    A Risk Management Nightmare at Silicon Valley Bank

    How CFOs are navigating the debt ceiling standoff

    Opposing scientists find no clear evidence for gender bias in academic science

    Opposing scientists find no clear evidence for gender bias in academic science

    Benefits of Supply Chain Visibility

    Benefits of Supply Chain Visibility

  • Videos & Podcast
    • All
    • Podcast
    • Videos
    Leadership Communications

    Leadership Communications

    Demotivating Effects of Relative Performance Feedback on Middle-Ranked Workers’ Performance

    Demotivating Effects of Relative Performance Feedback on Middle-Ranked Workers’ Performance

    S1:E1 CVS Paying the “Pink Tax” on Certain Products and the Evolution of the Electric Vehicle Industry

    AI: What is it and how will it impact business?

    Is Creativity in Advertising Dead in the age of AI?

    Is Creativity in Advertising Dead in the age of AI?

    How Higher Ed Can Contend with Learning Platforms

    How Higher Ed Can Contend with Learning Platforms

    How Companies Deal with Disruption

    How Companies Deal with Disruption

    Money: It’s created. It’s destroyed. But what is it?

    Money: It’s created. It’s destroyed. But what is it?

    Blockchain, Beyond Crypto

    Blockchain, Beyond Crypto

    S1:E1 CVS Paying the “Pink Tax” on Certain Products and the Evolution of the Electric Vehicle Industry

    S1:E2 What the FTX?

  • Insights Events
    • Events
    • Insights Live
    • Questrom Institute Events
  • In the Media
    • All
    • BU Today
    • Global Media
    • Local Media
    • National Media
    • Op-Ed
    • The Brink
    Inflation Causes Drivers to Switch Car Insurance Carriers

    Inflation Causes Drivers to Switch Car Insurance Carriers

    Should Companies Refrain From Making Political Statements?

    Should Companies Refrain From Making Political Statements?

    The Right Amount of Cards, Cash and ID to Carry in Your Wallet

    Inside the Push to Make Everyone Friends at Work

    Here’s Why Experts Say Russia and China’s Attempts to ‘De-Dollarize’ Global Markets are Going Nowhere

    5 ways Russia’s been sidestepping Western sanctions and keeping its economy alive, from switching to the Chinese yuan and dabbling in ghost trades

    Strategies for Onboarding in a Hybrid World

    Strategies for Onboarding in a Hybrid World

    3 Ways Boston University’s Online MBA Is A Disruptor In Business Education

    New Immigration Data Point To Larger U.S. Workforce Issues

    A Risk Management Nightmare at Silicon Valley Bank

    How CFOs are navigating the debt ceiling standoff

    Opposing scientists find no clear evidence for gender bias in academic science

    Opposing scientists find no clear evidence for gender bias in academic science

    Ethics Professor Raises Key Questions About the Future Use of AI

    Questrom marketing researcher explores the data-tracking debate

    Trending Tags

    • Publications
      • All
      • Books
      • Harvard Business Review
      • Journals
      • Sloan Management Review
      Should Companies Refrain From Making Political Statements?

      Should Companies Refrain From Making Political Statements?

      Make It Safe for Employees to Speak Up – Especially in Risky Times

      Make It Safe for Employees to Speak Up – Especially in Risky Times

      Will Generative AI Create a New Era of Search Competition?

      Will Generative AI Create a New Era of Search Competition?

      A Better Approach to Customer-Centric Messaging and Engagement

      A Better Approach to Customer-Centric Messaging and Engagement

      How Coworking Spaces Impact Employee Well-Being

      How Coworking Spaces Impact Employee Well-Being

      Will Salary Transparency Laws Change Employee Compensation?

      Will Salary Transparency Laws Change Employee Compensation?

      Heroes from Above But Not (Always) from Within? Gig workers’ reactions to the sudden public moralization of their work

      Heroes from Above But Not (Always) from Within? Gig workers’ reactions to the sudden public moralization of their work

      To Encourage Patients to Fill Prescriptions, Fix Copays

      To Encourage Patients to Fill Prescriptions, Fix Copays

      Is Tesla’s Era of Dominance Coming to an End? What Experts Say

      Is Tesla’s Era of Dominance Coming to an End? What Experts Say

      Trending Tags

      Insights@Questrom
      • Our Insights
        • All
        • Business Challenges
        • Business Education
        • Business Functions
        Inflation Causes Drivers to Switch Car Insurance Carriers

        Inflation Causes Drivers to Switch Car Insurance Carriers

        The Right Amount of Cards, Cash and ID to Carry in Your Wallet

        Inside the Push to Make Everyone Friends at Work

        Strategies for Onboarding in a Hybrid World

        Strategies for Onboarding in a Hybrid World

        How do sustainable supply chains improve the continuity of supply and protect the environment?

        How do sustainable supply chains improve the continuity of supply and protect the environment?

        3 Ways Boston University’s Online MBA Is A Disruptor In Business Education

        New Immigration Data Point To Larger U.S. Workforce Issues

        A Risk Management Nightmare at Silicon Valley Bank

        How CFOs are navigating the debt ceiling standoff

        Opposing scientists find no clear evidence for gender bias in academic science

        Opposing scientists find no clear evidence for gender bias in academic science

        Benefits of Supply Chain Visibility

        Benefits of Supply Chain Visibility

      • Videos & Podcast
        • All
        • Podcast
        • Videos
        Leadership Communications

        Leadership Communications

        Demotivating Effects of Relative Performance Feedback on Middle-Ranked Workers’ Performance

        Demotivating Effects of Relative Performance Feedback on Middle-Ranked Workers’ Performance

        S1:E1 CVS Paying the “Pink Tax” on Certain Products and the Evolution of the Electric Vehicle Industry

        AI: What is it and how will it impact business?

        Is Creativity in Advertising Dead in the age of AI?

        Is Creativity in Advertising Dead in the age of AI?

        How Higher Ed Can Contend with Learning Platforms

        How Higher Ed Can Contend with Learning Platforms

        How Companies Deal with Disruption

        How Companies Deal with Disruption

        Money: It’s created. It’s destroyed. But what is it?

        Money: It’s created. It’s destroyed. But what is it?

        Blockchain, Beyond Crypto

        Blockchain, Beyond Crypto

        S1:E1 CVS Paying the “Pink Tax” on Certain Products and the Evolution of the Electric Vehicle Industry

        S1:E2 What the FTX?

      • Insights Events
        • Events
        • Insights Live
        • Questrom Institute Events
      • In the Media
        • All
        • BU Today
        • Global Media
        • Local Media
        • National Media
        • Op-Ed
        • The Brink
        Inflation Causes Drivers to Switch Car Insurance Carriers

        Inflation Causes Drivers to Switch Car Insurance Carriers

        Should Companies Refrain From Making Political Statements?

        Should Companies Refrain From Making Political Statements?

        The Right Amount of Cards, Cash and ID to Carry in Your Wallet

        Inside the Push to Make Everyone Friends at Work

        Here’s Why Experts Say Russia and China’s Attempts to ‘De-Dollarize’ Global Markets are Going Nowhere

        5 ways Russia’s been sidestepping Western sanctions and keeping its economy alive, from switching to the Chinese yuan and dabbling in ghost trades

        Strategies for Onboarding in a Hybrid World

        Strategies for Onboarding in a Hybrid World

        3 Ways Boston University’s Online MBA Is A Disruptor In Business Education

        New Immigration Data Point To Larger U.S. Workforce Issues

        A Risk Management Nightmare at Silicon Valley Bank

        How CFOs are navigating the debt ceiling standoff

        Opposing scientists find no clear evidence for gender bias in academic science

        Opposing scientists find no clear evidence for gender bias in academic science

        Ethics Professor Raises Key Questions About the Future Use of AI

        Questrom marketing researcher explores the data-tracking debate

        Trending Tags

        • Publications
          • All
          • Books
          • Harvard Business Review
          • Journals
          • Sloan Management Review
          Should Companies Refrain From Making Political Statements?

          Should Companies Refrain From Making Political Statements?

          Make It Safe for Employees to Speak Up – Especially in Risky Times

          Make It Safe for Employees to Speak Up – Especially in Risky Times

          Will Generative AI Create a New Era of Search Competition?

          Will Generative AI Create a New Era of Search Competition?

          A Better Approach to Customer-Centric Messaging and Engagement

          A Better Approach to Customer-Centric Messaging and Engagement

          How Coworking Spaces Impact Employee Well-Being

          How Coworking Spaces Impact Employee Well-Being

          Will Salary Transparency Laws Change Employee Compensation?

          Will Salary Transparency Laws Change Employee Compensation?

          Heroes from Above But Not (Always) from Within? Gig workers’ reactions to the sudden public moralization of their work

          Heroes from Above But Not (Always) from Within? Gig workers’ reactions to the sudden public moralization of their work

          To Encourage Patients to Fill Prescriptions, Fix Copays

          To Encourage Patients to Fill Prescriptions, Fix Copays

          Is Tesla’s Era of Dominance Coming to an End? What Experts Say

          Is Tesla’s Era of Dominance Coming to an End? What Experts Say

          Trending Tags

          Insights@Questrom
          Home Our Insights Business Challenges Business Policy & Markets

          Hospital Forecast for 2021: Biden Administration May Usher In New Approach To Antitrust Analysis In Key Areas

          byInsights Editorial Team
          March 16, 2021
          in Business Policy & Markets, Health, Biopharma, & Health-Tech
          16
          A A
          Hospital Forecast for 2021: Biden Administration May Usher In New Approach To Antitrust Analysis In Key Areas

          Many hospitals are struggling during COVID as they’ve had to shut down other wings to keep COVID patients safe. Do you forecast any hospitals merging to stay afloat? Any other hospital trends you think will be relevant? Dionne Lomax, markets, public policy, & law lecturer at Questrom, offers her analysis.

          By Dionne Lomax

          Given the Biden Administration’s desire to build on the Affordable Care Act by “giving Americans more choice, reducing health care costs, and making the U.S. health care system less complex to navigate,” we can expect significant healthcare antitrust enforcement to continue under his Administration. In fact, during President Biden’s campaign, the joint task force he developed with Bernie Sanders recommended: “aggressively using antitrust laws to fight against mega-mergers in the hospital, insurance, and pharmaceutical industries that raise prices for patients by undermining competition.”

          Biden has also gone on record supporting a drastic change in traditional antitrust analysis for non-compete agreements. Non-compete agreements have generally been permissible under federal antitrust law in connection with mergers, joint ventures, and even employment agreements, provided they are reasonable in time (i.e., duration) and geographic scope and are narrowly tailored to satisfy legitimate business objectives. However, in the wake of recent scrutiny and criminal prosecution of naked no-poach agreements among employers, there is growing support for placing new limits on employers who restrict competition in the labor market. Biden has joined the chorus by proposing a nationwide ban on non-compete agreements with some limited exceptions. While many would characterize the political climate inside the Washington, D.C. beltway as perpetually gridlocked, surprisingly, there appears to be a considerable amount of bi-partisan support for legislation banning non-compete agreements except where necessary to protect a narrowly defined category of trade secrets.

          While many can understand the DOJ’s recent prosecution of health industry participants and other businesses who engaged in collusion with rivals in the labor market, the prospect of narrowing the legality of non-compete agreements that occur in other contexts is a bit of a sea-change. Depending on the carve-outs that are applied in any legislation that ultimately becomes law, broad restrictions may have a significant impact on a host of commercial arrangements, including many in the health care industry.

          Another area to keep an eye on during the first 90 days of the Biden Administration involves the newly proposed antitrust reform legislation (the “Competition and Antitrust Law Enforcement Reform Act of 2021), sponsored by Senator Klobuchar. According to Senator Klobuchar, the proposed legislation will:

            1. Increase Enforcement Resources
            2. Strengthen Prohibitions Against Anticompetitive Mergers (by updating the legal standard for permissible mergers, and shifting the burden to merging parties to prove their mergers will not violate the law)
            3. Prevent Harmful Dominant Firm Conduct
            4. Establish a New, Independent Federal Trade Commission (“FTC”) Division to Conduct Market Studies and Merger Retrospectives
            5. Implement Additional Reforms to Enhance Antitrust Enforcement (including strengthening whistleblower protections and granting the DOJ and FTC new authority to seek substantial civil monetary penalties for antitrust violations).

          If passed, it too represents a major sea-change to traditional antitrust analysis in several key areas – most notably as it relates to exclusionary conduct and merger analysis. Section 2 of the Sherman Act, which prohibits monopolization, attempts to monopolize, and conspiracies to monopolize, focuses on unilateral or single-firm conduct. In order to prevail in a Section 2 case, a plaintiff must show that a defendant possesses monopoly power in a relevant market and engaged in exclusionary conduct that reduces competition. While there are various tests courts have used to determine if unilateral conduct by a dominant firm has harmed competition, the focus of such harm is whether or not competition has been harmed, not whether or not individual rivals or competitors have been harmed. Senator Klobuchar’s proposed bill departs from traditional antitrust analysis to some extent, by shifting the focus of the harm to how rivals have been harmed, rather than emphasizing how consumers have been harmed. The proposed legislation accomplishes this by creating “a new provision under the Clayton Act to prohibit ‘exclusionary conduct’” (conduct that materially disadvantages competitors or limits their opportunity to compete) that presents an “appreciable risk of harming competition.”

          This new standard may make it easier for plaintiffs to demonstrate a “presumption of harm to competition” while also making it more difficult for defendants to rebut a presumption of harm under this new standard. According to Senator Klobuchar, such changes will remedy what she characterizes as “flawed court decisions” that “have weakened the effectiveness of Section 2 of the Sherman Antitrust Act to prevent anticompetitive conduct by dominant companies.”

          Among other things, it also proposes key changes to the Clayton Act regarding merger analysis. Under the new legislation mergers that “create an appreciable risk of materially (defined as ‘more than a de minimus amount’) lessening competition” rather than mergers that “substantially lessen competition,” can be deemed illegal. This lower threshold will provide a wider berth for the government to challenge many more transactions and may have the effect of condemning hospital mergers and other collaborative arrangements in the health care industry that may have survived an antitrust challenge under the “substantial lessening” standard.

          Whether and/or the extent to which Senator Klobuchar’s sweeping antitrust reforms or Biden’s proposal regarding banning non-competes become law remains to be seen. However, business and industry executives should be mindful to watch these developments closely as the Biden Administration continues to solidify its antitrust enforcement policies and initiatives.

           


          About our Expert

          Dionne Lomax is a Lecturer in the Markets, Public Policy and Law Department at Boston University’s Questrom School of Business and (by courtesy) at Boston University’s School of Law. Prior to joining BU, Dionne dedicated her legal career to analyzing complex business transactions from an antitrust regulatory perspective. As a Partner in two national law firms, she represented high-profile clients in various commercial transactions before the U.S. Department of Justice, Federal Trade Commission, and various State Attorneys General in connection with mergers and other commercial transactions. Dionne is also the Managing Director of Antitrust and Trade Regulation at Affiliated Monitors, Inc.

          As an antitrust attorney specializing in mergers and acquisitions, Dionne was uniquely positioned to work closely with buyers and sellers as they negotiate key aspects of merger agreements. Her transactional experience, while focused on antitrust regulatory issues, exposed her to the entire spectrum of M&A activity. She counseled clients during the bidding process as they made critical decisions regarding strategic partners, and analyzed key aspects of asset purchase agreements to protect client interests during the due diligence process. As such, Dionne has been privy to how laws and regulations impact strategic business decisions, and has witnessed the significant increase in litigation and regulation to which businesses are subjected. Dionne believes that this rise in regulation makes it imperative that the next generation of business professionals understand the nature of the legal system, its role and influence on business operations, and how it impacts business decision making. Her teaching philosophy is to promote student enthusiasm for the law by ensuring that students experience the practical application of a subject with a special emphasis on providing students skills-based simulation exercises as they analyze relevant issues.

          Prior to entering private practice, Dionne served as a Trial Attorney at the U.S. Department of Justice Antitrust Division’s Health Care Task Force where she analyzed the structure and operation of PHOs and IPAs, investigated health plan mergers, and other collaborative arrangements in the health care industry. She clerked for The Honorable Clifford Scott Green in the United States District Court for the Eastern District of Pennsylvania, and also taught antitrust law as an adjunct professor at Loyola University Chicago School of Law.

           

           

          1See https://joebiden.com/healthcare/

          2Biden-Sanders Unity Task Force Recommendations: ACHIEVING UNIVERSAL, AFFORDABLE, QUALITY HEALTH CARE, pg. 90, available at https://joebiden.com/wp-content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf.

          3For example, in late 2019, nineteen State Attorney’s General urged the FTC to “bring an end to the abusive use of non-compete clauses in employment contracts,” available at https://oag.ca.gov/system/files/attachments/press-docs/11%2015%2019%20Multistate%20FTC%20Non-Compete%20Letter%20FINAL.pdf.  The Department of Justice Antitrust Division has started prosecuting naked employee no-poach agreements criminally.  The most recent indictments were announced early this year against two companies for allegedly agreeing with other healthcare companies not to solicit each other’s senior-level employees.

          4 Razor and Zender, “Biden Proposes Nationwide Non-Compete Ban,” The National Law Review, December 16, 2020 (“Biden will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements”).

          5https://www.klobuchar.senate.gov/public/_cache/files/e/1/e171ac94-edaf-42bc-95ba-85c985a89200/375AF2AEA4F2AF97FB96DBC6A2A839F9.sil21191.pdf

          6News Release, Senator Klobuchar Introduces Sweeping Bill to Promote Competition and Improve Antitrust Enforcement, Feb., 4, 2021, available at: https://www.klobuchar.senate.gov/public/index.cfm/2021/2/senator-klobuchar-introduces-sweeping-bill-to-promote-competition-and-improve-antitrust-enforcement.

          7See United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966) (“the willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”).

          Tags: Dionne Lomax
          Share2Tweet1ShareShareSend
          Insights Editorial Team

          Insights Editorial Team

          Related Posts

          Inflation Causes Drivers to Switch Car Insurance Carriers
          Business Policy & Markets

          Inflation Causes Drivers to Switch Car Insurance Carriers

          June 5, 2023
          3 Ways Boston University’s Online MBA Is A Disruptor In Business Education
          Business Policy & Markets

          New Immigration Data Point To Larger U.S. Workforce Issues

          May 22, 2023
          Benefits of Supply Chain Visibility
          Business Policy & Markets

          Benefits of Supply Chain Visibility

          May 15, 2023
          3 Ways Boston University’s Online MBA Is A Disruptor In Business Education
          Business Policy & Markets

          Economists Say Increasing Immigration Will Reduce Inflation

          May 4, 2023
          Starbucks fans are steamed:
          Business Policy & Markets

          Starbucks fans are steamed:

          March 14, 2023
          RxPass smartphone interface. (Amazon Photo)
          Health, Biopharma, & Health-Tech

          Meet Amazon’s New Prescription Plan: RxPass

          February 26, 2023
          Inflation Cools, Prices Remain High
          Business Policy & Markets

          Inflation Cools, Prices Remain High

          February 23, 2023
          Buying gifts? Why ‘buy now, pay later’ could be a dangerous option for many holiday shoppers
          Business Policy & Markets

          Buying gifts? Why ‘buy now, pay later’ could be a dangerous option for many holiday shoppers

          December 19, 2022

          Upcoming Events

          No event found!

          Get Our Insights Newsletter

          Get Insights straight to your inbox by signing up now.

            Popular Insights

            • Thinkers50@BUQuestrom: Passion & Purpose

              Thinkers50@BUQuestrom: Passion & Purpose

              21 shares
              Share 8 Tweet 5
            • Ethical Implications of ChatGPT in the Educational Setting

              94 shares
              Share 38 Tweet 24
            • Do People Believe Generative AI?

              30 shares
              Share 12 Tweet 8
            • [Marketplace] How much profit do fireworks stands make?

              14 shares
              Share 6 Tweet 4
            • Silicon Valley Bank: Blame and Ethics of the Failure

              39 shares
              Share 16 Tweet 10

            Boston University Questrom School of Business
            595 Commonwealth Avenue
            Boston, MA 02215

            Follow Us

            Newsletter

            © 2023 Trustees of Boston University

            • About Us
            • Digital Business Institute
            • Human Resource Policy Institute
            • Susilo Institute for Ethics in the Global Economy
            Generic selectors
            Exact matches only
            Search in title
            Search in content
            Post Type Selectors
            • Business Challenges
              • Business Policy & Markets
              • Digital Business
              • Diversity, Equity & Inclusion
              • Entrepreneurship & Innovation
              • Future of Work
              • Health, Biopharma, & Health-Tech
              • Risk
              • Social Impact
            • Business Functions
              • Corporate Strategy
              • Finance & Accounting
              • Innovation
              • Leadership & Management
              • Marketing
              • Operations
              • Technology
            • Publications
              • Journals
              • Harvard Business Review
              • Sloan Management Review
            • Insights Events
              • All Events
              • Insights Live
              • Questrom Institute Events
            • Videos & Podcast
              • Videos
              • Insights@Questrom Podcast
              • Podcast
            • Voices in the Media
            • Our Experts

            © 2023 Trustees of Boston University

            Welcome Back!

            Sign In with Linked In
            OR

            Login to your account below

            Forgotten Password?

            Retrieve your password

            Please enter your username or email address to reset your password.

            Log In
            Suggest Topic
            X

            Add New Playlist

            -
            00:00
            00:00

            Queue

            Update Required Flash plugin
            -
            00:00
            00:00