While doctors and medical organizations have long had to navigate antitrust concerns in their practices, antitrust regulators will now have to consider health care reform in evaluating collective action by health care providers in groups known as care accountable care organizations (“ACOs”).

ACOs are health care provider groups responsible for the cost and quality of care delivered to a group of patients cared for by the groups’ doctors.  The Affordable Care Act of 2010 seeks to foster the growth of ACOs as a way to control costs and boost quality in healthcare with a direction to the Centers for Medicare and Medicaid Services (CMS) to create a national voluntary program for accountable care organizations (ACOs) by January 2012.

As ACOs grow in number and influence during the next few years, antitrust policy will have to take into account the goals of health care reform as antitrust regulators deal with the competing concerns of competition and cost containment.

These antitrust issues are explored by Constantine Cannon partners Axel Bernabe and Ankur Kapoor in a recent article that considers the antitrust implications of ACOs under the Affordable Care Act.

Microsoft and News Corporation (“News Corp.”) are reportedly in discussions for a deal where News Corp. would sell its online content to Microsoft for inclusion in its Bing Internet search engine.  As part of the deal, News Corp. would delist its articles from Google’s search engine and list them exclusively with Bing.

In a curious twist of fate, Microsoft’s exclusive with News Corp is likely pro-competitive.  Microsoft has slightly less than a ten percent share of the online search market, and this type of arrangement could enhance its ability to compete with Google.  Microsoft hopes to attract users to its Bing search engine by becoming the exclusive search destination for News Corp’s popular online publications including the Wall Street Journal, the New York Post, The Times of London and others.

Although News Corp. would benefit by earning revenue for its Internet listings, most analysts view the venture as risky and do not believe News Corp. will consummate the deal.  News Corp. would be isolating its content from Google’s sixty-five percent share of all search inquiries which would likely lead to a drop in viewers of its web content. Google alone accounts for 26.3% of the Wall Street Journal’s traffic, according to data tracker Experian Hitwise. 

Negotiating fees from search engines may be a new strategy for content providers due to the weak online advertising environment.  Google currently pays publishers for content but only on a limited basis. For example, Google pays The Associated Press to publish the text of its articles.  The Microsoft overture could be Rupert Murdoch’s way of pressuring Google for a deal or at least to start a bidding war between Google and Microsoft. click here for more »

Though Supreme Court Justice Sonia Sotomayor’s nomination hearings made lots of news, the media didn’t spend much time focusing on her antitrust decisions.  But the nation’s newest justice is no stranger to the Sherman Act.

Constantine Cannon – as Lead Counsel in its groundbreaking debit card litigation – has first-hand experience with Justice Sotomayor’s antitrust jurisprudence.  She authored a pivotal decision that kept the debit card litigation alive and led to the largest federal antitrust settlement in U.S. history.  click here for more »

Five years ago this month, a new federal law aimed at encouraging standard-setting activities took effect – the Standards Development Organization Advancement Act (SDOAA) of 2004.  Why did Congress pass it?  And five years later, how has it fared?

In many industries, non-profit “standards development organizations” (SDOs) collaborate with businesses to develop industry-wide standards – from common light bulb sizes to uniform tests of concrete strength.  This work is generally procompetitive, as it tends to foster innovation and lower prices.  But because the work involves collaboration between competitors, it can raise antitrust issues and invite lawsuits. click here for more »