Insight
Client Alerts
August 24, 2026 • 14-minute read
The pace of policy initiatives, legislation, enforcement actions, and private litigation related to antitrust and competition in the healthcare sector showed no signs of slowing in the second quarter of 2026. Healthcare affordability remained a major issue for federal agencies, which promoted policies involving vertical integration, drug pricing, hospital contracts, and physician training. States also took an active role in the past quarter by expanding merger notification systems that may create additional hurdles for healthcare transactions. The Federal Trade Commission (“FTC”) continued its merger enforcement approach of securing divestitures to restore and maintain competitive market structures. Non-merger enforcement involved challenges to hospitals’ contracts with payors, a bid-rigging prosecution, enforcement against a deceptive insurance scheme, and a state lawsuit against an algorithmic pricing system. Private litigation saw mixed success in actions concerning federal drug discounts, medical employee wage-fixing, and pharmacy benefit manager reimbursements.
Federal agencies undertook various measures to shape healthcare antitrust and competition policy in the prior quarter. Department of Justice (“DOJ”) leadership delivered remarks on healthcare antitrust enforcement priorities, the FTC and DOJ supported private litigants’ monopolization claims, and the White House Council of Economic Advisors issued reports on policy proposals to reduce drug and hospital prices.
Comments from DOJ leadership indicate that the agency will continue to focus closely on antitrust issues in the healthcare sector. In public remarks delivered on May 19, 2026, Deputy Assistant Attorney General (“DAAG”) for Civil Conduct Nicole Sarrine stated that as DOJ makes “the hard choices about how to deploy our limited enforcement resources, healthcare is a top priority.” DAAG Sarrine explained that healthcare markets have uniquely “complex features that affect the competitive dynamics,” including a lack of price transparency and “potentially misaligned incentives” between insurers, employers, and patients. DAAG Sarrine also focused on “the increasing prevalence of vertical integration” and associated risks to competition, including through creating conflicts of interest that harm the affordability and quality of healthcare. DAAG Sarrine concluded by calling on companies and individuals to share information on anticompetitive practices in healthcare with DOJ to inform investigations and enforcement activity.
On June 22, 2026, the FTC filed an amicus brief in a pharmaceutical monopolization case before the U.S. Court of Appeals for the Fourth Circuit. The action alleges that Johnson & Johnson (“J&J”) used patents it obtained in its acquisition of Momenta Pharmaceuticals to delay biosimilar competition for Stelara, a drug used to treat autoimmune conditions, including psoriasis, psoriatic arthritis, ulcerative colitis, and Crohn’s disease. The district court granted summary judgment for J&J, and the plaintiffs appealed. The FTC’s amicus brief argues that the district court erred by requiring proof of specific intent to monopolize the market, because Section 2 of the Sherman Act requires “only a general intent to perform the act that results in or maintains monopoly power.” The FTC reasoned that J&J’s patent acquisitions qualified as a “willful” act sufficient to meet the general intent standard. The amicus brief concludes that requiring a strict “intent-based test” would undermine competition and would be “[g]reat for monopolists, bad for American consumers.”
On June 12, 2026, DOJ filed a statement of interest in an antitrust action brought by the American Osteopathic Association and the American College of Osteopathic Internists challenging an American Board of Internal Medicine (“ABIM”) policy affecting medical residency and fellowship programs. The plaintiffs allege that the policy, which requires residents or fellows to complete a program led by an ABIM-certified program director before sitting for a board certification examination, allowed ABIM to maintain its monopoly power over board certification of internal medicine physicians. DOJ’s statement of interest opposes ABIM’s argument in its motion to dismiss that professional organizations cannot face liability under Section 2 of the Sherman Act for their standard-setting decisions. DOJ contended that professional organizations have no “blanket” immunity under either Section 1 or Section 2 of the Sherman Act and that courts must evaluate standard-setting decisions on a case-by-case basis. This support of a challenge to privately set standards for residency programs mirrors DOJ’s efforts under the Trump administration to target supposed anticompetitive regulations that restrict competition from new market entrants.
The White House Council of Economic Advisors (“CEA”), which advises the President on economic policy, addressed competition issues in two reports on healthcare pricing.
On May 5, 2026, the CEA published a report on a most-favored-nation (“MFN”) drug pricing policy framework. Under this framework, pharmaceutical manufacturers would tie U.S. drug prices to those in eight other high-income countries. The CEA estimated this MFN policy would generate approximately $529 billion in domestic savings over ten years. The report discusses voluntary pricing agreements the Trump administration reached with seventeen manufacturers to offer all new drugs at MFN prices and to make existing drugs available to state Medicaid programs at MFN prices. It also details proposed legislation requiring health insurers to count direct-to-consumer purchases of drugs at MFN prices towards patients’ deductibles and out-of-pocket maximums. Further, the report directly ties the MFN initiative to the Trump administration’s trade policy and objective of placing “pressure on foreign countries to pay their fair share of drug innovation.”
On June 18, 2026, the CEA published another report asserting that hospital systems “insulate themselves from price competition” by leveraging their market power to force payors to accept anticompetitive contract terms. The report focused on three types of terms: anti-steering terms prohibiting payors from directing patients toward lower-cost providers, anti-tiering terms prohibiting payors from placing a hospital system in a less-favorable benefit tier, and all-or-nothing provisions requiring payors to accept every hospital and affiliated physician in a system. The report estimates that a nationwide ban on these terms would reduce hospital and affiliated-physician prices by 11 percent to 26 percent in affected markets. The report also notes that DOJ has filed civil antitrust complaints against two hospital systems challenging their use of these provisions, and these actions are discussed further in this Q2 2026 Update.
Multiple states have enacted and expanded merger notification systems in recent years that complement the federal Hart-Scott-Rodino (“HSR”) Act framework. In 2025, versions of the Uniform Antitrust Pre-Merger Notification Act (“UAPNA”) took effect in Washington and Colorado, requiring transaction parties to disclose their HSR filings to the respective state attorneys general. On February 10, 2026, California became the third state to adopt a version of the UAPNA, and the act will take effect on January 1, 2027. Other state legislatures are considering similar bills. Even more states are considering or have enacted targeted bills requiring notification and state approval of healthcare transactions.
On April 13, 2026, Maine Governor Janet Mills signed two bills into law establishing notification requirements for healthcare transactions. First, H.P. 1480 requires parties to notify the Maine Department of Health and Human Services (“DHHS”) of certain healthcare transactions involving private equity companies, hedge funds, or management services organizations (“MSOs”) at least 180 days before closing. Within 60 days of notification, DHHS must approve the transaction with or without conditions or initiate a comprehensive review. Under the comprehensive review process, DHHS must hold a public hearing within 90 days and may request that the Maine Office of Affordable Healthcare conduct a cost and market impact review within 150 days of the request. No more than 60 days after receiving the impact review, DHHS must approve the transaction with or without conditions or deny approval. This act establishes a significantly longer review period for material change notifications than most other states.
Second, H.P. 1481 requires transaction parties to submit their HSR filings to the Office of the Maine Attorney General in certain healthcare transactions. This requirement applies if a healthcare entity has a principal place of business in Maine or if a healthcare entity, or a person or entity it controls, has annual revenue in Maine of at least 20% of the HSR filing threshold for the goods or services involved in the transaction. The annually adjusted HSR size-of-transaction threshold for 2026 is $133.9 million; accordingly, the Maine revenue threshold for 2026 is $26.78 million. This act does not create a separate waiting period or require entities to obtain affirmative approval from the State before closing. However, unlike H.P. 1480, this act applies even if the purchaser is not a private equity company, hedge fund, or MSO.
Washington state also has distinct but potentially overlapping notification requirements for healthcare transactions involving a material change and HSR-reportable transactions with a nexus to the state. On June 11, 2026, a statutory amendment took effect that strengthened the reporting framework for material change transactions. The amendment added filing fees of up to $25,000 for certain healthcare transactions and expanded the types of transactions reportable to the Washington State Attorney General’s Office. A notification is now required for:
In the second quarter of 2026, the FTC obtained a proposed consent order requiring divestitures in a generic drug transaction, reached a settlement with an anesthesia provider in a case involving private equity consolidation, and finalized a consent order requiring divestitures in an acquisition of residential care facilities for individuals with intellectual and developmental disabilities.
On June 18, 2026, the FTC announced that it had obtained a proposed consent order in Aurobindo Pharma Limited’s (“Aurobindo”) $250 million acquisition of Lannett Company Inc. (“Lannett”). According to the FTC’s complaint, the transaction would combine two of a limited number of competitors in the markets for four different generic drugs prescribed to help prevent organ transplant rejection, manage cholesterol levels, treat dry mouth, and reduce stomach acid. The FTC alleges that between zero and four other competitors exist in these drug markets and that the transaction would eliminate direct and substantial competition between Aurobindo and Lannett for each drug. The FTC asserts that the transaction could allow Aurobindo to unilaterally exercise market power in each specified drug market and enable remaining competitors to coordinate to raise prices.
The proposed consent order requires Aurobindo to divest all interests in the four specified generic drugs to Quagen Pharmaceuticals LLC (“Quagen”), an existing generic pharmaceutical company, no later than 10 days after closing. The order also requires Aurobindo to provide transition services to enable Quagen to produce the four drugs in substantially the same manner as Aurobindo and Lannett did prior to the transaction. In addition, Aurobindo and Lannett must operate and maintain the businesses for the four drugs consistent with past practices through the divestitures. The proposed consent order further requires the appointment of a monitor to observe and report on Aurobindo’s and Lannett’s compliance with their obligations under the order. This proposed consent order continues the FTC leadership’s preference for discrete divestitures over litigating merger challenges.
The FTC announced on April 23, 2026, that it had reached a settlement in principle with U.S. Anesthesia Partners Inc. (“USAP”) to resolve litigation concerning competition for anesthesia services. The FTC initiated the litigation under the Biden administration on September 21, 2023, alleging that USAP and its parent entity, private equity firm Welsh, Carson, Anderson, and Stowe (“Welsh Carson”), engaged in a scheme to consolidate and monopolize the Texas anesthesia services market. The FTC alleged that USAP and Welsh Carson purchased nearly every large anesthesia practice in Texas to create a single dominant provider, further drove up prices through agreements with the remaining independent practices, and reached a market allocation deal with another significant competitor to prevent direct competition. This action reflects competition concerns around private equity roll-ups, where private equity firms engage in multiple smaller acquisitions that may each fall below HSR reporting thresholds.
The FTC had previously settled its claims against Welsh Carson through a consent order finalized on May 20, 2025. Under this order, Welsh Carson must limit its ownership and control over USAP, obtain the FTC’s prior approval before investing in or acquiring other anesthesia providers, and provide prior notice to the FTC before acquiring other hospital-based physician practices. The terms of the FTC’s April 2026 settlement with USAP will remain confidential for 180 days to facilitate negotiations USAP must undertake to execute the settlement and restore a competitive market structure. The FTC also warned that it would return to litigating its claims if USAP did not satisfactorily execute the settlement. In addition, USAP continues to face private litigation from Texas residents seeking damages for inflated prices paid for anesthesia services.
The FTC announced on June 10, 2026, that it had finalized a consent order involving Sevita Health’s (“Sevita”) $835 million acquisition of BrightSpring Health Services, Inc.’s (“BrightSpring”) community living business. As reported in our Q1 2026 Update, the FTC previously announced on January 30, 2026, that it had obtained a proposed consent order to resolve antitrust concerns relating to the transaction, which according to the FTC’s complaint would combine the two largest national providers of residential services to individuals with intellectual and developmental disabilities (“IDD services”). The FTC alleged that the transaction could harm non-price dimensions of IDD services, including quality of care and families’ choice of facilities. The final consent order largely tracks the proposed order and requires Sevita to divest 128 intermediate care facilities (“ICFs”), 15 day program facilities, and one office location in Indiana, Louisiana, and Texas to the Dungarvin Group. The final order, like the proposed order, also requires Sevita to provide advance written notification to the FTC before acquiring ICFs in specified locations for ten years.
DOJ continued its efforts to challenge terms in contracts between hospital systems and commercial payors that restrict health plan offerings by reaching a settlement with one hospital system and advancing litigation against another. DOJ also secured a second guilty plea in a criminal investigation into bid-rigging for healthcare-related projects at military installations. The FTC obtained a temporary restraining order in a consumer protection action against an organization that allegedly misled consumers about its health insurance offerings. The State of Arizona also filed a lawsuit alleging that major payors colluded by relying on a shared algorithm to set prices for out-of-network services.
On June 16, 2026, DOJ announced a proposed settlement in a civil antitrust action against OhioHealth Corporation (“OhioHealth”). As reported in our Q1 2026 Update, DOJ and the Attorney General of Ohio filed this action on February 20, 2026, alleging that OhioHealth leveraged its market power in the Columbus, Ohio area to impose contract restrictions preventing payors from offering certain health insurance plans or plan features. The restrictions allegedly blocked payors from developing “budget-conscious plans” limited to lower-cost providers that excluded OhioHealth. The proposed settlement would void OhioHealth’s existing contract provisions that restrict payors from offering narrow network or tiered network plans or that restrict price, quality, or cost transparency communications from payors to members. It also prohibits OhioHealth from prospectively seeking similar contract provisions or penalizing health insurers for offering disfavored plans or making transparency disclosures. Further, the proposed settlement requires the appointment of a monitor for a five-year term and obligates OhioHealth to submit regular compliance reports to DOJ.
A civil antitrust action DOJ filed on March 26, 2026, against The New York and Presbyterian Hospital (“New York-Presbyterian”) continues to move forward. DOJ’s complaint contains allegations against New York-Presbyterian similar to those against OhioHealth. DOJ alleges that New York-Presbyterian used its market power in New York City to prevent payors from offering plans that did not include access to New York-Presbyterian or that did not feature the hospital system in the plan’s most favored tier. New York-Presbyterian filed its answer on May 26, 2026, and discovery has commenced. New York-Presbyterian also continues to face private civil actions alleging violations of the Sherman Act and New York’s Donnelly Act related to similar contractual restrictions.
On June 2, 2026, DOJ announced that another defendant had pleaded guilty to conspiring to rig bids and defraud the U.S. Department of War in connection with the sale of shelving and storage projects to service healthcare and operations facilities. As reported in our Q1 2026 Update, the DOJ had previously announced on March 18, 2026, that the owner of a storage sales company had pleaded guilty to bid-rigging and fraud charges related to the alleged conspiracy. DOJ alleges that the co-conspirators exchanged pricing information, including instructions on the exact prices to quote, before submitting bids for multiple projects with a total value of more than $1.9 million at Moody Air Force Base in Valdosta, Georgia and Nellis Air Force Base in Las Vegas, Nevada. DOJ stated that the investigation remains ongoing, indicating that more prosecutions may be forthcoming. The prosecutions also reflect DOJ’s continued focus on tackling public procurement fraud, including through its role in the Procurement Collusion Strike Force, a joint initiative with multiple federal agencies to combat antitrust crimes involving government procurement, grant, and program funding.
On April 7, 2026, the FTC filed a complaint alleging that an organization operating as Innovative Partners, American Collective, and under other names deceived consumers into purchasing health insurance plans that did not offer the promised coverage. The FTC filed this action pursuant to its authority under Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), to prevent “unfair methods of competition” and “unfair or deceptive acts or practices.” The FTC alleged that the defendants operated a telemarketing scheme in which they impersonated the U.S. government and large insurance carriers and promised to provide comprehensive health insurance coverage with low or no co-payments. The defendants allegedly also falsely told patients with existing health coverage that their policies would be cancelled without immediate payment. The defendants did not provide the advertised insurance and instead merely provided limited medical discounts, ancillary products, and capped payments that left patients with large medical bills. On April 15, 2026, a federal district court issued a temporary restraining order prohibiting defendants from operating the scheme and freezing their assets.
Arizona Attorney General Kris Mayes announced a lawsuit on June 1, 2026, against MultiPlan, now rebranded as Claritev, and eight major commercial payors, alleging that the defendants agreed to collectively rely on MultiPlan’s pricing algorithm to set prices for healthcare services provided on an out-of-network basis. According to the complaint, commercial payors shared their confidential, competitively sensitive claims data with MultiPlan and each other. In addition, the defendants allegedly agreed to use the same pricing formula and delegated payment negotiation decisions to MultiPlan. This system allegedly resulted in “extremely low” reimbursements for out-of-network services, leaving providers in financial distress and patients with large medical bills. This enforcement action follows private antitrust suits against MultiPlan which were consolidated into a multidistrict litigation in the U.S. District Court for the Northern District of Illinois. On June 3, 2025, a federal district court denied a motion to dismiss the private plaintiffs’ claims, and the multidistrict litigation is currently in discovery.
Private antitrust and competition litigation involving the healthcare sector remained active in the second quarter of 2026. The following cases highlight the diversity of issues involved in this category of litigation, including sales under a federal drug discount program, class certification and expert testimony related to wage-fixing claims, and pharmacy benefit managers’ reimbursements to specialty pharmacies.
A putative class action alleging that insulin manufacturers conspired to eliminate or restrict a key federal discount survived a motion to dismiss upon remand to the district court. In 2021, healthcare providers filed an action alleging that the defendants sought to limit discounts under the 340B Drug Discount Program, a federal program which requires manufacturers to provide discounts on drugs to safety-net hospitals and clinics. After a joint lobbying effort by the defendants to limit 340B discounts for diabetes medications failed, the defendants allegedly agreed to implement novel restrictions which ended most qualifying sales. On August 6, 2025, the U.S. Court of Appeals for the Second Circuit reversed the dismissal of the action and remanded for further consideration of the plaintiffs’ state-law claims.
On June 26, 2026, the district court issued an order largely allowing the plaintiffs’ state-law antitrust claims to proceed but dismissing the plaintiffs’ unjust enrichment claims. The court reasoned that the plaintiffs’ claims were not barred by the U.S. Supreme Court’s 2011 decision in Astra USA Inc. v. Santa Clara County, which held that providers had to challenge 340B program “overcharges” through administrative proceedings instead of in court. However, the court dismissed the plaintiffs’ unjust enrichment claims because the relevant states did not allow indirect purchasers from recovering damages for overcharges or permit claims duplicative of state antitrust claims. This case highlights the legal complexities that can arise from commercial sales intertwined with both federal regulations and state laws.
On June 10, 2026, a federal district court declined to certify a class of outpatient clinic employees asserting claims that medical centers conspired to suppress their employment mobility and compensation. This case belongs to a line of “no-poach” litigation involving alleged agreements between employers not to recruit or hire each other’s employees. The court held that class certification was inappropriate because the proposed class was too diverse for common proof of wage suppression. The proposed class members differed in job titles, skills, specialties, and geographic location and therefore would require individualized proof of antitrust impact and damages. The court closely tied its class certification analysis to the parties’ proposed expert testimony. The court found that a regression analysis proposed by the plaintiff’s proposed expert witnesses was not reliable to measure wage suppression and granted the defendants’ Daubert motion to exclude the related testimony. Accordingly, the plaintiffs lacked a viable method of showing class-wide injury with common proof.
Nonprofit healthcare provider AIDS Healthcare Foundation (“AHF”) filed an action in federal district court on June 29, 2026, alleging that pharmacy benefit manager (“PBM”) Express Scripts, Inc. (“ESI”) violated Washington’s Unfair Business Practices and Consumer Protection Act by steering patients to affiliated pharmacies. PBMs including ESI manage prescription drug benefits for insurers, employers, and government programs and act as intermediaries between insurers and drug companies. AHF alleges that ESI uses its market power to push patients to affiliated specialty pharmacies by reimbursing those pharmacies at higher rates for the same services. AHF further alleges that this arrangement places independent specialty pharmacies that treat complex or expensive diseases like HIV at risk of closure. ESI has faced a variety of antitrust and competition suits in recent years, and as reported in our Q1 2026 update, ESI reached a proposed settlement with the FTC on February 4, 2026, requiring a wide range of changes to its drug reimbursement practices.
The second quarter of 2026 demonstrates that healthcare antitrust and competition remains a focal point for federal and state enforcers and private litigants. This field remains closely tied to hot-button antitrust and competition issues such as algorithmic pricing, private equity roll-ups, growing state enforcement, and consumer affordability. Moreover, healthcare antitrust and competition issues continue to affect a variety of industry participants including drug manufacturers, insurance companies, and hospital systems. Experienced antitrust counsel can help companies across the healthcare sector understand the rapidly evolving legal landscape and minimize their compliance risks.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.
Discover our latest:
CLE Events
Sixth Annual Navigating the Annual Meeting and Reporting Season
Join leading practitioners and industry voices for a timely discussion of the legal, regulatory, and governance developments shaping the next proxy season.
November 11, 2026
November 11, 2026 • 1-minute read
Events
David Strong Speaking at PLI Tax Strategies Conference in New York, Chicago, and Los Angeles
Partner David Strong will present on “Section 1202 Qualified Small Business Stock (QSBS)” at PLI’s Tax Strategies for Corporate Acquisitions, …
Multiple Dates
Multiple Dates • 1-minute read
Events
Vinson & Elkins Sponsoring and Speaking at TEI Annual Conference
Vinson & Elkins is a platinum sponsor of the 2026 TEI Annual Conference, taking place October 18–21 in Nashville, Tennessee. …
October 18–21, 2026
October 18–21, 2026 • 1-minute read
Events
Jenny Speck to Speak at 18th Annual OPIS RFS, RINs & Biofuels Forum
Partner Jenny Speck will speak on the panel “Credit Where Credit is Due: Finalizing 45Z” at the 18th Annual OPIS …
October 13, 2026
October 13, 2026 • 1-minute read
Events
On October 7, Alex Canizares will be speaking on a panel titled “Compliance and the Civil False Claims Act” as …
October 7, 2026
October 7, 2026 • 1-minute read
Thoughts or questions? Send us a note, and we’ll connect you with the right person.
