Carl W Hittinger And Tyson Y Herrold

March 31, 2017 | The Legal Intelligencer

Recently, we discussed in prior articles the antitrust legacy of Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit and nominee for the Supreme Court of the United States. Gorsuch has significant antitrust experience, both in private practice and on the bench. While at Kellogg, Huber, Hansen, Todd, Evans & Figel, Gorsuch defended "Baby Bell" SBC Communications, a company formed after the Federal Trade Commission's breakup of AT&T, and prosecuted (to a jury verdict) what is widely considered to be one of the largest private antitrust awards in Conwood v. United States Tobacco. As a judge on the Tenth Circuit, Gorsuch has written several high-profile antitrust opinions, among them Novell v. Microsoft, a case in which the Tenth Circuit concluded Microsoft had no duty under the Sherman Antitrust Act to share its intellectual property with rival software-developer Novell. Indeed, during Gorsuch's four-day Senate confirmation hearing last week, Democratic Sen. Amy Klobuchar called Gorsuch as an antitrust expert.

By Carl w. Hittinger and Tyson Y. Herrold

19 minute read

March 06, 2017 | The Legal Intelligencer

Last month, we discussed the ­antitrust jurisprudence of Neil Gorsuch, ­currently of the U.S. Court of Appeals for the Tenth Circuit judge and nominee to the Supreme Court of the United States. Our discussion focused on three of Gorsuch's opinions during his decade-long tenure with the court of appeals. Even before Gorsuch was nominated to the Tenth Circuit, however, he had already made a name for himself in the antitrust world as a trial lawyer for both plaintiffs and defendants.

By Carl W. Hittinger and Tyson Y. Herrold

18 minute read

February 06, 2017 | The Legal Intelligencer

Last March, we wrote a series of articles discussing Supreme Court Justice Antonin Scalia's antitrust legacy on the Supreme Court. We noted Scalia's admitted discomfort with the Sherman Act, specifically with holding corporate defendants, even monopolists, ­liable absent strong evidence of anti-competitive conduct. His likely successor appears to possibly hold similar views of the ­antitrust laws, ostensibly applying the Sherman Act to avoid replacing procompetitive, free-market behavior with judicially imposed, anti-competitive fiat, based on the record presented.

By Carl W. Hittinger 
And TYson Y. Herrold

17 minute read

December 05, 2016 | The Legal Intelligencer

Last month, we reported on the Federal Trade Commission's (FTC) steady filing of injunctions to block what are effectively local mergers of small health care providers. In 2007, the FTC filed suit in Saint Alphonsus Medical Center v. St. Luke's Health System, its first successful challenge to a hospital merger in recent history. Since then, the Obama administration-appointed FTC has appeared bolder in its approach to health care mergers, which have been on the uptick since the passage of the still-existing Affordable Care Act has encouraged providers to coordinate health care services and provide better service at a lower cost.

By Carl W. Hittinger 
and Tyson Y. Herrold

13 minute read

November 07, 2016 | The Legal Intelligencer

In the 1990s, Federal Trade Commission (FTC) enforcement actions to block mergers between health care providers were a rare phenomenon successfully ­obtained. In many instances, state Attorneys General filled the role of watchdog, especially since hospital mergers were relatively small and implicated local markets. Many, like the Pennsylvania Attorney General, were unable to convince the courts that the mergers should be stopped. That scoreboard has changed dramatically in the last decade and, even more so, over the last several months.

By Carl W. Hittinger 
and Tyson Y. Herrold

14 minute read