Antitrust Scrutiny Intensifies Around Private Equity Healthcare Transactions

Introduction

On June 3, 2022, Andrew Forman, Deputy Assistant Attorney General of the United States Department of Justice Antitrust Division (DOJ) publicly stated that the DOJ is considering "enhancing antitrust enforcement around a variety of issues surrounding private equity."¹ Citing "recent competition studies" and "firsthand [evidence]" of the "negative impact" of PE-driven consolidation in healthcare, Forman pointed to four areas of enforcement focus: (1) the cumulative competitive impact of roll-ups over time; (2) market distortions stemming from PE's focus on "short-term gains and aggressive cost-cutting"; (3) illegal interlocking directorates in violation of Section 8 of the Clayton Act; and (4) HSR filing deficiencies. Forman's remarks represent the latest – and most salient – antitrust challenge to private equity (PE) dealmaking by current agency leadership, as the storm clouds of competition enforcement in this area continue to gather.