The Situation: The Federal Trade Commission ("FTC") recently filed a rare monopolization case, alleging that a health information technology company illegally monopolized two e-prescribing markets. The Impact: The FTC continues to aggressively enforce the antitrust laws in the health care industry. Contracts that the FTC believes unfairly lock in customers and harm competitors are likely to receive scrutiny. Looking Ahead: The outcome of this case may help clarify when conduct such as exclusivity, loyalty discounts, or non-compete clauses violate the antitrust laws. This case also signals the FTC’s interest in developing law in two-sided markets following the Supreme Court’s American Express decision in which the Court held that proof of harm in both sides of a market must be shown.
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