Elevated consolidation within the well being care sector continues to attract media consideration and antitrust scrutiny from a wide range of regulators together with the Federal Commerce Fee, the Antitrust Division of the Division of Justice and state attorneys basic. Because of this, well being care suppliers and hospital methods that are contemplating mergers, acquisitions and different varieties of strategic partnerships or joint ventures ought to take steps to make sure that they don’t violate antitrust legal guidelines when sharing data relating to the enterprise case for a selected transaction and also needs to remember that failing to shut a transaction can flip a possible companion right into a better-informed competitor. Nevertheless, it isn’t at all times clear what data could also be shared, or with whom. Additionally it is tough to know when a typical non-disclosure settlement might fall in need of the specified protections. Generally, one of the best apply is to ascertain guardrails across the diligence course of by delegating the duty for reviewing documentation for competitively delicate data (and probably scrubbing such documentation to take away any competitively delicate data) to a 3rd occasion or a particular group of the client’s workers (a “Clear Group”).
Talking typically, a Clear Group’s objective is to filter and take away competitively delicate data from the stream of data flowing from a vendor to a purchaser. A Clear Group might accomplish this by, amongst different issues, redacting sure data (together with, however not restricted to, strategic plans, enterprise valuations, doctor compensation insurance policies, payor charges, facility efficiency, contractual phrases for particular clients or suppliers, and future plans similar to expansions or different capital expenditures) from paperwork {that a} vendor gives to a purchaser within the due diligence section of a transaction. A Clear Group may additionally mixture or roll-up sure data in order that it may be introduced to the client in a abstract report or different method that doesn’t reveal competitively delicate particulars. The listing under highlights three suggestions with respect to the institution and work of Clear Groups, however it isn’t meant to be an exhaustive listing of potential antitrust concerns.
1. Use non-competitively delicate data, if potential
Whereas the trade of sure competitively delicate data relating to the events to a possible transaction is a needed a part of the planning course of, regulators are involved that, if not finished fastidiously and thoughtfully, the trade of data may give the events a possibility to interact in present or future anticompetitive habits. Thus, the events ought to, earlier than responding to any request for competitively delicate data as a part of a due diligence request, think about whether or not there may be any publicly accessible or in any other case non-competitively delicate data which might fulfill the request. For instance, historic monetary statements, tax returns, and asset depreciation schedules are sometimes not thought of to be competitively delicate and could be workable substitutes for sure competitively delicate data similar to present or future budgets or capital expenditure plans.
2. Select the fitting group
Cautious consideration must be given to the composition of the Clear Group. Usually, it’s preferable to have a 3rd occasion, similar to a purchaser’s exterior authorized counsel, exterior antitrust counsel or monetary advisers, function the Clear Group. Any third occasion chosen ought to enter into an settlement (the “Clear Group Settlement”) with the client and vendor setting forth the third occasion’s duties and obligations, together with the responsibility to keep up the confidentiality of any data offered to it and to not share any competitively delicate data in an unredacted, disaggregated or in any other case unapproved kind with the client or its workers. Moreover, the identification of every worker or consultant of the third occasion must be disclosed to the client and vendor and such worker or consultant ought to execute an acknowledgment of such particular person’s obligations as a consultant of the third occasion below the Clear Group Settlement. Importantly, the Clear Group Settlement acts as a complement to, and never a substitute of, the non-disclosure settlement that the client and vendor ought to have entered into on the very outset of their negotiations.
Nevertheless, it isn’t at all times potential to interact a 3rd occasion solely for the aim of serving as a clear group. Hiring a 3rd occasion could also be pricey and time consuming, and the popular third occasion might not conform to serve in a Clear Group capability for a given transaction. Due to this fact, the duty could also be left to sure workers of the client, which presents its personal challenges. Workers of the client might function members of a Clear Group, offered that such workers wouldn’t have (and should not moderately prone to have within the close to future) obligations regarding strategic planning, direct pricing, negotiating payor agreements, gross sales and advertising, doctor compensation or different duties which might enable them to make use of any competitively delicate data revealed to them in an anti-competitive method on behalf of the client. It may be tough to seek out the fitting stability as a result of every worker ought to (1) be sufficiently educated relating to the potential transaction and their duty to forestall the inappropriate disclosure of competitively delicate data, however (2) not have (and should not prone to have within the close to future) any job obligations which might allow such worker to behave in an anti-competitive method based mostly on the data offered to them pursuant to their Clear Group duties.
3. Set up a clear room
To facilitate the switch of data between the events, the events want to ascertain a mechanism by which the vendor can present data which is probably competitively delicate to the Clear Group, which is able to then evaluate such data and go it alongside to the client if applicable. Due to the big quantity of paperwork which can must be reviewed, finest apply is to ascertain a separate digital knowledge room through which all paperwork to be offered by the vendor could be uploaded by the vendor and reviewed by the Clear Group (the “Clear Room”). The customer and its workers and representatives that aren’t on the Clear Group mustn’t have entry to the Clear Room. The Clear Group ought to then evaluate every doc offered and log whether or not the doc incorporates any competitively delicate data. If the Clear Group and antitrust counsel for the vendor concur {that a} doc incorporates no competitively delicate data, then the Clear Group can then ship the doc on to a separate digital knowledge room (the “Strange Information Room”) which the client and its workers and representatives might entry. The Strange Information Room and Clear Room ought to have the same file hierarchy for ease of use and they need to even have clearly distinguishable names with the intention to be certain that a doc isn’t mistakenly uploaded to the Strange Information Room previous to evaluate by the Clear Group. If a doc does include competitively delicate data, then the Clear Group ought to observe procedures established by the events’ respective antitrust counsels for redacting or aggregating the data earlier than sending to the Strange Information Room, or withholding such data fully if applicable.
Tyler Ash and Greg Mennerick are attorneys in Thompson Coburn’s Well being Care group.
