Top Ten 2026: Health Care Antitrust—Key Takeaways

Based on AHLA's annual Health Law Connections article, this special ten-part series brings together thought leaders from across the health law field to discuss the top ten issues of 2026. In the seventh episode, Zi Peng, Managing Director, StoneTurn, speaks with Leslie Overton, Partner, Axinn Veltrop & Harkrider LLP, about how health care organizations can navigate the current antitrust regulatory environment. They discuss how organizations are weighing the costs and benefits of mergers, the impact of the government’s current approach to settlements and remedies, antitrust traps related to information technology and labor, and DOJ’s new whistleblower program. Sponsored by StoneTurn.

Watch this episode: https://www.youtube.com/watch?v=DnMk8CPn_W0

Read AHLA's Top Ten 2026 article: https://www.americanhealthlaw.org/content-library/connections-magazine/article/a879dda5-35f9-46fb-ad45-1b0799343d74/Health-Law-Forecast-2026

Access all episodes in AHLA's Top Ten 2026 podcast series: https://www.americanhealthlaw.org/education-events/speaking-of-health-law-podcasts/top-ten-issues-in-health-law-podcast-series

Learn more about StoneTurn: https://stoneturn.com/ 

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Transcript

SPEAKER_00 0:02

This episode of AHLA's annual top 10 series, discussing the major health law trends and developments of 2026, is sponsored by Stone Turn. Learn more at Stone Turn.com.

SPEAKER_02 0:17

Hi there. Welcome to American Health Law Association's Top 10 Podcast Series for 2026. I'm Z Peng, a Managing Director of Stone Turn. Stone Turn is a global professional services firm. My practice focuses on providing economic consulting support, including expert analysis in labor and employment disputes, security fraud, financial misconduct cases, as well as antitrust and consumer class action cases. Joining me today is Leslie Overton, an antitrust partner and accents chief workplace culture and opportunity officer. Leslie is co-author of Healthcare Antitrust in 2026, Key Takeaways, which is part of the top 10 articles that appear in January-February issue of AHLA's Health Law Connections magazine. Welcome, Leslie. Would you like to tell the listeners a little bit more about yourself?

SPEAKER_01 1:15

All right, sure. Thank you. Thank you, Z. So, as Z said, I am a partner, I'm an antitrust partner at Axon. And Axon is a specialty firm focused on largely on antitrust. And so I'm based in DC and I've been doing antitrust for almost 30 years. I've been fortunate to work on a number of interesting healthcare mergers, civil non-merger investigations, and healthcare policy, healthcare antitrust policy matters throughout my career, both in and out of government. During the Bush administration, I served as counsel to the Assistant Attorney General at the U.S. Department of Justice Antitrust Division and was responsible for coordinating the healthcare hearings that we did with the Federal Trade Commission and the report we jointly published. I later returned to DOJ during the Obama administration to serve as Deputy Assistant Attorney General and had the opportunity to supervise a number of healthcare matters and lead work on healthcare antitrust policy.

SPEAKER_02 2:21

Thank you so much, Leslie. And let's jump in. We are entering 2026 with a very active antitrust environment. But it isn't just coming from Washington, D.C. anymore. With states like California and Oregon introducing their own public interest standards and targeting private equity, there's a growing list of state and federal regulatory hurdles that organizations must clear. With that in mind, in this environment, how are organizations weighing costs and complexity of regulatory approvals alongside with business benefit and strategic value of a merger?

SPEAKER_01 3:02

Thank you for that question, Z. In my experience, organizations are still pursuing mergers that make sense for them strategically while working with their council and teams so that they're well prepared for the process and substantive review, or I should say processes, processes. There are also steps an organization can take before it even has a proposed merger that can make the Hart Scott Rodino pre-merger notification filing and other processes easier to prepare. Consider reaching out to Antitrust Council to learn what you can be doing proactively. And as a general matter, organizations are building increased regulatory complexities into their planning and timelines. I will say though, you know, going to your question, the antitrust landscape for healthcare deals has gotten more complex, no question about it. The changes to the HSR process that the Trump administration allowed to go into effect a year ago have made it more burdensome and costly, while also bringing strategic questions about competitive dynamics and market definition into play earlier when the parties have an op and overlap to identify. And we're seeing more action on the process side from the states. Washington and Colorado, as you note, have pre-merger notification requirements across all industries, and a half dozen or so jurisdictions legislations have introduced bills that are similar. Some states have notification requirements, particularly for health care. I think actually you mentioned California. They've expanded their law to also cover private equity and hedge fund healthcare acquisitions beginning this year. And I think you mentioned Oregon too. Their legislation relates to private equity and limits what management services organizations are able to do in healthcare. And yes, from a substantive perspective, some states do have public interest standards that go beyond antitrust in their scope. But again, this complexity is manageable with experienced counsel who can also help you have realistic expectations about the timing and the burden.

SPEAKER_02 5:29

Thank you, Leslie. And it sounds like getting to yes on the deal now involves a lot more than just confidence in the business strategy. And as you mentioned, um and also noted in your article, when government or even when government when the government is willing to settle, as we saw in the United Health Medicine merger, the price of emissions seems to be getting much higher. Are we reaching a point where these robust remedies and compliance monitors make a merger so burdensome that the strategic value of the deal is being stripped away even before it even closes?

SPEAKER_01 6:09

So I would say the short answer to that is generally no, uh, but let me provide some context. And so I, for one, am happy to see that this administration is open to considering settlements, whether of litigation or to address merger concerns via consent decrees. The Biden administration, both the FTC and the DOJ, took a hard line and employed settlements considerably less frequently than their predecessors. I thought that was an unfortunate policy stance that unnecessarily burdened the merger process, created litigation expenses for the government and parties that could have been avoided, and probably caused some parties to shy away from potential acquisitions that could have been done without harming consumers. I actually think this is a good time to be doing deals, given that openness to settlements and the agency leaders, unlike their most recent predecessors, do not come off as hostile to mergers generally. So competitive concerns with a number of mergers can be fixed in a way that makes the deal pro-competitive or competitively neutral. I do understand that enforcers need to be confident that a remedy will satisfactorily fix the competitive problem that the agency perceives and won't raise issues from an administration an administrability standpoint. In that respect, a focus on robust remedies doesn't surprise me, nor do I think that's a goal that's conceptually different from what we've seen in a number of prior administration administrations. I don't think, again, I don't think that's a reason for parties to shy away from merger activity. You did mention that recent United Health merger in the home health and hospice space. And I put that in the article really to send a message more that folks shouldn't think that because this is a Republican administration, you know, that there won't be robust remedies required, that remedies won't be taken, um, taken seriously. It was it was more to set that expectation. And and that particular merger did require a large divestiture and a compliance monitor and even a civil penalty on a Medicys and antitrust training for its leaders. There was a lot to that remedy. Um, but based on my own experience at DOJ during two administrations, remedies can be very customized, tailored to the particular facts and theories of harm at issue in the matter. They can also follow general policies that are endorsed by the leadership at the time, such as a strong preference for structural relief via divestitures. Again, I don't think we've reached a point where robust remedies are generally so burdensome that they strip away the strategic value of the deal. But when it is the case that a remedy the agency feels it needs to address the competitive concern, is so extensive or imposing that it would ruin the value proposition, I think that's when we tend to see parties abandoning their deal. And so I think we can presume that when parties reach an agreement with an agency, even if they don't love everything about the remedy, they may they've made a determination that the benefits of doing their deal, the strategic benefits, the benefits to um their uh their consumers, their stakeholders, um, outweigh those costs.

SPEAKER_02 9:51

Thank you so much, Leslie. And what's striking to me is that this pressure does not end with deal making. In fact, for many companies, the scrutiny is extending well beyond mergers altogether. Us beyond mergers, the DOJ is increasingly looking at how healthcare companies operate on a daily basis. They're targeting algorithm pricing platforms and criminalizing labor issues. In fact, nearly all of the criminal labor cases have been in the healthcare sector. So for an executive pool thinks they're playing by the ruse, what are the invisible antitrust traps in their current tax debt or their HR department?

SPEAKER_01 10:34

Thank you. Um, this is this is such an important uh issue. So I really I'm really glad you brought it up. Now I think of it as a process of in-house counsel identifying and addressing vulnerabilities with support from the organization's leadership and help from outside counsel. Are there people in HR who haven't received training and uh don't know that wage fixing and no poach agreements are of interest to DOJ's criminal antitrust program? Are there executives beyond HR who also need that message and haven't gotten it? With respect to algorithmic pricing, what types of platforms are being used in the organization to optimize revenue? And what's the process for vetting those platforms? What data is the organization providing those platforms? Are competitors using the platform too? Does the platform make pricing recommendations? Upon whose data are those recommendations based? Is the data public or confidential and competitively sensitive? Is the organization obligated to follow those recommendations? The degree of risk associated with any particular algorithmic platform is going to be a case-specific assessment based on the facts. The key, though, is for in-house counsel to get a handle on what platforms are used in their organizations so that those assessments can occur. And generally, what changes need to be made to the organization's compliance program so it protects against risks in 2026 and going forward? It's a good idea to touch base with your antitrust counsel. Sometimes antitrust compliance doesn't get as much attention in organizations as other types of compliance. It often isn't top of mind or well understood. But the consequences of even a perceived violation can be quite serious. So it's a future gift to the organization to shore up antitrust vulnerabilities as much as feasible.

SPEAKER_02 12:51

Thank you, Leslie. And another important topic that I want to touch on is if antitrust risks are embedded in everyday operations. And the critical inflection point is when someone inside organization recognizes them. That brings us to the topic of DOJ's new whistleblower program, which essentially puts a bounty on antitrust violations, offering individuals up to 30% of the fines. In this high-stakes environment, how must healthcare leaders evolve their internal compliance culture so that employees feel incentivized to report these issues internally rather than taking their information straight to the government for a payout?

SPEAKER_01 13:34

So that was that was a great question, and you worded it beautifully because you put a lot of important concepts in there in terms of compliance culture and incentives. How do we impact incentives? So this relates to uh just an a really important recent development um in the antitrust world that we're still seeing how it's going to play out. But but so far we um we already have the message that the Department of Justice is quite serious about their new whistleblower program. And that's because this month um they announced their first payment under that program, and it was a million dollars. So that's a talk about incentives, that that's a big number for uh an individual in an organization. So one would think that that could potentially incentivize a whistleblower. So that is why it's more important than ever that a company have a strong culture of compliance and effective internal reporting mechanisms so that personnel know about and feel comfortable using, so that individuals with concerns can give the organization the opportunity to investigate before these folks reach out to the government. The organization also needs to be prepared to act quickly and decisively when an issue does arise. Um, and so it gets to DOJ before a prospective whistleblower does. And a couple more points about this development. Before the first award, some people questioned, you know, how broad is the reach of this whistleblower, whistleblower program going to be, because it's in conjunction with the U.S. Postal uh service, and the conduct needs to affect the U.S. Postal Service. Well, that wasn't a problem in the case underlying this first award. The antitrust conduct at issue was digital, but there was some use of snail mail to transmit some documents. It doesn't seem to take much to satisfy that post office jurisdictional requirement. And then just the other point that I want to emphasize is that a company in this whistleblower situation we're talking about right now, a company inherited the antitrust problem through an acquisition. And so it's a reminder that it's important for an organization uh to promptly uh identify and report criminal anti-competitive conduct by an entity that it has purchased.

SPEAKER_02 16:28

Thank you, Leslie. Leslie, this has been an incredible insightful conversation. I think what really stands out is that antitrust risk today isn't confined to one moment or one transaction. It expands strategy, operations, technology, and culture. As we are coming to the end of this podcast, thank you so much again, Leslie, for joining me today and providing valuable insights for the listeners.

SPEAKER_01 16:53

Thank you so much. Thanks for the great insightful uh questions, and thank you to everyone who took the time to listen to this.

SPEAKER_00 17:06

If you enjoyed this episode, be sure to subscribe to AHLA's Speaking of Health Law wherever you get your podcasts. For more information about AHLA and the educational resources available to the health law community, visit Americanhealthlaw.org and stay updated on breaking healthcare industry news from the major media outlets with AHLA's Health Law Daily Podcast, exclusively for AHLA comprehensive members. To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org slash daily podcast.