USA Trends and Developments Contributed by: Peter Mucchetti, Sharis Pozen, Brian Concklin and Michael Van Arsdall, Clifford Chance US
Looking Ahead Scrutiny of the healthcare sector continues with a focus on vertical integration, pricing algorithms and market consolidation. The FTC continues to inves - tigate hospital mergers, while the DOJ created an “Anticompetitive Regulations Task Force” to identify (among other issues) regulatory structures that pro - mote consolidation or over-billing in healthcare. Ongo - ing litigation includes class actions against pharma - ceutical benefit managers and GoodRx, focused on alleged algorithmic collusion and pricing manipulation, and the new administration’s first merger challenge targeting a private equity acquisition in the medical device coatings market ( In the matter of GTCR BC Holdings, LLC and Surmodics, Inc ). The Trump administration has adopted a more neu - tral tone towards private equity firms, signalling a departure from the Biden administration’s aggressive scrutiny and enforcement posture. For instance, in the Biden FTC, after Welsh Carson was dismissed from the FTC’s antitrust case against its portfolio company, US Anesthesia Partners, the FTC reached a consent order with Welsh Carson, imposing acquisition restric - tions, limiting board representation and requiring prior notice for its investments in hospital-based physician groups. In contrast, Republican FTC commission - ers have said that the FTC should be less concerned about whether an acquirer is a private equity firm and instead focus more on traditional antitrust analysis. In June 2025, US District Judge Julien Neals denied Apple’s motion to dismiss the DOJ’s lawsuit against that company, ruling that the DOJ adequately alleged that Apple had unlawfully monopolised and attempted to monopolise the US smartphone market by restrict - ing cross-platform technologies that enable third-par - ty products. Notably, Apple raised the “refusal to deal” defence, which provides that a firm generally does not incur liability under the Sherman Act solely for choos - ing not to do business with others. Apple asserted that it had no obligation to assist competitors or provide access to its proprietary technologies, such as APIs or iOS features, and that its decisions were based on business interests. The court rejected this defence, saying that the refusal to deal is not unqualified and does not cover Apple’s
The Trump administration has also used behavioural remedies. In June 2025, the FTC entered a consent order with Omnicom Group and Interpublic Group, approving their merger on the condition that the par - ties refrain from directing advertising spending “based on political or ideological viewpoints”. The legality of President Trump’s firing of two Demo - cratic FTC commissioners remains an open question. In March 2025, Trump dismissed Alvaro Bedoya and Rebecca Kelly Slaughter from the FTC. Both chal - lenged the terminations, filing suit in the US District Court for the District of Columbia (see Slaughter v Trump ), asserting that their removal violated the FTC Act, which allows commissioners to be dismissed only for “inefficiency, neglect of duty, or malfeasance in office”. The suit centres on Humphrey’s Executor v United States , which established protections against at-will removal of FTC commissioners. The adminis - tration contends that the court should interpret Hum- phrey’s Executor in light of more recent Supreme Court decisions, including Seila Law v CFPB , which allowed the President to fire the Consumer Financial Protection Bureau (CFPB) director at will, and Collins v Yellen , which extended similar logic to the head of the Federal Housing Finance Agency. In July 2025, the District Court granted Slaughter’s motion for summary judgment, relying on Humphrey’s Executor as con - trolling precedent. However, the Trump administration immediately filed for an appeal to stay the order, which the US Court of Appeals for the District of Columbia granted. The FTC’s sweeping rule to ban all non-competes nationwide (16 CFR Section 910.1–.6), originally scheduled to take effect on 4 September 2024, will likely not proceed. Two Republican commissioners, Chair Ferguson and Commissioner Melissa Holyoak, dissented from the final rule, arguing that such broad regulatory action exceeds the FTC’s authority and usurps powers reserved for Congress. In August 2024, US District Courts for the Northern District of Texas and Middle District of Florida temporarily blocked the rule; while the FTC initially appealed, it has requested a pause in those appeals, citing the change in presi - dential administrations and Chair Ferguson’s com - ments that the FTC may reconsider defending the rule.
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