Antitrust & Competition Healthcare Quarterly Update Q3 2026

Healthcare remained a focus for federal and state antitrust enforcers in the third quarter of 2026. The Federal Trade Commission (FTC) and the Department of Justice (DOJ) (together, the “agencies”) were less active in bringing enforcement actions, but several developments are noteworthy for healthcare industry participants, including the DOJ’s return to a formal fast track for in-depth merger investigations, a record penalty for structuring a deal to avoid federal merger filing rules, new FTC warnings on patient price disclosures and distressed hospital sales, and new state healthcare transaction notification requirements for private equity deals.

I. Federal Merger Review 

The DOJ Resumes a Formal Fast-Track for Second Request Investigations

Deals above a certain size must be reported to the agencies before closing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). When the agencies conduct a detailed investigation as part of the HSR review process, they issue what is known as a “Second Request,” a lengthy and costly demand for documents and data. On July 23, 2026, the DOJ announced a return to targeted Second Request investigations through “Expedited Consideration,” an option that lets merging parties choose to first produce a targeted set of priority materials to narrow or resolve a Second Request rather than reach full compliance. Once a senior company official certifies under oath that the production is complete, DOJ leadership must offer a meeting within 21 days and, within 14 days after that, decide whether to close the investigation, narrow its requests, or continue with a full investigation.¹ The option carries some risk: If the DOJ is not satisfied, the parties must still fully comply and may have saved little time. It is also available only in DOJ reviews. Because the FTC typically reviews hospital and other provider deals and has no equivalent process, certain healthcare participants may not be able to utilize this option. See Goodwin’s earlier alert for more details.

Record Penalty for Structuring a Deal to Avoid Merger Filing

On July 13, 2026, the FTC announced that medical device makers Edwards Lifesciences (“Edwards”) and Genesis MedTech (“Genesis”) agreed to pay a record $12 million in combined penalties, subject to court approval, to settle allegations that they structured a deal to avoid filing under the HSR Act.² According to the FTC, Edwards agreed to pay $115 million plus milestone payments for a Genesis subsidiary, just under the $119.5 million filing threshold then in effect, while also agreeing to a separate $25 million investment in Genesis. The FTC alleged the two arrangements were in substance a single reportable deal.

The agencies will look at the substance of a deal, not just its stated price, to determine whether HSR filing thresholds are met. Healthcare parties whose deals include milestone payments, concurrent investments in the seller or its parent, or related agreements should work with experienced counsel to account for all such payments in their HSR analysis.

II. FTC Warnings on Patient Price Disclosures and Distressed Hospital Sales

FTC Issues Warning Letters to Healthcare Companies About Incomplete Price Information

On October 5, 2026, FTC Chairman Andrew Ferguson sent warning letters to 24 large healthcare companies, which the FTC did not name, saying that failing to give patients timely, accurate, and complete prices can be an unfair or deceptive practice under Section 5 of the FTC Act, the FTC’s general consumer protection law.³ The letters say that complying with federal price transparency rules is a baseline, not a safe harbor, and that price information that leaves out physician or facility fees or covers only part of a course of care may mislead patients and keep them from comparing providers. The letters come as part of a broader effort by the Trump administration to increase price transparency, and, on the same day, federal regulators finalized separate price transparency rules for health plans and insurers.⁴ Chairman Ferguson said the FTC will take providers that do not disclose prices to court. Health systems should review their patient-facing price information, including online estimators, for completeness.

FTC Signals Strict Review of Distressed Hospital Sales

On September 1, 2026, Adena Health (“Adena”) announced its acquisition of Fairfield Medical Center (FMC) in southeastern Ohio, following an FTC investigation of FMC’s earlier agreement to be acquired by OhioHealth, a 16-hospital system in central Ohio.⁵ FTC staff, working with the Ohio attorney general, raised concerns that the OhioHealth deal would increase prices and reduce quality and questioned how thoroughly FMC had searched for other buyers. Staff encouraged FMC to run a broader sales process. FMC then dropped OhioHealth and sold to Adena, which has no competing hospital in the area.

In a related statement, Chairman Ferguson, joined by Commissioner Mark Meador, said financial distress is “not a blank check” for mergers that would substantially reduce competition between hospitals.⁶ Under the “failing firm” defense, merging companies argue that a deal that would otherwise raise competition concerns should be allowed because the business being bought is no longer viable and there is no better alternative buyer. Chairman Ferguson recognized that patients may be better off when a distressed hospital is acquired rather than closed but stressed that such a hospital must show it searched thoroughly for buyers that do not present competitive issues. FTC staff generally look at whether the seller contacted the full range of potential buyers, gave them enough time and equal information, dealt with them in good faith, and fairly considered offers from buyers that raised no competitive concerns. If a process falls short, the FTC may require the seller to re-shop, which can delay a deal. Distressed sellers should run a broad search before signing with a competitor and document each step.

III. State Developments

Many states require healthcare deals to be reported to state regulators before closing, and new rules increasingly target private equity firms, hedge funds, and management services organizations (MSOs), which handle the business side of medical practices. See our overview of these state healthcare transaction notification laws.

Illinois

On August 7, 2026, Governor JB Pritzker signed House Bill 5000, which makes the state’s healthcare deal notice requirement permanent (it was set to expire) and widens it, effective January 1, 2027.⁷ Notice to the attorney general will be required for deals involving private equity companies that acquire any interest in an Illinois provider or healthcare facility or in an out-of-state provider with $10 million or more in annual revenue from Illinois patients and for deals in which the parties are holding companies that own the providers. Notice is required at least 30 days before closing.

California

On October 2, 2026, California approved emergency regulations implementing Assembly Bill 1415, a 2025 law requiring private equity groups, hedge funds, and MSOs to give the state’s Office of Health Care Affordability (OHCA) a 90-day advance notice of many deals.⁸ The regulations are now in effect. As we previously described, they require notice when a private equity group or hedge fund acquires 10% or more of a healthcare entity’s assets, equity, or debt (or certain governance rights), cover sale-leaseback transactions, and require detailed disclosure about the acquirer’s healthcare holdings and debt. The 10% trigger is higher than the 5% proposed in May. Investors with California operations should consider whether minority investments, recapitalizations, and sale-leasebacks that previously fell outside the state’s review may now require notice.

State Copies of Federal Merger Filings

More states now require merging parties to submit copies of their federal HSR filings to the state attorney general. Washington and Colorado have industry agnostic regimes in effect, and California’s industry agnostic process takes effect January 1, 2027 (in addition to California’s OHCA and retail drug firm laws covering healthcare). More states are likely to follow, so healthcare companies and investors should account for these filings when planning deal timelines.

Goodwin will continue to monitor these developments and provide updates as they occur.