On August 11, Illinois Governor J.B. Pritzker signed House Bill 2222 (Public Act 103-0526) into law — bolstering Illinois’ antitrust prevention efforts by expanding the oversight purview of its Attorney General’s (AG) office with respect to health care transactions. Under the new law, the Illinois AG now has the power to review and assess certain “covered transactions” entered into between health care facilities and providers.

Among other things, House Bill 2222 amends the Illinois Antitrust Act by requiring health care facilities and provider organizations to provide 30 days’ notice to the Illinois AG prior to engaging in any merger, acquisition, or contracting affiliation between two or more health care facilities or provider organizations not previously under common ownership or contracting affiliation (“covered transactions”). If an out-of-state entity is involved in the transaction, notice is only required if the out-of-state entity generates $10 million or more in annual patient revenue from Illinois residents.

In addition to amending the Illinois Antitrust Act, House Bill 2222 also amends the Illinois Finance Act by establishing a new antitrust enforcement fund, and amends Illinois’ Health Facilities Planning Act by adding a requirement of notice to the Illinois AG for change of ownership of a health care facility.

House Bill 2222 also grants Illinois’ AG the authority to request additional information, as it deems necessary, within 30 days of receiving notice of the covered transaction. If the AG requests such additional information, the transaction may not proceed until 30 days after the parties have substantially complied with the requests.

With the enaction of House Bill 2222, Illinois joins the likes of California, Connecticut, Massachusetts, New York, and others in crafting a dedicated health care transaction review process. However, despite the legislature’s commendable efforts to stem the tide of antitrust conduct by establishing a broad review process, the act has the potential to negatively impact the health care market due to potentially indeterminate delays. Because House Bill 2222 requires, but does not define, substantial compliance with requests of Illinois’ AG, there is significant risk of extended delays given the lack of clarity with respect to what conduct would satisfy the “substantial compliance” threshold. For example, if the determination of compliance is left to the sole discretion of Illinois’ AG, then the review process can last however long it takes for the Illinois AG to make its determination, with no obvious check on that power evident in the act’s text.

Takeaway

States and their AGs remain committed to identifying and addressing perceived antitrust violations — particularly in the realm of health care. Whether it be alleged pricing, market allocation, or transactional violations, states have painted a clear target on the back of the health care industry. In light of this focus, it is incumbent upon participants in the health care industry to stay apprised of the onslaught of state legislation specifically tailored to scrutinize every aspect of the health care market.

Troutman Pepper State Attorneys General Team

	Ashley Taylor – Co-leader and Firm Vice Chair Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
	Clay Friedman – Co-leader Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
	Judy Jagdmann Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
	Stephen Piepgrass Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
	Avi Schick A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
	Michael Yaghi Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
	Ketan Bhirud As a former government official at the state and federal level, Ketan leverages extensive experience in the public and private sectors to skillfully represent client interests.
	Tim Bado Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
	Chris Carlson Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
	Natalia Jacobo Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
	Namrata Kang Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
	Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
	Susan Nikdel Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
	John Sample John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
	Whitney Shephard Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
	Trey Smith Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
	Daniel Waltz An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
	Stephanie Kozol Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.