It’s a crime, a violation of antitrust law, to conspire to allocate a market, thus driving up price. It’s particularly egregious when the conspiracy involves the market for medical care for cancer treatment.
Earlier this year, the U.S. Department of Justice (“DOJ”) announced the coordinated filing of a one-count felony charge against Florida Cancer Specialists & Research Institute LLC (“FCS”), an oncology group headquartered in Fort Myers, Florida, and a deferred prosecution agreement with FCS whereby it agreed to pay a $100 million criminal penalty, the statutory maximum.
Underlying the charge were allegations that FCS participated in a criminal antitrust conspiracy with a competing oncology group whereby the groups agreed not to compete to provide chemotherapy and radiation treatments to cancer patients. The allegations were that the conspiracy allocated chemotherapy treatments to FCS, and radiation treatments to a competing oncology group, such that FCS was illegally allowed to operate with minimal competition in Southwest Florida; thereby limiting valuable integrated care options and choices for cancer patients.
The deferred prosecution agreement includes FCS’s agreement not to enforce any non-compete provisions with its current or former oncologists or other employees who open or join an oncology practice in Southwest Florida. And, it requires FCS to cooperate fully with the government’s ongoing investigation.
As a likely result of that cooperation, the DOJ announced on September 24, 2020, the return of a grand jury indictment against FCS’s founder and former president, William Harwin, M.D., for his alleged participation in the antitrust conspiracy. It must be noted that an indictment is a set of allegations, not a conviction.
If proven guilty, Dr. Harwin could be sentenced to up to 10 years in prison and a $1 million fine.
Entities might enter into an illegal arrangement and eventually suffer both the criminal and civil prosecution consequences. But that’s not the end of the story: Government investigations, prosecutions, and convictions can, and do, reach through to the individuals involved.
Comment or contact me if you’d like to discuss this post.
Mark F. Weiss