Herbert F. Allen

Herb Allen defends M&A transactions before FTC, DOJ, and state antitrust enforcers, and he litigates antitrust claims in courts around the country. Herb has fifteen years of experience advising companies in heavily scrutinized industries, including health care, pharmaceuticals, private equity, telecommunications, chemicals, manufacturing, sports, and technology.

Herb currently serves as the chair of the American Health Law Association’s (AHLA) Antitrust Practice Group, and has in-depth experience advising on antitrust issues in the health care and pharmaceutical sectors. Herb has secured antitrust approval for dozens of M&A transactions involving hospitals, physician groups, surgery centers, and pharmaceutical companies, often involving in-market competitors. Herb also frequently advises health care providers on the formation of provider networks and joint ventures. Herb has particularly deep experience representing faith-based health systems, having represented four of the largest Catholic health systems in the country on a wide range of antitrust matters.

In his counseling practice, Herb provides strategic guidance on premerger notification issues, including compliance with the federal Hart-Scott-Rodino Act (HSR Act), as well as the growing number of state premerger notification laws. Herb also frequently advises on intellectual property issues, antitrust concerns related to generic drug approval under the Hatch-Waxman Act, the design and implementation of antitrust compliance programs, employment-related antitrust issues such as non-compete and non-solicitation provisions, pricing issues, platform and distribution arrangements, standard-setting initiatives, and joint ventures.

Herb’s representative matters have included:

• State of Washington v. Franciscan Health System– Herb successfully represented a health system facing a state enforcer’s lawsuit seeking to unwind two transactions, defeating the merger challenge on a summary judgment motion. This case marked a rare instance where a government enforcer’s merger challenge under Section 7 of the Clayton Act was defeated on a motion for summary judgment.
• Successful Response to a Major FTC “Second Request” Investigation into an Academic Medical Center’s Acquisition of Community Hospitals – Herb successfully represented an academic medical center in response to a major “Second Request” merger investigation, resulting in the FTC allowing the transaction to proceed. The FTC closed the investigation after substantial compliance with the Second Request and meetings with the FTC Commissioners.
• Successful Response to a State Enforcer’s Investigation into the Impact of a Catholic Health System’s ERD’s on an Acquired Health System – Herb successfully responded to a state enforcer’s post-closing investigation into the impact of ethical and religious directives (ERDs) on the availability of health services at an acquired health system. The state enforcer closed the investigation with no action against Herb’s client.
• Offensive Restrictive Covenant Antitrust Litigation – Herb represented two faith-based hospitals in antitrust litigation relating to the use of non-compete and non-solicitation clauses by a national provider of specialized health care services.
• Roll-Up Antitrust Litigation on Behalf of a Faith-Based Health System – Herb successfully represented a faith-based health system in antitrust litigation alleging that a competitor engaged in a series of anticompetitive acquisitions of health care providers in the relevant geographic market.
• Successful Response to an FTC Investigation into the Sale of a Financially Distressed Hospital to an In-Market Competitor – Herb successfully responded to the FTC’s investigation into the sale of a hospital to an in-market competitor. The FTC closed the investigation, allowing the transaction to proceed, based on the target hospital’s dire financial condition.
• Mangla v. CHI St. Luke’s - Herb won dismissal with prejudice of exclusive-dealing antitrust claims brought against a Texas hospital system.
• In Mylan Pharmaceuticals Inc. v. Warner Chilcott Public Limited Co. (Doryx), Herb played a key role in helping a pharmaceutical company defeat a “product hopping” antitrust claim on a motion for summary judgment, a result that was upheld in the Third Circuit.
• Non-Public FTC Investigation in Alleged Anticompetitive Conduct Chemical Industry – Herb defended a chemical company in a confidential FTC probe. The FTC closed the investigation with no action against Herb’s client.

Note that above list includes matters Herb’s handled prior to joining Honigman LLP.

Practice Areas

Prior Experience

• Polsinelli PC, Antitrust and Litigation Shareholder
• White & Case LLP, Antitrust and Litigation Associate
• U.S. District Court, M.D. Tenn. U.S. Courthouse, Nashville, TN, The Honorable John T. Nixon, Summer Judicial Clerk

Education

Admissions

Professional & Community Involvement

American Health Law Association (AHLA), Antitrust Practice Group

• Chair (2025-2027)
• Vice Chair (2022-2024)
• Leadership Development Program (2021-2022)

American Bar Association, Antitrust Section

Swedish-American Chamber of Commerce, Washington, DC (SACC-DC)

News

Press Releases

Events

Private Equity in the Cross Hairs: Navigating Increasing Antitrust Scrutiny of Private Equity Deals in Health Care | AHLA Webinar | May 22, 2024

Overview of the New Illinois Premerger Notification Law: Interview with Elizabeth Maxeiner, Antitrust Chief in the Illinois AG’s Office | AHLA Podcast | January 2024

Vertical Transactions in the Crosshairs: Navigating Heightened Antitrust Scrutiny of Vertical Deals | AHLA Transactions Conference | Nashville, TN | April 17-19, 2023

Antitrust Considerations in Strategic Planning and Governance | AHLA Webinar | February 7, 2023

Antitrust Compliance for Health Care Companies | AHLA Webinar | May 4, 2022

Rethinking Antitrust Compliance in Response to New Risks | Strafford Webinar | June 2, 2022

DOJ Guidance on Antitrust Compliance Programs: Practical Tips and Takeaways for Companies Large and Small | Strafford Webinar | December 3, 2020

New DOJ Guidance Puts Antitrust Compliance in the Crosshairs: Practical Tips and Takeaways for Companies Large and Small | Strafford Webinar | October 2019

Navigating the Alphabet Soup of Unilateral Pricing Policies | American Lighting Association Annual Conference | Scottsdale, AZ | September 2019

Getting the Best Deal Done | Healthcare Dealmaker’s Conference | Dallas, TX | Co-Panelist | May 2, 2019

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