This year was an active year in antitrust, particularly for the Federal Trade Commission. The FTC has aggressively pursued antitrust activity in the health care industry; challenged reportable and nonreportable transactions at a staggering rate; indicated a new desire to seek disgorgement of profits and restitution damages in all their investigations; and seen their full-steam-ahead strategy for increased authority under Section 5 of the FTC Act challenged by many in Congress and yet to see any blessing by the courts. 2012 was a busy year for the FTC in antitrust, and with the re-election of President Obama, their aggressive antitrust enforcement appears poised to continue through 2013.
The health care industry has been a hotbed of antitrust enforcement for several years now, but this year, the activity reached a fever pitch. Antitrust concerns in the health care industry span a variety of areas and affect every type of entity involved in health care. Perhaps most notably, the FTC’s challenge of a hospital merger has the Supreme Court of the United States poised to hear its first notable merger case in more than 30 years.
