On November 26, the U.S. Supreme Court will hear argument in FTC v. Phoebe Putney Health System, No. 11-1160, its first case in 20 years about “state action” immunity under the antitrust laws. Antitrust practitioners and scholars are understandably eager for the court’s latest thinking on the doctrine. But it is not clear that the case will change the law in any dramatic way. A clarification of the doctrine is the most likely result, and it will be welcome.
The Federal Trade Commission is the petitioner in the case, having lost its argument at the U.S. Court of Appeals for the Eleventh Circuit that the merger of two hospitals in rural Georgia violated the antitrust laws. The acquiring hospital, Phoebe Putney Memorial, is operated by a nonprofit corporation created by a regional hospital authority. The target hospital, Palmyra Park Hospital, was privately owned and operated. The FTC’s complaint alleged that Phoebe Putney’s acquisition of Palmyra created an “absolute monopoly” that could harm consumers in the region.
