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U.S. Federal Trade Commission buildingU.S. Federal Trade Commission building (ALM/Diego M. Radzinschi)

Lisl Dunlop

One of the most interesting set of antitrust cases in 2016—in which some of our members directly participated—were the challenges by the Federal Trade Commission to two significant proposed hospital mergers. These cases were a rollercoaster ride for the parties and the agency: two different district courts first refused to grant the FTC preliminary injunctions against the mergers, reversing several years of hospital enforcement successes; and then two different circuit courts of appeal reversed those rulings, setting the FTC back on course. Although the factual background differed in each case, both cases revolved around the FTC’s burden to prove a relevant geographic market. Establishing a relevant market is a crucial factor in merger antitrust cases: the existence of high combined shares in the relevant market enables the FTC to establish a presumption of anticompetitive effect from the transaction, which is often difficult for merging parties to refute.

In late 2015, the FTC announced that it had filed concurrent administrative and federal district court proceedings against the proposed mergers of Penn State Hershey Medical Center and PinnacleHealth System in Pennsylvania and of Advocate Health Care Network and NorthShore University HealthSystem in Illinois. Both cases proceeded to trial in the spring and early summer of 2016 and the respective district courts ruled within a month of each other—F.T.C. v. Penn State Hershey Medical Center, 2016-1 Trade Cases ¶79,616 (M.D. Pa., May 9, 2016); F.T.C. v. Advocate Health Care Network, 2016-1 Trade Cases ¶79,668 (N.D. Ill., June 20, 2016).

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