Mergers & Acquisitions Constitutional Law Antitrust & Trade Regulation

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Competition News September 2016

By a controversial decision, the Constitutional Council ruled that so-called “simple” investigations comply with the constitution - The investigation services of the French Competition Authority made several requests for...more

Supreme Court Reviews Agency Comprised of Dental Professionals in State Action Case: Health Care Antitrust Cases to Watch in 2015

Federal and state courts are expected to rule on several nationally watched antitrust health care cases during the first half of 2015. As we enter into the first week of the New Year, Nexsen Pruet associate Rachel...more

Health Care Antitrust & the Supreme Court – Interview with Bruce Sokler, Member, Mintz Levin

Attorney Bruce Sokler, Chair of Mintz Levin's Antitrust Practice, discusses the Supreme Court’s first ever health care antitrust merger decision and its implications for the future. ...more

Supreme Court Unanimously Rejects Antitrust Immunity in Hospital Merger Case

What you need to know: The Supreme Court issued a unanimous decision siding with the FTC against a hospital merger in Georgia. What you need to do: Companies should conduct careful analysis before investing time and effort in a controversial merger. On February 19, the Supreme Court issued a unanimous decision in FTC v. Phoebe Putney Health System, Inc., siding with the FTC against a hospital merger. Based upon the wording of a Georgia statute that allows hospital authorities to make acquisitions, the hospitals had argued that the merger is protected from the federal antitrust laws under the state action immunity doctrine. Justice Sotomayor wrote a carefully worded opinion rejecting this defense. What does the Phoebe Putney ruling mean for the rest of us – in other states and in other industry sectors – and what does it mean for the other antitrust cases that are now before the Supreme Court? Please see full alert below for more information.more

Supreme Court Limits State Action Immunity In FTC v. Phoebe Putney Health System, Inc.

On Tuesday, the United States Supreme Court reined in the state action immunity doctrine, which exempts municipalities from scrutiny under the federal antitrust laws when they act pursuant to a “clearly articulated state policy” to displace competition. Justice Sonia Sotomayor, writing for a unanimous Court, held that the grant of general corporate powers by the state is not enough to confer state action immunity because “simple permission to play in a market” does not “foreseeably entail permission to roughhouse in that market” anticompetitively. In short, state regulatory statutes that confer general corporate powers to municipalities are not sufficient to meet the “clearly articulated” standard and cannot be interpreted to mean that the state intended to displace competition.more

Supreme Court Hands FTC Victory on State Action Immunity

In a unanimous opinion, the U.S. Supreme Court this week tightened the standard for state action immunity under federal antitrust laws in a case involving a hospital merger. This decision arguably tightens the reins on the availability of federal antitrust immunity, in particular limiting the circumstances in which entities may assert that they are immune state actors. It also should be considered a boost for the FTC’s continued resolve to take on hospital mergers that are perceived to have anticompetitive effects.more

Placing Limits on the State Action Doctrine, the Supreme Court Subjects Local Government Hospitals to Scrutiny under the Antitrust Laws

Recent major regulatory and technological developments have brought forth historic changes to the health care market. Health care providers have responded to these developments in several ways. One such mechanism, hospital consolidation, has in particular risen to historical levels. Last week, however, the Supreme Court appears to have put the brakes on some of these efforts.more

Supreme Court to Hear FTC Challenge to Anticompetitive Merger

The U.S. Supreme Court has agreed to hear the Federal Trade Commission's (FTC) appeal of an Eleventh Circuit ruling that a merger of two Georgia hospitals, Phoebe Putney Health System, Inc. (Phoebe) and Palmyra Park Hospital, Inc. (Palmyra), was exempt from antitrust scrutiny under the so-called "state action doctrine." Even though the Eleventh Circuit panel that reviewed the case agreed that the combination of Phoebe and Palmyra would likely substantially lessen competition and create a monopoly for general acute care hospital services in the Albany, Georgia area, it determined that a Georgia law creating the State's system of hospital authorities protected the merger from FTC challenge. This is the Supreme Court's first major case involving the state action doctrine in 20 years. The state action doctrine immunizes conduct of a state or its political subdivisions from antitrust scrutiny if undertaken pursuant to a "clearly articulated and affirmatively expressed state policy" intended to replace competition with regulation. This requirement is satisfied if anticompetitive conduct is a "foreseeable result" of state legislation. The doctrine extends to actions of private entities where the private conduct is "actively supervised" by the state. Please see full article below for more information.more

Supreme Court to Hear FTC Challenge to Georgia Hospital Merger

On June 25, the United States Supreme Court granted the Federal Trade Commission’s request that it review the 11th Circuit’s decision in Federal Trade Commission v. Phoebe Putney Health System. The case involves the FTC’s failed attempt to enjoin the merger of two southwest Georgia hospitals – Phoebe Putney and Palmyra Medical Center – on competitive grounds, and raises significant antitrust immunity issues. Significantly, as explained in the FTC’s petition for certiorari, the 11th Circuit rejected its claim despite agreeing with the FTC that the transaction would likely lessen competition for hospital services in Albany County. In reaching this rather surprising result, the 11th Circuit held that, regardless of its potential competitive implications, the transaction was immune from FTC challenge based upon the “State Action Doctrine,” a state sovereignty principle that immunizes state entities from the antitrust laws when they act pursuant to a “clearly articulated state policy” to replace competition with regulation. The Doctrine was implicated in this case because the local Hospital Authority was nominally the purchaser in the transaction (using Phoebe Putney funds to pay Palmyra and then agreeing to lease Palmyra to Phoebe Putney for a dollar a year for 40 years). Please see full alert below for more information.more

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