In the 1990s, Federal Trade Commission (FTC) enforcement actions to block mergers between health care providers were a rare phenomenon successfully obtained. In many instances, state Attorneys General filled the role of watchdog, especially since hospital mergers were relatively small and implicated local markets. Many, like the Pennsylvania Attorney General, were unable to convince the courts that the mergers should be stopped. That scoreboard has changed dramatically in the last decade and, even more so, over the last several months.
In 2007, the FTC came out on top in In re Matter of Evanston Northwestern Healthcare, Fed. Trade Commn., Docket No. 9315, (Aug. 6, 2007), an administrative agency action that represented the FTC’s first successful challenge to a hospital merger in recent history. Seven years later, in a bench trial in the District of Idaho, Saint Alphonsus Medical Center v. St. Luke’s Health System, the FTC with the Idaho Attorney General successfully challenged an already consummated merger between two small health care organizations, forcing them to divest, albeit with incriminating documents at center stage.
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