Antitrust Counseling for Hospital and Physician Affiliations In an Age of FTC Dominance

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It seems like a long time ago since the government last lost a hospital or physician merger case—it was. The Federal Trade Commission (FTC) and Department of Justice famously lost six hospital merger cases in a row in the 1990s. After a short hiatus in hospital merger enforcement, during which the FTC conducted a retrospective study to see what it was doing wrong, the FTC retook the field in 2004, when it challenged the already consummated Evanston Northwestern Hospital merger. The FTC won that case and has won (through litigation or favorable settlement) every hospital or physician merger challenge filed since. With the FTC victory in the St. Luke’s case in February 2015, the government’s winning streak now has reached eight—six of these challenges involved hospital mergers and two involved physician acquisitions by hospitals.


At the same time the FTC has been piling up wins, financial pressures on hospitals have increased. Declining reimbursement, shorter lengths of stay, and a continuing historical trend to perform in outpatient settings many procedures previously done on an inpatient basis have combined to worsen the financial outlook for hospitals. In response, many hospitals have reviewed their merger options, sought stronger financial partners, or explored acquiring physician groups to diversify their revenue streams. In light of the FTC’s decade-long winning streak, lawyers advising providers might profitably borrow a leaf from the FTC’s book and conduct their own retrospective analysis to focus on what might work better in the future.


It is critical to conduct this analysis now. The Ninth Circuit’s decision in St. Luke’s and the Sixth Circuit’s decision last year in ProMedica have raised numerous concerns among providers.


Educational Objectives:
• Address antitrust counseling for hospital and physician affiliations
• Examine the role of the Federal Trade Commission in hospital and physician merger cases
• Discuss the role of efficiencies, including claims of improved patient care
• Review the implications of the Ninth Circuit’s decision in St. Luke’s and the Sixth Circuit’s decision in ProMedica.


Who would benefit most from attending this program?


Anyone interested in antitrust counseling for hospital and physician affiliations and the oversight of the Federal Trade Commission.

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Douglas C. Ross is a partner with Davis Wright Tremaine LLP and is the chair of the firm’s litigation practice. He concentrates his practice in antitrust and complex litigation. He entered private practice after spending four years with the government, primarily at the Antitrust Division of the United States Department of Justice. He served as chair of the firm’s litigation practice group from 2008 through 2013. Douglas is an officer of the American Bar Association’s Section of Antitrust Law and a member of the ABA’s House of Delegates. He is a member of the Bloomberg Bureau of National Affairs’ Health Law Advisory Board and past chair of the Antitrust Practice Group of the American Health Lawyers Association. Douglas is listed by "The Best Lawyers in America" as Seattle Antitrust Lawyer of the Year. The publication lists him in Antitrust Law and Litigation, Commercial Litigation, and Health Care Law. Chambers USA lists Douglas as one of "America’s Leading Lawyers in Business" in Commercial Litigation. He is an adjunct professor at the University of Washington School of Law where he teaches antitrust, competition and health care. Douglas is a member of the District of Columbia and Washington bars.


Dr. Wu's expertise is in the economics of antitrust and intellectual property. He has testified in United States district courts and in a variety of regulatory proceedings. Prior to joining NERA, he was a staff economist in the Bureau of Economics of the Federal Trade Commission. He is currently a Visiting Scholar at the Stanford Institute for Economic Policy Research. In the area of antitrust, Dr. Wu has evaluated the competitive effects of numerous mergers and acquisitions. These include proposed and consummated transactions. He also has been retained as an economic expert to testify on issues related to antitrust class certification, liability, and damages. He has testified on issues related to price fixing, as well as market definition and market power in antitrust litigations involving allegations of exclusive contracting, price discrimination, and anticompetitive exclusionary conduct. Dr. Wu has analyzed these and other competitive issues in a variety of retail, manufacturing, and service industries, but he is particularly well known for his work in the area of health care, which includes health insurance, hospital services, physician services, and a variety of medical devices and technologies. With respect to intellectual property economics, Dr. Wu has testified on reasonable royalties, and he has written and consulted on issues involving patent pools. Dr. Wu is the editor of two books on the economics of antitrust. Dr. Wu earned his PhD from the University of Chicago Graduate School of Business and his BA from Stanford University.