FTC's Evanston Decision - Are Mergers Still OK?


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The FTC's Evanston Decision -
Are Mergers Still OK?
Audio Conference
November 15, 2005
1:00 - 2:30 pm (Eastern Time)

Faculty: Dan Mulholland, Susan Lapenta & Phil Zarone

The Trustbusters are back!

On October 20, 2005, an administrative law judge (ALJ) for the Federal Trade Commission handed down a 225-page decision requiring Evanston Northwestern Healthcare Corporation in Evanston, Illinois to sell Highland Park Hospital within 180 days.

The ALJ found that the acquisition of Highland Park by Evanston in 2000 "substantially lessened competition" and ordered the extraordinary remedy of divestiture. In doing so, the ALJ made a number of specific findings which, if upheld on appeal, could significantly alter how hospital mergers will be treated in the future, as well as change other aspects of health care antitrust law.
Among other things, the ALJ concluded:

The relevant product market was inpatient services sold to managed care organizations, ignoring competition from outpatient facilities
Patient flow statistics were irrelevant for defining the geographic market
Market perceptions of managed care organizations were given great weight
The fact that one hospital's chargemaster was updated provided evidence of market power
Management memos about the merger's achievements were used against the hospital
The hospital's nonprofit status didn't matter

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