In this issue:
This issue we analyze two recent highly important antitrust court decisions. The significance of N.Car. Dental is driven home by the fact that professional licensing boards regulate nearly 1/3 of the U.S. workforce. Per Herb Hovenkamp, a key question is “how much federalism” vs. “how much national competition policy.” And FTC. v. St. Luke’s presents two possible lessons: (i) the ACA doesn’t (yet) impact antitrust analysis, and (ii) high post-merger market shares create a presumption of harm that can only be rebutted by proving a negative.
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The First Critical Court Decision: North Carolina Dental
Rediscovering Capture: Antitrust Federalism and the North Carolina Dental Case
The Dental case reflects greater paternalism, protecting North Carolina citizens from their own deficient governmental decisions. Herbert Hovenkamp (University of Iowa)
Supreme Court Requires State Supervision of Professional Boards to Secure Antitrust Immunity
As for market participants who are regulated by these boards, the Court’s novel ruling brings both potential benefits and costs. Kenneth W. Field, Michael H. Knight, & Bevin M.B. Newman (Jones Day)
North Carolina Board of Dental Examiners v. FTC: How States Will Respond to Improve Competition and Accountability in State Regulatory Boards
However states choose to react, the upshot is that active market participants will no longer be able to so easily shield their actions on professional boards from federal antitrust law. Austin D. Smith, Logan M. Breed, & Robert F. Leibenluft (Hogan Lovells)
Antitrust Scrutiny for Licensed Occupations: A Way Forward
Industries will likely seek modifications in their state board schemes to insert sufficient “light touch” supervision to provide the necessary antitrust protection. Bruce Sokler & Helen Kim (Mintz Levin Cohn Ferris Glovsky & Popeo PC)
North Carolina Dental: A Broad Impact on Antitrust Immunity
In particular, the dissenting opinion notes practical problems the decision could create, including what it means to “control” the board. Jane E. Willis & Amy D. Paul (Ropes & Gray LLP)
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The Second Critical Court Decision: FTC vs. St. Luke’s
The Affordable Care Act Efficiencies Defense in Section 7 Cases: FTC v. St. Luke’s and Antitrust Unicorns
The prima facie case has become close to irrebuttable. Kent Bernard (Fordham University)
FTC v. St. Luke’s: Is the Efficiencies Defense Dead or Alive?
The ACA is not a “free pass” to a merger challenge. Deirdre A. McEvoy & Kathrina Szymborski (Patterson Belknap Webb & Tyler)
St. Luke’s-Saltzer: Where Does the Ninth Circuit Opinion Leave Quality-Enhancing Provider Integration in Allegedly Concentrated Markets?
The decision runs the risk of furthering a “chicken-and-egg” problem with respect to continued progress toward the widespread development of delivery organizations that can effectively assume financial risk to deliver value-based health care. Monica Noether (Charles River Associates)
