The authors discuss how precedents from this case could potentially provide a framework under which the FTC will challenge mergers.
Anti-competitive harm from cross-market hospital mergers has been a controversial topic in health care antitrust analysis. Cross-market mergers are acquisitions involving hospital systems that are too far apart — geographically or in the product space — to serve as close substitutes for patient care. While there is some empirical evidence of price increases following these mergers, the mechanisms by which prices are affected remain unsettled.
To date, the Federal Trade Commission (FTC) has been unwilling to bring a challenge related to cross-market harm. In September 2023, however, the FTC challenged the conduct of U.S. Anesthesia Partners Inc (USAP) and private equity group Welsh Carson Anderson & Stowe in a complaint that includes allegations that USAP’s acquisitions in distinct relevant markets across Texas resulted in price increases at those practices. Antitrust practitioners should keep an eye on how the court in this case, the U.S. District Court for the Southern District of Texas, views these allegations of cross-market harm.
In this article, authors Christopher Lau and Dina Older Aguilar discuss how precedents from this case could potentially provide a framework under which the FTC will challenge mergers that they may have been unwilling to oppose in the past.
This article was originally published by Law360 in November 2023.