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Another Important Voice in Support of Retrospective Antitrust Reviews

In our last Antitrust Byte, we brought to your attention Federal Trade Commission (“FTC”) Commissioner Rebecca Slaughter’s support for retrospective reviews of vertical transactions. Not to be overlooked, however, is Chairman Joseph Simons’s view, as expressed in his opening remarks during the April 12, 2019, FTC meeting on retrospective merger studies, that “merger retrospective studies can be an important asset in persuading courts to block anticompetitive [horizontal] mergers.” He noted that retrospective studies can both validate prospective merger reviews and provide an empirical basis for a challenge. Chairman Simons stated that “merger retrospectives [are] critical to ensuring the success of [the FTC’s] merger enforcement program.”

As proof of that concept, Chairman Simons referenced the FTC’s prior retrospective analysis of hospital mergers. After a series of losses in the 1990s, the Bureau of Economics at the FTC conducted economic studies on prior hospital mergers. The results of those economic studies resulted in the economic analysis currently used by the FTC in hospital merger challenges—an economic model that has been critical to the FTC’s success in its recent hospital merger challenges. 

Thus, the FTC’s success in using retrospective merger reviews in hospital transactions appears to be fostering a renewed interest in these reviews to guide the FTC’s enforcement actions. Although Chairman Simons recognized that retrospective merger reviews “require significant resources and data,” he noted an interest in exploring how or whether the FTC could use outside researchers to assist in these studies.

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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements