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Antitrust

Antitrust

Overview

Antitrust laws prohibit anticompetitive mergers and business practices that seek to prevent hard-driving competition, such as monopolistic conduct, attempts to monopolize, and conspiracies in restraint of trade. FEDERAL TRADE COMM’N BUREAU OF COMPETITION, http://www.ftc.gov/bc/index.shtml.

Policy

The Supreme Court has not exempted “learned professions” (e.g., medicine) from the federal antitrust laws. “The nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act nor is the public service aspect of professional practice controlling in determining whether Section 1 [of the Sherman Act] includes professions.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 787 (1975).

 Authority

The Sherman Act, 15 U.S.C. §§ 1-7, was passed in 1890 and is the first and most basic federal antitrust statute. Section 1 of the Sherman Act prohibits contracts, combinations and conspiracies that unreasonably restrain trade. 15 U.S.C. § 1. Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize and conspiracies to monopolize. 15 U.S.C. § 2.

The Clayton Act, 15 U.S.C. §§12-27, passed in 1914 to strengthen the provisions of the Sherman Act, deals with specific acts or practices that may have anticompetitive results. Section 2 of the Clayton Act, as amended by the Robinson-Patman Act of 1936, addresses price discrimination in the sale of goods. 15 U.S.C. § 13. The Robinson-Patman Act basically prohibits a seller from selling goods of like grade and quality at different prices to competing customers where the price discrimination (i.e., price difference) may cause competitive injury (both generally and to the seller’s competitors or customers). Section 3 of the Clayton Act prohibits exclusive dealing arrangements, tying arrangements and requirements contracts in the sale of goods or commodities where the effect of those arrangements may be substantially to lessen competition. 15 U.S.C. § 14. Section 7 of the Clayton Act prohibits mergers or other forms of combinations where the “effect may be substantially to lessen competition, or tend to create a monopoly.” 15 U.S. C. § 18.

Section 5 of the Federal Trade Commission Act prohibits unfair methods of competition in commerce, including unfair or deceptive acts or practices in commerce, such as false or deceptive advertising.

In determining whether a particular practice unreasonably restrains trade under Section 1 of the Sherman Act, courts historically have relied upon two methods of analysis: the “per se” rule and the rule-of-reason. FTC v. Indiana Fed’n of Dentists, 476 U.S. 447 (1986). Recently, however, courts are turning to what has been referred to as a “flexible methodology,” not unlike the “abbreviated” or “quick look” rule of reason analysis, to determine the legality of a particular agreement or restraint. Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005); North Texas Specialty Physicians v. FTC, No. 06-60023 (5th Cir. May 14, 2008).

Agency Guidance

The federal antitrust laws are enforced by both the Antitrust Division of the Department of Justice (“DOJ”) and by the FTC. The DOJ can bring both criminal and civil actions under the Sherman Act and civil actions to enforce the Clayton Act in federal district court. The FTC has no criminal authority but can seek injunctive relief for violations of the Clayton Act and FTC Act in federal court.

Future Direction

Besides the Horizontal Merger Guidelines, the FTC and DOJ jointly have issued policy statements (which sometimes include “antitrust safety zones”) explaining their antitrust enforcement policies regarding various joint activities involving health care providers. The Statements of Antitrust Enforcement Policy in Health Care (“Policy Enforcement Statements”), which were most recently updated in 1996, cover the following activities:

• Mergers Among Hospitals; • Hospital Joint Ventures Involving High Technology or Other Expensive Healthcare Equipment; • Hospital Joint Ventures Involving Specialized Clinical or Other Expensive Healthcare Services; • Providers’ Collective Provision of Non-Fee Related Information to Purchasers of Healthcare Services; • Providers’ Collective provision of Fee-Related Information to Purchasers of Healthcare Services; • Provider Participation in Exchanges of Price and Cost Information; • Joint Purchasing Agreements Among Healthcare Providers • Physician Network Joint Ventures; and • Analytical Principles Relating to Multiprovider Networks.

 

4 Trade Reg. Rep. (CCH) ¶ 13,153. Each of the Policy Enforcement Statements provides guidance about how to obtain expedited advice from the Agencies through the business review or advisory opinion process.

Conclusion

All states have enacted their own antitrust laws which often parallel the federal statutes. The state acts often use the language of the federal laws and are frequently interpreted by reference to the federal antitrust laws and cases applying them. However, state antitrust laws sometimes embody different substantive standards than federal law.

Excerpt from David Marx, Jr., Antitrust Fundamentals—2011, Fundamentals of Health Law, (American Health Lawyers Association Nov. 2011).