The Obama Trials

Call it a comeback, now that they’ve been here for years

FTC successes in hospital merger enforcement during the Obama administration In the 1990s, the Federal Trade Commission and the US Department of Justice lost seven hospital merger cases in a row before taking a nearly 10-year hiatus from challenging such tie-ups.1 In this time, the FTC turned losing into a teachable moment, using the courtroom defeats as a fresh data set with which to analyse the effects of hospital mergers and build support for its arguments in favour of blocking future hospital consolidation. The agency came out of its brief retirement in 2008 when it successfully challenged a hospital deal between Evanston and Highland Park. Since that win, the FTC has been unbeatable, with courts granting practically every injunction the FTC has requested against proposed hospital mergers.2 This has made hospital mergers practically impossible, where deals are continually blocked by the FTC – a stark difference from the pre-­hiatus period when the agencies could not buy a win. And there are no signs that this will change, as the FTC has found success even in the face of (rare) losses at the district court level and new healthcare regulations, including the Patient Protection and Affordable Care Act (ACA).