For the second time in just over a month, a federal judge has denied a Federal Trade Commission (FTC) motion to enjoin the merger of two hospital systems, this time the 13-hospital Advocate Health Care and the 4-hospital NorthShore University Health System, both located north of Chicago. The order denying the preliminary injunction will be followed by a detailed opinion outlining the judge’s grounds for the decision, which could be issued as early as this coming Friday. Yet the denial represents a significant development for the FTC, as the agency’s winning streak in hospital merger challenges is threatened once again.
If the FTC decides to continue the fight, the Seventh Circuit Court of Appeals would join the Third Circuit Court of Appeals—currently considering the FTC’s appeal of a Pennsylvania federal judge’s denial of its request to block the merger of Hershey Medical Center and Pinnacle HealthCare—in taking up what are likely similar questions related to market definition and the relevance and impact of health care reform when considering parties’ efficiencies arguments. For providers watching these proceedings with an eye on how they may affect the antitrust risk profiles of their own merger or affiliation strategies, this summer is shaping up to be a momentous one, with an as-yet unresolved FTC merger challenge in West Virginia also looming in the background.
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