AHA asks Supreme Court to revive future competition ruling

The AHA today filed a friend-of-the-court brief in the Supreme Court, asking the court to revive the “weakened competitor” doctrine that encourages lower courts to look beyond market shares to fundamental changes taking place in a field or industry in evaluating a merger or acquisition. The doctrine hails from a case (United States v. General Dynamics Corporation) in which the court rescued a merger being challenged by federal antitrust authorities, finding that “statistics concerning market share and concentration based on past performance do not always paint a proper picture of a company’s future ability to compete and are not conclusive indicators of anticompetitive effects.” The AHA’s amicus brief (filed in ProMedica Health System, Inc. v. Federal Trade Commission) highlights the many similarities in today’s hospital field to those that led the court to create the doctrine, including lowered hospital reimbursement rates, the need to acquire expensive technology (including electronic medical records), and the limited availability of capital to finance change. “Granting certiorari here would have widespread impact on struggling health care providers seeking to stay viable and serve local communities in a drastically changing landscape,” the brief states.