On Friday, April 12, 2019, the Federal Trade Commission (“FTC”) will host a hearing on Merger Retrospectives. The retrospective merger review is in line with the confirmation hearing testimony of (now) Chairman Joseph Simons. On June 4, 2018, certain members of Congress sent a letter to Chairman Simons applauding the Chairman’s proposed retrospective program.
The April 12 hearing is intended to “help guide the FTC’s future merger retrospective research program.” The hearing will be separated into four distinct sessions addressing the following: (i) lessons learned from prior retrospective studies, (ii) how to use retrospective studies to guide and improve prospective merger analysis, (iii) whether any generalizations can be made from retrospective studies to influence policy, and (iv) how the FTC should structure its retrospective program in the next 10 years.
The last session seeks to answer questions such as whether there are specific industries that should be the focus of retrospective review (including whether, how, and what information should the FTC collect from market participants for the retrospective studies) and whether the FTC should focus on evaluating the methodology used or measuring specific market outcomes.
Of note, in 2002, the FTC performed a retrospective merger review that focused on hospital mergers, a retrospective study that provided methodologies that the agency continues to develop and use today in its review of hospital mergers. The FTC has published a number of other retrospective studies involving hospitals and/or physicians.
The FTC invites public comment on the issues addressed at the April 12 hearing, and such comments can be submitted online until May 31, 2019.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: