Washington D.C., partner Rob McCann was quoted in the Health Law Reporter in an article on the Supreme Court’s involvement in the case of FTC v. Phoebe Putney Health System.

Speaking prior to the Supreme Court’s June 21 ruling (in which it granted certiorari), Rob predicted that the court would grant a Federal Trade Commission (FTC) petition asking the court to clarify the extent of the state action immunity doctrine in a hospital merger case.

“If I had to bet, I would say the high court will take the case and reverse, simply because the state action immunity doctrine has been narrowed progressively through the years,” he said.

Rob believed high court review was likely because the FTC did a good job in its petition of explaining why this case is a good one in which to address the state action issue. “That is really the critical issue for the Supreme Court, not simply whether the Eleventh Circuit's decision was ‘correct,'” he said.

He added that he was somewhat mystified by the appeals court's decision given that the Eleventh Circuit in FTC v University Health Inc., 938 F.2d 1206 (11th Cir. 1991), upheld a decision that rejected the state action doctrine. “If anything, FTC v University Health Inc. involved better facts than the current case,” he said.

Rob noted that even if the Supreme Court grants review, the FTC cannot necessarily count on a favorable outcome. He cited the 2005 high court decision in Kelo v. City of New London, 545 U.S. 469, which upheld the use of public condemnation powers to benefit private development interests, as a “wild card.”

“Although Kelo was a constitutional—not antitrust law—case, each presents the question of whether public process can be used for private benefit. To the extent one views the Supreme Court as a political entity, one might conclude that it may see nothing wrong in the employment of clearly lawful governmental powers to circumvent the antitrust laws,” said Rob.