Selena Ones 2002 Zip

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Selena ones 2002 zip

Recent empirical studies of pricing behavior paint a fairly consistent picture. One study found that there was no significant difference in how for-profit and nonprofit hospitals exerted market power; for-profit hospitals generally had higher prices in 1986, but nonprofits increased their prices faster from 1986 to 1994.169 A case study of a nonprofit hospital merger in Santa Cruz, California, found significant evidence of post-merger price increases.170 Another study noted that "the most interesting result for antitrust policy is the finding that nonprofit hospital mergers lead to higher prices, not lower ones, and that the price increases resulting from a nonprofit merger are getting larger over time."171

4 The Agencies challenge relatively few mergers overall. In 2001, the Agencies were notified of 2,376 total mergers (the FTC challenged 23 and DOJ challenged 32) and a few of those were below the thresholds for notification. Federal Trade Comm'n Staff, U.S. Department of Justice, Antitrust Division, Annual Report to Congress, Fiscal Year 2002 (2003), available at

42 Cory Capps et al., The Silent Majority Fallacy of the Elzinga-Hogarty Criteria: A Critique and New Approach to Analyzing Hospital Mergers 1 (Nat'l Bureau of Econ. Research, Working Paper No. w8216, 2001) [hereinafter Capps et al., Silent Majority]. See also Cory Capps et al., Geographic Market Definition in Hospital Merger Cases 4 (4/16) [hereinafter Capps et al. (stmt)], at hearings/docs/030410capps2.pdf; Cory Capps, For-Profit and Non-Profit Pricing: The Empirical Evidence (4/10) (slides), at [hereinafter Capps Presentation]. See also Cory Capps et al., Antitrust Policy and Hospital Mergers: Recommendations for a New Approach, 47 ANTITRUST Bull. 677, 713-14 (2002) [hereinafter Capps et al., Antitrust Policy].

179 Vogt 9/9/02 at 52 ("[T]he literature is reasonably clear that the not for-profits don't provide very much more charity care, if more charity care at all. In fact, what small difference there is in charity care is accounted for by the location of the not-for-profit hospitals."); see also Sloan 4/10 at 57; David A. Hyman, Hospital Conversions: Fact, Fantasy, and Regulatory Follies, 23 J. Corp. L. 741 (1998); David Blumenthal & Nigel Edwards, The Tale of Two Systems: The Changing Academic Health Center, 19 Health Affairs 86 (May/June 2000); Gabriel Picone et al., Are For-Profit Hospital Conversions Harmful to Patients and to Medicare?, 33 Rand J. Econ. 507 (2002).

180 See, e.g., Hospital Group Purchasing: Has the Market Become More Open to Competition?: Hearing Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on the Judiciary, GAO-03-998T, 108th Cong. (2003); Hospital Group Purchasing: Lowering Costs at the Expense of Patient Health and Medical Innovations?: Hearing Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on the Judiciary, GAO-02-690T, 107th Cong. (2002); Group Purchasing Organizations: Use of Contracting Processes and Strategies to Award Contracts for Medical-Surgical Products: Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on the Judiciary, 108th Cong. (2003) (testimony of U.S. General Accounting Office) [hereinafter GAO Senate Testimony, Contracting]; Group Purchasing Organization: Pilot Study Suggests Large Buying Groups Do Not Always Offer Hospitals Lower Prices: Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on the Judiciary, 107th Cong. (2002) (testimony of U.S. General Accounting Office) [hereinafter GAO Senate Testimony, Pilot Study].

183 See Health Industry Group Purchasing Ass'n (HIGPA), Group Purchasing Organizations 6 (Public Comment) (submitted by Robert Betz) [hereinafter HIGPA (public cmt)]; Herbert Hovenkamp, Competitive Effects of Group Purchasing Organizations'(GPO) Purchasing and Product Selection Practices in the Health Care Industry 1 (2002) (prepared on behalf of Health Industry Group Purchasing Association). See also American Bar Ass'n, Section of Antitrust Law, Comments Regarding The Federal Trade Commission's Workshop on Health Care and Competition Law and Policy (Oct. 2002) 27-34 (Public Comment).

184 HIGPA (public cmt), supra note 183, at 6 (discussing SMG Marketing Group, 2002 SMG MHS/GPO Market Report1 (2002)). See also Robert Bloch et al., An Analysis of Group Purchasing Organizations' Contracting Practices Under the Antitrust Laws: Myth and Reality 1 (9/26) (virtually every hospital belongs to at least one GPO) [hereinafter Bloch (stmt)], at healthcarehearings/docs/030926bloch.pdf; GAO Senate Testimony, Pilot Study, supra note 180, at 5 (reporting that according to survey data from the American Hospital Association, 68 percent of hospitals belonged to GPOs in 2000; according to HIGPA, 96-98 percent of hospitals belonged to a GPO); Bailey 9/10/02 at 48-56 (discussing GAO's pilot study).

206 See, e.g., Strong 9/26 at 153-54; Bloch 9/26 at 127-30, 134-35; Clark 9/10/02 at 64, 118; Manley 9/10/02 at 69 (all suggesting GPOs are the buyers agent) but see Weatherman 9/26 at 180-81; Everard 9/26 at 170; Einer Elhauge, The Exclusion of Competition for Hospital Sales Through Group Purchasing Organizations 29-31 (2002); Hilal 9/26 at 143; Nova BioMedical, Comments Regarding Hearings on Health Care Competition and Policy (Nov. 7, 2003) 3-5 (Public Comment) (all suggesting concerns that GPOs may be more concerned about suppliers' interests) [hereinafter Nova (public cmt)].

213 See, e.g., Strong 9/26 at 156 (do not bundle disparate products, but do bundle branded prescription drugs with generics to get discount on branded); id. at 157 (generally, five year contracts only used if significant amount of time and money involved in product evaluation); Bloch 9/26 at 127-38 (noting GPOs under attack for various contracting practices and provided his antitrust analysis of these practices); Everard 9/26 at 166 (bundling); id. at 168 (even if contract not technically sole-source, hospitals are not really free to purchase elsewhere because they will lose significant discounts); Hilal 9/26 at 143-46 (discussing problems with bundling and large percent of market his company is sometimes locked out of as result of GPO contracting practices); Elhauge (public cmt), supra note 212, at 12-13, 20-21 (discussing problems with bundled and loyalty discounts and rebates). See also GAO Senate Testimony, Contracting, supra note 180, at 5-6; Novation, Comment Regarding Competition Law and Policy & Health Care (Sept. 30, 2002) 2-4 (Public Comment).

222 Antitrust Law Developments at 179 & n.998 (citing cases) (5th ed. 2002). The law of bundled discounts is both unsettled and beyond the scope of this report. Only one court of appeals has squarely addressed bundled discounts, most recently in LePage 's, Inc. v. 3M, 324 F. 3d 141 (3rd Cir. 2003) (en banc), cert denied, 2004 U.S. LEXIS 4768 (2004). The Supreme Court denied review after the United States suggested that LePage's was not "a suitable vehicle for providing ... guidance" in this area. Brief for the United States as Amicus Curiae, 2004 WL 1205191, 8 (May. 28, 2004). In its brief, the United States stated that "the Third Circuit was unclear as to what aspect of bundled rebates constituted exclusionary conduct" and "provided few useful landmarks on how Section 2 should apply as a general matter in future cases involving bundled rebates." Id. at 16. Although the Third Circuit "cited the general principles" set out inBrooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 202 (1993) and other cases, it "failed to explain precisely why the evidence supported a jury verdict of liability in this case, including what precisely rendered 3M's conduct unlawful." Id. The brief further noted that "the court of appeals' failure to identify the specific factors that made 3M's bundled discount anticompetitive may lead to challenges to procompetitive programs and prospectively chill the adoption of such programs." Id. 076b4e4f54