DealLawyers.com Blog

Late last month, the FTC announced the approval of a consent order requiring, as a condition to Ascension Health’s acquisition of AmSurg, that Ascension divest seven AmSurg ambulatory surgery centers after the FTC alleged that the acquisition would limit competition for certain services in certain metro areas. This consent order comes after the FTC created a Healthcare Task Force in March, and this Cooley alert says it “demonstrates the agency’s continued scrutiny of vertical and horizontal healthcare consolidation at the local, service level – even where the overall transaction value and combined entity size might not otherwise trigger significant antitrust concern nationally.”

Cooley says the consent order also shines some light on how the FTC is applying its approach to healthcare enforcement in practice. The memo shares these key takeaways for dealmakers in the healthcare space:

– Local market power remains key antitrust risk. The FTC’s challenge focused on competition concerns in five specific metro areas and three outpatient surgery services, underscoring that even relatively small local overlaps can draw scrutiny regardless of overall deal size. Healthcare providers should continue to expect market-by-market and service-by-service antitrust review.

– FTC oversight can extend well beyond Hart-Scott-Rodino (HSR) requirements. Under the settlement, Ascension must provide 30 days’ notice before acquiring any outpatient surgery center in the affected markets for the next 10 years, including transactions below HSR thresholds. This highlights the FTC’s willingness to impose long-term monitoring obligations following healthcare enforcement actions.

– The FTC continues to actively pursue its enforcement agenda and prioritize healthcare enforcement. The Ascension/AmSurg divestitures, coupled with the FTC’s recent federal court victory blocking Henkel’s acquisition of Liquid Nails, demonstrate that the agency is following through on its enforcement priorities, not just announcing them.

We’re posting this and related memos in our “Antitrust” Practice Area.

– Meredith Ervine