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A “per se” violation is deemed to be so harmful, it is always found to be a violation and no justifications or defenses are allowed.165 Violations of the Sherman Act can carry both civil and criminal liability.166 The Supreme Court has interpreted that all violations of the Sherman Act also violate the FTC Act.167 The FTC Act created the FTC and expanded on the Sherman Act, capturing within its scope certain practices that may harm competition but were not found in violation of the Sherman Act.168 The FTC Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.”169 The Clayton Act further addresses practices not explicitly prohibited by the Sherman Act, including mergers.170 Mergers tend to lead to a reduction in competition,171 a trend that inevitably catches the eyes of antitrust regulators.172 Section 7 of the Clayton Antitrust Act applies to mergers, acquisitions, and joint ventures.173 Under this section, mergers are unlawful when the effect “may be substantially to lessen competition, or to tend to create a monopoly.”174 This section allows for a preemptive challenge to a merger through injunction. Proof of actual anticompetitive practices is
165. Id.; U.S. DEPT. OF JUSTICE, ANTITRUST RESOURCE MANUAL: IDEN TIFYING, DETECTING AND PROVING PER SE VIOLATIONS OF THE SHERMAN ACT, https://www.justice.gov/ usam/antitrust-resource-manual-6-se-violations-sherman-act (last visited Mar. 28, 2016) (“The most frequent violations of the Sherman Act are price fixing and bid rigging, both of which are usually prosecuted as criminal violations.”). 166. FTC, GUIDE TO ANTITRUST LAWS, supra note 162. 167. Id. 168. Id. 169. Id. “Unfair” practices are defined as those that “cause or [are] likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” 15 U.S.C.§ 45(n) (2010). 170. FTC, GUIDE TO ANTITRUST LAWS, supra note 162. 171. But cf. Editorial, The Case for Bigger Health Insurers, BLOOMBERG VIEW (July 8, 2015 12:00 AM), http://www.bloombergview.com/articles/2015-07-08/the-case-for-bigger- health-insurers (arguing consolidation among insurers may be necessary to keep market competitive in light of already established provider consolidation); but cf. Toby Singer, Pro- Competitive Benefits of Hospital Mergers, HOSP. & HEALTH NETWORKS (Sept. 25, 2012), http://www.hhnmag.com/articles/5212-the-pro-competitive-benefits-of-hospital-mergers (arguing mergers offer hospitals the potential to remain competitive in the rapidly changing field of health care). 172. Ayla Ellison, 5 Things to Know about the Merger of Health Systems and Insurance Providers, BECKER’S HOSP. REV. (June 6, 2014), http://www.beckershospitalreview.com/ hospital-transactions-and-valuation/5-things-to-know-about-the-merger-of-health-systems- and-insurance-providers.html. 173. Summary of Section 7 Clayton Antitrust Act, AM. ANTITRUST INST. (Oct. 11, 2013), http://www.antitrustinstitute.org/sites/default/files/Section%207.pdf [hereinafter AM. AN TITRUST INST.]. 174. Id.