State Action Immunity in the Aftermath of FTC v. Phoebe Putney Health Systems, Inc.

This article discussed the Supreme Court's critical 2013 antitrust decision on the topic of state action immunity and when the actions of subordinate state organizations such as hospital authorities will be immunized from antitrust attack. At issue in the case was the acquisition of a privately-held hospital in Albany, Georgia by a hospital authority that owned the only other hospital in Doherty County. The Supreme Court determined that the acquisition would not be shielded from federal antitrust scrutiny by the state action doctrine, as Georgia's legislature had not “clearly articulated and affirmatively expressed” a state policy to displace competition. In terms of advising clients regarding the impact of the Phoebe Putney decision, the most crucial point of the opinion is that general grants of authority to a subordinate state instrumentality will not be sufficient to confer state action immunity.