Cook County Record

Thursday, December 12, 2019

Suburban appeals panel tosses doctors' antitrust suit over scuttled NorthShore, Advocate merger

By David Hutton | Oct 10, 2017

General court 08

ELGIN — A state appeals panel has upheld a Lake County judge's ruling dismissing a group of doctors' antitrust complaint  over the scuttled merger between the NorthShore University and Advocate health systems.

The case was heard by Illinois Second District Appellate Justices Ann B. Jorgensen, Kathryn E. Zenoff and Joseph E. Birkett. Jorgensen delivered the unanimous judgment, which was issued as an unpublished order under Supreme Court Rule 23, which limits its use as precedent. The court convenes in west suburban Elgin.

The complaint was filed by physicians Mark Schacht, Neil Friedman, Allen Chernoff, Peter Vaselopulos and Greater Chicago Urology LLC "on behalf of all physicians and physicians groups practicing in Lake County and Northeastern Cook County."

In the complaint, the physicians alleged NorthShore and Advocate attempted to create a monopoly, in violation of the Illinois Antitrust Act, when they sought to merge.

The merger plan was ultimately scrapped when federal regulators moved to block it.

To prove their allegations the defendants tried to monopolize, the physicians had to plead that Northshore and Advocate NorthShore intended to do so, that they conspired to accomplish a monopoly and had a probability of success.

In their complaint, the physicians maintained that because of its size, referral methods and ties to Blue Cross Blue Shield, the proposed merged organization would have violated the Illinois Antitrust Act.

Citing Popp v. Cash Station Inc., Jorgensen pointed out in the decision that having a monopoly isn’t necessarily illegal, but it is illegal to use anticompetitive methods to build one.

“The defendants must be shown to have utilized their dominant position in the market to control prices, exclude competition or engage in other unfair methods of competition,” Jorgensen wrote in the judgment.

Moreover, Jorgensen noted the physicians had to prove NorthShore and Advocate NorthShore carried out anticompetitive conduct, and that it resulted in what Jorgensen termed an “antitrust injury.”

Ultimately, the defendants and the trial court held the physicians’ complaints didn’t adequately define the market or offer facts to support their position against NorthShore and Advocate NorthShore.

Jorgensen wrote the physicians ultimately couldn’t be impacted by a merger that never materialized. Further, the proposal was unveiled in September 2014, well before the physicians had made their first complaint.

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Organizations in this Story

Illinois Second District Appellate CourtNorthShore University Health SystemAdvocate Health and Hospitals Corporation