Antitrust
To all those who wondered about potential antitrust matters regarding
our attempt to stem the influx of HMO patients to the dental realm,
my
brother has provided me with some documentation courtesy of one of the
antitrust lawyers in his D.C. firm. He states, "the short answer is
that there is no short answer in the antitrust arena. It is difficult
to find
any text giving general advice in this area because the outcomes seem
so dependent on the particular facts involved.
"He sent me some excerpts from a treatise concerning antitrust and healthcare.
I have culled two significant passages from these pages.
"Political boycotts" -- that is, those intended to further political
or social goals rather than the boycotters' own direct economic interests
-- are protected from successful antitrust challenge by the First Amendment. while the line between "political" and "commercial" boycotts is sometimes
difficult to draw, a boycott is commercial and thus subject to the antitrust
laws if the boycotters seek to profit directly by destroying competition. On the other hand, the boycott is political if the boycotters seek to
bring about social or political change regardless of effect on competition,
even if the change they seek would provide indirect economic benefits
to them . (Associated Press v U.S. 326 us 1(1945) Hess v. Inland Asphalt
1990-1. Colonial Penn Group, Inc. v. AARP 698 F. Supp 69 ED Pa 1988). Related to the Noerr-Pennington doctrine, the First Amendment itself
may protect political activity not aimed directly at the government. The
clearest example of this is the political boycott by which a group attempts
to achieve political, non-commercial goals, by boycotting private parties. The issue usually is whether the purpose for the activity is to further
the economic position of the participants by restraining competition or
to achieve a social or political goal. The First Amendment does not protect
otherwise unlawful conduct. I would think that since our crusade is being mounted because of our
concern for the future of dentistry, specifically the false sense of security
which patients under the mangled care system of failure to diagnose and
treat develop. It would appear that the economic gain would be secondary,
and shared by all dentists, not just those who join the group. The principle
gain would be achieved by the dental patients of this country. |
