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News Apr 02, 2014

Shearman & Sterling Secures Rare Minority Dissent Protecting Client, BMI Healthcare, from a CMA Divestment Order

The UK Competition and Markets Authority (CMA) has today announced that it will not after all require divestments of private hospitals from Shearman & Sterling client BMI Healthcare Limited (BMI) following its long-running market investigation into the private healthcare sector in the UK. This decision follows a split in the five-member decision making panel, two of whom agreed with the firm's submissions that BMI's local market position did not have an adverse effect on competition for insured patients.

As recently as January 2014 when the provisional decision on remedies was published, the Competition Commission, the predecessor to the CMA, was anticipating forcing BMI to divest itself of 7 private hospitals.

Shearman & Sterling partner James Webber, who led the firm's advice to BMI, said: "It has been a great privilege to advise the UK's leading private healthcare company, BMI Healthcare, throughout this long and complex competition inquiry. I'm delighted that we have been able to help deliver the right outcome both for BMI itself but also the patients it serves. The CMA remedies will undoubtedly result in far-reaching change to the market – but crucially now strike the right balance between effective intervention and proportionality to the issues identified."

The Shearman & Sterling team comprised partner James Webber, of counsel Chris Bright, counsel Susanna Charlwood, and associates Mark Steenson, Daniela Bowry-Blum, Shirin Lim and Savas Manoussakis (all London Antitrust and London Litigation).

Shearman & Sterling has advised BMI Healthcare on competition matters for over 13 years. In that time, as well as advising the company on the private healthcare market investigation just concluded, the firm has obtained two OFT merger clearances in respect of hospital purchases – on each occasion breaking new ground in respect of the OFT's approach to remedies.