Geographic Market Definition in Hospital Merger Antitrust Enforcement

By: Lisl J. Dunlop
– New York Law Journal

One of the most interesting set of antitrust cases in 2016–in which some of our members directly participated–were the challenges by the Federal Trade Commission (FTC) to two significant proposed hospital mergers. These cases were a rollercoaster ride for the parties and the agency: two different district courts first refused to grant the FTC preliminary injunctions against the mergers, reversing several years of hospital enforcement successes; and then two different circuit courts of appeal reversed those rulings, setting the FTC back on course. Although the factual background differed in each case, both cases revolved around the FTC's burden to prove a relevant geographic market. Establishing a relevant market is a crucial factor in merger antitrust cases: the existence of high combined shares in the relevant market enables the FTC to establish a presumption of anticompetitive effect from the transaction, which is often difficult for merging parties to refute.

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