Getting Market Definition Right: Hospital Merger Cases And Beyond

By Martin Gaynor & Kevin E. Pflum – 

In 2016 the Federal Trade Commission (“FTC”) lost motions for preliminary injunction in two separate hospital mergers. In both cases the district courts rejected the FTC’s geographic market definition based on flawed interpretations of the “hypothetical monopolist” test. Fortunately the appeals courts correctly identified the district courts’ errors and reversed their decisions. In this article, we review the process used by the FTC and