Marta P. Kelly

Jun 12, 2024 | lexology.com | Joseph J. Bial |Andrew Finch |Marta P. Kelly |Scott Sher |Joshua Soven |Aidan Synnott | +1 more

In a recent hospital merger challenge brought by the FTC, defendants successfully asserted a version of the “failing firm” defense to avoid a preliminary injunction. Even though the FTC lost, the court’s evaluation of the defense was generally in line with the Merger Guidelines. However, the court’s reasoning suggests that in some circumstances defendants may assert the failing firm defense successfully without having to adhere rigidly to each and every purported element stated in the guidelines.