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CALIFORNIA v. SUTTER HEALTH SYSTEM

January 5, 2000

STATE OF CALIFORNIA, PLAINTIFF,
V.
SUTTER HEALTH SYSTEM, ALTA BATES MEDICAL CENTER, AND SUMMIT MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Chesney, District Judge.

 
MEMORANDUM OF DECISION RE: ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; FINDINGS OF FACT AND CONCLUSIONS OF LAW

Before the Court is the motion of plaintiff State of California for preliminary injunction to enjoin the merger of defendant Alta Bates Medical Center ("Alta Bates"), owned by defendant Sutter Health System ("Sutter"), and defendant Summit Medical Center ("Summit"). The matter came on regularly for hearing on October 25, 26, 27, and November 1, 1999. Appearing for plaintiff State of California were Bill Lockyer, Attorney General of the State of California; John Donhoff, Jr., Deputy Attorney General; Pamela Cole, Special Deputy Attorney General and Charles M. McGay, Special Deputy Attorney General. Appearing for defendants Sutter and Alta Bates were George T. Manning, Robert C. Jones, Adrian Wager-Zito and Toby G. Singer, of Jones, Day, Reavis & Rogue. Appearing for defendant Summit was Maureen McGuirl of Crosby, Heafey, Roach & May. The matter was deemed submitted as of November 10, 1999, upon receipt of final post-hearing filings.*fn1

Having considered the papers filed in support of and in opposition to the motion as well as the evidence and arguments of counsel presented at the hearing, the Court hereby issues the following findings of fact and conclusions of law and rules as follows:

I. BACKGROUND

A. Bay Area Health Care Market

1. Hospitals

Defendants Summit and Alta Bates are hospitals located respectively in the cities of Oakland and Berkeley in Alameda County. Alameda County is located in what is commonly referred to as the East Bay, which in turn is part of the San Francisco Bay Area.

The East Bay includes the population centers located along the eastern side of the San Francisco Bay. The San Francisco Bay separates this population from Marin, San Mateo. and San Francisco counties. located to the west of the East Bay. Transportation across the San Francisco Bay in an east-west direction is confined to four bridges, one of which is the San Francisco-Oakland Bay Bridge (the "Bay Bridge"). The other bridges are located either to the north or south of San Francisco and Oakland. The Oakland and Berkeley hills separate the main population of the East Bay from the inland communities of the East Bay such as Walnut Creek and Concord in Contra Costa County. In the immediate Oakland/Berkeley area, transportation across the Oakland and Berkeley hills to these inland cities is limited to the Caldecott Tunnel. The East Bay is separated by the Carquinez Strait from Solano County to the north.

A wide variety of hospitals exist in the San Francisco Bay Area, and range from general acute care hospitals such as John Muir Medical Center ("John Muir") in Walnut Creek, which offers a full range of primary, secondary, and tertiary care,*fn2 to specialized hospitals such as Children's Hospital in Oakland, which offers only pediatric services. The size and capacity of the hospitals in the Bay Area also vary widely, from Alameda Hospital, located on Alameda Island, which maintains 135 licensed beds, to Laguna Honda Hospital & Rehabilitation Center in San Francisco, which maintains 1,457 licensed beds.

At least twenty hospitals, including defendants Summit and Alta Bates, are located in the East Bay. (Defs.' Ex. 1001, Economic Report of Margaret E. Guerin-Calvert (Defendant's Expert) ¶¶ 26, 42 & Tab I.) Alta Bates, the second largest hospital in the East Bay with over 500 licensed beds, is a comprehensive community hospital that enjoys a reputation for quality health care services. Alta Bates is a general acute care hospital that offers a wide range of primary, secondary, and tertiary services, and is the sole provider of high-risk obstetrical services in Alameda County. (PX 1082, Langenfeld Report, Ex. 2.)

Sutter, a nonprofit corporation based in Sacramento, California, currently operates twenty-six hospitals in Northern California, and is the largest operator of general acute care hospitals in Northern California. Sutter entered the San Francisco and East Bay health care market through its acquisition of California Healthcare System in 1996 and currently operates six hospitals in the San Francisco Bay Area, including Eden Medical Center ("Eden") in Castro Valley, with over 250 licensed beds, and Alta Bates in Berkeley. (PX 1082, Langenfeld Report, Ex. 4,57.)

Summit, also a nonprofit corporation, was formed in 1992 by the merger of two Oakland hospitals, Providence Hospital and Merritt Peralta Medical Center. Summit is comprised of five separately incorporated entities: Summit Hospital (the "Hospital"); Health Ventures, Inc., which owns Summit Health Clinic, an outpatient clinic; Adolescent Treatment Centers, Inc., a substance abuse program; Samuel Merritt College, a nursing college; and Summit Medical Center Foundation (the "Foundation"), a charitable foundation.

Summit Hospital is a general acute care hospital in an inner-city neighborhood of Oakland, located approximately three miles from Alta Bates. Summit also offers a wide range of inpatient and outpatient services and is currently the third largest hospital in the East Bay with over 500 licensed beds. (PX 1082, Langenfeld Report, Ex. 57.) Summit tends to charge lower rates than Alta Bates, and its patient mix includes a large percentage of Medicare and Medi-Cal (the California equivalent of Medicare) patients. (PX 1082, Langenfeld Report, Ex. 2.)

The largest hospital in the East Bay is Alameda County Medical Center ("ACMC"). Located in the Berkeley/Oakland area, ACMC maintains over 600 licensed beds and primarily provides medical services to indigent and low-income residents of Alameda County. ACMC offers most primary and secondary services plus some, but not all, tertiary services. (PX 1082, Langenfeld Report, Ex. 2; PX 15. Decl. of Michael Smart (CEO, ACMC) ¶¶ 2-6, 8.)

Also located in Oakland is Kaiser Hospital-Oakland ("Kaiser-Oakland"), operated by the Kaiser Foundation Health Plan ("Kaiser"). Kaiser-Oakland maintains 394 licensed beds and offers a full range of acute inpatient services comparable to those offered at Alta Bates and Summit. Kaiser-Oakland has been scheduled to close due to the expense of seismic upgrades required under the Alquist Hospital Safety Act of 1983 (the "Alquist Act"). Cal. Health & Safety Code § 130000 et seq. (Deering 1997). (PX 20, FTC Transcript of Jerry Fleming (Senior VP, Kaiser Permanente), May 4, 1999, at 56:15-19.) In connection with the scheduled closing, Kaiser has contracted to send its patients to other hospitals under what has been termed the "Alameda Alliance". Kaiser has been sending patients for inpatient obstetrical services, mainly childbirth, to Alta Bates. Kaiser has also executed contracts with Summit for adult non-obstetrical medical/surgical services, and with Children's Hospital for pediatric services. (PX 20, Fleming Tr. at 46:9-25.) In April 1999, Kaiser requested a "standstill" agreement to defer implementation of its contracts with Summit, as discussed below. Kaiser also operates two other hospitals in the East Bay: Kaiser-Richmond with 50 licensed beds, and Kaiser-Hayward with 244 licensed beds.

Approximately thirty miles to the south of Alta Bates and Summit at the outer edge of the East Bay lies Washington Township Hospital ("Washington Township") in Fremont, which maintains 308 licensed beds and offers services comparable to Alta Bates and Summit. Washington Township recently opened a new building with expanded cardiac and pulmonary services, and is located in an area with a growing population. (Def.'s Ex. 995, Dep. of Kimberly Hartz at 81-87.)

At least nine hospitals are located in San Francisco, across the Bay Bridge from Summit and Alta Bates. (Def.'s Ex. 916.) Many of these hospitals, such as the University of California San Francisco/Mount Zion Medical Center, offer a wide variety of high quality health care services at least comparable to those offered at Alta Bates and Summit.

2. Health Groups

The Bay Area is characterized by strong, sophisticated health care plans. Managed care organizations ("MCOs") in the East Bay cover nearly 60% of the population, one of the highest levels in the country. (Def.'s Ex. 1013, Expert Report of Michael Pugh ¶ 44; Def.'s Ex. 997, Dep. of Warren Foon at 56; Def.'s Ex. 982, Dep. of Richard Scheffler at 67-68.) Managed care, which has increasingly taken the place of traditional indemnity-based insurance, can be defined as a system in which the financing and delivery of health care is integrated to achieve the goals of disease prevention and efficiency in the provision of health care services. (Def.'s Ex. 1013, Pugh Report ¶ 7.)

There are three broad types of MCOs. Health maintenance organizations ("HMOs") integrate the financing and delivery of a comprehensive set of health care services to an enrolled population which must obtain medical care from within the HMO network of health care providers. Such services are generally offered on a "capitated" or flat monthly-fee basis with low or no co-payments instead of through deductibles and claim forms. There is generally no coverage, however, for services from providers outside of the HMO network. Preferred provider organization insurance plans ("PPOs") are fee-for-service health care benefit plans built on indemnity insurance platforms which offer financial incentives to enrollees to acquire medical care from a predetermined ("preferred") network of physicians. Finally, HMO point-of-service ("POS") plans allow members to go outside of the HMO network for health care services. Care is managed in a traditional HMO fashion within the HMO network, but if a member seeks care outside the HMO network, the plan levies significant out-of-pocket costs on members in the form of deductibles and co-payments similar to a PPO. (Def.'s Ex. 1013, Pugh Report ¶ 17.)

By far the largest health care plan in the Bay Area is Kaiser, with more than 800,000 members. Kaiser currently covers 40% of the insured population and enjoys a 50% share of health plan enrollment in the East Bay. (Def.'s Ex. 1001, Guerin-Calvert Report ¶ 30.) Kaiser is distinct from other HMOs in the market because it is a "vertically integrated" health care system, meaning that member patients are generally required to use Kaiser physicians and Kaiser hospitals, and Kaiser hospitals primarily serve only those patients that are enrolled in the Kaiser health plan. (PX 1082, Langenfeld Report at 46.) The second largest health plan in the East Bay, in terms of membership volume, is Health Net, with 185,000 members. Other health plans include PacifiCare, Aetna, Lifeguard, CIGNA, Blue Cross, and Blue Shield. (Def.'s Ex. 379, Deloitte & Touche Consulting, Materials for August 12, 1998 Alta Bates/Summit meeting at SUT0781660; Def.'s Ex. 494, List of Companies Providing HMO and PPO Products in the East Bay at 003941.)

The Bay Area, unlike many other areas of the country, is also characterized by the existence of numerous large, well-organized, and competitive Independent Practice Associations ("IPAs"). An IPA is a separate legal entity that has been formed by independent physicians and small medical groups that band together, much like a co-op, to enter into contracts, which typically include risk-sharing arrangements, directly with health care plans. (Hr'g Tr. at 509:8-13, 180:8-181:7; Def.'s Ex. 1013, Pugh Report ¶¶ 56-57; Def.'s Ex. 989, Dep. of Steve McDermott at 19-20.) Risk-sharing arrangements give physicians incentives to admit patients to lower-cost hospitals because physicians can share in cost savings if they do not expend all of the money received from the insurance companies. (Hr'g Tr. at 509:8-13; Def.'s Ex. 1013, Pugh Report ¶¶ 56-57; Def.'s Ex. 989, McDermott Dep. at 19-20; Def.'s Ex. 982, Scheffler Dep. at 72-74.) IPAs in the East Bay include Hill Physicians Medical Group, Alta Bates Medical Group, Affinity Medical Group, San Leandro IPA, John Muir Health Network, and West County IPA, among others. (Def.'s Ex. 37, Presentation Materials Re: East Bay Services Area at SUT0230887.)

In recent years, consolidation among various health care plans, such as the 1998 mergers of Foundation Health of California with Health Net, and CareAmerica Health Plans with CaliforniaCare, in addition to the strong emergence of IPAs, have led to a very competitive environment in the health care market, and the pressure to reduce costs have resulted in significant financial pressure on health plans and providers throughout California. (Def.'s Ex. 1013, Pugh Report ¶¶ 49-50.)

B. Merger Discussions

In 1995, Summit began a process of seeking potential purchasers. Summit participated in acquisition negotiations with Catholic Healthcare West ("CHW") and retained an investment banking firm, Morgan Stanley Dean Witter ("Morgan Stanley"), to identify other possible affiliation partners. (Def.'s Ex. 811, Decl. of John Q. Landers, Managing Director, Morgan Stanley, ¶ 4.) In consultation with Morgan Stanley, Summit developed a proposal process for potential partners and, in February 1997, distributed an Offering Memorandum to the entities it had identified as potentially interested in acquiring Summit. (Def.'s Ex. 811, Landers Decl. ¶¶ 5-6.)

In March and April 1997, Morgan Stanley received preliminary proposals from CHW, Columbia/HCA, Sutter, and Tenet Healthcare Corporation ("Tenet"). CHW's bid was eliminated by Summit's Board and Columbia/HCA subsequently decided not to pursue the acquisition of Summit for internal reasons. (Dep. of John Landers at 15:16-20, 18:1-14, 45:17-25, 46:1-8.) Therefore, by November 1997, the Summit Board had narrowed the field of potential acquirers to two candidates: Tenet and Sutter.

Morgan Stanley and Summit management negotiated with Sutter and Tenet from December 1997 to March 1998, at which time the Summit Board decided to accept Sutter's offer. By agreement dated November 19, 1998, as amended on December 11, 1998, Sutter and Summit agreed to merge the Summit and Alta Bates facilities into a single hospital business providing primary, secondary, and tertiary inpatient care. (Pl.Mot. at 6, Ex. 67; Def.'s Ex. 810, Decl. of Irwin Hansen ¶ 31.) The merger was to be consummated on August 11, 1999, but has been postponed pending the resolution of the present action.

C. Summit Financial Situation

A major reason for Summit's deteriorating financial condition is the enactment of the Balanced Budget Act of 1997 (the "Budget Act"), which reduced Medicare payments to hospitals. Government payers account for a significant portion of Summit's revenues. In Fiscal Year 1999. Medicare accounted for 53.1% of its revenue (excluding charity care) and Medi-Cal accounted for 21%. (Def.'s Ex. 809, Meinke Decl. ¶ 9.) Therefore, despite the fact that patient volumes have increased slightly over the last two fiscal years — up 8% since fiscal year 1997 — and cost cutting measures have kept Summit's costs at or below local and national norms, Summit's patient revenue per adjusted discharge over the last two fiscal years has declined by 8.4%. (Hr'g Tr. at 779:19-780:15; Def.'s Ex. 826. Expert Report of R. Bruce Den Uyl at 11-12.) As estimated by Ernst & Young, an accounting firm, the Budget Act will reduce Summit's revenues by at least $52.8 million in fiscal years 1999-2002. (Def.'s Ex. 809, Meinke Decl. ¶¶ 19-20; Def.'s Ex. 810, Hansen Decl. ¶¶ 16-17.)

Due to the Budget Act and other factors, Summit has not been able to generate sufficient cash from its operations to meet its obligations. Consequently, Summit has been expending its cash and short-term investments in addition to monies classified as "Board Designated-Plant Fund Assets" ("Plant Fund") in order to pay its trade debts. (Def.'s Ex. 826 Den Uyl Report at 12.) The Plant Fund consists of funds set aside by the Board of Directors for specific capital imiprovement projects in order to keep the hospital competitive in technology. equipment, and facilities. (Def.'s Ex. 809, Meinke Decl. ¶ 26.) The Plant Fund has been depleted at a rapid rate. At the end of February 1999, the Plant Fund contained $10.8 million. (Def.'s Ex. 707, at C-3.) By the end of August 1999, the Fund had decreased to $2.3 million (Def.'s Ex. 772, Summit Med. Center — Summary Stat. Info. at SUM05002021.)

An additional source of funding is the Uncompensated Care Fund, which consists of monies donated to Summit to provide care for needy patients. Currently, $7 million of the $10.5 million fund is available to offset losses. It is anticipated that amount will be exhausted by December 1999. (Hr'g Tr. at. 777:1-17; 783:2-4.) The balance of the Uncompensated Care Fund will likely become fully available for expenditure by the end of February 2000. Even with this amount, however, and funds from Kaiser under the Capital Funding Agreement, as discussed below, Summit will only be able to operate for one or two additional months past February 2000 before it runs out of cash. (Hr'g Tr. at 777:1-7.)

At the end of February 1999, Summit was unable to pay over $6.4 million in vendor's bills that were due and payable. As of September 30, 1999, the amount of overdue bills has increased to $8.9 million. Because Summit has not been paying its debts as they come due, some suppliers have placed it on "cash-on-delivery" payment terms. (Def.'s Ex. 809, Meinke Decl. ¶ 22; Def.'s Ex. 826, Den Uyl Report at 6.)

Summit also has a large amount of long-term debt. Summit borrowed the proceeds of tax-free revenue bonds ("Revenue Bonds") issued by the California Health Facilities Financing Authority in 1985. This debt was refinanced in 1989 and again in August 1996 through the proceeds of bonds issued by the Health Facilities Financing Authority. The total amount of bonds issued in 1996 was $75.92 million and the outstanding balance as of August 1999 was $68.7 million. (Def.'s Ex. 809, Meinke Decl. ¶ 29.) The Revenue Bonds contain covenants that restrict Summit's ability to take on additional debt if Summit's debt-service coverage ratio falls below 1.35. Summit's present debt-service ratio is 0.62, less than half the required ratio. (Def.'s Ex. 809, Meinke Decl. ¶ 31.) By the dose of this fiscal year, Summit will be unable to satisfy the debt service ratio requirement without shutting down substantial portions of the hospital. (Def.'s Ex. 826, Den Uyl Report at 18.)

Summit faces significant expenditures related to the seismic upgrades required by the Alquist Act and that all inpatient hospital facilities must complete by 2008 or 2030, depending on the nature of the upgrade. Much of Summit's physical plant does not meet these seismic mandates and, based on square footage, over 47% of Summit's inpatient facilities need to be upgraded to meet the state seismic mandates. The expected costs of making the required structural and non-structural improvements is estimated to total approximately $109.7 million. (Def.'s Ex. 809, Meinke Decl. ¶¶ 34-35.) The required structural expenditures, which exceed the book value of the assets themselves, $103 million, have contributed to a fair market value of these assets at significantly below book value as reflected on Summit's balance sheet. (Def.'s Ex. 809, Meinke Decl. ¶¶ 34-35.)

In addition to the mandatory seismic upgrades, Summit. has also been required to upgrade its facilities pursuant to contracts entered into with Kaiser. In April 1998, Kaiser and the Permanente Medical Group, based on Kaiser's decision to close Kaiser-Oakland, entered into a Hospital Services Agreement and a Capital Funding Agreement with Summit. Under the Hospital Services Agreement, Kaiser agreed, excepting pediatric and Ob/Gyn cases, to transfer patients to Summit that normally would have been treated at Kaiser-Oakland. (Def.'s Ex. 810, Hansen Decl. ¶ 21; Def.'s Ex. 809, Meinke Decl. ¶ 48.)

To accommodate this increase in patients under the Hospital Services Agreement, Summit was required to expand and renovate some of its buildings. Specifically, Kaiser required that Summit complete seismic upgrades to two wings before Kaiser would transfer any patients. Under the Capital Funding Agreement, Kaiser advanced most of the funding for these capital expenditures. The loans under this agreement are to be repaid by credits against the invoices that Summit would submit to Kaiser for services provided under the Hospital Services Agreement. (Def.'s Ex. 809, Meinke Decl. ¶¶ 49-50.) The Kaiser construction was estimated to cost $49.7 million, of which Kaiser agreed to fund $33.5 million for construction and equipment and up to $5 million for seismic upgrades, while Summit bore responsibility for $11.2 million in construction costs. (Def.'s Ex. 809, Meinke Decl. ¶ 51.) The Kaiser upgrades have not yet been completed. Summit's Emergency Room, for example, remains under construction and its condition has led regulators to caution Summit that construction of the Emergency Room must be completed soon. (Def.'s Ex. 809, Meinke Decl. ¶¶ 43-44.)

In April 1999, Kaiser requested a "standstill" agreement which would defer implementation of the Hospital Services Agreement while Kaiser considered options other than closing Kaiser-Oakland and sending its patients to Summit. (Def.'s Ex. 810, Hansen Decl. ¶ 25.) Kaiser Chairman, David Lawrence, however, testified during the FTC investigation of the proposed merger that he believes that the Hospital Services Agreement will not be breached and Kaiser-Oakland will certainly close within three years and perhaps as soon as one year. (PX 32, Statement of David Lawrence (Chairman, Kaiser Permanente) at 55:10-56:2.) Summit estimates that the amount to be paid for work previously undertaken and to complete the construction projects, on a modified basis if Kaiser will not implement the Hospital Services Agreement, will be at least $11.7 million. (Def.'s Ex. 809, Meinke Decl. ¶¶ 43-44.)

II. LEGAL STANDARD

A. Preliminary Injunction

On August 10, 1999, plaintiff State of California, represented by its Attorney General, Bill Lockyer, filed this action in its parens patriae capacity for injunctive relief under Section 7 of the Clayton Act. See 15 U.S.C. § 26 ("Any person, firm corporation, or association shall be entitled to sue for and have injunctive relief against threatened loss or damage by a violation of the antitrust laws. . ."). See Hawaii v. Standard Oil Co., 405 U.S. 251, 261, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972) (recognizing parens patriae standing under the Clayton Act for injunctive relief).

To obtain a preliminary injunction, a plaintiff "must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor." United States v. Odessa Union Warehouse Co-op, 833 F.2d 172. 174 (9th Cir. 1987). As explained by the Ninth Circuit, "[t]hese formulations are not different tests but represent two points on a continuum in which the degree of irreparable harm that must be shown increases as the probability of success on the merits decreases." Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374 1376 (9th Cir. 1985).

B. Clayton Act

Section 7 of the Clayton Act prohibits mergers or acquisitions "in any line of commerce or in any activity affecting commerce in any section of the country, [where] the effect of such acquisition may be substantially to lessen competition or to tend to create a monopoly." 15 U.S.C. § 18. Section 7 was enacted to prevent anticompetitive mergers "in their incipiency." United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1962). Therefore, "[a]ll that is necessary [under Section 7] is that the merger create an appreciable danger of [anticompetitive] consequences in the future. A predictive judgment, necessarily probabilistic and judgmental rather than demonstrable, is called for." Hosp. Corp. of America v. Fed. Trade Comm'n., 807 F.2d 1381, 1389 (7th Cir. 1986).

To establish a prima facie case under Section 7 of the Clayton Act, a plaintiff must first define the relevant market, and then establish that the proposed merger will create an appreciable danger of anticompetitive consequences. Philadelphia Nat'l Bank, 374 U.S. at 362, 83 S.Ct. 1715. The relevant market consists of two components, the "product market," and the "geographic market". See United States v. Marine Bancorporation, Inc., 418 U.S. 602, 618, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974) ("Determination of the relevant product and geographic markets is a `necessary predicate' to deciding whether a merger contravenes the Clayton Act."); Fed. Trade Comm'n v. Staples, Inc., 970 F. Supp. 1066, 1072 (D.D.C. 1997) (holding elements of prima facie case for violation of Section 7 are: "(1) the "line of commerce' or product market in which to assess the transaction; (2) the "section of the country or geographic market in which to assess the transaction; and (3) the transaction's probable effect on competition in the product and geographic markets").

After defining the relevant market a plaintiff may establish a presumption that the proposed merger will substantially lessen competition by making an initial statistical showing that the transaction will lead to undue concentration in the market. United States v. Baker Hughes, Inc., 908 F.2d 981, 982 (D.C.Cir. 1990). See also State of California v. American Stores Co., 872 F.2d 837, 842 (9th Cir. 1989), rev'd on other grounds, 495 U.S. 271, 110 S.Ct. 1853, 109 L.Ed.2d 240 (1990) ("Statistics that indicate excessive post-merger market share and market concentration create a presumption that the merger violates the Clayton Act."); United States v. Syufy, 903 F.2d 659, 664 n. 6 (9th Cir. 1990) (holding evidence of high market share establishes prima facie case).

If the plaintiff successfully establishes a presumption of anticompetitive effect through market-share statistics, "[t]he burden of producing evidence to rebut this presumption then shifts to the defendants." Baker Hughes, 908 F.2d at 982. See also Marine Bancorporation, 418 U.S. at 631, 94 S.Ct. 2856 ("To meet this burden, the defendants must show that the market-share statistics give an inaccurate prediction of the proposed acquisition's probable effect on competition."); American Stores, 872 F.2d at 842 (holding defendant may rebut prima facie case by "demonstrating that statistics on market share, market concentration, and market concentration trends portray inaccurately the merger's probable effects on competition"). Finally, upon a defendant's successfully rebutting the presumption of anticompetitive effect, "the burden of producing additional evidence of anticompetitive effect shifts to the [plaintiff] and ...


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