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unnecessary to establish a Section 7 violation; the challenging entity only needs to make a prediction based on current facts that anticompetitive effects will result from the transaction and seek judicial approval to block the merger.175 A plaintiff seeking to enjoin a merger must establish a prima facie case showing the merger would “produce an undue percentage share of the relevant market, and result in a significant increase in the concentration of firms in that market.”176 The Supreme Court has held that defining the relevant geographic and product markets is essential to a Section 7 claim.177 Once established, there is a presumption of illegality,178 but the defendant may rebut the presumption179 with contradictory data and market trends or raise a defense.180 Unlike other parts of the Clayton Act, Section 7 is intended to be “forward- looking” and to prevent conditions from occurring that would subject consumers to unchallenged price increases.181 The conditions that Section 7 of the Clayton Act intends to thwart include lower-quality plans, higher premiums, and limited provider access.182 In 1976, the Hart-Scott-Rodino Act (“HSR Act”) amended the Clayton Act.183 The HSR Act outlines the process of federal pre-notification and review for large mergers or acquisitions.184 The HSR Act established waiting periods for regulatory review before a merger or acquisition could be
175. Hosp. Corp. of Am. v. F. T.C., 807 F.2d 1381, 1389 (7th Cir. 1986) (finding “Section 7 does not require proof that a merger or other acquisition has caused higher prices in the affected market. All that is necessary is that the merger create an appreciable danger of such consequences in the future.”). 176. United States v. Phila. Nat’l Bank, 374 U.S. 321, 363 (1963). 177. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593 (1957) (“Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition ‘within the area of effective competition.”). 178. FTC v. Univ. Health, Inc., 938 F.2d 1206, 1218 (11th Cir. 1991). 179. Id. at 1218 (“To rebut this presumption, the defendant must produce evidence that “show[s] that the market-share statistics [give] an inaccurate account of the acquisition[‘s] probable effect[ ] on competition” in the relevant market.”). 180. Two defenses include the “failing firm” defense and the “state action” defense. The failing firm defense is applied only if it can be proven by the defendant that the company acquiring the failing company is the only possible purchaser. Citizen Pub. Co. v. United States, 394 U.S. 131, 138 (1969). The state action defense provides antitrust immunity where a state has affirmatively authorized the alleged anticompetitive conduct. FTC v. Ticor Title Ins. Co., 504 U.S. 621, 633 (1992) (“First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself.”). 181. Joe Infantino, Under Review: How DOJ, FTC Decide Whether to OK Health Insurance Mergers, CALIF. HEALTHLINE (Dec. 16, 2015), http://californiahealthline.org/ news/under-review-how-doj-ftc-decide-whether-to-ok-health-insurance-mergers/. 182. Infantino, supra note 181. 183. 15 U.S.C. § 18a (1976). 184. Id.