Power shopping for an alternative buyer
By: Debbie Feinstein and Alexis Gilman, Bureau of Competition | Mar 31, 2015 10:14AM
In recent investigations of hospital mergers, the merging parties often make the argument that the acquired firm is flailing, if not outright failing. Thus, the argument goes, the transaction is necessary to keep the acquired hospital in operation. But courts have set stringent requirements for meeting the failing firm defense, and as set out in the Horizontal Merger Guidelines §11, a company can assert what is known as a “failing firm” defense only if