Federal Trade Commission v. Novant Health, Inc. et al

Filing 227

ORDER denying Plaintiff's 1 Complaint for a Preliminary Injunction. Signed by District Judge Kenneth D. Bell on 6/5/2024. (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:24-CV-00028-KDB-SCR
FEDERAL TRADE
COMMISSION,
Plaintiff,
v.

ORDER

COMMUNITY HEALTH
SYSTEMS, INC. AND
NOVANT HEALTH, INC.,
Defendants.

Antitrust law, specifically the Clayton Act, serves the important public interest of
promoting fair and robust markets by prohibiting horizontal mergers that may substantially lessen
competition. This case, however, raises an unusual question: How does that law apply when a
currently profitable hospital “competitor” decides, for entirely legitimate reasons independent of
a challenged merger, to simply quit trying to compete? And, how are the public equities and
interests affected if that hospital is not acquired? The Federal Trade Commission’s (“FTC”)
pending Complaint for a Preliminary Injunction, (Doc. No. 1), demands that the Court answer
these questions and decide if Novant Health, Inc.’s (“Novant”) purchase of Community Health
Systems, Inc.’s (“CHS”) Lake Norman Regional Medical Center (“LNR”) and Davis Regional
Psychiatric Hospital (“Davis”) can proceed during the FTC’s administrative process to consider
the lawfulness of the transaction. For the reasons summarized below and fully explained in the
Order, the Court declines to enter an injunction pursuant to Section 13(b) of the Federal Trade

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Commission Act, thereby allowing the purchase to go forward (if the Defendants choose to do so
despite the continued regulatory risk).
The hospital market in the Charlotte metropolitan area is already heavily concentrated, with
sixteen of the nineteen hospitals in an eight-county area including and surrounding Charlotte
owned either by Atrium Health (“Atrium”) (9), the dominant largest hospital system, or Novant
(7), the second largest. In addition, Atrium and Novant collectively have thousands of employed
doctors as well as numerous outpatient facilities and free-standing emergency rooms which steer
patients to their hospitals. North of Charlotte along Interstate 77 lies Lake Norman, which is
surrounded by growing population centers. LNR is a licensed 123-bed hospital located in
Mooresville, North Carolina, approximately 12 miles north of Novant’s Huntersville Medical
Center (“NH”), which is licensed for 151 beds. Significantly, Atrium is in the process of building
a new hospital, Atrium Lake Norman (“ALN”), which will be located between LNR and NH in
Cornelius, North Carolina. Initially, ALN will be licensed as a 30-bed hospital, but it is being
constructed with an additional floor to allow it to expand quickly to 54 beds and is located on a
planned “hospital campus” already zoned for 140 beds. Davis, located in Statesville, North
Carolina, was formerly licensed as a 144-bed acute care hospital. In August 2022, CHS closed the
hospital for financial reasons and converted Davis to a behavioral health facility that provides adult
psychiatric care.
The FTC argues that the merger of LNR into Novant will exceed the FTC’s “Merger
Guidelines” that indicate a merger is presumptively likely to have anti-competitive effects. While
the FTC is correct that in one or more “relevant markets” the level of combined market share and
market concentration will be outside the permitted guideline range after Novant’s purchase, this
appears to be in large measure the result of Novant’s substantial current market share and the

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already concentrated market rather than LNR’s own competitive presence. Thus, the Court needs
to look beyond the economic numbers to assess the likelihood that, considering commercial
realities, the merger may in fact “substantially lessen” competition.
Defendants defend the transaction on two grounds. First, and primarily, Novant repeatedly
argued that LNR is a bad hospital with low quality and low occupancy that is “struggling” and
“declining.” The Court finds this doomsday characterization is mostly inaccurate and certainly
exaggerated. Over 40% of the patients in the two Lake Norman area zip codes closest to LNR still
use LNR rather than other hospitals for LNR’s offered services. Also, although it has not achieved
the highest quality or safety ratings, LNR currently, and for much of the past several years, has
had a “B” rating on the Leapfrog safety metrics, has had only one serious safety incident over
many years, and has quality metrics that generally fall within the range of the various individual
Novant hospitals. Indeed, Novant repeatedly praised the doctors, nurses and other medical
professionals who are providing care at LNR (and is poised to retain them if LNR’s sale moves
forward). With respect to its low occupancy, LNR has long operated within a reduced seasonally
adjusted level of 40 to 70 “staffed” beds and its occupancy level has remained relatively flat over
the past six years. More broadly, the issue before the Court is not whether NH or other Novant
hospitals are “better” hospitals than LNR. This is an antitrust lawsuit not a hospital quality survey.
“A” quality hospitals are not exempt from the antitrust laws when they propose to acquire “B” or
even “C” hospitals or vice-versa.
However, even though LNR provides appropriate care for those services it offers, the
evidence indisputably established that LNR has lost important service lines during the past few
years, including the ability to regularly treat dangerous heart attacks (“STEMI”) in its emergency
room, staff a higher level Neonatal Intensive Care Unit (“NICU II”) and treat certain oncology

3

patients. This loss of services, together with CHS’ decision to strictly limit any investments in
LNR (including paying low nursing salaries which has led to staffing shortages), has consigned
LNR to a relatively insignificant competitive position. In other words, although LNR is profitable
for now, if LNR is not sold to Novant it seems clear that – like a car that its owner can’t afford to
replace – CHS plans to just continue to drive LNR down the same road until the proverbial wheels
fall off. And, unfortunately for LNR, a competitive “wreck” appears to be on the immediate
horizon. Atrium’s new hospital, which is only five exits away on the interstate, will open in mid2025. CHS and third-party evaluators conservatively believe that ALN will cut LNR’s revenue by
20% to 30%, to the point where CHS will need to incur additional debt to keep the hospital running.
(Doc. No. 214-4 at 56-58, Tr. 1615 (Hammons), PX 2104). Moreover, changes in North Carolina’s
Certificate of Need (“CON”) law to permit the opening of outpatient surgery facilities without a
CON will likely further increase competition for outpatient services, which are a primary source
of LNR’s revenue. (See Tr. 992; Tr. 278 (Littlejohn) (“CON reform would be one of the greatest
threats to Lake Norman”)).
Second, Novant suggests that the merger will be pro-competitive because it will enable
Novant to better compete with Atrium as it inevitably expands its presence in the Lake Norman
area. While the impact of Novant buying LNR on the competitive balance between Novant and
Atrium may be modest overall and is certainly difficult to quantify, it seems obvious that the
presence of two Novant hospitals on either side of ALN will provide more competitive balance
than the combination of NH and LNR operated separately. Put another way, it is unlikely that LNR
will be much of a competitive threat to ALN (or Novant) as currently operated by CHS. Therefore,
Novant’s purchase of LNR is likely to promote added competition with Atrium.

4

The Court must also weigh the public “equities” to determine whether it is in the public
interest to allow Novant to buy LNR and Davis. The FTC argues that 1) insurance companies and
ultimately their customers will be charged Novant’s higher prices; 2) state and local governments
will receive millions less in tax revenues as soon as LNR and Davis are owned by a “non-profit”
hospital system; and 3) CHS could make additional investments or enter into partnerships with
other healthcare companies if the transaction is not enjoined. Defendants in turn claim that the
equities favor allowing the sale to proceed because 1) otherwise Davis will quickly close,1
depriving the community of important mental health services; 2) the important medical service
lines listed above will be immediately added to LNR; and 3) Novant has committed not to raise
prices at LNR for three years, to support LNR’s doctors and nurses with additional staff and higher
pay, and to add numerous capital improvements (which CHS will either be unwilling or unable to
provide).
In summary, the Court must look at the future not as an economist or scholar but as a judge,
determining whether it believes the witnesses will do what they say they will do as well as
considering what has actually been done in the past. That is, the Court must go beyond an
assessment of what “could” occur in theory or “might” be possible, to decide what is likely to
happen in fact. Here, the Court believes that absent the transaction 1) Davis will close; 2) there is
no plausible alternative buyer for LNR or Davis; 3) LNR is unlikely in the near term to resume
important services in cardiology, newborn care and oncology because of CHS’s decision not to

In response to CHS’ unequivocal testimony at the hearing that it would close Davis because of
the facility’s ongoing losses of $1 million a month, Tr. 1576-1577 (Hammons), the FTC informed
Novant by letter dated May 9, 2024, that the Commission would not object to Novant’s separate
purchase of Davis. There is, however, no evidence that Novant would purchase Davis outside the
presently proposed transaction. And, the Court notes that the FTC’s recent change in position is
similar to Novant’s “made for litigation” commitments, which the FTC questions as being offered
only in response to its Complaint.
1

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invest in the growth of the hospital; and 4) LNR’s external competitive challenges, particularly the
opening of ALN and the changes in the CON process for outpatient facilities, likely will shortly
lead to its closing in light of CHS’ difficult financial position. All of this, especially the closure of
the hospitals, will reduce rather than enhance competition. At most, on its current and expected
path, LNR can only hope to maintain its already limited competitive position for a short time.
Therefore, the proposed merger carries at least as much likelihood of competitive benefits as it
does competitive harm and the FTC is unlikely to ultimately be successful in proving that the
transaction may “substantially lessen competition.”
With respect to the equities, the Court finds that on balance the equities favor allowing the
sale to go forward. While the loss of tax revenue is a concern, it is outweighed by the loss of
critically needed psychiatric medical services, the addition of medical service lines that are no
longer offered at LNR and the commitment of Novant executives (which the Court believes and
accepts) not to raise prices at LNR for three years after the acquisition.
Therefore, having weighed the equities and considering the Commission's likelihood of
ultimate success, the Court concludes that entry of an injunction pending the conclusion of the
FTC’s administrative process would not be in the public interest. The FTC’s Complaint will be
denied and the purchase of LNR and Davis by Novant allowed to proceed.
I.

LEGAL STANDARD

Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b), empowers the FTC
to file suit in federal district courts and seek a preliminary injunction to prevent a merger pending
an FTC administrative adjudication “[w]henever the Commission has reason to believe that a
corporation is violating, or is about to violate, Section 7 of the Clayton Act.” FTC v. H.J. Heinz
Co., 246 F.3d 708, 714 (D.C. Cir. 2001) (quoting FTC v. Staples, Inc., 970 F.Supp. 1066, 1070

6

(D.D.C. 1997)); see 15 U.S.C. § 53(b). The Court’s decision as to whether to issue a preliminary
injunction is statutorily grounded in the “public interest.” See F.T.C. v. Food Town Stores, Inc.,
539 F.2d 1339, 1343–44 (4th Cir. 1976). Specifically, the Court may issue a preliminary injunction
“[u]pon a proper showing that, weighing the equities and considering the Commission's likelihood
of ultimate success, such action would be in the public interest.” 15 U.S.C. § 53(b).
The “public interest” standard is not the same as the traditional equity standard for
injunctive relief. See Food Town Stores, 539 F.2d at 1343 (“The equities to be weighed are not,
however, the usual equities in private litigation …);2 see also FTC v. Exxon Corp., 636 F.2d 1336,
1343 (D.C. Cir. 1980) (“In enacting [Section 13(b)], Congress further demonstrated its concern
that injunctive relief be broadly available to the FTC by incorporating a unique ‘public interest’
standard in 15 U.S.C. § 53(b), rather than the more stringent, traditional ‘equity’ standard for

2

In Food Town Stores, the court interpreted the statute, in part, from the Conference Committee
Report No. 93-924 concerning P.L. 93-153, the legislation which enacted 13(b). In speaking of the
relevant language, the Report states:
Section 408(f) relates to the standard of proof to be met by the Federal Trade Commission
for the issuance of a temporary restraining order or a preliminary injunction. … The intent
is to maintain the statutory or “public interest” standard which is now applicable, and not
to impose the traditional “equity” standard of irreparable damage, probability of success
on the merits, and that the balance of equities favors the petitioner. This latter standard
derives from common law and is appropriate for litigation between private parties. It is
not, however, appropriate for the implementation of a Federal statute by an independent
regulatory agency where the standards of the public interest measure the propriety and
the need for injunctive relief.
The inclusion of this new language is to define the duty of the courts to exercise
independent judgment on the propriety of issuance of a temporary restraining order or a
preliminary injunction….
U.S. Code Cong. and Admin. News, 93 Cong., 1st Sess., pp. 2523, et seq. (1973).

7

injunctive relief.”);3 H.J. Heinz Co., 246 F.3d at 714. Indeed, it has “long been recognized that in
order for the Government to monitor and implement effectively the antitrust laws, and thus protect
the public interest in the vigorous enforcement of those laws, it is essential that some mechanism
exist by which the Government may prevent the consummation of a merger or acquisition that it
believes to be unlawful.” Exxon Corp., 636 F.2d at 1342 (noting that “mergers and acquisitions
are often followed by a commingling of assets and other substantial changes in the structures of
the enterprises involved. Once those changes occur, it is often impossible for the Government to
compel a return to the status quo, and the legality of the challenged merger or acquisition may
become essentially a moot question.”);4 see FTC v. Dean Foods Co., 384 U.S. 597, 606 n.5 (1966)
(holding (prior to the FTC Act) that a merger could be enjoined under the All Writs Act, 28 U.S.C.
§ 1651(a), because “without standing to secure injunctive relief, and thereby safeguard its ability
to order an effective divestiture of acquired properties, the Commission's efforts would be
frustrated”).5
Therefore, under Section 13(b), the Court must consider the FTC's likelihood of success
on the merits and weigh the equities to independently determine whether a preliminary injunction

The Exxon court then cited a typical “equity” preliminary injunction opinion (not a Section 13(b)
case) for the proposition that “the issuance of a preliminary injunction prior to a full trial on the
merits is ‘an extraordinary and drastic remedy.’” However, this standard is inconsistent with
Section 13(b)’s statutory language and Food Town Stores, which govern this Court.
4
Some courts have noted that the length of FTC proceedings also often means that private
transactions will not survive the delay until a final ruling on the FTC’s antitrust challenge. See
Exxon Corp., 636 F.2d at 1343. Thus, there is significant potential harm to both the interests
inherent in the antitrust laws and the ability of private companies to lawfully combine. While these
dual risks clearly emphasize the importance of the Court’s ruling, they cannot substantively change
the standard of review as set by the statute.
5
The Supreme Court went on to explain, “[i]f consummation of the merger is not restrained, the
restoration of (the acquired company) as an effective and viable competitor will obviously be
impossible by the time a final order is entered. This is not unusual. Administrative experience
shows that the Commission's inability to unscramble merged assets frequently prevents entry of
an effective order of divestiture.” Dean Foods Co., 384 U.S. at 606 n.5.
3

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would be in the public interest. See Food Town Stores, 539 F.2d at 1343–44; FTC v. Univ. Health,
Inc., 938 F.2d 1206, 1217–18 (11th Cir. 1991). However, our Court of Appeals has made clear
that determination of a Section 7 violation is an adjudicatory function vested in the FTC in the
first instance. Thus, the “only purpose of a proceeding under [Section] 13 is to preserve the status
quo6 until [the] FTC can perform its function.” Food Town Stores, 539 F.2d at 1342; FTC v. Penn
State Hershey Med. Ctr., 838 F.3d 327, 352 (3d Cir. 2016) (reversing district court and granting
injunction of hospital merger). “The district court is not authorized to determine whether the
antitrust laws have been or are about to be violated.” Id.; FTC v. Whole Foods Mkt., Inc. 548 F.3d
1028, 1035 (D.C. Cir. 2008) (quoting Food Town Stores, 539 F.2d at 1342). That determination is
left to the FTC. Fed. Trade Comm'n v. Sanford Health, Sanford Bismarck, No. 1:17-CV-133, 2017
WL 10810016, at *23–24 (D.N.D. Dec. 15, 2017), aff'd sub nom. Fed. Trade Comm'n v. Sanford
Health, 926 F.3d 959 (8th Cir. 2019).
To evaluate the FTC’s likelihood of success, this Court must consider the likelihood that
“after an administrative hearing on the merits, the Commission will succeed in proving that the
effect of the [proposed] merger ‘may be substantially to lessen competition, or to tend to create a
monopoly’ in violation of section 7 of the Clayton Act.” H.J. Heinz Co., 246 F.3d at 714 (quoting
15 U.S.C. § 18). Neither the Supreme Court nor the Fourth Circuit has described any standard for

Preservation of the “status quo” is regularly argued as a reason to enter injunctive relief. In this
context, it most often refers to the status of the parties as separate entities prior to a proposed
merger. However, it is also true that, absent a legal prohibition, the parties would currently be free
to merge or otherwise pursue their private business interests. Therefore, a call to maintain the
“status quo” under these circumstances is, at best, of uncertain consequence. More appropriately,
the Court should simply follow the clear direction of the statute to determine (by assessing the
likelihood of ultimate success and the equities) whether or not the public interest is best served by
a preliminary injunction.
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evaluating the “likelihood of success” in this context.7 However, several other circuit and district
courts have held (both in granting and denying injunctions) that, to prevail on a motion for a
preliminary injunction, the FTC “must raise questions going to the merits so serious, substantial,
difficult and doubtful as to make them fair ground for thorough investigation, study, deliberation,
and determination by the FTC in the first instance and ultimately by the Court of Appeals.” Id. at
714-15; see also FTC v. Tenet Health Care Corp., 186 F.3d 1045, 1051 (8th Cir. 1999); University
Health, 938 F.2d at 1218; FTC v. OSF Healthcare Sys., 852 F. Supp. 2d 1069, 1074 (N.D. Ill.
2012); FTC v. Butterworth Health Corp., 946 F. Supp. 1285, 1289 (W.D. Mich. 1996), aff'd sub
nom. Fed. Trade Comm'n v. Butterworth Health Corp., 121 F.3d 708 (6th Cir. 1997); Sanford
Health, 2017 WL 10810016 at *23-24; F.T.C. v. ProMedica Health Sys., Inc., No. 3:11 CV 47,
2011 WL 1219281, at *53 (N.D. Ohio Mar. 29, 2011); Fed. Trade Comm'n v. Advoc. Health Care,
No. 15 C 11473, 2017 WL 1022015, at *2 (N.D. Ill. Mar. 16, 2017); Fed. Trade Comm'n v. IQVIA
Holdings Inc., No. 23 CIV. 06188 (ER), 2024 WL 81232, at *6–9 (S.D.N.Y. Jan. 8, 2024).
The FTC need not establish all of these descriptors for each issue. Rather, the FTC satisfies
its burden as to any particular question if it shows that the question has any one or more of these
attributes. See H.J. Heinz Co., 246 F.3d at 727 (concluding that a preliminary injunction was
warranted where “the FTC has raised serious and substantial questions”); FTC v. Warner
Commc'ns Inc., 742 F.2d 1156, 1164 (9th Cir. 1984) (“The government has met its burden of
demonstrating a likelihood of success by presenting evidence sufficient to raise ‘serious,

Indeed, it may well be that no further standard for determining “likelihood of success” is
necessary at all. Read as it is written, the statute directs the court to simply “consider” the
“Commission’s likelihood of ultimate success” (as well as “weigh the equities”). This
distinguishes the Section 13(b) analysis from the typical preliminary injunction standard which
requires proof of a likelihood of success and irreparable harm. So, under a plain reading of the
statute, the Court need not necessarily find a clear likelihood of success to enter an injunction.
7

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substantial, difficult’ questions regarding the anticompetitive effects of the proposed joint
venture.”); OSF Healthcare Sys., 852 F. Supp. 2d at 1074.
Neither of the parties’ proposed likelihood of success standards comport with the Court’s
understanding of the law as discussed above. A showing of only a “fair or tenable chance of success
on the merits,” as suggested by the FTC, is not sufficient. Sanford Health, 2017 WL 10810016, at
*23–24; Tenet Health Care, 186 F.3d at 1051 (“A showing of a fair or tenable chance of success
on the merits will not suffice for injunctive relief.”); FTC v. Staples, Inc., 970 F. Supp. 1066, 1072
(D.D.C. 1997). And, Defendants’ argument that the Court should apply the full preliminary
injunction standard of Federal Rule of Civil Procedure 65 requiring a clear showing of likelihood
of success is similarly off the mark. As described above, Congress has dictated a different, specific
“public interest” standard that governs Section 13(b) proceedings. Therefore, following the plain
language of the statute, the Court will “consider” (but need not decide as it would under Rule 65)
the FTC’s likelihood of ultimate success and weigh the equities to determine if the public interest
is or is not best served by enjoining the proposed merger.
In deciding the FTC's request for a preliminary injunction blocking a merger under § 13(b),
a district court must balance the likelihood of the FTC's success against the equities, under a sliding
scale. See Heinz, 246 F.3d at 727; FTC v. Elders Grain, Inc., 868 F.2d 901, 903 (7th Cir.1989).
Thus, even if the FTC establishes a likelihood of success that creates a presumption in favor of
preliminary injunctive relief, the Court must still weigh the equities in order to decide whether
enjoining the merger would be in the public interest. H.J. Heinz, 246 F.3d at 726; see 15 U.S.C. §
53(b). If a court determines that a proposed merger is likely to substantially lessen competition,
the defendants “face a difficult task in justifying the nonissuance of a preliminary injunction”

11

because if a merger proceeds and the FTC later finds it to be unlawful, it is difficult to restore
competition to its pre-merger state. Id.
Further, although the statute mandates that the court weigh the “equities,” it is silent as to
what specifically those equities are. The prevailing view is that, although private equities may be
considered, they are not to be afforded great weight. See Food Town Stores, 539 F.2d at 1346
(“All of these reasons go to the private injury which may result from an injunction delaying the
merger. I do not minimize them, but I conclude that they are of such a nature that they are not
proper considerations for granting or withholding injunctive relief under s 13(b)…. [indeed] many
of them would result if any merger is enjoined on the eve of its consummation; yet Congress
enacted §13(b) authorizing injunctive relief, thereby indicating that it thought that little weight
should be given to them.”); Univ. Health, 938 F.2d at 1225 (“While it is proper to consider private
equities in deciding whether to enjoin a particular transaction, we must afford such concerns little
weight.”); H.J. Heinz, 246 F.3d at 727 n.25 (same); FTC v. Weyerhaeuser Co., 665 F.2d 1072,
1083 (D.C. Cir. 1981).
Emphasizing the public rather than private equities is consistent with the Court’s statutory
obligation to weigh the equities in order to decide whether granting the injunction would be in the
public interest. In answering this question, therefore, the Court considers whether the injunction,
not the merger, would be in the public interest. See Penn State Hershey Med. Ctr., 838 F.3d at
352–53 (“On balance, the equities favor granting the injunction. None of the private equities, or
those equities that may have public benefit, on the Hospitals' side of the ledger are sufficient to
overcome the public's strong interest in effective enforcement of the antitrust laws. We recognize
that certain extrinsic factors have made these types of mergers beneficial—perhaps even

12

necessary—to the continued success of some hospital systems. Yet, in this case, we are tasked
with deciding only whether preliminary injunctive relief would be in the public interest.”).
In summary, the Court may not simply rubber stamp the FTC's request for an injunction
upon the showing of a mere possibility that the antitrust laws will be violated. Instead, the Court
must exercise its independent judgment to determine where the public interest lies, considering
whether the FTC is likely to ultimately succeed and whether the equities support issuance of the
requested injunction.
II.

PROCEDURAL HISTORY

On February 28, 2023, Novant and CHS entered into an Asset Purchase Agreement in
which Novant agreed to acquire LNR, Davis and related assets in North Carolina for $320 million.
Defendants sought regulatory approval for the transaction, and the FTC engaged in a monthslong
merger review process, including requests for documents, sworn investigatory interviews and
informal meetings with Novant and CHS. At the conclusion of that review, on January 25, 2024,
the Commission found reason to believe that the deal may violate Section 7 of the Clayton Act, 15
U.S.C. § 18, and Section 5 of the FTC Act, 15 U.S.C. § 45, or constitutes an unfair method of
competition in violation of Section 5 of the FTC Act. On the same day, the Commission initiated
an administrative proceeding to determine the antitrust merits of the proposed transaction. The
administrative merits hearing before an Administrative Law Judge (“ALJ”) is scheduled to begin
on June 26, 2024.8 After reviewing the recommended decision of the ALJ, the FTC will issue a

8

On May 29, 2024, the Parties jointly filed a Notice informing the Court that they had sought a
thirty-day postponement of the administrative trial in In re Novant Health, Inc., No. 9425 (F.T.C.)
“in order to give the parties the opportunity to review this Court’s decision and consider next
steps.” See Doc. No. 216.
13

decision, which is then subject to review in a United States Court of Appeals. This administrative
process and appeal is likely to last more than two years.
Also on January 25, 2024, the FTC filed in this Court a Complaint for a Temporary
Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade
Commission Act (“Complaint”). (Doc. No. 1). In that Complaint, the FTC asks that Novant’s
purchase be enjoined until the Commission has had the chance to review the transaction’s legality
in the pending administrative proceeding. The FTC contends that this temporary and preliminary
injunctive relief is necessary to maintain the status quo and prevent interim harm during the
Commission’s administrative proceeding. With respect to a temporary restraining order, the parties
stipulated to entry of a TRO to pause the completion of the transaction, which was entered by the
Court on January 29, 2024. (Doc. Nos. 4, 16). Under this temporary restraining order, Defendants
cannot consummate the Proposed Transaction until the fifth business day after the Court rules on
the FTC’s request for a preliminary injunction or until after the date set by the Court, whichever
is later.
After an expedited period of extensive fact and expert discovery and the Parties’ filing of
memoranda of law in support of and in opposition to the FTC’s Complaint, the Court held an
evidentiary hearing over seven days from May 1 to May 10, 2024. The Parties presented the
testimony of twenty-three witnesses, including four experts, together with numerous exhibits.
Each side also gave opening and closing oral argument. Following the hearing, the Parties filed
detailed proposed findings of fact and conclusions of law. (Doc. Nos. 212, 214). The matter is
now ripe for the Court’s decision.
III.
A.

FACTS

The Parties

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1.

FTC

Plaintiff Federal Trade Commission is an administrative agency of the United States
government, established, organized, and existing pursuant to the FTC Act, 15 U.S.C. §§ 41 et seq.,
with its principal offices in Washington, D.C. The Commission is vested with authority and
responsibility for enforcing, inter alia, Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section
5 of the FTC Act, 15 U.S.C. § 45.
2.

Novant

Novant is one of the largest non-profit health systems in the southeast United States with
$7.6 billion in 2022 revenue, 19 hospitals and approximately 800 outpatient facilities and physician
offices. Novant Answer ¶¶ 17-18; PX5069 at 1; PX1006 at 6. Novant also employs a network of
3,200 physicians and other providers. Tr. 1480 (Oliver). Novant has seven hospitals located in or
near Charlotte: Huntersville, Presbyterian, Charlotte Orthopedic, Mint Hill, Matthews, Ballantyne,
and Rowan, PX1166 at 4, and is widely recognized as a high-quality healthcare system, Tr. 154748 (Wyatt); Tr. 1245 (Armato); DX 008 (Iredell County Board). NH, a 151-bed General Acute
Care (“GAC”) community hospital located in northern Mecklenburg County, is Novant’s closest
operating hospital to LNR. PX1166 at 4; Tr. 480 (Riley). Novant does not currently operate any
hospitals in Iredell County.
3.

CHS

CHS is a publicly traded company and one of the nation’s largest for-profit health systems
with $12.5 billion in 2023 net operating revenue, 71 hospitals and more than 1,000 additional sites
of care across 15 states. PX5042 at 3, 8; PX5043 at 1. CHS operates two hospitals in North
Carolina: LNR and Davis. PX5042 at 49. LNR is a 123-bed GAC community hospital located in
southern Iredell County. Tr. 480-81 (Riley). In 2022, CHS converted Davis Regional Medical

15

Center, located in Statesville, North Carolina, from a 144-bed GAC hospital to a behavioral health
hospital. Doc. No. 46 (CHS Answer) at ¶ 21. CHS also employs about twenty-four physicians in
North Carolina, has a majority interest in an endoscopy center in Mooresville, and holds a CON
to build a new ambulatory surgery center in Mooresville. See PX1010 at 2; PX1004 at 36; PX4004
at 1.
CHS is in a difficult financial situation. It carries approximately $11.5 billion in debt and
owes $1 billion in debt payments in every year except one between 2026 and 2032. Tr. 1564
(Hammons); PX 5042 at 79, 95, 103. Interest payments on its debt alone have amounted to roughly
$800 million per year in each of the past few years. Id. Over $2 billion of debt payments are due
as early as 2026. Id. CHS’s debt rating is a CCC, which carries junk bond status. Tr. 1565
(Hammons).
Also, CHS does not generate enough cash flow to cover its costs. Tr. 1564 (Hammons). In
2023, CHS was forced to borrow $400 million to fund its operations. Id. CHS therefore prioritizes
investments in regions where it has a network of facilities and healthcare providers. Tr. 1570-72
(Hammons). North Carolina has not been a priority for CHS investments for a number of years
and would not be in the future. Tr. 1570-72; 1628-29 (Hammons); DX 017; DX 018.
B.

The Charlotte / Lake Norman Hospital Market

The healthcare and hospital market in the Charlotte area is competitive but highly
concentrated, without regard to whether Novant is permitted to purchase LNR and Davis. As
discussed above, Novant is a large hospital system with numerous hospitals, doctors and related
facilities. Yet, it is not the largest hospital system. That distinction belongs to Atrium, which is the
largest health system in North Carolina and the “dominant hospital system in the Charlotte area.”
In addition to Atrium and Novant, there are three smaller hospital systems (including CHS) that

16

operate one or two hospitals and related facilities in North Carolina.9 In sum, it is a two-horse
race, with one horse clearly in the lead.
The Charlotte metropolitan area includes Mecklenburg County (where the City of Charlotte
is located) plus five to ten surrounding counties,10 depending on context and how far afield one
looks. Given the size of the metropolitan region, the health systems commonly divide the market
into submarkets for management and strategic focus. One of those submarkets runs generally from
the northern parts of Charlotte / Mecklenburg County along I-77 into Iredell County, including
several communities near Lake Norman.
CHS describes the area where LNR is located as the “Lake Norman Market,” the “Lake
Norman Area,” or the “North Charlotte Market.” See, e.g., Tr. 175 (Littlejohn); PX2227 at 5;
PX2195 at 2; PX2123 at 20, 22. Similarly, Novant has a “North Market,” which largely tracks—
but is not identical to—CHS’s Lake Norman Area. Tr. 481-82 (Riley); PX1151 at 9; PX1295 at 5,
11; see also Tr. 1515-16, 1523-24 (Oliver). NH is Novant’s only inpatient GAC hospital in its
“North Market” and Novant considers it part of the “Lake Norman Area.” PX0001 at ¶ 99; Tr. 482
(Riley); PX5133 at 38, 45. Novant accordingly tracks inpatient market shares and develops
strategic plans specifically for the “North Market.” Tr. 483-84 (Riley); Tr. 799-800, 802, 808-09,
811-12 (Ehtisham); PX1022 at 1-2; see generally PX1151; PX1042; PX1222. Atrium and other
providers also use the term “Lake Norman Area” or “North Area” and view NH and LNR as

9

There are also health systems with hospitals in South Carolina near the Mecklenburg County
border. No party has suggested that those hospitals need to be considered as competitors here, but
they do provide competition for Novant’s and Atrium’s hospitals in the southern end of the
Charlotte area.
10
The contiguous counties to Mecklenburg are Gaston, Union, Iredell, Lincoln and Cabarrus in
North Carolina, and York and Lancaster in South Carolina.
17

serving this area. Tr. 548-49, 551 (Haynes /Atrium); PX3142 at 16, 19; PX3017 at 7; Tr. 977
(CaroMont / Murphy); PX7055 93-4, 112-13 (LifePoint).
This Lake Norman Area has among the fastest rates of population growth in the Charlotte
region and is economically significant to both providers and insurers. DX111 at 1 (identifying the
Lake Norman area as a “Highly Affluent Growth Market”); Tr. 1007 (Murphy); Tr. 204
(Littlejohn); PX1295 at 5; Tr. 1519 (Oliver); Tr. 94 (Page / Blue Cross); Tr. 362-66 (Daniels /
United); PX2060 at 9, 11; PX1152 at 2. Indeed, the Lake Norman area was described by another
hospital as “the most hotly contested hospital market in the entire metro region.” DX 111
(CaroMont).
1.

Atrium Health

Atrium currently operates nine hospitals in Mecklenburg and seven surrounding counties
with a tenth, ALN, scheduled to open in July 2025. When ALN opens, Atrium will have more than
2500 GAC licensed beds, 175 outpatient sites and 2600 employed physicians. PX0003 at p.188.
Atrium’s flagship facility, Carolinas Medical Center (“CMC”), is the largest hospital in Charlotte
with over 1,000 beds. DX 001 at 014, 036. Atrium’s other Charlotte-area hospitals include
University City, Cabarrus, Mercy, Union West, Pineville, and several others. Id. Atrium attracts
patients to its many nearby hospitals with its “front door” strategy, Tr. 571-75, 585-86 (Haynes),
and has more ambulatory surgery centers, employs more physicians, and treats more patients than
all other Charlotte-area hospital competitors combined. DX 001 at 23-24, 188. Atrium also
operates a number of freestanding emergency departments, including ones located in Huntersville
and Mountain Island. Tr. 507 (Riley); Tr. 572-74 (Haynes); Tr. 837-38 (Ehtisham).
ALN will open in Cornelius, North Carolina between NH and LNR in July 2025, initially
with 30 inpatient beds and 8 observation beds. Tr. 555 (Haynes); Tr. 1241-42 (Armato). ALN can

18

quickly expand from 30 to 54 beds by utilizing the already-built fifth floor of “soft space.” Tr. 596
(Haynes); DX 100 at 026 (“[W]e have 30 beds approved but we are jumping to 54 with the addition
of the 5th floor.”). Atrium plans to “expand [ALN] as needed with the population” and already has
zoning approval for up to 140 beds at that facility. Tr. 596-97 (Haynes). Atrium’s former Charlotte
area President (and current Southeast Region President) testified that the building site has even
further capacity for Atrium “to do a whole lot more than that” and “go extremely large.” Tr. 597
(Haynes). Atrium will need CON approval to expand. However, the area is growing and CON
opportunities are likely to be pursued. Tr. 598 (Haynes). Atrium also can move beds between its
existing facilities. Tr. 837-39 (Ehtisham); Tr. 990-91 (Murphy).
2.

Other Health Systems
a)

CaroMont Health

CaroMont Health is a distant third in size among the hospitals in the area surrounding
Charlotte. It operates a single 439-bed general acute care hospital in Gastonia, North Carolina and
a facility in Mount Holly, North Carolina with a free-standing emergency department. Tr. 969-70,
994 (Murphy). CaroMont is building a new 54-bed hospital in Belmont, North Carolina. Tr. 97475 (Murphy). However, CaroMont does not consider Iredell County or the Lake Norman area to
be part of its service area nor does it consider either LNR or NH to be competitors (although it
does consider Novant Presbyterian a competitor). Tr. 973, 977, 979-980 (Murphy). Further, it has
no plans to try to attract patients from the Lake Norman area. Tr. 984 (Murphy). CaroMont briefly
considered but decided not to bid on LNR because it did not want to expand into the Lake Norman
market, preferring to focus its efforts on the Gaston County and western Mecklenburg County area
where it has a significant local presence (as well as other concerns discussed below).
b)

Iredell Health System

19

In addition to CHS, the only other healthcare system currently operating in Iredell County
is Iredell Health System, another single hospital health system. Iredell Health operates Iredell
Memorial, a general acute care hospital in Statesville, North Carolina. Tr. 682 (Green). Unlike
Huntersville, Cornelius and Mooresville, Statesville is not considered a suburb or “bedroom
community” of Charlotte. Tr. 714. Iredell Health also runs Iredell Mooresville, a 68,000 square
foot facility offering 24-hour urgent care, imaging, surgery, rehab, occupational medicine, and
primary care. Tr. 682-83 (Green). Iredell has two ambulatory surgery centers, an urgent care in
Statesville, and approximately twenty-five physician or provider practices. Id. In response to the
closing of Davis as an acute care hospital, Iredell Health significantly increased its emergency
room coverage and has benefited from there now being only one hospital in Statesville. Tr. 712713 (Green). Its President testified that while he did not view Novant’s NH hospital as an inpatient
competitor, Novant’s purchase of LNR and Davis would increase competition for Iredell Health,
particularly if Novant again opens Davis as a hospital. Tr. 693-694, 719-721 (Green).
c)

Health Systems Farther North of Charlotte

Other health systems outside the Charlotte metropolitan area include (1) Catawba Valley
Health System, which operates Catawba Valley Medical Center in Hickory; and (2) Duke
LifePoint, which operates Frye Regional Medical Center in Hickory. Tr. 715 (Green). Atrium
Wake Forest Baptist, a large academic medical center, is located in Winston-Salem, North
Carolina. DX001 at 24.
C.

The Proposed Acquisition

Because of its debt, CHS has engaged in an ongoing effort to sell (or close) many of its
hospitals. Since 2014, when it owned 208 hospitals, it has sold well over 100 hospitals. Tr. 156566 (Hammons); PX 5042 at 55-56 (CHS). Where it has been unable to find a buyer, it has closed

20

hospitals, as it recently did in Florida when a competitor opened a nearby hospital. Tr. 1578
(Hammons). CHS identified Lake Norman and Davis as divestment candidates. Tr. 1563
(Hammons).
CHS began soliciting bids for LNR and related assets in July 2022. PX7015 at 111-12;
PX1010 at 2. CHS conducted a diligent search for potential buyers, which included outreach to
Novant, LifePoint, UNC Health, and CaroMont. PX 2104 at 005; Tr. 1578-80, 1627-28
(Hammons). LifePoint, CaroMont, and UNC requested and received confidential information on
the hospitals but none submitted an offer, at any price. Id.11
Their reasons for not bidding reflected various competitive concerns. LifePoint concluded
that Atrium already had a “significant presence” in the area and the opening of Atrium Lake
Norman would take another 20% to 30% market share (conservatively) from LNR, which would
result in an estimated $20 million decline in LNR’s earnings. Doc. No. 214-1, Ex. 3 at 29, 32-33;
53-58 (Reardon); DX 313 (LifePoint). Thus, LifePoint opted not to submit a bid, even when urged
by CHS to bid at any “comfortable” price. Id.; Doc. No. 214-1, Ex. 3 at 22, 34, 59, 62-63 (Reardon).
CaroMont identified several reasons not to bid on LNR, including declining “EBITDA”
margins; the opening of Atrium’s new hospital which “will take significant market share” at a time
when LNR was already “experiencing sustained market share losses”; changing CON laws for
outpatient services, which “expos[es] them to great risk”; and that the local market was “saturated
with already aligned provider networks.” Tr. 996-97, 1001-02, 1004 (Murphy); DX 111
(CaroMont). Novant was the only entity that submitted a bid. Tr. 1579-80 (Hammons).

11

UNC Health obtained advice on the potential purchase from Morgan Stanley. Despite some
favorable comments on potential benefits from the bankers (which also included a note that
“Atrium’s new hospital project will need to be incorporated into purchase price and valuation”)
UNC Health did not submit a bid. See PX 3176 at 8: PX 7060 at 66-67.
21

In September 2022, Novant proposed to acquire LNR and related assets for $300 million,
PX2217 at 2, and in October 2022, Novant and CHS executed a letter of intent on those terms.
See generally PX2218. Novant signed a second letter of intent to acquire Davis for an additional
$20 million in January 2023. PX1172 at 1. On February 28, Novant and CHS entered into a
purchase agreement, whereby Novant would acquire LNR, Davis, and related assets for $320
million. PX1004.
D.

Health Insurance Negotiations and Pricing

The four largest insurance companies in the Charlotte area are Blue Cross Blue Shield of
North Carolina (“Blue Cross”), United Healthcare (“United”), Cigna HealthCare of North
Carolina (“Cigna”), and Aetna. DX 001 at 031. Hospital competition occurs in two stages. First,
hospitals compete for inclusion in insurers’ networks. Tr. 1110 (Tenn). Second, hospitals
compete for patients. Tr. 1110 (Tenn). In the negotiations between insurers and hospitals,
insurers seek the inclusion in their plans of hospitals (and other providers) whose services are
demanded by the insurer’s current or prospective members. Tr. 98 (Blue Cross); Tr. 345
(United).
The relative bargaining leverage of an insurer and a hospital determines the contracted
reimbursement rate and non-price terms, which are set in these negotiations. Tr. 1110-11 (Tenn).
In general, a hospital’s bargaining leverage depends on its size and popularity; in other words,
the extent to which its absence would make the insurer’s provider network less attractive and
marketable. Tr. 115-16 (Blue Cross); Tr. 461 (Ambetter). Also, a hospital’s leverage is impacted
by whether other hospitals could serve as viable in-network substitutes in the eyes of the insurer’s
members. Tr. 115 (Blue Cross); Tr. 353-54 (United). The presence of competing hospitals thus
theoretically limits a hospital’s bargaining leverage with insurers, thereby constraining the

22

hospital’s ability to obtain higher rates. Tr. 115 (Blue Cross); Tr. 352-53 (United). On the other
hand, the absence of competing hospitals strengthens the hospital’s bargaining position and may
lead to higher reimbursement rates. Tr. 355-56 (United); Tr. 144 (Blue Cross). Higher rates result
in higher premiums and out-of-pocket expenses for members. Tr. 100 (Blue Cross); PX3028 at
1; Tr. 352-53 (United); Tr. 453-56 (Ambetter); Tr. 1670-71 (Aetna).
Although insurers would prefer to negotiate the inclusion of each hospital in their various
plans separately, Tr. 1657 (Aetna), large hospital systems with multiple hospitals like Novant
and Atrium often demand that insurers negotiate with them as a system, at least within a broad
geographic area. So, the reimbursement rates and other terms for Novant are set on a systemwide basis. Unless special (and unusual) contractual terms are agreed to, each hospital charges
the same rates. Additionally, by contract, a hospital system’s negotiated rates are also applied to
new hospitals that are purchased or built. This system-wide negotiating strategy significantly
increases the hospital system’s leverage as it would be very difficult (but of course not
impossible)12 for insurers to completely remove large hospital systems from insurers’ most
popular broad network plans.13 See Tr. 1652-53 (Aetna) (larger providers have more leverage in
negotiations, which allows them to demand higher reimbursement rates); PX1280 at 1 (Novant’s

12

Insurers have their own leverage, including the ability to create public pressure on hospitals
through anticipatory termination notices, press releases and other communications. Also, the larger
the insurer, the more costly the loss of that insurer’s members would be for the hospital. Indeed,
as the size of the hospital systems and insurers increase, the stakes of their negotiations rise to the
point where an inevitable compromise must be reached as a practical matter for both sides.
13
Insurers also offer “narrow networks,” in which – in return for discounted rates – only one large
hospital system is considered to be “in network” or in a “Tier 1” with other hospitals often available
but outside the network or in a lower tier. Both Atrium and Novant are large enough and have
enough market power to have narrow plans that feature only their hospitals. Tr. 157-158 (Page);
Tr. 367; 406 (Daniels); PX 3127 (United). However, these plans typically attract only a very small
percentage of members who are the most price sensitive. Therefore, beyond showing the market
dominance of Atrium and Novant, these “narrow network” plans have little impact on the Court’s
analysis of competitive realities.
23

CEO challenged Novant’s payor contracting lead to “leverage [Novant’s] size to achieve” higher
reimbursement rates); Tr. 1529-31 (Oliver).
The evidence established that both Atrium and Novant have been successful in
negotiating relatively higher reimbursement rates, with Atrium’s prices topping Novant’s, as
would be predicted by Atrium’s larger size and resulting leverage. In contrast, with only one
hospital in North Carolina, CHS has little leverage with insurers and thus has accepted lower
prices at LNR to be included in the insurers’ plans. Tr. 325-26 (DiPace). There was, however,
no evidence that the presence of LNR or Novant as competitors had explicitly affected the prices
negotiated by Novant or CHS. Tr. 1639 (Keibler); Tr. 153 (Page); Tr. 408 (Daniels); Tr. 1639
(Keibler); Doc. No. 214-1, Ex. 5 at 77-78 (Cigna); Tr. 338-39 (DiPace). Nevertheless, if Novant
purchases LNR, insurers predict that reimbursement rates (or alternatively lump-sum
payments)14 will significantly increase post-acquisition to reflect Novant’s already negotiated
rates (absent any special contractual changes or Novant’s voluntary action to limit rates). Tr.
144-45 (Blue Cross); Tr. 463 (Ambetter); Tr. 1658 (Aetna); Tr. 356 (United). For example, Blue
Cross estimates the transaction will raise LNR’s reimbursement rates by 44% and Davis’s by
48%, equating to an increase of over $21 million. PX3029 at 2; Tr. 145-48 (Blue Cross).15

Following Novant’s recent purchase of New Hanover Medical Center, rather than sharply
increase rates at that hospital (which would have caused significant local market disruptions),
Novant agreed to accept a lump-sum payment and higher rates throughout its entire system.
15
While acknowledging that reimbursement rates at LNR would rise under its current contracts,
Novant argued that those rates are only one component of “total costs,” which depend on several
other factors, including a hospital’s ability to reduce readmission rates, infection rates, length of
stays, and long-term care needs, as well as to provide preventative care to limit hospitalizations in
the first place. Tr. 417-18 (Daniels); Tr. 1247-48 (Armato); Tr. 1485-87 (Oliver) (reduction in Csection rates reduced total cost of care for Novant patients).
14

24

Overall, while acknowledging that any increased market share and hospital reach would
incrementally benefit Novant in future rate negotiations, insurers either had no opinion on
whether adding LNR to Novant’s portfolio would impact rates or they believed there would be
little or no impact based on LNR’s currently limited competitive position. Tr. 1639 (Keibler);
Tr. 462 (Portman); Doc. No. 214-1, Ex. 7 at 30-31 (Cigna). During the hearing, insurers were
not asked how Novant’s purchase of LNR would affect future rate negotiations with Atrium
(though based on Novant’s position that the purchase of LNR will have no positive effect on its
own rates, it would seem highly unlikely that the addition of LNR to Novant would in turn
constrain Atrium’s system-wide rates).
The second stage of competition is when the hospitals within the health plan network
compete to attract patients. Patients may prefer inpatient GAC services close to where they live
because they value convenience, familiarity with local hospitals, and the ability for friends and
family to visit during a hospital stay, Tr. 98, 103 (Blue Cross); Tr. 345, 350 (United); Tr. 165556 (Aetna); Tr. 687-88 (Iredell Health); PX7001 50, 100 (CaroMont), but the primary forces that
determine where a patient goes to the hospital are 1) where the patient goes to the emergency
room and 2) the recommendation / preference of the patient’s doctor. See Tr. 238-39 (Littlejohn)
(stating “whoever has the doctors has the patients by default.”); Tr. 571-75, 585-86 (Haynes)
(Atrium attracts patients to its many nearby hospitals with its “front door” strategy of operating
numerous free standing emergency rooms and physician groups). Accordingly, the parties’
contentions with respect to the factors guiding “patient choices,” while not irrelevant, appear to
be clearly outweighed by “doctor choices and affiliations” and emergency considerations, factors
over which patients have far less influence.
E.

Hospital Quality

25

1.

Quality of Care

Novant spent much of the hearing attacking the quality of care at LNR. As noted above,
and discussed more below, the Court finds that much of Novant’s critique is exaggerated and that,
considered as a whole, LNR is not a “bad hospital” and certainly not a dangerous one, as Novant
repeatedly implied. Moreover, Novant apparently intends to provide care in the future with many,
if not all, of the same doctors, nurses and other medical staff that currently serve at LNR. (So,
while Novant has promised to increase and improve support, one would generally expect the same
basic level of care from the same medical providers).
Again, the task before the Court is to assess the likelihood of antitrust injury to competition
not the relative quality of various hospitals. Thus, although a hospital’s quality of course has some
relevance to its competitive position, it does not play the central role urged by Novant here. In
addition, Novant has failed to offer any evidence beyond its conclusory assertions (and statistically
questionable arguments)16 that LNR’s competitive position is precipitously “declining” because
of any quality issues. Indeed, LNR’s most recent safety quality rating improved and the evidence
shows that LNR’s “quality” and occupancy has remained relatively flat over the past several years
(or longer). Instead, it appears that LNR’s competitive challenges, which are quite real, relate
mostly to LNR’s loss of important services, lack of nurse staffing, and the inability to grow a
physician network to generate referrals into the hospital.
A hospital’s overall “quality” is not easily measured, particularly in a competitive sense,
as it is ultimately an amalgamation of thousands of medical service interactions involving

For example, Novant argued that LNR’s average daily census has “been declining for 20 years.”
However, CHS has only owned LNR less than half that time and, ironically, during most of the
earlier years seeing the largest decline, Novant itself had a significant ownership interest in LNR.
Far more relevant to current competitive concerns is the recent history at LNR discussed in this
Order.
16

26

individual doctors, nurses and patients as well as public perception, which may or may not reflect
reality. The parties relied on a national safety scorecard rating, analyzed various “metrics,” and
presented expert testimony as their evidence on “quality.” The “Leapfrog Hospital Safety Grade”
provides a letter grade rating from A to F based on an independent analysis of up to twenty-two
evidence-based measures of patient safety. See Explanation of Hospital Safety Grades, The
LEAPFROG Group, available at https://www.hospitalsafetygrade.org/your-hospitals-safetygrade/about-the-grade (accessed May 30, 2024). Safety grades are well distributed along the
spectrum, with 29% of over 4000 hospitals receiving an “A,” 26% a “B,” 37% a “C,” and the
remainder D and F. Id. LNR earned a “B” grade in the most recent Spring 2024 grading period.
LNR also received a “B” during both reporting periods in 2021 and 2022, but received “C” grades
in 2023 (the year that the sale of the hospital to Novant was announced and the legal uncertainty
related to the transaction ensued).17 Therefore, currently and for much of the recent past, LNR has
had a good safety rating that very likely ranks in the top half of a large national survey (between
45% and 71%). Likewise, its quality grade is improving (back up to its more typical recent level)
rather than “declining” as argued by Novant. Beyond its Leapfrog “safety grade,” LNR has also
had only one serious safety event since 2018. Tr. 756 (Music).
The FTC and Defendants each presented highly qualified experts on hospital quality who
evaluated LNR’s quality. Dr. Ashish Jha, Novant’s expert, offered his opinion that LNR’s quality
will improve after Novant’s purchase based on Novant’s higher average level of care across all its
hospitals and other measures. In response, Dr. Lawton Burns, the FTC’s expert, analyzed LNR

As another example of Novant’s concerted (but ultimately unnecessary) effort to denigrate
LNR’s quality of care, Novant’s counsel highlighted these 2023 grades in her opening statement
without any reference to LNR’s more recent better grade, which was publicly available (and known
to Defendants).
17

27

and eight Novant hospitals and found no statistically significant differences in performance across
nearly twenty quality outcome metrics. Tr. 914-15, 921-22 (Burns). He concluded that LNR
outperforms a number of Novant hospitals on a variety of outcome metrics, including Novant
Rowan – a hospital purchased by Novant that has been subject to Novant’s quality improvement
tools for many years. Tr. 919; 937-40 (Burns); PX0006 (Burns Rebuttal Rpt.) §§ IV-V; Tr. 131718 (Armato) (Novant Rowan’s performance declined following its acquisition by Novant and
seven years after it was acquired, it still received “stubbornly low” patient satisfaction scores).
The Court need not decide between these experts’ opinions, as both express views that are
relevant to the Court’s decision. With respect to Dr. Jha, the Court accepts his conclusion that
Novant has an overall better track record for providing the highest quality care and is likely (but
not certain)18 to improve quality at LNR if it is allowed to purchase the hospital.19 Similarly, the
Court accepts Dr. Burns’ opinion that LNR is currently providing appropriate medical care that is
broadly consistent with the care provided at individual Novant hospitals per numerous quality care
metrics, even if LNR falls short of Novant’s “average” level of care. Again, this is corroborated
by the Leapfrog scores, which suggest that LNR’s quality is good, but below the very highest level.

Dr. Burns presented evidence that Novant’s acquisition of New Hanover Medical Center in 2021
did not immediately lead to quality improvements. See PX0006 (Burns Rebuttal Rpt.) § V.B. New
Hanover had maintained an “A” Leapfrog rating but fell to (and has stayed at) a “B” shortly after
being acquired by Novant. Tr. 1314-15 (Armato). Also, New Hanover’s performance declined
across five CMS patient experience metrics following Novant’s acquisition, PX0002 (Burns Rpt.)
¶¶ 81-84, and a year and a half after Novant acquired New Hanover, the hospital was placed on
immediate jeopardy status by CMS, putting its Medicare and Medicaid contracts at risk. PX1278
(Novant) at 3; Tr. 1527-28 (Oliver).
19
Novant is widely recognized as a high-quality healthcare system, Tr. 1547-48 (Wyatt); Tr. 1245
(Armato); DX 008 (Iredell County Board); DX 011 (Dr. Korrapati), as established by numerous
metrics. All of Novant’s Charlotte-area hospitals, for example, have an “A” Leapfrog grade, and
4- or 5-star ratings from Vizient. Tr. 851-853 (Ehtisham); Tr. 509-10 (Riley); Tr. 1248-49
(Armato); Tr. 1491, 1494-95 (Oliver).
18

28

Novant also repeatedly criticized LNR’s level of occupancy as an indication of its
supposedly “declining” quality. However, the evidence does not support this conclusion. Rather,
LNR’s inpatient occupancy has been stable since 2017 at approximately 33%. Tr. 1145- 50, 188588 (Tenn) (noting that most of LNR’s occupancy decline occurred when Novant held a minority
stake in the hospital); PX0005 (Tenn Rebuttal Rpt.) ¶ 121. LNR’s inpatient occupancy is strikingly
lower than NH (which often exceeds 70%), but is closer to other community hospitals farther from
Charlotte, like Iredell Memorial, which has an average occupancy level of 38%. See DX015 at 1.
Additionally, CHS effectively “downsized” LNR many years ago, staffing only 40 to 70 beds,
depending on the season. Looking at “staffed” beds rather than the full number of 123 licensed
beds, LNR has a much higher occupancy rate based on its average census count of 38 patients. See
Tr. 178 (Littlejohn).
Contrary to Novant’s contention that “patients have largely stopped going to Lake Norman
for care,” LNR’s occupancy level does not indicate that those most likely to go to LNR have
abandoned the hospital. According to the FTC’s expert, LNR is the most popular hospital in the
two zip codes nearest the hospital (the area from which it draws most of its patients). See PX4025
at 2. In those two ZIP codes (28115 and 28117), LNR claims a 46.7% and 45.9% market share,
respectively. Id. In the same ZIP codes, NH has the second highest share, with 19.6% and 21.8%,
respectively. No other hospital has a greater than 10% share in these two ZIP codes. Id. Novant’s
expert calculates similar results (41% and 42%). See Doc. No. 214-1, Ex. 2 ¶¶ 7-10 (Wu).20

Novant argues that these numbers show that “a majority” of the patients in these zip codes seek
care elsewhere. However, this is also true for the two closest zip codes to NH, where more than
half go to a different hospital. PX4025 at 3. Novant further tells the Court that in 2004 over 60%
of patients in the same zip codes nearest to LNR went to LNR. Yet, this fact is unremarkable
because NH did not even open until November 2004.
20

29

Regardless, considering the issue of occupancy from a competitive rather than a quality
standpoint, it is notable that LNR has been unable to improve occupancy through increasing its
referring physician networks and “patient access points.” When it identified three potential primary
care clinics, CHS funded only one: a location near Statesville, which CHS did not move forward
with after it closed Davis’s acute care services. Tr. 252-53 (Littlejohn). Also, it has not invested in
hiring other physicians, resulting in it operating the smallest affiliated primary care provider
network in its primary service area. Tr. 249 (Littlejohn); PX 2082 at 016.
LNR also considered a partnership with OrthoCarolina to open an ambulatory surgery
center, for which Lake Norman had been awarded a CON. Tr. 256 (Littlejohn). OrthoCarolina
decided not to pursue the project after North Carolina repealed its outpatient CON laws. Tr. 1606
(Hammons). As Lake Norman’s then-CEO recognized: “Having that paper of the CON was very
valuable, but then when CON went away, there was no value to the CON.” Tr. 256 (Littlejohn).
2.

Loss of Medical Services

While one component of the “quality” of care relates to how well a particular medical
service is performed, another component of the “level of care” provided by a hospital is the breadth
of the services it performs. Thus, colloquially, the public may refer to the “best” hospitals as those
where the most complex and cutting-edge medical procedures are available. Though LNR is a
“community” hospital, (and not expected to offer the full range of medical services found at the
area’s “flagship” hospitals, Atrium CMC and Novant Presbyterian), it has experienced a marked
loss of important services that impact its competitive position.
For example, LNR no longer offers neonatal intensive care (“NICU”) services, so mothers,
obstetricians, and neonatal nurses choose other hospitals that provide skilled care for premature births
to avoid “separat[ion of] the mom and the baby.” Tr. 778-780 (Music). And, despite repeated efforts,
LNR offers ST-elevation myocardial infarction (“STEMI”) services only sporadically – it was “STEMI

30

red” 30 out of 90 days in the first quarter of 2024 – so EMS bypasses the facility because Lake Norman
“[is]n’t reliable.” Tr. 774, 780-83 (Music); Tr. 259-62 (Littlejohn). Further, LNR lacks some of the
oncology services it previously offered and no longer has intensivists supporting its critical care unit,
forcing hospitalists to cover those patients. Tr. 776-78 (Music); Tr. 1373 (Jha). There are also other
areas of the hospital which are unused, including a 30-bed med-surg unit, 6 beds in the oncology unit,
an overflow obstetrics unit, and 18 beds in the ortho/neuro/spine medical unit. Tr. 767-770 (Music);
Tr.1367 (Jha); DX 485.

F.

CHS Lack of Investment in LNR

As mentioned previously, CHS decided several years ago, well before it made the decision
to sell LNR and Davis, to focus its limited investment dollars on other hospitals. While the FTC
assails it as a “voluntary” choice (which is voluntary only in the sense that CHS could have made
a different decision on where to use its budget, which is involuntarily limited by its massive debt),
the decision to invest elsewhere has plainly led to significant competitive consequences for LNR.
CHS has failed to approve or has delayed approval of all but the most routine expenditures. Tr.
270-77 (Littlejohn); DX449 at 036-038. CHS has also delayed an upgrade in LNR’s fragmented
and antiquated electronic medical records system. The patchwork infrastructure does not allow for
integration or communication across systems, risks loss of patient data, and fails to support patient
health and safety-related monitoring. Tr. 671-72 (Benet); Tr. 772-73, 785-86 (Music); Tr. 137879 (Jha). CHS put LNR on a list for EMR upgrades multiple times, but never made the investment.
Tr. 785 (Music); Tr. 1433, 1435-36 (Jha). Following its agreement to sell LNR to Novant, CHS
has (unsurprisingly) further reduced its investment in LNR. PX2363 at 1 (describing investment
in LNR as on “freeze/emergency only”).
Even more fundamental to its success (and ability to grow and compete), CHS’s lack of
investment in LNR has caused the hospital to struggle to recruit and retain physicians and staff. Tr.

31

774, 778-80, 782-83 (Music). More than 30% of its nurses leave their positions in their first year. Tr.
660-61 (Benet); Tr. 768 (Music); DX 488. Consequently, LNR has staffing vacancies of 50% in its
emergency room, 50% in its med-surg unit, and 30% in its obstetrics unit. Tr. 772-73 (Music). At night,
the only physician in the building is in the emergency room; a nurse practitioner services the inpatient
beds upstairs. Tr. 778 (Music). As summarized by its quality care coordinator, LNR is currently “in a
very fragile, vulnerable state” with staffing. Tr. 725-26 (Music).

G.

The Parties’ Plans If the Transaction Is or Is not Approved
1.

Davis

If this transaction is enjoined, CHS plans to close Davis immediately. Tr. 1575-77
(Hammons). CHS has repeatedly considered closing Davis to avoid continued losses of $1 million
per month and the agreement to sell Davis to Novant is the only reason Davis remains open today.
DX 460; Tr. 1575-77 (Hammons). If the purchase is not enjoined, Novant will keep Davis open
and continue its presently available behavioral-health services. Tr. 886-88 (Ehtisham). Novant also
intends to consider reopening the emergency room at Davis or opening a separate emergency room
in the Statesville area within two years. Tr. 1260-61 (Armato); DX 677 at 003.
2.

CHS’ Investment in LNR Will Continue to Be Limited

If the sale does not move forward, then CHS will continue to offer LNR for sale, but no
potential buyer other than Novant bid initially and no evidence suggests that any of the health
systems that decided not to bid would change their mind or that a new bidder would emerge. In
the absence of a sale, there is no reason to believe that CHS will do anything other than continue
to operate LNR with very limited investments. CHS will continue to allocate funds towards
required maintenance of the facility, but will not allocate any meaningful growth capital. Tr. 1630
(Hammons). With both the opening of ALN and the changes in the CON law expected to

32

significantly reduce revenues and CHS’s debt load making carrying operating losses or even
marginal profits difficult, LNR’s future is decidedly uncertain. Tr. 1577 (Hammons).
3.

Novant’s Commitments Re: Hospital Pricing and Investments

In an effort to avoid an injunction and address the likely rate increases at LNR and Davis
should the purchase move forward, Novant has made a public commitment that it will give insurers
the option to (i) maintain existing rates at LNR and Davis, or (ii) apply annual reimbursement rate
escalators that are capped at the lesser of general inflation or increase in medical CPI for three
years. DX 677 at 004; Tr. 895 (Ehtisham). These options will freeze rates at LNR until ALN opens,
the CON law changes take effect, and the FTC administrative hearing moves forward. The Court
credits and accepts the testimony of Novant’s executives that Novant will execute these actions as
promised and in good faith. Furthermore, the Court believes the Novant executives’ testimony that
Novant intends to work diligently to run these hospitals to the best of their ability. Novant has
committed to fulfilling these commitments despite the threat of ongoing litigation. When the Court
asked Novant’s CEO whether the commitments are “dependent upon the successful resolution of
all of those litigation risks,” Mr. Armato responded that: “I will begin implementing all that I have
agreed to and what we’ve committed to right away.” Tr. 1329-30.
Novant will make significant investments in LNR. For instance, Novant has already
committed to fund certain capital projects that leaders at LNR have requested, including a cardiac
catheterization laboratory expansion ($850,000), building a cardiac care unit ($1,000,000),
replacing an end-of-life HVAC system ($300,000), replacing end-of-life anesthesia machines
($360,000), and upgrading an outdated fire alarm system ($150,000). Tr. 1256-57. (Armato). In
addition, Novant will restore Lake Norman’s well baby nursery into a Level II NICU. Tr. 1257-58
(Armato); Tr. 857-59 (Ehtisham); DX 689.

33

Further, Novant will 1) recruit the cardiologists and staff necessary to offer STEMI services
around the clock, every day. Tr. 842-43 (Ehtisham); 2) recruit an intensivist, Tr. 846-47
(Ehtisham); 3) staff a colorectal surgeon rotation and enhance surgery call coverage, Tr. 1257-58
(Armato); Tr. 846-47 (Ehtisham); DX 677 (Novant); and 4) increase nursing salaries and nurse
staffing. Finally, at both hospitals, Novant has committed to implement its Epic EMR system and
various safety and clinical management programs, Tr. 877-78 (Ehtisham); DX 677, and provide
tele-stroke, tele-ICU, and tele-psychiatry coverage, along with AI-enabled clinical support
services. Tr. 846-47, 857-59 (Ehtisham).
In crediting this testimony, the Court notes that in operating LNR and Davis as Novant
facilities, Novant risks significant reputational harm if they do so in any manner that reflects poorly
on their well-established local brand. DX 677; PX 5026; Tr. 865-66 (Ehtisham); Tr. 1249-50
(Armato). By putting its name on these hospitals, Novant has a strong incentive to improve them.
Tr. 1245, 1251-52 (Armato); Tr. 1503 (Oliver); Tr. 865-66 (Ehtisham).
H.

Community Reaction to the Proposed Acquisition
1.

North Carolina Treasurer Amicus Brief

North Carolina Treasurer Dale R. Folwell filed an amicus brief in support of the FTC’s
motion for a preliminary injunction. Doc. No. 98. The brief states that “[c]onsolidation in the health
care market is a major concern for the Treasurer” (as a fiduciary for the state’s self-funded health
plan for teachers and state employees) and argues that Novant’s purchase of LNR will raise prices
for health plans, hurting health plan members and taxpayers alike. Id. at 5-6. Furthermore, the
Treasurer expressed his concern that Novant’s purchase as a “non-profit” hospital will cause the
loss of state and local tax dollars, resulting in either higher taxes or fewer services. Id. at 11.
2.

Public Comments

34

A number of community members expressed support for this transaction to the Court.
(Although the Court notes that most, if not all of them, had ties to Novant or a personal incentive
to support the transaction). Tr. 1546-51 (Wyatt); DX 008 (Iredell County Board); DX 009
(Professor of Nursing); DX 010 (Mitchell Community College President); DX 011 (Dr.
Korrapati); DX 005 (Charlotte Regional Business Alliance); DX 012 (Dr. Sturgess); DX 037 (Dr.
Gross, Chief of Staff at Lake Norman); DX 006 (FeedNC).
IV.

DISCUSSION

Again, under Section 13(b), the Court must determine whether the public interest is served
by preliminarily enjoining the challenged transaction based on its assessment of the FTC’s
likelihood of ultimate success and weighing the equities.21
A.

Likelihood of Ultimate Success

Section 7 of the Clayton Act, 15 U.S.C. § 18, provides that “no person subject to the
jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of
another person … where in any line of commerce or in any activity affecting commerce in any
section of the country, the effect of such acquisition may be substantially to lessen competition, or
to tend to create a monopoly.” Section 7 is concerned with “probabilities, not certainties” and its
definition of antitrust liability is “relatively expansive.” Brown Shoe Co. v. United States, 370 U.S.
294, 323. Still, to stop a merger or acquisition, a Section 7 plaintiff ultimately must show that a
“substantial lessening of competition” is “sufficiently probable and imminent.” United States v.

21

At the conclusion of its proposed findings of fact and conclusions of law, Defendants include
conclusory arguments related to “several constitutional defects” that allegedly preclude the FTC
from succeeding on the merits. These arguments were not raised at the hearing and will not be
addressed in the first instance in this Order, which does not decide the merits of the FTC’s action.
Defendants may, if it is appropriate to do so, raise their constitutional challenges during the FTC
administrative process or on appeal from that process.
35

Marine Bancorporation, Inc., 418 U.S. 602, 622-23, n.22 (1974) (internal quotation omitted); see
Fed. Trade Comm'n v. Thomas Jefferson Univ., 505 F. Supp. 3d 522, 537 (E.D. Pa. 2020).
Congress chose not to define “substantially” either “in quantitative terms of sales or assets
or market shares” or “in designated qualitative terms.” Brown Shoe Co., 370 U.S. at 321. Instead,
Congress’s decision “indicated plainly that a merger had to be functionally viewed, in the context
of its particular industry.” Id. at 321-22. A Court might consider:
for example, that a whole or material part of the competitive activity of an
enterprise, which had been a substantial factor in competition, had been eliminated;
that the relative size of the acquiring corporation had increased to such a point that
its advantage over competitors threatened to be ‘decisive’; that an ‘undue’ number
of competing enterprises had been eliminated; or that buyers and sellers in the
relevant market had established relationships depriving their rivals of a fair
opportunity to compete.
Id. at 321 n.36 (citing H.R. Rep. No. 1191, 81st Cong., 1st Sess. 8.) The general language of this
standard reflects “a conscious avoidance of exclusively mathematical tests.” Id.
Such limited guidance suggests that “Congress was simply leaving to the courts the task of
determining what specifically must be shown to establish a violation of the statute in so complex
and variegated a field as mergers.” Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An
Analysis of Antitrust Principles and Their Application ¶ 905b. (4th & 5th eds. 2018-2023). There
is, however, broad consensus that the Act was not intended “to reach every remote lessening of
competition.” Signode Steel Strapping Co. v. Fed. Trade Comm'n, 132 F.2d 48, 53 (4th Cir. 1942).
Rather, it “was intended to prevent such agreements as would under the circumstances disclosed
probably lessen competition.” Id. Courts have accordingly found that “may” means a reasonable
probability, not “an ‘ephemeral possibility.’” Areeda & Hovenkamp, at ⁋ 1160b (quoting Brown
Shoe Co., 370 U.S. at 323). “Unfortunately, probability, like substantiality, is not self-defining.”
Id.

36

In determining whether competition may be “substantially lessened,” the Court applies “a
burden-shifting analysis.” Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690, 703–04 (4th Cir.
2021); United States v. Anthem, Inc., 855 F.3d 345, 349 (D.C. Cir. 2017). Initially, the FTC bears
the prima facie burden of showing that the proposed merger would result in “a firm controlling an
undue percentage share of the relevant market” as well as “a significant increase in the
concentration of firms in that market.” United States v. Phila. Nat'l Bank, 374 U.S. 321, 363
(1963). The Supreme Court has explained that a merger with these characteristics “is so inherently
likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly
showing that the merger is not likely to have such anticompetitive effects.” Id. Therefore, “[i]f the
government makes this [prima facie] showing, a presumption of illegality arises.” FTC v. Univ.
Health, Inc., 938 F.2d 1206, 1221 (11th Cir. 1991); JELD-WEN, 988 F.3d at 703 (discussing “a
presumption of anticompetitive effect). However, although “[s]tatistics reflecting the shares of the
market controlled by the industry leaders and the parties to the merger are, of course, the primary
index of market power; [] only a further examination of the particular market—its structure, history
and probable future—can provide the appropriate setting for judging the probable anticompetitive
effect of the merger.” Brown Shoe Co., 370 U.S. at 322 n.38.
If a prima facie case is presented, Defendants then have an opportunity to rebut the
presumption of anticompetitive effect either by 1) discrediting the FTC’s market-concentration
evidence (i.e., showing that it doesn't reflect the true level of concentration) or 2) showing that,
even if the FTC’s market-concentration evidence is credible, it inaccurately predicts the merger's
probable effect on competition. See JELD-WEN, 988 F.3d at 703-04. To meet this burden, “the
defendants may rely on nonstatistical evidence which casts doubt on the persuasive quality of the
statistics to predict future anticompetitive consequences.” H.J. Heinz Co., 246 F.3d at 715, n.7.

37

Additionally, “the defendants may demonstrate unique economic circumstances that undermine
the predictive value of the government's statistics,” id., or present “evidence showing that the
intended merger would create significant efficiencies in the relevant market.” Univ. Health, 938
F.2d at 1222. “If the defendant successfully rebuts the presumption of illegality, the burden of
producing additional evidence of anticompetitive effect shifts to the government, and merges with
the ultimate burden of persuasion, which remains with the government at all times.” Heinz, 246
F.3d at 715.
1.

Definition of the Relevant Market

The first step in evaluating the FTC’s prima facie case is to determine the “relevant
market,” which consists of two components: a product market (what the merging parties are
competing to sell) and a geographic market (where do the parties compete). United States v.
Marine Bancorporation, Inc., 418 U.S. 602, 618 (1974); Brown Shoe Co, 370 U.S. at 324; Fed.
Trade Comm'n v. Hackensack Meridian Health, Inc., 30 F.4th 160, 166 (3d Cir. 2022).
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. Substantiality can be determined only in
terms of the market affected.” Brown Shoe Co, 370 U.S. at 324 (internal quotation omitted). As
prescribed by Congress, the definition of relevant markets is a “pragmatic” and “factual” exercise
and “not a formal, legalistic one.” Id. at 336; Thomas Jefferson Univ., 505 F. Supp. 3d at 539.
Therefore, a properly identified relevant market must “correspond to the commercial realities of
the industry.” Id.
The pricing of medical services involves both insurance companies and patients. As
explained by the Court in Thomas Jefferson:

38

Because prices are established through multiple layers of competition, price setting
is complicated in the commercial reality of the healthcare market. See Penn State
Hershey, 838 F.3d at 342. ‘“In the first stage, hospitals compete to be included in
an insurance plan's hospital network. In the second stage, hospitals compete to
attract individual members of an insurer's plan.”’ Penn State Hershey, 838 F.3d at
342 …
…
‘“[T]he vast majority of health care consumers are not direct purchasers of health
care—the consumers purchase health insurance and the insurance companies
negotiate directly with the providers ....”’ Saint Alphonsus Med. Ctr, 778 F.3d at
784 (internal quotations and citation omitted). ‘“[I]insurance companies effectively
act both as buyers and sellers.”’ Id. The insurers are the most relevant buyers, who
‘“must consider both whether employers would offer their plans and whether
employees would sign up for them.”’ FTC v. Advocate Health Care Network, 841
F.3d 460, 475 (7th Cir. 2016).
‘“Not until the insurer passes [a price] increase on to the patient in
the form of higher premiums will the patient feel the impact of that
price increase. And even then, the cost will be spread among many
insured patients; it will not be felt solely by the patient who receives
the higher-priced procedure. This is the commercial reality of the
healthcare market as it exists today.”’
Penn State Hershey, 838 F.3d at 342; see also Advocate Health Care, 841 F.3d at
471 (‘“Insured patients are usually not sensitive to retail hospital prices, while
insurers respond to both prices and patient preferences.”’). ‘“Patients, of course, are
relevant.”’ Penn State Hershey, 838 F.3d at 343. But the Court's focus is properly
‘“on the likely response of insurers”’ and not on the ‘“likely response of patients to
a price increase.”’ Id. at 339.
Thomas Jefferson Univ., 505 F. Supp. 3d at 539–40.
a)

Product Market

Product markets usually include the product at issue and its substitutes, the other products
that are reasonably interchangeable with it. Fed. Trade Comm'n v. Advoc. Health Care Network,
841 F.3d 460, 467–68 (7th Cir. 2016). Products can also be “clustered” together if the cluster is
itself an object of consumer demand. Id.; see Philadelphia National Bank, 374 U.S. at 356
(“commercial banking” approved as “cluster of products”); Federal Trade Comm'n v. Staples, Inc.,

39

970 F.Supp.3d 1066, 1080 (D.D.C. 2016) (consumable office supplies clustered into one market).
Through its expert,22 the FTC contends that the product market here is the cluster of inpatient
general acute care services provided by both Novant and LNR that are covered by commercial
health plans. This product market includes the typical medical services and procedures that require
admission to a hospital, such as abdominal surgeries, childbirth, treatment of serious infections,
and some emergency care. A similarly defined “product market” has been found (and often
stipulated) in numerous hospital merger cases. See Advoc. Health Care Network, 841 F.3d 460,
467 (7th Cir. 2016); Penn State Hershey, 838 F.3d at 338 (parties stipulated); Tenet Health Care,
186 F.3d at 1051–52 (8th Cir. 1999) (same); Federal Trade Comm'n v. Freeman Hospital, 69 F.3d
260, 268 (8th Cir. 1995) (same).
In response, Defendants do not offer a specific alternative product market (and they bear
no obligation to do so because the FTC bears the burden of proving a relevant market). Rather,
through their expert,23 they criticized the FTC’s proposed market primarily on two grounds. First,
Defendants argue that there is a “porous boundary between inpatient and outpatient services”
because some conditions can be treated either in hospitals or outpatient facilities. However, while
there may be overlap in the types of medical services provided in inpatient and outpatient settings,
those services are ultimately not the same product because it is a matter of medical judgment in
each particular case as to whether inpatient services are required – and when they are, an outpatient
facility is (almost by definition) not an equal substitute. Tr. 177 (Littlejohn); 684-85, 715-16
(Green). Second, Defendants challenge limiting the product market to services sold to commercial

The FTC’s market expert was Steven A. Tenn, Ph.D., a well-credentialed and experienced
economist who has previously testified for the FTC in hospital merger litigation.
23
Defendants’ market expert was Dr. Lawrence Wu, a similarly well-credentialed and experienced
economist who has also previously testified in hospital merger litigation.
22

40

health plans and their members, thereby excluding Medicare and Medicaid plans. The Court finds
the distinction between commercial and governmental health insurance to be reasonable.
Government insurance is limited to certain eligible populations, negotiated more broadly and
constrained by government set prices and regulations. Tr. 1047-48 (Tenn); Tr. 358-60 (United).
Therefore, the Court agrees that the relevant product market should be limited to commercial
insurance. 24
Finally, the Court agrees that in defining the relevant product (and geographic) markets, it
is most appropriate to focus on the “overlapping” medical services where LNR competes with
Novant. See Tr. 1043 (Tenn); PX0005, tbl.2 (overlapping services account for approximately 95%
of discharges from the two hospitals). LNR and NH are considered to be “community” hospitals
that offer primary and secondary medical services rather than the more complex tertiary and
quaternary services provided by larger “flagship” hospitals or academic medical centers, like
Atrium Carolinas Medical Center and Novant Presbyterian in Charlotte or Wake Forest Baptist
Medical Center in Winston-Salem, North Carolina. To the extent that a patient needs tertiary or
quaternary care that cannot be found at either LNR or NH then neither hospital can realistically be
said to be a “competitor” for that patient. See Tr. 690 (testimony of Iredell Health President that,
“if someone has a challenging need [that will] require a tertiary care center then we’re not their
competition. … [s]o to say that’s a competitor of ours when we don’t have the same level of service
isn’t fair”). Therefore, the Court concludes that the relevant product market is the cluster of
inpatient general acute care services provided by both Novant and LNR that are covered by
commercial health plans.

Health insurance plans sold on the government “affordable care” exchange to individuals are
included by the FTC as “commercial” insurance in defining the relevant market.
24

41

b)

Geographic Market

The relevant geographic market is the “area in which a potential buyer may rationally look
for the goods or services he seeks.” Thomas Jefferson Univ., 505 F. Supp. 3d at 540-41. The market
must contain the sellers or producers who are able to “deprive each other of significant levels of
business” and is where the merger's effect on competition will be “direct and immediate.” Advocate
Health Care, 841 F.3d at 468 (internal quotations and citations omitted).
The hypothetical monopolist test (“HMT”) is a “common method” used to define the
relevant geographic market for evaluating a plaintiff's likelihood of ultimate success with respect
to claims that a merger will substantially lessen competition. Penn State Hershey, 838 F.3d at 338.
The HMT “asks what would happen if a single firm became the only seller in a candidate
geographic region.” Advocate Health Care, 841 F.3d at 468 (citation omitted). If that single firm
– the hypothetical monopolist – could profitably raise prices above competitive levels, the
candidate geographic region is a relevant geographic market. See id. “[I]f customers would defeat
the attempted price increase by buying from outside the region, it is not a relevant market” and the
process “should be repeated with ever-larger candidates until it identifies a relevant geographic
market.” Id. (citations omitted). Using the HMT, a proposed market is properly defined if a
hypothetical monopolist could impose a small but significant non-transitory increase in price
(“SSNIP”), typically an increase of 5% or more, within its proposed boundaries. See Penn State
Hershey, 838 F.3d at 338; see also U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger
Guidelines §§ 4.1.2 (rev. Dec. 18, 2023) [hereinafter “Merger Guidelines”]. A proposed
geographic market is too narrow if “consumers would respond to a SSNIP by purchasing the
product from outside the market, thereby making the SSNIP unprofitable.” Penn State Hershey,
838 F.3d at 338.

42

The FTC proposed three relevant markets. Multiple geographic markets may coexist, and
the existence of a broader market “does not render the one identified by the government unusable.”
United States v. Bertelsmann SE & Co., 646 F. Supp. 3d 1, 28 (D.D.C. 2022). Moreover, there is
some flexibility in defining “relevant markets.” Markets “cannot be measured by metes and
bounds,” and a “relevant market need not include all potential customers or participants.” United
States v. Anthem, Inc., 236 F. Supp. 3d 171, 193 (D.D.C. 2017). The first and smallest FTC
candidate market is the “Eastern Lake Norman Area,” which it defines as “the northern suburbs of
Charlotte along Interstate 77 and includes Iredell County and northern Mecklenburg County.”
PX0001 ¶ 90. To the south, the Eastern Lake Norman Area is bordered by Interstate 485, and to
the west, Lake Norman forms a natural boundary that impedes east-west travel, causing most
people to seek healthcare services on their side of the lake. PX0001 ¶ 33; see also Tr. 559-60
(Atrium), PX2227 at 5. The FTC’s Eastern Lake Norman Area currently contains three inpatient
GAC hospitals: LNR, NH, and Iredell Memorial, with a fourth, ALN, arriving in mid-2025.
The FTC’s expert also proposed two broader geographic markets, 1) an “Eastern Lake
Norman Area + Center City” market that includes Novant Presbyterian, Novant Charlotte
Orthopedic, Atrium CMC and Atrium Mercy, which draw patients from all over the area, and 2) a
“Center-City/Northern Charlotte Region,” which captures the hospitals that over 90% of Eastern
Lake Norman Area residents visit and includes all meaningful substitutes for LNR or NH. PX0001
¶¶ 135-36; PX0005 at tbl. 4. The Center-City/Northern Charlotte Region adds Atrium’s Cabarrus,
and University City hospitals to the Eastern Lake Norman Area + Center City Market. PX0001 ¶¶
128-29, 135-36.
The FTC argues that the Eastern Lake Norman Area is an appropriate geographic market
because it supposedly “reflects the commercial realities of the industry and illuminates the

43

competitive impact of the Transaction.” Tr. 1039-40, 1049-50, 1052-53 (Tenn). The Court agrees,
but only in part. The FTC is correct that this area is an important market to both health systems
and insurers because of its growing population and relative affluence. As discussed above, CHS,
Novant, Atrium and others all view the Lake Norman / “North Market” area as a distinct area of
competition (i.e., it is not a market “made for litigation” as argued by Defendants). See, e.g., Tr.
175, 195-96 (Littlejohn); Tr. 481-82 (Riley); PX1151 at 9; PX1295 at 5, 11; Tr. 483-84 (Riley);
Tr. 799-800, 802, 808-09, 811-12 (Ehtisham); Tr. 548-49, 551 (Atrium); PX3142 at 16, 19; Tr.
977 (CaroMont); PX7055 at 93-4, 112-13.
Insurers testified that they recognize the importance of the Eastern Lake Norman Area
when forming networks and consider network marketability at a local level that does not
necessarily correspond to the entire area in which plans are sold or from which providers draw
patients. Tr. 104, 156-57 (Blue Cross); Tr. 345, 366 (United); PX7013 at 31-32 (Cigna); Tr. 457
(Ambetter); Tr. 1655-56 (Aetna). Additionally, several insurers testified that they must provide
access to Lake Norman Area hospitals if they want to offer a marketable plan to residents
throughout that area. Tr. 104, 107 (Blue Cross); Tr. 454, 457-58, 464 (Ambetter), Tr. 1656 (Aetna);
Tr. 350-51 (United). Narrow insurance networks further substantiate this commercial reality; no
narrow network serving the Eastern Lake Norman Area excludes LNR, Novant Huntersville, and
Iredell Memorial. Tr. 350-51 (United); Tr. 105-07 (Blue Cross); Tr. 457-58, 464 (Ambetter);
PX7044 at 66-67 (Aetna).
However, the FTC’s most narrow definition of the Eastern Lake Norman Market (which,
at least currently, includes no presence at all for Atrium because it has no GAC hospital in the
area), ignores the commercial reality that Atrium already claims a significant share of the market
for patients living there. Atrium CMC, Atrium University City and Atrium Cabarrus all draw a

44

material number of patients from the “Lake Norman Area,” but are excluded from the FTC’s
proposed Eastern Lake Norman Market. See PX0005 tbl. 7F. This will likely remain true even
after ALN opens because Atrium’s total reach extends well past the minimal 30 beds incorporated
into Dr. Tenn’s analysis. Therefore, the broader Center-City/Northern Charlotte Region market
appears to much better reflect commercial realities.
Dr. Tenn applied the HMT to these markets and concluded that the level of patient
substitution across the area’s hospitals is sufficiently high that a hypothetical monopolist owning
all of them would be able to negotiate a SSNIPT of greater than 5% for at least one of the merging
parties’ hospitals. PX0001 ¶¶ 109, 113; Merger Guidelines § 4.3.A. He calculated that a
hypothetical monopolist of Eastern Lake Norman Area hospitals would negotiate a 25.2% price
increase for LNR and a 6.3% price increase for NH. PX0005 tbl. 12A. Dr. Wu, Defendants’ expert,
disputed Dr. Tenn’s calculations, but still concluded that a hypothetical monopolist would be able
to raise prices at LNR by over 5% (7%).25 The broader geographic markets would logically have
equal or even higher numbers (because a health system owning all the hospitals in a larger area
would have greater market power).
2.

Market Shares and Concentration within the Relevant Market

Once the relevant geographic market is determined, a prima facie case is established if the
plaintiff proves that the merger will probably lead to anticompetitive effects in that market. Penn
State Hershey, 838 F.3d at 346. Market concentration is a useful indicator of the likely competitive,

Defendants’ expert did not identify a different relevant market (and, again, had no duty to do
so). Rather, he argued that a broader market that included all the hospitals in the Greater Charlotte
Area (over eight to eleven counties) would be more appropriate. The Court disagrees. While
Novant and Atrium might contract with insurers statewide and negotiate rates throughout the
Charlotte region, the distance between hospitals in, for example, Union County and Mooresville,
where LNR is located, is simply too far to consider them to be effective substitutes for one another.
25

45

or anticompetitive, effects of a merger. See Merger Guidelines, § 5.3, at 18; see also H.J. Heinz,
246 F.3d at 715–16 (“Increases in concentration above certain levels are thought to raise a
likelihood of interdependent anticompetitive conduct.” (internal quotation marks and alterations
omitted)). Market concentration is typically measured by the Herfindahl–Hirschman Index
(“HHI”). Penn State Hershey, 838 F.3d at 346; Mr. Dee's Inc. v. Inmar, Inc., No. 1:19CV141,
2022 WL 3576962, at *1 (M.D.N.C. Aug. 19, 2022). However, it must be remembered that the
Clayton Act reflects “a conscious avoidance of exclusively mathematical tests.” Brown Shoe, 370
U.S. at 321.
The HHI is calculated by summing the squares of the individual firms' market shares. In
determining whether the HHI demonstrates a high market concentration, the Court considers both
the post-merger HHI number and the increase in the HHI resulting from the merger. Merger
Guidelines § 5.3, at 18–19. According to the long accepted 2010 Merger Guidelines, a post-merger
market with a HHI above 2,500 is classified as “highly concentrated,” and a merger that increases
the HHI by more than 200 points is “presumed to be likely to enhance market power.” Id. § 5.3, at
19. The comparable levels in the new 2023 Merger Guidelines are slightly lower: at 1,800 for total
HHI and 100 for the HHI increase. The 2023 Merger Guidelines also added an indicator for the
merged firm’s market share at 30% along with an HHI increase of 100.
Both the FTC’s and the Defendants’ experts calculated Novant’s and LNR’s combined
market share in the FTC’s Center City / Northern Charlotte Region market to exceed 30% (Tenn:
– 37%; Wu: – 36.8%). PX0005 tbl. 5; PX0003 Ex. 22A. Similarly, both experts found that the
post-acquisition HHI and change in HHI exceeded the 2010 and 2023 Merger Guidelines. Dr. Tenn

46

calculated a 4886 post-acquisition HHI with an increase of 288 points and Dr. Wu’s comparable
numbers were a 5006 HHI with a 230-point increase.26 Id.
However, in fairly evaluating the competitive import of these market shares and HHI
levels, the Court must take into account that the market is already highly concentrated. Both
experts agreed that Novant’s pre-transaction market share alone exceeds 30% and that the premerger HHI is over 4500. Therefore, any purchase at all by Novant would result in a “combined”
market share above 30% and the starting point for the HHI is more than double the 2023 threshold
level of presumably unhealthy market concentration (and almost double the 2010 standard).
Indeed, Dr. Tenn acknowledged that a patient count of as few as two or three patients a day might
trigger an HHI increase above the low end of the 2023 Merger Guidelines. See Tr. 1193-95. So,
while both the 2010 and 2023 the HHI Merger Guideline thresholds are at least slightly exceeded
by the proposed transaction, that appears to be mostly the result of the already heavy concentration
of the relevant market rather than LNR’s market position.27
3.

Rebutting the Prima Facie Case

Using his preferred “patient-based shares” rather than “hospital-based shares” (Dr. Tenn’s
method), Dr. Wu calculated a post-acquisition HHI of 4580 with an HHI increase of 338. PX0003
Ex. 22A. Dr. Wu performed other calculations using “revenue” rather than patient discharge data
as the unit of measure, resulting in a significantly reduced HHI increase of 58 points. However,
the Court does not find Dr. Wu’s alternate calculations persuasive because they unfairly skew the
analysis to favor more expensive providers and procedures and/or relate to all services rather than
only to those services for which LNR and NH compete.
27
In noting the thin margin by which the proposed hospital purchase satisfies the Merger
Guidelines, the Court does not mean to imply that the acquisition of a relatively minor competitor
(which consequently only moves the HHI needle slightly above the threshold) cannot violate the
Clayton Act. To the contrary, allowing one or more market leaders to serially buy their remaining
smaller competitors could lead to a complete duopoly, which even further erodes competition. See
IQVIA, 2024 WL 81232, at *44 (noting the importance of preventing even slight increases in
concentration where the market is already heavily concentrated). Instead, the level of HHI increase
(along with the already existing heavy market concentration) suggests only that the Court must
cautiously apply any presumption of illegality and carefully analyze if the non-mathematical
evidence corroborates the likelihood of future competitive harm.
26

47

Once the FTC has established a prima facie case that the merger may substantially lessen
competition, the burden shifts to the Defendants to rebut the FTC’s case by showing that, even if
the FTC’s market-concentration evidence is credible, it inaccurately predicts the merger's probable
effect on competition. See JELD-WEN, 988 F.3d at 703-04. To meet this burden, “the defendants
may demonstrate unique economic circumstances that undermine the predictive value of the
government's statistics.” Id. The Court finds such “unique circumstances” are present here.
First, there is clear evidence, which the FTC does not appear to dispute, that Davis will
close absent the transaction. CHS’s President and Chief Financial Officer testified that CHS is
currently losing $1 million a month operating Davis and would “move to shut it down
immediately” if the sale to Novant does not go forward. Tr. 1575-77, 1622-23 (Hammons).
Further, Mr. Hammons testified that CHS had looked unsuccessfully for potential buyers. Id.
Consequently, the sale of Davis to Novant will maintain, not eliminate, competition (and services)
that will be lost if the hospital closed.
Likewise, the future competitive landscape for LNR suggests that the hospital will not be
able to sustain its current level of competition. CHS testified that “as we look at the horizon out
over the next three to five years we really believe that the financial performance of LNR is in
decline and, we believe, will continue to decline, particularly in light of the construction of the
Atrium hospital just a couple of exits down.” Tr. 1574 (Hammons). Another new external
competitive threat to LNR is the change in North Carolina’s CON which will increase competition
for outpatient services, a primary source of LNR’s revenue. (See Tr. 278, 992 (Littlejohn) (citing
CON reform as “one of the greatest threats to Lake Norman”)). Though LNR’s competitive
challenges also partially arise from CHS’ earlier decisions to close lines of service and decline to
make additional investments in LNR, the Court finds that those decisions are not a litigation-

48

related strategy or an attempt to artificially create economic woes to justify a profitable sale. LNR’s
competitive problems are real: they relate broadly to CHS’s belief that the hospital lacks a
sufficient physician practice network and other “access points of care” to justify investments
among other better alternatives for scarce capital. And, significantly, these problems long pre-date
CHS’ decision to sell the hospital to Novant. See Tr. 1570-72 (Hammons). Therefore, competition
from LNR will likely be substantially reduced in the future, if it even remains open given CHS’
financial difficulties.
The FTC urges the Court to consider LNR’s current and future competitive problems only
through a rigid application of the rarely successful “weakened competitor” defense, which it
dismisses as “the Hail-Mary pass of presumptively doomed mergers.” ProMedica Health Sys., Inc.
v. FTC, 749 F.3d 559, 572 (6th Cir. 2014); but see FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109,
153–57 (D.D.C. 2004) (case in which the weakened-competitor defense succeeded). Even
assuming that new future external competitive circumstances are properly categorized as a
“weakened competitor” defense (which seems ill-fitting), the Court finds that the FTC’s cited cases
are distinguishable. In JELD-WEN, the Fourth Circuit discussed the application of the “weakened
competitor” defense, holding that it involved showing that the acquired company “would have
been too weak to affect competition and that there were no competitively preferable alternatives
to a merger with the acquiring company.” See JELD-WEN, 988 F.3d at 714–16. More specifically,
the Fourth Circuit cited as elements of the defense that “the acquired firm's weakness[ ] ... cannot
be resolved by any competitive means” and “would cause that firm's market share to reduce to a
level that would undermine the [plaintiff's] prima facie case.” Id. (internal citations omitted).
The facts relied on by the court in JELD-WEN are different than this case. Unlike here, the
selling company “had options besides merging with JELD-WEN that would have preserved

49

competition in the [] market. In particular, it could have sold itself to one of the two or three other
bidders who made serious offers.” Id. CHS had no other bidders for LNR or Davis despite
reasonable efforts to sell the hospitals to others.28 Accordingly, CHS’ financial issues could not
“have been ‘resolved by’ means that would've preserved competition.” Id. Also, evidence in JELDWEN indicated that absent the merger the selling company’s market share would not have dropped
below the level sufficient to sustain a prima facie case. Yet, as discussed above, it appears (based
on the Court’s view of what is likely to occur rather than what could be possible under different
circumstances) that LNR’s competitive position will further erode to the point where it will most
likely close in the foreseeable future, fully eliminating it as a competitor capable of being the
subject of a prima facie case. So, like in cases where the weakened-competitor defense has
succeeded, CHS / LNR does not have “convincing prospects for improvement.” 29 See Arch Coal,
329 F. Supp. 2d at 157; JELD-WEN, 988 F.3d at 715.
The FTC’s other cited cases are similarly distinguishable. See United States v. Greater
Buffalo Press, Inc., 402 U.S. 549, 555–56 (1971) (the alleged “failing company” was still actively
pursuing expansion plans and had shown “a substantial increase in profits” in the year of the sale;
also, numerous prospective purchasers had not been approached); FTC v. Warner Commc’ns Inc.,

28

There is no evidence that additional efforts to sell LNR or Davis would fare any differently. The
fundamental impediment to another bidder becoming interested – the difficulty and expense of
competing against Atrium and Novant, especially with a hospital and network in which few
investments have been made – would remain daunting to any new or previously solicited bidder.
29
As noted by the FTC, “[a]ntitrust cases presume the existence of rational economic behavior”
by “profit-maximizing compan[ies].” In re Zetia (Ezetimibe) Antitrust Litig., 2022 WL 4362166,
at *9 (E.D. Va. Aug. 15, 2022). Although CHS could theoretically make different decisions as to
which of its hospitals to support when its financial position does not permit it to support them all,
CHS’ choice not to support LNR at a level which would allow it to meaningfully compete in the
future as competitive circumstances worsen is, at a minimum, “rational economic behavior.”
Simply put, even though CHS “could” invest more in LNR, the evidence shows that it “won’t.”

50

742 F.2d 1156, 1164-65 (9th Cir. 1984) (declining to resolve the question of how much weight, if
any, to give to the weak financial condition of a company where “failing company” defense not
asserted; “we only hold that a company’s stated intention to leave the market or its financial
weakness does not in itself justify a merger.” (emphasis added)); United States v. UPM-Kymmene
Oyj, 2003 WL 21781902, at *11 (N.D. Ill. July 25, 2003) (noting that one of the defendants
“decided to make its subsidiary into an ineffective competitor,” rather than (as more applicable
here) “the reasons the company is failing or ineffective are found in economic conditions or
management errors made in the good faith attempt to do well"). In other words, the Court agrees
with the FTC that a company cannot manufacture a “failing company” defense, ignore other
available non-objectionable transactions or in other ways seek to game the process to pursue an
anti-competitive merger. Only those bona fide economic difficulties which are so existential as to
establish that the entity being acquired will no longer be a viable competitor in the absence of the
proposed transaction may justify an otherwise unlawful loss of competition. Nevertheless, as
discussed at length above, this is the “rare case” which meets that high threshold.
In summary, in these “unique economic circumstances,” the sale of LNR to Novant is at
least as likely to enhance competition as it is to reduce it. Although so-called general “quality”
improvements or total cost savings are uncertain and/or are unlikely to have much competitive
effect – other than the fact that the Novant brand is stronger in the public’s mind – Novant will
more importantly replace the lost lines of service and otherwise reinvigorate and support the
hospital and its staff. Moreover, while Novant’s acquisition of LNR and Davis is unlikely to have
much effect on Atrium’s system-wide negotiations with insurers,30 operating LNR will put Novant

Novant’s expert testified that he expected that Atrium’s negotiated rates with insurers would go
down because of the transaction. See Tr. 1733-36 (Wu). Beyond the theoretical effect of Novant’s
30

51

in a better competitive position versus Atrium for Lake Norman area patients. So, while the
competition between Novant and LNR will be eliminated, there will still be vigorous competition
for those patients from Atrium and, to a lesser extent, Iredell Health. Thus, the evidence of new
future competitive circumstances “undermines the predictive value of the government's statistics,”
and Defendants will likely be successful in rebutting the FTC’s prima facie case.
The FTC has not presented additional evidence in response to Defendants’ rebuttal case
not already discussed. Therefore, the Court concludes that the commercial realities suggest that
the FTC is unlikely to be successful in establishing there may be a substantial lessening of
competition as a result of CHS’ sale of LNR and Davis hospitals to Novant.
B.

Equities

In addition to assessing the FTC’s likelihood of ultimate success, the Court must weigh the
equities of enjoining the transaction pending the conclusion of the FTC administrative process. In
doing so, the Court does not consider the effect of the injunction on the contracting parties (even
though they may claim, as they do here, that an injunction will result in terminating the
transaction). See Food Town, 539 F.2d at 1344. Instead, “[t]he Court considers whether the
injunction, not the merger, would be in the public interest,” Jefferson, 505 F. Supp. 3d at 538, in
effect asking how will the public be better off and/or worse off if an injunction is entered? Id.
There are numerous equities that need to be considered. First, the FTC asks the Court to
enter the injunction to prevent “immediate competitive harm.” Such harm is often present where

increased competition, Dr. Wu purportedly relied on his analysis of Atrium’s “willingness to pay”
in the three year period after Novant announced the opening of the Novant Mint Hill hospital.
However, the Court finds this analysis unpersuasive because Dr. Wu presented no evidence of any
causal link between any decline in Atrium’s actual rates and the Novant Mint Hill hospital. And,
notably, Novant did not ask any insurer to testify on the likely effect of Novant’s purchase of LNR
and Davis on Atrium’s negotiated rates.
52

the FTC establishes a likelihood of success on the merits and is frequently cited as the grounds for
granting injunction relief to the FTC. See Heinz, 246 F.3d at 726; FTC v. Whole Foods Mkt., Inc.,
548 F.3d 1028, 1035 (D.C. Cir. 2008) (stating that, “the equities will often weigh in favor of the
FTC, since the public interest in effective enforcement of the antitrust laws was Congress’s specific
public equity consideration in enacting [§ 13(b)]”). Second, the FTC argues that a preliminary
injunction is critical to the Commission’s ability to order effective relief, alleging that it would be
“extraordinarily difficult to ‘unscramble the egg’” if the transaction is later deemed unlawful. See
Hershey, 838 F.3d at 352-53 & n.11.
Beyond its conclusion that, ultimately, the FTC is unlikely to be successful, the Court does
not find that “immediate” competitive harm is likely. The principal competitive harms alleged by
the FTC are the increase in prices paid by commercial insurers at LNR and Davis and the loss of
LNR’s competition for Lake Norman area patients. The Court accepts that the reimbursement rates
paid by insurers at LNR and Davis are likely to rise substantially after those hospitals are integrated
into Novant’s insurance contracts, but Novant has committed (in testimony believed and credited
by the Court) that it will not directly or indirectly increase prices at LNR or Davis for three years.
Also, if LNR and Davis continue in operation then patients will likely have the opportunity to go
to the same medical providers at LNR and Davis31 if the transaction is allowed to proceed. Finally,
there was no evidence presented that it would be any harder to sell LNR or Davis than it would be
currently if a divestiture were later ordered. In fact, it seems reasonable that a sale might be easier
if Novant improves the hospital as it has promised. Therefore, avoiding divesture problems in the

31

Neither Novant nor the FTC explicitly presented evidence concerning whether the doctors and
nurses currently working at LNR or Davis would be retained by Novant after the sale. However,
Novant made repeated efforts to praise them and promised to support them going forward.
Accordingly, the Court has inferred that the medical providers now practicing at LNR and Davis
will generally continue to do so.
53

future does not appear to pose a significant concern. See Fed. Trade Comm'n v. Microsoft Corp.,
681 F. Supp. 3d 1069, 1101 (N.D. Cal. 2023).
The FTC also points to the loss of millions of dollars in tax revenue to state and local
governments that will result from Novant, a “non-profit” entity, purchasing LNR and Davis from
CHS, a “for profit” company, as a public equity that favors an injunction. In response, Novant does
not dispute that LNR and Davis will pay approximately $1.1 million less in real and personal
property taxes, but explains that the hospitals will continue to pay state and county sales and use
taxes at existing rates (because Novant is already using all its eligible tax exemptions for those
taxes). See Doc. No. 214 at 36, n.8. Payroll and unemployment taxes will also be paid at the same
rates. The Court agrees with the FTC that the loss of this tax revenue weighs in favor of an
injunction.
With respect to public equities that disfavor an injunction, Davis will remain open rather
than be shut down if the sale is allowed to proceed. Keeping Davis open is clearly in the public
interest because its closure would eliminate critically needed inpatient psychiatric services. See
Brianna Lombardi & Paul Lanier, Responding to North Carolina’s Behavioral Health Workforce
Crisis,

UNC:

CAROLINA

ACROSS

100

(Oct.

3,

2023),

https://carolinaacross100.unc.edu/responding-to-north-carolinas-behavioral-health-workforce
crisis (“Almost 4 million people [in North Carolina] live in a mental health professional shortage
area,” including parts of Iredell County and Mecklenburg County). Also, as described at length
above, Novant has committed to restoring medical services, adding staff, raising salaries, and
making investments in equipment and infrastructure at LNR that will benefit patients and medical
providers.

54

In sum, the Court finds that the equities that support denial of an injunction, particularly
avoiding the immediate closure of Davis and the addition of medical services at LNR, outweigh
the loss of tax revenue or other equities that weigh in favor of an injunction. Overall, the public
interest is best served by Novant being permitted to own and operate LNR and Davis, pending the
conclusion of the FTC administrative process.

V.

ORDER

NOW THEREFORE IT IS ORDERED THAT:
Plaintiff’s Complaint for a Preliminary Injunction, (Doc. No. 1), is DENIED.

SO ORDERED ADJUDGED AND DECREED.

Signed: June 5, 2024

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