As for the bases and methodologies used for the FTC complaint’s market analysis, Judge Nelson said those requests should be “reserved for the expert discovery period,” as they necessarily require applications of antitrust law to facts.
In another request, the companies seek “all facts, documents, and data” pertaining to the FTC’s definition of market competitors, its economic and legal analysis, and claims that the merger would be anti-competitive for workers. Judge Nelson called those interrogatories “excessively broad.”
In the Herfindahl-Hirschman Index, markets that score 1500 or lower are typically considered competitive while markets that score above 2500 are generally thought to be highly concentrated. According to the FTC’s February complaint, the merger — between the country’s two largest traditional supermarket chains — would increase the HHI in over 100 local markets by more than 100 points. In each of the markets, the commission claims, the new supermarket chain would have a combined market share of more than 30%, or a post-merger HHI of more than 1800.
