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.

NOVANT HEALTH, INC.

and

COMMUNITY HEALTH SYSTEMS, INC.,

Defendants.

PLAINTIFF’S RULE 62(d) MOTION FOR INJUNCTION PENDING AN EXPEDITED

APPEAL OF THIS COURT’S ORDER

Plaintiff Federal Trade Commission (“FTC”) respectfully moves for an order pursuant to

Federal Rule of Civil Procedure 62(d) enjoining the proposed transaction between Defendants

Novant Health, Inc. (“Novant”) and Community Health Systems, Inc. (“CHS”) pending an

expedited appeal of the Court’s Order and Opinion. Alternatively, the FTC requests that the

Court temporarily enjoin the transaction until the Court of Appeals for the Fourth Circuit may

rule on an emergency application for an injunction pending appeal that the FTC would file no

later than Wednesday, June 12, 2024. Because the FTC must seek relief from the Fourth Circuit

should this Court deny this motion, the FTC respectfully requests a ruling on this motion by

12:00 p.m. on Tuesday, June 11, 2024.

Courts have recognized that limited stays pending appellate review—even in

circumstances where the district court has held against the FTC—are necessary for “the fair,

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effective administration of justice.” FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1076 (D.C. Cir.

1981); see also Order Granting Plaintiffs’ Mot. Injunction Pending Appeal (Ex. A), FTC v.

Advocate Health Care Network, No. 15-cv-11473 (N.D. Ill. June 17, 2016), ECF No. 482

(granting motion for injunction pending appeal from district court’s decision denying plaintiffs’

motion for a preliminary injunction). Immediate, temporary relief is necessary here because

Defendants may consummate Novant’s proposed acquisition of Lake Norman Regional Medical

Center (“LNR”), Davis Regional Medical Center (“Davis”), and related assets from CHS (the

“Proposed Transaction”) after 11:59 p.m. on June 12, 2024. Temporary Restraining Order, ECF

No. 16.

As explained in more detail below, this Court’s denial of the motion for a preliminary

injunction raises serious, substantial issues for the Fourth Circuit to resolve. Following a seven-

day evidentiary hearing, the Court found that the FTC satisfied its prima facie case by showing

that the Proposed Transaction is presumptively unlawful in one or more relevant markets. Order

at 45-47. 1 The Court also rejected Defendants’ primary defense that “LNR is a bad hospital with

low quality and low occupancy,” noting that “this doomsday characterization is mostly

inaccurate and certainly exaggerated.” Order at 3. The Court nonetheless denied relief on the

basis of LNR’s potential future decline. It thus effectively deemed LNR a “weakened

competitor,” but did not properly apply the Fourth Circuit’s test for that defense—which the

court of appeals has recognized is rarely successful. See Steves & Sons, Inc. v. JELD-WEN, Inc.,

988 F.3d 690, 714-15 (4th Cir. 2021); see also, e.g., ProMedica Health Sys., Inc. v. FTC, 749

F.3d 559, 572 (6th Cir. 2014) (characterizing the weakened competitor defense as “the Hail-

1
“Order” refers to the Court’s order denying the FTC’s request for a preliminary injunction
dated June 5, 2024, ECF No. 227.

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Mary pass of presumptively doomed mergers”); FTC v. Warner Commc’ns Inc., 742 F.2d 1156,

1164-65 (9th Cir. 1984) (decisions upholding mergers under the weakened competitor defense

have “been criticized by courts and commentators”); Kaiser Aluminum & Chem. Corp. v. FTC,

652 F.2d 1324, 1339 (7th Cir. 1981) (noting that the “weakened company” defense is itself

“probably the weakest ground of all for justifying a merger”).

Apart from the merits, an injunction pending appeal is also necessary to preserve the

FTC’s ability to obtain effective relief if it were to ultimately prevail. Federal courts have

repeatedly explained why divestiture—including in hospital merger cases—is difficult and often

impossible. By contrast, an injunction pending appeal will not substantially injure Defendants

and is in the public interest. The Court found in its Order that LNR will not be able to sustain its

current level of competition “over the next three to five years,” particularly after Atrium Lake

Norman (“ALN”) opens in mid-2025. Order at 48. An appeal will be resolved before that occurs.

And to further minimize any harm to Defendants, the FTC will seek an expedited appeal, which

in past cases has resulted in decisions as fast as four to six months after a district court’s order.

See, e.g., FTC v. Hackensack Meridian Health, Inc., 30 F.4th 160 (3d Cir. 2022) (decided

approximately six months after the district court’s order); FTC v. Advocate Health Care, 841

F.3d 460 (7th Cir. 2016) (four months).

For these reasons, the Court should temporarily enjoin the consummation of the Proposed

Transaction while the Fourth Circuit expeditiously resolves Plaintiff’s appeal. At the very least,

the Court should enjoin the transaction and preserve the status quo pending the Fourth Circuit’s

ruling on the FTC’s forthcoming motion in that court to enjoin the transaction pending appeal.

The FTC has conferred in good faith with Defendants regarding this motion in

compliance with Local Rule 7.1(b), and Defendants oppose the relief requested herein.

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 ARGUMENT

Federal Rule of Civil Procedure 62(d) provides in relevant part: “While an appeal is

pending from an interlocutory order or final judgement that . . . refuses . . . an injunction, the

court may . . . grant an injunction on terms for bond or other terms that secure the opposing

party’s rights.” Fed. R. Civ. P. 62(d). Motions for injunctive relief under Rule 62(d) are

evaluated using the “traditional” four-factor test applicable to motions to stay: “(1) whether the

stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether

the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and (4) where the public

interest lies.” Nken v. Holder, 556 U.S. 418, 425-26 (2009) (citation omitted); see Long v.

Robinson, 432 F.2d 977, 979 (4th Cir. 1970). The first two factors of the standard are the “most

critical.” Nken, 556 U.S. at 434.

Here, all four factors support granting an injunction to maintain the status quo pending

appeal.

I. THE FTC AND THE PUBLIC INTEREST WILL BE IRREPARABLY

HARMED IF THE MERGER IS ALLOWED TO PROCEED

Consummation of the Proposed Transaction while the appeal is pending will irreparably

harm the public interest and the FTC because (1) Defendants will begin integrating their

businesses immediately and it will be exceptionally difficult to order a divestiture after that

occurs; (2) allowing the transaction to close now will immediately impact competition because

the combined firm will begin negotiating rates collectively; and (3) any purported decline of

LNR will be at least several years away.

Integration will be difficult to reverse. If the Proposed Transaction is consummated, the

harm to the public begins immediately. Upon acquiring LNR, Novant plans to take immediate

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steps that will be costly, difficult, and disruptive to undo in the event the Commission finds the

Proposed Transaction unlawful and orders a divestiture. See Tr. 1327 (Armato). 2 Specifically,

Novant intends to integrate LNR into its health system, transition LNR onto its electronic

medical records system, and make significant staffing changes. See, e.g., Tr. 845-47 (Ehtisham),

1500-02 (Oliver). Moreover, if an injunction pending appeal is not granted, Novant and LNR can

begin to share confidential business information, like pricing and operational information, and

long-term strategic planning information, all of which could facilitate price-fixing or other

anticompetitive behavior even if the merger is later unwound.

It would be “extraordinarily difficult to ‘unscramble the egg’” if the Proposed

Transaction is deemed unlawful after Defendants have integrated their operations, shared

competitively sensitive confidential information, and laid off staff. FTC v. Penn State Hershey

Med. Ctr., 838 F.3d 327, 352-53 & n.11 (3d Cir. 2016); see also FTC v. Whole Foods Market,

Inc., 548 F.3d 1028, 1033-34 (D.C. Cir. 2008). As the Fourth Circuit has recognized, “Congress

intended that if divestiture is practicable and necessary to avoid a § 7 violation, it must be

undertaken before the merger is consummated.” FTC v. Food Town Stores, Inc., 539 F.2d 1339,

1345 (4th Cir. 1976); see also FTC v. H.J. Heinz Co., 246 F.3d 708, 726 (D.C. Cir. 2001)

(divesture is often “inadequate”).

The district court’s recent experience in JELD-WEN is instructive: there, the court

ordered a divestiture in October 2018, and yet nearly six years later no divestiture has occurred,

and the defendant is arguing the divestiture order should be set aside. See Mot. Modify

Amended Final Judgment (Ex. B), Steves & Sons, Inc. v. JELD-WEN, Inc., No. 16-cv-545 (E.D.

Va. May 1, 2024), ECF No. 2456 see also JELD-WEN, 988 F.3d at 707 (referencing 2018

2
“Tr.” refers to the transcript of the evidentiary hearing in this matter commencing May 1, 2024.

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divestiture order). And in one recent hospital case, it took over two years between the circuit

court affirming a divestiture order (on February 10, 2015) and the divestiture transaction finally

closing (on May 1, 2017). See St. Alphonsus Med. Ctr-Nampa Inc. v. St. Luke’s Health Sys.,

LTD., 778 F.3d 775 (9th Cir. 2015); Fourth Final Verified Report (Ex. C) at 2, Saint Alphonsus

Med. Ctr., Nampa, Inc. v. St. Luke’s Health Sys., LTD., No. 12-cv-560-BLW (D. Idaho Dec. 15,

2020), ECF No. 721 at 2 (“The transaction divesting Saltzer from St. Luke’s closed on May 1,

2017”). Here too, post-consummation divestiture would be extremely challenging. Once the

companies comingle staff, share competitively sensitive information, and integrate clinical

programs, it would be difficult and disruptive to subsequently rend those entities apart. For these

reasons, the Court was mistaken that “avoiding divestiture problems in the future does not appear

to pose a significant concern” because Novant could “sell LNR or Davis” at some later date.

Order at 53-54. While the facilities can be sold, no court order can erase the memory of

personnel who now would know a competitor’s pricing and strategic plans. The harm to

competition from any merger will likely be irreversible.

Integration will immediately impact competition. In addition to the challenges of a

post-consummated divestiture, allowing the Proposed Transaction to close will also immediately

affect competition. Absent a stay, Novant could begin renegotiating rates and terms at LNR as

soon as 90 days after the Proposed Transaction closes. See, e.g., Order at 53 (accepting “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”); Order at 24 & n.14 (recognizing that

after past acquisitions, Novant has negotiated for lump-sum payments or increased rates

throughout its entire system, rather than substantial rate increases solely at the newly acquired

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hospital); see also, e.g., Tr. 114 (BCBS). All of this will result in ongoing harm to consumers

that will be difficult to remedy after the full litigation process runs its course.

LNR’s purported decline will be years away. To the extent there are any benefits

because of the merger, they will still be available after an expedited appellate process. See

Hershey, 838 F.3d at 353 (courts must often look past merging parties’ assertions to see that

“[a]ll of the Hospitals’ alleged benefits will still be available” if the merger is temporarily

enjoined and later held to be lawful). Whatever harm the Court projects for LNR’s competitive

position is unlikely to occur before this appellate process concludes. The Court found that today,

LNR is profitable, Order at 1, 4, its inpatient occupancy has been stable since 2017, Order at 29,

it provides “appropriate medical care that is broadly consistent with the care provided at

individual Novant hospitals per numerous quality care metrics,” Order at 28, and its Leapfrog

score “suggest[s] that LNR’s quality is good,” Order at 28. Any change in LNR’s competitive

position is at least several years away. As the Court explained, LNR will face alleged difficulties

“over the next three to five years . . . , particularly in light of the construction of the Atrium

hospital” that is set to open in mid-2025. Id. at 48 (quoting Tr. 1574 (Hammons)). An expedited

appeal will be completed long before that purported decline would come to pass.

Other facts cited in the Court’s Order likewise support a temporary injunction pending

appeal. Among other things, LNR has maintained its stable profitability, occupancy rate, and

quality, even despite the Court’s finding that CHS decided “several years ago” to “focus its

limited investment dollars on other hospitals.” Order at 31. And while the Court found that LNR

has lost certain medical services, Order at 30-31, it also found that even still LNR and Novant

Huntersville’s “overlapping services account for approximately 95% of discharges,” Order at 41,

suggesting that today LNR continues to offer a broad suite of critical services to its local

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community. As for ALN, the FTC’s market share analysis assumed that the hospital was already

open and operating at full capacity, and thus accounted for a change in LNR’s competitive

position resulting from ALN’s opening. See FTC’s Proposed Findings of Fact and Conclusions

of Law, ECF No. 212 ¶¶ 47-48; see also id. ¶ 110 (noting that “LifePoint modeled that LNR will

continue to be profitable after Atrium Lake Norman’s entry”). Accordingly, with Plaintiff

seeking an expedited appeal in the Fourth Circuit, any appellate decision will likely be rendered

before the end of the year and well before any harm predicted by the Court. See Order at 48

(CHS executive testifying about looking at “the horizon out over the next three to five years”).

As for Davis, there is no evidence in the record suggesting that Davis would close during

an appeal. CHS has continued to operate Davis during the pendency of this preliminary

injunction motion, and there is no reason to believe that they would not continue to operate

Davis until the Fourth Circuit is able to render its decision. See, e.g., Order at 48 (CHS testifying

that Davis will close “if the sale to Novant does not go forward”). Regardless, because it does

not offer “‘overlapping’ medical services where LNR competes with Novant,” Order at 41, the

FTC respectfully submits that the hospital is outside the relevant market and so its competitive

condition is not relevant to the Court’s inquiry under Section 7 of the Clayton Act. See United

States v. Phila. Nat’l Bank, 374 U.S. 321, 370 (1963) (“If anticompetitive effects in one market

could be justified by procompetitive consequences in another, the logical upshot would be that

every firm in an industry could, without violating s 7, embark on a series of mergers that would

make it in the end as large as the industry leader.”). To be clear, however, the FTC does not seek

to enjoin Novant’s acquisition of Davis with this motion. Novant may acquire Davis at any time

the merging parties deem suitable.

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 II. THE FTC IS LIKELY TO SUCCEED ON THE MERITS OF THE APPEAL

Granting an injunction pending appeal is also warranted because the FTC is likely to

succeed on appeal. The FTC respectfully identifies the following examples of errors in the

Court’s Order that at a minimum raise substantial and serious questions requiring further

appellate review.

a. Defendants did not establish a weakened competitor defense.

As the Court recognized, the FTC established a prima facie case that the merger will

likely weaken competition in the relevant geographic and product markets. Order at 45-47. That

meant “the burden shift[ed] 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.” Order at 48. The FTC respectfully submits that the Court erred

by alleviating Defendants of this burden and, as discussed more fully in Section II.b. below, by

conflating the weakened competitor defense with the failing firm defense.

The Court misapplied the weakened competitor defense in ruling that Defendants

rebutted the FTC’s prima facie case that the acquisition may substantially lessen competition. As

the Court noted in its Order, a defendant may attempt to rebut the FTC’s prima facie case by

showing that the FTC’s market-concentration evidence inaccurately predicts a transaction’s

probable effect on competition. Order at 48 (citing JELD-WEN, 988 F.3d at 703-04). When a

defendant argues that its poor competitive performance justifies an otherwise anticompetitive

transaction, the defense must be evaluated against the well-established requirements of the

weakened competitor defense. E.g., Steves & Sons, Inc. v. JELD-WEN, Inc., 290 F. Supp. 3d

507, 515-16 & n.5 (E.D. Va. 2018) (collecting cases).

The Fourth Circuit in JELD-WEN held that the weakened competitor defense requires a

defendant to establish that “‘the acquired firm’s weakness [] . . . cannot be resolved by any

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competitive means’ and ‘would cause that firm’s market share to reduce to a level that would

undermine the [plaintiff’s] prima facie case.’” 988 F.3d at 714 (quoting FTC v. University

Health, Inc., 938 F.2d 1206, 1221 (11th Cir. 1991)). Further, this decline in market share must be

“imminent” and reflect a “steep plummet.” Id. at 715 (quoting FTC v. ProMedica Health Sys.,

Inc., No. 3:11 CV 47, 2011 WL 1219281, at *58 (N.D. Ohio Mar. 29, 2011)); United States v.

Ivaco, Inc., 704 F. Supp. 1409, 1424-25 (W.D. Mich. 1989). JELD-WEN demonstrates how this

analysis should proceed. There, the court discussed the merger’s Herfindahl-Hirschman Index

(HHI) increase in the relevant market, then explained that the defendant “had to show that [the

acquirer’s] market share would have dropped” to such a level “absent the merger, such that the

Index would have remained” within a presumptively lawful distance “of its current score.”

JELD-WEN, 988 F.3d at 715 & n.11. The JELD-WEN defendant’s argument failed because its

“evidence [fell] far short of proving that.” Id.

Here, the FTC respectfully submits that the Court did not conduct an analysis of how

LNR’s market share may decline to a level that would undermine the FTC’s prima facie case, or

on what timeline. Order at 46-51. Nor did Defendants establish that LNR’s market share would

imminently plummet to a level that undermines the FTC’s prima facie case. In fact, the Court

rejected Defendants’ arguments that LNR faces a declining or particularly low occupancy level.

Order at 29. Similarly, the Court found that LNR is currently profitable. Order at 4. Under these

circumstances, where LNR is not in any present financial distress, the FTC believes that the

Court’s Order raises serious and substantial questions of whether the weakened competitor

defense was properly applied. See ProMedica, 749 F.3d at 572 (rejecting weakened competitor

defense where hospital had sufficient cash reserves to satisfy its obligations and meet its capital

needs).

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 The Court cited two future events—the opening of ALN and a change in North

Carolina’s Certificate of Need law—as having the potential to make LNR’s future “uncertain.”

Order at 32-33. But even if the opening of ALN and a change in the law may create headwinds

for LNR (a currently profitable, stable hospital) that would be insufficient to justify a

presumptively illegal merger. See JELD-WEN, 988 F.3d at 714-15. The evidence did not show—

and the Court did not find—that LNR’s market share absent the merger would have dropped so

precipitously that the HHI level post-merger would have been presumptively lawful. See, e.g.,

Ivaco, Inc., 704 F. Supp. at 1424-25 (holding that “evidence of weakened financial condition and

a shrinking market [was] insufficient to demonstrate that the firms’ past performance [was] an

unreliable indicator of their future ability to compete”); United States v. United Tote, Inc., 768 F.

Supp. 1064, 1083-84 (D. Del. 1991) (applying and rejecting weakened competitor defense

premised on argument that firm would be unable to keep up with industry changes).

Precedent supports keeping the exceptions in which a competitor’s difficulty may excuse

an illegal merger narrow. As explained by the Seventh Circuit in Kaiser, a firm’s struggles are

“probably the weakest ground of all for justifying a merger.” 652 F.2d at 1339. This is because

“[h]istory records and common sense indicates that the creation of monopoly and the loss of

competition involve the acquisition of the small and the weak by the big and the strong.” Id. at

1341. “[T]he financial weakness of the acquired firm, while it may be a relevant factor in some

cases, certainly cannot be the primary justification of a merger in resistance to a s 7 proceeding.”

Id.; accord FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109, 154 (D.D.C. 2004) (quoting Kaiser,

652 F.3d at 1341). Defendants have not established—and the Court did not find—that LNR’s

weakness would cause its market share to drop below a level that undermines the FTC’s prima

facie case, as required to succeed under the weakened competitor defense. The Court therefore

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should have rejected Defendants’ attempt to rebut the presumption of illegality. See JELD-WEN,

988 F.3d at 714-15.

b. Defendants did not establish a failing firm defense.

The Court’s suggestion that the Proposed Transaction should be allowed to proceed

because these “future external competitive circumstances” may someday cause LNR to close

altogether implicates the failing firm defense, which applies to failing business units. See FTC v.

Great Lakes Chem. Corp., 528 F. Supp. 84, 96 (N.D. Ill. 1981). As an initial matter, Defendants

failed to raise the failing firm defense in either their Answers or in their opposition to the

preliminary injunction, and thus have waived that defense. See Answer, ECF No. 45 (Novant) at

22 (asserting flailing firm/weakened competitor, but not failing firm, defense); Answer, ECF No.

46 (CHS) at 18 (same); Defendants’ Opposition, ECF No. 91 (no reference to failing firm

defense); Defendants’ Proposed Findings of Fact and Conclusions of Law, ECF No. 223 (same);

Fed. R. Civ. P. 8(c)(1) (requiring parties to affirmatively state affirmative defenses); see also

Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (“As a general rule, the parties’ litigation

conduct determines what issues are properly before a court, and a defense may be forfeited if the

party asserting it waits too long to raise the point.”) (cleaned up).

Further, to succeed on a failing firm defense, Defendants would be required to establish,

among other things, a “grave probability of business failure.” FTC v. Univ. Health, Inc., 938

F.2d 1206, 1220 n.8 (11th Cir. 1991) (internal quotation marks omitted) (reversing the district

court for, among other reasons, improperly crediting a weakened competitor defense). This grave

probability of failure must be “imminent.” Dr. Pepper/Seven-Up Cos., Inc. v. FTC, 991 F.2d

859, 864-65 (D.C. Cir. 1993). Though Defendants sought to paint a bleak picture of LNR’s

prospects, the Court properly found that Defendants’ “doomsday characterization [of LNR] is

mostly inaccurate and certainly exaggerated.” Order at 3; see also Order at 29 (“[T]he evidence
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does not support [Defendants’] conclusion. Rather, LNR’s inpatient occupancy has been stable

since 2017 at approximately 33%.”). Far from finding that LNR is on the brink of failure, the

Court noted that while “LNR’s future is decidedly uncertain,” Order at 32-33, it is currently

profitable. Order at 4. See Food Town, 539 F.2d at 1345 (failing firm defense unavailing where

company was “solvent and profit-making”). Even when noting “it appears . . . that LNR’s

competitive position will further erode” to the point where LNR might close, the Court does not

pinpoint any timeframe in which this might occur other than to describe its potential occurrence

as no sooner or more concrete than “in the foreseeable future.” Order at 50. However phrased,

Defendants did not establish, and the Court did not find, that LNR is in grave danger of

imminent failure. The requirements of the failing firm defense thus are not satisfied, and it is

error to allow the Proposed Transaction to proceed because of the possibility of LNR closing at

some unspecified future time. See JELD-WEN, 290 F. Supp. 3d at 511-12 (collecting cases

including Dr. Pepper/Seven-Up Cos., Inc., 991 F.2d at 865).

The Court also credited testimony by a CHS executive that CHS would close Davis

absent the Proposed Transaction as a factor supporting Defendants’ rebuttal of the FTC’s prima

facie case. Order at 48. However, neither the Eastern Lake Norman Area nor the Center-

City/Northern Charlotte Region Market, which the Court used as the basis for much of its

analysis, includes Davis. Order at 43. Effects outside of the relevant market do not excuse an

illegal transaction. See, e.g., United States v. Phila. Nat’l Bank, 374 U.S. 321, 370-71 (1963);

Miss. River Corp. v. FTC, 454 F.2d 1083, 1089 (8th Cir. 1972). A statement that CHS would

close Davis therefore does demonstrate that the FTC’s market-concentration evidence

inaccurately predicts the Proposed Transaction’s effect on competition in a relevant market.

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 c. The Court credited Defendants’ efficiencies arguments without applying the
appropriate standard.

Finally, the Court concludes that Defendants likely will succeed in rebutting the FTC’s

prima facie case because Novant’s acquisition of LNR will allow Novant to replace lost lines of

service, better support the hospital, and better compete with Atrium. Order at 51-52. The

argument that benefits of this ilk will offset a transaction’s anticompetitive effects is the essence

of an efficiencies claim. E.g., FTC v. Hackensack Meridian Health, Inc., 30 F.4th 160, 176-77

(3d Cir. 2022) (allegations of procompetitive benefits from a hospital transaction, including

hospital improvements, are an efficiencies defense); FTC v. Sanford Health, 926 F.3d 959, 965-

66 (8th Cir. 2019) (similar). To establish an efficiencies defense, Defendants must show that any

efficiencies are (1) verifiable, (2) merger specific, (3) sufficient to “offset any anticompetitive

effects of the merger,” and (4) not due to “anticompetitive reductions in output or service.”

Hershey, 838 F.3d at 348-49. For the reasons set forth in the FTC’s Proposed Findings of Fact

(¶¶ 78-101) and Conclusions of Law (¶¶ 27-32) (ECF 212), Defendants did not carry their

burden to show that their claimed efficiencies satisfied this standard. However, rather than

applying the efficiencies framework, the Court merely accepted Defendants’ claimed efficiencies

as “evidence of new future competitive circumstances [that] ‘undermine[] the predictive value of

the government’s statistics.’” Order at 51-52. The Court thus erred by failing to apply the

appropriate rigorous standard, which would have led to a rejection of Defendants’ efficiencies

claims.

III. AN INJUNCTION PENDING APPEAL WILL NOT SUBSTANTIALLY

INJURE DEFENDANTS

Defendants will not be substantially injured by the brief delay during Plaintiff’s appeal of

this Court’s Order. Novant’s CEO testified that litigation risk, including any delays resulting

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from the appellate process, does not dampen Novant’s interest in this acquisition. Tr. 1329-30

(Armato); see also Tr. 2045, 2048 (Closing). Moreover, there is no evidence that the merging

parties are required to abandon the Proposed Transaction should the Court pause its

consummation past June 12, 2024. Accordingly, any alleged harm to Defendants from a brief

stay while the appellate process plays out is far outweighed by the substantial public interest in

maintaining competition.

CONCLUSION

For the foregoing reasons, the FTC respectfully requests that this Court grant an

injunction pending appeal of this Court’s Opinion denying the FTC’s motion for a preliminary

injunction. Alternatively, the FTC respectfully requests that the Court temporarily enjoin the

Proposed Transaction until a ruling by the Court of Appeals on an emergency application for an

injunction pending appeal that the FTC intends to file promptly. Due to the imminent deadlines

and the difficulty of unwinding the merger once it is completed, the FTC respectfully requests a

ruling on this motion by 12:00 p.m. on Tuesday, June 11, 2024.

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Dated: June 10, 2024 Respectfully submitted,

/s/ Nathan Brenner

Nathan Brenner (Illinois Bar No. 6317564)
Karen H. Hunt
Nicolas Stebinger
Habin Chung
Jennifer Fleury
Cory Gordon
Christopher Harris
Matthew Joseph
Kennan Khatib
Ryan Maddock
Noel Miller
Susan A. Musser
Louis Naiman
Jeanne L. Nichols
Anusha Sunkara
Goldie Veronica Walker
Kurt D. Walters

Federal Trade Commission

600 Pennsylvania Avenue
Washington, DC 20580
Tel.: (202) 326-2314
Email: [email protected]
Attorneys for Plaintiff Federal Trade
Commission

16

Case 5:24-cv-00028-KDB-SCR Document 238 Filed 06/10/24 Page 16 of 18

 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served upon the

following counsel on June 10, 2024, by email and/or CM-ECF:

Heidi Hubbard Michael Perry

Beth Stewart Jamie France
CJ Pruski Scott Hvidt
Liat Rome Thomas Tyson
Kaitlin Beach Logan Billman
Altumash Mufti Connie Lee
Williams & Connolly LLP Connor Leydecker
680 Maine Avenue, SW David Lam
Washington, DC 20024 Gibson, Dunn & Crutcher LLP
Tel.: (202) 434-5451 1050 Connecticut Avenue, NW
[email protected] Washington, DC 20036
[email protected] Tel: (202) 887-3558
[email protected] [email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected]
[email protected]
Brian S. Cromwell [email protected]
Caroline B. Barrineau [email protected]
Parker Poe Adams & Bernstein LLP
Bank of America Tower
620 S. Tryon Street, Suite 800 Adam K. Doerr
Charlotte, NC 28202 Kevin R. Crandall
Tel: (704) 372-9000 Robinson, Bradshaw & Hinson, P.A.
Fax: (704) 334-4706 101 N. Tryon St. #1900
[email protected] Charlotte, North Carolina 28246
[email protected] Tel: (704) 377-8114
[email protected]
Counsel for Defendant Novant Health, Inc. [email protected]

Counsel for Defendant Community Health Systems,

Inc.

17

Case 5:24-cv-00028-KDB-SCR Document 238 Filed 06/10/24 Page 17 of 18

 Respectfully submitted,

/s/ Nathan Brenner

Nathan Brenner (IL Bar No. 6317564)
Federal Trade Commission
600 Pennsylvania Avenue
Washington, DC 20580
Tel.: (202) 326-2314
Email: [email protected]
Attorney for Plaintiff Federal Trade Commission

18

Case 5:24-cv-00028-KDB-SCR Document 238 Filed 06/10/24 Page 18 of 18

 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.

NOVANT HEALTH, INC.

and

COMMUNITY HEALTH SYSTEMS, INC.,

Defendants.

THIS MATTER IS BEFORE THE COURT on Plaintiff’s Rule 62(d) Motion for

Injunction Pending an Expedited Appeal of This Court’s Order (ECF No. __) filed June 10,

2024. Plaintiff Federal Trade Commission (“FTC”) filed a Complaint in this matter on January

25, 2024, seeking to preliminarily enjoin Defendant Novant Health, Inc.’s acquisition of Lake

Norman Regional Medical Center, Davis Regional Medical Center, and related assets from

Defendant Community Health Systems, Inc. (the “Proposed Transaction”) pursuant to Section

13(b) of the FTC Act, 15 U.S.C. § 53(b). The Court denied the FTC’s request for a preliminary

injunction on June 5, 2024, and the FTC has filed a Notice of Appeal from that denial.

Having considered the Motion and the record,

IT IS ORDERED that Plaintiff’s Motion is GRANTED.

1
Case 5:24-cv-00028-KDB-SCR Document 238-1 Filed 06/10/24 Page 1 of 2
 [IT IS FURTHER ORDERED that Defendants shall not consummate their Proposed

Transaction or a substantially similar transaction until after 11:59 p.m. Eastern Time on the fifth

business day after the United States Court of Appeals for the Fourth Circuit issues a final ruling

on the FTC’s appeal from this Court’s Opinion;]

OR

[If, before 11:59 p.m. Eastern Time on June 12, 2024, Plaintiff FTC requests that the

United States Court of Appeals for the Fourth Circuit enjoin the Proposed Transaction pending

resolution of the FTC’s appeal of the Court’s Opinion (ECF 227), Defendants shall not close or

consummate their Proposed Transaction or a substantially similar transaction until after the

United States Court of Appeals for the Fourth Circuit decides the FTC’s request for such

injunction;]

IT IS FURTHER ORDERED that Novant Health, Inc. and Community Health Systems,

Inc. shall prevent any of their officers, directors, domestic or foreign agents, divisions,

subsidiaries, affiliates, partnerships, or joint ventures from closing or consummating, directly or

indirectly, any such transaction;

IT IS FURTHER ORDERED that nothing in this order shall be construed to prevent

Novant Health, Inc. from acquiring solely the Davis Regional Medical Center from Community

Health Systems, Inc.; and

IT IS FURTHER ORDERED that the term “business day” as used in this order refers to

any day that is not a Saturday, Sunday, or federal holiday.

SO ORDERED.

2
Case 5:24-cv-00028-KDB-SCR Document 238-1 Filed 06/10/24 Page 2 of 2
 EXHIBIT INDEX

PLAINTIFF'S RULE 62(d) MOTION FOR INJUNCTION PENDING AN EXPEDITED

APPEAL OF THIS COURT'S ORDER
Order Granting Plaintiffs' Motion for Injunction Pending Appeal, FTC v. Advocate
EXHIBIT A Health Care Network , No. 15-cv-11473 (N.D. Ill. June 17, 2016)
JELD-WEN, Inc.'s Motion to Modify the Amended Final Judgment Under Federal
Rule of Civil Procedure 60(b)(5), Steves & Sons, Inc. v. JELD-WEN, Inc. , No. 3:16-cv-
EXHIBIT B 545-REP (E.D. Va. May 1, 2024)
St. Luke's Health System Fourth and Final Verified Report, St. Alphonsus Med. Ctr.,
Nampa, Inc. v. St. Luke's Health Sys., Ltd. , No. 1:12-cv-00560-BLW (D. Idaho Dec.
EXHIBIT C 15, 2020)

Case 5:24-cv-00028-KDB-SCR Document 238-2 Filed 06/10/24 Page 1 of 1

 EXHIBIT A

Case 5:24-cv-00028-KDB-SCR Document 238-3 Filed 06/10/24 Page 1 of 3

 Case: 1:15-cv-11473 Document #: 482 Filed: 06/17/16 Page 1 of 2 PageID #:48057

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FEDERAL TRADE COMMISSION

And
No. 15-cv-11473
STATE OF ILLINOIS Judge Jorge L. Alonso
Magistrate Judge Jeffrey Cole
Plaintiffs,

v.

ADVOCATE HEALTH CARE NETWORK,

ADVOCATE HEALTH AND HOSPITALS

CORPORATION,

And

NORTHSHORE UNIVERSITY
HEALTHSYSTEM

Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR INJUNCTION PENDING APPEAL

Upon consideration of the motion of Plaintiffs Federal Trade Commission and the State

of Illinois (“Plaintiffs”) for an injunction pursuant to Fed. R. Civ. P. 62(c) enjoining the proposed

transaction between Defendants Advocate Health Care Network and Advocate Health and

Hospitals Corporation (“Advocate”) and NorthShore University HealthSystem (“NorthShore”)

pending appellate review of the Court’s Order [472] and Memorandum Opinion and Order [473]

denying Plaintiffs’ Motion For Preliminary Injunction,

NOW, THEREFORE, IT IS

Case 5:24-cv-00028-KDB-SCR Document 238-3 Filed 06/10/24 Page 2 of 3

 Case: 1:15-cv-11473 Document #: 482 Filed: 06/17/16 Page 2 of 2 PageID #:48058

ORDERED that Plaintiffs’ Motion for Injunction Pending Appeal is hereby granted, and

it is further

ORDERED that Defendants are enjoined from consummating their proposed transaction

pending appellate review of the Court’s Order [473] and Memorandum Opinion and Order [473].

SO ORDERED:

6/17/16 ____________________________
Jorge L. Alonso
United States District Judge

Case 5:24-cv-00028-KDB-SCR Document 238-3 Filed 06/10/24 Page 3 of 3

 EXHIBIT B

Case 5:24-cv-00028-KDB-SCR Document 238-4 Filed 06/10/24 Page 1 of 4

Case 3:16-cv-00545-REP Document 2456 Filed 05/01/24 Page 1 of 3 PageID# 69161

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Richmond Division

)
STEVES AND SONS, INC., )
)
Plaintiff, )
) Civil Action No. 3:16-cv-545-REP
v. )
)
JELD-WEN, INC., )
)
Defendant. )
)

JELD-WEN, INC.’S MOTION TO MODIFY THE AMENDED FINAL JUDGMENT

UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b)(5)

JELD-WEN, Inc. (“JELD-WEN”) respectfully moves to modify the Amended Final

Judgment under Federal Rule of Civil Procedure 60(b)(5) to vacate all orders requiring

JELD-WEN to divest its Towanda, Pennsylvania facility, including but not limited to (i) the

October 5, 2018 Order requiring divestiture, Dkt. 1784, (ii) Section I.B of the Amended Final

Judgment, Dkt. 1852, and (iii) Section 3 of the May 16, 2022 Order, Dkt. 2282. JELD-WEN

further moves for an order that (i) vacates all provisions in the November 4, 2022 Order, Dkt. 2395,

that require JELD-WEN to assign the October 25, 2022 Molded Doorskin Product Agreement,

Dkt. 2392, to an Acquiring Company; and (ii) orders that the October 25, 2022 Molded Doorskin

Product Agreement shall apply solely to JELD-WEN and Steves and Sons, Inc. and shall take

effect immediately. The reasons that this Court should grant the motion are set forth in JELD-

WEN’s concurrently filed memorandum.

Case 5:24-cv-00028-KDB-SCR Document 238-4 Filed 06/10/24 Page 2 of 4

Case 3:16-cv-00545-REP Document 2456 Filed 05/01/24 Page 2 of 3 PageID# 69162

May 1, 2024 Respectfully submitted:

JELD-WEN, Inc.

By counsel

/s/ Brian C. Riopelle

Brian C. Riopelle (VSB #36454)
MCGUIREWOODS LLP
800 East Canal Street
Richmond, VA 23219
Telephone: (804) 775-1084
Fax: (804) 698-2150
[email protected]

Craig S. Primis, P.C. (pro hac vice)

Matthew S. Owen (pro hac vice)
Megan McGlynn (pro hac vice pending)
Soowan Julia Choi (pro hac vice)
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue N.W.
Washington, D.C. 20004
Phone: (202) 389-5000
Fax: (202) 389-5200
[email protected]
[email protected]
[email protected]
[email protected]

James H. Mutchnik (pro hac vice)

KIRKLAND & ELLIS LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Telephone: (312) 862-2000
Fax: (312) 862-2200
[email protected]

Attorneys for Defendant

2
Case 5:24-cv-00028-KDB-SCR Document 238-4 Filed 06/10/24 Page 3 of 4
Case 3:16-cv-00545-REP Document 2456 Filed 05/01/24 Page 3 of 3 PageID# 69163

CERTIFICATE OF SERVICE

I certify that on the 1st day of May 2024, I electronically filed a copy of the foregoing

with the Clerk of Court using the CM/ECF system, which will then send a notification of such

filing (NEF) to the registered participants as identified on the NEF to receive electronic service.

/s/ Brian C. Riopelle

Brian C. Riopelle (VSB #36454)

Case 5:24-cv-00028-KDB-SCR Document 238-4 Filed 06/10/24 Page 4 of 4

 EXHIBIT C

Case 5:24-cv-00028-KDB-SCR Document 238-5 Filed 06/10/24 Page 1 of 5

 Case 1:12-cv-00560-BLW Document 721 Filed 12/15/20 Page 1 of 4

Case 5:24-cv-00028-KDB-SCR Document 238-5 Filed 06/10/24 Page 2 of 5

 Case 1:12-cv-00560-BLW Document 721 Filed 12/15/20 Page 2 of 4

Case 5:24-cv-00028-KDB-SCR Document 238-5 Filed 06/10/24 Page 3 of 5

 Case 1:12-cv-00560-BLW Document 721 Filed 12/15/20 Page 3 of 4

Case 5:24-cv-00028-KDB-SCR Document 238-5 Filed 06/10/24 Page 4 of 5

 Case 1:12-cv-00560-BLW Document 721 Filed 12/15/20 Page 4 of 4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 15, 2020, I filed the foregoing FOURTH
AND FINAL VERIFIED REPORT electronically through the CM/ECF system, which caused
the following parties or counsel to be served by electronic means, as more fully reflected in the
Notice of Electronic Filing:
Brett T. DeLange [email protected]
Office of the Attorney General
Colleen D. Zahn [email protected]
Office of the Attorney General
David Ettinger [email protected]
Lara Fetsco Phillip [email protected]
Honigman LLP
Keely E. Duke [email protected]
Duke Evett, PLLC
Kevin J. Scanlan [email protected]
Bryan A. Nickels [email protected]
Scanlan Griffiths Aldridge & Nickels
Raymond D. Powers [email protected]
James S. Thomson, II [email protected]
Portia L. Rauer [email protected]
Powers Farley, PC
Carl J. Withroe [email protected]
Mooney Wieland PLLC
Eric J. Wilson [email protected]
Kevin J. O’Connor [email protected]
Wendy K. Arends [email protected]
Godfrey & Kahn, S.C.
Henry Chao-Lon Su [email protected]
Constantine Cannon LLP
Brian K. Julian [email protected]
Anderson Julian & Hull
John P. Marren [email protected]
Patrick E. Deady [email protected]
Thomas J. Babbo [email protected]
Hogan Marren, Ltd

/s/ Alexandra S. Grande

Alexandra S. Grande
for Holland & Hart LLP
15840101_v2

FOURTH AND FINAL VERIFIED REPORT OF ST. LUKE’S HEALTH SYSTEM, LTD TO THE PARTIES
AND THE COURT CONCERNING COMPLIANCE WITH THE COURT’S DECEMBER 10, 2015 ORDER TO
MAINTAIN ASSETS AND APPOINTING A MONITOR AND A DIVESTITURE TRUSTEE - 4
Case 5:24-cv-00028-KDB-SCR Document 238-5 Filed 06/10/24 Page 5 of 5