THE HYPOTHETICAL MONOPOLIST TEST IN SYSCO : A LITIGATION MUDDLE NEEDING ANALYTIC CLARITY

The Sysco case demonstrates both significant confusion on the application of the hypothetical monopolist test (HMT) and systemic flaws in the way experts provide evidence. I first explain how the HMT actually works, and then show how the expert testimony on the HMT in Sysco was confusing and possibly misunderstood. I conclude by proposing three structural reforms to merger litigation that would make technical matters like the HMT much clearer to generalist judges.