The hypothetical monopolist test in sysco: A litigation muddle needing analytic clarity

Abstract

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.