RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
`
`File Name: 21a0180p.06
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE SIXTH CIRCUIT
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`
`
`
`
`
`
`
`No. 21-3007
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`ST. LUKE’S HOSPITAL d/b/a McLaren St. Luke’s;
`WELLCARE PHYSICIANS GROUP, LLC,
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`Plaintiffs-Appellees,
`
`
`
`
`
`
`
`v.
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`INC.; PROMEDICA
`PROMEDICA HEALTH SYSTEM,
`INSURANCE CORPORATION; PARAMOUNT CARE, INC.;
`PARAMOUNT CARE OF MICHIGAN, INC.; PARAMOUNT
`INSURANCE COMPANY; PARAMOUNT PREFERRED
`OPTIONS, INC.,
`
`Defendants-Appellants.
`
`┐
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`
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`Appeal from the United States District Court for the Northern District of Ohio at Toledo.
`No. 3:20-cv-02533—Jack Zouhary, District Judge.
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`Argued: July 29, 2021
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`Decided and Filed: August 10, 2021
`
`Before: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.
`_________________
`
`COUNSEL
`
`ARGUED: Douglas E. Litvack, Christopher G. Renner, David M. Gossett, DAVIS WRIGHT
`TREMAINE, LLP, Washington, D.C., for Appellants. David A. Ettinger, HONIGMAN LLP,
`Detroit, Michigan, for Appellees. ON BRIEF: Douglas E. Litvack, Christopher G. Renner,
`David M. Gossett, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., Adam S. Sieff,
`DAVIS WRIGHT TREMAINE LLP, Los Angeles, California, Mark D. Wagoner, Matthew T.
`Kemp, Larry J. Obhof, SHUMAKER, LOOP & KENDRICK LLP, Toledo, Ohio, for Appellants.
`David A. Ettinger, HONIGMAN LLP, Detroit, Michigan, Ron N. Sklar, HONIGMAN LLP,
`Chicago, Illinois, Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo, Ohio, for Appellees.
`Amanda L. Wait, Victor J. Domen, Jr., NORTON ROSE FULBRIGHT US LLP, Washington,
`D.C., Gerald A. Stein, NORTON ROSE FULBRIGHT US LLP, New York, New York, David E.
`Dahlquist, Kevin P. Simpson, WINSTON & STRAWN LLP, Chicago, Illinois for Amici Curiae.
`
`
`
`

`

`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 2
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`_________________
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`OPINION
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`_________________
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`SUTTON, Chief Judge. In phase one of this dispute, our court affirmed the Federal
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`Trade Commission’s decision to block a merger of ProMedica Health System and St. Luke’s
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`Hospital in Lucas County, Ohio. As part of the unwinding of the merger, ProMedica and St.
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`Luke’s signed an agreement in which ProMedica’s insurance subsidiary, Paramount, agreed to
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`maintain St. Luke’s as a within-network provider. But that contractual obligation came with a
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`caveat: Paramount could drop St. Luke’s if ownership of the hospital changed. The
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`qualification came to fruition when a large healthcare company based in Michigan, McLaren
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`Health, merged with St. Luke’s. In response, Paramount ended its relationship with St. Luke’s,
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`removing the hospital from its provider network.
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`All of this prompted a second antitrust charge against ProMedica, this one by St. Luke’s.
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`It alleged that ProMedica’s refusal to do business with it violated the antitrust laws. The district
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`court preliminarily enjoined ProMedica from pulling the plug on the agreement. Because
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`ProMedica had a legitimate business explanation for ending the relationship, St. Luke’s is
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`unlikely to show that ProMedica unlawfully refused to continue doing business with it. On top
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`of that, it has little likelihood of establishing an irreparable injury given the option of money
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`damages. For these reasons and those elaborated below, we vacate the preliminary injunction.
`
`I.
`
`A.
`
`
`
`Typical economic transactions involve single buyers and single sellers and a
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`straightforward price. Not so in the healthcare market. It includes a diverse cast of players for
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`each treatment and variable, often unknown, prices.
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`Take account of the many potential sellers: individual doctors, physician practices,
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`pharmacies, hospitals, and others. So too of buyers. Rarely is there just one of them, with state
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`and federal governments, private insurance companies, and individuals all participating. Making
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`

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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 3
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`matters more complicated, many players often take on more than one role, with healthcare
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`companies and insurance companies frequently acting as sellers and buyers.
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`Pricing is unique too. Consumers rarely know the cost of any one procedure. And
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`healthcare providers often charge different rates for care depending on who foots the bill. The
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`federal government, for example, tends to pay less for services and procedures than do private
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`insurance plans. Medicare and Medicaid rarely cover “providers’ actual cost of services.”
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`ProMedica Health Sys., Inc. v. FTC, 749 F.3d 559, 561 (6th Cir. 2014).
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`Private health insurance stands in the middle of the healthcare market. Although some
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`patients shop for health insurance on their own, most Americans receive coverage through their
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`employers, a vestige of 1940s wage policies. Atul Gawande, Is Health Care a Right?, The New
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`Yorker, Oct. 2, 2017, at 48. Employers thus negotiate rates with commercial insurance
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`companies. If an employer is self-insured, it foots the cost of care itself and pays only
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`administrative fees. If not, the insurance company covers the cost of care in exchange for a
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`premium per covered employee.
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`Health insurance companies in turn contract with providers to set rates and bundle
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`providers into “networks” that they can then market to employers. When insurance companies
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`include as many providers as possible in their network, that adds flexibility and enhanced choice.
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`But it costs more. When insurance companies include only a subset of providers in a narrow
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`network, the opposite usually is true. An insurer “may be able to negotiate lower rates from
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`providers for narrow network plans,” which may then “enable the insurer to offer consumers
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`lower premiums.” R.49 at 11. Because narrow networks funnel more patient traffic to their
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`contracted providers, insurance companies pay less for care and pass some of those savings on to
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`employers and patients.
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`B.
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`
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`Anchored by underappreciated Toledo, Lucas County has four main hospital systems:
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`ProMedica, Mercy Hospitals, the University of Toledo Medical Center, and St. Luke’s.
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`ProMedica, 749 F.3d at 562. Two-thirds of Lucas County’s patients have insurance through the
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`government. Id. at 561. The rest receive insurance through private plans.
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`

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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 4
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`
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`ProMedica acts as a healthcare buyer and seller. As a seller, it holds a prominent place in
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`the market. ProMedica’s hospital system holds 56% of the county’s market for “inpatient
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`general acute care services” that are “offered to commercially insured patients.” R.22-4 at 2.
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`As a buyer, ProMedica has a more modest position. It offers health insurance through a
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`subsidiary, Paramount, which purchases healthcare from providers. Rather than include many
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`hospitals in its network, Paramount employs a narrow-network strategy that steers patients
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`toward ProMedica’s hospitals. This vertically integrated approach allows Paramount to lower
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`prices and permits ProMedica to recoup those savings down the line as a provider. Far from
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`dominant in this market, Paramount competes alongside national insurers like Aetna and Anthem
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`and regional insurers like Buckeye Insurance Group and Medical Mutual of Ohio. Paramount
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`has “about 78,000 commercial members and fewer than 20,000 Medicare Advantage members”
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`in the region. R.40 at 6.
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`
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`St. Luke’s, a healthcare seller located southwest of Toledo in the city of Maumee, has a
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`smaller market share. Until recently, it operated as an independent community hospital,
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`capturing roughly 10% of the local commercial market. ProMedica, 749 F.3d at 562. Mercy
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`and the University make up the remainder.
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`Despite its size, St. Luke’s has some comparative advantages. It offers premium care at
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`competitive rates. And it operates in the wealthier southwestern portion of Lucas County,
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`attracting a large number of privately insured patients. Those patients represent a critical
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`revenue source for St. Luke’s, offsetting the losses incurred from treating patients covered by
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`government plans.
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`
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`These twin advantages help to explain why ProMedica sought to merge with St. Luke’s
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`in 2010. After agreeing to join forces, ProMedica sought to integrate St. Luke’s operation by
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`melding back offices and transferring employees. Paramount, ProMedica’s insurance arm,
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`contracted with St. Luke’s around this time to include the hospital as an in-network provider.
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`The partnership proved lucrative. Paramount won over “major employers in the areas most
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`served by St. Luke’s,” gaining over 10,000 covered individuals after adding St. Luke’s to its
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 5
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`provider network. R.22-7 at 2. ProMedica also continued to work with WellCare, the St. Luke’s
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`physician group.
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`Wary of ProMedica’s market dominance and concerned about the downstream effects of
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`market consolidation, the Federal Trade Commission objected to the merger. ProMedica, 749
`
`F.3d 559. After an investigation, the Commission ordered ProMedica to divest St. Luke’s.
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`ProMedica Health Sys., Inc., 2012-1 Trade Cas. 77840, 2012 WL 1155392, at *48 (F.T.C. Mar.
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`28, 2012). Our court rejected ProMedica’s petition to overturn the order. ProMedica, 749 F.3d
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`at 561.
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`C.
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`
`
`That brings us to the second, perhaps final, phase of this dispute. In 2016, the parties
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`negotiated, and the Commission approved, a divestiture agreement establishing that Paramount
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`would continue contracting with St. Luke’s as an in-network healthcare provider. But the
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`provision contained an out. If St. Luke’s underwent “a Change in Control,” Paramount could
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`“immediately terminate” its contracts with the hospital and its physician group. R.32 at 19.
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`The arrangement initially worked well, so well that the parties re-upped the “mutually
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`beneficial” contract two years later, extending it through 2023. R.22-8 at 2. For St. Luke’s, the
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`agreement guaranteed a steady stream of traffic from patients with Paramount insurance in the
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`wealthier southwestern portion of the county.
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`Paramount benefited as well in obvious and not-so-obvious ways. The obvious: It could
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`advertise St. Luke’s as an in-network provider to private insurance customers, an easy way to
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`boost revenue. The not-so-obvious: ProMedica generated revenue from patients who needed
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`advanced care that St. Luke’s could not provide. Keep in mind that not every hospital provides
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`every kind of service. St. Luke’s offers just primary and secondary services (think “basic
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`medical and surgical” care), while ProMedica offers more sophisticated tertiary services like
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`cardiothoracic surgeries and advanced cancer care. R.32 at 65. By maintaining St. Luke’s as an
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`in-network provider, Paramount could attract members who might go to St. Luke’s for basic
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`services but move to ProMedica’s hospitals for more complex treatment. St. Luke’s also allowed
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 6
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`ProMedica to operate a cancer center on St. Luke’s campus, giving ProMedica an “access point”
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`in southwestern Lucas County. R.44 at 3.
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`This picture changed when McLaren Health Systems agreed to buy St. Luke’s in October
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`2020. A large healthcare provider itself, McLaren “agreed to commit to at least $100 million in
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`a capital investment in St. Luke’s.” R.22-5 at 2. ProMedica viewed McLaren St. Luke’s as “a
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`completely different type of competitor.” R.43 at 2. McLaren offers complex cancer services
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`that “compete directly” with ProMedica and could siphon off patients needing advanced care
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`from ProMedica’s hospitals. R.44 at 5.
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`With these considerations in mind, ProMedica ended its relationship with St. Luke’s.
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`The day after McLaren finalized its acquisition of St. Luke’s, ProMedica terminated several
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`agreements, including Paramount’s agreement to include St. Luke’s as an in-network provider
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`and the ongoing relationship between ProMedica and the WellCare physician group at St.
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`Luke’s.
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`St. Luke’s sued ProMedica, alleging that, by refusing to continue the contract, ProMedica
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`violated the Sherman Act—mainly § 2 of the Act. St. Luke’s also sought a preliminary
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`injunction to prevent ProMedica from canceling its contracts with the hospital. ProMedica
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`opposed the request for an injunction and filed a motion to dismiss the case. The district court
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`denied ProMedica’s motion to dismiss and granted St. Luke’s motion for a preliminary
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`injunction.
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`II.
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`A.
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`
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`Four factors guide our review of a district court’s preliminary injunction: (1) the
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`likelihood of success on the merits, (2) the threat of irreparable harm absent an injunction, (3) the
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`risk of harm to others, and (4) the broader public interest. A1 Diabetes & Med. Supply v. Azar,
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`937 F.3d 613, 618 (6th Cir. 2019). In this case, those inquiries largely boil down to two.
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`Because St. Luke’s has little chance of success on its antitrust claims and because St. Luke’s has
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 7
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`failed to establish a risk of irreparable harm, the district court should not have preliminarily
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`enjoined ProMedica’s termination of the contracts.
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`Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt to
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`monopolize . . . any part of the trade or commerce among the several States, or with foreign
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`nations.” 15 U.S.C. § 2. By themselves, “possessing monopoly power and charging monopoly
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`prices” do “not violate § 2.” Pac. Bell Tel. Co. v. linkLine Comms., Inc., 555 U.S. 438, 447–48
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`(2009). The Act targets “the possession of monopoly power” coupled with “the willful
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`acquisition or maintenance of that power as distinguished from growth or development as a
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`consequence of a superior product, business acumen, or historic accident.” United States v.
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`Grinnell Corp., 384 U.S. 563, 570–71 (1966). The focus is on guarding the competitive process
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`and on protecting the welfare of consumers, not on ensuring the economic fortunes of
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`competitors. A monopolist’s actions thus must “harm the competitive process and thereby harm
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`consumers,” as mere “harm to one or more competitors will not suffice.” United States v.
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`Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (per curiam).
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`In some settings, § 2 of the Sherman Act prohibits a company from refusing to contract
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`—from “refusing to deal”—with another company. Just as the statute prohibits two companies
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`from entering a contract that permits an anticompetitive monopoly, so it also prohibits a
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`company from refusing to deal with another company in aid of such practices. Even so,
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`refusal-to-deal claims face a steep and obstacle-laden climb. Courts start with the liberty-based
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`assumption that individuals and companies may do business with whomever they please. “As a
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`general rule, businesses are free to choose the parties with whom they will deal, as well as the
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`prices, terms, and conditions of that dealing.” linkLine, 555 U.S. at 448. This “presumption of
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`freedom” has deep roots. Robert H. Bork, The Antitrust Paradox 344 (1978). Even the earliest
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`§ 2 cases note that the Sherman Act “does not restrict the long recognized right of trader or
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`manufacturer engaged in an entirely private business, freely to exercise his own independent
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`discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300,
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`307 (1919).
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`But generally and traditionally are not always and forever. Under discrete circumstances,
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`“a refusal to cooperate with rivals can constitute anticompetitive conduct and violate § 2.”
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 8
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`Verizon Comms. Inc. v. Law Offs. of Curtis Trinko, 540 U.S. 398, 408 (2004). The course of
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`liability requires a showing that the “monopolist’s conduct” is “irrational but for its
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`anticompetitive effect.” Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir. 2013)
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`(Gorsuch, J.); see also Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 462 (7th Cir. 2020).
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`Because separating “anticompetitive malice” from “competitive zeal” tries the most acute and
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`fair-minded judges and because there is a rational explanation for most business conduct, far
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`more claims are lost than won on this ground. Trinko, 540 U.S. at 409. “[A]s generalists, as
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`lawyers, and as outsiders trying to understand intricate business relationships,” judges have
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`“limitations” in gauging when a refusal to deal will hurt competition as opposed to the
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`expectations of a single competitor. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141,
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`2166 (2021).
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`A few questions inform the inquiry. Did the monopolist enter a “voluntary . . . course of
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`dealing” with its rival? Trinko, 540 U.S. at 409. Did the monopolist willingly sacrifice “short-
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`run benefits . . . in exchange for a perceived long-run impact on its smaller rival”? Aspen Skiing
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`Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 611 (1985); see also 3 Phillip E. Areeda &
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`Herbert Hovenkamp, Antitrust Law ¶ 651 (4th ed. 2015). If so, did the monopolist ignore
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`“efficiency concerns,” Aspen Skiing, 472 U.S. at 610, or act without “valid business reasons,” id.
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`at 605? Answering “yes” to the above questions signals a potential § 2 problem. Answering
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`“no” to any of them signals that the antitrust laws do not apply. Novell, 731 F.3d at 1074–75; see
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`also FTC v. Qualcomm Inc., 969 F.3d 974, 993–94 (9th Cir. 2020); New York v. Facebook, No.
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`20-3589, 2021 WL 2643724, at *11 (D.D.C. June 28, 2021).
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`B.
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`One impediment to St. Luke’s refusal-to-deal claim is that the parties’ prior course of
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`dealings demonstrates that ProMedica had a valid business reason for ending the contract.
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`ProMedica and St. Luke’s, and the Federal Trade Commission to boot, anticipated the possibility
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`that St. Luke’s might merge with another healthcare company, and as a result they agreed to give
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`ProMedica the right to end the contract with St. Luke’s under those circumstances. The “Change
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`in Control” provision in the divestiture agreement—a contract St. Luke’s signed and the
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`Commission approved—allowed ProMedica to “immediately terminate” its ongoing arrangement
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`

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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 9
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`
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`with St. Luke’s if St. Luke’s were acquired. R.32 at 19. Possibilities became realities when
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`McLaren acquired St. Luke’s, and ProMedica exercised the contractual right St. Luke’s gave it.
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`St. Luke’s knew from the beginning that its ability to maintain its status as an in-network
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`provider might be affected if it were acquired by another company. The deal between
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`ProMedica and St. Luke’s was predicated upon the latter’s status at the time of the contract. The
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`two firms may have entered a “voluntary . . . course of dealing” in one sense, Trinko, 540 U.S. at
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`409, but it included a voluntary, mutually agreed, and government-approved basis for ending that
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`course of dealing. In other words, ProMedica had a legitimate business reason from the outset to
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`end this arrangement, as evidenced by the “Change in Control” clause.
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`
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`In addition to this pre-approved exit ramp, other factors used to assess refusal-to-deal
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`claims favor ProMedica’s right to end Paramount’s relationship with St. Luke’s. Start by asking
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`whether the evidence signals that ProMedica willingly forsook “short-term profits” by pulling
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`out of its agreements. Id. Considerable record evidence shows how ProMedica could benefit
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`from encouraging patients to seek care at ProMedica hospitals and from ProMedica’s doctors
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`rather than at St. Luke’s and by extension at McLaren. Steve Cavanaugh, ProMedica’s Chief
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`Financial Officer, explained that after McLaren’s acquisition, St. Luke’s began offering
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`“advanced care at McLaren hospitals” by “hundreds of specialists and primary care physicians.”
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`R.43 at 2–3. Those changes made “St. Luke’s a completely different type of competitor,” id. at
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`2, and the ProMedica system would “lose revenue if . . . forced to contract with McLaren,” id. at
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`5. Others echoed the point, explaining that ending the relationship with St. Luke’s would “bring
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`revenue back to ProMedica,” R.41 at 12, by ensuring that patients are “treated by ProMedica
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`providers,” R.47 at 8.
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`The one economist to analyze the market shared this perspective. He concluded that for
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`“both commercial members and Medicare Advantage members, the increases in profit from
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`ProMedica treating patients instead of St. Luke’s likely are greater than the decreases in profit
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`from lost Paramount enrollment.” R.49 at 18.
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`Nothing in the record establishes that Paramount would suffer serious losses by cutting
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`St. Luke’s loose from its provider network. Paramount found that it did “not need St. Luke’s in
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`its network to offer an attractive plan to local employers.” R.43 at 5. It suffered only “nominal”
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 10
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`membership losses after canceling its in-network agreement with St. Luke’s, and the decision
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`produced “no material impact” on the bottom line. R.42 at 4. The only customer Paramount
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`seems to have lost is St. Luke’s itself, whose employees were insured through Paramount prior to
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`McLaren’s acquisition. Even if Paramount suffered limited losses by eliminating St. Luke’s
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`from its provider network, ProMedica reasoned that it would make up the difference by
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`capturing more advanced-care patients who might otherwise go to McLaren for treatment.
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`Cancer care offers a good example of how the terrain shifted under ProMedica’s feet
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`once McLaren entered the scene. According to Dr. Lee Hammerling, ProMedica’s Chief
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`Academic Officer, ProMedica agreed to extend Paramount’s in-network contract with St. Luke’s
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`“[i]n return” for a promise by St. Luke’s to extend ProMedica’s cancer center lease on the St.
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`Luke’s campus and to refrain from opening “a competing cancer center within five miles.” R.44
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`at 4. But once McLaren purchased St. Luke’s, it became likely that ProMedica’s cancer center
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`would take a hit. Hammerling expected “McLaren St. Luke’s” to “begin referring its cancer
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`patients” to McLaren facilities rather than to ProMedica. Id. at 5. Other ProMedica leaders
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`expressed similar fears, exacerbated by the possibility that McLaren would open “a joint cancer
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`center across from” St. Luke’s. R.47 at 7. Cancer care captures the economic challenge
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`ProMedica faced once St. Luke’s became McLaren St. Luke’s.
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`McLaren scrambled ProMedica’s approach. Even if ProMedica and St. Luke’s entered a
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`“voluntary . . . course of dealing,” Trinko, 540 U.S. at 409, the facts before us do not show that
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`ProMedica willingly surrendered “short-run benefits” to undercut St. Luke’s, Aspen Skiing,
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`472 U.S. at 611.
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`The answer to this last question takes us part of the way to answering the next question:
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`Did ProMedica offer a “valid business reason” for its decision to cancel its ongoing contracts
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`with McLaren St. Luke’s? Id. at 599. St. Luke’s, all agree, is no longer the “independent
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`community hospital” we encountered in 2014. ProMedica, 749 F.3d at 561. McLaren has
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`promised to invest $100 million into St. Luke’s and “to assume $65 million of St. Luke’s debt
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`and $55 million of St. Luke’s pension liability.” R.22-5 at 2. Along with a capital infusion,
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`McLaren has brought to the table facilities and healthcare offerings likely to siphon patient
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`revenue from ProMedica. We cannot say ProMedica lacked “legitimate business purposes” in
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`No. 21-3007
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`St. Luke’s Hosp., et al. v. ProMedica Health Sys., Inc., et al.
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`Page 11
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`refusing to continue its contracts with a different competitor. 3B Areeda & Hovenkamp,
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`Antitrust Law ¶ 772.
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`ProMedica did what many companies do when circumstances change. Reassessing the
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`landscape after McLaren’s acquisition is hardly “irrational but for its anticompetitive effect.”
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`Novell, 731 F.3d at 1075. A prior decision “to adopt one business model” did “not lock”
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`ProMedica “into that approach and preclude adoption of” a different approach “at a later time.”
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`Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1196 (10th Cir. 2009). That is
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`hardly an unusual approach in the world of business or economics. “When my information
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`changes,” John Maynard Keynes reputedly quipped, “I change my mind. What do you do?” In a
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`competitive market, businesses that do not tack when economic winds change are doomed to fail.
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`The antitrust laws promote competition, not sclerosis.
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`Recall as well the relevant markets. While St. Luke’s wishes to focus on ProMedica’s
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`56% market share, it overlooks the reality that this refusal to deal involves ProMedica’s
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`insurance arm, Paramount. It is Paramount after all that removed St. Luke’s from its provider
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`network. Paramount has just a 17% market share in the relevant medical insurance market and
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`must compete with the likes of Anthem, Aetna, Buckeye Insurance, Medical Mutual, and others.
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`In this context, it is difficult to maintain that Paramount’s contractually permitted refusal to deal
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`will lead to any anticompetitive monopolies.
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`We also remain wary of differentiating the effects on the market between refusals to deal
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`and mandates to deal, between facilitating competition and forcing cooperation. Forcing rivals
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`to share—to continue doing business together—pushes the bounds of our expertise, and “[w]hen
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`it comes to fashioning an antitrust remedy” in this area, “caution is key.” Alston, 141 S. Ct. at
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`2166. If the record before us makes anything clear, it is that there is more change than continuity
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`in the Toledo healthcare market. McLaren’s entry into the market and capital infusions promise
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`to alter products and services, and many ineffable incentives along the way. “[C]entral planners”
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`we are not. Trinko, 540 U.S. at 408.
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`Although our estimation of St. Luke’s chance of success anchors our decision, another
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`preliminary injunction factor bolsters it. As a general matter, a “plaintiff’s harm from the denial
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`of a preliminary injunction” does not count as “irreparable” if it is, or can be, “fully compensable
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`by monetary damages.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578
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`(6th Cir. 2002); see Teva Pharms. USA, Inc. v. Sandoz, Inc., 572 U.S. 1301, 1301–02 (2014)
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`(Roberts, C.J., in chambers). St. Luke’s fails to meet that bar. Its complaint primarily
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`emphasizes the loss of patients and market share. But economists can and do assess such injuries
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`in monetary terms. Confirming the point, St. Luke’s has asked for damages addressing those
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`very losses. As for its other alleged less tangible economic injuries—harm to reputation and
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`goodwill—they do not suffice at this fledgling stage of the case to warrant the rare remedy of
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`forcing someone to do business with a competitor. Even in Aspen Skiing, it was the district
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`court, not the Supreme Court, that granted an injunction, 472 U.S. at 598 n.23, and it did so only
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`after a jury trial on the merits. In this instance, St. Luke’s has not shown that money damages
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`would fail to compensate any antitrust injuries.
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`Other dynamics also give us pause. If Paramount’s members in the southwestern portion
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`of the county wish to go to St. Luke’s as an in-network provider, they can push their employers
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`to change course when businesses craft their health insurance plans for the upcoming enrollment
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`season. St. Luke’s has already advocated such an approach by publishing an open letter
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`“urg[ing]” Paramount members “to consider choosing a plan that includes” St. Luke’s and its
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`physicians. R.22-18 at 2.
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`C.
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`St. Luke’s hammers one chord in particular in rebuttal, the Supreme Court’s decision in
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`Aspen Skiing. But that case is “at or near the outer boundary of § 2 liability,” Trinko, 540 U.S. at
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`409, and it does not apply by its own reasoning. Aspen Skiing involved a dispute between the
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`defendant (a dominant ski resort that controlled three of four mountains in the area) and the
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`plaintiff (a diminutive rival in control of the fourth mountain). 472 U.S. at 587–98.
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`The two rivals had teamed up to offer a joint pass for skiers hoping to use all four mountains. Id.
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`at 589–91. After the defendant cut off the joint ticket offering, the plaintiff “tried a variety of
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`increasingly desperate measures to re-create the joint ticket, even to the point of in effect offering
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`to buy the defendant’s tickets at retail price.” Trinko, 540 U.S. at 409. The district court
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`compelled the two to continue to offer a joint ticket, and on review the Supreme Court reasoned
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`that the dominant resort failed “to offer any efficiency justification whatever for its pattern of
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`conduct.” Aspen Skiing, 472 U.S. at 608.
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`Aspen Skiing differs from today’s case in more ways than one. ProMedica has offered an
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`“efficiency justification” for its decision to back out of its agreements with St. Luke’s.
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`McLaren’s acquisition changed the economic calculus of the prior relationship and prompted a
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`course correction grounded in financial realities, not “anticompetitive malice.” Trinko, 540 U.S.
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`at 409. By the same token, ProMedica did not act solely to “avoid providing any benefit” to St.
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`Luke’s, Aspen Skiing, 472 U.S. at 610, but advanced its own interests as a competitor in the
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`market. Imagine how Aspen Skiing would have turned out if the large resort made these
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`decisions only after the small resort merged with another large resort. Such a different
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`explanation for ending their cooperation, it is fair to think, would have led to a different
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`outcome. A contrary approach might even have led to inklings of an antitrust conspiracy charge.
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`Last, but hardly least, Aspen Skiing did not involve a preexisting agreement that permitted the
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`resort to end its ongoing contracts. Christy Sports, 555 F.3d at 1196. The more one compares
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`the two situations, the less flattering the comparison becomes to St. Luke’s.
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`Also unhelpful is Otter Tail Power Co. v. United States, 410 U.S. 366 (1973). It
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`concerned an electric utility’s refusal to sell power at wholesale prices to municipalities. Id. at
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`371. The Court held that the utility violated § 2 by refusing to contract with certain cities,
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`explaining that “[i]nterconnection with other utilities is frequently the only solution” to “the
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`difficulties and problems of . . . isolated electric power systems” and that the utility refused to
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`sell power “solely to prevent municipal power systems from eroding its monopolistic position.”
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`Id. at 378. Unlike municipalities hoping to buy power, McLaren St. Luke’s does not depend
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`wholly on ProMedica for treating patients as a healthcare provider. Other insurance companies
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`continue to include St. Luke’s as an in-network provider. The hospital can tell patients, indeed it
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`already has told patients, to switch to those plans if they wish to continue going to St. Luke’s for
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`care. More, McLaren can enter the healthcare market and offer its own insurance plan to
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`compete alongside Paramount’s narrow network. Unlike industries requiring extensive
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`infrastructure, new firms can easily enter the “market for medical insurance.” Ball Mem’l Hosp.,
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`Inc. v. Mut. Hosp. Ins. Inc., 784 F.2d 1325, 1335 (7th Cir. 1986).
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`Otter Tail and Aspen Skiing each concerned small competitors that could not survive
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`without the monopolist’s help. By refusing to deal, the monopolists could starve their emaciated
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`rivals out of the market. Thanks to McLaren, St. Luke’s occupies a far different position. As in
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`Aspen Skiing, the defendants in Otter Tail could not offer an efficiency rationale explaining their
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`conduct. See Bork, The Antitrust Paradox, at 346. ProMedica has by contrast given sound
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`explanations for refusing to continue dealing with its new,