Conduct by life sciences companies has long been the subject of intense antitrust scrutiny, with focus in recent years on what some perceive to be high drug prices enabled by anticompetitive acquisitions, sometimes branded as "killer acquisitions," and conduct that prevents or delays generic entry. With the incoming Biden Administration, signs abound that this scrutiny is very likely to reach new levels in 2021 and beyond.
Current leadership at the FTC has repeatedly signalled that it believes the time has come to rethink its approach toward pharmaceutical merger review. Proposals on the table include steps to broaden the FTC's assessment of potential theories of competitive harm, taking a deeper look at effects on innovation, and considering conduct such as price fixing and reverse payment settlements. These changes are already beginning to impact the timing and risk profile of pharmaceutical mergers, and further revisions to the FTC's longstanding framework for assessing pharmaceutical mergers could have very substantial impacts going forward.
In addition to merger review, the FTC, along with state attorneys general, continue to closely scrutinize alleged anticompetitive conduct by life sciences companies, largely focused on conduct alleged to foreclose competitors, such as reverse-payment settlements, sham petitioning, and product hopping. The story on the private litigation side is no different, with plaintiffs increasingly bringing treble damages claims based on aggressive theories of competitive foreclosure, often related to the exercise of intellectual property.
In this webinar we will discuss the latest trends relating to antitrust enforcement in life sciences, from federal and state enforcers to private plaintiffs, and offer guidance for navigating these increasingly hostile waters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
