Antitrust in Life Sciences - 3rd Annual Edition

Hospital merger and acquisition activity has increased significantly over the past decade. The entities involved, such as insurers’ acquisitions of physician practices, pharmaceutical benefit managers (PBMs), and pharmacies integrating with PBMs, are not in direct competition with each other, so their mergers may not appear as anticompetitive at first. However, there is a mounting concern that they may significantly restrict competition and increase prices. For example, in California v. Sutter Health System, plaintiffs charged that as a dominant provider, Sutter was able to extend anticompetitive contract terms across its system. In addition, the executive order of July 9th 2021 by the Biden Administration has serious implications for healthcare consolidation, particularly hospital mergers and acquisitions. In March 2021, the FTC announces a multilateral working group to build a new approach to pharmaceutical mergers. What impact will these new developments have on the control of healthcare mergers?

Rena CONTI | Dean’s Research Scholar, Associate Professor, Boston University (bio)
Patricia DANZON | Professor of Health Care Management, University of Pennsylvania (bio)
Martin GAYNOR | Professor Of Economics And Public Policy, Carnegie Mellon University (bio)
Dina OLDER AGUILAR | Vice President, Cornerstone Research, Oakland (bio)

Moderator: Thomas DEMATTEO I | Counsel to the Assistant Attorney General, U.S. Department of Justice, Washington D.C. (bio)

The US House of Representatives Committee on Oversight and Reform published a report on pricing and business practices in the pharmaceutical industry on December 10, 2021. It raises several issues. For example, it was highlighted that drug companies are incentivized to “aggressively raise drug prices” as they reach the end of patent protection or market exclusivity to meet increased revenue targets. These practices hurt competition and distort the market. In this context, is more transparency needed to determine the extent of the damage pharmacy benefit managers practices are having on patients and the marketplace?

Michael COWIE | Partner, Dechert, Washington D.C. (bio)
Pauline KENNEDY | Principal, Bates White, Washington D.C. (bio)

Moderator: Thomas HORTON | Professor of Law & Heidepriem Trial Advocacy Fellow, University of South Dakota, Vermillion (bio)

These “pay-for-delay” patent settlements effectively block all other generic drug competition for a growing number of branded drugs. There are several federal legislative and case law developments impacting this notion. For example, the Biden Administration has taken a firm stance in the Executive Order of July, 9, 2021. It expressly encouraged the FTC to ban “pay for delay” settlement agreements between brand and generic drug manufacturers, also known as “reverse payments”. This also concerns the court insights regarding the admissibility of expert opinions concerning the likelihood of success of the underlying patent litigation.

Daniel GILMAN | Attorney-Advisor in the Office of Policy Planning, US Federal Trade Commission, Washington D.C. (bio)
Eric STOCK | Partner, Gibson Dunn, New York (bio)

Moderator: Barak RICHMAN | Professor of Law & Business Administration, Duke University (bio)

In May 2021, the FTC, together with the Canada’s Competition Bureau, DG COMP, DOJ, and the CMA, have launched a working group, now called the Multilateral Pharmaceutical Merger Task Force, to identify concrete and actionable steps to review and update the analysis of pharmaceutical mergers. What is the best way for agencies to update their approach when analyzing pharmaceutical mergers?

Gwendolyn COOLEY | NAAG Antitrust Task Force Chair and Assistant Attorney General, Wisconsin AG’s Office, Madison (bio)
Matthew TABAS | Partner, Arnold & Porter Kaye Scholer, Washington DC (bio)
Elinor HOFFMANN | Chief, Antitrust Bureau, Office of the New York Attorney General, Albany (bio)
Pauline KENNEDY | Principal, Bates White, Washington D.C. (bio)
Sorcha O’CARROLL | Senior Director - Mergers, CMA, London (bio)

Moderator: Michael MILLER | Partner, Morrison & Foerster, New York (bio)