WELCOME & BREAKFAST9:00
#1 MERGERS IN THE HEALTH SECTOR9:30
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)
#2 PRICING AND BUSINESS PRACTICES IN THE PHARMACEUTICAL INDUSTRY11:30
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?
Moderator: Thomas HORTON | Professor of Law & Heidepriem Trial Advocacy Fellow, University of South Dakota, Vermillion (bio)
#3 THE CURRENT PAY-FOR-DELAY LANDSCAPE2:30 pm
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.
Moderator: Barak RICHMAN | Professor of Law & Business Administration, Duke University (bio)
COFFEE BREAK4:00 pm
#4 RECENT DEVELOPMENTS IN THE US AND THE EU4:15 pm
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)
If you would like to read about this event’s topic, you can access the following Concurrences documents. If you do not have access, please inquire for Subscription here.
Panel 1 - Mergers in the Health Sector
1. Ilana Kattan, Jonathan Elsasser, Bob Leibenluft, The US FTC sues to block two mergers in the healthcare sector as likely to lessen competition in their local markets (RWJ Barnabas Health / Saint Peter’s Healthcare System) (HCA Healthcare / Steward Healthcare System), 2 June 2022
2. Bruce Hoffman, Bethlehem Mebratu, The US Court of Appeals for the Third Circuit upholds a district court decision granting a preliminary injunction against an acquisition in the health sector (Hackensack Meridian / Englewood Healthcare), 22 March 2022
4. US Department of Justice Antitrust Division, The US DoJ sues to block a merger between a healthcare technology provider and a health company which would result in the use of competitively sensitive claims data of millions of Americans to reduce competition and innovation (UnitedHealth Group / Change Healthcare), 24 February 2022
5. US Federal Trade Commission, The US FTC approves a pharmaceutical supplier’s petition for prior approval of its acquisition of the chromatography equipment business of a service provider in the pharmaceutical and biopharmaceutical industries (Sartorius Stedim Biotech / Novasep Process), 1 February 2022
8. Ashley M. Fischer, Katharine O’Connor, Noah Feldman Greene, The US President Joe Biden issues an executive order affirming his administration’s policy of enforcing the antitrust laws to “combat the excessive consolidation of industry” and encourages enforcers to address hospital consolidation, 9 July 2021
Panel 2 - Pricing and Business Practices in the Pharmaceutical Industry
1. US Federal Trade Commission, The US FTC authorises an administrative complaint to block the proposed merger of Rhode Island’s two largest healthcare providers alleging that the deal would lead to higher prices and lower quality care (Lifespan / Care New England Health System), 17 February 2022
Panel 3 - The Pay-For-Delay Legislation Current Landscape
4. Donald Slater, The EU Court of Justice confirms the judgment of the General Court that the pay-for-delay agreements concluded between originator and generics manufacturers were by-object restrictions (Lundbeck), 25 March 2021
Panel 4 - Recent Developments in the US and the EU
2. US Federal Trade Commission, The US FTC issues a statement made by Chair Lina M. Khan following the imposition of a lifetime ban against a pharmaceutical executive (Martin Shkreli), 14 January 2022
3. European Commission, The EU Commission unconditionally approves the acquisition of a transcription software company active in the healthcare sector and customer engagement solutions by a global technology company (Microsoft / Nuance), 21 December 2021
5. Arjun Garg, Kevin Sheys, David Horowitz, Chuck Loughlin, Edith Ramirez, Logan M. Breed, Leigh L. Oliver, The US President Joe Biden issues sweeping executive order targeting corporate consolidation and anticompetitive activity in the labor, financial services, health care, transportation, telecommunications, agricultural, and tech markets, 9 July 2021
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