The federal government is taking a more aggressive approach to lowering prices and costs for American consumers. On March 5, 2024, President Joseph Biden announced a new Strike Force on Unfair and Illegal Pricing co-chaired by the Department of Justice (DOJ) and Federal Trade Commission (FTC). The strike force is yet another attempt by the federal government to implement the president’s July 2021 Executive Order on Promoting Competition in the American Economy.
Federal and State Antitrust Enforcers Reiterate Focus on Healthcare
Federal and state antitrust enforcers are keenly focused on potential anticompetitive conduct in the healthcare space.
Federal Trade Commission Chair Lina Kahn recently noted that “the FTC is squarely focused on tackling illegal business practices that deprive Americans of access to affordable and innovative healthcare” in a speech to the American Medical Association’s national advocacy conference. According to Chair Kahn, medical professional consistently express frustration to the FTC “about how the business of healthcare today forces many [medical providers] to subordinate [their] own medical judgment to corporate decision-makers at the expense of patient health.” In response to those complaints, Chair Khan highlighted a few recent enforcement efforts, including scrutiny of group purchasing organizations, drug wholesalers, and pharmacy benefit managers; tackling unlawful consolidation in healthcare markets and roll-ups of healthcare providers. She also touted the FTC’s work protecting healthcare workers, tackling unlawful practices by pharmaceutical companies, including suits to block two major pharmaceutical mergers, and protecting patient privacy and data.
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Guidance for Controlling Drug Prices
The Federal Trade Commission (FTC) has announced its support of the federal government’s use of “march-in rights” as a mechanism to control the price of pharmaceuticals. The National Institute of Standards and Technology (NIST) late last year issued its “Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights” that would fundamentally change the use of march-in rights by allowing the government to exercise price control under the Bayh-Dole Act, which the FTC announced its support for last week. This shift is the latest effort by federal agencies to lower drug prices in the wake of President Joe Biden’s Executive Order on Promoting Competition in the American Economy.
Is Misclassification of Workers an Unfair Method of Competition?
The Federal Trade Commission (FTC) is signaling its intent to get further involved in employment practices after its activity of the last year and a half in proposing a ban on noncompete clauses in employment contracts and signing a memorandum of understanding with the U.S. Department of Labor (DOL) to bolster the FTC’s efforts to promote competitive U.S. labor markets.
Preserve Materials During Pendency of Antitrust Investigation, FTC Says
Companies and individuals must be aware of their legal obligations to preserve communications when involved in government investigations or litigation, especially in light of new preservation standards from the Federal Trade Commission and Department of Justice. Due to concerns with the increased use of collaboration tools like Microsoft Teams and ephemeral messaging applications like Signal, the agencies are updating the language they include in standard preservation letters and requests for information, including second requests, voluntary access letters, civil investigative demands, other compulsory legal processes and grand jury subpoenas.
Senator Calls on Inhaler Companies to Stop Unfair Practices
Senator Tammy Baldwin (D-WI) sent letters on January 29 to companies warning of improper Orange Book listings of patents for inhalers, following up on the FTC’s focus on potential anticompetitive harm of improper listings.
FTC and DOJ Issue Highly Anticipated Merger Guidelines
On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly issued new Merger Guidelines. The new guidelines amend, update and replace the numerous versions of merger guidelines previously issued by both agencies, including the 2010 Horizontal Merger Guidelines and the Vertical Merger Guidelines that were issued in 2020 and later withdrawn by the FTC in 2021. Below are our key takeaways, followed by some discussion of how the agencies apply the guidelines and then a deeper-dive into some industry-specific considerations.
Sanofi Terminates Proposed Licensing Agreement with Maze after FTC Complaint
On December 11, 2023, Sanofi released a statement that it will terminate its proposed $755 million licensing agreement with Maze Therapeutics (Maze) shortly after the Federal Trade Commission (FTC) issued an administrative complaint and authorized filing a complaint for preliminary injunction in the United States District Court for the District of Massachusetts to block the deal.
FTC, DOJ and HHS Promoting Competition in Healthcare Industry
On December 7, 2023, the Federal Trade Commission announced that it, the Department of Justice and the Department of Health and Human Services are collaborating to promote competition, lower healthcare costs and improve the quality and availability of healthcare.
Illinois Court Denies Dismissal for Violation of Antitrust Laws
On November 27, 2023, the U.S. District Court for the Northern District of Illinois denied agricultural giant John Deere’s request to dismiss a proposed class action alleging the company has violated antitrust laws.