LS&HC Horizons 2023 - Flipbook - Page 73
Hogan Lovells | 2023 Life Sciences and Health Care Horizons | United States
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Antitrust agencies expand potential antitrust theories in merger reviews
2022 was an active year for antitrust merger
enforcement at both the federal and state
levels. In the 18 months following the Biden
Administration’s “Executive Order on
Promoting Competition in the American
Economy”, the Federal Trade Commission
(FTC) and Department of Justice (DOJ)
Antitrust Division have executed on the
Administration’s directive to enhance
enforcement efforts, with health care and life
sciences industries as key areas of focus.
At the federal level, the FTC and DOJ continue
to closely scrutinize transactions between
direct competitors that raise traditional
antitrust concerns. In 2022, the agencies
also focused increasingly on vertical theories.
We’ve also seen a particular focus on novel and
emerging theories of antitrust harm resulting
from transactions, including scrutiny of:
How these more novel theories of harm will
fare in future merger litigations before the
courts remains to be seen. In the meantime,
these theories are increasingly front and center
in merger investigations, and in some cases,
may be the focus of a Second Request.
At the state level, attorneys general and
health authorities also have broadened
the scope of their enforcement efforts. We
expect this trend to continue as states enact
legislation establishing state review of health
care transactions. While these reviews differ
between states, they often overlap with
antitrust issues that may also be raised by the
federal antitrust agencies.
• cross-market competition between entities
that do not directly compete;
• competition in labor markets;
• private equity investment in health care
entities; and
• effects on innovation.
Ilana Kattan
Counsel, Washington, D.C.
Jonathan Elsasser
Senior Associate,
Washington, D.C.
Ashley Ifeadike
Associate, Washington, D.C.
