New Proposed Merger Guidelines from FTC & DOJ

 

In a previous post (May 25, 2023), I featured some of the criticisms leveled by Daniel Sokol and Dick Pierce against the emerging M&A policy at the FTC under the leadership of Lina Khan. It's not likely that the revised merger guidelines released by DOJ and FTC on July 19 will do much to soften their criticism. 

Of particular interest for health lawyers, consider these more or less parallel developments:

• July 14: the two agencies withdrew the Statements of Antitrust Enforcement Policy in Health Care and the Statement of Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program. ACOs represent a major innovation in the 2010 Patient Protection and Affordable Care Act, and a major part of ACO-related policy was the antitrust protection issued by the FTC and DOJ. The ACO initiative hasn't been a roaring success, and if the FTC and DOJ tighten the enforcement screws on ACOs, that could be the end of the road for them.
• July 20: at an open meeting, the FTC voted to issue a statement that discourages reliance on 11 prior advocacy letters and reports issued between 2004 and 2014 related to pharmacy benefit managers.

These are interesting times, indeed, for health-care antitrust counsel and their clients.