Bill Baer Named to Serve as AAG in Charge of Justice Department Antitrust Division
On February 3, the White House announced President Barack Obama’s intention to nominate Bill Baer to serve as Assistant Attorney General in charge of the Department of Justice Antitrust Division.
There was much speculation that Baer would be named to head the Antitrust Division after Sharis A. Pozen, the current acting assistant attorney general for antitrust, announced her intention to resign just over one week ago (see January 24 blog post). Pozen plans to leave the Justice Department at the end of this month to return to private practice.
Bill Baer is currently the head of the antitrust group at the Washington, D.C. office of Arnold & Porter, LLP. Baer held a number of high-level positi [...]
A Look Back at the Enforcement Efforts of the Federal Antitrust Agencies in 2011
Having filed over 100 cases in the last 12 months, the Department of Justice Antitrust Division was especially active in 2011. The vast majority of those cases were criminal matters; however, 2011 will most likely be remembered for the Antitrust Division’s merger enforcement efforts.
The Antitrust Division reviewed a number of mega-mergers in 2011. While the most of merger filings were approved by the Justice Department without challenge or with conditions in a consent decree, there were notable court battles.
Among the most significant of these was the federal/state challenge to AT&T’s proposed $39 billion acquisition of T-Mobile USA Inc. from Deutsche Telekom. The parties ultimately ab [...]
FTC Needs To Stop The Express Scripts-Medco Merger
Antitrust enforcement has certainly been revived at the Obama Justice Department. With recent cases against Comcast/NBC, health insurers and telecom firms, the DOJ has begun to demonstrate why antitrust enforcement is a critical bulwark for competitive markets.
No area is in greater need of an infusion of sound enforcement than healthcare. The healthcare debate demonstrated the dysfunction of healthcare intermediary markets — health insurer and pharmacy benefit manager (PBM) markets are highly concentrated and largely unregulated, and massive consolidation of health insurers and PBMs over the past decade has led to a long list of deceptive and anticompetitive practices.
Fortunately, the DO [...]
Federal Antitrust Agencies Offer Guidance to Health Care Providers Forming Accountable Care Organizations
Today, several federal agencies, including the federal antitrust agencies, issued rules and guidance for assisting health care providers in the formation of new accountable care organizations (ACOs).
An ACO is a group of health care providers or suppliers or a network of groups—often affiliated with a hospital—collaboratively manage and coordinate care for Medicare beneficiaries. Under the Patient Protection and Affordable Care Act, ACOs will serve fee-for-service beneficiaries through Medicare’s Shared Savings Program (MSSP) and must sign up with the Centers for Medicare & Medicaid Services (CMS) to participate in the program for at least three years, starting January 1, 2012. ACO par [...]
Antitrust Decision from Supreme Court Unlikely During Current Term
It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court denied a petition for review in a Federal Trade Commission antitrust enforcement action.
There have been far fewer petitions in antitrust cases than in previous terms, and only one petition for review of an antitrust decision remains pending before the Court. As a result, the October 2011 term will most likely be a repeat of the prior term, in which the High Court issued no antitrust decisions.
Review Denials
On the first Monday in October, the Supreme Court declined to [...]
Higher Premerger Filing Fees Included in Senate Appropriations Proposal
The Senate Appropriations Committee has approved legislation that, in addition to funding the Federal Trade Commission next year, would increase the Hart-Scott-Rodino (HSR) Act premerger filing fees that help fund the agency. The legislation (S. 1573) also would block efforts to relocate the headquarters of the FTC from its current location at 600 Pennsylvania Avenue, unless the government were to receive fair market value for the property.
The proposed Financial Services and General Government Appropriations Bill for Fiscal Year 2012 would increase the fees that parties must pay when notifying the FTC and Department of Justice Antitrust Division of a large acquisition or merger under the HS [...]
What Is a Relevant Market Anyhow?
The Eight Circuit, in FTC v. Lundbeck, Inc., No. 10-3458/3459 (Aug. 19, 2011), upheld the district court’s finding that the FTC failed to show a relevant market, and thus was unable to challenge the acquisition of the drug NeoProfen. It already owned a drug called Indocin IV, which, along with NeoProfen, was used to treat a condition in low-birth-weight infants, known as patent ductus arteriosus. Although these two drugs had different active ingredients, they were both approved by the FDA to treat this condition.
Physicians would choose which drug to use apparently based on their preferences, and somewhat different side effects.
This paragraph in the court’s decision caught my eye:
[...]FTC v. Lundbeck: Why, God, Why?
What really has the world come to when a merger to monopoly followed by a 1300% price increase survives Section 7 challenge?
That, sadly, seems to be the final result in Federal Trade Commission v. Lundbeck, which the Eighth Circuit affirmed last Friday. There the maker of one drug to treat a heart defect in premature babies acquired the only other such drug in existence, and then drastically raised the price of both. The Commission brought what one might be forgiven to have thought was a slam dunk legal challenge, but instead lost by bench verdict. The case seems now pretty irrevocably to have been styled a “fact” case—the Eighth Circuit decided it that way, and it seems quite [...]
Washington Attorney Ohlhausen Named to Replace Commissioner Kovacic at FTC
Maureen K. Ohlhausen, a Washington, D.C. attorney and former Federal Trade Commission staffer, will likely be returning to the agency as a Commissioner.
Yesterday evening, the White House announced President Barack Obama’s intention to nominate Ohlhausen to fill the position currently held by Commissioner William E. Kovacic. Kovacic’s term on the five-member Commission expires in September.
Ohlhausen is an attorney at Wilkinson Barker Knauer, LLP, where she is a partner in the firm’s privacy, data protection, and cybersecurity practice, according to the White House statement. She joined the law firm in 2009, shortly after leaving the FTC.
FTC Career
Ohlhausen served as Director of the FTC’ [...]
An Assessment of the Obama Administration’s Antitrust Enforcement Efforts
Yesterday, I released a paper at the Center for American Progress on the Obama antitrust record. In the paper, entitled “Reinvigorating Antitrust Enforcement: The Obama Administration’s Progressive Direction on Competition Law and Policy in Challenging Economic Times,” I assesses the Obama administration’s antitrust enforcement up to now and offer recommendations to strengthen that enforcement going forward.
The introduction and summary follow.
Our nation and our economy are at a critical juncture in antitrust enforcement. Increasingly, the markets that consumers depend upon the most—health care, pharmaceuticals, financial services, and agriculture, just to name a few—are becoming mor [...]
