Antitrust Implications of Pharmaceutical Pricing: from Martin Shkreli to EpiPen Corporations, Securities & Antitrust Practice Group Teleforum Wednesday, September 13, 01:00 PMFederalist Society Teleforum Conference Call
From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late. Much of the discussion centers on whether or not it is immoral to charge high prices. The question remains, however, about whether those business practices raise antitrust concerns. Can a high price in and of itself violate antitrust laws? What about policies that limit the channels through which a particular product is distributed? Professor Michael Carrier of Rutgers Law School will analyze these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases.
Intellectual Property Law Practice Group Podcast
- Prof. Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School
The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.
The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions were addressed.
Regulatory Transparency Project
- Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
- Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP
Every state has laws or regulations that require individuals seeking to offer a certain service to the public first to obtain approval from the state before they may operate in the state. Recent years have seen a significant proliferation of such laws, with less than 5% of jobs in the American economy requiring a license in the 1950’s to between 25-30% today. Although licensing in some occupations may benefit the public by reducing information asymmetry and/or ensuring a minimum quality level for a particular service, the significant growth in the number of occupations governed by some form of licensing requirements poses a potential threat to competition and consumer welfare. Our panel of experts will discuss these important issues.
This event took place at Crowell & Moring in Washington, DC, on August 9, 2017.
Corporations, Securities & Antitrust Practice Group Podcast
- Hon. Maureen Ohlhausen, Acting Chair of the U.S. Federal Trade Commission
- James Cooper, Associate Professor, Scalia Law School at George Mason University
- Sarah Oxenham Allen, Senior Assistant Attorney General, Office of the Attorney General of the Commonwealth of Virginia
- Moderator: Koren W. Wong-Ervin, Director, Global Antitrust Institute, Scalia Law School at George Mason University
- Moderator: Lisa Kimmel, Senior Counsel, Crowell & Moring LLP
With a change in administration, businesses and consumers alike are searching the tea leaves for indications about how new policy setters will analyze market power, mergers and acquisitions. Will economic analysis play a greater or lesser role? Will the conventional distinctions between horizontal and vertical mergers persist? How will consumer interest be weighed? On the international front, is foreign countries’ use of competition laws to influence or judge American businesses on the rise and, if so, to what effect?
Corporations, Securities & Antitrust Practice Group
- Hon. Joshua D. Wright, Professor of Law, Antonin Scalia Law School, George Mason University
Antitrust policy during much of the Obama Administration was a continuation of the Bush Administration’s minimal involvement in the market. However, at the end of President Obama’s term, there was a significant pivot to investigations and blocks of high profile mergers such as Halliburton-Baker Hughes, Comcast-Time Warner Cable, Staples-Office Depot, Sysco-US Foods, and Aetna-Humana and Anthem-Cigna. How will or should the new Administration analyze proposed mergers, including certain high profile deals like Walgreens-Rite Aid, AT&T-Time Warner, Inc., and DraftKings-FanDuel?
This lively luncheon panel discussion covered these topics and the anticipated future of antitrust enforcement. This event was held on June 9, 2017, at the National Press Club in Washington, DC.
- Albert A. Foer, Founder and Senior Fellow, American Antitrust Institute
- Prof. Geoffrey A. Manne, Executive Director, International Center for Law & Economics
- Hon. Joshua D. Wright, Professor of Law, George Mason University School of Law
- Moderator: Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
National Press Club