2016 A Profile of Bio-pharma Consolidation Activity 43
violations in the health care realm, including pharmaceutical matters. 62 An important aspect of the work of the Health Care Division is overseeing mergers and acquisitions. 63 The Hart-Scott-Rodino Antitrust Improvements Act of 197664 establishes a federal system of premerger notification in order to prevent anticompetitive mergers and acquisitions. 65 Any deal valued at $76.3 million66 or more must be reported for review both to the FTC and the DOJ. 67 Parties must complete a “Notification and Report Form for Certain Mergers and Acquisitions” detailing information about each business involved in the transaction. 68 There is then a waiting period, typically thirty days, during which the parties may not move on the deal unless the government grants an early termination of the waiting period. 69 Upon review, the FTC may challenge any merger that in its view will “result in a substantial lessening of competition.” 70 An FTC challenge to a particular transaction is conducted in an administrative adjudication before an administrative law judge (ALJ). 71 Appeals from the initial ALJ decision may be brought to the full Commission; appeals from the full Commission decision may be brought in federal courts of appeal. 72 The FTC may also seek a preliminary or permanent injunction in federal district court. 73 The FTC has targeted some hospital and healthcare mergers and
62. FED. TRADE COMM’N, HEALTH CARE DIV., OVERVIEW OF FTC AN TITRUST ACTIONS IN PHARMACEU TICAL SERVICES AND PRODUCTS 1 (2013), https://www.ftc.gov/sites/default/ files/attachments/competition-policy-guidance/rxupdate.pdf [hereinafter FTC AN TITRUST ACTIONS]. 63. Id. at 26. 64. 15 U.S.C. § 18a (2015). 65. Premerger Notification Program, FED. TRADE COMM’N, https://www.ftc.gov /enforcement/premerger-notification-program (last visited Mar. 25, 2016); see also Merger Review, FED. TRADE COMM’N, https://www.ftc.gov/news-events/media-resources/mergers- and-competition/merger-review (last visited Mar. 25, 2016). 66. HSR Threshold Adjustments and Reportability – 2015 Edition, FED. TRADE COMM’N (Jan. 23, 2015, 12: 12 PM), https://www.ftc.gov/news-events/blogs/competition- matters/2015/01/hsr-threshold-adjustments-reportability-2015-edition ($76.3 million is the adjusted threshold amount for 2015). 67. Id. 68. FED. TRADE COMM’N, GUIDE I: WHAT IS THE PREMERGER NOTIFICATION PROGRAM?: AN OVERVIEW 6 (Mar. 2009), https://www.ftc.gov/sites/default/files/attachments/premerger- introductory-guides/guide1.pdf. 69. See id. at 9. 70. Carla A.R. Hine, FTC Merger Review Likely to Incorporate Analysis of Privacy Issues, NAT’L L. REV. (Mar. 3, 2015), http://www.natlawreview.com/article/ftc-merger- review-likely-to-incorporate-analysis-privacy-issues. 71. 15 U.S.C. § 45(b) (2006). 72. 15 U.S.C. § 45(c) (2006). 73. Id.