This article is part of the Life Sciences Industry 2025 Market Update. Click here to read the full newsletter.
Under the current administration, there have been significant shakeups at the antitrust enforcement agencies, including the FTC and the DOJ Antitrust Division, which have led to uncertainty regarding enforcement priorities. But at the same time, the agencies have reaffirmed their approach to mergers, and they continue to focus on anticompetitive activities affecting labor markets. Further, Executive Order No. 14273, "Lowering Drug Prices by Once Again Putting Americans First," signals that the administration intends to use antitrust tools to try to reduce the cost of prescription drugs in the United States.
The new FTC Chairman is Andrew N. Ferguson, who is joined by fellow Republican Commissioners Melissa Holyoak and Mark Meador. Commissioners Holyoak and Meador dissented on many Biden administration FTC actions. President Trump removed the FTC's Democratic Commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter, and those firings are being challenged in court. Abigail Slater was confirmed on March 12, 2025, as Assistant Attorney General for DOJ's Antitrust Division.
In December 2023, the FTC and DOJ issued revised Merger Guidelines, which had been in place since 2010 and guide the agencies' review of mergers and acquisitions to determine compliance with federal antitrust law. Some of these changes focus on firms that might seek to use a merger to cross-market bundling their products. The new guidelines also significantly lower the market concentration thresholds at which mergers are presumed to harm competition, articulate harms that may occur when a merger combines firms that supply products with a vertical relationship to each other, and devote substantial attention to the elimination of potential competition. On February 18, 2025, Chairman Ferguson announced that the 2023 Merger Guidelines are in effect and will guide FTC's merger-review analysis. Collectively, these guideline changes would seem to enhance the likelihood of the government challenging merger activity as anticompetitive. That said, to date we have not seen such a trend from the administration.
For the first time in over 45 years, the FTC adopted, on October 10, 2024, extensive changes to the notification form for acquisitions subject to review by the agencies under the Hart-Scott-Rodino (HSR) Act. Notwithstanding the change in administration, these changes went into effect on February 10, 2025. They include early termination of the 30-day initial HSR waiting period, expanded scope of documents that must be submitted (including internal strategic documents), and narrative responses. The new form is estimated to take three times more time to complete than the old form.
On February 26, 2025, the FTC announced a Joint Labor Task Force, a collaboration among the FTC and the Bureau of Consumer Protection, Bureau of Economics, and Office of Policy Planning. This task force is focused on targeting unlawful business practices, including no-poach, non-solicitation, no-hire agreements, and noncompete agreements; wage-fixing agreements; and deceptive job advertising. Also, this spring, the administration secured its first conviction in a wage-fixing case. In United States v. Lopez, Case No. 2:23-cr-00055 in U.S. District Court for the District of Nevada, Lopez, a home health agency executive, was convicted of conspiring to fix the wages for home health care nurses in Las Vegas. This success follows several notable litigation failures by the DOJ in the wage fixing/no poach arena by the Biden administration. We believe that the labor markets, and in particular wages, will remain a ripe area for either or both of governmental or private litigation activity, although we think the prior litigation failures have dampened the push several years ago to treat no-poach agreements as subject to per se, and criminal, liability.
The White House released Executive Order 14273 April 15, 2025, directing federal agencies to undertake a broad range of tasks aimed at reducing the costs of prescription drugs, some of which focus on the importance of robust competition, continuing a focus of the past several administrations on antitrust enforcement in the prescription drug industry. HHS is instructed to issue a report by October 12 aimed at accelerating competition for high-cost prescription drugs, including by accelerating approval of generics and biosimilars, as well as improving the process through which prescription drugs can be reclassified as over-the-counter medications. The administration also includes a specific provision: "Combating Anti-Competitive Behavior by Prescription Drug Manufacturers." HHS is directed to conduct joint public listening sessions with the appropriate personnel from DOJ, the Department of Commerce, and the FTC, and issue a report with recommendations to reduce anticompetitive behavior from pharmaceutical manufacturers, also by October 12, 2025. These actions make clear that prescription drug manufacturers will continue to face antitrust scrutiny.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
