Diana Moss discussed CVS/Aetna with Capitol Forum.
AAI President and Advisors to Speak at June 14-15 Federal Trade Commission/U.S. Dept. of Justice Workshop on Enforcing the Antitrust Laws in the Pharmaceutical Industry
AAI President, Diana Moss, and AAI Advisory Board members, Michael Carrier and Barak Richman, will speak at the upcoming joint FTC/DOJ workshop: The Future of Pharmaceuticals: Examining the Analysis of Pharmaceutical Mergers on June 14, 2022 and June 15, 2022. Moss will be joined on the panel, Concentration Levels in the Pharmaceutical Sector, by Patricia Danzon, Wharton School, University of Pennsylvania and Rena Conti, Boston University, Questrom School of Business. The panel will be moderated by Thomas DeMatteo, U.S. Department of Justice. AAI Advisor, Barak Richman, Duke University School of Law, will speak on the panel, Broken Fixes? Remedies in Pharmaceutical Mergers. Michael Carrier, Rutgers Law School, will speak on the panel Prior Bad Acts as Factors in Pharmaceutical Merger Reviews. On June 7, 2022, the FTC also announced a long overdue and welcome inquiry into the pharmacy benefit manager (PBM) industry under the agency’s 6(b) authority.
From the FTC website (condensed):
The Federal Trade Commission and the U.S. Department of Justice, Antitrust Division, will host a two-day public, virtual workshop to explore new approaches to enforcing the antitrust laws in the pharmaceutical industry. The workshop, organized by FTC and DOJ staff, offices of state attorneys general, and international enforcement partners, will take place virtually from 9:00am to 12:00pm EDT on Tuesday, June 14 and 9:00am – 11:30am on Wednesday, June 15. The workshop is the culmination of the Multilateral Pharmaceutical Merger Task Force, formed in March 2021 by then-Acting Chairwoman Rebecca Kelly Slaughter to consider how to address the varied competitive concerns that pharmaceutical mergers and acquisitions raise. Commissioner Slaughter’s keynote will start the first day of the workshop, followed by plenary sessions on market concentration in the pharmaceutical sector and merger remedies. The second day will feature sessions on innovation aspects of pharmaceutical mergers and how conduct by pharmaceutical companies affects merger analysis.
A selection of AAI work on competition and the pharmaceutical industry can be found at:
AAI Has Allergic Reaction to Misguided Decision in EpiPen Monopolization Case (Sanofi v. Mylan) (Amicus Brief – 2021)
From Competition to Conspiracy: Assessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector (Report – 2020)
AAI Urges Third Circuit to Preserve Product Hopping Case on Behalf of Victims of the Opioid Epidemic (In re Suboxone Antitrust Litigation) (Amicus Brief – 2020)
AAI Testifies on Behalf of Consumer Groups at Rare Tunney Act Hearing on Proposed Merger of CVS and Aetna (Letter to DOJ/Testimony – 2019)
Healthcare Intermediaries: Competition and Healthcare Policy at Loggerheads? (Report – 2012)
Selected works from AAI Advisors Carrier and Richman can be found at:
The Neglected Concern of Firm Size in Pharmaceutical Mergers (Antitrust L. J., forthcoming 2021)
Playing Both Sides? Branded Sales, Generic Drugs, and Merger Policy (Hastings L. J., 2020)
The Evolving Pharmaceutical Benefits Market (J. Am. Med. Assoc., 2018)
Pharmaceutical M&A Activity: Effects on Prices, Innovation, and Competition (Loy. U. Chi. L. J., 2017)
AAI Resources on Competition and the Healthcare Supply Chain
The current COVID-19 public health crisis highlights the critical competition, public policy, and security issues relating to the healthcare supply chain. At a time when some functions within the healthcare system are temporarily immunized from the antitrust laws, it is essential to emphasize the importance of vigorous antitrust oversight and the benefits of competition for the welfare of consumers, healthcare workers, and innovation.
AAI has produced legal, economic, and institutional analysis of healthcare competition issues for over two decades. This evidence-based analysis touches on all aspects of the supply chain, including the adverse effects of consolidation at the provider, insurer, and intermediary levels; the debate around bargaining power; and the importance of diversity and redundancy on the stability and safety of the supply chain.
Below is a sampling of key healthcare supply chain issues for which AAI has generated research, education, and advocacy to inform and engage the antitrust enforcement and competition policy communities. This body of work also serves in a vital role to inform longer term responses to the current public health crisis and to suggest the importance of a broader public policy framework for ensuring competition in this critical sector. Note: AAI resources on competition in the pharmaceutical sector can be located separately under “Health & Pharmaceuticals” section of our website.
COVID-Related Issues
March 24, 2020 – AAI Calls for Stronger Antitrust Safeguards in Government Responses to COVID-19 Crisis
March 31, 2020 – Can Competition Save Lives? The Intersection of COVID-19, Ventilators, and Antitrust Enforcement
April 2, 2020 – Barak Orbach on Competition Policy and COVID-19
May 7, 2020 – When COVID-19 is the Symptom and Not the Disease: Consolidation, Competition, and Breakdowns in Food Supply Chains
Healthcare Supply Chain Issues
June 29, 2016 – AAI Tells Court to Dismiss State Action Appeal (Teladoc v. Texas Medical Board)
November 10, 2014 – CVS Takes Its Anti-Smoking Policy to the Next Level: AAI Urges Antitrust Scrutiny of Anticompetitive Scheme Masquerading as a Drive for Public Health
September 12, 2014 – AAI Urges Massachusetts Court to Reject Conduct Remedy for Anticompetitive Hospital Merger
May 7, 2012 – AAI Issues White Paper “Healthcare Intermediaries: Competition and Healthcare Policy at Loggerheads?”
Health Insurer Mergers
June 4, 2019 – AAI Testifies on Behalf of Consumer Groups at Rare Tunney Act Hearing on Proposed Merger of CVS and Aetna
December 18, 2018 – AAI Asks DOJ to Explain Its Approval of CVS-Aetna Merger
October 10, 2018 – AAI Says DOJ’s Approval of CVS-Aetna Merger Imperils Competition and Consumers in Critical Parts of Healthcare Supply Chain
March 17, 2017 – AAI and Consumer Groups Urge Court to Affirm Injunction Blocking Anthem-Cigna Merger (United States v. Anthem)
January 11, 2016 – AAI Weighs in on Aetna-Humana and Anthem-Cigna Health Insurance Mergers, Says DOJ Should “Just Say No”
Law360 Highlights AAI’s New Hire
Law 360 covered AAI’s hiring of Laura Alexander as Vice President of Policy in the January 29 article “New AAI Policy Exec Joins Amid Critical Moment For Antitrust.” The article follows.
The American Antitrust Institute is starting 2020 with a new vice president of policy, a Cohen Milstein Sellers & Toll PLLC alum who wants to leverage the organization heft in the areas of education, advocacy and research as competition policy becomes a central tenet for this year’s presidential campaigns.
Laura Alexander started Jan. 6 at AAI, which bills itself as an advocate for rigorous antitrust enforcement and has for years been an important player in competition cases and legislation. Alexander said she wants to continue that advocacy, with an eye toward extending the group’s role as a resource for antitrust litigants and enforcers.
“There is a real need for reliable, thorough, thoughtful analysis on the practical issues that antitrust litigants are grappling with on a regular basis,” Alexander said, citing topics such as burdens of proof and evidentiary standards. “These areas are where much of the de facto evolution in antitrust enforcement takes place, and are critically important to effective competition policy.”
“I would like to see AAI do more work in these areas, in the form of research, statistics gathering, education and advocating for revision of procedural or evidentiary rules where needed,” she added.
The organization’s voice, including through amicus participation, has already played a central role in important antitrust disputes, including last year when AAI President Diana Moss testified in a first-of-its-kind evidentiary hearing over a U.S. Department of Justice deal clearing CVS’ purchase of Aetna. Several outside groups tried — and ultimately failed — to convince a D.C. federal judge to reject that deal, Moss was put on the stand in an effort to present a broad argument that the merger as allowed would harm competition.
The CVS-Aetna case wasn’t the only time AAI has found itself at odds with Trump administration antitrust enforcers.
The group has been deeply critical of the DOJ deal permitting T-Mobile to buy Sprint, as well asthe department’s arguments that so-called no-poach arrangements found in franchise agreements should not be treated as automatically illegal but should instead be considered under the harder-to-prove rule of reason standard, which allows parties to try and justify allegedly anti-competitive conduct.
Alexander acknowledged in an interview with Law360 that AAI has its disagreements with the DOJ and its fellow antitrust enforcers at the Federal Trade Commission. Specifically, she argued that the agencies should scrutinize mergers with a more skeptical eye, thinking about them in a more creative way beyond limiting reviews to “classic” concerns like a merger’s effect on prices in a given market.
“There is always room for more thoughtful research-based, law-based, economics-based, history-based approaches to really effective antitrust policy,” she said, asserting that many administrations have had room to make such improvements.
Despite the tension, Alexander said, AAI works hard to maintain a good relationship with the DOJ and the FTC.
“We’ve always sought to cultivate those relationships and be a resource, but at the same time not hesitated to speak up loudly when we disagree with the direction that the agencies are taking,” Alexander said.
AAI also has important relationships with private antitrust enforcers and state attorneys general, who’ve taken on an increasingly prominent role in competition law. Recently, attorneys general have sometimes gone their separate ways from the DOJ, including by launching their own separate investigations, sometimes even finding themselves directly at odds with the agency.
Washington State’s attorney general, for instance, criticized the DOJ’s no-poach comments. And more than a dozen state enforcers, all Democrats, are currently waiting on a decision in their lawsuit challenging the T-Mobile and Sprint merger, arguing that the DOJ merger clearance settlement permitting that tie-up does not adequately safeguard competition. If the states win, it would be a powerful blow to federal efforts to dominate merger policy.
As for AAI, Alexander said that continuing to build its relationships with enforcers at all levels will be a priority for the group in the months and years ahead.
Alexander said her own experience points to the value of partnerships between enforcers, including between private litigants and state attorneys general.
Alexander was on the Cohen Milstein team that represented the United Food and Commercial Workers benefit trust in an antitrust case against Northern California hospital giant Sutter Health. That deal ended with a December 2019 settlement between Sutter, California’s attorney general and private plaintiffs valued at $575 million.
“I feel very good about the results we were able to achieve for consumers, for members of those classes, and, in the most recent Sutter case, the people of the state of California,” Alexander said.
However, Alexander said that private litigation, while “critically important” to antitrust policy, “is necessarily limited in the scope of what it can do.” So after being approached by a member of AAI’s advisory board, she turned to a more policy-oriented approach to competition policy at the organization, participating “at a broader level in antitrust.”
Alexander first developed an interest in competition law as a paralegal in Latham & Watkins LLP’sintellectual property group.
While at Latham, Alexander worked on the firm’s successful defense of the DOJ lawsuit challenging Oracle’s purchase of PeopleSoft in 2004. The experience was “an incredible introduction to antitrust” at what was then a “tremendous focal point” for policy development, Alexander said. She also got to work with leading antitrust lawyers.
“I got the antitrust bug then and I haven’t gotten rid of it since,” said Alexander, who earned her law degree from the Georgetown University Law Center in 2007.
A mathematics major as an undergrad at Reed College, Alexander said she’s drawn to the analytical approach of economics — an important part of antitrust. She said she has also gained a fondness for the deep dives into new industries required for the practice.
“Six years ago I didn’t know very much about the hospital industry. Now I feel like I could write a textbook on it,” she said. “I also love that antitrust is so dynamic. The statutes that it’s based on are very spare. And so it’s allowed to constantly evolve as our understanding evolves.”
The law, like AAI, must “constantly adapt” with that evolution, Alexander said. Through AAI’s research and analysis, Alexander said, the group is able to take a leading role in conversations about how antitrust law must evolve. The presidential election in particular allows a crucial moment to shape antitrust policy, she said.
Antitrust generally has taken up an important spot in public discourse, Alexander said. A belief in its prominence is shared across the bar and beyond, as policymakers and experts weigh arguments for slow progression of antitrust law against calls for a radical transformation, sometimes referred to as the “hipster antitrust” movement.
AAI’s role in those conversations, Alexander said, is to ensure that new voices less familiar with antitrust are well-versed in law, economics and policy history.
“With the work that AAI does, we can inform, educate and improve the quality of those conversations and the quality of the results,” she said.
Prioritizing where to expend time and energy will be a particular challenge for AAI in the year ahead, according to Alexander.
“There are so many critical moving factors in antitrust right now that to choose among them, to choose the cases that merit amicus participation, to choose the policy proposals that are most relevant and merit the most discussion and to do all that in a really complex and dynamic environment I think is a challenge,” she said.
And Alexander knows how to meet challenges.
She’s a nationally ranked short-track speedskater with the Potomac Speedskating Club. Alexander said competing with the club is a humbling experience, as she skates alongside young athletes she called “some of the most hardworking, dedicated, impressive individuals I’ve ever had the pleasure to know.”
But the sport also requires striking a balance with the busy work of being a lawyer. Alexander said she tries to carve out two days a week for training, and find a rink wherever she goes.
“I can tell you where all the rinks are in Kansas City,” Alexander said.
AAI Year in Review 2019
best,
Diana Moss
President, American Antitrust Institute
AAI YEAR IN REVIEW 2019
Commentary: “Why The Sprint-T-Mobile Merger Epitomizes What Has Gone Wrong With U.S. Merger Enforcement” February 12, 2019
Amicus Brief in Google v. Oracle February 26, 2019
Comments to DOT in SkyTeam-Virgin Atlantic Antitrust Immunity Proceeding February 26, 2019
Reply Comments to DOT in SkyTeam-Virgin Atlantic Antitrust Immunity Proceeding March 13, 2019
AAI Competition Roundtable: “Challenging Monopolies in Court – Where Have We Been and Where Are We Going?” March 14, 2019
Letter to the U.S. DOJ Asking for Reconsideration of Policy Reversal for Standard-Essential Patents March 19, 2019
Comments to FERC with APPA and NRECA on Filing Requirements for Market-Based Rate Authority March 19, 2019
Article in ABA Air and Space Lawyer: “Alliances and Antitrust Immunity: Why Domestic Airline Competition Matters” April 16, 2019
Letter to U.S. DOJ Opposing Statement of Interest on Franchise No-Poaching Agreements May 2, 2019
Commentary: “The Vital Role of Private Antitrust Enforcement in the U.S.” May 14, 2019
Commentary: “Cracking Pepper: An Analysis of the Supreme Court’s Latest Pronouncement on the Indirect Purchaser Rule” May 17, 2019
Comments to U.S. DOJ on ACPERA Reauthorization May 31, 2019
Testimony in D.C. District Court in Tunney Act Hearing in CVS-Aetna Merger June 4, 2019
Class Action Issues Update June 14, 2019
20th Annual Policy Conference: “Strengthening Antitrust Enforcement” June 20, 2019
Letter to the U.S. DOJ on Google’s Proposed Acquisition of Looker July 8, 2019
White paper on Weak Merger Enforcement in the Digital Technology Sector July 8, 2019
White Paper on Auto-Parts Supercartel July 16, 2019
Amicus Brief in FTC v. AbbVie July 29, 2019
Amicus Brief in Stromberg v. Qualcomm August 12, 2019
Final Comments to DOT in the SkyTeam-Virgin Atlantic Antitrust Immunity Proceedings August 19, 2019
Economic analysis of U.S. DOJ’s Settlement in the Sprint-T-Mobile Merger August 21, 2019
Letter to House Judiciary Committee on Antitrust Rights and Forced Arbitration September 6, 2019
Testimony before Senate Judiciary Committee on Competition in Digital Technology Markets September 24, 2019
AAI Competition Roundtable: “Stemming the Tide of Competitive and Consumer Harm in Pharmaceutical Markets” October 2, 2019
Comments in Sprint-T-Mobile Tunney Act Proceeding October 11, 2019
Comments to the U.S. DOJ on Antitrust Treatment of Labor-Market Restraints in Complex Business Settings October 24, 2019
Letter to House Judiciary Committee on Antitrust Exemptions for News Content Creators October 28, 2019
13th Annual Private Antitrust Enforcement Conference November 12, 2019
Class Action Issues Update November 7, 2019
Amicus Brief in FTC v. Qualcomm December 2, 2019
Amicus Brief in AAM v. Becerra December 10, 2019
Amicus Brief in Impax Laboratories v. FTC December 17, 2019 (forthcoming)
AAI Says Antitrust Enforcement Sinks to New Low with DOJ Decision in Sprint-T-Mobile Merger
Today, the U.S. Department of Justice (DOJ) allowed the merger of wireless carriers Sprint and T-Mobile to proceed. DOJ’s proposed remedy patches together the divestiture of limited wireless assets and access conditions in the hope that Dish Network, a satellite TV company, will fully restore the competition lost by the merger. The DOJ’s settlement follows after the Federal Communication Commission gave the nod to the merger with similar conditions and promises by the companies to cap wireless prices.
AAI President Diana Moss stated, “The most effective remedy for this presumptively illegal merger was for the government to block it. Instead, the DOJ has allowed the wireless industry to consolidate to three players.” A June 2018 AAI commentary, Why Sprint-T-Mobile Should be DOA at the DOJ, highlighted that a 4-3 merger is a setup for collusion that will harm consumers through higher prices, lower quality, and little to no innovation.
Under DOJ guidelines, an effective remedy should fully restore competition lost by a merger. In many cases, a merger is too big and harmful to fix through divestitures and other remedies. The Sprint T-Mobile merger fits into this category. “DOJ has failed to make the basic and required showing. The remedy most certainly will not fully restore competition,” Moss said.
Dish Network, a company with no track record in wireless telecommunications, will have the near-impossible task of hitting the ground running to re-inject and maintain the competitive discipline lost by the elimination of a major national market player. But the bar will be higher in an even more concentrated wireless market.
Merger remedies have been the subject of significant scrutiny in the last several years as key sectors have become more concentrated. Pre-Trump era enforcers litigated anticompetitive mergers instead of accepting ineffectual remedies, and they prevailed in blocking those deals in court. Early in its tenure, the Trump Administration’s DOJ heralded the importance of strong remedies in moving to block AT&T-Time Warner.
“We have seen the DOJ slip significantly in its willingness to be a strong enforcer of the U.S. antitrust laws,” explained Moss. In CVS-Aetna, the Division’s remedy to divest Aetna’s Medicare Part D Prescription Drug Plans to WellCare Health was criticized by AAI and others as ineffective. That remedy is currently the subject of a Tunney Act proceeding in federal district court. “Consumers will suffer dearly for these DOJ decisions,” Moss added.
DOJ’s capitulation in Sprint-T-Mobile comes despite strong evidence from past enforcement actions and other countries’ experience in wireless. This evidence reinforces the anticompetitive and anti-consumer effects of highly concentrative 4-3 mergers.
Moss said, “We said it a year ago, and we’ll say it again: the Sprint-T-Mobile merger is presumptively illegal. We look forward to the judicial review of this settlement, which assuredly is not in the public interest, and we renew our gratitude to State enforcers who are willing to stand up for consumers and fill the void created by the federal government,” she concluded.
AAI Resources on Healthcare Consolidation
June 19, 2018
Moss Testifies at California Department of Insurance Hearing on CVS-Aetna Merger
October 10, 2018
AAI Says DOJ’s Approval of CVS-Aetna Merger Imperils Competition and Consumers in Critical Parts of Healthcare Supply Chain
December 18, 2018
AAI Asks DOJ to Explain Its Approval of CVS-Aetna Merger
June 4, 2019
AAI Testifies on Behalf of Consumer Groups at Rare Tunney Act Hearing on Proposed Merger of CVS and Aetna
May 7, 2012
AAI Issues White Paper “Healthcare Intermediaries: Competition and Healthcare Policy at Loggerheads?”
AAI’s Moss Participates in American Medical Association’s State Advocacy Summit
The American Medical Association (AMA) held its annual State Advocacy Summit on January 11-12 in Scottsdale, Arizona. The summit — Successful Advocacy in Turbulent Times — gathered state regulators and legislators, national competition enforcement and policy experts, physicians, and state medical societies.
Diana Moss served as panelist in the session “How do we navigate the post-consolidation world?” and moderated the session “Pharmacy benefit managers: What do they do and how should we regulate them?” AAI Advisors Tim Greaney and Ted Frech also served as panelists.
AAI’s competition research and advocacy work in healthcare was highlighted in discussions, including healthcare intermediaries, delivery and payment of healthcare services, and mergers of health insurers. AAI’s work on healthcare can be explored here.
AAI Year In Review 2018
To AAI’s Supporters:
I am pleased to report that in 2018, AAI implemented a diverse and high profile set of competition research, education, and advocacy initiatives. AAI’s multidisciplinary work is of exceptional quality and has demonstrated impact on antitrust enforcement and competition policy.
I invite you to take a look at our highlights from 2018. As you will see, this unique work is the reason why AAI remains the leader in focusing public and private competition enforcement priorities and shaping progressive competition policy.
We look forward to serving the public in 2019 as we extend important existing programs and take on new issues. Promoting competition that protects consumers, businesses, and society is more important than ever. The only way for AAI to fulfill its mission is through your support. So I ask you to please support the AAI in 2019 through a sponsorship or donation.
I look forward to another terrific year as AAI makes, with your help, further inroads and raises the profile of antitrust enforcement as a critical area of law and policy.
best,
Diana Moss
President, American Antitrust Institute
AAI Year In Review 2018
Amicus Brief in Cisco v. Arista January 5, 2018
Letter to DOJ on merger of Monsanto-Bayer February 8, 2018
Amicus Brief in Salt River v. Tesla Energy Operations February 22, 2018
Participated in three DOJ roundtables on antitrust and regulation March, April, and May 2018
Amicus Brief in Animal Science Products v. Hebei Welcome Pharmaceuticals March 5, 2018
Digital Platforms Roundtable March 22, 2018
Letter to DOJ on merger of CVS-Aetna March 26, 2018
White Paper: “Revisiting Antitrust Immunity for International Airline Alliances” March 27, 2018
White Paper: “Realigning Merger Remedies with the Goals of Antitrust” April 9, 2018
Spring Class Action Issues Update April 9, 2018
Letter to House Judiciary Committee opposing the SMARTER Act May 2, 2018
White Paper: “Part I: Competition in the Delivery and Payment of Healthcare Services” June 12, 2018
Amicus Brief in Oracle v. Google June 13, 2018
White Paper: “Part II: Competition in the Delivery and Payment of Healthcare Services” June 18, 2018
19th Annual Conference: Antitrust at a Crossroads – Plotting the Course for the Next Decade June 21, 2018
Analysis of the Antitrust Opinions of Supreme Court Nominee Brett Kavanaugh July 17, 2018
Comments to FERC on natural gas pipeline certification policy July 25, 2018
White Paper: “The Evolving Antitrust Treatment of Labor-Market Restraints: From Theory to Practice” July 31, 2018
Amicus Brief in U.S. v. AT&T August 14, 2018
Petition to FCC on merger of Sprint-T-Mobile August 28, 2018
White Paper: “Why the Proposed Sprint-T-Mobile Merger Should be DOA at the DOJ” August 28, 2018
Comments to FTC in In the Matter of Your Therapy Source August 31, 2018
17th Annual AAI Energy Roundtable: Energy Markets, Infrastructure, and Policy – Competition Issues and Priorities September 20, 2018
Participated in two FTC hearings on Competition and Consumer Protection in the 21st Century September and October 2018
Amicus Brief in Apple Inc. v. Pepper October 1, 2018
Report on competitive exclusion in category captain arrangements October 4, 2018
White Paper: “Reviving Merger Control: A Comprehensive Plan for Reforming Policy and Practice” October 9, 2018
Amicus Brief in Viamedia v. Comcast November 5, 2018
Amicus Brief in In re Asacol Antitrust Litigation November 1, 2018
Comments in FTC Competition Hearings November 15, 2018
Fall Class Action Updates Spring and Fall 2018
12th Annual Private Antitrust Enforcement Conference November 14, 2018
Food & Agriculture Competition Roundtable December 7, 2018
Article: “Realigning Merger Remedies with the Goals of Antitrust” December 11, 2018
AAI Files Comments in 3rd Round of FTC Competition Hearings December 15, 2018
Article: Merger Policy and Rising Concentration: An Active Agenda for Antitrust Enforcement
Article: Merger Policy and Rising Concentration: An Active Agenda for Antitrust Enforcement December 17, 2018
Article: Ohio v. Amex: Not So Bad After All? December 17, 2018
Tunney Act Comments to DOJ on Merger of CVS-Aetna December 17, 2018
Diana Moss Explains How Merger Review Compares Under Different Administrations (The Street)
Diana Moss was quoted in the November 7, 2017 The Street story Trump’s Antitrust Team Sends Mixed Message on M&A.
Did the specter of rejection send an ominous message that the Trump administration’s antitrust regime was going to be tough on dealmakers? Not necessarily, said Diana Moss, president of the American Antitrust Institute, who noted that it was a crossover merger that was reviewed by regulators in both the Obama and Trump administrations.
“That was a horizontal deal and a pretty bad one, very anti-competitive,” she said. “They were looking at that for a long time.”
“There are a growing lineup of cases that are going to be the test of the Trump administration,” Moss said. “Some cases will be a test of the administration’s stance on concentration.”
Moss said she was surprised that the FTC didn’t even issue a second request, which would have allowed for regulators to take a closer look at the markets involved, including the sourcing of natural and organic foods and the distribution of products to consumers.
“If these vertical mergers sail through you will start to see a real fundamental shift in the competition paradigm, where large systems only compete head to head and smaller unintegrated rivals have a much harder time getting into and staying in markets,” she said.
Moss said that the Monsanto-Bayer deal, if approved, would create a closed system where Monsanto’s traits, seeds and chemicals don’t work with rival products. She also raised concerns about a potential CVS-Aetna hookup, arguing that the combination could have incentives to exclude rival pharmacy benefit managers and other health insurers.