It’s that time of year again, when we reflect on what happened during the prior year and prepare for another one. Let’s take a moment to look at some trending antitrust topics from 2016, and take a stab at what we believe will be some of the hottest trending topics in antitrust law going forward.
Auto parts stalled?
While the gush of new cases has slowed to a trickle, it is remarkable to note that new cases are indeed still being filed – the most recent of which was filed in November 2016. Perhaps more remarkable than new cases however, is the glacial pace at which they appear to be moving. In fact, recent settlement filings indicate that the lead case – which is currently set for a class certification hearing in 2018, may settle completely, leaving the first class decision in those cases even farther out, despite the cases already passing their sixth birthday.
Have hospital, will merge. Or not.
The FTC experienced some setbacks in its efforts to block hospital and health care mergers earlier this year, with federal district courts unwilling to hold up mergers at the FTC’s requests. However, in a reversal of fortune, the 7th and 3rd Circuits delivered two victories and seemingly ratified FTC’s enforcement stance. In both cases, the District Courts invalidated the FTC’s attempt to define the correct geographic markets, making it impossible for the FTC to show that the merger would result in higher prices. Both Circuits reversed, reinforcing how the FTC analyzes the geographic markets and who are the real consumers at issue in these mergers. Having survived these two scares, the over/under for FTC losses in hospital merger cases may be infinitesimal.
Generics Take Center Stage
Legal writers have been predicting all year that generic drug company price-fixing lawsuits would be the next big wave of civil action, and the end of the year appears to be bringing about a realization of that prediction. It is well-known that the DOJ has been investigating generic drug companies for approximately two years, and as a result of the disclosure of those investigations, shareholder class action lawsuits began being filed in November 2016 against manufacturers Endo International, plc, Allergan plc and various predecessors and executives. The other shoe dropped when earlier this month the DOJ announced charges against two executives from Heritage Pharmaceuticals for fixing prices of antibiotics and diabetes treatments. Undoubtedly, there will be more to come on this in 2017.
Trumping Media Mergers?
While difficult to predict what President-elect Trump will do in the coming years, one thing he has not been shy about is voicing his displeasure with the media. Thus, we think it may be a fairly safe bet that media mergers are likely to receive some extra attention from the administration. We see you, AT&T and Time Warner. Trump was vocal about the proposed merger when it was announced in October: “As an example of the power structure I’m fighting, AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it’s too much concentration of power.”
Here’s wishing everyone a safe – and competitive – New Year!