Testifying on behalf of the FTC, Chairman Joseph J. Simons noted that in FY 2018, the agency took action to protect consumers in 22 merger cases, across a wide variety of industries. The agency compiled an impressive record of success in both contested merger challenges and important conduct cases. The Commission secured preliminary injunctions in two federal court merger cases, and in two other merger matters, the parties abandoned their plans after the Commission voted to initiate litigation. The Commission successfully litigated in federal court a monopolization case involving sham litigation, and issued administrative decisions in two other major conduct cases involving online advertising and pharmaceuticals.
The FTC has long prioritized combatting reverse payments and other types of anticompetitive behavior in the pharmaceutical industry. In March, the Commission issued a unanimous decision holding that Impax Laboratories and Endo Pharmaceuticals had entered into a reverse payment arrangement that delayed entry of generic competition for Opana ER, an extended release opioid used for pain relief. In its first “product hopping” case, the agency alleged that Reckitt Benckiser engaged in a scheme to shift patients away from its branded opioid-addiction treatment, Suboxone, which was facing generic competition. The Commission alleged that the company used deceptive means to transfer patients to a more lucrative version of the drug that enjoyed patent protection, while providing no legitimate health benefits.
The Commission also sued to block Evonik Industries AG’s proposed acquisition of PeroxyChem Holding company. The Commission alleged that the merger of the chemical companies would substantially reduce competition in the Pacific Northwest and the Southern and Central United States for the production and sale of hydrogen peroxide, a commodity chemical used for oxidation, disinfection, and bleaching. The agency has asked the court to preliminarily enjoin the merger pending the outcome of an administrative trial.
The Commission also filed an administrative complaint to block the merger of title insurance providers Fidelity National Financial, Inc. and Stewart Information Services. The parties have since abandoned the transaction.
The FTC also is committed to maintaining competition in technology markets. It recently voted unanimously to sue Surescripts, a major player in two markets associated with electronically transmitted prescription information, in federal court. The Commission complaint alleges that Surescripts, the operator of several multi-sided platform markets, engaged in exclusive dealing and other forms of exclusionary behavior to suppress competition and preserve its monopoly. Also this year, the agency’s Bureau of Competition established a Technology Task Force to consolidate and coordinate agency work in this increasingly important sector of the U.S. economy.
The Commission voted 5-0 to approve the testimony and include it in the formal record.
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