FTC Chairman Hints At Revisions To US Merger Guidelines
March 27 2009 - 3:07PM
Dow Jones News
Federal Trade Commission Chairman Jon Leibowitz said Friday that
U.S. antitrust enforcers may consider revising their 17-year-old
guidelines for determining whether proposed business mergers are
anticompetitive.
Leibowitz, speaking at an American Bar Association conference in
Washington, also said that stopping pharmaceutical patent
settlements that delay the entry of generic drugs is one of the
FTC's highest priorities.
"These deals are anticompetitive," he said.
Advocates for revising the merger guidelines, published in 1992,
say the government's written merger policies no longer accurately
reflect the real-world practice of how U.S. antitrust agencies
review mergers, which creates uncertainty for companies considering
M&A transactions.
Critics also say the merger-guideline numbers used for measuring
business-market concentration are too low and flag too many mergers
as having possible anticompetitive effects.
Leibowitz, appointed by President Barack Obama last month to the
FTC chairmanship, said Friday, "We may want to revisit the merger
guidelines, which are badly in need of updating."
He said he would discuss the issue with Obama's nominee to be
the chief competition enforcer at the Justice Department, Christine
Varney, once she is confirmed.
The FTC and the Justice Department share antitrust regulatory
authority.
On the issue of generic-drug competition, Leibowitz said the FTC
continues to bring lawsuits challenging deals in which brand-name
drug makers pay their generic competitors to delay the introduction
of competing generic drugs. "We have more investigations in the
pipeline," he said.
But to date, the commission has not fared well against drug
makers in court. In one closely watched case, the FTC failed in its
challenge to an agreement between Schering-Plough (SGP) and generic
companies that delayed competing versions of K-Dur 20, a potassium
supplement.
Last month, the FTC sued three drug makers in a California
federal court, alleging that Brussels-based Solvay Pharmaceuticals
Inc., the maker of the testosterone drug AndroGel, entered into an
illegal agreement with generic drug companies Watson
Pharmaceuticals Inc. (WPI) and Par Pharmaceutical Cos. (PRX) to
delay the introduction of a generic competitor.
Leibowitz said he was hopeful that Congress would pass
legislation to bar the settlements. He said he expects legislation
on the issue to be re-introduced by lawmakers next week.
-By Brent Kendall, Dow Jones Newswires; 202-862-9222;
brent.kendall@dowjones.com