‘Hipster Antitrust’ Might End the Megamerger Party

(Bloomberg Opinion) -- A few months ago, a group of Democratic senators, several of them presidential candidates and all members of the Senate’s antitrust subcommittee , wrote a letter to Joseph Simons, the Republican chairman of the Federal Trade Commission, to criticize two monster pharma deals under regulatory review: the $63 billion Allergan PLC-AbbVie Inc. merger, and Bristol-Myers Squibb Co.’s $74 billion purchase of Celgene Corp.

Consolidation in the pharmaceutical industry, the senators wrote,

is occurring against a backdrop of ever-rising prescription drug spending….It is more important than ever that the FTC take appropriate action to protect consumers. The Federal Trade Commission must carefully consider whether the proposed transactions may lessen competition, stifle innovation, or harm consumers.

“The proposed AbbVie/Allergan and Bristol-Myers Squibb/Celgene transactions,” they added, “raise significant antitrust issues.”

The FTC has not yet ruled on the Allergan-AbbVie deal, which was only announced in June, and which the companies hope to complete in early 2020.

But on Friday, Simons and the two other Republican commissioners on the five-member FTC brushed aside the concerns of the Democrats and approved the Bristol-Myers Squibb deal with Celgene. Its only condition was that Celgene sell Otezla, its blockbuster psoriasis drug, apparently because Bristol-Myers Squibb has a promising psoriasis drug of its own in a phase 3 trial. The FTC has historically frowned on merged drug companies keeping overlapping drugs, fearing excessive market control.

The FTC’s two Democratic commissioners, Rohit Chopra and Rebecca Kelly Slaughter, dissented, something Chopra in particular has made a habit of doing since he joined the FTC in 2018. During the Obama administration, Chopra was the student loan ombudsman at the Consumer Financial Protection Bureau, where he attempted to spur competition in student lending.  At the FTC, he quickly gained a reputation for being in the vanguard of what’s sometimes called “hipster antitrust” — the effort to infuse new thinking into the antitrust arena.

Much of this new thinking has been spurred by the rise of the big three tech giants, Facebook Inc., Alphabet Inc.’s Google, and Amazon.com Inc. Chopra has criticized the fines the FTC has levied against Facebook and YouTube (which is owned by Google), saying that “when a company can pay a fine from its ill-gotten gains, that’s not a penalty — that’s an incentive.”  He seeks remedies that will diminish their market power and permanently alter their behavior.

But Chopra isn’t just focused on Big Tech. He believes that in industry after industry, concentration has gone too far. The result, he concludes, has been less innovation, higher barriers to entry for new market entrants and higher prices for consumers. And because the FTC must approve mergers in a variety of sectors — chemical companies, agricultural concerns and, yes, pharmaceuticals — he is in a position to do something about it. Or rather, he may be soon, depending on the result of the 2020 election.

Which is also why his dissents are worth noting. They offer an insight into how a Democratic administration might tackle market power and industry consolidation at a time when the status quo no longer seems acceptable.

At the FTC, there has long been a bipartisan consensus that so long as two drug companies didn’t have overlapping products — or if they were willing to divest them — the merger would be approved. This long-standing practice, Chopra wrote in his dissent, is no longer good enough: “Some evidence shows that these mergers have choked off innovation, creating harms that are immeasurable for those waiting for a cure.”  

He then lays out all the elements of Bristol-Myers Squibb merger with Celgene that he believes the FTC should have considered:

This massive $74 billion merger between Bristol-Myers Squibb (NYSE: BMY) and Celgene (NASDAQ: CELG) may have significant implications for patients and inventors, so we must be especially vigilant. In my view, this transaction appears to be heavily motivated by financial engineering and tax considerations (as opposed to a genuine drive for greater discovery of lifesaving medications), without clear benefits to patients or the public….In addition, there are also concerns about a history of anticompetitive conduct. Expansive investigation for mergers like these is time well spent.

He then goes on to list the questions he believes the FTC should have tried to answer—questions that go well beyond overlapping drugs:

Will the merger facilitate a capital structure that magnifies incentives to engage in anticompetitive conduct or abuse of intellectual property? Will the merger deter formation of biotechnology firms that fuel much of the industry’s innovation? How can we know the effects on competition if we do not rigorously study or investigate these and other critical questions? Given our approach, I am not confident that the Commission has sufficient information to determine the full scope of potential harms to competition of this massive merger.

Here is something else Chopra believes: The FTC has plenty of statutory authority to bring antitrust actions — or block mergers on antitrust grounds. It’s just that it has rarely used that authority, preferring instead to take the same laissez faire approach as the Justice Department and the courts. “What we’re advocating is not radical,” Chopra told me recently. “It’s a restoration. We have to see this as a core part of the economic policy tool kit.”

So far in this early phase of the presidential race, corporate executives have tended to focus on, say, Elizabeth Warren’s wealth tax. That’s understandable, but a wealth tax will require Congress to pass a bill. So will Medicare For All, and any number of policies the various Democratic candidates hope to implement.

But changing the government’s approach to antitrust — getting tougher on mergers and maybe even calling for some companies to be broken up — doesn’t require legislation. When a group of senators (some of whom also happen to be presidential candidates) writes to the FTC calling for greater scrutiny of a big pharma merger — and a leading light of the new antitrust movement is in the vanguard — it’s a pretty good bet that this is one thing that will change if there’s a new administration.

Brace yourselves, Corporate America. The merger party may be coming to an end.

Its official name is the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights.

Chopra’s dissent links to this 2018 NPR article, about the steps Celgene took to keep its multiple myeloma drug, Revlimid, away from generic competition.

To contact the editor responsible for this story: Timothy L. O'Brien at tobrien46@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Joe Nocera is a Bloomberg Opinion columnist covering business. He has written business columns for Esquire, GQ and the New York Times, and is the former editorial director of Fortune. His latest project is the Bloomberg-Wondery podcast "The Shrink Next Door."

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