US: Mergers Striking a Balance
By C. SCOTT HATAWAY & MICHAEL S. WISE
During the past year, the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DoJ) maintained a heightened level of enforcement, particularly in evaluating mergers involving high technology and health care. These areas require a balancing of complex policy considerations that can have different, though not always contradictory, objectives. In the intellectual property arena, both agencies have continued to tread carefully, a fact evidenced by the tendency to impose less onerous conduct remedies in place of structural fixes when aggregation of intellectual property rights creates the potential for anti-competitive harm. In contrast, the FTC and DoJ have pursued a more traditional approach in health-care mergers, concluding that the Patient Protection and Affordable Care Act (ACA) should not have any major impact on the agencies’ past practice of targeting health-care combinations for structural relief. Despite the apparent differences in treatment, in both instances the agencies have elected to adhere to traditional modes of analysis as much as possible, finding that their existing policy guidelines are sufficient to protect consumer welfare.
An extract from The Antitrust Review of the Americas 2014 -