During his keynote speech at last week’s American Bar Association 2018 Antitrust in Healthcare Conference, Deputy Assistant Attorney General Barry Nigro reaffirmed the Justice Department’s commitment to continued antitrust enforcement across the healthcare industry, promising rigorous prosecution of price gouging and fraud, in addition to protecting competition in the healthcare marketplace.

Nigro’s address was wide-ranging, hitting on a number of enforcement areas for the DOJ’s antitrust division, including:

  • Price fixing and market allocation agreements. This includes an ongoing focus on generic drugs (recall our alert on Heritage Pharmaceuticals from early 2017)
  • No-poach agreements. Seen not just in the healthcare industry, “no-poach” agreements, where companies agree to not hire away each other’s employees and executives, are viewed as anticompetitive and therefore a target enforcement area.
  • Broader use of the Clayton Act. Under the Act, the government can recover treble damages for anticompetitive activities. Per Nigro, “We intend to exercise the authority Congress has provided, and are actively considering cases in this industry to bring.” 
  • Mergers. DOJ has been, and will continue to litigate healthcare industry mergers. Nigro cited current reviews of the CVS Health/Aetna and Cigna Corp./Express Scripts proposed mergers.

According to Nigro, few industry sectors are more important to Americans than healthcare, noting that, “Competition in healthcare means being able to afford live-saving surgery or critical medicines or an infant’s first check-up….That’s why few if any segments of our economy merit higher priority when it comes to antitrust enforcement.”