On July 24, 2017, Democratic Party leaders unveiled “A Better Deal,” their plan to improve economic conditions for the American working class.1 A key element of the Better Deal plan to “lower the cost of living for families” involves a “crack down on monopolies and the concentration of economic power that has led to higher prices for consumers, workers, and small business.”2 The plan includes proposals that could have significant effects on regulatory review of mergers as well as business practices in the pharmaceutical industry. More specifically, the proposals would raise the bar for obtaining merger approval from the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”); incorporate additional, non-competition-related factors into merger investigations; increase regulatory oversight of mergers; and increase regulatory scrutiny of prescription drug prices. Although the plan is a long way from being implemented, we summarize the main takeaways from the Better Deal plan relating to antitrust/competition and provide some perspective on the potential effects of the proposals.
The proposals in this area are based on the premise that some large mergers harm competition by “unfairly squeezing competitors, workers, customers and suppliers.”3 In the drafters’ view, this can result because the current antitrust merger review process only considers the “narrow, short-term effects of a merger on price and output” and the regulators have the burden of proving that the merger would be anticompetitive.4 To remedy this situation, the Better Deal plan proposes significant changes that are designed to require that regulators take “a broader, longer-term view” of the potential effects of mergers, and create “strong presumptions that market concentration can result in anticompetitive conduct.”5
- Strengthen presumptions of competitive harm in merger review analysis: Currently, market shares and market concentration are considered as factors in FTC and DOJ analyses of the competitive effects of mergers, along with a variety of other factors. The Better Deal proposal would strengthen the inference of competitive harm arising from increased market share and concentration, and “the largest mergers would be presumed to be anticompetitive” unless the merging parties establish that the transaction would be beneficial. Consequently, it would be more challenging for merging parties to overcome presumptions of harm and obtain agency approval of proposed mergers.
- Shift burden from the antitrust agencies to the merging parties to prove large mergers do not harm competition: The Clayton Act and case law currently place the initial burden on the antitrust agencies to establish that a transaction is anticompetitive if they want to challenge it. The Better Deal plan would shift the initial burden to the merging parties. Large mergers would automatically be blocked unless the merging parties justify the benefits of the transaction, which is designed to incentivize better corporate citizenship.
- Incorporate consideration of non-competition factors into merger analysis: The FTC and DOJ currently focus on a legal and economic analysis of competition and the likely competitive effects to determine whether to approve or challenge mergers. There has been a long-running debate about whether the agencies should consider non-competition-related factors in their merger review. Those against doing so have cited the risk of politicizing the process by confronting regulators with inquiries that may lead to conflicting recommendations due to conflicting policy goals, while those in favor have cited the benefits of a more holistic review of the effects of mergers on society. The Better Deal proposal represents a shift away from the current competition-only analysis and would task the agencies with additional inquiries, such as transactions’ potential effects on wages, employment, and small business. The program also would require the agencies to consider whether the merged company’s control of consumer data would stifle competition or jeopardize consumer privacy.
- Mandate post-merger agency review: Currently, FTC and DOJ review of the competitive effects of mergers typically ends once a transaction clears the Hart-Scott-Rodino Act premerger notification process (with minimal exceptions). In fact, the agencies even structure remedies with an eye toward minimizing the need for post-merger monitoring. The Better Deal proposal would require “frequent, independent reviews of mergers” to monitor their actual competitive effects and would require the agencies to take corrective measures if consummated mergers result in competitive harm.6 These measures could lead to costly uncertainty for merging companies that would face a heightened risk of having to “unscramble the eggs” after integrating their businesses.
- Increase scrutiny of specific industries where high concentration raises competitive concern: The background materials for the plan highlight a number of industries where, in the drafters’ view, corporate consolidation and high market concentration has resulted in competitive harm, or a pending merger has the potential to result in competitive harm. The industries mentioned include airlines, cable/telecom, beer, food/agriculture, and eyeglasses; however, “there are many more that have seen rising concentration that deserves careful scrutiny, and enforcement, in the 21st century economy.”7
- Create competition advocate to recommend action by the antitrust agencies: The Better Deal proposal would create a new competition advocate (“a 21st century ‘Trust Buster’”) to research competition, receive consumer complaints, and publicly recommend that the FTC and DOJ investigate any type of potentially anticompetitive conduct.8 This proposal alludes directly to President Theodore Roosevelt’s trust-busting era. If the FTC or DOJ declines to follow the competition advocate’s recommendation, the agencies would need to publicly justify that decision. The competition advocate’s role also would include regular reporting on the state of competition, including demographic breakdowns such as “the impact of market concentration on communities of color.”9
The premise underlying this area of the plan is that prices for prescription drugs have been increasing at “an unprecedented and unsustainable” rate and some pharmaceutical companies have implemented major price increases on life-saving drugs.10 The Better Deal proposes to “crack down on the companies that excessively raise prices” without justification.11
- Create a new government agency designed to combat price gouging: The Better Deal proposal would include creation of a “new ‘price gouging’ enforcer,” which would be an independent agency specifically dedicated to identifying “unconscionable price increases” and punishing manufacturers that impose them.12
- Allow Medicare Part D to negotiate with prescription drug manufacturers: The Secretary of the Department of Health and Human Services (“HHS”) currently is not allowed to negotiate drug prices directly with prescription drug manufacturers on behalf of Medicare Part D enrollees. The Better Deal program would eliminate this restriction.
- Require public notification of certain drug price increases: The Better Deal program would require drug manufacturers to notify the HHS of significant price increases and to justify those increases.13 This information would be made public.
The antitrust/competition proposals outlined in the Democratic Party’s Better Deal plan are unlikely to go far under the current Administration and Congress. Consequently, the drafters acknowledge that it is a long-range plan.14 However, the plan may signal the beginning of a shift to a new (or renewed) populist view of the purpose of the antitrust laws: “Without robust antitrust laws and enforcement, corporations lack the incentive to remain competitive and accountable and to compete on a level playing field. … In order to level the playing field for American workers, we need to re-invigorate and modernize our antitrust laws as progressive Democrats and Republicans did during the early 20th century.”15