Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor

Gregory A. Brower, Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, and a member of Washington Legal Foundation’s Legal Policy Advisory Board.

Federal prosecutors in the Southern District of New York unveiled the unprecedented criminal charges against a major drug distributor and two senior company executives. For the first time, prosecutors deployed federal criminal laws typically used to charge street dealers and major traffickers against an otherwise legal pharmaceutical company and its executives. The alleged illegal criminal conduct spans almost a decade during which time the company, Rochester Drug Co-Operative (“RDC”), saw its sale of oxycodone increase almost tenfold to 42 million doses in 2016. The indictment alleges that top company officials “made the deliberate decision” to not investigate and alert federal regulators to what they knew were pharmacy sales of their products to people who wanted them for nonmedical uses. Continue reading “Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor”

Updated Vertical Merger Guidelines May Be on the Horizon

M. Sean Royall, Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners, and Chris Wilson and Chris Kopp, Associates, Gibson, Dunn & Crutcher LLP

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The Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division (DOJ) promulgated the standing guidance relating to vertical and conglomerate mergers—the Non-Horizontal Merger Guidelines—in 1984.  Relative to the Horizontal Merger Guidelines, which were updated in 2010, this guidance is long in the tooth.

That may soon change.  On March 29, 2019, at the ABA Antitrust Spring Meeting, DOJ Antitrust Division Assistant Attorney General Makan Delrahim noted that the agency has been working to update its vertical merger guidance.  The announcement comes in the wake of several notable enforcement actions involving the combination of businesses that do not compete, but instead operate at different levels of the supply chain, including Comcast/NBCU, AT&T/Time Warner, CVS/Aetna, and Staples/Essendant.

The analytical approach applied to these and other FTC and DOJ vertical merger matters has not been transparent or consistent, and AAG Delrahim acknowledged that the business community would benefit from “knowing where we stand from an enforcement standpoint.”  FTC Chairman Joe Simons generally agreed with this sentiment, but he also cited the challenges in finding a consensus on the appropriate framework for analyzing vertical mergers between the agencies and within the agencies themselves.  The FTC commissioners have split 3-2 along party lines in two recent vertical mergers—Staples/Essendant and Fresenius/NxStage—highlighting the ongoing debate within the FTC.   Continue reading “Updated Vertical Merger Guidelines May Be on the Horizon”