Antitrust Chronicle^® – Healthcare

Dear Readers,

More than any sector, healthcare has come under particular scrutiny in recent years. The reasons are almost too obvious to state. The pandemic; soaring costs; difficulties in the supply chain for key medicines – all have propelled healthcare to the headlines on both sides of the Atlantic, and beyond.

The vagaries of medical research; the difficulties inherent to insurance; and the intrinsic risks based on investment into medical research all feed into this concern.

As Andrew Stivers, Emily Walden & Subramaniam Ramanarayanan illustrate, healthcare antitrust practitioners are grappling with the increasingly prominent value of patient data in competition. This data can be examined using traditional antitrust concepts. However, other stakeholders have raised more skeptical questions about consumers’ interests in mergers, particularly from a privacy perspective. Specifically, these relate to four key concerns: price discrimination, data security, intrinsic value and autonomy.

Amanda Wait & Antonia Mordinodraw out the conclusions deriving from Alvaro Bedoya’s confirmation; and how this has restored a Democratic majority on the Federal Trade Commission.  Under a Democratic majority, FTC Chair Khan would have the ability to continue to test novel theories of harm in various antitrust matters. Interestingly, Commissioner Bedoya’s background in privacy and technology could potentially broaden the scope of both merger and non-merger invest