WEBVTT - 2017 Antitrust Outlook Promises Heavy Activity (Audio)

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<v Speaker 1>The numbers are shocking price hikes of at least two

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<v Speaker 1>and about ninety generic drugs sold in the US over

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<v Speaker 1>the past three years, maybe due to collusion among drug manufacturers.

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<v Speaker 1>That's according to a study that comes in the middle

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<v Speaker 1>of a Justice Department investigation into pharmaceutical price fixing. The

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<v Speaker 1>former CEO of Touring Pharmaceuticals, Martin Screlly, came under fire

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<v Speaker 1>for raising the price of dara prine more than fiftyfold.

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<v Speaker 1>He told Bloomberg that he would do it again. So

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<v Speaker 1>it's not like I'm surprising and saying to do it again.

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<v Speaker 1>Everybody is doing it. In capitalism, you try to get

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<v Speaker 1>the highest price for that you can for a product.

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<v Speaker 1>Screlly is facing trial on unrelated federal charges of securities fraud.

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<v Speaker 1>Last week, twenty States filed a civil complaint alleging executives

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<v Speaker 1>at companies agreed at trade shows, golf games, and private

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<v Speaker 1>dinners to pump up the cost of antibiotics and medication

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<v Speaker 1>used to treat diabetes. The bottom line is that right now,

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<v Speaker 1>there is little consumed comers can do about the price

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<v Speaker 1>of their drugs. Our guest is Jennifer Ree, senior litigation

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<v Speaker 1>analyst at Bloomberg Intelligence Jen the Antitrust Division of the

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<v Speaker 1>Justice Department has been looking into price fixing allegations for

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<v Speaker 1>the past two years. How widespread is the alleged collusion

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<v Speaker 1>among drug copies, among drug companies, and who are the

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<v Speaker 1>major players? Well, hi June, thanks for having me um.

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<v Speaker 1>You know it, we're just at the beginning, so I

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<v Speaker 1>think it's already widespread, but I believe it's probably going

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<v Speaker 1>to get even more widespread. And right now you're looking

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<v Speaker 1>at subpoenas at least received by you know, just about

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<v Speaker 1>every big generic company you can think of, you know, Milon, Teva,

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<v Speaker 1>Landet Impacts, Son Maine, par Pharma, which is owned by Endo. Now,

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<v Speaker 1>of course, just because these companies have gotten subpoenas doesn't

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<v Speaker 1>mean that they're involved in any kind of wrongdoing, but

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<v Speaker 1>it's at least at this point the d o J

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<v Speaker 1>has decided it's important enough to just spread out and

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<v Speaker 1>look at all of them. And in addition to that,

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<v Speaker 1>you actually have a lawsuit that's already been filed now

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<v Speaker 1>by the state of led by the state of Connecticut,

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<v Speaker 1>but joined by about nineteen other states, at least covering

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<v Speaker 1>two drugs. They're talking about an antibiotic, a very popular,

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<v Speaker 1>commonly used antibiotic called doxy cycling, and another medication for

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<v Speaker 1>oral diabetes called gliberride. And it seems like they have

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<v Speaker 1>some pretty good evidence, um, at least with based on

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<v Speaker 1>what they're talking about in that suit, that some of

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<v Speaker 1>these companies may have gotten together and talked about this. Um.

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<v Speaker 1>You know the important thing here when you played that

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<v Speaker 1>clip by Martin Screlly and and we were listening to

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<v Speaker 1>his comments, and I think for antitrust and the important

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<v Speaker 1>thing here is that companies can raise their prices unilaterally

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<v Speaker 1>and it's not necessarily a violation of the law. And

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<v Speaker 1>they can even watch what their competitors are doing. They

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<v Speaker 1>might see that a competitor raise the price and then

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<v Speaker 1>raise their price trying to make more money for the

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<v Speaker 1>company and for their shareholders, not necessarily against the law.

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<v Speaker 1>But June, what they can't do is get together and

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<v Speaker 1>decide collectively to agree, you know, hey, we're all beating

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<v Speaker 1>each other up competing. We need to stop doing that

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<v Speaker 1>because we can all raise our prices if we don't

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<v Speaker 1>do that. And that's what the DJ is looking at. Here.

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<v Speaker 1>Two executives of a small generic drug maker are preparing

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<v Speaker 1>to plead guilty to price fixing charges in January, and

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<v Speaker 1>those are the first criminal charges in this investigation. What

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<v Speaker 1>does that suggest about the future of the investigation. Well,

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<v Speaker 1>I'll tell you this, um, that is a really good

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<v Speaker 1>sign that there will be more private suits and that

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<v Speaker 1>those private suits will have some success. And I say

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<v Speaker 1>that because those executives, from what I understand, will not

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<v Speaker 1>only plead guilty, but they've agreed now to cooperate with

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<v Speaker 1>the government and they can do that, you know, for

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<v Speaker 1>some leniency, lower fines, lower you know, sent in jail sentences.

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<v Speaker 1>And what that means is they're just going to turn

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<v Speaker 1>over all their documents and tell them what they've been

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<v Speaker 1>doing and who they've been talking to. And basically they're

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<v Speaker 1>going to be a whistleblower. And that's really important here

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<v Speaker 1>because in these conspiracy cases and antitrust they're very, very

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<v Speaker 1>difficult to prove. You you can't just show the companies

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<v Speaker 1>raise their price, but you have to show an agreement.

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<v Speaker 1>And it's you know, it's very rare the companies are

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<v Speaker 1>getting together in a smoke filled room or executives and saying, hey,

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<v Speaker 1>let's all charge a hundred dollars for this product. So

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<v Speaker 1>usually plaintiffs are using circumstantial evidence, and again it can

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<v Speaker 1>be difficult to prove with circumstantial evidence. But where you

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<v Speaker 1>have whistleblowers, companies and executives willing to turn over materials,

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<v Speaker 1>um emails, maybe chat rooms or even uh, you know,

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<v Speaker 1>just discuss or testify about a discussion, you now have

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<v Speaker 1>some pretty good solid evidence against others. The average price jump,

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<v Speaker 1>according to the study among the ninety drugs, was fifty percent.

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<v Speaker 1>But as you said, increases alone or not proof of collusion.

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<v Speaker 1>What have the companies said to explain these hikes? You know,

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<v Speaker 1>I've thought about those hikes, and you look at the

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<v Speaker 1>graphs and they look pretty bad. And I have to

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<v Speaker 1>think in my head, if they really wanted to increase price,

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<v Speaker 1>fix and increase their price, why did they go so far?

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<v Speaker 1>You know, why didn't they do something that was less obvious.

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<v Speaker 1>What they are saying so far, at least as far

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<v Speaker 1>as I've seen, is that they're taking those profits. That

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<v Speaker 1>there are many different reasons that there could be that

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<v Speaker 1>their inputs increased or other costs of production increased. But

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<v Speaker 1>they're also saying that they're taking those profits and they're

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<v Speaker 1>turning them around and putting them back into the company

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<v Speaker 1>and you know, back into coming up with more generic drugs.

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<v Speaker 1>And it's expensive to get the FDA approvals and develop

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<v Speaker 1>the drugs. But so far, I think the d O

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<v Speaker 1>J in the States aren't really buying it, and I

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<v Speaker 1>don't think they've at least as I've yet seen the

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<v Speaker 1>evidence of that. The US doesn't regulate drug prices, but

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<v Speaker 1>a U. S. Senate committee just released a report calling

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<v Speaker 1>for pricing legislation, including importation and faster approval of competing drugs.

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<v Speaker 1>Would that solve some of this? You know, it might. Uh, certainly,

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<v Speaker 1>the faster FDA approval access for generic drugs can can

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<v Speaker 1>be a very good thing. The statistics show that the

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<v Speaker 1>quicker and the more and the sooner generic drugs come

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<v Speaker 1>on the market, the more the prices dropped for everything,

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<v Speaker 1>including the original brand drug. UM. You know, some regulation

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<v Speaker 1>of prices might have some some benefit. But what I

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<v Speaker 1>did see was this had to do with regulation of

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<v Speaker 1>prices in relation to medicare UM. And I you know,

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<v Speaker 1>at this point to what you're looking at is conduct

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<v Speaker 1>that occurred in the past, So you know now that

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<v Speaker 1>this is all kind of broken wide open. I would

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<v Speaker 1>imagine going forward, these companies are already going to be

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<v Speaker 1>much more careful about what they're doing with price. What

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<v Speaker 1>this is digging into is allegations that this has been

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<v Speaker 1>ongoing for several years and up through today. So are

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<v Speaker 1>we looking at huge penalties if that's proven. Yes, any

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<v Speaker 1>number of things. Executives could go to jail. Price fixing

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<v Speaker 1>is criminal under the antitrust laws, so this can be

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<v Speaker 1>up to um I believe a ten year sentence for individuals.

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<v Speaker 1>They can also be fined up to one million dollars.

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<v Speaker 1>Companies can be fined up to a hundred million dollars.

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<v Speaker 1>In general, there are alternative fines that can go over that,

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<v Speaker 1>and to be honest, most of the price fixing finds

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<v Speaker 1>recently have gone over that, so there can be really

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<v Speaker 1>big fines. We saw fines approaching five million in an

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<v Speaker 1>auto parts investigation that was similar similar price fixing allegations.

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<v Speaker 1>But June I actually think the bigger problem for the

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<v Speaker 1>companies maybe the private cases, because what happens as soon

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<v Speaker 1>as the d o J finds criminal price fixing and

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<v Speaker 1>starts getting guilty please, you have just a slew of

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<v Speaker 1>private plaintiff class action cases brought by insurance companies and

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<v Speaker 1>consumers and pharmacies, any buyers of these products. And we

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<v Speaker 1>already see one to three, four, five, six of about

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<v Speaker 1>ten cases covering about ten different drugs. I think it's

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<v Speaker 1>just the beginning and we'll see more. And the reason

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<v Speaker 1>in those cases are so tough for the defendants June

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<v Speaker 1>is because when you lose an antitrust case, your damages

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<v Speaker 1>are automatically tripled. Just why does the Justice Department decide

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<v Speaker 1>to investigate certain deals and certain industries for antitrust reasons?

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<v Speaker 1>We are talking with an expert in that area, Jennifer Ray.

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<v Speaker 1>She's a senior litigation analyst at Bloomberg Intelligence. Jen what

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<v Speaker 1>makes the Justice Department look at a company or at

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<v Speaker 1>a deal? Well, you know, to start um, every deal

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<v Speaker 1>of a certain size gets filed before the government, but

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<v Speaker 1>both the ATC and the Department of Justice, because they

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<v Speaker 1>have a tendency if a deal needs to be reviewed

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<v Speaker 1>to split them between them that they each take the

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<v Speaker 1>area where they have more expertise generally, and once those

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<v Speaker 1>when those deals are filed, just a very small amount

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<v Speaker 1>of initial information goes into the government and they can

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<v Speaker 1>usually look at that that information and say, hey, you

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<v Speaker 1>know what we're not sure. We believe these are two

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<v Speaker 1>competitors merging, and we're not sure how many other competitors

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<v Speaker 1>are there. You know, is this going to be too

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<v Speaker 1>concentrated a market? And should we look at it more

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<v Speaker 1>carefully before we just green light this deal. I think

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<v Speaker 1>most mergers that get reviewed are that type that we

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<v Speaker 1>call a horizontal deal, where the government observes that a

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<v Speaker 1>deal that was filed is between two competitors in a

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<v Speaker 1>big industry and they should take a closer look, and

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<v Speaker 1>that's how they make the decision at least to get

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<v Speaker 1>into an investigation of that deal. So, Jen, we have

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<v Speaker 1>talked about the A T and T Time Warner deal,

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<v Speaker 1>and that's one that President elect Donald Trump has come

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<v Speaker 1>out against. We don't know what exactly that means as

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<v Speaker 1>far as what the Justice Department is going to be doing,

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<v Speaker 1>but tell us about that deal and what the chances

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<v Speaker 1>are for it to go forward in your opinion, Sure,

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<v Speaker 1>I think that's such an interesting deal right now June,

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<v Speaker 1>and people are talking about it because I think in

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<v Speaker 1>the normal course, that deal is what you'd call a

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<v Speaker 1>vertical deal, different than the ones that I just discussed

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<v Speaker 1>where the two companies don't compete. You know, they're not

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<v Speaker 1>competing for consumers right now. They deal with each other.

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<v Speaker 1>One creates the content time warner and the other distributes

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<v Speaker 1>the content and um A T and T. So we

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<v Speaker 1>think of them as having a vertical relationship. And in

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<v Speaker 1>the antitrust world, vertical deals usually are thought to be

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<v Speaker 1>mostly pro competitive. They can cause the market harms, but

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<v Speaker 1>they're generally thought to be pro competitive because if that

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<v Speaker 1>kind of combination is usually good, it fosters innovation. UM

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<v Speaker 1>it's a it's a secured source of supply for both sides.

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<v Speaker 1>It can save money and doesn't generally harm consumers in

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<v Speaker 1>the form of lower prices because they don't compete against

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<v Speaker 1>each other and you're not concentrating a market. So when

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<v Speaker 1>this deal came along, most antitrust thinkers would say, well,

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<v Speaker 1>that's probably going to be fine. They'll take a look

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<v Speaker 1>at it, but but it shouldn't raise a lot of concerns.

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<v Speaker 1>But then Donald Trump made the comments that he made,

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<v Speaker 1>which is I think why so many people have been

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<v Speaker 1>thinking and talking about this deal, where he said, I

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<v Speaker 1>think this is no hood and I think it's a

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<v Speaker 1>kind of deal that my administration would like to block.

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<v Speaker 1>My feeling about it, June, is that once people are

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<v Speaker 1>put in place at the Department of Justice to look

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<v Speaker 1>at this and they take the traditional you know, sort

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<v Speaker 1>of the traditional studied way of doing it, the professional way,

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<v Speaker 1>these deals are looked at, and they walk through it.

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<v Speaker 1>They might want some modifications of behavior, some promises that

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<v Speaker 1>a T and T won't favor Time Warner content or

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<v Speaker 1>somehow discriminate against other distributors. Um. But I think this

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<v Speaker 1>deal should go through. I think it's likely the deal

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<v Speaker 1>will go through. Jen. How often does a president get

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<v Speaker 1>involved in what kind of deals go through? Well, they rarely,

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<v Speaker 1>do you know, it really would be unprecedented And I

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<v Speaker 1>say precedented, um Um, it's not. There have been rumors

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<v Speaker 1>in the past sometimes of some involvement, but it's just

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<v Speaker 1>generally something they leave to their anti drust experts who

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<v Speaker 1>are at the agencies, the Federal Trade Commission, in the

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<v Speaker 1>Department of Justice, um and and aren't usually involved. So

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<v Speaker 1>it'll be different and interesting and new if we do

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<v Speaker 1>see a President Trump who tries to get his hands

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<v Speaker 1>dirty in the anti trust area. You know what I've

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<v Speaker 1>said before is that even if he does try to

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<v Speaker 1>push his decision makers to go in a certain way.

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<v Speaker 1>At the end of the day, they still have to

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<v Speaker 1>go before a judge, both a PC and d J

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<v Speaker 1>and get a judge order blocking a deal to keep

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<v Speaker 1>parties from closing. So really, at the end of the

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<v Speaker 1>day is up to that judge and the evidence that

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<v Speaker 1>they're able to put in front of that judge. It

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<v Speaker 1>will be a very interesting year and anti trust and

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<v Speaker 1>we look forward to talking with you more about all

0:12:35.280 --> 0:12:38.080
<v Speaker 1>the deals coming up. Thanks so much for joining us.

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<v Speaker 1>Jen that's Jennifer Re, senior litigation analyst at Bloomberg Intelligence.

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<v Speaker 1>And for more on Jen's analysis of antitrust and other deals,

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<v Speaker 1>you can go to b I go on the Bloomberg terminal.

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<v Speaker 1>Coming up on Bloomberg Law. For the first time, the

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<v Speaker 1>Justice Department is suing one of the banks at the

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<v Speaker 1>center of its investigation over the sale of mortgage backed

0:13:00.360 --> 0:13:04.959
<v Speaker 1>securities ahead of the financial crisis. Barklay's decides to buck

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<v Speaker 1>the trend and not to settle with the Justice Department.

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<v Speaker 1>Deutsche Bank has settled just yesterday. That's coming up on

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<v Speaker 1>Bloomberg Block. This is Bloomberg