Speaker 1: The numbers are shocking price hikes of at least two
Speaker 1: and about ninety generic drugs sold in the US over
Speaker 1: the past three years, maybe due to collusion among drug manufacturers.
Speaker 1: That's according to a study that comes in the middle
Speaker 1: of a Justice Department investigation into pharmaceutical price fixing. The
Speaker 1: former CEO of Touring Pharmaceuticals, Martin Screlly, came under fire
Speaker 1: for raising the price of dara prine more than fiftyfold.
Speaker 1: He told Bloomberg that he would do it again. So
Speaker 1: it's not like I'm surprising and saying to do it again.
Speaker 1: Everybody is doing it. In capitalism, you try to get
Speaker 1: the highest price for that you can for a product.
Speaker 1: Screlly is facing trial on unrelated federal charges of securities fraud.
Speaker 1: Last week, twenty States filed a civil complaint alleging executives
Speaker 1: at companies agreed at trade shows, golf games, and private
Speaker 1: dinners to pump up the cost of antibiotics and medication
Speaker 1: used to treat diabetes. The bottom line is that right now,
Speaker 1: there is little consumed comers can do about the price
Speaker 1: of their drugs. Our guest is Jennifer Ree, senior litigation
Speaker 1: analyst at Bloomberg Intelligence Jen the Antitrust Division of the
Speaker 1: Justice Department has been looking into price fixing allegations for
Speaker 1: the past two years. How widespread is the alleged collusion
Speaker 1: among drug copies, among drug companies, and who are the
Speaker 1: major players? Well, hi June, thanks for having me um.
Speaker 1: You know it, we're just at the beginning, so I
Speaker 1: think it's already widespread, but I believe it's probably going
Speaker 1: to get even more widespread. And right now you're looking
Speaker 1: at subpoenas at least received by you know, just about
Speaker 1: every big generic company you can think of, you know, Milon, Teva,
Speaker 1: Landet Impacts, Son Maine, par Pharma, which is owned by Endo. Now,
Speaker 1: of course, just because these companies have gotten subpoenas doesn't
Speaker 1: mean that they're involved in any kind of wrongdoing, but
Speaker 1: it's at least at this point the d o J
Speaker 1: has decided it's important enough to just spread out and
Speaker 1: look at all of them. And in addition to that,
Speaker 1: you actually have a lawsuit that's already been filed now
Speaker 1: by the state of led by the state of Connecticut,
Speaker 1: but joined by about nineteen other states, at least covering
Speaker 1: two drugs. They're talking about an antibiotic, a very popular,
Speaker 1: commonly used antibiotic called doxy cycling, and another medication for
Speaker 1: oral diabetes called gliberride. And it seems like they have
Speaker 1: some pretty good evidence, um, at least with based on
Speaker 1: what they're talking about in that suit, that some of
Speaker 1: these companies may have gotten together and talked about this. Um.
Speaker 1: You know the important thing here when you played that
Speaker 1: clip by Martin Screlly and and we were listening to
Speaker 1: his comments, and I think for antitrust and the important
Speaker 1: thing here is that companies can raise their prices unilaterally
Speaker 1: and it's not necessarily a violation of the law. And
Speaker 1: they can even watch what their competitors are doing. They
Speaker 1: might see that a competitor raise the price and then
Speaker 1: raise their price trying to make more money for the
Speaker 1: company and for their shareholders, not necessarily against the law.
Speaker 1: But June, what they can't do is get together and
Speaker 1: decide collectively to agree, you know, hey, we're all beating
Speaker 1: each other up competing. We need to stop doing that
Speaker 1: because we can all raise our prices if we don't
Speaker 1: do that. And that's what the DJ is looking at. Here.
Speaker 1: Two executives of a small generic drug maker are preparing
Speaker 1: to plead guilty to price fixing charges in January, and
Speaker 1: those are the first criminal charges in this investigation. What
Speaker 1: does that suggest about the future of the investigation. Well,
Speaker 1: I'll tell you this, um, that is a really good
Speaker 1: sign that there will be more private suits and that
Speaker 1: those private suits will have some success. And I say
Speaker 1: that because those executives, from what I understand, will not
Speaker 1: only plead guilty, but they've agreed now to cooperate with
Speaker 1: the government and they can do that, you know, for
Speaker 1: some leniency, lower fines, lower you know, sent in jail sentences.
Speaker 1: And what that means is they're just going to turn
Speaker 1: over all their documents and tell them what they've been
Speaker 1: doing and who they've been talking to. And basically they're
Speaker 1: going to be a whistleblower. And that's really important here
Speaker 1: because in these conspiracy cases and antitrust they're very, very
Speaker 1: difficult to prove. You you can't just show the companies
Speaker 1: raise their price, but you have to show an agreement.
Speaker 1: And it's you know, it's very rare the companies are
Speaker 1: getting together in a smoke filled room or executives and saying, hey,
Speaker 1: let's all charge a hundred dollars for this product. So
Speaker 1: usually plaintiffs are using circumstantial evidence, and again it can
Speaker 1: be difficult to prove with circumstantial evidence. But where you
Speaker 1: have whistleblowers, companies and executives willing to turn over materials,
Speaker 1: um emails, maybe chat rooms or even uh, you know,
Speaker 1: just discuss or testify about a discussion, you now have
Speaker 1: some pretty good solid evidence against others. The average price jump,
Speaker 1: according to the study among the ninety drugs, was fifty percent.
Speaker 1: But as you said, increases alone or not proof of collusion.
Speaker 1: What have the companies said to explain these hikes? You know,
Speaker 1: I've thought about those hikes, and you look at the
Speaker 1: graphs and they look pretty bad. And I have to
Speaker 1: think in my head, if they really wanted to increase price,
Speaker 1: fix and increase their price, why did they go so far?
Speaker 1: You know, why didn't they do something that was less obvious.
Speaker 1: What they are saying so far, at least as far
Speaker 1: as I've seen, is that they're taking those profits. That
Speaker 1: there are many different reasons that there could be that
Speaker 1: their inputs increased or other costs of production increased. But
Speaker 1: they're also saying that they're taking those profits and they're
Speaker 1: turning them around and putting them back into the company
Speaker 1: and you know, back into coming up with more generic drugs.
Speaker 1: And it's expensive to get the FDA approvals and develop
Speaker 1: the drugs. But so far, I think the d O
Speaker 1: J in the States aren't really buying it, and I
Speaker 1: don't think they've at least as I've yet seen the
Speaker 1: evidence of that. The US doesn't regulate drug prices, but
Speaker 1: a U. S. Senate committee just released a report calling
Speaker 1: for pricing legislation, including importation and faster approval of competing drugs.
Speaker 1: Would that solve some of this? You know, it might. Uh, certainly,
Speaker 1: the faster FDA approval access for generic drugs can can
Speaker 1: be a very good thing. The statistics show that the
Speaker 1: quicker and the more and the sooner generic drugs come
Speaker 1: on the market, the more the prices dropped for everything,
Speaker 1: including the original brand drug. UM. You know, some regulation
Speaker 1: of prices might have some some benefit. But what I
Speaker 1: did see was this had to do with regulation of
Speaker 1: prices in relation to medicare UM. And I you know,
Speaker 1: at this point to what you're looking at is conduct
Speaker 1: that occurred in the past, So you know now that
Speaker 1: this is all kind of broken wide open. I would
Speaker 1: imagine going forward, these companies are already going to be
Speaker 1: much more careful about what they're doing with price. What
Speaker 1: this is digging into is allegations that this has been
Speaker 1: ongoing for several years and up through today. So are
Speaker 1: we looking at huge penalties if that's proven. Yes, any
Speaker 1: number of things. Executives could go to jail. Price fixing
Speaker 1: is criminal under the antitrust laws, so this can be
Speaker 1: up to um I believe a ten year sentence for individuals.
Speaker 1: They can also be fined up to one million dollars.
Speaker 1: Companies can be fined up to a hundred million dollars.
Speaker 1: In general, there are alternative fines that can go over that,
Speaker 1: and to be honest, most of the price fixing finds
Speaker 1: recently have gone over that, so there can be really
Speaker 1: big fines. We saw fines approaching five million in an
Speaker 1: auto parts investigation that was similar similar price fixing allegations.
Speaker 1: But June I actually think the bigger problem for the
Speaker 1: companies maybe the private cases, because what happens as soon
Speaker 1: as the d o J finds criminal price fixing and
Speaker 1: starts getting guilty please, you have just a slew of
Speaker 1: private plaintiff class action cases brought by insurance companies and
Speaker 1: consumers and pharmacies, any buyers of these products. And we
Speaker 1: already see one to three, four, five, six of about
Speaker 1: ten cases covering about ten different drugs. I think it's
Speaker 1: just the beginning and we'll see more. And the reason
Speaker 1: in those cases are so tough for the defendants June
Speaker 1: is because when you lose an antitrust case, your damages
Speaker 1: are automatically tripled. Just why does the Justice Department decide
Speaker 1: to investigate certain deals and certain industries for antitrust reasons?
Speaker 1: We are talking with an expert in that area, Jennifer Ray.
Speaker 1: She's a senior litigation analyst at Bloomberg Intelligence. Jen what
Speaker 1: makes the Justice Department look at a company or at
Speaker 1: a deal? Well, you know, to start um, every deal
Speaker 1: of a certain size gets filed before the government, but
Speaker 1: both the ATC and the Department of Justice, because they
Speaker 1: have a tendency if a deal needs to be reviewed
Speaker 1: to split them between them that they each take the
Speaker 1: area where they have more expertise generally, and once those
Speaker 1: when those deals are filed, just a very small amount
Speaker 1: of initial information goes into the government and they can
Speaker 1: usually look at that that information and say, hey, you
Speaker 1: know what we're not sure. We believe these are two
Speaker 1: competitors merging, and we're not sure how many other competitors
Speaker 1: are there. You know, is this going to be too
Speaker 1: concentrated a market? And should we look at it more
Speaker 1: carefully before we just green light this deal. I think
Speaker 1: most mergers that get reviewed are that type that we
Speaker 1: call a horizontal deal, where the government observes that a
Speaker 1: deal that was filed is between two competitors in a
Speaker 1: big industry and they should take a closer look, and
Speaker 1: that's how they make the decision at least to get
Speaker 1: into an investigation of that deal. So, Jen, we have
Speaker 1: talked about the A T and T Time Warner deal,
Speaker 1: and that's one that President elect Donald Trump has come
Speaker 1: out against. We don't know what exactly that means as
Speaker 1: far as what the Justice Department is going to be doing,
Speaker 1: but tell us about that deal and what the chances
Speaker 1: are for it to go forward in your opinion, Sure,
Speaker 1: I think that's such an interesting deal right now June,
Speaker 1: and people are talking about it because I think in
Speaker 1: the normal course, that deal is what you'd call a
Speaker 1: vertical deal, different than the ones that I just discussed
Speaker 1: where the two companies don't compete. You know, they're not
Speaker 1: competing for consumers right now. They deal with each other.
Speaker 1: One creates the content time warner and the other distributes
Speaker 1: the content and um A T and T. So we
Speaker 1: think of them as having a vertical relationship. And in
Speaker 1: the antitrust world, vertical deals usually are thought to be
Speaker 1: mostly pro competitive. They can cause the market harms, but
Speaker 1: they're generally thought to be pro competitive because if that
Speaker 1: kind of combination is usually good, it fosters innovation. UM
Speaker 1: it's a it's a secured source of supply for both sides.
Speaker 1: It can save money and doesn't generally harm consumers in
Speaker 1: the form of lower prices because they don't compete against
Speaker 1: each other and you're not concentrating a market. So when
Speaker 1: this deal came along, most antitrust thinkers would say, well,
Speaker 1: that's probably going to be fine. They'll take a look
Speaker 1: at it, but but it shouldn't raise a lot of concerns.
Speaker 1: But then Donald Trump made the comments that he made,
Speaker 1: which is I think why so many people have been
Speaker 1: thinking and talking about this deal, where he said, I
Speaker 1: think this is no hood and I think it's a
Speaker 1: kind of deal that my administration would like to block.
Speaker 1: My feeling about it, June, is that once people are
Speaker 1: put in place at the Department of Justice to look
Speaker 1: at this and they take the traditional you know, sort
Speaker 1: of the traditional studied way of doing it, the professional way,
Speaker 1: these deals are looked at, and they walk through it.
Speaker 1: They might want some modifications of behavior, some promises that
Speaker 1: a T and T won't favor Time Warner content or
Speaker 1: somehow discriminate against other distributors. Um. But I think this
Speaker 1: deal should go through. I think it's likely the deal
Speaker 1: will go through. Jen. How often does a president get
Speaker 1: involved in what kind of deals go through? Well, they rarely,
Speaker 1: do you know, it really would be unprecedented And I
Speaker 1: say precedented, um Um, it's not. There have been rumors
Speaker 1: in the past sometimes of some involvement, but it's just
Speaker 1: generally something they leave to their anti drust experts who
Speaker 1: are at the agencies, the Federal Trade Commission, in the
Speaker 1: Department of Justice, um and and aren't usually involved. So
Speaker 1: it'll be different and interesting and new if we do
Speaker 1: see a President Trump who tries to get his hands
Speaker 1: dirty in the anti trust area. You know what I've
Speaker 1: said before is that even if he does try to
Speaker 1: push his decision makers to go in a certain way.
Speaker 1: At the end of the day, they still have to
Speaker 1: go before a judge, both a PC and d J
Speaker 1: and get a judge order blocking a deal to keep
Speaker 1: parties from closing. So really, at the end of the
Speaker 1: day is up to that judge and the evidence that
Speaker 1: they're able to put in front of that judge. It
Speaker 1: will be a very interesting year and anti trust and
Speaker 1: we look forward to talking with you more about all
Speaker 1: the deals coming up. Thanks so much for joining us.
Speaker 1: Jen that's Jennifer Re, senior litigation analyst at Bloomberg Intelligence.
Speaker 1: And for more on Jen's analysis of antitrust and other deals,
Speaker 1: you can go to b I go on the Bloomberg terminal.
Speaker 1: Coming up on Bloomberg Law. For the first time, the
Speaker 1: Justice Department is suing one of the banks at the
Speaker 1: center of its investigation over the sale of mortgage backed
Speaker 1: securities ahead of the financial crisis. Barklay's decides to buck
Speaker 1: the trend and not to settle with the Justice Department.
Speaker 1: Deutsche Bank has settled just yesterday. That's coming up on
Speaker 1: Bloomberg Block. This is Bloomberg