FTC Loses Lundbeck Appeal, Opening Door for More Aggressive Pharmaceutical Merger & Acquisition Activity


In the first-ever appellate antitrust decision dealing with a pharmaceutical industry merger, Federal Trade Commission v. Lund­beck, Inc., the Eighth Circuit affirmed a finding that the Federal Trade Commission failed to prove that two drugs were in the same relevant market, reasoning that doctors prescribe the drugs based on their effectiveness and side-effect profile and pay no attention to price.

The decision — in the face of evidence that Lundbeck raised the price of one drug thirteen-fold after the acquisition — may open the door to companies doing deals that would previously have been sure to draw an FTC challenge.

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