On September 1, 2023, Amgen Inc. (Amgen) and the Federal Trade Commission (FTC) announced that they had reached a settlement to end the litigation challenging Amgen’s proposed acquisition of Horizon Therapeutics plc (Horizon). The challenge to the merger, filed in May of this year, was brought by the FTC and attorney generals from six states – California, Illinois, Minnesota, New York, Washington, and Wisconsin. It was the FTC’s first challenge to a merger of pharmaceutical companies in 14 years.
The settlement affirmed a commitment that Amgen had already stated to the FTC and the public, prior to the FTC’s litigation, that the merged entity would not bundle Horizon’s products with Amgen’s products. As a result, Amgen described the settlement as a “narrow assurance” that would have “no impact on Amgen’s business.” After the settlement was announced, the United States Chamber of Commerce stated that this “concession by the FTC represents a substantial victory for all companies considering procompetitive mergers.”
Compass Lexecon worked closely with the merging parties on this matter, starting with a team advising Horizon on the merger (led by Compass Lexecon expert Mark Israel) and proceeding to the submission of expert reports in the federal litigation by two additional Compass Lexecon experts (Jon Orszag and Richard Gilbert) on behalf of both parties. These expert reports concluded, based on economic theory and empirical evidence, that Amgen would not have the incentive or ability to bundle these products post-merger and that the merger would bring significant benefits that the FTC and its experts had not considered. The consent order was announced less than two weeks after Compass Lexecon and other experts for the merging parties submitted their expert reports.
Compass Lexecon’s experts were supported by teams that included Erica Benton, Bret Dickey, Dan O’Brien, Alice O’Donnell, Taylor Hines, Daniel Stone, Allan Zhang, Benjamin Rosenbaum, and Junyun Guan. Throughout the case, Compass Lexecon worked closely with outside counsel, including David Marriott, Daniel Zach, Daniel Johnson, Jesse Weiss, and Megan Vincent of Cravath, Swaine & Moore LLP; Samantha Hynes and Renata Hesse of Sullivan & Cromwell LLP, and Jacqueline Grise, David Burns, Megan Browdie, and Mike Herring of Cooley LLP.