May 6th, 2020

// RDP Bemoans Big Pharma Merger Facilitated by Revolving Door BigLaw Lawyers

RDP Bemoans Big Pharma Merger Facilitated by Revolving Door BigLaw Lawyers

The FTC approved pharmaceutical company AbbVie’s $63 billion acquisition of Allergan in a 3-2 vote yesterday, with Commissioners Chopra and Slaughter casting the dissenting votes.

Revolving Door Project Executive Director Jeff Hauser said, “This anti-competitive merger further entrenches Big Pharma at the expense of all Americans. Big Pharma’s playbook here is no less dangerous for having become rote: They hire well-connected revolving door FTC alumni to secure approval for mergers that undermine the public interest. To restore the public interest at the FTC, we will need to end the FTC-to-BigLaw pipeline that has helped bring about an economy that works well for rich investors rather than American consumers or workers.”

Firms like Arnold & Porter and Weil, Gotshal & Manges, which represented AbbVie and Allergan respectively in this case, regularly hire lawyers from the FTC and DOJ Antitrust division to capitalize on their insider information on the merger approval process as well as ongoing relationships with officials still at the antitrust authorities.

In the midst of the FTC’s sweetheart settlement with AbbVie and Allergan, Weil Gotshal & Manges hired another longtime FTC Bureau of Competition official, Michael Moiseyev. As the assistant director of the Mergers I division, Moiseyev oversaw countless other healthcare and pharmaceutical merger cases, including Bristol-Myers Squibb’s $74 billion acquisition of Celgene. AbbVie counsels Debbie Feinstein and Matthew Reilly both worked on the Celgene case as corporate-side counsels. Upon hiring Moiseyev, Weil’s head of antitrust Steven Newborn commented that Moiseyev’s “depth of experience and knowledge” on merger enforcement activities in the pharmaceutical and technology industries “further expands the unparalleled service we can offer our clients in this space.”

Arnold & Porter partner Debbie Feinstein represented AbbVie in the merger. Feinstein joined Arnold & Porter in 2017 after serving as the FTC Bureau of Competition director, and previously left the FTC for Arnold & Porter in 1991. During her tenure as director, the FTC “largely abandoned its attempts to block mergers,” shifting to consent agreements like the one agreed to in the AbbVie-Allergan case. AbbVie’s other counsel, Matthew Reilly of Kirkland & Ellis, also worked at the FTC as the assistant director of the Mergers IV division of the Bureau of Competition.

Allergan is represented by Weil Gotshal & Manges, whose lawyers also have strong ties to the FTC. Weil’s head of antitrust, Steven Newborn, was the director of litigation at the Bureau of Competition before joining Weil. Newborn’s antitrust clients include numerous pharmaceutical companies including Johnson & Johnson, Forest Laboratories, and Bausch & Lomb. Allergan is also represented by Weil senior counsel Ann Malester, who worked at the FTC for over 25 years, and has since also represented numerous pharmaceutical and healthcare companies. Her previous cases include AbbVie’s $21 billion acquisition of Pharmacyclics, which Malester notes gained FTC approval “without receiving a Second Request.” 

The FTC will continue to routinely approve pharmaceutical mergers that harm consumers of prescription drugs in no small part due to the lawyers who revolve between the agency and the law firms that defend these proto-monopolistic clients. The influence of figures such as Feinstein and Newborn, who capitalize on their government insight and regularly poach other antitrust regulators like Moiseyev to their ranks, influences FTC lawyers to maintain the status quo of narrow consent agreements. These consent agreements and divestitures allow the pharmaceutical industry to continue squeezing profits to the detriment of consumers. 


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