Amgen has complied with an FTC request for a temporary restraining order, agreeing not to close its proposed $27.8 billion deal to acquire Horizon Therapeutics while the agency's lawsuit plays out.
The move comes in response to the FTC filing an antitrust lawsuit earlier this week which is attempting to block the sale.
Barring a quick decision by the Illinois federal court on the FTC’s request for an injunction, Amgen will close the acquisition no sooner than September 15. When Amgen and Horizon first revealed their deal, Amgen executives said they expected the transaction to close in the first half of 2023.
In its suit, the FTC argues that Amgen could leverage its lucrative portfolio of products to “entrench the monopoly positions” of Horizon’s thyroid eye disease drug Tepezza and gout treatment Krystexxa.
Amgen has a history of employing such bundling schemes with payers and pharmacy benefit managers (PBMs), the FTC argues. For its part, the company has said that it will not use the tactic with the Horizon products.
The antitrust challenge marks the first time the FTC has used the approach, focusing on past behaviors and drug pricing. Experts in antitrust law have cast some doubt on the ability of the FTC to block the acquisition with an untested argument.
After a conference call with key opinion leaders, analysts from SVB Securities wrote that they “continue to believe the FTC is unlikely to win its litigation.”
The FTC could have difficulty arguing against a bundling system that—while bolstering the monopoly power of one drug—may also provide key drugs at less cost and can lead to lower prices, according to the analysts.
The SVB team added that the FTC is taking some risk in this complaint. One expert said that the antitrust enforcer has become frustrated that Congress has not enacted stronger laws and is making this play to effect change, according to the SVB analysts.
Another factor to consider is the FTC’s investigation of the business practices of six major PBMs, which kicked off last year.
“We do not know if the FTC’s PBM investigations could result in FTC challenges to current rebating/bundling by biopharma manufacturers, but we await future developments,” SVB wrote.