Big tech, gaming, and pharma are just a few industries staring down the barrel of regulatory enforcement investigations and actions this year. Despite a generally lackluster 2023 in terms of corporate transactions that go hand in hand with antitrust cases, some legal professionals anticipate the M&A market to trend back up in 2024. If that prediction bears fruit, then regulatory agencies and plaintiffs’ firms will likely be stepping into high gear in an effort to ensure and protect competition across industries.
Let’s take a quick look at areas with a preponderance of antitrust matters whose outcomes could shape future litigation and the types of experts that would be advantageous to retain for antitrust cases.
A Rising Tide of Antitrust Cases Aimed at Lifting Competition Among Tech and Gaming Companies
By far, tech titans are getting hammered the most. Apple, Google, Meta, and Microsoft are just some of the biggest names in the technology industry embroiled in matters that attempt to contain the companies’ market dominance.
Regulators—FTC, DOJ, and CMA—have all ramped up enforcement actions over concerns of alleged monopolistic practices that inhibit fair competition. And while innovations like AI, cloud computing, and cloud gaming open the door for new entrants to compete, government agencies fear that incumbents nevertheless have the upper hand in driving market success. In broad strokes, the issue in most cases involves dealmaking and sales techniques used to drive growth.
Building a comprehensive and robust defense against regulatory agency allegations requires more than banal expert testimony. The best defense involves consulting with industry insiders and strategizing with experts on issues from various fronts. Economic experts are without question crucial to antitrust cases. They analyze market conditions, competition dynamics, pricing strategies, and the economic impact of alleged anticompetitive practices. They can testify about market definition, market power, and the economic rationale behind certain business strategies. Specifically for the technology industry, they can analyze network effects, digital platform competition, and innovation cycles.
However, attorneys should look beyond only retaining economists to refute or support claims. A diverse team of experts can bolster credibility, insight, and depth of knowledge in highly scrutinized areas of business practices.
In addition to engaging with economists, attorneys working with tech clients should consider consulting with an expert team comprised of:
- Industry Insiders – Seasoned industry professionals who understand the economic models of digital platforms, including aspects like multi-sided markets, platform governance, and network externalities, can speak to the role of research and development in driving competition and innovation in the tech industry, countering claims of stifling competition.
- Digital Market Experts –Experts who understand the nuances of digital marketplaces, including app stores, online advertising, and e-commerce platforms, can provide insights into competitive practices in these unique markets.
- Software and Hardware Engineers – Experts who can address technical aspects of products or services at the center of antitrust claims can explain the intricacies of technological development and innovation.
- Data Analysts or Statisticians – In cases involving large volumes of data, these experts help analyze data trends, customer behavior, and market dynamics. Their analysis can support arguments about market competition and consumer impact.
- Academics in Technology and Society – Professors or researchers with a focus on the intersection of technology and societal impacts can provide a broader perspective on the role of tech giants in modern society.
- Public Policy Experts in Technology – They can offer insights into how the case may affect public policy related to technology, internet governance, and digital rights.
Engaging these types of experts will provide a nuanced and well-rounded defense, addressing both the specificities of the technology industry and the broader economic, legal, and societal implications of the antitrust allegations.
Increasingly Complex Regulatory Environment and More M&A Deals Drive Antitrust Specter in the Pharmaceutical Industry
Antitrust scrutiny in life sciences is expected to increase this year, with big pharma companies flush with cash and in need of assets, wanting to maintain or enhance their positions in the market. While antitrust investigations were not hugely prevalent in 2023—aside from a brief but noteworthy kerfuffle with the FTC concerning the now-settled Amgen/Horizon deal—a continued focus by the Biden Administration on drug pricing provisions and revised regulatory guidelines for M&A transactions have put healthcare and life sciences attorneys on high alert.
The types of experts needed to build a strong antitrust defense in life sciences would be similar to those previously described for the technology sector, but specific to life sciences and professionals with expertise in the healthcare industry and scientific understanding.
A diverse team of experts would be comprised of:
- Economists – Experts who can provide insights into market dynamics, pricing strategies, and competition within the pharmaceutical, biotech, and healthcare tech sectors.
- Industry Insiders – Former C-Suite executives and other senior professionals with deep knowledge of the pharmaceutical and biotech industries can provide insights into industry norms, research and development processes, patent issues, and drug development and approval complexities.
- Academics in Health Economics and Policy – Highly credentialed professors or researchers can provide independent and authoritative perspectives on the intersection of health economics, policy, and antitrust issues.
- Former Regulators – These specialists understand the complex regulatory landscape that pharmaceutical, biotech, and healthcare technology companies navigate, including FDA regulations, patent laws, and healthcare policies and regulations.
- Market Access and Insurance Industry Experts – Industry experts who understand how pharmaceuticals and biotech products are integrated into healthcare systems, including insurance coverage, reimbursement processes, and access to medicines.
- Clinical Researchers and Medical Experts – These experts can explain the scientific and medical aspects of pharmaceutical products or biotech innovations, which is essential for understanding the competitive dynamics and value propositions of such products.
Consulting with these types of life sciences experts can ensure that all industry-specific factors concerning allegations of anticompetitive practices are properly considered.
In the face of rising antitrust litigation, particularly in the technology and life sciences sectors, legal counsel would greatly benefit from consulting with a diverse team of experts. These industries, characterized by rapid innovation and complex regulations, require a multidisciplinary approach for an effective legal defense. Engaging with a wide range of specialists ensures a thorough understanding of industry-specific challenges. This approach not only strengthens counsel’s legal defense but also tailors it to the unique dynamics of these evolving sectors and sets counsel up for better litigation outcomes.
