As Amgen and Horizon pursue their $27.8 billion merger, they're facing off against the U.S. Federal Trade Commission (FTC) and its lawsuit to block the deal. Now, in response to the complaint, the companies have called the lawsuit “as misguided as it is unprecedented.”
The lawsuit, filed in May, seeks an injunction against the deal on antitrust grounds. Specially, the FTC argued that Amgen could pressure insurers and pharmacy benefit managers to accept higher prices for Horizon’s thyroid eye disease drug Tepezza and gout med Krystexxa based on the company’s “history of leveraging its broad portfolio of blockbuster drugs to gain advantages over potential rivals.”
Amgen and Horizon find these allegations “far too speculative” to make the case of probable harm, the two companies said in their response, filed Friday in federal court. The FTC expects Amgen to bundle its rebates in the event of future competition to Horizon’s products, which the company says wouldn’t work in the real world. The argument is “a square peg in a round hole” when applied to the rare diseases that Horizon's drug target, according to the response.
The response further calls the FTC’s arguments “speculation on speculation” that hinges on a number of hypotheticals and “baseless assumptions.” The agency couldn’t identify any documents produced by either company suggesting such a plan, which Amgen says would need to be in writing if it were to exist.
“There is a reason for the total lack of documentary support for the FTC’s claim—the FTC’s bundling allegations are simply made up,” the companies said in their response.
The FTC’s case, which the agency says is based on past behavior, is the first of its kind and may not hold up well in court, according to experts in antitrust law. After a conference call with key opinion leaders when the FTC filed its lawsuit, analysts with SVB Securities wrote that they “continue to believe the FTC is unlikely to win its litigation” and that the argument could be based out of frustration that Congress hasn’t enacted stronger laws around drug pricing.
The attempt to block the deal isn’t completely surprising, though, because the agency in the spring of 2021 pledged tougher oversight of biopharma mergers.
Amgen recently said in a filing that it expects the acquisition to close by mid-December if the court denies the FTC’s injunction request.
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