Antitrust Trends in Technology, Life Sciences, and Healthcare

Antitrust actions significantly impacted the technology sector in 2023 and are poised to have substantial repercussions in the future, affecting both major tech companies and emerging enterprises. In addition to a focus on the largest technology companies, a prevalent theme in much of the antitrust activity in the tech space in 2023 was the examination of behavior across vertically related products or services.

Despite increasingly aggressive rhetoric from the agencies, 2022 was largely characterized as “business as usual” in the antitrust world. In contrast, 2023 featured a significant step up in enforcement activity, including multiple challenged transactions and lengthy investigations in the life sciences space. As notable, many of these enforcement activities involved more “novel” theories of harm, displaying a willingness by the Federal Trade Commission (FTC) to put its rhetoric into action. At the same time, the novel theories pursued by both the FTC and Department of Justice (DOJ) have generally (though not uniformly) been met by skepticism in federal court.

2023 saw a significant uptick in antitrust scrutiny and enforcement, particularly in the healthcare space. After much rhetoric and a setback in challenging state Certificate of Public Advantage (COPA) laws, the Federal Trade Commission (FTC) brought its first challenge to a private equity “roll-up” scheme and successfully blocked two mergers late in 2023. However, neither of the FTC’s merger wins relied on new theories of harm advanced by the antitrust agencies in recent years. Rather, the FTC found success by asserting traditional antitrust claims that the combination of two direct competitors would reduce head-to-head competition and harm customers.

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