Deals & Corporate Governance

Expert Analysis

• What FTC's 'Killer Acquisition' Theory Means For Pharma Cos.

  

  The Federal Trade Commission's recent lawsuit to block Sanofi's acquisition of a pharmaceutical treatment developed by Maze Therapeutics builds on previous enforcement actions and could indicate the agency's growing willingness to use its so-called killer acquisition theory against perceived attempts to eliminate nascent competition, say attorneys at Morgan Lewis.

• Lessons For D&O Policyholders From Pharma Co. Ruling

  

  A California federal court's recent decision in AmTrust v. 180 Life Sciences, requiring insurers to advance defense costs for a potentially covered claim, provides a valuable road map for directors and officers insurance policyholders, rebutting the common presumption that a D&O insurer's duty to advance costs is more limited than under other policies, say attorneys at Pasich.

• ESG Around The World: Gulf Cooperation Council

  

  The Gulf Cooperation Council is in the early stages of ESG policy implementation, but recent commitments by both states and corporations — including increases in sustainable finance transactions, environmental commitments, female representation on boards and human rights enforcement — show continuing progress toward broader ESG goals, say attorneys at Cleary.

• Oregon Law Would Compromise Management Service Orgs

  

  If passed, a proposed Oregon law would materially limit physician corporate practice of medicine structures, causing significant disruption to the provision of medicine and hindering professional corporations' ability to focus on the clinical components of their practice, say Christina Bergeron and William Shefelman at Ropes & Gray.

• The Latest Antitrust Areas For In-House Counsel To Watch

  

  The U.S. Department of Justice and the Federal Trade Commission's increasingly aggressive approach to antitrust enforcement means in-house counsel should closely monitor five key compliance issues, say attorneys at Squire Patton.

• Navigating New Regulations In Healthcare And Other M&A

  

  While notice requirements recently enacted in several states are focused on the healthcare industry for now, this trend could extend to other industries as these requirements are designed to allow regulators to be a step ahead and learn more about a transaction long before it occurs, say Kathleen Premo and Ashley Creech at Epstein Becker.

• New CMS Rule Will Change Nursing Facility Disclosures

  

  A new rule from the Centers for Medicare & Medicaid Services significantly expands disclosure requirements for nursing facilities backed by private equity companies or real estate investment trusts, likely foreshadowing increased oversight that could include more targeted audits, say Janice Davis and Christopher Ronne at Morgan Lewis.

• Healthcare Collabs Can Alleviate Labor, Antitrust Challenges

  

  Two major challenges facing hospitals and health systems include labor shortages and increased antitrust scrutiny at both federal and state levels, but collaborative efforts may help with addressing these difficulties, says Sumaya Noush at McDermott.

• How Biotech Cos. Can Utilize Synthetic Royalty Financing

  

  Synthetic royalty transactions have been on the rise as a funding structure for biotechnology companies, but questions have arisen surrounding how such transactions work, and structuring them correctly requires a nuanced understanding, say Todd Trattner and Ryan Murr at Gibson Dunn.

• How Biotech Deals May Help Competition, Despite FTC View

  

  The Federal Trade Commission's complaint against Sanofi's proposed partnership with Maze Therapeutics highlights increasing skepticism of so-called killer acquisitions, but a closer look reveals potentially legitimate reasons behind why entities might decide to delay or abandon the development of acquired products, say consultants at Analysis Group.

• Notes Of Interest From 5th Circ. Illumina-Grail Merger Ruling

  

  Attorneys at Simpson Thacher consider the Fifth Circuit's recent decision upholding the Federal Trade Commission's challenge of the Illumina merger with Grail, its much-needed boost to the Biden administration's antitrust agenda, and some silver linings the decision offers to merging parties.

• A Potential Proactive Tool For Public-Private Joint Ventures

  

  In the current environment of heightened antitrust enforcement, the National Cooperative Research and Production Act seems tailor-made for the collaborative work among competitors encouraged by the Biden administration's infrastructure and green energy funding legislation, say Jeetander Dulani and Susan Ebner at Stinson.

• Financing Healthcare Deals In Uncertain Markets This Year

  

  As challenges to closing and financing new deals prevail into 2024, lenders in new healthcare transactions are talking about alternative approaches for sponsors to consider, such as private credit alternatives and utilization of junior capital, say attorneys at McDermott.