Looking Back and Looking Forward: Healthcare Antitrust in a New Administration: What Stays the Same and What Changes?

By: John Carroll, Jared Nagley & Elizabeth Nevins (Sheppard Mullin)

In this article, authors John Carroll, Jared Nagley & Elizabeth Nevins (Sheppard Mullin) analyze the early antitrust landscape under President Trump, who was sworn into office on Monday with a pledge for swift action. The Federal Trade Commission (“FTC”) already has a new Chair, Andrew Ferguson, while former Chair Lina Khan is expected to step down soon. At the Department of Justice, Antitrust Division (“DOJ”), proposed Assistant Attorney General Gail Slater awaits Senate confirmation before assuming leadership.

Overall, antitrust enforcement under the new administration is expected to be complex. While some have criticized the Biden administration for overreach in antitrust enforcement, there remains bipartisan agreement that certain industries, including healthcare, have become overly concentrated.

Healthcare Antitrust Enforcement Under Biden: Active to the Very End

The Biden administration’s FTC and DOJ were highly active in healthcare enforcement, initiating numerous actions against industry participants, including cases filed on the administration’s final business day. Additionally, they introduced new policies while rescinding others. Key aspects of the administration’s healthcare-focused antitrust agenda included:

Merger Enforcement: The FTC and DOJ under Biden took a strict stance on healthcare mergers, aggressively challenging deals that risked excessive market consolidation. This applied to both horizontal mergers between competitors and vertical mergers involving companies at different supply chain levels. The agencies frequently opted to block transactions outright rather than settle with remedies. Additionally, they closely examined private equity’s role in healthcare, particularly acquisitions that could result in monopolistic behavior.

Conduct Investigations: The administration scrutinized anticompetitive conduct in healthcare and pharmaceuticals, targeting practices like “pay-for-delay” agreements and monopolistic strategies that sustained high drug prices. The FTC also investigated pharmacy benefit managers (“PBMs”), assessing their impact on drug pricing and potential conflicts of interest, culminating in a staff interim report issued in the administration’s final days.

Withdrawal of Antitrust Healthcare Policy Statements and Guidance: The agencies rescinded longstanding healthcare-specific policy statements that had provided clear guidelines—including explicit safe harbors—on lawful industry practices. This policy shift has created uncertainty for healthcare companies, exposing them to antitrust scrutiny for actions previously deemed compliant.

What Will Federal Healthcare Enforcement Look Like Now?

While each administration may set its own priorities, the prior Trump administration maintained a strong stance on healthcare antitrust enforcement. Given this history, there is every reason to expect that the new Trump administration will continue along a similar path…

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