Geoff mentions the pending bills on the Hill that would grant merchants an antitrust exemption to negotiate interchange fees.  The insurance industry exemption has also been in the news of late in the wake of the Democrats’ threats of repeal.  Here’s what I’m puzzled about.  Other than self-interested parties that have a lot to gain from an exemption (I’d like an exemption from income taxes if anybody cares), why won’t anybody say that industry exemptions from the Sherman Act price-fixing prohibitions are decidedly not a good thing for consumers?

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Wall Street Journal columnist Thomas Frank inhabits a simple little world in which private enterprise, in its relentless pursuit of profit (i.e., charging more for something than it’s worth), is consistently a force for evil, and government, populated by wise and benevolent folk who have eschewed riches in favor of public service (see, e.g., Ted Kennedy), is always a force for good. Responding to Mr. Frank’s simple-minded musings is generally like shooting fish in a barrel, so I normally just leave him alone. This week, though, I feel compelled to respond.

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Not very, according to the President in his recent health care speech, making the case that lack of competition and for-profit monopolists are what ails the health care market…

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In light of the recent political focus on healthcare, several Congressional bills propose to single out a class of contracts between pharmaceutical companies for closer antitrust scrutiny.  Oftentimes, a pharmaceutical company will engineer a functionally identical substitute to a “brand name” drug with specific appeal to consumers.  This substitute – with the chemical properties of the known drug but a different name – is known as a “generic drug,” or simply a “generic.”  In an attempt to preserve the legal monopoly a patented brand-name enjoys, the branded drug’s producer will sometimes offer the generic’s producer a payment to delay entry into the market for a fixed amount of time.  Known as a “reverse payment settlement” – or colloquially as “pay for delay” – these agreements are at the intersection of contemporary fears and debates about healthcare and a debate as old as the law of competition itself.

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University of Chicago economist (and behavioralist doyen) Richard Thaler thinks “the question of whether a ‘public option’ should be part of the health care solution” is just “one big distraction.” In Sunday’s New York Times, Thaler argues that the debate over the public option is a “red herring” if, as President Obama insists, the public plan will have to break even and won’t be granted “the power to impose special deals with suppliers like hospitals and drug companies.” If those two conditions are satisfied, Thaler contends, the public plan is unlikely to have much success and certainly won’t drive out private insurers.

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I was very pleased to thumb through the newest version of Antitrust Magazine and see a TOTM post get some attention.  Its always nice to be cited and have folks take the time to respond to your work — or in this case, blog post.  Its even more tickling when the person doing the responding is a prominent and well respected figure such as former Federal Trade Commissioner Leary.  Commissioner Leary revisits the FTC’s enforcement action in Ovation and takes on the criticism of that enforcement action in this post.  You can see Commissioner Leary’s article here (I believe ABA registration and password required).  I’m grateful for the response and am going to take the opportunity  to argue that, despite the Commissioner’s criticisms, the troublesome implications that I pointed out in the earlier post associated with the enforcement approach in Ovation remain (see also guest blogger Mary Coleman’s related concerns).

Read the full piece here. 

As his Council of Economic Advisers made clear in its recent health care report, President Obama sees two primary goals for his health care reform efforts: to slow the growth of health care costs and to expand coverage of health insurance. It’s pretty clear, though, which of these goals is steering the ship. While the President’s proposals include a few modest measures ostensibly aimed at reducing costs (digitizing medical records, collecting and disseminating data on treatment-effectiveness, etc.), the primary focus is on increasing insurance coverage. That’s unfortunate, for relentless pursuit of coverage expansion is almost certain to undermine the goal of cost containment.

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There’s an interesting story in the WSJ about a merger between the HIV-drug businesses at Glaxo and Pfizer.  Some details from the story…

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Congratulations to Mike on a very fine book, which I must admit I am still in the process of digesting.  I will confine my initial comments to Mike’s chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review.

Read the full piece here.