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72 Fla. L. Rev. Forum 1 (2020-2023)

handle is hein.journals/flrf72 and id is 1 raw text is: MERGER LAW FOR BIOTECH AND KILLER ACQUISITIONS D. Daniel Sokol* Abstract This Essay suggests a framework for how to conceptualize killer acquisitions in the biotech sector. In a killer acquisition, a larger branded pharmaceutical company buys a start-up company with a pipeline product with the intention to shut the pipeline product down. The Essay offers a way to police against acquisitions that may hurt consumers and still encourage pro-competitive acquisitions that may improve innovation and consumer welfare. IN T R O D U C T IO N ........................................................................................... I. CREATING AN ANTITRUST FRAMEWORK FOR PHARMA MERGERS ...................................................................... II. KILLER ACQUISITIONS AND THE START-UP ECOSYSTEM.............. A. Entrepreneurial Exit and Competition in Pharmaceutical Acquisitions ............................................... B. More Empirical Studies are Needed .................................... C. How to Measure the Effect of Acquisitions on Innovation ....................................................................... CONCLUSION .............................................................................................. INTRODUCTION Since publication of an influential working paper in late 2018, killer acquisitions, commentators in antitrust law and policy have focused on acquisitions of startup companies by larger companies in the same or complementary markets. While the initial focus of a concern for such deals was in pharmaceuticals,2 the concern has moved more broadly in the legal and policy communities to medical devices3 and online * Professor, University of Florida Levin College of Law; Senior Advisor, White & Case LLP. 1. See Colleen Cunningham et al., Killer Acquisitions 1 (Apr. 19, 2020), https://uaers.ssm comisol3/ aperscfm?abstract id=3241707 [https:// e .cc/EH2B=KVOL]. 2. See id. 3. Nicholas Kulish et al., The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed., N.Y. TIMEs (Apr. 20, 2020), hop~s://ww v. nvtimescom/2020/03/29/business/coronavilus-us-ventilator-shortage. htm [hops://pemiacc/EK49-MZHL] (Government officials and executives at rival ventilator companies said they suspected that Covidien had acquired Newport to prevent it from building a cheaper product that would undermine Covidien's profits from its existing ventilator business.).

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