Amgen Successfully Defends Against FTC Challenge, Securing Clearance for its $27.8 Billion Acquisition of Horizon Therapeutics

Cravath represented Amgen, one of the world’s largest biopharmaceutical companies, in successfully defending against a Federal Trade Commission (“FTC”) challenge to Amgen’s pending $27.8 billion acquisition of Horizon Therapeutics (“Horizon”)—securing a consent order on September 1, 2023 that The Wall Street Journal described as “a rare instance” of the FTC “throwing in the towel on litigation.”

The FTC had filed suit in Illinois federal court in May 2023 seeking a temporary restraining order and a preliminary injunction to block the acquisition—the largest in Amgen’s history—alleging the deal could harm future competition for certain biologic drugs. The FTC filed an amended complaint, joined by six states (California, Illinois, Minnesota, New York, Washington and Wisconsin), in June 2023, and on the same day instituted an administrative proceeding in the FTC’s administrative court seeking to permanently enjoin the transaction. The FTC based its challenge on a novel “bundling” theory, alleging that Amgen could limit competition by offering insurance companies and pharmaceutical benefit managers higher rebates on certain of its popular drugs in exchange for giving preferred status to either of two Horizon rare disease drugs—TEPEZZA®, the only FDA‑approved treatment for thyroid eye disease, and KRYSTEXXA®, the only FDA‑approved treatment for chronic refractory gout. Amgen denied that it had any incentive, ability or intent to bundle in the ways alleged by the FTC, and committed to the FTC and publicly, both prior to and during the litigation, that it would not bundle its products with either TEPEZZA® or KRYSTEXXA®.

The district court litigation proceeded under an expedited schedule, during which the Cravath team managed extensive fact and expert discovery, moved for summary judgment on counterclaims challenging the constitutionality of the FTC’s administrative lawsuit, and filed a preliminary injunction opposition brief.

The consent order—which followed shortly after Amgen filed its preliminary injunction opposition brief and was entered into just days before the evidentiary hearing in Illinois federal court was set to begin—ends all litigation and clears the path for the transaction to close. As described in Amgen’s press release announcing the resolution of the FTC lawsuit, the consent order formalizes the “narrow assurance” Amgen consistently made to the FTC, the courts and the public not to bundle its products with either TEPEZZA® or KRYSTEXXA®, and “will have no impact on Amgen’s business.”

The Cravath team included partners David R. Marriott, Timothy G. Cameron, Rachel G. Skaistis and Margaret T. Segall, of counsel Jesse M. Weiss, practice area attorneys Benjamin J. Bauer and Omar Debs and associates Hussein Elbashir Elbakri, Catherine G. Sheets, Megan Eloise Vincent, Frances C. McDonald, Kelsey A. Miller, Chizoba D. Ukairo, Kendra M. Kumor and Kristina Stankovic‑Kania.

The case is Federal Trade Commission v. Amgen Inc., et al., No. 1:23‑cv‑03053 (N.D. Ill.).