Nicole DeFeudis Editor

Amgen and Horizon filed counterclaims against the FTC, alleging the agency’s attempt to block their nearly $28 billion merger “runs roughshod” over provisions of the Constitution.

The FTC in May filed a lawsuit in federal court trying to scuttle Amgen’s proposed buyout of Horizon. The agency’s claims center around bundling, a scrutinized industry practice that involves offering multi-product discounts that make it difficult for rivals to compete. Amgen and Horizon previously called the case “as misguided as it is unprecedented,” and they argued the proceeding is unconstitutional on Thursday.

Amgen and Horizon argue FTC's suit to block $28B merger is 'as misguided as it is unprecedented'
Defendants alleged in new counterclaims that the FTC’s effort violates multiple provisions of the Constitution, including the due process clause of the Fifth Amendment “because the FTC will play the role of investigator, prosecutor and judge.”

“The FTC’s case is wholly novel and impossibly speculative,” the companies wrote. “Rather than allow an Article III court to adjudicate the merits of its novel challenge, the FTC seeks to have the ultimate merits of its case adjudicated in an administrative proceeding that is riddled with constitutional defects.”

There’s no direct overlap between Amgen and Horizon’s therapeutic focus. However, the FTC alleged the merger would allow Amgen to use rebates on existing drugs to gain favorable coverage for Horizon’s blockbuster thyroid eye disease and chronic refractory gout drugs: Tepezza and Krystexxa, respectively.

Amgen has said that it would not bundle Horizon’s drugs, and it wrote in court filings that it “would be willing to formalize that commitment in a binding consent order.”

In an answer to the FTC’s complaint filed last month, defendants claimed that “cross-benefit bundling” between medical-benefit products such as Tepezza and Krystexxa and pharmacy-benefit products such as Enbrel is rare, “if it is ever done at all.”

Amgen and Horizon said last month they remain confident that they can close the deal by mid-December. The deal was initially expected to close in the first half of this year. Both Amgen and the FTC declined to comment on Monday, and Horizon did not respond to a request for comment as of press time.

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