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Michael Clancy

Partner

Sample Lawyer

"Incredibly responsive, he has an incredible understanding of the pharmaceutical industry."

Acritas, Thomson Reuters 2020

Overview

Michael Clancy is a competition lawyer who focuses on providing clients with actionable, commercially-minded advice and solutions, allowing clients to manage complex internal and external challenges and achieve their objectives.

Michael works with clients in a range of industries and has extensive experience in the life sciences sector, where he advises clients on the competition law issues arising throughout the lifespan of a product, including:

Collaborations / Licensing / M&A

With over 15 years of experience advising clients on R&D collaborations, licensing and M&A transactions, Michael helps clients successfully plan, complete and implement complex transactions and long-term collaborations, navigating required government approvals and issues ranging from pricing control/IRP management, trade, exclusivity and information exchange.

Pricing 

Michael routinely advises clients on the pricing of high-profile medicines and other products, working closely with clients’ legal and pricing teams to develop compliant pricing strategies that allow successful agreements with customers and payors, address threats from competitors, and minimize any implementation issues that might otherwise undermine commercial success. Michael also provides advice on internal and external pricing governance systems that allow clients to implement desired pricing strategies across different countries and regions.

Strategies v. Competitors

While it is normal and allowable for companies to prepare for and compete with new entrants to the market and other competitors, certain activities may violate the competition laws and trigger large fines.  Michael works closely with clients’ legal and business teams to develop proactive guidance allowing compliant and effective responses to competitive threats.

Supply and Distribution

While supply and distribution systems are an afterthought in many industries, failure to implement legally robust systems to manage parallel trade, resale pricing and other issues can trigger legal compliance risks and undermine commercial success.  Michael works closely with clients on their supply and distribution systems to proactively address such issues with constructive and compliant solutions.

Compliance Tools

Michael works with clients to develop effective compliance tools, tailored to the clients’ specific business, which allow in-house counsel to constructively advise and guide business teams on competition law issues that may impact commercial success or create legal compliance risks.

Investigation Defense & Complaints

While our objective is always to help our clients avoid legal issues and regulatory scrutiny, where legal challenges arise, Michael works with clients on proactive steps intended to quickly resolve the issue or investigation, and has assisted clients to successfully resolve complaints and investigations by the EU and national competition authorities and before national courts.  Michael also supports clients to take legal actions against competitors engaging in illegal activities.

Languages

English

Recommendations

  • Legal 500 for Healthcare and Life Sciences (‘Next Generation’ leading lawyer)

Education

  • Yale Law School, J.D., 2003
  • University of Dayton, B.A. in Mechanical Engineering, 2000

Publications

Articles on competition law issues arising in the life sciences and other sectors.

Bar Admissions

New York
Brussels

Expertise

Publications and insights

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    • 29/07/2021
    • Articles

    Analysis – New Excessive Pricing Cases in the UK and NL – Major Developments or More of the Same?

    Over the past two weeks, the competition authorities for the UK (“CMA”) and the Netherlands (“ACM”) have imposed significant fines for unlawful excessive pricing of medicines, accelerating the recent trend in Europe of pharmaceutical companies facing prosecution and sanctions for significant price increases. Background On 15 July 2021, the UK CMA imposed fines of £155 million on Accord-UK (previously Auden Mckenzie / Actavis) for price increases of more than 10,000% on hydrocortisone tablets after they were de-branded and fell outside the UK NHS price regulations. The CMA also imposed additional fines of £111.5 million for cartel agreements entered into when other parties threatened to enter the market. On 20 July 2021, the NL ACM imposed fines of approximately €20 million on Leadiant Biosciences for charging higher prices on chenodeoxycholic acid (CDCA) after it successfully received orphan medicine status and regulatory exclusivity. On 29 July 2021, the UK CMA imposed fines of over £100 million on Advanz and its private equity owners (HgCapital and Cinven) for price increases of more than 6000% on liothyronine tablets. New Developments or More of the Same? NEW – Prosecution of excessive pricing during regulatory exclusivity. While past excessive pricing cases, as well as the two new cases in the UK, all involve products for which any patent or regulatory exclusivity had expired, the case in the Netherlands concerns the pricing of a product for which Leadiant held valid regulatory exclusivity under the orphan drugs regulations. While the Dutch competition authority took pains to emphasize that any innovation by Leadiant was minimal (as CDCA was previously available for many years), this case nevertheless represents an additional step by competition authorities, demonstrating that they are also willing to prosecute strategies involving large price increases and limited innovation. NEW - Highest ever fines. The fines issued in these cases are the highest fines ever imposed on pharmaceutical companies by the UK and Dutch competition authorities, indicating that the authorities in these countries consider such excessive pricing to be as serious an infringement as cartel conduct. NEW – Specific requirements when negotiating prices. The Dutch decision includes the legal standard the ACM expects to be met by dominant pharmaceutical companies when negotiating prices. Specifically, such companies have a responsibility of “active engagement” and to negotiate “effectively and seriously” with health insurers and other relevant public authorities, and ultimately “not to charge and collect an excessive price”. NEW - 1800% and 250% price increases allowed? In the case in the Netherlands, the price of CDCA increased from €46 to €14,000. However, only Leadiant’s last price increase (of 350% in 2017) was held to be an infringement, while Leadiant’s prior price increases of 1800% in 2009 and 250% in 2014 were not sanctioned. Potential explanations are that Leadiant was not dominant before receiving exclusivity in 2017 or that Leadiant’s prior price increases were justified by the costs it incurred to gain regulatory approval. SAME - Compliance with regulations is not an infringement, but it is also not a valid defense. The ACM does not allege that Leadiant unlawfully obtained an orphan designation for CDCA, or that the necessary price increase to cover the costs for the registration is unlawful. However, the ACM also does not appear to accept that Leadiant’s compliance with the orphan regulations and the associated “reward” of regulatory exclusivity empower Leadiant to freely set its prices in its discretion, and does not justify the last 350% price increase implemented in 2017. SAME – Comparisons with prices in other countries is also not a valid defense. Consistent with the approach of the European Commission and Italy in the Aspen case, the ACM did not appear to accept Leadiant’s argument that the list price set it the Netherlands is “the lowest in the EU” as a defense against a finding of excessive pricing. NEW – Authorities not deterred by losses in prior cases. The UK CMA’s prior high-profile case against Pfizer and Flynn for excessive pricing of phenytoin sodium capsules was annulled on appeal. Despite this high profile rebuke – with the CMA being criticised for, among other things, misapplying the legal test for excessive pricing and failing to properly evaluate evidence adduced by the parties – the CMA and ACM appear undeterred in the pursuit of cases involving significant price increases on medicines.

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    • 29/07/2021
    • Articles

    UK CMA continues crack down on excessive pricing of medicines

    On 29 July 2021, the UK Competition and Markets Authority (“CMA”) imposed fines totalling more than £101 million on Advanz Pharma and previous owners, Cinven and HgCapital, for charging excessive and unfair prices for liothyronine tablets – a treatment for hypothyroidism (see Press Release). In line with most recent excessive pricing cases, this new decision concerns a drastic increase in the price of a genericised medicine that could not be justified by increased costs, investments or innovation. During its investigation, the CMA uncovered Advanz’s strategy of identifying genericised medicines subject to no (or limited) competition and substantial barriers to new entry. After acquiring the rights to such medicines, Advanz would “de-brand” the medicines in order to avoid applicable price regulations. Using this strategy, Advanz Pharma was able to increase the price of liothyronine tablets by more than 6,000% between 2009 and 2017. As a result, NHS spending on liothyronine tablets increased from approximately £2.3 million in 2009 to above £30 million in 2016. Liothyronine tablets were ultimately placed on the NHS “drop list”, leaving patients with the option of either ceasing use of the treatment or having to purchase the treatment at their own expense. This new decision by the CMA follows hot on the heels of its £260 million fine on Auden Mckenzie and Actavis (now Accord-UK) for charging excessive prices and concluding anticompetitive market sharing agreements in relation to the supply of hydrocortisone tablets (for further information see our previous updates: (1) CMA fines hydrocortisone tablet suppliers over GBP 260 million; and (2) Analysis – New Excessive Pricing Cases in the UK and NL – Major Developments or More of the Same?).

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    • 23/07/2021
    • Articles

    CMA fines hydrocortisone tablet suppliers over GBP 260 million

    On 15 July 2021, the UK Competition and Markets Authority (“CMA”) imposed fines of more than GBP 260 million on the hydrocortisone tablet suppliers, Auden Mckenzie and Actavis (now named Accord-UK) for charging excessive and unfair prices and for paying potential rivals to remain out of the market (see Press Release). CMA Chief Executive, Andrea Coscelli, referred to the CMA’s findings as “without doubt some of the most serious abuses […] uncovered in recent years.” Excessive and Unfair Pricing The CMA found that Auden Mckenzie and Actavis charged excessive and unfair prices for 10mg and 20mg hydrocortisone tablets between 2008 and 2018 (Actavis took over Auden Mckenzie’s hydrocortisone tablet business in 2015 and is therefore liable for its conduct before that date). The CMA found that the parties had increased the price of the tablets by more than 10,000% compared to the price that had been charged for the original branded version of the tablets. More specifically, in April 2008, the price of a single pack of 10mg tablets was 70p and a pack of 20mg tablets was GBP 1.07; by March 2016, the prices had risen to GBP 88 and GBP 102.74, respectively. In supplying a de-branded version of the hydrocortisone tablets, the parties were able to exploit the fact that it is only the original, branded version of a drug which is subject to price regulation. In theory, the prices of de-branded medicines should be kept in check by the onset of competition between competing generic suppliers. However, in this instance – and to some extent due to the conduct of the parties (see Market Sharing below) - such competition did not, in fact, materialise. This created the space for the parties to drastically hike the price of their products. The total fine imposed by the CMA for the charging of excessive and unfair prices was GBP 155 million. Market Sharing The CMA also found that Auden Mckenzie concluded anticompetitive market sharing agreements with Waymade and AMCo (now known as Advanz Pharma). Pursuant to these agreements, Auden Mckenzie made monthly payments to Waymade and AMCo in return for their commitment to refrain from introducing their own generic hydrocortisone tablets to market. In total, over the duration of the agreement, AMCo received GBP 21 million and Waymade received GBP 1.8 million. The CMA fined Auden McKenzie/Accord-UK and Allergan (as its former parent company) a further GBP 66 million for its part in the market sharing agreement. AMCo/Advanz Pharma and its former parent, Cinven, were fined a total of GBP 43 million, and Waymade was fined GBP 2.5 million.

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