The next chapter of the ‘Perils of Pauline’ saga that is the CVS-Aetna merger won’t commence until June, as it turns out, but already the amici curiae are piling up on both sides. Judge Richard Leon of the US District Court for the District of Columbia has been lining up the witnesses he’ll be hearing from, both for and against.
On the ‘anti’ side, testifying that the settlement agreement would be anti-competitive and not in the best interest of consumers, the American Medical Association (AMA) had called in three professors, the AIDS Healthcare Foundation three, and Consumer Action and the US Public Interest Research Group (PIRG) one. On the ‘pro’ side, put forward by CVS and for the Department of Justice, are five witnesses, healthcare executives and government consultants, who will testify that actions taken by CVS and DOJ will preserve competition and benefit consumers.
Certainly as we clock the ninth month after DOJ approved the merger and the companies have closed the deal, the drama continues, as Judge Leon continues to get coverage and the merger continues to be held up in this highly unusual proceeding. HealthLeaders 22 April and 7 May.
Update 13 May. The DOJ is challenging the three AMA witnesses, saying that they will be broadening the hearing beyond the settlement agreement which is what the review by Judge Leon is supposed to be about. On the other hand, the judge has already stated that the settlement covers “about one-tenth of 1%” of the merger, so he is already staking out a much larger territory. The AMA, of course, is quite pleased with the opportunity. Is this hearing pushing the envelope of judicial overreach in this judge’s interpretation of what a District Court can do under the Tunney Act? We can only wait and see. Healthcare Dive 13 May. Our coverage of the hearing to date here.
Update 14 May. DOJ of course lost its fight with Judge Leon to limit the scope of the hearing and the AMA witness testimony, with the judge stating it is “essential” to understand how PBM affects Medicare Part D drug plans, though Aetna divested itself of the latter at DOJ’s direction. Both sides have three approved witnesses each for the three-day hearing. The ‘antis’ are Neeraj Sood (AMA), Diana Moss (Consumer Action/PIRG) and Michael Wohlfeiler (AIDS Healthcare foundation). The ‘pros’ are Alan Lotvin (CVS Health), Terri Swanson (Aetna) and Lawrence Wu (NERA Consulting). Healthcare Dive 14 May