Go away on holiday, Judge Leon finally jumps into the hole. It took two months from the last hearings in mid-July, and nine months in total (delivered after last year’s Thanksgiving turkey) but Judge Richard Leon of the Federal District Court finally–and somewhat unexpectedly–ruled that the CVS-Aetna merger could be at last a Done Deal.
The Final Judgment goes into extensive detail about the Medicare Part D divestiture by Aetna to WellCare, complete with a Monitoring Trustee. On the very last page, Judge Leon admits that the merger is in the Public Interest.
The entire process, which is chronicled here, was unprecedented in the annals of Federally approved mergers. Usually a District Court Tunney Act review of a merger already through the wringer of the DOJ and the states is brief. Judges don’t make headlines, save when their rulings are the coup de grace (see: Aetna-Humana, Anthem-Cigna). Instead, Judge Leon called hearing after hearing, witness after witness from the AMA to PIRG, opining all the way, even turning away five supporting states petitioning (in vain) to be heard.
This high-profile precedent doesn’t bode well for future mergers, especially for healthcare. Fierce Healthcare, Columbus Dispatch
What better way to introduce this new feature than with a picture of a Raymond Loewy-designed 1947 Studebaker Starlight Coupe, where wags of the time joked that you couldn’t tell whether it was coming or going?
Is it the turkey or the stuffing? In any case, it will be the place you’ll be going for the Pepto. The CVS-Aetna merger, CVS says, will close by Thanksgiving. This is despite various objections floated by California’s insurance commissioner, New York’s financial services superintendent, and the advocacy group Consumers Union. CEO Larry Merlo is confident that all three can be dealt with rapidly, with thumbs up from 23 of the 28 states needed and is close to getting the remaining five including resolving California and NY. The Q3 earnings call was buoyant, with CVS exceeding their projected overall revenue with $47.3 billion. up 2.4% or $1.1 billion from the same quarter in 2017. The divestiture of Aetna’s Medicare Part D prescription drug plans to WellCare, helpful in speeding the approvals, will not take effect until 2020. Healthcare Dive speculates, as we did, that a merged CVS-Aetna will be expanding MinuteClinics to create urgent care facilities where it makes sense–it is not a big lift. And they will get into this far sooner than Amazon. which will split its ‘second headquarters’ among the warehouses and apartment buildings of Long Island City and the office towers of Crystal City VA.
Whatever happened to the Delaware Chancery Court battle between Anthem and Cigna? Surprisingly, no news from Wilmington, but that didn’t stop Anthem shareholder Henry Bittmann from suing both companies this week in Marion (Indiana) Superior Court. The basis of the suit is Anthem’s willfully going ahead with the attempted merger despite having member plans under the Blue Cross Blue Shield Association meant the merger was doomed to fail, and they intended all along for “Anthem to swallow, and then sideline, Cigna to eliminate a competitor, in violation of the antitrust laws.” On top of this, both companies hated each other. A match made in hell. Cigna has moved on with its money and bought Express Scripts.
IBM Watson Health division head Deborah DiSanzo departs, to no one’s surprise. Healthcare IT News received a confirmation from IBM that Ms. DiSanzo will be joining IBM Cognitive Solutions’ strategy team, though no capacity or title was stated. She was hired from Philips to lead the division through some high profile years, starting her tenure along with the splashy new Cambridge HQ in 2015, but setbacks mounted later as their massive data crunching and compilation was outflanked by machine learning, other AI methodologies, and blockchain. According to an article in STAT+ (subscription needed), they didn’t get the glitches in their patient record language processing software fixed in ‘Project Josephine’, and that was it for her. High profile partner departures in the past year such as MD Anderson Cancer Centers, troubles and lack of growth at acquired companies, topped by the damning IEEE Spectrum and Der Spiegel articles, made it not if, but when. No announcement yet of a successor.
It seems like a year ago that the US Department of Justice sued to stop the merger of these healthcare payer giants on antitrust grounds, but it was only July! On the face of it, it would reduce the Big 5 Payers to the Big 3, with the $48 bn Anthem-Cigna matchup besting UnitedHealthcare for the #1 pole position with 45 million covered persons. DOJ also cited reduction of benefits, raising premiums, cutting payments to doctors and reducing the quality of service. 11 states, including New York, California and Connecticut, plus the District of Columbia, are backing the DOJ.
The Anthem – Cigna trial started today in US Federal Court in Washington DC. It is a two-phase hearing: the first on Anthem – Cigna’s merger’s effect on national employers, the second starting 12 Dec on local markets.
So much has happened since our July report, none of it good. ACA exchange plans have hiked benefits up well into the double digit increases by state due to lack of competition: CO-OP insurers couldn’t defy actuarial gravity for long and went out of business; commercial insurers lost too much money and bailed from multiple states (KFF). The effect on Medicare Advantage programs, which are judged on the county-state level, will be most significant with a combined Aetna-Humana having 40-50 percent market share in many counties. This triggers divestiture in current regulations.
These mergers rarely go to court after a DOJ action, so all eyes are on DC. An added fillip is that many expected the lawsuit to be the final kibosh on a Anthem-Cigna deal where reports of conflicts on future management and governance of a single entity were frequent. It wasn’t–and DOJ reportedly will be using documentation on the governance clash to demonstrate why it should not take place.
The $38 bn Aetna – Humana court date is 5 Dec, also in Washington, before a different judge. All want a decision before year’s end so that (if positive) they can proceed with state regulatory approvals before deal expiration on 30 April 2017.
Bloomberg Big Law Business, USA Today Also don’t assume this has much to do with a Donald J. Trump administration being ‘typical Republican=friendlier to Big Mergers’, because the president-elect has been hostile to other high profile ones, notably AT&T/TimeWarner, and this will be over before a new Attorney General is confirmed.