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The court order blocking Aetna Inc.’s $37 billion deal to buy rival insurer Humana Inc. highlights the substantial challenges faced by the proposed mergers of major health insurers, health-care attorneys told Bloomberg BNA.
The Jan. 23 decision by Judge John D. Bates of the U.S. District Court for the District of Columbia rejected multiple arguments by the insurers touting the benefits of the transaction and the breadth of competition in the market to insure Medicare-eligible individuals ( United States v. Aetna, Inc. , 2017 BL 17951, D.D.C., No. 1:16-cv-1494, 1/23/17 ).
The court also faulted Aetna for its efforts to pull out of Obamacare marketplaces in Florida, Georgia and Missouri, saying the insurer intentionally left the public exchanges in order to avoid antitrust scrutiny.
“The court ruled for the government on virtually all of its points: The merger is anticompetitive in Medicare Advantage and in individual products sold on the exchanges,” Douglas Ross, an antitrust and health-care attorney for Davis Wright Tremaine in Seattle, told Bloomberg BNA.
Other health-care antitrust attorneys told Bloomberg BNA the breadth of the court’s 158-page opinion didn’t bode well for the chances of an appeal or for any other proposed major mergers, including the $48 billion transaction proposed to join Anthem Inc. and Cigna Inc. that is under review by a different judge in the same court.
Nearly all of the health-care antitrust attorneys who spoke to Bloomberg BNA expressed a belief that the court’s opinion would be upheld if appealed.
“Unlike the victories hospitals won against the FTC last year in the two hospital mergers in Pennsylvania and Chicago, this is not likely to be reversed soon or ever,” Ross said.
“This is a belt-and-suspenders opinion,” he said. “If an appellate court were to quarrel with the judge's reliance on some evidence, he has other evidence to show them that supports the same conclusion,” he said.
J. Mark Waxman, a health-care antitrust attorney with Foley & Lardner LLP in Boston, said defense against any appeal would be an early test of the priorities for antitrust enforcement by the Trump administration’s Department of Justice.
“Given the policy issues and costs of such an effort, we can only wonder whether the new administration would want to continue such aggressive efforts as a new approach in this area may affect the plan or provider landscape,” he added.
The fate of the Anthem-Cigna merger is also thrown into doubt by the court’s decision, according to the attorneys.
“The case continues the unbroken string of mergers in the industry in which courts have rejected an efficiencies argument,” Ross said.
“Significantly, for those looking for clues as to how Anthem-Cigna may be decided, this court said it was concerned that ‘a significant share of the claimed efficiencies may be retained by the merged firm rather than being passed on to consumers,’” he said.
“If the judge blocked this deal, there is very little, if any, chance that the Anthem-Cigna deal gets cleared,” Jason McGorman, a Bloomberg Intelligence analyst, told Bloomberg BNA.
The court’s opinion focused largely on the market for Medicare Advantage plans, which provide private insurance coverage for elderly individuals who would otherwise be eligible for Medicare coverage. The federal government had argued the merger would eliminate competition between Aetna and Humana in 364 counties in 21 states and would drive up Medicare Advantage premiums.
The insurers, however, said the court should consider seniors who are covered by Medicare as part of the market when evaluating the transaction and not just focus on those who have opted to purchase Medicare Advantage plans. The court disagreed, saying many seniors who purchase Medicare Advantage plans would be unwilling to switch to standard Medicare even if premiums increased.
“The court recognized that original Medicare, along with Medicare supplements, is functionally interchangeable with MA plans, yet it still found MA plans a separate relevant market,” Ross said. “The court relied heavily on merger cases decided in recent years by the D.C. Circuit—the court that will review this result if there is an appeal.”
Jack Rovner of the Health Law Consultancy in Chicago agreed, pointing out the merger obtained at least one state-level approval based on including Medicare in the product market.
“The Florida Office of Insurance Regulation approved the merger on finding that original Medicare and Medicare Advantage compete in the same product market,” he told Bloomberg BNA.
“Judge Bates was convinced otherwise by DOJ’s economist and, most telling, by the Aetna and Humana documents,” Rovner, who advises health-care clients on antitrust and other issues, added.
Rovner said the court’s use of Aetna and Humana documents to rebut their own proposed market definition signaled that potential merger partners “can’t reinvent reality after the fact to try to save their deal.”
In an attempt to address the government’s antitrust concerns, Aetna and Humana before trial proposed selling Medicare Advantage plans covering several hundred thousand seniors to smaller rival Molina Healthcare.
Bates was unconvinced that this arrangement would replace competition lost by the merger.
The judge agreed with the DOJ that Molina lacks experience in offering Medicare Advantage coverage and couldn't take on the task of competing in that market. Molina, which draws most of its business from Medicaid, tried to expand into Medicare Advantage on prior occasions but was unsuccessful.
After evaluating the evidence, Bates concluded that the managed care company would “struggle to put together a competitive provider network in the available time frame.”
The decision reinforces that it’s difficult to convince courts to sign off on merger remedies, said David Kully, a former head of the DOJ litigation section in the antitrust division.
“Courts are going to scrutinize carefully whether the proposed remedy will restore the loss of competition and aren’t going to accept the assertions of the parties at face value that it will,” said Kully, now a partner at Holland & Knight.
California-based Molina reported 2015 revenues of $14 million compared with Aetna’s $60 billion and Humana’s $54 billion.
The proposed fix was also torpedoed by internal communications among Molina executives presented in court. E-mails exchanged between the board of directors and top executives revealed that company leadership doubted its ability to handle the assets.
“This is a very different business from what we do, including commercial marketing, pricing, contracting, etc,” a Molina board member wrote in an e-mail. “Unless we can acquire some talent as part of the deal, I think we are woefully under-resourced to be able to take this on.”
Bates flagged the “extremely low” purchase price—Molina would have paid $117 million in cash for plans that cover about 290,000 members—as supporting his concern over whether Molina could be a successful competitor. The DOJ argued the offer reflected the riskiness of the deal and made Molina more able to abandon plans while still making a profit.
The court’s opinion also faulted Aetna for preemptively bowing out of some public exchanges under Obamacare, saying the insurer did so in an effort to thwart the DOJ’s case against the merger.
Aetna argued it made a business decision to exit the exchange markets because those plans were losing the company money, but the court didn’t accept that explanation.
The court found Aetna made a litigation decision to exit those markets after the DOJ challenged the merger.
Ross pointed out that the court focused on Aetna's suggestion to the government that, if it permitted the merger, Aetna wouldn’t exit those markets.
“Here’s a tip for practitioners: don’t let your client threaten the government. It won't go over well,” he said.
If the deal falls through as a result of the court’s decision, Aetna will be on the hook for a $1 billion breakup fee to Humana.
In the two days since the court’s decision was announced, Aetna shares dropped by 4 percent from just over $122 a share to just over $117 per share.
However, Humana’s shares rose by just over 2.5 percent on Jan. 23, the day that the court’s decision was announced, closing at just over $205 a share, up from just over $200 a share. On Jan. 24, the insurer’s stock gave back much of those gains, closing at just under $200 per share.
Credit rating agency Fitch Ratings said it wouldn’t take any immediate action with regard to either company after the court’s decision, instead choosing to wait and see whether the insurers appealed the decision and the result of that appeal.
The court's opinion is at http://src.bna.com/lBJ.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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