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Aetna/CVS Merger Reviews Advancing with State AGs a Question Mark

A working group of 18 state attorneys general is looking “very closely and very hard” at the Aetna/CVS merger and the review of the deal by the Department of Justice, a person close to the working group told CTFN.

This person would not confirm which states were most active, nor confirm whether any AGs were contemplating separate litigation.

CTFN previously reported on the working group and that the review of the merger at the DOJ was likely to conclude with the DOJ asking for a divestiture of Aetna and CVS’ overlapping Medicare Part D assets.

Richard Scheffler, professor of economics and public policy at the University of California, Berkeley, whose analysis of the transaction has figured in several state insurance commission reviews of the merger, notably in California and more recently in Utah, suggested that the AGs’ positions have to do with political ambitions during election season, notwithstanding his analysis of the horizontal overlaps in the two companies’ Part D portfolios.

“If they (the state AGs) attempt to go after this vertical deal they will lose,” Scheffler said.

He added: “It will be difficult to stop this deal based on law, mostly because the vertical guidelines are out of date and poorly written. The horizontal issue here, however, is easy to codify and that is what DOJ will use to get a divestiture, which will be a victory.”

Scheffler noted there is pressure to get the deal done by the end of September and believes the DOJ will approve.

The person close to the state AG working group pointed out that even if the DOJ and state insurance departments approve, the AGs can still separately challenge the deal. “They are on separate paths with no working collaborations.”

STATE INSURANCE COMMISSIONS

State insurance reviews are continuing with the Connecticut public hearing scheduled for September 12. “If Connecticut approves, states that remain on the fence will follow,” Scheffler said.

The merger requires approval from 27 state insurance departments.

A CVS spokesperson told CTFN a substantial number of states have held a public hearing and approved the transaction. The company also noted that some states prefer to wait for DOJ’s decision before finalizing approval.

CTFN has been able to confirm the following:

-Arizona approved the transaction on July 31.
-Florida cleared the transaction on April 13.
-Georgia confirmed the application is under review with no public hearing date yet scheduled.
-The Iowa Department of Insurance said it continues to review the application for completeness and no hearing has yet been scheduled.
-The Kansas Insurance Department did not opt for a hearing and is preparing a conditional order of approval, contingent upon approval by both Connecticut and the DOJ.
-Louisiana approved the transaction on March 29.
-Maine will hold a public hearing on August 30. No intervenors filed to be heard at the hearing.
-The application remains under review in Maryland.
-Michigan approved the transaction on May 10, with conditions.
-Minnesota gave the deal its blessing on May 7.
-Missouri confirmed it awaits a decision from the DOJ.
-Nebraska held a public hearing on May 16 and cleared the transaction on May 24.
-The New York Department of Financial Services said it continues to review application.
-Ohio confirmed the application is still under review.
-In Oklahoma the application is pending and they are waiting for Connecticut to make a determination and will follow that state’s lead. There is no public hearing scheduled and they do not anticipate holding one.
-There will be no public hearing in Pennsylvania, where the application is under review.
-Tennessee held a public hearing on August 22 and will make a decision by September 24.
-The review continues in Texas where a hearing is not required unless there is a denial and a hearing is requested.
-Utah approved the transaction on August 28.
-Vermont explained the transaction meets the criteria for exemption and needs no approval there.
-Virginia cleared the transaction on June 7.
-Washington held a public hearing on July 12 and told CTFN the parties just filed a proposed final order with conditions. A decision will be made in the next several weeks.

New Jersey and West Virginia did not respond to inquiries.

Top stories on CTFN this week:  SCTWS, LINU:GR.

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Diane Alter

Diane Alter

Diane Alter began covering stories for CTFN in September of 2014, and has since developed an extensive network of contacts in the antitrust community and among academia, institutional shareholders, and corporate leaders. Diane previously reported on business and markets for publications including CNN Money, CBS News, the San Francisco Chronicle, Boston.com, IPO News, AOL Finance, and Yahoo Finance. Diane attended Virginia Tech and Penn State and has a business management degree from Brookdale College.

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