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Judge Orders DOJ to Continue Reviewing CVS-Aetna Despite Shutdown

Analysis  |  By Steven Porter  
   January 15, 2019

An 'internal, political squabble over funding' is no reason to put off reviewing the megamerger, the judge wrote, with a literal exclamation point.

In light of the partial government shutdown, the U.S. Department of Justice Antitrust Division said in a court filing last week that its attorneys lack the resources they need to continue reviewing the nearly $70 billion merger between CVS Health and Aetna.

The federal judge overseeing the review, however, isn't having it.

Seizing on the DOJ's statement that government attorneys would have to stop working until funding is restored, "unless otherwise ordered by the Court," U.S. District Judge Richard J. Leon in the D.C. District Court specifically ordered the DOJ to keep working, despite the lapse in funding.

Leon interpreted the DOJ's filing as a request for an indefinite stay, writing in an order late last week that such a delay would undermine the DOJ-authorized CVS-Aetna deal.

"If the merger will bring the benefits and efficiencies to the healthcare system the Government claims it will, staying it because of this unfortunate funding impasse would be unwarranted and could have far-reaching consequences in markets that affect consumers' health and well-being," Leon wrote.

"In short," he added, "the Government's internal, political squabble over funding is NO reason to postpone the congressionally mandated evaluation of the Government's proposal to remedy the antitrust concerns allegedly raised by the merger's consummation !"

Before the shutdown, the DOJ had said it would respond by early February to public comments about the megamerger. In its filing last week, the DOJ said it would give the court an updated timeline after funding is restored. That didn't fly with Leon.

"I expect the Government attorneys working on this case to roll up their sleeves, respond to the public's concerns about the CVS-Aetna merger, and file the comments received from members of the public and the Government's response to those comments with this Court by the 15th of February," he wrote.

Related: CVS-Aetna Aims to Complement Health Systems, Says Chief Digital Officer

The DOJ signed off on the CVS-Aetna deal last October after requiring that Aetna sell its Medicare Part D plans to WellCare Health Plans to alleviate anticompetitive concerns. The companies considered their union sealed in late November, but Leon instructed them to keep some operations separate while he completes the review process.

Even so, CVS CEO Larry Merlo outlined the combined CVS-Aetna strategy during the JP Morgan Healthcare Conference in San Francisco last week .

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.

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