Aetna-Humana trial closes with pressing questions from judge

Attorneys from the U.S. Department of Justice and insurers Aetna and Humana answered a judge's closing questions during the final day of an antitrust trial in Washington, D.C., Wednesday, Hartford Courant reports. 

The antitrust trial concerning Aetna's proposed $37 billion acquisition of Humana began Dec. 5 after the DOJ sued to enjoin the proposed deal in July. U.S. District Court Judge John Bates closed the trial by asking lawyers from both parties if the transaction violated antitrust laws if the DOJ could only prove competition would be negatively affected in one county or one state.

Eric Mahr, a DOJ lawyer, said it would, while Aetna lawyer John Majoras said the DOJ had not shown antitrust laws would be violated in any area, according to the report.

Mr. Mahr continued the DOJ's argument that Medicare Advantage and traditional Medicare do not compete with one another. He said Medicare beneficiaries either chose traditional Medicare or Medicare Advantage plans and rarely transition from one to the other, although beneficiaries with Medicare Advantage plans do change among that type of plan. He also said Long Beach, Calif.-based Molina Healthcare — even with Aetna and Humana's divestiture of 290,000 Medicare Advantage customers — will not sustain competition were an Aetna-Humana insurer to limit competition.

Mr. Majoras countered Mr. Mahr, saying competition would be "excellent" in those markets. He also argued Aetna's decision to leave ACA exchanges in 11 states was a business decision, an argument he said is supported by financial information.

The DOJ and the insurers' attorneys will return to court Dec. 30 to make a final, 90-minute argument to Judge Bates, according to the report. A decision is expected to be reached by mid-January. Aetna and Humana have also extended the deadline of their acquisition agreement to Feb. 15.     

Elai Katz, antitrust partner at Cahill Gordon & Reindel, told Becker's Hospital Review that while is not difficult for a judge to accept the DOJ's position on cases like this, "The important precedent is the DOJ brought both of these cases [Aetna-Humana and Anthem-Cigna] to court. As far as the judge's decision, I'm sure it will be important, but I don't think it will tell you how some future health insurance merger turns out, because of the unique aspects of this merger."   

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