By Dalisha Sturdivant
The citizens of the United States of America have temporarily won again in the latest health insurance merger decision delivered by federal judge, Amy Berman Jackson.[1] On Wednesday, February 8th, 2017, the judge denied Anthem and Cigna, two of the largest health insurance companies in the nation, the opportunity to move forward with their impending merger.[2] She believed, and rightfully so, that the consolidation of these two health insurers would more than likely substantially effect competition in the marketplace by creating higher prices and eliminating the “number of national carriers available to respond to solicitations in the future”.[3] However, despite, the winning argument presented by the government and the ruling issued by the judge,[4] litigation of this matter is far from over. Instead the case is up for an appeal.[5] Only one side, Anthem, however, is up for the ride.[6]
The other side, Cigna, would rather collect its negotiated breakup fee and damages, a whopping 14.85 billion dollars, from Anthem, and move forward.[7] While Anthem, one of the major contenders in the case is seeking an expedited appellate decision,[8] in hopes of completing the agreed upon 54 billion dollar transaction that began more than a year and a half ago, in 2015.[9]
According to the terms of the merger agreement the transaction must be completed by April of 2017, which leaves Anthem with two months to come up with a master plan to achieve its goal of merging.[10] However, if Anthem’s dreams do come to fruition, this could be horrific news for hospitals and customers alike, who would both feel the brunt of the consolidation between the two companies caused by less competition.[11] This decrease in competition, will likely increase prices for customers and doctors, and would likely hinder the development of innovative healthcare solutions.[12] Similarly, the American Hospital Association believes the merger is likely to result in higher premiums and less coverage options for policy holders.[13]
On the flip side, if the outcome of the prior ruling is any indicator of the decision that is to come on the appellate level,[14] then the courts could be sending a loud, clear, message to big health insurance companies anticipating the consolidation of their companies.[15] Especially since this is the second rejection by the court of a merger of two health insurance companies in the last month; the first rejection was between health insurers Aetna and Humana.[16] The Department of Justice, current trend of suing health insures seems to be targeted only at the consolidation of large health insurance companies, who are able to “fundamentally reshape the health insurance industry”.[17]
As a precaution, however, companies seeking horizontal mergers in the near future should consider the following guidelines before they go through with a merger agreement: 1) make sure that the proposed merger will not substantially decrease competition,[18] as seen in this case,[19] and other proposals, such as the agreement between AT&T and T-Mobile, which was rejected by the Department of Justice;[20] and 2) make sure that the merger does not create a monopoly, as seen in the proposed agreement between EchoStar and DirecTV.[21] Although these suggestions are some of the relevant guidelines proposed by both the Federal Trade Commission and the Department of Justice, these suggestions should not be applied in a formulaic manner because each case is analyzed through a factual inquiry on a case-by-case basis.[22]
[1] Barbara Campbell, Federal Judge Blocks Merger of Anthem & Cigna, NPR, (Feb. 08, 2017 10:06 PM) https://www.npr.org/sections/thetwo-way/2017/02/08/514217680/federal-judge-blocks-merger-of-anthem-and-cigna.
[2] United States, et al. v. Anthem, Inc., et al., No. 16-1493 ABJ, at *1 (D.D.C Feb. 08, 2017).
[3] Id at *1-3.
[4] See id at. 1 (stating that the government carried their burden, and proved that the merging of the two companies would likely create “a substantial effect on competition”).
[5] Michael Erman, Anthem Sues Cigna to Block Termination of Merger, Reuters, (Feb. 15, 2017 6:34 PM) https://www.reuters.com/article/us-cigna-m-a-anthem-lawsuit-idUSKBN15U1AQ.
[6] See id (revealing that Anthem had to sue Cigna in order to stop Cigna from destroying the contemplated merger).
[7] Id.
[8] Id.
[9] Id.
[10] See Diane Bartz, Judge: No Ruling on Anthem-Cigna Merger Until 2017, Insurance Journal, August 15, 2016, www.insurancejournal.com/news/national/2016/08/15/423194.htm. (stating that the deadline for the deal is April 30).
[11] See Complaint at 4, United States v. Anthem, Inc., et al., No. 16-1493 ABJ (D.D.C. 2017) (“If allowed to proceed, this merger would enhance Anthem’s power to profit at the expense of both consumers and the doctors and hospitals providing their medical care.”).
[12] See id. at 5 (stating that if the merger took place, it would “deprive both providers and consumers of Cigna’s innovative efforts to work cooperatively with providers”).
[13] Vera Gruessner, How Health Insurance Mergers Could Change the Payer Industry, Health Payer Intelligence, http:healthpayerintelligence.com/features/how-health-insurance-mergers-could-change-the-player-industry.
[14] See United States, et al. v. Anthem, Inc., et al., No. 16-1493 ABJ, at *11 (D.D.C Feb. 08, 2017) (preventing the merger from going forward); See Kat Greene, Anthem Wins Rush On Cigna Merger Appeal, Law360, (Feb. 17, 2017, 9:50 PM), https://www.law360.com/articles/893806/anthem-wins-rush-on-cigna-merger-appeal (stating that the oral arguments for the appeal will began March 24).
[15] See Luke Gale Why The Looming Cigna-Anthem Merger Ruling is Different From Aetna-Humana, Healthcare Dive, (Feb. 1, 2017) www.healthcaredive.com/newsanthem-cigna-merger-national-account-market/435179/(“A court ruling against the merger would ‘draw a pretty deep line in the sand for future health insurance mergers’”).
[16]Carolyn Y. Johnson, Judge Blocks $54 Billion Anthem-Cigna Health Insurance Merger, (Feb. 9, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/02/08/judge-blocks-54-billion-anthem-cigna-health-insurance-merger/?utm_term=.c3205a8fe821.
[17] See Gruessner, supra note 13 (stating the reason for bringing suit was because these three companies” would leave the top five health insurers in just three mammoth companies”).
[18] See Jessica Roy, 4 Corporate Mergers Shot Down by the Government, Fusion, (Feb. 26, 2014 1:27 PM), fusion.net/story/4908/4-corporate-mergers-shot-down-by-the-government/; U.S. Department of Justice & Federal Trade Commission, Horizontal Merger Guidelines, (2010) (highlighting companies the government blocked from merging) [hereinafter Horizontal].
[19] Anthem, Inc., et al., No. 16-1493 ABJ, at *1.
[20] See Roy, supra note 18, Horizontal, supra note 16 (stating that after the DOJ announced it would try to block the merger, AT&T removed its bid).
[21] See Roy, supra note 18 (stating that the FCC blocked the agreement because it believed that it would “replace a vibrant competitive market with a regulated monopoly”).
[22] Horizontal, supra note 16.
