DOJ defends approval fix in CVS-Aetna merger

CVS pharmacy
DOJ reviewed comments on the merger of CVS and Aetna. (Mike Mozart/CC BY 2.0)

As a federal judge reviews the merger between CVS Health and Aetna, the Department of Justice is sticking by its agreement with the two companies.

DOJ probed the $69 billion deal to ensure it wasn’t anticompetitive and agreed to sign off on it if Aetna sold its Part D business. Aetna closed a sale of that piece of its business to WellCare in early December.

In a court filing (PDF) last week, DOJ defended that deal. Judge Richard J. Leon of the U.S. District Court for the District of Columbia asked DOJ to provide additional information as to why he should allow the two companies to fully integrated.

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The department reviewed 173 public comments about the merger, according to the filing, and after doing so it still believes that the deal it reached with the companies will effectively mitigate competition concerns.

“After careful consideration of the public comments, the United States continues to believe that the proposed Final Judgment, as drafted, provides an effective and appropriate remedy for the antitrust violations alleged in the complaint, and is therefore in the public interest,” DOJ said.

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DOJ offered a similar argument in a legal brief in December. Leon has allowed the merger to move forward as he reviews the deal.

A number of providers, and the American Medical Association in particular, have been vocal about their concerns with the merger. AMA called for regulators to block the deal, saying it would lead to to anticompetitive impacts in a number of markets.

DOJ said in the filing that the comments it reviewed ran the gamut of perspectives on the deal, including some who support the merger and some that expressed concern about WellCare buying Aetna’s Part D business.

Some comments were irrelevant, DOJ said, as they related to markets that would not likely be impacted by the deal, such as pharmacy benefit management. The department considered how the deal could impact those markets in its initial review, it said in the filing, and it maintains that the deal would not be anticompetitive in the PBM market.

“Although some commenters expressed concern about concentration in the PBM market, these concerns are misplaced because Aetna does not provide standalone PBM services,” DOJ said.

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