It was always going to be a tall order for Aetna to purchase Humana.
"The Court finds that Aetna is likely to offer plans on the exchanges only in the three complaint counties in Florida in 2018 and beyond, and that the merger is likely to substantially lessen competition in those counties", the decision said.
"In that (Medicare Advantage) market, which is the primary focus of this case, the merger is presumptively unlawful - a conclusion that is strongly supported by direct evidence of head-to-head competition as well".
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"Significantly, for those looking for clues as to how Anthem-Cigna may be decided, this court was concerned that 'a significant share of the claimed efficiencies may be retained by the merged firm rather than being passed on to consumers, '" he added.
A Humana executive, according to the opinion, was doing similar research on its competitor, requesting information on Aetna's pricing and plan design and where it offered plans in the exchanges.
The companies' CEOs argued that they presented a "compelling case" and addressed all of the concerns put forth by the Department of Justice, which filed an antitrust lawsuit last summer to prevent the 2015-announced merger from being completed, citing reduced competition, increased prices to consumers, and hindered innovation.
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Jonathan Mayhew runs Aetna's exchange business and that the company should pull out of the exchanges altogether because it "has continued to deteriorate as the year has progressed".
In August, Aetna said it made a decision to reduce 2017 ACA participation by 536 counties in 11 states, including Georgia, Florida and Missouri, due to heavy fiscal losses - more than $400 million since it began participating in the exchanges in 2014. U.S. District Judge John D. Bates ruled Monday that the marriage would violate antitrust laws.
"[Aetna] did not [leave] for business reasons, but instead to follow through on the threat", Bates said, noting another message from Bertolini to a former colleague that said Obama's government had "no loyalty" and a "very thin skin". According to the opinion, after learning that Humana was staying in the 17 counties that had been highlighted by antitrust officials in their case, the company chose to withdraw from those counties - "to avoid antitrust scrutiny", the judge wrote.
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"In the company's statement, [Aetna CEO Mark] Bertolini said, 'As a strong supporter of public exchanges as a means to meet the needs of the uninsured, we regret having to make this decision.'. The companies' rebuttal arguments are not persuasive", Bates wrote in a 158-page decision.