Tale of two mergers: Cigna-Anthem goes south; Humana, Aetna drop plans

Cigna Corp. has chosen to terminate its proposed merger agreement with Anthem, Inc., which would have combined two of the largest medical health insurance carriers in the U.S. in a $54 billion deal. The decision comes after a D.C. court order enjoining the transaction. The district court found that the merger would decrease competition and lessen choices in the health insurance market and that the competitive harm could not be offset (see Swan song for Anthem’s acquisition of Cigna?, Health Law Daily, February 9, 2017). In 2015, proposed mergers were announced between four of the five largest health insurance companies in the United States. In addition to Anthem’s proposed acquisition of Cigna, Aetna, Inc. attempted to purchase Humana Inc., and the subject quickly came under scrutiny (see To merge or not to merge, that was the question before a Senate subcommittee, Health Law Daily, September 24, 2015).

In Cigna’s announcement about the merger termination, the company noted that its decision was based on its belief that the proposed merger would not have been approved. To effect termination, Cigna filed a complaint in the Delaware Court of Chancery seeking declaratory judgment that it lawfully terminated the merger agreement and that Anthem is not permitted to extend the termination date. Cigna’s complaint seeks payment by Anthem of the $1.85 billion reverse termination fee contemplated in the merger agreement, as well as additional damages in an amount exceeding $13 billion. In response, Anthem sought a temporary restraining order in the same court to enjoin Cigna from terminating and taking any actions contrary to the terms of the proposed merger agreement. Anthem contended that there was still sufficient time to meet the merger agreement date of April 30, 2017, and that the merger would save more than $2 billion in annual medical costs for consumers. Anthem also provided a long list comparing the carrier’s interests in proceeding with the merger and Cigna’s interest in avoiding it.

In addition to Cigna and Anthem’s announcements following the D.C. court ruling, Humana and Aetna recently terminated their pending merger agreement (see Aetna, Humana plan separate futures after dissolving merger plans, Health Law Daily, February 14, 2017; Aetna’s $47 billion purchase of Humana enjoined, Health Law Daily, January 23, 2017). Under the terms of the merger agreement, Humana is entitled to a “breakup fee” of $1 billion, or approximately $630 million, net of tax. Of note, in order to demonstrate that its proposed merger with Humana would not run afoul of antitrust issues similar to the now contentious Anthem-Cigna merger, Aetna had pulled out of some health insurance exchanges for the upcoming enrollment period. Humana has now stated its intent to pull out of the exchanges for 2018. President Trump weighed in on the pullout, repeating the “repeal and replace” mantra. The pullout is based on Humana’s analysis of data associated with the company’s exchange membership following the 2017 open enrollment period, and what it perceived as future uncertainty in the risk pool.

AMA warns of drastically reduced competition if mergers allowed

More competition is needed in the health insurance markets, a premise supporting the efforts to block the merger of four of the nation’s biggest health insurance companies, according to an analysis by the American Medical Association (AMA). Anthem’s acquisition of Cigna and the merger of Aetna and Humana would essentially eliminate competition in 24 states. The Department of Justice filed suit in July to challenge the two mergers (see DOJ lawsuit steps in between Aetna-Humana and Anthem-Cigna mergers, Health Law Daily, July 21, 2016).

Competition in health insurance markets

The AMA assessed the anticompetitive impact of the potential mergers in “Competition in Health Insurance: A Comprehensive Study of U.S. Markets,” which is based on 2014 data captured from commercial enrollment in fully and self-insured health maintenance organizations (HMOs), preferred provider organizations (PPOs), and point-of-services (POS) plans. The analysis found a significant absence of health insurer competition in 71 percent of the metropolitan areas studied. In 40 percent of the metropolitan areas studied, a single health insurer had at least a 50 percent share of the commercial health insurance market. In 14 states, a single insurer had at least a 50 percent share of the commercial health insurance market.

Specifically, the Anthem-Cigna merger stands to quash competition in 121 metropolitan areas throughout 14 states. Nine of the states are attempting to block the merger, but Indiana, Kentucky, Nevada, Ohio, and Wisconsin have not yet taken a position. The Aetna-Humana merger would shut down competition in 57 metropolitan areas in 15 states. Only four states have acted to block the merger, but Arizona, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Tennessee, Texas, Utah, West Virginia, and Wisconsin have not yet taken a position.

“The AMA analyses show that Anthem-Cigna and Aetna-Humana mergers would significantly compromise market competition in the health insurance industry and threaten health care access, quality and affordability,” said Andrew W. Gurman, M.D., president of the AMA. “With existing competition in health insurance markets already at alarmingly low levels, federal and state antitrust officials have powerful reasons to block harmful mergers and foster a more competitive marketplace that will operate in patients’ best interests.”