Federal judge says he won’t ‘rubber stamp’ CVS-Aetna deal

CVS HEALTH AND AETNA say their $70 billion deal closed on Nov. 28 and they are forging ahead.

Not so fast, says Judge Richard Leon of the U.S. District Court for the District of Columbia. In a highly unusual move last week, Leon said he still must sign off on an agreement between the companies and the Justice Department before it can be finalized.

In a brief court appearance where he did not permit the parties’ attorneys to present arguments, Leon announced he will hold another hearing Dec. 18. CVS and

Aetna have until Dec. 14 to show him why they shouldn’t hold off on their consolidation.

It isn’t clear whether Leon has any power to forestall the companies’ integration.

“CVS Health and Aetna are one company, and our focus is on transforming the consumer health experience,” a company spokesperson said.

Among Leon’s chief complaints is that he not be viewed as a “rubber stamp.” The Justice Department filed a status report last week saying Leon’s role was limited to making sure the final settlement fixed the antitrust violations that spurred the initial government lawsuit joined by state regulators.

“I didn’t ask for a status re- port,” Leon told federal attorneys.

He noted that the original complaint raised anti-competitive concerns and referred to the American Medical Association’s “lengthy concerns as well.”

Daniel McInnis, an antitrust attorney with the firm Thompson Hine who observed the proceedings, said the Justice Department didn’t hedge on its position.

“It’s always dangerous for a litigant to pick a fight with a federal judge, even for the government, but that is what happened here,” McInnis said. “Not only does DOJ claim that the Tunney Act does not empower Judge Leon to on his own to halt the integration of CVS/ Aetna, they further argue it would be a constitutional violation by having a court infringe on the executive branch’s exercise of prosecutorial power.”

Courts have to oversee Justice Department settlements in cases like these to make sure they are in the public interest and not the result of sweetheart deals with the administration in power. ●