US District Judge Richard Leon in Washington. Credit: Diego M. Radzinschi / NLJ

A Washington federal judge excoriated a U.S. Justice Department lawyer Thursday for keeping him “in the dark” about the consummation of CVS Health’s $69 billion acquisition of Aetna Inc. and urged the companies to wait for a final judgment on the deal before integrating their operations.

U.S. District Judge Richard Leon, appearing livid at times, accused the Justice Department and the two companies of treating his antitrust review of the acquisition as a “rubber stamp operation.” And he expressed concern about how the integration of CVS and Aetna, which completed their merger Wednesday, would be unwound in the event that he rejects their merger.

“You need to slow this down,” Leon said. “You’re like a freight train out of control.”

The Justice Department approved the deal in October on the condition that Aetna sell its Medicare Part D prescription drug plan business.

Leon had scheduled Thursday’s hearing in response to the Justice Department’s request to appoint Julie Myers Wood, chief executive of the the monitoring firm Guidepost Solutions, to oversee the insurance giant divestiture of that business to WellCare Health Plans Inc. After receiving the motion to appoint Myers as the monitor, Leon said he “kind of got this uneasy feeling about being kept in the dark, kind of like a mushroom.”

Leon asked Justice Department lawyer Jay Owen about the “practical consequences” of the merger. When Owen said CVS and Aetna had closed their deal, Leon sarcastically replied, “Thanks for telling me.”

Leon, who approved AT&T Inc.’s acquisition of Time Warner in June, stressed that he had not issued a final judgment approving the CVS-Aetna merger and noted that the public comment period on the Justice Department’s settlement allowing the deal was not set to close until mid-December. The judge pointed to what he described as a “140-page” opposition filed by the American Medical Association, saying that he would take comments and other evidence into account before handing down a final ruling on the acquisition.

“Let’s make it clear, Mr. Owen: This court’s not a rubber stamp,” Leon said.

“Who knows where this is going. No one knows,” Leon said later in the hearing. “And you all are treating this like a rubber stamp operation.”

Owen declined to comment after the hearing.

Lawyers for CVS and Aetna were not called to speak during the hearing. CVS was represented in court Thursday by Dechert partner Rani Habash. Davis Polk & Wardwell partners Howard Shelanski and Jesse Solomon appeared for Aetna.

Leon suggested his ruling might not come for several months. He asked, “If I rule against it, how do you untangle seven months of integration?”

“Very difficult,” Leon said, answering his own question.

Owen described the possibility of the deal’s rejection as a “business risk” that the companies were bearing.

Leon urged the Justice Department to meet with Aetna and CVS and consider how to account for the possibility of the merger being rejected, before scheduling a follow-up hearing for Dec. 3.

When Owens asked if Leon would still appoint Myers to oversee Aetna’s divestiture, the judge said the companies also needed to consider what ramifications a denial of the merger would have for the insurer’s planned sale of the prescription drug plan business to WellCare.

“You need to think about that, frankly,” Leon said. “See you Monday.”

 


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