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Last day of Aetna trial

  • The witnesses today were Christine Hammer and Professor Aviv Nevo. Both sides summed up their arguments. Ms. Hammer stated that she was told Aetna would provide an outcome based analysis, but found no evidence of one, and that Mr. Gokhale's efficiency numbers were not verifiable.

  • The defense countered that Aetna had learned from its merger with coventry, and efficiencies then included concurrent review, reimbursement reforms, procurement, network savings, and all these efficiencies would happen in this merger. Hammer countered that many of those efficiencies were exaggerated or hadn't happened.

  • Professor Nevo followed, and rebutted some of Orszag's assertions. Aetna is free to re-enter the exchange markets, and numerous factors all show that MA is a relevant product market. The defense tried to poke holes in his assertions, but it just resulted in a staggeringly unproductive hour and a half of cross examination that got nowhere.

  • The closing statements were relatively brief (about 40 minutes each). DOJ said a major question was: can Aetna evade antitrust scrutiny by just withdrawing temporarily from markets? They emphasized that this case was different from the Arch Coal case. The defense said that DOJ has to prove the merger would lessen competition, and they have failed to do so.

  • Bates asked several questions. Of the plaintiffs, he asked whether there were other cases involving markets where the government was a competitor, what he should do if he concluded there was only competitive harm in a few counties, and what he should decide if he concluded Aetna was highly unlikely to reenter the market.

  • Bates asked the defense whether there were any cases that rejected HHI as an antitrust measurement, about Molina's lack of success in MA markets, and what the legal analysis should be if he concludes Aetna withdrew from 3 states to improve its legal position. He also commented that the divestiture was only worth it because Molina got the assets at an incredibly low price.

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