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typical antitrust analysis.203 Furthermore, a commissioner’s review is independent and therefore not required to follow reviews completed by other regulators.204
B. Where Proposed Deals Stand Now
Currently, the DOJ is simultaneously reviewing the proposed Anthem- Cigna and Aetna-Humana mergers and evaluating the interaction of the two.205 State attorneys general and state insurance commissioners have the ability to evaluate and investigate mergers. Fifteen state attorneys general have joined the DOJ’s investigation of both Aetna-Humana and Anthem- Cigna proposed mergers.206 In addition to the DOJ and states’ attorneys general, state insurance commissioners within jurisdictions where the parties do business will investigate and evaluate the mergers, taking into account local competition and whether the mergers will benefit consumers.207 Anthem-Cigna and Aetna-Humana have already been asked to provide additional information in a “second request” and neither deal is expected to receive clearance or a final decision for at least a year.208 Second requests are not common; they are only issued in two to four percent of HSR filings209 and elicit intense levels of scrutiny.210 If antitrust issues are identified, federal regulators may require certain aspects of the insurers to be divested before they are allowed to move forward with a merger, generally in overlapping business interests.211 For example, in 2012, federal regulators required Anthem to disassociate itself of certain operations before moving forward with its acquisition of Amerigroup.212 This may not be a realistic fix because both groups have significant overlapping business interests as major insurers
203. Alfred Gilchrist, Insurance-Industry-Proposed Mergers: Colorado Regulators Okay Aetna-Humana Merger Without Notice, COLORADO MED. SOC’Y (Jan. 1, 2016, 12: 16 PM), http://www.cms.org/site/print/insurance-industry-proposed-mergers-colorado-regulators- okay-aetna-humana-m. 204. Id. 205. Leslie Small, A Glimpse into the DOJ’s Review of Health Insurer Mega-Mergers, FIERCEHEALTHPAYER (Mar. 11, 2016), http://www.fiercehealthpayer.com/story/glimpse-dojs- review-health-insurer-mega-mergers/2016-03-11. 206. Goliya supra note 9. 207. Cyran, supra note 140. 208. Infantino, supra note 181. 209. Perlman, supra note 192. 210. In second requests agencies can ask for any and all data and documents relating to the proposed transaction, businesses of the parties, competition in the current market and competitive effects of the merger. FTC, PREMERGER NOTIFICATION, supra note 192. The agency may also conduct informal interviews or sworn testimony of relevant employees, personnel or others with knowledge of the industry. Id. 211. FTC, Merger Review, supra note 195. 212. Cyran, supra note 140.