Rob FullerThe January 12th article from Modern Healthcare titled “Why state AGs want a piece of the feds’ insurance merger reviews” by Lisa Schencker discusses U.S. Justice Department’s investigation into the two massive insurance mergers in the pipeline.

Reuters reported late Monday that about 15 state attorneys general have teamed up with federal officials looking into proposed mergers between Aetna and Humana, and between and Anthem and Cigna Corp. Reuters did not learn the full list of states represented but said they include Connecticut, Florida, Iowa, Massachusetts and Tennessee.

Anthem CEO Joseph Swedish praised the decisions by attorneys general to join the investigation in an interview with Reuters.

Rob Fuller, Partner at the law firm Nelson Hardiman, said the states that joined the investigation likely want to influence divestitures the Justice Department might order in their states. And they may just want to be able to tell voters they worked to protect consumers.

“The attorneys general want to be able to take credit for participating in the consent order,” Fuller said, referring to a negotiated settlement that may follow the investigations. “And they want to be involved in fashioning the policy result for their own states.”

Joining the federal investigation means the state attorneys general will get access to data and analysis gathered by the Justice Department, Fuller said, and the federal government is likely to ask them to help as it divvies up the work of analyzing markets.

Technically, Fuller said, companies can prevent federal antitrust authorities from sharing their data with state attorneys general when they file their Hart-Scott-Rodino notices, which companies of a certain size must file with the Justice Department and Federal Trade Commission before they merge.

Antitrust attorneys typically advise their clients to allow such sharing so they’re not subject to multiple subpoenas from the federal government and individual states, Fuller said.



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