United States District Court, District of Columbia
RICHARD J. LEON JUDGE
October 10, 2018, the United States of America ("the
Government") and the States of California, Florida,
Hawaii, Mississippi, and Washington brought this civil
antitrust suit to challenge the merger of CVS Health
Corporation ("CVS") and Aetna Inc.
("Aetna"). Four months later, having negotiated a
mutually agreeable divestiture of a part of Aetna's
business, the Government filed a Motion for Entry of Final
Judgment [Dkt. # 57] on February 25, 2019, seeking to settle
this suit through a consent judgment. When settling a civil
antitrust suit through a consent judgment, however, the
Government must not only comply with the requirements of the
Tunney Act, 15 U.S.C. § 16(b)-(h), but also be able to
demonstrate to a Federal Judge that entry of the proposed
final judgment is in the public interest, see Id.
April 5, 2019 status hearing in this case, I indicated to the
parties that it would probably be helpful to me in evaluating
whether this proposed final judgment is in the public
interest for the amid curiae participating in this
matter to present one or more witnesses at a future hearing
regarding the proposed final judgment. As such, 1 ordered the
parties and amici, on April 8, 2019, to submit a
list of potential witnesses, with a description of
their potential testimony, for my consideration. See
Order (Apr. 8, 2019) [Dkt. #70]. The Order made it very
clear, however, that the Court, alone, would decide which, if
any, of the potential witnesses would be called at a future
hearing. See Id. at 2. Having reviewed the
submissions by the American Medical Association [Dkt. # 74],
Consumer Action and U.S. PIRG [Dkt. # 75], the AIDS
Healthcare Foundation [Dkt. #76], the Government [Dkt.
# 84], and CVS [Dkt. # 85], and based on my review
of the record to date, the Court has decided that it would be
most helpful for the following witnesses to be called at a
hearing related to the Government's Motion for Entry of
• Dr. Nccraj Sood, who may testify for up to two hours.
• Dr. Diana L. Moss, who may testify for up to one hour.
• Dr. Michael B. Wohlfeiler, who may testify for up to
the Government and CVS:
• Dr. Alan Fotvin, who may testify for up to one hour.
• Terri Swanson, who may testily for up to one hour.
• Dr. Lawrence Wu, who may testify for up to two hours.
with respect to the procedures the Court will follow during
the hearing, it is worth stressing, at the outset, that this
hearing is not a trial. The Court is simply
exercising powers that are expressly granted in the Tunney
Act, see 15 U.S.C. § 16(1), to ensure that its
public interest determination will be well and accurately
informed. 'The Government will not be required to offer
evidentiary proof of the allegations in its complaint or, for
that matter, any evidence at all. Witnesses will not be
subject to cross-examination. Only the attorney conducting
the examination and the Court may ask the witnesses
questions. There will be no opening or closing arguments,
though the Court will undoubtedly hear attorney arguments at
a later date. In short, this hearing is merely an opportunity
for the parties and the ainici to provide the Court
with whatever additional information and analysis they
believe will aid the Court in determining whether the
Government's proposed final judgment is in the public
in that regard, the Court would note that it cannot evaluate
the public interest, in this case, without evaluating the
Government's divestiture remedy. And, to say the least,
an understanding of how participants in markets for
individual prescription drug plans (L'PDIV)
are affected by markets for pharmacy benefit management
("PBM") services would appear to be essential to
that evaluation. See, e.g., PL's Resp. to Pub.
Comments on Prop. Final J. at 26-27 [Dkt. # 56] (the
Government implicitly acknowledging an interrelationship
between participants in PDP and PBM markets when disputing an
"argu[mentj that the divestiture will fail because
WellCare will be foreclosed from pharmacy and PBM
services"). The fact that the possible impact on the PBM
services market is not mentioned in the four corners of the
complaint is, of course, not dispositive of its relevance to
the Court's analysis. Our Circuit Court has recognized
that Tunney Act review is not, in all cases, strictly cabined
by the text of the complaint or proposed judgment: Courts are
"not obliged to accept [a consent decree] that, on its
face and even after government explanation, appears to make a
mockery of judicial power," and "if third parties
contend that they would be positively injured by the decree,
a district judge might well hesitate before assuming that the
decree is appropriate." United States v. Microsoft
Corp., 56 F.3d 1448, 1462 (D.C. Cir. 1995). Indeed, even
if analysis of PBM markets was not so intertwined with
evaluating the Government's proposed remedy, the Court
could still hear from these witnesses before deciding whether
the Government's proposed final judgment makes a mockery
of judicial power or affirmatively harms third parties.
See 15 U.S.C. § 16(f).
final analysis, the Tunney Act mandates that courts consider
"the impact of entry of [a proposed] judgment. . .
upon the public generally and individuals alleging
specific injury from the violations set forth in the
complaint." 15 U.S.C. § 16(e)(1)(B) (emphasis
added). Amici have persuasively argued, in effect,
that an assessment o[ the proposed judgment on the
public interest must take into account, among other things,
the ways the divestiture remedy may he affected ...