United States, 20419-20434 [2012-8070]
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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices
orders were delivered to the President
and to the United States Trade
Representative on the day of their
issuance.
The Commission has terminated this
investigation. The authority for the
Commission’s determination is
contained in section 337 of the Tariff
Act of 1930, as amended (19 U.S.C.
1337), and in sections 210.16(c) and
210.41 of the Commission’s Rules of
Practice and Procedure (19 CFR
210.16(c) and 210.41).
By order of the Commission.
Issued: March 30, 2012.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012–8045 Filed 4–3–12; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
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Notice of Lodging of Consent Decree
Under the Clean Air Act
Notice is hereby given that on March
28, 2012, a proposed Consent Decree in
United States v. Forward, Inc., Civil
Action No. 2:11–cv–00590–EFB, was
lodged with the United States District
Court for the Eastern District of
California.
In this action the United States sought
injunctive relief and civil penalties
against defendant Forward, Inc.,
pursuant to Section 113(b) of the Clean
Air Act (Act), 42 U.S.C. 7413(b), in
connection with activities at the
Forward Landfill in Manteca, California.
The United States’ complaint, filed
concurrently with the Consent Decree,
alleges that Forward violated the Act by
operating gas extraction wells in the
landfill’s gas collection and control
system (GCCS) in violation of the Act’s
New Source Performance Standards and
National Emission Standards for
Hazardous Air Pollutants, and in
violation of the Title V permit it had
received from the San Joaquin Valley
Unified Air Pollution Control District
(District), the United States’ co-plaintiff
in the action. The Consent Decree
would require Forward to improve the
GCCS by installing new extraction wells
and closing unneeded wells, to
implement specific operations and
maintenance actions to minimize air
intrusion and the likelihood of
subsurface fires at the landfill, to
replace trucks in the landfill’s fleet with
less polluting vehicles, and to pay a
civil penalty of $200,000, to be shared
with the District.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
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relating to the Consent Decree.
Comments should be addressed to the
Assistant Attorney General,
Environment and Natural Resources
Division, and either emailed to
pubcomment-ees.enrd@usdoj.gov or
mailed to P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to United
States v. Forward, Inc., No. 2:11–cv–
00590–EFB (E.D. Cal.), D.J. Ref. 90–5–2–
1–09873.
During the public comment period,
the Consent Decree, may also be
examined on the following Department
of Justice Web site, to https://
www.usdoj.gov/enrd/
Consent_Decrees.html. A copy of the
Consent Decree may also be obtained by
mail from the Consent Decree Library,
P.O. Box 7611, U.S. Department of
Justice, Washington, DC 20044–7611 or
by faxing or emailing a request to
‘‘Consent Decree
Copy’’(EESCDCopy.ENRD@usdoj.gov),
fax no. (202) 514–0097, phone
confirmation number (202) 514–5271. If
requesting a copy from the Consent
Decree Library by mail, please enclose
a check in the amount of $9.25 payable
to the U.S. Treasury or, if requesting by
email or fax, forward a check in that
amount to the Consent Decree Library at
the address given above.
Henry S. Friedman,
Assistant Chief, Environmental Enforcement
Section, Environment and Natural Resources
Division.
[FR Doc. 2012–8033 Filed 4–3–12; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Humana Inc. and
Arcadian Management Services, Inc.;
Proposed Final Judgment and
Competitive Impact Statement
Notice is hereby given pursuant to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h), that a proposed
Final Judgment, Stipulation, and
Competitive Impact Statement have
been filed with the United States
District Court for the District of
Columbia, in United States v. Humana
Inc. and Arcadian Management
Services, Inc., Civil Action No. 12-cv00464. On March 27, 2012, the United
States filed a Complaint alleging that the
proposed acquisition by Humana Inc. of
Arcadian Management Services, Inc.
would violate Section 7 of the Clayton
Act, 15 U.S.C. 18. The proposed Final
Judgment filed at the same time as the
Complaint requires the parties to divest
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health plans in 51 counties and parishes
in Arizona, Arkansas, Louisiana,
Oklahoma, and Texas.
Copies of the Complaint, proposed
Final Judgment, and Competitive Impact
Statement are available for inspection at
the Department of Justice, Antitrust
Division, Antitrust Documents Group,
450 Fifth Street, NW., Suite 1010,
Washington, DC 20530 (telephone: 202
514–2481), and on the Department of
Justice’s Web site at https://
www.usdoj.gov/atr, and at the Office of
the Clerk of the United States District
Court for the District of Columbia.
Copies of these materials may be
obtained from the Antitrust Division
upon request and payment of the
copying fee set by Department of Justice
regulations.
Public comment is invited within 60
days of the date of this notice. Such
comments and responses thereto will be
published in the Federal Register and
filed with the Court. Comments should
be directed to Joshua H. Soven, Chief,
Litigation I Section, Antitrust Division,
U.S. Department of Justice, 450 Fifth
Street NW., Suite 4100, Washington, DC
20530 (telephone: 202–307–0827).
Patricia A. Brink,
Director of Civil Enforcement.
United States District Court for the
District of Columbia
United States of America, United States
Department of Justice, Antitrust Division,
Litigation I Section, 450 Fifth Street, NW.,
Suite 4100, Washington, DC 20530, Plaintiff,
v. Humana Inc., 500 West Main Street,
Louisville, KY 40202, and Arcadian
Management Services, Inc., 500 12th Street,
Suite 340, Oakland, CA 94607, Defendants.
Case: 1:12-cv-00464.
Assigned to: Walton, Reggie B.
Assign. Date: 3/27/2012.
Description: Antitrust.
Complaint
The United States of America
(‘‘United States’’), acting under the
direction of the Attorney General of the
United States, brings this civil action to
enjoin Humana Inc. (‘‘Humana’’) from
acquiring Arcadian Management
Services, Inc. (‘‘Arcadian’’). The United
States alleges as follows:
1. Unless enjoined, Humana’s
proposed acquisition of Arcadian will
substantially lessen competition in the
sale of Medicare Advantage health
insurance plans sold to Medicareeligible individuals (‘‘the relevant
product market’’) in forty-five counties
and parishes in Arizona, Arkansas,
Louisiana, Oklahoma, and Texas (‘‘the
relevant geographic markets’’).
2. A Medicare Advantage plan is a
health insurance product sold by a
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private company to Medicare-eligible
individuals (collectively, ‘‘seniors’’) that
replaces traditional Medicare. Congress
created the Medicare Advantage
program as a private-market alternative
to government-provided traditional
Medicare. In establishing the Medicare
Advantage program, Congress intended
that vigorous competition among private
Medicare Advantage insurers, such as
Humana and Arcadian, would lead
those insurers to offer seniors a wider
array of health insurance choices, and
richer and more affordable benefits than
traditional Medicare does, and be more
responsive to seniors. On August 24,
2011, Humana agreed to acquire
Arcadian in a transaction valued at
approximately $150 million (the
‘‘transaction’’).
3. Humana and Arcadian together
account for 40 to 100 percent of the
enrollment in individual Medicare
Advantage plans in each of the relevant
geographic markets. In these markets,
individual Medicare Advantage plans
account for more than $700 million in
annual commerce.
4. The proposed acquisition will
significantly lessen competition among
Medicare Advantage plans and
eliminate substantial head-to-head
competition between Humana and
Arcadian in the provision of such plans
in the relevant geographic markets. The
competition between Humana and
Arcadian in the relevant geographic
markets has significantly benefited
thousands of seniors. Humana’s and
Arcadian’s plans in the relevant
geographic markets offer seniors
significantly greater benefits than those
available under traditional Medicare,
likely resulting in substantial healthcare
cost savings for seniors selecting either
of those companies’ plans. The
proposed acquisition will end that
competition, eliminating the pressure
that these close competitors place on
each other to maintain attractive
benefits, low premiums, and highquality healthcare.
5. Because the proposed acquisition
likely would substantially reduce
competition in the sale of individual
Medicare Advantage plans in the
relevant geographic markets in violation
of Section 7 of the Clayton Act, 15
U.S.C. 18, the Court should permanently
enjoin this transaction.
I. Jurisdiction, Venue, and Interstate
Commerce
6. The United States brings this action
pursuant to Section 15 of the Clayton
Act, 15 U.S.C. § 25, to prevent and
restrain Defendants from violating
Section 7 of the Clayton Act, 15 U.S.C.
18.
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7. Humana and Arcadian are engaged
in interstate commerce and in activities
substantially affecting interstate
commerce. They sell insurance that
covers enrollees when they travel across
state lines; purchase health-care services
from providers in various states; and
receive payments from enrollees in
various states. Defendants also purchase
health-care products and services, such
as pharmaceuticals, in interstate
commerce.
8. The Court has subject-matter
jurisdiction over this action pursuant to
Section 15 of the Clayton Act, 15 U.S.C.
25; and 28 U.S.C. 1331, 1337(a), and
1345.
9. Defendants have consented to
personal jurisdiction in this District.
The Court also has personal jurisdiction
over Defendants under Section 12 of the
Clayton Act, 15 U.S.C. 22.
10. Defendants have consented to
venue in this District. Venue is also
proper in this District under Section 12
of the Clayton Act, 15 U.S.C. 22, and 28
U.S.C. 1391.
II. The Defendants and the Proposed
Transaction
11. Humana is a corporation
organized and existing under the laws of
Delaware and has its principal place of
business in Louisville, Kentucky. A
leading health insurer in the United
States, Humana provides health
insurance and other services to more
than 17 million people nationwide. In
2010, Humana reported revenues of
approximately $33.6 billion.
12. In the relevant geographic
markets, Humana sells Medicare
Advantage Private Fee-For-Service
(‘‘PFFS’’), Health Maintenance
Organization (‘‘HMO’’), and Preferred
Provider Organization (‘‘PPO’’) plans
under the Humana Gold Choice,
Humana Gold Plus, HumanaChoice, and
Humana Reader’s Digest Healthy Living
Plan names. Humana is one of the
largest Medicare Advantage providers in
the United States, with almost 1.8
million Medicare Advantage members.
Approximately 35,000 seniors are
enrolled in individual Humana
Medicare Advantage plans in the
relevant geographic markets.
13. Arcadian is a corporation
organized and existing under the laws of
Delaware and has its principal place of
business in Oakland, California.
Arcadian sells Medicare HMO plans and
focuses on secondary, non-urban, and
underserved markets. It has
approximately 62,000 Medicare
Advantage members in fifteen states. In
2010, Arcadian had revenues of $622
million.
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14. Arcadian sells Medicare
Advantage plans through its whollyowned subsidiaries, Desert Canyon
Community Care in Arizona; Arkansas
Community Care and Texarkana
Community Care in Arkansas; Arcadian
Community Care in Louisiana; Arcadian
Health Plan in Oklahoma; and Texas
Community Care and Texarkana
Community Care in Texas. Over 14,700
people in the relevant geographic
markets are enrolled in individual
Arcadian Medicare Advantage plans.
15. Humana and Arcadian each have
well-established managed-care
healthcare networks that they use to
provide services to enrollees in the
relevant geographic markets. In
addition, Humana and Arcadian each
have an established brand and positive
reputation in the relevant geographic
markets.
III. The Medicare Advantage Insurance
Market
16. The federal government provides
and facilitates the provision of health
insurance to millions of Medicareeligible citizens through two types of
programs: traditional Medicare and
Medicare Advantage. Under traditional
Medicare, a beneficiary receives
coverage for inpatient healthcare
services in hospitals and other facilities
under Medicare Part A and can elect to
receive coverage for physician and
outpatient healthcare services under
Part B. For Part A, the government
generally charges no monthly premium
if the beneficiary was in the workforce
and paid Medicare taxes. For Part B, the
government deducts a monthly
premium ($99.90 for most beneficiaries)
from the beneficiary’s Social Security
checks. In addition, the beneficiary
must pay deductibles and/or
coinsurance for doctor visits and
hospital stays. If a beneficiary wants to
limit traditional Medicare’s out-ofpocket costs, the beneficiary can
purchase a Medicare Supplement plan
for an additional monthly premium. To
receive prescription drug coverage,
seniors enrolled in traditional Medicare
can purchase a Medicare prescription
drug plan (Medicare Part D) for an
additional monthly premium.
17. Medicare Advantage plans, unlike
traditional Medicare, are offered by
private insurance companies. Medicare
Advantage plans provide all of the
medical insurance coverage that seniors
receive under traditional Medicare and
also usually limit out-of-pocket costs
and include drug coverage. These plans
also generally provide benefits beyond
what traditional Medicare provides,
often including coverage for vision,
hearing, dental, and wellness programs.
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However, most Medicare Advantage
plans have a more limited healthcare
provider network than traditional
Medicare. Limited networks help
Medicare Advantage insurers lower
their costs and offer richer benefits than
traditional Medicare.
18. An insurance company that seeks
to offer a Medicare Advantage plan in a
county or parish must submit a bid to
the Centers for Medicare and Medicaid
Services (‘‘CMS’’) for each Medicare
Advantage plan that it intends to offer.
The bid must provide the insurer’s
anticipated costs per member to cover
required Medicare Part A and Part B
benefits. CMS actuaries compare these
costs, including an anticipated profit
margin, to a Medicare benchmark that
reflects, in part, the government’s likely
cost of covering the beneficiaries.
Through 2011, if the insurer’s bid for
Medicare benefits was lower than the
benchmark, the Medicare program
retained 25 percent of the savings and
required that the insurer use the other
75 percent (‘‘the rebate’’) to provide
supplemental benefits or lower
premiums. Accordingly, a plan with
lower projected costs would offer more
benefits to seniors and be more
attractive. As of 2012, the rebate will
vary based on performance as measured
through CMS’s Medicare star rating
system, such that insurers will receive
a greater fraction of the rebate the better
their performance. Therefore, Medicare
Advantage plans compete for
enrollment by lowering costs, lowering
premiums, increasing benefits, and
improving performance.
19. Medicare Advantage enrollees can
be either group or individual enrollees.
Group enrollees are generally retirees
who enroll in a Medicare Advantage
plan chosen by their former employer or
another group. Individual enrollees
directly choose their Medicare
Advantage plan from among the plans
that CMS has approved for the county
or parish in which they live.
IV. Relevant Product Market
20. Most successful Medicare
Advantage plans, including those in the
relevant geographic markets, offer
substantially richer benefits at lower
costs to enrollees than traditional
Medicare does with or without a
Medicare Supplement or Medicare
Prescription Drug Plan, including lower
copayments, lower coinsurance, caps on
total yearly out-of-pocket costs,
prescription drug coverage, and
supplemental benefits that traditional
Medicare does not cover, such as dental
and vision coverage, and health club
memberships. Seniors enrolled in
Medicare Advantage plans also often
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value that they can receive all of these
benefits through a single plan and that
Medicare Advantage plans manage care
in ways that traditional Medicare does
not.
21. Consequently, a small but
significant increase in Medicare
Advantage plan premiums or reduction
in benefits is unlikely to cause a
sufficient number of seniors to switch to
traditional Medicare such that the price
increase or reduction in benefits would
be unprofitable. Accordingly, the
relevant product market is no broader
than the sale of individual Medicare
Advantage plans, which is a line of
commerce under Section 7 of the
Clayton Act, 15 U.S.C. 18.
V. Relevant Geographic Markets and
Market Concentration
22. Seniors may only enroll in
Medicare Advantage plans that CMS has
approved for the county or parish in
which they live. Consequently, they
could not turn to Medicare Advantage
plans offered outside the county or
parish in which they live in response to
a small but significant increase in price
in Medicare Advantage plans.
23. The following forty-five counties
and parishes are relevant geographic
markets within which to assess the
likely effects of the transaction, and all
are ‘‘sections of the country’’ within the
meaning of Section 7 of the Clayton Act:
Mohave and Yavapai Counties in
Arizona; Columbia, Conway, Crawford,
Franklin, Hempstead, Howard,
Lafayette, Little River, Logan, Miller,
Nevada, Pope, Scott, Sebastian, Sevier,
and Yell Counties in Arkansas; Allen,
Beauregard, Bienville, Bossier, Caddo,
Calcasieu, Claiborne, De Soto, Jefferson
Davis, Red River, and Webster Parishes
in Louisiana; Adair, Delaware, Haskell,
Le Flore, McCurtain, Ottawa, and
Sequoyah Counties in Oklahoma; and
Bowie, Cass, Deaf Smith, Gregg,
Harrison, Henderson, Potter, Randall,
and Titus Counties in Texas.
24. If consummated, the merger
would give Humana market shares
ranging from 40 to 100 percent in the
forty-five relevant geographic markets.
See Appendix B.
25. According to the
Herfindahl-Hirschman Index (‘‘HHI’’), a
measure of concentration commonly
relied on by the courts and antitrust
agencies to measure market
concentration (defined and explained in
Appendix A), the transaction would
significantly increase the market
concentration for the relevant product
in each of the relevant geographic
markets, almost all of which are already
highly concentrated. The increases in
concentration would range from 312
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20421
points in Pope County, Arkansas, to
4928 points in Sequoyah County,
Oklahoma, with all of the increases
substantially higher than the 200 points
(see Appendix B) presumed likely to
enhance market power in highly
concentrated markets under the
antitrust agencies’ Horizontal Merger
Guidelines. See U.S. Dep’t of Justice &
FTC, Horizontal Merger Guidelines § 5.3
(2010).
26. Defendants’ market shares in the
relevant geographic markets have
generally increased in recent years, as
some competitors have exited these
markets or stopped offering certain
competing products.
VI. Anticompetitive Effects
27. The proposed transaction likely
would substantially lessen competition
in the sale of individual Medicare
Advantage plans in the relevant
geographic markets. The transaction
would end the substantial head-to-head
competition between Humana and
Arcadian to convince seniors to enroll
in each company’s Medicare Advantage
plans in the relevant geographic
markets. In each market, Humana and
Arcadian compete against each other by
offering plans with frequently low or no
premiums, reducing copayments,
eliminating deductibles, lowering
annual out-of-pocket maximum costs,
managing care, improving drug
coverage, offering desirable benefits,
and making their provider networks
more attractive to potential members.
VII. Absence of Countervailing Factors
28. If Defendants complete the
proposed transaction, the loss of this
competition would likely result in
higher premiums and reduced benefits
for seniors enrolled in Medicare
Advantage plans in the relevant
geographic markets.
29. Competition from existing
Medicare Advantage plans and new
entrants is unlikely to prevent
anticompetitive effects in each relevant
geographic market. Entrants face
substantial cost, reputation, and
distribution disadvantages that will
likely make them unable to prevent
Humana from profitably raising
premiums or reducing benefits in the
relevant geographic markets.
VIII. Violations Alleged
30. The proposed transaction likely
would substantially lessen competition
in the sale of Medicare Advantage
health insurance in each of the relevant
geographic markets, in violation of
Section 7 of the Clayton Act, 15 U.S.C.
18.
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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices
31. The proposed transaction would
likely have the following effects in each
relevant geographic market:
a. Substantially lessening competition
in the sale of Medicare Advantage
insurance;
b. eliminating competition between
Humana and Arcadian in the sale of
Medicare Advantage insurance; and
c. increasing premiums or reducing
benefits for Medicare Advantage
insurance to less competitive levels than
would prevail absent the acquisition.
IX. Prayer for Relief
32. The United States requests that
this Court:
a. Adjudge the proposed acquisition
to violate Section 7 of the Clayton Act,
15 U.S.C. 18;
b. preliminarily and permanently
enjoin the defendants from carrying out
the proposed transaction or from
entering into or carrying out any other
agreement, understanding, or plan, the
effect of which would be to bring the
Medicare Advantage businesses of
Humana and Arcadian under common
ownership or control;
c. award the United States its costs in
this action; and
d. award the United States such other
relief as the Court may deem just and
proper.
Dated this 27th day of March 2012.
Respectfully submitted,
FOR PLAINTIFF UNITED STATES:
/s/Sharis A. Pozen
Sharis A. Pozen (DC Bar #446732),
Acting Assistant Attorney General for
Antitrust
/s/Leslie C. Overton
Leslie C. Overton (DC Bar #454493)
Deputy Assistant Attorney General
/s/Patricia A. Brink
Patricia A. Brink
Director of Civil Enforcement
/s/Joshua H. Soven
Joshua H. Soven (DC Bar #436633)
Chief, Litigation I Section
/s/Peter J. Mucchetti
Peter J. Mucchetti (DC Bar #463202)
Assistant Chief, Litigation I Section
/s/Adam Gitlin
Adam Gitlin *
Attorney, Litigation I Section, Antitrust
Division, U.S. Department of Justice, 450
Fifth Street NW., Suite 4100, Washington, DC
20530, Telephone: (202) 307–6456,
Facsimile: (202) 305–1190, Email:
adam.gitlin@usdoj.gov.
Barry Creech (DC Bar #421070),
Barry Joyce,
Edward D. Eliasberg, Jr. (DC Bar #199182),
Katrina Rouse,
Attorneys for the United States.
* Attorney of Record.
Herfindahl-Hirschman Index
The term ‘‘HHI’’ means the
Herfindahl-Hirschman Index, a
commonly accepted measure of market
concentration. The HHI is calculated by
squaring the market share of each firm
competing in the market and then
summing the resulting numbers. For
example, for a market consisting of four
firms with shares of 30, 30, 20, and 20
percent, the HHI is 2,600 (302 + 302 +
202 + 202 = 2,600). The HHI takes into
account the relative size distribution of
the firms in a market. It approaches zero
when a market is occupied by a large
number of firms of relatively equal size
and reaches its maximum of 10,000
points when a market is controlled by
a single firm. The HHI increases both as
the number of firms in the market
decreases and as the disparity in size
between those firms increases.
The agencies generally consider
markets in which the HHI is between
1,500 and 2,500 points to be moderately
concentrated, and consider markets in
which the HHI is in excess of 2,500
points to be highly concentrated. See
U.S. Department of Justice & FTC,
Horizontal Merger Guidelines § 5.3
(2010). Transactions that increase the
HHI by more than 200 points in highly
concentrated markets are presumed
likely to enhance market power under
the Horizontal Merger Guidelines issued
by the Department of Justice and the
Federal Trade Commission. See id.
RELEVANT GEOGRAPHIC MARKETS
[As of March 2012]
Post-merger
share (percent)
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County
Mohave, AZ .....................................................................................................................
Yavapai, AZ .....................................................................................................................
Columbia, AR ...................................................................................................................
Conway, AR .....................................................................................................................
Crawford, AR ...................................................................................................................
Franklin, AR .....................................................................................................................
Hempstead, AR ...............................................................................................................
Howard, AR .....................................................................................................................
Lafayette, AR ...................................................................................................................
Little River, AR .................................................................................................................
Logan, AR ........................................................................................................................
Miller, AR .........................................................................................................................
Nevada, AR .....................................................................................................................
Pope, AR .........................................................................................................................
Scott, AR ..........................................................................................................................
Sebastian, AR ..................................................................................................................
Sevier, AR ........................................................................................................................
Yell, AR ............................................................................................................................
Allen, LA ..........................................................................................................................
Beauregard, LA ................................................................................................................
Bienville, LA .....................................................................................................................
Bossier, LA ......................................................................................................................
Caddo, LA ........................................................................................................................
Calcasieu, LA ...................................................................................................................
Claiborne, LA ...................................................................................................................
De Soto, LA .....................................................................................................................
Jefferson Davis, LA .........................................................................................................
Red River, LA ..................................................................................................................
Webster, LA .....................................................................................................................
Adair, OK .........................................................................................................................
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HHI Post-merger
82.3
40.8
56.0
55.0
63.8
47.8
55.7
58.1
68.3
82.1
59.7
73.8
58.9
44.1
52.1
57.9
84.1
40.3
78.5
100.0
49.3
93.3
92.7
100.0
42.0
100.0
88.7
45.0
84.1
60.1
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04APN1
6980
5091
4732
3906
4514
3539
5064
4576
5668
7066
4263
5836
5158
4055
3545
3882
7326
3075
6622
10000
3721
8748
8642
10000
3523
10000
8000
3803
7323
5204
Increase in HHI
3386
407
1421
376
1563
549
1218
1681
1993
3292
1080
1931
1139
312
984
1133
3474
610
1310
4789
1189
848
1626
3217
535
3648
1746
926
1385
1799
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RELEVANT GEOGRAPHIC MARKETS—Continued
[As of March 2012]
Post-merger
share (percent)
County
Delaware, OK ..................................................................................................................
Haskell, OK ......................................................................................................................
Le Flore, OK ....................................................................................................................
McCurtain, OK .................................................................................................................
Ottawa, OK ......................................................................................................................
Sequoyah, OK .................................................................................................................
Bowie, TX ........................................................................................................................
Cass, TX ..........................................................................................................................
Deaf Smith, TX ................................................................................................................
Gregg, TX ........................................................................................................................
Harrison, TX .....................................................................................................................
Henderson, TX .................................................................................................................
Potter, TX .........................................................................................................................
Randall, TX ......................................................................................................................
Titus, TX ..........................................................................................................................
United States District Court for the
District of Columbia
United States of America, Plaintiff, v.
Humana Inc. and Arcadian Management
Services, Inc., Defendants.
Case: 1:12–cv–00464.
Assigned To: Walton, Reggie B.
Assign. Date: 3/27/2012.
Description: Antitrust.
emcdonald on DSK29S0YB1PROD with NOTICES
Competitive Impact Statement
Plaintiff United States of America
(‘‘United States’’), pursuant to Section
2(b) of the Antitrust Procedures and
Penalties Act (‘‘APPA’’ or ‘‘Tunney
Act’’), 15 U.S.C. 16(b)–(h), files this
Competitive Impact Statement relating
to the proposed Final Judgment
submitted for entry in this civil antitrust
proceeding.
I. Nature and Purpose of the Proceeding
The United States filed a civil
antitrust Complaint on March 27, 2012,
seeking to enjoin Humana Inc.
(‘‘Humana’’) from acquiring Arcadian
Management Services, Inc.
(‘‘Arcadian’’), alleging that the
acquisition likely would substantially
lessen competition in the sale of
individual Medicare Advantage plans in
forty-five counties and parishes in
Arizona, Arkansas, Louisiana,
Oklahoma, and Texas (‘‘the relevant
geographic markets’’), in violation of
Section 7 of the Clayton Act, 15 U.S.C.
18. The loss of competition from the
acquisition likely would result in higher
premiums and reduced benefits and
services in these markets.
At the same time that the United
States filed the Complaint, the United
States also filed an Asset Preservation
Stipulation and Order (‘‘Stipulation’’)
and proposed Final Judgment, which
will eliminate the anticompetitive
effects that likely would result from the
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transaction by requiring the Defendants
to divest Medicare Advantage business
in each relevant geographic market.
Under the Stipulation, the Defendants
must ensure that the assets to be
divested continue to be operated as
ongoing, economically viable, and
competitive Medicare Advantage
offerings until accomplishment of the
divestitures that the proposed Final
Judgment requires.
The United States and the Defendants
have stipulated that the Court may enter
the proposed Final Judgment after
compliance with the APPA. Entry of the
proposed Final Judgment would
terminate this action, except that the
Court would retain jurisdiction to
construe, modify, or enforce the
provisions of the Final Judgment and to
punish violations thereof.
II. Events Giving Rise to the Alleged
Violation
A. The Defendants and the Proposed
Transaction
Defendant Humana is a leading health
insurer in the United States, providing
health insurance and other services to
more than 17 million people
nationwide. In 2010 Humana reported
revenues of approximately $33.6 billion.
Humana is one of the largest Medicare
Advantage providers in the United
States, with almost 1.8 million Medicare
Advantage members. Humana provides
health insurance to approximately
35,000 Medicare Advantage enrollees in
the relevant geographic markets alleged
in the Complaint. In the relevant
geographic markets, Humana sells
Medicare Advantage plans under the
Humana Gold Choice, Humana Gold
Plus, HumanaChoice, and Humana
Reader’s Digest Healthy Living Plan
names.
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Frm 00071
Fmt 4703
Sfmt 4703
HHI Post-merger
100.0
58.6
100.0
80.6
100.0
100.0
82.5
81.3
66.7
73.7
86.4
68.0
72.6
75.0
75.8
10000
4666
10000
6691
10000
10000
7019
6962
5556
5783
7652
5197
5776
5928
6331
Increase in HHI
3887
1688
4632
2325
1512
4928
3305
3285
1636
2668
3590
2224
2197
1421
2198
Arcadian sells Medicare Advantage
HMO plans and focuses on secondary,
non-urban, and underserved markets. It
has approximately 62,000 Medicare
Advantage members in fifteen states. In
2010 it had revenues of $622 million.
Arcadian provides health insurance to
over 14,700 Medicare Advantage
enrollees in the relevant geographic
markets. Humana and Arcadian each
have well-established managed-care
networks that they use to provide
services to enrollees in these markets. In
addition, each has an established brand
and positive reputation in the relevant
geographic markets.
On August 24, 2011, Humana and
Arcadian entered into a merger
agreement whereby Humana agreed to
acquire all of the outstanding shares of
Arcadian. Humana and Arcadian valued
the transaction at approximately $150
million.
B. Medicare Advantage Insurance
The federal government provides and
facilitates the provision of health
insurance to millions of Medicareeligible citizens through two types of
programs: traditional Medicare and
Medicare Advantage. Under traditional
Medicare, a beneficiary receives
coverage for inpatient healthcare
services in hospitals and other facilities
under Medicare Part A and can elect to
receive coverage for physician and
outpatient healthcare services under
Part B. For Part A, the government
generally charges no monthly premium
if the beneficiary was in the workforce
and paid Medicare taxes. For Part B, the
government deducts a monthly
premium ($99.90 for most beneficiaries)
from the beneficiary’s Social Security
checks. In addition, for doctor visits and
hospital stays, the beneficiary must pay
deductibles, coinsurance, or both. If a
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beneficiary wants to limit these
potentially high out-of-pocket costs, the
beneficiary can purchase a separate
Medicare Supplement plan for an
additional monthly premium. To
receive prescription drug coverage,
seniors enrolled in traditional Medicare
can purchase a Medicare prescription
drug plan (Medicare Part D) for an
additional monthly premium.
Medicare Advantage plans, unlike
traditional Medicare, are offered by
private insurance companies. Medicare
Advantage plans provide all of the
medical insurance coverage that seniors
receive under traditional Medicare and
also usually limit out-of-pocket costs
and include drug coverage. These plans
also generally provide benefits beyond
what traditional Medicare provides,
often including coverage for vision,
hearing, dental, and wellness programs.
However, most Medicare Advantage
plans have a more limited healthcare
provider network than traditional
Medicare, and limited networks help
Medicare Advantage insurers lower
their costs and offer richer benefits than
traditional Medicare.
An insurance company that seeks to
offer a Medicare Advantage plan in a
county must submit a bid to the Centers
for Medicare and Medicaid Services
(‘‘CMS’’) for each Medicare Advantage
plan that it intends to offer. The bid
must provide the insurer’s anticipated
costs to cover the required Medicare
Part A and Part B benefits for a member.
CMS actuaries compare these costs,
including an anticipated profit margin,
to a Medicare benchmark that reflects,
in part, the government’s likely cost of
covering the beneficiaries. Through
2011, if the insurer’s bid for Medicare
benefits was lower than the benchmark,
the Medicare program retained 25
percent of the savings and the insurer
was required to use the other 75 percent
(‘‘the rebate’’) to provide supplemental
benefits or lower premiums.
Accordingly, a plan with lower
projected costs would offer more
benefits to seniors and be more
attractive. As of 2012, the rebate will
vary based on performance as measured
through CMS’s Medicare star rating
system, such that insurers will receive
a greater fraction of the rebate the better
their performance. Therefore, Medicare
Advantage plans compete for
enrollment by lowering costs, lowering
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premiums, increasing benefits, and
improving performance.
Medicare Advantage enrollees can be
either group or individual enrollees.
Group enrollees are generally retirees
who enroll in a Medicare Advantage
plan chosen by their former employer or
another group. Individual enrollees
directly choose their Medicare
Advantage plan from among the plans
that CMS has approved for the county
or parish in which they live.
C. Relevant Markets
1. The Relevant Product Market Is No
Broader Than the Sale of Individual
Medicare Advantage Health Insurance
The Complaint alleges that the
relevant product market is no broader
than the sale of Medicare Advantage
health insurance to individuals. Most
successful Medicare Advantage plans,
including those in the relevant
geographic markets, offer substantially
richer benefits at lower costs to
enrollees than traditional Medicare does
with or without a Medicare Supplement
or Medicare prescription drug plan,
including lower copayments, lower
coinsurance, caps on total yearly out-ofpocket costs, prescription drug
coverage, and supplemental benefits
that traditional Medicare does not cover,
such as dental and vision coverage, and
health club memberships. Seniors
enrolled in Medicare Advantage plans
also often value that they can receive all
of these benefits through a single plan
and that Medicare Advantage plans
manage care in ways that traditional
Medicare does not.
Consequently, a small but significant
increase in Medicare Advantage plan
premiums or reduction in benefits is
unlikely to cause a sufficient number of
seniors in the relevant geographic
markets to switch to traditional
Medicare such that the price increase or
reduction in benefits would be
unprofitable. Accordingly, the relevant
product market is no broader than the
sale of individual Medicare Advantage
plans and is a line of commerce under
Section 7 of the Clayton Act, 15 U.S.C.
18.
2. The Relevant Geographic Markets Are
County or Parish Markets
Seniors may enroll only in Medicare
Advantage plans that CMS approves for
PO 00000
Frm 00072
Fmt 4703
Sfmt 4703
the county or parish in which they live.
Consequently, they could not turn to
Medicare Advantage plans offered
outside the county or parish in which
they live in response to a small but
significant increase in premiums or a
reduction in benefits. Accordingly, each
of following forty-five counties and
parishes is a relevant geographic market
and a section of the country within the
meaning of Section 7 of the Clayton Act:
Mohave and Yavapai Counties in
Arizona; Columbia, Conway, Crawford,
Franklin, Hempstead, Howard,
Lafayette, Little River, Logan, Miller,
Nevada, Pope, Scott, Sebastian, Sevier,
and Yell Counties in Arkansas; Allen,
Beauregard, Bienville, Bossier, Caddo,
Calcasieu, Claiborne, De Soto, Jefferson
Davis, Red River, and Webster Parishes
in Louisiana; Adair, Delaware, Haskell,
Le Flore, McCurtain, Ottawa, and
Sequoyah Counties in Oklahoma; and
Bowie, Cass, Deaf Smith, Gregg,
Harrison, Henderson, Potter, Randall,
and Titus Counties in Texas.
3. The Defendants’ Shares in Medicare
Advantage Are High in the Relevant
Geographic Markets
The market for Medicare Advantage
plans is already highly concentrated in
almost all of the relevant geographic
markets and would become significantly
more concentrated as a result of the
proposed acquisition. If consummated,
the merger would give Humana market
shares ranging from 40 to 100 percent in
the relevant geographic markets,
resulting in highly concentrated
markets, as shown below.1 Collectively,
the individual Medicare Advantage
plans in these areas account for over
$700 million in annual commerce.
1 The term ‘‘HHI’’ means the
Herfindahl-Hirschman Index, a commonly accepted
measure of market concentration. The HHI is
calculated by squaring the market share of each firm
competing in the market and then summing the
resulting numbers. The agencies generally consider
markets in which the HHI is in excess of 2,500
points to be highly concentrated. See U.S.
Department of Justice & FTC, Horizontal Merger
Guidelines § 5.3 (2010). Transactions that increase
the HHI by more than 200 points in highly
concentrated markets are presumed likely to
enhance market power under the Horizontal Merger
Guidelines issued by the Department of Justice and
the Federal Trade Commission. See id.
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RELEVANT GEOGRAPHIC MARKETS
[As of March 2012]
Post-merger
share
(percent)
County
Mohave, AZ .....................................................................................................................
Yavapai, AZ .....................................................................................................................
Columbia, AR ...................................................................................................................
Conway, AR .....................................................................................................................
Crawford, AR ...................................................................................................................
Franklin, AR .....................................................................................................................
Hempstead, AR ...............................................................................................................
Howard, AR .....................................................................................................................
Lafayette, AR ...................................................................................................................
Little River, AR .................................................................................................................
Logan, AR ........................................................................................................................
Miller, AR .........................................................................................................................
Nevada, AR .....................................................................................................................
Pope, AR .........................................................................................................................
Scott, AR ..........................................................................................................................
Sebastian, AR ..................................................................................................................
Sevier, AR ........................................................................................................................
Yell, AR ............................................................................................................................
Allen, LA ..........................................................................................................................
Beauregard, LA ................................................................................................................
Bienville, LA .....................................................................................................................
Bossier, LA ......................................................................................................................
Caddo, LA ........................................................................................................................
Calcasieu, LA ...................................................................................................................
Claiborne, LA ...................................................................................................................
De Soto, LA .....................................................................................................................
Jefferson Davis, LA .........................................................................................................
Red River, LA ..................................................................................................................
Webster, LA .....................................................................................................................
Adair, OK .........................................................................................................................
Delaware, OK ..................................................................................................................
Haskell, OK ......................................................................................................................
Le Flore, OK ....................................................................................................................
McCurtain, OK .................................................................................................................
Ottawa, OK ......................................................................................................................
Sequoyah, OK .................................................................................................................
Bowie, TX ........................................................................................................................
Cass, TX ..........................................................................................................................
Deaf Smith, TX ................................................................................................................
Gregg, TX ........................................................................................................................
Harrison, TX .....................................................................................................................
Henderson, TX .................................................................................................................
Potter, TX .........................................................................................................................
Randall, TX ......................................................................................................................
Titus, TX ..........................................................................................................................
emcdonald on DSK29S0YB1PROD with NOTICES
D. The Acquisition Likely Would
Substantially Lessen Competition in the
Sale of Individual Medicare Advantage
Plans in Each Relevant Geographic
Market
The proposed transaction likely
would substantially lessen competition
in the sale of individual Medicare
Advantage plans and end the substantial
head-to-head competition between
Humana and Arcadian to convince
seniors to enroll in each company’s
Medicare Advantage plans in the
relevant geographic markets. That
competition has benefited thousands of
seniors.
In each market, Humana and
Arcadian compete against each other by
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offering plans with frequently low or no
premiums, reducing copayments,
eliminating deductibles, lowering
annual out-of-pocket maximum costs,
managing care, improving drug
coverage, offering desirable benefits,
and making their provider networks
more attractive to potential members. If
Defendants complete the proposed
transaction, the loss of this competition
likely would result in higher premiums
and reduced benefits for seniors
enrolled in Medicare Advantage plans
in the relevant geographic markets.
Competition from existing Medicare
Advantage plans and new entrants is
unlikely to prevent anticompetitive
effects in each relevant geographic
market. Entrants face substantial cost,
PO 00000
Frm 00073
Fmt 4703
Sfmt 4703
HHI Post-merger
82.3
40.8
56.0
55.0
63.8
47.8
55.7
58.1
68.3
82.1
59.7
73.8
58.9
44.1
52.1
57.9
84.1
40.3
78.5
100.0
49.3
93.3
92.7
100.0
42.0
100.0
88.7
45.0
84.1
60.1
100.0
58.6
100.0
80.6
100.0
100.0
82.5
81.3
66.7
73.7
86.4
68.0
72.6
75.0
75.8
6980
5091
4732
3906
4514
3539
5064
4576
5668
7066
4263
5836
5158
4055
3545
3882
7326
3075
6622
10000
3721
8748
8642
10000
3523
10000
8000
3803
7323
5204
10000
4666
10000
6691
10000
10000
7019
6962
5556
5783
7652
5197
5776
5928
6331
Increase in HHI
3386
407
1421
376
1563
549
1218
1681
1993
3292
1080
1931
1139
312
984
1133
3474
610
1310
4789
1189
848
1626
3217
535
3648
1746
926
1385
1799
3887
1688
4632
2325
1512
4928
3305
3285
1636
2668
3590
2224
2197
1421
2198
reputation, and distribution
disadvantages that will likely make
them unable to prevent Humana from
profitably raising premiums or reducing
benefits in the relevant geographic
markets.
III. Explanation of the Proposed Final
Judgment
A. The Divestiture Assets
The proposed Final Judgment is
designed to eliminate the
anticompetitive effects identified in the
Complaint by requiring the Defendants
to divest Arcadian’s individual
Medicare Advantage business in 34 of
the 45 relevant geographic markets, and
Humana’s individual Medicare
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Advantage business in 11 of them
(collectively ‘‘the Divestiture Assets’’) to
one or more acquirers approved by, and
on terms acceptable to, the United
States. Specifically, the divestitures will
eliminate the anticompetitive effects
alleged in the Complaint by requiring
the Defendants to divest one or more
Medicare Advantage plans in each
relevant geographic market to an
acquirer that will compete vigorously
with the merged Humana-Arcadian. The
divestitures are designed to allow the
acquirer, or acquirers, of the assets to
offer uninterrupted care to members of
Arcadian’s and Humana’s divested
Medicare Advantage plans.
The Divestiture Assets include all of
Arcadian’s and Humana’s rights and
obligations under the relevant Arcadian
or Humana contracts with CMS. The
lines of business to be divested cover
approximately 12,700 individual
Medicare Advantage beneficiaries. In
addition to the plans in the forty-five
relevant geographic markets, the
Divestiture Assets include Arcadian
plans in five counties and one parish
where Arcadian has either one percent
or no enrollment and where the
Complaint does not allege likely
anticompetitive effects: Johnson County
in Arkansas; Cameron Parish in
Louisiana; Pushmataha County in
Oklahoma; and Armstrong, Carson, and
Oldham Counties in Texas. These plans
are in areas contiguous to and under the
same CMS contract and plan ID as plans
in the relevant geographic markets. The
Divestiture Assets include these
additional plans because doing so
makes them more administrable and
will facilitate the divestiture of the
plans in the relevant geographic
markets.
The Divestiture Assets exclude
enrollment in Medicare Advantage
Special Needs Plans. Enrollment in
Special Needs Plans is limited to seniors
who are institutionalized, dually
eligible for Medicare and Medicaid
benefits, or afflicted by severe or
disabling chronic conditions. The
divestiture of these plans is unnecessary
to eliminate the transaction’s likely
anticompetitive effects because the
Defendants’ enrollment in Special
Needs Plans accounts for only 1.4% of
their combined individual Medicare
Advantage membership in the markets
where divestitures are required.
The Defendants must satisfy the
United States that a viable competitor
will replace Arcadian’s competitive
presence in the sale of individual
Medicare Advantage plans in each of
the forty-five relevant geographic
markets identified in the Complaint.
The divestitures must be (1) made to an
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Jkt 226001
acquirer that has the intent and
capability—including the necessary
managerial, operational, technical, and
financial capability—to compete
effectively in the sale of Medicare
Advantage products in the market, or
markets, in question, and (2)
accomplished so as to satisfy the United
States that none of the terms of any
agreement between Humana and any
acquirer gives Humana the ability to
interfere with the acquirer’s ability to
compete effectively. The proposed Final
Judgment also provides that the
divestiture of the Divestiture Assets may
be made to one or more acquirers,
provided that in each instance the
United States is satisfied that the
Divestiture Assets will remain viable
and the divestitures will remedy the
anticompetitive harm alleged in the
Complaint.
B. Selected Provisions of the Proposed
Final Judgment
In addition to the requirements
discussed above, the following specific
provisions of the proposed Final
Judgment will enable the acquirer to
compete promptly and effectively in the
relevant geographic markets for
individual Medicare Advantage plans.
1. Provider-Network Contracts
Sections IV.G through IV.K ensure
that the acquirer of the assets divested
in each relevant geographic market (and
the five additional counties and one
additional parish discussed above) will
have a healthcare provider network
sufficient to compete vigorously and
minimize any network disruption from
the divestiture. To compete effectively
in the sale of Medicare Advantage plans,
an insurer needs a network of healthcare
providers contracted at competitive
rates because hospital and physician
expenses constitute the large majority of
an insurer’s costs. By requiring Humana
to assist the acquirer in establishing a
cost-competitive provider network,
Sections IV.G through IV.K will enable
the acquirer to compete as effectively as
Humana and Arcadia before the
proposed transaction.
In particular, Section IV.G requires, at
the acquirer’s option, that the
Defendants assign the acquirer all
Arcadian contracts with healthcare
providers in all of the relevant
geographic markets where those
contracts are freely assignable, except
Columbia, Hempstead, Howard,
Lafayette, Little River, Miller, Nevada,
and Sevier Counties in Arkansas, and
Bowie, Cass, and Titus Counties in
Texas (collectively, ‘‘the Texarkana
Area,’’ discussed further below). Where
those contracts are not freely assignable,
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Frm 00074
Fmt 4703
Sfmt 4703
the Defendants must use their best
efforts to obtain any necessary provider
consents to assignment of the Arcadian
contracts and assign those contracts to
the Acquirer after obtaining the
necessary consents. To further ensure
that the Acquirer has an adequate
network, Section IV.H imposes the same
obligation with respect to providers that
provide health-care services in a county
or parish contiguous to a divestiture
county or parish, but that receive the
bulk of their Arcadian contract
payments from Arcadian members in
the divestiture area, also at the
acquirer’s option.
In addition, to ensure that the
acquirer of the assets related to the
Texarkana Area has the same providers
in its network as Humana currently does
and on terms that are equal to Humana’s
terms, Section IV.K of the Final
Judgment requires Humana to lease
access to two of its wholly-owned
provider networks, ChoiceCare and
LifeSynch, to the acquirer of the
divestiture assets in the Texarkana
Area’s relevant geographic markets.
Humana’s Medicare Advantage plans in
the Texarkana Area currently use these
networks to access providers. Section
IV.K requires Humana to lease to the
acquirer access to these networks on
non-discriminatory terms until
December 31, 2014. This time period
and the enrollment that comes with the
divestiture should enable the acquirer to
develop its own provider network.
2. Quick Divestiture
Section IV of the proposed Final
Judgment is designed to ensure that the
divestitures occur quickly, and in a
manner consistent with applicable
regulatory requirements. Section IV.A
requires that the Defendants complete
the divestitures within sixty days of the
filing of the Complaint, with the
granting of possible extensions in the
sole discretion of the United States and
not to exceed ninety days total. If (1) the
Defendants have filed all necessary
applications or requests for government
approval within five days after the date
that the United States informs the
Defendants that it does not object to a
proposed divestiture, and (2) an order or
other dispositive action on such
applications has not issued or become
effective before the end of the period
permitted for divestiture, Section IV.B
extends the divestiture period until five
business days after the approval is
received.
3. Branding
The Final Judgment also recognizes
the importance of branding to a
company’s ability to compete effectively
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in the sale of Medicare Advantage plans.
Section IV.M provides that upon
completing the divestiture and through
December 31, 2014, the Defendants may
not use the Arcadian brand for any type
of Medicare Advantage plan, other than
a Special Needs Plan, in any of the fiftyone counties and parishes (including
the five additional counties and one
additional parish discussed above)
except those in the Texarkana Area. In
addition, Section IV.N allows the
acquirer to use the Arcadian brand in
any of the fifty-one counties and
parishes except those in the Texarkana
Area for up to twelve months after
divestiture with the United States’
approval. Section IV.O allows the
acquirer to make reasonable transitional
use of the Humana brand in the
Texarkana Area.
emcdonald on DSK29S0YB1PROD with NOTICES
4. CMS Regulatory Process
Section IV also requires that the
Defendants transfer the Divestiture
Assets in a manner consistent with CMS
rules and regulations, and that the
Defendants maintain the viability of
those assets in the interim through the
CMS bidding process. Specifically,
Section IV.S requires Defendants to
work with CMS to ensure that the
divestiture process satisfies any CMS
concerns about network disruption and
adheres to rules and regulations
regarding novations. Section IV.X
provides that if Defendants fail to divest
the Divestiture Assets by May 15, 2012,
Humana will prepare and submit to
CMS, in the ordinary course of business
and consistent with past practice,
subject to actuarially reasonable
adjustment, all necessary filings for the
Divestiture Assets including Medicare
Advantage Plan bids for 2013, so that
the Divestiture Assets remain viable,
ongoing Medicare Advantage offerings.
CMS’s annual Medicare Advantage bid
cycle necessitates this provision because
plan proposals for the upcoming year
must be submitted by no later than June
of the current year.
5. Divestiture Trustee and Monitoring
Trustee
Section V provides for the
appointment, if necessary, of a trustee to
sell the Divesture Assets and thereby
also encourages a quick, effective
divestiture in this matter. Section V.A
provides that, if the Defendants have not
divested the Divestiture Assets within
the time period specified in Section IV,
the Court will appoint a trustee selected
by the United States to carry out any
divestitures the Defendants have not
completed. Defendants must pay the
trustee’s costs and expenses, and the
trustee’s commission will provide an
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Jkt 226001
incentive based on the price, terms, and
speed of the divestiture. Once the
trustee is appointed, the trustee will file
monthly reports with the Court and the
United States explaining his or her
efforts to accomplish the divestiture.
Section V.G provides that if the trustee
has not accomplished the divestiture by
November 21, 2012, the trustee and the
United States will make
recommendations to the Court, which
will enter such orders as it deems
appropriate in order to carry out the
purpose of the trust. This may include
extending the trust or the term of the
trustee’s appointment by a period
requested by the United States.
As soon as the filing of the Complaint,
the United States may also appoint a
monitoring trustee, subject to the
approval by the Court, which will
insure against deterioration of the
Divestiture Assets until their
divestiture. The monitoring trustee will
have the power and authority to monitor
Defendants’ compliance with the Final
Judgment and Stipulation and such
powers as the Court may deem
appropriate, and Defendants can object
to that trustee’s actions only for
malfeasance. This trustee will serve at
Humana’s expense and on such terms
and conditions as the United States
approves, and the Defendants must
assist the trustee in fulfilling its
obligations. The monitoring trustee will
file monthly reports and will serve until
the divestiture is complete and any
agreements for transitional support
services have expired.
IV. Remedies Available to Potential
Private Litigants
Section 4 of the Clayton Act, 15
U.S.C. 15, provides that any person who
has been injured as a result of conduct
prohibited by the antitrust laws may
bring suit in federal court to recover
three times the damages the person has
suffered, as well as costs and reasonable
attorneys fees. Entry of the proposed
Final Judgment will neither impair nor
assist the bringing of any private
antitrust damage action. Under the
provisions of Section 5(a) of the Clayton
Act, 15 U.S.C. 16(a), the proposed Final
Judgment has no prima facie effect in
any subsequent private lawsuit that may
be brought against Defendants.
V. Procedures Available for
Modification of the Proposed Final
Judgment
The United States, Humana, and
Arcadian have stipulated that the
proposed Final Judgment may be
entered by the Court after compliance
with the provisions of the APPA,
provided that the United States has not
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withdrawn its consent. The APPA
conditions entry upon the Court’s
determination that the proposed Final
Judgment is in the public interest.
The APPA provides a period of at
least sixty days preceding the effective
date of the proposed Final Judgment
within which any person may submit to
the United States written comments
regarding the proposed Final Judgment.
Any person who wishes to comment
should do so within sixty days of the
date of publication of this Competitive
Impact Statement in the Federal
Register, or the last date of publication
in a newspaper of the summary of this
Competitive Impact Statement,
whichever is later. All comments
received during this period will be
considered by the United States
Department of Justice, which remains
free to withdraw its consent to the
proposed Final Judgment at any time
before the Court’s entry of judgment.
The comments and the response of the
United States will be filed with the
Court and published in the Federal
Register.
Written comments should be
submitted to: Joshua H. Soven, Chief,
Litigation I Section, Antitrust Division,
United States Department of Justice, 450
Fifth Street NW., Suite 4100,
Washington, DC 20530.
The proposed Final Judgment
provides that the Court retains
jurisdiction over this action, and the
parties may apply to the Court for any
order necessary or appropriate for the
modification, interpretation, or
enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final
Judgment
The United States considered, as an
alternative to the proposed Final
Judgment, a full trial on the merits
against Defendants. The United States
could have continued the litigation and
sought a judicial order enjoining
Humana’s acquisition of Arcadian. The
United States is satisfied, however, that
divestiture of the assets described in the
proposed Final Judgment will preserve
competition for the sale of individual
Medicare Advantage plans in the
relevant geographic markets. Thus, the
proposed Final Judgment would achieve
all or substantially all of the relief the
United States would have obtained
through litigation, but avoids the time,
expense, and uncertainty of a full trial
on the merits.
VII. Standard of Review Under the
APPA for the Proposed Final Judgment
The Clayton Act, as amended by the
APPA, requires that proposed consent
judgments in antitrust cases brought by
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the United States be subject to a sixtyday comment period, after which the
court shall determine whether entry of
the proposed Final Judgment ‘‘is in the
public interest.’’ 15 U.S.C. 16(e)(1). In
making that determination, the court, in
accordance with the statute as amended
in 2004, is required to consider:
(A) The competitive impact of such
judgment, including termination of
alleged violations, provisions for
enforcement and modification, duration
of relief sought, anticipated effects of
alternative remedies actually
considered, whether its terms are
ambiguous, and any other competitive
considerations bearing upon the
adequacy of such judgment that the
court deems necessary to a
determination of whether the consent
judgment is in the public interest; and
(B) the impact of entry of such
judgment upon competition in the
relevant market or markets, upon the
public generally and individuals
alleging specific injury from the
violations set forth in the complaint
including consideration of the public
benefit, if any, to be derived from a
determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B).
In considering these statutory factors,
the court’s inquiry is necessarily a
limited one as the government is
entitled to ‘‘broad discretion to settle
with the defendant within the reaches of
the public interest.’’ United States v.
Microsoft Corp., 56 F.3d 1448, 1461
(D.C. Cir. 1995); see also United States
v. SBC Commc’ns, Inc., 489 F. Supp. 2d
1 (D.D.C. 2007) (assessing publicinterest standard under the Tunney
Act); United States v. InBev N.V./S.A.,
2009–2 Trade Cas. (CCH) ¶ 76,736, 2009
U.S. Dist. LEXIS 84787, No. 08–1965
(JR), at *3 (D.D.C. Aug. 11, 2009) (noting
that the court’s review of a consent
judgment is limited and only inquires
‘‘into whether the government’s
determination that the proposed
remedies will cure the antitrust
violations alleged in the complaint was
reasonable, and whether the
mechanisms to enforce the final
judgment are clear and manageable.’’).2
Under the APPA, a court considers,
among other things, the relationship
between the remedy secured and the
specific allegations set forth in the
United States’ complaint, whether the
2 The 2004 amendments substituted ‘‘shall’’ for
‘‘may’’ in directing relevant factors for courts to
consider and amended the list of factors to focus on
competitive considerations and to address
potentially ambiguous judgment terms. Compare 15
U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006);
see also SBC Commc’ns, 489 F. Supp. 2d at 11
(concluding that the 2004 amendments ‘‘effected
minimal changes’’ to Tunney Act review).
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decree is sufficiently clear, whether
enforcement mechanisms are sufficient,
and whether the decree may positively
harm third parties. See Microsoft, 56
F.3d at 1458–62. With respect to the
adequacy of the relief secured by the
decree, a court may not ‘‘engage in an
unrestricted evaluation of what relief
would best serve the public.’’ United
States v. BNS Inc., 858 F.2d 456, 462
(9th Cir. 1988) (citing United States v.
Bechtel Corp., 648 F.2d 660, 666 (9th
Cir. 1981)); see also Microsoft, 56 F.3d
at 1460–62; InBev, 2009 U.S. Dist.
LEXIS 84787, at *3; United States v.
Alcoa, Inc., 152 F. Supp. 2d 37, 40
(D.D.C. 2001). Courts have held that:
[t]he balancing of competing social and
political interests affected by a proposed
antitrust consent decree must be left, in the
first instance, to the discretion of the
Attorney General. The court’s role in
protecting the public interest is one of
insuring that the government has not
breached its duty to the public in consenting
to the decree. The court is required to
determine not whether a particular decree is
the one that will best serve society, but
whether the settlement is ‘‘within the reaches
of the public interest.’’ More elaborate
requirements might undermine the
effectiveness of antitrust enforcement by
consent decree.
Bechtel, 648 F.2d at 666 (emphasis
added) (citations omitted).3 In
determining whether a proposed
settlement is in the public interest, a
district court ‘‘must accord deference to
the government’s predictions about the
efficacy of its remedies, and may not
require that the remedies perfectly
match the alleged violations.’’ SBC
Commc’ns, 489 F. Supp. 2d at 17; see
also Microsoft, 56 F.3d at 1461 (noting
the need for courts to be ‘‘deferential to
the government’s predictions as to the
effect of the proposed remedies’’);
United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6
(D.D.C. 2003) (noting that the court
should grant due respect to the United
States’ ‘‘prediction as to the effect of
proposed remedies, its perception of the
market structure, and its views of the
nature of the case’’).
Courts have greater flexibility in
approving proposed consent decrees
than in crafting their own decrees
following a finding of liability in a
3 Cf. BNS, 858 F.2d at 464 (holding that the
court’s ‘‘ultimate authority under the [APPA] is
limited to approving or disapproving the consent
decree’’); United States v. Gillette Co., 406 F. Supp.
713, 716 (D. Mass. 1975) (noting that, in this way,
the court is constrained to ‘‘look at the overall
picture not hypercritically, nor with a microscope,
but with an artist’s reducing glass’’); see generally
Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the
remedies [obtained in the decree are] so
inconsonant with the allegations charged as to fall
outside of the ‘reaches of the public interest’’’).
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litigated matter. ‘‘[A] proposed decree
must be approved even if it falls short
of the remedy the court would impose
on its own, as long as it falls within the
range of acceptability or is ‘within the
reaches of public interest.’’’ United
States v. Am. Tel. & Tel. Co., 552 F.
Supp. 131, 151 (D.D.C. 1982) (citations
omitted) (quoting United States v.
Gillette Co., 406 F. Supp. 713, 716 (D.
Mass. 1975)), aff’d sub nom. Maryland
v. United States, 460 U.S. 1001 (1983);
see also United States v. Alcan
Aluminum Ltd., 605 F. Supp. 619, 622
(W.D. Ky. 1985) (approving the consent
decree even though the court would
have imposed a greater remedy). To
meet this standard, the United States
‘‘need only provide a factual basis for
concluding that the settlements are
reasonably adequate remedies for the
alleged harms.’’ SBC Commc’ns, 489 F.
Supp. 2d at 17.
Moreover, the court’s role under the
APPA is limited to reviewing the
remedy in relationship to the violations
that the United States has alleged in its
complaint, and does not authorize the
court to ‘‘construct [its] own
hypothetical case and then evaluate the
decree against that case.’’ Microsoft, 56
F.3d at 1459; see also InBev, 2009 U.S.
Dist. LEXIS 84787, at *20 (‘‘the ‘public
interest’ is not to be measured by
comparing the violations alleged in the
complaint against those the court
believes could have, or even should
have, been alleged’’). Because the
‘‘court’s authority to review the decree
depends entirely on the government’s
exercising its prosecutorial discretion by
bringing a case in the first place,’’ it
follows that ‘‘the court is only
authorized to review the decree itself,’’
and not to ‘‘effectively redraft the
complaint’’ to inquire into other matters
that the United States did not pursue.
Microsoft, 56 F.3d at 1459–60. As the
United States District Court for the
District of Columbia confirmed in SBC
Communications, courts ‘‘cannot look
beyond the complaint in making the
public interest determination unless the
complaint is drafted so narrowly as to
make a mockery of judicial power.’’ SBC
Commc’ns, 489 F. Supp. 2d at 15.
In its 2004 amendments, Congress
made clear its intent to preserve the
practical benefits of using consent
decrees in antitrust enforcement, adding
the unambiguous instruction that
‘‘[n]othing in this section shall be
construed to require the court to
conduct an evidentiary hearing or to
require the court to permit anyone to
intervene.’’ 15 U.S.C. 16(e)(2). This
language effectuates what Congress
intended when it enacted the Tunney
Act in 1974. As Senator Tunney
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Services, Inc., by their respective
attorneys, have consented to the entry of
this Final Judgment without trial or
adjudication of any issue of fact or law
and without this Final Judgment
constituting any evidence against or
admission by any party regarding any
issue of fact or law;
And whereas, Defendants agree to be
bound by the provisions of this Final
Judgment pending its approval by the
Court;
And whereas, the essence of this Final
Judgment is the prompt and certain
divestitures of certain rights and assets
by Defendants to ensure that
VIII. Determinative Documents
competition is not substantially
There are no determinative materials
lessened in the sale of Medicare
or documents within the meaning of the Advantage Plans to Medicare
APPA that the United States considered beneficiaries in the Arcadian Plan Areas
in formulating the proposed Final
and Texarkana Area as described below;
Judgment.
And whereas, the United States
requires Defendants to make certain
Dated this 27th day of March 2012.
divestitures for the purpose of
Respectfully submitted,
remedying the loss of competition
/s/Adam Gitlin lllllllllllll
alleged in the Complaint;
Adam Gitlin,
And whereas, Defendants have
Barry Creech (DC Bar #421070),
represented to the United States that the
Barry Joyce,
divestitures required by this Final
Edward D. Eliasberg, Jr. (DC Bar #199182),
Judgment can and will be made, and
Katrina Rouse,
that Defendants will not later raise any
Attorneys for the United States, Litigation I
claim of hardship or difficulty as
Section, Antitrust Division, U.S. Department
grounds for asking the Court to modify
of Justice, 450 Fifth Street NW., Suite 4100,
Washington, DC 20530.
any of the provisions of this Final
Judgment;
Telephone: (202) 307–6456.
Facsimile: (202) 305–1190.
Now therefore, before any testimony
Email: adam.gitlin@usdoj.gov.
is taken, without trial or adjudication of
any issue of fact or law, and upon
United States District Court for the
consent of the parties, it is ordered,
District of Columbia
adjudged, and decreed:
United States of America, Plaintiff v.
Humana Inc. and Arcadian Management I. Jurisdiction
Services, Inc., Defendants.
This Court has jurisdiction over the
Case: 1:12–cv–00464.
subject matter of, and each of the parties
Assigned To: Walton, Reggie B.
to, this action. The Complaint states a
Assign. Date: 3/27/2012.
claim upon which relief may be granted
Description: Antitrust.
against Defendants under Section 7 of
[Proposed] Final Judgment
the Clayton Act, as amended, 15 U.S.C.
18.
Whereas, plaintiff, United States of
America, filed its Complaint on March
II. Definitions
27, 2012, and Plaintiff and Defendants,
As used in this Final Judgment:
Humana Inc. and Arcadian Management
A. ‘‘Acquirer’’ means the entity or
entities to which the Divestiture Assets
4 See United States v. Enova Corp., 107 F. Supp.
are divested.
2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney
B. ‘‘Amarillo Plan’’ means the
Act expressly allows the court to make its public
interest determination on the basis of the
individual Medicare Advantage Plan
competitive impact statement and response to
offered by Arcadian solely insofar as
comments alone’’); United States v. Mid-Am.
such plan serves enrollees in the
Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508,
Amarillo Area under CMS Contract ID
at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of
corrupt failure of the government to discharge its
H4529, Plan ID 27 or such other contract
duty, the Court, in making its public interest
and plan identification number as CMS
finding, should * * * carefully consider the
assigns to such plan.
explanations of the government in the competitive
C. ‘‘Arcadian’’ means Defendant
impact statement and its responses to comments in
order to determine whether those explanations are
Arcadian Management Services, Inc., a
reasonable under the circumstances.’’); S. Rep. No.
Delaware corporation with its
93–298 at 6 (1973) (‘‘Where the public interest can
headquarters in Oakland, CA, its
be meaningfully evaluated simply on the basis of
successors and assigns, and its
briefs and oral arguments, that is the approach that
subsidiaries, divisions, groups,
should be utilized.’’).
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explained: ‘‘[t]he court is nowhere
compelled to go to trial or to engage in
extended proceedings which might have
the effect of vitiating the benefits of
prompt and less costly settlement
through the consent decree process.’’
119 Cong. Rec. 24,598 (1973) (statement
of Senator Tunney). Rather, the
procedure for the public-interest
determination is left to the discretion of
the court, with the recognition that the
court’s ‘‘scope of review remains
sharply proscribed by precedent and the
nature of Tunney Act proceedings.’’
SBC Commc’ns, 489 F. Supp. 2d at 11.4
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affiliates, partnerships and joint
ventures, and their respective directors,
officers, managers, agents, and
employees.
D. ‘‘Arcadian CMS Plans’’ means the
Amarillo Plan, Arizona Plans, Eastern
Oklahoma Plan, Fort Smith Plan, Lake
Charles Plan, Longview-Marshall Plan,
and Shreveport Plan.
E. ‘‘Arcadian Contracted Provider’’
means a health-care provider contracted
with Arcadian to provide or arrange for
health services under an Arcadian CMS
Plan as of March 1, 2012.
F. ‘‘Arcadian Contracts’’ means the
CMS contracts pursuant to which the
Arcadian CMS Plans are administered.
G. ‘‘Arcadian Plan Areas’’ means the
Amarillo Area (Armstrong, Carson, Deaf
Smith, Oldham, Potter, and Randall
Counties in Texas), Eastern Oklahoma
Area (Adair, Delaware, Haskell, Le
Flore, McCurtain, Ottawa, Pushmataha,
and Sequoyah Counties in Oklahoma),
Longview-Marshall Area (Gregg,
Harrison, and Henderson Counties in
Texas), Arizona Area (Mohave and
Yavapai Counties in Arizona),
Shreveport Area (Bienville, Bossier,
Caddo, Claiborne, De Soto, Red River,
and Webster Parishes in Louisiana),
Lake Charles Area (Allen, Beauregard,
Calcasieu, Cameron, and Jefferson Davis
Parishes in Louisiana), and Fort Smith
Area (Conway, Crawford, Franklin,
Johnson, Logan, Pope, Scott, Sebastian,
and Yell counties in Arkansas).
H. ‘‘Arizona Plans’’ means the
individual Medicare Advantage Plans
offered by Arcadian solely insofar as
such plan serves enrollees in the
Arizona Area under CMS Contract ID
H0320, Plan IDs 5 and 6 or such other
contract and plan identification
numbers as CMS assigns to such plan.
I. ‘‘Broker’’ means any independent
insurance agent, general agent,
producer, or broker who facilitates the
sale of health-insurance plans to
individuals or groups.
J. ‘‘CMS’’ means the Centers for
Medicare and Medicaid Services, an
agency within the U.S. Department of
Health and Human Services.
K. ‘‘Divestiture Assets’’ means all of
Arcadian’s rights and obligations under
the Arcadian Contracts with respect to
the Arcadian CMS Plans, and all of
Humana’s rights and obligations under
the Texarkana Contracts with respect to
the Texarkana CMS Plans, including the
right to offer Medicare Advantage plans
to individual enrollees pursuant to the
bids filed with CMS for the contract
year in effect as of the closing of the
divestiture of the Divestiture Assets, and
the right to receive from CMS a per
member per month capitation payment
in exchange for providing or arranging
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for the benefits enumerated in the bids;
and copies of all business, financial and
operational books, records, and data,
both current and historical, that
primarily relate to the Arcadian
Contracts or Texarkana Contracts.
Where books, records, or data primarily
relate to the Arcadian CMS Plans or
Texarkana CMS Plans, but not solely to
these Plans, Defendants must provide
excerpts relating to these Plans. Nothing
herein requires Defendants to take any
action prohibited by the Health
Insurance Portability and
Accountability Act of 1996 (HIPAA).
L. ‘‘Duplicate’’ means a contract with
identical terms to a contract with an
Arcadian Contracted Provider, except
for those terms that identify (i) the
contract’s effective date and (ii) the
Medicare Advantage organization or the
entity contracting on behalf of the
Medicare Advantage organization.
M. ‘‘Eastern Oklahoma Plan’’ means
the individual Medicare Advantage Plan
offered by Arcadian solely insofar as
such plan serves enrollees in the Eastern
Oklahoma Area under CMS Contract ID
H4125, Plan ID 1 or such other contract
and plan identification number as CMS
assigns to such plan.
N. ‘‘Fort Smith Plan’’ means the
individual Medicare Advantage Plan
offered by Arcadian solely insofar as
such plan serves enrollees in the Fort
Smith Area under CMS Contract ID
H5700, Plan ID 9 or such other contract
and plan identification number as CMS
assigns to such plan.
O. ‘‘Health-care provider’’ means any
person or entity that contracts with
Arcadian or Humana to provide or
arrange for the provision of any healthcare service, including hospitals,
physician groups, laboratories,
ambulatory surgical centers, nursing
facilities, pharmacies, and other
providers of health-care services.
P. ‘‘Humana’’ means defendant
Humana Inc., a Delaware corporation
with its headquarters in Louisville,
Kentucky, its successors and assigns,
and its subsidiaries, divisions, groups,
affiliates, partnerships and joint
ventures, and their respective directors,
officers, managers, agents, and
employees.
Q. ‘‘Lake Charles Plan’’ means the
individual Medicare Advantage Plan
offered by Arcadian solely insofar as
such plan serves enrollees in the Lake
Charles Area under CMS Contract ID
H7179, Plan ID 2 or such other contract
and plan identification number as CMS
assigns to such plan.
R. ‘‘Longview-Marshall Plan’’ means
the individual Medicare Advantage Plan
offered by Arcadian solely insofar as
such plan serves enrollees in the
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Longview-Marshall Area under CMS
Contract ID H4529, Plan ID 30 or such
other contract and plan identification
number as CMS assigns to such plan.
S. ‘‘Medicare Advantage Plan’’ means
Medicare Advantage health
maintenance organization plans,
Medicare Advantage preferred provider
organization plans, and Medicare
Advantage private fee-for-service plans,
as defined in 42 U.S.C. § 1395w–28.
T. ‘‘Shreveport Plan’’ means the
individual Medicare Advantage Plan
offered by Arcadian solely insofar as
such plan serves enrollees in the
Shreveport Area under CMS Contract ID
H7179, Plan ID 2 or such other contract
and plan identification number as CMS
assigns to such plan.
U. ‘‘Texarkana Area’’ means
Columbia, Hempstead, Howard,
Lafayette, Little River, Miller, Nevada,
and Sevier Counties in Arkansas, and
Bowie, Cass, and Titus Counties in
Texas.
V. ‘‘Texarkana Contracts’’ means the
CMS contracts pursuant to which the
Texarkana CMS Plans are administered.
W. ‘‘Texarkana CMS Plans’’ means the
individual Medicare Advantage Plans
offered by Humana solely insofar as
such plan serves enrollees in the
Texarkana Area under CMS Contract ID
H2944, Plan IDs 13, 197, and 204;
Contract ID H4520, Plan ID 6; Contract
ID H7188, Plan IDs 3 and 6; and
Contract ID H8145, Plan IDs 120 and
122, or such other contract and plan
identification numbers as CMS assigns
to such plans.
X. ‘‘Transaction’’ means the merger
contemplated by the Agreement and
Plan of Merger dated as of August 24,
2011, by and among Humana, Humsol,
Inc., and Arcadian.
III. Applicability
A. This Final Judgment applies to
each Defendant and any other person in
active concert or participation with any
Defendant who receives actual notice of
this Final Judgment by personal service
or otherwise.
B. If, prior to complying with Section
IV and V of this Final Judgment,
Defendants sell or otherwise dispose of
all or substantially all of their assets or
of lesser business units that include the
Divestiture Assets, Defendants must
require the purchaser(s) to be bound by
the provisions of this Final Judgment.
Defendants need not obtain such an
agreement from the Acquirer of the
assets divested pursuant to this Final
Judgment.
IV. Divestitures
A. Defendants are ordered and
directed to divest the Divestiture Assets
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in a manner consistent with this Final
Judgment to one or more Acquirers
acceptable to the United States, in its
sole discretion, within sixty calendar
days after the filing of the Complaint in
this matter. The United States, in its
sole discretion, may agree to one or
more extensions of this time period not
to exceed ninety days total and must
notify the Court in such circumstances.
B. Defendants must obtain all
regulatory approvals necessary for such
divestitures as expeditiously as
possible. If applications for approval
have been filed with the appropriate
governmental units within five calendar
days after the United States has
provided written notice, pursuant to
Section 0, that it does not object to a
proposed divestiture, but these required
approvals have not been issued or
become effective before the end of the
period permitted for divestiture, the
period for divestiture shall be extended
until five business days after all
necessary government approvals have
been received. With respect to this
Section IV.B, an application for CMS
approval will be deemed to have been
filed when Defendants have given CMS
advance notice of a possible change in
ownership pursuant to 42 CFR
422.550(b), provided that Defendants
timely submit all materials required by
CMS for approval.
C. In accomplishing the divestitures
ordered by this Final Judgment,
Defendants promptly must make
known, by usual and customary means,
the availability of the Divestiture Assets.
Defendants must inform any person
making an inquiry regarding a possible
purchase that the divestitures are being
made pursuant to this Final Judgment
and must provide that person with a
copy of this Final Judgment. Defendants
must offer to furnish to all prospective
Acquirers, subject to reasonable
confidentiality assurances, all
information and documents relating to
the Divestiture Assets customarily
provided in a due diligence process,
except information and documents
subject to the attorney-client privilege or
the attorney work-product privilege.
Defendants must make available such
information to the United States at the
same time that such information is
made available to prospective
Acquirers.
D. Defendants must permit
prospective Acquirers of the Divestiture
Assets to have reasonable access to
personnel and access to any and all
financial, operational, or other
documents and information as is
customarily provided as part of a due
diligence process for a transaction of
this type.
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E. Defendants may not take any action
that will impede in any way the
permitting, operation, or divestiture of
the Divestiture Assets.
F. Unless the United States otherwise
consents in writing, the divestitures
pursuant to Section IV, or by a
Divestiture Trustee appointed pursuant
to Section V, must include the entire
Divestiture Assets and must be
accomplished in such a way as to satisfy
the United States, in its sole discretion,
that the Divestiture Assets can and will
be used by the Acquirer as part of a
viable, ongoing business engaged in the
sale of Medicare Advantage Plans in the
Divestiture Areas. The divestiture of the
Divestiture Assets may be made to one
or more Acquirers, provided that in
each instance it is demonstrated to the
sole satisfaction of the United States
that the Divestiture Assets will remain
viable and the divestitures will remedy
the competitive harm alleged in the
Complaint. The divestitures, whether
pursuant to Section IV or Section V of
this Final Judgment: (1) Must be made
to Acquirer(s) that, in the United States’
sole judgment, each have the intent and
capability (including the necessary
managerial, operational, technical, and
financial capability) to compete
effectively in the sale of Medicare
Advantage Plans in the Divestiture
Areas; and (2) must be accomplished so
as to satisfy the United States, in its sole
discretion, that none of the terms of any
agreement between Defendants and any
Acquirer gives Defendants the ability to
interfere with the Acquirer’s ability to
compete effectively.
G. At the Acquirer’s option,
Defendants must (1) assign to the
Acquirer or, if acceptable to the
Arcadian Contracted Provider, arrange
for entry into a Duplicated contract for
the Acquirer’s benefit, all of the
Arcadian contracts with Arcadian
Contracted Providers that provide or
arrange for the provision of health
services in an Arcadian Plan Area where
those contracts are freely assignable;
and (2) for such contracts that are not
freely assignable, use their best efforts to
obtain any necessary provider consents
to assignment or to entry into a
Duplicated contract for the Acquirer’s
benefit and assign those contracts to the
Acquirer after obtaining the necessary
consents or deliver such Duplicated
contracts as applicable.
H. At the Acquirer’s option, for each
Arcadian Contracted Provider not
subject to Section IV.G, that provides or
arranges for the provision of health-care
services in a county or parish
contiguous to an Arcadian Plan Area,
where at least fifty percent of the
services provided under the health-care
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provider’s Arcadian contract are
provided to members of the Arcadian
CMS Plans who reside in a single
Arcadian Plan Area (as measured by
2011 claims payments), Defendants
must (1) assign to the Acquirer or, if
acceptable to the Arcadian Contracted
Provider, arrange for entry into a
Duplicated contract for the Acquirer’s
benefit, all such contracts that are freely
assignable; and (2) for such contracts
that are not freely assignable, use their
best efforts to obtain any necessary
provider consents to assignment or to
entry into a Duplicated contract for the
Acquirer’s benefit, and assign them to
the Acquirer after obtaining the
necessary consents or deliver such
Duplicated contracts as applicable.
I. The requirements of Sections IV.G
and IV.H do not apply to Arcadian
Contracted Providers that provide or
arrange in three or more states for
durable medical equipment, pharmacy
and pharmacy benefit management
services, transplant services, dental
care, vision care, clinical laboratory
services, home health services,
prosthetics and orthotics, and
rehabilitation services.
J. At the Acquirer’s option,
Defendants must assist and facilitate the
negotiation of and entry into agreements
between the Acquirer and such
Arcadian Contracted Providers as
account for substantially all of the
health-care services to members of the
Arcadian CMS Plans that are provided
through an Arcadian contract, and on
terms substantially as favorable as those
in the Arcadian contract as of March 1,
2012.
K. At the Acquirer’s option, Humana
must contract through December 31,
2014, to provide access to Humana’s
ChoiceCare and LifeSynch provider
networks in the States of Arkansas and
Texas to the Acquirer of the Texarkana
CMS Plans for members of the
Texarkana CMS Plans. The contract
terms may not be less favorable than the
terms on which Humana’s own
Medicare Advantage plans access
ChoiceCare and LifeSynch, and Humana
may not charge any administrative,
network access, leasing, or other fee to
the Acquirer greater than the fees that
Humana charged itself for access to
ChoiceCare and LifeSynch as of
December 31, 2011. Humana may not
contract with the Acquirer to provide
access to ChoiceCare and LifeSynch for
the members of the Texarkana CMS
Plans after December 31, 2014, unless
the United States consents. Humana
may not interfere with the Acquirer’s
efforts to contract independently with
health-care providers participating in
ChoiceCare and LifeSynch.
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20431
L. Defendants must provide to the
Acquirer, the United States, and any
Monitoring Trustee, information relating
to the personnel primarily involved in
the operation of the Divestiture Assets
to enable the Acquirer to make offers of
employment to those persons.
Defendants may not interfere with any
negotiations by the Acquirer to employ,
and must waive all noncompete
agreements for, any of those persons.
For a period of two years from the filing
of the Complaint in this matter,
Defendants may not solicit to hire any
such person who was hired by any
Acquirer, unless the Acquirer has
notified such person that the Acquirer
does not intend to continue to employ
the person.
M. Upon completing the divestitures
and through December 31, 2014,
Defendants may not use any Arcadian
brand, or any substantially similar
brand, name, or logo, for any type of
Medicare Advantage plan of Defendants
in the Arcadian Plan Areas, with the
exception of any Arcadian Special
Needs Plan, as defined in 42 U.S.C.
1395w–28(b)(6). Defendants may use the
Arcadian brand or any substantially
similar brand, name, or logo, for any
Arcadian Special Needs Plan in the
Arcadian Plan Areas.
N. At the Acquirer’s option, and
subject to approval by the United States,
Defendants will allow the Acquirer to
license and use the Arcadian brand, and
any substantially similar brand, name,
or logo, with the Divestiture Assets for
twelve months upon completing the
divestitures, and solely in the Arcadian
Plan Areas.
O. At the Acquirer’s option, and
subject to approval by the United States,
Humana will allow the Acquirer to
license and use the Humana brand, or
any substantially similar brand, name,
or logo, for a period of up to three
months after the effective date of the
divestiture to such Acquirer (or any
such longer period as CMS shall
require) solely for the purpose of
communicating to enrollees and
prospective enrollees the transition from
Humana’s CMS Texarkana Plans to the
Acquirer, and solely in the Texarkana
Area. Humana may place reasonable
limitation on the use of materials
bearings its brand, including prior
submission of materials containing
Humana’s brand, name or logo, to
Humana for review and approval, which
such approval shall not unreasonably be
withheld. Nothing in this provision
shall supersede any CMS marketing
guidelines or regulations concerning
Medicare Advantage plans.
P. At the Acquirer’s option, and
subject to approval by the United States,
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Defendants will provide transitional
support services for medical and
prescription drug claims processing,
appeals and grievances, call-center
support, enrollment and eligibility
services, access to form templates,
disease management, Medicare riskadjustment services, quality-assurance
services, and such other transition
services that are reasonably necessary
for the Acquirer to operate the
Divestiture Assets. Defendants may not
provide such transitional support
services for more than twelve months
from the date of the completion of the
divestitures unless the United States
approves.
Q. To ensure an effective transition
and transfer of enrollees in the Arcadian
CMS Plans and Texarkana CMS Plans,
Defendants must cooperate and work
with the Acquirer in transition planning
and implementing the transfer of the
Divestiture Assets.
R. Defendants will communicate and
cooperate fully with the Acquirer to
promptly identify and obtain all
consents, approvals, and novations of
government agencies necessary to divest
the Divestiture Assets.
S. Defendants will communicate and
cooperate fully with the Acquirer to
work in good faith with CMS to
implement a novation process that is
efficient and adheres to CMS’s
requirements requiring notices to plan
members so as to minimize any
potential disruption and confusion to
enrollees in the Arcadian CMS Plans
and Texarkana CMS Plans.
T. Humana must warrant to the
Acquirer that, since the date of its
acquisition of Arcadian, Humana has
operated the Divestiture Assets in all
material respects in accordance with the
requirements of the Arcadian Contracts
and the Texarkana Contracts.
U. Defendants may not take any
action having the effect of delaying the
authorization or scheduling of healthcare services provided to enrollees in
the Arcadian CMS Plans or Texarkana
CMS Plans in a manner inconsistent
with Defendants’ past practice with
respect to the Arcadian CMS Plans or
Texarkana CMS Plans.
V. Defendants may not make any
material change to the customary terms
and conditions upon which they do
business with respect to the Arcadian
CMS Plans that would be expected,
individually or in the aggregate, to have
a materially adverse effect on the
Arcadian CMS Plans. Defendants may
not make any material change to the
customary terms and conditions upon
which they do business with respect to
the Texarkana CMS Plans that would be
expected, individually or in the
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aggregate, to have a materially adverse
effect on the Texarkana CMS Plans.
W. Defendants must identify the top
ten Brokers with respect to the Arcadian
CMS Plans and the Texarkana CMS
Plans along with the corresponding
number of enrollees produced by each
such Broker. Defendants will introduce
the Acquirer to any such Broker for the
purpose of the Acquirer having an
opportunity, at the Acquirer’s option, to
negotiate an agreement with the Broker
to market and sell the Arcadian CMS
Plans or Texarkana CMS Plans after the
completion of the divestitures.
X. If Defendants fail to divest the
Divestiture Assets by May 15, 2012,
Humana must prepare and submit to
CMS, in the ordinary course of business
and consistent with past practice,
subject to actuarially reasonable
adjustment, all necessary filings for the
Arcadian CMS Plans and the Texarkana
CMS Plans, including Medicare
Advantage Plan bids for 2013, so that
the Divestiture Assets remain viable,
ongoing Medicare Advantage offerings.
V. Appointment of Divestiture Trustee
A. If Defendants have not divested
some or all of the Divestiture Assets
within the time period specified in
Section 0, Defendants must notify the
United States of that fact in writing.
Upon application of the United States,
the Court shall appoint a Divestiture
Trustee selected by the United States
and approved by the Court to effect the
divestiture of any Divestiture Assets not
already divested.
B. After the appointment of a
Divestiture Trustee becomes effective,
only the Divestiture Trustee shall have
the right to sell the Divestiture Assets.
The Divestiture Trustee shall have the
power and authority to accomplish the
divestitures to one or more Acquirers
acceptable to the United States at such
price and on such terms as are then
obtainable upon reasonable effort by the
Divestiture Trustee, subject to the
provisions of Sections 0, V, and VI of
this Final Judgment, and shall have
such other powers as this Court deems
appropriate. Subject to Section 0.0 of
this Final Judgment, the Divestiture
Trustee may hire at the cost and
expense of Defendants any professionals
and agents, who shall be solely
accountable to the Divestiture Trustee,
that are reasonably necessary in the
Divestiture Trustee’s judgment to assist
in the divestiture.
C. Defendants may not object to a sale
by the Divestiture Trustee authorized by
this Order on any ground other than the
Divestiture Trustee’s malfeasance.
Defendants must convey any such
objections in writing to the United
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States and the Divestiture Trustee
within ten calendar days after the
Divestiture Trustee has provided the
notice required under Section 0.
D. The Divestiture Trustee shall serve,
without bond or other security, at the
cost and expense of Defendants, on such
terms and conditions as the United
States approves, and must account for
all monies derived from the sale of the
assets sold by the Divestiture Trustee
and all costs and expenses so incurred.
After approval by the Court of the
Divestiture Trustee’s accounting,
including fees for its services and those
of any professionals and agents retained
by the Divestiture Trustee, all remaining
money shall be paid to Defendants and
the trust shall then be terminated. The
compensation of the Divestiture Trustee
and any professionals and agents
retained by the Divestiture Trustee must
be reasonable in light of the value of the
Divestiture Assets and based on a fee
arrangement providing the Divestiture
Trustee with an incentive based on the
price and terms of the divestitures and
the speed with which it is
accomplished, but timeliness is
paramount.
E. Defendants must assist the
Divestiture Trustee in accomplishing
the required divestiture. The Divestiture
Trustee and any professionals and
agents retained by the Divestiture
Trustee shall have full and complete
access to the personnel, books, records,
and facilities relating to the Divestiture
Assets, and Defendants must develop
financial and other information relevant
to such business as the Divestiture
Trustee may reasonably request, subject
to reasonable protection for trade secret
or other confidential research,
development, or commercial
information. Defendants may not
interfere with or impede the Divestiture
Trustee’s accomplishment of the
divestiture.
F. After its appointment, the
Divestiture Trustee must file monthly
reports with the United States and the
Court setting forth the Divestiture
Trustee’s efforts to accomplish the
divestitures ordered under this Final
Judgment. To the extent that such
reports contain information that the
Divestiture Trustee deems confidential,
such reports shall not be filed in the
public docket of the Court. Such reports
must include the name, address, and
telephone number of each person who,
during the preceding month, made an
offer to acquire, expressed an interest in
acquiring, entered into negotiations to
acquire, or was contacted or made an
inquiry about acquiring, any interest in
the Divestiture Assets, and must
describe in detail each contact with any
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C. Within thirty calendar days after
receipt of the notice or within twenty
calendar days after the United States has
been provided the additional
information requested from Defendants,
the proposed Acquirer, any third party,
and the Divestiture Trustee, whichever
is later, the United States must provide
written notice to Defendants and the
Divestiture Trustee, if there is one,
stating whether or not it objects to the
proposed divestiture. If the United
States provides written notice that it
does not object, the divestiture may be
consummated, subject only to
Defendants’ limited right to object to the
sale under Section V.C of this Final
Judgment. Absent written notice that the
United States does not object to the
proposed Acquirer or upon objection by
the United States, a divestiture
proposed under Section 0 or Section V
may not be consummated. Upon
objection by Defendants under Section
V.0, a divestiture proposed under
Section V may not be consummated
unless approved by the Court.
VI. Notice of Proposed Divestiture
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such person. The Divestiture Trustee
must maintain full records of all efforts
made to divest the Divestiture Assets.
G. If the Divestiture Trustee has not
accomplished the divestitures ordered
under this Final Judgment by November
21, 2012, the Divestiture Trustee must
promptly file with the Court a report
setting forth (1) the Divestiture Trustee’s
efforts to accomplish the required
divestiture, (2) the reasons, in the
Divestiture Trustee’s judgment, why the
required divestitures have not been
accomplished, and (3) the Divestiture
Trustee’s recommendations. To the
extent that the report contains
information that the Divestiture Trustee
deems confidential, the report shall not
be filed in the public docket of the
Court. The Divestiture Trustee must at
the same time furnish such report to the
United States, which shall have the
right to make additional
recommendations consistent with the
purpose of the trust. The Court
thereafter shall enter such orders as it
deems appropriate to carry out the
purpose of the Final Judgment, which
may, if necessary, include extending the
trust and the term of the Divestiture
Trustee’s appointment by a period
requested by the United States.
VIII. Preservation of Assets
Until the divestitures required by this
Final Judgment has been accomplished,
Defendants must take all steps necessary
to comply with the Asset Preservation
Stipulation and Order entered by this
Court. Defendants may not take any
action that would jeopardize any
divestiture ordered by this Court.
A. Within two business days
following execution of a definitive
divestiture agreement, Defendants or the
Divestiture Trustee, whichever is then
responsible for effecting the divestitures
required herein, must notify the United
States and any Monitoring Trustee of
any proposed divestiture required by
Section 0 or V of this Final Judgment.
If the Divestiture Trustee is responsible,
it must similarly notify Defendants. The
notice must set forth the details of the
proposed divestiture and list the name,
address, and telephone number of each
person not previously identified who
offered or expressed an interest in or
desire to acquire any ownership interest
in the Divestiture Assets, together with
full details of the same.
B. Within fifteen calendar days of
receipt by the United States of such
notice, the United States may request
from Defendants, the proposed
Acquirer, any other third party, or the
Divestiture Trustee, if applicable,
additional information concerning the
proposed divestiture, the proposed
Acquirer, and any other potential
Acquirer. Defendants and the
Divestiture Trustee must furnish any
additional information requested within
fifteen calendar days of the receipt of
the request, unless the parties otherwise
agree.
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VII. Financing
Defendants may not finance all or any
part of any purchase made pursuant to
Section 0 or V of this Final Judgment.
IX. Appointment of Monitoring Trustee
A. Upon the filing of this Final
Judgment, the United States may, in its
sole discretion, appoint a Monitoring
Trustee, subject to approval by the
Court.
B. The Monitoring Trustee shall have
the power and authority to monitor
Defendants’ compliance with the terms
of this Final Judgment and the Asset
Preservation Stipulation and Order
entered by this Court and shall have
such powers as this Court deems
appropriate. Subject to Section IX.D of
this Final Judgment, the Monitoring
Trustee may hire at the cost and
expense of Humana any professionals
and agents reasonably necessary in the
Monitoring Trustee’s judgment. These
persons shall be solely accountable to
the Monitoring Trustee.
C. Defendants may not object to
actions taken by the Monitoring Trustee
in fulfillment of the Monitoring
Trustee’s responsibilities under any
Order of this Court on any ground other
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20433
than the Monitoring Trustee’s
malfeasance. Defendants must convey
any such objections in writing to the
United States and the Monitoring
Trustee within ten calendar days after
the action taken by the Monitoring
Trustee giving rise to Defendants’
objection.
D. The Monitoring Trustee and any
persons retained by the Monitoring
Trustee pursuant to Section IX.B shall
serve at the cost and expense of
Defendants, on such terms and
conditions as the United States
approves. The compensation of the
Monitoring Trustee and any
professionals and agents retained by the
Monitoring Trustee must be on
reasonable and customary terms
commensurate with the individuals’
experience and responsibilities.
E. The Monitoring Trustee shall have
no responsibility or obligation for the
operation of Defendants’ businesses.
F. Defendants must assist the
Monitoring Trustee in monitoring
Defendants’ compliance with their
individual obligations under this Final
Judgment and under the Asset
Preservation Stipulation and Order. The
Monitoring Trustee and any
professionals and agents retained by the
Monitoring Trustee shall have full and
complete access to the personnel, books,
records, and facilities relating to the
Divestiture Assets, subject to reasonable
protection for trade secret or other
confidential research, development, or
commercial information or any
applicable privileges. Defendants may
not interfere with or impede the
Monitoring Trustee’s accomplishment of
its responsibilities.
G. After its appointment, the
Monitoring Trustee must file monthly
reports with the United States and the
Court setting forth the Defendants’
efforts to comply with their individual
obligations under this Final Judgment
and under the Asset Preservation
Stipulation and Order. To the extent
such reports contain information that
the Monitoring Trustee deems
confidential, such reports shall not be
filed in the public docket of the Court.
H. The Monitoring Trustee shall serve
until the divestiture of all the
Divestiture Assets is finalized pursuant
to either Section 0 or Section V of this
Final Judgment and any agreement(s) for
transitional support services described
in Section 0 herein have expired. If the
United States determines that the
Monitoring Trustee has ceased to act or
failed to act diligently, the United States
may appoint a substitute Monitoring
Trustee in the same manner as provided
in this Section. The Monitoring Trustee
appointed pursuant to this Final
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Judgment may be the same person or
entity appointed as a Divestiture Trustee
pursuant to Section 0 of this Final
Judgment.
X. Affidavits and Records
A. Within twenty calendar days of the
filing of the Complaint in this matter,
and every thirty calendar days thereafter
until the divestitures have been
completed under Section 0 or V,
Defendants must deliver to the United
States and any Monitoring Trustee an
affidavit as to the fact and manner of its
compliance with Section IV or V of this
Final Judgment. Each such affidavit
must include the name, address, and
telephone number of each person who,
during the preceding thirty calendar
days, made an offer to acquire,
expressed an interest in acquiring,
entered into negotiations to acquire, or
was contacted or made an inquiry about
acquiring, any interest in the Divestiture
Assets, and must describe in detail each
contact with any such person during
that period. Each such affidavit must
also include a description of the efforts
Defendants have taken to solicit buyers
for the Divestiture Assets, and to
provide required information to
prospective Acquirers, including the
limitations, if any, on such information.
Provided that the information set forth
in the affidavit is true and complete, any
objection by the United States to
information provided by Defendants,
including limitation on information,
must be made within fourteen calendar
days of receipt of such affidavit.
B. Within twenty calendar days of the
filing of the Complaint in this matter,
Defendants must deliver to the United
States and any Monitoring Trustee an
affidavit that describes in reasonable
detail all actions that Defendants have
taken and all steps that Defendants have
implemented on an ongoing basis to
comply with Section 0 of this Final
Judgment. Defendants must deliver to
the United States and any Monitoring
Trustee an affidavit describing any
changes to the efforts and actions
outlined in Defendants’ earlier affidavits
filed pursuant to this section within
fifteen calendar days after the change is
implemented.
C. Defendants must keep all records of
all efforts made to preserve and divest
the Divestiture Assets until one year
after such divestitures have been
completed.
XI. Compliance Inspection
A. For the purposes of determining or
securing compliance with this Final
Judgment, or of determining whether
the Final Judgment should be modified
or vacated, and subject to any legally
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recognized privilege, from time to time
authorized representatives of the United
States Department of Justice, including
persons retained by the United States,
shall, upon written request of an
authorized representative of the
Assistant Attorney General in charge of
the Antitrust Division, and on
reasonable notice to Defendants, be
permitted:
(1) Access during Defendants’ office
hours to inspect and copy, or at the
option of the United States, to require
that Defendants provide hard copy and
electronic copies of, all books, ledgers,
accounts, records, data, and documents
in the possession, custody, or control of
Defendants, relating to any matters
contained in this Final Judgment; and
(2) To interview, either informally or
on the record, Defendants’ officers,
employees, or agents, who may have
their individual counsel present,
regarding these matters. The interviews
shall be subject to the reasonable
convenience of the interviewee and
without restraint or interference by
Defendants.
B. Upon the written request of an
authorized representative of the
Assistant Attorney General in charge of
the Antitrust Division, Defendants must
submit written reports, or responses to
written interrogatories, under oath if
requested, relating to any of the matters
contained in this Final Judgment.
C. The United States shall not divulge
any information or documents obtained
by the means provided in this section to
any person other than an authorized
representative of the executive branch of
the United States, which includes CMS,
except in the course of legal proceedings
to which the United States is a party
(including grand jury proceedings), or
for the purpose of securing compliance
with this Final Judgment, or as
otherwise required by law.
D. If at the time information or
documents are furnished by Defendants
to the United States, Defendants
represent and identify in writing the
material in any such information or
documents to which a claim of
protection may be asserted under Rule
26(c)(1)(G) of the Federal Rules of Civil
Procedure, and Defendants mark each
pertinent page of such material,
‘‘Subject to claim of protection under
Rule 26(c)(1)(G) of the Federal Rules of
Civil Procedure,’’ then the United States
must give Defendants ten calendar days
notice prior to divulging such material
in any legal proceeding (other than
grand jury proceedings).
XII. No Reacquisition
Defendants may not reacquire any
part of the Divestiture Assets during the
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term of this Final Judgment provided,
however, that this Final Judgment does
not prohibit Defendants from offering
Medicare Advantage Plans in the
ordinary course of business otherwise in
conformity with this Final Judgment.
XIII. Retention of Jurisdiction
This Court retains jurisdiction to
enable any party to this Final Judgment
to apply to this Court at any time for
further orders and directions as may be
necessary or appropriate to carry out or
construe this Final Judgment, to modify
any of its provisions, to enforce
compliance, and to punish violations of
its provisions.
XIV. Expiration of Final Judgment
Unless this Court grants an extension,
this Final Judgment shall expire ten
years from the date of its entry.
XV. Public Interest Determination
The parties have complied with the
requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C.
16, including making copies available to
the public of this Final Judgment, the
Competitive Impact Statement, and any
comments thereon and the United
States’ responses to comments. Based
upon the record before the Court, which
includes the Competitive Impact
Statement and any comments and
response to comments filed with the
Court, entry of this Final Judgment is in
the public interest.
Court approval subject to procedures
of Antitrust Procedures and Penalties
Act, 15 U.S.C. § 16.
llllllllllllllllll
l
Date
United States District Judge
[FR Doc. 2012–8070 Filed 4–3–12; 8:45 am]
BILLING CODE P
DEPARTMENT OF LABOR
Office of the Secretary
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request; Standard
on Asbestos in Construction
ACTION:
Notice.
On March 30, 2012, the
Department of Labor (DOL) will submit
the Occupational Safety and Health
Administration (OSHA) sponsored
information collection request (ICR)
titled, ‘‘Standard on Asbestos in
Construction’’ to the Office of
Management and Budget (OMB) for
review and approval for continued use,
in accordance with the Paperwork
SUMMARY:
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Agencies
[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Notices]
[Pages 20419-20434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8070]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Humana Inc. and Arcadian Management Services,
Inc.; Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation, and Competitive Impact Statement have been filed with the
United States District Court for the District of Columbia, in United
States v. Humana Inc. and Arcadian Management Services, Inc., Civil
Action No. 12-cv-00464. On March 27, 2012, the United States filed a
Complaint alleging that the proposed acquisition by Humana Inc. of
Arcadian Management Services, Inc. would violate Section 7 of the
Clayton Act, 15 U.S.C. 18. The proposed Final Judgment filed at the
same time as the Complaint requires the parties to divest health plans
in 51 counties and parishes in Arizona, Arkansas, Louisiana, Oklahoma,
and Texas.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection at the Department of
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth
Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202 514-
2481), and on the Department of Justice's Web site at https://www.usdoj.gov/atr, and at the Office of the Clerk of the United States
District Court for the District of Columbia. Copies of these materials
may be obtained from the Antitrust Division upon request and payment of
the copying fee set by Department of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments and responses thereto will be published in the
Federal Register and filed with the Court. Comments should be directed
to Joshua H. Soven, Chief, Litigation I Section, Antitrust Division,
U.S. Department of Justice, 450 Fifth Street NW., Suite 4100,
Washington, DC 20530 (telephone: 202-307-0827).
Patricia A. Brink,
Director of Civil Enforcement.
United States District Court for the District of Columbia
United States of America, United States Department of Justice,
Antitrust Division, Litigation I Section, 450 Fifth Street, NW.,
Suite 4100, Washington, DC 20530, Plaintiff, v. Humana Inc., 500
West Main Street, Louisville, KY 40202, and Arcadian Management
Services, Inc., 500 12th Street, Suite 340, Oakland, CA 94607,
Defendants.
Case: 1:12-cv-00464.
Assigned to: Walton, Reggie B.
Assign. Date: 3/27/2012.
Description: Antitrust.
Complaint
The United States of America (``United States''), acting under the
direction of the Attorney General of the United States, brings this
civil action to enjoin Humana Inc. (``Humana'') from acquiring Arcadian
Management Services, Inc. (``Arcadian''). The United States alleges as
follows:
1. Unless enjoined, Humana's proposed acquisition of Arcadian will
substantially lessen competition in the sale of Medicare Advantage
health insurance plans sold to Medicare-eligible individuals (``the
relevant product market'') in forty-five counties and parishes in
Arizona, Arkansas, Louisiana, Oklahoma, and Texas (``the relevant
geographic markets'').
2. A Medicare Advantage plan is a health insurance product sold by
a
[[Page 20420]]
private company to Medicare-eligible individuals (collectively,
``seniors'') that replaces traditional Medicare. Congress created the
Medicare Advantage program as a private-market alternative to
government-provided traditional Medicare. In establishing the Medicare
Advantage program, Congress intended that vigorous competition among
private Medicare Advantage insurers, such as Humana and Arcadian, would
lead those insurers to offer seniors a wider array of health insurance
choices, and richer and more affordable benefits than traditional
Medicare does, and be more responsive to seniors. On August 24, 2011,
Humana agreed to acquire Arcadian in a transaction valued at
approximately $150 million (the ``transaction'').
3. Humana and Arcadian together account for 40 to 100 percent of
the enrollment in individual Medicare Advantage plans in each of the
relevant geographic markets. In these markets, individual Medicare
Advantage plans account for more than $700 million in annual commerce.
4. The proposed acquisition will significantly lessen competition
among Medicare Advantage plans and eliminate substantial head-to-head
competition between Humana and Arcadian in the provision of such plans
in the relevant geographic markets. The competition between Humana and
Arcadian in the relevant geographic markets has significantly benefited
thousands of seniors. Humana's and Arcadian's plans in the relevant
geographic markets offer seniors significantly greater benefits than
those available under traditional Medicare, likely resulting in
substantial healthcare cost savings for seniors selecting either of
those companies' plans. The proposed acquisition will end that
competition, eliminating the pressure that these close competitors
place on each other to maintain attractive benefits, low premiums, and
high-quality healthcare.
5. Because the proposed acquisition likely would substantially
reduce competition in the sale of individual Medicare Advantage plans
in the relevant geographic markets in violation of Section 7 of the
Clayton Act, 15 U.S.C. 18, the Court should permanently enjoin this
transaction.
I. Jurisdiction, Venue, and Interstate Commerce
6. The United States brings this action pursuant to Section 15 of
the Clayton Act, 15 U.S.C. Sec. 25, to prevent and restrain Defendants
from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
7. Humana and Arcadian are engaged in interstate commerce and in
activities substantially affecting interstate commerce. They sell
insurance that covers enrollees when they travel across state lines;
purchase health-care services from providers in various states; and
receive payments from enrollees in various states. Defendants also
purchase health-care products and services, such as pharmaceuticals, in
interstate commerce.
8. The Court has subject-matter jurisdiction over this action
pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25; and 28 U.S.C.
1331, 1337(a), and 1345.
9. Defendants have consented to personal jurisdiction in this
District. The Court also has personal jurisdiction over Defendants
under Section 12 of the Clayton Act, 15 U.S.C. 22.
10. Defendants have consented to venue in this District. Venue is
also proper in this District under Section 12 of the Clayton Act, 15
U.S.C. 22, and 28 U.S.C. 1391.
II. The Defendants and the Proposed Transaction
11. Humana is a corporation organized and existing under the laws
of Delaware and has its principal place of business in Louisville,
Kentucky. A leading health insurer in the United States, Humana
provides health insurance and other services to more than 17 million
people nationwide. In 2010, Humana reported revenues of approximately
$33.6 billion.
12. In the relevant geographic markets, Humana sells Medicare
Advantage Private Fee-For-Service (``PFFS''), Health Maintenance
Organization (``HMO''), and Preferred Provider Organization (``PPO'')
plans under the Humana Gold Choice, Humana Gold Plus, HumanaChoice, and
Humana Reader's Digest Healthy Living Plan names. Humana is one of the
largest Medicare Advantage providers in the United States, with almost
1.8 million Medicare Advantage members. Approximately 35,000 seniors
are enrolled in individual Humana Medicare Advantage plans in the
relevant geographic markets.
13. Arcadian is a corporation organized and existing under the laws
of Delaware and has its principal place of business in Oakland,
California. Arcadian sells Medicare HMO plans and focuses on secondary,
non-urban, and underserved markets. It has approximately 62,000
Medicare Advantage members in fifteen states. In 2010, Arcadian had
revenues of $622 million.
14. Arcadian sells Medicare Advantage plans through its wholly-
owned subsidiaries, Desert Canyon Community Care in Arizona; Arkansas
Community Care and Texarkana Community Care in Arkansas; Arcadian
Community Care in Louisiana; Arcadian Health Plan in Oklahoma; and
Texas Community Care and Texarkana Community Care in Texas. Over 14,700
people in the relevant geographic markets are enrolled in individual
Arcadian Medicare Advantage plans.
15. Humana and Arcadian each have well-established managed-care
healthcare networks that they use to provide services to enrollees in
the relevant geographic markets. In addition, Humana and Arcadian each
have an established brand and positive reputation in the relevant
geographic markets.
III. The Medicare Advantage Insurance Market
16. The federal government provides and facilitates the provision
of health insurance to millions of Medicare-eligible citizens through
two types of programs: traditional Medicare and Medicare Advantage.
Under traditional Medicare, a beneficiary receives coverage for
inpatient healthcare services in hospitals and other facilities under
Medicare Part A and can elect to receive coverage for physician and
outpatient healthcare services under Part B. For Part A, the government
generally charges no monthly premium if the beneficiary was in the
workforce and paid Medicare taxes. For Part B, the government deducts a
monthly premium ($99.90 for most beneficiaries) from the beneficiary's
Social Security checks. In addition, the beneficiary must pay
deductibles and/or coinsurance for doctor visits and hospital stays. If
a beneficiary wants to limit traditional Medicare's out-of-pocket
costs, the beneficiary can purchase a Medicare Supplement plan for an
additional monthly premium. To receive prescription drug coverage,
seniors enrolled in traditional Medicare can purchase a Medicare
prescription drug plan (Medicare Part D) for an additional monthly
premium.
17. Medicare Advantage plans, unlike traditional Medicare, are
offered by private insurance companies. Medicare Advantage plans
provide all of the medical insurance coverage that seniors receive
under traditional Medicare and also usually limit out-of-pocket costs
and include drug coverage. These plans also generally provide benefits
beyond what traditional Medicare provides, often including coverage for
vision, hearing, dental, and wellness programs.
[[Page 20421]]
However, most Medicare Advantage plans have a more limited healthcare
provider network than traditional Medicare. Limited networks help
Medicare Advantage insurers lower their costs and offer richer benefits
than traditional Medicare.
18. An insurance company that seeks to offer a Medicare Advantage
plan in a county or parish must submit a bid to the Centers for
Medicare and Medicaid Services (``CMS'') for each Medicare Advantage
plan that it intends to offer. The bid must provide the insurer's
anticipated costs per member to cover required Medicare Part A and Part
B benefits. CMS actuaries compare these costs, including an anticipated
profit margin, to a Medicare benchmark that reflects, in part, the
government's likely cost of covering the beneficiaries. Through 2011,
if the insurer's bid for Medicare benefits was lower than the
benchmark, the Medicare program retained 25 percent of the savings and
required that the insurer use the other 75 percent (``the rebate'') to
provide supplemental benefits or lower premiums. Accordingly, a plan
with lower projected costs would offer more benefits to seniors and be
more attractive. As of 2012, the rebate will vary based on performance
as measured through CMS's Medicare star rating system, such that
insurers will receive a greater fraction of the rebate the better their
performance. Therefore, Medicare Advantage plans compete for enrollment
by lowering costs, lowering premiums, increasing benefits, and
improving performance.
19. Medicare Advantage enrollees can be either group or individual
enrollees. Group enrollees are generally retirees who enroll in a
Medicare Advantage plan chosen by their former employer or another
group. Individual enrollees directly choose their Medicare Advantage
plan from among the plans that CMS has approved for the county or
parish in which they live.
IV. Relevant Product Market
20. Most successful Medicare Advantage plans, including those in
the relevant geographic markets, offer substantially richer benefits at
lower costs to enrollees than traditional Medicare does with or without
a Medicare Supplement or Medicare Prescription Drug Plan, including
lower copayments, lower coinsurance, caps on total yearly out-of-pocket
costs, prescription drug coverage, and supplemental benefits that
traditional Medicare does not cover, such as dental and vision
coverage, and health club memberships. Seniors enrolled in Medicare
Advantage plans also often value that they can receive all of these
benefits through a single plan and that Medicare Advantage plans manage
care in ways that traditional Medicare does not.
21. Consequently, a small but significant increase in Medicare
Advantage plan premiums or reduction in benefits is unlikely to cause a
sufficient number of seniors to switch to traditional Medicare such
that the price increase or reduction in benefits would be unprofitable.
Accordingly, the relevant product market is no broader than the sale of
individual Medicare Advantage plans, which is a line of commerce under
Section 7 of the Clayton Act, 15 U.S.C. 18.
V. Relevant Geographic Markets and Market Concentration
22. Seniors may only enroll in Medicare Advantage plans that CMS
has approved for the county or parish in which they live. Consequently,
they could not turn to Medicare Advantage plans offered outside the
county or parish in which they live in response to a small but
significant increase in price in Medicare Advantage plans.
23. The following forty-five counties and parishes are relevant
geographic markets within which to assess the likely effects of the
transaction, and all are ``sections of the country'' within the meaning
of Section 7 of the Clayton Act: Mohave and Yavapai Counties in
Arizona; Columbia, Conway, Crawford, Franklin, Hempstead, Howard,
Lafayette, Little River, Logan, Miller, Nevada, Pope, Scott, Sebastian,
Sevier, and Yell Counties in Arkansas; Allen, Beauregard, Bienville,
Bossier, Caddo, Calcasieu, Claiborne, De Soto, Jefferson Davis, Red
River, and Webster Parishes in Louisiana; Adair, Delaware, Haskell, Le
Flore, McCurtain, Ottawa, and Sequoyah Counties in Oklahoma; and Bowie,
Cass, Deaf Smith, Gregg, Harrison, Henderson, Potter, Randall, and
Titus Counties in Texas.
24. If consummated, the merger would give Humana market shares
ranging from 40 to 100 percent in the forty-five relevant geographic
markets. See Appendix B.
25. According to the Herfindahl[hyphen]Hirschman Index (``HHI''), a
measure of concentration commonly relied on by the courts and antitrust
agencies to measure market concentration (defined and explained in
Appendix A), the transaction would significantly increase the market
concentration for the relevant product in each of the relevant
geographic markets, almost all of which are already highly
concentrated. The increases in concentration would range from 312
points in Pope County, Arkansas, to 4928 points in Sequoyah County,
Oklahoma, with all of the increases substantially higher than the 200
points (see Appendix B) presumed likely to enhance market power in
highly concentrated markets under the antitrust agencies' Horizontal
Merger Guidelines. See U.S. Dep't of Justice & FTC, Horizontal Merger
Guidelines Sec. 5.3 (2010).
26. Defendants' market shares in the relevant geographic markets
have generally increased in recent years, as some competitors have
exited these markets or stopped offering certain competing products.
VI. Anticompetitive Effects
27. The proposed transaction likely would substantially lessen
competition in the sale of individual Medicare Advantage plans in the
relevant geographic markets. The transaction would end the substantial
head-to-head competition between Humana and Arcadian to convince
seniors to enroll in each company's Medicare Advantage plans in the
relevant geographic markets. In each market, Humana and Arcadian
compete against each other by offering plans with frequently low or no
premiums, reducing copayments, eliminating deductibles, lowering annual
out-of-pocket maximum costs, managing care, improving drug coverage,
offering desirable benefits, and making their provider networks more
attractive to potential members.
VII. Absence of Countervailing Factors
28. If Defendants complete the proposed transaction, the loss of
this competition would likely result in higher premiums and reduced
benefits for seniors enrolled in Medicare Advantage plans in the
relevant geographic markets.
29. Competition from existing Medicare Advantage plans and new
entrants is unlikely to prevent anticompetitive effects in each
relevant geographic market. Entrants face substantial cost, reputation,
and distribution disadvantages that will likely make them unable to
prevent Humana from profitably raising premiums or reducing benefits in
the relevant geographic markets.
VIII. Violations Alleged
30. The proposed transaction likely would substantially lessen
competition in the sale of Medicare Advantage health insurance in each
of the relevant geographic markets, in violation of Section 7 of the
Clayton Act, 15 U.S.C. 18.
[[Page 20422]]
31. The proposed transaction would likely have the following
effects in each relevant geographic market:
a. Substantially lessening competition in the sale of Medicare
Advantage insurance;
b. eliminating competition between Humana and Arcadian in the sale
of Medicare Advantage insurance; and
c. increasing premiums or reducing benefits for Medicare Advantage
insurance to less competitive levels than would prevail absent the
acquisition.
IX. Prayer for Relief
32. The United States requests that this Court:
a. Adjudge the proposed acquisition to violate Section 7 of the
Clayton Act, 15 U.S.C. 18;
b. preliminarily and permanently enjoin the defendants from
carrying out the proposed transaction or from entering into or carrying
out any other agreement, understanding, or plan, the effect of which
would be to bring the Medicare Advantage businesses of Humana and
Arcadian under common ownership or control;
c. award the United States its costs in this action; and
d. award the United States such other relief as the Court may deem
just and proper.
Dated this 27th day of March 2012.
Respectfully submitted,
FOR PLAINTIFF UNITED STATES:
/s/Sharis A. Pozen
Sharis A. Pozen (DC Bar 446732),
Acting Assistant Attorney General for Antitrust
/s/Leslie C. Overton
Leslie C. Overton (DC Bar 454493)
Deputy Assistant Attorney General
/s/Patricia A. Brink
Patricia A. Brink
Director of Civil Enforcement
/s/Joshua H. Soven
Joshua H. Soven (DC Bar 436633)
Chief, Litigation I Section
/s/Peter J. Mucchetti
Peter J. Mucchetti (DC Bar 463202)
Assistant Chief, Litigation I Section
/s/Adam Gitlin
Adam Gitlin *
Attorney, Litigation I Section, Antitrust Division, U.S. Department
of Justice, 450 Fifth Street NW., Suite 4100, Washington, DC 20530,
Telephone: (202) 307-6456, Facsimile: (202) 305-1190, Email:
adam.gitlin@usdoj.gov.
Barry Creech (DC Bar 421070),
Barry Joyce,
Edward D. Eliasberg, Jr. (DC Bar 199182),
Katrina Rouse,
Attorneys for the United States.
* Attorney of Record.
Herfindahl[hyphen]Hirschman Index
The term ``HHI'' means the Herfindahl[hyphen]Hirschman Index, a
commonly accepted measure of market concentration. The HHI is
calculated by squaring the market share of each firm competing in the
market and then summing the resulting numbers. For example, for a
market consisting of four firms with shares of 30, 30, 20, and 20
percent, the HHI is 2,600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). The
HHI takes into account the relative size distribution of the firms in a
market. It approaches zero when a market is occupied by a large number
of firms of relatively equal size and reaches its maximum of 10,000
points when a market is controlled by a single firm. The HHI increases
both as the number of firms in the market decreases and as the
disparity in size between those firms increases.
The agencies generally consider markets in which the HHI is between
1,500 and 2,500 points to be moderately concentrated, and consider
markets in which the HHI is in excess of 2,500 points to be highly
concentrated. See U.S. Department of Justice & FTC, Horizontal Merger
Guidelines Sec. 5.3 (2010). Transactions that increase the HHI by more
than 200 points in highly concentrated markets are presumed likely to
enhance market power under the Horizontal Merger Guidelines issued by
the Department of Justice and the Federal Trade Commission. See id.
Relevant Geographic Markets
[As of March 2012]
----------------------------------------------------------------------------------------------------------------
Post-merger
County share (percent) HHI Post-merger Increase in HHI
----------------------------------------------------------------------------------------------------------------
Mohave, AZ................................................ 82.3 6980 3386
Yavapai, AZ............................................... 40.8 5091 407
Columbia, AR.............................................. 56.0 4732 1421
Conway, AR................................................ 55.0 3906 376
Crawford, AR.............................................. 63.8 4514 1563
Franklin, AR.............................................. 47.8 3539 549
Hempstead, AR............................................. 55.7 5064 1218
Howard, AR................................................ 58.1 4576 1681
Lafayette, AR............................................. 68.3 5668 1993
Little River, AR.......................................... 82.1 7066 3292
Logan, AR................................................. 59.7 4263 1080
Miller, AR................................................ 73.8 5836 1931
Nevada, AR................................................ 58.9 5158 1139
Pope, AR.................................................. 44.1 4055 312
Scott, AR................................................. 52.1 3545 984
Sebastian, AR............................................. 57.9 3882 1133
Sevier, AR................................................ 84.1 7326 3474
Yell, AR.................................................. 40.3 3075 610
Allen, LA................................................. 78.5 6622 1310
Beauregard, LA............................................ 100.0 10000 4789
Bienville, LA............................................. 49.3 3721 1189
Bossier, LA............................................... 93.3 8748 848
Caddo, LA................................................. 92.7 8642 1626
Calcasieu, LA............................................. 100.0 10000 3217
Claiborne, LA............................................. 42.0 3523 535
De Soto, LA............................................... 100.0 10000 3648
Jefferson Davis, LA....................................... 88.7 8000 1746
Red River, LA............................................. 45.0 3803 926
Webster, LA............................................... 84.1 7323 1385
Adair, OK................................................. 60.1 5204 1799
[[Page 20423]]
Delaware, OK.............................................. 100.0 10000 3887
Haskell, OK............................................... 58.6 4666 1688
Le Flore, OK.............................................. 100.0 10000 4632
McCurtain, OK............................................. 80.6 6691 2325
Ottawa, OK................................................ 100.0 10000 1512
Sequoyah, OK.............................................. 100.0 10000 4928
Bowie, TX................................................. 82.5 7019 3305
Cass, TX.................................................. 81.3 6962 3285
Deaf Smith, TX............................................ 66.7 5556 1636
Gregg, TX................................................. 73.7 5783 2668
Harrison, TX.............................................. 86.4 7652 3590
Henderson, TX............................................. 68.0 5197 2224
Potter, TX................................................ 72.6 5776 2197
Randall, TX............................................... 75.0 5928 1421
Titus, TX................................................. 75.8 6331 2198
----------------------------------------------------------------------------------------------------------------
United States District Court for the District of Columbia
United States of America, Plaintiff, v. Humana Inc. and Arcadian
Management Services, Inc., Defendants.
Case: 1:12-cv-00464.
Assigned To: Walton, Reggie B.
Assign. Date: 3/27/2012.
Description: Antitrust.
Competitive Impact Statement
Plaintiff United States of America (``United States''), pursuant to
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or
``Tunney Act''), 15 U.S.C. 16(b)-(h), files this Competitive Impact
Statement relating to the proposed Final Judgment submitted for entry
in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
The United States filed a civil antitrust Complaint on March 27,
2012, seeking to enjoin Humana Inc. (``Humana'') from acquiring
Arcadian Management Services, Inc. (``Arcadian''), alleging that the
acquisition likely would substantially lessen competition in the sale
of individual Medicare Advantage plans in forty-five counties and
parishes in Arizona, Arkansas, Louisiana, Oklahoma, and Texas (``the
relevant geographic markets''), in violation of Section 7 of the
Clayton Act, 15 U.S.C. 18. The loss of competition from the acquisition
likely would result in higher premiums and reduced benefits and
services in these markets.
At the same time that the United States filed the Complaint, the
United States also filed an Asset Preservation Stipulation and Order
(``Stipulation'') and proposed Final Judgment, which will eliminate the
anticompetitive effects that likely would result from the transaction
by requiring the Defendants to divest Medicare Advantage business in
each relevant geographic market. Under the Stipulation, the Defendants
must ensure that the assets to be divested continue to be operated as
ongoing, economically viable, and competitive Medicare Advantage
offerings until accomplishment of the divestitures that the proposed
Final Judgment requires.
The United States and the Defendants have stipulated that the Court
may enter the proposed Final Judgment after compliance with the APPA.
Entry of the proposed Final Judgment would terminate this action,
except that the Court would retain jurisdiction to construe, modify, or
enforce the provisions of the Final Judgment and to punish violations
thereof.
II. Events Giving Rise to the Alleged Violation
A. The Defendants and the Proposed Transaction
Defendant Humana is a leading health insurer in the United States,
providing health insurance and other services to more than 17 million
people nationwide. In 2010 Humana reported revenues of approximately
$33.6 billion.
Humana is one of the largest Medicare Advantage providers in the
United States, with almost 1.8 million Medicare Advantage members.
Humana provides health insurance to approximately 35,000 Medicare
Advantage enrollees in the relevant geographic markets alleged in the
Complaint. In the relevant geographic markets, Humana sells Medicare
Advantage plans under the Humana Gold Choice, Humana Gold Plus,
HumanaChoice, and Humana Reader's Digest Healthy Living Plan names.
Arcadian sells Medicare Advantage HMO plans and focuses on
secondary, non-urban, and underserved markets. It has approximately
62,000 Medicare Advantage members in fifteen states. In 2010 it had
revenues of $622 million.
Arcadian provides health insurance to over 14,700 Medicare
Advantage enrollees in the relevant geographic markets. Humana and
Arcadian each have well-established managed-care networks that they use
to provide services to enrollees in these markets. In addition, each
has an established brand and positive reputation in the relevant
geographic markets.
On August 24, 2011, Humana and Arcadian entered into a merger
agreement whereby Humana agreed to acquire all of the outstanding
shares of Arcadian. Humana and Arcadian valued the transaction at
approximately $150 million.
B. Medicare Advantage Insurance
The federal government provides and facilitates the provision of
health insurance to millions of Medicare-eligible citizens through two
types of programs: traditional Medicare and Medicare Advantage. Under
traditional Medicare, a beneficiary receives coverage for inpatient
healthcare services in hospitals and other facilities under Medicare
Part A and can elect to receive coverage for physician and outpatient
healthcare services under Part B. For Part A, the government generally
charges no monthly premium if the beneficiary was in the workforce and
paid Medicare taxes. For Part B, the government deducts a monthly
premium ($99.90 for most beneficiaries) from the beneficiary's Social
Security checks. In addition, for doctor visits and hospital stays, the
beneficiary must pay deductibles, coinsurance, or both. If a
[[Page 20424]]
beneficiary wants to limit these potentially high out-of-pocket costs,
the beneficiary can purchase a separate Medicare Supplement plan for an
additional monthly premium. To receive prescription drug coverage,
seniors enrolled in traditional Medicare can purchase a Medicare
prescription drug plan (Medicare Part D) for an additional monthly
premium.
Medicare Advantage plans, unlike traditional Medicare, are offered
by private insurance companies. Medicare Advantage plans provide all of
the medical insurance coverage that seniors receive under traditional
Medicare and also usually limit out-of-pocket costs and include drug
coverage. These plans also generally provide benefits beyond what
traditional Medicare provides, often including coverage for vision,
hearing, dental, and wellness programs. However, most Medicare
Advantage plans have a more limited healthcare provider network than
traditional Medicare, and limited networks help Medicare Advantage
insurers lower their costs and offer richer benefits than traditional
Medicare.
An insurance company that seeks to offer a Medicare Advantage plan
in a county must submit a bid to the Centers for Medicare and Medicaid
Services (``CMS'') for each Medicare Advantage plan that it intends to
offer. The bid must provide the insurer's anticipated costs to cover
the required Medicare Part A and Part B benefits for a member. CMS
actuaries compare these costs, including an anticipated profit margin,
to a Medicare benchmark that reflects, in part, the government's likely
cost of covering the beneficiaries. Through 2011, if the insurer's bid
for Medicare benefits was lower than the benchmark, the Medicare
program retained 25 percent of the savings and the insurer was required
to use the other 75 percent (``the rebate'') to provide supplemental
benefits or lower premiums. Accordingly, a plan with lower projected
costs would offer more benefits to seniors and be more attractive. As
of 2012, the rebate will vary based on performance as measured through
CMS's Medicare star rating system, such that insurers will receive a
greater fraction of the rebate the better their performance. Therefore,
Medicare Advantage plans compete for enrollment by lowering costs,
lowering premiums, increasing benefits, and improving performance.
Medicare Advantage enrollees can be either group or individual
enrollees. Group enrollees are generally retirees who enroll in a
Medicare Advantage plan chosen by their former employer or another
group. Individual enrollees directly choose their Medicare Advantage
plan from among the plans that CMS has approved for the county or
parish in which they live.
C. Relevant Markets
1. The Relevant Product Market Is No Broader Than the Sale of
Individual Medicare Advantage Health Insurance
The Complaint alleges that the relevant product market is no
broader than the sale of Medicare Advantage health insurance to
individuals. Most successful Medicare Advantage plans, including those
in the relevant geographic markets, offer substantially richer benefits
at lower costs to enrollees than traditional Medicare does with or
without a Medicare Supplement or Medicare prescription drug plan,
including lower copayments, lower coinsurance, caps on total yearly
out-of-pocket costs, prescription drug coverage, and supplemental
benefits that traditional Medicare does not cover, such as dental and
vision coverage, and health club memberships. Seniors enrolled in
Medicare Advantage plans also often value that they can receive all of
these benefits through a single plan and that Medicare Advantage plans
manage care in ways that traditional Medicare does not.
Consequently, a small but significant increase in Medicare
Advantage plan premiums or reduction in benefits is unlikely to cause a
sufficient number of seniors in the relevant geographic markets to
switch to traditional Medicare such that the price increase or
reduction in benefits would be unprofitable. Accordingly, the relevant
product market is no broader than the sale of individual Medicare
Advantage plans and is a line of commerce under Section 7 of the
Clayton Act, 15 U.S.C. 18.
2. The Relevant Geographic Markets Are County or Parish Markets
Seniors may enroll only in Medicare Advantage plans that CMS
approves for the county or parish in which they live. Consequently,
they could not turn to Medicare Advantage plans offered outside the
county or parish in which they live in response to a small but
significant increase in premiums or a reduction in benefits.
Accordingly, each of following forty-five counties and parishes is a
relevant geographic market and a section of the country within the
meaning of Section 7 of the Clayton Act: Mohave and Yavapai Counties in
Arizona; Columbia, Conway, Crawford, Franklin, Hempstead, Howard,
Lafayette, Little River, Logan, Miller, Nevada, Pope, Scott, Sebastian,
Sevier, and Yell Counties in Arkansas; Allen, Beauregard, Bienville,
Bossier, Caddo, Calcasieu, Claiborne, De Soto, Jefferson Davis, Red
River, and Webster Parishes in Louisiana; Adair, Delaware, Haskell, Le
Flore, McCurtain, Ottawa, and Sequoyah Counties in Oklahoma; and Bowie,
Cass, Deaf Smith, Gregg, Harrison, Henderson, Potter, Randall, and
Titus Counties in Texas.
3. The Defendants' Shares in Medicare Advantage Are High in the
Relevant Geographic Markets
The market for Medicare Advantage plans is already highly
concentrated in almost all of the relevant geographic markets and would
become significantly more concentrated as a result of the proposed
acquisition. If consummated, the merger would give Humana market shares
ranging from 40 to 100 percent in the relevant geographic markets,
resulting in highly concentrated markets, as shown below.\1\
Collectively, the individual Medicare Advantage plans in these areas
account for over $700 million in annual commerce.
---------------------------------------------------------------------------
\1\ The term ``HHI'' means the Herfindahl[hyphen]Hirschman
Index, a commonly accepted measure of market concentration. The HHI
is calculated by squaring the market share of each firm competing in
the market and then summing the resulting numbers. The agencies
generally consider markets in which the HHI is in excess of 2,500
points to be highly concentrated. See U.S. Department of Justice &
FTC, Horizontal Merger Guidelines Sec. 5.3 (2010). Transactions
that increase the HHI by more than 200 points in highly concentrated
markets are presumed likely to enhance market power under the
Horizontal Merger Guidelines issued by the Department of Justice and
the Federal Trade Commission. See id.
[[Page 20425]]
Relevant Geographic Markets
[As of March 2012]
----------------------------------------------------------------------------------------------------------------
Post-merger
County share (percent) HHI Post-merger Increase in HHI
----------------------------------------------------------------------------------------------------------------
Mohave, AZ................................................ 82.3 6980 3386
Yavapai, AZ............................................... 40.8 5091 407
Columbia, AR.............................................. 56.0 4732 1421
Conway, AR................................................ 55.0 3906 376
Crawford, AR.............................................. 63.8 4514 1563
Franklin, AR.............................................. 47.8 3539 549
Hempstead, AR............................................. 55.7 5064 1218
Howard, AR................................................ 58.1 4576 1681
Lafayette, AR............................................. 68.3 5668 1993
Little River, AR.......................................... 82.1 7066 3292
Logan, AR................................................. 59.7 4263 1080
Miller, AR................................................ 73.8 5836 1931
Nevada, AR................................................ 58.9 5158 1139
Pope, AR.................................................. 44.1 4055 312
Scott, AR................................................. 52.1 3545 984
Sebastian, AR............................................. 57.9 3882 1133
Sevier, AR................................................ 84.1 7326 3474
Yell, AR.................................................. 40.3 3075 610
Allen, LA................................................. 78.5 6622 1310
Beauregard, LA............................................ 100.0 10000 4789
Bienville, LA............................................. 49.3 3721 1189
Bossier, LA............................................... 93.3 8748 848
Caddo, LA................................................. 92.7 8642 1626
Calcasieu, LA............................................. 100.0 10000 3217
Claiborne, LA............................................. 42.0 3523 535
De Soto, LA............................................... 100.0 10000 3648
Jefferson Davis, LA....................................... 88.7 8000 1746
Red River, LA............................................. 45.0 3803 926
Webster, LA............................................... 84.1 7323 1385
Adair, OK................................................. 60.1 5204 1799
Delaware, OK.............................................. 100.0 10000 3887
Haskell, OK............................................... 58.6 4666 1688
Le Flore, OK.............................................. 100.0 10000 4632
McCurtain, OK............................................. 80.6 6691 2325
Ottawa, OK................................................ 100.0 10000 1512
Sequoyah, OK.............................................. 100.0 10000 4928
Bowie, TX................................................. 82.5 7019 3305
Cass, TX.................................................. 81.3 6962 3285
Deaf Smith, TX............................................ 66.7 5556 1636
Gregg, TX................................................. 73.7 5783 2668
Harrison, TX.............................................. 86.4 7652 3590
Henderson, TX............................................. 68.0 5197 2224
Potter, TX................................................ 72.6 5776 2197
Randall, TX............................................... 75.0 5928 1421
Titus, TX................................................. 75.8 6331 2198
----------------------------------------------------------------------------------------------------------------
D. The Acquisition Likely Would Substantially Lessen Competition in the
Sale of Individual Medicare Advantage Plans in Each Relevant Geographic
Market
The proposed transaction likely would substantially lessen
competition in the sale of individual Medicare Advantage plans and end
the substantial head-to-head competition between Humana and Arcadian to
convince seniors to enroll in each company's Medicare Advantage plans
in the relevant geographic markets. That competition has benefited
thousands of seniors.
In each market, Humana and Arcadian compete against each other by
offering plans with frequently low or no premiums, reducing copayments,
eliminating deductibles, lowering annual out-of-pocket maximum costs,
managing care, improving drug coverage, offering desirable benefits,
and making their provider networks more attractive to potential
members. If Defendants complete the proposed transaction, the loss of
this competition likely would result in higher premiums and reduced
benefits for seniors enrolled in Medicare Advantage plans in the
relevant geographic markets.
Competition from existing Medicare Advantage plans and new entrants
is unlikely to prevent anticompetitive effects in each relevant
geographic market. Entrants face substantial cost, reputation, and
distribution disadvantages that will likely make them unable to prevent
Humana from profitably raising premiums or reducing benefits in the
relevant geographic markets.
III. Explanation of the Proposed Final Judgment
A. The Divestiture Assets
The proposed Final Judgment is designed to eliminate the
anticompetitive effects identified in the Complaint by requiring the
Defendants to divest Arcadian's individual Medicare Advantage business
in 34 of the 45 relevant geographic markets, and Humana's individual
Medicare
[[Page 20426]]
Advantage business in 11 of them (collectively ``the Divestiture
Assets'') to one or more acquirers approved by, and on terms acceptable
to, the United States. Specifically, the divestitures will eliminate
the anticompetitive effects alleged in the Complaint by requiring the
Defendants to divest one or more Medicare Advantage plans in each
relevant geographic market to an acquirer that will compete vigorously
with the merged Humana-Arcadian. The divestitures are designed to allow
the acquirer, or acquirers, of the assets to offer uninterrupted care
to members of Arcadian's and Humana's divested Medicare Advantage
plans.
The Divestiture Assets include all of Arcadian's and Humana's
rights and obligations under the relevant Arcadian or Humana contracts
with CMS. The lines of business to be divested cover approximately
12,700 individual Medicare Advantage beneficiaries. In addition to the
plans in the forty-five relevant geographic markets, the Divestiture
Assets include Arcadian plans in five counties and one parish where
Arcadian has either one percent or no enrollment and where the
Complaint does not allege likely anticompetitive effects: Johnson
County in Arkansas; Cameron Parish in Louisiana; Pushmataha County in
Oklahoma; and Armstrong, Carson, and Oldham Counties in Texas. These
plans are in areas contiguous to and under the same CMS contract and
plan ID as plans in the relevant geographic markets. The Divestiture
Assets include these additional plans because doing so makes them more
administrable and will facilitate the divestiture of the plans in the
relevant geographic markets.
The Divestiture Assets exclude enrollment in Medicare Advantage
Special Needs Plans. Enrollment in Special Needs Plans is limited to
seniors who are institutionalized, dually eligible for Medicare and
Medicaid benefits, or afflicted by severe or disabling chronic
conditions. The divestiture of these plans is unnecessary to eliminate
the transaction's likely anticompetitive effects because the
Defendants' enrollment in Special Needs Plans accounts for only 1.4% of
their combined individual Medicare Advantage membership in the markets
where divestitures are required.
The Defendants must satisfy the United States that a viable
competitor will replace Arcadian's competitive presence in the sale of
individual Medicare Advantage plans in each of the forty-five relevant
geographic markets identified in the Complaint. The divestitures must
be (1) made to an acquirer that has the intent and capability--
including the necessary managerial, operational, technical, and
financial capability--to compete effectively in the sale of Medicare
Advantage products in the market, or markets, in question, and (2)
accomplished so as to satisfy the United States that none of the terms
of any agreement between Humana and any acquirer gives Humana the
ability to interfere with the acquirer's ability to compete
effectively. The proposed Final Judgment also provides that the
divestiture of the Divestiture Assets may be made to one or more
acquirers, provided that in each instance the United States is
satisfied that the Divestiture Assets will remain viable and the
divestitures will remedy the anticompetitive harm alleged in the
Complaint.
B. Selected Provisions of the Proposed Final Judgment
In addition to the requirements discussed above, the following
specific provisions of the proposed Final Judgment will enable the
acquirer to compete promptly and effectively in the relevant geographic
markets for individual Medicare Advantage plans.
1. Provider-Network Contracts
Sections IV.G through IV.K ensure that the acquirer of the assets
divested in each relevant geographic market (and the five additional
counties and one additional parish discussed above) will have a
healthcare provider network sufficient to compete vigorously and
minimize any network disruption from the divestiture. To compete
effectively in the sale of Medicare Advantage plans, an insurer needs a
network of healthcare providers contracted at competitive rates because
hospital and physician expenses constitute the large majority of an
insurer's costs. By requiring Humana to assist the acquirer in
establishing a cost[hyphen]competitive provider network, Sections IV.G
through IV.K will enable the acquirer to compete as effectively as
Humana and Arcadia before the proposed transaction.
In particular, Section IV.G requires, at the acquirer's option,
that the Defendants assign the acquirer all Arcadian contracts with
healthcare providers in all of the relevant geographic markets where
those contracts are freely assignable, except Columbia, Hempstead,
Howard, Lafayette, Little River, Miller, Nevada, and Sevier Counties in
Arkansas, and Bowie, Cass, and Titus Counties in Texas (collectively,
``the Texarkana Area,'' discussed further below). Where those contracts
are not freely assignable, the Defendants must use their best efforts
to obtain any necessary provider consents to assignment of the Arcadian
contracts and assign those contracts to the Acquirer after obtaining
the necessary consents. To further ensure that the Acquirer has an
adequate network, Section IV.H imposes the same obligation with respect
to providers that provide health-care services in a county or parish
contiguous to a divestiture county or parish, but that receive the bulk
of their Arcadian contract payments from Arcadian members in the
divestiture area, also at the acquirer's option.
In addition, to ensure that the acquirer of the assets related to
the Texarkana Area has the same providers in its network as Humana
currently does and on terms that are equal to Humana's terms, Section
IV.K of the Final Judgment requires Humana to lease access to two of
its wholly-owned provider networks, ChoiceCare and LifeSynch, to the
acquirer of the divestiture assets in the Texarkana Area's relevant
geographic markets. Humana's Medicare Advantage plans in the Texarkana
Area currently use these networks to access providers. Section IV.K
requires Humana to lease to the acquirer access to these networks on
non-discriminatory terms until December 31, 2014. This time period and
the enrollment that comes with the divestiture should enable the
acquirer to develop its own provider network.
2. Quick Divestiture
Section IV of the proposed Final Judgment is designed to ensure
that the divestitures occur quickly, and in a manner consistent with
applicable regulatory requirements. Section IV.A requires that the
Defendants complete the divestitures within sixty days of the filing of
the Complaint, with the granting of possible extensions in the sole
discretion of the United States and not to exceed ninety days total. If
(1) the Defendants have filed all necessary applications or requests
for government approval within five days after the date that the United
States informs the Defendants that it does not object to a proposed
divestiture, and (2) an order or other dispositive action on such
applications has not issued or become effective before the end of the
period permitted for divestiture, Section IV.B extends the divestiture
period until five business days after the approval is received.
3. Branding
The Final Judgment also recognizes the importance of branding to a
company's ability to compete effectively
[[Page 20427]]
in the sale of Medicare Advantage plans. Section IV.M provides that
upon completing the divestiture and through December 31, 2014, the
Defendants may not use the Arcadian brand for any type of Medicare
Advantage plan, other than a Special Needs Plan, in any of the fifty-
one counties and parishes (including the five additional counties and
one additional parish discussed above) except those in the Texarkana
Area. In addition, Section IV.N allows the acquirer to use the Arcadian
brand in any of the fifty-one counties and parishes except those in the
Texarkana Area for up to twelve months after divestiture with the
United States' approval. Section IV.O allows the acquirer to make
reasonable transitional use of the Humana brand in the Texarkana Area.
4. CMS Regulatory Process
Section IV also requires that the Defendants transfer the
Divestiture Assets in a manner consistent with CMS rules and
regulations, and that the Defendants maintain the viability of those
assets in the interim through the CMS bidding process. Specifically,
Section IV.S requires Defendants to work with CMS to ensure that the
divestiture process satisfies any CMS concerns about network disruption
and adheres to rules and regulations regarding novations. Section IV.X
provides that if Defendants fail to divest the Divestiture Assets by
May 15, 2012, Humana will prepare and submit to CMS, in the ordinary
course of business and consistent with past practice, subject to
actuarially reasonable adjustment, all necessary filings for the
Divestiture Assets including Medicare Advantage Plan bids for 2013, so
that the Divestiture Assets remain viable, ongoing Medicare Advantage
offerings. CMS's annual Medicare Advantage bid cycle necessitates this
provision because plan proposals for the upcoming year must be
submitted by no later than June of the current year.
5. Divestiture Trustee and Monitoring Trustee
Section V provides for the appointment, if necessary, of a trustee
to sell the Divesture Assets and thereby also encourages a quick,
effective divestiture in this matter. Section V.A provides that, if the
Defendants have not divested the Divestiture Assets within the time
period specified in Section IV, the Court will appoint a trustee
selected by the United States to carry out any divestitures the
Defendants have not completed. Defendants must pay the trustee's costs
and expenses, and the trustee's commission will provide an incentive
based on the price, terms, and speed of the divestiture. Once the
trustee is appointed, the trustee will file monthly reports with the
Court and the United States explaining his or her efforts to accomplish
the divestiture. Section V.G provides that if the trustee has not
accomplished the divestiture by November 21, 2012, the trustee and the
United States will make recommendations to the Court, which will enter
such orders as it deems appropriate in order to carry out the purpose
of the trust. This may include extending the trust or the term of the
trustee's appointment by a period requested by the United States.
As soon as the filing of the Complaint, the United States may also
appoint a monitoring trustee, subject to the approval by the Court,
which will insure against deterioration of the Divestiture Assets until
their divestiture. The monitoring trustee will have the power and
authority to monitor Defendants' compliance with the Final Judgment and
Stipulation and such powers as the Court may deem appropriate, and
Defendants can object to that trustee's actions only for malfeasance.
This trustee will serve at Humana's expense and on such terms and
conditions as the United States approves, and the Defendants must
assist the trustee in fulfilling its obligations. The monitoring
trustee will file monthly reports and will serve until the divestiture
is complete and any agreements for transitional support services have
expired.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against Defendants.
V. Procedures Available for Modification of the Proposed Final Judgment
The United States, Humana, and Arcadian have stipulated that the
proposed Final Judgment may be entered by the Court after compliance
with the provisions of the APPA, provided that the United States has
not withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least sixty days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within
sixty days of the date of publication of this Competitive Impact
Statement in the Federal Register, or the last date of publication in a
newspaper of the summary of this Competitive Impact Statement,
whichever is later. All comments received during this period will be
considered by the United States Department of Justice, which remains
free to withdraw its consent to the proposed Final Judgment at any time
before the Court's entry of judgment. The comments and the response of
the United States will be filed with the Court and published in the
Federal Register.
Written comments should be submitted to: Joshua H. Soven, Chief,
Litigation I Section, Antitrust Division, United States Department of
Justice, 450 Fifth Street NW., Suite 4100, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against Defendants. The
United States could have continued the litigation and sought a judicial
order enjoining Humana's acquisition of Arcadian. The United States is
satisfied, however, that divestiture of the assets described in the
proposed Final Judgment will preserve competition for the sale of
individual Medicare Advantage plans in the relevant geographic markets.
Thus, the proposed Final Judgment would achieve all or substantially
all of the relief the United States would have obtained through
litigation, but avoids the time, expense, and uncertainty of a full
trial on the merits.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by
[[Page 20428]]
the United States be subject to a sixty-day comment period, after which
the court shall determine whether entry of the proposed Final Judgment
``is in the public interest.'' 15 U.S.C. 16(e)(1). In making that
determination, the court, in accordance with the statute as amended in
2004, is required to consider:
(A) The competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration of relief sought, anticipated effects of alternative remedies
actually considered, whether its terms are ambiguous, and any other
competitive considerations bearing upon the adequacy of such judgment
that the court deems necessary to a determination of whether the
consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived
from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B).
In considering these statutory factors, the court's inquiry is
necessarily a limited one as the government is entitled to ``broad
discretion to settle with the defendant within the reaches of the
public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461
(D.C. Cir. 1995); see also United States v. SBC Commc'ns, Inc., 489 F.
Supp. 2d 1 (D.D.C. 2007) (assessing public-interest standard under the
Tunney Act); United States v. InBev N.V./S.A., 2009-2 Trade Cas. (CCH)
] 76,736, 2009 U.S. Dist. LEXIS 84787, No. 08-1965 (JR), at *3 (D.D.C.
Aug. 11, 2009) (noting that the court's review of a consent judgment is
limited and only inquires ``into whether the government's determination
that the proposed remedies will cure the antitrust violations alleged
in the complaint was reasonable, and whether the mechanisms to enforce
the final judgment are clear and manageable.'').\2\
---------------------------------------------------------------------------
\2\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for courts to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns,
489 F. Supp. 2d at 11 (concluding that the 2004 amendments
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------
Under the APPA, a court considers, among other things, the
relationship between the remedy secured and the specific allegations
set forth in the United States' complaint, whether the decree is
sufficiently clear, whether enforcement mechanisms are sufficient, and
whether the decree may positively harm third parties. See Microsoft, 56
F.3d at 1458-62. With respect to the adequacy of the relief secured by
the decree, a court may not ``engage in an unrestricted evaluation of
what relief would best serve the public.'' United States v. BNS Inc.,
858 F.2d 456, 462 (9th Cir. 1988) (citing United States v. Bechtel
Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d
at 1460-62; InBev, 2009 U.S. Dist. LEXIS 84787, at *3; United States v.
Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001). Courts have held
that:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\3\ In
determining whether a proposed settlement is in the public interest, a
district court ``must accord deference to the government's predictions
about the efficacy of its remedies, and may not require that the
remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F.
Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 (noting the need
for courts to be ``deferential to the government's predictions as to
the effect of the proposed remedies''); United States v. Archer-
Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that
the court should grant due respect to the United States' ``prediction
as to the effect of proposed remedies, its perception of the market
structure, and its views of the nature of the case'').
---------------------------------------------------------------------------
\3\ Cf. BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); United States v. Gillette Co.,
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the
court is constrained to ``look at the overall picture not
hypercritically, nor with a microscope, but with an artist's
reducing glass''); see generally Microsoft, 56 F.3d at 1461
(discussing whether ``the remedies [obtained in the decree are] so
inconsonant with the allegations charged as to fall outside of the
`reaches of the public interest''').
Courts have greater flexibility in approving proposed consent
decrees than in crafting their own decrees following a finding of
liability in a litigated matter. ``[A] proposed decree must be approved
even if it falls short of the remedy the court would impose on its own,
as long as it falls within the range of acceptability or is `within the
reaches of public interest.''' United States v. Am. Tel. & Tel. Co.,
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky.
1985) (approving the consent decree even though the court would have
imposed a greater remedy). To meet this standard, the United States
``need only provide a factual basis for concluding that the settlements
are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns,
489 F. Supp. 2d at 17.
Moreover, the court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its complaint, and does not authorize the court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also InBev, 2009
U.S. Dist. LEXIS 84787, at *20 (``the `public interest' is not to be
measured by comparing the violations alleged in the complaint against
those the court believes could have, or even should have, been
alleged''). Because the ``court's authority to review the decree
depends entirely on the government's exercising its prosecutorial
discretion by bringing a case in the first place,'' it follows that
``the court is only authorized to review the decree itself,'' and not
to ``effectively redraft the complaint'' to inquire into other matters
that the United States did not pursue. Microsoft, 56 F.3d at 1459-60.
As the United States District Court for the District of Columbia
confirmed in SBC Communications, courts ``cannot look beyond the
complaint in making the public interest determination unless the
complaint is drafted so narrowly as to make a mockery of judicial
power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
In its 2004 amendments, Congress made clear its intent to preserve
the practical benefits of using consent decrees in antitrust
enforcement, adding the unambiguous instruction that ``[n]othing in
this section shall be construed to require the court to conduct an
evidentiary hearing or to require the court to permit anyone to
intervene.'' 15 U.S.C. 16(e)(2). This language effectuates what
Congress intended when it enacted the Tunney Act in 1974. As Senator
Tunney
[[Page 20429]]
explained: ``[t]he court is nowhere compelled to go to trial or to
engage in extended proceedings which might have the effect of vitiating
the benefits of prompt and less costly settlement through the consent
decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Senator
Tunney). Rather, the procedure for the public-interest determination is
left to the discretion of the court, with the recognition that the
court's ``scope of review remains sharply proscribed by precedent and
the nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d
at 11.\4\
---------------------------------------------------------------------------
\4\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the
court to make its public interest determination on the basis of the
competitive impact statement and response to comments alone'');
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt
failure of the government to discharge its duty, the Court, in
making its public interest finding, should * * * carefully consider
the explanations of the government in the competitive impact
statement and its responses to comments in order to determine
whether those explanations are reasonable under the
circumstances.''); S. Rep. No. 93-298 at 6 (1973) (``Where the
public interest can be meaningfully evaluated simply on the basis of
briefs and oral arguments, that is the approach that should be
utilized.'').
---------------------------------------------------------------------------
VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that the United States considered in formulating
the proposed Final Judgment.
Dated this 27th day of March 2012.
Respectfully submitted,
/s/Adam Gitlin---------------------------------------------------------
Adam Gitlin,
Barry Creech (DC Bar 421070),
Barry Joyce,
Edward D. Eliasberg, Jr. (DC Bar 199182),
Katrina Rouse,
Attorneys for the United States, Litigation I Section, Antitrust
Division, U.S. Department of Justice, 450 Fifth Street NW., Suite
4100, Washington, DC 20530.
Telephone: (202) 307-6456.
Facsimile: (202) 305-1190.
Email: adam.gitlin@usdoj.gov.
United States District Court for the District of Columbia
United States of America, Plaintiff v. Humana Inc. and Arcadian
Management Services, Inc., Defendants.
Case: 1:12-cv-00464.
Assigned To: Walton, Reggie B.
Assign. Date: 3/27/2012.
Description: Antitrust.
[Proposed] Final Judgment
Whereas, plaintiff, United States of America, filed its Complaint
on March 27, 2012, and Plaintiff and Defendants, Humana Inc. and
Arcadian Management Services, Inc., by their respective attorneys, have
consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law and without this Final
Judgment constituting any evidence against or admission by any party
regarding any issue of fact or law;
And whereas, Defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
And whereas, the essence of this Final Judgment is the prompt and
certain divestitures of certain rights and assets by Defendants to
ensure that competition is not substantially lessened in the sale of
Medicare Advantage Plans to Medicare beneficiaries in the Arcadian Plan
Areas and Texarkana Area as described below;
And whereas, the United States requires Defendants to make certain
divestitures for the purpose of remedying the loss of competition
alleged in the Complaint;
And whereas, Defendants have represented to the United States that
the divestitures required by this Final Judgment can and will be made,
and that Defendants will not later raise any claim of hardship or
difficulty as grounds for asking the Court to modify any of the
provisions of this Final Judgment;
Now therefore, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ordered, adjudged, and decreed:
I. Jurisdiction
This Court has jurisdiction over the subject matter of, and each of
the parties to, this action. The Complaint states a claim upon which
relief may be granted against Defendants under Section 7 of the Clayton
Act, as amended, 15 U.S.C. 18.
II. Definitions
As used in this Final Judgment:
A. ``Acquirer'' means the entity or entities to which the
Divestiture Assets are divested.
B. ``Amarillo Plan'' means the individual Medicare Advantage Plan
offered by Arcadian solely insofar as such plan serves enrollees in the
Amarillo Area under CMS Contract ID H4529, Plan ID 27 or such other
contract and plan identification number as CMS assigns to such plan.
C. ``Arcadian'' means Defendant Arcadian Management Services, Inc.,
a Delaware corporation with its headquarters in Oakland, CA, its
successors and assigns, and its subsidiaries, divisions, groups,
affiliates, partnerships and joint ventures, and their respective
directors, officers, managers, agents, and employees.
D. ``Arcadian CMS Plans'' means the Amarillo Plan, Arizona Plans,
Eastern Oklahoma Plan, Fort Smith Plan, Lake Charles Plan, Longview-
Marshall Plan, and Shreveport Plan.
E. ``Arcadian Contracted Provider'' means a health-care provider
contracted with Arcadian to provide or arrange for health services
under an Arcadian CMS Plan as of March 1, 2012.
F. ``Arcadian Contracts'' means the CMS contracts pursuant to which
the Arcadian CMS Plans are administered.
G. ``Arcadian Plan Areas'' means the Amarillo Area (Armstrong,
Carson, Deaf Smith, Oldham, Potter, and Randall Counties in Texas),
Eastern Oklahoma Area (Adair, Delaware, Haskell, Le Flore, McCurtain,
Ottawa, Pushmataha, and Sequoyah Counties in Oklahoma), Longview-
Marshall Area (Gregg, Harrison, and Henderson Counties in Texas),
Arizona Area (Mohave and Yavapai Counties in Arizona), Shreveport Area
(Bienville, Bossier, Caddo, Claiborne, De Soto, Red River, and Webster
Parishes in Louisiana), Lake Charles Area (Allen, Beauregard,
Calcasieu, Cameron, and Jefferson Davis Parishes in Louisiana), and
Fort Smith Area (Conway, Crawford, Franklin, Johnson, Logan, Pope,
Scott, Sebastian, and Yell counties in Arkansas).
H. ``Arizona Plans'' means the individual Medicare Advantage Plans
offered by Arcadian solely insofar as such plan serves enrollees in the
Arizona Area under CMS Contract ID H0320, Plan IDs 5 and 6 or such
other contract and plan identification numbers as CMS assigns to such
plan.
I. ``Broker'' means any independent insurance agent, general agent,
producer, or broker who facilitates the sale of health-insurance plans
to individuals or groups.
J. ``CMS'' means the Centers for Medicare and Medicaid Services, an
agency within the U.S. Department of Health and Human Services.
K. ``Divestiture Assets'' means all of Arcadian's rights and
obligations under the Arcadian Contracts with respect to the Arcadian
CMS Plans, and all of Humana's rights and obligations under the
Texarkana Contracts with respect to the Texarkana CMS Plans, including
the right to offer Medicare Advantage plans to individual enrollees
pursuant to the bids filed with CMS for the contract year in effect as
of the closing of the divestiture of the Divestiture Assets, and the
right to receive from CMS a per member per month capitation payment in
exchange for providing or arranging
[[Page 20430]]
for the benefits enumerated in the bids; and copies of all business,
financial and operational books, records, and data, both current and
historical, that primarily relate to the Arcadian Contracts or
Texarkana Contracts. Where books, records, or data primarily relate to
the Arcadian CMS Plans or Texarkana CMS Plans, but not solely to these
Plans, Defendants must provide excerpts relating to these Plans.
Nothing herein requires Defendants to take any action prohibited by the
Health Insurance Portability and Accountability Act of 1996 (HIPAA).
L. ``Duplicate'' means a contract with identical terms to a
contract with an Arcadian Contracted Provider, except for those terms
that identify (i) the contract's effective date and (ii) the Medicare
Advantage organization or the entity contracting on behalf of the
Medicare Advantage organization.
M. ``Eastern Oklahoma Plan'' means the individual Medicare
Advantage Plan offered by Arcadian solely insofar as such plan serves
enrollees in the Eastern Oklahoma Area under CMS Contract ID H4125,
Plan ID 1 or such other contract and plan identification number as CMS
assigns to such plan.
N. ``Fort Smith Plan'' means the individual Medicare Advantage Plan
offered by Arcadian solely insofar as such plan serves enrollees in the
Fort Smith Area under CMS Contract ID H5700, Plan ID 9 or such other
contract and plan identification number as CMS assigns to such plan.
O. ``Health-care provider'' means any person or entity that
contracts with Arcadian or Humana to provide or arrange for the
provision of any health-care service, including hospitals, physician
groups, laboratories, ambulatory surgical centers, nursing facilities,
pharmacies, and other providers of health-care services.
P. ``Humana'' means defendant Humana Inc., a Delaware corporation
with its headquarters in Louisville, Kentucky, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and their respective directors,
officers, managers, agents, and employees.
Q. ``Lake Charles Plan'' means the individual Medicare Advantage
Plan offered by Arcadian solely insofar as such plan serves enrollees
in the Lake Charles Area under CMS Contract ID H7179, Plan ID 2 or such
other contract and plan identification number as CMS assigns to such
plan.
R. ``Longview-Marshall Plan'' means the individual Medicare
Advantage Plan offered by Arcadian solely insofar as such plan serves
enrollees in the Longview-Marshall Area under CMS Contract ID H4529,
Plan ID 30 or such other contract and plan identification number as CMS
assigns to such plan.
S. ``Medicare Advantage Plan'' means Medicare Advantage health
maintenance organization plans, Medicare Advantage preferred provider
organization plans, and Medicare Advantage private fee-for-service
plans, as defined in 42 U.S.C. Sec. 1395w-28.
T. ``Shreveport Plan'' means the individual Medicare Advantage Plan
offered by Arcadian solely insofar as such plan serves enrollees in the
Shreveport Area under CMS Contract ID H7179, Plan ID 2 or such other
contract and plan identification number as CMS assigns to such plan.
U. ``Texarkana Area'' means Columbia, Hempstead, Howard, Lafayette,
Little River, Miller, Nevada, and Sevier Counties in Arkansas, and
Bowie, Cass, and Titus Counties in Texas.
V. ``Texarkana Contracts'' means the CMS contracts pursuant to
which the Texarkana CMS Plans are administered.
W. ``Texarkana CMS Plans'' means the individual Medicare Advantage
Plans offered by Humana solely insofar as such plan serves enrollees in
the Texarkana Area under CMS Contract ID H2944, Plan IDs 13, 197, and
204; Contract ID H4520, Plan ID 6; Contract ID H7188, Plan IDs 3 and 6;
and Contract ID H8145, Plan IDs 120 and 122, or such other contract and
plan identification numbers as CMS assigns to such plans.
X. ``Transaction'' means the merger contemplated by the Agreement
and Plan of Merger dated as of August 24, 2011, by and among Humana,
Humsol, Inc., and Arcadian.
III. Applicability
A. This Final Judgment applies to each Defendant and any other
person in active concert or participation with any Defendant who
receives actual notice of this Final Judgment by personal service or
otherwise.
B. If, prior to complying with Section IV and V of this Final
Judgment, Defendants sell or otherwise dispose of all or substantially
all of their assets or of lesser business units that include the
Divestiture Assets, Defendants must require the purchaser(s) to be
bound by the provisions of this Final Judgment. Defendants need not
obtain such an agreement from the Acquirer of the assets divested
pursuant to this Final Judgment.
IV. Divestitures
A. Defendants are ordered and directed to divest the Divestiture
Assets in a manner consistent with this Final Judgment to one or more
Acquirers acceptable to the United States, in its sole discretion,
within sixty calendar days after the filing of the Complaint in this
matter. The United States, in its sole discretion, may agree to one or
more extensions of this time period not to exceed ninety days total and
must notify the Court in such circumstances.
B. Defendants must obtain all regulatory approvals necessary for
such divestitures as expeditiously as possible. If applications for
approval have been filed with the appropriate governmental units within
five calendar days after the United States has provided written notice,
pursuant to Section 0, that it does not object to a proposed
divestiture, but these required approvals have not been issued or
become effective before the end of the period permitted for
divestiture, the period for divestiture shall be extended until five
business days after all necessary government approvals have been
received. With respect to this Section IV.B, an application for CMS
approval will be deemed to have been filed when Defendants have given
CMS advance notice of a possible change in ownership pursuant to 42 CFR
422.550(b), provided that Defendants timely submit all materials
required by CMS for approval.
C. In accomplishing the divestitures ordered by this Final
Judgment, Defendants promptly must make known, by usual and customary
means, the availability of the Divestiture Assets. Defendants must
inform any person making an inquiry regarding a possible purchase that
the divestitures are being made pursuant to this Final Judgment and
must provide that person with a copy of this Final Judgment. Defendants
must offer to furnish to all prospective Acquirers, subject to
reasonable confidentiality assurances, all information and documents
relating to the Divestiture Assets customarily provided in a due
diligence process, except information and documents subject to the
attorney-client privilege or the attorney work-product privilege.
Defendants must make available such information to the United States at
the same time that such information is made available to prospective
Acquirers.
D. Defendants must permit prospective Acquirers of the Divestiture
Assets to have reasonable access to personnel and access to any and all
financial, operational, or other documents and information as is
customarily provided as part of a due diligence process for a
transaction of this type.
[[Page 20431]]
E. Defendants may not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Assets.
F. Unless the United States otherwise consents in writing, the
divestitures pursuant to Section IV, or by a Divestiture Trustee
appointed pursuant to Section V, must include the entire Divestiture
Assets and must be accomplished in such a way as to satisfy the United
States, in its sole discretion, that the Divestiture Assets can and
will be used by the Acquirer as part of a viable, ongoing business
engaged in the sale of Medicare Advantage Plans in the Divestiture
Areas. The divestiture of the Divestiture Assets may be made to one or
more Acquirers, provided that in each instance it is demonstrated to
the sole satisfaction of the United States that the Divestiture Assets
will remain viable and the divestitures will remedy the competitive
harm alleged in the Complaint. The divestitures, whether pursuant to
Section IV or Section V of this Final Judgment: (1) Must be made to
Acquirer(s) that, in the United States' sole judgment, each have the
intent and capability (including the necessary managerial, operational,
technical, and financial capability) to compete effectively in the sale
of Medicare Advantage Plans in the Divestiture Areas; and (2) must be
accomplished so as to satisfy the United States, in its sole
discretion, that none of the terms of any agreement between Defendants
and any Acquirer gives Defendants the ability to interfere with the
Acquirer's ability to compete effectively.
G. At the Acquirer's option, Defendants must (1) assign to the
Acquirer or, if acceptable to the Arcadian Contracted Provider, arrange
for entry into a Duplicated contract for the Acquirer's benefit, all of
the Arcadian contracts with Arcadian Contracted Providers that provide
or arrange for the provision of health services in an Arcadian Plan
Area where those contracts are freely assignable; and (2) for such
contracts that are not freely assignable, use their best efforts to
obtain any necessary provider consents to assignment or to entry into a
Duplicated contract for the Acquirer's benefit and assign those
contracts to the Acquirer after obtaining the necessary consents or
deliver such Duplicated contracts as applicable.
H. At the Acquirer's option, for each Arcadian Contracted Provider
not subject to Section IV.G, that provides or arranges for the
provision of health-care services in a county or parish contiguous to
an Arcadian Plan Area, where at least fifty percent of the services
provided under the health-care provider's Arcadian contract are
provided to members of the Arcadian CMS Plans who reside in a single
Arcadian Plan Area (as measured by 2011 claims payments), Defendants
must (1) assign to the Acquirer or, if acceptable to the Arcadian
Contracted Provider, arrange for entry into a Duplicated contract for
the Acquirer's benefit, all such contracts that are freely assignable;
and (2) for such contracts that are not freely assignable, use their
best efforts to obtain any necessary provider consents to assignment or
to entry into a Duplicated contract for the Acquirer's benefit, and
assign them to the Acquirer after obtaining the necessary consents or
deliver such Duplicated contracts as applicable.
I. The requirements of Sections IV.G and IV.H do not apply to
Arcadian Contracted Providers that provide or arrange in three or more
states for durable medical equipment, pharmacy and pharmacy benefit
management services, transplant services, dental care, vision care,
clinical laboratory services, home health services, prosthetics and
orthotics, and rehabilitation services.
J. At the Acquirer's option, Defendants must assist and facilitate
the negotiation of and entry into agreements between the Acquirer and
such Arcadian Contracted Providers as account for substantially all of
the health-care services to members of the Arcadian CMS Plans that are
provided through an Arcadian contract, and on terms substantially as
favorable as those in the Arcadian contract as of March 1, 2012.
K. At the Acquirer's option, Humana must contract through December
31, 2014, to provide access to Humana's ChoiceCare and LifeSynch
provider networks in the States of Arkansas and Texas to the Acquirer
of the Texarkana CMS Plans for members of the Texarkana CMS Plans. The
contract terms may not be less favorable than the terms on which
Humana's own Medicare Advantage plans access ChoiceCare and LifeSynch,
and Humana may not charge any administrative, network access, leasing,
or other fee to the Acquirer greater than the fees that Humana charged
itself for access to ChoiceCare and LifeSynch as of December 31, 2011.
Humana may not contract with the Acquirer to provide access to
ChoiceCare and LifeSynch for the members of the Texarkana CMS Plans
after December 31, 2014, unless the United States consents. Humana may
not interfere with the Acquirer's efforts to contract independently
with health-care providers participating in ChoiceCare and LifeSynch.
L. Defendants must provide to the Acquirer, the United States, and
any Monitoring Trustee, information relating to the personnel primarily
involved in the operation of the Divestiture Assets to enable the
Acquirer to make offers of employment to those persons. Defendants may
not interfere with any negotiations by the Acquirer to employ, and must
waive all noncompete agreements for, any of those persons. For a period
of two years from the filing of the Complaint in this matter,
Defendants may not solicit to hire any such person who was hired by any
Acquirer, unless the Acquirer has notified such person that the
Acquirer does not intend to continue to employ the person.
M. Upon completing the divestitures and through December 31, 2014,
Defendants may not use any Arcadian brand, or any substantially similar
brand, name, or logo, for any type of Medicare Advantage plan of
Defendants in the Arcadian Plan Areas, with the exception of any
Arcadian Special Needs Plan, as defined in 42 U.S.C. 1395w-28(b)(6).
Defendants may use the Arcadian brand or any substantially similar
brand, name, or logo, for any Arcadian Special Needs Plan in the
Arcadian Plan Areas.
N. At the Acquirer's option, and subject to approval by the United
States, Defendants will allow the Acquirer to license and use the
Arcadian brand, and any substantially similar brand, name, or logo,
with the Divestiture Assets for twelve months upon completing the
divestitures, and solely in the Arcadian Plan Areas.
O. At the Acquirer's option, and subject to approval by the United
States, Humana will allow the Acquirer to license and use the Humana
brand, or any substantially similar brand, name, or logo, for a period
of up to three months after the effective date of the divestiture to
such Acquirer (or any such longer period as CMS shall require) solely
for the purpose of communicating to enrollees and prospective enrollees
the transition from Humana's CMS Texarkana Plans to the Acquirer, and
solely in the Texarkana Area. Humana may place reasonable limitation on
the use of materials bearings its brand, including prior submission of
materials containing Humana's brand, name or logo, to Humana for review
and approval, which such approval shall not unreasonably be withheld.
Nothing in this provision shall supersede any CMS marketing guidelines
or regulations concerning Medicare Advantage plans.
P. At the Acquirer's option, and subject to approval by the United
States,
[[Page 20432]]
Defendants will provide transitional support services for medical and
prescription drug claims processing, appeals and grievances, call-
center support, enrollment and eligibility services, access to form
templates, disease management, Medicare risk-adjustment services,
quality-assurance services, and such other transition services that are
reasonably necessary for the Acquirer to operate the Divestiture
Assets. Defendants may not provide such transitional support services
for more than twelve months from the date of the completion of the
divestitures unless the United States approves.
Q. To ensure an effective transition and transfer of enrollees in
the Arcadian CMS Plans and Texarkana CMS Plans, Defendants must
cooperate and work with the Acquirer in transition planning and
implementing the transfer of the Divestiture Assets.
R. Defendants will communicate and cooperate fully with the
Acquirer to promptly identify and obtain all consents, approvals, and
novations of government agencies necessary to divest the Divestiture
Assets.
S. Defendants will communicate and cooperate fully with the
Acquirer to work in good faith with CMS to implement a novation process
that is efficient and adheres to CMS's requirements requiring notices
to plan members so as to minimize any potential disruption and
confusion to enrollees in the Arcadian CMS Plans and Texarkana CMS
Plans.
T. Humana must warrant to the Acquirer that, since the date of its
acquisition of Arcadian, Humana has operated the Divestiture Assets in
all material respects in accordance with the requirements of the
Arcadian Contracts and the Texarkana Contracts.
U. Defendants may not take any action having the effect of delaying
the authorization or scheduling of health-care services provided to
enrollees in the Arcadian CMS Plans or Texarkana CMS Plans in a manner
inconsistent with Defendants' past practice with respect to the
Arcadian CMS Plans or Texarkana CMS Plans.
V. Defendants may not make any material change to the customary
terms and conditions upon which they do business with respect to the
Arcadian CMS Plans that would be expected, individually or in the
aggregate, to have a materially adverse effect on the Arcadian CMS
Plans. Defendants may not make any material change to the customary
terms and conditions upon which they do business with respect to the
Texarkana CMS Plans that would be expected, individually or in the
aggregate, to have a materially adverse effect on the Texarkana CMS
Plans.
W. Defendants must identify the top ten Brokers with respect to the
Arcadian CMS Plans and the Texarkana CMS Plans along with the
corresponding number of enrollees produced by each such Broker.
Defendants will introduce the Acquirer to any such Broker for the
purpose of the Acquirer having an opportunity, at the Acquirer's
option, to negotiate an agreement with the Broker to market and sell
the Arcadian CMS Plans or Texarkana CMS Plans after the completion of
the divestitures.
X. If Defendants fail to divest the Divestiture Assets by May 15,
2012, Humana must prepare and submit to CMS, in the ordinary course of
business and consistent with past practice, subject to actuarially
reasonable adjustment, all necessary filings for the Arcadian CMS Plans
and the Texarkana CMS Plans, including Medicare Advantage Plan bids for
2013, so that the Divestiture Assets remain viable, ongoing Medicare
Advantage offerings.
V. Appointment of Divestiture Trustee
A. If Defendants have not divested some or all of the Divestiture
Assets within the time period specified in Section 0, Defendants must
notify the United States of that fact in writing. Upon application of
the United States, the Court shall appoint a Divestiture Trustee
selected by the United States and approved by the Court to effect the
divestiture of any Divestiture Assets not already divested.
B. After the appointment of a Divestiture Trustee becomes
effective, only the Divestiture Trustee shall have the right to sell
the Divestiture Assets. The Divestiture Trustee shall have the power
and authority to accomplish the divestitures to one or more Acquirers
acceptable to the United States at such price and on such terms as are
then obtainable upon reasonable effort by the Divestiture Trustee,
subject to the provisions of Sections 0, V, and VI of this Final
Judgment, and shall have such other powers as this Court deems
appropriate. Subject to Section 0.0 of this Final Judgment, the
Divestiture Trustee may hire at the cost and expense of Defendants any
professionals and agents, who shall be solely accountable to the
Divestiture Trustee, that are reasonably necessary in the Divestiture
Trustee's judgment to assist in the divestiture.
C. Defendants may not object to a sale by the Divestiture Trustee
authorized by this Order on any ground other than the Divestiture
Trustee's malfeasance. Defendants must convey any such objections in
writing to the United States and the Divestiture Trustee within ten
calendar days after the Divestiture Trustee has provided the notice
required under Section 0.
D. The Divestiture Trustee shall serve, without bond or other
security, at the cost and expense of Defendants, on such terms and
conditions as the United States approves, and must account for all
monies derived from the sale of the assets sold by the Divestiture
Trustee and all costs and expenses so incurred. After approval by the
Court of the Divestiture Trustee's accounting, including fees for its
services and those of any professionals and agents retained by the
Divestiture Trustee, all remaining money shall be paid to Defendants
and the trust shall then be terminated. The compensation of the
Divestiture Trustee and any professionals and agents retained by the
Divestiture Trustee must be reasonable in light of the value of the
Divestiture Assets and based on a fee arrangement providing the
Divestiture Trustee with an incentive based on the price and terms of
the divestitures and the speed with which it is accomplished, but
timeliness is paramount.
E. Defendants must assist the Divestiture Trustee in accomplishing
the required divestiture. The Divestiture Trustee and any professionals
and agents retained by the Divestiture Trustee shall have full and
complete access to the personnel, books, records, and facilities
relating to the Divestiture Assets, and Defendants must develop
financial and other information relevant to such business as the
Divestiture Trustee may reasonably request, subject to reasonable
protection for trade secret or other confidential research,
development, or commercial information. Defendants may not interfere
with or impede the Divestiture Trustee's accomplishment of the
divestiture.
F. After its appointment, the Divestiture Trustee must file monthly
reports with the United States and the Court setting forth the
Divestiture Trustee's efforts to accomplish the divestitures ordered
under this Final Judgment. To the extent that such reports contain
information that the Divestiture Trustee deems confidential, such
reports shall not be filed in the public docket of the Court. Such
reports must include the name, address, and telephone number of each
person who, during the preceding month, made an offer to acquire,
expressed an interest in acquiring, entered into negotiations to
acquire, or was contacted or made an inquiry about acquiring, any
interest in the Divestiture Assets, and must describe in detail each
contact with any
[[Page 20433]]
such person. The Divestiture Trustee must maintain full records of all
efforts made to divest the Divestiture Assets.
G. If the Divestiture Trustee has not accomplished the divestitures
ordered under this Final Judgment by November 21, 2012, the Divestiture
Trustee must promptly file with the Court a report setting forth (1)
the Divestiture Trustee's efforts to accomplish the required
divestiture, (2) the reasons, in the Divestiture Trustee's judgment,
why the required divestitures have not been accomplished, and (3) the
Divestiture Trustee's recommendations. To the extent that the report
contains information that the Divestiture Trustee deems confidential,
the report shall not be filed in the public docket of the Court. The
Divestiture Trustee must at the same time furnish such report to the
United States, which shall have the right to make additional
recommendations consistent with the purpose of the trust. The Court
thereafter shall enter such orders as it deems appropriate to carry out
the purpose of the Final Judgment, which may, if necessary, include
extending the trust and the term of the Divestiture Trustee's
appointment by a period requested by the United States.
VI. Notice of Proposed Divestiture
A. Within two business days following execution of a definitive
divestiture agreement, Defendants or the Divestiture Trustee, whichever
is then responsible for effecting the divestitures required herein,
must notify the United States and any Monitoring Trustee of any
proposed divestiture required by Section 0 or V of this Final Judgment.
If the Divestiture Trustee is responsible, it must similarly notify
Defendants. The notice must set forth the details of the proposed
divestiture and list the name, address, and telephone number of each
person not previously identified who offered or expressed an interest
in or desire to acquire any ownership interest in the Divestiture
Assets, together with full details of the same.
B. Within fifteen calendar days of receipt by the United States of
such notice, the United States may request from Defendants, the
proposed Acquirer, any other third party, or the Divestiture Trustee,
if applicable, additional information concerning the proposed
divestiture, the proposed Acquirer, and any other potential Acquirer.
Defendants and the Divestiture Trustee must furnish any additional
information requested within fifteen calendar days of the receipt of
the request, unless the parties otherwise agree.
C. Within thirty calendar days after receipt of the notice or
within twenty calendar days after the United States has been provided
the additional information requested from Defendants, the proposed
Acquirer, any third party, and the Divestiture Trustee, whichever is
later, the United States must provide written notice to Defendants and
the Divestiture Trustee, if there is one, stating whether or not it
objects to the proposed divestiture. If the United States provides
written notice that it does not object, the divestiture may be
consummated, subject only to Defendants' limited right to object to the
sale under Section V.C of this Final Judgment. Absent written notice
that the United States does not object to the proposed Acquirer or upon
objection by the United States, a divestiture proposed under Section 0
or Section V may not be consummated. Upon objection by Defendants under
Section V.0, a divestiture proposed under Section V may not be
consummated unless approved by the Court.
VII. Financing
Defendants may not finance all or any part of any purchase made
pursuant to Section 0 or V of this Final Judgment.
VIII. Preservation of Assets
Until the divestitures required by this Final Judgment has been
accomplished, Defendants must take all steps necessary to comply with
the Asset Preservation Stipulation and Order entered by this Court.
Defendants may not take any action that would jeopardize any
divestiture ordered by this Court.
IX. Appointment of Monitoring Trustee
A. Upon the filing of this Final Judgment, the United States may,
in its sole discretion, appoint a Monitoring Trustee, subject to
approval by the Court.
B. The Monitoring Trustee shall have the power and authority to
monitor Defendants' compliance with the terms of this Final Judgment
and the Asset Preservation Stipulation and Order entered by this Court
and shall have such powers as this Court deems appropriate. Subject to
Section IX.D of this Final Judgment, the Monitoring Trustee may hire at
the cost and expense of Humana any professionals and agents reasonably
necessary in the Monitoring Trustee's judgment. These persons shall be
solely accountable to the Monitoring Trustee.
C. Defendants may not object to actions taken by the Monitoring
Trustee in fulfillment of the Monitoring Trustee's responsibilities
under any Order of this Court on any ground other than the Monitoring
Trustee's malfeasance. Defendants must convey any such objections in
writing to the United States and the Monitoring Trustee within ten
calendar days after the action taken by the Monitoring Trustee giving
rise to Defendants' objection.
D. The Monitoring Trustee and any persons retained by the
Monitoring Trustee pursuant to Section IX.B shall serve at the cost and
expense of Defendants, on such terms and conditions as the United
States approves. The compensation of the Monitoring Trustee and any
professionals and agents retained by the Monitoring Trustee must be on
reasonable and customary terms commensurate with the individuals'
experience and responsibilities.
E. The Monitoring Trustee shall have no responsibility or
obligation for the operation of Defendants' businesses.
F. Defendants must assist the Monitoring Trustee in monitoring
Defendants' compliance with their individual obligations under this
Final Judgment and under the Asset Preservation Stipulation and Order.
The Monitoring Trustee and any professionals and agents retained by the
Monitoring Trustee shall have full and complete access to the
personnel, books, records, and facilities relating to the Divestiture
Assets, subject to reasonable protection for trade secret or other
confidential research, development, or commercial information or any
applicable privileges. Defendants may not interfere with or impede the
Monitoring Trustee's accomplishment of its responsibilities.
G. After its appointment, the Monitoring Trustee must file monthly
reports with the United States and the Court setting forth the
Defendants' efforts to comply with their individual obligations under
this Final Judgment and under the Asset Preservation Stipulation and
Order. To the extent such reports contain information that the
Monitoring Trustee deems confidential, such reports shall not be filed
in the public docket of the Court.
H. The Monitoring Trustee shall serve until the divestiture of all
the Divestiture Assets is finalized pursuant to either Section 0 or
Section V of this Final Judgment and any agreement(s) for transitional
support services described in Section 0 herein have expired. If the
United States determines that the Monitoring Trustee has ceased to act
or failed to act diligently, the United States may appoint a substitute
Monitoring Trustee in the same manner as provided in this Section. The
Monitoring Trustee appointed pursuant to this Final
[[Page 20434]]
Judgment may be the same person or entity appointed as a Divestiture
Trustee pursuant to Section 0 of this Final Judgment.
X. Affidavits and Records
A. Within twenty calendar days of the filing of the Complaint in
this matter, and every thirty calendar days thereafter until the
divestitures have been completed under Section 0 or V, Defendants must
deliver to the United States and any Monitoring Trustee an affidavit as
to the fact and manner of its compliance with Section IV or V of this
Final Judgment. Each such affidavit must include the name, address, and
telephone number of each person who, during the preceding thirty
calendar days, made an offer to acquire, expressed an interest in
acquiring, entered into negotiations to acquire, or was contacted or
made an inquiry about acquiring, any interest in the Divestiture
Assets, and must describe in detail each contact with any such person
during that period. Each such affidavit must also include a description
of the efforts Defendants have taken to solicit buyers for the
Divestiture Assets, and to provide required information to prospective
Acquirers, including the limitations, if any, on such information.
Provided that the information set forth in the affidavit is true and
complete, any objection by the United States to information provided by
Defendants, including limitation on information, must be made within
fourteen calendar days of receipt of such affidavit.
B. Within twenty calendar days of the filing of the Complaint in
this matter, Defendants must deliver to the United States and any
Monitoring Trustee an affidavit that describes in reasonable detail all
actions that Defendants have taken and all steps that Defendants have
implemented on an ongoing basis to comply with Section 0 of this Final
Judgment. Defendants must deliver to the United States and any
Monitoring Trustee an affidavit describing any changes to the efforts
and actions outlined in Defendants' earlier affidavits filed pursuant
to this section within fifteen calendar days after the change is
implemented.
C. Defendants must keep all records of all efforts made to preserve
and divest the Divestiture Assets until one year after such
divestitures have been completed.
XI. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of determining whether the Final Judgment should be
modified or vacated, and subject to any legally recognized privilege,
from time to time authorized representatives of the United States
Department of Justice, including persons retained by the United States,
shall, upon written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division, and on
reasonable notice to Defendants, be permitted:
(1) Access during Defendants' office hours to inspect and copy, or
at the option of the United States, to require that Defendants provide
hard copy and electronic copies of, all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control of
Defendants, relating to any matters contained in this Final Judgment;
and
(2) To interview, either informally or on the record, Defendants'
officers, employees, or agents, who may have their individual counsel
present, regarding these matters. The interviews shall be subject to
the reasonable convenience of the interviewee and without restraint or
interference by Defendants.
B. Upon the written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division,
Defendants must submit written reports, or responses to written
interrogatories, under oath if requested, relating to any of the
matters contained in this Final Judgment.
C. The United States shall not divulge any information or documents
obtained by the means provided in this section to any person other than
an authorized representative of the executive branch of the United
States, which includes CMS, except in the course of legal proceedings
to which the United States is a party (including grand jury
proceedings), or for the purpose of securing compliance with this Final
Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by
Defendants to the United States, Defendants represent and identify in
writing the material in any such information or documents to which a
claim of protection may be asserted under Rule 26(c)(1)(G) of the
Federal Rules of Civil Procedure, and Defendants mark each pertinent
page of such material, ``Subject to claim of protection under Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure,'' then the United
States must give Defendants ten calendar days notice prior to divulging
such material in any legal proceeding (other than grand jury
proceedings).
XII. No Reacquisition
Defendants may not reacquire any part of the Divestiture Assets
during the term of this Final Judgment provided, however, that this
Final Judgment does not prohibit Defendants from offering Medicare
Advantage Plans in the ordinary course of business otherwise in
conformity with this Final Judgment.
XIII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIV. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall
expire ten years from the date of its entry.
XV. Public Interest Determination
The parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. 16, including making copies
available to the public of this Final Judgment, the Competitive Impact
Statement, and any comments thereon and the United States' responses to
comments. Based upon the record before the Court, which includes the
Competitive Impact Statement and any comments and response to comments
filed with the Court, entry of this Final Judgment is in the public
interest.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16.
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Date
United States District Judge
[FR Doc. 2012-8070 Filed 4-3-12; 8:45 am]
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