Consistent with the Biden Administration’s whole-of-government approach to address perceived consolidation in a variety of industries, including in the healthcare industry, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division (collectively, the Agencies) are continuing to make good on their promise to increase scrutiny of mergers and acquisitions through newly proposed HSR rules and revised merger guidelines.
On Wednesday, July 20, 2016, the U.S. Department of Justice (DOJ) filed two lawsuits in the U.S. District Court for the District of Columbia, one, Cause 1:16-cv-01494, seeking to stop the proposed merger between Aetna and Humana (valued at $37 billion) and the other, Cause 1:16-cv-01493, seeking to stop the acquisition of Cigna by Anthem (valued at $54 billion).
Due diligence is often perceived as a mundane part of the mergers & acquisitions (M&A) process, but its importance in healthcare transactions is critical. Due diligence is one of the first steps of any transaction and involves a buyer undertaking an in-depth examination of the target to evaluate the business and uncover potential issues or liabilities. In the healthcare industry, diligence is especially important considering the heavy regulation of the industry, the unique areas of risk, and the significant liabilities that could be imposed upon a buyer if issues and liabilities are not identified before the transaction closes.