DOJ must continue review of CVS-Aetna during shutdown, judge orders

The Department of Justice must continue reviewing public comments and files related to CVS Health's $70 billion acquisition of Aetna despite a lapse in funds during the partial government shutdown, according to court documents.

Five things to know:

1. In a memorandum and order filed Jan. 11, U.S. District Judge Richard Leon responded to the Justice Department's request for a stay in court proceedings surrounding the merger due to a lack of appropriations.

2. In a Jan. 8 filing, the Justice Department's antitrust division said it won't meet a February deadline to return comments, as it "cannot work on its response to public comments at this time, and it will not be able to do so until funding is restored by Congress, unless otherwise ordered by the court."

3. Judge Leon denied the department's request and rebuked its argument. "To say the least, this pronouncement was surprising given the government's earlier arguments to me that slowing implementation of the CVS-Aetna merger could 'delay any efficiencies that might result from the transaction' and 'create uncertainty for customers, employers and shareholders,'" he wrote.

4. He continued: "In short, the government's internal, political squabble over funding is NO [emphasis in original] reason to postpone the congressionally mandated evaluation of the government's proposal to remedy the antitrust concerns allegedly raised by the merger's consummation!"

5. Judge Leon is tasked with completing certain procedures required by the Tunney Act, which won't be complete until the government responds to comments from the public and court. The Tunney Act is a federal law requiring the Justice Department to get a federal court's approval for merger settlements.

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