Several States Contemplating Lawsuits to Prevent Express-Scripts/Medco Merger

by Dan Brecher

Several states, including New York, are said to be contemplating legal action to prevent Express Scripts Inc.’s proposed acquisition of Medco Health Solutions Inc. The $29.1 billion deal would create the largest U.S. pharmacy-benefits manager.

Section 7 of the Clayton Act specifically prohibits mergers and acquisitions when the effect “may be substantially to lessen competition, or to tend to create a monopoly.” The key question is whether the proposed merger is likely to create or enhance market power or facilitate its exercise. Issues like higher prices, fewer or lower-quality goods or services, or less innovation are often considered as well...