Given the size and scope of the proposed merger, the DOJ and the state plaintiffs allege that the merger would stifle competition by consolidating a substantial portion of the home health and hospice services market under United's control. Specifically, they contend that the merger would give United market shares of 30 percent or more in eight states, which makes the transaction presumptively anticompetitive under the 2023 Merger Guidelines. Recognizing that the proposed transaction presents some competitive issues, United and Amedisys have proposed to divest a variety of assets in several markets, but the DOJ denies that the divestiture would fix all of the merger’s alleged problems.
Central to the plaintiffs' challenge is the assertion that the merger would not only eliminate significant competition between two of the largest providers in the sector, but also fail to produce verifiable, merger-specific efficiencies capable of offsetting the anticompetitive effects likely to arise. Furthermore, the plaintiffs allege that the merger has the potential to adversely affect skilled nurses, who are key providers of home health and hospice services. By eliminating a major competitor in the employment market for these providers, the plaintiffs allege that the merger could stagnate or lower wages and adversely affect employment conditions, impacting hundreds of labor markets across the country. According to the plaintiffs, the merger would also increase costs for elderly patients reliant on health and hospice care, bringing to the fore the broader issue of healthcare affordability and access.
As noted above, the complaint also alleges that Amedisys violated the HSR Act, which requires the production of certain information to the DOJ and FTC. The DOJ asserts that in December 2023, as part of the proposed acquisition, Amedisys knowingly certified that its Second Request submission complied with the HSR Act when the submission was incomplete and omitted a statement identifying what was missing. The DOJ alleges that Amedisys attempted to fix the problems with its submission only after the DOJ discovered them and notified Amedisys, which eventually produced over 2.5 million additional documents, including emails, hard copy documents, and text messages. The DOJ is therefore seeking civil penalties that could be as high as $51,744 per day for the time period from December 18, 2023, until at least August 26, 2024, when Amedisys submitted its second certification governing the materials produced in response to the DOJ’s Second Request. This is a notable shift from past merger investigations, where the DOJ pushed out the HSR clock with new productions instead of seeking civil monetary penalties.
