Merger trials: DOJ fires back at sanction request; UnitedHealth enters fray


The preparations for the Anthem-Cigna and Aetna-Humana merger trials are heating up as the Justice Department and the defendants seek to give their respective arguments an edge in court.

In July, the DOJ sued to block both deals on antitrust grounds, arguing that consolidation among four of the country’s five largest for-profit insurers would “lead to higher health insurance prices, reduced benefits, less innovation and worse service” for consumers. The cases will be tried separately, with the Anthem-Cigna trial slated to start Nov. 21 and the Aetna-Humana trial set to begin Dec. 5.

Here’s a rundown of the recent developments ahead of those trials:

  • The DOJ responded forcefully to Aetna and Humana’s request that the court sanction the government for what the companies say are delays in sending documents that the insurers have requested. Citing “serious and prolonged discovery misconduct,” Aetna and Humana asked the court to infer that the government views Medicare Advantage as part of the same product market as traditional Medicare, and preclude the DOJ from calling witnesses from the Centers for Medicare & Medicaid Services, among other sanctions. But the DOJ shot back saying that it made every effort to comply with the discovery requests, and said the defendants’ proposed sanctions are “nothing more than a ploy to shield themselves from evidence that original Medicare and Medicare Advantage are not part of the same relevant product market and that the merger is unlawful.”
  • In the Anthem-Cigna case, special master Richard Levie recommended that the court grant some parts the DOJ’s request that the companies turn over letters revealing the insurers have accused one another of breaching the merger contract. The DOJ had argued that the correspondence is “relevant to Anthem’s efficiencies defense and, as adversarial communications, fall outside the scope of the joint-defense privilege.” Levie generally agreed, pointing out that “neither Anthem nor Cigna has offered any evidence that the breach allegations were designed in any way to further the joint-defense effort.” Levie recommended the court compel Anthem and Cigna to enter some of the letters into evidence--but heavily redact them, a court filing shows.
  • Court filings from mid-September, meanwhile, show that UnitedHealth has become embroiled in its rivals’ legal fight to save their mergers. United had moved to prevent Aetna from obtaining its 2017 Medicare Advantage bid pricing tools from CMS, information it says is sensitive because it “details United’s competitive plans and expected profit for the upcoming contract year.” United argued that because it competes with Aetna and Humana, the requested information exposed United to “significant competitive harm while providing little, if any, incremental benefit to Aetna.” But the special master sided with Aetna, arguing that United failed to show that the release of the supposedly sensitive information “is likely to harm its competitive standing.”