U.S. District Judge Mark Cohen. (Photo: John Disney/ALM)
The use of song lyrics in judicial opinions is nothing new. A law professor’s 2008 study found dozens of Bob Dylan citations, while the Rolling Stones, Simon & Garfunkel and even Carly Simon have been quoted by musically inspired jurists.
Another legal lyricist emerged last month when Grammy Award-winning singer-songwriter Jim Lauderdale, whose works have been recorded by Elvis Costello, Patti Loveless, George Strait and The Dixie Chicks, notched a new cover credit when he was quoted by U.S. District Judge Mark Cohen of the Northern District of Georgia.
Ruling on summary judgment in favor of United Healthcare in a suit brought by the insurance trust for Delta Air Lines retirees, Cohen took a country turn.
Cohen began his order scrapping the “mind-boggling” contract dispute quoting Lauderdale’s “I Thought We Had a Deal.”
“Well I thought we had a deal that was supposed to work out right. Just imagine how I feel when I go turn out the light,” he wrote. “Now you say it wasn’t real, didn’t think that was your style. Well I thought we had a deal like the one we had a while.”
“Although this case might be appropriate fodder for a country song,” Cohen followed, “it falls woefully short as a primer of how to negotiate a multi-million-dollar contract.”
The dispute between the Insurance Trust for Delta Retirees and United, which provided prescription drug coverage for the trust in 2013 and 2014, centered on the trust’s claim that it was owed more than $5.5 million the insurer received in drug manufacturer rebates.
In 2015, the trust sued United, saying it agreed in 2012 to offer the same terms for refunds and rebates as provided by the trust’s prior carriers, Medco and The Hartford.
The Medco contract credited the trust for any refunds, including drug rebates, as well as other refunds required under Medicare regulations.
But that provision was never committed to writing between the trust and United contract. United began servicing the trust’s members before a contract was ever signed, and did so for nearly two years while the parties continued to wrangle over terms.
During a hearing on dueling summary judgment motions in May, Cohen said the arrangement was “bizarre” and expressed amazement that “a multimillion-dollar agreement that has no real agreement can go forward for this amount of time.”
In ruling for United on Aug. 17, Cohen noted the insurer’s proposals for the contract stipulated it would retain any credits, subsidies or rebates from drug manufacturers and Medicare, even though “the very next page” laid out a scenario under which premium refunds could be paid.
The contract was ambiguous, Cohen wrote, and while testimony showed the trust was seeking a “similar” arrangement as the one it had with Medco, “the court cannot conclude that a request for a ‘similar’ provision suffices to convey an intent to deduct rebates” from the trusts payments.
In any case, he wrote, the trust ended up with a comparable plan for a lower cost.
“In reviewing the entirety of the record in the case, the court concludes that the parties got exactly what they bargained for,” Cohen wrote.
“The truth of the matter is that the trust was looking for a better deal and got one,” Cohen wrote. “A determination that a deduction for rebates was a necessary component of the agreement not only belies the facts of the record but would also provide the trust with a windfall that was never contemplated.”
Cohen then returned to his theme that “the lack of communication between the parties for almost two years on an issue which the trust now believes was crucial to the formation of their agreement is incredible. And, notwithstanding the millions of dollars at stake, the fact that the parties proceeded over that period of time with no formal contract, opting to rely on the terms of a poorly drafted [request for proposal], is mind-boggling.”
The Insurance Trust is represented by Roger Sumrall, Brian Truelock, and Taylor Owens of Bendin, Sumrall & Ladner, who did not respond to a request for comment.
United Healthcare is represented by William Jordan and Ankith Kamaraju of Alston & Bird. Jordan said he did not have permission to discuss the case.