U.S. Department of Justice (Diego M. Radzinschi)
U.S. Justice Department lawyers, repudiating the misconduct allegations that Aetna Inc. and Humana Inc. raised in the government’s blockbuster antitrust suit, accused attorneys for the health insurers of a “transparent” push to unravel the case before it’s ever presented to a judge.
Trial lawyers for Aetna and Humana last week called for sanctions that would prevent Justice Department lawyers from calling employees from the Centers for Medicare and Medicaid Services as witnesses or introducing documents from the health agency. Aetna, represented by Jones Day, and Humana’s team from Crowell & Moring and O’Melveny & Myers contend the Justice Department’s “serious delay and misconduct” in the discovery process warrants punishment.
The government responded Saturday in a court filing that marked the vitriol of one of the largest antitrust prosecutions in recent memory. The case against Aetna was one of two major actions the Justice Department filed simultaneously in July in Washington. The government is also fighting to block Anthem Inc.’s proposed $54 billion acquisition of Cigna Corp. Main Justice officials have called the deals, involving four of the nation’s five largest health insurers, “unprecedented in their scale and in their scope.”
The discovery dispute in the Aetna case is playing out in front of retired Judge Richard Levie, who’s tasked with deciding what information, and how much, will be allowed at trial, which is set for December in front of U.S. District Judge John Bates. Facing a year-end deadline to close their deal, Aetna and Humana pushed in August for an expedited trial schedule.
The Justice Department said in its latest court papers that it has tried to accommodate the “broad and extremely burdensome discovery demand upon” from Aetna and Humana on the U.S. Department of Health and Human Services.
“Although defendants spend 39 pages attempting to concoct a narrative that supports their claims of ‘deliberate’ misconduct and the resulting prejudice, defendants’ rhetoric cannot mask the overwhelming evidence of the United States’ good faith conduct throughout the extraordinarily accelerated discovery process or the fact that defendants’ claimed prejudice is illusory,” the Justice Department argued.
The government called the request for sanctions “a transparent attempt to derail the United States’ merger challenge before the District Court ever hears from a single witness or reviews any evidence.”
John Majoras, a Jones Day partner leading the defense of Aetna’s deal, did not immediately respond to a request for comment Monday.
In the request for sanctions, Aetna and Humana called on the court to infer that “CMS views Medicare Advantage as part of the same product market as Original Medicare.” If the court adopted that view, the government’s case would “largely—if not entirely— collapse,” the companies argued.
The government pointed to that language Saturday as evidence that Aetna and Humana’s intentions were not pure.
“Defendants should not be permitted to exploit the rapidity of the discovery process that they demanded or advance specious claims of misconduct and harm as supposed bases for sanctions so broad, unwarranted, and potentially preclusive of the public interests this suit was brought to vindicate,” the government argued.