Court Official Recommends Anthem, Cigna Share Internal Emails With DOJ Lawyers

Oct. 07--Anthem and Cigna could be required to release several documents and emails between the two insurance companies about a proposed merger, according to a recommendation filed by a court official. The documents might reveal arguments between the companies and provide details into whether each company is living up to the terms of the merger.

Special master Richard Levie, a federal court official charged with settling disputes between lawyers representing the Department of Justice and the insurance companies, recommended to a federal judge that 12 documents and emails and parts of 13 others be released.

The DOJ sued in July to block a proposed $48 billion purchase of Bloomfield-based Cigna by Anthem. The antitrust lawsuit, filed by the DOJ over concerns the deal could cause health care costs to rise, is expected to go to trial in November.

Anthem argued that none of the documents should be disclosed because they were irrelevant to how Anthem CEO Joseph Swedish and other top managers will work to achieve savings after Cigna becomes part of Anthem.

Levie said that since Cigna CEO David Cordani will be president and chief operating officer of the combined company, if there is "hostility between these individuals, such hostility may hamper these individuals' ability to work together to implement the contemplated efficiencies."

Levie added that "Anthem itself has placed the synergies into issue in this case," since the company argues that savings will occur once the deal is completed.

He said that Anthem seems to "suggest that the newly merged company will be able to overcome or, perhaps, overrule, any disagreements in order to obtain post-merger efficiencies. That may be the case." But, he said, if the judge agrees, she can discount that evidence.

Anthem will owe Cigna nearly $1.9 billion if the federal judge blocks the merger on antitrust grounds -- unless it can prove Cigna didn't live up to its obligations to defend the merger.

According to Levie, most of the documents were written by Cigna in-house counsel Nicole Jones, Anthem in-house counsel Thomas Zielinksi, or outside lawyers for the two companies.

In Levie's recommendation he noted that in some cases the whole email was about the breach of contract allegation, and so the whole piece should be sent to the DOJ. He wrote: "a reasonable reading of this document is that it concerns one defendant's preparations to defend itself against claims by the other defendant."

Levie also said the DOJ lawyers overreached in requesting 29 of Cigna's documents and 11 of Anthem's. Those emails and documents, he said, addressed joint strategy about the merger, and therefore are protected.

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