- Lawyers for Aetna have accused the U.S. Department of Justice of “serious delay and misconduct” in the insurer's attempt to acquire Humana in a $37 billion deal.
- The legal teams for the companies say the DOJ has failed to provide requested access to approximately 1 million regulatory documents critical to the pair's defense of their merger against antitrust arguments.
- Aetna’s lawyers have filed a request for sanctions as a result of the alleged delay and misconduct
The latest fight comes after the two companies already sparred with the DOJ over the upcoming trial date, with much at stake due to the deal's year-end closing deadline. That ended with U.S. District Judge John Bates selecting a trial start of Dec. 5 with an expected ruling in January, which would require a deal extension, saying the insurers had not demonstrated any harm would come as a result of a December trial.
Now, Aetna and Humana say they have been thwarted in accessing CMS documents key to the debate over how to define Medicare Advantage - a major point on which the case rides. Aetna's lawyer John M. Majoras in the insurance giants' motion for sanctions that the government has used "unlawful and prejudicial search procedures."
"These procedures resulted in the production of massive volumes of irrelevant documents and prompted the government to withhold just as many documents on grounds that they might invoke the deliberative process privilege—despite the government’s admission that its attorneys had not reviewed, and would not review, those documents nor follow the other procedures required to assert the privilege," he said, adding, "The end result is that Defendants are now mere days away from the deadline for final witness lists with no ability to have taken meaningful, document-informed CMS depositions."
Aetna has argued that its footprint should not be viewed just in terms of the Medicare Advantage market, but also the traditional Medicare market, because participants can and "routinely do" switch between the products. Furthermore, Aetna argued, prices for each type of coverage constrain prices for the other, which makes them a single market. The court's ultimate decision on that definition will be watched across the industry.
In their request for sanctions against the DOJ, Aetna and Humana have asked that the government be precluded from calling CMS employees to testify at the trial, and from introducing certain CMS documents into evidence.