Aetna, Anthem could get to trial faster after new judge takes over one antitrust case

Anthem may get its wish for a ruling by year's end in the antitrust case against its $48 billion acquisition with Cigna, as a new judge will preside over the case, potentially speeding up the trial process for the contested Aetna-Humana deal as well.

The insurers had both asked to go trial more quickly than the February 2017 start date the U.S. Department of Justice wanted. Aetna requested a trial beginning in October, citing a December 31 deadline to close a deal with Humana, while Anthem wanted a ruling by December 31, saying it need 120 days to get final approvals from state regulators before its own closing deadline of April 30, 2017.

U.S. District Judge John Bates decided August 5 he’ll keep the Aetna-Humana case, while the suit against Anthem and Cigna would be assigned to another judge.  

“While the Court declines to embrace the specifics of defendants’ scheduling proposals, it acknowledges their need for expedition and is inclined to accommodate their contractual deadlines to the extent reasonable. But doing so would require a decision on the merits in Aetna’s case before the year’s end and another in Anthem’s case not long thereafter,” Bates wrote. “Given the complexity and importance of these cases, the Court cannot feasibly try and decide both in that timeframe.”

Bates added that he took the insurers’ different contractual deadlines into account when considering which case to keep, writing “it is apparent that Aetna’s case must proceed on the shorter timeline,” though he didn’t say whether he would agree to its request for an October trial date.

Taking over the Anthem case will be Judge Amy Berman Jackson, a 2011 appointee of President Barack Obama to the U.S. District Court for the District of Columbia.

Her track record on antitrust cases isn’t as large as Bates’, whose presence had been seen as an advantage to the insurers, since he had ruled against the federal government in a 2004 antitrust case, United States v. Arch Coal, Inc,. Jackson has sided with the defendants in an antitrust case before, dismissing a lawsuit from ATM operators against Visa and MasterCard in 2013, but she’s more well-known for her ruling upholding the Affordable Care Act’s birth control mandate, which was later vacated along with several related cases consolidated under Zurbik v. Burwell.

The two judges could lock in a firm schedule for both cases this week. Bates has ordered attorneys for Aetna and the federal government to be prepared to discuss scheduling at a August 10 status hearing. Jackson has asked for a scheduling conference in the Anthem case on August 12, requesting attorneys on both sides identify any dates they may be unavailable in December 2016 and January 2017, though a January trial would be later than what Anthem had requested.