Anthem-Cigna Merger Trial Judge Gets the Moneyball Treatment

An American flag flies above a Cigna Corp. flag at the company's headquarters in Bloomfield, Connecticut. Photographer: Michael Nagle/Bloomberg
An American flag flies above a Cigna Corp. flag at the company’s headquarters in Bloomfield, Connecticut. Photographer: Michael Nagle/Bloomberg

With legal approval for a $48 billion mega-merger at stake, all eyes are on a Washington, D.C. federal judge who will rule on the U.S. government’s antitrust lawsuit seeking to block Anthem’s proposed acquisition of Cigna.

The combination, if approved, would create the biggest merger in the history of the American health-insurance industry.

The case, United States v. Anthem, Inc. et al., 16-cv-1493 (D.D.C. July 21, 2016), is being overseen by judge Amy Berman Jackson, a ‘76 Harvard University, ’79 Harvard Law School graduate who President Obama nominated to fill a vacant seat on the United States District Court for the District of Columbia in 2010.

Using Bloomberg Law Litigation Analytics, I looked at Judge Jackson’s track record on how she has ruled on antitrust cases in the past, how much her rulings are overturned on appeal, and how frequently Anthem’s lawyers have appeared before her.

Jackson began her legal career in 1979 as a clerk for The Honorable Harrison L. Winter of the United States Court of Appeals for the Fourth Circuit.  In the ensuing three decades, she served as an Assistant United States Attorney for the District of Columbia, worked in private practice as a litigator and as a legal commentator for Fox News, CNN, NBC and MSNBC.

Below are five key data points about her record:

  • Since joining the federal bench in 2011, Judge Jackson has presided over eight antitrust cases including the current Anthem/Cigna litigation, and three of which were ultimately transferred to another judge.

Some of the other cases brought by the Department of Justice included United States v. Unilever N.V. et al., 11-cv-00858 (D.D.C. May 6, 2011), United States v. General Electric Co., 15-cv-01460 (D.D.C. Dec. 21, 2015), and United States v. BBA Aviation PLC et al., 16-cv-00174 (D.D.C. Feb. 3, 2016).

In each of these cases, the acquisitions were permitted to proceed, following defendants’ agreement to divest certain assets.

The final case was Genese v. Visa Inc. et al., 11-cv-01838 (D.D.C. Oct. 18, 2011). This was a proposed class action alleging that credit card companies and banks conspired in price-fixing access fees. However, the proposed lead plaintiff, Justin Genese, voluntarily dismissed his claims in January 2012.

  • According to Bloomberg Law Litigation Analytics, the average length of time it takes Judge Jackson to bring an antitrust suit to completion is 98 days.  This is comparatively quicker than most other case types Judge Jackson has resolved while presiding.  For example, the 138 cases with Other Statutes listed as their Nature of Suit code took an average of 342 days, the 65 Employment cases lasted an average of 621 days, and the 61 FOIA cases took 500 days. 

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  • In the current Anthem case, Anthem is represented by White & Case LLP, Arnold & Porter LLP, Bass Berry & Sims PLC, and Nelson Mullins Riley & Scarborough LLP.  Of these firms, Arnold & Porter has appeared before Judge Jackson the most — eight times, including the current litigation — and three of the previous appearances were in antitrust suits.

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  • When ruling on motions to dismiss, Judge Jackson has displayed a tendency to grant them.

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In fact, she has granted motions to dismiss 72.6% of the time, has denied motions to dismiss 12.6% of the time, and has granted or denied in part 14.9% of the time.  This is out of 171 motions to dismiss since Judge Jackson joined the bench in 2011.

Judge Jackson has reviewed one motion to dismiss when antitrust and trade issues were at play and granted that motion in Nat’l ATM Council, Inc. v. Visa Inc., 922 F. Supp. 2d 73 (D.D.C. 2013).  In this case, plaintiffs alleged that Visa and MasterCard conspired to keep the access fees for their networks lower than those of other payment networks, effectively eliminating competition by those smaller ATM operators.  Judge Jackson granted defendants’ motion to dismiss for failure to state a claim, finding a lack of evidence for plaintiffs’ alleged injury and a lack of evidence of an agreement between defendants.

  • Following Judge Jackson’s dismissal, plaintiffs filed motions to amend or alter the complaints which she denied as futile and moot, respectively in Nat’l ATM Council, Inc. v. Visa, Inc., 7 F.Supp.3d 51 (D.D.C. 2013).  This order was subsequently vacated and the case was remanded in Osborn v. Visa Inc., 797 F.3d 1057 (D.C. Cir. 2015).  The Court of Appeals for the D.C. Circuit held that “the District Court erred in concluding that the Plaintiffs had failed to plead adequate facts to establish standing or the existence of a horizontal conspiracy to restrain trade”.  This decision was something of a rarity for Judge Jackson, as she has only been reversed 12 times out of 69 appeals attempts, or 16.9% of the time.

To put this in perspective, when attempts have been made to appeal Judge Jackson, her rulings have been affirmed 74.6% of the time since she assumed the bench in 2011.

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