The Moneyball Breakdown of Aetna-Humana Appeal Chances 

Photo by Luke Sharrett/ Bloomberg

Lawyers considering an appeal of Monday’s ruling that quashed Aetna Inc.’s proposed $37 billion merger with Humana Inc. should think twice.

To do so, Aetna lawyers would file an appeal with the United States Court of Appeals for the District of Columbia Circuit. But making a successful appeal unlikely, the judge who ruled on the case — John D. Bates, senior U.S. District Judge for the District of Columbia — has a pretty good record when it comes to the stickiness of his rulings.

I looked at Bates’ history in Bloomberg Law’s Litigation Analytics and found that when Bates’ decisions have been appealed throughout his tenure on the bench since 2001, they have been affirmed 79.2 percent of the time.

To put that into some context, 79.2 percent is a slightly better figure than Bates’s counterpart, U.S. District Judge Amy Berman Jackson, who is overseeing the Anthem-Cigna merger trial in the Court for the District of Columbia. Jackson’s opinions have been affirmed on appeal 74.6 percent of the time. Meanwhile, the opinions of another senior judge in the D.C. Circuit, Judge Paul Friedman, have been affirmed on appeal 71.4 percent of the time, according to Litigation Analytics.

However, I should note that Bates’s opinions in the antitrust field have not been appealed at all, so it’s totally uncharted ground.

We do have some information about antitrust cases before Bates, though. According to Bloomberg Law data, antitrust cases typically take 80 days to resolve from beginning to end. The Aetna-Humana suit — which began in July of last year — is an outlier, perhaps not surprisingly given its scope. Bates’s antitrust ruling not only thwarted Aetna and Humana’s plans, but it also diminished the likelihood of Judge Amy Berman Jackson approving the proposed Anthem-Cigna merger. Were Judge Jackson to rule in favor of the Anthem-Cigna merger, it would completely alter the health insurance landscape in favor of the new mega-insurer. Additionally, Judge Jackson will likely find it difficult to ignore Bates’ ruling, given the lawsuits’ similarities.

Without further ado, below is a visual from Bloomberg Law that drills down his appeal record from federal court opinions.

bates-appeals

 

In other info about Bates, here’s a quick bio:

Judge Bates was appointed by President George W. Bush in December 2001 and took senior status in October 2014.

Prior to his time on the bench, Judge Bates served as a Lieutenant in the U.S. Army, a law clerk for Hon. Roszel C. Thomsen in the United States District Court of Maryland in the 1970s, and later worked in both private and government practice.

While in private practice, he was associated with the law firms Steptoe & Johnson LLP and Miller & Chevalier.

From 1980 and into the 1990s, his government roles included a stint as an Assistant US Attorney and the Chief of the Civil Division of the United States Attorney’s Office. Judge Bates gained some notoriety while serving as Deputy Independent Counsel from 1995-1997, where he reported to Kenneth Starr and participated in the investigations of President Bill Clinton.

He received a B.A. from Wesleyan University in 1968 and a J.D. from the University of Maryland Francis King Carey School of Law in 1976.

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