Email, The Gift That Keeps on Giving

U.S. District Judge John D. Bates spilled a considerable amount of ink in yesterday's Memorandum Opinion enjoining the Aetna-Humana health insurance merger.  Even though antitrust opinions are not known for their brevity, the roughly thirteen pages devoted to discussing whether Aetna's announced  withdrawal from the complaint counties about three weeks after the date of the filing of the government complaint was  motivated by a desire to  improve its litigation position or as part of ordinary business decision making is pretty detailed.  Because the announcement of withdrawal implicated actions that might be interpreted as consistent with business interest (leaving the exchange market in Missouri, for example, where Aetna was  distressed over years of non-profitability) or might be interpreted as inconsistent with business interest (leaving the exchange market in Florida, for example,  where Aetna was apparently profitable).

Yes, it was the  internal documents of Aetna management discussing motivation for withdrawal from the profitable Florida exchange market or, even, in refusing to discuss the Florida decision while laying out the business case analysis behind withdrawal from the exchange markets in other locales that animated Judge Bates' opinion.  It is interesting to find internal Aetna management correspondence (from Steven Kelmar, Aetna's Executive VP and Chief of Government Affairs)  memorializing "Most of this is a business decision except where DOJ has been explicit about the exchange markets. There we have no choice." 

Still, my favorite part involved hints at what was sometimes unsaid in emails.  When Aetna's Florida Market President, Christopher Ciano, received word of the decision to exit the Florida exchange market (he was not part of the decision making group), his serial emails lamenting the decision, pointing out that Florida's exchange market was profitable for Aetna, and stating that he just couldn't make sense of the decision are powerful because of his apparent ignorance or because of what wasn't said.   Christopher Ciano was, eventually,  directed to stop discussing this matter in emails and to take the conversation to the telephone.

That's the thing about email correspondents — they often know, on some level, that the messages may be brought to light in some way but they can't always seem to stop.  I wonder if, because email can be so conversational in tone, they forget that they are creating a written record.

x-posted at Prawsblawg


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