EFiled: Feb 17 2017 04:15PM EST
Transaction ID 60229242
Case No. 2017-0114-JTL

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ANTHEM, INC.
Plaintiff,
v.
CIGNA CORPORATION,
Defendant.

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Case No. 2017-0114-JTL
PUBLIC VERSION
E-Filed February 17, 2017

VERIFIED COMPLAINT
Plaintiff Anthem, Inc. (“Anthem”), by and through its undersigned attorneys,
for its Complaint against Defendant Cigna Corporation (“Cigna”), alleges as
follows:
NATURE OF THE ACTION
1.

On July 23, 2015, Anthem and Cigna entered into an Agreement and Plan of

Merger (the “Agreement” and the “Merger Agreement”) 1 to create a combined
company that would transform health care for consumers by enhancing health care
access, quality and affordability (the “Merger”).

At the time of signing the

Agreement, Anthem agreed to pay consideration of over $54 billion, thereby
providing Cigna’s shareholders with a premium of 38.4%, or $13.4 billion, to the
unaffected stock price as of May 28, 2015. Approximately 99% of the votes cast
1

A true and correct copy of the Merger Agreement is attached as Exhibit A.
Unless defined herein, all capitalized terms in this Verified Complaint have the
meanings ascribed to them in the Merger Agreement.

 by Cigna shareholders were voted in favor of the Merger. This action is brought
(i) to prevent Cigna from wrongfully terminating the Merger Agreement, thereby
destroying the enormous value of the transformative Merger to Anthem and
consumers, and eliminating approximately $13 billion in deal premium to Cigna’s
shareholders, and (ii) for damages.
A.

Anthem Has Extended The Termination Date

2.

Under the Merger Agreement, the initial Termination Date (defined

below) was January 31, 2017. Given the time it could take to obtain regulatory
approval or judicial clearance, the Merger Agreement provided each party a right
unilaterally to extend the Termination Date through April 30, 2017 if all conditions
to Closing had been satisfied, or were capable of being satisfied at Closing, other
than the required regulatory and judicial approvals. On January 18, 2017, those
conditions were met, and Anthem delivered to Cigna a written notice extending the
Termination Date through April 30, 2017.
B.

Cigna’s Purported Termination Is Invalid

3.

On July 21, 2016, the United States Department of Justice (the

“DOJ”) sued to block the Merger (the “DOJ Lawsuit”) in the United States District
Court for the District of Columbia (the “District Court”). On February 8, 2017, the
District Court issued an order enjoining the Merger. The Merger Agreement
requires the Parties to appeal an adverse order, and Anthem immediately filed its
2

 notice of appeal on February 9, 2017 and a motion to expedite the appeal to the
United States Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) on February 13, 2017. Although the Merger Agreement requires Cigna
to appeal, Cigna instead sent a notice on February 14, 2017 wrongfully purporting
to terminate the Merger Agreement, timed to prejudice Anthem’s motion to
expedite the appeal.
4.

Cigna’s termination is invalid because Anthem extended the

Termination Date through April 30, 2017.

Notably, Cigna had previously

acknowledged that the Merger Agreement could, and would, be extended through
April 30, 2017 when the trial schedule was set for the DOJ Lawsuit challenging the
Merger. Indeed, the District Court set the trial schedule based on an April 30
Termination Date, and then stated in its recent decision that the Parties “are bound
by their merger agreement through April 30, 2017.”
5.

In addition to the fact that Anthem extended the Termination Date

through April 30, 2017, Cigna has no right to terminate. The Merger Agreement
provides that no Party may terminate if it “has failed to perform fully its
obligations under the Agreement in any manner that shall have proximately caused
or resulted in the failure of the Merger to have been consummated by the
Termination Date.” (Ex. A at § 7.1(b)) Cigna has repeatedly breached the Merger
Agreement, and such breaches proximately caused or resulted in the failure of the
3

 Merger to be consummated by January 31, 2017.
C.

Cigna Sabotaged The Merger
1.

6.

Cigna’s Senior Management Sought To Avoid The Merger
From The Outset

Notwithstanding the enormous benefit to its shareholders, Cigna’s

board and senior management were not willing to support a merger unless they
could maintain their employment positions.

Rather than working to unlock

shareholder value, Cigna’s Chief Executive Officer, David Cordani, and Cigna’s
Board of Directors tied their support of a merger to their own entrenchment. They
refused to negotiate unless, among other demands, Mr. Cordani was appointed as
CEO of the combined company and Cigna was given an equal number of seats on
the board of the combined company. When Anthem rejected Cigna’s governance
demands, Mr. Cordani demanded that he be guaranteed the position of Chief
Executive Officer within two years. And even when Anthem raised its offer price
to the amount sought by Cigna, Cigna’s board and senior management refused to
engage, focusing on their own employment positions, rather than shareholder
value.
7.

Cigna’s senior management maintained their refusal to engage until

Anthem bypassed them by publicly announcing the terms of its offer, causing
significant pressure from Cigna’s shareholders.

4

Even then, Cigna’s senior

 management agreed to the Merger only after negotiating senior positions and board
seats for themselves at the surviving Anthem. Mr. Cordani and Cigna’s Board of
Directors negotiated (i) for Mr. Cordani to be the President and Chief Operating
Officer, and (ii) for five board seats for Cigna directors. Anthem agreed to a $1.85
billion reverse break-up fee under certain circumstances which, unfortunately,
came to serve as further incentive for Cigna to avoid the Merger.
8.

Cigna’s senior management’s efforts to avoid the Merger escalated in

January 2016 when Mr. Cordani met with Anthem’s CEO, Joseph Swedish. Mr.
Swedish stated that Mr. Cordani’s responsibilities as President and COO should
focus on the Commercial line of business, the biggest segment of the combined
company with a P&L to manage of well over $50 billion. Furious that he was not
being provided all of the powers that he desired, Mr. Cordani walked out of the
meeting and never again would meet with Mr. Swedish one-on-one. Cigna’s
Board of Directors then complained about Mr. Cordani’s role as “not consistent
with our Agreement and not acceptable to our board of directors” and that it “must
be addressed” to obtain “a successful and mutually-beneficial partnership.”
Cigna’s board and senior management reverted to their previous self-interested
position that the “governance structure” they wanted “was and remains a key
component of the strategic rationale for the deal.”

5

 9.

Notwithstanding the fact that Mr. Cordani was going to have

responsibility over the largest segment of the combined company’s business, in
order to resolve Mr. Cordani’s dissatisfaction and try to keep the Merger on course,
Anthem agreed to the broader responsibilities he wanted.

Mr. Cordani,

nonetheless, disengaged from the Merger process and embarked on an
unprecedented campaign to sabotage the Merger and procure a $1.85 billion
reverse break-up fee because Mr. Cordani wanted to remain in charge of Cigna and
to take the break fee to grow a company he runs.
2.
10.

Cigna Has Repeatedly Breached The Merger Agreement

The Merger Agreement includes a very rigorous reasonable best

efforts covenant which includes a “hell or high water” requirement that the Parties
“tak[e] any and all actions necessary” to avoid antitrust impediments. (Ex. A at §
5.3(b)) Senior management and board members at Cigna, instead, dedicated their
efforts to sabotaging the Merger in order to preserve their employment positions
and capture the $1.85 billion reverse termination fee. Remarkably, Cigna worked
to create a false record that it was committed to the Merger and that it was Anthem
that failed to use reasonable best efforts to obtain antitrust clearance and close the
Merger, but the record here is clear. Anthem initiated the Merger, defended it, and
is now suing to maintain it. Cigna, on the other hand, resisted the Merger from the

6

 outset, did not defend it (indeed attacked it), and is now trying wrongfully to
terminate it.
11.

Anthem’s interest in consummating the Merger, and Cigna’s senior

management’s interest in avoiding it, are also demonstrated by Anthem’s intense
efforts to obtain regulatory clearance, where Anthem incurred over $520 million in
advisor, attorney, consultant and bank commitment fees to clear the Merger, and
Cigna’s matching efforts to sabotage that goal:
(i)

Anthem prepared, finalized and submitted to the DOJ Antitrust Division
22 substantive white papers in support of the Merger (after January 2016,
Cigna refused to provide any meaningful assistance);

(ii)

Anthem obtained written statements of support and declarations from its
customers supporting the Merger (Cigna barred Anthem from seeking
support from Cigna-only customers);

(iii)

Anthem tirelessly pursued integration efforts to identify synergies and
efficiencies, a key defense to the DOJ action (Cigna’s senior
management blocked work on integration);

(iv)

Anthem pursued settlement with the DOJ during the DOJ Investigation
(defined below) and identified viable buyers to divest assets to address
concerns raised by the DOJ (Cigna foreclosed any settlement opportunity
by refusing to sign customary non-disclosure agreements with buyers or
provide them with necessary due diligence);

(v)

Anthem released a public statement in response to the DOJ Lawsuit that
Anthem is fully committed to defending the Merger (Cigna refused to
join Anthem’s press release and instead issued a separate press release
questioning whether the Merger could close at all);

(vi)

Anthem actively pursued settlement opportunities with the DOJ during
the DOJ Lawsuit (Cigna’s senior management refused to assist or agree
to Anthem’s efforts to pursue settlement with the DOJ);
7

 (vii) Anthem submitted 10 expert reports in the DOJ Lawsuit (Cigna did not
even comment on any expert reports);
(viii) Anthem took and defended over 100 depositions (Cigna posed no
questions to nearly all of the witnesses, and asked limited, and unhelpful,
questions to 3 witnesses to undermine Anthem’s defense of the Merger);
(ix)

Anthem took the lead for 20 days of trial efforts (Cigna failed to crossexamine a single witness supporting the DOJ and, instead, engaged in the
truly extraordinary act of cross-examining Anthem’s witnesses
supporting the Merger, and had its CEO provide certain testimony that
supported the DOJ’s positions);

(x)

Anthem drafted and finalized over 300 pages of trial briefing in support
of the Merger (Cigna refused to comment or sign Anthem’s pre-trial
brief, proposed findings of fact or conclusions of law or otherwise submit
any of their own in support of the Merger); and

(xi)

Anthem made comprehensive opening statements and closing arguments
in support of the Merger (Cigna made closing comments to undermine
the Merger).

12.

As the Wall Street Journal reported, “[d]uring trial proceedings that

began in November, Anthem mounted a legal defense of the merger singlehandedly. Cigna lawyers said very little during the proceedings, and when they
did, it usually didn’t help Anthem’s position.” Anna Wilde Mathews & Brent
Kendall, Anthem to Appeal Decision Against Cigna Deal: Discord Between the
Two Health Insurers Makes Future of Merger Uncertain, Wall St. J., Feb. 9, 2017.
Other media outlets accurately predicted that “Cigna’s antics might . . . be the
merger’s undoing” and reported that Cigna’s “lack of enthusiasm about its $54
billion Merger with rival Anthem Inc. has given the U.S. Department of Justice a

8

 leg up in an ongoing trial in D.C. federal court,” that merging partners are
normally expected to be “cheerleaders for each other,” but Cigna’s behavior was
“extremely unusual” and “[t]o put it in certain vernacular, if I were Anthem, I
would be pissed out of my mind.” Jimmy Hoover, Anthem, Cigna Discord Could
Give DOJ Edge In Merger Trial, Law360, Dec. 21, 2016.
13.

Cigna’s efforts to avoid the Merger were successful. On February 8,

2017, the District Court issued a memorandum opinion (the “Opinion,” or “Op.”) 2
enjoining the Merger citing as “the elephant in the courtroom” the fact that rather
than supporting the Merger, as required, Cigna was fighting it. (Op. at 9 (emphasis
added)) The District Court found that the DOJ “is not the only party raising
questions about Anthem’s characterization of the outcome of the merger: one of
the two merging parties [Cigna] is also actively warning against it.”

(Id.

(emphasis added))

(Id. at 9, 119 (emphasis added)) As the national media reported, “Cigna
sabotaged its own merger” and a “big part of the decision to block the case” was
the fact that “Cigna was actively fighting the merger.” Bob Bryan, “The Elephant
in the Courtroom”: A Federal Judge Says Cigna Sabotaged Its Own Merger That
2

The Opinion is attached hereto as Exhibit B.
9

 Would’ve Created Largest U.S. Health Insurer, Business Insider, Feb. 9, 2017
(emphasis added).
14.

Notwithstanding Cigna’s efforts to avoid the Merger, Anthem

believes that the District Court’s ruling is erroneous.

Additionally, Anthem

believes that there is a path forward involving outreach and potential settlement
with the DOJ under the new Administration because (i) there is a new Attorney
General and there soon will be a new Assistant Attorney General with
responsibility for overseeing the Antitrust Division, and (ii) a combined AnthemCigna in all 50 states will benefit consumers and employers in the form of lower
medical costs and improved product offerings at a time when the future of the
Affordable Care Act is undetermined.

So, there are still very meaningful

opportunities to consummate the Merger and deliver enormous value to Anthem,
Cigna, their respective shareholders, consumers and employers.
D.

Anthem Cannot Consummate The Merger Without
Cigna’s Assistance

15.

Anthem, however, cannot consummate the Merger without Cigna’s

compliance with its obligations under the Merger Agreement because Anthem
cannot obtain regulatory approvals or settle with the DOJ without Cigna’s
assistance. Cigna is the only party able to provide certain necessary information to
obtain such approvals or facilitate a settlement with the DOJ.

10

Additionally,

 Cigna’s

wrongful

termination

will

adversely

impact

Anthem’s

appeal.

Consequently, if Cigna is not enjoined from terminating the Merger Agreement
and required to perform its obligations thereunder going forward, then the Merger
will fail.
PARTIES
16.

Plaintiff Anthem, Inc. is one of the nation’s leading health benefits

companies with more than 39.9 million members enrolled in its family of health
plans. It is an Indiana corporation with its principal place of business at 120
Monument Circle, Indianapolis, Indiana, 46204.
17.

Defendant Cigna Corporation is a health benefits company serving

approximately 15.2 million members.

It is a Delaware corporation with its

principal place of business at 900 Cottage Grove Road, Bloomfield, Connecticut,
06002.
JURISDICTION AND VENUE
18.

This Court has jurisdiction over the subject matter of this action

pursuant to (i) Del. Code Ann. tit. 6 § 2708(b), which grants the courts of Delaware
jurisdiction over actions on contracts, such as the Merger Agreement, in which the
parties have specified that Delaware law governs (see Ex. A at § 8.6(a)); (ii) Del.
Code Ann. tit. 8 § 111(a)(6), which grants the Court of Chancery jurisdiction over
“[a]ny civil action to interpret, apply, enforce or determine the validity of the
11

 provisions of . . . [a]ny agreement . . . of merger” governed by the merger
provisions of the DGCL, as is the Merger Agreement; and (iii) 10 Del. C. § 341,
which gives the Court of Chancery jurisdiction “to hear and determine all matters
and causes in equity.”
19.

Personal jurisdiction is proper in this Court because (i) Defendant

Cigna is a Delaware corporation, and (ii) Anthem and Cigna agreed in Section 8.11
of the Merger Agreement that the courts of Delaware shall have exclusive
jurisdiction over any dispute with respect to the Merger Agreement.
20.

Venue is proper in the Court of Chancery because Cigna is

incorporated here, and Anthem and Cigna agreed to submit to the exclusive
jurisdiction of this Court for any action “with respect to this Agreement.” (See Ex.
A at § 8.11)
FACTUAL ALLEGATIONS
A.

The Benefits Of The Transformative Merger
21.

A combination of Anthem and Cigna would be transformative in the

healthcare industry. Each of the Parties has unique and complementary strengths,
and the combination of the two offers a comprehensive range of health benefits
products to a full range of consumers, including individuals, employers, and state
and federal governments.

12

 1.
22.

The Benefits Of The Merger To Anthem

Through the Merger, Anthem would gain diversification and growth

covering approximately 55 million medical members with well positioned
commercial, government, consumer, and specialty businesses, and a marketleading international franchise, whereas Anthem currently only operates as an
independent licensee of the Blue Cross and Blue Shield Association (“BCBSA”) in
fourteen states and serves specialty plan members in other states. Anthem already
focuses intently on meeting client needs through innovation, but merging with
Cigna would enhance Anthem’s ability to bring even more innovative solutions to
clients by adding scale and Cigna’s well-regarded products to its portfolio. Indeed,
the Merger will create a unique company with unique products that combines the
best aspects of Anthem’s and Cigna’s programs to their customers in the form of
new, improved products that combine Anthem’s discount advantage with Cigna’s
customer-facing product components that Cigna customers tend to find most
attractive. Thus, the complementary nature of the two companies would allow
Anthem to leverage the deep global health care knowledge, local market talent, and
expertise of both organizations to ensure that consumers have access to affordable
and personalized solutions across diverse life and health stages.

13

 2.
23.

The Benefits Of The Merger To Cigna’s Shareholders

Under the Merger Agreement, the total consideration to be received

by Cigna’s shareholders is approximately $54.2 billion, a 38.4% premium to
Cigna’s unaffected stock price on May 28, 2015. Termination of the Merger
Agreement would eliminate approximately $13 billion 3 of value to Cigna
shareholders.

Moreover, approximately 45% of the consideration to Cigna

shareholders is common stock of Anthem, so Cigna shareholders also would lose
the ability to participate in the upside of the combined company.
3.
24.

The Benefits Of The Merger To Consumers

The Merger would also benefit the public by creating efficiencies that

will generate $2.4 billion in medical cost savings, the vast majority of which
ultimately would be passed through to consumers. Anthem expects to be able to
extend to Cigna customers the lower prices that Anthem’s customers receive from
hospitals and doctors.
25.

The Merger also would provide healthcare access to a significant

number of uninsured individuals by expanding the merged company into new
Affordable Care Act exchanges in nine states, where neither Anthem nor Cigna
currently offers individual coverages on-exchange. The combined company also

3

The precise amount varies based on Cigna’s stock price at a given time.
14

 would offer the prospect of expanded provider collaboration, enhanced
affordability and cost of care management capabilities, and superior innovations.
B.

Despite The Obvious Benefits To Their Shareholders And
Customers, Cigna’s Board And Senior Management Were
Opposed To The Merger From The Outset
26.

On June 3, 2015, Anthem delivered to Cigna a merger proposal

reflecting a purchase price of $174 per share. Anthem also proposed that: (i) Mr.
Swedish serve as chief executive officer, (ii) Mr. Cordani serve as president and
chief operating officer of the combined company, and (iii) the combined company
have fourteen directors, eight designated by Anthem and six by Cigna.
27.

On June 7, 2015, Cigna made a counter-proposal that (i) Anthem raise

its offer per share to the mid-$180s, (ii) Anthem guarantee that Cigna’s Chief
Executive Officer, David Cordani, be installed as CEO of the combined company
and co-chairman of the integration team with Mr. Swedish, and (iii) Cigna
directors be allocated an equal number of seats as Anthem directors on the board of
the combined company.
28.

On June 10, 2015, Anthem revised its offer to $178 per share and

agreed to appoint Mr. Cordani as co-chairman of the integration team with Mr.
Swedish, but otherwise rejected Cigna’s self-interested governance proposals.
29.

Cigna’s board continued to demand that Mr. Cordani be named chief

executive officer of the combined company, insisted that the combined board
15

 consist of eight Anthem directors and seven Cigna directors, and asked Anthem to
raise its price.
30.

On June 18, 2015, Anthem raised its offer to $184 per share, meeting

Cigna’s own pricing demand and, in light of the increased consideration, proposed
that the board consist of ten Anthem directors and three Cigna directors. Anthem
did not agree to appoint Mr. Cordani as the CEO of the combined company.
31.

Notwithstanding

their

fiduciary

obligations,

Cigna’s

senior

management continued to oppose Anthem’s merger proposal, even though Anthem
met their price demand, because of personal conflicts. Specifically, Cigna’s senior
management continued to focus on entrenchment, rather than maximizing
shareholder value, and insisted, despite the price increase, on a board split of eight
Anthem directors and six Cigna directors. Cigna’s board and senior management
also demanded that Mr. Cordani be guaranteed the CEO position of the combined
company after two years. Anthem refused to agree to future roles, as its board
determined it was critical that the combined company’s board retain full authority
post-closing to make key decisions regarding executive leadership in the future.
Without a guarantee of the CEO position now, or a CEO succession for Mr.
Cordani, Cigna’s senior management continued to resist the transaction.
32.

Blocked

by

Cigna’s

senior

management

from

pursuing

a

transformative merger offering billions of dollars of value through the deal
16

 premium to Cigna’s shareholders, Anthem publicly announced the terms of its
June 18 offer on June 20, 2015:
Again, we believe that your stockholders would choose to agree to our
proposed governance structure rather than forfeit the substantial
premium and other significant benefits that we can offer them in a
combination of our companies. Therefore, to ensure that your
stockholders are apprised of the extraordinary value afforded by an
Anthem-Cigna combination, we are publicly releasing the text of this
letter.
33.

Under significant pressure from its shareholders, Cigna then engaged

with Anthem. Yet, still an agreement was reached only after Anthem agreed that
Mr. Cordani would be President and Chief Operating Officer of the combined
company and that Cigna be allocated five out of fourteen seats on the Board of
Directors of the combined company.

The companies executed the Merger

Agreement on July 23, 2015.
C.

Cigna Was Required To Use Reasonable Best Efforts To Obtain
Regulatory Approval
34.

The Merger Agreement includes a very robust reasonable best efforts

covenant regarding the Parties’ obligations and efforts that must be used to obtain
the required regulatory approvals. This covenant, Section 5.3 (the “Best Efforts
Provision”), is more rigorous than a typical reasonable best efforts covenant
because it includes the “hell or high water” requirement that Cigna “tak[e] any and
all actions necessary” to avoid antitrust impediments, which is limited only by a

17

 “material adverse effect on [the combined company]” exception that places an
extremely narrow (and practically nonexistent) limit on the Parties’ required
obligations and efforts.
35.

Section 5.3(a) provides:

Subject to the terms and conditions of this Agreement (including
Section 5.3(c)), each party will use its reasonable best efforts to
prepare and file as promptly as practicable all documentation to effect
all necessary applications, notices, petitions, filings, and other
documents and to obtain as promptly as practicable all consents,
waivers, licenses, orders, registrations, approvals, permits, and
authorizations necessary or advisable to be obtained from any third
party and/or any Governmental Entity in order to consummate the
Mergers and the other transactions contemplated by this Agreement.
Upon the terms and subject to the conditions hereof (including
Section 5.3(c)), each party will use its reasonable best efforts to take,
or cause to be taken, all actions, to do, or cause to be done, all
things reasonably necessary to satisfy the conditions to Closing set
forth herein and to consummate the Mergers and the other
transactions contemplated by this Agreement.
(Ex. A at § 5.3(a)) (emphasis added)
36.

Section 5.3(b) elaborates on Section 5.3(a) by including a “hell or

high water” covenant requiring the Parties to take any and all actions to avoid
antitrust impediments:
Without limiting the foregoing, but subject to Section 5.3(c), the
reasonable best efforts of Anthem and Cigna shall include Anthem
and its Affiliates and Cigna and its Affiliates taking any and all
actions necessary to avoid each and every impediment under the
HSR Act, any Healthcare Law, antitrust law, insurance law or other
applicable law that may be asserted by or on behalf of any
Governmental Entity with respect to this Agreement, the Mergers
18

 and the other transactions contemplated hereby or that arises under
or relates to any contracts between either Cigna or Anthem and any
Governmental Entity, so as to enable the Closing to occur as promptly
as practicable, including any of the following actions requested by or
on behalf of any Governmental Entity, or necessary or appropriate
to (I) obtain all Necessary Consents; (II) resolve any objections that
may be asserted by or on behalf of any Governmental Entity with
respect to the Mergers and the other transactions contemplated
hereby; and (III) prevent the entry of, and have vacated, lifted,
reversed or overturned, any order that would prevent, prohibit,
restrict or delay the consummation of the Mergers and the other
transactions contemplated hereby:
(i) comply with all restrictions and conditions, if any, imposed,
compelled, required or requested by any Governmental Entity in
connection with granting any Necessary Consent of any such
Governmental Entity or in connection with the expiration or
termination of any applicable waiting period under the HSR Act or
any other antitrust laws or any clearance under any Healthcare Laws,
insurance laws or other applicable laws including: (I) proposing,
negotiating, committing to and effecting, by consent decree, hold
separate order or otherwise, the sale, divestiture, disposition, license
or other disposition of any Subsidiaries, operations, divisions,
businesses, product lines, contracts, customers or assets of Anthem
or any of its Affiliates (including Cigna or any of its Subsidiaries),
(II) taking or committing to take such other actions that may limit or
impact Anthem’s or any of its Subsidiaries’ or Affiliates’ (including
Cigna’s or any of its Subsidiaries’) freedom of action with respect to,
or its ability to retain, any of Anthem’s or any of its Subsidiaries’ or
Affiliates’ (including Cigna’s or any of its Subsidiaries’) operations,
divisions, businesses, products lines, contracts, customers or assets
and (III) entering into any orders, settlements, undertakings,
contracts, consent decrees, stipulations or other agreements to
effectuate any of the foregoing or in order to vacate, lift, reverse,
overturn, settle or otherwise resolve any order that prevents,
prohibits, restricts or delays the consummation of the Mergers and
the other transactions contemplated hereby, in any case, that may be
issued by any court or other Governmental Entity;
19

 (ii) agree to (I) enter into, suspend, amend or terminate any contract or
other business relationship of Anthem or any of its Subsidiaries or
Affiliates or Cigna or any of its Subsidiaries or Affiliates (including
any contract with any Governmental Entity) and (II) any additional
obligations relating to any contract imposed by any Governmental
Entity, in each case in connection with granting any Necessary
Consent of any such Governmental Entity or in connection with the
expiration or termination of any applicable waiting period under the
HSR Act or any other antitrust laws or any clearance under any
Healthcare Laws, insurance laws or other applicable laws; and
(iii) oppose fully and vigorously (I) any administrative or judicial
action or proceeding that is initiated (or threatened to be initiated)
challenging this Agreement, the Mergers or the other transactions
contemplated hereby and (II) any request for, or the entry of, and seek
to have vacated or terminated, any order that could restrain, prevent or
delay the consummation of the Mergers and the other transactions
contemplated hereby, including, in the case of either clause (I) or
clause (II) by defending through litigation, any action asserted by any
Person in any court or before any Governmental Entity, and
vigorously pursuing all available avenues of administrative and
judicial appeal.
(Id. at § 5.3(b)) (emphasis added).
37.

The Best Efforts Provision also ensured that Anthem, the party that

pushed for the Merger, could lead the efforts to close the Merger, with Cigna’s
assistance: “Anthem, in consultation with Cigna, shall take the lead in coordinating
communications with any Governmental Entity and developing strategy for
responding to any investigation or other inquiry by any Governmental Entity
related to any of the Necessary Consents.” (Id. at § 5.3(e))

20

 D.

Cigna Failed To Use Reasonable Efforts To Obtain Regulatory
Approval
1.

Cigna Refused To Assist Anthem’s Reasonable Best Efforts To
Obtain Regulatory Approval Without Litigation

38.

Anthem and Cigna announced the Merger on July 24, 2015. On July

29, 2015, the DOJ opened an investigation of the Merger (the “DOJ Investigation”)
and issued Anthem a Voluntary Request For Information (the “Voluntary
Request”). Between July 2015 and September 2015, Anthem produced thousands
of pages of documents and several years of Anthem enrollment data to the DOJ in
response to the Voluntary Request. On August 27, 2015, Anthem and Cigna each
filed their respective pre-merger notification submissions pursuant to the HartScott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), 15 U.S.C. §
18a.
39.

On September 28, 2015, pursuant to the HSR Act, the DOJ issued

subsequent Requests For Information to Anthem and Cigna (the “Second
Request”). Anthem’s Second Request included 66 separate requests, including 149
subparts. Anthem certified substantial compliance with its Second Request on
February 9, 2016.

According to the DOJ, the date of Cigna’s substantial

compliance with its Second Request was not until March 4, 2016 – nearly a month
later than Anthem.

21

 40.

In the course of the DOJ Investigation, Anthem: (i) produced

approximately 4 million documents from 112 Anthem custodians, (ii) produced 22
Anthem witnesses for deposition, (iii) provided 22 substantive white paper
submissions, (iv) provided extensive outside economist involvement and analysis,
and (v) produced over 2 terabytes of data.
a.

41.

Cigna Obstructed Anthem’s Efforts To Complete
And Submit White Papers To The DOJ To Defend
The Merger

During the DOJ Investigation, Anthem proactively worked to respond

to the DOJ’s concerns in order to avoid a lawsuit and obtain regulatory approval.
To this end, Anthem prepared and submitted to the DOJ 22 substantive “white
papers” defending the Merger. The submission of white papers is a customary
form of advocacy before the DOJ. Indeed, the DOJ specifically requested white
papers.
42.

Anthem’s white paper strategy was successful in convincing the DOJ

to not investigate further certain products, including vision, disability, life,
individual, small group, workers compensation, and behavioral health. The white
papers also substantially limited the scope of the DOJ’s investigation of certain
products to discrete geographic areas, including limiting its scrutiny of Medicaid to
six counties in the Dallas area, and dental to Connecticut. Thus, the white paper

22

 process helped narrow the DOJ Investigation to national accounts and a limited
number of local markets.
43.

Anthem led the efforts to gather the data and evidence necessary to

prepare these white papers. Anthem repeatedly asked Cigna to provide specific
evidence and information about Cigna’s products to finalize the various white
papers, but Cigna’s senior management would not help.

Cigna’s senior

management also refused to provide any assistance or information about the
Merger’s synergies and efficiencies that was uniquely in Cigna’s possession, thus
foreclosing any opportunity for Anthem to provide the most complete and
meaningful white papers on those critical topics to the DOJ.
44.

Instead, but for a few exceptions, Cigna responded with only

generalized comments and criticisms of advocating through white papers, and that
the papers were “not ready.”

Anthem repeatedly told Cigna that generalized

comments and suggestions were not productive, and requested that Cigna provide
language with specific supporting evidence, particularly as to what makes Cigna
unique, an important subject that only Cigna could address. But Cigna did not
provide substantive assistance, and refused to sign certain white papers. Thus,
Cigna obstructed Anthem’s efforts to meaningfully explain the Merger’s synergies
and efficiencies through white papers, and convince the DOJ to clear the Merger.

23

 b.
45.

Cigna Obstructed Anthem’s Efforts To Obtain
Customer Support To Defend The Merger

Anthem also sought to obtain regulatory approval and avoid a lawsuit

by providing the DOJ with evidence of customer support for the Merger.
46.

Anthem contacted nearly 200 customers and brokers, explaining the

substantial benefits of the Merger.

Anthem obtained 60 sworn customer

declarations supporting of the Merger, plus 10 unsworn statements of support by
customers and brokers.
47.

Anthem asked Cigna to reach out broadly to its customers and brokers

to obtain support, but Cigna’s senior management failed to obtain any meaningful
customer support. Cigna’s senior management did not provide Anthem with any
information suggesting that Cigna reached out to a large number of customers
seeking support. Cigna secured only two declarations at the beginning of the DOJ
Investigation, then failed to obtain any additional customer support despite
Anthem’s repeated requests for customer support in the weeks leading up to the
filing of the DOJ Lawsuit.
48.

Additionally, Cigna’s senior management ensured that Cigna’s

customers did not have an opportunity to express support for the deal by barring
Anthem from contacting them.

Cigna’s senior management proposed an

unworkable and inappropriate approach where third-party outreach of Cigna

24

 customers was permissible only where Anthem could prove that such information
was “essential” and that “no adequate alternatives existed” for obtaining the
information. The assistance of Cigna customers was vital, and there were no
adequate alternatives, but Cigna’s senior management would not allow Anthem to
obtain support from Cigna customers for the Merger, nor did Cigna obtain the
support on its own.
2.
49.

Cigna’s Senior Management Blocked Settlement
Opportunities With The DOJ_______________

A settlement with the DOJ would clear the Merger and, therefore, was

highly desirable. Cigna’s senior management, however, thwarted any settlement –
before and during trial – in breach of Cigna’s obligation under the Best Efforts
Provision to “tak[e] any and all actions necessary” come hell or high water to
avoid antitrust impediments.
a.

50.

Cigna Thwarted Any Opportunity To Settle With The
DOJ Through Divestitures By Refusing To Sign NonDisclosure Agreements And Provide Necessary Due
Diligence

Purchasers routinely divest certain of the purchased assets in order to

obtain regulatory approval. Anticipating that divestitures might be a path for
obtaining regulatory approval of the Merger, the Parties discussed divestiture
scenarios even before signing.

As early as December 2015, Anthem began

working with economists from Economists Inc., including Dr. Barry Harris and Dr.
25

 David Argue, and Compass Lexecon, including Dr. Mark Israel, to structure a
remedial proposal, which included identifying potential divestiture markets, the
structure of potential divestitures, and what steps would be needed to implement a
remedy.

Anthem’s counsel also initiated discussions with Cigna’s counsel to

prepare for possible divestitures. The detailed identification of potential divestiture
markets was delayed, however, by Cigna’s senior management’s insistence that
any remedial package be small. Despite these delays, Anthem developed a number
of options and approaches for accomplishing potential divestitures.
51.

In early-May 2016, Anthem also sent Cigna a map reflecting a

proposed remedy plan that accommodated Cigna’s desire to keep any settlement
offer as low as possible. And during this remediation planning process, Anthem
identified several potential remedial buyers.
52.

The Parties always understood that for the 14 states where Anthem

sells health insurance, a settlement potentially would entail the divestiture of Cigna
assets because of Anthem’s membership in the BCBSA. The BCBSA has a “best
efforts rule,” which required that Anthem derive at least two-thirds of its healthcare
revenue across the country, and at least 80% of local revenue, from its BCBSA
business.

Consequently, the divestiture of Cigna assets would help Anthem

comply with the BCBSA rules. Moreover, divestiture of Cigna assets would likely
result in fewer enrollees being divested and, therefore, a better result for the
26

 combined company. The Merger would create one combined company, so the
divestiture of Cigna assets would have no particular impact on Cigna, which would
no longer exist as a separate entity. Cigna’s senior management, however, resisted
divestitures of Cigna assets as yet another way to sabotage the Merger.
53.

On June 10, 2016, the DOJ disclosed it was concerned about the

competitive impact of the Merger in 35 core based statistical areas (“CBSAs”) –
geographic areas of at least 10,000 people – and, thus, identified a way to resolve
the DOJ’s objections and clear the Merger through divestitures. Even though
Anthem did not believe divestitures were required in all 35 CBSAs under
applicable antitrust law, Anthem promptly adjusted its remediation plan to focus
on divesting assets in those areas to eliminate any purported anticompetitive
impact.
54.

Within a week of receiving the 35 CBSA list from the DOJ, Anthem

found, met, and signed NDAs with three strategic potential buyers, all large health
insurers, with serious interest in acquiring assets in the 35 CBSAs identified by the
DOJ. 4 Anthem signed a non-disclosure agreement (“NDA”) with each of these
potential buyers to facilitate their due diligence.

4

The identities of the buyers are subject to confidentiality agreements and are
referred to herein as Buyer A, Buyer B, and Buyer C.
27

 55.

In June 2016, Anthem sent a draft remedial proposal to Cigna for

comment. The draft stated that Anthem was agreeable to divesting Cigna’s large
group commercial accounts which are located in each of the 35 CBSAs identified
by the DOJ and provided detailed information about the three potential buyers for
such assets.

Cigna failed to provide comments, and Anthem submitted the

remedial proposal to the DOJ on June 19, 2016.
56.

In mid-June 2016, Cigna entered into an NDA with Buyer A, but then

provided Buyer A with only a one-page spreadsheet of high-level aggregated data
of Cigna’s large group businesses in the 35 CBSAs. Buyer A could not evaluate
assets worth nearly one billion dollars based on the one-page spreadsheet, nor
could any other conceivable buyer. Rather, Buyer A needed access to customary,
basic due diligence, such as the customer contracts and information about the
Cigna provider networks in the 35 CBSAs.
57.

Sellers cannot sell assets without providing information about them to

buyers, and Cigna was specifically required to do so under the Best Efforts
Provision, which expressly required Cigna to “tak[e] any and all actions necessary
to avoid each and every impediment under the HSR Act . . . [or] antitrust law”
including “proposing, negotiating, committing to and effecting . . . the sale,
divestiture, disposition, license, or other disposition” of Cigna assets. (Ex. A at §
5.3(b))
28

 58.

Cigna’s senior management, nonetheless, refused to provide Buyer A

with any other information about the assets unless Buyer A entered into a second
NDA, this one restricting Buyer A’s ability to engage in alternative M&A
transactions, a completely inappropriate and non-customary provision. Cigna’s
senior management’s demand for a second NDA was designed to foreclose a
settlement divestiture: Buyer A would not sign this non-market lock-up agreement,
and Cigna dragged its feet in negotiating a reasonable compromise, thereby
forestalling the provision of any meaningful due diligence whatsoever and
preventing a divestiture that could have cleared the Merger.
59.

Anthem requested that Cigna withdraw its highly unusual request for

a second NDA, but Cigna’s senior management refused and delayed for more than
a month from when Anthem first requested Cigna to execute an NDA with Buyer
A. It was only in the hours before the DOJ filed its lawsuit that Cigna’s senior
management relented and negotiated an NDA with Buyer A.

Customary

information, however, was still not made available, and Buyer A could not proceed
with any purchase of assets, so Cigna’s senior management’s unreasonable NDA
demands prevented a divestiture that could have cleared the Merger. Notably, the
information requested was not particularly sensitive or confidential. Indeed, Cigna
supplied far more sensitive information to Anthem in connection with the Merger.
Thus, Cigna had already established confidentiality agreements and review
29

 protocols that were sufficient to preserve and protect Cigna’s competitively
sensitive information.
60.

Despite numerous requests, Cigna’s senior management also refused

to sign any NDA with either Buyer B or Buyer C – even though the proposed NDA
contained the same specific terms as Cigna’s first NDA with Buyer A – or provide
those potential buyers with the one-page spreadsheet provided to Buyer A or any
other diligence information because, according to Cigna, they would not be viewed
as viable buyers by the DOJ. Unable to perform any due diligence whatsoever,
Buyer B and Buyer C also were unable to evaluate, and thus purchase, assets that
could have cleared the Merger.
61.

Anthem asked Cigna to create and populate a data room with due

diligence information, so that the potential buyers had sufficient information to
submit informed and credible bids.

Given Cigna’s senior management’s

unreasonable confidentiality position, Anthem agreed to have Cigna create and
control the data room and adopt protocols to govern access to the data room.
Cigna’s senior management, however, refused to create a data room or engage in
other customary, and necessary, provision of information about the assets so as to
allow a buyer to transact.
62.

Cigna tried to distract from its efforts to block the Merger by stating

that it had doubts that the DOJ would view Buyers A, B or C as viable buyers. But
30

 after receiving Anthem’s June 19, 2016 proposal, the DOJ was interested in details
about how a divestiture would work. The DOJ also sought to meet with the three
potential buyers. Buyers A, B, and C were viable buyers who were prepared to
advocate before the DOJ, but were never provided with the due diligence necessary
to effectively advocate or reach an agreement. Moreover, having an agreement to
divest overlapping assets prior to trial would have provided a powerful defense at
trial, irrespective of the DOJ’s view of the buyer.
63.

Cigna rejected each request by Anthem to sign NDAs and supply the

necessary due diligence.

Anthem then asked Cigna’s senior management to

identify potential buyers with whom it would actually engage, but Cigna’s senior
management, failed to do so, and engaged with no one.
64.

Cigna’s senior management also refused to provide Anthem with

information necessary for Anthem to analyze the financial impact of divesting
membership in the 35 CBSAs, including a breakdown of the gross revenue, gross
margins by product, operating income and allocated expenses associated with this
membership. Cigna’s senior management refused to provide such information,
even though there would be customary safeguards put in place, because it was not
“prepared to put [its] competitive position in jeopardy by sharing commercially
sensitive information with [its] competitors . . . .” Cigna’s senior management’s
pretext of competitive harm as an excuse to prevent sharing information to Anthem
31

 was baseless. Parties to a merger regularly share information pursuant to NDAs as
a matter of course, and Cigna was expressly required to do so here under the Best
Efforts Provision. But, instead of using its reasonable best efforts to consummate
the Merger, Cigna treated its merger partner as an adversary.
65.

In early July 2016, at the request of the DOJ, Anthem prepared a

detailed remedial proposal based on its understanding of Cigna’s business with the
goal of obtaining regulatory clearance for the Merger. Cigna’s senior management
allowed Anthem just one conversation with a Cigna business representative about
the proposal in response to Anthem’s repeated requests for assistance. Anthem
provided a draft proposal to Cigna and requested input and comments to present
the strongest case for remediation. Anthem included with its draft proposal a
targeted list of questions seeking information regarding provider collaboration,
case managers, data analytics, and technology, in Cigna’s possession that would
assist in providing a compelling and complete remediation package.
66.

When Anthem provided the draft proposal to Cigna, Anthem

explicitly informed Cigna that “time is of the essence.” Cigna repeatedly stated
that it would respond by a date certain, but failed to do so. Then Cigna just
stopped responding at all, so, on July 10, 2016, Anthem again submitted the
remedial proposal on July 10, 2016, without Cigna’s help.

32

 67.

Because of Cigna’s senior management’s refusal to contribute, the

remedial proposal did not benefit from the requested factual support, access to
information and business people, or constructive feedback—all of which would
have helped secure clearance or a favorable judicial resolution on the basis of the
proposal.

Cigna’s senior management’s refusal to provide necessary factual

support and access to information and business people to Anthem and potential
buyers foreclosed Anthem from settling with the DOJ or proving at trial that the
Parties had divested all assets creating any purported anti-competitive impact.
68.

Given Cigna’s senior management’s refusal to provide sufficient

information to potential buyers, Anthem’s efforts to achieve a regulatory approval
through remediation without litigation were unsuccessful.

The DOJ filed its

lawsuit eleven days after Anthem’s July 10, 2016 proposal.
69.

Cigna’s refusal to engage with potential buyers or to provide

necessary information not only undermined Anthem’s remediation efforts, it also
hampered Anthem’s ability to defend the Merger at trial.

The District Court

enjoined the Merger based on the purported anticompetitive impact on sales to
large “national accounts” in the fourteen states in which Anthem operated under
the Blue Cross Blue Shield network, and on the sale of health insurance to large
groups in Richmond, Virginia. (Op. at 1-2) Those were precisely the locations
that Anthem was prepared to remedy by divesting assets to Buyers A, B, and/or C,
33

 but Cigna thwarted Anthem’s efforts to cure by refusing to provide any potential
buyers with the necessary information about the assets. Had Cigna cooperated as
required, the District Court’s basis for enjoining the Merger could have been
eliminated and the Merger cleared.
b.
70.

Cigna Thwarted Any Opportunity To Settle With The
DOJ Through Mediation

Even after the lawsuit was filed, Anthem continued to try to achieve

regulatory approval through settlement with the DOJ. Cigna’s senior management,
on the other hand, continued to stonewall the NDA negotiations with potential
buyers and refused to provide diligence information to Anthem or the buyers.
Without an ability to assess the financial impact and valuation of the proposed
divestitures, the three Anthem-identified buyers lost interest in a transaction.
71.

At a status conference on August 12, 2016 the District Court Judge

presiding over the DOJ Lawsuit, Judge Jackson, suggested conducting settlement
negotiations as the litigation progressed. In response, Anthem’s counsel circulated
to Cigna a draft e-mail to Judge Levie, the former judge who Judge Jackson
appointed as the Special Master, requesting his assistance in appointing a mediator
to facilitate settlement discussions. Anthem did not send the e-mail to Judge Levie
because Cigna requested more information about Anthem’s settlement strategy
beforehand.

So, Anthem met with Cigna on September 2, 2016 to discuss the

34

 settlement strategy in more detail. Cigna’s senior management then, once again,
simply disengaged from settlement discussions.
72.

Despite Cigna’s senior management’s previous refusals to support any

of Anthem’s efforts to settle with the DOJ, in September 2016, Anthem developed
yet another remediation plan involving a small number of local, strong buyers in
certain states. Cigna had previously expressed a preference for such a remedial
plan – one that limits divestiture to large group commercial business in the limited
states that Anthem proposed.

In an effort to get Cigna to comply with its

obligations under the Agreement, Anthem even indicated that it would be
amenable to a remediation plan that included a sale of Anthem assets in certain
states. This remediation plan would also show the District Court that the Parties
were prepared to address certain local market overlaps, which would increase the
chance of successfully consummating the Merger. Anthem provided Cigna an
outline of the remediation plan and the immediate next steps that should be taken
by the Parties. Cigna’s senior management again refused to provide any support to
effectuate this remedial plan or to engage with Anthem on alternative remedial
plans.
73.

During the November 11, 2016 conference with Anthem, Cigna, and

the DOJ, Judge Jackson again inquired into the possibility of mediation. Anthem
immediately indicated its commitment to begin mediation at any time.
35

 74.

After the conference, Judge Levie again asked the parties to consider

mediation, noting that Judge Jackson had inquired whether Judge Levie would
consider acting as the mediator if acceptable to the parties. Anthem pleaded with
Cigna to agree to mediate, but Cigna refused. Cigna would not agree to even
inform the DOJ and Judge Levie that Judge Levie would be an acceptable mediator
because that presupposed an interest in mediation.
75.

Judge Levie encouraged mediation twice more the following day,

expressing his firm belief in settlement and even suggesting potential dates for
mediation, but Cigna again refused. Cigna tried to deflect its refusal to follow
Anthem’s lead, as required, by pointing to the DOJ which, like Cigna, also did not
want to mediate. Cigna simply chose to align with the Parties’ adversary.
76.

On November 16, 2016, Anthem notified Cigna that under the Merger

Agreement, Anthem is the party responsible for developing strategy for defending
the Merger, and such strategy including engaging in mediation. Cigna’s refusal to
mediate, therefore, was a breach. Cigna waited until the first day of trial, after the
opportunity for pre-trial mediation had passed, to respond falsely that it had not
declined mediation, but rather “Cigna’s position has been, and continues to be, that
it has no objection to mediation.”
77.

Two days later – three days into the DOJ’s case in chief at trial –

Judge Levie again asked the parties to mediate, stating that based on his
36

 considerable experience it was an appropriate time to discuss settlement. Anthem
then asked Cigna to communicate to Judge Levie its statement from just two days
earlier that it was willing to mediate, but Cigna refused to do so. Rather, Cigna
said it was unwilling to mediate unless Anthem satisfied two conditions – “a viable
proposal from Anthem” and “support from the DOJ.”

Anthem had already

formulated and shared viable proposals and further noted that mediation provides a
process for developing consensual solutions. And the Parties did not need an
agreement with the DOJ because Anthem was trying to show a united interest in
settlement on the part of the defendants and to pressure the DOJ into mediating.
78.

If Cigna’s senior management had interest in the Merger, there could

have been no conceivable objection to mediating, which could only have helped
achieve a settlement. Refusing to mediate guaranteed that the parties would not
achieve a consensual resolution clearing the Merger.
79.

Cigna’s refusal to participate in mediation continued throughout the

trial, when Cigna continued to reject any attempts to pursue mediation in an effort
to resolve the litigation to allow for the consummation of the Merger.

37

 3.

Cigna Refused To Defend The Merger
a.

80.

Cigna Refused To Communicate Support For The
Merger

After the DOJ filed a lawsuit in July 2016 challenging the Merger as

anticompetitive in violation of Section 7 of the Clayton Act, Anthem asked Cigna
to participate in a joint press release expressing their commitment to the
transaction and opposition to the DOJ Lawsuit, but Cigna’s senior management
refused to do so. Consequently, Anthem was left to issue a press release on its
own stating that it “is fully committed to challenging the DOJ’s decision in court.”
81.

Cigna then issued a press release that did the opposite of committing

to fight for the deal, as required. Cigna told the market it was “evaluating its
options” and questioning whether the transaction “could close . . . at all”:
Today, the Department of Justice announced that it will challenge our
proposed merger with Anthem. Given the nature of the concerns
raised by the DOJ and the overall status of the regulatory process,
which under the terms of the merger agreement was led by Anthem,
Cigna is currently evaluating its options consistent with its
obligations under the agreement. In light of the DOJ’s decision, we
do not believe the transaction will close in 2016 and the earliest it
could close is 2017, if at all.
(emphasis added)
82.

Thus, even though the Merger Agreement contemplated a DOJ

challenge and obligated Cigna to use its reasonable best efforts to oppose the DOJ
Lawsuit, Cigna told the public, instead, that it would evaluate its options – and
38

 there were none, other than to fight – and questioned whether the transaction could
close at all, again signaling to the market, the DOJ, and other regulators the fact
that Cigna’s board and senior management were not interested in the Merger.
b.
83.

Cigna Delayed Filing An Answer

It was important to move quickly to ensure that the Merger did not

time-out based on any delay in the litigation, so Anthem filed its Answer on July
26, 2016, five days after DOJ filed the complaint.

In light of the tightly

compressed time frame for discovery in merger litigation, Anthem pushed the DOJ
to discuss a discovery schedule. On July 27, 2016, the DOJ insisted on having
Cigna’s Answer prior to holding the Rule 26(f) discovery conference. The same
day, Anthem’s counsel asked Cigna if it would file its Answer in the next day or
two. On July 28, Cigna responded that it was “endeavoring to be in a position to
file its Answer early next week,” which was not consistent with the Best Efforts
Provision in light of the need to move forward expeditiously.
84.

Remarkably, Cigna did not file its Answer until September 19, 2016,

nearly two months later. It was only through Anthem’s efforts that the DOJ agreed
to hold the Rule 26(f) conference before Cigna filed its Answer. Nonetheless,
Cigna’s delay served its strategy of impeding the progress of the litigation, instead
of “taking any and all actions necessary” to enable the Merger to close “as
promptly as practicable” as required under the Merger Agreement.
39

 c.
85.

Cigna Refused To Provide Any Pre-Trial Assistance

Anthem continued to use its reasonable best efforts to defend the

Merger, taking and defending over 100 depositions, preparing all of the substantive
pleadings and briefs defending the Merger, and arranging the submission of nonparty witness declarations and 10 expert reports in support of the Merger. Cigna
continued to work to undermine the Merger.
86.

Anthem repeatedly provided Cigna with draft litigation materials,

seeking its comments and input, but Cigna refused to provide any:
(a)

Despite Anthem’s requests, Cigna did not provide a single
comment on any of the Defendants’ expert reports, key
documents in the case.

(b)

Despite Anthem’s requests, Cigna also failed to offer any
insights, reactions, or comments about the DOJ’s expert reports,
even though they constituted a critical component of the DOJ’s
case.

(c)

Cigna attended over 100 depositions in this case, but posed
limited questions to only 3 witnesses, and those were unhelpful
to the Merger.

(d)

Anthem sent Cigna a draft pre-trial brief, a key document, and
requested Cigna’s input. Cigna failed to provide any help at all.
In fact, to make absolutely clear its refusal to support the
Merger, Cigna remarkably refused even to sign that document.
In other words, Cigna refused to state or join any position
supporting the Merger.

(e)

Cigna refused to provide Anthem with reasonable access to the
Cigna witnesses testifying at trial. Anthem spent an average of
sixteen to twenty hours preparing each of the Anthem
witnesses. Although what was at stake was a transformative
40

 $54 billion merger, Cigna only agreed to give Anthem a mere
one hour of witness preparation time with key Cigna witnesses,
David Cordani (Cigna’s CEO) and Jeff Thackeray (a Cigna
VP), even though Anthem would be putting on the witnesses
(after Cigna decided not to put on its own witnesses), an
amount of time that would have been insufficient for a small
claims case. Anthem was likewise limited to only 90 minutes
with Dr. Charles Smith, Cigna’s Chief Medical Officer. With
respect to Eugene Rapisardi, a Cigna General Manager,
Anthem’s counsel was never permitted to meet with him at all
despite Anthem’s requests.
Incredibly, Cigna’s counsel asserted that “Anthem has mistaken
the contractual deference Cigna owes to Anthem in terms of the
setting of litigation strategy and our courtesy of allowing you to
meet with Cigna witnesses during our prep sessions.” Cigna’s
counsel continued, “Anthem’s demands [for more than one
hour in preparation of trial witnesses] amount to an abuse of a
courtesy, and we will treat it accordingly as we confer with our
client and the Cigna witnesses concerning your request for
additional access to those witnesses.”
d.
87.

Cigna Impeded Anthem’s Integration Efforts And
Undermined Anthem’s Efficiencies Defense

Under the Merger Agreement, Anthem took the lead in defending the

Merger. The centerpiece of Anthem’s defense to the DOJ Lawsuit was that the
Merger will create substantial efficiencies and other procompetitive effects that
will directly benefit consumers, and that such benefits outweigh any alleged
anticompetitive effects. Rather than comply with its obligation under the Best
Efforts Provision to “tak[e] any and all actions necessary” to avoid antitrust
impediments, Cigna instead took affirmative action to sabotage Anthem’s efforts to
prove this key defense at trial.
41

 (Op. at 119)
88.

Anthem worked tirelessly in developing the efficiencies through

integration planning and otherwise. This work was necessary to ensure that postclose, the combined company would be in a position to serve its customers without
interruption and also to document merger-specific synergies and efficiencies,
which was an important part of the DOJ’s Investigation and a critical defense to
the DOJ Lawsuit.
89.

Anthem retained McKinsey & Company (“McKinsey”), the leading

management consultant firm with unparalleled experience and expertise in
integration efforts. McKinsey dedicated 165 people to the integration work from
its healthcare team (which has created synergy savings for healthcare companies of
over $100 billion), and its senior merger management team (which has integrated
hundreds of mergers, including one with a transaction value in excess of $100
billion).
90.

Notwithstanding

McKinsey’s

unparalleled

qualifications

and

experience, Cigna’s senior management complained that Anthem retained
McKinsey to work on integration, rather than Bain Capital, a firm with whom Mr.
Cordani had a relationship.

42

 91.

Anthem could not fully develop a plan for integrating Cigna without

Cigna’s help. Cigna’s senior management disengaged from the integration work
following a dispute over the extent of Mr. Cordani’s role at the combined
company.

(Op. at 15)
Anthem promptly resolved the dispute about Mr. Cordani’s role so that three lines
of business, Commercial, Government and Diversified Business, would all report
to him post-closing, which were exactly the responsibilities he desired, but Mr.
Cordani was not appeased. Cigna, under his direction, worked to block integration
and to bar meetings with Cigna’s senior management team that Anthem’s CEO
requested and needed in order to develop the integration plan.
92.

Cigna’s senior management also prevented Anthem’s integration plan

from being completed. A key component of integration planning was “Value
Capture,” which was the process by which the synergies and efficiencies for the
newly formed company would be identified and realized, including utilizing
Cigna’s collaborative care and wellness offerings. Cigna’s senior management
refused to engage in any “Value Capture” work after March 2016 citing alleged
“deal uncertainty.” In other words, rather than fighting for the Merger against
uncertainty, as required, Cigna was obstructing it, which in fact was creating deal
43

 uncertainty.

(Op. at 117)
93.

Then, when the DOJ Lawsuit was filed, and the work became even

more important, Cigna stopped all work on integration, leaving Anthem on its own.
The District Court focused on the problem, asking incredulously at trial: “How do
you work on integration without talking to the person you’re integrating with?”
94.

Cigna’s senior management’s refusal to participate meaningfully in

the “Value Capture” integration process undermined Anthem’s key defense at trial
that the Merger would create efficiencies that would generate significant medical
cost savings, the vast majority of which ultimately would be passed along to
consumers. And the District Court enjoined the Merger based on its concerns that
the efficiencies could not be achieved because the “pre-merger integration
planning that is necessary to capture any hoped-for synergies is stalled and
incomplete” and

(Op. at 9, 116)

44

 (Id. at 121-22)
95.

Cigna’s senior management’s refusal to assist meaningfully in the

merger integration planning efforts also resulted in significant extra work for
Anthem and its advisors, was highly disruptive and demotivating to the integration
team and was time consuming and costly. Cigna’s actions and inactions increased
Anthem’s expenses significantly.
e.
96.

Cigna Further Harmed The Efficiencies Defense By
Disclosing The Parties’ Private Letters To The Press

Cigna’s board and senior management started a series of letters to

create a false record that Anthem had breached the Merger Agreement. Cigna then
ensured that this record was fed to the DOJ to support its argument against the
Merger’s efficiencies – that the conflict between the Parties would prevent
successful integration and the efficiencies that flow from the Merger.
97.

Cigna’s tactic was to send letters to Anthem accusing it of breaching

the Merger Agreement by claiming Anthem breached the Best Efforts Provision.
This naturally precipitated a response that it was, in fact, Cigna that was in breach
of the Merger Agreement. Nonetheless, Anthem sought Cigna’s help to obtain
regulatory approval. So while Cigna was trying to set up a false breach claim,
Anthem was trying to get Cigna to help obtain regulatory approval. These were

45

 private letters between two merger parties discussing merger-sensitive issues.
Indeed, the letters could not be made public under the terms of the Merger
Agreement. (Ex. A at § 5.2)
98.

The letters, however, did not remain private. Rather, copies of certain

letters were leaked to the national media. On or about May 20, 2016, the Wall
Street Journal contacted Anthem, explaining that it had obtained the letters that
Anthem’s and Cigna’s Boards of Directors had exchanged, as well as several other
letters the two companies’ general counsel had exchanged.

The Wall Street

Journal sought Anthem’s comment on an article it planned to publish.
99.

Anthem asked Cigna to issue a joint statement before the story ran to

send a unified message to shareholders and regulators that each of the companies
remained entirely committed to obtaining regulatory clearance and closing the
transaction, but Cigna refused to join a statement supporting the Merger. In fact,
Cigna threatened that if Anthem released a statement supporting the Merger, Cigna
would release a response disputing Anthem’s release, further signaling problems to
the DOJ, regulators and consumers.
100. Anthem repeatedly asked Cigna whether it had leaked Anthem’s and
Cigna’s common interest communications to the press, but Cigna refused to
answer. Notably, however, only Cigna benefitted from the release, by signaling

46

 problems with the Merger, and only Cigna refused to mitigate any such perception
through a joint statement of support.
f.

Cigna Then Supported Broad Disclosure Of The
Letters To The DOJ In An Effort To Help The DOJ
Block The Merger

101. The DOJ was provided a limited number of the letters exchanged
between Cigna’s CEO and Anthem’s CEOs during its investigation of the Merger
prior to the lawsuit. Cigna further undermined Anthem’s efficiencies defense by
ensuring that even more information about the Parties’ private disputes was
produced to the DOJ for use in the lawsuit in breach of the Best Efforts Provision.
102. Cigna’s plan to feed the DOJ more support was set in motion after a
question from the District Court at the August 12, 2016 pre-trial and status
scheduling conference inquiring whether the Merger Agreement would be
terminated, thus mooting the case. Citing “[t]he contentious nature of the merger,”
referenced in the DOJ Complaint, the District Court asked whether “there [was]
any reason why the parties shouldn’t be required to keep me apprised of the status
of those issues as we go along, such as if they initiate negotiations to terminate or
unwind or if there are issues concerning compliance with the terms of the
agreement” and concluded, “[s]o I want to know if something happens to change
the underlying assumption, which is that we’re marching towards April 30th [the
extension date under Merger Agreement].”
47

 103. Misusing the District Court’s request, which was simply to be
informed if the Merger Agreement was terminated, Cigna’s counsel, on August 16,
2016, unilaterally informed the DOJ at a hearing before Judge Levie, the Special
Master handling discovery matters, that the general counsel to Anthem and the
general counsel to Cigna had exchanged letters accusing each other of breaching
the Merger Agreement. The next day, the DOJ served a request for production
seeking

documents

noncompliance

with

“discussing

Anthem’s

any

of

term

the

or
Merger

Cigna’s

compliance

Agreement,”

or

including

“communications between counsel for Anthem and counsel for Cigna (whether inhouse or outside counsel).”
104. On August 22, 2016, the Parties filed objections to the DOJ’s
discovery request on the grounds of common interest privilege. On a meet and
confer, Anthem articulated its interpretation of the DOJ’s requests and asserted its
common interest privilege, and the DOJ did not object. Rather than defer to
Anthem or let the DOJ handle its own discovery issues, Cigna advocated for a
broader interpretation of the requests and also opposed Anthem’s common interest
privilege position, asserting that certain documents were not privileged at all and,
therefore, could be made public. In addition to proposing a broader production to
the DOJ of the correspondence than Anthem proposed, Cigna also helped the DOJ

48

 by proposing to produce fewer redactions than Anthem to ensure that more
evidence of the Parties’ disagreement would be disclosed.
105. Cigna made it impossible for Anthem to successfully maintain its
common interest privilege because the counterparty Anthem claimed to share a
common interest with disavowed such interest. In other words, Anthem then had
to litigate against Cigna, its merger partner, to protect against the production of
potentially damaging Merger-related documents to an adversary, when Cigna was
contractually obligated to use reasonable best efforts to defend the Merger. And
Cigna’s efforts to assist the DOJ were successful as the Court accepted the DOJ’s
expanded scope of its document request, as proposed by Cigna. Judge Levie,
however, did overrule Cigna’s pro-DOJ position concerning work product claims
for the majority of the documents at issue, which stands as a rare example of a
defendant losing in its efforts to produce potentially damaging information to an
adversary.
g.

Cigna Helped The DOJ Undermine The Merger At
Trial

106. Cigna then took affirmative steps to help the DOJ at trial, including by
further sabotaging Anthem’s efficiencies defense. Before the trial even started,
Cigna asked the District Court for permission to object to Anthem’s questions. In

49

 other words, Cigna asked to behave as an adversary to the Merger, rather a party
obligated to use reasonable best efforts to support it. The District Court observed:
Well, it’s completely extraordinary. I’ve never seen it done even in a
criminal trial with multiple co-defendants. . . . [T]his is nothing I’ve
ever seen before. I have trouble even wrapping my mind around it . .
. . [O]bjecting when you’re both the defense here, I find that so
highly extraordinary . . . . I’m not going to tell you right now it’s
prohibited. But I can tell you I find it highly unorthodox, and I’m not
entirely sure that it’s even permissible.
107. Cigna then went further at trial. Acting as an adversary to the Merger,
rather than a supporting party, Cigna did not cross-examine a single DOJ witness.
Rather, Cigna’s counsel elected to cross-examine, Dr. Mark Israel, Anthem’s key
expert witness, and tried to discredit his authority in the field and attack his
findings.

(Op. at 114 n.46) Hence, rather than supporting the key expert witness
testifying in support of the Merger, Cigna cross-examined him in an effort to
sabotage the Merger.
108. Cigna’s counsel also cross-examined Anthem’s CEO, Joseph
Swedish, after Anthem determined that no cross-examination was necessary, about
Mr. Cordani’s role and responsibilities in the combined company and whether Mr.
Cordani expressed his commitment to stay with the company post-closing.
50

 Anthem had promptly resolved the issue about Mr. Cordani’s responsibilities after
it was raised by Cigna’s board, so there was no reason for Cigna’s counsel to
cross-examine Mr. Swedish in this regard other than to unnecessarily highlight the
extent to which Mr. Cordani had previously disagreed with Mr. Swedish. With
respect to Mr. Cordani’s intentions to remain, Mr. Swedish testified truthfully that
Mr. Cordani had not spoken directly to Mr. Swedish about any desire to stay,
which was because Mr. Cordani refused to meet with Mr. Swedish one-on-one
since January 2016. And, there was no need to cross-examine, and try to discredit
the testimony of Anthem’s CEO, given that Mr. Cordani was about to testify next
and could testify to his own intentions and expectations.
109. Cigna’s CEO, Mr. Cordani, then attacked the key efficiencies defense
by testifying that he questioned the ability of the combined companies to achieve
the more than $2 billion of medical cost savings that Anthem was advancing as a
defense of the Merger due to Cigna’s disagreement regarding integration strategy.
During examination by the DOJ, Mr. Cordani testified that Cigna is not
“supportive” of certain of Anthem’s integration strategies, which would be
“extraordinarily disruptive in the marketplace,” and make “the existing [Cigna]
offering less competitive in both Anthem and non-Anthem states.”
testified for the DOJ:

51

He also

 Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

And, as I think you said, the Bias Blue strategy [Anthem’s initial
integration strategy] will destroy the value of Cigna?
It will erode it pretty rapidly.
Including the network?
Correct.
Provider relationships?
Correct.
Customer choice will be reduced?
Correct.
Innovation will be at risk?
I think it would be at risk.
And one plus one will not equal three?
To be determined, but harder to achieve.

110. Mr. Cordani further failed to support the Merger when he testified that
he disagreed with a newspaper advertisement run by Anthem which stated the
centerpiece of Anthem’s defense—that Anthem and Cigna national account
customers “will collectively reduce their health care costs by an additional $2
billion annually, and potentially much more, as a result of the Anthem-Cigna
combination.” Mr. Cordani testified:
It’s not our number, so it’s hard to agree with it. But, to the best of
our knowledge, the work that was done here was around identifying
the discount opportunity of either the Anthem discount or the best of
the two organizations discount. And our view is that this is incredibly
important integration work because we believe that, and I believe
today, that there’s an opportunity to improve medical costs in the oneplus-one-is-three. But if you look at it just through a discount
standpoint, it’s a narrow-minded view because discount is only a
portion of the equation. . . . [The calculation] ignores both utilization
in terms of the number of services, but the mix of the services, as well
as the venues in which the services are consumed. . . . So the point is,
it’s an incomplete – it’s an important – the discount’s important, but
52

 an incomplete part of the equation. . . . So all that being said, we
view that it is, at best, incomplete and, therefore, inaccurate.
111.

(Op. at 119 (emphasis
added))

(Id. at 22)

(Id. at 108
; 113

114

53

 112. Mr. Cordani’s rapport with the DOJ was remarkable in serving as a
witness for the DOJ. Indeed, the Wall Street Journal reported:
Some of Mr. Cordani’s testimony appeared to cut against Anthem’s
defense of the deal. He said the integration strategy favored by
Anthem, not supported by Cigna, could hurt competition by eroding
Cigna’s offerings, an argument posed by the Justice Department. In
fact, he said, Cigna disagreed with an ad run by Anthem that touted
the merger’s competitive benefits, because Cigna believed “choice
would be potentially be constricted” for insurance clients under
Anthem’s preferred setup.
Brent Kendall & Anna Wilde Mathews, Testimony Shows Anthem and Cigna at
Odds Over Proposed Merger, Wall St. J., Nov. 28, 2016.
113. Cigna also breached the Best Efforts Provision when instead of
making a closing argument in support of the Merger, Cigna made closing remarks
against the Merger. During the closing, Anthem’s counsel offered that the disputes
between the two Parties arose from friction resulting from having two driven CEOs
that, at times, had differing views, but that contentiousness at the CEO level has
not had a material effect on the ability to be integrated on Day 1. Rather than
support Anthem’s position, Cigna’s counsel stated during his closing that the
disagreements between the companies that the DOJ was relying upon to dispute the
efficiencies went beyond the CEO level to “senior management, . . . the [B]oard
[of Directors], and the company as a whole.” In addition to supporting the DOJ’s
position in opposing the Merger, and contradicting Anthem’s argument about the

54

 ability to achieve efficiencies, Cigna’s argument was unsupported by evidence.
So, Cigna went outside of the record to make an argument supporting the DOJ in
blocking the Merger.
114. Cigna then refused to provide comments to Anthem’s proposed
findings of fact and conclusions of law – the submission providing the very basis
for clearing the Merger. In other words, Cigna refused to submit any legal or
factual basis for clearing the Merger. Incredibly, Cigna also refused to sign its
name to the proposed findings of fact and conclusions of law or submit any of its
own. Thus, Cigna did not offer to the District Court any basis whatsoever for
defending the Merger in fact or in law. To the contrary, by refusing to sign the
detailed proposed findings of fact and conclusions of law offered in support of the
Merger, Cigna totally undermined the Merger.
115. And to make matters worse, Cigna’s counsel highlighted to the
District Court during closing remarks to the first phase of the trial that it had not
been willing to sign Anthem’s proposed findings of fact and conclusions of law in
support of the Merger, apparently concerned that the signal of its opposition to the
Merger had been missed. The damaging conduct had not been lost on the District
Court:
What am I supposed to make of that? I wasn’t going to ask you that
question in open court because they’re just drafts to this point, but
since you brought it up, your name isn’t on them; Cigna’s name isn’t
55

 on them. What am I supposed to think that tells me? What does that
mean?
116. Cigna also did not sign the final submissions, or otherwise offer any
support for the Merger, and the only conclusion the District Court could reach is
that Cigna did not agree with any of the facts or conclusions of law supporting the
Merger. The District Court found Cigna’s conduct remarkable:
[T]he Court cannot fail to point out that it is bound to consider all of
the evidence in the record in connection with the question of whether
the merger will benefit competition, and in this case, that includes the
doubt sown into the record by Cigna itself.
This brings us to the elephant in the courtroom. In this case, the
Department of Justice is not the only party raising questions about
Anthem’s characterization of the outcome of the merger: one of the
two merging parties is also actively warning against it. Cigna
officials provided compelling testimony undermining the projections
of future savings, and the disagreement runs so deep that Cigna
cross-examined the defendants’ own expert and refused to sign
Anthem’s Findings of Fact and Conclusions of Law on the grounds
that they “reflect Anthem’s perspective” and that some of the
findings “are inconsistent with the testimony of Cigna witnesses.”
Anthem urges the Court to look away, and it attempts to minimize the
merging parties’ differences as a “side issue,” a mere “rift between the
CEOs.” But the Court cannot properly ignore the remarkable
circumstances that have unfolded both before and during the trial.
(Op. at 9 (emphasis added))
117. Cigna’s failure to support the Merger and attempts to sabotage
Anthem’s defense of it did not go unnoticed. National media reported that Cigna’s
“lack of enthusiasm about its $54 billion Merger with rival Anthem Inc. has given
the U.S. Department of Justice a leg up in an ongoing trial in D.C. federal court.”
56

 Jimmy Hoover, Anthem, Cigna Discord Could Give DOJ Edge In Merger Trial,
Law360, Dec. 21, 2016. Media reports also accurately predicted that “Cigna’s
antics might . . . be the merger’s undoing.” Id.
118. The national media also reported that Cigna’s counsel “openly
disavowed an assertion from Anthem’s attorney that the ‘rift’ the government had
made so much of was in reality nothing more than a dispute between the two
companies’ CEOs. Remarkably, [Cigna’s counsel] said Cigna’s misgivings stretch
all the way down the board of directors and represent the views of the company
itself.” Id. Another article reported that “Cigna, which may collect $1.85 billion if
the deal is blocked, has done little to help Anthem’s counsel since the trial began
Nov. 21, at one point even cross-examining its merging partner’s own witness.”
Jimmy Hoover, Anthem’s Defense In $54B Merger Trial Met With Skepticism,
Law360, Dec. 13, 2016.
119. Another media account quoted three antitrust lawyers who all agreed
that Cigna’s actions were “potentially fatal” to the case. Jimmy Hoover, Anthem,
Cigna Discord Could Give DOJ Edge In Merger Trial, Law360, Dec. 21, 2016.
One lawyer observed that “[i]f efficiencies is your major defense, and one of the
parties is not willing to work on integrating the two companies, how in the hell can
you work on achieving the efficiencies?” Id. Another commented that merging
partners are normally expected to be “cheerleaders for each other,” finding Cigna’s
57

 behavior “extremely unusual” and “[t]o put it in certain vernacular, if I were
Anthem, I would be pissed out of my mind.” Id.
E.

Anthem Extended The Termination Date Through April 30, 2017
120. Section 7.1(b) of the Merger Agreement provides that either Party

may voluntarily terminate the Merger Agreement if the Merger has not been
consummated on or before January 31, 2017 (the “Termination Date”). If neither
party terminates, the Agreement continues by its own terms.
121. The Termination Date may be extended unilaterally through April 30,
2017 if all conditions to Closing have been satisfied, or are capable of being
satisfied at Closing, except for required regulatory approvals and the absence of a
judicial order preventing the Closing.
122. By January 18, 2017, the District Court had not yet issued its decision.
Because a decision could soon be forthcoming, Anthem contacted Cigna to outline
detailed next steps to pursue antitrust clearance and consummation of the Merger:
If the District Court’s decision turns out favorably, and DOJ files an
appeal, Anthem intends to resist the appeal vigorously. If the District
Court’s decision turns out unfavorably, Anthem intends promptly to
seek an expedited appeal of the decision. Additionally, in the case of
either a favorable or unfavorable decision, we believe that there is a
path forward involving outreach and potential settlement with the
DOJ, given that there will soon be a new Attorney General and
Assistant Attorney General with responsibility for overseeing the
Antitrust Division. We therefore plan to explore making renewed
outreach and settlement approaches with the new leadership at the

58

 DOJ as quickly as possible. In the event of a favorable decision, we
would seek outreach to head off an appeal.
Next steps, of course, require some time. It is Anthem’s position that
Cigna has no right to terminate the merger agreement on or after the
initial termination date, January 31, 2017, because its failure to
perform its obligations will be a proximate cause of any failure to
consummate the merger by any such date. There is no reason,
however, to debate that now (and we understand that Cigna will
disagree with Anthem’s position on this issue) because we intend to
send Cigna an extension notice this week extending the termination
date through April 30, 2017 so there is no doubt to the market about
Anthem’s continued commitment to the transaction.
We plan to move full steam ahead on the outreach/settlement option
and we hope that Cigna will be a cooperative and active participant in
those efforts with us. We read David’s comments at the JPMorgan
conference and hope that we can work together cooperatively with the
new DOJ leadership to reach a resolution that will allow us to
consummate this transformative and value enhancing merger.
123. Notwithstanding Cigna’s obligation to comply with the Best Efforts
Provision to “tak[e] any and all actions necessary” come hell or high water to
avoid antitrust impediments, including vigorously pursuing all avenues of appeal,
Cigna again failed to support the Merger and only responded that it “received
[Anthem’s] note and Cigna will take it under consideration.”
124. On January 18, 2017, the only condition to Closing that was not
satisfied, or capable of being satisfied at Closing, was judicial and regulatory
approval of the Merger. Thus, on the morning of January 18, 2017, Anthem
provided Cigna with written notice of the extension of the Termination Date
through April 30, 2017 pursuant to Section 7.1(b) of the Merger Agreement. Later
59

 that day at approximately 2:30 p.m., as required by Section 5.8 of the Merger
Agreement, Anthem also provided Cigna with a draft copy of the SEC Form 8-K
that it intended to file the next morning announcing the extension of the
Termination Date through April 30.
125. Cigna did not respond to Anthem. Instead, on January 19, 2017,
Cigna filed a SEC Form 8-K that Cigna received “written notice from Anthem
seeking to extend” the Termination Date and that “[f]ollowing the issuance of the
Court’s opinion, Cigna intends to evaluate its options in accordance with the
Merger Agreement.” In further breach of the Merger Agreement, Cigna provided
Anthem a copy of its Form 8-K at 7:14 a.m. and then filed it at 7:32 a.m.,
providing Anthem only 18 minutes of early morning notice.
126. After Cigna’s Form 8-K was filed, Anthem immediately contacted
Cigna stating: “Anthem has in fact extended the termination date through April
30, 2017, and requests that you promptly file an amended 8-K correcting the
record. In addition to being inaccurate, and filed without the required consultation,
Cigna’s latest disclosure of its lack of commitment to the merger is
harmful.” Anthem had done more than seek to extend, it had done so. Cigna did
not respond.
127. That same day, the New York Post reported that it was “expected”
that the District Court would block the Merger that week. Josh Kosman, Judge To
60

 Block Mega-merger of Anthem and Cigna, N.Y. Post, Jan. 19, 2017. The New
York Post also reported that “Cigna is looking to fight any merger extension as it
looks to wiggle out of the deal and collect a $1.85 billion breakup fee from
Anthem, according to insiders.” Id. The New York Post indicated that it had
spoken to Cigna, which appears then to have been the “insider” that spoke to the
press in further breach of Section 5.8 of the Merger Agreement. Id.
128. On January 25, 2017, Anthem again asked Cigna to provide a
response to its requests for assurance that Cigna would abide by the terms of the
Merger Agreement going forward.

Cigna again ignored Anthem’s request.

Instead, on January 31, 2017, the eve of Anthem’s fourth quarter earnings
conference call, Cigna sent Anthem yet another SEC Form 8-K that it filed at 6:00
a.m. on February 1, 2017 repeating that it had received “written notice from
Anthem seeking to extend” the Termination Date and that “Cigna still intends to
evaluate its options in accordance with the Merger Agreement once the Court
issues its opinion.” And even though it has no right to terminate, Cigna added that
it “has made no determination with respect to Anthem’s notice seeking to extend
the termination date, including whether Cigna will seek to terminate the Merger
Agreement.” Plainly, Cigna had already determined to wrongfully terminate.

61

 F.

Cigna Was Successful In Sabotaging The Merger
129. On February 8, 2017, the District Court issued an order enjoining the

Merger. The District Court heavily relied on Cigna’s refusal to defend the Merger,
stating that the “elephant in the courtroom” was Cigna’s decision to “actively
warn[] against [the Merger]”
(Op.
at 5, 9, 119)
130. The national media reported that “Cigna sabotaged its own merger”
and a “big part of the decision to block the case” was the fact that “Cigna was
actively fighting the merger.” Bob Bryan, ‘The Elephant in the Courtroom:’ A
Federal Judge Says Cigna Sabotaged Its Own Merger That Would’ve Created
Largest U.S. Health Insurer, Business Insider, Feb. 9, 2017. Indeed, the media
reported that the Opinion was a “win” for Cigna because Cigna “convincingly
argued” against the Merger and “Cigna’s skepticism – unusual for a party in a
merger – strengthened the Department of Justice’s case against the deal.” Curtis
Eichelberger & Jeff Bliss, Comment: Cigna Wins with Federal Court’s Rejection
of Anthem Deal, MLex, Feb. 9, 2017.

62

 G.

Anthem Has Appealed The Opinion, As Required; Cigna Has Refused
To Do So
131. The Merger Agreement contemplates, indeed requires, an appeal. On

February 9, 2017, Anthem issued a press release stating that Anthem would “work
aggressively to complete the transaction” and “promptly . . . file a notice of appeal
and request an expedited hearing of its appeal to reverse the Court’s decision so
that Anthem may move forward with the merger.” The same day, Anthem filed its
notice of appeal to the D.C. Circuit. Cigna refused to join Anthem’s press release
and refused to file an appeal, as required under the Merger Agreement.
132. On February 13, 2017, Anthem filed an emergency motion for
expedited consideration of its appeal to enable the D.C. Circuit to issue a decision
on the merits by April 30, 2017. That same day, Anthem also filed its appeal brief
addressing the District Court’s errors. Anthem sent Cigna the papers and asked it
to join. Cigna refused to do so
133. On the afternoon of February 13, 2017, the D.C. Circuit issued an
order directing the DOJ to respond to the emergency motion by noon on
Wednesday, February 15, 2017, and directing Anthem to file a reply by noon on
Thursday, February 16, 2017.

63

 H.

Cigna Has Purported To Terminate The Merger Agreement
134. On February 14, 2017, nearly a month after Anthem extended the

Termination Date and the day before the deadline for the DOJ’s opposition to
Anthem’s motion to expedite the appeal, Cigna purported to terminate the Merger
Agreement in order to prejudice Anthem’s right to appellate review. The same
day, Cigna filed a lawsuit against Anthem seeking a declaratory judgement that
Cigna’s termination of the Merger Agreement was valid.

Cigna had spent

substantial time preparing a lawsuit, yet concealed its intent to terminate
notwithstanding Anthem’s repeated requests for assurances that the Merger
Agreement was extended.
135. Cigna’s termination is invalid because Anthem extended the Merger
Agreement through April 30, 2017, yet again supporting the DOJ’s efforts to block
the Merger.

Cigna’s new position of a January 31, 2017 Termination Date

contradicts its earlier position before the District Court when the Parties and the
DOJ were litigating a scheduling order for discovery and trial. The Parties argued
for a schedule based on the Termination Date of April 30, 2017, as Anthem
unambiguously stated in pleadings to the District Court that it “intends to
unilaterally extend the Termination Date to April 30, 2017 but cannot unilaterally
extend it any further” because Cigna refused to move the Termination Date past
April 30 (further reflecting Cigna’s interest in not merging). When the District
64

 Court asked Cigna for its position, Cigna’s counsel stated that “we would agree
and defer to the points that Anthem has made” and added that Anthem “believe[s]
that April 30th is a real deadline that Your Honor ought to take into account. You
know, from that perspective, that’s a fair assertion.”
136. The District Court acknowledged that an “underlying assumption” of
the schedule is that “we’re marching towards April 30” and asked the Parties to
promptly inform the Court in the event the April 30, 2017 assumption changed.5
The District Court then entered a scheduling order which would require the
proceedings to be concluded by early January 2017, leaving time to pursue
appeals,
(Op. at 14)
137. Cigna’s termination also is invalid because, even absent extension,
Cigna has no right to terminate the Merger Agreement. The right to terminate

5

On the next business day following the scheduling hearing, Cigna contacted
Judge Levie to seek clarity on Judge Jackson’s comments at the scheduling
conference in light of the disputes between Anthem and Cigna and the potential
relevance of such disputes on termination and extension rights under the Merger
Agreement. Judge Levie responded that he spoke with Judge Jackson, and her
comments at the scheduling conference did not express any opinion about the
parties’ disputes. Rather, her comments simply reflected her recognition that the
parties and the Court would be working hard on this case, and she wanted to be
promptly notified if the Agreement was going to be terminated. Cigna never
notified Judge Jackson of any intent to terminate before April 30, 2017 and,
accordingly, the schedule remained based on the April 30, 2017 Termination Date.
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 under Section 7.1(b) is not available to “any party that has failed to perform fully
its obligations under [the] Agreement in any manner that shall have proximately
caused or resulted in the failure of the Merger to have been consummated by” the
Termination Date.

Cigna has repeatedly breached the Merger Agreement,

including by wrongfully terminating it.
COUNT I
(Declaratory Judgment That Anthem Validly
Extended The Termination Date Through April 30, 2017)
138. Anthem repeats and realleges the allegations of paragraphs 1 through
137 as if fully set forth herein.
139. The Merger Agreement is a valid, binding, and enforceable contract.
140. Anthem performed or complied in all material respects with its
obligations under the Merger Agreement and is prepared to continue to pursue the
consummation of the Merger.
141. Section 7.1(b) of the Merger Agreement provides that either Party
may unilaterally extend the January 31 Termination Date through April 30, 2017 if
all conditions to Closing have been satisfied, or are then capable of being satisfied
at Closing, except for required regulatory approvals and the absence of a judicial
order preventing the Closing. On January 18, 2017, all such conditions to Closing
other than required regulatory approvals and the absence of a judicial order

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 preventing the Closing had been satisfied, or were capable of being satisfied at
Closing.
142. On January 18, 2017, Anthem delivered a notice to Cigna, under
Section 7.1(b) of the Merger Agreement, extending the Termination Date through
April 30, 2017.
143. On February 14, 2017, Cigna purported to terminate the Merger
Agreement.
144. Anthem will suffer imminent and irreparable harm if Cigna wrongly
terminates the Merger Agreement. If Cigna terminates, then the Merger will fail,
as Anthem cannot close the transaction on its own. Anthem cannot close the
Merger without Cigna’s assistance in obtaining certain state regulatory approvals
including, among others, in California and Connecticut, and filing a Certificate of
Merger with the Delaware Secretary of State. Cigna also will not participate in
exploring potential settlement opportunities with the new administration. Cigna’s
cooperation and assistance is also needed in settling the case with the DOJ,
including, in order to facilitate any potential divestitures for settlement purposes,
by executing customary non-disclosure agreements with potential buyers, setting
up data rooms containing necessary due diligence information for any divestitures,
and any other necessary actions related to any potential settlement. Moreover, if
Cigna wrongfully terminates, then Anthem cannot meaningfully appeal the order
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 enjoining the Merger.

Thus, Cigna’s termination will prevent Anthem from

closing a $54.2 billion transformative transaction.
145. An actual justiciable and substantial controversy exists between the
Parties regarding Anthem’s extension of the Termination Date through April 30,
2017.

The controversies are of sufficient immediacy and reality to warrant

declaratory relief under Del. Code Ann. Tit 10, § 6501.
146. Anthem seeks a declaration that the Termination Date has been
extended through April 30, 2017 under Section 7.1(b) of the Merger Agreement.
COUNT II
(Declaratory Judgment That
Cigna Cannot Terminate The Merger Agreement)
147. Anthem repeats and realleges the allegations of paragraphs 1 through
146 as if fully set forth herein.
148. The Merger Agreement is a valid, binding, and enforceable contract.
149. On February 14, 2017, Cigna provided notice to Anthem purporting
wrongfully to terminate the Merger Agreement on February 14, 2017 pursuant to
Section 7.1(b).
150. Section 7.1(b) of the Merger Agreement provides that Cigna is not
permitted to terminate the Agreement if its failure to perform its obligations under
the Agreement “shall have proximately caused or resulted in the failure of the
Merger to have been consummated by the Termination Date.”
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 151. Section 5.3 is a material term of the Merger Agreement that obligates
Cigna to use its reasonable best efforts to consummate the Merger, including,
without limitation, to take, or cause to be taken, all actions, to do, or cause to be
done, all things reasonably necessary to satisfy the conditions to Closing and to
consummate the Merger including, among other things, to (i) take “any and all
actions necessary to avoid each and every impediment under . . . antitrust law,” (ii)
facilitate clearance by governmental authorities, (iii) “oppose fully and vigorously”
any action or proceeding challenging the Merger, and (iv) “vigorously pursu[e] all
available avenues of administrative and judicial appeal.”
152. Cigna breached Section 5.3 of the Agreement by not using its
reasonable best efforts, but rather affirmatively acting to sabotage the Merger, as
described above, including by:
(i)

obstructing Anthem’s efforts to submit white papers and customer
support to the DOJ in defense of the Merger;

(ii)

refusing to provide Anthem with the information necessary to
analyze the financial impact of any divestiture proposals;

(iii)

refusing to sign customary non-disclosure agreements and share
customary, basic information with potential buyers to allow a
settlement with the DOJ through divestitures;

(iv)

failing to assist in Anthem’s efforts to integrate the two companies
and, thus, undermining Anthem’s defense at the trial that the Merger
creates efficiencies;

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 (v)

manufacturing a false record of Anthem’s alleged breaches of the
Merger Agreement to undermine Anthem’s defense at trial that the
Merger would create efficiencies, and making such record public;

(vi)

failing vigorously to oppose and defend the DOJ Lawsuit, and,
instead, affirmatively acting in support of the DOJ’s position to
block the Merger;

(vii) refusing to agree to mediation with the DOJ;
(viii) failing to pursue an appeal of the order enjoining the Merger; and
(ix)

wrongfully purporting to terminate the Agreement.

153. Cigna’s breaches of Section 5.3 of the Merger Agreement proximately
caused or resulted in the failure of the Merger to be consummated by January 31,
2017. In blocking the Merger, the District Court stated that the “elephant in the
courtroom” was Cigna’s conduct in “actively warning against [the Merger],”
casting doubt on the Merger’s benefits, and “inflict[ing] significant damage” on
Anthem’s “centerpiece” efficiencies defense.
154. Cigna breaches of Section 5.3 of the Merger Agreement also
frustrated Anthem’s ability to realize the fruits of the Merger Agreement, which
also breached the implied covenant of good faith and fair dealing.
155. Anthem will suffer imminent and irreparable harm if Cigna terminates
the Merger Agreement.

Specifically, if Cigna terminates, Cigna will not

participate or assist in Anthem’s appeal, even it is required to do so under the
Merger Agreement. Cigna also will not participate in exploring potential settlement

70

 opportunities with the new administration. Cigna’s cooperation and assistance is
also needed in settling the case with the DOJ, including, in order to facilitate any
potential divestitures for settlement purposes, by executing customary nondisclosure agreements with potential buyers, setting up data rooms containing
necessary due diligence information for any divestitures, and any other necessary
actions related to any potential settlement. Anthem also will have no way of
consummating the Merger because it needs Cigna’s cooperation to obtain state
regulatory approvals, including, among others, in California and Connecticut, and
to file a Certificate of Merger with the Delaware Secretary of State.
156. Thus, Cigna’s wrongful termination will prevent Anthem from closing
the $54.2 billion transformative transaction.
157. In Section 8.12 of the Merger Agreement, Cigna agreed that
“irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms” and that
the Parties “shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.”
158. An actual justiciable and substantial controversy exists between the
Parties regarding Cigna’s termination rights under Section 7.1(b) of the

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 Agreement. The controversy is of sufficient immediacy and reality to warrant
declaratory relief under Del. Code Ann. Tit 10, § 6501.
159. Anthem seeks a declaration that Cigna cannot terminate the Merger
Agreement because Cigna has failed to perform fully its obligations under the
Merger Agreement, proximately causing or resulting in the failure of the Merger to
be consummated by January 31, 2017.
COUNT III
(Breach of Contract)
160. Anthem repeats and realleges the allegations of paragraphs 1 through
159 as if fully set forth herein.
161. Cigna’s numerous breaches of the Agreement threaten to prevent
Anthem from receiving the benefit of the Parties’ bargain, which would result in
irreparable harm to Anthem and shareholders. Cigna’s breaches have also caused
Anthem to incur significant out-of-pocket costs, including ongoing legal costs
necessitated by Cigna’s senior management’s refusal to defend the Merger or to
participate in discussions regarding a negotiated resolution.
162. Cigna expressly agreed in Section 8.12 of the Merger Agreement to
specific performance and that a breach of the Merger Agreement will cause
irreparable harm. There is no substitute or replacement for Cigna because Cigna is
a unique asset.
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 163. Anthem is entitled to specific performance by Cigna to use its
reasonable best efforts to consummate the Merger, including requiring Cigna to
fully cooperate in obtaining all state approvals as quickly as possible, and to
cooperate and assist in settling the case with the DOJ, including, in order to
facilitate any potential divestitures for settlement purposes, by executing
customary non-disclosure agreements with potential buyers, setting up data rooms
containing necessary due diligence information for any divestitures, and any other
necessary actions related to any potential settlement.
164. Cigna’s breaches of the Merger Agreement have also caused Anthem
substantial damages, including Anthem’s costs associated with the Merger, and
will cause further substantial damages if the Merger does not close. Anthem is
entitled to damages in an amount to be determined at trial.
PRAYER FOR RELIEF
WHEREFORE, Anthem respectfully requests judgment and relief against
Cigna as follows:
A.

On Count I, declaring that Anthem extended the Termination Date
through April 30, 2017 under Section 7.1(b) of the Agreement;

B.

On Count II, declaring that Cigna has no right to terminate the
Agreement because Cigna breached its obligations under the
Agreement and such breaches proximately caused or resulted in the
failure of the Merger;

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 C.

On Counts I, II, and III, enjoining Cigna from terminating the
Agreement or taking any action to prevent or impede regulatory
approval and consummation of the Merger;

D.

On Count III, awarding Anthem specific performance of the Merger
Agreement by compelling Cigna to use its reasonable best efforts to
consummate the Merger, including by fully and vigorously pursuing
an appeal of the Order enjoining the transaction entered by the United
States District Court for the District of Columbia, cooperating in
obtaining all state approvals as quickly as possible, and cooperating
and assisting in settling the case with the DOJ, including, in order to
facilitate any potential divestitures for settlement purposes, by
executing customary non-disclosure agreements with potential buyers,
setting up data rooms containing necessary due diligence information
for any divestitures, and any other necessary actions related to any
potential settlement;

E.

On Count III, awarding Anthem money damages, in an amount to be
proven at trial, sufficient to compensate it for all forms of loss,
without limitation, actual damages, incidental damages, consequential
damages, lost profits, lost goodwill, and other costs and damages it
has and will incur by reason of Cigna’s breaches of the Merger
Agreement;

F.

Awarding Anthem its attorneys’ fees, costs and expenses incurred in
connection with this litigation; and

G.

Granting such other, further and different relief as the Court may
deem just and proper together with the costs and expenses for this
action.

74

 MORRIS, NICHOLS, ARSHT & TUNNELL LLP

OF COUNSEL:
Glenn M. Kurtz
Claudine Columbres
Robert E. Tiedemann
Jesse L. Green
WHITE & CASE LLP
1155 Avenue of the Americas
New York, NY 10036
(212) 819-8200

/s/ William M. Lafferty
William M. Lafferty (#2755)
Kevin M. Coen (#4775)
D. McKinley Measley (#5108)
Richard Li (#6051)
Jason Z. Miller (#6310)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
(302) 658-9200
Attorneys for Plaintiff Anthem, Inc.

February 14, 2017

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 CERTIFICATE OF SERVICE
I hereby certify that on February 17, 2017, the foregoing was caused
to be served upon the following counsel of record via File & ServeXpress:
David E. Ross, Esq.
Garrett B. Moritz, Esq.
ROSS ARONSTAM & MORITZ LLP
100 S. West Street, Suite 400
Wilmington, Delaware 19801

/s/ Richard Li
Richard Li (#6051)