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Wednesday, January 25, 2017

Email, The Gift That Keeps on Giving

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

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

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

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

Posted by Ann Marie Marciarille on January 25, 2017 at 09:00 AM in Corporate | Permalink

Comments

The more things change, the more they stay the same ?

From the opinion of then-District Judge Learned Hand on June 24, 1916, in United States v. Corn Products Refining Company et al., 234 F. 964, 978 (S.D.N.Y):

Ordinarily the intent, which plays so large a part in the decisions of the court in cases of this sort, must be gathered alone from the conduct of the defendants themselves; but in this case, by an unusual chance, the evidence goes much further. The officers of the Corn Products Refining Company apparently had a custom of communicating with each other by typewritten, unsigned memoranda. Apparently it was often difficult for them to interview each other personally, and the affairs of the company were discussed between them by means of these memoranda with the utmost frankness. The documents were never intended to meet the eyes of any one but the officers themselves, and were, as it were, cinematographic photographs of their purposes at the time they were written. They have, therefore, the highest validity as evidence of intention * * * In the face of these memoranda, which for some strange reason were preserved, there can be no question in my mind of the continuous and deliberate purpose of the Corn Products Refining Company, by every device which their ingenuity could discover, to maintain as completely as possible their original domination of the industry. * * * the precise purpose of the anti-trust act to foil.

Posted by: Chuck | Jan 26, 2017 5:36:18 PM

The more things change, the more they stay the same ?

From the opinion of then-District Judge Learned Hand on June 24, 1916, in United States v. Corn Products Refining Company et al., 234 F. 964, 978 (S.D.N.Y):

Ordinarily the intent, which plays so large a part in the decisions of the court in cases of this sort, must be gathered alone from the conduct of the defendants themselves; but in this case, by an unusual chance, the evidence goes much further. The officers of the Corn Products Refining Company apparently had a custom of communicating with each other by typewritten, unsigned memoranda. Apparently it was often difficult for them to interview each other personally, and the affairs of the company were discussed between them by means of these memoranda with the utmost frankness. The documents were never intended to meet the eyes of any one but the officers themselves, and were, as it were, cinematographic photographs of their purposes at the time they were written. They have, therefore, the highest validity as evidence of intention * * * In the face of these memoranda, which for some strange reason were preserved, there can be no question in my mind of the continuous and deliberate purpose of the Corn Products Refining Company, by every device which their ingenuity could discover, to maintain as completely as possible their original domination of the industry. * * * the precise purpose of the anti-trust act to foil.

Posted by: Chuck | Jan 26, 2017 5:36:18 PM

Interesting point. One would think that with all of the scandal that Hillary had to put up with, people in positions of power would keep emails under tighter wraps. We cater to lawyers here at https://dash-seo.com/

Posted by: Donny Knotts | Feb 3, 2017 4:30:17 PM

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