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Transparency at Issue in Merger Trial

Transparency is a hot topic in politics right now, but yesterday at the trial of Anthem and Cigna, we got a reminder that judicial transparency is also an important issue. The second day of trial began with a continuation of questioning Anthem CEO Joseph Swedish, however that was quickly put on hold to clear the courtroom on non-essential personnel. This was done so that attorneys from both parties could move onto topics Anthem desired to have sealed from the public, a request granted by the special master in this case. Over the course of the day, much to the chagrin of the 50 or so trial attendees, long chunks of testimony were kept secret from the public.

Judge Amy Berman Jackson immediately acknowledged the disparity between expectations of the insurers and of the media, citing a significant public interest in this case. She stated that the parties would have until Monday to present to her why substantial portions of testimony should not be unsealed. Members of the press attending the trial worked on drafting a letter asking for more transparency during the long periods of sealed testimony. It has been widely reported that Anthem and Cigna have had inter-party disputes about the merger and ensuing litigation; the subject was certainly discussed during sealed testimony (it was made clear just before spectators cleared out).

The parties only have to convince the judge in merger cases, so why is transparency important? It largely comes down to freedom of information and faith in the process. Transparency in our courts is a hallmark of the American judicial system, but businesses also have a compelling reason to keep sensitive, strategic information secret. Access to information during the litigation process allows the public to engage with the legal process, from simply reading the news to more direct involvement through amicus briefs. We also want to have a system that does not rely on blind faith in impartial judges, but rather shows its credibility through fairness and transparency. In keeping with this tradition, Judge Jackson ordered the parties to identify the most sensitive information so that she can release the rest.

The Anthem and Aetna cases are in many ways the last hard kick at the end of the Obama Administration. Shortly after Judge Jackson makes her decision about this case, President-elect Trump will be sworn in and will take on the responsibility of appointing judges to the same bench as Judge Jackson. Against that backdrop, transparency is now itself an important goal. Hopefully within the next week, documents and transcripts will be available and the public will be able to see what at least some of the fuss was all about.

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