IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`IN RE ANTHEM-CIGNA
`)
`Consolidated
`MERGER LITIGATION
`)
`C.A. No. 2017-0114-JTL
`
`
`NON-PARTY BLUE CROSS BLUE SHIELD ASSOCIATION’S
`MOTION FOR AN EXTENSION OF TIME TO FILE AN
`APPLICATION PURSUANT TO COURT OF CHANCERY RULE
`5.1(g) TO CONTINUE RESTRICTION ON PUBLIC ACCESS TO
`DOCUMENTS FILED UNDER SEAL
`
`Non-Party Blue Cross Blue Shield Association (“BCBSA”) hereby
`
`
`
`requests a thirty (30) day extension of time to respond to the January 12, 2024
`
`notice from the Register in Chancery stating that documents filed under seal
`
`in the above-captioned litigation will be released from confidential treatment
`
`unless an application is made for continued confidential treatment before
`
`February 12, 2024. In support of this request, BCBSA states the following:
`
`1.
`
`This action concerned a breach of contract dispute over the
`
`unconsummated merger of two health insurance companies, Anthem, Inc.
`
`(today operating under the corporate name “Elevance Health, Inc.”)
`
`(“Anthem”) and Cigna Corporation (“Cigna”), which did not receive
`
`regulatory approval. Both parties brought suit claiming the other had
`
`breached the merger agreement.
`
`2.
`
`Anthem is a member of BCBSA, an Illinois not-for-profit
`
`corporation. BCBSA was not a party to this action. BCBSA was not a
`
`EFiled: Feb 09 2024 09:42PM EST
`Transaction ID 72005205
`Case No. 2017-0114-JTL
`
`
`IN RE ANTHEM-CIGNA
`)
`Consolidated
`MERGER LITIGATION
`)
`C.A. No. 2017-0114-JTL
`
`
`NON-PARTY BLUE CROSS BLUE SHIELD ASSOCIATION’S
`MOTION FOR AN EXTENSION OF TIME TO FILE AN
`APPLICATION PURSUANT TO COURT OF CHANCERY RULE
`5.1(g) TO CONTINUE RESTRICTION ON PUBLIC ACCESS TO
`DOCUMENTS FILED UNDER SEAL
`
`Non-Party Blue Cross Blue Shield Association (“BCBSA”) hereby
`
`
`
`requests a thirty (30) day extension of time to respond to the January 12, 2024
`
`notice from the Register in Chancery stating that documents filed under seal
`
`in the above-captioned litigation will be released from confidential treatment
`
`unless an application is made for continued confidential treatment before
`
`February 12, 2024. In support of this request, BCBSA states the following:
`
`1.
`
`This action concerned a breach of contract dispute over the
`
`unconsummated merger of two health insurance companies, Anthem, Inc.
`
`(today operating under the corporate name “Elevance Health, Inc.”)
`
`(“Anthem”) and Cigna Corporation (“Cigna”), which did not receive
`
`regulatory approval. Both parties brought suit claiming the other had
`
`breached the merger agreement.
`
`2.
`
`Anthem is a member of BCBSA, an Illinois not-for-profit
`
`corporation. BCBSA was not a party to this action. BCBSA was not a
`
`EFiled: Feb 09 2024 09:42PM EST
`Transaction ID 72005205
`Case No. 2017-0114-JTL
`
`
`
`signatory to the merger agreement and played no role in approving the merger.
`
`BCBSA owns the rights to use the Blue Cross and Blue Shield trademarks and
`
`licenses the right to use those trademarks to its member Plans, including
`
`Anthem.
`
`3.
`
`In response to non-party subpoenas from Cigna, several BCBSA
`
`witnesses gave deposition testimony in this case and BCBSA produced
`
`thousands of documents. In addition, we understand that many documents
`
`produced by Anthem in this case contain confidential BCBSA information.
`
`4.
`
`Over the course of the litigation, the parties filed over one
`
`thousand documents under seal, including documents produced by BCBSA
`
`and documents containing confidential BCBSA information. Given the
`
`nature of the litigation, many of the documents filed under seal relate to
`
`business operations of the parties and their affiliates, including documents
`
`discussing internal governance matters, strategic business decisions and
`
`business dealings with third parties.
`
`5.
`
`BCBSA and its counsel have been reviewing the materials and
`
`believe that good cause exists for the continued sealing or continued redaction
`
`of some of these documents. For example, some of the documents contain
`
`BCBSA’s confidential third-party information and competitively sensitive
`
`information about BCBSA’s internal governance and strategies.
`
`2
`
`
`
`6.
`
`Counsel has been working diligently to obtain and review the
`
`sealed documents in this case that may contain BCBSA confidential
`
`information, but does not believe that the process of reviewing the sealed
`
`documents to identify information that may warrant continued confidential
`
`treatment and preparing the required motion to maintain confidential
`
`treatment as needed can be concluded in advance of the current February 12,
`
`2024 deadline. The review process is further complicated by the passage of
`
`time, the fact that certain documents became public during the trial of this case
`
`and the fact that BCBSA is no longer represented by the firm that served as
`
`Of Counsel during the matter.
`
`7.
`
`Under these circumstances, BCBSA and its counsel respectfully
`
`request that the protected information continues to be sealed through March
`
`13, 2024, or such other date as the Court deems appropriate, to permit BCBSA
`
`to complete its review and file, to the extent necessary, a motion for the
`
`continued confidential treatment of certain documents or portions thereof.
`
`This Court has previously granted similar such relief. See, e.g., In re WeWork
`
`Litigation, C.A. No. 2020-0258-JTL (Del. Ch. Feb. 2, 2024) (ORDER)
`
`(granting a 30-day extension to file an application for continued confidential
`
`treatment and ordering that documents filed under seal remain under seal until
`
`the final disposition of any application for continued confidential treatment);
`
`3
`
`
`
`Morris v. Spectra Energy Partners (DE) GP, et al., C.A. No. 12110-VCG
`
`(Del. Ch. Jan. 25, 2022) (ORDER) (same); In re Activision Blizzard, Inc.
`
`S’holder Litig. Consol., C.A. No. 8885-VCL (Del. Ch. Apr. 6, 2021)
`
`(ORDER) (granting a 60-day extension).
`
`8.
`
`Counsel for BCBSA reached out to the litigation counsel that
`
`represented the parties in this action to seek those parties’ positions on
`
`BCBSA’s extension request. Counsel for Anthem stated that Anthem agrees
`
`with the extension request. Counsel for Cigna stated that Cigna has no
`
`objection to the extension request.
`
`WHEREFORE, BCBSA respectfully requests that the Court enter an
`
`Order, in the form attached hereto, granting BCBSA until March 13, 2024, to
`
`complete its review and file any motion for continued confidential treatment
`
`and order that all documents filed under seal will be maintained under seal
`
`until the final disposition of any application for continued confidential
`
`treatment.
`
`4
`
`
`
`
`
`
`/s/ Adam K. Schulman
`A. Thompson Bayliss (#4379)
`Adam K. Schulman (#5700)
`ABRAMS & BAYLISS LLP
`20 Montchanin Road, Suite 200
`Wilmington, DE 19807
`(302) 778-1000
`Counsel for Blue Cross Blue Shield Association
`
`Words: 706
`Word Limit: 3,000
`
`
`
`Of Counsel:
`
`Karin A. DeMasi
`(pro hac vice forthcoming)
`Lauren R. Kennedy
`(pro hac vice forthcoming)
`Lillian S. Grossbard
`(pro hac vice forthcoming)
`CRAVATH, SWAINE
`& MOORE LLP
`Worldwide Plaza
`825 Eighth Avenue
`New York, NY 10019
`(212) 474-1000
`
`February 9, 2024
`
`
`
`5
`
`
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