Judge John D. Bates says the insurers failed to show how letting the matter continue into 2017 would hurt them. (Photo: Diego M. Radzinschi/The National Law Journal)

A federal judge in Washington on Wednesday set a December trial for Aetna’s proposed $37 billion acquisition of Humana, a decision that effectively denied the health insurance companies’ push to resolve their deal by the end of the year.

The Dec. 5 start date reflected a compromise between the companies and the U.S. Justice Department, which had earlier pitched a February trial but, on Wednesday, suggested court time in January.

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U.S. District Judge John Bates initially leaned toward starting the trial on Nov. 7, a date that would have accommodated the year-end deadline Hartford, Connecticut-based Aetna and Louisville, Kentucky-based Humana set to close their deal. But the U.S. Justice Department objected, arguing the November start date would not give antitrust regulators a “fair chance” to prepare their case.

The Justice Department had pitched a trial-ready date of Feb. 17 for both the Aetna case and the challenge filed against Anthem’s proposed $54 billion acquisition of Cigna. Justice Department lawyer Craig Conrath suggested, at Wednesday’s hearing, an early January start date for the Aetna-Humana trial.

Conrath said the year-end deadline is not a “drop-dead date” for the Aetna-Humana deal. After the deadline passes, Aetna or Humana could pull out of the deal. Conrath said the two sides are “getting along with each other.”

“I think we’re trying this case no matter what date the court sets,” Conrath said.

Aetna attorney John Majoras, a partner at Jones Day, said the deadline could be moved but added that there is “a lot that goes into these dates.” Last year, Majoras defended appliance maker Electrolux in an antitrust trial over the Swedish company’s proposed acquisition of General Electric Co.’s appliance business. Before the court could issue a verdict, General Electric took the first opportunity it had to walk away from the deal and collect a $175 million breakup fee.

Bates was unpersuaded that Aetna and Humana would suffer any harm if his decision comes after Dec. 31.

“I am struck by, sitting here now, my inability—which is based on, I’ll put it bluntly, the failure on behalf of the defendants—to really identify what the harm is from this matter going beyond Dec. 31,” he said.

Bates said he plans to issue a decision “a little bit beyond the mid-January point” after a 13-day trial in December.

Related:

Humana says it’s still thinking about 2017 ACA exchange strategy

U.S. opposes Anthem push for a quick trial in Cigna merger case

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