Global insurance and reinsurance brokers Aon and Willis Towers Watson (WTW), have emphasised the pressing need for the “earliest possible trial date” for their pending case against the Antitrust Division of the U.S. Department of Justice (DoJ), which seeks to block their $30 billion combination.
After a filing an antitrust civil lawsuit in mid-June as it looks to stop the proposed merger over competition concerns, the DoJ proposed that trial not commence until the end of February, 2022.
In response, Aon and WTW argued that this timeline is untenable and accused the DoJ of resisting an early trial date, while at the same time refusing to offer guidance on what might be the earliest date it would accept.
A delay such as this, said the two brokers, would create even more uncertainty for the companies, their employees, and their clients.
To limit any potential damage and to get their merger agreement moving in the right direction, Aon and WTW requested that the Court set trial to begin on August 23rd, 2021, or as soon thereafter.
Now, in a recent court document, lawyers representing both firms have called for the trial to begin as soon as possible.
“It is not productive to argue about how we got here or who bears the blame,” say Aon and WTW lawyers in the document. “Everyone agrees that merger challenges are litigated very quickly.”
The document continues to explain that within the previous examples of merger schedules provided by the DoJ to highlight its case, the longest schedule was 160 days from complaint to trial.
Aon and WTW note that this is three months shorter than the DoJ’s proposed February 28th, 2022 trial date.
“Nowhere does the Division even attempt to explain why it is necessary to depart from the Division’s own precedent,” says the document.
Additionally, lawyers argue that it’s not appropriate to link negotiations on a Case Management Order to the DoJ’s February 2022 trial date, which is “indefensible given the amount of time the Division has had to investigate this transaction and in relation to precedent merger trials.”
The two global brokerages acknowledge the challenges of entering trial in just two months, but ask the Court that when setting it’s trial date, it take into consideration “Defendants’ urgent need for the earliest possible trial date, consistent with the Court’s own schedule and the fact that the Division has already had ample time to prepare its case.”
On the same day (July 5th), court documents submitted by the attorney for the Antitrust Division of the DoJ detail the plaintiff’s opposition of Aon and WTW’s motion to compel premature discovery.
For context, when preparing for trial, both sides engage in discovery; a formal process where parties exchange information and evidence they intend to present at trial. Essentially, it offers both sides a chance to see what might be presented before trial commences.
While depositions are one of the most common methods of discovery, either side is also permitted to submit written questions to the other and require responses in writing within a certain time period.
These written questions are known as interrogatories, and according to the DoJ, Aon and WTW have asked the DoJ to respond to “special” interrogatories which appear to relate to allegations in the DoJ’s complaint.
However, the DoJ argues that there is “nothing “special” about these Defendants or this case that justifies premature discovery.”
Ultimately, the DoJ states that the two brokers fail to show good cause for their requests for premature discovery.
Lawyers representing the Plaintiff go on to note that the Defendants have refused to negotiate a schedule for discovery and instead are seeking “special” interrogatories ahead of discovery.
The DoJ’s position is that Aon and WTW should serve interrogatories as part of a comprehensive case management order.
“Ultimately, if Defendants want answers to their interrogatories there is an appropriate mechanism to seek them: through proper Rule 26 discovery, once the parties have met and conferred and the Court has entered a case management order. Defendants’ motion to compel should be denied so the parties can proceed with this case on the proper track,” concludes the document.
While litigation surrounding the mega-merger is pending in the U.S., regulators in other countries have started to push back their respective deadlines for making a decision on the transaction.