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> Document 204 : INS 99-14 : Hearing Decision
STATE OF MAINE DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION BUREAU OF INSURANCE
In response to the First Discovery Request of the Attorney General ("Request"), Applicant Anthem Insurance Companies, Inc., on behalf of its subsidiary to be formed, Anthem Health Plans of Maine, Inc., d/b/a Anthem Blue Cross and Blue Shield (collectively "Anthem"), has identified documents and responses that warrant confidential treatment and has submitted those materials to the Superintendent labeled as such. Pursuant to the October 19, 1999 Protective Order, Anthem submits the following memorandum in support of such treatment. Anthem requests confidential treatment for only a small number of documents. All of the information for which Anthem seeks protection is sensitive because its disclosure would (1) benefit Anthem’s competitors, (2) reveal Anthem’s sensitive strategic plans, and/or (3) reveal information that even BCBSME should not see while the transaction between Anthem and BCBSME is still pending. Specifically, after reviewing the documents responsive to the Request, Anthem hereby requests that the following documents should be designated confidential and disclosed only in the manner set forth below:
Anthem has, on prior occasions, submitted memoranda in support of confidential treatment that set forth the law generally applicable to confidential treatment of information under the Maine Civil Rules of Procedure and developed in Maine’s caselaw. (See, e .g., Memoranda in Support of Confidential Treatment of (1) Anthem’s Response to Superintendent’s Second Discovery Request, and (2) Supplement to the Form A.) To avoid repetition, Anthem incorporates those memoranda by reference. The documents subject to the present request for confidential treatment fall into three categories. The first category, containing document number AN- 02567 submitted in response to Question No. 8 in the Request, contains the assumptions Anthem used in developing the BCBSME income pro forma projections reflected in confidential document number AN-02051. Document number AN- 02567 is confidential for the same reasons that AN-02051 is confidential – the document shows financial assumptions and projections that are similar to the projections the Superintendent has already determined should be designated confidential. (See October 19, 1999 Protective Order.) Anthem incorporates by reference its Memorandum in Support of Confidential Treatment of AN-02051 (filed together with Anthem’s January 4, 2000 Supplement to the Form A). The second category of documents, AN-02054 to AN-02160, submitted in response to Question No. 1 in the Request, reflect Anthem’s business strategies for development of an eastern region. That information clearly is competitively sensitive and would be harmful to Anthem if publicly disclosed. Within this second category of documents is a subset of documents (AN-02059-AN-02070; AN-02082-AN-02083; AN-02090; AN-02102-AN-02104; AN-02120-AN-02121; AN-02123; AN-02125-AN-02129; AN-02139-AN-02149; AN-02155-AN-02159) that are so sensitive to Anthem, and the disclosure so harmful to Anthem, that these documents require extra protection. These documents contain and are based on financial and premium projections for the Anthem affiliates that will comprise the East Region. In addition to overall financial projections, these documents reveal Anthem’s strategic business plans for developing and integrating the East Region, and Anthem’s analysis of competitor financial data in relation to Anthem’s. These documents offer the reader a roadmap for how Anthem goes about acquiring and integrating regional operations, provide information concerning Anthem’s assumptions and analysis of its decision to enter into the present transaction with BCBSME, and disclose financial plans including premium rate and expense projections. The Superintendent has the discretion, under M. R. Civ. P. 26(c) to protect sensitive business information from disclosure, see, e.g., Ipalco Enterprises, Inc. v. PSI Resources, Inc. 148 F.R.D., 604, 606 (D. S.D. Ind. 1993) (recognizing disclosure of business plans and strategies may be prohibited under Rule 26(c)), and it is particularly important here because the process is still ongoing – Anthem has not yet consummated its deal with BCBSME, nor has it developed and integrated the East Region. See, e.g., Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 419 (D. N.C. 1992) ("We have repeatedly recognized that disclosure of such efforts, while they are ongoing, may be detrimental to shareholder interests"); Stena Finance B.V. v. Sea Containers Ltd. 131 F.R.D. 361, 362 (D.D.C. 1989) ("a target company's strategies, alternatives, or proposals, while under consideration are protected from disclosure."); Temple Holdings Ltd. v. Sea Containers Ltd. 131 F.R.D. 360, 361 (D.D.C. 1989) (same). More sensitive even than financial projections, the information contained within these documents explains the projections, their importance to Anthem, and Anthem’s internal thought processes relative to strategic business judgments that are still in the planning stages. Notwithstanding the sensitivity of the information, Anthem recognizes that there is some probative value to Anthem’s integration plans. To balance that probative value with the sensitivity of the information and the harm to the Company if that information were disclosed beyond those that "must" see the information, Anthem requests an order limiting disclosure to the Superintendent, Attorney General, and their counsel and consultants only. Additionally, consistent with BCBSME’s proposal, Anthem would consent to disclosure of this information to BCBSME’s trial counsel Robert Frank. This disclosure strikes an appropriate balance between the Superintendent’s need to make an informed decision and Anthem’s need to protect this sensitive, competitive information. In its filing, Anthem has designated these materials as follows: "HIGHLY CONFIDENTIAL – FOR BUREAU, AG, AND BCBSME TRIAL COUNSEL EYES ONLY." The third category of documents, AN-02161 to AN-02189, submitted in response to Question No. 4 of the Request, reveal Anthem’s internal evaluation of the proposed transaction with BCBSME. As set forth in Anthem’s January 18th Objections to the First Discovery Request of the Attorney General, Anthem’s internal evaluations and decision-making process are irrelevant to the issues before the Superintendent. Notwithstanding the lack of relevance, Anthem negotiated with Counsel for the AG and agreed to provide the confidential documents referenced above. A subset of the responsive documents (AN-02176 to AN-02181) contain financial, premium and expense projections and, for that reason, are so sensitive that disclosure should be limited to the Superintendent, AG, and trial counsel for BCBSME. Until the deal with BCBSME is consummated, the referenced documents are extremely sensitive and would be valuable to competitors as well as injure Anthem’s ability to negotiate in the future. Considering the minimal, if any, relevance of the documents and the harm to Anthem if the documents were disclosed, the level of protection Anthem requests is warranted. These documents are identified as "HIGHLY CONFIDENTIAL – FOR BUREAU, AG, AND BCBSME TRIAL COUNSEL EYES ONLY." For these reasons, Anthem respectively requests that the Superintendent designate the above-referenced materials as confidential, subject to disclosure only under the terms outlined above and exempt from disclosure under the FOAA. DATED: January 24, 2000
CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 24, 2000, a copy of Anthem’s Memorandum in Support of Confidential Treatment was served by electronic mail on each of the persons listed below. Robert S. Frank, Esq. Harvey & Frank Two City Center P.O. Box 126 Portland, Maine 04112 e-mail: frank@harveyfrank.com (Blue Cross/Blue Shield of Maine)
Judith Chamberlain, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: judy.chamberlain@state.me.us (Bureau of Insurance)
William H. Laubenstein, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: bill.laubenstein@state.me.us (Office of the Attorney General)
Gregory A. Brodek, Esq. Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor Bangor, Maine 04401-6355 e-mail: gabrodek@duanemorris.com (Maine Health Alliance)
Joseph P. Ditre, Esq. Consumer Health Law Program One Weston Court, Level One P.O. Box 2490 Augusta, Maine 04338-2490 e-mail: jditre@mainecahc.org (Consumers for Affordable Health Care Foundation/Coalition)
Michele M. Garvin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 e-mail: Mgarvin@Ropesgray.com (Central Maine Healthcare Corporation; Central Maine Partners Health Plan)
Robert I. Goldman Maine Council of Senior Citizens 27 Bowery Beach Road Cape Elizabeth, Maine 04107 e-mail: Rgoldma1@maine.rr.com (Maine Council of Senior Citizens)
Bonnie Post Executive Director of the Maine Ambulatory Care Coalition P.O. Box 390 Manchester, Maine 04351 e-mail: bdpmacc@mint.net (Sacopee Valley Health Center, Regional Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Care Coalition)
John Dieffenbacher-Krall Executive Director Maine People’s Alliance 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net (Maine People’s Alliance)
Gordon H. Smith, Esq. Maine Medical Association 30 Association Drive P.O. Box 190 Manchester, Maine 04351 e-mail: gsmith@ctel.net (Thomas D. Hayward, M.D., Maroulla S. Gleaton, M.D., And the Maine Medical Association)
Donald E. Quigley, Esq. General Counsel 465 Congress Street, Suite 600 Portland, Maine 04101-3537 e-mail: quigld@mail.mmc.org (Maine Medical Center)
Sandra L. Parker, Esq. Attorney for MHA, Inc. 150 Capitol Street Augusta, Maine 04330 e-mail: sparker@themha.org (MHA, Inc.)
Kellie P. Miller, M.S. Executive Director Maine Osteopathic Association 693 Western Avenue Manchester, Maine 04351 e-mail: meosteo@mint.net (Maine Osteopathic Association)
Edward Miller Executive Director American Lung Association of Maine 122 State Street Augusta, Maine 04330 e-mail: emiller@mainelung.org (American Lung Association of Maine)
DATED: January 24, 2000
Last Updated: October 1, 2008 |
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