By Tom Hals and Diane Bartz
WILMINGTON, Del./WASHINGTON (Reuters) - Health insurer Anthem Inc (N:ANTM) asked a Delaware judge on Monday to give it more time to try to win approval for a merger with rival Cigna Corp (N:CI), which is seeking to end the deal and collect a $1.85 billion break-up fee.
Anthem asked Vice Chancellor Travis Laster of Delaware's Court of Chancery to grant a 60-day preliminary injunction that would prevent Cigna from terminating the $54 billion deal that would create the largest U.S. health insurer.
Laster said after about five hours of arguments that he would rule as soon as possible.
The U.S. Justice Department and 11 states sued to stop the proposed transaction and won in both district court and an appeals court. Anthem wants the injunction while it pursues an appeal to the U.S. Supreme Court.
Anthem attorney Glenn Kurtz of White & Case told the Delaware court on Monday that he hoped the U.S. Supreme Court would decide before July if it would take the case.
Kurtz also said that Anthem would try to negotiate a solution with the Justice Department's Antitrust Division once the Trump administration's officials were in place.
Laster expressed reservations about allowing the deal to be terminated but said it was "a long shot" for Anthem to succeed in winning merger approval.
Kurtz presented documents that he said showed Cigna, including Chief Executive David Cordani, failed to help close the deal as required. Kurtz said Cigna refused to help craft a divestiture package to allay antitrust concerns and was unhelpful in the district court fight.
"If this case is not a breach of best efforts, then I'm not sure that 'best efforts' has any meaning at all," said Kurtz, who called Cigna's actions "unprecedented."
Cigna's attorney argued that it was Anthem that had breached the merger agreement by pursuing a failing antitrust strategy.
"Anthem drove this transaction into a regulatory ditch and had Cigna tied up in the back seat," said William Savitt of Wachtell, Lipton, Rosen & Katz.
Regardless of Laster's ruling on the injunction, litigation will continue over the $1.85 billion breakup fee. Kurtz said Anthem believes Cigna owes it for damages.
The fight takes place as Republicans seek to repeal and replace the Affordable Care Act, often called Obamacare, which had brought big changes in the insurance business.
Many insurers have lost money on Obamacare, and some of Cigna's largest competitors, including Aetna Inc (N:AET), have largely left the market.