Aetna, Humana assess next options

"We continue to believe a combined company will create access to higher-quality and more affordable care and deliver a better overall experience for those we serve," Aetna Chairman and CEO Mark Bertolini and Humana CEO Bruce Broussard said in a joint statement.

The executives also said the companies will remain focused on their respective operating plans while assessing potential outcomes — which are expected to include an appeal of Monday's ruling by U.S. District Court Judge John Bates, revising the merger terms in a bid to overcome Department of Justice opposition, or scuttling the deal.

There was no immediate timetable for a final decision by the companies.

Aetna (AET) fell 1.3% to close at $117.61 Tuesday, and Humana (HUM) slid 2.5% to close at $199.94.

The antitrust debate focuses on the plan announced in July that calls for Hartford, Conn.-based Aetna to acquire Louisville-based Humana and create the largest U.S. seller of private Medicare Advantage plans, covering more than 4.1 million seniors.

Bates' ruling in the closely watched antitrust lawsuit largely agreed with objections in the government lawsuit filed by the Department of Justice and several states. The decision enjoined the mega-merger on grounds that it would be likely to "substantially lessen competition" in markets for individual Medicare Advantage plans as well as for health insurance coverage sold on public exchanges.

Bates also concluded that Aetna tried to "leverage" the company's continued participation in federal Affordable Health Care Act exchanges in exchange "for favorable treatment from DOJ regarding the proposed merger."

RELATED: Trump election spurs record Obamacare sign-ups

The judge cited court records in which Bertolini and other Aetna executives suggested the company would withdraw from the exchanges if the Department of Justice sued to block the merger with Humana.

"This is persuasive evidence that when Aetna later withdrew from the 17 counties, it did not do so for business reasons, but instead to follow through on the threat that it made earlier," Bates wrote. He added that internal company emails and other records show that Aetna "tried to conceal from discovery in this litigation the reasoning behind their recommendation to withdraw" from the exchanges.

Department of Justice officials called the decision a victory for consumers.

There's probably more uncertainty ahead should the companies decide to do battle over the ruling.

The last thing companies want to do is run up the meter in time and cash for more litigation. A $1 billion breakup fee was agreed to in the original sale document, which ensured the companies stayed together in trying to gain approval for the deal.

If the companies decide to appeal, they're rolling the dice that a three-judge federal appeals court panel will overturn Bates' ruling.

A chunk of the trial in Washington, D.C., was devoted to the companies' plans to selling off business with 290,000 Medicare Advantage customers to Molina Healthcare of California. But the government's lawyers presented evidence during the trial that Molina seemed overwhelmed by the prospect of assuming the business and also wary of the "fire sale" price offering by the big companies. The point was to eliminate overlaps in key counties. During closing arguments, Justice Department lawyers insisted that consumers stood to really lose by the solution offered by Molina.

As it turned out, Bates didn’t buy the companies' assertions that it would work. He wrote that without Aetna’s or Humana’s provider contracts, Molina stood at a disadvantage. It would have to start "from scratch” in 364 counties and in 325 “of which it has no presence whatsoever,” Bates wrote.

A decision is expected later this month on a similar though not an identical antitrust challenge to the planned $48 billion health insurance merger of Indianapolis-headquartered Anthem and Connecticut-based Cigna, two other members of the Big Five U.S. health insurance companies.