Goodwin Procter LLP © Keith D. Shugarman, Chair J. Todd Hahn, Senior Counsel Domestic & Foreign Competition Group ANTITRUST ISSUES IN INSURANCE MERGERS

Goodwin Procter Goodwin Procter LLPLLP

© Keith D. Shugarman, Chair J. Todd Hahn, Senior Counsel

Domestic & Foreign Competition Group

ANTITRUST ISSUES IN INSURANCE MERGERSANTITRUST ISSUES IN INSURANCE MERGERS©©

Recent Developments in Insurance Antitrust ABA SECTION OF ANTITRUST LAWABA SECTION OF ANTITRUST LAW

May 17, 2006New York, NY


Total M&A TransactionsTotal M&A TransactionsU.S. SellersU.S. Sellers(1994-2005)(1994-2005)

$0.0

$0.2

$0.4

$0.6

$0.8

$1.0

$1.2

$1.4

$1.6

$1.8

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

0

2000

4000

6000

8000

10000

12000

Value in $Trillions # of deals


Total H-S-R Transactions ReportedTotal H-S-R Transactions Reported (1994-2005) (1994-2005)

$0.0

$0.5

$1.0

$1.5

$2.0

$2.5

$3.0

$3.5

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

0

1000

2000

3000

4000

5000

6000

Value in $Trillions # of deals


Total Insurance M&A Total Insurance M&A (1994-2005)(1994-2005)

$0.0

$10.0

$20.0

$30.0

$40.0

$50.0

$60.0

$70.0

$80.0

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

0

50

100

150

200

250

300

350

400

Value in $Billions # of Deals


2005 Insurance Deals By Segment2005 Insurance Deals By Segment129 Insurance Deals129 Insurance Deals

Life47%

Accident/Health4%

Fire/Marine Casualty15%

Hospital and Medical Service

32%

Surety2%

Life Accident/Health Fire/Marine Casualty Hospital and Medical Service Surety


2005 Insurance Deals By Segment2005 Insurance Deals By Segment2005 Deal Value in $Billions2005 Deal Value in $Billions

0

5

10

15

20

25

Life Accident/Health Surety Fire/Marine Casualty Hospital/Medical Service


Recent Mega-DealsRecent Mega-Deals


Key M&A Advisory QuestionsKey M&A Advisory Questions

• Are there any exemptions (e.g., McCarren or state action)?

• Are there any foreign, federal, or state filings?

• How long will it take?

• What issues will be analyzed?

• If there is a problem, can we fix it?


H-S-R Filings with FTC/DOJH-S-R Filings with FTC/DOJ• Jurisdictional Elements:

– Size-of-Transaction Threshold:

• $56.7M

– Size-of-Person Test:

• $113.4M/$11.3M persons for deals valued at less than $226.8M;

• No Size-of-Person requirement for deals valued at greater than $226.8M.

• Exemptions

• Item 4(c) documents


Timing: Timing: FTC/DOJ Merger Review FTC/DOJ Merger Review

ProcessProcess


H-S-R Filing

FTC or DOJObtains

Clearance

Second Request

CompanyResponds to

Second Request

FTC or DOJ Staff Recommendation

FTC: BC/BEDOJ: Front Office

Commissioners or AAG

Seek P.I.

FTC MergerScreening

PreliminaryDOJ Review

EarlyTermination

No Suit

No Suit

No Suit

30DAYS

30DAYS

+Voluntary

Extensions

Meetings/Presentations

To AvoidSecondRequest

Oral andWritten

PresentationsTo AvoidChallenge


What Issues Will FTC/DOJ What Issues Will FTC/DOJ Analyze?Analyze?

• Nature and extent of competition between the merging parties

• Market definition

– Geographic– Product

• Market participants and concentration

• Ease of expansion/entry (including state regulatory requirements)

• Market conditions which increase/decrease the potential for anti-competitive effects


Examples in SpecificExamples in SpecificInsurance IndustriesInsurance Industries

• Healthcare

• Title

• Disability

• Life


Health Insurance MergersHealth Insurance MergersInvestigated By FTC/DOJInvestigated By FTC/DOJ

• United HealthCare Corp. / GenCare Health Systems, Inc. (1994)

First second request: DOJ investigated but didn’t challenge merger creating 39-47% of HMO, 45% of PPO, and 41% of HMO-PPO enrollees in St. Louis.

• United HealthCare Corp. / MetraHealth Cos. Inc. (1995)

First divestiture: United resolved Federal & State antitrust concerns by agreeing to sell MetraHealth’s HMO serving greater St. Louis.

• Wellpoint Health Networks Inc. / Health Systems Intl. Inc. (1995)

No second request for proposed creation of second largest HMO in U.S.


Health Insurance MergersHealth Insurance MergersInvestigated By FTC/DOJ (cont’d.)Investigated By FTC/DOJ (cont’d.)

• Aetna Inc. / The Prudential Insurance Co. of Am. (1998)

Seven-month investigation by DOJ & TX:

Count I: reduction in competition in the sale of HMO and HMO-POS plans in Houston (44 + 19 = 63%) and Dallas (26 + 16 = 42%);

Count II: reduction in competition to purchase physician services in Houston and Dallas;

Consent decree required Aetna to divest NYLCare HMO operations in Houston and Dallas.



Anthem/Wellpoint Health Networks (2004)

In October 2003, Anthem announced its intention to acquire Wellpoint Health Networks for $16 billion in cash and stock.

Physician and hospital groups oppose the merger on grounds it would lead to further industry consolidation; Congressional members call for FTC investigation of deal.

DOJ conducts a 4 month investigation, which it closed on March 9, 2004.



• Anthem/Wellpoint Health Networks (cont’d)In announcing its decision, DOJ explained that it had examined the following issues:

1. The competition for sale between Anthem and Wellpoint for the sale of health insurance products;

2. The possibility that a combined Anthem/Wellpoint would have buyer-side market (monopsony) power;

3. Despite the lack of direct competition, whether the combination of complementary Blues plans might increase their incentives or ability to exercise monopsony power;

4. The possible effects of this deal on competition for the acquisition of Blues plans to the detriment of the plans’ shareholders.



• Anthem/Wellpoint Health Networks (cont’d)

Even as it was announcing the close of its investigation, DOJ stated:

“Although this particular transaction should not threaten to harm competition or consumers, we will continue to be vigilant in our enforcement of the antitrust laws in this area.”

• UnitedHealth Group/Mid Atlantic Medical Services (2004)

UnitedHealth’s acquisition of Mid Atlantic Medical Services in February 2004 created the second largest US health insurer.



• UnitedHealth Group/Oxford Health Plans (2004)

After a three-month review, DOJ closed its investigation of UnitedHealth's acquisition of Oxford, a large regional health insurer in CT, NJ and NY.

DOJ found that the merger would not (1) lessen competition in any market for fully-insured health insurance products sold to employers located largely in the tri-state area or (2) create or enhance merged entity buying-side market power over health care providers such as physicians and hospitals in the relevant MSAs.

• UnitedHealth Group/PacifiCare Health Systems (2005)

UnitedHealth Group Inc. and PacifiCare Health Systems agreed to divest portions of PacifiCare's commercial health insurance business in Tucson, AZ and Boulder, CO. UnitedHealth was also required to modify and, after one year, terminate its network access agreement with Blue Shield of California.


Title Insurance MergersTitle Insurance MergersInvestigated By FTC/DOJInvestigated By FTC/DOJ

• Lawyers Title Corp. / Reliance Group Holdings, Inc. (1997)

FTC required divestiture of the plans and related agreements in seven counties in FL, three in MI, St. Louis and D.C.

• Commonwealth Land Title Insurance Co. / First American Title Insurance Co. (1997)

FTC required dissolution of JV and refunds to customers in D.C. area.

• Fidelity National Financial, Inc. / Chicago Title Corp. (1999)

FTC required divestiture of title plant interests in six CA counties.


Life/Home Service InsuranceLife/Home Service InsuranceMergers Investigated By FTC/DOJMergers Investigated By FTC/DOJ

• AEGON N.V./Transamerica Corp. (1999)

FTC terminated its 30-day review of $9.7 billion transaction creating the 3rd largest US Life insurer.

• Manulife Financial/John Hancock Financial Services (2003)

In November 2003, FTC granted early termination of the 30-day waiting period on Manulife’s $10.4 billion acquisition of John Hancock.


Life/Home Service Life/Home Service Insurance (cont’d)Insurance (cont’d)

• Bank One/Zurich Life (2003)

In July 2003, FTC closed its investigation of Bank One’s $500 million acquisition of the U.S. life insurance business of Zurich Life.

• St. Paul/Travelers (2003)

FTC granted announced early termination in December 2003 of the HSR waiting period. St. Paul/Travelers announced completion of the merger on April 1, creating the second largest US commercial insurer.


Disability Insurance MergersDisability Insurance MergersInvestigated By FTC/DOJInvestigated By FTC/DOJ

• Provident Cos., Inc. / The Paul Revere Corp. (1996)

FTC granted early termination.

• Provident Cos., Inc. / UNUM Corp. (1998)

Consent decree resolved concerns regarding the sale of disability insurance sold to individuals in the U.S.


Restructuring to AlleviateRestructuring to AlleviateFTC/DOJ ConcernsFTC/DOJ Concerns

• FTC divestiture study and growth of big foot print mergers have changed the restructuring rules.

• Consent decree terms and conditions are much stricter (e.g., fix-it-first, clean sweep, monitor trustees, technical assistance).

• Licensing is disfavored.


Representative TransactionsRepresentative TransactionsRecently Restructured by ECRecently Restructured by EC

• Talanx/Gerling (2006)

An extensive market investigation led the EC to conclude that the proposed acquisition of Gerling Versicherungsgruppe by Talanx Aktiengesellschaft, would significantly reduce competition in liability insurance for pharmaceutical companies in Germany.

Both HDI Industrieversicherung AG, a Talanx subsidiary, and Gerling had a strong position in providing workers compensation and in acting as leading insurer in liability programs of German pharmaceutical companies.

To address the Commission’s concerns, Talanx agreed to divest HDI’s liability insurance for pharmaceutical companies in Germany.


Representative TransactionsRepresentative TransactionsRecently Restructured by ECRecently Restructured by EC

(Cont’d)(Cont’d)

• Generali / INA (2000)EC approved acquisition by Europe’s third largest insurance company, subject to divestitures to reduce its share of certain life insurance products in Italy to less than 30%.


Representative TransactionsRepresentative TransactionsRecently Approved by ECRecently Approved by EC

• Aviva/RAC (2005)

The EC’s examination of Aviva’s acquisition of The RAC showed that the horizontal overlaps between the parties’ activities in the non-life insurance sector were limited.

In the roadside assistance services market, the RAC is the second largest operator in the UK. The market investigation confirmed, however, that the market is competitive and is currently expanding with the recent entry of new competitors. Therefore, the EC concluded that the proposed operation would not significantly impede effective competition.

The EC also examined the vertical relationship between Aviva and the RAC since Aviva sells roadside assistance products bundled with its motor insurance products. The EC concluded that the proposed acquisition would not give rise to any risk that competition would be reduced given the strong competition faced by Aviva in the insurance sector and by the RAC in the roadside assistance services market.


Representative TransactionsRepresentative TransactionsRecently Approved by EC (Cont’d)Recently Approved by EC (Cont’d)

• CGU/Norwich Union (2000)

EC approved the merger of CGU and Norwich Union into one of Europe's biggest general insurers, with a focus on the UK and Irish markets. The transaction created the fourth-largest European-based insurer by worldwide written premiums and the fifth-largest European-based life insurer.

Later in 2000, the merged CGUN acquired a 50 percent stake in Aseval from Caja de Ahorros de Valencia. The overlaps in the activities of CGNU and Aseval in insurance products were confined to Spain, outside of which Aseval was not active.

Documents

Goodwin Procter LLP © Keith D. Shugarman, Chair J. Todd Hahn, Senior Counsel Domestic & Foreign Competition Group ANTITRUST ISSUES IN INSURANCE MERGERS