Goodwin Procter LLP © Keith D. Shugarman, Chair J. Todd Hahn, Senior Counsel Domestic & Foreign Competition Group ANTITRUST ISSUES IN INSURANCE MERGERS © ABA SECTION OF ANTITRUST LAW Recent Developments in Insurance Antitrust ABA SECTION OF ANTITRUST LAW May 17, 2006 New York, NY

Goodwin Procter LLP Total M&A Transactions U.S. Sellers ( )

Goodwin Procter LLP Total H-S-R Transactions Reported ( )

Goodwin Procter LLP Total Insurance M&A ( )

Goodwin Procter LLP 2005 Insurance Deals By Segment 129 Insurance Deals

Goodwin Procter LLP 2005 Insurance Deals By Segment 2005 Deal Value in $Billions

Goodwin Procter LLP Recent Mega-Deals

Goodwin Procter LLP Key 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?

Goodwin Procter LLP H-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

Goodwin Procter LLP Timing: FTC/DOJ Merger Review Process

Goodwin Procter LLP H-S-R Filing FTC or DOJ Obtains Clearance Second Request Company Responds to Second Request FTC or DOJ Staff Recommendation FTC: BC/BE DOJ: Front Office Commissioners or AAG Seek P.I. FTC Merger Screening Preliminary DOJ Review Early Termination No Suit 30 DAYS 30 DAYS + Voluntary Extensions Meetings/ Presentations To Avoid Second Request Oral and Written Presentations To Avoid Challenge

Goodwin Procter LLP What Issues Will FTC/DOJ 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

Goodwin Procter LLP Examples in Specific Insurance Industries Healthcare Title Disability Life

Goodwin Procter LLP Health Insurance Mergers Investigated 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.

Goodwin Procter LLP Health Insurance Mergers 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 ( = 63%) and Dallas ( = 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.

Goodwin Procter LLP Health Insurance Mergers Investigated By FTC/DOJ (cont’d.) 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.

Goodwin Procter LLP Health Insurance Mergers Investigated By FTC/DOJ (cont’d.) 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.

Goodwin Procter LLP Health Insurance Mergers Investigated By FTC/DOJ (cont’d.) 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.

Goodwin Procter LLP Health Insurance Mergers Investigated By FTC/DOJ (cont’d.) 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.

Goodwin Procter LLP Title Insurance Mergers Investigated 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.

Goodwin Procter LLP Life/Home Service Insurance Mergers 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.

Goodwin Procter LLP Life/Home Service 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.

Goodwin Procter LLP Disability Insurance Mergers Investigated 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.

Goodwin Procter LLP Restructuring to Alleviate FTC/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.

Goodwin Procter LLP Representative Transactions Recently 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.

Goodwin Procter LLP Representative Transactions Recently Restructured by EC (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%.

Goodwin Procter LLP Representative Transactions Recently 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.

Goodwin Procter LLP Representative Transactions 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.