On July 16, the FTC announced that it had reached a settlement with title insurer, Fidelity National, resolving charges that Fidelity National’s acquisition of LandAmerica Financial, a rival title insurer, was anticompetitive. To resolve the matter, Fidelity National agreed to various forms of structural relief, including the divestiture of a title plant in Oregon and an agreement to make title plant data available to competitors in Oregon and Michigan. [A “title plant” compiles the data used by a title insurer to determine ownership interests in real property, so that the potential risks associated with the issuance of title insurance can be underwritten accurately by the title insurer.]
The FTC’s action arose from Fidelity National’s 2008 acquisition of LandAmerica. At the time of the transaction, both Fidelity National and LandAmerica were among the nation’s largest title insurers, but LandAmerica had recently declared bankruptcy. The parties, fearing further deterioration in LandAmerica’s assets if the deal was not quickly approved by antitrust regulators and the bankruptcy court, obtained swift approval of the deal from the FTC, subject to a retrospective review of its competitive implications post-closing.
After a lengthy investigation, the FTC issued its complaint, contending that the deal had anticompetitive effects in several markets. To resolve the action, Fidelity National has agreed to sell part of its ownership interest in a title plant in Portland, Oregon, to make the data generated at its other Oregon title plants available to a rival regional title insurer, Northwest Title, to make title data in Michigan available to a regional title insurer in that state, and to inform the FTC before seeking to acquire 50% or more of any joint title plant in California, Colorado, Nevada, New Mexico, Oregon and Texas, regardless of whether the transaction would otherwise be reportable under the Hart-Scott-Rodino Act.