FICHA DE REVISIÓN DOCUMENTAL

16. MMC commenced this action by filing its original Complaint in the Common Pleas Court of Stark County, Ohio, on December 27, 2007. MMC amended its Complaint effective December 12, 2008, by filing an Amended Complaint which contained an entirely new claim within the subject matter jurisdiction of this Court. The new claim seeks treble damages pursuant to Ohio’s Pattern of Corrupt Activities Act, based solely upon conduct alleged to violate federal law. Specifically, the new claim is predicated upon alleged violations of ERISA, (18 U.S.C. §1954) as well as alleged violations of the federal mail and wire fraud statutes (18 U.S.C. §§1341, 1343).

17. As a result of MMC’s assertion of a new claim presenting substantial federal questions, Aultman removed the action to this Court pursuant to 28 U.S.C. §§1331, 1441 et seq. This Court has jurisdiction of the claims and counterclaims in this action pursuant to 28 U.S.C. §1441(c). Venue is proper in this Court pursuant to 28 U.S.C. §1446(a).

FACTS

18. Aultman Hospital has been providing necessary health care services to the Canton community and beyond since 1892. The Hospital and its affiliates have seen and withstood

last 40 years. During that same period, Aultman, together with other citizens of the community, have also seen and weathered the economic challenges presented by the general decline in this region’s industrial base.

19. Consistent with its charitable mission, Aultman Hospital has always strived to provide low cost, high quality health care. In the mid-1980s, the Hospital became aware that insurance companies, mostly for-profit, were reaping the benefits of its low charges for high quality health care by failing to pass on the savings that its low costs generated to employers and other insureds in the community in the form of lower premiums. Aultman believed that the consumer, not the insurance company, should realize the savings. In response, Aultman decided to create AultCare so it could offer its own insurance-related products directly to local employers on a “break-even” basis. AultCare began by primarily offering claims payment and administration type services to employers who were self-insured, including Aultman Hospital itself. As Aultman became more familiar with the insurance business, and as employers learned the benefits and value of AultCare’s affordable products, Aultman was able to expand by offering traditional insured products to local employers through McKinley.

20. In the 1980s and early 1990s, AultCare and McKinley marketed their insurance products and services primarily through their own in-house sales force. They did not rely primarily on brokers to sell their insurance products because they were attempting to reduce overhead costs to keep their prices competitive and as low as possible for the benefit of the health care consumers. As a result, while AultCare and McKinley offered competitive rates for their products, many brokers did not provide AultCare or McKinley quotes to the employers. This was in part because brokers were generally unfamiliar with AultCare’s and McKinley’s

products and provider network. There was thus a general reluctance within the broker community to present AultCare or McKinley plans to their clients.

21. In the mid-1990s, Aultman was confronted by unprecedented competitive pressures that threatened its very existence and caused it to reconsider its traditional reliance on its in-house sales force. Among other things, Aultman faced the Clinton Administration’s then- popular proposal to create a national health care program that focused on coordinating coverage through regional or national health plans with very large memberships. That meant that AultCare, a small, local insurer, would probably be cut out of the market, thus eliminating its ability to pass along the Hospital’s lower costs to consumers, while bigger insurance companies, which did not necessarily share Aultman’s charitable mission, would likely view the Hospital’s low charges simply as an opportunity to increase their own profits, as they had done in the past, without necessarily passing such low costs along to their insureds.

22. At the same time, Aultman faced serious competitive threats from outside for- profit health care providers who were radically transforming the local and national private health care markets. For example, Columbia HCA, a for-profit, multi-billion dollar business empire, which had acquired more than 350 hospitals across the country, was literally trying to corner the health care market in many areas, including Ohio, by buying local hospitals and then forcing the competition out of business. Columbia, which was described by government officials as the PACMAN of the marketplace, was attacking and then taking over not-for-profit community hospitals at a rapid pace, and then turning them into for-profit enterprises while squeezing out all competition so that it could raise hospital charges, all to the ultimate detriment of the health care consumer.

23. In 1995, Columbia turned its attention to Stark County and began its effort to control the local health care market. At that time, Columbia and the SCSA announced their intention to combine forces by selling off 50% of four of SCSA’s hospitals, including MMC, to Columbia for $288 million, $75 million of which was to be siphoned to SCSA’s establishments in South Carolina. The hospitals, including MMC, would then be converted to for-profit status, a prospect that concerned MMC’s then Board of Trustees and Medical Executive Committee, as well as other members of the community, because of its “impact on the community, patient care and the mission of the hospital.” (See Exhibits A and B attached hereto.)

24. These concerns were not unfounded. Around the country, Columbia was being accused of anticompetitive behavior and of giving its own financial considerations priority over community needs. Decisions were made centrally and not at the community level, since Columbia had no presence in any particular community. Columbia closed needed local community hospitals once it had secured market position with control of all hospital facilities in the region. By comparison to not-for-profit hospitals, Columbia did not invest in costly services as readily and the levels of charitable and indigent care its corporate-owned hospitals provided were substantially reduced, if such care was provided at all. Columbia’s prices for services were consistently higher and any cost savings were attributable to aggressive staff reductions. Columbia was also accused of “cherry picking” profitable hospital admissions, cream skimming (refusing to provide less profitable services) and patient dumping (sending uninsured or underinsured patients to its competitors). The large profits generated by Columbia through these self-serving practices were passed along to the company’s shareholders and did not benefit the communities where the hospitals were located.

25. Because of its concern about Columbia’s practices, MMC’s Medical Executive Committee initially voted against the sale to Columbia. Since it was clear that the existing MMC Board of Trustees was also opposed to the sale to Columbia, and would similarly vote against it, SCSA removed all local representation on the Board just before the vote by firing the Board and installing a new, hand-picked Board made up of SCSA Cleveland representatives. (See Exhibit B). As expected, the replacement board promptly approved the 50% sale to Columbia. Columbia then proudly and publicly announced its intention to “bury Aultman” next.

26. On behalf of MMC, Columbia’s crusade to dominate the Stark County, Ohio market then spread to nearby Massillon, Ohio. In January 1996, Columbia negotiated an agreement with Massillon Community Hospital whereby Massillon Community Hospital agreed to negotiate exclusively with Columbia for the sale of the non-profit hospital to the for-profit Columbia. Thereafter, Massillon Community Hospital’s Board approved a letter of intent to sell the hospital to Columbia, which was signed May 14, 1996.

27. The Massillon community later learned that the terms of the letter of intent included language that would have allowed Columbia to shut down Massillon Community Hospital and ban it from competing with any service offered or contemplated to be offered by Columbia. Local leaders saw this language as a blatant, anticompetitive attempt by Columbia to buy and close Massillon Community Hospital only to strengthen MMC and tighten its stranglehold in Stark County. MMC and Columbia were, thus, attempting to leverage their combined resources to reduce MMC’s competition, most of which were non-profit entities, so that MMC could set out on its new profit-seeking mission without having to worry about its competitors. Only in the face of the then Ohio Attorney General’s intention to block this for-

profit/not-for-profit combination, did Massillon Community Hospital call off the anticipated transaction.

28. Columbia’s efforts to dominate the health care market, so as to boost MMC’s profitability, were not limited to hospitals. Columbia also commenced an aggressive program of buying doctors’ practices in the five county area surrounding Canton to cement exclusive referral sources and provider agreements between doctors and MMC.

29. Columbia and Counterclaim Defendant were also focusing their attention on insurance companies such as Ohio HealthChoice and Blue Cross/Blue Shield of Ohio, to solidify their stranglehold on health care. In 1996, Columbia announced its intention to purchase Blue Cross/Blue Shield of Ohio for $299.5 million. However, the then Ohio Attorney General launched an investigation into that transaction, eventually initiating a lawsuit to block the sale. The transaction was abandoned in 1997, when United States government agents uncovered corrupt conduct after raiding and investigating Columbia. Not surprisingly, Columbia later pleaded guilty to criminal charges, including fraud.

30. To ensure Aultman’s survival in the face of these threats to its charitable mission in 1996 and 1997, and to protect this community, Aultman needed to grow AultCare’s base of insured employers and individuals quickly and significantly. It initially explored buying other health plans, but the cost was prohibitive and no significant acquisition opportunities were available. It eventually concluded that even if it could afford to engage in the kind of aggressive acquisition campaign that Columbia and others were pursuing, such a strategy would ultimately force it to increase its insurance premiums significantly, contrary to Aultman’s charitable mission of providing affordable health care to the region’s consumers.

31. Aultman thus decided to work more closely with health insurance brokers, which it had not previously done, to increase AultCare’s plan membership. Because most of the large employer groups in the area were already committed, some to AultCare, Aultman decided to work with brokers and focus on small and mid-sized employers to try to increase plan membership. Although AultCare could have trained additional sales representatives of its own, the brokers were already familiar with the employers and the market and were, therefore, the best avenue to Aultman for introducing AultCare products to the broader community. Health insurance coverage is typically contracted for a year at a time, and decisions are revisited annually based upon satisfaction with services and cost.

32. In 1997, Aultman created the Conversion Support Program (“CSP”). The CSP was designed to incentivize certain brokers to include AultCare’s and McKinley’s health insurance plans among the plans they presented to their employer clients in Northeastern Ohio, and to compensate such brokers appropriately for any additional work necessary to get an insurance quote from AultCare or McKinley and to convert any employer group that selected AultCare or McKinley over a prior insurer or service provider. Such underwriting requirements and plan procedures were more extensive and time consuming than Aultman’s competitors’ in both respects.

33. Under the terms of the CSP, the Aultman Health Foundation funded the payment to the broker of a bonus, or override, of $100 per insured individual (known as a “life”) for certain health plans and $200 per life for certain other health plans. This was a one-time payment (paid over two years only) to the broker in addition to standard commissions offered by AultCare and McKinley. Nothing about CSP was illegal or unethical in any respect. Virtually every seller of health care insurance and related services in Ohio offers both a standard

commission and an “override,” or incentive bonus, similar to or greater than the CSP in amount, but unlike AultCare, others are paid monthly or yearly during the entire life of the business.

34. The CSP was funded by the Foundation as a part of Aultman’s strategic growth plan. Because the CSP payments were not made by AultCare or McKinley, they were not factored into the insurance premium or administrative charge quoted or charged to any employer whose business was solicited. Accordingly, the CSP payments did not increase the cost of insurance or related services to employers or employees who selected an AultCare or McKinley health plan or administrative service. Other health insurers, on the other hand, fund their broker incentive payments with the premiums they charge, thereby raising the insurance costs to the health insurance consumers of the community.

35. Initially, participation in the CSP was offered to only nine insurance broker agencies. This was primarily a cost saving limitation born of Aultman’s concern that opening the CSP to the broader broker community would be too costly and would eventually necessitate raising AultCare’s and McKinley’s premiums to the detriment of individuals and businesses in the community.

36. To prevent AultCare’s and McKinley’s competitors from copying the program for as long as possible, and to prevent other brokers who were not offered CSP opportunities from hearing about it and being upset, the original nine participating agencies were asked and agreed to keep the program confidential. There was nothing illegal, unethical or even unusual about this confidentiality agreement. In fact, the terms and amounts of insurance broker compensation programs offered by AultCare’s and McKinley’s competitors are typically subject to confidentiality provisions such as those adopted by Aultman for its CSP program.

37. The CSP brought AultCare and McKinley to the attention of brokers through whom their products were offered and the respective employer groups with whom the brokers dealt. AultCare and McKinley were included in the bidding process for certain employers, along with other insurance plans. After reviewing the presented options, a number of employers moved their insurance coverage and/or services to AultCare or McKinley from other insurance carriers. In each instance, the decision to switch to AultCare or McKinley was made on the basis of more affordable rates, better value for the plan design, better network availability, or improved claims service, or a combination of these factors. No broker who participated in Aultman’s CSP improperly “steered” an employer to AultCare or McKinley. This is evident from the fact that once an employer switched to AultCare or McKinley, it almost invariably remained with Aultman. AultCare and McKinley have maintained a 98% business retention, even though no CSP payment was made to any CSP broker for a particular client after the initial CSP payment was complete.

38. Since 1997, AultCare and McKinley have added policy holders to their insurance plans and services through the CSP and related broker programs. While this has naturally increased the number of patients treated at the Hospital, it represents only a small portion of the increase in policyholders that Aultman has experienced since the late 1990s. Most of that increase has come through non-CSP brokers and various other initiatives undertaken in response to competitive pressures, and from providing superior hospital and other health care services to the residents of Stark County and the surrounding area at the lowest possible cost. AultCare and McKinley’s insurance competitors have also increased their membership during this time period. Most of these competitors have provider contracts with MMC, but not with Aultman Hospital. AultCare and McKinley’s competitors’ increase in membership has therefore inured to MMC’s

benefit in Northeastern Ohio. Thus, to the extent MMC has suffered any decrease in its business levels during that same period, such decrease is attributable to its own acts and omissions, including its own mismanagement or failure to provide cost-effective and quality services to MMC’s patients, and not to any improper action or business practice of Aultman.

39. Rather than address Aultman’s higher quality, lower-cost health plans by creating or endorsing plans and services of equivalent scope and value, MMC launched a carefully orchestrated, malicious campaign of defamation and disparagement, including this frivolous lawsuit and false and misleading advertising, to harm the business of Aultman and thereby obtain a competitive advantage which its business operations to date have been unable to achieve.

40. This current campaign of defamation and disparagement was preceded by a lawsuit filed in December 2003 by PCM, another claims administration provider and competitor of AultCare. Just as MMC does in this action, PCM accused Aultman of supposed anti-trust violations, tortious interference, and civil conspiracy. One of PCM’s counsel is MMC’s counsel in this case. Significantly, the tactics used by PCM included malicious publication of the same falsehoods that have been published by MMC, including outright lies concerning Aultman and misrepresentations about Aultman’s CSP in particular.

41. After two years of litigation, the PCM case was resolved by a business settlement through which the Foundation acquired PCM at a favorable price to Aultman.

42. Within a few months of resolving the PCM litigation, the PCM attorney who is MMC’s counsel here filed a second lawsuit, this time on behalf of The Health Plan of the Upper Ohio Valley, Inc. and its subsidiaries (“THPUOV”), also direct competitors of AultCare and McKinley. In that Complaint, portions of which were identical in form and substance to the PCM Complaint, THPUOV maliciously published falsehoods about Aultman, including

falsehoods and misrepresentations about its CSP, and about the Foundation’s funding of the CSP incentives. That case remains pending in Tuscarawas County, Ohio.

43. The Ohio Department of Insurance commenced an inquiry into broker compensation in Ohio generally, and into the Aultman CSP in particular, in 2004. The Department investigation into Aultman’s CSP was initiated, in whole or in part, upon a “complaint” by THPUOV, whose counsel was common to PCM and MMC. After conducting an investigation, however, the Department found no violation of Ohio insurance law on the part of the Aultman Counterclaimants respecting any aspect of the CSP, and issued a letter to that effect to Aultman in January 2006. Such result was known to MMC before it filed this lawsuit in which it falsely alleged that the CSP violated Ohio insurance law. MMC’s decision nevertheless to pursue this baseless litigation and make false allegations that CSP violated the law, despite knowing that Ohio’s regulators had found CSP to be legal, is yet another indication of the