Plan for Responding to E-Discovery Challenges by opzroyikiwizik


									Insurer Reorganization
and Restructuring in the
US and UK

Geoffrey Etherington - Partner, New York
Edwards Angell Palmer & Dodge LLP

Melissa Oxnam - Associate, London
Edwards Angell Palmer & Dodge UK LLP
Reasons for Reorganization and
 Exit lines of business
 Exit geographic markets
 Rationalize group structure after period of acquisitions
 Redeploy capital or improve capital efficiency
 Solvency II
Primary Tools for Reorganization
and Restructuring
 Loss portfolio transfers (US & EU)
 Assumption reinsurance (US)
 Insurance business transfers (EU)
 Sale or merger of insurance companies (US)
 Solvent schemes of arrangement or sale of insurance
  companies (UK)
Loss Portfolio Transfer (LPT) (US)
 Reinsurance; does not eliminate insurer‟s liability to
 Transfers to reinsurer the liability for losses already
  incurred, so always retrospective in nature.
 The reinsurance premium reflects a discount from the
  reserves maintained by the cedent; based upon
  calculation of the present value of future payments for
  ultimate net losses. Result is increase in surplus of
  ceding company.
 Principal use in restructuring is to transfer reserves
  associated with a particular line of business from which
  the cedent has withdrawn.
LPT (US) (continued)
 Many states require LPTs to meet specific criteria
    The LPT must be noncancellable.
    The reinsurer must not be able to exercise influence
     over claims settlement practices of the cedent.
    Recoveries under the LPT must be available without
    No guarantees of any kind may be made by the
     cedent to reinsurer.
    The consideration must be a stated sum certain.
    No subsequent pricing adjustment is allowed except
     for the cedent‟s participation in the ultimate profit, if
 Reinsurance for a class or totality of insurer‟s business.
 2 common forms:
    LPT – ground up, premium equals discounted
     reserves plus risk premium (margin); and
    Adverse Development Cover – attachment point set
     at reserves plus a margin, premium paid.
 Reinsurance is retrospective in nature.
 Policies usually contain an aggregate limit on liability.
 Insurer‟s liability to insureds continues.
 ADC more common than LPT.
LPT (EU) (continued)
 Not an explicit regulatory capital tool therefore not the
  same capital benefits as the US. For capital purposes
  LPTs are treated like any other reinsurance with
  cedants receiving up to 50% credit for reinsurance.
 No specific regulatory requirements to meet.
 Solvency II will require cedants to carry capital in
  respect of risk of reinsurer default.
 Claims handling may transfer to reinsurer, achieving
  cost savings (LPT not ADC).
Assumption Reinsurance (US)
 Contract of novation and assumption: assuming
  company steps into the shoes of issuer, which is
  released from all obligations. (Misnamed – not
  reinsurance at all.)
 Provides issuing company with finality – legally off the
  risk. Allows for a clean exit from lines of business or
  jurisdictions. Also useful for transfers of business
  between affiliated companies.
 Many states have adopted NAIC Model Assumption
  Reinsurance Law which requires individual
  policyholders‟ consents to effectuate novation. Other
  states require consent by case law.
Assumption Reinsurance (US) (continued)
 Impediments to use:
    Assuming company must be licensed in each state
     in which novated policies were issued.
    Obtaining policyholders‟ consents can be onerous
     and time consuming – no guarantee of success.
 Problems associated with consents discourage use –
  often coupled with 100% reinsurance which will
  automatically pick up policies that are not novated.
 As LPTs, may require regulatory approval depending
  upon size of transaction.
Insurance Business Transfers (IBT)
 Statutory regime involving court sanctioned transfer, by
  operation of law, of a portfolio of business (Part VII
 Transferee steps into shoes of transferor; transferee
  legally off risk.
 Policyholder consent is not required. Policyholders must
  be notified and can object.
 IBT mandatory where Transferor is EEA authorised and
  transferring whole or part of a (re)insurance business
  which will be carried on from establishment in EEA.
 IBT mandatory where number/value of novations seen
  as a transfer of part of the business.
IBT (EU) (continued)
 FSA approval is prerequisite to court approval.
 FSA‟s primary concern is impact of scheme on
 If risks situated in other EEA countries, FSA must notify
  and obtain consent of such EEA regulators.
 Transferee must have authorisation in appropriate
 Regulator of the scheme will need to produce a
  solvency certificate to the regulator of the transferee.
 If a substantial business is being sold/acquired it will
  constitute a change of business plan requiring FSA
IBT (EU) (continued)
 VAT - Swiss Re case:
   transfer of 195 life reinsurance contracts
   deemed supply of services (not goods as no transfer
    of tangible property)
   not an exempt “banking, financial or insurance
   subject to VAT at standard rate
 Consequences:
   Revisit past transactions for VAT liability.
   Ensure transfer is a “transfer of a going concern.”
   Implement a reinsurance contract prior to transfer.
Merger (US)
 Merger between two insurers will result in one of the
  companies being the surviving entity and the other
  ceasing to exist. The surviving company must be
  licensed in each jurisdiction in which the merged
  company is licensed and has policyholder obligations.
  In the context of reorganization, we assume the
  companies being merged are affiliates, so no change of
  control filing and approvals should be required.
 Merging two affiliated insurers can achieve economics
  of scale through consolidation of administration and
  business production activity.
Merger (US) (continued)
 Approval of the domiciliary regulator of both companies
  is required, involving the following:
    Submission of a merger agreement setting forth the
     terms and conditions of the merger.
    A statement of any changes to the articles of
     incorporation of the surviving company.
    Submission of written approval of the directors and
     shareholder(s) of each company to the merger
     agreement (typically the same shareholder in a
    A hearing on the application to merge may be
     required in each state depending upon the state
     specific requirements.
Merger (US) (continued)
    If the company being merged out of existence is not
     licensed in the surviving company‟s domiciliary
     jurisdiction, the survivor‟s domiciliary regulation will
     require submission of such information as may be
     required to assure its solvency (N.Y. requires that
     both companies be licensed as a condition to
 After approval of the merger in both jurisdictions, and
  any requisite filings with Secretaries of State, on the
  effective date all liabilities and assets of the merged
  entity will become those of the surviving entity which will
  become the insurer on all policies that were issued by
  the merged entity.
Sale/Acquisition of Insurer (US)
 Sale of an insurer is always subject to state regulatory
  approval and, depending upon transaction size, may
  require HSR filings.
 Acquiror will need to file for approval with the target‟s
  domiciliary regulator (and possibly another state if the
  insurer is deemed “commercially domiciled” there).
 Typically, purchase price is based upon amount of
  surplus to policyholders, plus a premium for each state
  license and good will.
 Actuarial analysis of reserves is critical to purchase
  since inadequate reserves can destroy economics of
Sale/Acquisition of Insurer (US) (continued)
 Purchase of an insurer that is actively engaged in
  business can provide the acquiror with a “turn-key”
  entry into new geographic areas or lines of business.
 Purchase of a “shell company”, one that has little or no
  business and is in run-off mode can be done for less
  capital outlay. Typically done to expand into new
  geographic markets so good standing of licenses are
  critical. Also legacy business in the shell company must
  be appropriately reinsured or otherwise reserved for.
Sale/Acquisition of Insurer (US) (continued)
 Disposition of an insurer is effective for withdrawing
  from lines of business or geographic areas, downsizing
  a holding company system, or simply monetizing an
  asset. But sellers should expect that buyer will want
  protection from adverse loss development on business
  in the company. This is often the single most contested
  aspect of a sale.
Solvent Schemes of Arrangement
(Solvent Schemes) (UK)
 Statutory court approved procedure for compromise
  arrangement between company and creditors/members
  (Part 26 Companies Act 2006) if:
    at creditors meeting, 50% in number and 75% in
     value of those who attend and vote, vote in favour;
    court gives its approval.
 Benefits:
    Flexible - compromise/arrangement of anything
     which company and all/group of creditors/members
     may agree.
    Binds all creditors: even those who did not receive
     notice, did not vote or voted against.
    Majority for approval may be less than other options
     (e.g. takeover requires 90%).
Solvent Schemes (UK) (continued)
 Uses for insurers:
    To terminate a solvent run-off by implementing an
     estimation scheme.
    Equitable life used to remove need to pay bonuses.
    HAPM used to reduce policy period from 35 years to
     20 and thereby improve solvency.
    Cape plc used to hive off asbestos claims into a
    Re-organisation can bind members of relevant class
     of creditors/members to any almost any re-
Solvent Schemes (UK) (continued)
 Class Issues:
    Class “must be confined to those persons whose
     rights are not so dissimilar as to make it impossible
     for them to consult together with a view to their
     common interest.” (Sovereign Life Assurance Co v
    Important for those who can consult together to do
     so otherwise majority oppressed by minority.
    Separate classes = separate meetings.
    Solvent Scheme, IBNR generally a separate class.
    IBNR may be in same class if only reinsurers.
Sale/Acquisition of Insurer (UK)
 Regulatory approvals required:
    Target/acquiror needs to file for advance approval of
     change in control.
    New directors carrying out “controlled functions”
     require approval.
    Run-off companies:
       Purchaser will need to submit scheme of
       Intra-group commutations need to be approved.
       Release of intra-group guarantees need to be
Sale/Acquisition of Insurer (UK) (continued)
 Auctions have been popular in recent years
    Seller friendly
       improve price
       bidders focus on important issues
       seller controls documentation
    Up-front work (and cost)
       Need to appoint an Investment Bank?
       Information Memorandum
       NDA and Process Letters
       Physical/Online Data Room
       Sale Agreement
Sale/Acquisition of Insurer (UK) (continued)
 Acquisition of Lloyd‟s entities popular because of:
    ability to write business in 79 jurisdictions;
    strong brand - reputation for complex and specialist
    unique capital structure – “chain of security”; and
    excellent financial strength rating (A+ Fitch S&P, A
     AM Best).
Insurer Reorganization
and Restructuring in the
US and UK

Geoffrey Etherington - Partner, New York
Edwards Angell Palmer & Dodge LLP

Melissa Oxnam - Associate, London
Edwards Angell Palmer & Dodge UK LLP
Shaping the Future of
Insurance Coverage
Selected Significant US Coverage
Litigation Decisions

Mary-Pat Cormier - Partner, Boston
Edwards Angell Palmer & Dodge LLP

Shaping the future of coverage
 Recent significant areas of coverage litigation:
    Scope of exclusions – esp. IP exclusions
    Advancement/reimbursement of defense costs
    Allocation among coverages and policy years
    Bankruptcy context
    Fiduciary bonds
    Bad faith, bad faith, bad faith.
Shaping the future of coverage
 Millennium Partners LP v. Select Insurance Co., 24
  Misc. 3d 212, 882 N.Y.S.2d 849 (App. Div. 2009).

 Finn v. National Union Fire Ins. Co., 452 Mass. 690,
  896 N.E.2d 1272 (2008).

 Hartford Insurance Company of the Mid-West v.
  Steven Koeppel and Yeslow & Koeppel, 629 F. Supp.
  2d 1293 (M.D. Fl. 2009).

 Conagra Foods v. Lexington Insurance Company,
  C.A. No.: 09C-02-170 FSS 2009, 2009 Del. Super.
  LEXIS 408 (unpublished).
Millennium Partners LP v. Select
Insurance Co.
 Facts:
    MF blended D&O/E&O coverage issued to hedge
     fund insured
    NYAG & SEC settlements for MT/LT practices
    Extensive findings of fact; assurance of
     discontinuance; but no admission of liability
    $148M regulatory settlement classified as
    $19M Defense Costs incurred in NYAG/SEC
    “Loss” = “Defense Costs;” but not matters
     uninsurable as a matter of law
Millennium Partners LP (continued)
 Held:
   Cited: Vigilant Ins. Co. v. Credit Suisse First Boston
    Corp., 10 AD3d 528, 529 [1st Dep‟t 2004]
   “Disgorgement” not “Loss” or “damages” under
   Where defense costs are a component of
    uninsurable loss, a party may not be reimbursed for
    those costs as defense costs “are only recoverable
    for covered claims.”
   “defense costs in connection with a claim for
    disgorgement are therefore also not a covered
Finn v. National Union Fire Ins. Co.
 Facts:
    Professional liability policy issued to a records
     management and document imaging company.
    Individual on site of large copying job took sensitive
     information belonging to DirectTV and posted it to a
     hackers‟ website.
    Denial of coverage based on Intellectual Property
     Exclusion – “arising out of any misappropriation of
     trade secret . . .”
Finn (continued)
 Held:
   “The phrase „arising out of‟ must be read
    expansively, incorporating a greater range of
    causation than that encompassed by proximate
    cause under tort law.”
   “Arising out of” plus “any claim” = “unambiguously
    encompasses claims based on third-party
    conduct.” (emphasis added)
   “Arising out of”  causation more analogous to „but
    for‟ causation.
       “Would [there] have been personal injuries, and a
        basis for the plaintiff‟s suit, in the absence of
        objectionable underlying conduct?”
Hartford Insurance Company of the Mid-West
v. Steven Koeppel and Yeslow & Koeppel
 Facts:
    Legal malpractice case filed by carrier against
     assigned defense counsel.
    Settlement of catastrophic automobile accident.
    Carrier claimed that as a result of alleged legal
     malpractice, it was obligated to settle the underlying
     case for an amount substantially in excess of the
     policy limits.
    Insured argued that carrier lacked standing: no
     privity between carrier and defense counsel.
Yeslow & Koeppel (continued)
 Held:
   Majority view: carrier would have standing to sue
    defense counsel on duty to defend policy if it was
    found that the lawyer had been retained by the
    insured only.
       Public policy reasons, including: fiduciary
        obligations and incentive to bring action against
        defense counsel
       Ethical rules governing Fl. Bar
       General exceptions to strict privity requirements
       Florida precedent
Conagra Foods v. Lexington
Insurance Company
 Facts:
    GL Policy issued to peanut butter manufacturer;
     $5M SIR
    Salmonella outbreak caused by contaminated
     peanut butter
    Insured claimed duty to defend on 24,000 claims
     alleging injuries from its peanut butter
    “Lot”/”Batch” provision endorsement to Policy –
     single or multiple “occurrence(s)?”
Conagra Foods (continued)
 Held:
   Lot/Batch Endorsement requires exhaustion of
    separate SIRs for each lot or batch of contaminated
    peanut butter.
   Rejected Insured‟s argument that "Lot or Batch"
    provision did not apply, because the peanut butter
    claims all arose from a single occurrence subject to
    a single retention.
   Insurer had no duty to defend until Insured
    established that it paid the SIR for each lot or batch
    of peanut butter that was produced.
   Bad faith claims allowed to proceed, including
Shaping the Future of
Insurance Coverage
Selected Significant US Coverage
Litigation Decisions

Mary-Pat Cormier - Partner, Boston
Edwards Angell Palmer & Dodge LLP

Decisions, Decisions . . .
A Review of Recent UK Cases

Antony Woodhouse - Partner, London
Edwards Angell Palmer & Dodge UK LLP
The Employers‟ Liability Policy
„Trigger‟ Litigation
 relates to claims of mesothelioma victims
 about 60,000 more deaths expected
 UK Asbestos Working Party – 2009 „re-projection‟:
    90% of cost (mainly EL insurance)
    about £10billion (range £4.8billion to £30billion)
    over 80% in the future
The Employers‟ Liability Policy

„Trigger‟ Litigation – the issue
 two EL policy wordings – indemnify for injury „caused‟ or for
  injury „sustained‟ during policy period
 long latency period between exposure, development of
  tumour and „diagnosability‟ (symptoms) – 40-50 years
 „caused‟ during exposure, but is it also „sustained‟ during
The Employers‟ Liability Policy

„Trigger‟ Litigation – the decision
 November 2008 – Burton J
 „…For the purposes of [EL] policies, injury is sustained when
  it is caused and disease is contracted when it is caused…’
 reflected decades of consistent market practice
 EL policies, however they are worded, are triggered by
  exposure to asbestos („exposure basis‟)
The Employers‟ Liability Policy

„Trigger‟ Litigation – the appeal
 insurers‟ appeal – heard November 2009 (no judgment
  yet)…then Supreme Court?
 if decision reversed - chaos
 legislation?
 increased scrutiny of policy language (insurance and
Wasa v Lexington (House of Lords
July 2009)
 property damage insurance
 US policyholder liable for pollution clean-up costs – pollution
  1942 to 1986
 Washington Court (applying Pennsylvanian law) found
  Lexington jointly and severally liable for 44 years of damage
 insurance period July 1977 to July 1980 (only three years)
 settled for $103m
 US Service of Suit clause – no express choice of governing
Wasa v Lexington

Reinsurance contract
 proportional facultative reinsurance
 „as original‟ with a full reinsurance clause
 period clause the same as in insurance – cover for losses
  occurring during July 1977 to July 1980
 accepted that governed by English law
 same provision in insurance and reinsurance, but different
  laws apply
Wasa v Lexington

House of Lords
 a question of construction of the reinsurance
 starting point = proportional facultative reinsurance should be
  construed as back-to-back with insurance
 but in 1977, uncertainty over which foreign (US) law would
  govern the insurance
 so parties must have intended the clear English law
Wasa v Lexington

House of Lords
 the period clause was fundamental to the scope of the
  reinsurance cover
 Lexington had been „spiked‟; but the reinsurers could rely
  upon the period clause
 same decision if Pennsylvanian law had been specified?
Equitas v R&Q (November 2009)
 LMX spiral
 complex intertwining network of mutual X/L reinsurance
 the „spiral‟ had the effect of magnifying a loss many times
Equitas v R&Q

Two „tainted‟ catastrophic losses
 losses had entered spiral
 Exxon Valdez (oil spill in Alaska in 1989)
    irrecoverable losses paid by insurers
    about 6% tainted
 KAC/BA (loss of aircraft and spares during first Gulf War)
    losses wrongly aggregated
    needed to strip out about 12.5%
 market stopped paying – in „lockdown‟
 “…search by the Court for an acceptable legal and sensible
  commercial solution in a situation where the market has been
  unable to devise one…” [Gross J]
Equitas v R&Q

The position of the parties
 the spiral could not be replicated with „tainted‟ losses stripped
 Equitas (seeking to recover under X/L reinsurance)
    prove its recoverable losses to a standard of the balance of probabilities
     – rely upon actuarial modelling
    appropriate discounts strip out the tainted losses
 R&Q
    Equitas must prove that sums due, contract by contract, from the bottom
     of the spiral
    actuarial modelling („estimating and guesswork‟) is inadequate
    Equitas‟s model is flawed
Equitas v R&Q

Questions for the Court (1)
 must prove settlements are within the terms and conditions of
  the original policies and the reinsurance (double proviso)
 Hill v M&G did not require correct re-presentation of the
  losses upwards through/round the spiral
 must only prove the loss was within the cover of the inwards
 Equitas could decide how to seek to prove its claims
 modelling approach was permissible as a matter of law
Equitas v R&Q

Questions for the Court (2)
 does the model prove the claims?
 yes – „a reasonable representation of reality‟
 the discounts could have been significantly increased
 ‘the models assist in doing practical justice in this case‟
Equitas v R&Q

The significance
 the reinsured was able to prove paid claims by using an
  actuarial model
 no relevance to the recovery of IBNR – the case involved
  paid claims
 legal significance?
 significance to the market
 settlement, so no appeal
 will the LMX spiral be „kickstarted‟?
Scottish Lion – solvent scheme
 insurer in run-off since 1994 – future APH claims
 minority creditors objected to the solvent scheme
 could it ever be fair to sanction a solvent scheme in the face
  of policyholder opposition – should „creditor democracy‟
 also challenge to voting majority
 first instance decision of Lord Glennie in September 2009
Scottish Lion
Appeal to Inner House of the Court of Session
 principal issue: where there was creditor opposition, did a
  proposer of a solvent scheme have to demonstrate that there
  was a „problem‟ requiring a solution?
 broader issue of general fairness
 unanimous decision (January 2010)
 solvent and insolvent schemes should be dealt with in the
  same way
 solvency of the company was simply a factor
 existence of a „problem‟ was not a pre-condition to
  sanctioning a scheme, but it could be a factor
Scottish Lion

Where are we now?
 where we were before…and it‟s far from over
 full hearing on whether to sanction the scheme
 Court must exercise discretion, in the light of all the facts and
  evidence, including balancing advantages against
 not the end of solvent schemes…but a struggle expected in
  relation to this scheme
Decisions, Decisions . . .
A Review of Recent UK Cases

Antony Woodhouse - Partner, London
Edwards Angell Palmer & Dodge UK LLP
Recent US Developments in
Challenges to Arbitrators and
Arbitration Awards
Based on Arbitrators‟ Lack of “Disinterest,”
Undisclosed Conflicts, Evident Partiality and
Exceeding Their Powers

E. Paul Kanefsky - Partner, New York
Edwards Angell Palmer & Dodge LLP
“Disinterested” Standard for Party-
Appointed Arbitrators
 Problems with having one arbitrator serve on more than
  one panel
    Confidentiality issues and the Trustmark cases
       Trustmark Insurance Company v. John Hancock
        Life Insurance Company 2010 U.S. Dist. LEXIS
        4698 (N.D. Ill. Jan. 21, 2010)
          Court enjoined a party from using its party-
           appointed arbitrator shortly before the hearing on
           the merits.
       Trustmark Ins. Co. v. Clarendon National Ins. Co.,
        No. 09-CV-06169 (N.D. Ill. Feb. 1, 2010)
          Court refused to enjoin party from using its party-
           appointed arbitrator in a second arbitration, based
           on somewhat different facts.
“Disinterested” Standard for Party-
Appointed Arbitrators (continued)
 Arrowood Indemnity Co. v. Trustmark Ins. Co., No. 03-
  CV-0100 (D. Conn. Feb. 2, 2010)
    Third recent Trustmark case, but different facts:
     Arbitrator who had served multiple times as party‟s
     appointed arbitrator may serve as umpire in
     unrelated arbitration involving that party.
“Evident Partiality” Based on Nondisclosure of
Arbitrators‟ Relationship as Basis for Challenging

 “Evident Partiality” one of only four enumerated grounds
  for Vacating an Award under Federal Arbitration Act, 9.
  U.S.C. § 10(a)
 Scandinavian Reinsurance Company Ltd v. St. Paul
  Fire & Marine Ins. Co., 09 Civ. 9531 (S.D.N.Y. Feb. 23,
    Court vacated award because two members of the
     arbitration panel failed to disclose that they sat on an
     arbitration panel involving a shared witness and the
     successor of one of the parties in the dispute.
“Evident Partiality” Based on Nondisclosure of
Arbitrators‟ Relationship as Basis for Challenging

 Sphere Drake Ins. v. All American Life Ins. Co., 307
  F.3d 617 (7th Cir. 2002)
    Appeals court reversed district court‟s vacatur,
     holding that there is no disclosure requirement
     implicit in the evident partiality standard of 9 U.S.C.
     § 10(a)(2).
“Evident Partiality” Based on Nondisclosure of
Arbitrators‟ Relationship as Basis for Challenging

 Ario as Liq. of American Integrity Ins. Co. v. Cologne
  Reinsurance (Barbados), Ltd., 2009 WL 3818626
  (M.D.Pa., Nov. 13, 2009)
    Court found no evident partiality in arbitrator‟s
     accepting a position as an umpire in another,
     unrelated arbitration while the current arbitration is
     still ongoing, even if that position was partially
     obtained by the action of a party-appointed arbitrator
     in the subject arbitration; also held that there was
     timely disclosure of the umpire appointment.
A Final Brief Word on “Manifest Disregard” as a
Judicial Gloss on Arbitrators Exceeding Their
Powers Under 9 U.S.C. § 10(a)(4)

 Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S.Ct.
  1396 (2008)
    Cast doubt on the continued viability of this doctrine.
 Stolt-Nielsen S.A. v. Animalfeeds International Corp.,
  No. 08-1198, 559 U.S. ___ (2010)
    Footnote in this April 27, 2010 Supreme Court
     decision suggests that manifest disregard may
     survive as a judicial gloss.
       “Manifest disregard” furor may be tempest in teapot.
Recent US Developments in
Challenges to Arbitrators and
Arbitration Awards
Based on Arbitrators‟ Lack of “Disinterest,”
Undisclosed Conflicts, Evident Partiality and
Exceeding Their Powers

E. Paul Kanefsky - Partner, New York
Edwards Angell Palmer & Dodge LLP

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