Posts Tagged ‘Reinsurance’« Older Entries
Expert article by Wystan M. Ackerman
Last year, in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), the Supreme Court held that a denial of class certification was not binding on absent members of the putative class, and thus a federal district court that had denied class certification could not enjoin an absent, non-named member of the putative class from pursuing certification of essentially the same proposed class in a state court. The Court noted, however, that repetitive relitigation of class certification is a significant problem for the judicial system. In dictum, the Court stated that “our legal system generally relies on principles of stare decisis and comity among courts to mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs,” and that “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.” Id. at 2381-82.
In Smentek v. Dart, No. 11-3261, 2012 U.S. App. LEXIS 12325 (7th Cir. June 19, 2012) (Posner, J.), the Seventh Circuit recently addressed how far that principle of comity goes, holding that comity does not require a trial judge to adhere to prior decisions by other trial judges. Rather, comity is merely a “weak notion . . . requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary.” Id. at *10.
Smentek involved a series of class actions filed by prisoners in the Northern District of Illinois, alleging that the failure to make sufficient dental services available at the Cook County Jail was a constitutional violation. Two district judges denied class certification, but a third judge granted certification. The defendant argued that the dictum in Smith v. Bayer Corp. regarding comity among federal courts required the district judge deciding the third case to follow her colleagues’ rulings. The Seventh Circuit, in an opinion by Judge Poser, rejected this argument, explaining that “[t]he mandatory comity for which the defendants in our case contend is just another name for collateral estoppel,” which Smith v. Bayer Corp. had found expressly inapplicable. Id. at *8.
The result here is not surprising to me. When I first read Smith v. Bayer Corp., without studying case law about comity, I had assumed the Court was referring to a relatively weak form of comity, and it did not occur to me that defendants would make the argument for the strong form of comity that was asserted inSmentek.
But there ought to be some solution that enables a defendant to avoid re-litigating class certification over and over, and relieves the burden that imposes on conscientious trial court judges who will not simply rubber stamp one of their colleagues’ rulings but feel a need to take a fresh look at the case before them. An appellate decision is not the answer where the defendant wins in the trial court the first time (or two or three) and cannot appeal. I’ve mused before about whether a defendant faced with this problem could bring a declaratory judgment action against a class of would-be class representatives for the purpose of obtaining one final, dispositive ruling on class certification. But I’m not aware of anyone testing that novel approach.
Expert Article by Emily Seymour Costin
Although more than fifteen years have passed since the Third Circuit issued its seminal decision in Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995), courts are still grappling with its application and reach.
Indeed, district courts nationwide have reached conflicting decisions on whether the “Moench presumption” may be applied when considering a motion to dismiss. On February 22, 2012, the Sixth Circuit resolved a split among its district courts, holding that the Moench presumption of “reasonableness” is not an additional pleading requirement and, thus, does not apply at the motion to dismiss stage.
However, on May 8, 2012, the Eleventh Circuit considered and rejected the Sixth Circuit’s reasoning. Embracing the reasoning previously articulated by the Second and Third Circuits, the Eleventh Circuit held that the Moench analysis is not an evidentiary presumption, but can be applied to dismiss a claim under Fed. R. Civ. P. 12(b)(6). The Sixth Circuit now stands as the only Circuit to affirmatively reject the Moench presumption as a standard that may be applied at the pleading stage. These recent Circuit court opinions beg the question: When does the Moench presumption of prudence apply?
Expert Article by Wystan M. Ackerman
Here is the second installment of insights I gleaned from the ABA National Institute on E-Discovery:
- Federal Rules Amendment Process: Judge Koeltl of the Southern District of New York led a panel that provided a thorough update on potential amendments to the Federal Rules of Civil Procedure. Consideration is being given to making the proportionality requirement of rule 26(b)(2)(c)(iii) more prominent. Judge Koeltl noted that in his view lawyers are not focusing on that as much as they could be and he tends to raise that rule more than the lawyers practicing before him do. It is a strong tool for judges to limit the scope of discovery where the burden and expense outweighs its benefit. Also under consideration are proposals to shorten the time to serve a summons and complaint, limit depositions to 5 per side and to 4 hours instead of 7 hours, limit interrogatories to 15, limit requests for production to 25, and limit requests for admission to 25 except for admissions with respect to the genuineness of documents. (Judges would retain discretion to modify these limits where necessary and appropriate.) In my view, requiring both sides to employ more limited, focused discovery instead of the “uncover everything” mindset that some lawyers (and clients) have is probably the only way to significantly restrain litigation costs and allow more cases to be tried. But it requires a real culture change among many civil litigators. Another rule change under consideration would amend Rule 34 to require that responses to requests for production be made with more specificity and prohibit evasive responses. Other proposals include a requirement that the parties discuss and agree on the scope of preservation of documents at the outset of a case, and a formal requirement in Rule 1 that counsel cooperate with each other. Also under consideration is a change to Rule 37 that would prohibit sanctions for a failure to preserve evidence (except in exceptional circumstances) unless a failure to preserve evidence was willful or in bad faith and caused prejudice.
- Predictive Coding: As explained in my March 9, 2012 blog post, new software is now enabling computers to cull through a set of electronic documents and, based on an experienced lawyer’s review of a sample of documents, the computer will make determinations on whether documents in the remainder of the set are likely to be responsive or non-responsive. The consensus of a panel of lawyers who have used this software is that it works well, what the computer does is really quite similar to what a team of junior or contract lawyers attempts to do, and studies consistently have shown that the computer review is more accurate than human eyes. The consensus seemed to be that this is the wave of the future, will bring substantial cost savings to complex litigation, and lawyers and judges should get comfortable with it. There was also some interesting discussion about whether the opposing party needs to be provided with more access to information regarding this type of review (e.g., being provided with a sample of “nonresponsive” documents) that is not provided when lawyers are performing the same type of work that the computer will do.
The number of breach incidents and compromised records is staggering!And as a result, state attorneys generals and federal regulators and enforcers have proactively investigated and penalized companies in a major way. Furthermore, the demand for cyber policies is on the rise as businesses have changed their approaches to storing data.
Information is no longer stored in the company’s servers. Now businesses are storing sensitive and confidential information with cloud vendors, exposing the information to new types of data breaches. As technology and products continue to change and evolve, it is critical that you are up to date in the ever growing area of cyber and data risk insurance.
In response to new risks and exposures, American Conference Institute has
developed the 6th installment of its lauded Cyber & Data Risk Insuranceconference. A September tradition in NYC, join us again to hear from a highly regarded faculty including the FBI, FTC, various state AG offices, as well as the industry’s leaders from around the country. Each year the event has grown in scope and size and this year the agenda is brimming with cutting edge topics as well as new additions to the faculty. Th is is the industry’s “go to” event where you can learn about advancements in technology, products, pricing, coverage options, prevention and strategies to better protect your company from potential liabilities and exposure to risk.
Hear and network with the industry leaders about the right coverage options for your company and how you can protect data from financial and reputational loss. Compare products, learn about pricing policies, and new exposures to risk in this ever growing industry. Whether you are an insurance agent, broker, risk adjuster, claims manager, or counsel you will walk away from the conference with invaluable information that you can use in your practice right away.
The preeminent Life Insurance event where defense and plaintiff lawyers and in-house counsel and claims professionals are meeting to devise practical solutions for today’s most critical issues
The litigation landscape involving life insurance and annuity claims has exploded in recent months, including increased class action claims targeting retained accounts and new and ramped up filing stemming from STOLI products in the secondary market. To complicate matters further, Plaintiffs are mobilizing and challenging rescission of policies and quickly resorting to bad faith claims when claims are denied. The potential outcomes of these cases are extremely risky and the costs of the suits are astronomical (in addition to the expense and resources needed to carefully inspect applications and investigate statements related to the insured’s health and finances in an effort to flag statements of material misrepresentations).
Furthermore, new and recent developments in case law, complex statutes, and NAIC promulgated rules are critical aspects of any litigation strategy. In response to it all, American Conference Institute presents its premier National Advanced Forum on LITIGATING LIFE INSURANCE AND ANNUITY CLAIMS. This forum is your “one-stop” venue where practitioners can network with leading insurers from around the country, and learn from top plaintiff and defense attorneys who will share their expertise on how to develop strategy and create a winning approach to all aspects of life insurance and annuity claims.
Hone your skills and sharpen your life insurance claims and litigation strategy by attending this unique two-day event. It features leaders in the field fromLegal & General America Inc., The Hartford, William Penn Life Insurance Company of New York, MetLife, Pacifi c Life Insurance Company, Minnesota Life Group Insurance, Cigna Corporation, The Guardian Life Insurance Company of America, MassMutual, Transamerica Life Insurance Company, Crump Life Insurance Services, Aviva USA, Assurant Employee Benefi ts, Dearborn National and many others.
June 19-20, 2008 |The Carlton on Madison Avenue | New York City
The reinsurance industry has become a global marketplace and regulatory
frameworks are beginning to reflect this fact. Insurance and reinsurance
companies are going to be heavily impacted by new regulations in the coming years, whether they take the form of modified collateral requirements and the movement towards a unified regulatory system in the US, or the Reinsurance Directive and Solvency II in the EU. Further, in order to capitalize on new and vibrant reinsurance markets, it is imperative that reinsurance professionals have a thorough understanding of the emerging regulatory systems in Asia and Latin America.
Key points for success:
• Adapt to changing collateral requirements
• Anticipate and prepare for a unified US regulatory system and the
impact it will have on the reinsurance industry in the US and abroad
• Operate effectively under the new EU reinsurance paradigm
• Implement new risk management procedures in order
to ensure regulatory compliance
• Understand how emerging regulations will impact run-off operations
• Comply with regulations governing the convergence
of capital markets and reinsurance
ACI’s Advanced Forum on Reinsurance Regulation will provide you with
the expert insights and strategic advice that you need to navigate the hurdles
and take advantage of the opportunities provided by these evolving regulatory regimes.
Take advantage of this opportunity to network with reinsurance industry
experts while gaining the knowledge and insights that you need in order to
navigate the evolving regulatory landscape. This must-attend event will fill up quickly, so register today
January 31st, 2008
in Insurance & Reinsurance |
Leading compliance officers, regulators, counsel and private practice attorneys will provide valuable, practical information on:
• Assessing the compliance impact of the Optional Federal Charter, principles-based regulation, and other emerging initiatives
• Conducting a risk-based assessment of your compliance program: determining where the focus should be and where the money should be spent
• Innovative strategies for streamlining compliance across multiple jurisdictions while getting buy-in and minimizing costs
• Upgrading your document retention and privacy processes in light of the new Federal rules
• Proactive processes and procedures to avoid penalties and litigation
In an era of increasingly heightened scrutiny, are you confident that your insurance compliance program will withstand potential challenges?
With financial products being a focus of regulators over the last several months, the eyes of the regulators are sure to fall on the insurance industry more intensely than in years past. And, this year saw the perennial task of achieving compliance continue to expand. State regulation is increasingly stringent and as always, a patchwork of differing requirements and expectations from the regulators. Meanwhile, federal regulators have been scrutinizing more aspects of the insurance industry. A new Optional Federal Charter is working its way through Congress, and key states such as New York are advocating initiatives such as principles-based regulation which could fundamentally change insurance regulation.
How do you integrate new legal and regulatory developments into effective, seamless compliance? What’s essential and what’s just not practical? What do you need to do to get your organization to a stage where you can say with certainty that your enterprise-wide compliance strategies are really working?
For answers, look no further than American Conference Institute’s 4th Annual
conference on Regulatory Compliance for the Insurance Industry. With a faculty
packed with senior compliance professionals and regulators, and a program that
covers all the hot-button issues, you can be assured that you’ll come away with
practical, timely information you can really use back at the office, including:
• Using practical, methodical procedures to conduct a thorough risk assessment of your compliance function
• Minimizing privacy, security and data retention risks going forward
• Fine-tuning your OFAC verification process: is it good enough?
• Understanding what training and monitoring is critical to ensuring
• Integrating new regulatory developments seamlessly into your compliance program
Get your questions answered and network with insurance compliance professionals from across the country. With a focus on practical information, risk-based compliance assessments, and tracking new developments, we think you’ll agree that this program represents two days out of the office extremely well spent! We look forward to seeing you in New York.
January 29th, 2008
in Insurance & Reinsurance |
• Design comprehensive and secure reinsurance agreements
• Upgrade your compliance processes to address the real concerns behind increased regulatory demands
• Account for factors impacting your ability to negotiate reinsurance pricing
• Structure your reserves to meet requirements while freeing capital
• Benchmark operational practices with other insurers and reinsurers
• Utilize technology to improve your treaty management system
• Maximize your position by crafting thorough and practical arbitration clauses
Have your legal and business practices kept pace with changing regulatory requirements, increasingly complex contract agreements and the emergence of
new reinsurance products?
The reinsurance industry used to be known for its insular culture and informal business practices. But times have changed – reinsurance deals are becoming more detailed and comprehensive then ever before. And while many reinsurance companies have struggled with these changes, opportunities exist for companies
that resolve to adapt quickly.
ACI’s 2nd Annual Legal and Strategic Forum on Life Reinsurance will provide you with insight on how to update your legal and business practices to ensure more protection and higher returns in this new business environment. Experienced industry leaders will provide you with expert strategies on:
• Preparing profitable and secure reinsurance agreements
• Establishing operational best practices
• Staying compliant with State, Federal and NAIC requirements
• Developing an effective treaty management system
• Addressing arbitrations in your agreement
• Improving the quality of data that flows between you and your business partners
In addition, a special Fundamentals of Life Reinsurance workshop will provide industry newcomers with a thorough understanding of the complex rules and regulations that govern this area of the law. Don’t miss the opportunity to expand your knowledge through this valuable pre-conference tutorial.
January 22nd, 2008
in Insurance & Reinsurance |
BASIC TRAINING FOR INSURANCE AND REINSURANCE PROFESSIONALS
■ Discover why, how and when reinsurance is used
■ Learn about different treaty and facultative reinsurance programs
■ Consider what factors impact the reinsurance buyer
■ Study the underwriting process and learn how their decisions are made
■ Understand the role played by reinsurance brokers
■ Investigate the different markets for reinsurance, including the London and direct markets
■ Calculate the impact of reinsurance on financial statements
The Basics: Understanding & Utilizing Reinsurance
• Why reinsurance is used – and who is using it
• Different types of reinsurance:
- quota share
- excess of loss
• Determining what reinsurance program is appropriate
to your needs
• Review of key terminology
• Understanding the reinsurance markets:
Purchasing Reinsurance: Key Considerations for Insurers, Brokers and Reinsurers
Senior Reinsurance Officer – Domestic Operations
American International Group (New York, NY)
• Establishing what your reinsurance needs are
• Determining what market and product meets your needs
• Distinctions between amount placed, amount ceded
and amount retained net
• Considerations when deciding what companies
to do business with
• Security Committees:
- who participates
- committee responsibilities
- criteria for committee approval
- capital surplus requirements
September 27th, 2007
in Insurance & Reinsurance |
Two one-day, advanced events for networking and sharing best practices for managing and resolving claims
• Supporting and ensuring consistency in allocation methodology
• Reinsurer v. cedent perspectives on effective collection strategies
• Conducting a reinsurance claim exposure analysis
• Minimizing exposure to bad faith, XPL and ECO
• Aligning policy language with desired outcome for cooperation, occurrences,
and other key treaty provisions
• Using the organizational meeting to control costs
• Scope and power of panels regarding consolidation, appeal, and other
• When to include or minimize discovery against intermediaries and administrators
• Effective approaches for post-award rescission, challenges and other remedies
• Involvement of retros, pools: special considerations for multi-party arbitrations
Reinsurance claims disputes – and the ensuing arbitration process – are increasingly contentious, expensive and time-consuming. Do you have the advanced strategies and tools you need to prevail?
Reinsurers are continuing to dig out from under the huge claims and severe losses of the past two years. While reinsurers look to the contracts to determine appropriate scope of coverage, insurers are under pressure to settle claims quickly and collect on reinsurance proceeds swiftly. These divergent interests ensure that the claims process remains challenging, regardless of the cause of the
Meanwhile, the reinsurance arbitration process increasingly resembles litigation – with the ensuing discovery, testimony and evidentiary battles that litigation entails, not to mention mounting costs. In this climate, it’s more vital than ever that you have an up-to-the-minute understanding of all the ins and outs of navigating the reinsurance arbitration process.
With new developments, year after year, even the most experienced claims and arbitration counsel need up-to-the-minute guidance on handling and resolving reinsurance claims swiftly and effectively, for the best result possible for your client.
In response, ACI has developed two intensive 1-day events, on Reinsurance Claims and on Reinsurance Arbitration, to give you the advanced-level tools and practical information you need to stay ahead of the curve and prevail in your reinsurance dispute.