5 takeaways from the 2018 Gotham Insurance Symposium

by Dentons
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Dentons’ 4th annual Gotham Insurance Symposium showcased leaders in the industry, including state regulators, general counsel and senior executives, and outside counsel. We covered many of the issues and challenges currently facing the sector as well as trends and opportunities. Below are our five top takeaways from the meeting.

  • The recent enactment of insurance business transfer (IBT) statutes in several states has created exciting new opportunities for insurers seeking to transfer blocks of insurance business, as well as for potential buyers of such business. Leading the charge in this effort is the state of Oklahoma, which adopted an IBT law that just took effect on November 1. Modeled after the successful Part VII Transfer law in the UK, Oklahoma’s IBT statute allows insurers to transfer both live and runoff blocks of business to an Oklahoma-domiciled insurer by way of statutory novation. The law applies to any lines of business, and has built in several measures to protect policyholders, including a requirement for state regulatory approval of the transferring company, as well as court approval of the transaction. Our all-star panel provided a wide-ranging discussion of the emerging IBT statutes, with a particular focus on the new Oklahoma law.
  • As the market shifts to digitalization and meeting escalating consumer demands, corporate boards are reevaluating their strategic plans, tweaking (or overhauling) their business models, and making an extra effort to ensure that their corporate governance is sound. Given the level of regulatory scrutiny directed at insurers and other financial institutions these days, corporate governance is often used as a barometer of a company’s well-being, and the sounder the practices, the greater the investor and consumer confidence. Our team discussed many of these themes, including offering ideas on how best to respond to such new challenges as increasing diversity of the board and leadership groups, improving stakeholder engagement and enhancing transparency.
  • Cybersecurity has become a major concern for all companies. Whether it’s the increasing number, frequency and sophistication of cyberattacks, or new vulnerabilities created by the spread of cloud-based systems and the dominance of Amazon, cybersecurity issues are legion, ranging from tougher data breach notification laws and increased threats to personally identifiable information, to navigating security risks posed by social media as well as the increasing use of Internet-connected devices that has compromised network perimeter security. And, as if insurers are not regulated enough, cybersecurity has become a regulated activity unto itself. NY Regulation 500, a new set of cybersecurity requirements from the New York Department of Financial Services, is primarily a corporate governance regulation, forcing cybersecurity conversations in the C-suites and boardrooms of every covered entity. Look to other regulators to enact similar requirements.
  • Parties to reinsurance contracts have traditionally resolved reinsurance disputes through the use of three-member arbitral panels comprised of two party-appointed arbitrators and one neutral umpire. Often, these panels are guided by “honorable engagement” arbitration provisions that relieve them of any requirement to follow the strict rules of law. This traditional model for reinsurance dispute resolution, however, has not found universal approval. Concerns have been raised regarding the process of selecting neutral umpires, the increasingly litigious nature of reinsurance arbitrations, and the lack of binding law or precedent to guide the arbitration process, among other issues. Consequently, alternatives to the traditional arbitral process are increasingly being considered. These include utilizing an all-neutral panel, a contractually designated umpire, or a traditional three-person tribunal not subject to an “honorable engagement” provision. Another consideration is to avoid arbitration altogether and instead agree to mandatory litigation of disputes in a contractually designated forum. Our panel of reinsurance dispute lawyers discussed alternatives to the traditional arbitration process, as well as the significant factors in selecting the most favorable dispute resolution mechanism.
  • Long term care (LTC) insurance providers have experienced more than their fair share of challenges to implementation of premium rate increases, from class actions alleging fraudulent and defective underpricing to regulatory challenges to the actuarial justification for a requested increase. The cost of defending these actions can be quite significant, as can the settlements and awards. LTC insurers, however, have successfully pushed back against the tide of litigation challenges, as evidenced by recent cases in Minnesota, Pennsylvania, Massachusetts and New Hampshire. But two recent decisions from the Seventh Circuit Court of Appeals have not been helpful. Due to the difficulties experienced by the industry in underwriting LTC products profitably, the LTC segment continues to evolve, with several carriers pivoting to the marketing of hybrid policies that combine life insurance and LTC coverage in a single product. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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