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Life, Annuity, and Retirement Solutions


Overview

We serve the needs of the life, annuity, and retirement solutions industry. We have represented life insurance companies throughout the United States in national bet-the-company class action and complex commercial litigation cases. Our attorneys are recognized as not just “litigators” but as experienced trial lawyers with the depth to efficiently and creatively defend against both traditional and new issues raised by plaintiffs’ lawyers under state and federal law. We bring an integrated and complementary approach to servicing our life insurance clients by drawing on the collective experience of our business, regulatory, and litigation attorneys. 

The life insurance industry group works closely with our practice groups to provide counseling, litigation, and dispute resolution to life insurers in the securities, ERISA, federal tax and state regulatory areas on product development, sales and distribution issues, business combinations and state regulatory advice, market conduct examinations, and hearings. Our firm and its lawyers have been recognized in numerous journals as authorities in life insurance industry matters, including in a recent BTI “Power Elite” Survey of General Counsel at Fortune 1000 companies. We were also recognized as a “Short List” firm in the “Client Votes of Confidence: Go-To Law Firms” category as well as a “Recommended Law Firm” in the “Client Advocates: Law Firms that Clients Recommend” category. Additionally, we were recognized as both a “Short List” and “Predominant Recommended Firm” in the insurance industry.
 

  • Insurance Business Counseling

    Our business and regulatory attorneys counsel life insurance clients on a variety of transactions, business arrangements, insurance products, and distribution matters under federal and state securities laws, FINRA regulations, and state insurance laws. Our lawyers have worked with the various state and federal regulators. Our attorneys counsel insurance industry clients on business matters in the following key areas:

    Product Design 
    Including work with actuaries and product filing staff for fixed index annuities, variable products, market-value-adjustment products, synthetic annuities, and other innovative products. 

    Securities Regulation 
    Including status questions under the Securities Act, Securities Exchange Act, and Investment Company Act of 1940 (1940 Act); 1940 Act regulation of separate accounts and mutual funds that serve as underlying investment vehicles for insurance products; and compliance with the federal and state securities laws, including the Sarbanes-Oxley Act. 

    State Insurance Regulation 
    Including contract and form filings; licensing of insurance companies, producers, managing general agents, underwriters, and consultants; and compliance with required contract terms, standard non-forfeiture law, disclosure, replacement, suitability, unfair trade practice, and other regulatory requirements. 

    Compliance Oversight and Best Practices 
    Including administrative and operational compliance with state and federal regulatory requirements, mock regulatory examinations, and development of industry best practices. 

    Distribution and Marketing 
    Including structuring arrangements between insurance companies and banks, brokerage firms, and marketing organizations; and assistance with FINRA regulation of member firms and producers. 

    Market Conduct Examinations and Regulatory Investigations 
    Including responding to initial regulatory findings and initiating and participating in contested case hearings. 

    Advertising Review 
    Including substantive reviews for compliance with both state insurance and federal securities laws and regulations; assistance with state and FINRA filings; and assistance with responding to, and resolving, regulatory comments. 

    Organization and Transactions 
    Including life insurance company formation, mergers and acquisitions through stock and asset acquisition, including reinsurance arrangements, reorganizations, and dissolutions; and separate account transfers and reorganizations. 

    Privacy and Data Security Regulations 
    Including compliance with SEC Regulation S-P and state insurance privacy requirements. 

    Private and Public Offerings and Financial Reporting 
    Including SEC-registered offerings and private placement of U.S. and offshore offerings of insurance securities products, and Exchange Act financial reporting. 

    Tax and ERISA 
    Including a broad range of matters related to qualified and nonqualified retirement plans, health and other welfare benefit plans, annuities and IRAs, including the tax qualification of annuities and life insurance contracts; and representing clients before the Internal Revenue Service and the Department of Labor.
     

  • Litigation and Dispute Resolution Services
    We represent life insurance clients in federal and state courts at all stages of litigation, primarily as lead defense counsel, but also as the initiator of actions, pursuing our clients’ claims. Our experience includes disposal of actions, including putative class actions, at the earliest stages of the litigation, as well as bench and jury trials of major class and mass actions and high-dollar individual civil and criminal cases. We have also worked as relief counsel where clients experienced an adverse result while represented by other counsel. In addition, we have preserved trial court wins on appeal, and obtained appellate reversals of adverse rulings, including certifications of class actions. 

    Learn more about our life insurance and annuities litigation practice.

     
  • SEC/FINRA
    We represent clients on a broad range of matters before the SEC and FINRA. Our lawyers focus on providing practical advice and insights based on decades of experience. Learn more about our securities capabilities.

     
  • Investment Companies and Advisers
    We provide a full range of services to investment companies and their boards of directors/trustees, and investment advisers. 

    Organization and Operation 
    We help organize a variety of different registered and unregistered investment companies, including mutual funds, fund of funds, closed-end funds, and ETFs. We help organize investment advisers. We also advise on operational requirements imposed by the federal securities laws. Whether clients are negotiating a secured lending arrangement or preparing for a board meeting, we can assist. 

    Registration, Proxies, and Reports 
    Our lawyers guide clients through the SEC registration process, from early preparation and vetting of personnel through effectiveness of their registration statement or approval of their adviser application. We also advise on federal and state requirements for shareholder meetings and proxy voting, as well as the requirements for periodic reports to shareholders and to the SEC.

    Compliance 
    We help develop Rule 38a-1 and Rule 204(6)-7 compliance programs and policies, conduct annual compliance reviews, and prepare for regulatory examinations. Our team includes members with experience as chief compliance officers and SEC-approved independent compliance consultants. 

    Regulation 
    Our lawyers have extensive experience with matters involving the regulation of investment companies and investment advisers. This experience includes, for example, analyzing the need to register with the SEC, preparing interpretive and no-action requests to the SEC staff, and seeking exemptive relief from SEC regulation. We advise on questions that arise under state “blue sky” laws, the Commodity Exchange Act, and all federal securities laws. 

    Transactions 
    We advise on a variety of transactions involving investment companies and advisers, such as mergers, asset transfers, portfolio “lift outs,” substitutions, redomestications, intact transfers of separate accounts, and liquidations. In particular, we advise on the many regulatory, tax, and due diligence issues that arise when an investment company or adviser is involved in a larger corporate transaction.

    Distribution and Marketing 
    Our lawyers have extensive experience with investment company and adviser advertising, marketing, and distribution matters. This experience includes matters involving principal underwriters (including statutory underwriter questions), broker-dealers and selling groups, and independent marketing organizations (IMOs). Our experience also includes handling the unique issues that arise when selling through the RIA channel. We guide clients through the FINRA advertising review process and advise on the regulatory requirements that apply to sales materials.

    Tax and ERISA 
    We counsel clients on the unique federal tax and ERISA issues that pertain to investment companies and advisers including advice regarding the IRS code requirements for favorable tax treatment as a regulated investment company. We also counsel advisers on any ERISA obligations they may have in connection with their activities with ERISA-covered plans, including ERISA’s fiduciary responsibility provisions.
     
  • Variable and Other Insurance Products
    We provide a full range of legal and regulatory services to insurance companies, broker-dealers and service providers relating to the design, marketing, and sale of variable insurance products, individual and group annuities, fixed indexed annuities, market-value-adjustment products, synthetic annuities, BOLI, funding agreements, stable value wrap contracts, and other innovative products. 

    Registration 
    Our lawyers have extensive experience with SEC registration of variable life insurance and variable annuity products under the Securities Act of 1933 (Securities Act) as well as SEC registration (and subsequent deregistration) of related separate accounts and investment companies under the Investment Company Act of 1940 (1940 Act). 

    Regulation 
    We advise on a variety of interpretive issues, including writing opinions that certain life insurance company products are not required to be registered under the Securities Act and that certain life insurance company accounts are not required to be registered under the 1940 Act. Our experience also includes drafting and reviewing applications for exemptions and requests for no-action relief, and advising on offerings made outside the United States. 

    Compliance 
    We assist with the preparation and review of variable and fixed annuity suitability programs, policies and procedures required under FINRA rules and state insurance law. Our lawyers have extensive experience drafting and reviewing compliance policies and procedures as well as advising on Sarbanes-Oxley Act compliance matters. 

    Transactions 
    Our lawyers have extensive experience working on a variety of transactions involving variable products, including separate account mergers, asset transfers, substitutions, redomestications, intact transfers of separate accounts, and liquidations.

    Distribution and Marketing 
    Our lawyers have extensive experience with variable product advertising, marketing, and distribution matters. This experience includes application of regulatory requirements to performance presentations, websites, and sales materials as we guide clients through the FINRA advertising review process. In addition to reviewing advertising and promotional material, we advise and assist in negotiating and documenting arrangements with distributors, joint venturers, and service providers.

    Tax, ERISA, and State Insurance Law 
    We advise on Federal Tax matters, ERISA, and state insurance law issues relating to insurance products. Our lawyers have extensive experience working with insurers to ensure product designs qualify for favorable tax treatment under federal tax laws. We also counsel clients on complex employee benefit plan issues, including an entity’s fiduciary status under ERISA and on obtaining advisory opinions and prohibited transaction exemptions from the Department of Labor.
     
  • Broker-Dealers

    We provide a full range of services to broker-dealers.

    Organization and Registration 
    We guide clients through broker-dealer formation and registration. We also advise on registered representative registration filings and related issues. 

    Compliance 
    We draft written supervisory procedures and other supervisory control policies and procedures. We also draft and advise on suitability policies and procedures. Our experience includes providing compliance and risk evaluation reviews. We also counsel clients on AML and OFAC compliance, books and records requirements, cash and non-cash compensation arrangements and fee referral issues, and email retention and production. 

    Regulation 
    We advise on broker-dealer reporting obligations and a variety of investment-related distribution issues. Our lawyers have extensive experience providing substantive reviews of advertising and sales literature for compliance with federal and state laws and regulations. Our experience also includes advising on matters relating to regulatory examinations and investigations. 

    Disputes and Arbitration 
    Our lawyers have extensive experience in customer complaint handling and FINRA arbitration. We also advise on registered representative termination filings and related issues and provide employee/registered representative dispute counseling.
     

  • Unclaimed Property

    We apply our unique focus to represent and counsel our insurance clients on a broad spectrum of unclaimed property matters, including: 

    • Strategies and responses to examinations by state insurance departments, state unclaimed property regulators, and auditing organizations acting on their behalf. 
    • Litigation brought against insurance companies by state agencies alleging violation of unclaimed property laws. 
    • Insurance company operational issues implicated by unclaimed property law compliance and remediation, including requirements to use the Social Security Death Master File (DMF) to identify policies and contracts subject to death claims. 
    • General compliance with unclaimed property requirements, including voluntary self-auditing and reporting. 
    • Compliance with unclaimed property requirements as they apply specifically to various types of insurance policies and annuity contracts and benefits thereunder, and to the amounts held in retained asset accounts. 
    • Reporting and compliance issues under state insurance law, such as responding to New York’s 2011 Section 308 letters. 
    • Securities law issues associated with unclaimed property compliance, including prospectus disclosure and operational considerations for variable products that may impact compliance with unclaimed property laws. 
    • Reinsurance recovery of escheated benefit payments.

     

All Insights

NY DFS Delivers an Icy Blast to Insurers Using External Data Sources and Algorithmic Underwriting

NY DFS Delivers an Icy Blast to Insurers Using External Data Sources and Algorithmic Underwriting

January 29, 2019

On January 18, 2019, a wintry wind blew when the New York Department of Financial Services (NY DFS) released Circular Letter No. 1 (2019) ("Letter No. 1") "to advise insurers authorized to write life insurance in New York of their statutory obligations regarding the use of external consumer data and information sources in underwriting for life insurance."

Challenging New York’s “Best Interest” Standard: A Comparison to COCUS

Challenging New York’s “Best Interest” Standard: A Comparison to COCUS

December 18, 2018

Recent challenges filed by trade associations representing insurance agents in the state of New York seek to overturn the amendment of Regulation 187, which will impose a “best interest” standard on life insurance agents in the offering and sale of annuities and life insurance in New York.

Court Upholds California Department of Insurance’s Expansive Interpretation of Claims Practices Statute

Court Upholds California Department of Insurance’s Expansive Interpretation of Claims Practices Statute

December 18, 2018

A California appellate court recently reversed the trial court’s decision to enjoin the California Insurance Commissioner from enforcing certain regulations regarding unfair claim settlement practices.

Defendants Not Liable for Insurance Agent’s Ponzi Scheme

Defendants Not Liable for Insurance Agent’s Ponzi Scheme

December 18, 2018

A California appellate court recently affirmed the dismissal of claims against multiple insurers made by victims of a Ponzi scheme that was orchestrated by an independent insurance agent.

Life Insurer’s Early Dispositive Motion Achieves Narrowed Fraud Claim in COI Suit

Life Insurer’s Early Dispositive Motion Achieves Narrowed Fraud Claim in COI Suit

December 18, 2018

A recent decision by a federal district court in Maryland further illustrates the elusive nature of early dismissal of claims in far-reaching suits challenging the cost of insurance rate increases – even when some success is achieved via the rejection of underlying theories of liability.

Class Certification Denied in Suitability Class Action

Class Certification Denied in Suitability Class Action

December 18, 2018

The Southern District of New York recently declined to certify a class in a suit relating to investments in certain closed-end mutual funds, holding that individual questions overwhelmed the class-wide questions in contravention of the typicality and predominance requirements of Federal Rule of Civil Procedure 23.

Sixth Circuit Holds Employer Has No Duty to Notify of Conversion Options

Sixth Circuit Holds Employer Has No Duty to Notify of Conversion Options

December 18, 2018

The Sixth Circuit recently held that an employer had no duty to notify employees of conversion options in group life insurance policies.

SEC Proposes Summary Prospectus Option and Modernized Disclosure for Variable Insurance Products

SEC Proposes Summary Prospectus Option and Modernized Disclosure for Variable Insurance Products

December 18, 2018

On October 30, the SEC voted to propose modernized disclosures for variable annuities and variable life insurance policies.

How State and Federal Laws Are Addressing the Use of Direct-to-Consumer Genetic Testing by Insurance Companies

How State and Federal Laws Are Addressing the Use of Direct-to-Consumer Genetic Testing by Insurance Companies

December 18, 2018

While life insurers traditionally have set premiums based on a multitude of complex actuarial tables, the recent boom in direct-to-consumer DNA testing produces, such as 23andMe and AncestryDNA, is expanding the universe of genetic information available about consumers for consideration in rate-setting and other underwriting and policy operations.

New Jersey Fiduciary Rule Pre-Proposal

New Jersey Fiduciary Rule Pre-Proposal

December 18, 2018

On October 15, the New Jersey Bureau of Securities (Bureau) requested public comments on the concept of amending the New Jersey Blue Sky regulations “to require that broker-dealers, agents, investment advisers, and adviser representatives be subject to a fiduciary duty.”

Use of Non-Binding SEC Staff Guidance Called Into Question

Use of Non-Binding SEC Staff Guidance Called Into Question

December 18, 2018

Recent moves by the SEC could signal a shift away from the use of non-binding guidance in the form of no-action letters or other types of compliance and interpretive information that the SEC staff frequently publishes.

Is It Time to Revisit SEC’s Ban on “Forced” Arbitration Provisions?

Is It Time to Revisit SEC’s Ban on “Forced” Arbitration Provisions?

December 18, 2018

The SEC has long refused to allow companies to go public with bylaws or other governing documents that would require shareholders to arbitrate federal securities law claims against the company.

Various NAIC Groups Discuss a Cornucopia of Life and Annuity Topics

Various NAIC Groups Discuss a Cornucopia of Life and Annuity Topics

December 18, 2018

At the NAIC Fall 2018 National Meeting, various groups within the NAIC discussed a cornucopia of topics that impact the life and annuity industry.

SEC Lightens Legal Load of Mutual Fund Directors

SEC Lightens Legal Load of Mutual Fund Directors

December 18, 2018

The SEC staff now says that mutual fund directors can rely on chief compliance officer certifications in determining compliance with board procedures required by SEC exemptive Rules 10f-3, 17a-7, and 17e-1 under the Investment Company Act.

Parent Company Guarantees of Annuities

Parent Company Guarantees of Annuities

December 18, 2018

Rule amendments proposed in October by the SEC could impact insurers whose obligations under certain types of annuity contracts have been guaranteed by the insurers’ affiliates.

Buffer ETFs vs. Index-Linked Annuities

Buffer ETFs vs. Index-Linked Annuities

December 18, 2018

A new form of “buffer” ETF is competing with somewhat similar products – often referred as index-linked or “buffer annuities” – issued by insurance companies. Innovator Capital Management, LLC serves as the investment adviser for a suite of buffer ETFs.

Executive Compensation Disclosure – Partial Relief for Insurance Products

Executive Compensation Disclosure – Partial Relief for Insurance Products

December 18, 2018

For many years, insurance company issuers of non-variable products that are registered with the SEC on Forms S-1 or S-3 have been required to disclose compensation information about highly compensated executive officers of the issuer.

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Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.