Barger & Wolen LLP

Barger & Wolen LLP has no picture


Articles By This Author

Barger & Wolen partner to speak at The International Life Settlements Conference

Randall Doctor, Partner, Barger & Wolen, will participate in a panel discussion at The International Life Settlements Conference to be held in London, May 1-2, 2012.

The panel discussion, "Legislation & Regulation: New Laws and Regulations in 2012"  will be moderated by Brian Casey, Partner, Locke Lord, and will include Mr. Doctor; Michael Freedman, Sr. Vice President, Government Affairs, Coventry; and John McCarroll, Vice President-General Counsel, Q Capital Strategies.

Program description:

Forty states and Puerto Rico have passed laws regulating the market. But this is only the first step. Regulations also must be drafted by the states. Market participants discuss what new laws have been recently passed, how older ones have been tweaked, and what regulations are being put into place.

The International Life Settlements Conference is an annual gathering of the most active investors, investment bankers, hedge fund managers, providers, brokers and attorneys involved in the market. This international group of professionals will meet for two-full days of unique educational programming and take part in an abundance of networking opportunities.

For more information, please visit the conference website.

California Department of Insurance Imposing Strict Standards on Applicants for Life Settlement Provider Licenses

Recently, the California Department of Insurance has issued “Intent to Deny” letters to at least four applicants for life settlement provider licenses based upon a “lack of financial stability.” Ironically, at the same time the Department held a pre-notice hearing to discuss its plans to seek to promulgate regulations that will set forth financial stability standards.

In an article published by The Life Settlements Report on April 4, 2012, Barger & Wolen attorney Randall Doctor examined the Department’s actions. "That's a very vague standard,” Doctor, chair of the Insurance Regulatory and Compliance Practice Group in Barger & Wolen's San Francisco office. “A state agency is subject to a duty to have consistent, objective standards to apply.”

Doctor told the publication there is no formal financial stability requirement in place, yet the Department still threatened to deny at least four provider's applications recently.

"They can't say willy-nilly, 'you lack financial stability.' They recognize they are lacking the legitimate authority to do that,” Doctor told The Life Settlements Report. “At the same time, they're denying providers on this flimsy basis.”

One of the companies opted to voluntarily withdraw its application to avoid a formal denial that could hurt its chances of getting licenses in other states, Doctor said.

Doctor notes that while the state has the legal authority to request the financial information, there is no set standard as to what constitutes “profitability.” He said that one of the providers that received notice its application would be denied, did make a profit last year, just not a big enough one, apparently. "It didn't meet the double-secret, unknown profitability standard," he said.

Click here for the original article and for more information.

Dodd-Frank Does Not Preempt All California's § 1011(c) Reinsurance Approval Requirements Applicable to Foreign Insurers

By Michael Rosenfield and Chris Burusco

Prior to the Dodd-Frank Act, California Insurance Code § 1011(c) required all California-admitted insurers to obtain prior approval from the California Department of Insurance for any reinsurance transaction that exceeded a 50% or 75% threshold.  

In other words, even if each insurer that was a party to the reinsurance agreement was only licensed in California and was domiciled elsewhere, § 1011(c) approval was nonetheless required.

On its face, the Dodd-Frank Act appears to preempt those California approval requirements as they pertain to reinsurance transactions involving only foreign insurers. 

The CDI appeared to acknowledge this preemptive effect in CDI Bulletin No. 2011-2 when the CDI stated that it

will not exercise its discretion to conserve a non-domestic insurer for failure to obtain prior consent to such reinsurance transactions.

In the CDI’s view, however, assumption reinsurance transactions do not fall within the category of Dodd-Frank preempted reinsurance transactions. 

The CDI has confirmed to us that it does not view assumption reinsurance to be a true “reinsurance” transaction, but rather a “purchase” or “sale.” Moreover, assumption reinsurance transactions are expressly included within the definition of “sale” and “purchase” in California’s Reinsurance Oversight Regulations.

Accordingly, California-admitted insurers domiciled outside California appear, at least in the CDI’s view, to remain subject to the prior approval requirements of § 1011(c) with respect to any sale or purchase transaction (including a sale or purchase involving assumption reinsurance) that exceeds the regulatory specified thresholds.

For further information, please contact Michael Rosenfield at mrosenfield@bargerwolen.com | (213) 614-7321 or Chris Burusco at cburusco@bargerwolen.com | (213) 614-7332.

Potential Changes to Prior Approval Regulations for Property/Casualty Insurers Under Consideration by California Department of Insurance

By Robert W. Hogeboom, Samuel Sorich and Steven Weinstein

On November 10, 2011, the California Department of Insurance (“CDI” or “Department”) conducted a workshop to consider potential changes to regulations that govern prior approval of property/casualty insurance rates and class plan applications. The list of topics discussed at the workshop is included in the CDI Notice of Workshop Regarding the Scope of Prior Approval dated September 21, 2011.

The workshop grew out of the 2010 MacKay v. Superior Court case in which the court held, among other things, that Insurance Code Section 1860.1 exempts approved rates from civil actions and that such rates are subject only to a limited prospective challenge by administrative procedure (under Insurance Code Section 1858 et seq.). 

Barger & Wolen was counsel for the prevailing insurer, 21st Century Insurance Company, in MacKay, and our two blogs on the MacKay case can be accessed here and here.

MacKay involved 21st Century’s use of the accident verification factor which plaintiffs asserted was not an approved rating factor, but only an unapproved underwriting guideline.

The court concluded that the “language submitted to the Department for approval” is what is relevant as to whether a guideline is “submitted to the Department as a factor affecting the rates to be charged.” 

Here, though accident verification was contained as an underwriting guideline, the insurer explained the use of accident verification in an exhibit to its rate application as affecting the rates to be charged and had been approved by the Department. 

Based on MacKay, the use of underwriting guidelines was a prominent issue in the workshop.

Heading the workshop from the CDI were General Counsel Adam Cole, Joel Laucher, Chief Deputy of Rate Regulation, and Bryant Henley, Senior Counsel for the Rate Enforcement Bureau. 

While there was an exchange of views among insurer representatives, representatives of consumer groups and the CDI staff, no decisions were made at the workshop.

Mr. Cole announced that interested parties have until December 1, 2011, to submit written comments on the workshop topics.

At that point, the CDI presumably will review the workshop record and determine whether to propose any new regulations relating to the workshop topics.

Following is a summary of the key issues discussed at the workshop:

Continue Reading...

Barger & Wolen's Insurance Litigation & Regulatory Law Blog Named to The Insurance Law Community's Top Blogs for 2011

Barger & Wolen's Insurance Litigation & Regulatory Law and Life, Health, Disability Insurance Law blogs have been named to LexisNexis' Insurance Law Community's Top Insurance Blogs 2011.

According to LexisNexis,

These top blogs offer some of the best writing out there. They contain a wealth of information for all segments of the insurance industry, and include timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources.

These sites demonstrate the power of the blogosphere, by providing a collective example of how bloggers can—and do—impact and influence the law and the business of insurance.

We are honored to be included among so many well-written and well-regarded blogs.

A Firm Approach
Our philosophy for our blogs is to provide an open platform for our partners and associates to write. Whether commenting on a recent news item, informing our readers about a new piece of legislation, or providing case summaries and case reviews, each of our blogs maintains a distinct focus:

For all of their hard work, we would like to congratulate and thank the editors of our blogs, as well as all our attorney contributors.

All of our blogs are available for complimentary subscription via e-mail or RSS feed. Please visit each blog individually to subscribe.

In addition to our insurance law focused blogs, please visit the firm's Litigation Management & Attorney Fee Analysis Blog.

U.S. News & World Report & Best Lawyers Names Barger & Wolen to Their Best Law Firms List

Barger & Wolen is proud to announce that the firm has received a first-tier ranking in the 2011-2012 U.S. News – Best Lawyers “Best Law Firms” survey for our regional Los Angeles insurance law practice. The firm is also recognized for our national insurance law practice as well.

In addition, partners Kent R. Keller and Royal F. Oakes are listed for their work in Insurance Law.

“Barger & Wolen continues to be honored by our inclusion in US News & World Report and Best Lawyers’ ranking for the second year in a row,” said Steven H. Weinstein, chairman for Barger & Wolen. “Receiving this national recognition for the work our firm is doing validates for us that we truly are providing the quality legal services our clients’ demand, while maintaining the competitive price structure the insurance industry seeks.”

About the Survey

U.S. News & World Report uses data compiled by Best Lawyers to produce their Best Law Firms rankings. Best Lawyers combines hard data with peer reviews, and client assessments to produce their annual reports.

Rankings of 75 national practice areas are included in U.S. News & World Report’s Money issue, available November 15, with the full results available online today here.

Former President of Association of California Insurance Companies Joins Barger & Wolen

Firm Expands California Footprint with New Sacramento Office

Sam Sorich, the former president of the Association of California Insurance Companies (ACIC), California’s longest established property/casualty insurance trade association, joins Barger & Wolen as Of Counsel on June 15, 2011. Mr. Sorich, who has been in the insurance industry for more than 30 years, will also open and head the law firm’s new Sacramento office. 

“After my retirement from the ACIC, I was looking for an opportunity to continue to serve the insurance industry and its customers. Joining Barger & Wolen was the perfect opportunity to do that,” Sam Sorich says. “Barger & Wolen is an extraordinary firm that has incredible presence and influence in the insurance industry and has successfully represented many of ACIC’s 300 members.”

As ACIC president, Sorich directed the group’s legislative, regulatory and litigation activities. His role with Barger & Wolen will focus on expanding the firm’s presence and relationships in Sacramento particularly with the Department of Insurance and other state agencies. Although Barger & Wolen is not new to Sacramento, due to its representation and regulatory work before the Department of Insurance, Sorich will become a liaison for the firm’s clients within the influential circles of the state’s capital. 

“This new move solidifies our presence in Sacramento, which is a center of influence in California for the insurance industry,” says Steven Weinstein, chairman of Barger & Wolen. “The addition of Sam not only shows our understanding of our client’s business practices and needs, but it demonstrates our leadership in the industry.”

Under his direction at ACIC, Sorich and ACIC played a key role in the crafting and regulatory implementation of the 2003-2004 workers’ compensation reforms, the development of regulations that implement Proposition 103's provisions on auto insurance rating and underwriting, litigation that determines the scope of the insurance commissioner's authority over homeowners insurance underwriting, and legislation that provides consumers with effective disclosures regarding insurance coverage. 

Robert Hogeboom, one of the leaders of the firm’s regulatory practice, adds: “Sam Sorich is well respected by the insurance industry and regulators throughout the country. He will continue to play a key role in the regulatory work that we do for insurance companies at the state and federal levels.”

Sorich is a graduate of the University of Illinois College of Law. Before beginning his insurance career, Sorich served as a Peace Corps volunteer and an assistant attorney general in the office of the Illinois Attorney General. Sorich is a member of the Illinois Bar and the Hawaii Bar.

Attorney Conflicts of Interest: Identifying and Resolving Ethical Pitfalls

Strategies to Minimize the Risk of Ethics Violations and Malpractice Claims

Barger & Wolen partner David J. McMahon will be a faculty member for this Strafford Publications' CLE webinar which will provide attorneys with a framework to identify the most problematic and difficult-to-detect conflicts risks. The panel will outline best practices for attorneys to cope with conflicts that could potentially result in disqualification, discipline and malpractice.

Description

Conflicts of interest are one of the most common ethical dilemmas for attorneys. Whether the situation involves a personal conflict, a multi-client conflict, or a third-party conflict, practitioners must identity situations or transactions that pose potential conflicts of interest.

Conflict issues that arise when attorneys change firms are particularly relevant in the current environment. The ABA's Formal Opinion 09-455 addresses situations in which revealing a client’s identity and description of work performed may itself violate client confidence.

While many conflicts can be resolved with client consent, an effective waiver depends on the nature of the conflict, the timing of the waiver request, and whether the client is a current or former client. Conflicts can also be anticipated and addressed in engagement letters.

Listen as our authoritative panel of attorneys discusses how to identify potential conflicts issues and outlines best practices for avoiding or resolving those conflicts.

Outline

  1. Identifying sources for potential conflicts of interest
    1. Defining the client
    2. Defining the adversity that triggers conflict rules
    3. Adverse client conflict — direct adversity or adverse representation
    4. Joint representation — dual or concurrent representation
    5. Adversity to former clients
    6. Personal conflicts of interest
  2. Conflict resolution
    1. Withdrawal from representation
    2. Client consent
    3. Conflict waivers
    4. Engagement letters
    5. Law firm conflicts checks

Benefits

The panel will review these and other key questions:

  • What are some best practices for law firm conflict avoidance procedures?
  • Under what circumstances will a conflict prevent representation?
  • How can engagement letters effectively limit potential conflicts?
  • What critical language should be included in a conflicts waiver document?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Joining Mr. McMahon on the faculty are Brett A. Scher, Partner, Kaufman Dolowich Voluck & Gonzo, Woodbury, N.Y. and Thomas B. Mason, Partne, Zuckerman Spaeder, Washington, D.C.

14th Annual Insurance Forum in Chicago Sponsored by Barger & Wolen

Barger & Wolen is proud to join JVP Partners in sponsoring the 14th Annual Insurance Forum on November 9th, 2010 in Chicago. This complimentary event is open to all.

14th Annual Insurance Forum
Tuesday, November 9, 2010
7:30 a.m. - 5:30 p.m.
The Union League Club
65 West Jackson
Chicago, IL

What is the Insurance Forum? The Forum is an event presented by the Insurance Forum Committee, chaired by Kenneth M. Weine. This is an executive level program designed for insurance and risk management professionals, accountants, attorneys, corporate officers, financial examiners, and regulators.

Can I Earn Continuing Education Credit? Continuing Education credit is available for attorneys, AIRs, CPAs, CFEs, CIRs and other insurance designations. (Certain restrictions apply, so please verify that your designation is approved in the state(s) you require).

To register for this complimentary event, click here

For more information, click here

Panels & Speakers (order subject to change)

Continue Reading...

Barger & Wolen Receives First-Tier Ranking in the Inaugural "Best Law Firms" Survey by U.S.News and Best Lawyers®

Barger & Wolen is proud to announce that the firm has received a first-tier ranking by U.S. News and Best Lawyers® for our Nationwide Insurance practice, as well as our regional practice in Los Angeles. In addition, partners Kent R. Keller and Royal F. Oakes are listed for their work in Insurance Law.

“We are honored to be included with such a distinguished group of law firms,” said Steven H. Weinstein, chairman for Barger & Wolen. “It is especially rewarding to have our peers note our work. It validates, for us, that a mid-sized firm can provide incredible legal services, while maintaining the competitive price structure the insurance industry seeks.”

About the Rankings:
"U.S. News is the world’s leading publisher of institutional rankings based on both objective data and peer evaluations," says Steven Naifeh, President of Best Lawyers. "We are combining this expertise with Best Lawyers’ experience of providing rankings of individual lawyers based on peer reviews for almost three decades. By combining hard data with peer reviews, and client assessments, we believe that we are providing users with the most thorough, accurate, and helpful rankings of law firms ever developed."