Insurance Litigation & Regulation

Policyholder Class Action Defense and Other Large Scale Litigation 

Results count. Our robust practice defends policyholder class actions and large-scale catastrophe and crisis litigation on behalf of major insurance companies and serves as national class counsel to the nation’s largest property and casualty insurer. We have an outstanding track record of obtaining dismissals and defeating class certification in hostile, notoriously plaintiff-friendly jurisdictions. We bring creative, strategic thinking to bear on early exit strategies. But as our adversaries know, our lawyers try cases. We know how to thoroughly prepare a case and our clients’ witnesses for trial, and we distill complex legal and insurance issues into compelling narratives for a jury. We have handled and continue to handle numerous nationwide class actions as lead national counsel.

High Exposure Claims, Coverage & Bad Faith Defense 

In jurisdictions across the country, we counsel and defend insurers facing excess exposure and bad-faith litigation. We routinely handle complex coverage issues involving all types of personal and commercial lines (both standard and specialty). Our substantial experience includes general liability, excess and umbrella liability, commercial property, employer liability, intellectual property, cyber liability, environmental liability, professional liability, title, E&O liability, and D&O liability coverage matters. We are engaged regularly as coordinating counsel to oversee and maintain consistent strategy, discovery, and witness preparation in high-stakes litigation that challenges your key corporate business initiatives.

Insurance-Related Antitrust Defense 

A core strength of the Alston & Bird insurance team is our resourceful approach to antitrust litigation. Clients regularly retain us to represent them in antitrust trials, class actions, and multidistrict litigation. The intersection of antitrust and insurance is a complex space, and we have the deep bench of talent and proven litigation experience to guide you to positive outcomes.

Regulatory Guidance 

Our team frequently provides our clients with regulatory counseling and representation in regulatory enforcement actions (including market conduct examinations), investigations, contested hearings before state regulators, and regulation-driven litigation. We help you traverse the network of regulators that impacts your business, and we advise on the regulatory issues that affect your core strategic business initiatives.

Policy Drafting & Product Development 

We deftly assist insurers in policy contract drafting, insurance product development, insurance-specific project consulting, and bundling insurance and noninsurance products and services. Our collaborative services include reinsurance counseling and insurance-related privacy and data security counseling.

Catastrophic Events

Alston & Bird’s insurance litigation attorneys have handled litigation on behalf of insurers (many times serving as coordinating counsel) involving nearly every major catastrophic event and macro event that has touched the insurance industry. For example, our attorneys have represented many of the nation’s largest carriers as national coverage counsel, class counsel, or coordinating counsel in litigation involving the COVID-19 pandemic; Hurricanes Katrina, Rita, and Ike; wind-hail events; and the terrorist attacks of September 11, 2001. We have substantial experience and know-how in dealing with these types of crises and their myriad regulatory implications and complications.

Compliance Counseling

We’ve handled virtually every regulatory compliance issue imaginable in the insurance field before every state insurance regulator in the country.

• Representing a life insurer in a class action alleging that interest-sensitive whole-life policies were breached when notices were sent about administrative changes to the policies that allegedly caused policyholders to surrender their policies.
• Obtained dismissal of a nationwide class action alleging violations of civil RICO and consumer protection statutes arising out of the sales and marketing of indexed annuity products. 
• Representing a life insurer in a class action challenging an alleged practice of recruiting independent sales agents that violates statutes that prohibit “endless chain” schemes and related unfair business practices.
• National lead counsel defending claims over a future income payments premium funding scheme perpetrated by independent agents around the country.
• Represented a large national insurance carrier and secured a victory in the first trial among a series of “diminished value” class actions facing multiple insurance carriers. The case involved Consumer Protection Act claims challenging the insurer’s disclosure practices for automobile-insurance-related diminished value. Won a defense verdict on all counts after a week-long jury trial.
• Obtained dismissal of a putative class challenging the way all insurance companies calculate premiums for workers’ compensation insurance policies.
• Obtained summary judgment in favor of a large insurer in a putative class action alleging violations of federal antidiscrimination statutes (42 U.S.C. §§ 1981 and 1982), the Fair Credit Reporting Act, and various state-law provisions. Obtained a favorable decision affirming the dismissal of the putative class action.
• After a Washington state class had already been certified, engaged by a large national insurance carrier in a case alleging that our client improperly imposed service fees on installment payments that exceeded premiums. We immediately moved to dismiss the case based on the doctrine of primary jurisdiction, and the trial court referred our proposed certified questions to the Washington insurance commissioner. After receiving answers to those certified questions, we moved for summary judgment on the client’s behalf, and that motion was granted. The decision was affirmed by the Washington Court of Appeals. The petition for review by the Washington Supreme Court was denied.
• Defeated class certification of a Colorado class action alleging that insureds were entitled to PIP benefits that were never offered or paid under Colorado statute. The complaint requested reformation of contract under Colorado statute and alleged breach of contract, breach of duty of good faith and fair dealing, willful and wanton breach of contract, and violation of state deceptive trade practice laws. The trial court, after a full hearing on the class issues, denied the motion for class certification, which was affirmed by the Colorado Court of Appeals. The writ of certiorari was denied by the Colorado Supreme Court.
• Obtained dismissal of a putative state class action alleging our client’s service charges on installment plans were excessive and violated Florida law.

Arbitration

• Represented insurer in dispute arising out of reinsurance premium increases and reinsurance coverage and reserving issues that resulted in favorable resolution after two separate arbitration hearings.
• Representing reinsurer in dispute involving the increase of premiums under several reinsurance agreements.
• Represented an insurer through the award in a multibillion-dollar reinsurance trust-funding dispute.

Regulatory Matters

• Regulatory counsel to a large health insurance carrier, furnishing guidance on a host of issues on health insurance reform under the Patient Protection and Affordable Care Act, as modified by the Health Care and Education Reconciliation Act of 2010, and health insurance reform at the state level.
• National regulatory counsel to wireless handset insurance programs, representing the largest wireless carriers in the United States and multiple vendors.
• Advised a large health care services company on producer licensing issues for a change in control of its broker subsidiary.
• Counseled a third-party administrator on whether guaranteed pricing for prescription drugs constitutes the business of insurance.
• Advised a national online car-buying platform on insurance regulatory issues for a buyer incentive program.
• Counseled an investment management company on forming a captive insurer to enter the Federal Home Loan Banks system and obtain favorable borrowing rates.
• Engaged by carriers and producers in Department of Insurance and attorney general investigations in 23 states.
• Supervised and regulated the entire life insurance industry in New York State, primarily through the establishment of standards for financial solvency, market conduct, and corporate oversight; the promulgation of regulations; and the monitoring of compliance by over 630 regulated entities.
• Provided the superintendent and executive deputy superintendent of NYDFS with advice on issues pertaining to the life insurance industry and the regulatory process.
• Advised the life insurance industry on a variety of matters, including M&A and other strategic transactions, disclaimers of control/affiliations, reinsurance arrangements and the use of reciprocal jurisdiction reinsurer and certified reinsurer licensure, formation and licensure of insurance companies, use of accelerated underwriting, artificial intelligence and machine learning, and proposed and pending legislation.
• Responsible for the promulgation of several circular letters and regulations intended to enhance consumer protections within New York State. 
• Represented the NYDFS in meetings and conferences with insurers, representatives of industry organizations, NAIC, other governmental agencies, and the public.
• Represented a Canadian insurer in its demutualization to a stock insurance company, including the structuring of the reorganization and the drafting of the demutualization plan.
• Responsible for all domestic and offshore business transactions for two publicly traded financial services companies, including acquisitions of insurance companies and asset management firms, the purchase and subsequent sale of oil and gas assets, and the lift-out of several portfolio management teams. Coordinated all related integration efforts, including obtaining all required insurance, Securities and Exchange Commission (SEC), and bank regulatory approvals.

Market Conduct & Regulatory Examinations

• Assisted a top-tier insurer in a massive multistate market conduct examination that resulted in a 43-state regulatory settlement over claims-handling practices. Assisting on multiple ongoing ancillary and compliance issues with the settlement, including open records act requests.
• Engaged by a top-tier provider of specialized insurance products for regulatory investigations by California and Georgia into race-based premiums charged on certain policies sold by one or more companies acquired over the years. Involved in negotiating settlements of potential regulatory claims with participating state regulators and preparing for private litigation.
• Coordinated financial examination reviews of life insurance entities with individual state regulators, resulting in lowered reserves and timely approval.
• Represented life insurers and their agents on regulatory matters involving insurance investigations, producer compensation issues, rate and form filings, fee and bonus structures, and product development.
• Represented a large life insurer in an investigation of fraudulent life-underwriting practices involving thousands of policyholders potentially exposed to HIV by a rogue underwriting agent and over $300 million of fraudulently procured life insurance.
• Investigated the circumstances of a forged facultative reinsurance agreement and uncovered a fraud scheme perpetrated by a captive insurance intermediary and others to issue numerous counterfeit insurance policies in our client’s name.
• Supervised and regulated the entire life insurance industry in New York State, primarily through the establishment of standards for financial solvency, market conduct, and corporate oversight; the promulgation of regulations; and the monitoring of compliance by over 630 regulated entities.
• Represented the NYDFS in meetings and conferences with insurers, representatives of industry organizations, NAIC, other governmental agencies, and the public. 

Premium Finance

• Counseled and provided legal opinions to a startup producer on 50-state premium finance issues for a $250 million credit facility.