Insurance Transactions: How to Close Deals Regulators Will Approve

An insurance company acquisition requires due diligence that evaluates not only the target's financial statements but also the adequacy of its loss reserves, the quality of its reinsurance recoverable assets, and the contingent liabilities arising from pending regulatory actions and policyholder litigation, and insurance transactions and regulatory counsel advising on an insurance acquisition must evaluate whether the target's reserve adequacy can be independently verified.

A change of control of an insurance company requires prior approval from each state insurance department in which the insurer is domiciled or licensed, and insurance advisory counsel advising on a change of control filing must evaluate whether the acquirer satisfies the applicable major shareholder qualification standards and whether the business plan presented to regulators demonstrates adequate financial support for the acquired insurer.

An insurance portfolio transfer that moves an entire book of policies from one insurer to another typically requires court approval under the applicable state law's portfolio transfer statute, and insurance law counsel structuring a portfolio transfer must evaluate whether the receiving insurer has adequate financial resources and regulatory approvals to assume the transferred policies and whether the notice and policyholder consent procedures required by the applicable statute have been correctly followed.

A portfolio transfer that moves the underlying insurance policies from one insurer to another must also address the existing reinsurance treaties that cover those policies, and insurance recovery and counseling counsel advising on the reinsurance aspects of a portfolio transfer must evaluate whether the reinsurance treaties contain change of control provisions that give the reinsurer the right to terminate upon the transfer and whether the reinsurer's consent to a novation can be obtained on commercially acceptable terms.

An insurance company that issues hybrid capital instruments, including subordinated debt or surplus notes, must ensure those instruments satisfy the applicable regulatory capital recognition criteria, and hybrid capital counsel advising on a surplus note issuance must evaluate whether the instrument satisfies the applicable state insurance department's approval requirements and whether the instrument qualifies as Tier 1 or Tier 2 capital under the applicable risk-based capital framework.

An insurer operating under a risk-based capital framework must manage the duration mismatch between its long-duration insurance liabilities and the assets held to support them, and asset and liability management counsel advising on an insurer's capital strategy must evaluate whether the insurer's investment portfolio is appropriately diversified and duration-matched to support its liability profile.

A representations and warranties insurance policy must be tailored to the specific risk profile of the target company, and corporate M&A counsel advising on the use of R&W insurance in an insurance company acquisition must evaluate whether the R&W insurer's underwriting requirements can be satisfied given the complexity of the target's reserve liabilities.

After an insurance company acquisition closes, the acquirer must integrate the target's compliance systems, policy administration platforms, and regulatory reporting processes with its own, and insurance transactions and regulatory counsel advising on post-merger integration must evaluate whether any of the target's licenses or regulatory approvals need to be transferred following the change of control.