Illinois General Assembly - Full Text of HB5534
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Full Text of HB5534  102nd General Assembly

HB5534 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5534

 

Introduced 1/31/2022, by Rep. Thaddeus Jones

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Insurance Business Transfer Act. Provides that notwithstanding any other provision of law, a court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this Act. Sets forth provisions concerning notice requirements, application procedure, application to a court for approval of a plan, approval and denial of insurance business transfer plans, and fees and costs. Provides that the Department of Insurance shall adopt rules that are consistent with the provisions and that no insurance business transfer plan shall be approved in the State unless and until such rules are adopted. Provides that the portion of the application for an insurance business transfer that would otherwise be confidential, including any documents, materials, communications, or other information submitted to the Director of Insurance in contemplation of an application, shall not lose such confidentiality. Provides that insurers consent to the jurisdiction of the Director with regard to ongoing oversight of operations, management, and solvency relating to the transferred business. Defines terms.


LRB102 26077 BMS 35542 b

 

 

A BILL FOR

 

HB5534LRB102 26077 BMS 35542 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Insurance Business Transfer Act.
 
6    Section 3. Purpose and intent. The purpose of this Act is
7to provide options to address the significant limitations in
8the current methods available to insurers to transfer or
9assume blocks of insurance business in an efficient and
10cost-effective manner that provides needed legal finality for
11such transfers in order to provide for improved operational
12and capital efficiency for insurance companies, stimulates the
13economy by attracting segments of the insurance industry to
14this State, makes this State an attractive home jurisdiction
15for insurance companies, encourages economic growth and
16increased investment in the financial services sector, and
17increases the availability of quality insurance industry jobs
18in this State. These purposes are accomplished by providing a
19basis and procedures for the transfer and statutory novation
20of policies from a transferring insurer to an assuming insurer
21by way of an insurance business transfer without the
22affirmative consent of policyholders or reinsureds. This Act
23establishes the requirements for notice and disclosure and

 

 

HB5534- 2 -LRB102 26077 BMS 35542 b

1standards and procedures for the approval of the transfer and
2novation by the Director and a court pursuant to an insurance
3business transfer plan. This Act does not limit or restrict
4other means of effecting a transfer or novation.
 
5    Section 5. Definitions. As used in this Act:
6    "Affiliate" means a person that directly or indirectly,
7through one or more intermediaries, controls, is controlled
8by, or is under common control with the person specified.
9    "Applicant" means a transferring insurer or reinsurer
10applying under this Act.
11    "Assuming insurer" means an insurer domiciled in this
12State that assumes or seeks to assume policies from a
13transferring insurer pursuant to this Act.
14    "Department" means the Department of Insurance.
15    "Director" means the Director of Insurance.
16    "Implementation order" means an order issued by a court
17under this Act.
18    "Insurance business transfer" means a transfer and
19novation that, once approved pursuant to this Act, transfers
20insurance obligations or risks, or both, of existing or
21in-force contracts of insurance or reinsurance from a
22transferring insurer to an assuming insurer, and effects a
23novation of the transferred contracts of insurance or
24reinsurance with the result that the assuming insurer becomes
25directly liable to the policyholders of the transferring

 

 

HB5534- 3 -LRB102 26077 BMS 35542 b

1insurer and the transferring insurer's insurance obligations
2or risks, or both, under the contracts are extinguished.
3    "Insurance business transfer plan" means the plan
4submitted to the Department to accomplish the transfer and
5novation pursuant to an insurance business transfer, including
6any associated transfer of assets and rights from or on behalf
7of the transferring insurer to the assuming insurer.
8    "Independent expert" means an impartial person who has no
9financial interest in either the assuming insurer or
10transferring insurer, has not been employed by or acted as an
11officer, director, consultant, or other independent contractor
12for either the assuming insurer or transferring insurer within
13the past 12 months, is not appointed by the Director to assist
14in any capacity in any insurer rehabilitation or delinquency
15proceeding, is receiving no compensation in connection with
16the transaction governed by this Act other than a fee based on
17a fixed or hourly basis that is not contingent on the approval
18or consummation of an insurance business transfer, and
19provides proof of insurance coverage that is satisfactory to
20the Director.
21    "Insurer" means an insurance, surety, or reinsurance
22company, corporation, partnership, association, society,
23order, individual, or aggregation of individuals engaging in
24or proposing or attempting to engage in any kind of insurance
25or surety business, including the exchanging of reciprocal or
26inter-insurance contracts between individuals, partnerships,

 

 

HB5534- 4 -LRB102 26077 BMS 35542 b

1and corporations.
2    "Policy" means a policy, annuity contract, certificate of
3insurance, or a contract of reinsurance pursuant to which an
4insurer agrees to assume an obligation or risk, or both, of the
5policyholder or to make payments on behalf of, or to, the
6policyholder or its beneficiaries, including property,
7casualty, life, health, and any other line of insurance the
8Director approves by rule as suitable for an insurance
9business transfer.
10    "Policyholder" means an insured or a reinsured under a
11policy that is part of the subject business.
12    "Subject business" means the policy or policies that are
13the subject of the insurance business transfer plan.
14    "Transfer and novation" means the transfer of insurance
15obligations or risks, or both, of existing or in-force
16policies from a transferring insurer to an assuming insurer
17that is intended to effect a novation of the transferred
18policies with the result that the assuming insurer becomes
19directly liable to the policyholders of the transferring
20insurer on the transferred policies and the transferring
21insurer's obligations or risks, or both, under the transferred
22policies are extinguished.
23    "Transferring insurer" means an insurer or reinsurer that
24transfers and novates or seeks to transfer and novate
25obligations or risks, or both, under one or more policies to an
26assuming insurer pursuant to an insurance business transfer

 

 

HB5534- 5 -LRB102 26077 BMS 35542 b

1plan.
 
2    Section 10. Court authority. Notwithstanding any other
3provision of law, a court may issue any order, process, or
4judgment that is necessary or appropriate to carry out the
5provisions of this Act. No provision of this Act shall be
6construed to preclude a court from, on its own motion, taking
7any action or making any determination necessary or
8appropriate to enforce or implement court orders or rules or
9to prevent an abuse of power.
 
10    Section 15. Notice requirements.
11    (a) Whenever notice is required to be given by an
12applicant under this Act, except as otherwise permitted by a
13court or the Director, the applicant shall within 15 days
14after the event triggering the requirement transmit the
15notice:
16        (1) to the chief insurance regulator in each
17    jurisdiction :
18            (A) in which the applicant holds or has ever held a
19        certificate of authority; and
20            (B) in which policies that are part of the subject
21        business were issued or policyholders currently
22        reside;
23        (2) to the National Conference of Insurance Guaranty
24    Funds, the National Organization of Life and Health

 

 

HB5534- 6 -LRB102 26077 BMS 35542 b

1    Insurance Guaranty Associations, and all state insurance
2    guaranty associations for the states:
3            (A) in which the applicant holds or has ever held a
4        certificate of authority; and
5            (B) in which policies that are part of the subject
6        business were issued or policyholders currently
7        reside;
8        (3) to reinsurers of the applicant pursuant to the
9    notice provisions of the reinsurance agreements applicable
10    to the policies that are part of the subject business or,
11    where an agreement has no provision for notice, by
12    internationally recognized delivery service;
13        (4) to all policyholders holding policies that are
14    part of the subject business at their last known address
15    as indicated by the records of the applicant or to the
16    address to which premium notices or other policy documents
17    are sent. A notice of transfer shall also be sent to the
18    transferring insurer's agents or brokers of record on the
19    subject business; and
20        (5) by publication in a newspaper of general
21    circulation in the state in which the applicant has its
22    principal place of business and in such other publications
23    that the Director requires.
24    (b) If notice is given in accordance with this Section,
25any orders under this Act shall be conclusive with respect to
26all intended recipients of the notice whether or not they

 

 

HB5534- 7 -LRB102 26077 BMS 35542 b

1receive actual notice.
2    (c) If this Act requires that the applicant provide notice
3but the Director has been named receiver of the applicant, the
4Director shall provide the required notice.
5    (d) Notice under this Section may take the form of
6first-class mail, facsimile, or electronic notice.
 
7    Section 20. Application procedure.
8    (a) An insurance business transfer plan shall be filed by
9the applicant with the Director for his or her review and
10approval. The plan may be supplemented by other information
11deemed necessary by the Director, and shall contain the
12following information or an explanation as to why the
13following information is not included:
14        (1) the name, address, and telephone number of the
15    transferring insurer and the assuming insurer and their
16    respective direct and indirect controlling persons, if
17    any;
18        (2) a summary of the insurance business transfer plan;
19        (3) an identification and description of the subject
20    business;
21        (4) the most recent audited financial statements and
22    statutory annual and quarterly reports of the transferring
23    insurer and the assuming insurer filed with their
24    domiciliary regulator;
25        (5) the most recent actuarial report and opinion that

 

 

HB5534- 8 -LRB102 26077 BMS 35542 b

1    quantify the liabilities associated with the subject
2    business;
3        (6) pro forma financial statements showing the
4    projected statutory balance sheet, results of operation,
5    and cash flows of the assuming insurer for the 3 years
6    following the proposed transfer and novation;
7        (7) officers' certificates of the transferring insurer
8    and the assuming insurer attesting that each has obtained
9    all required internal approvals and authorizations
10    regarding the insurance business transfer plan and
11    completed all necessary and appropriate actions relating
12    thereto;
13        (8) a proposal for plan implementation and
14    administration, including the form of notice to be
15    provided under the insurance business transfer plan to any
16    policyholder whose policy is part of the subject business;
17        (9) a full description as to how notice under the
18    insurance business transfer plan shall be provided;
19        (10) a description of any reinsurance arrangements
20    that would pass to the assuming insurer under the
21    insurance business transfer plan;
22        (11) a description of any guarantees or additional
23    reinsurance that will cover the subject business following
24    the transfer and novation;
25        (12) a statement describing the assuming insurer's
26    proposed investment policies and any contemplated

 

 

HB5534- 9 -LRB102 26077 BMS 35542 b

1    third-party claims management and administration
2    arrangements;
3        (13) a description of how the transferring and
4    assuming insurers will be licensed for the following
5    guaranty association coverage purposes:
6            (A) guaranty association coverage;
7            (B) the financial implications of the transaction
8        including solvency, capital adequacy, cash flow,
9        reserves, asset quality, and risk-based capital;
10            (C) an analysis of the assuming insurer's
11        corporate governance structure to ensure that there is
12        proper board management oversight and expertise to
13        manage the subject business;
14            (D) the competency, experience, and integrity of
15        the persons who would control the operation of an
16        involved insurer; and
17            (E) ensuring the transaction is not being made for
18        improper purposes, including fraud.
19        (14) evidence of approval or nonobjection of the
20    transfer from the chief insurance regulator of the state
21    of the transferring insurer's domicile; and
22        (15) a report from an independent expert, selected by
23    the Director from a list of at least 2 nominees submitted
24    jointly by the transferring insurer and the assuming
25    insurer, to assist the Director and a court in connection
26    with their review of the proposed transaction. If the

 

 

HB5534- 10 -LRB102 26077 BMS 35542 b

1    Director, in his or her sole discretion, rejects the
2    nominees, he or she may appoint the independent expert.
3    The report shall provide the following:
4            (A) a statement of the independent expert's
5        professional qualifications and descriptions of the
6        experience that qualifies him or her as an expert
7        suitable for the engagement;
8            (B) whether the independent expert has, or has
9        had, direct or indirect interest in the transferring
10        or assuming insurer or any of their respective
11        affiliates;
12            (C) the scope of the report;
13            (D) a summary of the terms of the insurance
14        business transfer plan to the extent relevant to the
15        report;
16            (E) a listing and summaries of documents, reports,
17        and other material information the independent expert
18        has considered in preparing the report and whether any
19        information requested was not provided;
20            (F) the extent to which the independent expert has
21        relied on information provided by and judgment of
22        others;
23            (G) the people on whom the independent expert has
24        relied and why, in his or her opinion, such reliance is
25        reasonable;
26            (H) the independent expert's opinion of the likely

 

 

HB5534- 11 -LRB102 26077 BMS 35542 b

1        effects of the insurance business transfer plan on
2        policyholders and claimants, distinguishing between:
3                (i) transferring policyholders and claimants;
4                (ii) policyholders and claimants of the
5            transferring insurer whose policies will not be
6            transferred; and
7                (iii) policyholders and claimants of the
8            assuming insurer;
9            (I) the facts and circumstances supporting each
10        opinion that the independent expert expresses in the
11        report; and
12            (J) consideration as to whether the security
13        position of policyholders that are affected by the
14        insurance business transfer are materially adversely
15        affected by the transfer.
16    (b) The independent expert's report as required by
17paragraph (15) of subsection (a) shall include, but not be
18limited to, a review of the following:
19        (1) analysis of the transferring insurer's actuarial
20    review of resources for the subject business to determine
21    the reserve adequacy;
22        (2) analysis of the financial condition of the
23    transferring and assuming insurers and the effect the
24    transfer will have on the financial condition of each
25    company;
26        (3) review of the plans or proposals the assuming

 

 

HB5534- 12 -LRB102 26077 BMS 35542 b

1    insurer has with respect to the administration of the
2    policies subject to the proposed transfer;
3        (4) whether the proposed transfer has a material,
4    adverse impact on the policyholders and claimants of the
5    transferring and the assuming insurers;
6        (5) analysis of the assuming insurer's corporate
7    governance structure to ensure that there is proper board
8    and management oversight and expertise to manage the
9    subject business; and
10        (6) any other information that the Director requests
11    in order to review the insurance business transfer.
12    (c) The Director shall have 60 business days after the
13date of receipt of a complete insurance business transfer plan
14to review the plan to determine if the applicant is authorized
15to submit it to a court. The Director may extend the 60-day
16review period for an additional 30 business days.
17    (d) The Director shall authorize the submission of the
18insurance business transfer plan to a court unless he or she
19finds that the insurance business transfer would have a
20material adverse impact on the interests of policyholders or
21claimants that are part of the subject business.
22    (e) If the Director determines that the insurance business
23transfer would have a material adverse impact on the interests
24of policyholders or claimants that are part of the subject
25business, he or she shall notify the applicant and specify any
26modifications, supplements, or amendments and any additional

 

 

HB5534- 13 -LRB102 26077 BMS 35542 b

1information or documentation with respect to the plan that
2must be provided to the Director before he or she shall allow
3the applicant to proceed with the court filing.
4    (f) The applicant shall have 30 days following the date
5the Director notifies him or her of a determination under
6subsection (e) to file an amended insurance business transfer
7plan providing the modifications, supplements, or amendments
8and additional information or documentation as requested by
9the Director. If necessary, the applicant may request in
10writing an extension of time of 30 days. If the applicant does
11not make an amended filing within the time period provided in
12this subsection, including any extension of time granted by
13the Director, the insurance business transfer plan filing
14shall terminate and a subsequent filing by the applicant shall
15be considered a new filing which shall require compliance with
16all provisions of this Act as if the prior filing had never
17been made.
18    (g) The Director's review period in subsection (c) shall
19recommence when the modification, supplement, amendment, or
20additional information requested in subsection (e) is
21received.
22    (h) If the Director determines that the plan may proceed
23with the court filing, the Director shall confirm that fact in
24writing to the applicant.
 
25    Section 25. Application to the court for approval of a

 

 

HB5534- 14 -LRB102 26077 BMS 35542 b

1plan.
2    (a) Within 30 days after notice from the Director that the
3applicant may proceed with the court filing, the applicant
4shall apply to the court for approval of the insurance
5business transfer plan. Upon written request by the applicant,
6the Director may extend the period for filing an application
7with the court for an additional 30 days.
8    (b) The applicant shall inform the court of the reasons
9why he or she petitions the court to find no material adverse
10impact to policyholders or claimants affected by the proposed
11transfer.
12    (c) The application shall be in the form of a verified
13petition for implementation of the insurance business transfer
14plan in the court. The petition shall include the insurance
15business transfer plan and shall identify any documents and
16witnesses which the applicant intends to present at a hearing
17regarding the petition.
18    (d) The Director shall be a party to the proceedings
19before the court concerning the petition and shall be served
20with copies of all filings. The Director's position in the
21proceeding shall not be limited by his or her initial review of
22the plan.
23    (e) Following the filing of the petition, the applicant
24shall file a motion for a scheduling order setting a hearing on
25the petition.
26    (f) Within 15 days after receipt of the scheduling order,

 

 

HB5534- 15 -LRB102 26077 BMS 35542 b

1the applicant shall cause notice of the hearing to be provided
2in accordance with the notice provisions of Section 15 of this
3Act. Following the date of distribution of the notice, there
4shall be a 60-day comment period.
5    (g) The notice to policyholders shall state or provide:
6        (1) the date and time of the approval hearing;
7        (2) the name, address, and telephone number of the
8    assuming insurer and transferring insurer;
9        (3) that a policyholder may comment on or object to
10    the transfer and novation;
11        (4) the procedures and deadline for submitting
12    comments or objections on the plan;
13        (5) a summary of any effect that the transfer and
14    novation will have on the policyholder's rights;
15        (6) a statement that the assuming insurer is
16    authorized to assume the subject business and that court
17    approval of the plan shall extinguish all rights of
18    policyholders under policies that are part of the subject
19    business against the transferring insurer;
20        (7) that policyholders shall not have the opportunity
21    to opt out of or otherwise reject the transfer and
22    novation;
23        (8) contact information for the Department where the
24    policyholder may obtain further information; and
25        (9) information on how an electronic copy of the
26    insurance business transfer plan may be accessed. If

 

 

HB5534- 16 -LRB102 26077 BMS 35542 b

1    policyholders are unable to readily access electronic
2    copies, the applicant shall provide hard copies by
3    first-class mail.
4    (h) Any person, including by their legal representative,
5who considers himself, herself, or itself to be adversely
6affected can present evidence or comments to the court at the
7approval hearing. However, such comment or evidence shall not
8confer standing on any person. Any person participating in the
9approval hearing must follow the process established by the
10court and shall bear his or her own costs and attorney's fees.
 
11    Section 30. Approval; denial; insurance business transfer
12plans.
13    (a) After the comment period pursuant to subsection (f) of
14Section 25 has ended the insurance business transfer plan
15shall be presented by the applicant for approval by the court.
16    (b) At any time before the court issues an order approving
17the insurance business transfer plan, the applicant may
18withdraw the insurance business transfer plan without
19prejudice.
20    (c) If the court finds that the implementation of the
21insurance business transfer plan would not materially
22adversely affect the interests of policyholders or claimants
23that are part of the subject business, the court shall enter a
24judgment and implementation order. The judgment and
25implementation order shall:

 

 

HB5534- 17 -LRB102 26077 BMS 35542 b

1        (1) order implementation of the insurance business
2    transfer plan;
3        (2) order a statutory novation with respect to all
4    policyholders or reinsureds and their respective policies
5    and reinsurance agreements under the subject business,
6    including the extinguishment of all rights of
7    policyholders under policies that are part of the subject
8    business against the transferring insurer, and providing
9    that the transferring insurer shall have no further
10    rights, obligations, or liabilities with respect to such
11    policies, and that the assuming insurer shall have all
12    such rights, obligations, and liabilities as if it were
13    the original insurer of such policies;
14        (3) release the transferring insurer from all
15    obligations or liabilities under policies that are part of
16    the subject business;
17        (4) authorize and order the transfer of property or
18    liabilities, including, but not limited to, the ceded
19    reinsurance of transferred policies and contracts on the
20    subject business, notwithstanding any non-assignment
21    provisions in any such reinsurance contracts. The subject
22    business shall vest in and become liabilities of the
23    assuming insurer;
24        (5) order that the applicant provide notice of the
25    transfer and novation in accordance with the notice
26    provisions in Section 15; and

 

 

HB5534- 18 -LRB102 26077 BMS 35542 b

1        (6) make such other provisions with respect to
2    incidental, consequential, and supplementary matters as
3    are necessary to assure the insurance business transfer
4    plan is fully and effectively carried out.
5    (d) If the court finds that the insurance business
6transfer plan should not be approved, the court by its order
7may:
8        (1) deny the petition; or
9        (2) provide the applicant leave to file an amended
10    insurance business transfer plan and petition.
11    (e) Nothing in this Section in any way effects the right of
12appeal of any party.
 
13    Section 35. Rules. The Department shall adopt rules that
14are consistent with the provisions of this Act. No insurance
15business transfer plan shall be approved in this State unless
16and until such rules are adopted.
 
17    Section 40. Confidentiality. The portion of the
18application for an insurance business transfer that would
19otherwise be confidential, including any documents, materials,
20communications, or other information submitted to the Director
21in contemplation of such application, shall not lose such
22confidentiality.
 
23    Section 45. Ongoing oversight. Insurers subject to this

 

 

HB5534- 19 -LRB102 26077 BMS 35542 b

1Act consent to the jurisdiction of the Director with regard to
2ongoing oversight of operations, management, and solvency
3relating to the transferred business, including the authority
4of the Director to conduct financial analysis and
5examinations.
 
6    Section 50. Fees and costs.
7    (a) At the time of filing its application with the
8Director for review and approval of an insurance business
9transfer plan, an applicant shall pay a nonrefundable fee to
10the Department.
11    (b) The Director may retain independent attorneys,
12appraisers, actuaries, certified public accountants,
13authorized consultants, or other professionals and specialists
14to assist Department personnel in connection with the review
15required by this Act. The cost of retaining professionals and
16specialists shall be borne by the applicant.
17    (c) The transferring insurer and the assuming insurer
18shall jointly be obligated to pay any compensation, costs, and
19expenses of the independent expert and any consultants
20retained by the independent expert and approved by the
21Department incurred in fulfilling the obligations of the
22independent expert under this Act. Nothing in this Act shall
23be construed to create any duty for the independent expert to
24any party other than the Department or a court.
25    (d) Failure to pay any of the requisite fees or costs

 

 

HB5534- 20 -LRB102 26077 BMS 35542 b

1within 30 days after demand shall be grounds for the Director
2to request that a court dismiss the petition for approval of
3the insurance business transfer plan before the filing of an
4implementation order by the court or, if after the filing of an
5implementation order, the Director may suspend or revoke the
6assuming insurer's certificate of authority to transact
7insurance business in this State.