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The Law Firm Of Baker & Daniels LLP

4th Annual Insurance Reform Summit in DC
Baker & Daniels LLP and B&D Consulting were contributing sponsors of the 4th Annual Insurance Summit presented by Networks Financial Institute in Washington, D.C. on March 7, 2007. (The Summit occurred on the same day that the Senate Judiciary Committee held a hearing on legislation to repeal the insurance industry's antitrust exemption!) Dr. Lloyd Benjamin III, President of Indiana State University, and Liz Coit, Executive Director of NFI, made introductory remarks about NFI's education, outreach, and research initiatives since the last Summit. Major federal and state policymakers, as well as Professors Sharon Tennyson of Cornell University and Hal Scott of Harvard University, and industry representatives participated. Here are some of the highlights.

Walter A. Bell, Alabama Insurance Commissioner, and President of the National Association of Insurance Commissioners

* Commissioner Bell said state insurance regulators would be vastly more responsive to the needs of consumers and businesses than a new untested federal insurance regulator, including during natural disasters. "Just look at the federal reaction to Katrina," Bell asked rhetorically.
* He said that the NAIC has been retooling and streamlining state regulation for several years. Commissioner Bell said that it is ironic that some insurers who now favor an OFC were originally resistant to the NAIC's SERFF system for rate and form filing. Commissioner Bell also cited the Interstate Insurance Compact, which has been enacted by 29 states (containing about 50% of the national premium volume) and will serve as a central point of filing for life, annuity, disability, and long-term care insurance. The NAIC will begin its Compact product filing operations this June.
* Commissioner Bell said that while the state-based regulatory model must be kept and reformed, federal regulation is appropriate in some areas, such as the recently introduced reinsurance/surplus lines insurance bill (H.R. 1065), which the NAIC has endorsed.


Rep. Barney Frank (D-MA), Chairman, House Financial Services Committee

* Chairman Frank stated that he is open to considering some form of federal involvement in insurance regulation, but only if it will not diminish consumer protection.
* In addition to consumer protection, Frank said that the OFC debate would turn on the extent to which state law is preempted and what type of insurance should be federally regulated.
* Frank noted that preemption is an open question as the Supreme Court determines whether OCC and OTS broad preemption of state law is permissible.
* Frank said that these issues have become more complicated by the question of how to deal with catastrophes, such as Hurricane Katrina or the 9/11 terrorist attacks.
* Frank said the House intends to pass legislation next month to extend TRIA for more than five years and expand it to cover group life insurance and chemical, nuclear, and biological attacks.
* He also expressed hope of repeating last year's passage of legislation to overhaul the National Flood Insurance Program to discourage rebuilding in flood-prone areas and creating a higher premium for coverage of second homes.


Sen. John Sununu (R-NH), member of the Senate Banking Committee

* Senator Sununu stated that he and Senator Johnson plan to reintroduce a revised version of their optional federal charter bill in April. Sununu said he had not pursued another Senate co-sponsor (Sen. Johnson is still recovering from brain surgery from late last year), adding that he and Johnson had planned to educate Senate colleagues about their OFC proposal through hearings.
* Sununu cited the success that the banking industry has achieved with a dual-chartering structure, saying that it has ample regulation and consumer protection. An ombudsman position will be created in his legislation to provide consumer protection at the federal level.
* Sununu noted that rate regulation would not happen at the federal level under his bill because there is no interest in that policy from Republicans and some Democrats.
* The Senator added that the White House has not endorsed OFC but is expressing more interest in the issue.
* He added that repealing the insurance industry's exemption from federal antitrust law should be debated in the context of broader insurance reform.


Rep. Ed Royce (R-CA), member of the House Financial Services Committee

* Rep. Royce was critical of some aspects of the state-based regulatory system and said that he thought an optional federal charter was the way to go.
* Rep. Royce said that he wants Congress to legislate a "world-class federal regulator" so that insurance companies can compete nationally. Rep. Royce, who introduced an OFC bill (H.R. 6225) in September 2006, is expected to introduce his legislation later this spring.
* Royce said that the Bush Administration is "warming to the idea" of an OFC, based upon remarks from last year by Administration officials.
* He pointed to the failure of the "SMART" proposal to advance in the 109th Congress because it was too narrow in scope. He believes an OFC bill will only succeed if it has as many industry players in the debate and on the same team as possible.


Allan B. Hubbard, Assistant to the President for Economic Policy and Director of the National Economic Council

* Director Hubbard said insurers should be very careful about allowing the federal government to get involved in the business of insurance, which leads to insurance providers behaving not rationally but politically.
* "In every situation that I'm aware of," Hubbard said (he listed the Pension Benefit Guaranty Corporation, the Federal Crop Insurance Corporation, and the National Flood Insurance Program), the presence of a federal insurance backstop leads to premium levels or caps being set by Congress that are not actuarially sound, often creating a "moral hazard."
* Hubbard said he wanted to "punt" on the question of whether Congress should pass OFC legislation. He insisted that the Administration will work with Congress this year on reauthorizing TRIA, but policymakers need eventually to phase it out in order for the private market to provide terrorism insurance. He added that the creation of a national catastrophic insurance fund would be inappropriate and that negative episodes like coastal flooding are best handled at the state level.


Charlie Richardson of Baker & Daniels moderated a hard hitting panel of industry leaders. The panel discussed state v. federal regulation, Congress' appetite for dealing with insurance issues, consumer protection and national trends. The panelists were:

* William H. McCartney, Senior Vice President of Insurance Regulatory Policy, USAA
* Coalition Opposed to a Federal Insurance Regulator, Greg Wren, Executive Director,
* John H. Brown, Vice President Government Relations, Jackson National Life Insurance Company
* Optional Federal Charter Coalition, J. Stephen Zielezienski, Senior Vice President & General Counsel, American Insurance Association, and Wendy E. Cooper, Senior Vice President & Associate General Counsel, AXA Equitable Life Insurance Company


Prof. Sharon Tennyson, Cornell University

* A large body of academic research demonstrates that insurance markets function competitively in the absence of rate regulation. By contrast, a growing body of empirical evidence suggests that rate regulation leads to higher average insurance costs.
* Current proposals for an OFC, which would eliminate state (and federal) regulation of insurance rates, are one way to achieve rating reforms.

Prof. Hal Scott, Harvard University

* Prof. Scott tackled a wide range of issues surrounding the organizational structure of a possible federal role in insurance regulation.
* He compared and contrasted various models, including the current state-based insurance system, the bank model, the OFC proposal from last Congress, and others.

03-16-2007

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Baker Botts LLP

PipeLine and Gas Technology: Goolsby, Rowley Discuss Building a Cross-Border Pipeline
In the March 2007 issue of PipeLine and Gas Technology, Baker Botts Partners George Goolsby (Houston) and Mark Rowley (London) discuss how for multi-national projects, host government agreements can reduce risk and create a stable investment environment.

Goolsby and Rowley state in the article's opening that in a multi-jurisdictional pipeline project, "the goal of the project sponsors is to define a complete commercial, legal, fiscal and technical design for the project sufficient for them to assess the risks and benefits, and make a final investment decision.

"For these reasons," they continue, "it can be useful for pipeline operating companies that are contemplating such projects to review the legal mechanisms that can help provide a means of achieving them, including host government agreements (HGAs) and inter-government agreements (IGAs).

03-16-2007

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Robinson & Cole LLP

Robinson & Cole Trial and Appellate Lawyer Re-Elected to the Women’s Bar Association of Massachusetts Board
R&C Trial and Appellate Lawyer Nancy M. Cremins was recently re-elected to the board of directors of the Women’s Bar Association of Massachusetts. The WBA is committed to the full and equal participation of women in the legal profession and in society. For nearly 30 years, the WBA has been a critically important voice for the rights of women, minorities, and other disenfranchised groups. With almost 1400 members, the WBA is one of the largest and most influential women’s bars in the country.

03-16-2007

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Paul, Weiss, Rifkind, Wharton & Garrison LLP

DOJ Grants Early Termination of Hart-Scott-Rodino Act Waiting Period for LodgeNet Entertainment's Acquisition of On Command
On Thursday the Antitrust Division of the U.S. Department of Justice granted early termination of the Hart-Scott-Rodino Act waiting period relating to our client LodgeNet Entertainment Corp.'s acquisition of the assets of On Command Corporation and its subsidiaries. Both LodgeNet and On Command are leading providers of interactive media services to hotels throughout the United States, Canada and Mexico, serving approximately 1.8 million rooms. Following the transaction, which is valued at $380 million, LodgeNet will nearly double the number of rooms it serves, retaining its position as the largest provider of pay-per-view and video-on-demand services to hotels and allowing it to achieve significant operational efficiencies. Paul, Weiss filed the initial notification form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in January 2007 and subsequently worked over the following months to respond to numerous information requests from the Department of Justice. The Paul, Weiss team included partner Joseph Simons, counsel Didier Malaquin, associate Craig Benson and legal assistant Bill Dolan.

03-16-2007

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Paul, Hastings, Janofsky & Walker LLP

Paul Hastings Advises Merrill Lynch, Lehman Brothers and DKR Soundshore Oasis Holding Fund on a US$200 Million Structured Convertible Bond Issue for a Chinese Property Developer
Paul, Hastings, Janofsky & Walker (Paul Hastings), a leading international law firm, has advised investors including, Indopark Holdings (a Merrill Lynch-managed real estate fund) and the Merrill Lynch Principal Credit Group, Lehman Brothers Commercial Corporation Asia, DKR Soundshore Oasis Holding Fund Ltd. and PMA Investment Advisers Ltd. in a US$200 million structured convertible bond issue for Skyfame Realty, a Hong Kong-listed company. The proceeds of issuance deal will be used to acquire and develop interests in four major projects in prime locations in Guangzhou including a five-star hotel to be operated by the Westin Hotel chain.

Commenting on the deal, Vivian Lam, partner at Paul Hastings, said, "We are pleased to be the adviser on another significant real estate-related securities deal illustrating the strength of our combined capital markets and real estate practices."

The Paul Hastings team was comprised of partner Vivian Lam, of-counsel Andrew Hutton and associates Pei Fang, Erika Wan and Winnie Cai from the firm's Hong Kong office.

03-16-2007

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Buchanan Ingersoll & Rooney PC

Buchanan Litigation Team Wins Significant Matter for Sprint in San Diego
the U.S. Court of Appeals for the Ninth Circuit affirmed a permanent injunction in favor of Buchanan Ingersoll & Rooney LLP client Sprint PCS. The lead attorney in this case was shareholder Daniel Pascucci. Other team members were Nathan Hamler, Greg Krock, Benjamin Wagner, Phenix Kiamilev, Chuck Perez and Kelly Jenckes.

The initial injunction, issued in July 2005 by the federal district court in San Diego, entered summary judgment in Sprint's favor and permanently enjoined the County of San Diego's process for regulating placement of wireless communications facilities or cell sites in the county.

In short, the regulations allowed the county to dictate where wireless telephone companies could or couldn't install antennas and imposed an onerous application process. The court ultimately concluded that the county's ordinance "imposes a permitting structure and design requirements that presents barriers to wireless telecommunications within the county, and is therefore preempted by section 253(a)."

According to Pascucci, the long-awaited decision provides a level of clarity that will guide wireless carriers and municipalities seeking to manage development of networks in a lawful manner.

"The Court of Appeals decision clarifies important threshold issues that have been contested for years," he said.

Pascucci continued, "When Sprint first asserted that cities and counties could not regulate the wireless industry based on their own discretion without running afoul of section 253, cities and counties alike took the position that section 253 does not protect wireless carriers at all and that, even if it did, it does not prohibit discretionary ordinances. This decision leaves no doubt that the statute does protect wireless [carriers] and outlaws attempts by local governments to exercise discretion over placement of communications facilities."

The decision is the first ever by the Ninth Circuit to apply section 253 of the Telecommunications Act to protect wireless carriers, and was closely watched by the telecommunications industry. The decision also clarifies that such carriers have the power to mount facial challenges to local regulatory schemes that interfere with efforts to rapidly deploy wireless networks.

Local governments, including the County of San Diego, had previously argued that carriers had to wait for municipalities to reject land use applications and then appeal each application to courts individually. In light of historic patterns in many localities of delaying denials or approvals of applications — sometimes for years — the confirmation that the entire regulatory system can be challenged in one case is a significant victory for Sprint and the telecommunications industry.

"The Ninth Circuit's decision will pave the way to faster services for consumers," Pascucci said. "The ability of wireless providers to challenge a broken regulatory system instead of enduring excessive regulation one facility at a time will streamline efforts to provide consumers better coverage and more advanced services. The strong reasoning of the court will provide local governments the guidance to avoid excessive regulation.

03-16-2007

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Fasken, Martineau & Du Moulin, L.L.P.

Best Lawyers 2007: Energy Regulatory Law and Environmental Law
Once again this year, several Fasken Martineau lawyers are featured in the prestigious directory The Best Lawyers in Canada.

Energy Regulatory Law
Peter D. Feldberg from our Calgary office.
Cal Johnson from our Vancouver office.
André Turmel from our Montréal office.
Environmental Law
Rosalind H. Cooper from our Toronto office.
Charles Kazaz, Pierre B. Meunier and André Turmel from our Montréal office.
Congratulations to all.

03-16-2007

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