Insurance, Annuities and Retirement INDUSTRIES

Our experience gives us the insight to understand the most complex issues, develop the most efficient and effective strategies to address those issues, and reach results that solve problems from a litigation, regulatory, compliance and brand-preservation perspective.


We have decades of experience representing life insurance, annuity and retirement product companies and their distributors in litigation, regulatory enforcement and compliance matters. Those matters have arisen from almost every aspect of the development, pricing, marketing, underwriting, sale, administration and claims handling of whole, universal, variable and indexed life insurance, as well as variable, fixed and indexed annuity contracts and retirement products.

In particular, we regularly defend clients in class, derivative and individual actions claiming securities fraud, unfair and deceptive trade practices, bad faith, breach of fiduciary duty, breach of contract, ERISA violations, and other federal and state causes of action. We also regularly represent insurance companies and industry trade associations in administrative law, constitutional and preemption-based challenges to statutes and regulations at the federal and state levels. We have defended clients in litigation alleging improper disclosures or other allegedly problematic sales practices, suitability or product performance issues, excessive product fees and charges, unlawful sales and executive compensation or third-party compensation arrangements, improper fund substitutions and “mapping,” excessive market value adjustments and fixed income spreads, improper policy administration, sale of annuities into tax-deferred retirement plans, market timing, bid-rigging, compliance deficiencies, discrimination (including disparate treatment and disparate impact allegations), and other matters. We have also advised and defended clients in matters that involve state departments of insurance, state attorneys general, the Securities and Exchange Commission, and the Financial Industry Regulatory Authority, and have represented clients in litigation challenging regulations issued by the US Department of Labor and actions by the Financial Stability Oversight Council.

Contacts

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Platt, Charles C.

Charles C. Platt

Partner-in-Charge, New York Office

+1 212 230 8860 (t)

charles.platt@wilmerhale.com

Robinson, Andrea J.

Andrea J. Robinson

Vice Chair, Securities Department

+1 617 526 6360 (t)

andrea.robinson@wilmerhale.com

Litigation Experience

Representative clients have included many of the major life insurance and annuity companies in the industry.

Our relevant experience includes:

  • obtaining a trial verdict in favor of an issuer of indexed insurance products in a class action trial challenging more than 40,000 sales of insurance products;
  • successfully opposing class certification in actions challenging (a) a variable life insurer's sales practices, (b) revenue sharing payments and (c) use of “clone funds”;
  • reaching summary judgments for insurers in class actions challenging (a) the miscalculation of death benefits, (b) revenue sharing payments and (c) the “mass replacement” of variable annuity contracts;
  • obtaining the dismissal of numerous class actions that have challenged (a) the sale of equity indexed annuities, (b) alleged contingent commission and compensation practices, (c) the sale of annuities into tax-deferred retirement plans, (d) the receipt of revenue sharing, (e) disclosures regarding premium payment obligations and inception of insurance coverage, (f) the alleged creation of ERISA plans during the sale of 403(b) annuities, (g) alleged violations of the Investment Company Act of 1940 in connection with sale of variable annuities, (h) market timing in connection with variable life and annuity products, and (i) the replacement of variable annuity contracts;  
  • the enforcement of class action settlement injunctions to bar the pursuit of subsequent individual actions before FINRA and federal courts;
  • representation of life insurance and annuity issuers in numerous individual and class actions challenging product features, sales disclosures, and policy and annuity administration, including with respect to commissions paid, death benefits, surrender values, policy loans, cash values, expense deductions, and dividend and interest crediting practices;
  • representation of insurance companies in connection with securities disclosures, including complex financial disclosure issues relating to loss reserves and valuation of portfolios;
  • representation of insurance trade association in litigation relating to designations of a member by the Financial Stability Oversight Council as a Systemically Important Financial Institution;
  • representation of insurance trade associations in litigation challenging the Department of Labor's “Fiduciary Rule”; and
  • representation of financial industry trade association in litigation successfully challenging as preempted a state statute barring arbitration clauses.

Regulatory and Compliance Experience

Representative clients have included many of the major life insurance and annuity companies in the industry.

Our relevant experience includes:

  • defense of regulatory investigations of broker-dealers involving sales of 529 plans, mutual funds, life insurance products and annuities;
  • defense of a multistate regulatory enforcement action against the “mass replacement” of variable annuity contracts;
  • defense of a Department of Insurance investigation into suitability and other alleged sales practice violations by a large bank distributor;
  • defense of insurance companies against several state AG investigations into allegedly improper third-party compensation arrangements, bid-rigging, and claimed bribery of public officials;
  • defense of an insurance company in allegedly improper sales commission arrangements;
  • defense of nationwide investigations of sales practices involving variable life insurance products;
  • defense of nationwide and state regulatory investigations of sales practices involving variable and/or indexed annuities;
  • representation of insurance companies and broker-dealers undergoing regulatory inspections and audits;
  • representation of insurance companies in connection with numerous regulators' market conduct examinations;
  • defense of regulatory investigations of alleged market timing in variable products and related disclosures;
  • providing risk assessment analyses of financial services companies' annuity contracts, marketing literature and training manuals; and
  • advising a client in connection with potential designation as a Systemically Important Financial Institution by the Financial Stability Oversight Board.

Publications & News

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July 15, 2016

Life and Annuity Series: Class Certified in an ERISA “Unreasonable Compensation” Case

The Colorado federal court concluded last summer, in Teets v. Great-West Life & Ann. Ins. Co., that an insurer could be subject to ERISA liability for receiving unreasonable compensation in connection with a stable value fund, and that the fund was not exempt from ERISA as a “guaranteed benefit policy.”

July 1, 2016

BTI Consulting Names WilmerHale Among Top Firms in 2016 for Pharma and Insurance

WilmerHale has been recognized by BTI Consulting this year for its strength of client relationships and its work in the pharmaceutical and insurance industries. Calling the ideal state of a client relationship “Clientopia,” BTI Consulting named WilmerHale among the select group of only 24 firms to achieve this standard.

April 19, 2016

The Price Of Mortality: Cost-Of-Life-Insurance Cases

In this article published by Law360, Charles Platt outlines the most recent cases where plaintiff lawyers have challenged cost-of-insurance charges, with mixed results.

April 5, 2016

Life and Annuity Series: Cost-of-Insurance Charge Litigation

Plaintiffs' lawyers have been challenging cost-of-insurance (COI) charges for years, with mixed results. The following outline reviews the most recent flurry of cases.

March 29, 2016

Life and Annuity Series: Significant Litigation Risks 

Insurance companies have confronted significant class action litigation risks on several fronts over the past year.

March 4, 2016

Life and Annuity Series: Captive Reinsurance/Cost-of-Insurance Complaint

The complaint against Banner Life combines the "captive reinsurance" class action claims brought last year with the cost-of-insurance (COI) class action claims that are now popping up.

February 22, 2016

Life and Annuity Series: Stable Value Funds

Class action plaintiffs have long claimed that insurance companies may become ERISA fiduciaries when offering variable annuity products and funds to 401(k) plans.

January 26, 2016

Life and Annuity Series: 8th Circuit Excessive Fee Decision

The 8th Circuit's recent decision on "excessive fees" under ERISA, titled McCaffree v. Principal Life, is instructive for three reasons.

January 5, 2016

Life and Annuity Series: ERISA—Shape of Things to Come

The class action complaint titled Bell v. Anthem, Inc., et al. (S.D. Indiana) raises a number of novel ERISA allegations that could be a preview of the future, especially if the DOL fiduciary rule is adopted this year.

November 20, 2015

Life and Annuity Series: Trend in Excessive Fee Decisions

The trend of excessive fee decisions relating to the insurance industry continues.