This Court affirmed on the ground that the Superintendent’s claims fell within the exception to the convention on foreign arbitral awards for matters that are not arbitrable under state law, observing that “[i]n the United States statutes provide that insurance is generally a matter of State concern and … the laws of the individual States govern.” Corcoran v. Ardra Ins. Co., 77 N.Y.2d 225, 58 nydocs1-1047137.5 232 (1990) (citing McCarran-Ferguson Act, 15 U.S.C. §§ 1011, 1012[b]) (emphasis added). III. EVEN WERE THE FAA APPLICABLE HERE, THE DETERMINATION OF WHETHER THE ARBITRATION PROVISIONS OF THE PAYMENT AGREEMENTS ARE ENFORCEABLE WOULD BE FOR THE COURT, AND NOT THE ARBITRATORS, TO DECIDE As the Supreme Court has held, “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.”

As documented in Appendix A, the Complaint fairly alleges that each of the Individual Defendants knew about (and directed) the fraudulent scheme.27 6. The McCarran-Ferguson Act, 15 U.S.C. §§ 1011, et seq., does not apply The McCarran-Ferguson Act precludes application of other federal laws to the “business of insurance” where there is a state law “enacted . . . for the purpose of regulating the business of insurance” and the federal law would “invalidate, impair, or supersede” the state law (unless the federal law “specifically relates” to the business of insurance). 15 U.S.C. § 1012(b).

More importantly it shows a misunderstanding of how the policies were drafted to operate. Insurance companies draft policy language collusively, taking advantage of their exemption from the antitrust laws under the McCarran-Ferguson Act, 15 U.S.C. Sec. 1011. The insurer that makes the policyholder whole in the first instance, however, knows that it will not be exposed to the full liability, if any.

Roundtable v. SEC, 905 F.2d 406, 410- 413 (D.C. Cir. 1990). That principle is squarely applicable here, because Congress has entrusted another agency, the Securities and Exchange Commission, with regulation of securities products, see 15 U.S.C. § 78a et seq., and has deliberately left undisturbed the States’ longstanding authority to regulate insurance products, see 15 U.S.C. §§ 1011-1015. That existing regulatory scheme confirms Congress did not intend to delegate to the Department—an agency with no special expertise in securities or insurance products—authority to predetermine which products should succeed or fail, thereby effectively taking those choices away from American consumers.

Roundtable v. SEC, 905 F.2d 406, 410- 413 (D.C. Cir. 1990). That principle is squarely applicable here, because Congress has entrusted another agency, the Securities and Exchange Commission, with regulation of securities products, see 15 U.S.C. § 78a et seq., and has deliberately left undisturbed the States’ longstanding authority to regulate insurance products, see 15 U.S.C. §§ 1011-1015. That existing regulatory scheme confirms Congress did not intend to delegate to the Department—an agency with no special expertise in securities or insurance products—authority to predetermine which products should succeed or fail, thereby effectively taking those choices away from American consumers.

The McCarran-Ferguson Act declared the business of insuranceto be a subject of state regulation and exempted state law enacted for the purposeof insurance regulation from federal preemption. (15 U.S.C. §§ 1011, 1012; see U.S. Dept. ofTreasury v. Fabe (1993) 508 U.S. 491, 499-500 [discussing history of McCarran-Ferguson Act].) The Model Act closely paralleled the Federal Trade Commission Act (15 U.S.C. § 41 et seq.)

/// 3) Defendant Relies Heavily on Insurance Related Cases in its Motion, which are inapplicable Most of Defendant’s citations in its brief relate to declaratory relief actions filed by insurance companies after an insured files a state court action against them. These cases are clearly distinguishable from this Action, as insurance law is an area that Congress has expressly left to the state through the McCarran-Ferguson Act (15 U.S.C. §§1011-1015 (1945)). See Continental Casualty Co., supra, at 1371.

However, AIG will address the Department’s arguments because they are so unpersuasive that they illustrate that AIG’s claims are not just viable, but compelling. A. AIG’s Amended Complaint States A Claim That DFS’s Interpretation And Enforcement Of The New York Insurance Law Violates The Dormant Commerce Clause Defendant’s Motion does not seriously contend that its interpretation and enforcement of the New York Insurance Law would survive dormant Commerce Clause scrutiny absent express congressional permission.30 Instead, he asserts that the McCarran-Ferguson Act (the “Act”), 15 U.S.C. §§ 1011–1015 (providing, inter alia, that “[t]he business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business”), “immunize[s]” any state statute or regulation that touches on insurance. 30 Superintendent Lawsky’s reliance on A.S. Goldmen & Co. v. N.J. Bureau of Sec., 163 F.3d 780, 785–88 (3d.

at 11,463-64. In reviewing the public comments submitted during the rulemaking, HUD identified several broad groups of objections raised by the insurance industry, including that: (i) the Case 1:13-cv-00966-RJL Document 64 Filed 08/30/16 Page 16 of 54 7 availability of discriminatory effect claims against the insurance industry would interfere with state regulation of insurance, in violation of the McCarran-Ferguson Act (“McCarran- Ferguson”), 15 U.S.C. §§ 1011-1015, or the “filed rate” doctrine; (ii) that the Rule was incompatible with actuarially sound insurance principles; and (iii) that special exemptions or safe harbors should be created for insurance practices. See 78 Fed. Reg.

Insurance law is an area that Congress has expressly left for state regulation. See 15 U.S.C. §§1011-12. There is no discernible reason for this Court to resolve a state law insurance issue under the circumstances of this case.