34 purpose of regulating the business of insurance.’ 15 U.S.C. § 1012(b).” Hamilton Life Ins. Co. of N.Y. v. Republic Nat’l Life Ins. Co., 408 F.2d 606, 611 (2d Cir. 1969).

See McKnight v. Chicago Title Ins. Co., 358 F.3d 854 (11th Cir. 2004). Its language is general, rendering the tail of 15 U.S.C. § 1012(b) inapplicable. Hence, the McCarran Ferguson Act inverse preempts/reverse preempts any provision of the FAA if the FAA provision‟s enforcement invalidates, impairs, or supersedes a state law regulating the business of insurance.

Id. at 11,475 (quoting 15 U.S.C. § 1012(b)). HUD clarified in response to the comments that the “[R]ule does not alter the instruction of McCarran-Ferguson or its application as described in” case law, noting that the applicability of McCarran-Ferguson “depends on the facts at issue and the language of the Case 1:13-cv-00966-RJL Document 64 Filed 08/30/16 Page 17 of 54 8 relevant State law ‘relat[ing] to the business of insurance.

The McCarran-Ferguson Act specifically provides, in pertinent part: “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). Certainly, the liquidation provisions of the Insurance Law were enacted “for the purpose of regulating the business of insurance” and thus, in accord with McCarran–Ferguson, are not invalidated or impaired by the provisions of the Federal Arbitration Act.

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). Defendants are wrong that RICO cannot apply in the insurance context.

This argument fails for many reasons. First, the exception was codified in the McCarran-Ferguson Act, 15 U.S.C. § 1012, which exempted from the scope of the Sherman Act, claims that relate to the “business of insurance”, to the extent that such business is not regulated by state law. Thus, even if the claims are exempt from scrutiny under the Sherman Act, this exception has no applicability to the claims at issue here, which arise under the Maryland Antitrust Act.

310(a)(2) (“Any State that does not elect to operate an Exchange, . . . will forgo implementation of all State functions [relating to risk adjustment]”). 22 The Liquidators’ position may be based on the McCarran Ferguson Act, 15 U.S.C. § 1012(b), under which state law is not preempted by federal law if: (1) the federal law at issue does not specifically relate to the business of insurance; (2) the state law at issue was enacted for the purpose of regulating the business of insurance; and (3) application of the federal law would “invalidate, impair or supersede” the state law. See, e.g., Rhode Island Ins. Insolvency Fund, 80 F.3d at 619 (citation omitted).

The Court need not decide that issue, however, because, in relation to insurance disputes, the FAA has been superseded by Congress's enactment of the 1945 McCarran- Ferguson Act. A. Congress Did Not Intend General Federal Arbitration Law to Take Precedence over California's Insurance-Specific Prefiling Requirement The McCarran-Ferguson Act provides that "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, ... unless such Act specifically relates to the business of insurance ... " (15 USC§ 1012[b].) Congress intended, by this statute, "to allow the states to regulate the business of insurance 'free from inadvertent preemption by federal statutes of general applicability."'

Corp., 69 F.3d 1226 (2d Cir. 1995) 4 Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119(1982) 7 In re Workers' Comp. Ins. Antitrust Litig., 867 F.2d 1552 (8th Cir. 1989) 8 in Case 1:15-cv-00070-DLH-CSM Document 25 Filed 10/28/15 Page 4 of 16 Wright Elec, Inc. v. Minn. State Bd. of Elec, 322 F.3d 1025 (8th Cir. 2003) 9 Statutes Airline Deregulation Act, 49 U.S.C. § 41713(b)(1) passim McCarran Ferguson Act, 15 U.S.C. § 1012(b) passim Noth Dakota Century Code § 23-27-04.10 passim IV Case 1:15-cv-00070-DLH-CSM Document 25 Filed 10/28/15 Page 5 of 16 Plaintiff Valley Med Flight, Inc. ("Plaintiff), by and through its undersigned attorneys, submits this reply memorandum of law in further support of its motion for judgment on the pleadings. ARGUMENT I. HB 1255 REGULATES MARKET PARTICIPATION AND IMPOSES RESTRICTIONS ON PRICES AND ROUTES A. The ADA Preempts HB 1255's Creation of Primary and Secondary Call Lists The overriding intent of North Dakota Century Code § 23-27-04.10 ("HB 1255"), as publicly stated by the legislature, is to control air ambulance prices and services.

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.)