§ 473-1 Abandonment of vehicles prohibited.
§ 473-5 Removal of vehicles.
§ 473-6 Impoundment and recovery of vehicles.
§ 473-7 Disposal of abandoned vehicles.
§ 473-8 Report of sale or disposal.
§ 473-9 Owner responsible for costs.
§ 473-10 Conflicts with other provisions.
No person shall leave unattended any motor vehicle, recreational vehicle, trailer, semitrailer or mobile home on any public street or highway or private or public property in the City of New Lisbon for such time and under such circumstances as to cause the vehicle to reasonably appear to have been abandoned. Whenever any such vehicle has been left unattended on any street or highway in the City of New Lisbon or upon private or public property without the permission of the property owner or other person charged with the lawful jurisdiction thereof for more than 72 hours, the vehicle shall be deemed abandoned and constitutes a public nuisance.
A motor vehicle, recreational vehicle, trailer, semitrailer or mobile home, whether or not such vehicle is registered under Wisconsin law.
Any vehicle left unattended for more than 72 hours on any public street or public ground or left unattended for more than 72 hours on private property without the consent of the property owner is deemed abandoned and constitutes a nuisance, provided that the vehicle shall not be deemed abandoned under this subsection if left unattended on private property outside of public view and enclosed within a building, or if designated as not abandoned by the Chief of Police.
This chapter shall not apply to a vehicle in an enclosed building or a vehicle stored on a premises licensed for storage of junk or junked vehicles and fully in compliance with City zoning regulations or to a vehicle parked in a paid parking lot or space where the required fee has been paid.
Any vehicle in violation of this chapter shall be removed and impounded until lawfully claimed or disposed of under the provisions of § 473-6.
Applicability. The provisions of this section shall apply to the removal, storage, notice, reclaiming or disposal of abandoned vehicles as defined in § 473-1.
Any police officer who discovers any motor vehicle, recreational vehicle, trailer, semitrailer or mobile home on any public street or highway or private or public property in the City of New Lisbon which has been abandoned shall cause the vehicle to be removed to a suitable place of impoundment.
Storage and reclaimer. Any abandoned vehicle which is determined by the Chief of Police or his/her designee to be abandoned shall be retained in storage for a period of 14 days after certified mail notice, as hereinafter provided, has been sent to the Wisconsin titled owner and/or secured party of record with the Wisconsin Motor Vehicle Division, except that if the Chief of Police or his/her designee determines an abandoned vehicle to have a value of less than $100, or that the cost of towing and storage charges for impoundment will exceed the value of the vehicle, it may be junked or sold by direct sale to a licensed salvage dealer after having been retained in storage for a period of seven days and after certified mail notice, as hereinafter provided, has been sent to the Wisconsin titled owner or secured party of record with the Wisconsin Motor Vehicle Division, provided that it is first determined that the vehicle is not reported stolen or wanted for evidence or other reason. All substantially complete vehicles in excess of 19 model years of age shall be deemed as a having value in excess of $100. Any such vehicle which may be lawfully reclaimed may be released upon the payment of all accrued charges, including towing, storage and notice charges, and upon presentation of the vehicle title or other satisfactory evidence to the Chief of Police or his/her designee to prove an ownership or secured party interest in said vehicle.
That the owner or aforesaid secured party may, upon request, be granted a hearing with the Police and Fire Commission relating to the determinations made with respect to said vehicle within the period that such vehicle may be reclaimed.
Any abandoned vehicle impounded by the City which has not been reclaimed or junked or sold by direct sale to a licensed salvage dealer pursuant to the provisions of this chapter may be sold by public auction sale or public sale calling for the receipt of sealed bids. A Class 1 notice, including the description of the vehicle, the name(s) and address(es) of the Wisconsin titled owner and secured party of record, if known, and the time of sale, shall be published before the sale.
Within five days after the direct sale or disposal of a vehicle as provided for herein, the Chief of Police or his/her designee shall advise the State of Wisconsin Department of Transportation, Division of Motor Vehicles, of such sale or disposal on a form supplied by said Division. A copy of the form shall be given to the purchaser of the vehicle enabling the purchaser to obtain a regular certificate of title for the vehicle. The purchaser shall have 10 days to remove the vehicle from the storage area but shall pay a reasonable storage fee established by the City for each day the vehicle remains in storage after the second business day subsequent to the sale date. Ten days after the sale the purchaser shall forfeit all interest in the vehicle and the vehicle shall be deemed to be abandoned and may be sold again. Any listing of vehicles to be sold by the City shall be made available to any interested person or organization which makes a written request for such list to the Police Department. The Police Department may charge a reasonable fee for the list.
The owner of any abandoned vehicle, except a stolen vehicle, is responsible for the abandonment and all costs of impounding and disposing of the vehicle. Costs not recovered from the sale of the vehicle may be recovered in a civil action by the City against the owner.
In the event of any conflict between this chapter and any other provisions of this Municipal Code, this chapter shall control.


Gerald Lee DeCOTEAU, Petitioner–Appellant, v. Alex SCHWEITZER, Superintendent of the North Dakota State Hospital, Respondent–Appellee.
Before MURPHY, MELLOY, and BENTON, Circuit Judges. Chad R. McCabe, Bismarck, ND, for Petitioner–Appellant. Ken R. Sorenson, AAG, Bismarck, ND, for Respondent–Appellee.
Gerald Lee DeCoteau was found guilty of gross sexual imposition in 1996 and sentenced to ten years' imprisonment. His habeas petition in November 2012 had six claims. The district court1 dismissed the petition, finding four claims were time-barred, one was procedurally barred, and the other lacked merit. The district court granted a certificate of appealability whether the statute of limitations in the Antiterrorism and Effective Death Penalty Act (AEDPA) applies on a claim-by-claim basis. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.
DeCoteau argues that the word application at the beginning of the statute focuses it on the date of the latest claim within the entire application—allowing review of all claims if at least one is timely. This court reviews de novo the interpretation of a federal statute. Borrero v. Aljets, 325 F.3d 1003, 1005 (8th Cir.2003).
“Where statutory language is plain, ‘the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’ “ Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 985 (8th Cir.2009). “[I]f the relevant text is not reasonably susceptible to more than one interpretation, we will not look beyond it unless application of the plain language ‘will produce a result demonstrably at odds with the intentions of its drafters.’ “ Id.
The reference to “the latest” date in 2244(d)(1) tells a court how to choose from among the four dates specified in subsections (A) through (D) once those dates are identified. This language does not tell a court how to identify the date specified in subsection (D) in a case in which the application contains multiple claims.
The better interpretation is “subsection (C)'s reference to ‘the constitutional right ’ is clearly a reference to a singular right, ․ and subsection (D)'s reference to ‘claim or claims' indicates Congress meant for courts to determine timeliness on a claim-by-claim basis.” Zack v. Tucker, 704 F.3d 917, 920 (11th Cir.2013) (en banc) (overruling Walker v. Crosby, 341 F.3d 1240 (11th Cir.2003)). Accord Prendergast v. Clements, 699 F.3d 1182, 1187 (10th Cir.2012); Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir.2012); Bachman v. Bagley, 487 F.3d 979, 984 (6th Cir.2007); Fielder v. Varner, 379 F.3d 113, 118 (3rd Cir.2004); cf. Cappozi v. United States, 768 F.3d 32, 33 (1st Cir.2014) (interpreting the parallel federal habeas limitations period in § 2255(f) on a claim-by-claim basis).
If this court adopted DeCoteau's interpretation, the limitations period would have little to no significance. A defendant, by filing one timely claim, could resurrect previously time-barred claims—a result the drafters did not intend. See Mayle v. Felix, 545 U.S. 644, 662 (2005) (“Congress enacted AEDPA to advance the finality of criminal convictions.”).
This court, joining every other circuit to address the issue, holds that the statute of limitations in 28 U.S.C. § 2244(d)(1) applies to each claim within an application.
1. The Honorable Karen K. Klein, United States Magistrate Judge for the District of North Dakota, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).


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ARTICLES OF ASSOCIATION of "IDEA, ASSOCIAZIONE EXHIBITION DESIGNERS"
General information about the Association: Name, Purposes and General Office.
Art. 1 (Name) The name of the Association is "IDEA, Associazione Exhibition Designers."
Art. 2 (Purposes) The Association, which is a non-profit making association, aims at: - promoting members’ project activity; - characterising the culture and the practice of shows, fairs, exhibitions and temporary outfitting planning; - promoting exhibit design and associates through the organisation of events, conferences, shows and other projects; - carrying out cultural and editorial activities in order to support the sector; - defining, promoting and diffusing a specific members’ professional ethics; - assisting and protecting members in their practice; - promoting members’ relations with Bodies, Exhibition Organizations and Entrepreneurial Associations; - proposing, approving and diffusing a reference rate manual; - favouring the establishment of univocal regulations concerning safety, implementation time, accesses, structural criteria and quality controls of exhibitions centres; - supporting the exchange of information and ideas among members; recording and advertising the results of researches, experiences and information; - ensuring maximum visibility with the Medias; - introducing an annual award to the best Exhibit design project; - representing an inescapable reference for professional training, Universities and schools.
Art. 3 (General Office) The General Office of the Association is in Milan, Via Mecenate n.84/10.
Art. 4 (Categories) Associates are divided into Ordinary Members, Honorary Members and Charter Members.
Art. 5 (Ordinary Members) Ordinary Members are competent and experienced professionals operating in exhibition events design, or at least in single-spaces design, aged 30 (thirty) and who regularly carry out this activity. To demonstrate expertise acquired, Ordinary Members shall be able to document 9 (nine) years of activity, which reduces to 5 (five) for all those who have a degree in architecture.
Art. 6 (Honorary Members) Those subjects with a special honour or reputation in exhibition events planning, though foreign citizens, can be appointed Honorary Members by the Council with a majority of two thirds of the members.
Art. 7 (Charter Members) The Charter Members are those Members who were present at the deed of partnership and those who, for outstanding merits, have been included in the aforesaid category by Council resolution, with a majority of two thirds of the members.
Art. 8 Application Anybody who aims at becoming member shall submit application to the Council, enclosing qualifications and certificates attesting the quality and requirements necessary for the category the member aims at. As for courses, experiences and jobs carried out by the applicant in the field of design with a position of responsibility, it is allowed to submit a self-declaration, countersigned by at least three members vouching for truthfulness of the applicant’s declarations.
Art. 9 (Members Committee) The application shall be unanimously approved beforehand by the suitable Members Committee, made up of three Charter Members selected by the Chairman. The Members Committee shall stay in office for four years, and it shall lapse together with the Council.
Art. 10 (Admittance) Further to Members Committee’s approval, admittance shall be decided by the Council with a majority of two thirds of the members, within sixty days from application submittal.
Art. 12 (Rights) All members are entitled to take part to the activities of the Association and to assemblies. Charter Members, Honorary Members and Ordinary Members, both Italian and foreigner, are entitled to vote.
Art. 13 (Obligations) All Members shall operate for the pursuit of Association purposes, hence they shall contribute, through the payment of the membership share and of annual contributions, to its running costs.
Art. 14 (Membership share) The membership share amounts to euro 150,00 (one hundred dot zero zero) as for Ordinary and Charter Members.
Art. 15 (Contributions) Annual contributions are fixed by the Council.
Art. 16 (Exemptions) Honorary Members are exempt from payment of shares and contributions.
Art. 17 (Recession) The recession declaration will be valid after it has been reported in writing to the Council and it binds the outgoing member to pay shares and contributions referring to the current year and to pay eventual arrears due at the resignation date.
Art. 18 (Exclusion) The exclusion of a Member, due to serious cause, harmful for the purposes and interests of the Association, is stated by the Council, with the majority of two thirds of the members, upon proposal of the Board of Arbitrators or upon complaint of at least 5 Members, after having listened, in this case, the Board of Arbitrators.
Art. 19 (Proceeding) Upon proposal or opinion under the previous article, the Council shall appoint a Councillor for proceeding direction, which, to the outcome, shall formulate an imputation, by challenging it in writing to the Member. During the hearing, fixed by the Council not earlier than twenty days before challenge notification, but not later than forty days, the member can produce defence evidence and can ask for assistance of another member who will defend him.
Art. 20 (Censure) Censure is decreed by the Board of Arbitrators towards those Members who has breached the rules of the deed of partnership, or who was not compliant with professional ethics required by the Association members.
Art. 21 (Suspension) Suspension is decreed by the Council against those Members that have not yet paid association shares, with a delay of more than 4 months. As the default persists, the suspension proceeding is turned to ejection, upon proceeding experience provided by article 19 on request of the Treasurer.
Art. 22 (General rule) The meeting is made up of Members specially sitting and convened by the Council in the General Office of the Association, or in another place, provided that in Italy. It is a deliberative organ with reference to general directives of the operation of the Association.
Art. 23 (Annual meeting) The annual meeting has the function of approving the balance sheet, appointing Chairman, Councillors, Auditors and Arbitrators, it can deliberate on other subjects of the activity and on the Association management aspects reserved to its expertise by the deed of partnership, or submitted for examination by the Council, as well as about Association organs liability. It shall be convoked at least once a year, within forty days from the Association financial year closing, at a minimum 20 (twenty) days’ notice. It shall be convoked upon request of the Chairman or of the Board of Auditors, if appointed, or when required by at least one tenth of the members.
Art. 24 (Extraordinary Meeting) The Extraordinary Meeting deliberates on deed of partnership ’s modifications. It shall be convoked when required by the Chairman or by the Board of Auditors, if appointed, or when required by at least one third of the members.
Art. 25 (Convocation) The convocation is made by registered notice, by mail or by fax, reporting the day, the time and the place of the assembly, as well as the matters to be dealt with (agenda), it shall be sent to the domicile indicated by the Members, at least 20 (twenty) days before the fixed date. To this extent, the postmark or the sending date on the fax will be proving its validity.
Art. 26 (Participation) It is possible to participate to assemblies or resolutions of the Meeting by proxy as well, with a maximum of one proxy for each member.
Art. 27 (Constitution of the Meeting and resolutions validity) In its first convocation, the annual meeting shall be validly constituted by a majority of sitting members and shall deliberate by a majority of sitting members; the extraordinary meeting is validly constituted by the presence of two thirds of the members and shall deliberate with the vote for two thirds of sitting members . Art. 28 (Second convocation) If sitting members do not represent the quorum required by the previous article, the meeting shall be convoked again. The convocation notice shall indicate day and time for the second convocation that may be held on the same day of the first convocation, at least with one-hour difference. During the second convocation, the annual meeting shall deliberate on the matters to be dealt with in the first meeting, independently on the number of sitting members and with the vote for the majority of sitting members, while the Extraordinary Meeting shall anyhow deliberate by presences and majorities established for the first convocation.
Art. 29 (Chairmanship of the Meeting) The meeting is presided by the Chairman of the Association or, failing this, by a person appointed by the sitting members. The Chairman is sided by the Secretary of the Association.
Art. 30 (Minutes of meeting’s resolutions) Meeting’s resolutions shall consist of minutes signed by the Chairman and by the Secretary.
Art. 31 (Appointment) The Meeting appoints by a majority. The elections shall be summoned together with polls for appointing other organs of the Association.
Art. 32 (Temporary law) Charter Members shall appoint the first Chairman, when the deed of partnership of the Association comes into force.
Art. 33 (Term of office) The Chairman is appointed for four years and cannot be appointed for more than twice consecutively. In the event of resignation or impediment of whatsoever nature, the Vice Chairman shall succeed him until following appointment.
Art. 34 (Representation before third parties) The Chairman represents the Association. As for juristic acts implying financial and economical obligations’ assumption at the Association or members’ charge, he shall act by joint signature with the Treasurer.
Art. 35 (Functions and powers) The Chairman shall preside assemblies and shall conduct the Council sittings, of which he is an ex officio member by decisive vote’ s faculty in case of parity. He is an ex officio member of all Committees. He shall convoke the meeting on his own decision. He supervises the implementation of the Association organs’ resolutions.
Art. 36 (Composition) The Council is made up of seven members: six Members and the Chairman of the Association.
Art. 37 (Term of office) Councillors are appointed for four years and they cannot be appointed for more than twice consecutively.
Art. 38 (Appointment) Members with the highest number of preferential votes are elected Councillors of the Meeting. Elections for the renewal of the Council are summoned every four years by December 31st.
Art. 39 (Temporary law) Charter Members appoint the first Councillor, when the deed of partnership of the Association comes into force.
Art. 40 (Appointment of Executives) The Council, within 30 (thirty) days from polls under article 37, shall sit and elect by absolute majority, for the duration of four years, the Vice Chairman of the Association and the Treasurer, and it shall appoint the Secretary and the Vice Secretary.
Art. 41 (Functions and powers of the Council) The Council is the permanent organ that shall deliberate on the activity and Association management subjects which were not reserved by the deed of partnership to the expertise of other organs. It shall have statutory authority on competent matters. It shall control all acts of the Association. It shall convoke the meeting and implement its resolutions. It shall appoint the Committees and elect Honorary Members. It shall deliberate on member's admittance and exclusion. It shall provide for regulations to be submitted for the Meeting’s approval.
Art. 42 (Convocations) The Council is summoned, by means of the Secretary, on the Chairman‘s initiative, that is to say on one of the Councillors’ demand.
Art. 43 (Resolutions) Council resolutions will not be valid if the majority of its members is not present and if they are not adopted by a majority of sitting members, except for those hypothesis requiring absolute majority or the other qualified majority.
Art. 44 (Minutes of the Council resolutions) Council resolutions shall consist of minutes signed by the Chairman and by the Secretary. It will be read during the following sitting.
Art. 45 (The Vice Chairman) The Vice Chairman shall replace the Chairman, who might be impelled for any reason. As he is conferred with the same authority, ha shall fulfil all the functions of the Chairman.
Art. 46 (The Secretary) The Secretary shall implement the Council resolutions. He shall implement all the Chairman’s directives. He shall provide for convocations of the Meeting and of the Council, required by anyone, thus drawing up the minutes of relative assemblies. He shall be in charge of the custody of the Association Seal, by affixing it with his signature, on resolutions and on each Association act or document, as well as on certificates issued to members. He shall preserve the acts of the Association.
Art. 47 (Il Vice-Secretary) The Vice-Secretary shall replace the impelled Secretary and shall help him in its functions execution.
Art. 48 (The Treasurer) The Treasurer shall submit the balance sheet to the Council for obtaining the Meeting’s approval. He shall receive association shares and contributions and all the amounts paid to the Association for any reason, by issuing receipt. He shall make payments upon Council's authorization. He shall affix his signature on all acts binding the association from an economic point of view.
Art. 49 (The Board of Statutory Auditors) The Board of Statutory Auditors, if appointed, is made up of three Members elected by the Meeting, according to the number of preferential votes, it shall have a term of four years, together with polls for electing other organs of the Association. The oldest Auditor shall take over the Chairmanship.
Art. 50 (Obligations) The Board of Statutory Auditors shall supervise the Association administration, it shall preside over the observance of Law and of the deed of partnership, and it shall check regular bookkeeping and balance sheet correspondence. Auditors shall assist to assemblies and to the Council sittings, if required.
Art. 51 (Powers) In any moment, the Auditors shall implement, control and inspect actions and shall summon the meeting in case of Council default or Members complaint.
Art. 52 (Members’ Denunciation) Each member can report reprehensible facts to the Board of Statutory Auditors, which, if the complaint turns out to be well founded, shall draw up the report for the Meeting and shall immediately summon it, by presenting proposals and conclusions.
Art. 53 (The Board of Arbitrators) The Board of Arbitrators is composed by three members, appointed by the Meeting during the elections of other association organs, according to the number of preferential votes, with a four-years term of office. It shall be presided by the oldest member. It shall be competent in all disciplinary matters signalled by the Council and it shall reach its decisions by simply majority.
Art. 54 (Causes of dissolution) The Association shall break up due to supervening impossibility of achieving the association purpose, to functioning impossibility or prolonged inactivity of the Meeting and by resolution of the Meeting.
Art. 55 (Effects of dissolution) If a fact involving the Association dissolution occurred, the executives should not carry out new activities or operations. In case of non-observance of the prohibition, they shall take unlimited and personal liability for affairs taken up.
Art. 56 (Appointment and revocation of liquidators) Liquidators shall be appointed by the Meeting, which shall deliberate by the majorities prescribed for the Extraordinary Meeting. If the majority is not achieved, appointment of liquidators will be entrusted to the Board of Statutory Auditors. The meeting by the majorities prescribed for the Extraordinary Meeting shall revoke liquidators. In this case, the meeting shall be liable for replacement.
Art. 57 (Association organs during liquidation) Meetings and Board of Statutory Auditor’s provisions shall be applied during liquidation as well, as compatible.
Art. 58 (Liquidation) After dissolution has been established, liquidators shall perform the liquidation of the capital, according to the destination agreed by the meeting.

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(1) "Affiliate." — An "affiliate" of, or person "affiliated" with, a specific person, is a person that directly, or indirectly through 1 or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.
(2) "Commissioner." — The term "Commissioner" shall mean the Insurance Commissioner, the Commissioner's deputies, or the Insurance Department, as appropriate.
(3) "Control." — The term "control" (including the terms "controlling,"' "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, 10 percent or more of the voting securities of any other person. This presumption may be rebutted by a showing made in the manner provided by § 5004(k) of this title that control does not exist in fact. The Commissioner may determine, after furnishing all persons in interest notice and opportunity to be heard and making specific findings of fact to support such determination, that control exists in fact, notwithstanding the absence of a presumption to that effect.
(4) "Enterprise risk." — The term "enterprise risk" shall mean any activity, circumstance, event or series of events, involving 1 or more affiliates of an insurer that, if not remedied promptly, is likely to have a material adverse effect upon the financial condition or liquidity of the insurer or its insurance holding company system as a whole, including, but not limited to, anything that would cause the insurer's risk-based capital to fall into company action level as set forth in § 5803 of this title or would cause the insurer to be in hazardous financial condition as set forth in Section 3 of Department of Insurance Regulation 304 — Standards and Commissioner's Authority for Companies Deemed to be in Hazardous Financial Condition [CDR 18-300-304-3.0].
(5) "Group-wide supervisor." — The "group-wide supervisor" is the regulatory official authorized to engage in conducting and coordinating group-wide supervision activities who is determined or acknowledged by the Commissioner under § 5015 of this title to have sufficient significant contacts with the internationally active insurance group.
(6) "Insurance holding company system." — An "insurance holding company system" consists of 2 or more affiliated persons, 1 or more of which is an insurer.
(7) "Insurer." — The term "insurer" shall have the same meaning as set forth in § 102 of this title, except that it shall not include agencies, authorities or instrumentalities of the United States, its possessions and territories, the Commonwealth of Puerto Rico, the District of Columbia, or a state or political subdivision of a state.
a. Includes an insurer registered under § 5004 of this title.
b. Has premiums written in at least 3 countries.
c. Has gross premiums written outside the United States that are at least 10% of total gross written premiums.
d. Based on a 3-year rolling average, has total assets of at least $50 billion or total gross written premiums of at least $10 billion.
(9) "Person." — A "person" is an individual, a corporation, a partnership, an association, a joint stock company, a trust, an unincorporated organization, any similar entity or any combination of the foregoing acting in concert, but shall not include any joint venture partnership exclusively engaged in owning, managing, leasing or developing real or tangible personal property.
(10) "Securityholder." — A "securityholder" of a specified person is one who owns any security of such person, including common stock, preferred stock, debt obligations and any other security convertible into or evidencing the right to acquire any of the foregoing.
(11) "Subsidiary." — A "subsidiary" of a specified person is an affiliate controlled by such person directly or indirectly through 1 or more intermediaries.
(12) "Voting security." — The term "voting security" shall include any security convertible into or evidencing a right to acquire a voting security.
§ 5002 Subsidiaries of insurers.
Any domestic insurer, either by itself or in cooperation with 1 or more persons, may organize or acquire 1 or more subsidiaries as otherwise permitted under this title. Such subsidiaries may conduct any kind of business or businesses and their authority to do so shall not be limited by reason of the fact that they are subsidiaries of a domestic insurer.
§ 5003 Acquisition of control of or merger with domestic insurer.
(a) Filing requirements. — No person other than the issuer shall make a tender offer for or a request or invitation for tenders of, or enter into any agreement to exchange securities, or seek to acquire, or acquire, in the open market or otherwise, any voting security of a domestic insurer if, after the consummation thereof, such person would, directly or indirectly (or by conversion or by exercise of any right to acquire) be in control of such insurer, and no person shall enter into an agreement to merge with or otherwise to acquire control of a domestic insurer or any person controlling a domestic insurer unless, at the time any such offer, request or invitation is made or any such agreement is entered into, or prior to the acquisition of such securities if no offer or agreement is involved, such person has filed with the Commissioner and has sent to such insurer, a statement containing the information required by this section and such offer, request, invitation, agreement or acquisition has been approved by the Commissioner in the manner hereinafter prescribed.
For purposes of this section, any controlling person of a domestic insurer seeking to divest its controlling interest in the domestic insurer, in any manner, shall file with the Commissioner, with a copy to the insurer, confidential notice of its proposed divestiture at least 30 days prior to the cessation of control. The Commissioner shall determine those instances in which the party or parties seeking to divest or to acquire a controlling interest in an insurer, will be required to file for and obtain approval of the transaction. The information shall remain confidential until the conclusion of the transaction unless the Commissioner, in his or her discretion, determines that confidential treatment will interfere with enforcement of this section. If the statement referred to in the above paragraph of this subsection (a) is otherwise filed, this paragraph shall not apply.
With respect to a transaction subject to this section, the acquiring person must also file a pre-acquisition notification with the Commissioner, which shall contain the information set forth in § 5003A of this title 30 days prior to the proposed effective date of the acquisition. A failure to file the notification may result in penalties specified in § 5003A of this title.
For purposes of this section, a domestic insurer shall include any person controlling a domestic insurer unless such person, as determined by the Commissioner, is either directly or through its affiliates primarily engaged in business other than the business of insurance. For the purposes of this section, "person" shall not include any securities broker holding, in the usual and customary brokers function, less than 20 percent of the voting securities of an insurance company or of any person which controls an insurance company.
b. If such person is not an individual, a report of the nature of its business operations during the past 5 years or for such lesser period as such person and any predecessors thereof shall have been in existence; an informative description of the business intended to be done by such person and such person's subsidiaries; and a list of all individuals who are or who have been selected to become directors or executive officers of such person, or who perform or will perform functions appropriate to such positions. Such list shall include for each such individual the information required by paragraph (b)(1)a. of this section.
(2) The source, nature and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a description of any transaction wherein funds were or are to be obtained for any such purpose (including any pledge of the insurer's stock, or the stock of any of its subsidiaries or controlling affiliates), and the identity of persons furnishing such consideration; provided however, that where a source of such consideration is a loan made in the lender's ordinary course of business, the identity of the lender shall remain confidential, if the person filing such statement so requests.
(3) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding 5 fiscal years of each such acquiring party (or for such lesser period as such acquiring party and any predecessors thereof shall have been in existence), and similar unaudited information as of a date not earlier than 90 days prior to the filing of the statement.
(4) Any plans or proposals which each acquiring party may have to liquidate such insurer, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management.
(5) The number of shares of any security referred to in subsection (a) of this section which each acquiring party proposes to acquire, and the terms of the offer, request, invitation, agreement or acquisition referred to in subsection (a) of this section, and a statement as to the method by which the fairness of the proposal was arrived at.
(6) The amount of each class of any security referred to in subsection (a) of this section which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party.
(7) A full description of any contracts, arrangements or understandings with respect to any security referred to in subsection (a) of this section in which any acquiring party is involved, including, but not limited to, transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies. Such description shall identify the persons with whom such contracts, arrangements or understandings have been entered into.
(8) A description of the purchase of any security referred to in subsection (a) of this section during the 12 calendar months preceding the filing of the statement, by any acquiring party, including the dates of purchase, names of the purchasers, and consideration paid or agreed to be paid therefore.
(9) A description of any recommendations to purchase any security referred to in subsection (a) of this section made during the 12 calendar months preceding the filing of the statement, by any acquiring party, or by anyone based upon interviews or at the suggestion of such acquiring party.
(10) Copies of all tender offers for, requests, or invitations for tenders of, exchange offers for, and agreements to acquire or exchange any securities referred to in subsection (a) of this section, and (if distributed) of additional soliciting material relating thereto.
(11) The term of any agreement, contract or understanding made with or proposed to be made with any broker-dealer as to solicitation of securities referred to in subsection (a) of this section for tender, and the amount of any fees, commissions or other compensation to be paid to broker-dealers with regard thereto.
(12) An agreement by the person required to file the statement referred to in subsection (a) of this section that it will provide the annual report, specified in § 5004(l) of this title, for so long as control exists.
(13) An acknowledgement by the person required to file the statement referred to in subsection (a) of this section that the person and all subsidiaries within its control in the insurance holding company system will provide information to the Commissioner upon request as necessary to evaluate enterprise risk to the insurer.
(14) Such additional information as the Commissioner may by rule or regulation prescribe as necessary or appropriate for the protection of policyholders of the insurer or in the public interest. If the person required to file the statement referred to in subsection (a) of this section is a partnership, limited partnership, syndicate or other group, the Commissioner may require that the information called for by paragraphs (b)(1) through (12) of this section shall be given with respect to each partner of such partnership or limited partnership, each member of such syndicate or group, and each person who controls such partner or member. If any such partner, member or person is a corporation or the person required to file the statement referred to in subsection (a) of this section is a corporation, the Commissioner may require that the information called for by paragraphs (b)(1) through (12) of this section shall be given with respect to such corporation, each officer and director of such corporation, and each person who is directly or indirectly the beneficial owner of more than 10 percent of the outstanding voting securities of such corporation.
If any material change occurs in the facts set forth in the statement filed with the Commissioner and sent to such insurer pursuant to this section, an amendment setting forth such change, together with copies of all documents and other material relevant to such change, shall be filed with the Commissioner and sent to such insurer within 2 business days after the person learns of such change.
(c) Alternative filing materials. — If any offer, request, invitation, agreement or acquisition referred to in subsection (a) of this section is proposed to be made by means of a registration statement under the Securities Act of 1933 [15 U.S.C. § 77a et seq.] or in circumstances requiring the disclosure of similar information under the Securities Exchange Act of 1934 [15 U.S.C. § 78a et seq.], or under a state law requiring similar registration or disclosure, the person required to file the statement referred to in subsection (a) of this section may utilize such documents in furnishing the information called for by that statement.
f. The acquisition is likely to be hazardous or prejudicial to the insurance buying public.
(2) The public hearing referred to in paragraph (d)(1) of this section shall be held within 45 days after the statement required by subsection (a) of this section is filed, and at least 20 days' notice thereof shall be given by the Commissioner to the person filing the statement.
Not less than 7 days' notice of such public hearing shall be given by the person filing the statement to the insurer and to such other persons as may be designated by the Commissioner. The Commissioner shall make a determination within 30 days after the conclusion of such hearing. At such hearing, the person filing the statement, the insurer, any person to whom notice of hearing was sent, and any other person whose interest may be affected thereby shall have the right to present evidence, examine and cross-examine witnesses, and offer oral and written arguments and in connection therewith shall be entitled to conduct discovery proceedings in the same manner as is presently allowed in the Superior Court of this State. All discovery proceedings shall be concluded not later than 3 days prior to the commencement of the public hearing.
If the proposed acquisition of control will require the approval of more than 1 Commissioner, the public hearing referred to in paragraph (d)(1) of this section may be held on a consolidated basis upon request of the person filing the statement referred to in subsection (a) of this section. Such person shall file the statement referred to in subsection (a) of this section with the National Association of Insurance Commissioners (NAIC) within 5 days of making the request for a public hearing. A Commissioner may opt out of a consolidated hearing, and shall provide notice to the applicant of the opt-out within 10 days of the receipt of the statement referred to in subsection (a) of this section. A hearing conducted on a consolidated basis shall be public and shall be held within the United States before the Commissioners of the states in which the insurers are domiciled. Such Commissioners shall hear and receive evidence. A Commissioner may attend such hearing in person or by telecommunication.
(3) The Commissioner may retain at the acquiring person's expense any attorneys, actuaries, accountants and other experts not otherwise a part of the Commissioner's staff as may be reasonably necessary to assist the Commissioner in reviewing the proposed acquisition of control.
(1) Any transaction which is subject to the provisions of Chapter 49 of this title dealing with the merger or consolidation of 2 or more insurers.
b. Otherwise not comprehended within the purposes of this section.
(2) The effectuation or any attempt to effectuate an acquisition of control of, or merger with, a domestic insurer unless the Commissioner has given approval thereto.
(g) Jurisdiction, consent to service of process. — The courts of this State are hereby vested with jurisdiction over every person not resident, domiciled or authorized to do business in this State who files a statement with the Commissioner under this section, and over all actions involving such person arising out of violations of this section, and each such person shall be deemed to have performed acts equivalent to and constituting an appointment by such a person of the Commissioner to be the person's true and lawful attorney upon whom may be served all lawful process in any action, suit or proceeding arising out of violations of this section. Copies of all such lawful process shall be served on the Commissioner and transmitted by registered or certified mail by the Commissioner to such person at the person's last known address.
§ 5003A Acquisitions involving insurers not otherwise covered.
(1) "Acquisition" means any agreement, arrangement or activity the consummation of which results in a person acquiring directly or indirectly the control of another person, and includes but is not limited to the acquisition of voting securities, the acquisition of assets, bulk reinsurance and mergers.
(2) An "involved insurer" includes an insurer which either acquires or is acquired, is affiliated with an acquirer or acquired or is the result of a merger.
(1) Except as exempted in paragraph (b)(2) of this section, this section applies to any acquisition in which there is a change in control of an insurer authorized to do business in this State.
B. The market share increases by more than 2 percent of the total market.
f. An acquisition of an insurer whose domiciliary commissioner affirmatively finds that such insurer is in failing condition; there is a lack of feasible alternative to improving such condition; the public benefits of improving such insurer's condition through the acquisition exceed the public benefits that would arise from not lessening competition; and such findings are communicated by the domiciliary commissioner to the Commissioner of this State.
(c) Pre-acquisition notification, waiting period. — An acquisition covered by subsection (b) of this section may be subject to an order pursuant to subsection (e) of this section unless the acquiring person files a pre-acquisition notification and the waiting period has expired.
The acquired person may file a pre-acquisition notification. The Commissioner shall give confidential treatment to information submitted under this subsection in the same manner as provided in § 5007 of this title.
(1) The pre-acquisition notification shall be in such form and contain such information as prescribed by the National Association of Insurance Commissioners relating to those markets which, under paragraph (b)(2)d. of this section, cause the acquisition not to be exempted from the provisions of this section. The Commissioner may require such additional material and information as the Commissioner deems necessary to determine whether the proposed acquisition, if consummated, would violate the competitive standard of subsection (d) of this section. The required information may include an opinion of an economist as to the competitive impact of the acquisition in this State accompanied by a summary of the education and experience of such person indicating the person's ability to render an informed opinion.
(2) The waiting period required shall begin on the date of receipt by the Commissioner of a pre-acquisition notification and shall end on the earlier of the thirtieth day after the date of such receipt, or termination of the waiting period by the Commissioner. Prior to the end of the waiting period, the Commissioner on a one-time basis may require the submission of additional needed information relevant to the proposed acquisition, in which event the waiting period shall end on the earlier of the thirtieth day after receipt of such additional information by the Commissioner or termination of the waiting period by the Commissioner.
(1) The Commissioner may enter an order under paragraph (e)(1) of this section with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be substantially to lessen competition in any line of insurance in this State or tend to create a monopoly therein or if the insurer fails to file adequate information in compliance with subsection (c) of this section.
A highly concentrated market is one in which the share of the 4 largest insurers is 75 percent or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than 2 insurers are involved, exceeding the total of the 2 columns in the table is prima facie evidence of violation of the competitive standard in paragraph (d)(1) of this section. For the purpose of this subparagraph, the insurer with the largest share of the market shall be deemed to be Insurer A.
3. Another involved insurer's market is 2 percent or more.
3. The burden of showing prima facie evidence of violation of the competitive standard rests upon the Commissioner.
d. Even though an acquisition is not prima facie violative of the competitive standard under paragraphs (d)(2)a. and b. of this section, the Commissioner may establish the requisite anticompetitive effect based upon other substantial evidence. Even though an acquisition is prima facie violative of the competitive standard under paragraphs (d)(2)a. and b. of this section, a party may establish the absence of the requisite anticompetitive effect based upon other substantial evidence. Relevant factors in making a determination under this paragraph include, but are not limited to, the following: market shares, volatility of ranking of market leaders, number of competitors, concentration, trend of concentration in the industry, and ease of entry and exit into the market.
b. The acquisition will substantially increase the availability of insurance, and the public benefits of such increase exceed the public benefits which would arise from not lessening competition.
2. Denying the application of an acquired or acquiring insurer for a license to do business in this State.
3. The hearing is concluded and the order is issued no later than 60 days after the end of the waiting period.
Every order shall be accompanied by a written decision of the Commissioner setting forth the Commissioner's findings of fact and conclusions of law.
c. An order entered under this paragraph shall not become final earlier than 30 days after it is issued, during which time the involved insurer may submit a plan to remedy the anticompetitive impact of the acquisition within a reasonable time. Based upon such plan or other information, the Commissioner shall specify the conditions, if any, under the time period during which the aspects of the acquisition causing a violation of the standards of this section would be remedied and the order vacated or modified.
d. An order pursuant to this paragraph shall not apply if the acquisition is not consummated.
b. Suspension or revocation of such person's license.
(3) Any insurer or other person who fails to make any filing required by this section, and who also fails to demonstrate a good faith effort to comply with any such filing requirement, shall be subject to a fine of not more than $50,000.
(f) Inapplicable provisions. — Sections 5009(b), (c) and 5011 of this title do not apply to acquisitions covered under subsection (b) of this section.
§ 5004 Registration of insurers.
Each registered insurer shall keep current the information required to be disclosed in its registration statement by reporting all material changes or additions within 15 days after the end of the month in which it learns of each such change or addition. Any insurer which is subject to registration under this section shall register within 15 days after it becomes subject to registration, and annually thereafter by June 1 of each year for the previous calendar year, unless the Commissioner for good cause shown extends the time for registration, and then within such extended time. The Commissioner may require any insurer authorized to do business in the State which is a member of a holding company system, and which is not subject to registration under this section, to furnish a copy of the registration statement, the summary specified in subsection (c) of this section or other information filed by such insurance company with the insurance regulatory authority of domiciliary jurisdiction.
(8) Any other information required by the Commissioner by rule or regulation.
(c) Summary of changes to registration statement. — All registration statements shall contain a summary outlining all items in the current registration statement representing changes from the prior registration statement.
(d) Materiality. — No information need be disclosed on the registration statement filed pursuant to subsection (b) of this section if such information is not material for the purposes of this section. Unless the Commissioner by rule, regulation or order provides otherwise, sales, purchases, exchanges, loans or extensions of credit, investments, or guarantees involving 1/2 of 1 percent or less of an insurer's admitted assets as of December 31 next preceding shall not be deemed material for purposes of this section.
(1) Subject to § 5005(b) of this title, each registered insurer shall provide notice to the Commissioner of all dividends and other distributions to shareholders within 5 business days following the declaration thereof and at least 10 days prior to the payment thereof.
(2) The Commissioner shall promptly consider the information set forth in the notice under paragraph (e)(1) of this section. In the Commissioner's consideration of the information, the Commissioner shall apply the factors set forth in § 5005(c) of this title.
(f) Information of insurers. — Any person within an insurance holding company system subject to registration shall be required to provide complete and accurate information to an insurer, where such information is reasonably necessary to enable the insurer to comply with the provisions of this chapter.
(g) Termination of registration. — The Commissioner shall terminate the registration of any insurer which demonstrates that it no longer is a member of an insurance holding company system.
(h) Consolidated filing. — The Commissioner may require or allow 2 or more affiliated insurers subject to registration hereunder to file a consolidated registration statement.
(i) Alternative registration. — The Commissioner may allow an insurer which is authorized to do business in this State and which is part of an insurance holding company system to register on behalf of any affiliated insurer which is required to register under subsection (a) of this section and to file all information and material required to be filed under this section.
(j) Exemptions. — The provisions of this section shall not apply to any insurer, information or transaction if and to the extent that the Commissioner by rule, regulation or order shall exempt the same from the provisions of this section.
(k) Disclaimer. — Any person may file with the Commissioner a disclaimer of affiliation with any authorized insurer or such a disclaimer may be filed by such insurer or any member of an insurance holding company system. The disclaimer shall fully disclose all material relationships and bases for affiliation between such person and such insurer as well as the basis for disclaiming such affiliation. A disclaimer of affiliation shall be deemed to have been granted unless the Commissioner, within 30 days following receipt of a complete disclaimer, notifies the filing party the disclaimer is disallowed. In the event of disallowance, the disclaiming party may request an administrative hearing, which shall be granted. The disclaiming party shall be relieved of its duty to register under this section if approval of the disclaimer has been granted by the Commissioner, or if the disclaimer is deemed to have been approved.
(l ) Enterprise risk filing. — The ultimate controlling person of every insurer subject to registration shall also file an annual enterprise risk report. The report shall, to the best of the ultimate controlling person's knowledge and belief, identify the material risks within the insurance holding company system that could pose enterprise risk to the insurer. The first enterprise risk report is not required until October 3, 2014, unless the Commissioner for good cause shown extends the time for filing, and then within such extended time. The report shall be filed with the lead state commissioner of the insurance holding company system as determined by the procedures within the Financial Analysis Handbook adopted by the National Association of Insurance Commissioners, with a copy to the Commissioner upon request.
(m) Violations. — The failure to file a registration statement or any summary of the registration statement or enterprise risk filing thereto required by this section within the time specified for such filing shall be a violation of this section.
§ 5005 Standards and management of an insurer within an insurance holding company system.
b. Agreements for cost-sharing services and management shall include such provisions as required by regulation issued by the Commissioner.
f. The insurer's surplus as regards policyholders following any dividends or distributions to shareholder affiliates shall be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs.
(2) The following transactions involving a domestic insurer and any person in its insurance holding company system, including amendments or modifications of affiliate agreements previously filed pursuant to this section, which are subject to any materiality standards contained in paragraphs (a)(2)a. through e. of this section, may not be entered into unless the insurer has notified the Commissioner in writing of its intention to enter into such transaction at least 30 days prior thereto, or such shorter period as the Commissioner may permit, and the Commissioner has not disapproved it within such period. The notice for amendments or modifications shall include the reasons for the change and the financial impact on the domestic insurer. Informal notice shall be reported, within 30 days after a termination of a previously filed agreement, to the Commissioner for determination of the type of filing required, if any.
e. Any material transactions, specified by regulation, which the Commissioner determines may adversely affect the interests of the insurer's policyholders.
Nothing herein contained shall be deemed to authorize or permit any transactions which, in the case of an insurer not a member of the same insurance holding company system, would be otherwise contrary to law.
(3) A domestic insurer may not enter into transactions which are part of a plan or series of like transactions with persons within the insurance holding company system if the purpose of those separate transactions is to avoid the statutory threshold amount and thus avoid the review that would occur otherwise. If the Commissioner determines that such separate transactions were entered into over any 12-month period for such purpose, the Commissioner may exercise the authority under § 5010 of this title.
(4) The Commissioner, in reviewing transactions pursuant to paragraph (a)(2) of this section shall consider whether the transactions comply with the standards set forth in paragraph (a)(1) of this section and whether they may adversely affect the interests of policyholders.
(5) The Commissioner shall be notified within 30 days of any investment of the domestic insurer in any 1 corporation if the total investment in such corporation by the insurance holding company system exceeds 10 percent of such corporation's voting securities.
(b) Dividends and other distributions. — Except as otherwise provided by law, a domestic insurer may not declare or pay a dividend or other distribution from any source other than earned surplus without the Commissioner's prior approval. For purposes of this section, "earned surplus" means an amount equal to the unassigned funds of an insurer as set forth in the most recent annual statement of the insurer submitted to the Commissioner including all or part of the surplus arising from unrealized capital gains or revaluation of assets.
(2) The Commissioner shall have approved such payment within such 30-day period.
(2) The net gain from operations of such insurer, if such insurer is a life insurer, or the net income, if such insurer is not a life insurer, not including realized capital gains, for the 12-month period ending December 31 next preceding, but shall not include pro rata distributions of any class of the insurer's own securities.
(2) The Commissioner has not disapproved such payment within the 30-day period referred to above.
(11) The quality of the insurer's earnings and the extent to which the reported earnings of the insurer include extraordinary items.
(2) The quality of the earnings of the insurer and the extent to which the reported earnings of the insurer include extraordinary items, such as surplus relief, reinsurance transactions and reserve destrengthening.
The Commissioner may issue an order to limit or disallow the payment of ordinary dividends by a domestic insurer if the Commissioner finds the insurer to be presently or potentially financially distressed or troubled.
(a) Power of Commissioner. — Subject to the limitation contained in this section and in addition to the powers which the Commissioner has under Chapter 3 of this title relating to the examination of insurers, the Commissioner shall have the power to examine any insurer registered under § 5004 of this title and its affiliates to ascertain the financial condition of such insurer, including the enterprise risk to the insurer by the ultimate controlling party, or by any entity or combination of entities within the insurance holding company system, or by the insurance holding company system on a consolidated basis.
(1) The Commissioner may order any insurer registered under § 5004 of this title to produce such records, books, or other information papers in the possession of the insurer or its affiliates as are reasonably necessary to determine compliance with this chapter.
(2) To determine compliance with this chapter, the Commissioner may order any insurer registered under § 5004 of this title to produce information not in the possession of the insurer if the insurer can obtain access to such information pursuant to contractual relationships, statutory obligations, or through other reasonable means. In the event the insurer cannot obtain the information requested by the Commissioner, the insurer shall provide the Commissioner a detailed explanation of the reason that the insurer cannot obtain the information and the identity of the holder of information. Whenever it appears to the Commissioner that the detailed explanation is without merit, the Commissioner may require, after notice and hearing, the insurer to pay a penalty of $500 for each day's delay, or may suspend or revoke the insurer's license.
(c) Use of consultants. — The Commissioner may retain at the registered insurer's expense such attorneys, actuaries, accountants and other experts not otherwise a part of the Commissioner's staff as shall be reasonably necessary to assist in the conduct of the examination under subsection (a) of this section. Any persons so retained shall be under the direction and control of the Commissioner and shall act in a purely advisory capacity.
(d) Expenses. — Each registered insurer producing for examination records, books and papers pursuant to subsection (a) of this section shall be liable for and shall pay the expense of such examination in accordance with § 326 of this title.
(e) Compelling production. — In the event the insurer fails to comply with an order, the Commissioner shall have the power to examine the affiliates to obtain the information. The Commissioner shall have the power to issue subpoenas, to administer oaths, and to examine under oath any person, in accordance with § 326 of this title, for purposes of determining compliance with this section. Upon the failure or refusal of any person to obey a subpoena, the Commissioner may petition the Superior Court, and upon a proper showing, the Court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the court order shall be punishable as contempt of court. Every person shall be obliged to attend as a witness at the place specified in the subpoena, when subpoenaed, anywhere within the state. He or she shall be entitled to the same fees and mileage, if claimed, as a witness in Superior Court, which fees, mileage, and actual expense, if any, necessarily incurred in securing the attendance of witnesses, and their testimony, shall be itemized and charged against, and be paid by, the company being examined.
(a) Documents, materials or other information in the possession or control of the Department that are obtained by or disclosed to the Commissioner or any other person in the course of an examination or investigation made pursuant to § 5006 of this title and all information reported or provided to the Department pursuant to § 5003(b)(12) and (13), § 5004, § 5005, or § 5015 of this title shall be confidential by law; shall not be subject subpoena, shall not be subject to this State's Freedom of Information Act laws (Chapter 100 of Title 29), and shall not be subject to discovery or admissible in evidence in any private civil action. However, the Commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the Commissioner's official duties. The Commissioner shall not otherwise make the documents, materials or other information public without the prior written consent of the insurer to which it pertains unless the Commissioner, after giving the insurer and its affiliates who would be affected thereby, notice and opportunity to be heard, determines that the interest of policyholders, shareholders or the public will be served by the publication thereof, in which event the Commissioner may publish all or any part in such manner as may be deemed appropriate.
(b) Neither the Commissioner nor any person who received documents, materials or other information while acting under the authority of the Commissioner or with whom such documents, materials or other information are shared pursuant to this chapter shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to subsection (a) of this section.
(1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section, with other state, federal and international regulatory agencies, with the NAIC and its affiliates and subsidiaries, and with state, federal, and international law-enforcement authorities, including members of any supervisory college described in § 5014 of this title; provided that the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material or other information, and has verified in writing the legal authority to maintain confidentiality.
(2) Notwithstanding paragraph (c)(1) of this section above, the Commissioner may only share confidential and privileged documents, material, or information reported pursuant to § 5004(l) of this title with Commissioners of states having statutes or regulations substantially similar to subsection (a) of this section and who have agreed in writing not to disclose such information.
(3) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information from the NAIC or its affiliates and subsidiaries and from regulatory and law-enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information.
b. Specify that ownership of information shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter remains with the Commissioner and the NAIC's use of the information is subject to the direction of the Commissioner.
d. Require the NAIC and its affiliates and subsidiaries to consent to intervention by an insurer in any judicial or administrative action in which the NAIC and its affiliates and subsidiaries may be required to disclose confidential information about the insurer shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter.
(d) The sharing of information by the Commissioner pursuant to this chapter shall not constitute a delegation of regulatory authority or rulemaking and the Commissioner is solely responsible for the administration, execution and enforcement of the provisions of this chapter.
(e) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the Commissioner under this section or as a result of sharing as authorized in subsection (c) of this section.
(f) Documents or other information in the possession or control of the NAIC pursuant to this chapter shall be confidential by law, shall not be subject to subpoena, shall not be subject to this State's Freedom of Information Act laws (Chapter 100 of Title 29), and shall not be subject to discovery or admissible in evidence in any private civil action.
§ 5008 Rules and regulations.
The Commissioner may, upon notice and opportunity for all interested persons to be heard, issue such rules, regulations and orders as shall be necessary to carry out the provisions of this chapter.
§ 5009 Injunctions, prohibitions against voting securities; sequestration of voting securities.
(a) Injunctions. — Whenever it appears to the Commissioner that any insurer or any director, officer, employee or agent thereof has committed or is about to commit a violation of this chapter or of any rule, regulation or order issued by the Commissioner hereunder, the Commissioner may apply to the Chancery Court for an order enjoining such insurer or such director, officer, employee or agent thereof from violating or continuing to violate this chapter or any such rule, regulation or order, and for such other equitable relief as the nature of the case and the interest of the insurer's policyholders, creditors and shareholders or the public may require.
(b) Voting of securities; when prohibited. — No security which is the subject of any agreement or arrangement regarding acquisition, or which is acquired or to be acquired, in contravention of the provisions of this chapter or of any rule, regulation or order issued by the Commissioner hereunder may be voted at any shareholder's meeting, or may be counted for quorum purposes, and any action of shareholders requiring the affirmative vote of a percentage of shares may be taken as though such securities were not issued and outstanding; but no action taken at any such meeting shall be invalidated by the voting of such securities, unless the action would materially affect control of the insurer or unless the courts of this State have so ordered. If an insurer or the Commissioner has reason to believe that any security of the insurer has been or is about to be acquired in contravention of the provisions of this chapter or of any rule, regulation or order issued by the Commissioner hereunder; the insurer or the Commissioner may apply to the Chancery Court to enjoin any offer, request, invitation, agreement or acquisition made in contravention of § 5003 of this title or any rule, regulation or order issued by the Commissioner thereunder to enjoin the voting of any security so acquired, to void any vote of such security already cast at any meeting of shareholders and for such other equitable relief as the nature of the case and the interest of the insurer's policyholders, creditor and shareholders or the public may require.
(c) Sequestration of voting securities. — In any case where a person has acquired or is proposing to acquire any voting securities in violation of this chapter or any rule, regulation or order issued by the Commissioner hereunder, the Chancery Court may, on such notice as the Court deems appropriate, upon the application of the insurer or the Commissioner seize or sequester any voting securities of the insurer owned directly or indirectly by such person, and issue such order with respect thereto as may be appropriate to effectuate the provisions of this chapter.
Notwithstanding any other provisions of law, for the purposes of this chapter the sites of the ownership of the securities of domestic insurers shall be deemed to be in this State.
(a) Any insurer failing, without just cause, to file any registration statement as required in this chapter shall be required, after notice and hearing, to pay a penalty of $500 for each day's delay, to be recovered by the Commissioner of Insurance and the penalty so recovered shall be paid into the General Revenue Fund of this State. The maximum penalty under this section is $25,000. The Commissioner may reduce the penalty if the insurer demonstrates to the Commissioner that the imposition of the penalty would constitute a financial hardship to the insurer.
(b) Every director or officer of an insurance holding company system who knowingly violates, participates in, or assents to, or who knowingly shall permit any of the officers or agents of the insurer to engage in transactions or make investments which have not been properly reported or submitted pursuant to § 5004(a) or § 5005(a)(2) or (b) of this title, or which violate this chapter, shall pay, in their individual capacity, a civil forfeiture of not more than $2,000 per violation, after notice and hearing before the Commissioner. In determining the amount of the civil forfeiture, the Commissioner shall take into account the appropriateness of the forfeiture with respect to the gravity of the violation, the history of previous violations, and such other matters as justice may require.
(c) Whenever it appears to the Commissioner that any insurer subject to this chapter or any director, officer, employee or agent thereof has engaged in any transaction or entered into a contract which is subject to § 5005 of this title and which would not have been approved had such approval been requested, the Commissioner may order the insurer to cease and desist immediately any further activity under that transaction or contract. After notice and hearing, the Commissioner may also order the insurer to void any such contracts and restore the status quo if such action is in the best interest of the policyholders, creditors or the public.
(d) Whenever it appears to the Commissioner that any insurer or any director, officer, employee or agent thereof has committed a wilful violation of this chapter, the Commissioner may cause criminal proceedings to be instituted by the Superior Court against such insurer or the responsible director, officer, employee or agent thereof. Any insurer which wilfully violates this chapter may be fined not more than $50,000. Any individual who wilfully violates this chapter may be fined in an individual capacity not more than $25,000 or be imprisoned for not more than 1 to 3 years, or both.
(e) Any officer, director or employee of an insurance holding company system who wilfully and knowingly subscribes to or makes or causes to be made any false statements, false reports or false filings with the intent to deceive the Commissioner in the performance of the Commissioner's duties under this chapter, upon conviction thereof, shall be imprisoned for not more than 2 years, or fined $50,000 or both. Any fines imposed shall be paid by the officer, director or employee in an individual capacity.
(f) Whenever it appears to the Commissioner that any person has committed a violation of § 5003 of this title and which prevents the full understanding of the enterprise risk to the insurer by affiliates or by the insurance holding company system, the violation may serve as an independent basis for disapproving dividends or distributions and for placing the insurer under an order of supervision in accordance with Chapter 59 of this title.
Whenever it appears to the Commissioner that any person has committed a violation of this chapter which so impairs the financial condition of a domestic insurer as to threaten insolvency or make the further transaction of business by it hazardous to its policyholders, creditors, shareholders or the public, then the Commissioner may proceed as provided in Chapter 59 of this title to take possession of the property of such domestic insurer and to conduct the business thereof.
(2) Any payment in the form of a bonus, termination settlement or extraordinary lump sum salary adjustment made by the insurer or its subsidiary(s) to a director, officer or employee.
Where the distribution or payment pursuant to paragraph (a)(1) or (2) of this section is made at any time during the 1 year preceding the petition for liquidation, conservation or rehabilitation, as the case may be, subject to the limitations of subsections (b), (c) and (d) of this section.
(b) No such distribution shall be recoverable if the parent or affiliate shows that when paid, such distribution was lawful and reasonable, and that the insurer did not know and could not reasonably have known that such distribution might adversely affect the ability of the insurer to fulfill its contractual obligations.
(c) Any person who was a parent corporation or holding company or a person who otherwise controlled the insurer or affiliate at the time such distributions were paid shall be liable up to the amount of distributions or payments under subsection (a) of this section such person received. Any person who otherwise controlled the insurer at the time such distributions were declared shall be liable up to the amount of distributions the person would have received if they had been paid immediately. If 2 or more persons are liable with respect to the same distributions, they shall be jointly and severally liable.
(d) The maximum amount recoverable under this subsection shall be the amount needed in excess of all other available assets of the impaired or insolvent insurer to pay the contractual obligations of the impaired or insolvent insurer and to reimburse any guaranty funds.
(e) To the extent that any person liable under subsection (c) of this section is insolvent or otherwise fails to pay claims due from it pursuant to such subsection, its parent corporation or holding company or person who otherwise controlled it at the time the distribution was paid, shall be jointly and severally liable for any resulting deficiency in the amount recovered from such parent corporation or holding company or person who otherwise controlled it.
§ 5013 Revocation, suspension or nonrenewal of insurer's license.
Whenever it appears to the Commissioner that any person has committed a violation of this chapter which makes the continued operation of an insurer contrary to the interests of policyholders or the public, the Commissioner may, after giving notice and an opportunity to be heard, determine to suspend, revoke or refuse to renew such insurer's license or authority to do business in this State for such period as the Commissioner finds is required for the protection of policyholders or the public. Any such determination shall be accompanied by specific findings of fact and conclusions of law.
(5) Establishing a crisis management plan.
(b) Expenses. — Each registered insurer subject to this section shall be liable for and shall pay the reasonable expenses of the Commissioner's participation in a supervisory college in accordance with subsection (c) of this section below, including reasonable travel expenses. For purposes of this section, a supervisory college may be convened as either a temporary or permanent forum for communication and cooperation between the regulators charged with the supervision of the insurer or its affiliates, and the Commissioner may establish a regular assessment to the insurer for the payment of these expenses.
(c) Supervisory college. — In order to assess the business strategy, financial position, legal and regulatory position, risk exposure, risk management and governance processes, and as part of the examination of individual insurers in accordance with § 5006 of this title, the Commissioner may participate in a supervisory college with other regulators charged with supervision of the insurer or its affiliates, including other state, federal and international regulatory agencies. The Commissioner may enter into agreements in accordance with § 5007(c) of this title providing the basis for cooperation between the Commissioner and the other regulatory agencies, and the activities of the supervisory college. Nothing in this section shall delegate to the supervisory college the authority of the Commissioner to regulate or supervise the insurer or its affiliates within its jurisdiction.
§ 5015 Group-wide supervision of internationally active insurance group.
(3) Has substantial insurance operations in the United States and this State, but the Commissioner has determined pursuant to the factors set forth in subsections (b) and (f) of this section that the other regulatory official is the appropriate group-wide supervisor.
An insurance holding company system that does not otherwise qualify as an internationally active insurance group may request that the Commissioner make a determination or acknowledgement as to a group-wide supervisor pursuant to this section.
(5) Whether another regulatory official acting or seeking to act as the group-wide supervisor provides the Commissioner with reasonably reciprocal recognition and cooperation.
However, a commissioner identified under this section as the group-wide supervisor may determine that it is appropriate to acknowledge another supervisor to serve as the group-wide supervisor. The acknowledgement of the group-wide supervisor shall be made after consideration of the factors listed in paragraphs (b)(1) through (5) of this section above, and shall be made in cooperation with and subject to the acknowledgement of other regulatory officials involved with supervision of members of the internationally active insurance group, and in consultation with the internationally active insurance group.
the Commissioner shall make a determination or acknowledgement as to the appropriate group-wide supervisor for such an internationally active insurance group pursuant to subsection (b) of this section.
(d) Pursuant to § 5006 of this title, the Commissioner is authorized to collect from any insurer registered pursuant to § 5004 of this title all information necessary to determine whether the Commissioner may act as a group-wide supervisor of an internationally active insurance group or if the Commissioner may acknowledge another regulatory official to act as the group-wide supervisor. Prior to issuing a determination that an internationally active insurance group is subject to group-wide supervision by the Commissioner, the Commissioner shall notify the insurer registered pursuant to § 5004 of this title and the ultimate controlling person within the internationally active insurance group. The internationally active insurance group shall have not less than 30 days to provide the Commissioner with additional information pertinent to the pending determination. The Commissioner shall publish in the Delaware Administrative Code and on its Internet website the identity of internationally active insurance groups that the Commissioner has determined are subject to group-wide supervision by the Commissioner.
b. Reasonable and effective mitigation measures are in place.
(3) Coordinate and, through the authority of the regulatory officials of the jurisdictions where members of the internationally active insurance group are domiciled, compel development and implementation of reasonable measures designed to ensure that the internationally active insurance group is able to timely recognize and mitigate enterprise risks to members of such internationally active insurance group that are engaged in the business of insurance.
(4) Communicate with other state, federal, and international regulatory agencies for members within the internationally active insurance group and share relevant information subject to the confidentiality provisions of § 5007 of this title, through supervisory colleges as set forth in § 5014 of this title or otherwise.
(5) Enter into agreements with or obtain documentation from any insurer registered under § 5004 of this title, any member of the internationally active insurance group, and any other state, federal, and international regulatory agencies for members of the internationally active insurance group, providing the basis for or otherwise clarifying the Commissioner's role as group-wide supervisor, including provisions for resolving disputes with other regulatory officials. Such agreements or documentation shall not serve as evidence in any proceeding that any insurer or person within an insurance holding company system not domiciled in this State is doing business in this State or is otherwise subject to jurisdiction in this State.
(6) Other group-wide supervision activities, consistent with the authorities and purposes enumerated above, as considered necessary by the Commissioner.
(2) The regulatory official acknowledged as the group-wide supervisor also recognizes and cooperates with the Commissioner's activities as a group-wide supervisor for other internationally active insurance groups where applicable. Where such recognition and cooperation is not reasonably reciprocal, the Commissioner is authorized to refuse recognition and cooperation.
(g) The Commissioner is authorized to enter into agreements with or obtain documentation from any insurer registered under § 5004 of this title, any affiliate of the insurer, and other state, federal and international regulatory agencies for members of the internationally active insurance group that provide the basis for or otherwise clarify a regulatory official's role as group-wide supervisor.
(h) The Commissioner may promulgate regulations necessary for the administration of this section.
(i) A registered insurer subject to this section shall be liable for and shall pay the reasonable expenses of the Commissioner's participation in the administration of this section, including the engagement of attorneys, actuaries and any other professionals and all reasonable travel expenses.
§ 5016 Conflict with other laws.
All laws and parts of laws of this State inconsistent with this chapter are hereby superseded with respect to matters covered by this chapter.