Practice Areas & Industries: Eversheds Sutherland (US) LLP


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Practice/Industry Group Overview

When life insurance companies face legal and regulatory challenges in the development, sale and administration of products, they turn to Sutherland.

Insurance companies operate in a highly regulated industry and must develop new financial products to remain competitive. That’s where Sutherland’s experience and depth comes into play. Our premier insurance products practice represents producers and distributors of fixed and variable insurance and annuity products and counsels them on the myriad legal and regulatory issues involving the development, marketing, distribution and administration of these products. We take pride in partnering with our clients to help them meet their business goals while also helping minimize their exposure to legal and regulatory risk.

We customize our role to our clients’ specific needs, and work with the entire spectrum of insurance companies and products, including group and individual products offered through SEC-registered and unregistered separate accounts; fixed, variable and stable value products offered in the retail, retirement, institutional and high-net-worth marketplaces; and innovative payout annuity, guaranteed retirement income and long-term care products. Our clients span the industry and include insurance companies of all sizes, as well as mutual funds, banks, other financial institutions and foreign-owned financial holding companies and their subsidiaries.

Our insurance products practice is complemented by Sutherland’s comprehensive Insurance Practice Group, which includes more than 125 attorneys who focus on insurance transactional, corporate finance and litigation matters. We are often called on to conduct comprehensive compliance audits, including mock SEC and FINRA exams, and represent our clients on compliance related matters with regulators. Because many of our attorneys have extensive regulatory experience we are well-positioned to anticipate and proactively resolve issues before they expose our clients to regulatory and other legal risks.

Why Sutherland
Relationships with regulators.
Our attorneys work closely with the SEC’s Division of Investment Management and Division of Trading and Markets, as well as with FINRA, regarding the registration, distribution and advertising of insurance products. We have strong relationships with various state regulators, particularly in New York.

Agency experience. Many of our attorneys worked for the SEC or FINRA before coming to Sutherland, including former counsels to SEC Commissioners, a former chief counsel in the SEC’s Office of Compliance Inspections and Examinations and a former chief of the Office of Insurance Products in the SEC’s Division of Investment Management.

Comprehensive service. Our attorneys don’t complete matters and then roll off the case. We provide ongoing advice in all substantive areas affecting insurance companies, their products and their separate accounts, including counseling on the scope of and methodologies for annual reviews and benchmarking annual reports, reviewing oversight procedures and advising on compliance with securities, insurance, anti-money laundering, privacy, advertising, electronic commerce, agent training and supervision and other requirements that impact insurance products.

Product administration. Along with product development, we regularly assist clients with creating checklists, job aids and processing standards that in-house personnel can use on specific issues that arise with administering insurance products. These issues range from contract issuance and premium processing through the payment of death benefits and other contract terminations. We also advise clients regarding issues relating to retained asset accounts; BOLI, COLI, STOLI and STOA (stranger owned or originated life insurance and annuities); life settlements and similar matters.

Compliance and investigations. Many of our clients call on us to conduct reviews and investigations of their insurance product operations and to assist in evaluating compliance programs and procedures. We have significant experience in conducting mock SEC, FINRA and market conduct audits of our clients’ operations. We also assist with issues arising from SEC, FINRA or state market conduct examinations.

Proactive approach. We regularly interface with state and federal regulators to affect and shape the regulatory landscape for life insurance companies and their products. We actively monitor state insurance regulatory developments on a broad basis and attend and participate in NAIC National Meetings, task forces and working groups.

Litigation experience. Whenever necessary, we can seamlessly transition to defending clients’ practices and products.

Nationally recognized team. Our insurance team has been recognized by Chambers, with such comments as, “Sutherland has a very deep bench in the insurance practice. If you have a technical insurance matter, you’ll be able to find a practitioner there who can provide you with advice in that area.” – Chambers USA 2014

Nuts and Bolts
Sutherland’s extensive knowledge and experience covers all types of insurance products

  • Variable life insurance and annuity contracts
  • Traditional life insurance and annuity products
  • Universal life insurance
  • Annuity contracts and life insurance policies with equity index and market value adjustment features
  • Transfers of pension obligations by means of group annuity contracts
  • BOLI, COLI and STOLI policies
  • Financial guaranty insurance, GICs and funding agreements
  • Privately placed corporate and high-net-worth insurance products
    • Offshore insurance products
  • Other types of interest sensitive and insurance/derivative-based products

We advise all types of manufacturers, distributors and joint venture partners

  • Insurance companies and their affiliates
  • Banks and mutual funds
  • Retail and wholesale broker-dealers
  • Hedge funds
  • Investment advisers
  • Retirement plans and their service providers

We assist with all types of matters involving insurance products

  • Product design and development
  • Federal securities law regulation and exemptions
  • Tax and ERISA matters
  • State regulation
  • Organizing and operating registered and private investment companies
  • FINRA and other insurance product distribution matters
  • Dodd-Frank and Sarbanes-Oxley regulation
  • Compliance programs
    • Developing compliance policies and procedures
  • Regulatory exams and performance of mock SEC, FINRA and state compliance audits
  • Electronic commerce, privacy and anti-money laundering regulation
  • Mergers, acquisitions and joint ventures
  • Litigation

Take Action
From product design to defense, Sutherland assists clients with the full range of insurance product issues. We understand the challenges that strict regulations create, and take the time to understand our clients’ goals, enabling speed to market while maintaining prudent compliance and risk management.

Selected Experience

Sutherland counsels a coalition of major life insurance companies on evolving state and federal regulations and other legal developments.

Sutherland represents a coalition of major life insurance companies, which collectively account for more than 80% of the annuity business in the United States, in their efforts to affect the direction and details of various SEC, FINRA, CFTC, NAIC and state rule proposals and initiatives. Recent efforts have focused on developing summary prospectuses for variable annuity products; counseling on the impact of the Dodd-Frank Act on insurance companies, including the status of insurance products as swaps under the Act and how the Volcker Rule affects insurance company investment operations; the insulated status of separate accounts; and various issues arising from FINRA rule book consolidation initiatives, including suitability, “know your customer” and advertising rules as they affect distributors and sellers of variable insurance products.

Sutherland helps insurance companies develop and seek regulatory approvals for cutting-edge financial products.

Sutherland counsels insurers in developing and obtaining regulatory approvals for innovative guaranteed lifetime income products tied to client brokerage accounts and mutual fund assets as well as other fixed and variable insurance products with novel guarantee and equity-indexed features.

Sutherland represents U.S. life insurance subsidiary of Swiss holding company in development of innovative variable annuities.

Sutherland is representing a significant U.S. life insurance subsidiary of a major Swiss holding company before the SEC’s division of investment management and the division of trading and markets to successfully register an innovative U.S. variable annuity for sale to U.S. expatriates living abroad.


Articles Authored by Lawyers at this office:

New Book Recommends Regulators take a Proactive Approach to Driverless Cars
, January 25, 2017
A driverless license is a good start, but a significant amount more research and exploration of regulatory oversight is needed. Ideally, the highest levels of the government should adopt a proactive, rather than reactive, approach.

When are Premiums Paid to a Captive Insurance Company Deductible for Federal Income Tax Purposes?
Saren Goldner,M. Kristan Rizzolo,P. Bruce Wright, January 19, 2017
In their article for, Sutherland attorneys P. Bruce Wright, M. Kristan Rizzolo and Saren Goldner review the basic requirements that must be met for insurance premiums paid to a captive insurer to be tax deductible: risk transfer, risk distribution and insurance risk.

How Technology May Affect Insurance in 2017
, January 12, 2017
Marsh has released a new report on trends anticipated in the United States casualty insurance marketplace in 2017. It noted that the Internet of Things, the sharing economy, and autonomous vehicles will all begin to make major changes to the insurance business in the coming year. In particular,...

Federal Insurance Office Report Highlights Consumer Protection Issues Raised by Big Data, Cyber Risks
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, January 02, 2017
On November 21, 2016, the Federal Insurance Office (FIO) issued its first ever annual Report on the Protection of Consumers and Access to Insurance (Report). The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) authorizes FIO to monitor all aspects of the insurance...

NY DFS Publishes Revised Proposed Cybersecurity Rules for Financial Services Companies
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, January 02, 2017
On December 28, 2016, the New York Department of Financial Services (the DFS) published a revised proposed cybersecurity regulation (the Revised Regulation) for further public comment. First published in September 2016, the Revised Regulation is a culmination of three years of work by the DFS to...

NAIC Report: 2016 Fall National Meeting
B. Scott Burton,Ling Ling,Michael R. Nelson,John S. Pruitt,Stephen E. Roth, December 30, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Fall National Meeting December 10-13. Despite the glitzy setting at the Fontainebleau Hotel in Miami Beach, there were no splashy new developments—save the announcement of the appointment of Michael Consedine as NAIC...

Enhanced Cyber Risk Management Standards Announced in Joint Rulemaking Initiative by Treasury, Federal Reserve, and FDIC
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, December 29, 2016
On October 19, 2016, the three major federal banking regulators announced a joint advance notice of proposed rulemaking (ANPR) for enhanced cyber risk management standards (Enhanced Standards) for large and interconnected federally regulated financial institutions and their third-party service...

NAIC Adopts Revisions to Actuarial Guideline 49
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, December 19, 2016
On December 13, the National Association of Insurance Commissioners (NAIC) Executive (EX) Committee and Plenary adopted revisions to Actuarial Guideline 49 (AG 49) with an effective date of March 1, 2017. The revisions apply AG 49’s standards for determining the maximum annual rate of...

Cybersecurity Certifications Now Required to Access Death Master File
Wilson G. Barmeyer,Robert D. Owen,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, November 14, 2016
Tough cybersecurity certification requirements for parties seeking access to certain information in the Social Security Death Master File (DMF) take effect on November 28.

IRS Provides Guidance on Reasonable Mortality Charges for Life Insurance Contracts Based on 2017 CSO Tables
Dennis L. Allen,Thomas A. Gick,Michael R. Miles,Mary E. Monahan,William R. Pauls, October 27, 2016
On October 19, the Internal Revenue Service (IRS) issued an advance version of Notice 2016-63, addressing the “reasonable mortality charge” requirement under IRC §§ 7702 and 7702A for life insurance contracts based on the 2017 Commissioners’ Standard Ordinary (CSO)...

NAIC Life Actuarial (A) Task Force Approves Revisions to Actuarial Guideline 49 for Exposure and Comment
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, October 27, 2016
On October 20, the NAIC Life Actuarial (A) Task Force (LATF) of the Life Insurance and Annuities (A) Committee met and approved proposed revisions to Actuarial Guideline 49 (AG 49) for exposure and comment. If adopted, the proposed revisions would apply AG 49’s standards for determining the...

STOLI Scheme Saved By Expiration of Contestability Clause
Wilson G. Barmeyer,Kristine M. Ellison,Phillip E. Stano,Steuart H. Thomsen,Gail L. Westover, October 05, 2016
On September 22, the Florida Supreme Court in Wells Fargo Bank NA v. Pruco Life Insurance Co., No. SC15-382 (Fla. Sept. 22, 2016) denied Pruco Life Insurance Company’s challenge to the validity of an insurance policy purchased under a stranger-originated life insurance (STOLI) scheme because...

Unclaimed Property Disputes Over State Priority Take Center Stage, Head to U.S. Supreme Court and the Third Circuit
Wilson G. Barmeyer,Joseph A. Ficarrotta,Phillip E. Stano,Mary Jane Wilson-Bilik, October 05, 2016
Disputes over the unclaimed property priority rules continue to intensify. The U.S. Supreme Court accepted review of a clash involving more than 20 states regarding the right to take custody of official checks. Meanwhile, a holder will appeal a federal district court’s decision that Delaware...

A New Way to Buy Car Insurance?
, September 23, 2016
A car insurance startup has recently acquired an insurance company with licenses in 50 states. Metromile, which has received funding from investors such as Mark Cuban, charges for car insurance based on miles driven. (A hardware “dongle” tracks how many miles the subscriber drives.) The...

NY DFS Announces Proposal for Cybersecurity Rules for Financial Services Companies
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, September 22, 2016
On September 13, 2016, New York Governor Andrew Cuomo announced a proposal by the New York Department of Financial Services (the DFS) of a rule that establishes cybersecurity requirements for financial services companies regulated by the DFS (the NY Regulation). The NY Regulation is the culmination...

NAIC Report: 2016 Summer National Meeting
B. Scott Burton,Ling Ling,Michael R. Nelson,John S. Pruitt,Cynthia R. Shoss, September 07, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California.

NAIC Task Force Releases Revised Draft Insurance Data Security Model Law
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Mary Jane Wilson-Bilik, August 30, 2016
On August 17, the National Association of Insurance Commissioners (the NAIC) Cybersecurity (EX) Task Force (the Task Force) released for comment a revised draft Insurance Data Security Model Law (the Model Law). This Model Law purports to “establish exclusive standards . . . for data security...

Auto Insurers, Buckle Up — Automated Tech Is Already Here
, August 08, 2016
Many auto insurers have developed a false sense of security based on a belief that vehicles with automated driving technology are still several years off, but recent events have demonstrated that the public is buying and driving cars that have a high degree of automation. Auto insurers, whose...

NAIC Life Insurance and Annuities (A) Committee Adopts Revisions to Actuarial Guideline 49
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, August 01, 2016
On July 27, 2016, the Life Insurance and Annuities (A) Committee adopted revisions to Actuarial Guideline 49 (AG 49) to address situations where indexed universal life (IUL) insurance policies make available multiple index account options with different account charges (the dual account issue). The...

Insurers Preparing for a World of Autonomous Vehicles
, July 28, 2016
When autonomous vehicles become ubiquitous, what will be the need for car insurance? That is the question auto insurers are beginning to face as autonomous vehicle technology promises safer roads and fewer accidents. At least one insurer, State Farm, is participating in research on driverless car...

Insurers Should Actively Monitor Automated Driving Technology Developments
, July 21, 2016
Automated technology will bring both new challenges and new opportunities for insurers. Although insurers may face the challenges associated with a shrinking market where manufacturers absorb more liability risk, insurers also have new opportunities. For example, such opportunities include new and...

New York Issues Two Advisory Opinions Regarding Surplus Lines Insurance
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, July 01, 2016
The New York State Department of Taxation and Finance (Department) issued two advisory opinions determining that unauthorized non-life insurance corporations (here, surplus lines insurance companies) are subject to insurance franchise tax (under N.Y. Tax Law § 1502) instead of premium tax...

Insurance Coverage for Driverless Cars
, June 30, 2016
Who is liable for accidents involving autonomous vehicles? At least one insurance company in Britain is now offering an auto policy that will cover autonomous and partly automated vehicles. The policy covers accidents caused by malfunctions in the car’s driverless systems, as well as...

Insurers Aim to Use New Technology To Make Cars “Marketing Machines”
, June 24, 2016
Modern cars capture vast amounts of information about drivers through various computer technologies, tracking where drivers are going, when, and how they are driving. A new study from McKinsey and Company suggests that the future of car insurance lies in harnessing that data: by collecting and...

NAIC Task Force Continues Work on Insurance Data Security Model Law
John S. Pruitt,Cynthia R. Shoss,Mary Jane Wilson-Bilik,John Allen Zumpetta, June 07, 2016
On May 24 and 25, the National Association of Insurance Commissioners (the NAIC) Cybersecurity (EX) Task Force (the Task Force) hosted a meeting in which state insurance commissioners and interested parties were invited to provide comments to and voice concerns about the current draft of the...

The Federal Reserve Board’s ANPR with Respect to Capital Requirements for Supervised Institutions Significantly Engaged in Insurance Activities
Maureen Emmert Adolf,Brian Barrett,John S. Pruitt,Cynthia R. Shoss, June 07, 2016
On June 3, 2016, the Board of Governors of the Federal Reserve System (FRB), approved an advance notice of proposed rulemaking (ANPR)1 regarding two potential regulatory capital frameworks for institutions under the FRB’s supervision that are significantly engaged in insurance activities....

Deloitte Predicts Changes to Auto Insurance Due to “the Future of Mobility”
, June 06, 2016
Deloitte has released a white paper analyzing trends and potential future changes in auto insurance. Two key trends addressed are the rise of autonomous vehicles and the shift from individual vehicle ownership toward the sharing economy. Members of Deloitte’s actuarial practice modeled how...

NAIC Task Force Hosts Insurance Data Security Model Law Meeting
, May 31, 2016
On May 24 and 25, the National Association of Insurance Commissioners (the “NAIC”) Cybersecurity (EX) Task Force (the “Task Force”) hosted a meeting in which state insurance commissioners and interested parties were invited to provide comments to and voice concerns about the...

The Federal Reserve Board Outlines Approach For Capital Rules For Federally Supervised Insurance Groups
Maureen Emmert Adolf,Brian G. Barrett,John S. Pruitt,Cynthia R. Shoss, May 27, 2016
At the NAIC’s tenth International Insurance Forum, Daniel K. Tarullo, a member of the Board of Governors of the Federal Reserve System (FRB), outlined the FRB’s plans for

NAIC Report: 2016 Spring National Meeting
Frederick R. Bellamy,Ling Ling,John S. Pruitt,Cynthia R. Shoss,Mary Jane Wilson-Bilik, May 25, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Spring National Meeting from April 1 through April 6 in New Orleans, Louisiana. As host, Louisiana provided beautiful weather and bountiful great food. The Spring National Meeting was also highlighted by spirited discussions...

Unclaimed Property Primer for Health and Property & Casualty Insurance
Wilson G. Barmeyer,Holly H. Smith,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, May 17, 2016
Unclaimed Property: It’s not just about life insurance. The same contingency-fee unclaimed property auditors that targeted unclaimed life insurance proceeds are now turning their focus to other types of insurance, including health insurance and property & casualty insurance (P&C). For...

Basic-Supplemental Life Insurance Plan Pricing Structure Upheld in ERISA Class Action
Wilson G. Barmeyer,Carol T. McClarnon,Phillip E. Stano,Steuart H. Thomsen,Gail L. Westover, May 05, 2016
An employee benefit plan that includes an alleged subsidization component for its basic and supplemental options is neither prohibited by the Employee Retirement Income Security Act of 1974 (ERISA) nor a violation of the plan sponsor or service provider’s fiduciary duties, a federal district...

Conference Addresses Challenges in AV Deployment
, April 20, 2016
On April 15, 2016, the University of Michigan Law School hosted Autonomous Vehicles: Legal and Regulatory Hurdles to Deployment. Representatives from the National Highway Traffic Safety Administration (NHTSA), automakers, insurers, and academia discussed the legal challenges autonomous technology...

Automakers Reach out to Auto Insurers on Recalls
, April 14, 2016
Two associations representing the largest automakers in the world have asked the auto insurance industry to assist them by reminding insureds of recalls when they renew their policies. The Alliance of Automobile Manufacturers and the Association of Global Automakers made their request in letters to...

California Proposes Anti-Steering Regulation Focusing on Deceptive Statements
, April 01, 2016
Through a recently proposed regulation, the California Department of Insurance seeks to amend the rules preventing insurers from steering claimants to specific auto repair shops. The proposed amendments relate to a variety of issues, such as when a claimant has “chosen” an automotive...

NHTSA To Propose Safety Guidelines For New and Emerging Technology
, April 01, 2016
The National Highway Traffic Safety Administration is submitting a proposed enforcement guideline to address safety concerns relating to new and emerging technology, such as automated vehicles and crash avoidance technology. The NHTSA acknowledged that the increased use of electronic systems has...