BLACKFEET NATIONAL BANK, American Deposit Corp., Plaintiffs-counterdefendants-Appellants, v. Bill NELSON, as Treasurer and Insurance Commissioner of the State of Florida, Defendant-counterclaimant-Appellee.
No. 96-3021.
United States Court of Appeals, Eleventh Circuit.
April 5, 1999.
171 F.3d 1237
Daniel Y. Sumner, Legal Office, David Busch, Dennis S. Silverman, Karen Asher-Cohen, Div. of Ins. Fraud, Dept. of Ins., Tallahassee, FL, for Defendant-counterclaimant-Appellee.
Ross M. Koppel, Washington, DC, for Amicus Office of the Comptroller of the Currency.
Bruce E. Clark, Sullivan & Cromwell, New York City, for Amicus New York Clearing House Ass‘n.
Marc E. Sorini, David O. Stewart, Washington, DC, for Amicus American Counsel of Life Ins.
Scott A. Sinder, Washington, DC, for Amicus Nat. Ass‘n of Life Underwriters.
TJOFLAT, Circuit Judge:
Blackfeet National Bank, a national bank located in Montana, issues a product called the “Retirement CD” to the public. As part of its marketing efforts, Blackfeet has advertised these CDs in the Wall Street Journal. The Insurance Commissioner for the State of Florida, contending that offering the Retirement CD involves engaging in the business of insurance, commenced administrative proceedings against Blackfeet under the Florida Insurance Code. In response, Blackfeet sued the Insurance Commissioner, seeking a declaratory judgment that its sale of the Retirement CD was authorized by the National Bank Act (the “Bank Act“),
I.
Blackfeet National Bank entered into a licensing agreement with American Deposit Corporation (“ADC“) to obtain marketing rights to a new banking industry product, the Retirement CD. A customer desiring to purchase the Retirement CD makes an initial deposit with Blackfeet. At the time of the initial deposit, the customer chooses a maturity date. The customer also chooses a period, from one to five years, during which the interest rate for the Retirement CD remains fixed. Thereafter, until the maturity date, the interest rate fluctuates in accordance with the cost of funds (but never falling below three percent). The customer has the option to make limited additional deposits into the Retirement CD account prior to the maturity date.
Upon maturity, the customer may make a one-time withdrawal of up to two-thirds of the balance in the Retirement CD account. The balance remaining after this initial withdrawal is disbursed to the customer in equal periodic payments for the remainder of his life. Even in the event that the Retirement CD account reaches a zero balance, the customer continues to receive the same periodic payments until death. On the other hand, should the customer die before full payment of the principal in the Retirement CD account (as determined at the maturity date), the remainder of the principal is paid to the customer‘s estate. To minimize the mortality risk it assumes, Blackfeet determines the amount of the periodic payments to its customers by using actuarial tables.
Under its agreement with ADC, Blackfeet obtained a non-exclusive license to market the Retirement CD throughout the United States. As part of its marketing efforts, Blackfeet placed an advertisement for the Retirement CD in the Wall Street Journal.1 In response to this advertisement, Tom Gallagher,2 the Insurance Commissioner of Florida (the “Commissioner“), began administrative proceedings against Blackfeet and ADC. The Commissioner maintained that the Retirement CD was in essence an insurance product, and that marketing it through the national media constituted participation in the business of insurance in Florida—in violation of Florida law. After the Commissioner com-
II.
The district court decided this case on the cross-motions of both parties for summary judgment. As the only issues in dispute involve questions of law, we review the district court‘s judgment de novo. See Lasche v. George W. Lasche Basic Profit Sharing Plan, 111 F.3d 863, 865 (11th Cir. 1997).
III.
Our analysis of this matter involves several inquiries. In part III.A, we address the reasonableness of the Comptroller‘s “no objection” letter with respect to Blackfeet‘s issuance of the Retirement CD. In part III.B, we assume arguendo that the Comptroller‘s determination was reasonable and examine the relationship between a federal law permitting the issuance of the Retirement CD by Blackfeet and a Florida law prohibiting the participation of banks in the business of insurance. We focus our attention in this part on the application of the McCarran-Ferguson Act, and in that regard we conduct a three-pronged inquiry: “(1) whether the pertinent sections of the [Florida Code] were enacted ‘for the purpose of regulating the business of insurance‘; (2) whether the Retirement CD is properly considered ‘the business of insurance‘; and (3) whether the pertinent provisions of the Bank Act ‘specifically relate to the business of insurance.‘” American Deposit Corp. v. Schacht, 84 F.3d 834, 838 (7th Cir. 1996).
A.
Blackfeet argued to the district court that it was authorized under the Bank Act to issue the Retirement CD. Blackfeet supported its argument with a determination by the Comptroller that issuance of the Retirement CD is an authorized bank activity.5 The district court, accepting as reasonable the interpretation of the Comptroller, held that the Bank Act
Prior to placing its ad in the Wall Street Journal, Blackfeet notified the Comptroller of its intention to market the Retirement CD to the public. The Comptroller in turn sent Blackfeet what was in essence a “no objection”6 letter, which in effect authorized Blackfeet to move forward with its plans. The Comptroller concluded that the Retirement CD was a financial product of the kind normally offered by banking institutions, and that its “primary attributes [were] grounded in the Bank‘s expressly authorized powers.” According to the Comptroller, those powers included the power “to receive deposits and enter into contracts, coupled with its powers to incur liabilities and fund its operations.”
The Supreme Court has addressed the authority of the Comptroller to interpret and apply the provisions of the Bank Act. In NationsBank of North Carolina, N.A. v. Variable Annuity Life Insurance Co., 513 U.S. 251, 115 S. Ct. 810, 130 L. Ed. 2d 740 (1995), the Court reviewed the Comptroller‘s decision permitting banks to act as agents selling annuities for insurance companies. The Comptroller, as the chief administrator charged with the supervision of national banks, determined that the Bank Act authorized national banks to broker annuities. See id. at 254, 115 S. Ct. at 812. As part of this determination, the Comptroller concluded that annuities were not “insurance” within the meaning of section 137 of the Bank Act, 38 Stat. 251, 264 (1913) (codified as amended at
In reaching its decision, the Court first discussed the proper inquiry for assessing the reasonableness of an administrative interpretation of a statute. See id. at 257, 115 S. Ct. at 813. The first prong of the inquiry tests the intent of Congress; if Congress’ intent is clear, “that is the end of the matter.” See id. (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)). If the statute is ambiguous, however, a second inquiry is required to test the reasonableness of the administrator‘s interpretation. See id. “If the administrator‘s reading fills a gap or defines a term in a way that is reasonable in light of the legislature‘s revealed design, we give the administrator‘s judgment ‘controlling weight.‘” id. at 257, 115 S. Ct. at 813-14 (quoting Chevron, 467 U.S. at 844, 104 S. Ct. at 2782).
Applying that two-part test to the facts, the NationsBank Court found first that the Bank Act permits activities beyond those enumerated in the statute (thereby making it ambiguous), and second that the Comptroller‘s interpretation of the statute as permitting banks to broker annuities for insurance companies was a reasonable interpretation deserving of the Court‘s due deference. In reaching this conclusion, the Court specifically accepted the Comptroller‘s view that “for the purpose at hand, annuities are properly classified as investments, not ‘insurance.‘” id. at 261, 115 S. Ct. at 815. The Comptroller compared putting money in an annuity to put-
Blackfeet cites NationsBank in support of its argument that the Bank Act permits a national bank to market the Retirement CD.8 The district court accepted Blackfeet‘s argument, concluding that the Comptroller‘s no objection letter offered a reasonable interpretation of the provisions of the Bank Act. The district court acknowledged that the Comptroller took into consideration the fact that payouts would be made based on actuarial tables. In fact, the Comptroller mandated procedures to mitigate the risks involved in such a payout structure. The court agreed with the Comptroller that the Retirement CD was in fact a “deposit,” and that it “represent[ed] the very essence of banking which is embodied in a bank‘s express authority to accept deposits and enter into contracts, and authority to incur liabilities and fund its operation.” The court therefore concluded that despite the risk shifting characteristics of the Retirement CD, its nature was that of a deposit and thus its issuance was within Blackfeet‘s powers under the Bank Act.
We reject this reasoning and conclude that the Comptroller‘s interpretation of the Bank Act is an unreasonable expansion of the powers of national banks beyond those intended by Congress. The district court‘s reliance on NationsBank is misplaced, as that case is limited by its facts. Of course, the NationsBank Court did conclude that annuities were not insurance “for the purpose at hand.” See id. at 261, 115 S. Ct. at 815. However, in NationsBank, the inquiry focused on the ability of a national bank to broker annuities; our case turns on the ability of national banks to underwrite the Retirement CD. In determining whether a national bank was authorized to market such a product, the Court as much as admitted the distinction we make today when it highlighted the Comptroller‘s assurance that “NationsBank ‘will act only as agent [and] will not have a principal stake in annuity contracts and therefore will incur no interest rate or actuarial risks.‘” id. at 260 n. 4, 115 S. Ct. at 815 n. 4. It is clear from the facts before us that Blackfeet will engage in underwriting the Retirement CD—something the NationsBank Court implied would “deviate from traditional bank practices.” id.
Aside from this clear—and compelling—factual distinction, there is a more basic and fundamental argument against the reasonableness of the Comptroller‘s interpretation. The primary purpose of state regulation of insurance—at least arguably—is the prevention of insolvency. See First Nat‘l Bank of E. Ark. v. Taylor, 907 F.2d 775, 780 (8th Cir. 1990) (“‘The prevention of insolvency and the maintenance of “sound” financial condition in terms of fixed-dollar obligations is precisely what traditional state regulation [of insurance] is aimed at.‘” (quoting SEC v. Variable Annuity Life Ins. Co. of Am., 359 U.S. 65, 90-91, 79 S. Ct. 618, 631-32, 3 L. Ed. 2d 640 (1959) [hereinafter VALIC])). Underlying this concern over insolvency is the understanding that, for many reasons, the nature of insurance lends itself to the possibility of substantial abuse.9 As a result,
It is exactly the risk shifting and use of actuarial tables present here—in other words, the underwriting—that necessitates the exclusion of the Retirement CD from the business of banking and its inclusion in the business of insurance. We need look no further than the Bank Act‘s treatment of another form of underwriting to support this argument. Section 24 of the Bank Act states that a national bank shall have the power to deal in securities and stock, but that
[t]he business of dealing in securities and stock by the [bank] shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and the [bank] shall not underwrite any issue of securities or stock....
This section of the Bank Act was amended by section 16 of the Glass-Steagall Banking Act of 1933, 48 Stat. 162, 184 (codified as amended at
While the underwriting of insurance and securities have different qualities, both involve the fundamental feature of guarantying payment of proceeds. Those underwriting the issuance of a security guaranty that a certain amount of proceeds will be distributed to the issuer on a certain date (whether or not the underwriter is able to successfully market those securities), while the underwriters of insurance guaranty the distribution of pro-
B.
Our conclusion that the Comptroller unreasonably expanded the powers of a national bank through its “no objection” letter to Blackfeet is a sufficient ground on which to affirm the district court, despite the fact that the district court did not rely on this ground. See Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290 n. 50 (11th Cir. 1998) (concluding that this court may affirm a district court‘s judgment on any ground, regardless of whether that court addressed, adopted or rejected that ground in reaching its decision). There is, however, an alternative reason for affirming the district court‘s decision. Assuming arguendo that the Bank Act permits national banks to market the Retirement CD, we conclude that the McCarran-Ferguson Act nonetheless enables the State of Florida to regulate the issuance of the Retirement CD in Florida. McCarran-Ferguson reverses the doctrine of preemption in cases involving state insurance laws, such that a state law specifically regulating the business of insurance shall preempt a conflicting federal law unless that federal law specifically relates to the business of insurance.10 See United States Dept. of the Treasury v. Fabe, 508 U.S. 491, 507, 113 S. Ct. 2202, 2211, 124 L. Ed. 2d 449 (1993).
In part III.B.1, we briefly discuss McCarran-Ferguson in order to provide context for the analysis that follows. In part III.B.2, we address the question of whether Blackfeet‘s involvement with the Retirement CD constitutes the business of insurance. In part III.B.3, we determine whether the provisions of the Bank Act in question specifically relate to the business of insurance.11
1.
The McCarran-Ferguson Act,
McCarran-Ferguson states, in relevant part:
(a) State regulation
The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
(b) Federal regulation
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance....
2.
The first issue we must resolve in applying the Act here is whether Blackfeet‘s issuance of the Retirement CD is properly characterized as the business of insurance. The meaning of “insurance” in the context of McCarran-Ferguson is a federal question. See VALIC, 359 U.S. at 69, 79 S. Ct. at 621.
Instead, we must analyze the general principles that help to define “the business of insurance.” The Supreme Court first addressed this phrase in SEC v. National Securities, Inc., 393 U.S. 453, 89 S. Ct. 564, 21 L. Ed. 2d 668 (1969). There, the Court found that such things as “[t]he relationship between insurer and insured, the type of policy which could be issued, and [that policy‘s] reliability, interpretation, and enforcement ... were [at] the core of the ‘business of insurance.‘” id. at 460, 89 S. Ct. at 568. Although the Court noted that other activities of companies could find their way under the umbrella of “business of insurance,” the focus of that phrase “was on the relationship between the insurance company and the policyholder.” id. at 460, 89 S. Ct. at 568-69; see also Fabe, 508 U.S. at 501, 113 S. Ct. at 2208 (supporting that interpretation of “business of insurance“). Also important in defining something as “insurance” is whether the activity involves the underwriting of risk. See VALIC, 359 U.S. at 72-73, 79 S. Ct. at 622-23. The VALIC Court stated that “‘true underwriting of risks [is] the one earmark of insurance.‘” id. at 73, 79 S. Ct. at 623.
These general principles make up the foundation of a three-part test articulated by the Supreme Court for determining whether an activity constitutes part of the business of insurance: “first, whether the practice has the effect of transferring or spreading a policyholder‘s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S. Ct. 3002, 3009, 73 L. Ed. 2d 647 (1982) (emphasis omitted).13 Each of these crite-
First of all, it is clear that the Retirement CD involves the spreading—or underwriting—of a policyholder‘s risk. Although Blackfeet argues that “[t]he hazard of having insufficient investment acumen to outlive an asset ... is an investment risk, like the risk of misjudging whether a stock will go up or down,” this argument mischaracterizes the risk. What purchasers are protecting against is simply the risk of outliving their means. In order to limit that risk, they purchase the Retirement CD, which ensures that they will receive periodic payments for life. Blackfeet assumes this risk for the policyholder in return for the fees it collects and the interest it draws from the use over time of their contributions. It uses standard actuarial tables in order to limit its exposure to these mortality risks.
We frankly do not see the difference between insuring against living too long (which in essence is what this Retirement CD provides for) and insuring against dying too soon. Moreover, we note that other insurance products—“collision” car insurance, for example—operate in exactly the same fashion as the Retirement CD; essentially, they protect the insured from his own insufficient acumen in other contexts. We therefore find Blackfeet‘s arguments unpersuasive and conclude that this practice is properly characterized as underwriting a policyholder‘s risk.
As to the second prong of the Pireno test, it is clear that Blackfeet‘s sale of the Retirement CD is “an integral part of the policy relationship between the insurer and the insured.” Id. at 129, 102 S. Ct. at 3009. In fact, as the Schacht court pointed out, “[the Retirement CD] is not only an ‘integral part’ of the policy relationship between the insurer and the insured, it is the very document that evidences that relationship.” Schacht, 84 F.3d at 842. We cannot imagine anything more integral to the insurer/insured relationship.
Finally, the sale of the Retirement CD satisfies the third prong of the Pireno test. While being careful not to label the Retirement CD, we note that the vast majority of annuities—to which the Retirement CD is similar—are issued by insurance companies. See id. The Schacht court, citing a 1994 Barron‘s article, noted that “nearly all of the $1 trillion worth of annuities currently in effect in the United States are issued by regulated insurance companies.” Id. This information appears to indicate that the issuance of annuities is limited to entities within the insurance industry.
Blackfeet makes the point that thousands of “gift annuities” are issued each year by charitable organizations in the form of charitable remainder annuity trusts. See
We do acknowledge that the 1990s have witnessed an expansion of bank participation in the brokering of annuities, supported both by the Comptroller and the Supreme Court. Cf. NationsBank, 513 U.S. at 261, 115 S. Ct. at 815. A recent newswire report indicated that bank activity in the United States insurance industry will grow by almost one-third annually over the next four years, due in large part to the sale of annuities. See Xinhua World Econ. News Summary at 0500 GMT, Xinhua Eng. Newswire, Nov. 27, 1998. These facts, however, speak only to brokering annuities. They do not indicate an increase in underwriting insurance products by banks, which is the practice being scrutinized here. Furthermore, we have found no commercial examples where
As we stated earlier, the Pireno test does not turn on any one of its factors; rather, each of the factors is analyzed in context with the others. The facts in this case, when examined under the Pireno factors, indicate that the issuance of the Retirement CD involves the business of insurance. The underlying principles of the business of insurance, as found in Fabe, VALIC, and National Securities, support the same conclusion.
3.
Having determined that the Retirement CD involves the business of insurance, we must determine whether the federal statute in question—here, the Bank Act—“specifically relates to the business of insurance” so as to overcome the reverse preemption provisions of McCarran-Ferguson. We conclude that the Bank Act does not specifically relate to the business of insurance.
We base this decision on the Supreme Court‘s reasoning in Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). There, the Court addressed the application of McCarran-Ferguson to section 13 of the Bank Act, which permits banks in towns of under 5000 population to offer insurance products to its customers. The pertinent language of section 13 is as follows:
[A]ny such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may ... act as the agent for any fire, life, or other insurance company ... by soliciting and selling insurance and collecting premiums on policies issued by such company....
The language of the Federal Statute before us is not general. It refers specifically to insurance. Its state regulatory implications are not surprising, nor do we believe them inadvertent. Consequently, considerations of purpose, as well as of language, indicate that [section 13] falls within the scope of the McCarran-Ferguson‘s “specifically relates” exception to its anti-pre-emption rule.
Id. at 41, 116 S. Ct. at 1112-13 (citation omitted).
In contrast to Barnett Bank, the statutory language in our case does not specifically relate to the business of insurance. As stated earlier, the provisions of the Bank Act relied on by Blackfeet for authority to market the Retirement CD in-
This extension, however, is “exactly the intrusion the [Barnett Bank] Court warned against: [the provisions of the Bank Act] describe an affected activity (banking) in broad terms, of which the insurance business (the Retirement CD) is only a part.” Schacht, 84 F.3d at 843. We therefore agree with the Schacht court that section 24(Seventh) does not specifically relate to the business of insurance, and therefore the Bank Act is not saved from the reverse preemption of McCarran-Ferguson with regard to Florida insurance regulation of the Retirement CD.
IV.
The involvement of banks in the business of insurance has become a politically charged issue in recent times. There certainly is a trend developing towards deregulation in all areas of the financial services industry, and there is some indication that Congress will address regulation of banks offering insurance products in the near future. See Insurance & Annuities: Dual Insurance Regulation Broached, Bank Mutual Fund Report, No. 6, Feb. 9, 1998. We are required, however, to make our determination based on the law presently in force. Under that law, it is unreasonable for the Comptroller to conclude that issuing the Retirement CD is authorized as the business of banking by the Bank Act. Alternatively, assuming that the Retirement CD can appropriately be considered the business of banking, we nevertheless conclude that the Commissioner may regulate its issuance within the State of Florida. For the foregoing reasons, the judgment of the district court is AFFIRMED.