Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL FAIR HOUSING ALLIANCE,
Plaintiff,
v. Civil Action No. 16-928 (JDB)
TRAVELERS INDEMNITY COMPANY,
et al.
Defendants. MEMORANDUM OPINION
This case raises an oft-litigated Fair Housing Act claim: whether an insurer’s facially- neutral policy has a disparate impact on the availability of housing for members of a protected class. The twist, however, is that it follows shortly after the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) (Inclusive Communities), and thus requires this Court to consider how that case changed the pleading standards for disparate-impact claims under the Fair Housing Act (FHA). The Court determines that plaintiff National Fair Housing Alliance (NFHA) has standing, and that under Inclusive Communities’ more stringent pleading standard for disparate-impact claims, NFHA has stated a claim under the FHA. The Court therefore also determines that NFHA has stated a claim under the D.C. Human Rights Act (DCHRA). Defendants’ motion to dismiss will be denied.
BACKGROUND
Except where noted, the following facts are according to the amended complaint, which
the Court accepts as true at this stage. Bell Atl. Corp. v. Twombly,
NFHA alleges that Travelers has a policy of refusing to provide habitational insurance policies for landlords that rent to tenants who receive Housing Choice Vouchers, commonly known as Section 8 vouchers. Id. ¶ 21. As explained below, Housing Choice Vouchers is a federal program that provides financial assistance to low-income persons to obtain housing. NFHA’s allegations are based on the experiences of five “testers,” who each “posed as a prospective purchaser of a four unit apartment complex” in the Anacostia neighborhood in southeast D.C. and attempted to obtain insurance. Id. ¶¶ 22–23, 25. The testers spoke with “insurance agencies doing business in the District of Columbia that market Travelers insurance policies” between July 2015 and February 2016. Id. ¶ 23 (listing the insurance agencies). NFHA employed “experienced tester[s],” id. ¶ 25, “provided a common set of instructions to the individual testers,” and recorded the interactions that took place over the telephone, id. ¶ 24. The testers “advised each broker that the complex was currently occupied by tenants participating in the Housing Choice Voucher program.” Id. ¶ 25. In each instance, the broker explained to the tester that “Travelers would not underwrite the policy because of the presence of voucher recipients in the building.” Id.; see also id. ¶¶ 26–32 (detailing individual interactions with each of the five brokers).
For example, one broker stated that she would not send the tester’s application to Travelers because Travelers “won’t write subsidized housing policies.” Id. ¶ 27. Another broker, who was not initially told that the property was occupied by voucher recipients, first stated that he had spoken with a Travelers’ representative and quoted a policy between $3,000 and $3,500. Id. ¶ 29. But when the tester then informed the broker that the building was occupied by tenants receiving vouchers, he responded: “Wait a minute. Stop right there. Subsidized housing is a problem.” Id. *3 The broker further expressed his doubt that Travelers would underwrite that policy, but he offered to confirm with Travelers directly. Id. The following day, the broker called the tester and conveyed that he spoke with a Travelers representative who stated that Travelers would not underwrite a policy for that building and that “any Section 8 would be a problem.” Id. ¶ 30. The broker then explained that the tester would likely need to obtain a policy from the secondary market, which would have a premium of approximately $4,500 and would provide “not as good a policy.” Id. In other words, the broker explained, the tester would be “paying more for less.” Id.
The Housing Choice Voucher program, established by Congress, is “the federal government’s major program for assisting very low-income families, the elderly, and individuals with disabilities in affording decent, safe, and sanitary housing in the private rental market.” Id. ¶¶ 9–10 (citing 42 U.S.C. § 1437f(o)). In the District of Columbia, households that participate in the voucher program are disproportionately headed by African-American women. According to the complaint, the D.C. population is currently 48.7% non-Hispanic African American or Black and 35.4% non-Hispanic White. Id. ¶ 14. Households in D.C. are approximately 45.2% non- Hispanic African American or Black and 41% non-Hispanic White. Id. Approximately 47.1% of all households in D.C. are headed by women. Id. Within the population of households that receive vouchers, however, African-American households and women-headed households are overrepresented: 92% of participating households are non-Hispanic African American or Black (compared to 45.2% in the whole D.C. population), and only 1% of participating households are non-Hispanic White (compared to 41% in the whole D.C. population). Id. ¶ 16. Similarly, 81.5% of households receiving vouchers are headed by women (compared to 47.1% in the whole D.C. population). Id. Additionally, “residents who participate in the Housing Choice Voucher program are largely concentrated” in particular neighborhoods: “the four Census tracts in the District with *4 the highest concentration of Housing Choice Voucher program participants are all east of the Anacostia River, as are eight of the top ten Census tracts.” Id. ¶ 17. These tracts have a far higher concentration of African-American residents than the District as whole: they are 84.7% African- American or Black, as compared to the District-wide average of 51.1%. Id. NFHA therefore believes that Travelers’ policy of denying insurance to landlords whose tenants receive vouchers discourages landlords from renting to voucher recipients, which has a disproportionate effect on tenants who are African-American or in women-headed households.
Once NFHA became aware of Travelers’ allegedly discriminatory policy, it took several steps to investigate the scope of the problem and educate D.C. tenants, landlords, and policy makers about this issue. It “devoted considerable staff time and resources to efforts to identify the nature and scope of Traveler’s [sic] discriminatory conduct.” Id. ¶ 35. It then “added educational information to its website, along with links” to the relevant federal and state laws “specifically designed to educate the general public . . . about fair housing laws and habitational insurance discrimination based on Housing Choice Voucher program participation.” Id. ¶ 37(a). It also engaged in targeted outreach specifically designed to inform the people who were likely to be harmed by Travelers’ policy. It “placed a public service announcement in the Washington, DC print edition of the Afro-American, a local weekly newspaper, for two weeks” from February 6 through February 19, 2016, and paid for an email blast to the newspaper’s readers during that same time. Id. ¶ 37(b). NFHA also created and mailed “educational letter[s] and flyers” to a total of approximately 105 “predominately African American churches in the Washington DC area” in February and March 2016. Id. ¶ 37(c).
In addition to alerting residents who might be affected, plaintiff “has also taken steps to educate” the D.C. Housing Authority and D.C. landlords “about insurance discrimination based *5 on Housing Choice Voucher program participation.” Id. ¶ 37(d). NFHA’s President and Chief Executive Officer addressed the D.C. Housing Authority’s monthly board meeting, and other staff members communicated with Housing Authority officials about discrimination in habitational insurance. Id. ¶ 37(d)–(e). The NFHA also designed and implemented additional training to prepare its staff “for the possibility of landlords and tenants calling NFHA for additional information about insurance discrimination” and prepared intake tools to handle an increased volume of calls. Id. ¶ 37(f).
Collectively, according to NFHA, these efforts “diverted scarce time and resources away from routine tasks and activities.” Id. ¶ 38. This required NFHA to “delay, suspend, or even forego other existing programs or projects,” including suspending planned initiatives to investigate a different “potentially discriminatory loan policy maintained by a specific national lender,” to analyze “the conduct of two banks in Kentucky that appeared to be underserving African- American consumers, and the unlawful redlining practices of two Tennessee banks.” Id. ¶ 42.
In May 2016, NFHA filed suit, and in August 2016, NFHA filed the operative Amended Complaint. In the Amended Complaint, NFHA alleges that Travelers’ discriminatory policy has a disparate impact on African-Americans and women and serves no legitimate business interest, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. NFHA also asserts that Travelers’ policy violates the D.C. Human Rights Act’s prohibition on housing discrimination on the basis of race, sex, and source of income. See D.C. Code § 2-1402.21 (2011). NFHA seeks declaratory and injunctive relief as well as damages and attorney’s fees. In response, Travelers filed a motion to dismiss. See Def.’s Mot. to Dismiss [ECF No. 14-1]. Travelers contends that NFHA does not have standing because its only injuries are self-inflicted and because Travelers has ceased using this policy. Travelers also argues that NFHA has failed to plead sufficient facts to show a causal *6 connection between its policy and any disparate impact under the heightened pleading standards for a prima facie disparate-impact claim following Inclusive Communities. Travelers contends that the DCHRA is not applicable to insurance and that, even if it were, NFHA has failed to state a claim for discrimination based on race, sex, or source of income under state law for the same reasons that it has failed to do so under federal law.
The Court concludes that NFHA has standing to bring these claims, and that NFHA has sufficiently pleaded a causal connection between Travelers’ policy and a disparate impact based on race and sex to make out a prima facie claim under the FHA. The Court also concludes that the DCHRA does apply to habitational insurance and that NFHA has stated a claim under that act as well. The Court will therefore deny Travelers’ motion to dismiss.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint that “fail[s] to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). At the motion to dismiss
stage, all of a plaintiff’s factual allegations are taken as true. Bell Atl. Corp.,
When considering a motion to dismiss for lack of standing under Rule 12(b)(1), the Court
likewise accepts the plaintiff’s allegations as true and draws all reasonable inferences in its favor.
See Settles v. U.S. Parole Comm’n,
ANALYSIS
I. S TANDING
The “irreducible constitutional minimum” of standing requires a plaintiff to have “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016) (internal quotation marks omitted) (citing Lujan v. Defenders of Wildlife,
NFHA “can assert standing on its own behalf, on behalf of its members or both.” Equal
Rights Ctr. v. Post Properties, Inc.,
In contrast, an organization has not suffered an injury in fact sufficient to establish standing
if it has only diverted “resources to litigation or to investigation in anticipation of litigation.”
PETA,
Here, NFHA’s activities fit squarely within the category of expenditures that are sufficient
to confer standing. In Havens, the Supreme Court held that an organization opposing housing
discrimination had standing when it “devote[d] significant resources to identify and counteract” a
real estate company’s “racially discriminatory steering practices.” Havens,
Moreover, the D.C. Circuit has “concluded that an organization promoting equal
employment had standing to sue an employment agency for racial discrimination in hiring because
the alleged discrimination ‘might increase the number of people in need of counseling’ and ‘may
have reduced the effectiveness of any given level of [the organization’s outreach efforts.’” Equal
Rights Ctr.,
Travelers raises a host of arguments for why, despite the clear case law explained above, NFHA does not have standing. None are persuasive. Travelers first asserts that because NFHA’s expenditures were voluntary and self-inflicted, they do not “constitute the requisite injury-in-fact to establish standing.” Def.’s Mot. to Dismiss at 27 (citing PETA, 787 F.3d at 1096–97, and Turlock Irrigation Dist., 786 F.3d at 24). But the D.C. Circuit has rejected this argument, explaining that standing does not “depend on the voluntariness or involuntariness of the plaintiffs’ expenditures” but instead on “whether they undertook the expenditures in response to, and to counteract, the effects of the defendants’ alleged discrimination rather than in anticipation of litigation.” Equal Rights Ctr., 633 F.3d at 1140. Here, as explained above, NFHA expended significant resources to “counteract[] the effects of defendants’ alleged discrimination.” See id. Although some of NFHA’s activities could be classified as preparing for litigation (or as engaging in advocacy, another category of expenses that does not count toward standing), the Court does not rely on those activities in finding that NFHA has standing.
Travelers next argues that NFHA’s choice to divert its resources was “predicated on the
legal conclusion that Travelers’ conduct violated the fair housing laws,” but because Travelers did
not violate the law, NFHA “cannot manufacture standing.” Def.’s Mot. to Dismiss at 28–29. This
argument puts the cart before the horse: NFHA’s standing does not depend on whether it prevails
on the merits. Rather, at the motion to dismiss stage, the Court accepts the plaintiff’s allegations
as true and “[i]f, as broadly alleged,” defendant’s unlawful practices “have perceptibly impaired”
*11
the plaintiff’s ability to provide services, “there can be no question that the organization has
suffered injury in fact.” Havens,
Travelers also attaches an affidavit to its motion to dismiss attesting that since January 1, 2016, it no longer uses the policy that NFHA challenges. See Kearney Decl. [ECF No. 14-2] ¶ 3. Travelers therefore argues that “the costs expended by NFHA are not the result of Travelers’ conduct, but of NFHA’s own failure to perform a reasonable investigation.” Def.’s Mot. to Dismiss at 30. It is not clear how this affidavit could affect NFHA’s standing. Travelers’ admission that it used this policy prior to January 1, 2016 will likely bolster’s NFHA’s claims at a later stage of this litigation. But regardless, NFHA has pleaded facts, which must be accepted as true at this stage, that show that Travelers still followed this policy as of February 2016. See Am. Compl. ¶ 32. At best, then, the affidavit raises a factual dispute that could be relevant to the merits of NFHA’s claims—but it does not affect NFHA’s standing.
Finally, Travelers argues that because the activities NFHA undertook to counteract
Travelers’ allegedly discriminatory practices are “wholly consistent with the very type of
education and outreach efforts that are part of NFHA’s stated mission,” they cannot suffice for
injury in fact. Def.’s Mot. to Dismiss at 26. A different judge on this court responded to a similar
argument by stating that “[t]he Court need not address defendants’ theory,” which “borders both
on the offensive and absurd.” National Fair Hous. Alliance, Inc. (NFHA) v. Prudential Ins. Co. of
Am.,
Having determined that NFHA has standing to pursue its claims, the Court turns to defendant’s motion to dismiss for failure to state a claim.
II. T HE F AIR H OUSING A CT
The Fair Housing Act was enacted during “a period of considerable social unrest.” Inclusive Communities, 135 S. Ct. at 2516. A commission established by President Lyndon Johnson found that “both open and covert racial discrimination prevent black families from obtaining better housing and moving to integrated communities” and that as a result, “‘our Nation is moving toward two societies, one black, one white—separate and unequal.’” Id. (quoting Report of the Nat’l Advisory Comm’n on Civil Disorders 1, 91 (1968)). This state of affairs came about because of “various practices [that] were followed, sometimes with government support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities; steering by real-estate agents led potential buyers to consider homes in racially homogeneous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas.” Id. at 2515 (internal quotation marks omitted). In response, Congress adopted the commission’s *13 recommendation and passed the Fair Housing Act to “eradicate discriminatory practices within a sector of our Nation’s economy.” Id. at 2521.
The FHA announces that “[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” See 42 U.S.C. § 3601. Thus, it is unlawful to “refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). In Inclusive Communities, the Supreme Court reached the same conclusion as many of the circuit courts and held that the FHA creates liability under a disparate-impact theory of discrimination as well as under a disparate-treatment theory. Inclusive Communities, 135 S. Ct. at 2525. “The availability of disparate-impact liability” both “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment” and promotes the “removal of artificial, arbitrary, and unnecessary barriers” to housing. Id. at 2522 (internal quotation marks omitted).
But the Supreme Court carefully explained that “disparate-impact liability has always been
properly limited.” Id. Disparate-impact liability under the FHA can be proven under a burden-
shifting framework analogous to that used in employment discrimination cases: the plaintiff must
plead a prima facie case of discrimination, the defendant may rebut by presenting non-
discriminatory reasons for the challenged policy, and the plaintiff bears the ultimate burden of
persuasion. See 24 C.F.R. § 100.500(c); Inclusive Communities,
The Supreme Court explained that there is a “robust causality requirement” at the prima
facie stage: “A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence
demonstrating a causal connection cannot make out a prima facie case of disparate impact.”
*14
Inclusive Communities,
Travelers asserts that under Inclusive Communities’ robust causality requirement, NFHA has failed to state a claim because failing to provide habitational insurance to a landlord is too remote to have any effect on a tenant and because NFHA relies on statistical evidence to demonstrate the disparate impact of Travelers’ policy. As explained below, these arguments are unpersuasive.
There is a large body of case law holding that insurers—including insurers who sell
products to landlords—can be held liable under the FHA, and Inclusive Communities does not call
those cases into question. Courts have long recognized the role of insurance in housing
discrimination. One classic form of racial discrimination is “redlining,” which in the insurance
*15
industry is “charging higher rates or declining to write insurance for people who live in particular
areas.” NAACP v. Am. Fam. Mut. Ins. Co.,
Travelers does not argue that these cases were wrongly decided or attempt to distinguish its factual circumstances from the ones presented there. Rather, it argues that the reasoning in these cases is no longer sound given Inclusive Communities’ “robust causality requirement.” 135 S. Ct. at 2523. But Inclusive Communities said no such thing. The Supreme Court was concerned *16 with ensuring that disparate-impact liability does not lead to “inject[ing] racial considerations into every housing decision” by allowing bare statistics to state a prima facie claim without evidence of a “causal connection,” or by allowing one-time decisions to be challenged as discriminatory policies, such that governments and private parties cannot implement reasonable policy priorities in their housing plans. See id. at 2523–24. But it does not require courts to abandon common sense or necessary logical inferences that follow from the facts alleged. Indeed, quite the opposite—the Supreme Court instructed courts to ensure that disparate-impact liability is confined to removing “artificial, arbitrary, and unnecessary barriers.” Id. at 2524 (internal quotation marks omitted).
The Seventh Circuit explained the clear, non-speculative, and inescapable consequences
that follow from a lack of habitational insurance: “No insurance, no loan; no loan, no house; lack
of insurance thus makes housing unavailable.” NAACP,
To support its contention that the connection between an insurer’s policies and any effect
on tenants is too attenuated to state a claim, Travelers points out that NFHA has not identified any
specific tenant who has been or would be harmed by Travelers’ policy. It is true that NFHA’s
complaint does not identify any individual tenant who has (or is likely to) lose housing due
Travelers’ policy, nor has NFHA identified any building that ceased (or will cease) renting to
tenants who receive vouchers. But this has little legal relevance here. For standing purposes,
NFHA must identify a party with an actual injury—which it has done. For the purpose of stating
a claim, Travelers does not cite any case holding that an organizational plaintiff must identify a
specific tenant harmed by the challenged policy. To the contrary, both the Supreme Court and
lower courts have permitted organizational plaintiffs to proceed by identifying the category of
persons who will be harmed by the challenged policy without naming the specific impacted tenants
(again, once standing has been demonstrated). See, e.g., Gladstone Realtors v. Village of
Bellwood,
*18
Travelers’ next argument is a stronger one: it asserts that NFHA relies on the type of bare
“showing of statistical disparity” that is insufficient for a prima facie claim under Inclusive
Communities. Only a handful of cases since Inclusive Communities have closely examined when
statistical evidence demonstrates a sufficiently close causal connection to state a claim. In Rhode
Island Commission for Human Rights v. Graul, the court noted that “disparate impact is proven
by presentation of evidence compar[ing] those affected by the policy with those unaffected by the
policy.”
In Mhany Management, Inc. v. County of Nassau,
only 4.1% of the overall population . . . and only 2.6% of the population living in [single family]
households.” Id. at 620 (first alteration original) (internal quotation marks omitted). The initial
district court opinion further detailed the statistical evidence, which tended to show that the
challenged zoning rule, as opposed to an alternative zoning rule, “significantly decreased the
potential pool of minority residents likely to move into” the new housing development “in
proportion to the number of non-minorities affected.” Mhany Mgmt., Inc. v. County of Nassau,
And in Avenue 6E Investments, LLC v. City of Yuma,
In contrast, two cases where courts have found that plaintiffs failed to meet their pleading
burden after Inclusive Communities are also instructive. In Boykin v. Fenty,
Travelers asks the Court to rely on Ellis v. City of Minneapolis, No. 14-cv-3045, 2016 WL 1222227 (D. Minn. Mar. 28, 2016). There, the plaintiffs were private landlords of low-income housing who alleged that the city had a policy of over-enforcing housing codes against them, as compared to the relaxed enforcement against publicly owned low-income housing. Id. at *1. Travelers identifies that case as one where plaintiffs alleged that low-income tenants were more likely to be members of a protected class, yet the court rejected the claim because plaintiffs’ complaint “[did] not point to a defendant’s policy and purported disparity and allege facts that a show a causal connection.” Id. at *5.
But Travelers misunderstands the district court’s analysis and does not consider the more
recent decision from the Eighth Circuit on appeal. The district court in Ellis explained that the key
problem with plaintiffs’ allegations was that they failed to show that the city had a policy that
could cause a disparate impact. Id. at *6. Indeed, “Plaintiffs admit[ted] that the units were not up
to code” thus undermining their claim that the city had a policy of unfairly enforcing housing
codes. Id. The Eighth Circuit, on appeal, emphasized this element of the district court’s analysis.
Ellis v. City of Minneapolis,
Here, NFHA has pleaded facts that are far closer to those in Graul, Mhany Management
and Avenue 6E Investments than to Boykin or Burbank. Unlike in Boykin and Burbank, NFHA
did not just allege that some voucher recipients are members of a protected class, but rather pleaded
facts that show that voucher recipients are significantly more likely to be members of a protected
class than is true for the D.C. population as a whole. See Am. Compl. ¶¶ 14–17; Boykin, 650 F.
App’x at 44; Burbank Apt. Tenants Ass’n,
“[T]here is no rigid mathematical formula to show specific disparate impact and the inquiry
is necessarily fact-specific.” Avenue 6E Investments,
The D.C. Human Rights Act identifies several actions that are “unlawful discriminatory practice[s]” if undertaken “wholly or partially for a discriminatory reason based on actual or perceived: race, color, religion, national origin, sex, . . . [or] source of income.” D.C. Code § 2- 1402.21(a). One such category of actions is: “[t]o appraise a property, refuse to lend money, guarantee a loan, purchase a loan . . . or otherwise refuse to make funds available for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property.” Id. § 2-1402.21(a)(3). NFHA argues that Travelers’ policy has a disparate impact based on race, sex, and source of income in violation of this provision of the DCHRA.
*24
Travelers argues that the DCHRA does not cover the issuance of insurance, and therefore
that NFHA may only state a discrimination claim under the D.C. insurance code. Def.’s Mot. to
Dismiss at 21–22. Travelers relies on National Organization for Women (NOW) v. Mutual of
Omaha Insurance Co., Inc.,
Travelers next contends that because the DCHRA is interpreted in accordance with the
FHA, Inclusive Communities’ heightened pleading requirements apply. Def.’s Mot. to Dismiss at
20–23 (citing McCaskill v. Galludet Univ.,
CONCLUSION
For these reasons, Travelers’ motion to dismiss will be denied. A separate order has been issued on this date.
/s/ JOHN D. BATES United States District Judge Dated: August 21, 2017
Notes
[1] As far as the Court is aware, only one court has ever held that the FHA does not cover insurance at all. See
Mackey v. Nationwide Ins. Co.,
[2] Travelers does not cite or discuss this regulation, or present any argument regarding whether this regulation
is entitled to deference under Chevron USA, Inc. v. Nat. Res. Def. Council, Inc.,
[3] Travelers also argues that NFHA cannot show causation because the Housing Choice Voucher program is voluntary for landlords to participate in. The Court need not spend much time on this argument, and does not decide the extent to which participation is voluntary or a landlord’s withdrawal from the program could lead to liability under the FHA. NFHA here has not alleged that any landlord is required to participate in the Housing Choice Voucher
[4] In a footnote, Travelers argues that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011–15, bars NFHA’s
claims. See Def.’s Mot. to Dismiss at 16–17 n.9. The McCarran-Ferguson Act states that “[n]o Act of Congress shall
be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business
of insurance.” 15 U.S.C. § 1012(b). The Supreme Court has explained the threshold requirements for preemption
under that act: (1) the federal law in question must not be “specifically relat[ed] to the business of insurance”; (2) there
is a state law enacted “for the purpose of regulating the business of insurance,”; and (3) application of the federal law
would “invalidate, impair, or supersede the State’s law.” Humana Inc. v. Forsyth,