(a) For purposes of this section, (1) “acquisition” includes any agreement, arrangement or activity the consummation of which will result in a person acquiring, directly or indirectly, the control of another through the acquisition of voting securities, assets or bulk reinsurance or through a merger, and (2) “involved insurer” means (A) an insurance company that acquires or is acquired by another person, (B) is affiliated with an insurance company that acquires or is acquired by another person, or (C) an insurance company that is the result of a merger.
(b) The provisions of this section shall apply to any acquisition in which there will be a change of control of an insurance company authorized to do business in this state, except for the following:
(1) A purchase of securities solely for investment purposes, provided such securities are not used by voting or otherwise to cause or attempt to cause substantial reduction of competition in any insurance market in this state. If a purchase of securities results in a presumption of control as set forth in subdivision (3) of subsection (b) of section 38a-129, such purchase shall be deemed not to be solely for investment purposes unless (A) the insurance regulatory official of such insurance company's state of domicile accepts a disclaimer of control from such insurance company or such regulatory official affirmatively finds that control does not exist, and (B) such regulatory official communicates such disclaimer or affirmative finding to the commissioner;
(2) The acquisition of a person by another person when neither person is directly or through affiliates primarily engaged in the business of insurance;
(3) The acquisition of an affiliate;
(4) An acquisition if, as an immediate result of such acquisition, (A) the combined market share of the involved insurers will not exceed five per cent of the total market in any market, (B) there will be no increase in any market share, or (C) (i) the combined market share of the involved insurers will not exceed twelve per cent of the total market in any market, and (ii) the market share will not increase more than two per cent of the total market in any market;
(5) An acquisition for which a preacquisition notification would be required solely due to the resulting effect on the ocean marine insurance line of business in this state;
(6) An acquisition of an insurance company that is affirmatively determined by the insurance regulatory official of such insurance company's state of domicile to be in failing condition and (A) there is a lack of a feasible alternative to improving such condition, (B) the public benefits of improving such insurance company's condition through the acquisition exceed the public benefits that would arise from not causing a reduction in competition in this state, and (C) such regulatory official has communicated such determination and findings to the Insurance Commissioner.
(c) For an acquisition not exempt under subsection (b) of this section, the acquiring party shall file a preacquisition notification in accordance with this section and the acquired party may file a preacquisition notification. The commissioner shall treat any information filed under this subsection as confidential in the same manner as provided under section 38a-137.
(1) The preacquisition notification shall be in such form and contain such information as the National Association of Insurance Commissioners prescribes. The commissioner may require additional material and information the commissioner deems necessary, including, but not limited to, the opinion of an economist as to the impact of the proposed acquisition on competition in this state, to evaluate whether the proposed acquisition will violate the competitive standard described in subsection (d) of this section.
(2) There shall be a waiting period after the acquiring party files the preacquisition notification. Such waiting period shall begin on the date the commissioner receives the preacquisition notification and shall end on the thirtieth day after such date or upon termination by the commissioner of such waiting period, whichever is earlier. Prior to the end of the waiting period, the commissioner may require, on a one-time basis, the acquiring party or the acquired party to submit additional needed information relevant to the proposed acquisition, in which case the waiting period shall end on the thirtieth day after the commissioner receives the additional information or upon termination by the commissioner of such waiting period, whichever is earlier.
(d) (1) For a proposed acquisition not exempt under subsection (b) of this section, the commissioner shall evaluate whether such proposed acquisition will reduce substantially competition in any line of insurance business in this state or tend to create a monopoly in this state. In making such evaluation, the commissioner shall consider the percentages of market share the involved insurers possess and the market in which the involved insurers compete.
(A) (i) With respect to an acquisition involving more than two involved insurers, if a comparison of the percentage of market share of the insurance company with the largest market share, designated as Insurer A, against each involved insurer shows for any such comparison that the percentages exceed those in the tables set forth in this subparagraph, such showing shall be prima facie evidence of a violation of the competitive standards described in this subdivision. Percentages not shown in the tables shall be interpolated proportionately to the percentages shown:
(I) In a highly concentrated market and the involved insurers possess the following shares of the market:
| Insurer A | Insurer B |
| 4% | 4% or more |
| 10% | 2% or more |
| 15% | 1% or more |
or;
(II) In a market not highly concentrated and the involved insurers possess the following shares of the market:
| Insurer A | Insurer B |
| 5% | 5% or more |
| 10% | 4% or more |
| 15% | 3% or more |
| 19% | 1% or more |
(ii) For purposes of this subparagraph, a highly concentrated market is one in which the share of the four largest insurance companies is seventy-five per cent or more of the market.
(B) (i) An acquisition involving two or more involved insurers competing in the same market shall be prima facie evidence of a violation of the competitive standards described in this subdivision if (I) there is a significant trend toward increased concentration in the market, (II) one of the involved insurers is included in a grouping of large insurance companies that shows the increase in market share specified in subparagraph (B)(ii) of this subdivision, and (III) another involved insurer's market share is two per cent or more.
(ii) For purposes of this subparagraph, there is a significant trend toward increased concentration in the market when the aggregate market share for any grouping of the largest insurance companies in the market, from the two largest to the eight largest, has increased by seven per cent or more of the market over a period extending from any base year not less than five years and not more than ten years prior to the proposed acquisition.
(2) For purposes of subdivision (1) of this subsection, “market” means the relevant product and geographical markets. In determining the relevant product and geographical markets, the commissioner shall give due consideration to (A) definitions or guidelines, if any, promulgated by the National Association of Insurance Commissioners, (B) information submitted, if any, by an acquiring party or an acquired party, and (C) any other information the commissioner deems relevant. In the absence of sufficient information to the contrary, the relevant product market shall be the direct written insurance premium for a line of business, such line being that used in the annual statement insurance companies doing business in this state are required to file with the commissioner, and the relevant geographical market shall be this state.
(3) (A) An acquiring party or an acquired party may rebut a prima facie violation set forth in subdivision (1) of this subsection based on substantial evidence of the absence of the requisite anticompetitive effect. Factors relevant to such rebuttal include, but are not limited to, the involved insurers' market shares, the volatility of market leader rankings, the number of competitors in the market, the concentration and the trend in concentration in the insurance industry and ease of entry to and exit from the market.
(B) The commissioner may find, based on substantial evidence, a violation of the competitive standards described in subdivision (1) of this subsection that is not a prima facie violation as set forth in said subdivision (1).
(e) (1) (A) If the commissioner finds that a proposed acquisition violates the competitive standards described in subdivision (1) of subsection (d) of this section or if an acquiring party fails to file or fails to provide adequate information in the preacquisition notification required under subsection (c) of this section, the commissioner may issue an order, after notice and hearing, (i) directing an involved insurer to cease and desist from doing business in this state with respect to any line of insurance involved in the violation, or (ii) denying the application of an involved insurer for a license to do business in this state.
(B) The commissioner shall not issue such order unless (i) there is a hearing, (ii) notice of the hearing is provided to the involved insurers prior to the end of the waiting period specified in subsection (c) of this section and not less than fifteen days prior to the hearing, and (iii) the hearing is concluded and the order issued not later than sixty days after the date the acquiring party filed the preacquisition notification under subsection (c) of this section. Any such order shall be accompanied by a written decision by the commissioner setting forth findings of fact and conclusions of law.
(C) Any person who violates a cease and desist order of the commissioner may, after notice and hearing, be fined not more than ten thousand dollars for each day of such violation or be subject to suspension or revocation of such person's license or both.
(D) An order issued pursuant to this subdivision shall not apply if the proposed acquisition is not consummated.
(2) The commissioner shall not issue an order under subdivision (1) of this subsection if:
(A) The proposed acquisition will yield substantial economies of scale or economies in resource utilization that cannot be feasibly achieved in any other way and the public benefits that would arise from such economies exceed the public benefits that would arise from not causing a reduction in competition in this state; or
(B) The proposed acquisition will substantially increase the availability of insurance in this state and the public benefits of such increase exceed the public benefits that would arise from not causing a reduction in competition in this state.
(f) Any person that fails to make a filing required under this section and fails to demonstrate a good faith effort to comply with such filing requirement shall be fined not more than fifty thousand dollars.
(1969, P.A. 444, S. 3; P.A. 12-103, S. 3.)
History: Sec. 38-39c transferred to Sec. 38a-131 in 1991; P.A. 12-103 replaced former provisions permitting person required to file information statement to use a registration statement under Securities Act of 1933 or Securities Exchange Act of 1934 with Subsecs. (a) to (f) re acquisitions and preacquisition notifications.
Annotation to former section 38-39c:
Cited. 184 C. 352.