George Fabe, Superintendent of Insurance, State of Ohio v. United States Department of the Treasury Mitchell A. Levine, Assistant Commissioner

The majority correctly phrases the narrow issue presented to us for review as “whether the Ohio insurance liquidation priority statute is a state law regulating the ‘business of insurance’ within the meaning of the McCarran-Ferguson Act.” Maj. op. at 343. In my view, however, the majority attaches too broad an interpretation to the phrase “the business of insurance”, and as a result incorrectly concludes that Ohio’s liquidation priority scheme is not subject to federal preemption. Such a holding fails to comport with relevant case-law from other Courts of Appeals and the U.S. Supreme Court. I…