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In addition to dramatically changing the policies of former President Trump on the pandemic, the economy, immigration, and other key issues, the Biden Administration is likely to substantially increase the federal government’s oversight of the insurance industry in at least two ways. First, by regulating non-bank companies that own insurers, and, second, through HUD, scrutinizing homeowners insurers for discriminatory underwriting, rating, and claims practices.
A. The Federal Reserve May Again Supervise Non-Bank Companies Which Own Insurers
The federal Financial Stability Oversight Council, under the leadership of Treasury Secretary Yellen, will probably revive the Obama Administration view that large financial firms that own operating insurance companies are fit candidates for designation as “systemically important financial institutions,” whose solvency will ultimately be regulated by the Federal Reserve.
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Every change in presidential administration results in shifts to agencies’ policy priorities and enforcement efforts. In a Biden Administration, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”), in particular, is expected to undergo significant changes. Headlines will focus on potential replacements of the CFPB Director, an issue which has been controversial in the past and may take months to address through the nomination and confirmation process in 2021.[i] But equally important will be a shifting enforcement focus: we anticipate that, under President-Elect Biden, the CFPB will revive the “disparate impact doctrine” (the “Doctrine”) as a means for curtailing business practices that result in racial disparities, whether intended or not. Although there has been significant debate about the Doctrine’s validity as applied to the Equal Credit Opportunity Act of 1974 (“ECOA”), codified at 1