23-63-528. Acquisitions involving insurers not otherwise covered — Competitive standard.

23-63-528. Acquisitions involving insurers not otherwise covered — Competitive standard. (a) The Insurance Commissioner may enter an order under § 23-63-529(a) with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be substantially to lessen competition in any line of insurance in this state or tend to create a monopoly therein or if the insurer fails to file adequate information in compliance with § 23-63-527. (b) In determining whether a proposed acquisition would violate the competitive standards of subsection (a) of this section, the commissioner shall consider the following: (1) Any acquisition covered under § 23-63-526 involving two (2) or more insurers competing in the same market is prima facie evidence of violation of the competitive standards: (A) If the market is: (i) Highly concentrated and the involved insurers possess the following shares of the market: Insurer A Insurer B Four percent (4%) Four percent (4%) or more Ten percent (10%) Two percent (2%) or more Fifteen percent (15%) One percent (1%) or more Click to view table. (ii) Not highly concentrated and the involved insurers possess the following shares of the market: Insurer A Insurer B Five percent (5%) Five percent (5%) or more Ten percent (10%) Four percent (4%) or more Fifteen percent (15%) Three percent (3%) or more Nineteen percent (19%) One percent (1%) or more Click to view table. (B) A highly concentrated market is one in which the share of the four (4) largest insurers is seventy-five percent (75%) or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than two (2) insurers are involved, exceeding the totals of the two (2) columns in the table is prima facie evidence of violation of the competitive standard in subsection (a) of this section. For the purpose of this subdivision, the insurer with the largest share of the market shall be deemed to be Insurer A; (2) There is a significant trend toward increased concentration when the aggregate market share of any grouping of the largest insurers in the market from the two (2) largest to the eight (8) largest has increased by seven percent (7%) or more of the market over a period of time extending from any base year five (5) to ten (10) years prior to the acquisition up to the time of the acquisition. Any acquisition or merger covered under § 23-63-526 involving two (2) or more insurers competing in the same market is prima facie evidence of violation of the competitive standard in subsection (a) of this section if: (A) There is a significant trend toward increased concentration in the market; (B) One (1) of the insurers involved is one (1) of the insurers in a grouping of such large insurers showing the requisite increase in the market share; and (C) Another involved insurer's market is two percent (2%) or more; (3) For purposes of this subsection: (A) The term “insurer” includes any company or group of companies under common management ownership or control; (B) The term “market” means the relevant product and geographical markets. In determining the relevant product and geographical markets, the commissioner shall give due consideration to, among other things, the definitions or guidelines, if any, promulgated by the National Association of Insurance Commissioners and to information, if any, submitted by the parties to the acquisition. In the absence of sufficient information to the contrary, the relevant product market is assumed to be the direct written insurance premium for a line of business with such a line being that used in the annual statement required to be filed by insurers doing business in this state and the relevant geographical market is assumed to be this state; and (C) The burden of showing prima facie evidence of violation of the competitive standard rests upon the commissioner; and (4)(A) Even though an acquisition is not prima facie violative of the competitive standard under sudivisions (b)(1) and (2) of this section, the commissioner may establish the requisite anticompetitive effect based upon other substantial evidence. (B) Even though an acquisition is prima facie violative of the competitive standard under subdivisions (b)(1) and (2) of this section, a party may establish the absence of the requisite anticompetitive effect based upon other substantial evidence. (C) Relevant factors in making a determination under this subdivision (b)(4) include, but are not limited to, the following: (i) Market shares; (ii) Volatility of ranking of market leaders; (iii) Number of competitors; (iv) Concentration; (v) Trend of concentration in the industry; and (vi) Ease of entry and exit into the market. (c) An order may not be entered under § 23-63-529(a) if: (1) The 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 which would arise from such economies exceed the public benefits which would arise from not lessening competition; or (2) The acquisition will substantially increase the availability of insurance, and the public benefits of such an increase exceed the public benefits which would arise from not lessening competition.