insurance companies as i set forth in my brief they define themselves as insurers in their policies they refer to themselves and as insurers the circuit courts that discuss these types of cases and i acknowledge that there's a little difference in that in the circuits as to whether the exception applies or not and i'm pleased that we have a ninth circuit judge here on who where the ninth circuit came on the other side but even that the first then when we talk i have three to not follow  and therefore they need to they need to post a bond before they before they get to this body but if eight state other than the state in which the r g s chartered is not permitted by federal law to regulate in any way the operation of it are actually how could new jersey possibly prohibit an r r g from participating in court proceedings or otherwise performing functions in new jersey isn't the federal statute pretty broad that  jersey has to keep hands off when it is when the argy is charted charted in another state i think the new jersey the federal statute has an exception and that's what this case is about is the exception under financial responsibility this case was brought pursuant to the exception of financial responsibility therefore i think it's i don't think that the federal statute when you consider the exception to that they they can yes well the statute with respect to our days says you've got to put on your policy notice quote state insolvency guarantee funds are not available for your risk retention groups that's correct well you just told me that well insurance companies are subject to that you're into phone i r jews are not i didn't if i  are the financial responsibility laws of the state of new jersey for example having enough capital on hand and being authorized by the commissioner before they before they drive on the streets of new jersey and that's i think that's the that's that's one of the that's the crux of the case and that's what and that's with the exception to the federal regulation lies well the exception says nothing in this chapter shall preempt the authority of the state circuits that interpreted that the eleventh circuit and the seventh circuit the meters and up the mala case they they dealt with the same language and they indicated that under similar financial responsibility laws these  new jersey has an absolute right and i think under this under under the exception and under the legislative intent of the section as outlined very significantly mirrors and discussing the comments by the centers at the passage these are the kind of federal these are the kind of state financial responsibility laws that the exception was meant to provide when the when the let's let's talk about the private right of action now let's assume you're correct ok what gives an insurance company in new jersey the right to be the enforcer of insurance regulations under court the aktion under new jersey case you know the first your brief that what i think that the legislative intent or i argue that the legislative intent of the of a title seventeenth specifically seventeen seventeen eleven in the new jersey statute gives me a so so therefore they're liable for if any entity is is riding on the streets of new jersey and the taxi company without a legal authority to do that and the director or and corporat damages as a result of their failure to to abide the regulations so that whether or not it's unfortunate or not i'm certainly entitled to damages for their failure to abide the regulations and that's what i think seventeen entity the insurer who the statute was meant to protect to protect policyholders but i searched far and wide and i don't actually isn't that i don't think that's so i don't see where it says it's only to protect policyholders i don't know why it's also not to protect in state insurers who by the regulations and are being harmed by it how do you get over the case in new jersey that talks about the fact they want imply remedies are in for private right of indicated that the statute itself seven hundred seventy eleven gives me that private right of action against directors yeah against it i don't think it's limited in scope i think seven hundred seventeen levin broadly and loudly says that if i'm damage law action even under pursuant to i'm not just private right but they both said you can have a common a common law right of action i think that was under implied warranty or fair dealing that that  that that was why they were able to underbid you on contracts would you have any new jersey in the common law claim to recover your damages for the business you lost because they bid you based on their failure to obey new jersey law i think i would have but what's the difference between this case and that one and in this case i think the difference is under the i r s case there's no particular statute that  permits me to seek damages and i think the case talking about the r s case indicated that that was left to sole remedy of the i r s to to enforce your you're starting unfair competition i'm asserting unfair competition because i think competition is an evolving tort and i think when we talk about unfair practices and unfair commercial morality i think i'm entitled to discuss unfair  initially as i think you heard in some of the the appellant's remarks the argument seems to be that because our genes are involved with insurance they are treated like insurance companies and i respectfully submit that nothing could be further from the truth there is a whole federal and state statutory regime that treats them differently and as a matter of constitutional law there is preemption so all we're talking about is a very narrow window in the federal statute an examination of the state statute what do we need to decide this is a twelve b six motion yes or what is this to be decided on failure state a claim on standing what's well there's both there's failure to see to claim because there is no cause of action and there is no if there's no saying if there's no standing you don't have to go any farther if they're for the two overlap slightly factually but because the reason there is no standing is because the statute was not designed to protect competing insurance companies indeed it was designed to protect risk retention groups against competing insurance companies now just as that analysis precludes standing it also precludes a cause of action because since the statute was designed to protect the risk retention groups and not the competing insurance companies there can be no cause of action that can be brought by the private insurance companies those same facts support both of those arguments which in turn call for a dismissal of the complaint now what about the provision that the  cites with respect to the liability of directors and officers does that not open the door to two civil suits for damages it does not for two reasons firstly the only effect the only exception to preemption is the financial responsibility law which we can discuss in terms of its scope and what it means but there is no case there is nothing in the federal statute and i submit respectfully that there is nothing in the appellants briefs that say that the question as to whether or not there is a cause of action falls within the exception to preemption so if there is no cause of action if the only thing that's not preempted is whether or not the city can do certain financial responsibility laws which i'd like to get to in a moment and the cause of action doesn't exist moreover since you asked and there was question the specific statute on which the appellant relies does not apply that statute if i may read of the portion give us the cite i'm sure it's new jersey seventeen colin seventeen dash eleven and it speaks to directors and officers excuse me directors and corporators of a company organized under seventeen dish thirty three which doesn't apply to risk retention groups and then it says that there is an a suit for obligations incurred by the company by reason of its having transacted any business before it has received legal authority to do so that's not what this case about the plaintiff says hey you're not following financial responsibility laws now we say that's not true and you have misconstrued what that means is that certainly doesn't fall within the language of that statute and there is no dispute that we have legal authority to operate in new jersey in fact the court had been provided and it's in the record with documentation from new jersey department of banking insurance that allowed us to proceed there's no question that we're proceeding lawfully we're not fair dealing because there was a contract because these two parties had taken on voluntarily duties with respect to each other that's not what's happening here there's no purview of contract there's no contract we're competing and there's a federal statute that pro tax us protects us because they want to foster and nurture risk retention groups because it's a good thing for the community i'm sure is it provides cheaper insurance i know it's not in the record but just as a matter of insurance practice our insurance companies a dying breed because of our r g s seems like a strange phenomenon well  i don't think that that's the case i think the opposite i think insurance companies are doing very well i don't have any statistics or words to give you it's my and it's not you're not in the record right it's my impression that insurance companies are doing very well and i i believe that that can be brought by those who are affected by the violation i have a look at the statute and i don't see anything that says that it can be brought by a competing company but i don't see discussion of it so i have to be candid with the court that i can't say i can hold up a prohibition my argument is different than that i'm not trying to duck the question it's just i don't see anything that discuss what up my point is different which is that it only applies to insurance companies when you're operating before receiving permission it is very narrowly under capitalization it doesn't do a capitalization as nothing do with financial laws and i suppose it's an open question as to who could bring it i would argue that the same analysis about whether you have a private cause of action in the context of the risk retention groups statute would apply here because you have to figure out who that's supposed to benefit and if that's supposed to benefit the insurance which i think most insurance law does then another company a competitor would have a cause of action either i hope that's responsive to your question at the end of the day in your honour's look at whether or not there's a cause of action one of the things you have to look at a little was a statute supposed to protect and i do not see anything in the insurance law in the legislative history anything that says we are passing use insurance laws to protect insurance companies the fact of the matter is that all of the insurance lard to protect the insurance because not to be casual or flippant about it because they have our money and if they go g in new jersey have to file papers in order to be authorized i mean make sure i get this right there is a distinction between being authorized and mid that's referenced in so they're probably not authorized but they are yeah yeah i think i think it's i think it's the reverse actually i think that an admitted insurance i think that what happens is if you are in state you're limited and if you're out of state or author us and that's the significance there is i know i'm wrong i apologize there are domestic insurers are authorized out of state insurers are admitted so when we are when he's pointing to before any insurer not authorized to transact business you could say that doesn't apply because there's no way that it out of state or i can get what i'm offering that's correct i think that as i believe your honour's observing that the language that word choice is significant and the aft case that  that distinction shows that it's a meaningful distinction it's not just casual language i did want to point out the risk retention state and it has specific mechanisms and the reason why subsection f is particularly important as it is the commissioner of insurance the ability if you have a question about a foreign risk retention group to go to the charter and state and ask for information to do things if they don't get a sufficient response within sixty days that's significant for a number of reasons first of all this is their right it's your light it's on so if you know none of that's happened and the presence of that statute terms of the interplay between risk retention groups and licensed carriers in new jersey and in the states generally i've been involved in insurance regulation for close to twenty years and i can tell you that as a general proposition there are only a small percentage of rich risk retention groups operating in any given state there are myriad reasons for not the least of which is we are not protected by guarantee fun coverage it was set up by the federal government in order to address a situation where the licensed carriers were not providing insurance for product liability and therefore there's a small niche that's met but risk repents or groups are not battling at the ramparts taking over the insurance industry in any state i'm just curious thank i think it's something some respect it is part of the record and i want to answer your question pointing to the record judge or them about the dying breed if you look at my amended complaint that i filed i indicated the amended complaint sets forth that prior s coming into the state and i believe two thousand and four my client had four hundred and seven taxicab companies as as clients and after two years it was competition and everyone's happy to have competition that's why we live in this country but but there's also they set forth specifically an exception to the fed to the exemption and and i know that my friends on the si or are relying on and and pointing to the access to the exemption but there's an exception and it's a broad exception for financial response for any statute seeking financial risk where you have to buy financial responsibility for state can regulate with respect to that but you're saying that the insurance laws apply and there's seems to me that surance vs argue your two different animals insurance versus our under the under the federal under the risk retention act they define insurance and origin as insurance companies it's what they are they insure and i think that new jersey treats the new jersey doesn't treat them new jersey doesn't treat some no differently than florida mir's or wisconsin upper mark they treat them the same they're responsible there's financial responsibility laws on the books now if i don't have a private right of action and council and  you ask the question can you have a common law action when the violation is simply a violation of that statute and the answer and gave us was yes they can so if we demonstrate as we have been in the papers that for example ocean doesn't have the capital requirements there's not the net cash available that's required by the statutes and we and that's part of the record and because of that they could operate much chief and provide much cheaper process with damage so if we don't have a private cause of action we certainly