The workplace comments are better understood, not as harassment based on all of these employees’ failure to adhere to some unnamed and unknown gender stereotype, but “simply expressions of animosity or juvenile provocation.” Hamm v. Weyauwega Milk Prod., Inc., 332 F.3d 1058, 1064 (7th Cir. 2003) (quoting Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir.1997)); see also Luke A. Boso, Real Men,37 U. Haw. L. RevHaw. L. Rev. 107 (2015) (“Social scientists . . . commonly find that men harass other men to prove or shore up their own masculinity.”).
A retrocession indirectly “affords protection against or compensation for” an original insurer’s contract with its policyholder. See Transcon. Underwriters Agency, S. R. L. v. Am. Agency Underwriters, 680 F.2d 298, 299 n.2 (3d Cir. 1982). The reinsurer “assigns” to the retrocessionaire “all or a portion of the risk which [the reinsurer] reinsures.” See id. Validus points to authorities indicating that most retrocessions do not directly indemnify the original insurer for any losses or give the original insurer any claim against the retrocessionaire. See Travelers Indem. Co. v. Scor Reinsurance Co., 62 F.3d 74, 76 (2d Cir. 1995); China Union Lines, Ltd. v. Am. Marine Underwriters, Inc., 755 F.2d 26, 30 (2d Cir. 1985); Reinsurance 9, 20 (Robert W. Strain ed., rev. ed. 1997); H. Ernest Feer, Approach to Reinsurance 10-11 (1951); Douglas R. Richmond, Reinsurance Intermediaries: Law and Litigation, 29 U. Haw. L. Rev. 59, 59 (2006). Even though these sources show that some retrocessions do not directly cover the contracts described in paragraphs (1) and (2), they do not resolve whether Congress intended “covering” as used in paragraph (3) to mean only “directly covering” or “directly and indirectly covering.”
Validus Reinsurance, Ltd. v. United States, 415 U.S. App. D.C. 254, 259-60, 786 F.3d 1039, 1044-45 (2015).
We disagree. At the time of this suit, Hawaiʻi, like many states in this circuit, had both judicial and nonjudicial foreclosure regimes. Hawaiʻi law authorized lenders like Chase to bring an action in Hawaiʻi state court to foreclose on the property in the event of a default. See Haw. Rev. Stat. § 667-1.5. Borrowers like the Rundgrens could then raise defenses to the judicial foreclosure proceeding. See id. § 667-4. But Hawaii law also permitted a borrower and lender to agree that the lender could exercise a power of sale should the borrower default. Haw. Rev. Stat. §§ 667-5(a), 667-5.7 (2008 ed.); Lee v. HSBC Bank USA, 121 Hawaiʻi 287, 291, 218 P.3d 775 (2009). When the parties have agreed to use these nonjudicial foreclosure proceedings and the borrower defaults, the lender is contractually and statutorily authorized to commence a public sale of the property without the need to resort to the judicial process. See Haw. Rev. Stat. § 667-5 (2008 ed.). A nonjudicial foreclosure is intended to be “‘relatively quick and inexpensive. It does not require a lengthy time period between the notice of default and foreclosure sale, and does not require court costs and legal fees associated with discovery and drafting of pleadings.'” Lee, 121 Hawaiʻi at 292 (quoting Georgina W. Kwan, Mortgagor Protection Laws: A Proposal for Mortgage Foreclosure Reform in Hawaiʻi, 24 U. Haw. L. Rev. 245, 253 (2001)). In order to halt a nonjudicial foreclosure, the borrower may “impeach by action or otherwise, any foreclosure proceeding” by bringing action “prior to the entry of a new certificate of title.” Haw. Rev. Stat. § 501-118; see also Aames Funding Corp. v. Mores, 107 Hawaiʻi 95, 101, 110 P.3d 1042 (2005). In other words, if the loan documents give the lender the power to proceed by means of nonjudicial foreclosure, a borrower who wants to stop the process may bring an independent action raising claims that provide a legal basis for enjoining the lender from exercising its rights under the contract.