Monday, August 12, 2019

No. 326: Robert Mueller, Donald Trump, William Barr, Jerrold Nadler, Doug Collins, Adam Schiff, and Devin Nunes

Blogger's Note
I completed this post before President Trump's verbal attacks on Chairman Cummings and Baltimore, before the resignations of Director Coats and Principal Deputy Director Gordon, before the mass shootings in El Paso and Dayton, before the mass raids in Mississippi, and before the Strzok and McCabe lawsuits against the DOJ.

Background
On July 24, 2019, I watched the televised hearings at which Robert S. Mueller III, the former Special Counsel, testified before the House Judiciary Committee in the morning and the House Intelligence Committee in the afternoon. Here I discuss the hearings.

On May 9, 2017, President Donald Trump fired James Comey, Director of the Federal Bureau of Investigation. On May 17, 2017, Deputy Attorney General Rod Rosensteim appointed Mueller as Special Counsel overseeing an investigation into allegations of Russian interference in the 2016 U.S. presidential election and related matters.

On March 22, 2019, Mueller submitted his report to Attorney General William P. Barr. On April 18, 2019, Barr released the report to the public, with redactions. On May 29, 2019, Mueller resigned as Special Counsel, closed his office, made a ten-minute oral statement to the public, and took no questions.

The Barr Memorandum
On June 8, 2018, Barr, then a private citizen, sent an unsolicited memorandum to Rosenstein and Assistant Attorney General Steve Engel about "Mueller's 'Obstruction' Theory." Here is the beginning of the memorandum (the full memorandum is in the complimentary package offered at the end of this post):
I am writing as a former official deeply concerned with the institutions of the Presidency and the Department of Justice. I realize that I am in the dark about many facts, but I hope my views may be useful.
It appears Mueller's team is investigating a possible case of "obstruction" by the President predicated substantially on his expression of hope that the [sic] Comey could eventually "let ... go" of its [the FBI's?] investigation of Flynn and his action in firing Comey. In pursuit of this obstruction theory, it appears that Mueller's team is demanding that the President submit to interrogation about these incidents, using the threat of subpoenas to coerce his submission.
Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller [has?] a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the [Justice?] Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.
Six months later, on December 7, 2018, President Trump rewarded Barr for the unsolicited memorandum by nominating him to succeed Jefferson B. Sessions III as U.S. Attorney General. On February 14, 2019, the Senate confirmed Barr as Attorney General, thus placing him in charge of the Mueller investigation, on a largely party line vote of 54 to 45.

The Nadler Opening Statement
Chairman Jerrold Nadler (D-NY) of the House Judiciary Committee conducted the Committee's morning hearing on July 24, 2019. Here is the beginning of his opening statement (the full statement is in the complimentary package offered at the end of this post):
Director Mueller, thank you for being here. I want to say just a few words about our themes today: responsibility, integrity, and accountability. Your career, for example, is a model of responsibility. You are a decorated Marine officer. You were awarded a Purple Heart and the Bronze Star for valor in Vietnam. You served in senior roles at the Department of Justice and, in the immediate aftermath of 9/11, you served as Director of the FBI.
Two years ago, you returned to public service to lead the investigation into Russian interference in the 2016 election. You conducted that investigation with remarkable integrity. For 22 months, you never commented in public about your work—even when you were subjected to repeated and grossly unfair personal attacks. Instead, your indictments spoke for you, and in astonishing detail. Over the course of your investigation, you obtained criminal indictments against 37 people and entities.
The Collins Opening Statement
Doug Collins (R-GA) is Ranking Member of the House Judiciary Committee. Here is the beginning of his opening statement at the morning hearing on July 24, 2019 (the full statement is in the complimentary package offered at the end of this post):
For two years leading up to the release of the Mueller report and in the three months since, Americans were told first what to expect, and then what to believe. Collusion, we were told, was in plain sight, even if the special counsel's team didn't find it. When Mr. Mueller produced his report, and Attorney General Barr provided it to every American, we read no American conspired with Russia to interfere in our elections, but learned of the depths of Russia's malice toward America.
We are here to ask serious questions about Mr. Mueller's work, and we will do that. After an extended, unhampered investigation, today marks an end to Mr. Mueller's involvement in an investigation that closed last April. The burden of proof for accusations that remain unproven is extremely high—especially in light of the special counsel's thoroughness.
The Mueller Morning Statement
On July 24, 2019, at the morning hearing before the House Judiciary Committee, Mueller made an opening statement. Here is the beginning of the statement (the full statement is in the complimentary package offered at the end of this post):
Good morning Chairman Nadler, Ranking Member Collins and members of the Committee. As you know, in May 2017, the Acting Attorney General asked me to serve as Special Counsel. I undertook that role because I believed that it was of paramount interest to the nation to determine whether a foreign adversary had interfered in the presidential election.
As the Acting Attorney General said at the time, the appointment was "necessary in order for the American people to have full confidence in the outcome." My staff and I carried out this assignment with that critical objective in mind: to work quietly, thoroughly, and with integrity so that the public would have full confidence in the outcome.
The order appointing me as Special Counsel directed our Office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign. It also included investigating efforts to interfere with, or obstruct, the investigation.
The Schiff Opening Statement
On July 24, 2019, Chairman Adam Schiff (D-CA) of the House Intelligence Committee conducted the afternoon hearing. Here is the beginning of his opening statement (the full statement is in the complimentary package offered at the end of this post):
At the outset and on behalf of my colleagues, I want to thank you, Special Counsel Mueller, for a lifetime of service to the country. Your report, for those who have taken the time to study it, is methodical and it is devastating, for it tells the story of a foreign adversary's sweeping and systematic intervention in a close U.S. presidential election. That should be enough to deserve the attention of every American, as you well point out. But your report tells another story as well. For the story of the 2016 presidential election is also a story about disloyalty to country, about greed, and about lies. Your investigation determined that the Trump campaign—including Trump himself—knew that a foreign power was intervening in our election and welcomed it, built Russian meddling into their strategy, and used it.
Disloyalty to country. Those are strong words, but how else are we to describe a presidential campaign which did not inform the authorities of a foreign offer of dirt on their opponent, which did not publicly shun it, or turn it away, but which instead invited it, encouraged it, and made full use of it?
That disloyalty may not have been criminal. Constrained by uncooperative witnesses, the destruction of documents and the use of encrypted communications, your team was not able to establish each of the elements of the crime of conspiracy beyond a reasonable doubt, so not a provable crime, in any event. But, I think, maybe, something worse. A crime is the violation of a law written by Congress. But disloyalty to country violates the very obligation of citizenship, our devotion to a core principle on which our nation was founded, that we, the people, not some foreign power that wishes us ill, we decide, who shall govern us.
The Nunes Opening Statement
Devin Nunes (R-CA) is Ranking Member of the House Intelligence Committee. Here is the beginning of his opening statement at the afternoon hearing (the full statement is in the complimentary package offered at the end of this post):
Welcome, everyone, to the last gasp of the Russian collusion conspiracy theory, as the Democrats continue to foist this spectacle on the American people as well as on you Mr. Mueller. As the American people may recall, the media first began spreading this conspiracy theory in the spring of 2016 when Fusion GPS, funded by the Democratic National Committee and the Hillary Clinton Campaign, started developing the Steele dossier, a collection of outlandish accusations that Trump and his associates were Russian agents. Fusion GPS, Steele, and other confederates fed these absurdities to naive or partisan reporters and to top officials in numerous government agencies including the FBI, the Department of Justice, and the State Department. Among other things, the FBI used dossier allegations to obtain a warrant to spy on the Trump Campaign.
Despite acknowledging dossier allegations as being "salacious and unverified," former FBI Director James Comey briefed those allegations to President Obama and President-elect Trump. Those briefings conveniently leaked to the press, resulting in the publication of the dossier and launching thousands of false press stories based on the word of a foreign ex-spy—one who admitted he was "desperate" that Trump lose the election and who was eventually fired as an FBI source for leaking to the press. After Comey himself was fired, by his own admission, he leaked derogatory information on President Trump to the press for the specific purpose, and successfully so, of engineering the appointment of Special Counsel, Robert Mueller.
The Mueller Afternoon Statement
On July 24, 2019, at the afternoon hearing before the House Intelligence Committee, Mueller made an opening statement. Here is the beginning of the statement (the full statement is in the complimentary package offered at the end of this post):
Good afternoon Chairman Schiff, Ranking Member Nunes, and members of the Committee. I testified this morning before the House Judiciary Committee. I ask that the opening statement I made before that Committee be incorporated into the record here.
I understand that this Committee has a unique jurisdiction, and that you are interested in further understanding the counter-intelligence implications of our investigation. So let me say a word about how we handled the potential impact of our investigation on counter-intelligence matters.
As we explain in our report, the Special Counsel regulations effectively gave me the role of a U.S. Attorney. As a result, we structured our investigation around evidence for possible use in prosecution of federal crimes. We did not reach what you would call "counter-intelligence conclusions."
We did, however, set up processes in the office to identify and pass counter-intelligence information onto the FBI. Members of our office periodically briefed the FBI about counter-intelligence information. In addition, there were agents and analysts from the FBI who were not on our team, but whose job it was to identify counter-intelligence information in our files and disseminate that information to the FBI.
For these reasons, questions about what the FBI has done with the counter-intelligence information obtained from our investigation should be directed to the FBI.
The Trump Questions and Responses
During the July 24, 2019 hearings, some lawmakers made reference to the written responses Trump provided under oath to Mueller's written questions. There were four groups of questions: (1) June 9, 2016 Meeting at Trump Tower, (2) Russian Hacking/Russian Efforts Using Social Media/Wikileaks, (3) The Trump Organization Moscow Project, and (4) Contacts with Russia and Russia-Related Issues During the Campaign. For example, here are question 1(f) and the response to it:
Question: Did you learn of any communications between Donald J. Trump, Jr., Paul Manafort, or Jared Kushner and any member or representative of the Agalarov family, Natalia Veselnitskaya, Rob Goldstone, or any Russian official or contact that took place after June 9, 2016 and concerned the June 9 meeting or efforts by Russia to assist the campaign? If yes, describe who you learned the information from, when, and the substance of what you learned.
Response: I do not recall being aware during the campaign of communications between Donald J. Trump, Jr., Paul Manafort, or Jared Kushner and any member or representative of the Agalarov family, Robert Goldstone, Natalia Veselnitskaya (whose name I was not familiar with), or anyone I understood to be a Russian official.
All the questions and responses are in Appendix C to Volume 2 of the Mueller report. The appendix is in the complimentary package offered at the end of this post.

General Observations
I found the Mueller hearings fascinating in some respects, and disappointing in other respects. Mueller handled himself as the patriot he is, but he showed his age. The hearings were held exactly two weeks before his 75th birthday.

Mueller had made it clear that his report was his testimony, and that he would not go beyond the report. Nonetheless, on the day before the hearings, he received a letter from the Justice Department instructing him on what he could and could not say. I am not aware of Mueller's personal reaction to the letter, but I found the letter insulting.

The lawmakers, each limited to five minutes, tried to squeeze in as many questions as possible. The result was that they often read a lengthy paragraph from the report very rapidly and asked Mueller about it. He had no opportunity to read the paragraph for himself, and therefore he often was forced to say that if it is in the report, he agreed with it.

At one point a lawmaker asked Mueller whether the Russians were still meddling. He responded that they certainly were, and that they would continue to meddle through the upcoming election.

At one point a lawmaker questioned the presence on Mueller's staff of several individuals who had made contributions to Democrats. Mueller fired back that not once in his entire career had he ever asked a prospective colleague about his or her political affiliation. He said he always tried to hire the people best qualified to handle the job.

Available Material
I am offering a 55-page complimentary PDF consisting of the Barr memorandum (19 pages), the Nadler opening statement (2 pages), the Collins opening statement (2 pages), the Mueller opening statement at the morning hearing (3 pages), the Schiff opening statement (2 pages), the Nunes opening statement (2 pages), the Mueller opening statement at the afternoon hearing (2 pages), and Appendix C to Volume 2 of the Mueller report (23 pages). Email jmbelth@gmail.com and ask for the August 2019 package about the Mueller hearings.

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Monday, August 5, 2019

No. 325: Long-Term Care Insurance and the Lawsuit against the California Public Employees' Retirement System

In No. 227 (July 27, 2017), I discussed a class action lawsuit against the California Public Employees' Retirement System (CalPERS). The case relates to large premium increases CalPERS imposed on owners of long-term care (LTC) insurance policies. During the past two years I have received many inquiries about the status of the case. An inquiry I received recently prompted me to prepare this update on the case. (See Wedding v. CalPERS, Superior Court of California, County of Los Angeles, Case No. BC517444.)

Early Developments
In August 2013 several plaintiffs filed the original complaint after CalPERS notified them of an 85 percent increase in the premiums for their LTC insurance policies. In January 2014 they filed an amended complaint. In March 2017 CalPERS filed a motion for summary judgment or, in the alternative, summary adjudication. In June 2017 the then judge in the case handed down a ruling. She denied the motion for summary judgment but granted the motion for summary adjudication. She allowed the case to proceed with three of the original causes of action, and it appeared the trial would begin early in 2018. The complimentary package I offered in No. 227 is still available.

The Current Situation
The case now is in the hands of California Superior Court Judge William F. Highberger. On July 1, 2019, he filed a draft of a proposed statement of decision. Here is the concluding section:
The Court rules for Plaintiffs on the interpretation of the "Inflation-Protection" clauses in the EOC [evidence of coverage document] and for CalPERS on the premium-adjustments permitted by the "Guaranteed Renewable" clauses (subject, however, to the override of the Inflation-Protection promise where the two terms appear to conflict). The Court agrees with CalPERS on the Cross-Claim for Declaratory Relief that CalPERS can subject insureds with Inflation-Protection benefits to future rate increases (and retroactive rate increases which are less than the disputed 85 percent increase actually imposed) insofar as CalPERS can persuade the fact-finder (now or in future litigation) that such rate increases are driven by cost factors other than the inherent escalation of daily/monthly limits on Inflation-Protection benefits over time as long as those increases are spread over the entire risk pool and not selectively imposed to a greater-than-average degree on the Inflation-Protection insureds.
Objections to this Proposed Statement of Decision must be served and filed within fifteen (15) calendar days plus two (2) court days for e-service from this date.
A Trial-Readiness Conference is set for August 21, 2019 at 10:00 a.m. with Joint Report due August 19, 2019. Final Status Conference set for October 3, 2019 at 10:00 a.m. Jury Trial (10 days) set for October 30, 2019 at 10:00 a.m. If the parties are making any progress with their settlement negotiations, the Court will be cooperative in continuing the trial date.
General Observations
When I wrote about this case in 2017, it had been going for four years. At the time, I did not believe that the parties would allow the case to go to trial, but I did not say so. Now that the case has been going for six years, I feel the same way. I think the parties, especially CalPERS, will not allow the case to go to trial. Should the parties reach a settlement, I think the terms of the settlement will be made public. I plan to continue reporting on the case.

Available Material
I am offering a 35-page complimentary PDF containing the draft of Judge Highberger's proposed statement of decision. Email jmbelth@gmail.com and ask for the August 2019 package about the Wedding v. CalPERS case.

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Monday, July 29, 2019

No. 324: LEAP Revisited

In No. 322 (July 12, 2019), I discussed Pamela Yellen's "Bank-on-Yourself" system. In response I received many comments from readers. Some mentioned other "Be Your Own Banker" systems, some mentioned the A. L. Williams (now Primerica) organization, and some mentioned the "Lifetime Economic Acceleration Process" (LEAP). One reader shared with me a 2016 order from the Ohio Department of Insurance revoking the license of an Ohio agent who had used the LEAP system. When I looked into it, I discovered that Guardian Life Insurance Company of America had filed a lawsuit against the same Ohio agent. Here I discuss the Ohio order, the Guardian lawsuit, and my previous writings about LEAP.

The Ohio Order
On April 28, 2016, Mary Taylor, director of the Ohio Department of Insurance at the time, issued an order revoking the insurance agent's license of Brian S. Willms. Here, with citations omitted, are three of the 19 findings:
6. The Respondent [Willms] is an advocate of the whole life sales strategy known as Life Economic Acceleration Process (commonly referred to as "LEAP"). The first step in the LEAP process is to determine the "appropriate" amount of whole life insurance the customer needs so they are protected to full economic value of their life. LEAP is not accepted as a mainstream life insurance concept in the industry.
7. LEAP opposes maintaining a growing equity in real estate, opposes 529 Plan investments, rejects the value of compound interest, recommends stopping of payments into 401(k), and over time cashing out ("paying down") all brokerage accounts and other investments.
8. Respondent testified that LEAP requires a number of assumptions and calculations and financial analysis. Respondent testified "whatever we do has to increase wealth, reduce risk, create no additional out-of-pocket outlay for the client. It has to protect the client better, and if we can't prove it using math and science, we don't do it, period."
Willms appealed the order to a state court in Ohio. On October 5, 2018, Judge Stephen L. McIntosh affirmed the order. Here, with citations omitted, are the two concluding paragraphs:
The State of Ohio has a right to ensure that insurance agents are properly engaged in the business of insurance. The business of insurance is one of public interest, and therefore the State has an interest in regulating the industry. Hence, statutes designed to regulate the business of insurance should be liberally construed to effect the purpose to be served and to prevent and correct evils growing out of the conduct of such business. The purpose of R.C. 3905.14(B) is to grant the Ohio Department of Insurance the ability to suspend or revoke the licenses of those who are not properly engaged in the business of insurance.
Having considered the record ... the Court finds that the Order ... revoking [Willms'] resident insurance agent license, is supported by reliable, probative, and substantial evidence and is in accordance with law. The Order is therefore AFFIRMED.
Those interested should read the order and the affirmation. They are in the complimentary package offered at the end of this post.

The Guardian Lawsuit
On January 22, 2015, Guardian filed a lawsuit in federal court against Willms Financial Network, LLC (WFN) and Willms. The case was assigned to U.S. District Judge John G. Koeltl and Magistrate Judge James L. Cott. On April 8, 2015, Guardian filed an amended complaint, which is in the complimentary package offered at the end of this post.

Guardian said that, from February 2002 and continuing until January 2005, Willms was career development manager in Guardian's central Ohio agency in Columbus. From February 2005 until October 2010, WFN was corporate general agent and Willms was general agent in the central Ohio agency. From October 2010, Willms was agency supervisor in the central Ohio agency.

Over the years, the defendants entered into interest-bearing promissory notes and personal notes with Guardian. In October 2010 Guardian terminated its relationship with the defendants. By December 2014 the defendants' interest-bearing indebtedness to Guardian was about $445,000. Guardian asked the court to enter judgment against the defendants in that amount, plus post-judgment interest and costs.

In February 2017 Willms filed a petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Ohio. In June 2017 WFN filed a petition for Chapter 7 bankruptcy. In December 2017 the Guardian lawsuit was stayed. In April 2018 the bankruptcy court closed the Chapter 7 proceedings. On April 24, 2018, Judge Koeltl issued an order dismissing with prejudice (permanently) Guardian's claims against Willms on consent of the parties, and referred Guardian's claims against WFN to Magistrate Judge Cott to conduct an inquest into damages.

On May 21, 2018, Guardian filed a statement of damages, and on September 21, 2018 filed a modified statement of damages. In the latter, Guardian sought damages of about $568,000 for loan debt and about $1.4 million for amounts paid by Guardian to settle eight customer complaints, for a total of about $1.99 million.

On December 19, 2018, Magistrate Judge Cott recommended that Guardian be awarded damages of about $568,000 for loan debt, and that Guardian receive no damages for the settlement of customer complaints. At the end of a discussion of the customer settlements, here, with citations omitted, is a summary of why Magistrate Judge Cott denied damages for the settlement of customer complaints:
In sum, the Court lacks confidence in Guardian's submissions in light of these unsupported and unexplained requests for damages. The Court has already provided an additional opportunity for Guardian to supplement its inquest submission, and explicitly requested additional evidence, authorities, and legal arguments. Nonetheless, Guardian has still failed to substantiate its damages with reasonable certainty. Accordingly, on this record the Court should not award any damages for the customer complaint settlement debt.
On January 22, 2019, Judge Koeltl adopted Magistrate Judge Cott's recommendations, entered judgment for Guardian in the amount of $568,000, and closed the case. The next day Judge Koeltl entered a default judgment in favor of Guardian and against WFN in the amount of $568,000. Magistrate Judge Cott's recommendations are in the complimentary package offered at the end of this post. (See Guardian v. WFN, U.S. District Court, Southern District of New York, Case No. 1:15-cv-461.)

On July 14, 2019, I wrote to Guardian asking whether LEAP is currently affiliated with Guardian, and if so, for information about the relationship. I received no reply.

LEAP and the Forum
I published The Insurance Forum for 40 years, from January 1974 through December 2013. Articles about LEAP appeared in the August 2001, October 2001, December 2001, April 2002, June 2002, July 2002, August 2002, October 2002, November 2002, January 2003, and March 2003 issues. Those issues are available for purchase on our website at theinsuranceforum.com.

Among the topics in the Forum articles are descriptions of LEAP, my perceptions of LEAP's shortcomings, the "maximization" technique under which the LEAP agent tries to sell the maximum amount of whole life the insurance company will issue on the life of the client, the LEAP "moves" involving liquidation or pledging of all the client's other assets, LEAP's comments on my articles, my unsuccessful efforts to obtain information directly from LEAP, LEAP and the Insurance Marketplace Standards Association, LEAP and Guardian Life, LEAP and John Hancock, LEAP and New York Life, LEAP and Northwestern Mutual, LEAP and Professor Solomon S. Huebner, LEAP and the Wharton School, and "From the Mailbag" comments from LEAP supporters and critics.

In the December 2001 issue, I offered a package containing my correspondence with LEAP. The package is not available because I discarded it some time ago, along with my other LEAP material. I had thought the March 2003 article was my last about LEAP.

LEAP and Penn Mutual
Several years ago I learned that LEAP had become an affiliate of Penn Mutual Life Insurance Company. I did not report that development. On July 15, 2019, I wrote to Penn Mutual asking whether LEAP is still an affiliate, and if so, for information about the relationship. I received no reply.

General Observations
The LEAP and Yellen systems have similarities. Both involve heavy use of whole life insurance policies. Both disparage all other methods of wealth accumulation. Both use assumptions of questionable validity. Both obscure the details about how the systems are supposed to work.

The recent developments regarding LEAP caught me by surprise and prompted me to prepare this blog post. The developments are a reminder of the long-term nature of the life insurance business and the long-term consequences of questionable activities in the business.

Available Material
I am offering a complimentary 74-page PDF consisting of the Ohio order (7 pages), the Ohio affirmation (26 pages), the Guardian amended complaint (19 pages), and the Cott recommendations (22 pages). Email jmbelth@gmail.com and ask for the July 2019 LEAP package.

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Monday, July 22, 2019

No. 323: Kennedy and Trump: Their Inaugural Addresses

In No. 221 (June 8, 2017), I discussed what I called a "sparkling gem" of a 167-page book by David McCullough, one of my favorite authors. The book is entitled The American Spirit: Who We Are and What We Stand For. The book is a collection of 15 of his many speeches at historic events and at college commencements. He does not mention President Donald Trump in his book, but there can be no doubt about what prompted him to assemble the book. As examples, in the introduction he mentions "this time of uncertainty and contention" and "such troubled uncertain times."

In my earlier discussion of McCullough's book, I said I was especially moved by his speech at the bicentennial of what is now the White House. In the speech he discussed a statement by President John Adams in a handwritten letter to his wife Abigail the morning after he moved into and became the first resident of the house. The statement, now carved in marble on a mantelpiece in the State Dining Room, reads:
I pray to heaven to bestow the best of blessings on this house, and all that shall hereafter inhabit it. May none but honest and wise men ever rule under this roof.
Recently I decided to reread McCullough's book. This time I was especially moved by his speech in Dallas on the 50th anniversary of the assassination of President John Kennedy. In that speech McCullough quoted extensively from Kennedy's "ask not" inaugural address delivered in January 1961. That prompted me to read the entirety of Kennedy's address, as well as the entirety of Trump's "American carnage" inaugural address delivered in January 2017. The difference in tone is astounding.

I am offering a complimentary 7-page PDF consisting of Kennedy's inaugural address (2 pages) and Trump's inaugural address (5 pages). Email jmbelth@gmail.com and ask for the July 2019 inaugural package.

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Friday, July 12, 2019

No. 322: Pamela Yellen—Her Unbelievable "Bank-on-Yourself" Wealth-Building Strategy

Pamela Yellen was born in Buffalo, New York, on November 16, 1952. She graduated in 1974 from the University of San Francisco with a Bachelor of Arts degree, with emphasis in psychology. From 1984 to 1987 she was employed by a publication serving the camping and recreational vehicle industry. Later she became a consultant to more than 400,000 financial advisors across the U.S. and Canada. She is now a proponent of her "Bank-on-Yourself" system, which she calls a "safe wealth-building strategy." She is the author of two books: Bank on Yourself (2009) and The Bank on Yourself Revolution (2016). She donates 10 percent of her royalties to charities such as The Smile Train and The Nature Conservancy. She now lives with her husband outside Santa Fe, New Mexico. This post is based for the most part on her 2016 book.

The Endorsements
The subtitle of Yellen's 2016 book is "Fire Your Banker, Bypass Wall Street, and Take Control of Your Own Financial Future." The first eight pages (before the title page and the other front matter in the book) contain 26 endorsements. Here are the first three:
"Even if you aren't ready to actually fire your banker, you need all the helpful information you can find in these uncertain economic times. Pamela Yellen once again is 'right on the money' when it comes to financial security."—Harvey Mackay, Author of the New York Times #1 bestseller Swim With the Sharks Without Being Eaten Alive, www.harveymackay.com
Pamela Yellen should definitely win a Nobel Prize. With her guidance, you can grow a nest egg into a small fortune without the risks of conventional investments and political uncertainty. I urge you ... no, I beg you ... to get The Bank on Yourself Revolution. It's an investment in yourself and a book that will make a major difference in your life."—Joseph Sugarman, Entrepreneur, Author, and BluBlocker Corporation Founder, www.BluBlocker.com
"The Bank on Yourself Revolution provides a pathway to building your wealth and puts the traditional bank, stock and real estate markets firmly in the back seat. If you are searching for an alternative path to a secure retirement, this is a must read to grow your money safely and predictably ever[sic] year—even when the markets are crashing."—Kristi Frank, Star of Season One of Donald Trump's The Apprentice, well known for helping entrepreneurs start and grow their businesses, www.KristiFrank.com
The Dedication
Yellen dedicated her book to those she calls "Bank on Yourself revolutionaries." Here is the full dedication:
This book is dedicated to all the Bank on Yourself revolutionaries, the people who had the courage to question today's conventional financial wisdom, buck the system, and set out on a path less traveled. In doing so, you created true financial security for yourselves and your families. You are my heroes and my inspiration.
Harsh Criticism of Alternatives
Most of Yellen's book is devoted to harsh criticism of financial alternatives to her Bank on Yourself system. She says on page 7 that over the years she has investigated "more than 450 different financial products, strategies, and vehicles, and only a few passed my due diligence tests." Here are some but not all the alternatives she criticizes (with page numbers shown in parentheses): synthetic collateralized debt obligations (7), adjustable-rate mortgages (9), mutual funds (19), 401(k) plans (29), certificates of deposit (31), real estate investments (33), gold and other precious metals (35), savings accounts (41), traditional whole life policies (44), buy term life insurance and invest the difference (60), equity indexed universal life policies (66), individual retirement accounts (104), paying off home mortgages (162), 529 college plans (174), uniform gifts and transfers to minors (176), student loans (177), and annuities (227).

The Bank on Yourself Plan
As I went through the book, I kept looking for a description of the Bank on Yourself plan. Sprinkled throughout are brief descriptions hinting that the plan is based on some form of life insurance. Not until near the end of the book (pages 255-257) did I find anything close to a detailed description. It begins with this paragraph:
Out of approximately 1,000 life insurance companies, we've found only a handful that offer policies that meet all four requirements needed to maximize the power of the Bank on Yourself concept. When your plan is designed by one of the 200 Bank on Yourself Authorized Advisors, they recommend companies that have the following features and advantages:
The first feature is that the company must offer dividend-paying whole life policies. Also, the company must have paid dividends to policyholders every year for at least the last 100 years. It is not clear how anyone can verify the payment of dividends for at least a century.

The second feature is that the company must not use direct recognition. That means the company pays the same dividends whether the policyholder has or has not taken out a policy loan.

The third feature is that the company must offer a paid-up additions rider (PUAR). Yellen says the authorized advisor's commission "is typically 50-70 percent lower than with a traditionally designed policy." She also says: "At least 50 percent of your premium will typically be directed into this [PUAR] rider." I think commissions on amounts deposited into PUARs are substantially smaller than commissions on premiums for whole life, especially in the first policy year. Therefore the total commission would be smaller than the commission that would have been paid if the entire premium had gone into the whole life base policy.

The fourth feature is that the company must be among the financially strongest in the country. That determination must be made based on financial strength ratings assigned to the company by several independent rating agencies. I will have more to say on this subject later.

Yellen's plan seems to contemplate frequent and large policy loans to make major purchases. For that reason, it is strange that she says nothing about the policy loan clause. Thus she does not say whether the policy loan interest rate should be fixed or variable, what the rate should be if it is a fixed rate, or, if it is a variable rate, how the rate should be determined and what the maximum rate should be.

Accessing Yellen's System
Yellen does not publish a list of life insurance companies that meet her criteria. She says she is an educator, not a financial advisor, and therefore is prohibited from naming specific companies. She does not say whether she is a licensed insurance agent. She says developing a plan for the client is the job of an "Authorized Bank on Yourself Advisor." In other words, only an authorized advisor, who presumably is trained by her, is allowed to design a customized plan for the client.

Nor does Yellen publish a list of Bank on Yourself authorized advisors. In other words, the only way a client may access the Bank on Yourself plan is to contact Yellen, who will refer an authorized advisor to the client. Thus Yellen is operating what amounts to a closed system for accessing the Bank on Yourself plan.

The Lafayette Life Connection
Allan S. Roth is a certified financial planner and a certified public accountant. He has worked as a public accountant with KPMG, and has been with McKinsey & Company, Kaiser Permanente, and Wellpoint. Recently I saw an article by Roth entitled "Bestselling book's financial promises don't add up." On December 11, 2012, CBS News posted Roth's article, which was about Yellen's first book. Roth said in his article that he had met with a Yellen authorized advisor, who had made a presentation. Roth further said in his article that he had tried hard but had not been able to make sense of the numbers in the presentation. Roth said in his article that the authorized advisor's presentation had been based on a policy offered by The Lafayette Life Insurance Company, and that he (Roth) had been in touch with Lafayette Life about the presentation.

Mutual Holding Companies
Lafayette Life, which was established in 1905, is now part of Cincinnati-based Western & Southern Financial Group, a mutual holding company organization. I have written extensively about mutual holding companies. My first article on the subject, entitled "General American and the Mutual Holding Company Concept," was in the March 1997 issue of The Insurance Forum, the monthly newsletter I published from January 1974 through December 2013. Another article on the subject, entitled "Democracy at Provident Mutual—A Case Study in the Suppression of Communication among Policyowners," was in the May 1998 issue of the Forum. Both articles are in the complimentary package offered at the end of this post.

My Correspondence with Lafayette Life
On June 21, 2019, I sent a letter by regular mail to Bryan Chalmer Dunn, the president and chief executive officer of Lafayette Life. I asked several questions about the relationship between Yellen and Lafayette Life. I asked for a response by the close of business on June 28.

On June 27, I received a telephone call from Diane E. Planck, senior media relations specialist at Western & Southern, acknowledging receipt of the letter and asking for an extension. We agreed to extend the response date to the close of business on July 2. She graciously responded by email at the promised time. My letter and her email are shown later in this post.

Planck did not number her answers to correspond to my numbered questions. She did not answer the first question; I think the answer is yes, based on the previously mentioned Roth article. She answered the other questions directly or indirectly.

Planck's discussion of policy loan interest rates was helpful. She said the policy loan interest rate is variable, and is the larger of 5 percent or the "monthly average of the composite yield on seasoned corporate bonds" published by Moody's. I checked Moody's website and found that the averages were 4.08 percent for May 2019 and 3.89 percent for June 2019. Thus it appears that Lafayette Life's variable policy loan interest rate in those months was 5 percent.

Financial Strength
Lafayette Life's financial strength ratings as of September 18, 2018 were A+ (superior) from A. M. Best, AA– (very strong) from Standard & Poor's, and AA (very strong) from Fitch. For many years I published special ratings issues of the Forum. In the final years of the Forum, I deployed a system I had developed for using the ratings assigned by the major rating firms to classify life-health insurance companies, from the standpoint of financial strength, as suitable for "extremely conservative consumers" (category 1), for "very conservative consumers" (categories 1 and 2 combined), and for "conservative consumers" (categories 1, 2, and 3 combined). In the last of the special ratings issues—the September 2013 issue—I listed 19 companies for "extremely conservative consumers," 38 companies for "very conservative consumers," and 157 companies for "conservative consumers." Lafayette Life and two other Western & Southern companies were among the 38 companies for "very conservative consumers." Five pages of the 32-page September 2013 special ratings issue, including a description of the system and the names of the companies in each of the three categories, are in the complimentary package offered at the end of this post.

Text of June 21 Letter from Belth to Dunn
By way of introduction, I am professor emeritus of insurance in the Kelley School of Business at Indiana University (Bloomington). I am also a blogger at josephmbelth.com. For further information, please click "Bio" on the home page of my blog site.

Pamela Yellen wrote a 2016 book entitled The Bank on Yourself Revolution. She also wrote a 2009 book entitled Bank on Yourself. This letter relates to the 2016 book.

Ms. Yellen says on page 255 that there are only a handful of life insurance companies that meet the requirements needed to maximize the power of her Bank on Yourself concept. She does not identify the companies, but I saw an article on CBS News indicating that Lafayette Life is one of the companies. I am working on a blog post about her system, and have a few questions for you.
  1. Are you familiar with Ms. Yellen's book?
  2. Ms. Yellen says on pages 255-257 that the recommended companies issue a participating whole life policy with a paid-up additions rider and do not use direct recognition. Do you offer such a policy?
  3. Ms. Yellen does not mention the nature of the policy loan clause. What is your policy loan interest rate, and is it a fixed rate or a variable rate? If it is a variable rate, what is the maximum rate?
  4. Ms. Yellen says the recommended companies must have high ratings from several independent rating agencies. What are your current ratings by A. M. Best, Standard & Poor's, Moody's Investors Service, and Fitch?
  5. Ms. Yellen says on page 250 that there are about 200 authorized advisors across the U.S. and Canada. She does not identify them, but a person interested in her system may contact her, and she will refer an authorized advisor to that person. Are you aware of any of your agents who are authorized advisors for her system? If so, how many are you aware of?
  6. If your answer to the first part of (5) is yes, do you approve of their use of Ms. Yellen's system?
I need your reply to this letter by the close of business on Friday, June 28. Please send your reply by email to [my personal email address]. If you would like to speak with me, my direct telephone number is 000-000-0000, and I am on Eastern time. Thank you for your assistance.

Text of July 2 Email from Planck to Belth
Thank you again for contacting Lafayette Life concerning your upcoming blog. We share your passion for the life insurance industry and the important role insurance carriers have in providing products that help people with their financial security.

Information on our most current financial strength ratings (Lafayette is not rated by Moody's) and products (and if they are dividend paying) is available in detail at Lafayette Life's website.

The Lafayette Life Insurance Company is committed to offering people in the markets we serve a wide range of life insurance and annuity products to help meet their growing and increasingly diverse set of financial needs. Our product offerings include a dividend-paying whole life policy with a paid-up additions rider. All dividend-paying whole life policies from Lafayette Life are non-direct recognition, which means the dividend credited to the policy will be the same whether there is a loan or not. The loan interest we charge is the greater of 5% or the monthly average of the composite yield on seasoned corporate bonds as published by Moody's Investors Service, Inc., or any successor to that service.

Lafayette Life's products are sold through independent agents and independent marketing organizations. Our role is limited to providing life insurance policies and annuity contracts. We do not endorse or sponsor any selling system nor do we develop, advertise or promote the marketing content or materials for any selling system. We do not inquire about, attempt to determine, or identify in our systems whether any independent agents appointed to sell our products are users of any specific selling system.

Please be assured that Lafayette Life makes it clear through our contracts with those selling our products and disclosures to our customers that our life insurance policies and annuity contracts are insurance products.

I believe this addresses the questions you raised. Please let me know if you need anything else.

General Observations
Lafayette Life appears to take no interest in or responsibility for the methods used by the independent agents who sell its policies. Further, I think the same can be said about many if not all other companies that sell their policies through independent agents. In my opinion, this is a matter of serious concern, for two reasons. First, sales methods may be deceptive, misleading, or otherwise unfair to consumers. Second, companies and state insurance regulators may find it difficult to police the sales methods used in the field by independent agents.

I was not able to find anywhere in Yellen's book a detailed description of her Bank on Yourself system. I think, but cannot be certain, that she recommends clients purchase automobiles and make other major expenditures by taking out loans against life insurance policies and later repaying the policy loans. I think she is saying the procedure will build the client's wealth far more rapidly and safely than any other conceivable system. I do not believe it. Until such time as she illustrates the numbers in detail, I will continue refusing to believe it.

Available Material
I am offering a complimentary 19-page PDF consisting of an article in the March 1997 issue of the Forum (6 pages), an article in the May 1998 issue (8 pages), and an excerpt from the September 2013 issue (5 pages). Email jmbelth@gmail.com and ask for the July 2019 package about the Yellen system.

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Tuesday, July 9, 2019

No. 321: TIAA Is Exiting the Life Insurance Business

On June 26, 2019, Investment News carried an article by reporter Greg Iacurci disclosing that Teachers Insurance and Annuity Association of America (TIAA) is exiting the life insurance business at the end of 2019. The article quotes an industry observer as saying: "Part of the reason they're getting out is because they're not selling enough." Here I discuss this important development.

TIAA's Comments
The Iacurci article alludes to a June 25 memorandum from Dennis Rupp, TIAA's director of insurance wholesaling. I asked the TIAA media office for the Rupp memorandum, but did not receive it. Instead, I received a June 28 letter from Todd Sagmoe, TIAA's vice president of product management. He said:
Thank you for your inquiry into the recent TIAA decision to stop issuing new life insurance contracts. I can confirm that TIAA will no longer underwrite and issue new life insurance contracts. Here is the public response that TIAA has prepared: "While life insurance is a key component of our holistic approach to financial wellness, we have decided to stop underwriting new life insurance policies. To enhance our operational efficiency, we will offer a variety of solutions from other carefully selected providers to meet our customers' life insurance needs. We will maintain and continue to service existing policies to ensure a high-quality customer experience."
The Examination Reports
TIAA and its subsidiary, TIAA-CREF Life Insurance Company, are domiciled in New York. The most recent examination reports of the two companies by the New York State Department of Financial Services are as of December 31, 2013, and are dated June 10, 2015. The TIAA report says it "ceased issuing life insurance policies in 2005." However, I think TIAA-CREF Life continued issuing life insurance policies. Selected pages of the two examination reports are in the complimentary package offered at the end of this post.

The Life Insurance Price Issue
Long-time readers know that I conducted many studies of the price of life insurance protection from the viewpoint of the policyholder, and that I recommended a system for disclosing the information to consumers. Because of strong opposition from the life insurance business, my recommended disclosure system was not adopted. I described the system in an article entitled "Information Disclosure to the Life Insurance Consumer" in the December 1975 issue of the Drake Law Review. The article is in the complimentary package offered at the end of this post.

In the course of my research in the 1960s and 1970s, I became aware of a "lifetime" (whole life) policy issued by TIAA in 1965 to a man aged 35. The policy included the usual premium provision, fractional premium options, grace period and reinstatement clauses, a table of cash values, reduced paid-up insurance and extended term insurance, a loan clause with a fixed annual interest rate of 5 percent, an automatic premium loan clause, an ownership clause, an entire contract clause, two-year incontestability and suicide clauses, a reserve provision based on the 1958 C.S.O. mortality table and 2.5 percent interest, beneficiary provisions, settlement options, and a waiver-of-premium clause. The policy was "non-participating," but TIAA mailed to the policyholder each year a check representing a "voluntary dividend." No dividend options were available other than the cash option.

When I examined the price structure of the policy, I found that the price of the life insurance protection from the viewpoint of the policyholder, including the effect of the "voluntary dividends," was well below the price of the life insurance protection in any other policy I had seen. One explanation may have been that TIAA employed no agents, and instead sold directly to its narrow constituency—the faculty and senior administrative staff of colleges and universities. Another explanation may have been TIAA's reportedly stringent underwriting practices.

The LTC Insurance Incident
In November 2003, TIAA notified its then 46,000 long-term care (LTC) insurance policyholders that it was exiting the LTC insurance business and transferring its LTC insurance policyholders to Metropolitan Life Insurance Company. Because both companies were domiciled in New York, the transfer was subject to the approval of the person who is now the superintendent of financial services. On February 3, 2004, I submitted to the superintendent a "Statement of Joseph M. Belth on TIAA Transfer to MetLife" showing, among other things, five matters that should be conditions for approval of the transfer.

The LTC insurance incident led to three major articles in The Insurance Forum, my monthly newsletter. The first article, which was in the March/April 2004 issue, was entitled "TIAA's Surprising Exit from the Long-Term Care Insurance Business." The article included my statement to the superintendent, and is in the complimentary package offered at the end of this post.

General Observations
When TIAA exited the LTC insurance business in 2003 and sought to transfer its obligations to another insurance company, I had been writing since 1989 about the widespread practice of insurance companies seeking to shed their obligations to their policyholders.  I had deep respect for TIAA, and was disappointed to see it engage in that anti-policyholder activity.  Many of my academic colleagues felt the same way.

I interpret the Sagmoe letter as saying TIAA will not attempt to transfer its life insurance obligations to another company. Instead, I think TIAA will honor its obligations to its life insurance policyholders, and will run off its existing life insurance policies over many years. If my interpretation is incorrect, and TIAA moves to transfer its life insurance obligations to another company, I will report developments.

Available Material
I am offering a complimentary 51-page PDF consisting of selected pages from the latest TIAA and TIAA-CREF Life examination reports (21 pages), the 1975 Drake Law Review article (26 pages), and the March/April 2004 Forum article (4 pages). Email jmbelth@gmail.com and ask for the July 2019 package about TIAA.

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Monday, July 1, 2019

No. 320: Greg Lindberg—The North Carolina Department of Insurance Places Four of His Companies in Rehabilitation

On Thursday, June 27, 2019, four documents relating to Greg Lindberg's insurance companies were filed in a state court in North Carolina. The documents, which are in the complimentary package offered at the end of this post, were filed between 1:17 and 1:48 that afternoon. At 2:48, reporters Leslie Scism and Mark Maremont of The Wall Street Journal posted an article entitled "North Carolina Regulators Seize Control of Life Insurers Owned by Greg Lindberg." They posted an updated version at 6:17. Here I discuss the developments and mention briefly what is happening in a related federal criminal case.

The Verified Petition
One state court document is a "Verified Petition for an Order of Rehabilitation, and Order Appointing Receiver, and Injunctive Relief." The petitioner is Mike Causey, the North Carolina commissioner of insurance. The respondents are Southland National Insurance Corporation, Southland National Reinsurance Corporation, Bankers Life Insurance Company, and Colorado Bankers Life Insurance Company. The respondents are licensed in North Carolina, their principal place of business is in Durham, North Carolina, and Lindberg is the controlling shareholder.

The petition says the commissioner was concerned about the respondents' liquidity. On October 18, 2018, the commissioner and the respondents entered into a consent order for administrative supervision for 120 days. On February 5, 2019, they entered into an amended consent order for administrative supervision for an additional 120 days. On April 4, 2019, they entered into a second amended consent order for administrative supervision, and agreed that appointment of a receiver was necessary for the protection of the respondents' policyholders. The commissioner asked the court to enter an order of rehabilitation naming him the rehabilitator.

The Rehabilitation Order
Another state court document is an "Order of Rehabilitation, Order Appointing Receiver, and Order Granting Injunctive Relief." Senior Resident Wake County Court Judge Paul Ridgeway appointed the commissioner as the rehabilitator and the receiver, issued an injunction against interference with the rehabilitation, and required the rehabilitator to provide quarterly reports to the court.

The Moratorium Motion
Another state court document is a "Motion for Moratorium on Policy Surrenders and Other Relief." The North Carolina attorney general's office asked the court to issue an order granting a moratorium on cash surrenders, annuitizations, and policy loans, and ordering development of a plan for policyholders with legitimate hardship claims.

The Moratorium Order
Another state court document is an "Order Granting Motion for Moratorium on Policy Surrenders and Other Relief." Judge Ridgeway granted the motion and ordered the rehabilitator to adopt a moratorium and implement a policy for legitimate hardship claims.

Secrecy of the Consent Orders
When I asked the North Carolina Department of Insurance for the state court documents, a spokesperson provided them promptly. When I saw them, I requested the three consent orders referred to in the verified petition. The spokesperson said the consent orders are confidential pursuant to Section 58-30-70 of the North Carolina General Statutes. That section reads:
Confidentiality of hearings. In all proceedings and judicial reviews thereof under G.S. 58-30-60 and G.S. 58-30-65, all records of the insurer, other documents, and all Department files and Court records and papers, insofar as they pertain to or are part of the records of the proceedings, shall be and remain confidential except as necessary to obtain compliance therewith, unless the Court, after hearing arguments from the parties in chambers, orders otherwise; or unless the insurer requests that the matter be made public. Until such Court order, all papers filed with the clerk of the Court shall be held by him in a confidential file.
The section does not mention consent orders, and I do not recall any consent order being deemed confidential. I do not plan to appeal the denial. However, I would welcome comments from readers with legal experience in freedom-of-information matters.

The Federal Criminal Case
In No. 309 (April 17, 2019), I posted an item about a federal grand jury indictment of Greg Lindberg and three others for criminal wrongdoing. On April 2, the court unsealed the indictment. On April 3, a docket call was set for July 1. On May 2, the docket call was reset to July 15. Initially the case was assigned to District Judge Max O. Cogburn, Jr. On June 17, the case was reassigned to District Judge Kenneth D. Bell. On June 27, the case was reassigned back to Judge Cogburn and the docket call was reset to September 16. (See U.S.A. v. Lindberg, U.S. District Court, Western District of North Carolina, Case No. 5-19-cr-22.)

General Observations
I plan to follow developments in the rehabilitation proceedings related to Lindberg's insurance companies, and in the proceedings related to the federal criminal case against Lindberg and three others. I anticipate that the proceedings will be lengthy.

Available Material
I am offering a complimentary 46-page PDF consisting of the verified petition (25 pages), the rehabilitation order (9 pages), the moratorium motion (7 pages), and the moratorium order (5 pages). Email jmbelth@gmail.com and ask for the July 2019 Lindberg package.

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Tuesday, June 25, 2019

No. 319: David McCullough—His New Book and a Connection with the History of American Life Insurance

David McCullough, now aged 85, is one of my favorite authors. I have read all of his books, and each is a treasure. Here I discuss his latest book. It is entitled The Pioneers: The Heroic Story of the Settlers Who Brought the American Ideal West. I also discuss a connection with R. Carlyle Buley, an Indiana University history professor who wrote extensively not only about the American pioneer period but also about the history of American life insurance.

McCullough's New Book
In his new book, McCullough begins with the 1783 Paris peace treaty that ended the Revolutionary War. John Adams and John Jay insisted that all the British land west of the Alleghenies and northwest of the Ohio River and east of the Mississippi River should be ceded to the new United States. The British reluctantly agreed, and the U.S. thus doubled its size by adding a huge amount of wilderness that eventually became Ohio, Indiana, Illinois, Michigan, Wisconsin, and eastern Minnesota.

Among the New Englanders who promoted the idea of settling the new territory were Manasseh Cutler, a churchman who had served as an army chaplain during the Revolutionary War, and Rufus Putnam, who had been a general in the War. George Washington also liked the idea.

In 1787, before a national constitution had yet been adopted, Congress approved the famous Northwest Ordinance. It provided for freedom of religion and emphasized the importance of education. But the most controversial section abolished slavery forever in the huge new territory. Thus eleven years after the Declaration of Independence and 73 years before the Civil War, the New Englanders who planned to settle the huge Northwest territory forever abolished slavery there. McCullough describes in detail how they accomplished the feat. Here is a small portion of that description (on pages 29-30):
But it was Article VI that set forth a tenet such as never before stated in any American constitution. "There shall be neither slavery nor involuntary servitude in the said territory." And, as was well understood, this had been agreed to when slavery existed in every one of the thirteen states. It was almost unimaginable that throughout a new territory as large as all of the thirteen states, there was to be no slavery....
Overall Manasseh Cutler had played the most important role by far. Years later he would tell [his son] Ephraim he had indeed prepared that part of the ordinance banning slavery and, as Ephraim also recorded, the reason for this, as well as the recognition of religion, morality, and knowledge as foundations of civil government, arose from the fact that his father was "acting for associates, friends, and neighbors, who would not embark in the enterprise, unless these principles were unalterably fixed."
In the opinion of [Manasseh's] two grandchildren, William Parker Cutler and Julia Perkins Cutler, who would later edit and publish Manasseh Cutler's journals and correspondence, his way with the southern members of Congress had been the deciding factor.
In any event, the Northwest Ordinance of 1787 would prove to be one of the most far-reaching acts of Congress in the history of the country.
As one widely respected, later-day historian, Albert Bushnell Hart of Harvard University, would write, "Never was there a more ingenious, systematic and successful piece of lobbying than that of the Reverend Manasseh Cutler" and the great Northwest Ordinance of 1787 stands alongside the Magna Carta and the Declaration of Independence as a bold assertion of the rights of the individual.
McCullough focuses primarily on the settling of Ohio, particularly in the area around Marietta. Although he writes little about the developments in the other states of the Old Northwest, his book is fascinating.

McCullough's Earlier Books
The Pioneers is McCullough's twelfth book. Here, listed chronologically, are his earlier books.
  1. The Johnstown Flood: The Incredible Story Behind One of the Most Devastating Disasters America Has Ever Known (1968)
  2. The Great Bridge: The Epic Story of the Building of the Brooklyn Bridge (1972)
  3. The Path Between the Seas: The Creation of the Panama Canal, 1870-1914 (1977)
  4. Mornings on Horseback (1981), about the young Theodore Roosevelt
  5. Brave Companions: Portraits in History (1991), about several prominent American historical figures
  6. Truman (1992), for which he received a 1993 Pulitzer Prize
  7. John Adams (2001), for which he received a 2002 Pulitzer Prize
  8. 1776 (2005)
  9. The Greater Journey: Americans in Paris (2011), about American writers, poets, artists, sculptors, composers, and others who drew inspiration from the time they spent in Paris during the 19th century
  10. The Wright Brothers (2015)
  11. The American Spirit: Who We Are and What We Stand For (2017)
McCullough has received many awards in addition to the two Pulitzer Prizes mentioned above. He has received two National Book Awards, two Francis Parkman Prizes, a Presidential Medal of Freedom, many other awards, and dozens of honorary degrees.

R. Carlyle Buley
R. Carlyle Buley (1893-1968) served for many years as professor of history at Indiana University (IU) in Bloomington. He was the author of a two-volume work entitled The Old Northwest: Pioneer Period 1815-1840. It was published in 1950, and for it he received a 1951 Pulitzer Prize. His book is in McCullough's bibliography, and it is cited in a few notes. Unlike McCullough, Buley goes into detail about developments not only in Ohio but also in the other states of the Old Northwest.

I knew about Buley even before I arrived at IU in 1962. I had read his two major treatises about the history of life insurance in America. His first two-volume book about life insurance is entitled The American Life Convention 1906-1952: Study in the History of Life Insurance. It was published in 1953. The Convention was a life insurance company trade association that no longer exists. Almost 20 years ago it merged with what is now The American Council of Life Insurers. Buley wrote about the history of life insurance in America through a history of the Convention. For the book he received an Elizur Wright Award in recognition of "outstanding contribution to the literature of insurance."

Buley's second two-volume book about life insurance is entitled The Equitable Life Assurance Society of the United States 1859-1964. It was published in 1967. Most histories of life insurance companies are written in glowing language and serve as sales pieces that promote the companies. Buley's history of Equitable, however, is written "warts and all." Today, Equitable no longer exists. It was bailed out of financial trouble about 30 years ago by a French company (AXA), and became AXA Equitable Life.

As an illustration of Buley's writing style, here are excerpts from pages 208-209 in the first volume of The American Life Convention, where he described the lead up to the famous Hughes-Armstrong Investigation of 1905. The "unsavory mess" to which he referred was a combination of the prominent struggle for control of Equitable and the rapid growth of deferred dividend (or "semi-tontine") policies.
One conclusion was fairly general: That the whole unsavory mess would not be in vain if from the odor should arise a better popular understanding of the deferred dividend system which had done so much to increase the expense of life insurance and so little to increase the value of a life insurance policy... What critics of the deferred dividend system apparently did not recognize was that part of the difficulty arose from the inadequacy of accounting procedures, which permitted accumulated deferred dividends to be carried as surplus instead of as a reserve which the companies should have been required to maintain against the deferred dividend policies.
One prominent voice, however, was raised in public defense of the deferred dividend system. Thomas A. Buckner, vice president of the New York Life, reviewed the history of the deferred dividend practice and pointed to the figures which indicated the people's choice: the Connecticut Mutual in 1869 had $177 million of life insurance in force, in 1904 it had $167 million; in 1869 the New York Life had $102 million in force, in 1904 it had $1.9 billion.
Also it was thought that the flood of publicity would not only educate the public as to the nature of life insurance but that it would enlarge the perspective of life insurance men in general and help fix the status of life insurance in the social and economic life of the country. The foreseeable result would be the triumph of conservatism, sanity, honesty, and justice, a return to the creed of old-fashioned honesty as stated by Jacob L. Greene [of Connecticut Mutual], Amzi Dodd [of Mutual Benefit Life], and others of their school, men who believed that the life insurance companies should be operated for the benefit of the policyholders rather than that of the officers.
Six years before Buley died, I arrived in Bloomington to begin my academic career at IU. Although I already knew a lot about him, I regret to say I never met him.

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Tuesday, June 18, 2019

No. 318: Factoring Companies—A California Lawsuit and a Texas Order Focus Attention on the Sale of Income Streams

A recent state court lawsuit in California and a recent disciplinary order in Texas have refocused attention on the questionable business of factoring companies, which acquire and resell income streams from pensions and annuities. Here I discuss the lawsuit and the order, and present the views of securities regulators on the subject.

The California Lawsuit
DRB Capital is a Delaware LLC based in Florida. Its website (www.drbcapital.com) provides some information. DRB offers cash for structured settlements, annuities, and "pre-settlement funding." The site does not disclose the names of the DRB officers. However, it is clear that DRB is a factoring company in the business of reselling, perhaps to clients of insurance agents and financial advisers, streams of income that DRB acquires through assignments from payees of structured settlement annuities and retirement annuities.

On November 13, 2018, DRB filed a lawsuit against Robert Perez (a California resident), New York Life Insurance Company, and New York Life Insurance and Annuity Corporation (NYLIAC). Perez is the payee of an individual retirement annuity (IRA) he inherited. Under a proposed assignment, Perez was to receive from DRB a lump sum in exchange for assigning to DRB 89 monthly IRA payments of $683.57 each beginning January 22, 2020 and ending May 22, 2027. The payments amount to a simple total of $60,837.73.

The complaint did not include a a copy of the IRA.  Nor did it include a copy of the proposed assignment agreement between DRB and Perez. The complaint named both New York Life and NYLIAC as defendants, but NYLIAC issued the IRA. The complaint did not disclose the size of the lump sum DRB was to pay Perez in exchange for the assignment of the 89 IRA payments. Therefore, when the lump sum is viewed as a loan by DRB to Perez (which is precisely what it is), it is impossible to calculate the annual interest rate on the loan. DRB said NYLIAC will not honor the assignment of the payments without a court order. Thus DRB sought a court order declaring the assignment valid and enforceable.

On January 23, 2019, NYLIAC responded to the DRB complaint in a "demurrer." NYLIAC said New York Life was not the issuer of the IRA and therefore was not a proper party in the case. NYLIAC said "the express anti-assignment language in the annuity contract ... bars the relief requested by DRB in the Complaint." NYLIAC said "the relief requested by DRB in the Complaint is barred because it would contravene Section 408 of the Internal Revenue Code and materially increase the burdens and risks of both Mr. Perez and NYLIAC." NYLIAC asked the court to sustain the demurrer without leave to amend.

On May 31, 2019, California Superior Court Judge Kenneth J. Medel issued an order sustaining NYLIAC's demurrer without leave to amend. He also ordered New York Life removed from the case. The DRB complaint, the NYLIAC demurrer, and the court order are in the complimentary package offered at the end of this post. (See DRB v. Perez, Superior Court of California, County of San Diego, Case No. 37-2018-00057432-CU-MC-CTL.)

The Texas Disciplinary Order
On June 6, 2019, Texas Securities Commissioner Travis J. Iles issued a disciplinary order directed at an individual and a firm in Dallas who had sold stream-of-income investments to clients. Commissioner Iles reprimanded the individual and the firm. He also directed them to pay almost $89,000 (twice the commissions they had received) to certain clients. The Texas order is in the complimentary package offered at the end of this post.

The Warnings from Securities Regulators
In May 2013, the Office of Investor Education and Advocacy of the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) jointly issued an "Investor Bulletin" entitled "Pension or Settlement Streams." The bulletin is mandatory reading for anyone considering a sale of or an investment in a pension stream. Here are the first two paragraphs of the bulletin:
Do you receive a monthly pension from a former employer? Are you getting regular distributions from a settlement following a personal injury lawsuit? If so, you may be targeted by salespeople offering you a lump sum today to buy the rights to some or all of the payments you would otherwise receive in the future. Retired government employees and retired members of the military are among those being approached with such offers. Typically the lump sum offered will be less—sometimes much less—than the total of the periodic payments you would otherwise receive.
After acquiring the rights to a future income stream (such as a retiree's pension payments), these pension purchasing or structured settlement companies, sometimes called "factoring companies," may turn around and sell these income streams to retail investors, often through a financial adviser, broker or insurance agent. These products go by various names—pension loans, pension income programs, mirrored pensions, factored structured settlements or secondary-market annuities. They may be pitched to investors with words like "guaranteed" and "safe"—and may tout robust returns that outpace more traditionally conservative investments such as CDs or money market accounts. The advertised returns may sound enticing, but investors should be aware that these investments can be risky and complex. FINRA and the SEC's Office of Investor Education and Advocacy are issuing this Investor Alert to inform anyone considering selling their rights to an income stream—or investing in someone else's income stream—of the risks involved and to urge investors to proceed with caution.
The North American Securities Administrators Association (NASAA) is an organization of state, district, and territory securities regulators in the U.S. and Mexico, and provincial securities regulators in Canada. On April 4, 2016, NASAA issued an "Informed Investor Advisory: Pension Advance Scams." The advisory explains how the "scam" works. The "bottom line" says: "Before making any decisions with your money, ask questions, do your homework and contact your state or provincial securities regulator."

On April 5, 2016, the day after NASAA issued its advisory, the Texas State Securities Board issued an "Investor Alert." It is entitled "Pitfalls of Pension Advance Schemes." The SEC/FINRA bulletin, the NASAA advisory, and the Texas alert are in the complimentary package offered at the end of this post.

My Writings About Factoring Companies
I wrote articles about factoring companies in the August 2011 and October 2011 issues of The Insurance Forum, my monthly newsletter. There I discussed the activities of such companies in detail, including the high annual interest rates associated with factoring transactions. The articles are in the complimentary package offered at the end of this post.

I also posted two blog items on the subject: No. 115 (September 11, 2015) and No. 190 (November 28, 2016). More recently, I posted No. 293 (November 1, 2018) about a tragic situation in which one element of the case involved the assignment of a portion of the proceeds from a structured settlement annuity.

General Observations
In the October 2011 Forum article mentioned above, I expressed the opinion that regulation of the secondary market for structured settlement annuities and retirement annuities did not exist. I referred to the situation as a "regulatory vacuum." What federal, state, and provincial securities regulators have been doing more recently is encouraging, but I think regulatory attention in this area remains inadequate.

Available Material
I am offering a complimentary 40-page PDF consisting of the DRB complaint (3 pages), the NYLIAC demurrer (13 pages), the California court order (2 pages), the Texas disciplinary order (9 pages), the SEC/FINRA bulletin (4 pages), the NASAA advisory (2 pages), the Texas alert (2 pages), and the two Forum articles (5 pages). Email jmbelth@gmail.com and ask for the June 2019 package about factoring companies.

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Thursday, June 13, 2019

No. 317: Stranger Originated Life Insurance and the New Jersey Supreme Court

On June 4, 2019, the New Jersey Supreme Court handed down a 6 to 0 opinion that represents a major setback for stranger originated life insurance (STOLI). The opinion is "on certification of questions of law from the U.S. Court of Appeals for the Third Circuit," and draws on facts from the opinions of the Third Circuit and the U.S. District Court for the District of New Jersey. Chief Justice Stuart Rabner wrote the opinion. Justices Jaynee LaVecchia, Anne M. Patterson, Faustino J. Fernandez-Vina, Lee A. Solomon, and Walter F. Timpone joined in the opinion. Justice Barry T. Albin did not participate. The "syllabus" and the full opinion are in the complimentary package offered at the end of this post. (See Sun Life of Canada v. Wells Fargo Bank, Supreme Court of New Jersey, A-49 September Term 2017, 080669.)

Facts of the Case
The facts of the case resemble those of many cases issued during the heyday of STOLI. The application was for a $5 million policy. The application vastly overstated the insured's income and assets, and a phony inspection report verified the false information. Also, the application substantially understated the amount of life insurance already in force on the insured's life. The application named a trust as the sole owner and beneficiary of the policy. The insured's grandson signed the application as trustee. Sun Life issued the policy in July 2007. Five weeks later, the grandson resigned as trustee and appointed certain "investors," or what I call "speculators in human life," as successor co-trustees. The trust agreement was amended so that most of the benefits would go to the investors, who were also empowered to sell the policy. More than two years later, after expiration of the two-year period of contestability, the trust sold the policy. The investors received nearly all the proceeds from the sale. Wells Fargo Bank eventually acquired the policy in a bankruptcy settlement and continued to pay the premiums.

The insured died in 2014. Wells Fargo sought to collect the death benefit. Sun Life investigated, discovered the fraud, refused to pay, and sought a declaratory judgment that the policy was void ab initio (from the beginning). Wells Fargo counterclaimed for breach of contract and, if the court voided the policy, sought a refund of the premiums it had paid.

Federal District Court Ruling
The federal district court in New Jersey found that New Jersey law applied, that it was a STOLI transaction lacking insurable interest in violation of the state's public policy, and declared the policy void ab initio. The court also granted Wells Fargo a refund of the premiums it had paid, reasoning that Wells Fargo was not to blame for the fraud, and that allowing Sun Life to retain the premiums would provide a windfall to Sun Life.

Third Circuit Ruling
Both parties appealed to the federal Third Circuit. Finding no dispositive New Jersey case law, the Third Circuit certified two questions of law to the New Jersey Supreme Court. Here are the questions:
  1. Does a life insurance policy that is procured with the intent to benefit persons without an insurable interest in the life of the insured violate the public policy of New Jersey, and if so, is that policy void ab initio?
  2. If such a policy is void ab initio, is a later purchaser of the policy, who was not involved in the illegal conduct, entitled to a refund of any premium payments that they made on the policy?
New Jersey Supreme Court Ruling
The New Jersey Supreme Court answered yes to both parts of the first certified question. In other words, a life insurance policy procured with the intent to benefit persons who do not have an insurable interest in the life of the insured violates the public policy of New Jersey, and such a policy is void ab initio.

On the second certified question, the court ruled that a party may be entitled to a refund of premiums it paid on the policy, "depending on the circumstances." To decide the appropriate remedy, the court ruled that trial courts should develop a record and balance the relevant equitable factors, such as a party's level of culpability, its participation in or knowledge of the fraud, and its failure to notice red flags. A party may be entitled to a refund of premiums it paid, particularly a later purchaser who was not involved in the fraudulent conduct. The court noted that the district court had considered equitable principles and had fashioned a compromise award, but had not commented on the award.

Earlier STOLI Cases
My first article about the secondary market for life insurance was in the March 1989 issue of The Insurance Forum. My second article was in the March 1999 issue of the Forum, and was prompted by my first evidence of what later became known as STOLI. The articles are in the complimentary package offered at the end of this post.

I have also written extensively about STOLI on my blog. Four such posts, in chronological order, are No. 131 (12/9/15), No. 166 (6/15/16), No. 167 (6/20/16), and No. 228 (8/1/17).

General Observations
I think major life insurance companies have instituted sufficient safeguards to prevent significant amounts of new STOLI business from being initiated. The problem now is the handling of the huge volume of STOLI business that was initiated during the heyday of STOLI and is now moving around among a shrinking number of investors. I think the STOLI business will continue to generate litigation for many years.

Available Material
I am offering a complimentary 69-page PDF consisting of the syllabus and full New Jersey Supreme Court opinion (53 pages), and the articles about the secondary market in the March 1989 and March 1999 issues of the Forum (16 pages). Email jmbelth@gmail.com and ask for the June 2019 package about STOLI.

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Monday, June 10, 2019

No. 316: John F. X. Mannion—A Memorial Tribute

John F. X. Mannion
John F. X. "Jack" Mannion, of Syracuse, New York, died on May 25, 2019, at age 86. He served for many years as Chairman and Chief Executive Officer of Unity Mutual Life Insurance Company, which was based in Syracuse.

Jack was born in the Bronx on December 6, 1932, during the Great Depression. He graduated at the top of his class at All Hollows High School. He then attended the University of Notre Dame, where he enrolled in the Air Force ROTC program. He was a lifelong supporter of both All Hollows and Notre Dame. He served in the U.S. Air Force during the Korean War. After his discharge with the rank of captain, he started his insurance career as an agent. Jack's wife, Stephanie Miner, served as Mayor of Syracuse from 2010 to 2018.

Although Jack and I were fellow Syracusans, we never met face to face. I left Syracuse in 1958 and returned only for personal family visits and later for the 50th reunion of my high school class. However, Jack and I became good friends not long after I started publishing The Insurance Forum, my monthly newsletter. Whenever he saw an article there that intrigued him, he would write or call to talk about it. I always enjoyed our discussions because they helped me understand the viewpoint of a prominent practitioner in the business.

My favorite personal story about Jack was a letter from him not long after we became acquainted. He told me that, whenever he received an envelope showing my return address, he would open it with trepidation. He explained he was fearful that I was considering an article critical of his company. I assured him that, if I ever considered an article about his company, critical or not, he would hear about it from me in advance and by telephone rather than by letter.

Our final exchange was less than a year ago, when Jack sent me an email commending me on a particular item I had just posted on my blog.  I thanked him and said his kind words meant a lot to me.

Jack was a wonderful person, a strong supporter of my work, and a good friend. I will miss him greatly.

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Monday, June 3, 2019

No. 315: Long-Term Care Insurance —A Lawsuit Relating to the Calculation of Inflation Benefits

On May 17, 2018, Gerald Issokson (Gerald), executor of the estate of his mother, Pearl Issokson (Pearl), filed a class action lawsuit against Connecticut General Corporation and three other firms. Pearl owned long-term care (LTC) insurance coverage under a group LTC policy. The policy included home health care benefits up to a lifetime maximum benefit of $10,000, and an inflation provision. Pearl's coverage was provided through a certificate effective November 1, 1988. (See Issokson v. Connecticut General, U.S. District Court, District of Massachusetts, Case No. 3:18-cv-30070.)

The Complaint
Pearl died April 20, 2015. At the time of her death she was aged 92 and had been receiving home health care since 1990 due to physical and cognitive impairments. She was eligible for home health care benefits from 1990 through 2013, but neither she nor her family collected those benefits. Gerald asked the company to look into the matter.

The company sent Gerald a check for $16,130 representing the sum of the $10,000 lifetime maximum benefit and $6,130 for the impact of the inflation provision. Gerald alleges in the complaint that the company calculated the impact of the inflation provision using simple interest, although the insurance certificate seems to require that the impact of the inflation provision should be calculated using compound interest.

The Inflation Provision
The inflation provision in Pearl's insurance certificate consists of one sentence. It reads:
The benefits will automatically be increased by the lesser of the percent of increase in the Consumer Price Index during the prior calendar year or 5 percent.
When Gerald requested an explanation of the inflation calculation, a company spokesperson responded in a letter dated February 4, 2016. The letter shows the yearly percentage increases in the Consumer Price Index (CPI) for the years 1990 through 2013. The simple total of the yearly percentage increases in the CPI is indeed 61.3 percent. According to my calculation, however, the total of the yearly percentage increases in the CPI, compounded annually,  is 82.98 percent. Thus the check should have included $8,298 rather than $6,130 for the impact of the inflation provision. The reason why the discrepancy was only $2,168 was that the yearly percentage increases in the CPI were small during the time period in this case. Gerald's complaint and the spokesperson's letter are in the complimentary package offered at the end of this post.

The Classes
Gerald seeks to represent four classes. They are: (1) a "damages class" consisting of all current and future policyholders, nationwide, of any of the defendants whose certificates of insurance contain the language quoted above, or similar language, (2) an "injunctive class" consisting of all current policyholders, nationwide, of any of the defendants whose certificates of insurance contain the language quoted above, or similar language, (3) a "Massachusetts damages class," and (4) a "Massachusetts injunctive class."

The Counts
The complaint consists of five counts. They are: (1) breach of contract, (2) violations of the Connecticut Unfair Insurance Practices Act, (3) declaratory relief, (4) bad faith breach of duty of good faith and fair dealing, and (5) violations of certain Massachusetts laws.

Progress of the Case
The defendants have not filed an answer to the complaint. However, on July 16, 2018, the plaintiff and the defendants filed a joint stipulation containing three items:
  1. This Court lacks personal jurisdiction over the claims of non-Massachusetts putative class members and all claims against Connecticut General Corporation.
  2. Plaintiff lacks standing to assert class action claims under the Connecticut Unfair Insurance Practices Act against Connecticut General Corporation.
  3. Plaintiff lacks Article III standing to seek declaratory relief.
On July 20, 2018, the judge commented on the joint stipulation. He said in part:
The court adopts the parties' proposal set forth in the Stipulation. Therefore, the court will treat the Stipulation as a fully briefed and opposed partial motion to dismiss, incorporating the identical arguments made in the briefing and oral argument regarding the partial motion to dismiss in Rain v. Connecticut General Corp., 17-cv-30115....
It is important to note that the subject of the Rain case is not related to the subject of the Issokson case. The judge has not yet ruled on the partial motion to dismiss in either the Rain case or the Issokson case.

General Observations
The underlying issue in the Issokson case is whether the impact of the inflation provision in Pearl's certificate should be calculated on a simple basis or on a compound basis. The defendants have not yet said a word about that underlying issue.

Based on my reading of the wording of the inflation provision in Pearl's certificate, I think the company should have used the compound calculation rather than the simple calculation. Even if one believes the opposite, the language in the certificate is certainly ambiguous on the subject, and an ambiguous provision is supposed to be interpreted against the party that drafted the provision.

Available Material
I am offering a complimentary 29-page PDF consisting of the Issokson complaint (22 pages), the company spokesperson's letter (2 pages), and the joint stipulation (5 pages). Send an email to jmbelth@gmail.com and ask for the June 2019 package about the Issokson LTC insurance case.

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