Monday, December 9, 2019

No. 344: Long-Term Care Insurance—More on the Insolvency of Senior Health Insurance Company of Pennsylvania

Senior Health Insurance Company of Pennsylvania (SHIP) is based in Pennsylvania and is regulated primarily by the Pennsylvania Insurance Department (Department). SHIP has been running off the long-term care (LTC) insurance business of Conseco Senior Health Insurance Company (CSHI) since 2008. The CSHI LTC insurance business was in runoff for five years before SHIP took over the business. In No. 308 (April 11, 2019) and No. 342 (November 25, 2019), I wrote about the insolvency of SHIP. Here I discuss my correspondence with the Department and with the National Organization of Life and Health Guaranty Associations (NOLHGA) after No. 342 was posted.

Correspondence with the Department
In No. 342 I said I would send it to the Department upon posting, mention my plan to post a follow-up, and request from the Department a statement about SHIP in a form suitable for inclusion in the follow-up. When No. 342 was posted, I forwarded it to Joseph DiMemmo, CPA. He is the Department's Deputy Insurance Commissioner for Corporate and Financial Regulation of Insurance Companies. I imposed no length limit, and said this in the email:
Below is No. 342, which was posted this morning. As indicated, I hereby request a statement regarding SHIP from the Pennsylvania Insurance Department. I need the statement by 5:00 p.m. Eastern time on Monday, December 16, 2019. Please acknowledge receipt of this email. Thank you.
An hour later he sent a two-word reply: "As requested." He attached the 51-page SHIP statutory statement for the quarter ended September 30, 2019. An hour later I said:
Thank you for SHIP's statutory statement for the quarter ended September 30, 2019. As pointed out in No. 342, I already had that statement. Is the Pennsylvania Insurance Department planning to comply with my request for a statement about SHIP by December 16?
The next day I asked him whether I may anticipate a statement about SHIP from the Department by December 16. He replied a day later:
The Department is aware of the issues raised in your article and does not comment on the financial affairs of insurers beyond what is public information. Other regulators are also aware of the issues raised and understand we are working with the company to address them. Thank you for your interest.
Correspondence with NOLHGA
On November 26 I forwarded No. 342 to NOLHGA. The next day I informed NOLHGA of the Department's comments, and said:
I hereby request a statement regarding SHIP from NOLHGA by 5:00 p.m. Eastern time on Monday, December 16, in a form suitable for publication in my follow-up blog post. Please acknowledge receipt of this email and indicate whether I may anticipate a statement from you. Thank you for your assistance.
Half an hour later a NOLHGA spokesperson provided a one-sentence response: "We defer to the Pennsylvania Department, but thank you for checking with us."

The Penn Treaty Case
Penn Treaty Network America Insurance Company and its subsidiary American Network Insurance Company (together, "Penn Treaty") are LTC insurance companies based in Pennsylvania and regulated primarily by the Department there. In 2009 the Department petitioned a state court to liquidate Penn Treaty. After a long dispute, including a trial, the court denied the petition and ordered Penn Treaty to be placed in rehabilitation. The rehabilitation failed. On March 1, 2017, the court ordered the Department to place Penn Treaty in liquidation. NOLHGA and the state guaranty associations are now involved.

Penn Treaty's website (penntreaty.com) and NOLHGA's website (nolhga.com) provide extensive information about Penn Treaty's liquidation. By contrast, SHIP's website (shipltc.com) and NOLHGA's website say nothing about SHIP's insolvency. As for the Department's website (insurance.pa.gov), some information about SHIP may be found through a search (I provided some of that information in a complimentary package offered in No. 342), but SHIP's policyholders and claimants have no means—other than through lengthy, complex, and hard-to-obtain statutory statements—by which to learn the company is insolvent.

General Observations
When No. 342 was posted, a reader asked what I thought should be done about SHIP. In response, I pointed out that I had said the Department should require SHIP to send annual reports to policyholders and claimants. I made the suggestion because I think policyholders and claimants have a right to know the company is insolvent. Such reports should not only mention the insolvency but also should include more than a mere indication that SHIP is working with the Department to address the problem. I recognize that disclosure of SHIP's insolvency to its policyholders and claimants may hasten the doomsday scenario I mentioned in No. 342, where the company's assets run out. However, I see no way for SHIP and the Department to address the company's insolvency without obtaining court authorization to place the company in liquidation, thus bringing NOLHGA and the state guaranty associations into the process.

I plan to post another follow-up in March 2020, after I see SHIP's statutory statement for the year ended December 31, 2019. However, I may post a follow-up sooner if I learn of any important developments.

Available Material
In No. 342 I offered a complimentary 49-page PDF consisting of four articles in The Insurance Forum about the creation of SHIP, selected pages from SHIP's statutory statement for the quarter ended September 30, 2019 (6 pages), a limited-scope examination report on SHIP as of year-end 2016 (6 pages), and a market conduct examination report on SHIP as of April 2019 (27 pages). The package is still available. Email jmbelth@gmail.com and ask for the December 2019 SHIP package.

===================================

Monday, December 2, 2019

No. 343: Long-Term Care Insurance—A Complaint by a Policyholder Relating to a Genworth Premium Increase

On this blog I have posted several items about class action lawsuits against Genworth Financial, Inc. (Genworth) relating to premium increases on long-term care (LTC) insurance policies. The two most recent are No. 334 (9/26/19) and No. 337 (10/17/19). Here I discuss an individual consumer's complaint to a state insurance regulator relating to a Genworth premium increase, and an ironic incident that occurred more than 20 years ago.

The Genworth Notification
The consumer purchased the policy in 1996. Genworth recently notified the consumer of an 80 percent premium increase. The letter, with the emphasis in the original and over the signature of a senior company officer, reads:
Thank you for choosing Genworth for your long term care insurance needs. We value your business and are committed to providing quality service and being here when you need us the most.
This letter is to inform you that, as a result of higher than expected aggregate policyholder claims costs, the premium on your current long term care coverage will increase from ––– to ––– beginning on your next billing anniversary date, –––. Please refer to the enclosed Coverage Options page and Important information page for more details. Please note that this increase is not due to a change in your health, age, or claims history.
We appreciate the financial difficulty premium increases can cause. That is why we are offering coverage adjustment options to help you manage your premium cost while still maintaining important coverage. The enclosed pages outline these options along with your personalized information. We encourage you to discuss your options with your financial advisor or a member of our Customer Service Team by calling (877) 710-0817 before making a decision. For additional information regarding premium increases, we encourage you to visit www.genworth.com/ltcpremiums.
Once again, thank you for being a Genworth policyholder.
The Consumer Complaint
The consumer filed a complaint with the regulator in the state where the consumer resides. The complaint reads:
I have had this Long Term Care Insurance since 1996 and have diligently paid over $27,000 of premiums. Having this Long Term Care Insurance was a key component of my plan to ensure I had adequate care as I aged. Now as I am entering a time of my life when I could very well need this insurance, Genworth has increased the quarterly premium from ––– to ––– (+80%!) which I cannot afford on my very limited budget. They have offered alternative plans however all these options reduce the benefits drastically to the point where I may not have adequate long term care as planned for 23 years ago. I feel this is very unfair and unjustified.
It is clear that Genworth is no longer a reliable and trusted Long Term Care Insurer. Genworth has found a path forward which maximizes its profits but leaves me highly exposed to Long Term Care costs. I feel that they should honor their policy with an immediate payout of the maximum benefit currently contained in my policy ($314,000). This would allow me the chance to live out my life in good care and Genworth to sever its relationship with me as a good corporate citizen.
The Regulatory Reply
A rate review policy analyst in the state insurance department responded to the consumer complaint. The letter reads:
Thank you for taking the time to send in your complaint regarding your long term care policy with Genworth. After a thorough actuarial review, [we] did approve a rate increase for Genworth long term care policies. The current policies in place are not generating sufficient premium to pay future claims to policyholders. This is a common problem for a number of insurers nationwide because policyholders are keeping their policies longer than expected and are living longer than projected, thus using more benefits than the company anticipated when the policies were originally sold. Additionally, the cost of providing long-term care is increasing at a rate much higher than anticipated.
[We] do not have the authority to require the company to take the action you have requested. However, the company has provided several options to mitigate the rate increase.
I know this is not the information you were hoping to receive but I hope it's at least helpful. Please let us know if you have any further questions. Thank you.
An Ironic Incident
My first article about LTC insurance was in the February 1988 issue of The Insurance Forum, the monthly newsletter I edited for 40 years until I shut it down in 2013 and started my blog. In the May 1997 issue I wrote about a promotional letter I had just received concerning guaranteed renewable LTC insurance offered by General Electric Capital Assurance Company, a predecessor of Genworth. The letter included this sentence, with this underlining: "Your premiums will never increase because of your age or any changes in your health." I wrote the company expressing concern that the sentence, although technically correct, was deceptive. I said the promotional letter should make clear that the company has the right to increase premiums on a class basis.

The company officer who had signed the promotional letter responded. He defended the sentence by saying, among other things, that the company had never raised rates on existing policyholders and had an "internal commitment to rate stability." Nonetheless, and without telling me, the company removed the deceptive sentence from its promotional letters. I wrote about the incident in the May 1997 and February 1998 issues of the Forum. Those articles are in the complimentary package offered at the end of this post.

The Genworth 2019 Annual Meeting
In the above mentioned No. 334, I discussed the annual meeting of Genworth's shareholders to be held on December 12, 2019, if the long-delayed merger agreement with China Oceanwide has not been completed by that date. On November 1, 2019, Genworth circulated proxy materials related to the 2019 annual meeting, and indicated that the merger has not yet been completed. Readers interested in the proxy materials may access them here.

General Observations
During the six years I have been blogging, I have received many emails from individuals concerning problems with LTC insurance. Some related to claims practices, and some related to premium increases. It pained me to tell them I am neither an attorney nor a consultant, and am not in a position to comment beyond what I have written. However, I did try to make sure they knew how to find my blog posts on LTC insurance, and some of the email exchanges led to further posts.

For many years I have said that the LTC exposure violates several important insurance principles, and for that reason the problem of financing the LTC exposure cannot be solved through the mechanism of private insurance. I explained the situation in an article in the July 2008 issue of the Forum. That article is in the complimentary package offered at the end of this post.

I have also said that even the federal government cannot solve the problem of financing the LTC exposure through a voluntary system. Rather, it can be solved by the government only through a mandatory system that is part of a mandatory, single-payer system of universal health care. I discussed this matter in No. 310 (April 22, 2019) in the section entitled "General Observations."

In Chapter 18 of my 2015 book, The Insurance Forum: A Memoir, I summarized my experiences with LTC insurance. The chapter is in the complimentary package offered at the end of this post. The book is available for purchase at www.theinsuranceforum.com.

Available Material
I am offering an 18-page complimentary package consisting of the May 1997, February 1998, and July 2008 Forum articles (9 pages) and Chapter 18 of the Memoir (9 pages). Send an email to jmbelth@gmail.com and ask for the December 2019 package about LTC insurance.

===================================

Monday, November 25, 2019

No. 342: Long-Term Care Insurance and the Expanding Insolvency of Senior Health Insurance Company of Pennsylvania

Senior Health Insurance Company of Pennsylvania (SHIP), which is domiciled in Pennsylvania, has been running off the long-term care (LTC) insurance business of Conseco Senior Health Insurance Company (CSHI) since 2008. I wrote four articles in The Insurance Forum about the transfer of CSHI's LTC insurance business to SHIP. (The four articles are in the complimentary package offered at the end of this post.)

In No. 308 (April 11, 2019), I said SHIP was insolvent by $447 million. According to the company's financial statement for the year ended December 31, 2018 (filed March 1, 2019), total liabilities of $2.653 billion exceeded total assets of $2.206 billion. Here I report that the deficit has been expanding in 2019. I also discuss a few related matters.

Quarterly Data in 2019
According to SHIP's financial statement for the quarter ended March 31, 2019 (filed May 15), the deficit had grown to $462 million. According to the statement for the quarter ended June 30, 2019 (filed August 15), the deficit had grown to $477 million. According to the statement for the quarter ended September 30, 2019 (filed November 15, 2019), the deficit had grown to $524 million. (Six selected pages from the latest quarterly statement are in the complimentary package offered at the end of this post.)

RBC Data
The numerator of a risk-based capital (RBC) ratio is "total adjusted capital," the denominator is "company action level," and the quotient is the RBC ratio. According to SHIP's financial statement for the year ended December 31, 2018, total adjusted capital was minus $467 million, company action level was $102 million, and the RBC ratio was minus 458 percent. RBC data do not appear in quarterly statements, but the RBC ratios are negative because total adjusted capital is negative.

According to state RBC laws, when a company's RBC ratio falls below 35 percent, the company is in the "mandatory control zone," and the primary regulator—the Pennsylvania Insurance Department (Department) in this instance—is required to seek state court permission to seize control of the company. Yet the Department has not done so. I asked the National Organization of Life and Health Guaranty Associations (NOLHGA) about SHIP. NOLHGA referred me to the Department. I asked the Department about SHIP, but received no reply.

In SHIP's statement for the year ended December 31, 2018, this sentence appears: "There is not substantial doubt about the Company's ability to continue as a going concern." I do not know how a company deep in the mandatory control zone can justify that assertion. In SHIP's three quarterly statements in 2019, these two sentences appear:
The Company has suffered recurring losses from operations and has a net capital and surplus deficit. The Company is actively working with the Pennsylvania Insurance Department to develop a corrective action plan.
The Limited-Scope Examination
On the Department's website, I recently found a "Report of Limited-Scope Examination" of SHIP as of December 31, 2016. The "Conclusion" of the report contains these comments (the full report is in the complimentary package offered at the end of this post):
Although each of the Consulting Actuary's scenarios produce less favorable results than the Company's base scenario, and indicate material reserve deficiencies, the Department is making no recommendation to change the financial statement at this time.
The Company has agreed to consider several long-term monitoring suggestions from the Consulting Actuary and incorporate those monitoring suggestions as needed into future reserve studies. The Department will continue to closely monitor the Company's financial condition and operating results.
The next regularly scheduled financial condition examination of the Company will cover the five-year period ending December 31, 2018.
I asked the Department when the examination for the five-year period ending December 31, 2018 will be available. I received no reply.

The Market Conduct Examination Report
On the Department's website, I recently found a "Market Conduct Examination Report" of SHIP as of April 24, 2019. The report includes a detailed history of the company, refers to a third-party administration agreement with Long Term Care Group (LTCG), and contains the company's response. Here are two of several recommendations (the full report is in the complimentary package offered at the end of this post):
The Company must review and revise internal control procedures to ensure compliance with claims handling requirements, so that the violations relating to claim acknowledgment, status letters, acceptance or denials, and payments as noted in the Examination Report, do not occur in the future.
The Company must ensure LTCG representatives are trained to fully disclose to first-party claimants the benefits, coverages, alternative plans of care, or other provisions of the insurance policy or insurance contract when the benefits, coverages or other provisions are pertinent to a claim.
Licensing
According to SHIP's financial statements, the company remains licensed in all U.S. jurisdictions except Connecticut, New York, Rhode Island, Vermont, American Samoa, Guam, Puerto Rico, and Northern Mariana Islands. In reply to my inquiries, a few of those eight jurisdictions said they have no record of the company ever being licensed there.

General Observations
Normally, when an insurance company is in financial trouble, the primary regulator seeks state court permission to seize control of the company and place it in rehabilitation or liquidation. (Liquidation would trigger state guaranty association coverage.) In this instance, however, SHIP and its predecessor, CSHI, have been in runoff mode since 2003. Because the company does not sell new policies, perhaps the thinking is that there is no need for the Department to take formal control of the company. In the absence of straight answers from the Department and NOLHGA, it appears that the Department has effectively taken control of SHIP without a court order. Stated another way, it appears that the company is "in limbo" without disclosure of the situation to the premium-paying policyholders and the recipients of benefits. To my knowledge SHIP provides no annual reports to policyholders and claimants. I think the Department should require SHIP to do so.

There is another way to look at this highly unusual regulatory procedure. The "in limbo" status of SHIP's policyholders and claimants may continue for many years—probably decades—until the assets run out. At that point the company would have to close down, cancel the policies, and stop benefit payments to claimants. The situation raises important questions: when and how should the company's status be disclosed to (1) premium-paying policyholders that they likely will not receive the benefits promised under their policies, and (2) claimants that their benefit payments likely will stop. This doomsday scenario is the result of "kicking the can down the road" and leaving the problem in the hands of a future generation of regulators.

When this item is posted, I will send it to the Department. I will say I plan to write a follow-up, and will ask the Department for a statement about SHIP in a form suitable for inclusion in the follow-up. I will impose no limitation on the length of the statement, but will ask the Department to provide the statement within three weeks.

Available Material
I am offering a complimentary 49-page PDF consisting of the four Forum articles (10 pages), selected pages from the latest quarterly statement (6 pages), the limited-scope examination report (6 pages), and the market conduct examination report (27 pages). Email jmbelth@gmail.com and ask for the December 2019 SHIP package.

===================================

Friday, November 15, 2019

No. 341: The Age 100 Problem—Another Update on the Lebbin Lawsuit Against Transamerica

In No. 331 (September 6, 2019), I posted an update about a 2017 lawsuit by Gary H. Lebbin—at the time he was almost 100—and the Lebbin-Spector Family Trust ("Trust"). The trustees of the Trust are Gary's two children. The defendant is Transamerica Life Insurance Company. Here I provide another update. (See Lebbin v. Transamerica, U.S. District Court, Southern District of Florida, Case No. 9:18-cv-80558.)

Recent Developments
On February 5, 2019, by which time Gary was afflicted with dementia, Transamerica settled with him for $10,000. On February 22 the Trust filed an amended complaint that omitted Gary as a plaintiff, leaving the Trust as the only plaintiff. The amended complaint included five counts: declaratory relief, breach of contract, breach of the covenant of good faith and fair dealing, reformation, and rescission. On July 19 the judge granted the Trust's claim for breach of contract. The other four counts were denied by the judge or withdrawn by the Trust.

On July 30 the judge canceled the trial, which had been set for August 5. The parties said they had agreed to resolve the case, but they had not agreed on the damages for the Trust's breach-of-contract claim. The damages thus became the only remaining issue in the case. Had there been a trial, it would have been interesting to see what the jury would have said about the amount of damages. The judge set a briefing schedule under which the Trust was required to file its motion for summary judgment (MSJ) on damages by August 30.

The Trust's MSJ on Damages
On that date the Trust filed its MSJ on damages. The Trust requested a return of all premiums paid to Transamerica—a total of $1,670,140.91 plus prejudgment interest. The prejudgment interest rates the Trust suggested are the Florida statutory rates at the time of each premium payment. The Trust said it would provide the interest figure prior to the entry of final judgment.

Transamerica's Response
The briefing schedule required Transamerica to file its response to the Trust's MSJ by October 10. On that date the company filed a massive amount of material, including a document opposing the Trust's MSJ, a cross-motion for summary judgment, a memorandum of law, a response to the Trust's statement of undisputed material facts, 48 exhibits, and three supplemental declarations in opposition to the Trust's MSJ. Here is the first paragraph of Transamerica's opposition document. (The full opposition document is in the complimentary package offered at the end of this post.) It is important for the reader of the paragraph to understand that each of the two policies was a second-to-die universal life policy.
The result sought by Plaintiffs in this case would turn fundamental principles of insurance law and justice on their head. Gary Lebbin purchased two life insurance Policies insuring himself and his wife with a total death benefit of $3.2 million. Mr. Lebbin was fully aware that the Policies provided that, if both insureds died before each was 100 years old, the Policies would pay the death benefit. If either insured lived to be 100, the Policies would terminate and instead pay any cash value. Mr. Lebbin was a very sophisticated businessman who worked with expert brokers in purchasing these Policies, and personally managed them for 24 years. His management fully and repeatedly comported with and ratified this understanding of the Policies. In managing the Policies, Mr. Lebbin could either pay just enough premium to maintain the Policies to age 100, or he could pay sufficient premiums to build a cash value upon termination. He paid only the minimum premium because he believed he would not live to be 100, and he wanted the least expensive insurance.
The Trust's Reply
The briefing schedule required the Trust to reply to Transamerica's response by November 8. On that date the Trust filed its reply in support of its MSJ for damages, its response to Transamerica's cross-motion for summary judgment, and a motion to strike or disregard the supplemental declarations. Here, without citations, is the first paragraph of the Trust's reply in support of its MSJ for damages (the full reply document is in the complimentary package offered at the end of this post):
Transamerica argues that, regardless of the measure of damages the Court selects for Transamerica's wrongful termination of the Policies, Plaintiffs should not be compensated in any fashion for Transamerica's breach of contract. According to Transamerica's concept of "insurance law and justice," a life insurance company can breach its life insurance policies by improperly terminating them and yet retain millions of dollars in premium, interest, investment gains, profits, and reserved death benefits. Transamerica asks the Court to put Transamerica in a better position than if it had performed under the Policies, notwithstanding that the Policies have been adjudged so "incomprehensible" as to be "rendered ambiguous." [Emphasis in original.]
General Observations
The briefing schedule on damages requires Transamerica to file any response to the Trust's reply by November 25. As I understand it, after briefing is completed, the judge will rule on the damages for the Trust's breach-of-contract claim. I plan to prepare yet another update on this case after the judge rules on the damages.

Available Material
My previous posts about the Lebbin case, in addition to the above-mentioned No. 331, are Nos. 226, 241, 269, and 327. In each of those posts, I offered a complimentary package containing additional material. Those packages are still available.

Now I am offering a complimentary 55-page package consisting of Transamerica's October 10 opposition document (28 pages) and the Trust's November 8 reply document (27 pages). Email jmbelth@gmail.com and ask for the November 2019 package about Lebbin v. Transamerica.

===================================

Monday, November 11, 2019

No. 340: The Markopolos Book about the Madoff Ponzi Scheme

In No. 329 (August 28, 2019), I wrote about a whistleblower report by Harry M. Markopolos alleging that General Electric Company (GE) is a "Bigger fraud than Enron" and is "headed toward bankruptcy." One part of the report relates to GE's accounting for its long-term care (LTC) insurance legacy problem, a subject that has been of great interest to me for a long time.

In that post I mentioned a 2010 book entitled No One Would Listen: A True Financial Thriller, a personal account by Markopolos of his efforts to expose the massive Ponzi scheme Bernard Madoff operated for many years. When I wrote that post, I had not read the Markopolos book. I have now read it, and it is excellent.

The Markopolos Book
The 354-page Markopolos book consists of nine chapters following the front matter, and also includes an epilogue, three appendixes, a note on sources, acknowledgments, biographical information about the author, and an index. The entire book is a good read, but the most interesting section begins with Chapter 7 entitled "More Red Flags Than the Soviet Union" and ends with the collapse of Madoff's scheme. The first two paragraphs of Chapter 1 illustrate the author's writing style:
On the morning of December 11, 2008, a New York real estate developer on a JetBlue flight from New York to Los Angeles was watching CNBC on the small back-seat television. A crawl across the bottom of the screen reported that Bernard Madoff, a legendary Wall Street figure and the former chairman of NASDAQ had been arrested for running the largest Ponzi scheme in history. The developer sat silently for several seconds, absorbing that news. No, that couldn't be right, he thought, but the message streamed across the screen again. Turning to his wife, he said that he knew that she wasn't going to believe what he was about to tell her, but apparently Bernie Madoff was a crook and the millions of dollars that they had invested with him were lost. He was right—she didn't believe him. Instead, she waved off the thought. "That's not possible," she said, and returned to the magazine she was reading.
The stunned developer stood up and walked to the rear of the plane, where the flight attendants had gathered in the galley. "Excuse me," he said politely, "but I'm going to be leaving now. So would you please open the door for me? And don't worry—I won't need a parachute."
The Report of the SEC OIG
On December 11, 2008, Madoff confessed and was arrested. The Securities and Exchange Commission (SEC) charged him with securities fraud for a multi-billion dollar Ponzi scheme he had perpetrated on clients of his firm, and the U.S. Attorney in the Southern District of New York indicted him on criminal charges.

On December 18, 2008, the SEC Office of Inspector General (OIG) issued a document preservation notice to the entire SEC. On March 12, 2009, Madoff pled guilty to all charges. On June 29, 2009, he was sentenced to serve 150 years in prison.

On August 31, 2009, H. David Kotz, the inspector general of the SEC, issued a major report. The complimentary package offered at the end of this post includes the entire public version of the report. Here is the first paragraph in the concluding section of the report:
The OIG investigation found that the SEC received numerous substantive complaints since 1992 that raised significant red flags concerning Madoff's hedge fund operations and should have led to questions about whether Madoff was actually engaged in trading and should have led to a thorough examination and/or investigation of the possibility that Madoff was operating a Ponzi scheme. However, the OIG found that although the SEC conducted five examinations and investigations of Madoff based upon these substantive complaints, they never took the necessary and basic steps to determine if Madoff was misrepresenting his trading. We also found that had these efforts been made with appropriate follow-up, the SEC could have uncovered the Ponzi scheme well before Madoff confessed.
The Recent GE 10-Q Report
On October 30, 2019, GE filed its 10-Q report for the quarter ended September 30, 2019. The report contains information about GE's legacy LTC insurance business. The information is on pages 27-31 and 65-66 of the report. Those pages are in the complimentary package offered at the end of this post.

General Observations
In the above mentioned No. 329, I expressed the opinion that the ad hominem attack against Markopolos in GE's initial response to the release of the Markopolos report was unfortunate. The 11th edition of Merriam-Webster's Collegiate Dictionary defines "ad hominem" as "marked by or being an attack on an opponent's character rather than by an answer to the contentions made." After reading the Markopolos book, I feel more strongly about GE's initial response to the Markopolos report.

Available Material
In the above mentioned No. 329, I offered a complimentary 20-page package containing some information about the Markopolos report on GE. That package is still available.

Now I offer a complimentary 484-page PDF consisting of excerpts from GE's recent 10-Q report (7 pages) and the full 2009 SEC OIG report on Madoff (477 pages). Email jmbelth@gmail.com and ask for the November 2019 package about the 2010 Markopolos book.

===================================

Monday, October 28, 2019

No. 339: The House Judiciary Committee Wins a Major Court Victory

On July 26, 2019, the House Judiciary Committee (HJC) filed in federal court an application for an order authorizing release to HJC of certain grand jury materials. On September 13 the Department of Justice (DOJ) responded to the application. On October 3 Doug Collins, the ranking minority member of HJC, filed an amicus brief arguing that the court should deny the application without prejudice because, among other reasons, the House has not authorized HJC to open an impeachment proceeding.

On October 25 Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia handed down a lengthy opinion and a brief order granting HJC's application. DOJ had redacted certain material from the report filed in March 2019 by Special Counsel Robert S. Mueller III. (See In re Application of HJC for an order authorizing release of certain grand jury materials, U.S. District Court. District of Columbia, Grand Jury Action No. 19-48.)

Excerpts from the Opinion
The opinion includes a one-page table of contents and 74 pages of text. Here (without citations) are the first three paragraphs and the concluding two paragraphs of the opinion (the full opinion and the order are in the complimentary package offered at the end of this post):
In March 2019, Special Counsel Robert S. Mueller III ended his 22-month investigation and issued a two-volume report summarizing his investigative findings and declining either to exonerate the President from having committed a crime or to decide that he did. The Special Counsel explained that bringing federal criminal charges against the President would "potentially preempt constitutional processes for addressing presidential misconduct." With this Statement, the Special Counsel signaled his view that Congress, as the federal branch of government tasked with presidential impeachment duty under the U.S. Constitution, was the appropriate body to resume where the Special Counsel left off.
The Speaker of the House of Representatives has announced an official impeachment inquiry, and the House Judiciary Committee ("HJC"), in exercising Congress's "sole Power of Impeachment," is reviewing the evidence set out in the Mueller Report. As part of this due diligence, HJC is gathering and assessing all relevant evidence, but one critical subset of information is currently off limits to HJC: information in and underlying the Mueller Report that was presented to a grand jury and withheld from Congress by the Attorney General.
The Department of Justice ("DOJ") claims that existing law bars disclosure to the Congress of grand jury information. DOJ is wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel's investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell HJC. As explained in more detail below, HJC's application for an order authorizing the release to HJC of certain grand jury materials related to the Special Counsel investigation is granted....
For the foregoing reasons, HJC's application is granted. Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized needs for additional grand jury information requested in the initial application.
An appropriate Order accompanies this Memorandum Opinion.
The Order
The "final and appealable" order grants HJC's application and orders DOJ to disclose to HJC, by October 30, certain material from the Mueller Report. It also says HJC may submit further requests for material in addition to the material requested in the application.

General Observations
At this writing I do not know whether DOJ will comply with the order. Recent press reports say DOJ is studying the ruling and considering its options. Meanwhile, I strongly recommend you read the entire opinion, whether or not you have read the Mueller Report. The early sections of the opinion include an interesting summary of the Mueller report.

In No. 295 (November 9, 2018), I wrote about the "Road Map" the Watergate Grand Jury transmitted under seal to HJC in 1974. HJC used the Road Map in developing articles of impeachment against President Richard Nixon. On September 14, 2018, three individuals petitioned for an order to unseal the Road Map. On October 11, 2018, Chief Judge Howell granted the petition.

Available Material
In the above mentioned No. 295, I offered a complimentary 68-page package containing the Road Map. That package is still available.

Now I am offering a complimentary 77-page PDF consisting of Chief Judge Howell's opinion (75 pages) and her order (2 pages). Email jmbelth@gmail.com and ask for the October 2019 package relating to Chief Judge Howell's ruling on the HJC application.

===================================

Thursday, October 24, 2019

No. 338: Greg Lindberg—An Update

In No. 309 (April 17, 2019), I discussed the indictment of Greg E. Lindberg and three others by a federal grand jury in North Carolina. In No. 320 (July 1, 2019), I provided an update, including a discussion of the placement of four Lindberg insurance companies into court-ordered rehabilitation at the request of the North Carolina insurance commissioner. Here I provide a further update. (See U.S.A. v. Lindberg, U.S. District Court, Western District of North Carolina, Case No. 5-19-cr-22.)

The Lindberg Motion to Dismiss
On September 18, 2019, Lindberg filed a motion to dismiss the indictment for failure to state an offense. Here (without citations) are the first two paragraphs of the supporting memorandum (the motion and the full supporting memorandum are in the complimentary package offered at the end of this post):
The government's entire case against Greg E. Lindberg turns on a legally flawed understanding of what constitutes an "official act." According to the government, requesting a personnel move is an official act giving rise to federal criminal liability even when the defendant in no way requested an ultimate outcome on any matter or proceeding that may in the future be pending before the government.
The government's theory is foreclosed by the logic of two recent decisions of the Supreme Court: McDonnell v. U.S. and Skilling v. U.S. And the government's theory raises the full range of constitutional issues that the Court identified in those decisions. Most notably, prosecutions of this nature will inhibit the rights of all Americans to make demands of their elected representatives—and vote and contribute accordingly. Because the charges against Mr. Lindberg are legally infirm, this Court can—and should—dismiss the indictment against him.
The Government Opposition
On September 25 the U.S. Attorney filed an opposition to the Lindberg motion to dismiss the indictment. Here (without citations) is the three-paragraph introduction to the opposition (the full opposition is in the complimentary package offered at the end of this post):
Decisions to hire, fire, assign, and reassign government employees are core official acts under McDonnell v. U.S. The Bill of Indictment charges the defendant, a wealthy insurance executive, with offering a $2 million bribe to the top ranking insurance official in North Carolina to remove a subordinate regulator the defendant did not like, and replace her with one of the defendant's co-conspirators or another individual of his choosing. The defendant's argument that he could do this as long as he did not explicitly request an "ultimate outcome" rests upon a misreading of McDonnell, which nowhere applies an "ultimate outcome" test. Instead, as McDonnell and the courts that have subsequently interpreted that decision have made clear, the removal of the disfavored regulator—and her replacement by a regulator of the defendant's choosing—were themselves "official acts." This Court should reject the defendant's novel and erroneous interpretation of McDonnell.
Similarly, the defendant's argument that Skilling v. U.S. imposed a new requirement that the government must prove a personal financial benefit to a bribe payor is unsupported by any authority, including the Skilling decision itself. A bribe is a bribe, regardless of the payor's motive or realization of profit.
Finally, the defendant's constitutional concerns—regarding the First Amendment's alleged protection of the exchange of campaign contributions for specific action—are unfounded, and have already been addressed by the Supreme Court. When a campaign contribution is conditioned on specific official action it constitutes a bribe and is not protected by the First Amendment. McCormick v. U.S.
The Lindberg Reply
On October 2 Lindberg filed a reply to the government's opposition to the motion to dismiss the indictment. Here is the first paragraph of the argument in the reply (the full reply is in the complimentary package offered at the end of this post):
The government is incorrect that the jury, rather than the Court, must decide the legal definition of "official act." Before trial, a defendant may move to dismiss an indictment for failure to state an offense. And the Court must grant the motion if the "indictment fails to allege facts which constitute a prosecutable offense." Thus, where there is "an infirmity of law in the prosecution" contained in the indictment, a case should not reach a jury. That is the situation here. Because Mr. Lindberg's indictment fails to allege either an official act—a required element of all charges against him—or a bribery scheme that benefitted him, the Court must dismiss the indictment.
The Hayes Guilty Plea
Robert Cannon Hayes is one of Lindberg's four co-defendants named in the indictment. He was charged with five criminal counts: one count of conspiracy to commit honest services wire fraud, one count of bribery concerning programs receiving federal funds and aiding and abetting, and three counts of false statements.

On September 27 Hayes pleaded guilty to one count of false statements. The plea agreement is not publicly available. What is publicly available is a document called "entry and acceptance of guilty plea." It lists 39 questions the magistrate judge asked Hayes, and shows the answers given by Hayes. It also includes the magistrate judge's acceptance of the guilty plea on October 2. The document is in the complimentary package offered at the end of this post.

The Journal Article
On October 4 the print edition of The Wall Street Journal carried a 2,540-word front-page article entitled "Indicted Executive Used Operatives To Spy on Women—Insurance tycoon's surveillance included GPS trackers, secret photos, dossiers." The reporters were Mark Maremont and Leslie Scism. Here are the first few sentences of the article:
Federal investigators were closing in on Greg Lindberg. FBI agents confronted the North Carolina insurance tycoon last year as they probed whether he tried to bribe a state regulator. In March, officials obtained a sealed warrant for his arrest. His attorneys were negotiating his surrender.
Mr. Lindberg also had something else on his mind—the comings and goings of a number of women he was dating, interested in dating, or, in at least one case, cultivating as an egg donor for his future offspring.
Mr. Lindberg paid for dozens of surveillance operatives to tail the women up to 24 hours a day, taking surreptitious photos and sometimes putting GPS trackers on their vehicles, according to former security staffers and copies of internal reports produced by these operatives that were reviewed by The Wall Street Journal.
General Observations
As indicated in No. 320, I think the federal criminal case against Lindberg and his four associates will be lengthy. I plan to report further developments.

I found the Journal article shocking. I have no idea where it might lead, and will not speculate on what if anything will happen as a result of the findings in the article.

Available Material
The complimentary packages offered in Nos. 309 and 320 are still available. Now I am offering a complimentary 62-page PDF consisting of the Lindberg motion to dismiss the indictment (27 pages), the government's opposition to the motion to dismiss (16 pages), Lindberg's reply to the opposition (15 pages), and the material relating to the guilty plea by Hayes (4 pages). Email jmbelth@gmail.com and ask for the October 2019 Lindberg package.

===================================

Thursday, October 17, 2019

No. 337: Long-Term Care Insurance—Another Class Action Lawsuit Against Genworth

On September 21, 2018, Richard F. Burkhart and four other individuals filed a class action lawsuit against Genworth Financial, Inc. (Genworth) and four affiliates relating to long-term care (LTC) insurance. The plaintiffs filed the lawsuit in state court in Delaware, where Genworth and several of its affiliates were organized. On January 29, 2019, according to the docket, the plaintiffs filed a confidential, unredacted version of an amended complaint, which I have not seen. On February 5, 2019, the plaintiffs filed a redacted version of the amended complaint, which I discuss in this post. (See Burkhart v. Genworth, Court of Chancery, State of Delaware, Case No. 2018-0691.)

The Parties
Three plaintiffs are Massachusetts residents and two are Connecticut residents. Three of them bought LTC insurance policies during the 2002-2004 period from General Electric Capital Assurance Company, a predecessor of Genworth Life Insurance Company (GLIC). One bought an LTC insurance policy in 2013 from GLIC. One is an agent who sold LTC insurance policies and other policies issued by GLIC. The defendants are Genworth, GLIC, and three other Genworth affiliates.

The Amended Complaint
The amended complaint describes how Genworth and its affiliates allegedly reduced GLIC's capital to the detriment of policyholders and agents. Here is the first paragraph of the introduction (the amended complaint is in the complimentary package offered at the end of this post):
This action challenges a deliberate, long-term scheme by defendant Genworth, an insurance holding company, and by its affiliated defendants, to bleed capital from GLIC, a wholly-owned insurance subsidiary of Genworth upon which over a million policyholders depend for long-term care insurance benefits in the event that they become disabled. This conduct has profoundly harmed and will continue to harm GLIC policyholders and the agents through whom such policyholders purchased insurance. Absent injunctive and other equitable relief, defendants' conduct will leave the policyholders at critical risk at the point in their lives when they have greatest need for the benefits provided by the policies.
The amended complaint describes how Genworth allegedly used fraudulent transfers to remove assets and capital support from GLIC for the benefit of other Genworth companies, shareholders, bondholders, and management, to the detriment of GLIC, its policyholders, and its agents. Among the allegedly fraudulent transfers are substantial dividends, the termination of a reinsurance transaction, and the proposed merger with China Oceanwide. The amended complaint includes four counts: (1) Intentional Fraudulent Transfer—Payment of GLIC Dividends, (2) Constructive Fraudulent Transfer—Payment of GLIC Dividends, (3) Intentional Fraudulent Transfer—Reinsurance Termination, and (4) Constructive Fraudulent Transfer—Reinsurance Termination. The plaintiffs seek, among other things, an unwinding of the reinsurance termination, an unwinding of the GLIC dividends, attorney fees, and costs.

The Redactions
The redactions are three paragraphs (24 lines) in the amended complaint. Here are four paragraphs preceding and four paragraphs following the redactions:
60. There is substantial evidence that was not known or discoverable by Plaintiffs at the time the GLIC dividends were paid that demonstrates that Genworth knew full well that GLIC's DLR [disabled life/claim reserve] was inadequate long before it corrected the DLR in November 2014 and again in 2016, and rather than correct the inaccuracies in the Statutory Financial Statements filed with the [Delaware] Department, Genworth suppressed the adverse information.
61. In January 2014, Genworth hired James Boyle as the CEO of its U.S. Life Insurance Division ("Division"), which included the long-term care business of GLIC. Shortly thereafter, Lynne Patterson was hired as the Division's interim CFO. In May 2014, Patterson began a review and investigation of the underlying actuarial assumptions for long-term care reserves.
62. On information and belief, in early June 2014, following a series of meetings with the actuaries involved in developing the reserves, Patterson discovered that the assumptions the actuaries were using to develop the reserves had been "back-fitted" to meet the demands of senior management and were unreliable. Boyle and Patterson shared their concerns with Genworth's CFO, Martin Klein, on June 16, 2014.
63. On July 16, 2014, Boyle advised Genworth's Audit Committee: that John Nigh, the Division's chief actuary, and Loida Abraham, a supervising actuary, had attempted to manipulate actuarial assumptions to reduce long-term care claim reserves; that Genworth's chief actuary, Robert Vrolyk, on June 6, 2014, had admitted to Boyle that based on independent work Vrolyk had performed, there may have been an error in Genworth's long-term care claim reserve calculations of as much as 20%, or approximately $500-600 million; that three in-house actuaries overseen by Patterson to prepare a new "clean-slate" estimate of long-term care claim reserves using actual claims experience had arrived at a claim reserve that was $800 million higher than previously stated; that assumptions underlying the long-term care claim reserve announced in December 2013 had not been properly peer-reviewed, and that the documentation needed to support the claim reserve announced in December 2013 was incomplete or missing; and that Boyle and Patterson were being isolated and that efforts were being made to slow down a final conclusion regarding the claim reserve's adequacy and amount. Those efforts included directions to Milliman, an independent actuarial firm that Genworth had retained, to eliminate its validation of the proposed $800 million claim reserve adjustment.
64. Five lines redacted.
65. Seven lines redacted.
66. Five lines redacted.
67. Seven lines redacted.
68. On information and belief, in or around mid-July 2014, Boyle gave a "red alert" warning to Genworth's Board of Directors.
69. Less than two weeks later, on July 28, 2014, Boyle and Patterson resigned, about six months after joining the company. Genworth issued a press release stating that Thomas J. McInerney, Genworth's CEO, would also assume the duties of CEO of the Division effective immediately.
70. Immediately following the resignation of Boyle and Patterson, on a July 30, 2014 investor conference call, McInerney, who was now CEO of both Genworth and the Division, revealed that Genworth would be conducting a detailed review of its DLR assumptions, methodology and process, and that changes to the assumptions for the DLR could be required as a result.
71. On November 6, 2014, Genworth's management disclosed during an earnings call with investors that the DLR for its long-term care policies had been understated by $589 million in the Statutory Financial Statements filed with the [Delaware] Department, resulting in a reserve restatement in that amount (the "2014 DLR Restatement"). During that call, Klein, Genworth's CFO, stated that approximately half of this overall increase in the DLR was attributable to "updating" assumptions regarding claim termination rates, including adjusting the average length of claim assumption to reflect Genworth's actual experience between 2010 and 2013, the period during which the GLIC Dividends were paid.
The Motion to Dismiss
On March 13, 2019, Genworth filed a motion to dismiss. Here is the first paragraph of the summary (the full motion to dismiss is in the complimentary package offered at the end of this post):
The named plaintiffs in this purported nationwide class action are long term care ("LTC") insurance policyholders of defendant Genworth Life Insurance Company ("GLIC") and agents who sold LTC policies for GLIC. The policyholder Plaintiffs have been insured continuously since they bought their policies. Not one alleges to have ever made an LTC policy claim, let alone that a claim has gone unpaid. The agent Plaintiffs are compensated through commissions paid each time an annual premium is paid on an LTC policy they sold; they also do not allege that GLIC has ever failed to pay them a commission they are owed. Plaintiffs nonetheless ask this Court to reverse GLIC's payment of $410 million in dividends between 2012 and 2015 to its corporate shareholder parent and to unwind a 2016 merger of subsidiaries because, at some unspecified point in the distant future, GLIC might have insufficient assets to pay their possible LTC claims and commissions. Plaintiffs assert that these were fraudulent transfers of GLIC's assets to other Genworth affiliates. This action should be dismissed in its entirety because Plaintiffs fail to allege an actual or imminent injury sufficient to confer standing in this Court.
The Opposition to the Motion to Dismiss
On April 26, 2019, the plaintiffs filed an opposition to the motion to dismiss. Here is the first paragraph (the full opposition is in the complimentary package offered at the end of this post):
In their Motion to Dismiss, Defendants posit a classic Catch-22. They argue first that Plaintiffs sued too soon, because Defendant Genworth Life Insurance Company ("GLIC") has not (yet) defaulted on the relevant insurance policies. At the same time, Defendants argue Plaintiffs sued too late, because the challenged transfers cannot be avoided more than four years after they were made. That is, Plaintiffs must wait decades until they are infirm and GLIC collapses, at which point they will be told it is too late to avoid the challenged transfers. Catch-22. [Emphasis in original.]
The Reply to the Opposition to the Motion to Dismiss
On June 14, 2019, Genworth filed a reply to the opposition to the motion to dismiss. Here, without citations, is the first paragraph of the summary (the full reply is in the complimentary package offered at the end of this post):
Plaintiffs assert repeatedly that Defendants' 2012-2015 dividend payments and purported "Reinsurance Termination" caused them "injury," but Plaintiffs do not plead facts demonstrating that any such injury is actual or imminent. Their Answering Brief admits that "GLIC has not yet defaulted" on any obligations to Plaintiffs. Their Amended Complaint can only conclusorily [sic] speculate that GLIC "will likely become unable to pay its policyholders and agents in full" at some indeterminate point in the far future. And Plaintiffs also admit that "the maturity date and scope of any particular policyholder's claim is unknowable."
General Observations
Oral argument on Genworth's motion to dismiss is scheduled for October 21, 2019. It will be interesting to see the judge's ruling on the motion to dismiss.

With regard to the redactions in the amended complaint, they probably reflect Milliman's findings, which Milliman probably submitted to Genworth on a confidential basis. I have been through this before.

In 2008, when Conseco transferred its LTC insurance company to a trust that would own Senior Health Insurance Company of Pennsylvania (SHIP), Conseco told the Pennsylvania Insurance Department that Milliman had prepared a report saying the assets transferred would be sufficient to run off all of SHIP's LTC insurance business. I tried to obtain the Milliman report, but Conseco and the Department said it was confidential. As I reported in No. 308 (April 11, 2019), SHIP's liabilities of $2.653 billion at the end of 2018 exceeded its assets of $2.206 billion, leaving the company insolvent by $447 million. The deficit was $481 million as of March 31, 2019, and $496 million as of June 30, 2019. Many years remain before all of SHIP's LTC insurance business runs off.

As a layman—I am not an attorney—I read the documents in this case. In my opinion, the arguments advanced by the plaintiffs are stronger than those advanced by the defendants, although others who read the documents may feel differently. If the lawsuit survives the motion to dismiss, the case should be followed closely. However, like other such lawsuits, the case is likely to be settled before trial. I plan to report further developments.

Available Material
I am offering a complimentary 227-page PDF consisting of the amended complaint (65 pages), the motion to dismiss the amended complaint (60 pages), the opposition to the motion to dismiss the amended complaint (64 pages), and the reply to the opposition to the motion to dismiss the amended complaint (38 pages). Email jmbelth@gmail.com and ask for the October 2019 package relating to Burkhart v. Genworth.

===================================

Thursday, October 10, 2019

No. 336: Long-Term Care Insurance—An Update on the Newman Lawsuit Against Metropolitan Life

In No. 253 (February 15, 2018), I wrote about a class action lawsuit filed in March 2016 by Margery Newman, an Illinois resident, against Metropolitan Life Insurance Company relating to long-term care (LTC) insurance. She was 56 when she bought an "LTC Premier" policy in September 2004. The policy included a "reduced-pay at 65 option," which Metropolitan had described as follows in a marketing brochure:
By paying more than the regular annual premium amount you would pay each year up to the Policy Anniversary on or after your 65th birthday, you pay half the amount of your pre-age 65 premiums thereafter.
Before Newman turned 65, the semiannual premium was $3,813.68. In September 2012 the semiannual premium declined by 50 percent, to $1,906.84. In March 2015, Metropolitan increased the semiannual premium by 102 percent, to $3,851.81.

The Complaint
In her March 2016 complaint and June 2016 amended complaint, Newman alleged breach of contract, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, fraud, and fraudulent concealment. In July 2016 Metropolitan filed a motion to dismiss the complaint for failure to state a claim. In March 2017 U.S. District Court Judge Thomas A. Durkin dismissed the complaint without prejudice. His ruling is in the complimentary package, which is still available, offered at the end of the above-mentioned No. 253.

In April 2017, in accordance with the judge's ruling, Newman filed a motion for leave to file a second amended complaint and attached a proposed second amended complaint. The judge denied the motion and dismissed the case with prejudice. (See Newman v. Metropolitan, U.S. District Court, Northern District of Illinois, Case No. 1:16-cv-3530.)

The Appeal
Newman appealed to the Seventh Circuit, and the case was assigned to a three-judge panel. On February 6, 2018, the panel unanimously reversed the district court's action and sent the case back to the district court for further proceedings. Here is the final paragraph of the panel's ruling (the full ruling is in the complimentary package, which is still available, offered at the end of the above-mentioned No. 253):
Newman asserts that MetLife lured her into a policy by promising a trade of short-term expense for long-term stability. She took the deal and spent nine years investing in a plan, only to have MetLife pull the rug out from under her. Neither MetLife's brochure nor the terms of the policy forecast this possibility. These allegations were enough to entitle her to prevail on the liability phase of her contract claim, and they are enough to permit her to go forward on her other theories. We therefore REVERSE the district court's grant of MetLife's motion to dismiss and REMAND for further proceedings.
On February 20, 2018, Metropolitan petitioned for a rehearing by the full appellate court. On March 7 Newman opposed the petition. On March 22 the panel denied the petition and filed an amended ruling. There were only a few changes from the panel's original ruling. One of the changes was in the next-to-the-last sentence of the final paragraph quoted above. That sentence in the amended ruling reads: "These allegations were enough to state a claim under the theories Newman presented." The amended 17-page appellate ruling is in the complimentary package offered at the end of this post. (See Newman v. Metropolitan, U.S. Court of Appeals for the Seventh Circuit, Case No. 17-1844.)

Recent Developments in the District Court
On April 18, 2018, Metropolitan filed an answer to Newman's complaint. During the next few months several individuals sought to intervene in the case, and three were allowed to do so. During that time, there were also discussions of mediation with the goal of settling the case. In August 2018 the parties held a settlement conference. In November the judge held a telephone conference to discuss settlement issues, but the parties were not able to reach a settlement. In December the judge ordered the parties to submit a proposed discovery plan for class certification.

On January 3, 2019, the parties submitted a proposed discovery plan for class certification. On January 24 the parties said settlement discussions were ongoing. On January 27 the parties said they have agreed to private mediation. On March 5 Newman filed a motion for a stay pending the outcome of the private mediation. On March 12 the judge granted the motion. On April 25 the parties said they are proceeding with private mediation.

On September 24, I emailed an attorney on each side asking whether they think the private mediation eventually will succeed or whether they think the case will go to trial. One acknowledged the email but declined to comment. The other did not acknowledge the email.

General Observations
Newman is an interesting case. However, I will not speculate on whether the private mediation will succeed, or whether the case will go to trial. I plan to report significant further developments in the case.

Available Material
I am offering a complimentary 17-page PDF consisting of the March 22, 2018 appellate panel's amended ruling. Email jmbelth@gmail.com and ask for the October 2019 package relating to Newman v. Metropolitan.

===================================

Thursday, October 3, 2019

No: 335: Executive Compensation in the Insurance Industry in 2018

Beginning in 1975, in many issues of The Insurance Forum, I provided tabulations of executive compensation data in the insurance industry. The final tabulation was in the July 2013 issue, because I ended the Forum with the December 2013 issue. From time to time since then, I have posted some executive compensation data on my blog. The most recent tabulation was in No. 287 (September 24, 2018), which showed data for 2017. Here I show data for 2018.

Sources of Data
The three sources of data for my tabulations have long been the Securities and Exchange Commission (SEC), the New York State Department of Financial Services (DFS), and the Nebraska Department of Insurance (NDI). In some instances, the figure I show for an individual differs from one of my sources to another. A reason for such occurrences is differing definitions of compensation among the sources.

Chapter 24 of my 2015 book, The Insurance Forum: A Memoir, describes the history of my executive compensation tabulations. It also describes the efforts of the insurance industry and state insurance regulators to prevent access to all or some of the data. Chapter 24 is in the complimentary package offered at the end of this post.

During the final seven years of the Forum, I showed data for individuals who received at least $1 million in the year under study. The final tabulation in the Forum, showing data for 2012, is in the complimentary package offered at the end of this post. In the new tabulation in this post, I show data for individuals who received at least $5 million in 2018. Where two or more individuals in a company are shown, they are listed in descending order of compensation.

SEC Data for 2018
SEC data are filed by shareholder-owned public companies. Each figure I show is the "total" in the 2019 Summary Compensation Table (Table). The components of the "total" are "salary," "bonus," "stock awards," "option awards," "non-equity incentive plan compensation," "change in pension value and non-qualified deferred compensation earnings," and "all other compensation."

The Table for most companies is in the proxy statement filed in advance of the company's 2019 annual meeting of shareholders. For a few companies, the Table is in the 10-K annual report for 2018. For the Canadian companies—Manulife and Sun Life—the Table is in the 6-K annual reports for 2018. The documents referred to here are available to the public without charge on the SEC website at https://sec.gov/edgar/searchedgar/companysearch.html.

SEC Data for 2018
AFLAC Inc
Daniel P Amos
$17,535,398
Frederick J Crawford
7,388,355
Eric M Kirsch
5,043,897
Alleghany Corp
Weston M Hicks
8,129,352
Joseph P Brandon
5,594,449
Allstate Corp
Thomas J Wilson
18,687,246
Steven E Shebik
7,157,835
John E. Dugenske
6,764,401
Glenn T Shapiro
5,316,299
AMBAC Financial Group
Claude LeBlanc
6,203,007
American Financial Group
Carl H Lindner III
10,209,385
S Craig Lindner
10,191,495
American International Group
Brian Duperreault
20,854,669
Peter Zaffino
12,620,459
Douglas A Dachille
9,707,396
Kevin T Hogan
9,121,469
Siddhartha Sankaran
6,598,362
Ameriprise Financial
James M Cracchiolo
25,742,524
Walter S Berman
10,072,622
William F Truscott
7,515,167
Colin Moore
6,532,179
Anthem
Gail K Boudreaux
14,184,276
Brian T Griffin
6,066,160
Peter D Haytaian
5,936,543
Gloria M McCarthy
5,436,787
John E Gallina
5,153,866
Aon
Gregory C Case
16,163,875
Christa Davies
12,318,169
Arch Capital Group
Marc Grandisson
12,884,187
Arthur J Gallagher & Co
Pat Gallagher
8,062,954
Assurant
Alan B Colberg
13,616,946
Richard S Dziadzio
5,702,380
Assured Guaranty
Dominic J Frederico
12,771,902
AXA Equitable Holdings Inc
Mark Pearson
12,138,563
Seth Bernstein
9,084,847
Jeffrey Hurd
5,875,951
Anders Malmström
5,269,624
AXIS Capital Holdings
Albert A Benchimol
7,804,796
Steve K Arora
5,923,087
Berkshire Hathaway Inc
Gregory E Abel
18,013,750
Ajit Jain
18,013,750
Brighthouse Financial Inc
Eric Steigerwalt
15,537,371
Peter Carlson
7,457,356
John Rosenthal
5,123,879
Brunswick Corp
Mark D Schwabero
8,243,580
Centene
Michael F Neidorff
26,122,414
Jeffrey A Schwaneke
9,960,954
Brandy L Burkhalter
7,573,238
Jesse N Hunter
6,164,144
Chubb
Evan G Greenberg
20,357,484
John W Keogh
7,859,298
John J Lupica
6,208,344
Paul J Krump
6,203,320
Philip V Bancroft
5,039,875
Cigna
David M Cordani
18,944,045
Timothy C Wentworth
8,875,346
Alan M Muney MD
5,862,659
Christopher J Hocevar
5,352,336
CNA Financial
Dino E Robusto
10,109,176
D Craig Mense
8,157,197
CNO Financial
Gary C Bhojwani
7,701,334
CVS Health (Acquired Aetna)
Larry J Merlo
21,939,098
Jonathan C Roberts
16,066,968
Derica W Rice
12,806,073
Thomas M Moriarty
10,983,856
Eva C Borrato
6,972,421
David M Denton 
5,564,551
Everest Re
Dominic J Addesso
7,066,735
Fidelity National Financial
Raymond R Quirk
9,078,683
First American Financial
Dennis J Gilmore
8,402,957
Genworth Financial
Thomas J McInerney
9,311,944
Globe Life (Formerly Torchmark)
Gary L Coleman
7,831,616
Larry M Hutchison
7,797,408
Hartford Financial Services
Christopher Swift
13,883,615
Douglas Elliot
8,999,113
Heritage Ins Holdings Inc
Bruce Lucas
8,735,043
Humana Group
Bruce D Broussard
16,312,517
Brian A Kane
5,005,025
Kemper Corp
Joseph P Lacher Jr
6,905,879
Lincoln National
Dennis R Glass
14,422,495
Loews
James S Tisch
5,714,569
David B Edelson
5,525,784
Kenneth I Siegel
5,229,566
Magellan Health Inc
Barry M Smith
10,162,716
Manulife (U.S. Dollars)
Roy Gori
10,087,189
Warren Thomson
5,634,846
Marsh & McLennan
Daniel S Glaser
17,281,919
John Q Doyle
7,023,080
Julio A Portalatin
5,983,531
Peter C Hearn
5,071,744
MBIA Inc
William C Fallon
13,855,479
Anthony McKiernan
7,085,400
Adam T Bergonzi
6,772,350
MetLife Inc
Steven A Kandarian
17,426,745
Michel A Khalaf
10,807,500
Martin J Lippert
7,881,101
Steven J Goulart
6,726,883
MGIC Investment
Patrick Sinks
7,971,526
Molina Healthcare
Joseph M Zubretsky
15,219,770
Mr Cooper Group Inc
Jay Bray
25,119,076
Anthony L Ebers
11,254,213
National General Holdings Corp
Barry Karfunkel
5,892,270
Robert Karfunkel
5,288,240
NMI Holdings Inc
Bradley M Shuster
6,706,568
Primerica Inc
Glenn J Williams
5,145,317
Principal Financial
Daniel J Houston
12,227,017
James P McCaughan
8,168,029
Progressive
Susan Patricia Griffith
14,172,925
John P Sauerland
7,134,820
Protective Life
John D Johns
11,201,101
Richard J Bielen
6,614,845
Prudential Financial
John R Strangfeld
26,696,966
Stephen Pelletier
18,525,767
Mark B Grier
15,216,589
Charles F Lowrey
10,357,459
Robert M Falzon
8,110,321
Scott G Sleyster
5,215,867
Radian
Richard G Thornberry
9,533,691
Reinsurance of America
Anna Manning
6,700,422
RenaissanceRe Holdings
Kevin J O'Donnell
10,819,363
State Auto Financial Corp
Michael E LaRocco
6,191,934
Sun Life Canada (U.S. Dollars)
Dean A Connor
7,500,277
Jacques Goulet
6,144,072
Travelers
Alan D Schnitzer
14,648,213
William H Heyman
6,621,541
Avrohom J Kess
6,009,603
Jay S Benet
5,896,441
UnitedHealth
Andrew P Witty
21,232,550
David S Wichmann
18,107,356
Stephen J Hemsley
11,352,513
Steven H Nelson
9,763,024
John F Rex
8,587,912
Universal Ins Holdings
Sean P Downes
17,923,379
Jon W Springer
7,213,248
Unum
Richard P McKenney
9,896,861
Voya Financial
Rodney O Martin Jr
11,337,911
Christine Hurtsellers
5,649,873
W R Berkley
William R Berkley
12,325,841
W Robert Berkley Jr
11,852,862
WellCare Health Plans
Kenneth A Burdick
12,675,372
White Mountains
G Manning Rountree
6,247,593

DFS Data for 2018
DFS data are filed by life insurance companies doing business in New York State, and by health insurance companies doing business there. The data are from the 2019 "Schedule G" (Schedule), which is in the New York Supplement to the statutory annual statement. I obtained the Schedules through a request pursuant to the New York State Freedom of Information Law. The Life Bureau of DFS sent the Schedules for life insurance companies, and the Health Bureau of DFS sent the Schedules for health insurance companies. Both bureaus provided the Schedules by email without charge. The Schedule for life insurance companies differs significantly from the Schedule for health insurance companies.

The Schedule for life insurance companies shows one figure for each individual. It is "the aggregate amount (any and all remuneration, including all wages, salaries, commissions, stock grants, gains from the exercise of stock options and other emoluments) received by the payee attributable to services performed for, or on behalf of, the reporting insurer, regardless of whether the payee is employed and paid by the insurer or a related or affiliated company." For life insurance companies that are part of a group of companies, the Schedule may not show the individual's total compensation from all companies in the group. Also, pursuant to changes made several years ago in the New York State executive compensation disclosure statute to curtail the amount of compensation data available to the public, the Schedule sometimes redacts the names but shows the amounts of compensation and the titles of certain individuals. In those instances, I show the individual's title and the amount of compensation.

The Schedule for health insurance companies shows four figures for each individual: (1) "salary paid by company and all other companies in holding company system," (2) "bonus & all other compensation deferred or paid by company and all other companies in holding company system," (3) "total amount paid by company and all other companies in holding company system," and (4) "amount paid by or amount allocated to company." I show the third of those four figures.

DFS Data for 2018
Life Insurance Companies
Aetna Life (Acquired by CVS Health)
Mark Bertolini
$331,776,150
Thomas J Sabatino
24,164,969
Margaret McCarthy
23,030,488
Steven B Kelmar
23,030,147
Gary Loveman
19,053,604
Thomas W Weidenkopf
16,707,671
Karen S Lynch
15,481,922
Harold L Paz
12,138,143
Jean LaTorre
10,018,253
EVP Integration
13,342,088
EVP Government Services
12,470,663
SVP Medicare
11,533,517
SVP & Dep Gen Cnsl Aetna
9,613,347
SVP Commercial Business
6,466,738
SVP Products & Services
6,076,843
VP JV Operations
5,732,175
SVP Service Operations
5,601,306
VP Enterprise IT Delivery
5,297,360
VP Chief Mktg Officer
5,022,928
American Progressive
Kenneth Alan Burdick
21,219,890
Andrew Lynn Asher
7,168,174
AXA Equitable Life
Mark Pearson
11,836,009
Cigna Health & Life
David Cordani
11,859,705
First Health Life & Health
Karen S Lynch
18,348,308
Richard M Jelinek
8,357,794
Shawn M Guertin
6,303,937
Globe Life of New York
Frank Martin Svoboda
6,714,362
Guardian Life of America
Deanna Mulligan
8,536,819
Liberty Life Assur of Boston
Dennis A Glass
30,578,194
Randal J Freitag
9,400,216
Wilford H Fuller
7,013,771
Ellen G Cooper
5,072,368
Massachusetts Mutual Life
Roger Crandall
16,407,926
Melvin Corbett
5,563,206
Metropolitan Life
Steven Albert Kandarian
14,417,969
New York Life
Theodore A Mathas
24,483,407
John Y Kim
11,397,963
John T Fleurant
8,066,000
Matthew M Grove
5,710,361
Anthony R Malloy
5,046,000
Northwestern Mutual Life
John E Schlifske
13,489,916
Gregory C Oberland
5,450,131
Principal Life
Daniel Joseph Houston
9,909,774
President Global Asset Mgmt
7,224,751
Karl W Nolin
5,478,188
Prudential Ins Co of America
John Robert Strangfeld Jr
6,713,831
Mark Brown Grier
5,614,191
Teachers Ins & Annuity Assn
Ronald Pressman
6,349,193
Roger Ferguson
6,219,093
Voya Retirement Ins & Annuity
Charles Patrick Nelson
5,396,999
Health Insurance Companies
Anthem
Gail A Boudreaux
11,711,001
Joseph R Swedish
7,808,541
Peter David Haytaian
6,323,390
Gloria M McCarthy
5,505,445
John E Gallina
5,320,958
Hallmark Life
Michael Frederic Neidorff
23,476,087
Jesse Nathan Hunter
5,539,330
Humana of New York
Christopher Howal Hunter
6,762,908
Mutual of Omaha
James T Blackledge
7,699,034
Sierra Health & Life
Forrest Gregory Burke
6,024,535
UnitedHealthcare of New York
Peter Marshall Gill
24,344,532
Robert Worth Oberrender
9,822,538
William John Golden
8,311,207
WellCare Prescription Ins
Kenneth A Burdick
21,219,889
Andrew L Asher
7,168,174

NDI Data for 2018
NDI data are in a "Supplemental Compensation Exhibit" (Exhibit) filed by all insurance companies doing business in Nebraska. The Exhibit normally shows figures for ten top officials. The figure I show is the "total" for each individual. Components of the "total" are "salary," "bonus," "stock awards," "option awards," "sign-on awards," "severance payments," and "all other compensation." NDI provided the Exhibits on a CD at a cost of $80.

Where companies are members of a company group, some companies show the total amount received by each individual from all companies in the group. Some companies, however, allocate each individual's compensation to each company in the group. Thus, for some individuals, the figure I show may be smaller than the individual's total compensation, for two reasons. First, I may not have found exhibits for all companies in the group. Second, some company groups may include companies that are not licensed in Nebraska and therefore do not file Exhibits.

NDI Data for 2018
Acuity, A Mutual Ins Co
Benjamin M Salzmann
$5,174,079
AFLAC Inc
Daniel P Amos
16,660,694
Frederick J Crawford
7,640,518
Eric M Kirsch
5,081,432
Alleghany Group
Michael C Sapnar
8,748,634
Javier E Vijii
6,043,844
AMBAC Financial Group
Claude LeBlanc
6,247,765
Allstate Corp
Thomas J Wilson
17,814,076
Steven E Shebik
6,809,317
John E Dugenske
6,686,395
Glenn T Shapiro
5,269,735
Dogan Civgin
5,153,711
American Family Ins
Jack C Salzwedel
11,039,858
Jonathan Ritz
5,934,753
Fabian John Fondriest
5,409,028
American Financial Group
Carl H Lindner III
9,599,630
American International Group
Kevin Hogan
7,178,384
Jay S Wintrob
5,275,962
American Pet Ins Co
Darryl Rawlings
18,260,455
Ameriprise Financial
Steven B Staver
5,863,464
Amtrust Financial Services
Jean Bahier
5,244,502
Apollo Global Management
James Belardi
5,011,830
Assured Guaranty
Dominic Frederico
14,189,764
Atlantic Specialty Ins
Timothy M Miller
18,295,748
Automobile Club of Michigan
Joseph Richardson Jr
11,548,127
AXA Ins
Mark Pearson
12,248,123
Berkshire Hathaway
Thomas P Nemey
22,214,862
Olza Minor Nicely
15,868,178
Sidney Ferenc
6,872,248
Steven Menzies
6,835,309
William Evan Roberts
5,596,235
Timothy Kenesey
5,025,423
Brighthouse Holdings
Eric T Steigerwalt
13,927,818
Chubb
John J Lupica
5,722,600
Cigna Health
David Cordani
11,859,705
Cincinnati Financial
Steven Justus Johnston
5,304,710
CNA Ins
Dino Robusto
9,593,963
D Craig Mense
8,413,429
CVS Health (Acquired Aetna)
Karen S Lynch
18,348,308
Richard M Jelinek
8,357,794
Shawn M Guertin
6,303,937
Essent Group
Mark Casale
6,556,015
Everest Reinsurance
Dominic J Addesso
5,926,259
Factory Mutual Ins
Thomas A Lawson
6,033,927
Federated Mutual
Jeffrey E Fetters
5,598,924
Fidelity & Guaranty Life
Dennis R Vigneau
5,559,928
Fidelity National Financial
Raymond Randall Quirk
8,488,420
Roger Scott Jewkes
7,291,776
Erika Meinhardt
6,868,522
First American Title
Dennis J Gilmore
7,579,689
Genworth Financial
Thomas McInerney
9,825,404
Globe Life (Formerly Torchmark)
Frank Martin Svoboda
6,714,362
Guardian Life of America
Deanna Mulligan
9,335,810
Hartford Fire & Casualty
Douglas G Elliot
10,047,508
Christopher Swift
5,400,054
Health Care Service Corp
Paula A Steiner
15,090,980
Colleen Foley Reitan
5,561,015
Humana Group
Bruce D Broussard
26,766,992
Christopher Howal Hunter
6,762,908
Insurance Co of the West
Kevin Prior
12,543,879
Ernest Rady
6,797,168
Bernard Feldman
5,236,832
Jackson National Life
Barry Stowe
10,022,913
Paul C Myers
6,600,916
James R Sopha
6,487,262
John Hancock
Daniel Janis III
6,660,559
Liberty Mutual
David H Long
19,262,058
J Paul Condin III
13,004,010
Neeti Bhalla
7,094,502
Timothy Sweeney
6,950,550
Kevin H Kelley
6,206,424
Dennis J Langwell
6,019,610
Christopher L Peirce
5,789,412
Lincoln National
Dennis R Glass
30,578,194
Randal J Freitag
9,400,216
Wilford H Fuller
7,013,771
Ellen G Cooper
5,072,368
Main Street America
T Van Berkel
20,053,624
E Kuhl
6,578,115
Massachusetts Mutual Life
Roger Crandall
15,637,391
Michael Fanning
6,088,727
Elizabeth Chicares
5,244,457
Metropolitan Life
Steven A Kandarian
14,417,969
Mortgage Guaranty Ins
Patrick Sinks
7,879,020
Mutual of Omaha
James T Blackledge
7,486,811
Nationwide Corp
Steve Rasmussen
8,478,253
New York Life
Theodore A Mathas
24,483,407
John Y Kim
11,397,963
John T Fleurant
8,066,000
Matthew M Grove
5,710,361
Anthony R Malloy
5,046,000
Northwestern Mutual Life
John E Schlifske
13,489,916
Gregory C Oberland
5,450,131
Ohio National Life
Gary Thomas Huffman
5,008,187
OneAmerica Financial
James S Davison
5,073,760
Pacific Life
James T Morris
8,758,573
Primerica Inc
Glen J Williams
5,235,159
Principal Financial
Daniel J Houston
9,909,774
Karl W Nolin
5,478,188
Progressive Corp
Susan Patricia Griffin
7,171,857
Protective Life
John Johns
12,771,271
Deborah Long
9,915,492
Richard Bielen
9,887,161
John Sawyer
5,780,110
Prudential Ins Co of America
John R Strangfeld Jr
10,194,091
Mark Brown Grier
6,114,285
Radian Group
Richard Thornberry
7,090,529
RLI Ins
Jonathan E Michael
6,715,194
Sammons Enterprises
Esfandyar E Dinshaw
5,274,345
Security Benefit Life
Michael Patrick Kiley
6,956,207
Selective Ins
Gregory E Murphy
5,235,275
Sentry Ins Group
Peter McPartland
8,072,659
Standard Ins Co
John Gregory Ness
7,960,535
State Farm Mutual
Michael Leon Tipsord
6,646,304
Teachers Ins & Annuity Assn
Ronald Pressman
6,349,193
Roger Ferguson
6,219,093
Travelers
Alan D Schnitzer
13,940,523
Willaim H Heyman
6,058,513
Jay S Benet
5,771,835
Avrohom J Kess
5,756,549
Madelyn Joseph Lankton
5,262,906
UnitedHealth
Stevan Dean Garcia
7,793,300
Voya Financial
Alain Maurice Karaoglan
9,002,380
Rodney Owen Martin Jr
8,133,747
Western & Southern
John Barrett
9,193,300

Available Material
I am offering a complimentary 22-page PDF containing Chapter 24 of The Insurance Forum: A Memoir (12 pages) and the executive compensation tabulation in the July 2013 issue of The Insurance Forum (10 pages). Email jmbelth@gmail.com and ask for the October 2019 package relating to executive compensation.

The 361-page Memoir may be purchased at www.theinsuranceforum.com. If you would like it autographed, please so indicate on your order.

===================================