No. 24: Phoenix's Detailed January 2014 Filing with the SEC

On January 17, 2014, three days after Moody's Investors Service withdrew its ratings of The Phoenix Companies, Inc. (NYSE:PNX) and two operating subsidiaries (see my blog post No. 21), Phoenix filed a lengthy 8-K (material event) report with the Securities and Exchange Commission (SEC). The company reported on the restatement that caused the company to fall far behind in the filing of the parent's GAAP (generally accepted accounting principles) statements with the SEC and the subsidiaries' audited statutory statements. On the same day, the company issued a less detailed press release. The company announced

an unaudited estimated pre-tax decrease of $250 million to total stockholders' equity reported at June 30, 2012 as a result of its previously announced GAAP restatement. The decrease was primarily driven by a GAAP accounting requirement that the company record additional universal life reserves over the restatement period to cover expected losses that otherwise would have been recorded in future periods.

Phoenix said it expects to file its 10-K for 2012 with the SEC by March 31, 2014 and become a "timely SEC filer" with the filing of its 10-Q for the second quarter of 2014. The company said it is assessing its disclosure controls and procedures and internal control over financial reporting. The company said that, in its 10-K for 2012, it expects to report multiple material weaknesses in its internal controls.

Phoenix described its efforts to avoid having the New York Stock Exchange delist the company's stock. The company also described its efforts to obtain bondholder consents following violations of debt covenants caused by the delayed filings with the SEC.

 

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 23: The Nasty War over Governance at the NAIC

The late Robert E. Dineen was born in Syracuse, New York (where I was born), received his law degree at Syracuse University (my alma mater), and practiced in a Syracuse law firm. Later he served as Superintendent of the New York State Department of Insurance for seven years. He became a vice president of Northwestern Mutual in 1950, and its president in 1965. When he retired in 1968, he became a consultant to the National Association of Insurance Commissioners (NAIC). He created the first central office of the NAIC, in Milwaukee. After his departure, the central office began a huge expansion, and later moved to Kansas City, Missouri. Dineen was a giant in the history of insurance in the U.S., and I think he would have been appalled by the nasty governance war now engulfing the NAIC.

A Little History

State regulation of insurance in the U.S. is the result of an historical accident. Elizur Wright lived in Boston. Therefore, when he began his push for an insurance regulatory agency, he did so in Massachusetts. Once Massachusetts created an agency, New York State followed suit, and state regulation of insurance was off and running.

Each state created its own financial statement blanks for insurance companies to complete, and the differences among the statements were a headache for companies operating nationally. They pushed for federal regulation, but lost the battle in 1868 when the U.S. Supreme Court handed down its famously absurd decision in Paul v. Virginia that insurance was not commerce. The companies then pushed for creation of the National Convention of Insurance Commissioners (NCIC) to develop uniform statement blanks. The NCIC began operations in 1871, and the blanks it developed were called "convention blanks." In 1939 the NCIC changed its name to the NAIC. The Paul decision was finally reversed in 1944, in U.S. v. Southeastern Underwriters. The latter decision promptly led to the 1945 passage of the McCarran-Ferguson Act, which preserved state regulation.

Problems with the NAIC

To say that the post-Dineen NAIC has had major problems is a serious understatement. Here I mention four in which I was involved.

In 1978, the NAIC created an advisory committee on manipulation (I call it "actuarial manipulation" or "actuarial hanky panky"). The committee was created because of articles I wrote, but I was not invited to serve on the committee. Later, at my insistence, the committee was reconstituted and I became a member. The committee was dominated by its industry members, and nothing significant was accomplished. See the January 1985 issue of The Insurance Forum.

In 1980, the life insurance cost disclosure task force of the NAIC released a proposed new life insurance cost disclosure model regulation. The proposal and accompanying report were excellent. However, the industry attacked the proposal viciously, arranged for the two authors of the proposal to be fired by the NAIC, arranged for the commissioner who chaired the task force to be fired by his governor, and arranged for the report to be shelved. See the January 1981 issue of The Insurance Forum.

In 1985, I began a long struggle to obtain access to the secret results of the NAIC's Insurance Regulatory Information System (IRIS). It required several lawsuits, but eventually I obtained access to the data. Part of IRIS thereafter became available to the public. See the December 1987 issue of The Insurance Forum.

In 2002, the NAIC took action to end free and unrestricted public access to the financial statements of insurance companies. Prior to that time, the public always had access to the statements in the state insurance departments. The NAIC asked the states to allow it to take over the handling of the statements. Most states, led to believe that the NAIC would continue to make the statements freely available to the public, agreed to the change. Now I cannot get the statements without agreeing to restrictions imposed by the NAIC on use of the data. Because I refuse to sign any such agreement, I must obtain statements I need from confidential sources. See the October 2003 issue of The Insurance Forum.

The Leonardi Letter

On December 11, 2013, Connecticut Insurance Commissioner Thomas B. Leonardi wrote a blistering three-page letter to his fellow commissioners about NAIC governance issues. Here is the first paragraph:

"We have met the enemy and he is us!" This famous line from the comic strip Pogo aptly describes the current state of governance at the National Association of Insurance Commissioners. And it comes at a time when our national state-based system of regulation is under perhaps its most critical set of threats and challenges at home (with the ascent of the Federal Insurance Office and the growing regulatory authority of the Federal Reserve) and abroad (at the International Association of Insurance Supervisors and the Financial Stability Board). The recent decision by some of our leadership to decline an invitation to meet with the President of the United States on critical insurance matters was bad enough. But to immediately provide a copy to the national press of a misguided and irresponsible letter criticizing the decision to accept President Obama's invitation makes clear that, in spite of these external threats, the biggest challenge we face is the dysfunction in our own organization. To quote Commissioner Chaney [Mississippi]: "I am shocked and appalled to put it mildly at the reaction" and Commissioner Kreidler [Washington State]: "I am appalled and embarrassed for the NAIC. This could be so bad that it might be the pivotal point we later recognize that doomed state based regulation. Talk about a self inflicted wound!" If we cannot fix these governance issues, then others, including industry and the Federal Government, would be right to question whether we are up to the task of regulating the largest insurance market in the world.

Commissioner Leonardi discussed seven examples of the governance issues. They are under these subtitles: (1) the cult of the "imperial presidency," (2) the myth of the "officers' leadership" role, (3) elections, (4) leadership, (5) ultra vires actions, (6) cronyism, and (7) the lack of understanding of the role and responsibilities of a fiduciary.

A few days later, at a meeting of the NAIC's executive committee during the NAIC's December meeting, Commissioner Leonardi made a motion to hire an outside consulting firm to conduct a governance review of the NAIC. The executive committee rejected the motion and shut down debate on the issue. Many commissioners believe that a review is needed, but think the idea should first be considered by the NAIC's governance committee. To put it mildly, the NAIC is facing a mess.

General Observations

I think the NAIC does not have a governance problem. Rather, I think the NAIC lacks competent leadership. As partial evidence, consider the stupidity of rejecting an invitation to meet with the President of the United States. That action ranks up there with the decision to engage in political retaliation by creating massive traffic jams with a four-day closure of two traffic lanes at the New Jersey approach to the George Washington Bridge, the world's busiest bridge.

I am making Commissioner Leonardi's letter available as a complimentary PDF. Send an e-mail to jmbelth@gmail.com and ask for the Leonardi letter.

 

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 22: A Devastating Setback for Life Partners

Life Partners, Inc. (Waco, TX) is an intermediary in the secondary market for life insurance policies and the operating subsidiary of Life Partners Holdings, Inc. (NASDAQ:LPHI). In January 2012, the Securities and Exchange Commission (SEC) filed a civil complaint against LPHI and others. The jury trial is set for January 27, 2014, before Senior U.S. District Judge James R. Nowlin. (SEC v. LPHI, U.S. District Court, Western District of Texas, Case No. 1:12-cv-33.)

In November 2013, an important development occurred when Judge Nowlin issued an Order denying LPHI's motion for partial summary judgment. Incorporated in the Order is a ruling that is devastating for LPHI and its officers.

Judge Nowlin's Order

On September 23, 2013, in the current SEC lawsuit against LPHI, the company filed a motion for partial summary judgment. Among other points, and in support of its argument that the court lacks jurisdiction in the case, LPHI asserted that its life settlements are not "securities" under federal securities laws. LPHI cited the infamous 1996 decision of the U.S. Court of Appeals for the D.C. Circuit in the case of SEC v. Life Partners. In that old ruling, a two-to-one decision by a three-judge panel, the D.C. Circuit held that LPHI's life settlements displayed most but not all the characteristics necessary for the life settlements to be deemed securities. The dissenting judge said the life settlements displayed all the necessary characteristics. On November 19, 2013, Judge Nowlin issued an Order denying LPHI's motion for partial summary judgment. He ruled, among other points, that LPHI's life settlements are securities. Here are excerpts:

Viatical Settlements are securities, and even if they are not, there is more than enough evidence to support Plaintiff's claim that Defendants made misleading statements to shareholders and the public that were material.

Defendants next argue that life settlements are not securities under federal securities laws. In support of this position, Defendants cite a single case from the D.C. Circuit. Although the 5th Circuit [encompassing Texas] has not yet directly addressed the question of whether viatical settlements are securities as defined by federal law, the holdings of the Court of Appeals for the D.C. Circuit are not binding upon this Court. Additionally, the thrust of persuasive authority cuts against the D.C. Circuit's 1996 opinion in SEC v. Life Partners....

While Defendants only cite to the D.C. Circuit's opinion in Life Partners, Defendants did not manage to cozen the Court into thinking that Life Partners is the only case on point. Indeed, since the D.C. Circuit handed down Life Partners, several other federal courts have subsequently examined the same question and declined to adopt the D.C. Circuit's position....

[Blogger's notes: Judge Nowlin cited the 2005 decision of the 11th Circuit in SEC v. Mutual Benefits and the 2004 decision of the Northern District of Ohio in Wuliger v. Christie. According to the 2003 edition of Merriam-Webster's Collegiate Dictionary, "cozen" means "to deceive, win over, or induce to do something by artful coaxing and wheedling or shrewd trickery."]

On November 21, 2013, LPHI filed a motion for reconsideration, again asserting that life settlements are not securities, and again citing the D.C. Circuit's 1996 decision. On December 3, 2013, when he denied the motion for reconsideration, Judge Nowlin again ruled that life settlements are securities, and again rejected the 1996 decision.

Delayed Disclosure

LPHI did not file an 8-K report to disclose Judge Nowlin's ruling. I follow LPHI's SEC filings, but did not become aware of the ruling until late December while reviewing recent documents in the current SEC lawsuit against LPHI. LPHI finally disclosed the ruling on January 14, 2014, in a discussion of the SEC lawsuit against LPHI in the "Legal Proceedings" section on page 26 of the 30-page 10-Q report for the quarter ended November 30, 2013. Here is the key sentence:

In denying defendants' motion for partial summary judgment, the court held that the life settlements facilitated by Life Partners, Inc. were securities under Federal Law, despite the fact that (i) Life Partners, Inc. is not a defendant in the case, (ii) the SEC did not allege or argue that the life settlements were securities, and (iii) the offer and sale of our stock is not at issue in the case.

LPHI should have stopped with the words "Federal Law," because the three points that follow are nonsense. First, LPHI and Life Partners are indistinguishable. Second, LPHI argued that its life settlements are not securities. Third, although it is not the major thrust of the case, possible insider trading of LPHI stock is an issue.

A similar recent incident illustrates, in LPHI's words, the significance of a ruling that life settlements are securities. On August 28, 2013, as reported in the November 2013 and December 2013 issues of The Insurance Forum, a Texas state appellate court ruled that "the viatical settlements sold by Life Partners are investment contracts, as a matter of law, under the Texas Security Act and meet the definition of 'security.'" LPHI disclosed that ruling more than two weeks later in an 8-K report filed on September 13, 2013. In that report, LPHI said it would appeal the decision, and also said:

Should the decision ever become final, it would result in a material adverse effect on our operations and require substantial changes in our business model.

I think Judge Nowlin's Order is even more significant than the state appellate court's ruling, because it opens up the possibility that LPHI and its officers could be charged with violations of federal securities laws. That is why I think Judge Nowlin's Order is devastating for LPHI and its officers.

LPHI's delayed disclosure of Judge Nowlin's Order is not only surprising but also ironic. In my blog post No. 15, I discussed a legal victory for LPHI, which the company disclosed immediately in an 8-K report. That is how I learned about it and was able to report on it quickly. LPHI apparently discloses good news immediately and delays disclosure of bad news.

Warnings about the Future

In the recent 10-Q report, LPHI sounded warnings about the significance of the SEC lawsuit against the firm and about a life settlements trust that is in default. These two items are in the "Risk Factors" section on page 27 and are followed by detailed explanations:

The SEC enforcement proceeding has profoundly affected our operations and caused substantial losses, which has adversely affected our working capital and liquidity. It is important that the proceeding is timely resolved in our favor.

We have invested in a life settlements trust, whose secured loan is in default. The resolution of the default could cause the loss of our investment and in possible claims against us.

The Dividend Situation

According to LPHI's June 2013 proxy statement, Brian D. Pardo, LPHI's chief executive officer and a defendant in the current SEC lawsuit against LPHI, beneficially owns slightly over half the outstanding shares (9.4 million out of 18.6 million). Other officers and directors together own 376,000 shares. Pardo Family Holdings Ltd. (PFH) owns all but 14,000 of Pardo's shares. The proxy statement says PFH is located in Waco, Texas. However, according to an August 2009 Form 4 (the most recent Statement of Changes in Beneficial Ownership) filed with the SEC, PFH is located in Gibraltar, a British overseas territory.

Although LPHI incurred net losses in nine of the last eleven quarters, and despite the company's precarious financial condition, the company has continued to pay dividends. Here are the details:

Quarter Ended		Net Income (000)		Dividend (cents)
05/31/11		$ –874		20
08/31/11		–323		20
11/30/11		–1,083		20
02/29/12		–843		10
05/31/12		1,037		10
08/31/12		–1,849		10
11/30/12		–754		10
02/28/13		–1,311		10
05/31/13		1,677		5
08/31/13		–1,793		5
11/30/13		–939		5

For the eleven quarters combined, Pardo received dividends of about $11.75 million (9.4 million shares multiplied by $1.25 per share). That dwarfs the compensation he received for his services. According to the June 2013 proxy statement, he received total compensation of about $571,000 for the fiscal year ended February 28, 2013, $526,000 for 2012, and $1,080,000 for 2011.

As mentioned, LPHI's 10-Q report showing financial results for the quarter ended November 30, 2013 was filed on January 14, 2014. Nonetheless, in an 8-K report filed on December 17, 2013, LPHI announced a dividend of five cents per share (about $470,000 for Pardo) for that quarter.

My Recent Articles About Life Partners
My only previous article about the SEC's current lawsuit against LPHI is in the April 2012 issue of The Insurance Forum. Other recent articles about Life Partners are in the November 2012, December 2012, November 2013, and December 2013 issues.

Availability of Judge Nowlin's Order
Given the significance of Judge Nowlin's 21-page Order, I am making it available as a complimentary PDF. Send an e-mail to jmbelth@gmail.com and ask for Judge Nowlin's Order.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 21: Moody's Withdraws Its Ratings of Phoenix

On January 14, 2014, Moody's Investors Service said it has withdrawn all the ratings it had assigned to The Phoenix Companies, Inc. (NYSE:PNX): the Caa1 senior unsecured debt rating of Phoenix, the Ba2 insurance financial strength ratings of Phoenix Life Insurance Company and PHL Variable Insurance Company, and the B1 debt rating of Phoenix Life's surplus notes. The ratings had been placed under review for possible downgrade on June 17, 2010. Moody's said:

Moody's has withdrawn the ratings because it believes it has insufficient or otherwise inadequate information to support the maintenance of the ratings.... Phoenix has been unable to file GAAP statements since the second quarter of 2012 due to a need to restate its GAAP financial statements for the years ended 2011, 2010, and 2009 and quarterly statements during 2011 and the first and second quarters of 2012.

Phoenix Life and PHL Variable hold A. M. Best financial strength ratings of B with a stable outlook (assigned August 28, 2013). They also hold Standard & Poor's financial strength ratings of BB– with a negative outlook (assigned February 12, 2013).

In 2009, Phoenix stopped providing Fitch Ratings with nonpublic information and ceased paying annual rating fees. Fitch continued to rate Phoenix based on public information until July 2013, when it withdrew all its ratings.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 20: An Interesting Letter from a Reader

When I announced early in October 2013 that I was ending publication of The Insurance Forum, I offered subscribers back issues of their choice to meet my obligation for undelivered issues. I owed three issues to Robert H. Harmon, CLU, ChFC (Salt Lake City), a long-time subscriber and friend. He asked me to select the issues, which I did. I knew he had seen them when they were published a decade ago, but I also knew he would want to reread them. In response he sent this letter:

Thank you for the issues you sent. I thoroughly reread them. I admit, however, that rereading "Conseco's Assault on Universal Life Policyholders" in your December 2003 issue was like ripping off the scab of a previously healed wound! Your brilliant and thoroughly researched description of what Conseco did to its policyholders by eliminating the previously undisclosed "R-factor" brought back unhappy memories of what happened to many of my family members and cherished clients.

I thought I had done a remarkable job by selling more than 300 of those policies, which originally were issued by Massachusetts General and later were acquired by Conseco. In addition to meeting with fellow agents around the country, I had visited the Mass General home office, met with several members of top management, and was convinced I would be providing a great service by selling those policies to everyone I knew. It turned out to be the most heart wrenching experience of my business life. I eventually realized I had been betrayed in the worst possible way. I learned a lot from the experience, and since then I have been happy selling policies issued by reputable companies.

I began my life insurance sales career in 1956 after receiving an MBA from UCLA. Except for those unhappy years with Mass General and Conseco, this has been a great business. I am delighted to still be a part of it.

You have had a positive and strong influence on my business life. I am deeply grateful for the unique way in which you have been on the cutting edge of bringing news about what is really going on in our great industry.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 19: A STOLI Criminal Case in Federal Court in California

On July 20, 2013, a federal grand jury in San Diego handed up a 23-count indictment against four individuals in a case involving numerous stranger-originated life insurance (STOLI) policies. The defendants are Byron Arthur Frisch, Kristian Marcus Giordano, Kasra Sadr, and Brenda N. Barrera Merriles. The defendants are charged with one count of conspiracy to commit mail fraud and wire fraud, eight counts of mail fraud, and fourteen counts of wire fraud. The case, which I learned about only recently, has interesting connections to my blog post No. 16 about a STOLI civil case in federal court in Utah. (U.S.A. v. Frisch et al., U.S. District Court, Southern District of California, Case No. 3:13-cr-2774.)

Nature of the Charges

The indictment charges the defendants with deceiving life insurance companies into issuing large life insurance policies to unqualified applicants, obtaining millions in commissions, and selling the fraudulently obtained policies to innocent purchasers. To accomplish those purposes, the defendants, among other things, 

recruited elderly individuals to apply for life insurance policies with death benefits ranging from $1.5 million to $9.5 million with the promise that there would be no cost to the applicant; promised applicants that they would receive two years of coverage at the face value of the life insurance policy, followed by a payment of a part of the sale price of the policy when it was sold to a third party after two years; [and] prepared and submitted to life insurance companies applications for life insurance that intentionally contained false representations and omitted material facts regarding the applicant's net worth, income, source of premium payments, and intent to sell the policy....

Companies and Individuals

The indictment shows in tables the names of certain companies and individuals who sent or received funds by mail or wire. They are "Lincoln B Life Insurance Co.," "Principal Life Insurance Co.," "Producers Group," "Advanced Planning Services," "Cavalier Associates," "Sadr and Barrera," "Washington Mutual Bank," "Principal Financial Group," "Spartan Marketing," "Byron A. Frisch," "Gio3 Group," "K. Giordano," "Bank of America," "Wells Fargo Bank," "US Bank," and "California Bank & Trust."

Names of insureds are not shown but are indicated by initials. Applications are mentioned for policies of $8 million for RMG, $9.5 million for GH, $5 million for DG, $6 million for VC, $4 million for LP, $4 million for TSF, $1.5 million for JDA, $3 million for KH, $3 million for SDC, $3 million for VL, $3 million for RM, and $1.5 million for WS. In addition to fraudulent applications, the examples mention concealment of the identity of the party paying the premiums.

Status of the Case

Pleas of not guilty were entered and the defendants were released on bond. The case was assigned to District Judge Janis L. Sammartino. The trial date is February 7, 2014. 

Connections to a Civil Case in Utah

In my blog post No. 16 dated December 30, 2013, I discussed a civil case in federal court in Utah. The plaintiff was PHL Variable Insurance Company, a unit of Phoenix Companies, Inc. Here are some connections between the PHL case and the Frisch case:

• In my discussion of the PHL case, I mentioned the San Diego law firm of Sadr & Barrera. The principals of the firm are defendants in the Frisch case. 
• Frisch was deposed in the PHL case. Unfortunately the transcript is under seal in the court file on the PHL case.
• Frisch played football at Brigham Young University (BYU) in Provo, Utah. (Later he played professionally with the Tennessee Titans, Dallas Cowboys, New York Giants, and San Francisco 49ers.)
• Sheldon Hathaway, whose family trust was the defendant in the PHL case, lives in Payson, Utah, near Provo.
• In my discussion of the PHL case, I mentioned Brock Diediker. He played football at BYU.
• In my discussion of the PHL case, I mentioned Gabriel Giordano. He played football at BYU.
• Kristian Marcus Giordano is a defendant in the Frisch case. It seems likely that he is related to Gabriel Giordano.

The Indictment in the Frisch Case

I am making the 12-page indictment in the Frisch case available as a complimentary PDF. Send an e-mail to jmbelth@gmail.com and ask for the Frisch indictment.

 

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 18: Comments from Readers and Others about Universal Health Care

My blog post No. 12 entitled "The Expanded and Improved Medicare For All Act of 2013" (the Conyers bill), which also mentioned the Patient Protection and Affordable Care Act of 2010 (PPACA), generated some diverse responses. There were those who oppose universal health care. For example, Robert Bland, CLU, said:

I respectfully disagree about the need for socialized medicine and the destruction of the private practice of medicine in the U.S. We did the Amtrak and Post Office dance for decades, and mirroring those failures with one-sixth of the entire economy would be a disaster as socialized medicine is in every country that has it.

Mr. Bland went on with horror stories about long waits in Canada for routine tests that take only days in the U.S. He also said kings and queens come to the U.S. for critical medical care.

On the other hand, there were those who support universal health care. For example, Alan Press, CLU, said:

I agree with you that a single-payer system is the only solution and that the Conyers bill is unlikely to pass. However, I am not quite as pessimistic as you are about the future. The PPACA is a good step but it does not adequately address increased costs and the additional medical infrastructure, both of which will be required to provide care for those previously uninsured.

On December 5, 2013, Colin Powell, a long-time Republican, spoke in Seattle at a fundraiser for prostate cancer research. Among other prominent positions, he is a former Secretary of State, a former Chairman of the Joint Chiefs of Staff, and a retired four-star U.S. Army general. According to an article in the Puget Sound Business Journal, he expressed strong support for universal health care. He acknowledged his family's favorable experience with health care provided for the U.S. military. He said both he and his wife had swift, effective treatment for serious health problems and never had to fear whether they could afford the care they needed. He also said:

We are a wealthy enough country with the capacity to make sure that every one of our fellow citizens has access to quality health care. [Let's show] the rest of the world what our democratic system is all about and how we can take care of all of our citizens.

Providing universal health care necessarily will place pressure on the delivery system. However, I am confident that the medical education resources of our great nation are capable of expanding the supply of physicians and nurses, and that our construction industry is capable of expanding medical facilities to meet the demand. I cannot accept the idea that a major portion of our population must be denied access to adequate health care.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com