No. 259: MetLife's Lost Pensioners—A Fourth Update

In No. 246 (posted January 2, 2018) I discussed a recent disclosure by MetLife, Inc. (NYSE:MET) concerning lost pensioners. I provided updates in No. 252 (February 12), No. 254 (February 19), and No. 256 (March 6). Here I provide a fourth update on two important aspects of the subject: the unclaimed property laws of the states and the interest rates used to calculate the amount of interest paid to pensioners who are found many years after the benefits were due.

Unclaimed Property Laws

Each state has an unclaimed property law (or "escheat law") that requires many firms, including financial institutions, to turn over to the state any property that goes unclaimed for a certain length of time, such as three years. In 2010 media reports said some families of deceased members of the military services and some beneficiaries of deceased members of the general public were being denied benefits because they could not be found. The reports prompted me to write major articles in the October 2010 and November 2010 issues of The Insurance Forum.

MetLife, as mentioned in No. 256, said in its most recent 10-K annual report (filed March 1, 2018) that the company had "previously released" the reserves (liabilities) associated with lost pensioners. When I saw that language, I wondered whether those unclaimed funds would at some point be turned over to the state (as determined by the pensioner's last known address) in accordance with the state's unclaimed property law.

I raised this question with MetLife. A spokesman replied: "When there is a benefit owed and we cannot find a beneficiary, we will escheat funds to the states based on state regulations and contract provisions."

Interest Rates

When I raised the interest rate issue with MetLife, the spokesman sent me a transcript of an earnings call in which the company said the interest rate is comparable to that used by the Pension Benefit Guaranty Corporation (PBGC). I had trouble with PBGC's website, which seemed to refer to a section of the Internal Revenue Code relating to interest rates paid by taxpayers on late tax payments. When I asked the spokesman for clarification, he said:

The PBGC uses the Federal mid-term rate, as determined by the Secretary of the Treasury. MetLife is using the 5-year treasury rate as a comparable rate for administrative ease.

An Interesting Dispute

While working on this post, I learned of a recent lawsuit filed by Metropolitan Life Insurance Company, a unit of MetLife, against Michelle Smith, the executrix of the estate of William P. Toland Sr. The dispute was over the amount of interest credited for the period between Toland's retirement and the company's payment of the benefits. The retirement benefits were unpaid for many years because the company had not been informed of Toland's retirement. (See Metropolitan v. Smith, U.S. District Court, District of Massachusetts, Case No. 1:16-cv-11582.)

Toland retired on February 1, 1994. His employer's retirement plan was subject to the Employee Retirement Income Security Act (ERISA). Metropolitan did not receive notice of Toland's retirement until September 2012. After the company received the needed documents, it tried to make payment in April 2013, but learned that Toland had died in March 2013.

Metropolitan received new documents in December 2013 and sent the estate two checks. One was for $49,346.50 representing the amount due under the plan. The other was for $14,984.10 representing interest from February 1, 1994 to March 1, 2013, which was the last date for which a retirement payment was due. Smith did not cash the checks because she believed that the amount of interest was inadequate.

In July 2016 Metropolitan sent the estate two new checks. One was for $49,346.50 representing the amount due under the plan. The other was for $15,450.06 representing interest from February 1, 1994 to July 1, 2016. Again Smith did not cash the checks because she believed that the amount of interest was inadequate.

Smith appealed without success to several government agencies. Then, because the retirement plan was subject to ERISA rules, she began an arbitration proceeding through the Financial Industry Regulatory Authority (FINRA). Metropolitan filed a lawsuit arguing that the dispute was not appropriate for FINRA arbitration. The judge closed the case after the company and Smith entered into a confidential settlement.

However, among the many documents included in exhibits in the lawsuit was an excerpt from a Metropolitan letter explaining exactly how the company made the interest calculation in 2013. The excerpt said:

Delayed Interest was calculated from the effective date of each retroactive payment due to the true up date of March 1, 2013. Interest was calculated on retroactive payments from February 1, 1994 through March 1, 2013. Interest is based upon the average 3-month Constant Maturity Treasury Rate from the Federal Reserve Board H.15 Release. A minimum interest rate of 1.50% was in effect at the time of the interest calculation for Mr. Toland. Interest is compounded annually in our calculation methodology. Following are the interest rates used for each year for Mr. Toland's delayed interest calculation: 4.37% in 1994, 5.66% in 1995, 5.15% in 1996, 5.20% in 1997, 4.91% in 1998, 4.78% in 1999, 6.00% in 2000, 3.48% in 2001, 1.64% in 2002, 1.50% in 2003 and 2004, 3.22% in 2005, 4.85% in 2006, 4.48% in 2007, and 1.50% in 2008 through 2013.

General Observations

With regard to the unclaimed property issue, MetLife's reference to "released reserves" implied that the liabilities had been transferred to the company's surplus. I think the liabilities for lost pensioners should be moved to the company's liabilities for unclaimed property.

With regard to the interest rate issue, when I first asked MetLife for clarification, I mentioned the idea of using the company's interest rates on settlement options, such as the interest-only option, the fixed-amount option, or the fixed-period option. I think it is common for the interest rates in those settlement options to be subject to change, and sometimes the options guarantee a minimum interest rate such as 3 percent. I mentioned the idea because I thought it would be appropriate to use interest rates resembling MetLife's rate of return on its invested assets, rather than arbitrary interest rates. The MetLife spokesman did not comment on the idea of using settlement option interest rates.

Available Material

I am offering a 22-page complimentary package consisting of the two 2010 Forum articles about unclaimed property (9 pages), the text (without exhibits) of Metropolitan's complaint against Smith (12 pages), and the company's explanation of the interest calculation (1 page). Email jmbelth@gmail.com and ask for the second March 2018 package about MetLife's lost pensioners.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 258: Long-Term Care Insurance—The Kansas Insurance Department's Bailout of General Electric

In No. 257 (posted March 12, 2018) I reported on shareholder litigation against General Electric Company (GE) relating to a huge charge taken by GE in connection with an old run-off block of long-term care (LTC) insurance policies. A reader immediately informed me of another dimension of the subject, which I discuss in this follow-up.

The Huge Charge

It was not widely known until recently that GE had retained financial responsibility for a run-off block of LTC insurance policies sold more than a decade ago, prior to the creation of Genworth Financial, Inc. In July 2017 GE disclosed problems in its old LTC block. In November GE disclosed that its old LTC block had been largely reinsured, that the company was reviewing the reserve liabilities for its old LTC block, and that the charge was expected to be more than $3 billion.

On January 16, 2018, GE shocked the insurance world by disclosing that it will contribute about $15 billion of capital to the reinsurer over the next seven years, consisting of about $3 billion in the first quarter of 2018 and about $2 billion per year in each of the six following years. On January 24 GE disclosed the existence of an investigation by the Securities and Exchange Commission (SEC). GE said the SEC is "investigating [GE's] process leading to the insurance reserve increase and the fourth-quarter charge as well as GE's revenue recognition and controls for long-term service agreements."

The Reinsurer

In its January 16 disclosure, which was in an 8-K (significant event) report filed with the SEC, GE alluded to accounting rules of the Kansas Insurance Department and identified the reinsurer as "North American Life and Health (NALH)." I learned recently that the reinsurer for which GE used a Kansas "permitted accounting practice" was Employers Reassurance Corporation (ERAC), a Kansas-domiciled GE subsidiary. Later I discuss that error in GE's January 16 filing.

In ERAC's statutory annual statement for 2017, as filed March 1, 2018, the first note under "Notes to Financial Statements," on page 19.1 of the statement, discusses the old LTC block. The note says an accounting practice permitted in Kansas, but not permitted under the statutory accounting principles promulgated by the National Association of Insurance Commissioners (NAIC), allowed ERAC to add almost $11 billion (the figure is $10,983,500,000) to its surplus. Here is my edited version of a portion of the note (the full note is in the complimentary package offered at the end of this post):

During December 2017, ERAC requested and subsequently received approval from the Kansas Insurance Department for a permitted accounting practice to spread and delay the full recognition of the indicated increase in additional actuarial reserves (AAR) that would otherwise be required under the NAIC's statutory accounting principles over the years 2017 through 2023. The increase in AAR is predominantly related to the changes in ERAC's asset adequacy (cash flow testing) assumptions for long-term care business. The effects of the permitted practice are included in ERAC's calculation of its risk-based capital (RBC). Absent the permitted practice, ERAC would have required an additional capital contribution from GE under the terms of the existing Capital Management Agreement in place. The amount of AAR recognized in ERAC's 2018-2023 statutory financial statements will be computed by taking a percentage of the difference between the total estimated AAR adjustment as determined by the respective year's cash flow testing and the year-end 2016 AAR, and then subtracting the amount of change in AAR recognized in each of the preceding years starting in 2017.

ERAC's RBC Ratios

From ERAC's statutory financial statement for 2017, I calculated the RBC ratios (as percentages) at the end of each of the last five years, where the denominators of the ratios are company action level RBC. The ratios were 310 in 2013, 202 in 2014, 173 in 2015, 224 in 2016, and 187 in 2017. Without the Kansas permitted accounting practice, ERAC would be deeply insolvent and far below mandatory control level RBC.

My Public Records Request to the Kansas Department

On March 13 I asked the Kansas department, pursuant to the Kansas Open Records Act (KORA), for a copy of ERAC's request for the permitted accounting practice and a copy of the department's approval of the request. On March 14 Elizabeth J. Hickert Fike, an attorney in the legal division of the department, said:

The documents you are requesting are not subject to public disclosure. We consider that material to be included in our financial analysis workpapers. Please see 40-222(k)(7) for confidentiality of financial examination, including ongoing analysis.

Ms. Fike provided me with the text of that subsection of the Kansas Statutes (45-215 referred to below is the KORA). It reads:

All working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this act including analysis by the commissioner pertaining to either the financial condition or the market regulation of a company must be given confidential treatment and are not subject to subpoena and may not be made public by the commissioner or any other person, except to the extent otherwise specifically provided in K.S.A. 45-215 et seq., and amendments thereto. Access may also be granted to the national association of insurance commissioners [sic] and its affiliates. Such parties must agree in writing prior to receiving the information to provide to it the same confidential treatment as required by this section, unless the prior written consent of the company to which it pertains has been obtained.

My Other Request to the Kansas Department

On March 13 I also asked the Kansas department some questions about the "permitted accounting practice to spread and delay additional actuarial reserves." On March 15 Tish M. Becker, chief financial analyst in the department, responded in detail. She said ERAC requested the department's approval of the permitted accounting practice on December 29, 2017. She said the department notified all the states where ERAC is licensed (the District of Columbia and all states except New York) and received no objections. Any objecting state can require the company to file a statement in that state not reflecting the permitted accounting practice, but such a statement would be rarely seen because it would not be the official statement circulated by the NAIC. I do not know how many states formally approved the permitted accounting practice, and how many tacitly approved it by not commenting on it.

Ms. Becker said the department reviewed ERAC's request "utilizing various actuarial and financial experts" and approved the request on January 11, 2018. She also said that, if the department had not granted the request, the Capital Management Agreement would have resulted in GE contributing the full amount. Ms. Becker made this general comment:

Please recognize there is a difference between what is booked on a statutory accounting basis for the insurance legal entity, versus what is booked on a GAAP [Generally Accepted Accounting Principles] basis on a group's consolidated financials.

In response to my inquiry about GE's erroneous identification of the reinsurer, Ms. Becker pointed out that GE has two life-health insurance subsidiaries, ERAC and Union Fidelity Life Insurance Company (UFLIC), both of which are domiciled in Kansas. She said "North American Life and Health (NALH)" is a term used by GE to discuss the results of its run-off insurance operations including both ERAC and UFLIC. She explained that, while UFLIC also identified an increase in additional actuarial reserves as of December 31, 2017, the increase was fully funded. Thus the department did not approve a permitted accounting practice for UFLIC.

I am not satisfied with that explanation. I can conceive of only two possible explanations for GE's error. A charitable explanation is that GE first requested the permitted accounting practice from an outside company, which declined to get involved, and GE then turned to ERAC. A less charitable explanation is that GE used a phony name for the reinsurer to avoid calling attention to the details of the permitted accounting practice shown in the note in ERAC's statutory statement.

My Writings about Permitted Accounting Practices

I have written extensively about permitted accounting practices in state regulation of insurance. My most important articles on the subject were in the February 2009, April 2009, May 2009, and August 2009 issues of The Insurance Forum. It is no coincidence that the articles appeared during the Great Recession. The articles are in the complimentary package offered at the end of this post.

General Observations

For a single state insurance regulator to approve—in violation of the NAIC's statutory accounting principles, and with the approval (or lack of disapproval) of the other state insurance regulators—the bailout of GE to the tune of almost $11 billion is an outrage. This case illustrates that any deviation, no matter how large, from acceptable accounting practices can be deemed acceptable by state insurance regulators.

Uniformity among the states was the basic reason for the creation of the NAIC's predecessor almost 150 years ago. In the wake of the unacceptable accounting practice described here, it will be interesting to see what rating actions, if any, are taken by the major firms that assign financial strength ratings to insurance companies.

Available Material

I am offering a 16-page complimentary package consisting of the note in ERAC's 2017 statutory financial statement (1 page) and the four 2009 Forum articles (15 pages). Email jmbelth@gmail.com and ask for the March 2018 follow-up about GE's old LTC insurance block.

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Blog: www.josephmbelth.com

No. 257: Long-Term Care Insurance—A Major Legacy Problem for General Electric

The Cleveland Bakers and Teamsters Pension Fund, a General Electric Company (GE) shareholder, recently filed a class action lawsuit against the company and several of its current and past officers. The lawsuit grew out of a huge charge taken by GE relating to a legacy run-off block of long-term care (LTC) insurance policies, and a resulting decline in the market value of GE shares. Here I discuss the background of GE's involvement in LTC insurance and the current status of the lawsuit.

Background

My first experience with GE insurance was in 1997, when I received a promotional letter about guaranteed renewable LTC insurance offered by General Electric Capital Assurance Company. 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 Insurance Forum.

Genworth Financial

Genworth Financial, Inc. was created in 2003. GE transferred to Genworth some of the LTC insurance business that had been sold through General Electric Capital. Genworth became a major company in the LTC insurance business. Genworth also sold life insurance, annuities, and mortgage insurance. In No. 144 (posted February 16, 2016) I reported that Genworth's companies had suffered sharp declines in their financial strength ratings, and that Genworth had discontinued the sale of life insurance and annuities. In Nos. 185 and 187 (posted in November 2016) I reported that Genworth and China Oceanwide Holdings Group Co., Ltd. had entered into a definitive agreement under which China Oceanwide had agreed to acquire all the outstanding shares of Genworth.

The Genworth agreement with China Oceanwide has been approved by some but not all the necessary regulators. An update is in Genworth's 10-K report as of December 31, 2017, as filed with the Securities and Exchange Commission (SEC) on February 28, 2018. An excerpt from the 10-K is in the complimentary package offered at the end of this post. Also, in an 8-K (significant event) report filed with the SEC on March 9, Genworth said it entered into a $450 million five-year senior secured loan agreement with China Oceanwide on March 7.

GE's Recent Disclosures

It was not widely known until recently that GE had retained financial responsibility for a run-off block of LTC insurance policies sold prior to the creation of Genworth. On July 21, 2017, GE said it recently had adverse claims experience in the old LTC insurance block. On October 20 GE said it was conducting a comprehensive review. On November 13 GE said it was cutting its dividend in half, only the second cut since the Great Depression. On November 14 GE said that the old LTC insurance block had been largely reinsured, that it was reviewing its reserves for the old LTC insurance block, and that the charge was expected to be more than $3 billion. On January 16, 2018, in an 8-K report, GE said:

On January 16, 2018, GE provided an update on the previously reported review of premium deficiency assumptions related to GE Capital's run-off insurance business (North American Life and Health ("NALH")). With the completion of that review, and of NALH's annual premium deficiency test, GE recorded an increase in future policy benefit reserves of $8.9 billion and $0.6 billion of related intangible asset write-off for the fourth quarter of 2017. This will result in a $6.2 billion charge ($7.5 billion upon remeasurement under tax reform) on an after-tax GAAP [Generally Accepted Accounting Principles] basis to GE's earnings in the fourth quarter of 2017.

As a regulated insurance business, NALH is subject to a statutory accounting framework for setting reserves that requires the modification of certain assumptions to reflect moderately adverse conditions and other differences from the reserve calculation under GAAP. Under that framework, we estimate that GE Capital will need to contribute approximately $15 billion of capital to NALH over the next seven years. GE Capital plans to make a first capital contribution of approximately $3 billion in the first quarter of 2018 and expects to make further contributions of approximately $2 billion per year in each of the six following years, subject to ongoing monitoring by NALH's primary regulator, the Kansas Insurance Department. GE Capital plans to fund the capital contributions with its excess liquidity and other GE Capital portfolio actions and does not expect to make a common share dividend distribution to GE for the foreseeable future.

On January 24, 2018, GE disclosed the existence of an SEC investigation. The company said the SEC would be "investigating [GE's] process leading to the insurance reserve increase and the fourth-quarter charge as well as GE's revenue recognition and controls for long-term service agreements."

The Cleveland Bakers Lawsuit

On February 20, 2018, Cleveland Bakers filed a class action lawsuit against GE and four individuals: Jeffrey Immelt, GE's chief executive officer from September 2001 until August 2017; John Flannery, GE's chief executive officer since August 2017; Jeffrey Bornstein, GE's chief financial officer from July 2013 until November 2017; and Jamie Miller, GE's chief financial officer from November 2017 until the end of the class period (January 24, 2018). The Cleveland Bakers case focused primarily on LTC insurance, and grew out of recent disclosures, especially the January 16, 2018 disclosure of the huge charge relating to the old LTC insurance block. (See Cleveland Bakers v. GE, U.S. District Court, Southern District of New York, Case No. 1:18-cv-1404.)

Cleveland Bakers alleged that the defendants had understated reserve liabilities in financial statements. The complaint included one count of violations of Section 10(b) of the Exchange Act by all the defendants, and one count of violations of Section 20(a) of the Exchange Act by the individual defendants. Cleveland Bakers sought class certification, damages, pre-judgment and post-judgment interest, attorney fees, expert fees, and other costs.

The Earlier Cases

Three shareholder class action lawsuits against GE preceded the Cleveland Bakers case. They were filed November 1, November 2, and December 18, 2017. The earlier cases dealt for the most part with GE operations other than LTC insurance. (See Hachem v. GE, Mirani v. GE, and Tampa Maritime Association-International Longshoremen's Association Pension Plan v. GE, U.S. District Court, Southern District of New York, Case Nos. 1:17-cv-8457, 1:17-cv-8473, and 1:17-cv-9888.)

The Judge

All the cases were assigned to U.S. District Court Judge Jesse M. Furman. President Obama nominated him in June 2011, and the Senate confirmed him in February 2012.

General Observations

On February 26 Judge Furman issued an order consolidating the cases. He closed the Cleveland Bakers, Mirani, and Tampa Maritime cases, thus leaving only the Hachem case open. I believe that a consolidated complaint in the Hachem case will be filed soon, and that it will incorporate the allegations in the Cleveland Bakers complaint relating to GE's old LTC insurance block. I plan to follow the case closely and report major developments.

Available Material

I am offering a 42-page complimentary package consisting of the May 1997 and February 1998 Forum articles (4 pages), the excerpt from Genworth's recently filed 10-K report (5 pages), and the complaint in the Cleveland Bakers case (33 pages). Email jmbelth@gmail.com and ask for the March 2018 package relating to GE's old LTC insurance block.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 256: MetLife's Lost Pensioners—A Third Update

In No. 246 (posted January 2, 2018) I discussed a recent disclosure by MetLife, Inc. (NYSE:MET) concerning about 600,000 lost pensioners. I provided updates in Nos. 252 (February 12) and 254 (February 19). Here I provide a third update.

MetLife's 10-K Report for 2017

In its discussions of the problem of lost pensioners, MetLife said it would discuss the subject in the 10-K report as of December 31, 2017 to be filed with the Securities and Exchange Commission on March 1, 2018. The first reference to the subject is this paragraph on page 87 of the 417-page 10-K (all references to the subject are in the complimentary package offered at the end of this blog post):

On December 15, 2017, the Company announced that it was undertaking a review of practices and procedures used to estimate its reserves related to certain RIS [Retirement Income Solutions] group annuitants who have been unresponsive or missing over time. As a result of this process, the Company increased reserves by $510 million, before income tax, to reinstate reserves previously released, and to reflect accrued interest and other related liabilities. Of the increase of $510 million ($331 million, net of income tax), $138 million ($90 million, net of income tax) was incurred in 2017 and $372 million ($241 million, net of income tax) was considered an error and, recording this amount in the fourth quarter of 2017 financial statements would have had a material effect on the results of operations for 2017. Approximately 25 years ago, companies that are or have been MetLife, Inc. subsidiaries established a practice of releasing the full insurance liability after two attempts at contacting these annuitants, based on the presumption that these annuitants would never respond and had not become entitled to benefits based on certain contractual provisions. The number of impacted annuitants for whom the Company released the full insurance liability was no more than 1,000 in any one year, and over the entire period totaled approximately 13,500 as of December 31, 2017, which is approximately 2% of the total group annuitant population.

The Lenna Retirement

On February 27, 2018, The Wall Street Journal carried an article by reporter Leslie Scism entitled "MetLife Pension-Benefits Executive to Retire." The article cited an internal memorandum indicating that Executive Vice President Robin Lenna will retire as of March 1 after 14 years at the company. According to the article, she headed the company's "Retirement Income Solutions unit, which oversees a 'pension-risk-transfer' business in which the insurer assumes responsibility for some or all payments due participants in private-sector pension plans."

Identify Theft Alerts

In recent months at least four state insurance departments have issued consumer alerts warning the public about the activities of criminals engaged in identity theft. In July 2017 and September 2017 the Nebraska Department of Insurance issued alerts. The first was entitled "Beware of Fraudulent Attempts to Disburse Funds from Annuity Contracts." The second was entitled "Fraudulent Disbursement of Funds from Annuity Contracts." The thieves had annuitants' contract numbers, Social Security numbers, and dates of birth.

In November 2017 the Kansas Insurance Department issued an alert entitled "Identity thieves go after annuities." The thieves had annuitants' account numbers, Social Security numbers, and dates of birth.

On February 6, 2018, the Colorado Division of Insurance issued an alert entitled "Identity thieves target annuities." The division warned annuitants to watch for unauthorized withdrawals.

On February 28, 2018, the South Carolina Department of Insurance issued a media release entitled "South Carolina Department of Insurance Warns of Identity Thieves Targeting Annuities and Annuity Recipients." The thieves had annuitants' account numbers, dates of birth, Social Security numbers, names and addresses of relatives, and other information.

Steven Weisbart's Comments

In my previous posts about lost pensioners, I invited comments from readers, especially from those with direct knowledge of record keeping procedures. I heard from several readers who had no inside information, but recently I received an email from Steven Weisbart. He served on the faculty at Georgia State University, later worked at TIAA-CREF, and is now senior vice president and chief economist at the Insurance Information Institute. I edited his comments lightly, and he approved my editing. Here are his thoughts on the subject of lost pensioners:

I have dealt with the issue of "lost participants" at two points in my career. The first was at TIAA-CREF. The second is at a defined benefit pension plan for insurance-support organizations. Although it is clear that MetLife "dropped the ball," I understand that this is a very difficult problem to overcome, particularly if success is defined as not losing anyone.

There are several problems that should be recognized. First, methods of keeping records have changed dramatically over the last 50 years or so. The older a record, the harder it is to search. This is not just paper-to-computer, but one computer system to another. Companies are replacing "legacy" systems with newer ones that do not necessarily read older data.

Second, a related problem is that record keepers are often changed. When they are, some historical records, which might have been helpful in a search, are likely lost. In my current defined benefit plan, for example, we switched record keepers in 2010, and some useful historical information on current participants might not have been handed over to the new record keeper.

Third, in establishing non-pension records, such as drivers' licenses, people often use different forms of their names, making a match uncertain. For example, I sometimes use my middle initial and sometimes do not. Also, some external data bases, such as the Social Security Master Death File, contain errors that pose a challenge in locating a lost participant accurately.

Fourth, most lost participants have small benefit amounts at stake. Thus they have little incentive to keep the contact information accurate.

Fifth, even when you think you have found a lost participant and want to confirm it by direct contact, the person may not respond because he or she interprets the inquiry as a marketing effort, or worse, a senior citizen scam. That is especially true in a case such as MetLife, where the obligation was originally assumed by a different sponsor. A recipient may never have dealt with MetLife and may think the contact letter is a fake.

I am not trying to excuse MetLife. Rather, I am trying to explain why they may continue to struggle with this issue for a long time.

Available Material

I am offering a complimentary 12-page PDF consisting of excerpts from MetLife's 10-K filed March 1, 2018 (6 pages) and consumer alerts from state insurance departments (6 pages). Email jmbelth@gmail.com and ask for the March 2018 package about MetLife's lost pensioners.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 255: Mueller's Grand Jury Hands Up an Indictment Against the Russians—A Major Development in the Investigation

On February 16, 2018, Special Counsel Robert S. Mueller III of the U.S. Department of Justice filed a District of Columbia federal grand jury indictment of three Russian entities and 13 Russian individuals. I think the indictment should be widely read. (See USA v. Internet Research Agency, U.S. District Court, District of Columbia, Case No. 1:18-cr-32.)

The Judge

The case has been assigned to U.S. District Court Judge Dabney L. Friedrich. President Trump nominated her in June 2017, and the Senate confirmed her in November 2017 by a vote of 93 to 4.

The Attorneys

The government attorneys are Jeannie Sclafani Rhee of the special counsel's office, Lawrence Rush Atkinson of the special counsel's office, and Ryan Kao Dickey of the criminal division of the U.S. Department of Justice. The names of the defendants' attorneys are not yet known.

The Charges and the Defendants

The indictment includes eight counts: one count of conspiracy to defraud the United States, one count of conspiracy to commit wire fraud and bank fraud, and six counts of aggravated identity theft. The government makes different numbers of charges against the various defendants, and seeks forfeiture against some of the defendants. The defendants are Internet Research Agency LLC (it has five other names), Concord Management and Consulting LLC, Concord Gathering, and 13 individuals. The names and aliases of the individual defendants are shown in the court docket, which is part of the complimentary package offered at the end of this post. Here is the first paragraph of the indictment:

The United States of America, through its departments and agencies, regulates the activities of foreign individuals and entities in and affecting the United States in order to prevent, disclose, and counteract improper foreign influence on U.S. elections and on the U.S. political system. U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government. Various federal agencies, including the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State, are charged with enforcing these laws.

Structure of the Indictment

A major section of the indictment addresses the Count 1 conspiracy charge. The section identifies the defendants, lists the federal regulatory agencies, explains the object of the conspiracy, describes the manner and means of the conspiracy, explains the use of U.S. social media platforms, talks about the use of U.S. computer infrastructure, describes the use of stolen U.S. identities, explains actions targeting the 2016 U.S. presidential election, describes political advertisements (with 13 examples), explains the staging of political rallies in the U.S., describes the destruction of evidence, and lists overt acts.

Another section of the indictment addresses Counts 2 and 3. The section explains the object of the conspiracy, describes the manner and means of the conspiracy, and includes 23 examples of identify theft. The final section of the indictment describes the forfeiture allegation.

General Observations

I think the filing of this indictment is the most important development to date in the investigation. It may be difficult or impossible to bring the alleged wrongdoers into a U.S. courtroom, but the indictment sends a strong message. The alleged wrongdoers may hesitate to travel out of Russia because they may find themselves in countries that have extradition agreements with the U.S. In addition, I think the indictment strengthens the special counsel's political position, making it more difficult to remove him. Deputy Attorney General Rod Rosenstein, not Special Counsel Mueller, conducted the press conference at which the indictment was announced.

Available Material

I am offering a complimentary 47-page PDF consisting of the court docket (10 pages) and the indictment (37 pages). Email jmbelth@gmail.com and ask for the February 2018 package about Special Counsel Mueller's charges against Russian entities and individuals.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 254: MetLife's Lost Pensioners—A Further Update

In No. 246 (posted January 2, 2018) I discussed a recent disclosure by MetLife, Inc. (NYSE:MET) concerning about 600,000 lost pensioners. In No. 252 (February 12, 2018) I provided an update. I am rushing this further update for a reason I will explain.

The January 29 Postponement

On January 29 MetLife postponed its fourth quarter and full year 2017 earnings report and the related earnings conference call by about two weeks. The company provided preliminary results and said management had found a "material weakness in internal control over financial reporting."

The February 13 Announcement

On February 13 MetLife announced the fourth quarter and full year 2017 earnings report. The following statement appears at the bottom of the first page of the news release:

"Although our underlying financial performance remained solid, the reserve charge and its impact on our fourth quarter and full year earnings—as well as the material weakness that led us to delay our earnings announcement—are unacceptable and deeply disappointing," said Steven A. Kandarian, chairman, president and CEO of MetLife, Inc. "We can and will do better. We are rigorously addressing the situation and are committed to significantly improving our operational performance to better serve our customers and strengthen shareholders' confidence in our organization. MetLife is an iconic franchise with strong businesses, and we are working very hard to continue to successfully execute on our strategy and deliver great value to our customers and shareholders."

The Conference Call

MetLife held its earnings conference call on February 14. Here is the first portion of Kandarian's opening remarks:

Most of my comments this morning will focus on the issue within our Retirement and Income Solutions business that caused us to delay earnings and take an after-tax charge of $331 million or $510 million pre-tax. Simply put, this is not our finest hour. We had an operational failure that never should have happened and it is deeply embarrassing. We are undertaking a thorough review of our practices, processes and people to understand where we fell short and how we can reset the bar at the high level people have come to expect from us over our 150-year history. The Board of Directors is fully engaged on this issue as well.

Replay of the Conference Call

According to the February 13 news release, the conference call will be available for replay by telephone for one week—specifically, until Wednesday, February 21, at 11:59 p.m. (EST). To listen to a replay by telephone, dial 800-475-6701 (U.S.) or 320-365-3844 (outside the U.S.). The access code for the replay is 433148. I am rushing this post in case any readers would like to listen to the replay by telephone.

The Advisory Report to the DOL

Shortly after I began writing about MetLife's lost pensioners, a reader brought to my attention a November 2013 advisory report submitted to Thomas E. Perez, then the Secretary of the U.S. Department of Labor (DOL). The report, produced by the Advisory Council on Employee Welfare and Pension Benefit Plans, is entitled "Locating Missing and Lost Participants." Here is the abstract:

The 2013 ERISA Advisory Council ("Council") examined the issues plan sponsors, fiduciaries, service providers, and other parties ("Plan Representatives") face in handling plan benefits payable to participants and beneficiaries who cannot be found or are nonresponsive ("Lost Participants"). The focus of the Council's examination was on both methods of maintaining contact with participants so they do not become Lost Participants and methods of finding participants once they become Lost Participants.

The Council learned from witnesses who testified that locating Lost Participants to pay them their benefits can be an administrative burden. Further, while there is DOL guidance on dealing with Lost Participants, that guidance is (i) focused on terminated defined contribution plans, (ii) presented in multiple sources rather than one central and cohesive resource, or (iii) outdated. Furthermore, there does not appear to be sufficient inter-agency coordination among the DOL, the Pension Benefit Guaranty Corporation, and the Social Security Administration to address overlapping issues surrounding Lost Participants. The Council makes several recommendations in this report regarding how to address each of these findings.

Available Material

I am offering a complimentary 47-page PDF consisting of MetLife's February 13 news release without the unaudited statements (17 pages) and the advisory report to the DOL (30 pages). Email jmbelth@gmail.com and ask for the second February 2018 package about MetLife's lost pensioners.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 253: Long-Term Care Insurance—Metropolitan Life Suffers a Setback in a Class Action Lawsuit Relating to Premium Increases

On February 6, 2018, a federal appellate court handed Metropolitan Life Insurance Company a setback in a class action lawsuit relating to premium increases on certain long-term care (LTC) insurance policies. A district court judge granted the company's motion to dismiss the complaint, but a three-judge appellate panel unanimously reversed the decision and sent the case back to the district court for further proceedings. Here I discuss this extraordinary case. (See Newman v. Metropolitan, U.S. District Court, Northern District of Illinois, Case No. 1:16-cv-3530, and U.S. Court of Appeals, Seventh Circuit, Case No. 17-1844.)

The Complaint

On March 23, 2016, Margery Newman, an Illinois resident, filed a class action complaint against Metropolitan. The case was assigned to U.S. District Court Judge Thomas M. Durkin. President Obama nominated him in May 2012, and the Senate confirmed him in December 2012.

On June 29, 2016, Newman filed a first amended complaint, on which the discussion here is based. She was aged 56 when she purchased an "LTC Premier" policy that was effective September 1, 2004. The policy included a "reduced-pay at 65 option," which she selected. Metropolitan's marketing brochure described the option as follows:

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. On September 1, 2012, the semiannual premium declined by 50 percent, to $1,906.84. On March 1, 2015, Metropolitan increased the semiannual premium by 102 percent, to $3,851.81.

In her complaint Newman suggested a definition of the "class" for purposes of this case. Here is her suggestion:

All persons age 65 and older in the United States who purchased an individual long-term care insurance policy from MetLife (or a subsidiary or affiliate thereof) and selected the "Reduced-Pay at 65 Option" at any time during the period from June 1, 1986 to the present and have been subjected to a class-wide rate increase that increased their premiums above and beyond the promised 50% of their pre-age 65 premiums.

Newman alleged breach of contract, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, fraud, and fraudulent concealment. She sought class certification, compensatory and punitive damages, statutory and exemplary damages, imposition of a constructive trust, a claims resolution facility, attorney fees, and costs. She attached several exhibits to the complaint, including Metropolitan's marketing brochure and the policy under discussion.

The Dismissal

On July 29, 2016, Metropolitan filed a motion to dismiss the complaint for failure to state a claim. On March 9, 2017, after briefing, Judge Durkin issued a memorandum and order dismissing the complaint without prejudice. Here is the concluding paragraph (persons interested in Judge Durkin's reasoning are invited to read his ruling, which is part of the complimentary package offered at the end of this post):

For the reasons stated above, Plaintiff's complaint is dismissed. The dismissal is without prejudice, however, and Plaintiff may move to amend her complaint within 30 days of the date of this Order. Any such motion should attach a proposed amended complaint and be supported by a brief of no more than five pages describing how the proposed amendments cure the deficiencies in the current complaint. Defendant should not respond to the motion to amend unless ordered to do so by the Court. If after 30 days no motion to amend is filed, this dismissal will be converted into a dismissal with prejudice.

On April 7, 2017, Newman filed a motion for leave to file a second amended complaint, attached the second amended complaint, and submitted a short memorandum in support of the motion. On April 12, at a motion hearing, Judge Durkin denied the motion for reasons he stated orally, and he dismissed the complaint with prejudice.

The Appellate Court Case

On April 21, 2017, Newman filed a notice of appeal to the Seventh Circuit. On June 12 she filed her brief. On July 12 Metropolitan filed its brief. On July 26 Newman filed a reply brief.

The case was assigned to a panel consisting of Chief Judge Diane P. Wood and Circuit Judges Frank H. Easterbrook and Ilana Diamond Rovner. President Clinton nominated Judge Wood in March 1995, the Senate confirmed her in June 1995, and she became Chief Judge in 2013. President Reagan nominated Judge Easterbrook in February 1985, the Senate confirmed him in April 1985, and he served as Chief Judge from 2006 to 2013. President George H. W. Bush nominated Judge Rovner in July 1992, and the Senate confirmed her in August 1992.

On February 6, 2018, the panel filed its unanimous decision, which Chief Judge Wood wrote. The decision reversed the district court's dismissal of the complaint and sent the case back to the district court for further proceedings. Here is the final paragraph of the panel's decision:

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 the same day Judge Durkin set a status hearing for the morning of February 16. What will emerge from the hearing and what will happen in the "further proceedings" remain to be seen.

General Observations

At the outset I said this case is extraordinary. It may also be unusual, because I think it is unlikely that many policyholders would have signed up to pay higher premiums initially in order to qualify for lower premiums later. If the complaint survives dismissal, which seems likely now, if Metropolitan does not settle quickly, if a class is certified, and if the parties agree to settle the case rather than go to trial, we may learn about the magnitude of the problem through the terms of the settlement agreement. It is also important to recognize that Metropolitan stopped selling LTC insurance policies several years ago, and is currently engaged in administering and running off its existing block of LTC insurance policies. I plan to follow this case and report further developments.

Available Material

I am offering a complimentary 58-page PDF consisting of the first amended complaint without exhibits (14 pages), Judge Durkin's memorandum and order (28 pages), and the appellate court panel's ruling (16 pages). Email jmbelth@gmail.com and ask for the February 2018 package about Newman v. Metropolitan.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com