Monday, December 16, 2019

No. 345: Transamerica is the Defendant in a New Individual Lawsuit Relating to Cost-of-Insurance Increases

On this blog I have posted many items relating to cost-of-insurance (COI) lawsuits against Iowa-based Transamerica Life Insurance Company (Transamerica). The most recent post was No. 333 (September 20, 2019).

Background on the Terry Lawsuit
Angela Terry, a California resident, is trustee for and beneficiary of the Frank Irrevocable Trust (Trust) created in January 2000. In May 2000 the Trust purchased from a Transamerica predecessor a $1 million second-to-die universal life policy on the lives of Jeanine and Ronald Frank. In February 2019, after instituting a COI rate increase beginning in May 2018, Transamerica informed the Trust that a 39 percent COI rate increase had been imposed as of May 2018, and that further COI rate increases of 39 percent each would be imposed in May 2019 and May 2020. The compound amount of the three increases was 169 percent. The Trust thereupon surrendered the policy.

The Terry Complaint
On October 23, 2019, the Trust filed an individual lawsuit against Transamerica. Here are three of the first four paragraphs in the "Nature of the Action" section of the complaint:
1. This case arises from substantial cost of insurance increases on Transamerica's TransSurvivor 115 universal life insurance policies that started in 2017 and continue to the present. Transamerica breached the express and implied terms of the policies, violated other relevant law, and falsely and misleadingly stated that the cost increases were permitted due to a change in Transamerica's future cost expectations.
3. From the 1980s to the 2000s, Transamerica sold hundreds of millions of dollars in universal life insurance policies requiring it to credit interest on policyholders' accumulation accounts at guaranteed rates ranging between 4.0% and 5.5%, including the TransSurvivor 115 universal life insurance policies purchased by Ms. Terry and thousands of others. Ms. Terry purchased a TransSurvivor 115 policy so that her family would be protected as Jeanine and Ronald H. Frank (the joint insureds) entered their senior years and in the event of their death. However, beginning in 2017, Transamerica substantially increased the cost of insurance withdrawn from the policies' accumulation accounts, deceptively stating the increases were permitted by the terms of the policies "based on ... current expectations about ... future costs for providing coverage."
4. Despite its representations, Transamerica's expectations about the future costs for providing coverage under the policies could not have materially changed for the worse in 2017, particularly changes that would justify Transamerica's exorbitant cost increases (in some instances exceeding 168 percent). Since the TransSurvivor 115 policies were issued in the late 1990s to the 2000s, the factors that form the basis of Transamerica's cost of insurance rate have only improved, contractually precluding a cost of insurance increase entirely, but especially in 2017 when Transamerica knew that it was lowering the costs of administering its business between $70-100 million and that it was receiving hundreds of millions of dollars in prospective tax benefits under the Tax Cut and Jobs Act of 2017.
The complaint contains five counts: (1) breach of contract, including breach of the implied covenant of good faith and fair dealing; (2) tortious breach of the implied covenant of good faith and fair dealing; (3) violation of the California Business and Professions Code, Sections 17200 et seq.; (4) intentional, or in the alternative, negligent misrepresentation; and (5) declaratory relief. The full complaint is in the complimentary package offered at the end of this post. (See Terry v. Transamerica, U.S. District Court, Northern District of Iowa, Case No. 1:19-cv-118.)

Transamerica's Answer to the Complaint
On November 25, 2019, Transamerica filed an answer to the Terry complaint, including the standard "admits," "denies," and "lacks knowledge" language. It also includes ten affirmative defenses: (1) no duty to disclose, (2) failure to mitigate, (3) no punitive damages, (4) ratification, (5) illegality, (6) release, (7) genuine dispute doctrine, (8) reasonableness and good faith, (9) waiver, and (10) estoppel. The full answer is in the complimentary package offered at the end of this post.

The NYDFS Consent Order
Paragraphs 104 and 105 in the Terry complaint were my first knowledge that Transamerica Financial Life Insurance Company (TFLIC), a New York-domiciled subsidiary of Transamerica, entered into a consent order with the New York Department of Financial Services (NYDFS) on July 2, 2018. The consent order grew out of NYDFS financial and market conduct examinations of TFLIC for the periods 2006-2009 and 2010-2014. The examinations identified four violations during the 2006-2009 period and eleven violations during the 2010-2014 period. NYDFS ordered TFLIC to pay a civil monetary penalty of $762,700 in addition to restitution to policyholders and beneficiaries. The consent order is in the complimentary package offered at the end of this post.

The NYDFS consent order directed at TFLIC prompted me to visit the website of the Iowa Insurance Division, Transamerica's domiciliary regulator. I found no consent orders there directed at Transamerica.

General Observations
The Terry case is in its early stages, and I do not know what will happen as the case progresses. I plan to follow the case and report on significant developments.

Available Material
I am offering a complimentary 76-page PDF consisting of the Terry complaint (49 pages), the Transamerica answer (19 pages), and the NYDFS/TFLIC consent order (8 pages). Email jmbelth@gmail.com and ask for the December 2019 package about Terry v. Transamerica.

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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.

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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.

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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.

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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.

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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.

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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.

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