No. 389: Philip Falcone's Departure from His Public Company

Falcone and Kanawha

My first post mentioning Philip A. Falcone (CRD#1442413) was No. 242 (November 20, 2017). There I said a block of long-term care (LTC) insurance policies, originally issued by South Carolina-domiciled Kanawha Insurance Company, was being acquired by Continental General Insurance Company (CGIC), a subsidiary of HC2 Holdings Inc. (NYSE:HCHC). The Kanawha LTC block had been acquired earlier by Humana, but Falcone announced in late 2017 that CGIC was acquiring Kanawha's LTC block.

On July 12, 2018, the South Carolina director of insurance issued an order approving the merger of Kanawha into Texas-domiciled CGIC, and the redomestication of Kanawha from South Carolina to Texas. The order included a "continuing obligation of CGIC" that "Falcone shall not have any role in the day-to-day operations of Kanawha or CGIC pre- or post-merger." The order also included a requirement that HC2 maintain a certain risk-based capital ratio for CGIC.

Falcone and the SEC

In No. 244 (December 11, 2017), I discussed Falcone's settlements with the Securities and Exchange Commission (SEC). On August 16, 2013, Falcone and Harbinger Capital Holdings LLC, his New York hedge fund, settled two SEC complaints, admitted wrongdoing, and paid civil penalties of more than $18 million. Falcone agreed to be barred from the securities industry for at least five years, but he was not barred from serving as an officer or director of a public company. In 2014, Falcone became chairman, president, and chief executive officer of HC2. In HC2's filings with the SEC, there was no disclosure of Falcone's settlements with the SEC. Also, in CGIC's statutory filings with state insurance regulators, there was no disclosure of Falcone's settlements with the SEC; indeed, there was no mention of Falcone's name.

The Revolt

In No. 357 (February 25, 2020) I said Falcone was facing a shareholder revolt. On January 27, 2020, several disgruntled HC2 shareholders filed with the SEC some proxy material that included a letter to shareholders announcing a plan to file a preliminary proxy statement in which the disgruntled shareholders would solicit votes for the election of their own slate of directors. Here is the final section of the letter:

Time for a Change: Management's unsuitability, consistent under performance and self-dealing patently disqualify them from continuing to manage the Company. This is why we intend to run our own slate for the Company's board at the next meeting of shareholders as a matter of first priority. Management has wasted six years destroying shareholder value. It's time for a fresh approach.

A Glaring Omission

On February 11, 2020, HC2 filed with the SEC an 8-K (significant event) report. A press release was attached to the 8-K. The 8-K and the press release announced the appointment of an additional member to the board of directors, increasing the size of the board from five to six. However, the 8-K also included these comments, which inexplicably were omitted from the press release:

The Compensation Committee of the Board ... has determined that Philip A. Falcone ... will not receive any bonus or other incentive compensation in respect of 2019, whether under the HC2 Executive Bonus Plan ... or otherwise.... Additional information regarding these matters will be provided in the 2020 Proxy Statement.

Falcone's Compensation

On May 27, 2020, HC2 filed with the SEC some proxy material that included the 2019 summary compensation table. The table shows that for 2019 Falcone received $600,000 of salary and no other compensation. The same table shows that for 2018 he received $600,000 of salary and $10,935,545 of other compensation (stock awards, option awards, and non-equity executive plan compensation), for a total of $11,535,545. The report accompanying the summary compensation table includes an extensive discussion of Falcone's compensation.

Falcone's Departure

On July 6, 2020, HC2 issued a press release. It said, among other things:

The Company additionally announced that, in light of the recent change in the Company's executive management, Philip A. Falcone will not be included on the Company's slate of director nominees for the Annual Meeting [scheduled for July 30, 2020].

General Observations

I originally wrote about Falcone because of his involvement with Kanawha's LTC insurance block. Now that he is no longer connected in any way with that block, I do not plan to write further about him.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 388: Greg Lindberg Heads to Prison

Background

No. 309 (April 17, 2019) was my first post about a federal criminal lawsuit against Greg E. Lindberg (Durham, North Carolina) and three associates. I provided updates in No. 320 (July 1, 2019), No. 338 (October 24, 2019), No. 355 (February 13, 2020), No. 361 (March 25, 2020), and No. 387 (August 13, 2020).

Lindberg is the founder and chairman of Eli Global LLC, an investment company, and the owner of Global Bankers Insurance Group, a managing company for numerous insurance and reinsurance companies. The other defendants are John D. Gray, a Lindberg consultant; John V. Palermo Jr., a vice president of Eli Global; and Robert Cannon Hayes, chairman of the state Republican party in North Carolina.

The defendants were charged with conspiracy to commit honest services wire fraud, bribery concerning programs receiving federal funds, and aiding and abetting. Hayes was also charged with making false statements. The case is in federal court in Charlotte under U.S. District Judge Max O. Cogburn Jr. (See U.S.A. v. Lindberg, U.S. District Court, Western District of North Carolina, Case No. 5:19-cr-22.)

Recent Developments

On February 18, 2020, the trial began. The defendants in the trial were Lindberg, Gray, and Palermo. Hayes had pleaded guilty before the trial. On March 5, 2020, the jury found Lindberg and Gray guilty. The jury found Palermo not guilty.

Lindberg and Gray filed motions for a new trial; the judge denied the motions. The government filed a motion for forfeiture of property as to Lindberg and Gray; the judge granted the motion. The government filed a sentencing memorandum on Hayes, and requested probation.

On August 12, the government filed a sentencing memorandum on Lindberg and Gray. For Lindberg, the government asked for a sentence of 168 months in prison, followed by three years of supervised release, and a fine of $250,000. For Gray, the government asked for a sentence of 121 months in prison, followed by three years of supervised release, and a fine of $35,000.

On August 12, Lindberg filed a response to the government's sentencing memorandum. He asked for a sentence of 12 to 24 months.

On August 13, Gray filed a response to the government's sentencing memorandum. Citing his advanced age, his health conditions, and COVID-19, he asked for a sentence of home confinement.

On August 19, sentencing developments occurred. However, as of 5:00 p.m. on August 21, the court docket contained no information about the sentencing developments. I learned about the sentencing developments through articles in The Wall Street Journal and the Charlotte Observer, both of which have been following the case closely.

On the night of August 19, Mark Maremont and Leslie Scism of the Journal reported that Lindberg was sentenced to seven years and three months in prison. They reported that a Lindberg attorney told the judge Lindberg plans to appeal, and asked the judge to allow Lindberg to remain free pending the appeal. They reported that the judge denied the request and ordered Lindberg to report to prison when directed by prison officials. The Observer reported that Hayes was sentenced to probation. I do not yet know what sentence has been imposed on Gray.

General Observations

Lindberg presumably will appeal to the U.S. Court of Appeals for the Fourth Circuit in Richmond. I have not yet heard anything about the results of the investigation the judge ordered after he learned that a Lindberg consultant had conducted a "post-trial juror interview." I plan to report further developments.

Available Material

I am offering a complimentary 73-page package consisting of the August 12 government sentencing memorandum (18 pages), the August 12 Lindberg response (36 pages), and the August 13 Gray response (19 pages). Email jmbelth@gmail.com and ask for the second August 2020 package about Lindberg.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 387: Greg Lindberg—An Update on the Federal Criminal Case Against Him and His Associates

In No. 309 (April 17, 2019), I first reported on a federal criminal lawsuit against Greg E. Lindberg and his associates for their efforts to bribe the North Carolina commissioner of insurance. I have provided four updates: No. 320 (July 1, 2019), No. 338 (October 24, 2019), No. 355 (February 13, 2020), and No. 361 (March 25, 2020). In the latter, I reported on a March 18 court order directed at Lindberg and others when one of his associates contacted a juror after the trial and verdict. Here I provide another update, on two August 4 court orders. (See U.S.A. v. Lindberg, U.S. District Court, Western District of North Carolina, Case No. 5-19-cr-22.)

Background

Lindberg is the founder and chairman of Eli Global, LLC, an investment company, and the owner of Global Bankers Insurance Group, a managing company for numerous insurance and reinsurance companies. In March 2019, a federal grand jury charged Lindberg and three others with criminal wrongdoing. The others were: John D. Gray, a Lindberg consultant; John V. Palermo Jr., a vice president of Eli Global; and Robert Cannon Hayes, chairman of the state Republican party in North Carolina. The indictment charged the defendants with conspiracy to commit honest services wire fraud, bribery concerning programs receiving federal funds, and aiding and abetting. Hayes was also charged with making false statements.

On February 18, 2020, the trial began. The defendants were Lindberg, Gray, and Palermo. Hayes had pleaded guilty and was awaiting sentencing. The trial ended after eleven trial days. On March 5, the jury found Lindberg and Gray guilty on counts 1 and 2. The jury found Palermo not guilty on counts 1 and 2. On March 13, the government filed a motion for forfeiture of property as to Lindberg and Gray.

On March 18, the judge issued an order directed at Lindberg, Gray, and others after he learned that an individual affiliated with the defendants had spoken with a juror after the trial and verdict. Information from a "post-trial juror interview" could be used by the defendants in preparing appeals. The judge referred the matter to the local U.S. Attorney for investigation, and ordered that Lindberg, Gray, their attorneys, and their consultants refrain from contacting jurors during the investigation and until further order of the court.

On April 2, Lindberg and Gray filed motions for a new trial. On May 6, the government filed, under seal, presentence investigation reports on Lindberg and Gray. On May 13, the judge held a hearing on the government's motion for forfeiture of property. On May 20, Lindberg objected to the presentence investigation report on him. On June 3, Gray objected to the presentence investigation report on him.

The First August 4 Order

On August 4, the judge issued an order granting the government's motion for forfeiture of property as to Lindberg and Gray. Here is part of the concluding section of the order (the full order is in the complimentary package offered at the end of this post):

It is, therefore, ordered that the Government's motion for Preliminary Order of Forfeiture is granted, as follows:

1. Based on the trial evidence and defendants' convictions, the United States is authorized to take and maintain possession of the following property, and that property is hereby preliminarily forfeited to the United States for disposition according to law, provided that such forfeiture is not subject to any third-party claims and interests, pending final adjudication:
   • Approximately $979,128.63 in funds seized from a Wells Fargo Bank Account ending in 0809, such account held in the name of North Carolina Growth and Prosperity Alliance, Inc.; and
   • Approximately $475,629.82 in funds seized from a Wells Fargo Bank Account ending in 0817, such account held in the name of North Carolina Growth and Prosperity Committee, Inc.
2. The Government shall publish notice of this order....
3. Upon adjudication of all third-party interests, this Court will enter a Final Order of Forfeiture. If no third party files a petition within the time provided by law, then this Order shall become final by operation of law.....

The Second August 4 Order

Also on August 4, the judge issued an order denying the motions of Lindberg and Gray for a new trial. Here is part of the concluding section of the order (the full order is in the complimentary package offered at the end of this post):

After a three-week trial and three days of deliberation, a properly instructed jury considered the relevant evidence and found the defendants guilty of conspiring to commit honest services fraud and of federal funds bribery, based on their offers to provide the Commissioner of the North Carolina Department of Insurance with millions of dollars in campaign contributions in exchange for removing and replacing his Senior Deputy Commissioner as the employee responsible for regulating the defendants' companies. Contrary to the defendants' assertions, the law and evidence supported that verdict. Thus, the Motions for Judgment of Acquittal and for New Trial are denied....

The Government's Sentencing Memorandum on Hayes

On August 10, the government filed, not under seal, its sentencing memorandum on Hayes. Here is the concluding paragraph (the full memorandum is in the complimentary package offered at the end of this post):

For the foregoing reasons, the government respectfully requests that the Court determine that the defendant's Guidelines offense level is 4 and his Criminal History Level is 1. The government further respectfully requests that, taking into consideration the sentencing factors set forth in section 3553(a), the Court sentence the defendant to probation.

General Observations

This case has a long way to go. For example, it is likely the defendants will appeal the verdict to the U.S. Court of Appeals for the Fourth Circuit. I plan to continue reporting on developments in the case.

The March 18 order suggests that the judge was concerned about the post-trial juror interview. I have not yet heard anything about the results of the investigation the judge requested.

Available Material

I am offering a complimentary 74-page package consisting of the first August 4 order (14 pages), the second August 4 order (55 pages), and the government's sentencing memorandum on Hayes (5 pages). Email jmbelth@gmail.com and ask for the August 2020 package about Lindberg.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 386: SHIP (In Rehabilitation) Sends an Important Notice to Policyholders and Others

In No. 368 (May 1, 2020), I wrote about the proposed plan of rehabilitation of Senior Health Insurance Company of Pennsylvania (SHIP). On July 10, 2020, SHIP (In Rehabilitation) sent policyholders and other interested parties a 19-page "Important Notice to Policyholders, Agents, Creditors, and Persons Interested in the Affairs of Senior Health Insurance Company of Pennsylvania (In Rehabilitation)" ("Notice"). The Notice did not appear on the SHIP website or on the website of the Pennsylvania Department of Insurance (Department). I learned of the Notice from a SHIP policyholder. I asked the Department for a copy of the Notice, and the Department sent it to me.

The Notice

The Notice includes a table of contents, a cover letter from Special Deputy Rehabilitator Patrick H. Cantillo, a "Notice of Application for Approval of Plan of Rehabilitation," "Frequently Asked Questions and Answers," and a "Summary Description of the Plan." The Notice is here.

The Liquidation Issue

Two of the frequently asked questions relate to the liquidation issue. Here are those questions and answers:

Question 11. Is there a possibility that the Company will be liquidated? Yes, liquidation is possible. The Commonwealth Court of Pennsylvania could decide at some time in the future to place SHIP into liquidation.

Question 12: What would happen if the Company was liquidated? In the event that SHIP would be ordered into liquidation, it is probable that state insurance guaranty associations would continue coverage for policyholders up to applicable statutory coverage limits. Generally, guaranty associations become responsible for an insurer's obligations only if the insurer is found by the court to be insolvent and placed in liquidation. SHIP has not been found by the court to be insolvent and has not been placed in liquidation. Therefore, no guaranty association is responsible for SHIP's policy obligations at this time. That will change if SHIP is placed in liquidation. All states other than New Jersey cap the amount of guaranty association coverage available for their residents. It is also likely, based on past experience, that the guaranty associations if triggered in a liquidation of SHIP would raise the insurance rates policyholders are required to pay and offer policy modification options in lieu of rate increases. For information about state guaranty associations, please visit www.nolhga.com.

General Observations

The above discussion of liquidation, especially the answer to Question 12, is a disservice to policyholders because it is misleading. A company is solvent when its assets exceed its liabilities. A company is insolvent when its liabilities exceed its assets. While it is true that "SHIP has not been found by the court to be insolvent and has not been placed in liquidation," the reason is that the court was not asked to make such a finding.

On January 23, 2020, as discussed in No. 368, the Department applied to the court for an order placing SHIP in rehabilitation. The application showed that SHIP has been insolvent for some time. The application said SHIP's statutory financial statement for the year ended December 31, 2018 showed that SHIP's liabilities exceeded its assets by $447 million. The application also said SHIP's liabilities exceeded its assets at the end of 2019 by $916 million.

On January 29, 2020, President Judge Mary Hannah Leavitt of the Commonwealth Court of Pennsylvania approved the application because "rehabilitation has been requested by and consented to by SHIP's board of directors and the trustees of the Senior Health Care Oversight Trust." In short, it is misleading to imply or suggest that SHIP is not insolvent.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 385: Executive Compensation in the Insurance Industry—2019 Data from 2020 NYDFS Filings

Background

The Insurance Forum, my monthly newsletter, began with the January 1974 issue and ended with the December 2013 issue. In 1975 I began publishing data on executive compensation in the insurance industry. Chapter 24 of my 2015 book, The Insurance Forum: A Memoir, describes the history of my executive compensation tabulations and the efforts of the insurance industry and insurance regulators to block my access to the data.

Most of the efforts to block access involved two organizations. One was the New York Department of Insurance, which is now the New York State Department of Financial Services (NYDFS). The other was the National Association of Insurance Commissioners. Some of those efforts were successful and some were not. However, I never encountered problems with access to data filed by shareholder-owned insurance companies with the Securities and Exchange Commission (SEC).

Since ending publication of the Forum, I have from time to time published executive compensation data through blog posts. In No. 335 (October 3, 2019), I published data for 2018 from my three major sources—SEC, NYDFS, and the Nebraska Department of Insurance (NDOI). No. 381 (July 13, 2020) showed data from the SEC for 2019. Here I show 2019 data from NYFDS. I plan to show 2019 data from NDOI later.

NYDFS Data

During the final seven years of the Forum, I showed data for individuals who received at least $1 million in the year covered. In the tabulation of SEC data in No. 381, I showed data for individuals who received at least $5 million in 2019. In the tabulation of NYDFS data for 2019, which is at the end of this post, I show data for individuals who received at least $5 million in 2019.

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

The Schedules Gs for life insurance companies show one figure for each individual. It is "the aggregate amount (any and all remuneration, including all wages, salaries, commissions, stock grants, gains from the exercise of stock options and other emoluments) received by the payee attributable to services performed for, or on behalf of, the reporting insurer, regardless of whether the payee is employed and paid by the insurer or a related or affiliated company."

Pursuant to changes made several years ago in the New York State executive compensation disclosure statute to curtail the amount of compensation data available to the public, the names of individuals are sometimes redacted, so that the Schedule Gs sometimes show only the amounts of compensation and the titles of certain individuals. In those instances, I show the individual's title and the amount of compensation.

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

Available Material

The Insurance Forum: A Memoir and back issues of the Forum containing executive compensation tabulations are available for purchase from us. The final tabulation in the Forum was in the July 2013 issue. Ordering instructions are on our website at theinsuranceforum.com.

NYDFS Data for 2019
Life Insurance Companies
4 Ever Life Ins Co
Howard F Beacham III	$21,435,850
Aetna Life Ins Co
(Acquired by CVS Health)
Shawn Guertin	13,932,726
Karen S Lynch	10,378,329
Francis S Soistman	9,715,997
Rick M Jelinek	8,901,756
Gary Loveman	8,241,026
Harold L Paz	7,721,889
EVP, Ops & Technology	7,654,564
EVP Transformtn Prod&Svcs	5,226,206
American Progressive L&H NY
Kenneth Alan Burdick	30,591,021
Andrew Lynn Asher	7,569,905
Michael Polen	5,688,238
Kelly Munson	5,681,238
AXA Equitable Life Ins Co
Mark Pearson	6,295,388
First Health Life & Health Ins Co
Richard M Jelinek	9,658,380
Karen S Lynch	8,673,924
Globe Life Ins Co of New York
Frank Martin Svoboda	9,359,904
William Michael Pressley	6,474,615
Bill E Leavell	5,400,498
Guardian Life Ins Co of America
Deanna Mulligan	8,606,700
Tracy L Rich	6,418,359
Lincoln Life Assur Co of Boston
Dennis R Glass	28,328,586
Randal J Freitag	7,747,825
Wilford H Fuller	7,332,269
Ellen G Cooper	6,073,150
Lincoln Life & Annuity Co of NY
Dennis R Glass	28,328,586
Randal J Freitag	7,747,825
Ellen G Cooper	6,073,150
Lisa M Buckingham	5,169,731
Massachusetts Mutual Life Ins Co
Roger Crandall	14,962,537
Michel Fanning	6,353,541
Metropolitan Life Ins Co
Michel Abbas Khalaf	6,505,805
President & CEO	6,505,805
EVP & Chief Inv Officer	6,338,392
National Life Ins Co
Mehran Assadi	7,788,000
New York Life Insurance Co
Theodore A Mathas	24,007,290
John T Fleurant	7,399,533
Craig L Desanto	5,452,283
Anthony R Malloy	5,246,200
Northwestern Mutual Life Ins Co
John E Schlifske	13,692,772
Penn Mutual Life Insurance Co
Eileen McDonnell	5,596,160
Principal Life Insurance Co
Karl W Nolin	7,113,249
Daniel Joseph Houston	7,000,237
Mustafa Sagun	5,232,118
Prudential Ins Co of America
Charles Lowrey	5,165,400
Teachers Ins & Annuity Assn
Roger Ferguson	6,252,325
Unimerica Life Ins Co of NY
Treasurer	5,200,218
Voya Retirement Ins & Annuity Co
Charles Patrick Nelson	5,427,369
Health Insurance Companies
Anthem Ins Cos Inc
Gail A Koziara Boudreaux	$15,140,012
Felicia Farr Norwood	7,477,529
Joseph R Swedish	5,741,268
Gloria M McCarthy	5,176,605
John E Gallina	5,145,205
Hallmark Life Insurance Co
Michael Frederic Neidorff	39,986,323
Jeffrey Alan Schwaneke	9,176,387
Jesse Nathan Hunter	8,151,558
Keith Harvey Williamson	5,372,460
Mutual of Omaha Ins Co
James T Blackledge	7,846,887
MVP Health Insurance Co
Denise Gomick	5,683,195
UnitedHealthcare Ins Co of NY
Peter Marshall Gill	5,200,218
WellCare Health Ins of NY Inc
Kenneth A Burdick	30,591,020
Andrew Lynn Asher	7,569,904
Mike Polen	5,688,239
KellyAnn Munson	5,681,239

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 384: Long-Term Care Insurance—Another Update on the Skochin Lawsuit Against Genworth

Background

On January 18, 2019, Pennsylvania residents Jerome and Susan Skochin and Maryland resident Larry Huber filed a class action lawsuit against Genworth Financial, Inc. (Genworth) and Genworth Life Insurance Company (GLIC). The plaintiffs had purchased long-term care (LTC) insurance policies in 2003 and 2004 from General Electric Capital Assurance Company, a predecessor of Genworth and GLIC.

On October 30, 2019, the plaintiffs filed a notice of settlement. On January 15, 2020, the judge held a hearing, granted preliminary approval of the settlement, directed that the class notice be mailed to class members, and set the final fairness hearing for July 10, 2020. I discussed the case in No. 334 (September 26, 2019), No. 371 (May 13, 2020), and No. 377 (June 15, 2020). (See Skochin v. Genworth, U.S. District Court, Eastern District of Virginia, Case No. 3:19-cv-49.)

The California Department's Letter

On June 12, 2020, the California Department of Insurance (Department) sent a nine-page letter to the clerk of the court and to the settlement administrator. The letter is over the signature of Leslie Tick, Assistant Chief Counsel in the Oakland office of the Department. A footnote on the first page of her letter reads:

The Department does not assert standing in this matter, and it does not maintain that this submission is a Class-Member Objection under Federal Rule of Procedure 23(c)(5).

The first paragraph of the "Summary" begins at the bottom of the first page of the letter. Here, with a citation omitted, is that paragraph (the full letter is in the complimentary package offered at the end of this post):

The Department is concerned that the Court and class members have not been provided sufficient information about the adequacy of the proposed relief. Plaintiffs reference $100 million in aggregate damages payments that class members are expected to receive pursuant to the Special Election Options, but do not attempt to assess the total value of the Special Election Options to class members. Specifically, Plaintiffs do not provide an assessment of the value of the benefits that class members must forfeit pursuant to any Special Election Option, and do not weigh the value of those forfeited benefits against the value of the reductions in premium, damages payments, or enhanced paid-up benefits that class members would receive. Ultimately, the Department is concerned that the proposed settlement may induce policyholders to forfeit policy benefits that are worth substantially more than the compensation they would receive and, conversely, that the settlement could provide Genworth with a windfall if reductions to future claim and reserve obligations greatly exceed damages paid.

After the next three paragraphs of the "Summary," the title of the next section of the letter reads: "Some of the Special Election Options may require class members to give up policy benefits that are worth much more than the compensation received." That section includes an "Analysis of Special Election Option 2" and an "Analysis of Special Election Option 3."

The next section of the letter is entitled "The proposed settlement does not include the information that would be needed to make an accurate actuarial assessment of the value of the Special Election Options." The final section of the letter, entitled "Conclusion," reads:

To its credit, the proposed settlement provides disclosures which will help class members to make informed decisions about their policies. It also appears to include cash payments that would be sufficient to return additional premiums paid by class members who would have been inclined to restructure their policy if fully informed of Genworth's intentions. And the Department is supportive of options that would allow long-term care policyholders to make informed decisions about their coverage and to adjust policy coverage levels. However, class members should not be asked to take reductions to their policy benefits that are disproportionate to the proposed cost-savings and settlement compensation.

The Initial Reply from Plaintiffs

On June 26, 2020, an attorney for the plaintiffs filed a reply in support of the motion for final approval of the settlement. He responded to various objections that had been submitted to the court by class members. Also, at the end of the reply, he included comments on the Department's letter. Those comments are entitled "The California Department of Insurance's Statement Does Not Undermine Approval of the Settlement." At the outset of that section of the reply, he showed the Department's summary paragraph quoted above. However, he did not show any of the "Conclusion" quoted above. His four-page initial reply to the Department's letter is in the complimentary package offered at the end of this post.

The Supplemental Replies from Plaintiffs

On July 6, the judge issued a one-page order requiring the plaintiffs "to file a supplemental reply responding to each class member's objection individually by 12 P.M. July 8, 2020." The requirement to submit the supplemental reply in only two days probably was because the final fairness hearing was set for July 10. The order is in the complimentary package offered at the end of this post.

On July 8, the same attorney for the plaintiffs filed two documents. The first is a three-page "Plaintiffs' supplemental reply in support of (1) motion for final approval of class action settlement and (2) class counsel's motion for an award of attorneys' fees and expenses and service awards to the named plaintiffs." Attached is a five-page appendix listing all the class members' objections and comments on each of them. The eight-page document is in the complimentary package offered at the end of this post.

The second document is a 15-page "Joint Statement Regarding Sequence of Final Approval and Regulatory Oversight." It contains several references to regulators in California and other states. The full document is in the complimentary package offered at the end of this post.

The July 10 Final Fairness Hearing

On July 10, the judge held the final fairness hearing. On that date, he issued a two-page order that the hearing will resume on July 14. He said the attorneys will receive a Zoom invitation, and explained how others who may wish to attend remotely may arrange to do so. The order is in the complimentary package offered at the end of this post.

The July 14 Final Fairness Hearing

On July 14, the judge resumed the final fairness hearing. On July 18, he issued a three-page order "finding that the application for fees is not sufficiently supported to allow the Court to make the assessment necessary to ascertain whether the requested attorneys' fees are reasonable or warranted." He issued a three-page order that continued the final fairness hearing to August 7 and directed the attorneys for the plaintiffs to file a further explanation by July 27. The order is in the complimentary package offered at the end of this post.

On July 21, the judge issued an order continuing the final fairness hearing until 10:00 a.m. on August 7. On July 23, he issued an order continuing the hearing until 9:30 a.m. on September 11.

General Observations
I had intended to wait for the judge's final approval of the settlement and his closing of the Skochin case, and then write a final update. However, the delays in the completion of the final fairness hearing prompted me to post this additional update.

When I post the final update, I do not intend to express an opinion about the fairness of the settlement from an actuarial standpoint. I am not an actuary, and I do not feel comfortable expressing such an opinion. However, I would welcome expressions of opinion by professional actuaries. The complimentary packages offered in my four blog posts on the case provide a good starting point. If you need further documents, I have easy access to all the court documents and would be happy to provide them at your request. Should you respond to this invitation, please indicate whether you prefer your opinion to be with or without attribution, and I will honor your request.

Available Material

I am offering a complimentary 42-page PDF consisting of the California Department's letter to the court (9 pages), the initial reply to the Department's letter (4 pages), the judge's July 6 order (1 page), the first supplemental reply (8 pages), the second supplemental reply (15 pages), the judge's July 10 order (2 pages), and the judge's July 18 order (3 pages). Email jmbelth@gmail.com and ask for the July 2020 package about the case of Skochin v. Genworth. 

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com

No. 383: Long-Term Care Insurance—An Alarming Development

The Request for Proposal

On July 8, 2020, the National Association of Insurance Commissioners (NAIC) issued a request for proposal (RFP) No. 2065 about "Long-Term Care (LTC) Insurance Restructuring." Here are the first two paragraphs (the ten-page RFP is in the complimentary package offered at the end of this post):

The National Association of Insurance Commissioners (NAIC) is soliciting proposals from law firms to research and report on existing state laws and regulations that could support a new regulatory framework authorizing insurers to separate policies from one another.

The chosen legal consultant will identify options for insurer restructuring or transfer of blocks of business to accomplish separation of policies from insurers' general accounts to avoid material cross-state rate subsidization and consider the potential risks to state guaranty funds, existing legal impediments, and other potential issues.

The LTC Task Force

The LTC Task Force (task force) of the NAIC is chaired by Commissioner Scott A. White of Virginia. When the task force was appointed, neither the Virginia Bureau of Insurance nor the NAIC answered my question about whether Virginia was selected because Genworth is based there. When I saw the RFP, I asked the Virginia Bureau for more details. A spokesperson referred me to the NAIC. The NAIC did not respond.

The task force has been operating partly in public and partly in secret. As I reported in No. 332 (September 12, 2019), the task force identified six "workstreams": (1) multistate rate review practices, (2) restructuring techniques, (3) reduced benefit options and consumer notices, (4) valuation of LTCI reserves, (5) non-actuarial valuations, and (6) data call design and oversight. I think the RFP discussed in this post grew out of one or both of the first two "workstreams."

Policy Transfers

I have written extensively about policy transfers from one insurance company to another in The Insurance Forum and later in this blog. My first article, of about 30 on the subject, was in the October 1989 issue of the Forum. When I circulated that article and one later article to each of the state insurance commissioners, many of them expressed keen interest. I described developments over the next quarter century in Chapter 23 of my 2015 book entitled The Insurance Forum: A Memoir. The three-page October 1989 article and the 15-page Chapter 23 are in the complimentary package offered at the end of this post.

The underlying issue is easily explained. In an insurance policy, which is a legal contract, the policyholder is the creditor and the insurance company is the debtor. A debtor cannot transfer its obligations under the contract to another party without the consent of the creditor. Such a transfer is called a "novation," which is the substitution of one debtor for another, and which cannot be accomplished without the creditor's consent.

General Observations

I am alarmed that the NAIC, through its RFP, may be thinking of taking steps that arguably would violate the constitutional rights of LTC insurance policyholders. The constitutionality issue is discussed in Chapter 23 of my Memoir. The RFP does not mention such an objective, but I fear they will try to avoid the need to obtain the consent of the policyholders. Should they try to do so, I think the NAIC and its legal consultant will face strenuous opposition.

Available Material

I am offering a complimentary 28-page PDF consisting of the RFP (10 pages), the October 1989 Forum article (3 pages), and Chapter 23 of my Memoir (15 pages). Email jmbelth@gmail.com and ask for the July 2020 package about the NAIC's RFP.

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Email: jmbelth@gmail.com

Blog: www.josephmbelth.com