Friday, May 7, 2021

No. 420: The New York State Department of Financial Services Suffers a Setback on Regulation 187

Regulation 187 (Reg 187), issued by the New York State Department of Financial Services (DFS), relates to the marketing of life insurance policies and annuity contracts. On July 27, 2018, DFS issued an amended Reg 187. The Independent Insurance Agents and Brokers of New York and other entities and individuals (collectively, the petitioners) challenged the amended Reg 187 in the New York State Supreme Court (the state's trial court).

The Two Court Rulings
On July 31, 2019, the trial court judge found in favor of DFS. He ruled that the amended Reg 187 is not unconstitutional. The trial court ruling is here.

The petitioners appealed the trial court ruling in the Appellate Division (Third Department) of the New York State Supreme Court. On April 29, 2021, an appellate division judge, with the concurrence of several other judges, reversed the trial court's ruling by finding that the amended Reg 187 is unconstitutional. The appellate division ruling is here.

General Observations
The appellate division ruling is a setback for DFS. Reading the two rulings is necessary to understand the significance of the case. According to news reports, DFS is reviewing the appellate division ruling. I plan to provide updates on this case.

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Monday, May 3, 2021

No. 419: Update on Transamerica's Appeal in the Lebbin Case

No. 414 (March 23, 2021) discussed a strange twist in the appeal to the federal Eleventh Circuit Court of Appeals by Transamerica Life Insurance Company (Transamerica) of a Florida federal district court judge's decision in a lawsuit filed by the Spector-Lebbin Family Trust (Trust). The district court judge ruled that Transamerica should pay the Trust about $2.5 million, including interest, for breach of contract.

On February 23, 2021, however, in a strange twist, the Eleventh Circuit clerk wrote a letter to the parties about jurisdiction. More recent developments are discussed in this update. (See Trust v. Transamerica, U.S. Court of Appeals, Eleventh Circuit, Case No. 20-11756-AA.)

The Clerk's Follow-Up Letter
On April 21, the Eleventh Circuit clerk wrote a follow-up letter to the parties. Here is the full text:
Based upon the responses of the parties, it appears that this court has jurisdiction to consider this appeal. A final determination regarding jurisdiction will be made by the panel to whom this appeal is submitted on the merits.
A Circuit Court Judge's Order
On March 17, after the parties filed briefs in response to the clerk's February 23 letter, one of the parties filed an additional response. The other party filed a motion seeking permission to answer the additional response. On April 26, a circuit court judge issued a one-sentence order denying the motion.

General Observations
Because Florida is in the Eleventh Circuit, I said in No. 414 that I did not understand why someone in the Eleventh Circuit thought it may not have jurisdiction. I still do not understand why.

The docket does not yet identify the three circuit court judges who will be assigned to the panel that will consider the case. I think the case has been fully briefed. I also think the parties are awaiting oral argument, or a decision if the panel does not want oral argument. I plan to report further developments.

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Monday, April 26, 2021

No. 418: More on Caro's Little Book

In No. 312 (May 15, 2019), I discussed Robert A. Caro's magnificent 2019 book entitled Working and subtitled Researching, Interviewing, Writing. Recently I reread the book. As a result, I have a few suggestions.
  1. To refresh your memory about Caro, please read or reread No. 312.
  2. Please read or reread Working.
  3. Please obtain Path to Power, which is the first volume of Caro's towering biography of Lyndon Johnson. Then please read Chapter 27 entitled "The Sad Irons," which begins on page 502 of Path to Power. If you have read Working, you already know the subject of the chapter. If you have not read Working, I can tell you the subject of the chapter is a major development in American history. I promise you will be deeply impressed by the chapter, and you will understand why many prominent historians consider Caro our greatest biographer.
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Friday, April 16, 2021

No. 417: Genworth Terminates Its Agreement with China Oceanwide

On October 21, 2016, Genworth Financial, Inc. (Genworth) entered into a merger agreement with China Oceanwide (Oceanwide). Since then, the parties have entered into sixteen "waiver agreements," under each of which the parties extended the "end date" in the original merger agreement. My two most recent updates on the situation are in No. 395 (October 26, 2020) and No. 406 (January 8, 2021).

The 8-K Report and News Release
On April 6, 2021, Genworth filed with the Securities and Exchange Commission an 8-K (significant event) report. Attached to the 8-K is a news release entitled "Genworth Announces Termination of Merger Agreement with Oceanwide." Here is the first paragraph of the news release (the full news release is here):
Genworth Financial, Inc. (NYSE: GNW) (Genworth, the Company) today announced that it has exercised its right to terminate the merger agreement with China Oceanwide Holdings Group Co., Ltd. (Oceanwide) as of April 6, 2021. Terminating the agreement allows Genworth to pursue its revised strategic plan without restrictions and without uncertainty regarding its ultimate ownership, which might impact the Company's ability to successfully execute the plan.
General Observations
During the more than four years since the merger agreement between Genworth and Oceanwide was originally signed, many federal and state regulators in the United States, as well as regulators in Canada and China, have poured a tremendous amount of effort into trying to approve the agreement.

From the beginning, I have been deeply concerned about the potential impact of the agreement on Genworth's policyholders, especially its long-term care insurance policyholders. For that reason, I am relieved that the agreement has been terminated.

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Monday, April 12, 2021

No. 416: An Interesting Beneficiary Dispute

On January 22, 2021, a three-judge panel of a state appellate court in Georgia unanimously upheld a trial court ruling in an interesting beneficiary dispute between the widow and a granddaughter of the insured. For ease of reference, here are the key parties:
Donald: Donald Usher, insured, grandfather of Emery
Emery: Sarah Emery, granddaughter of Donald
Gayle: Gayle Usher, widow of Donald
GTL: Guarantee Trust Life Insurance Company, insurer
I have the trial court ruling, the appellate court panel ruling, and some documents from the trial court proceedings. Here I describe the case based on those rulings and documents. The two rulings are in the complimentary package offered at the end of this post. (See Emery v. GTL, State Court of Gwinnett County, Georgia, Case No. 18-C-04523-S6, and Georgia Court of Appeals, Third Division, Case No. A20A2082.)

Background of the Case
On October 15, 2010, GTL issued a $25,000 policy on the life of Donald. Gayle was the beneficiary. On September 11, 2015, Donald made Emery the owner and beneficiary. I found no explanation of the reason why Donald made the change.

In August 2016, about a month before Donald died, Gayle called GTL and inquired about the policy. GTL initially informed Gayle that it could not discuss the policy with her without the permission of the owner.

On August 15, 2016, despite not having sought Emery's permission to discuss the policy with Gayle, GTL faxed a policy change form to Gayle. On August 18, 2016, Gayle returned the policy change form to GTL. When GTL received the form from Gayle, it was missing a page requiring the signatures of Gayle and Emery. GTL notified Gayle and Emery that it could not process the form because it did not contain the signatures.

Emery did not respond to GTL at that time. Gayle responded that she had retained a copy of the signature page, and faxed it to GTL. The fax showed the purported signatures of Gayle and Emery.

On August 31, 2016, GTL updated its records to reflect that Gayle was the owner and beneficiary. On September 9, 2016, Donald died. On October 15, 2016, GTL paid the death benefit to Gayle. A year later, on October 3, 2017, Emery's attorney wrote to GTL and enclosed an affidavit from Emery confirming her status as owner and beneficiary of the policy.

Emery's Lawsuit
On June 18, 2018, Emery filed a lawsuit against GTL alleging bad faith failure to perform under an insurance contract, breach of contract, and negligence. After a hearing, the trial court granted GTL's motion for summary judgment. The trial court reasoned that, because GTL had paid the beneficiary named in its file, the company had complied with applicable law and was therefore insulated from liability.

Emery's Appeal
On appeal, Emery argued that the trial court erred in finding that GTL paid the death benefit to Gayle in accordance with the terms of the policy as contemplated by §33-24-41 of the Georgia Code. The appellate court panel disagreed with Emery. The panel said the statute in question does not impose on an insurance company the duty to investigate and determine whether a person fraudulently completed and submitted a policy change form.

General Observations
As indicated at the beginning of this post, I think this is an interesting case. Because I am not an attorney, it would be inappropriate for me to express a legal opinion on the case. Having said that, it is my personal belief that Gayle stole the death benefit from Emery.

Available Material
I am offering a complimentary 10-page PDF consisting of the trial court ruling (3 pages) and the appellate court panel ruling (7 pages). Email jmbelth@gmail.com and ask for the April 2021 package about the case of Emery v. GTL.

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Monday, April 5, 2021

No. 415: Georgia's New Election Law Faces Strong Legal Challenges

The Republican-controlled legislature in Georgia recently passed, and the Republican governor immediately signed, a new election law (Georgia Senate Bill 202). It is called an "election security law" by its proponents, and a "voter suppression law" by its opponents. The 98-page law faces several strong court challenges.

Here I discuss one such court challenge, a 35-page complaint in a Georgia federal court. The law and the complaint are in the complimentary package offered at the end of this post. (See The New Georgia Project et al. v. Raffensperger et al., U.S. District Court, Northern District of Georgia, Atlanta Division.)

The New Law
Two sentences on page 4 of the new law make clear it was prompted by "The Big Lie" perpetrated by former President Donald J. Trump about the results of the 2020 general election. Here are those sentences:
  • Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter fraud.
  • Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election.
The Complaint
The plaintiffs are The New Georgia Project and two other entities. The defendants are Georgia Secretary of State Brad Raffensperger and four other Georgia election officials. The plaintiffs allege that the new law violates the First and Fourteenth Amendments to the U.S. Constitution and Section 2 of the U.S. Voting Rights Act. The plaintiffs seek a declaration of such violations and an injunction prohibiting the defendants from enforcing the challenged provisions.

The "Nature of the Case" section of the complaint consists of seven paragraphs. Here is the second paragraph of that section:
2. After the high-turnout general election [in 2020] officials conducted multiple recounts and audits. Supporters of former President Donald J. Trump filed several lawsuits seeking to overturn the general election's results, falsely alleging widespread fraud and misconduct on the part of election officials. No court in any of these lawsuits found support for these litigants' fanciful claims. After the senatorial runoff elections, Secretary [of State] Raffensperger declared in a nationally-televised interview that Georgia "had safe, secure, honest elections."
The complaint challenges many of the provisions of the new law. Here are some of those provisions:
  • Despite nationwide scrutiny of Georgia's elections, which confirmed the absence of any fraud, insecurity, or wrongdoing, Republican members of the General Assembly passed legislation clearly intended to make it harder for lawful Georgia voters to participate in the state's elections.
  • It will impose unjustifiable burdens disproportionately on the state's minority, young, poor, and disabled citizens.
  • It will impose unnecessary and burdensome new identification requirements for absentee voting.
  • It will unduly restrict the use of absentee drop boxes and bank mobile polling places.
  • It will prohibit the state from distributing unsolicited absentee ballot applications.
  • It will prohibit third parties—including voter engagement organizations—from collecting absentee ballot applications.
  • It will burden voters with the risk of disenfranchisement due to meritless challenges that require an immediate defense of their qualifications.
  • It will invalidate ballots cast by local voters before 5:00 p.m. in a precinct other than the one to which the voters were assigned, regardless of the reason or their inability to travel to another location.
  • It will compress the time period for voting in a runoff election.
  • It will ban any non-poll worker from giving food or drink, including water, to voters waiting in line.
General Observations
The new law is a brazen attack on the voting rights of Georgians. The law was signed by the governor in a secret signing session attended by a few Republicans immediately after he received the bill. The secrecy of the signing session became a media sensation when State Representative Park Cannon of Atlanta, a Black woman and member of the Democratic minority in the legislature, knocked quietly on the governor's office door in an effort to witness the signing of the bill. She was arrested by state troopers and dragged kicking and screaming to jail.

The new law is an outright takeover of Georgia's election system by the legislature. It is clear that, if the election result in any county or precinct is disliked by the Republicans, they can take steps to alter the result to their liking.

It is my hope that the federal judge will grant the declaratory relief and the injunctive relief that the plaintiffs seek. I plan to report further developments.

Available Material
I am offering a complimentary 133-page PDF consisting of the new Georgia election law (98 pages) and the complaint filed in federal court against the law (35 pages). Send an email to jmbelth@gmail.com and ask for the April 2021 package about the new election law in Georgia.

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Tuesday, March 23, 2021

No. 414: A Strange Twist in Tranamerica's Appeal in the Lebbin Case

Background
In No. 372 (May 18, 2020), I posted an update on the Spector-Lebbin Family Trust (Trust) lawsuit against Transamerica Life Insurance Company (Transamerica). I mentioned several aspects of the case. I said it began in federal court in Maryland, and was transferred at Transamerica's request to federal court in Florida, where the policies were originally sold and where several potential witnesses were located. I also said the judge in Florida ruled Transamerica should pay the Trust about $2.5 million, including interest, for breach of contract. I also said Transamerica appealed to the federal Eleventh Circuit.

In No. 397 (November 9, 2020), I posted another update. I said Transamerica and the Trust filed their initial appellate briefs on August 31, 2020 and October 30, 2020, respectively. I also said there was not yet a timetable for the appellate case.

A Strange Twist
The Eleventh Circuit covers Alabama, Florida, and Georgia. Thus it was natural for Transamerica to file its appeal in the Eleventh Circuit. On February 23, 2021, in a strange twist, the clerk of the Eleventh Circuit wrote a letter to the parties raising a jurisdictional issue. Here is the opening paragraph of the clerk's letter (the full letter is in the complimentary package offered at the end of this post):
After review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over this appeal. If it is determined that this court is without jurisdiction, this appeal will be dismissed.
The clerk asked the parties to advise the court simultaneously within 14 days of their positions regarding the jurisdictional issue. He said they could file their responses electronically, and did not need to file paper copies. Both parties filed their responses on March 9. On March 17, the Trust filed a "motion for leave to file sur-reply." The next day, Transamerica filed an opposition to the motion. The two responses, the motion, and the opposition to the motion are in the complimentary package offered at the end of this post. At this writing, there is nothing further on the Eleventh Circuit docket.

General Observations
In their responses to the jurisdictional issue, the parties explained why they think the Eleventh Circuit has jurisdiction. I do not understand why the Eleventh Circuit thinks it may not have jurisdiction. I will report further developments.

Available Material
I am offering a complimentary 55-page PDF consisting of the Eleventh Circuit clerk's letter (2 pages), the Trust's response to the clerk's letter (21 pages), Transamerica's response to the clerk's letter (12 pages), the Trust's motion (10 pages), and Transamerica's opposition to the motion (10 pages). Email jmbelth@gmail.com and ask for the March 2021 package about the Lebbin case.

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