Tuesday, May 27, 2014

No. 50: Credit Suisse Pleads Guilty to a Federal Criminal Charge

Credit Suisse and the U.S. Attorney for the Eastern District of Virginia (U.S. Attorney) recently reached a Plea Agreement under which Credit Suisse, a major Switzerland-based investment banking firm, pleaded guilty to a criminal charge of conspiracy to defraud the U.S. government. The same day, Credit Suisse entered into a Consent Order with the New York State Department of Financial Services (DFS). In this post I discuss the case.

The SEC Order
On February 21, 2014, the Securities and Exchange Commission (SEC) issued an order instituting administrative and cease-and-desist proceedings against Credit Suisse for violations of U.S. securities laws. The SEC censured the bank and ordered it to cease and desist from violations and future violations of securities laws. The bank disgorged $82.2 million, paid prejudgment interest of $64.4 million, and paid restitution of $50 million to the SEC. (In the Matter of Credit Suisse Group AG, SEC Release No. 71593.)

The Senate Subcommittee Report
On February 26, the Permanent Subcommittee on Investigations of the U.S. Senate Committee on Homeland Security and Governmental Affairs released a 181-page report entitled "Offshore Tax Evasion: The Effort to Collect Unpaid Taxes on Billions in Hidden Offshore Accounts." The report focused on widespread misconduct by Switzerland-based banks, and used Credit Suisse as a case study.

The Information
On May 19, the U.S. Attorney filed an Information charging Credit Suisse, including subsidiaries Credit Suisse Fides and Clariden Leu Ltd., with one criminal count of conspiracy "to willfully aid, assist in, procure, counsel, and advise the preparation and presentation of false income tax returns and other documents to the Internal Revenue Service" (IRS). The Information explained how Credit Suisse carried out the conspiracy, and described the cases of two unidentified clients--one a naturalized U.S. citizen living in Charlottesville, Virginia, and the other a U.S. citizen living in Elizabeth, New Jersey. Credit Suisse waived its right to prosecution by indictment and consented to prosecution by information. (U.S.A. v. Credit Suisse AG, U.S. District Court, Eastern District of Virginia, Case. No. 1:14-cr-188.)

The Plea Agreement
Also on May 19, the U.S. Attorney filed a Plea Agreement in which Credit Suisse agreed to plead guilty to the one criminal conspiracy count. The parties agreed on a fine of $1.137 billion and restitution of $666.5 million to the IRS. Incorporated in the Plea Agreement was a Statement of Facts. The parties agreed that, if the matter had gone to trial, the U.S. government would have proven the facts beyond a reasonable doubt. 

The New York Order 
Also on May 19, the DFS issued a Consent Order "In the Matter of Credit Suisse AG." The bank agreed to pay a civil monetary penalty of $715 million to the DFS, engage an independent monitor, and file certain reports. The bank also agreed to terminate the employment of Markus Walder, Susanne Ruegg Meier, and Marco Parenti Adami, who had remained employed by the bank on administrative leave. In addition, the bank agreed to refrain from entering into any direct or indirect business relationship with the above mentioned three persons and six others found by the DFS to have participated in the conduct discussed in the order: Roger Schaerer, Emanuel Agustino, Michele Bergantino, Andreas Bachmann, Joseph Dörig, and Beda Singenberger.

Major Media Coverage
On May 20 and the next few days, major newspapers carried articles about the Credit Suisse case. The New York Times, The Wall Street Journal, and The Washington Post carried front-page stories on May 20.

General Observations
The Credit Suisse criminal guilty plea is reminiscent of Drexel Burnham Lambert in 1989 and Arthur Andersen in 2002. For that reason, there has been speculation about the impact of a criminal guilty plea on Credit Suisse. The regulators are determined to avoid having the criminal plea become a death sentence. For example, the SEC is not terminating securities licenses, the DFS is not terminating banking licenses, and the New York Federal Reserve Bank is not terminating Credit Suisse as a primary dealer in U.S. securities. It remains to be seen whether customers will continue doing business with a bank that pleaded guilty to criminal wrongdoing.

I am offering a complimentary 46-page PDF consisting of the 4-page Information, the 17-page Plea Agreement, the 16-page Statement of Facts, and the 9-page DFS Consent Order. Send an e-mail to jmbelth@gmail.com and ask for the Credit Suisse package.


Monday, May 19, 2014

No. 49: Imperial Holdings and a Recent Note Offering

Imperial Holdings, Inc. (NYSE:IFT), based in Boca Raton, Florida, was founded in 2006. It became a major source of premium financing for stranger-originated life insurance (STOLI) policies. Recently Imperial took preliminary steps toward a rights offering to shareholders, later completed an offering of notes, and then withdrew the proposed rights offering.

In September 2011, the existence of a criminal investigation became publicly known when federal agents raided Imperial's headquarters. In February 2012, the company disclosed it was also under investigation by the Securities and Exchange Commission (SEC); that investigation remains ongoing. In April 2012, the company and the Office of the U.S. Attorney in New Hampshire (USAO) entered into a non-prosecution agreement under which the company paid an $8 million fine, terminated its life insurance premium finance business, and agreed to other terms. (See the May 2012 and July 2012 issues of The Insurance Forum.)

In February 2013, the USAO entered into plea agreements with three individuals who were associated with Imperial and charged with criminal wrongdoing. Sentencing was scheduled for March 24, 2014, but is now scheduled for December 15, 2014. (See the October 2013 issue of The Insurance Forum.)

The Proposed Rights Offering
On August 30, 2013, Imperial filed with the SEC a preliminary registration statement covering a proposal to offer subscription rights to its shareholders to purchase up to $60 million of senior unsecured notes. In the filing was a preliminary prospectus containing few details about the proposed notes and saying the purpose of the proposed notes was to "raise funds to make selective investments in the life settlement asset class, to pay the premiums on certain life insurance policies that we own and for general corporate purposes, including working capital."

The Notes Offering
On February 11, 2014, in an 8-K (material event) report filed with the SEC, and in a press release, Imperial said it had commenced a private offering of $70 million of five-year senior unsecured convertible notes to be sold to qualified institutional buyers and accredited investors. The company said:
The purpose of this offering is to raise funds to make selective investments in the life settlement asset class including by making senior secured loans collateralized by portfolios of life insurance policies that we believe have attractive underwriting and cash flow characteristics and by strategically acquiring life insurance policies in the secondary and tertiary markets. We also expect to use a portion of the proceeds to pay the premiums on certain life insurance policies that we own and for general corporate purposes, including working capital.
Imperial expressed the belief that "our loans will be used to make premium payments to bridge a period where the investors need a cost effective alternative to fund premium payments on their policies to retain potential future death benefits." The company also said "substantial demand exists in the market for us to make these types of loans," for three reasons. First, many banks and traditional lenders are reluctant to lend to owners of life settlements. Second, many owners of life settlements have struggled with redemptions and "under-funded premium reserves since the onset of the financial crisis." Third, owners of many existing portfolios want to maintain ownership of them while limiting their cash outlay, and borrowing "allows them to retain much of their investment upside while stopping their cash outlays for ongoing premiums."

Private offerings are made through confidential offering memoranda. In this case, Imperial disclosed, in an attachment to the 8-K, excerpts from the preliminary offering memorandum. Among those excerpts are 26 "risks related to our business." The discussion of each risk consists of a boldface title followed by an explanation. These 12 are among the 26 risk titles:
(4) Our success in operating our life finance business is dependent on making accurate assumptions about life expectancies and maintaining adequate cash balances to pay premiums.
(5) Contractions in the market for life insurance policies could make it more difficult for us to opportunistically sell policies that we own and may make it more difficult to borrow under the Revolving Credit Facility.
(7) The life insurance policies that we own may be subject to contest, rescission and/or non-cooperation by the issuing life insurance company, which may have a material adverse effect on our business, financial condition and results of operations.
(8) Premium financed life insurance policies are susceptible to a higher risk of fraud and misrepresentation on life insurance applications, which increases the risk of contest, rescission or non-cooperation by issuing life insurance carriers.
(9) Delays in payment and non-payment of life insurance policy proceeds can occur for many reasons and any such delays may have a material adverse effect on our business, financial condition and results of operations.
(13) The SEC Investigation could materially and adversely affect our business, our financial condition and results of operations.
(14) Negative press and reputational concerns have had and continue to have a material adverse effect on our business, financial condition and results of operations.
(16) The secondary market is highly regulated; changes in regulation, the USAO Investigation and the SEC Investigation could materially affect our ability to conduct our business.
(17) If a regulator or court decides that trusts that were formed to own life insurance policies that once served as collateral for our premium finance loans do not have an insurable interest in the life of the insured, such determination could have a material adverse effect on our business, financial condition and results of operations.
(19) If a life insurance company is able to increase the premiums due on life insurance policies that we own, it will adversely affect our returns on such life insurance policies.
(21) Uncooperative co-trustees may impair our ability to service its life insurance policies.
(22) Changes to statutory, licensing and regulatory regimes governing premium financing or life settlements could have a material adverse effect on our activities and revenues.
Details on the Notes
On February 12, 2014, in an 8-K report and a press release, Imperial provided further details on the note offering. The company said it entered into a purchase agreement with FBR Capital Markets & Co. (FBR), the notes will pay interest semiannually at an annual rate of 8.5 percent, and FBR will have a 30-day option to purchase up to an additional $14 million of notes. The company also described the terms under which note holders can convert the notes into common stock of the company, and the procedure to be followed should the company decide to redeem the notes prior to maturity.

The IRS Investigation
On February 19, 2014, in an 8-K report, Imperial said that, although the offering was scheduled to close on February 19, the offering was postponed. The company said:
The offering of the Notes has been postponed due to the Company's receipt on February 19, 2014 of a summons from the Internal Revenue Service Criminal Investigations division and the Company's determination that this information should be disclosed to investors in the Notes. The summons requires the Company to produce information about the Company and its former structured settlement business from 2010 to the present. Although the Company has confirmed that the investigation relates to the Company, it is not aware of what allegations, if any, the IRS intends to investigate. The Company believes that the investigation is in a preliminary stage and is not aware of when such investigation will be concluded. The Company is unable to predict what action, if any, might be taken in the future by the IRS as a result of the matters that are the subject of the summons or what impact, if any, the cost of responding to the summons might have on the Company's financial position, results of operations, or cash flows.
Subject to reconfirming orders from investors, the Company expects to close the offering no later than February 21, 2014.
The Closing
On February 21, 2014, in an 8-K report, Imperial said it completed the offering. FBR partially exercised its option for $743,000 of additional notes and may exercise the remainder of its option later. The company received net proceeds of about $67 million after FBR's discount, placement fees, and offering expenses. The notes were issued under an indenture dated February 21 between Imperial and U.S. Bank National Association as trustee, registrar, paying agent, and conversion agent. The company attached the indenture to the 8-K as an exhibit.

The Withdrawn Registration
On February 24, 2014, Imperial filed with the SEC a request to withdraw the August 30, 2013 preliminary registration of a proposed rights offering to its shareholders. The company said it does not intend to pursue the proposed rights offering at this time, and asked that all fees paid to the SEC in connection with the filing of the registration of the proposed rights offering "be credited for future use by the Company."

The Latest Financial Statement
On May 8, 2014, Imperial filed with the SEC the 10-Q report for the quarter ended March 31, 2014, filed an 8-K report, and issued a press release. As of March 31, the company owned 601 policies with a total face value of $2.9 billion and a total estimated fair value of $315.5 million. In estimating fair value, the company blended the results of life expectancy reports from AVS Underwriting and 21st Services.

Of the 601 policies, 558 were previously premium financed, and 19 were issued by two companies with below-investment-grade financial strength ratings. Of the $2.9 billion of face value, 20.6 percent was issued by Lincoln National Life, 20.5 percent by Transamerica Occidental Life, and 11.2 percent by AXA Equitable Life. Antony Mitchell is Imperial's chief executive officer. In the May 8 press release, he is quoted as saying: "With the recent capital raise behind us, we are focused on sourcing accretive lending and investment opportunities within the life finance space. Our current pipeline looks encouraging and we expect to deploy capital later this year."

General Observations
Prior to the raid on Imperial's Boca Raton headquarters by federal agents in September 2011, the company was known as a major premium finance lender in the creation of STOLI policies. After the company shut down its premium financing business pursuant to the non-prosecution agreement with the USAO, a question was how the company would expand its business. Now it appears the company wants to increase its activities as a secondary market intermediary through the purchase and sale of existing secondary market portfolios, and through loans against existing secondary market portfolios.

Whether Imperial will be successful in the face of what it calls "contractions" in the secondary market, and in what might be called a "game of musical chairs" in that shrinking market, remains to be seen. Also, developments in the SEC and IRS investigations bear watching.


Monday, May 12, 2014

No. 48: Florida's Pasco County School District and Its "Free" Life Insurance Plan Become Major News

In my post No. 43 published April 21, 2014, I discussed a "free" life insurance plan promoters are offering to Florida's Pasco County School District. My comments were based largely on an April 8 Tampa Bay Times article. On April 24, pursuant to Florida's public records law, I asked the district for all documents the promoters submitted about the plan. On April 30, I received more than 100 pages of documents relating to several school board meetings. On May 6, The Wall Street Journal carried an article by Leslie Scism entitled "Free Life-Insurance Offer Is Drawing Scrutiny." This follow-up posting is based largely on the documents I received.

Meeting on February 15, 2013
On February 15, 2013, Pollock Financial Group and Consolidated Insurance Group (CIG) made a presentation to the school board. The plan was entitled "TRiPeb's Trust-Owned Legacy Life Insurance Program." "TRiPeb" stands for "Trust-Owned Insurance for Post Employment Benefits." The presentation said the plan "adheres to all state insurance guidelines and regulations," and described the plan in these words:
A methodology, which is based on insurable interest between an employer and an employee or retiree, and utilizes trust-owned life insurance and premium financing to provide supplemental funding to aid local governments with their underfunded pension and health care liabilities.
The presentation included nine items. (1) "The Challenge Faced by the Nation and the District School Board of Pasco County" with data showing the financial problems of state and local governments in general and Pasco County in particular. (2) "How Have Corporations Addressed This Challenge?" showing logos of 27 large firms that use employer-owned or bank-owned life insurance. (3) "Key Features" of the plan, including (a) creation of a "funding trust" by the school board, (b) $250,000 of life insurance on each employee or retiree, (c) "premium financed" life insurance that requires no "out-of-pocket costs" for the school board or its employees, (d) borrowing by the trust to pay for the cost of insurance but with no liability for the school board or its employees, (e) half the $250,000 death benefit paid to the trust to cover financing costs, (f) $50,000 of the remaining death benefit paid to the employee's beneficiary, and (g) $75,000 paid to the school board toward underfunded liabilities and assistance with current and future benefit costs. (4) A projection, based on 5,000 covered employees, showing that the employees' beneficiaries will receive $250 million and the district will receive $375 million over the 55-year duration of the plan. (5) A chart of the plan's "Mechanics" showing the purchase of a $250,000 life insurance policy and a $125,000 annuity. (6) "The 5 Step Implementation Process." (7) "Members of the TRiPeb Team" consisting of Edward Netherland for overall strategy and firm execution, Mark G. Pollock and William Olive of Pollock Financial for sales and case management, Hutch Hutchison of CIG for firm oversight, structuring, and administration, Derek Siewert of ARX Insurance Advisors for carrier relations, William Kelly of VEBA Employee Benefits Advisors for enrollment, Wilmington Trust Company as trustee, and Thomas Weinberger of Stroock Stroock & Lavan for legal matters. (8) Descriptions of those firms and biographies of those individuals. (9) A one-page "Disclaimer."

Meeting on June 4, 2013
On June 4, 2013, Pollock Financial made a presentation with the same title used at the earlier meeting. There was a brief description of a board workshop that preceded the meeting. Guest speakers were Olive and Pollock. They presented information on the plan and described it as "an insurance product that has no cost or liability to the school board but has the potential to help fund shortfalls." The presentation at the meeting included documents similar to those presented at the earlier meeting, but there were four important differences. (1) The "TRiPeb Team" did not include Netherland. (2) There was a one-page discussion of "Insurable Interest." (3) The projection was based on $250,000 polices on each of 10,732 employees. (4) There was a four-page unsigned opinion letter dated June 3, 2013 from the Stroock firm addressed to the school board and Pollock Financial on the subject of "Life Insurance and Annuity Program." The letter described the plan and included a legal analysis of insurable interest. Here are two excerpts:
In connection with the program, the district will form a trust to acquire life insurance policies and annuities. The named insureds under the life insurance policies and the measuring lives for the related annuities would be the employees of the district. The trust will obtain financing from a third party to acquire the annuities and the income from the annuities will be used, in part, to pay the premiums due on the life insurance policies....
It is our opinion, based upon and subject to the factual descriptions, assumptions, qualifications, limitations and analysis in this opinion letter, if the question were properly presented and well argued, a court applying Florida law should find, under a proper interpretation of insurance law in Florida, that the trust has an insurable interest in the lives of the employees of the district.
The above opinion about insurable interest prompted me to look at Florida's insurable interest law (section 627.404). My impression is that promoters of exotic life insurance schemes have lobbied successfully to expand the definition of an acceptable insurable interest.

Meeting on September 17, 2013
On September 17, 2013, Pollock Financial made a presentation entitled "Legacy Trust Program: An Employee Benefits Funding Strategy." It contained documents similar to those presented at the two earlier meetings, but there were two important differences. (1) The projection was based on $350,000 life insurance policies on each of 8,962 employees. (2) The "Legacy Trust Program Team Members" did not include CIG or Wilmington Trust, but included Bermuda-based State House Trust as trustee, Alabama-based Regions Financial Corporation as trustee of another trust, and Germany-based Munich Re as a reinsurer.

Meeting on March 12, 2014
On March 12, 2014, Pollock Financial made a presentation entitled "Legacy Benefit Trust Program." It differed from the presentations at the three earlier meetings. It included "The Concept of Net Amount at Risk (NAAR)," "Three Funding Solutions," "Methodology for NAAR using third party funding," "Summary of How the Program Works," "Private Placement Variable Universal Life Insurance Overview" with a reference to coverage from "a highly rated insurance company," "Structural Overview," "Inception," "Distributions," "Illustrative Example—$100 Million Contribution" with examples of death benefit patterns, "Participants and Benefits," and a one-page "Disclosure." There was no mention of a "Team."

Meeting on April 15, 2014
On April 15, 2014, there was a board workshop followed by a board meeting. Four new items were presented. (1) A one-page memorandum to school board members from the school superintendent on the subject of "Legacy Trust Program." (2) A one-page "Statement of Intent" from Pollock Financial. (3) A one-page "Mitigation of Reputational Risk" describing what would happen if the funding of the plan should collapse or the insurance company should become insolvent. (4) A two-page sample letter to employees of the Pinellas County (Florida) Sheriff's Office; the letter said the office recently approved the TRiPeb plan, but it is my understanding that the office did not implement the plan.

The Florida Investigation
On April 21, 2014, Janice S. Davis, manager of market investigations in the Florida Office of Insurance Regulation (FLOIR), sent a two-page "official inquiry" to the district. She said the FLOIR is "seeking clarity" concerning the plan. She included a ten-point list of materials and asked the district to provide them by May 5. On May 1, the district sent the FLOIR a CD, which I have not yet reviewed.

General Observations
The documents I have seen contain many generalized comments but do not contain information of the type the school board needs to decide whether to implement the plan. For example, here are some of the matters on which the documents lack information:
  • Identity of the "highly rated" primary insurer that will issue privately placed variable universal life (PPVUL).
  • Identity of the securities licensee associated with the PPVUL. The Financial Industry Regulatory Authority's BrokerCheck lists Mark Gordon Pollock as not licensed.
  • Identity of the premium finance lenders.
  • Assumed premiums for the PPVUL.
  • Assumed mortality rates for the PPVUL.
  • Assumed interest rates for the PPVUL.
  • Assumed expense charges for the PPVUL.
  • Assumed premiums for the annuities.
  • Assumed payments from the annuities.
  • Assumed interest rates, origination fees, other costs, and loan terms for the funds borrowed from the premium finance lenders to pay the premiums.
  • Legal expenses for drafting the trust agreements and the other legal documents.
  • Sales commissions for the PPVUL.
  • Sales commissions for the annuities.
  • Trustee fees.
  • Administrative expenses, including the cost of tracking employees after they retire or otherwise end their employment by the district.
From the documents I have seen, it is impossible for the school board to know whether the plan can deliver the proposed benefits, or whether it is "too good to be true." For reasons explained in my post No. 43, I believe that the plan will collapse long before the end of its proposed 55-year duration, and that litigation over the plan is likely to occur. Therefore, I repeat the statement in my previous post: "My unsolicited advice to the district is to reject the plan."

I am offering a 14-page complimentary PDF consisting of the one-page "Disclaimer," the one-page discussion of "Insurable Interest," the four-page Stroock opinion letter, the one-page "Disclosure," the one-page memorandum to the school board from the school superintendent, the one-page "Statement of Intent" from Pollock Financial, the one-page "Mitigation of Reputational Risk," the two-page sample letter to employees of the Pinellas County Sheriff's Office, and the two-page letter to the district from the FLOIR. Send an e-mail to jmbelth@gmail.com and ask for the Pasco package.


Monday, May 5, 2014

No. 47: Legal Expenses Incurred in 2013 by Ten Life Insurance Companies

In post No. 31 published February 17, 2014, I identified the law firms to which Phoenix Life Insurance Company paid large amounts in 2012. I was interested in Phoenix because of the huge amount of litigation in which the company has been involved relating to stranger-originated life insurance. In this follow-up, I show similar data for 2013 for ten large companies including Phoenix.

Schedule J
Legal expenses incurred by life insurance companies licensed to do business in New York are disclosed in detail in Schedule J of the New York Supplement to the statutory annual statement companies file with the New York Department of Financial Services (DFS). Schedule J for many years was part of the uniform annual statement blank the National Association of Insurance Commissioners (NAIC) promulgated each year. As discussed in my post No. 38, the NAIC eliminated the schedule from the blank several years ago. What is now DFS, however, retained the schedule as part of the New York Supplement to the NAIC blank.

Legal Expenses
By way of DFS's public portal, I obtained easy access to the Schedule Js for 2013 filed March 1, 2014. For ten large life insurance companies, I show here the name of each law firm or other payee that received at least $1 million from the company in 2013. For each insurance company, I list payees in descending order of amount received, and I also show the amount of Schedule J legal expenses paid to all others combined.

AXA Equitable Life Ins Co
Milbank Tweed Hadley & McCloy
DeBevoise & Plimpton
Mayer Brown
Epstein Becker & Green
Guardian Life Ins Co of America 
Ogletree Deakins
McGuire Woods
Massachusetts Mutual Life Ins Co 
Quinn Emanuel Urquhart & Sullivan
EPIQ Discovery Solutions
Perkins Coie
Sidley Austin
Bingham McCutchen
Skadden Arps Slate Meagher & Flom
Axiom Global
Alix Partners
Metropolitan Life Ins Co 
Steptoe & Johnson
Skadden Arps Slate Meagher & Flom
CMS Cameron McKenna
Sidley Austin
Mayer Brown
Willkie Farr & Gallagher
DeBevoise & Plimpton
Sutherland Asbill & Brennan
Patton Boggs
Wachtel Lipton Rosen & Katz
Morgan Lewis & Bockius
Bradley Arant Boult Cummings
Kasowitz Benson Torres & Friedman
Barger & Wolen
Baker & McKenzie
Shutts & Bowen
Proskauer Rose
New York Life Ins Co 
Sutherland Asbill & Brennan
Morgan Lewis & Bockius
Northwestern Mutual Life Ins Co 
Bartlit Beck Herman Palenchar & Scott
Phoenix Life Ins Co 
Edison McDowell & Hetherington
Carlton Fields Jorden Burt
Day Pitney
DeBevoise & Plimpton
Principal Life Ins Co 
Sidley Austin
Analysis Group
Maynard Cooper & Gale
Morgan Lewis & Bockius
Prudential Ins Co of America 
Seyfarth Shaw
Paul Weiss Rifkind Wharton & Garrison
DeBevoise & Plimpton
Sullivan & Cronwell
Goodwin Procter
O'Melveny & Myers
D'Arcambal Ousley & Cuyler Burk NJ
Alston & Bird
Clifford Chance
Sidley Austin
Nukk-Freeman & Cerra
Wilmer Hale
Mayer Brown
Meserve Mumper & Hughes
Drinker Biddle & Reath
McCarter & English
Teachers Ins & Annuity Assn of America 
O'Melveny & Myers
DeBevoise & Plimpton

General Observations
It would be interesting to see similar information for companies that are not licensed to do business in New York. That would have been possible if the NAIC had not removed Schedule J from the uniform annual statement blank.