Monday, July 30, 2018

No. 279: MetLife's Lost Pensioners—Two New Developments

On December 15, 2017, MetLife, Inc. filed an 8-K (significant event) report with the Securities and Exchange Commission (SEC) concerning what may be referred to as "lost pensioners." At that time the company said that "we are improving the process used to locate a small subset of our total group population of approximately 600,000 that have moved jobs, relocated, or otherwise can no longer be reached via the information provided for them." The company also said:
We are deeply disappointed that we fell short of our own high standards. Our customers deserve better. We are committed to making this right. We found the issue, we self-reported it, and we are committed to doing better. We are fully cooperating with regulators.
My first blog post about MetLife's lost pensioners was No. 246 (January 2, 2018). I wrote further on the subject in No. 252 (February 12, 2018), No. 254 (February 19, 2018), No. 256 (March 6, 2018), and No. 259 (March 27, 2018). Here I discuss two new developments—a class action lawsuit and an administrative complaint.

The Class Action Lawsuit
On June 18, 2018, Edward Roycroft filed a class action lawsuit against MetLife, Inc., Metropolitan Life Insurance Company, and Brighthouse Financial, Inc. The case relates to lost pensioners in employer pension plans that MetLife has taken over in its so-called pension transfer business. Here is the opening paragraph of the complaint:
Plaintiff Edward Roycroft ("Plaintiff"), individually and on behalf of all those similarly situated, files this Class Action Complaint against MetLife, Inc., Metropolitan Life Insurance Company, Brighthouse Financial, Inc. (collectively, "MetLife" or the "Company") for conversion and unjust enrichment relating to the Company's taking of retirement annuity benefits from retirees. Plaintiff also seeks an accounting from MetLife for the amounts taken, interest, and disgorgement of unlawful profits. Plaintiff makes the following allegations based upon personal knowledge as to himself and his own acts, based on the investigation conducted by his attorneys, and upon information and belief.
Major sections of the complaint are "Accounting of Unpaid Annuity Benefits and Court Supervised Notice," "Factual Allegations," "Tolling of the Statute of Limitations," and "Class Allegations." The "Claims for Relief" are conversion, unjust enrichment, accounting, and constructive trust. The plaintiff seeks, among other things, class certification, declaratory and injunctive relief, compensatory and punitive damages, pre-judgment and post-judgment interest, attorney fees, and costs.

The case was assigned to Senior U.S. District Court Judge Alvin K. Hellerstein. President Clinton nominated him in May 1998, and the Senate confirmed him in October 1998. He took senior status in January 2011. Magistrate Judge Barbara C. Moses was also assigned to the case. (See Roycroft v. MetLife, U.S. District Court, Southern District of New York, Case No. 1:18-cv-5481.)

The Administrative Complaint
On June 25, 2018, the Enforcement Section of the Massachusetts Securities Division filed an administrative complaint against MetLife accusing the company of violating the Massachusetts securities law. The alleged violations relate to lost pensioners in employer pension plans that the company has taken over. The preliminary statement in the complaint consists of these two paragraphs:
The Enforcement Section of the Massachusetts Securities Division of the Office of the Secretary of the Commonwealth files this Administrative Complaint in order to commence an adjudicatory proceeding against Respondent MetLife, Inc. for violations of Mass. Gen. Laws ch. 110A, the Massachusetts Uniform Securities Act, and the regulations promulgated thereunder at 950 Mass. Code Regs. 10.00-14.413. The Enforcement Section alleges that MetLife made materially misleading statements in its public filings. By doing so, Respondent MetLife engaged in acts and practices in violation of Section 101 of the Act.
Specifically, the Enforcement Section seeks an order: (1) finding as fact the allegations set forth below; (2) finding that all the sanctions and remedies detailed herein are in the public interest and necessary for the protection of Massachusetts investors; (3) requiring Respondent to permanently cease and desist from further conduct in violation of the Act; (4) censuring Respondent; (5) requiring Respondent to provide a quantitative and qualitative accounting of its group annuity contract reserves; (6) requiring Respondent to locate all Massachusetts residents eligible for benefits pursuant to group annuity contracts administered by Respondent, notify such residents of the benefits they are owed, and immediately effect all retroactive and continuing payments, plus interest, to those Massachusetts residents; (7) imposing an administrative fine on Respondent in such amount and upon such terms and conditions as the Director or Presiding Officer may determine; and (8) taking any such further action which may be necessary or appropriate in the public interest for the protection of Massachusetts investors.
The administrative complaint has a five-page summary. It discusses, among other things, MetLife's public filings, its admission that it used inadequate search methods in attempting to find pensioners, its release of reserves for benefits payable to lost pensioners, and the launching of the Massachusetts investigation. The relevant time period is from January 1, 1992 to the present. Among the respondents are MetLife subsidiaries and affiliates, including Metropolitan Life Insurance Company.

The "Statement of Facts" in the administrative complaint includes discussions of the manner in which MetLife assumed responsibility for paying retirees of many major employers. An appendix to the complaint lists 100 such employers, a few of which are American Express, Arthur Andersen LLP, Fannie Mae, General Dynamics, General Motors, Liberty Mutual Insurance Company, Marsh & McLennan, Merrill Lynch, United Airlines, and Wells Fargo & Company.

The administrative complaint alleges that MetLife was negligent in failing to pay retirees, used retirement reserves for its own benefit, made materially misleading statements to investors, and the misleading statements caused harm to investors. The complaint alleges one count of violating the Massachusetts securities law.

The administrative complaint seeks an order requiring, among other things, that MetLife cease and desist from further such violations, provide a qualitative and quantitative accounting of its group annuity contract reserves, locate all Massachusetts residents eligible for benefits, notify those residents of the benefits they are owed, and make such payments, including interest, to those residents. The complaint seeks to have MetLife censured and be required to pay an administrative fine. (See In the Matter of MetLife, Inc., Commonwealth of Massachusetts, Office of the Secretary of the Commonwealth, Securities Division, Docket No. E-2017-0119.)

Historical Background
The story of lost pensioners and lost life insurance policyholders dates back more than half a century, to the widespread sale of "industrial life insurance," later called "home service life insurance." Such insurance involved small policies on which premiums were collected weekly or monthly at the homes of policyholders by "debit" agents. John Hancock, Metropolitan Life, and Prudential Insurance became huge mutual companies to a substantial extent because of their sale of large numbers of industrial life insurance policies.

Several decades ago the companies ended their focus on that type of insurance. Also, they found it increasingly expensive to collect the small premiums on such policies. To solve the problem, the companies stopped collecting premiums and designated the policies "paid-up," thus requiring no further premiums. However, with no premiums coming in, the companies lost contact with many policyholders.

In the 1990s the three companies decided to convert themselves into shareholder-owned companies through "demutualization." State laws allowing demutualization require a company to obtain the permission of its policyholders, and to buy out the policyholders with cash and/or stock in the new company. The companies sent letters to policyholders asking for their permission to demutualize, and enclosed a lengthy policyholder information statement describing the plan in great detail.  The postal service returned millions of the packages to the companies because the addresses were outdated and the packages could not be delivered.

Prominent news stories, especially in the Boston home of John Hancock, focused on the problem. Ironically the state agency that decided to look into the problem was not the insurance commissioner's office, but rather was the unclaimed property office, which operates under the Massachusetts Secretary of the Commonwealth. The reason was that insurance companies are required by law to turn over unclaimed insurance funds to the state's unclaimed property office. Very little of the unclaimed property ever reaches the owners of the property, and unclaimed funds are therefore a major source of state revenue. For example, New York State Comptroller Thomas P. Napoli recently said:
Statewide, there are more than 39 million unclaimed funds accounts valued at $15.5 billion.  In 2017 the Office of Unclaimed Funds returned a record $460 million in lost money and we want to do the same this year.
Eventually state insurance regulators began to take an interest in the problem. However, it was state unclaimed property officials who tackled the problem initially.

General Observations
MetLife did not file an 8-K (material event) report with the SEC disclosing either the class action lawsuit or the administrative complaint. It remains to be seen whether MetLife will disclose these matters in its 10-Q report filed with the SEC for the second quarter of 2018, which is expected to be filed early in August. The lawsuit and the administrative complaint are in their early stages and have a long way to go.

Available Material
I am offering a complimentary 51-page PDF consisting of the complaint in the Roycroft lawsuit (29 pages) and the administrative complaint including the appendix (22 pages). Email and ask for the July 2018 package about MetLife's lost pensioners.


Monday, July 23, 2018

No. 278: Jon Meacham's New Book—A Priceless Gem

Jon Meacham is an American historian whose previous books include treatises about Thomas Jefferson, Andrew Jackson, George Herbert Walker Bush, and the "epic friendship" of Franklin Roosevelt and Winston Churchill. His latest book, which became my July 4th reading at the suggestion of a friend, is entitled The Soul of America: The Battle for Our Better Angels. Although I have not read his earlier books, I have seen him interviewed on television. His new book is a priceless gem.

Structure of the Book
The book is about 400 pages long, but the text is only about 250 pages with fascinating photographs sprinkled through it. The remainder of the book consists of notes, a bibliography, illustration credits, and an index. The titles and subtitles of the book's introduction, seven chapters, and conclusion provide a summary:
Introduction: To Hope Rather than to Fear
1. The Confidence of the Whole People: Visions of the Presidency, the Ideas of Progress and Prosperity, and "We, the People"
2. The Long Shadow of Appomattox: The Lost Cause, the Ku Klux Klan, and Reconstruction
3. With Soul of Flame and Temper of Steel: "The Melting Pot," TR and His "Bully Pulpit," and the Progressive Promise
4. A New and Good Thing in the World: The Triumph of Women's Suffrage, the Red Scare, and a New Klan
5. The Crisis of the Old Order: The Great Depression, Huey Long, the New Deal, and America First
6. Have You No Sense of Decency?: "Making Everyone Middle Class," the GI Bill, McCarthyism, and Modern Media
7. What the Hell Is the Presidency For?: "Segregation Forever," King's Crusade, and LBJ in the Crucible
Conclusion: The First Duty of an American Citizen
General Observations
Meacham's conclusion about "the first duty of an American citizen" is the need to "enter the arena" and "work in politics." He goes on to mention other duties of citizens: resist tribalism, respect facts, deploy reason, find a critical balance, and—as historians say—keep history in mind.

The entire book is superb, but I was most fascinated by Meacham's discussions of these subjects: the battle for women's suffrage; the struggles with the Ku Klux Klan and the new Klan; President Franklin Roosevelt's victories in our greatest depression and our greatest war, his mistake relating to the treatment of Japanese Americans after the attack on Pearl Harbor, and his failure to rescue more Jews from the Holocaust; President Harry Truman's efforts on civil rights despite his racist background; the rise and fall of Senator Joseph McCarthy; the contributions of Rev. Martin Luther King, Jr.; and President Lyndon Johnson's battles, despite his Southern roots, to persuade Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

I came away from reading the book with an overpowering wish that President Donald Trump would read it. I have heard it said he does not read books, but perhaps that assertion is "fake news." I choose to hope that, even though we have strong evidence to the contrary, the book would have a profound influence on him.


Tuesday, July 17, 2018

No. 277: The Age 100 Problem—Results of a Survey

My most recent discussion of "the age 100 problem" was in No. 269 (June 6, 2018). There I provided an update on a lawsuit filed in July 2017 by Gary Lebbin, who became 100 years old in September 2017, against Transamerica Life Insurance Company. In that post I said I was planning a survey of life insurance companies about the age 100 problem. Here I describe the survey and the results.

The Survey
I sent the survey on June 8 by regular mail to the chief executive officers of 22 life insurance companies. The mailing consisted of a cover letter and an enclosure. The cover letter contained three assumptions and four questions. The enclosure was a reproduction of No. 269, which included links to three earlier posts on the subject. No. 269 and the earlier posts offered complimentary packages of information on the subject. The response date was June 29. Here are the assumptions and the questions:
Assumption 1. Mr. Jones purchased a $100,000 traditional dividend-paying whole life policy from your company in 1975 at age 50; the policy was not rated.
Assumption 2. He has paid annual premiums every year and has taken all dividends in cash.
Assumption 3. He has written to you in 2018 (at age 93) seeking your assistance with a potential income tax problem should he survive to the policy's terminal age of 100.
Question 1. Will you pay the death benefit to him at age 100? If so, please indicate the amount of taxable income you will report on the 1099. If you will not pay him the death benefit at age 100, please explain why you will not do so.
Question 2. What would you offer him as a way to avoid the income tax problem?
Question 3. If you offer him the option of postponing the payment of the death benefit beyond age 100, what would you say to him—in addition to advising him to consult his tax advisor—about the possibility of his being deemed in constructive receipt of the death benefit at age 100?
Question 4: No. 269 mentions the idea of a 1035 exchange into a more recent policy based on a mortality table with a terminal age of 121. What do you think of the idea?
The Responders
Nine companies acknowledged the survey in at least some fashion. However, some of them provided little or no information. Here are the responses, which I edited.

American United
An official requested the packages offered in the four blog posts. I sent the packages but received nothing further.

Gleaner Life
On question 1, President and Chief Executive Officer Kevin Marti said the society would send Jones a letter six months before the terminal date offering him the option of accepting an extended maturity endorsement (EME). On question 2, he said the EME reclassifies the surrender value as the new death benefit, and the cash value continues to earn interest until paid as an income-tax-free death benefit. He said he was not able to easily obtain the information to estimate the taxable gain, if any, in the sample scenario. He said he was fairly certain their dividend history would not be what an industry leader like Northwestern Mutual would have achieved. On question 3, he showed the full text of the letter offering the EME. On question 4, he said it may work in theory, but he expressed concerns. The society does not issue coverage at ages above 85, and he thought it might not be equitable to increase the net amount at risk at an advanced age without underwriting.

Guardian Life
President and Chief Executive Officer Deanna Mulligan said the company believes the intent of such policies is clear—protection for life. The company feels strongly that the right course is to keep that promise and allow the policy to remain in force and function as normal until death. A few months prior to the terminal date, the company informs the policyholder of the option to keep the policy in force. The company would pay dividends as usual, and the policy would perform as usual. If the policyholder chooses to surrender the policy for its cash value, the policyholder may do so at any time. There are many scenarios with tax and other financial implications, and given the complexity the company does not believe there is a one-size-fits-all answer. The company advises policyholders of the financial implications of their decisions, and encourages them to seek advice from their tax advisors as appropriate. One certainty is that it is our responsibility to keep the promise we made, adhere to the policy's intent, and provide protection for life that our policyholders expect and deserve. She thanked me for reaching out, and for bringing this important issue to light.

Massachusetts Mutual
An official said whole life policies issued by the company in 1975 do not have a maturity date. Once a policy is in paid-up status, the policy will continue in force and dividends will continue to be paid on the policy until either the insured dies and a death benefit is paid or the policyholder surrenders the policy.

Metropolitan Life
An official said the company spun off its retail business last year, it no longer sells individual life insurance, and the survey should be directed to companies still selling such insurance. I asked whether the company is still administering the business, and if not, for contact information at the company administering the business. I received no further response.

New York Life
On question 1, an official said no. The death benefit is payable to the named beneficiary at the time of the insured's death. What is available to the policyholder at the terminal age is the net cash value, which is the face value, plus any accrued dividend value, less any outstanding policy loans with interest. Based on the assumptions, when the policy reaches the terminal age of 100, the net cash value will be equal to the death benefit. At that time, if the policyholder chooses to surrender the policy and take a lump-sum cash distribution, the taxable income is the amount of the distribution that exceeds the policyholder's net premium cost. If the policyholder chooses instead to defer maturity and continue paid-up insurance coverage with no further premiums, there is no distribution until the insured's death and no gain is reported. On question 2, the official said the policyholder's decision whether to receive a cash distribution directly determines the amount of taxable gain realized from the transaction. If the policyholder chooses to defer the cash distribution until death, there is no gain to report. On question 3, the official referred to the response to question 2. On question 4, the official said the company chooses not to speculate or comment on the matter.

Northwestern Mutual
An official said the company does not automatically pay out the death benefit when the insured reaches the terminal age, although the company recognizes that other companies may handle the situation differently. The official said the Internal Revenue Service provided a safe harbor for policies to continue to qualify as life insurance after the insured attains age 100. The company urges policyholders to seek counsel from their tax advisors for any tax-related questions.

Prudential Insurance
An official said the company determined that my mailing was an unsolicited business submission from an outside party, and the company has a longstanding policy not to entertain such submissions. The official returned the mailing to me.

Sun Life Financial
An official expressed familiarity with my writings and appreciation for my dedication in providing information and perspectives on life insurance. The official said the company welcomes inquiries from policyholders and their representatives, but prefers not to answer hypothetical questions because of the many different kinds of life insurance policies. The official said any general answer could potentially misinform policyholders. For example, as a general matter, the company's participating whole life policies mature upon the death of the insured, not age 100, so coverage continues until the insured's death. The official said the company would have to review each policyholder's specific policy language to determine an actual response. Similarly, the company cannot say whether an adjustment to the terms of a policy is necessary or advisable. On question 4, the official said the company views this as a viable option well aligned with the regulatory intent of Section 1035, which allows deferral of taxation upon an exchange of one policy for a new policy that better suits a policyholder's needs.

The Nonresponders
Thirteen companies did not acknowledge receipt of the survey. Those companies are AXA Equitable, Great-West Life, Lincoln National, Manulife Financial, Minnesota Life, National Life (VT), Nationwide Life, Pacific Life, Penn Mutual, Phoenix Life, Principal Life, TIAA, and Western & Southern.

General Observations
I am disappointed that none of the companies assembled data for the Jones policy. I am also disappointed by the number of nonresponders. On the brighter side, I did better than on my survey 17 years ago, when I wrote to 20 companies and received responses from only three of them. It should come as no surprise to anyone who knows me that I am not deterred. I still think the age 100 problem is serious for life insurance consumers and the life insurance business. I plan to continue my efforts.

Available Material
I am offering a complimentary 11-page PDF containing a sample cover letter, the enclosure, and the addresses of the chief executive officers to whom I sent the survey. Email and ask for the July 2018 package about the age 100 survey.


Tuesday, July 10, 2018

No. 276: The New York Department's Attack on Reinsurance Arrangements at William Penn Life of New York

On May 3, 2018, the New York State Department of Financial Services (DFS) issued a press release announcing a consent order directed at William Penn Life Insurance Company of New York (WPNY) for improper reinsurance arrangements. DFS imposed a fine of $6.3 million against WPNY. The consent order was signed by WPNY President and Chief Executive Officer Bernard Leigh Hickman, DFS Executive Deputy Superintendent for Insurance Scott Fischer, and DFS Superintendent of Financial Services Maria T. Vullo.

The Consent Order
The opening sentence of the consent order says DFS conducted a targeted examination of WPNY's reinsurance operations and related financial reporting. The consent order refers to reinsurance arrangements with Legal & General Assurance Society (LGAS), a WPNY affiliate. The consent order says DFS found that some of those arrangements had not been approved by DFS and were in violation of New York law. The consent order also says WPNY made materially inaccurate statements to DFS in response to requests for information about the reinsurance arrangements. Here is one of the findings in the consent order:
[WPNY] on March 31, 2017, filed with [DFS] its Annual Statement as of December 31, 2016, which included an Exhibit of Captive and Offshore Affiliated Reinsurance Transactions which inaccurately certified that [WPNY] was not ceding reinsurance to LGAS, an affiliated entity.
My Public Records Request
I immediately submitted to DFS a public records request for the report of the targeted examination. On June 19, after almost seven weeks, DFS denied my request. Here is the DFS explanation:
[WPNY] desired to settle the issues cited in the May 3rd consent order prior to the rest of the examination being completed. At this time, the examination is still ongoing and no report has been generated. Accordingly, because no report currently exists, the Department has no record responsive to your request.
I think the response means there will never be a report of the targeted examination, and there will not be any details of the targeted examination until the public release of the ongoing regular financial examination of WPNY. I think the public release date of the next regular financial examination of WPNY is June 30, 2019.

The Statutory Annual Statements
I obtained WPNY's statutory annual statements for the years ended December 31, 2016 (the 2016 statement) and December 31, 2017 (the 2017 statement). The 2017 statement was executed on February 16, 2018. I reviewed the "Notes to Financial Statements" in the 2016 and 2017 statements. I found no mention of the reinsurance arrangements that are at the heart of the consent order. I also reviewed the reinsurance exhibits in the 2016 and 2017 statements. Although there are indications of reinsurance ceded to LGAS, I found no information relating to the findings in the consent order.

The Amended 2017 Statement
Shortly after reviewing the 2017 statement, I learned that WPNY filed an amended 2017 statement. The amended 2017 statement was executed on May 24, 2018. It includes two changes relevant to the reinsurance arrangements that are at the heart of the consent order.

First, a two-paragraph statement appears at the top of a separate page that precedes the jurat page (normally the first page) of the 2017 statement. Here are the two paragraphs, which were not in the original 2017 statement:
The New York State Department of Financial Services has undertaken a targeted examination of William Penn Life Insurance Company ("WPNY") and identified violations by the company in failing to obtain approval for certain affiliate reinsurance agreements from 2014-2018 from the Department. WPNY, its ultimate shareholder (Legal & General Group Plc) and the Department have engaged in discussions on these matters, and as a result WPNY has executed a Consent Order to resolve these issues in which it agreed, among other things, to pay a civil penalty in the amount of $6,300,450.
Since the conditions were present during 2017 that resulted in the execution of the Consent Order and remittance of the civil penalty, the most appropriate accounting treatment was to amend the 2017 Blue book to include an accrual of the penalty within the 2017 financial statements.
Second, a few relevant comments appear in the "Notes to Financial Statements" on page 19.9 of the amended 2017 statement, under paragraph 22 entitled "Events Subsequent." Here are the comments, which were not in the original 2017 statement:
The Company has performed an evaluation of subsequent events through May 24, 2018, which is the date that these financial statements were available to be issued. The following Type 1 recognized subsequent event was identified:
The Company accrued and subsequently remitted a $6,300,450 civil penalty related to reinsurance transactions with affiliates imposed by and paid to DFS in connection with a Consent Order executed on May 3, 2018.
I also reviewed the reinsurance exhibits in the amended 2017 statement. Although there are indications of reinsurance ceded to LGAS, I found no information relating to the findings in the consent order.

The Quarterly Statement
When I obtained the 2017 statement, I also obtained the statutory statement for the quarter ended March 31, 2018. The quarterly statement was executed on May 14, 2018. In the quarterly statement I found no information relating to the findings in the consent order.

The Amended Quarterly Statement
I subsequently learned that WPNY filed an amended quarterly statement for the first quarter of 2018. The amended quarterly statement was executed on May 24, 2018. The amended quarterly statement includes the same note quoted above on the page preceding the jurat page of the quarterly statement. The amended quarterly statement also includes the second paragraph quoted above under "Events Subsequent."

The New York Supplement for 2017
Companies doing business in New York file an annual "New York Supplement" to the annual statement. I reviewed WPNY's New York Supplement for 2017, which was executed on February 22, 2018. I found no information in the Supplement for 2017 relating to the findings in the consent order.

I believe that WPNY later filed an exhibit to the Supplement for 2017, and that the exhibit contains information relating to the findings in the consent order. I have filed a public records request with DFS seeking the exhibit. When and if I receive the exhibit, and if it contains information relating to the findings in the consent order, I will prepare a follow-up to this post.

General Observations
The press release and the consent order suggest that WPNY was using phony reinsurance with an affiliate to improve the appearance of WPNY financial statements. It reminds me of "shadow insurance," about which I have written extensively. Much of my writing on the subject has focused on certain accounting practices that are "permitted" for companies domiciled in Iowa and certain other states, but which would never be permitted for companies domiciled in New York.

I delayed preparing this post until I received a response to my May 2018 public records request to DFS. When my request was denied, I decided not to wait another year until the regular examination report on WPNY hopefully will become available. I also decided not to wait another two months for the response to my June 2018 public records request to DFS for the exhibit I think WPNY filed as an addendum to the New York Supplement for 2017. Instead, I plan to write a follow-up post when and if any useful additional information appears in public documents.

I am frustrated by the lack of information relating to the findings in the consent order. Unlike the situation in No. 275, where the examination report provided detailed information, no details have yet been made public about the findings in the consent order. Furthermore, I am not optimistic that detailed information will ever be made public. In other words, WPNY's decision to enter into the consent order before completion of the targeted financial examination resulted in delaying and possibly forever shielding the details from public scrutiny. I am not surprised by that result, because I know companies take a hard line about what they consider (wrongly in my view) confidential trade secret information that should be exempt from public disclosure.

Available Material
I am offering a complimentary 27-page package consisting of the DFS press release (1 page), the consent order (8 pages), and selected pages from the 2016 statement, the original 2017 statement, and the amended 2017 statement (18 pages). Email and ask for the July 2018 package about the DFS/WPNY consent order.


Thursday, July 5, 2018

No. 275: Athene, the New York Department, and the Victimization of Life Insurance Policyholders

On June 28, 2018, the New York State Department of Financial Services (DFS) issued a press release announcing an extraordinary regulatory action taken against Athene Life Insurance Company of New York (Athene) and First Allmerica Financial Life Insurance Company (FAFLIC). The regulatory action took the form of a consent order requiring Athene to pay a $15 million fine for insurance law violations and FAFLIC to take corrective actions totaling up to $40 million.

In No. 272 (June 21, 2018) I discussed an extraordinary regulatory action taken by the California Department of Insurance (CDI) 16 days earlier against Accordia Life and Annuity Company and Athene Annuity and Life Company. The CDI and DFS regulatory actions arose out of the same types of activities that have been victimizing life insurance policyholders. Here I discuss the DFS action.

The Market Conduct Examination
On April 28, 2017, after DFS received many life insurance policyholder service related complaints, Maria T. Vullo, DFS Superintendent of Financial Services, appointed an examiner to conduct a targeted market conduct examination of Athene. The examination period was from January 1, 2012 through March 31, 2017. As necessary, the examiner reviewed matters occurring after March 31, 2017. The report of the examination is dated February 2, 2018. According to the report, Athene committed seven violations of New York laws and regulations. Here are two of the violations:
  • The Company violated Section 3211(b) of the New York Insurance Law by failing to mail premium due notices to policyholders at their last known address.
  • The Company violated Section 3211(g) of the New York Insurance Law by failing to provide annual reports or cash surrender value notices to policyholders.
The examination report includes a section tracing the history of the companies involved in this regulatory action. Among the company names mentioned in that section are Gotham Life Insurance Company of New York, Bankers Life and Casualty Company of New York, Bankers Life Insurance Company of New York, Southwestern Life Insurance Company, Indianapolis Life Insurance Company, AmerUs Group Company, Libra Acquisition Corporation, Aviva plc, Aviva Life Insurance Company of New York, Aviva Life and Annuity Company of New York, Aviva USA Corporation, Aviva Life Insurance Company, Aviva Life & Annuity Company, First Allmerica Financial Life Insurance Company, Apollo Global Management LLC, Athene Life & Annuity Assurance Company of New York, and Athene Life Insurance Company of New York.

The full scope of the problems that prompted the complaints and led to the DFS targeted market conduct examination is staggering. The only way to understand the problems fully is to read the examination report.

The Consent Order
The consent order directed at Athene lists seven findings and various violations of New York laws and regulations. It also describes the steps Athene and FAFLIC must take to remedy the violations.

The consent order provides for Athene to pay a $15 million civil penalty to DFS. It also describes the remediation plan Athene and FAFLIC must undertake. The consent order was signed by President Grant Kvalheim of Athene, President Robert Arena of FAFLIC, DFS Executive Deputy Superintendent of Insurance Laura Evangelista, and DFS Superintendent Vullo.

General Observations
In No. 272 about the CDI regulatory action, I mentioned references to transfers of policies from one insurance company to another. That is a subject on which I have written extensively. In the DFS regulatory action against Athene and FAFLIC, there are references to assumption reinsurance agreements and the concept of novation. For discussions of those subjects, see No. 220 (June 1, 2017) and No. 262 (April 16, 2018).

Also, as I said in No. 272, the types of administrative problems that prompted the CDI and DFS regulatory actions are difficult to solve. Yet those types of problems are to be expected when private equity firms create or acquire long-term obligations of insurance companies in an effort to earn short-term profits for the benefit of their investors. At least two major state insurance regulatory agencies—CDI and DFS—have recently witnessed first hand some of the implications of the involvement of private equity firms in the business of insurance.

I do not know how much knowledge other state insurance regulatory agencies have about problems involving private equity firms. Nor do I know whether and to what extent the National Association of Insurance Commissioner has been looking into the problems.

Available Material
I am offering a complimentary 40-page PDF consisting of the DFS press release (1 page), the DFS market conduct examination report (24 pages), and the DFS consent order directed at Athene and FAFLIC (15 pages). Email and ask for the July 2018 package about the DFS/Athene/FAFLIC case.