Tuesday, August 28, 2018

No. 284: The Financial Accounting Standards Board Announces New Accounting Guidance for Life Insurance Companies

On August 15, 2018, the Financial Accounting Standards Board (FASB) issued a press release entitled "FASB Improves Accounting Standards for Insurance Companies that Issue Long-Duration Contracts." The new Accounting Standards Update (ASU) has five major components: (1) it requires assumptions for liability management to be updated at least annually, with the effect recorded in net income; (2) it standardizes the liability discount rate; (3) it provides greater consistency in measurement of market risk benefits; (4) it simplifies the amortization of deferred acquisition costs; and (5) it requires enhanced disclosures. The press release is in the package offered at the end of this post.

The Effective Date
The ASU is so detailed that implementation clearly will require extensive work by the affected companies. Here is what the ASU says about the effective date:
For public business entities, the amendments in this Update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020. For all other entities, the amendments are effective for fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. Early application of the amendments is permitted.
The ACLI Response
I sought the views of the American Council of Life Insurers (ACLI), the most prominent of the life insurance company trade groups. A spokesperson sent me an ACLI General Bulletin dated August 16, 2018, and ACLI's most recent comment letter to FASB. The letter, dated June 20, 2018, was over the signature of Mike Monahan, ACLI's senior director of accounting policy. The letter dealt for the most part with the effective date of the ASU. Here is the second paragraph of the letter:
We are writing to express our significant concern with the effective date decision made at the June 6, 2018, meeting, which gives public companies just over 2 years to implement. We do not believe this date is realistic and strongly urge the Board to reconsider their decision prior to the issuance of a final standard by extending the effective date for at least one additional year. We do not believe it is advisable for the Board to "wait" and see if preparers will be able to implement by this date and "later" consider potentially extending the effective date.
I have not seen the effective date decision made in June 2018. However, I believe that FASB denied the ACLI's request to extend the effective date for at least one additional year. I asked the ACLI whether my belief is correct. The spokesperson confirmed my belief. The August 2018 ACLI general bulletin and the June 2018 ACLI comment letter are in the package offered at the end of this post.

The NAIC Response
I also sought the views of the National Association of Insurance Commissioners (NAIC). In response, a spokesperson said:
The NAIC is aware of the recent news release from FASB. Much of the guidance is consistent with previous exposure drafts on the same topic. The NAIC, through its Statutory Accounting Principles (E) Working Group, will be reviewing it more closely in the near future to begin considering it for statutory accounting, consistent with what is described in the introductory paragraph of our most recent comment letter to FASB on the topic.
The spokesperson also sent me the most recent NAIC comment letter. The letter, dated December 12, 2016, was over the signature of Dale Braggeman. He is a staff person in the Ohio Department of Insurance and chairs the NAIC's Statutory Accounting Principles (E) Working Group. The NAIC's 2016 comment letter is in the package offered at the end of this post. Here is the introductory paragraph:
The Statutory Accounting Principles (E) Working Group of the NAIC is responsible for the development and enhancement of Statements of Statutory Accounting Principles (SSAPs) used by U.S. insurers in their statutory filings. Statutory Accounting Principles (SAP) presents an effective, comprehensive and understood approach, which has been built using the framework established by U.S. GAAP [Generally Accepted Accounting Principles]. Under the SAP process, all new GAAP issuances are considered and ultimately adopted, adopted with modification, or rejected. Although SAP may make some modifications, it is preferred to have minimal differences in accounting methodologies between SAP and GAAP, with as limited variations as possible to meet regulatory objectives. Consequently, proposals that significantly revise GAAP standards are a vital matter for U.S. regulators.
The Long-Term Care Insurance Connection
The regulatory implications of developments in the long-term care (LTC) insurance market have been well known for a long time. The departure of major companies from the LTC insurance market has been going on for many years. The problems at Penn Treaty festered for many years before the company was finally placed in liquidation last year. The problems at Genworth have been well known for a long time, and we still await final word on the proposed takeover of the company by a Chinese conglomerate. And then there was the General Electric fiasco in January 2018, when the company shocked the market by announcing it had to take a whopping $15 billion charge after ignoring for many years its growing liabilities on a legacy block of LTC insurance business.

We already know that the problems associated with LTC insurance are likely to cause major changes in the entire system of state guaranty associations. Now I wonder about the extent to which the problems associated with LTC insurance prompted FASB to move more rapidly with its long-planned ASU than it might otherwise have moved. After all, the first of the five major requirements in the ASU is that the companies must update, at least annually, the assumptions used in calculating their liabilities.

General Observations
I am not sufficiently familiar with life insurance accounting practices to comment on the full implications of the ASU. However, I believe that the changes will improve financial statements significantly and will be of great benefit to users of the statements. I also believe that the changes are so extensive that they will require enormous compliance efforts by the affected companies. It remains to be seen whether the companies will be ready to comply fully by the effective date.

Available Material
I am offering a complimentary 10-page PDF consisting of the FASB press release (2 pages), the ACLI general bulletin (1 page), the ACLI comment letter (3 pages), and the NAIC comment letter (4 pages). Email jmbelth@gmail.com and ask for the August 2018 FASB/ASU package.


Thursday, August 23, 2018

No. 283: Jesse Eisinger's Superb 2017 Book

I am embarrassed to say I did not read Jesse Eisinger's July 2017 book until this summer. It is entitled The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives.

Eisinger currently is an investigative reporter for ProPublica. Previously he worked for The Wall Street Journal Europe. He once worked at Conde Nast Portfolio, where he wrote a story in November 2007 that predicted the collapse of Bear Stearns and Lehman Brothers. In 2009 he began work on a series of stories co-authored with Jake Bernstein, for which they received a 2011 Pulitzer Prize for National Reporting.

In the introductory section of his book, Eisinger explains that James Comey was the source of the book's main title. Early in 2002, shortly after Comey was appointed by President George W. Bush to head the powerful Office of the U.S. Attorney for the Southern District of New York, Comey gave a talk to his prosecutors. He asked them: "Who here has never had an acquittal or a hung jury?" According to Eisinger, "Hands shot up," because they considered themselves the best in the country. Comey then said: "You are members of what we like to call the Chickenshit Club." Eisinger then said: "Hands went down faster than they had gone up." Comey then added: "If it's a good case and the evidence supports it, you must bring it." According to Eisinger, Comey then explained that government lawyers "should seek to right the biggest injustices, not go after the easiest targets."

The greatest hero in the book is Jed Rakoff, the famous senior judge in the U.S. District Court for the Southern District of New York. His name appears in the titles of two chapters of the 16-chapter book. Eisinger describes Rakoff's early life and career in detail. In April 2002 he handed down a decision against the death penalty.  He made the decision, which he knew would be reversed on appeal, with the full realization that it would prevent him from ever being nominated for an appellate court position. Another of his famous decisions was his initial refusal to approve the October 2011 "neither admit nor deny" $285 million settlement between the Securities and Exchange Commission and Citigroup. Although the ruling was reversed by the business-friendly Second Circuit, Rakoff's efforts on the case won the hearts of many court watchers and had a powerful impact on many other judges.

Another hero in the book is Paul Pelletier, a long-time prosecutor in the Department of Justice. As examples of his work, he was heavily involved in the PNC Bank case and in the trial of the Hartford Five in the AIG/GenRe case. According to Eisinger, when Pelletier left the Justice Department, the going-away party was attended by about 200 people who overflowed the restaurant and into an adjacent atrium.

Yet another hero in the book is Benjamin Lawsky, who was present at the 2002 Comey speech to prosecutors, and who had lost his first trial as a prosecutor. He later served as New York State Superintendent of Financial Services. According to Eisinger, Lawsky, after leaving his New York position, was blackballed by the New York bar, could not land a position at a major law firm, and instead became a consultant and attorney.

One of the leading villains in the book is Joseph Cassano, who eventually was forced to retire from his position at AIG Financial Products. That was the infamous unit that may have been most responsible for the collapse of AIG. Cassano was never indicted.

The first major case discussed in detail in the book is the Enron/Arthur Andersen case. Eisinger argues throughout the book that the destruction of Andersen—and the consequences for all the innocent employees of Andersen—was a major factor in later decisions on how far to carry prosecutions. Other cases Eisinger describes in detail are the Bank of America acquisition of Merrill Lynch, the BP Deepwater Horizon disaster, the PNC Bank case, the WorldCom case, the Tyco case, and the United Brands case. The latter case included the suicide of Eli Black.

I was startled to learn that the expression "white-collar crime" is generally attributed to Edwin Sutherland, an Indiana University sociology professor who came up with the phrase in the 1930s. Sutherland's classic work entitled White Collar Crime was published in 1949, a year before his death at the age of 67, and was censored until 1983.

Eisinger goes into considerable detail on why so few strong legal actions were taken against executives in the wake of the 2008 crash. Among the reasons he discusses is the major growth in the size and power of white-collar defense firms. He also describes the "revolving door," which is the manner in which attorneys associated with major defense firms move into government service for a time and then return to their defense firms.

Eisinger's superb book is a great read. I think it is required reading for anyone interested in the welfare of our financial system.


Thursday, August 16, 2018

No. 282: Cost-of-Insurance Increases—John Hancock Settles an Unusual Type of Lawsuit

In No. 145 (February 22, 2016) I wrote about an unusual type of cost-of-insurance (COI) class action lawsuit against John Hancock Life Insurance Company (U.S.A.). The plaintiff originally filed the lawsuit in December 2015. The case was unusual because, rather than alleging unlawful COI increases, the plaintiff alleged an unlawful failure to decrease COIs in response to decreasing mortality rates. The plaintiff also alleged unlawful charges for a rider. (See 37 Besen Parkway v. John Hancock, U.S. District Court, Southern District of New York, Case No. 1:15-cv-9924.)

Recent Developments
On March 30, 2018, an attorney for the plaintiff filed a class certification motion. On July 20 he filed a motion for preliminary approval of a proposed settlement. Accompanying the latter motion were four documents in support of the proposed settlement—a memorandum of law and the declarations of three individuals. The three-paragraph "Introduction" in the memorandum of law (without citations) reads:
The Settlement reached after more than two-and-a-half years of hard-fought litigation provides the Class with a $91.25 million cash payment. The money will be distributed directly to Class members, with no need for claims forms and no funds reverting to John Hancock.
On preliminary approval, the question is whether the Settlement's substantive terms fall within the range of "possible" approval, such that notice should be sent to the Class and a full fairness hearing should be held. The substantial recovery obtained for the Class in light of the risks of continued litigation easily meets that test. Class Counsel researched and discovered this alleged breach of contract on their own, without any governmental investigation, and filed the first suit alleging that John Hancock failed to decrease its cost of insurance rates. At the initial conference in this case, the Court expressed concern regarding whether Plaintiff can sustain a breach of contract claim in light of a "fundamental issue about the language in the policy that could be dispositive," questioned whether the key contractual terms at the heart of this litigation were even "enforceable," and invited John Hancock to file "a dispositive motion addressing" whether Plaintiff can even "get[] at the issue of [John Hancock's] expectations of future mortality experience." After persuading John Hancock not to file a proposed motion for judgment on the pleadings, Class Counsel reviewed and analyzed over 340,000 pages of documents (including over 2000 spreadsheets), had its experts spend 23 days onsite at John Hancock's offices in Boston, Massachusetts extracting reams of data about tens of thousands of Class policies and working with and investigating John Hancock's policy administration systems, took and defended 16 highly technical depositions (some over multiple days) involving subjects such as insurance financial reporting, statutory accounting, mortality tables, and actuarial science, and prepared a motion for class certification and supporting expert reports that totaled over eleven thousand pages. These efforts ultimately culminated in a mediation on May 24, 2018, which took place before Judge Theodore Katz (Ret.), a retired magistrate judge in this District, and resulted in an extraordinary amount of cash relief for the Class. The $91.25 million settlement fund will be used to compensate tens of thousands of elderly insureds, and is a remarkable result for an alleged breach of a contractual promise that this Court had preliminary concerns about being "awfully vague" and "almost sounds illusory."
At the final approval hearing, the Court will have before it more extensive submissions in support of the Settlement and will be asked to make a determination as to whether the Settlement is fair, reasonable, and adequate in light of all of the relevant factors. At this time, Plaintiff requests only that the Court grant preliminary approval of the Settlement so that Class members can receive notice of the Settlement and the final approval hearing.
The "Background" section of the memorandum of law describes the litigation, the settlement negotiations, and the proposed settlement. The proposed settlement provides that up to $1 million of the $91.25 million settlement fund may be used on a nonrefundable basis for "notice and administration costs." It also provides that class counsel may seek reimbursement of expenses and an award of up to one-third of the settlement fund, and may request incentive awards of up to $40,000 each for the two class representatives who testified on behalf of the class.

The "Argument" section of the memorandum of law explains why the class should be certified and why the proposed settlement should be approved. The full memorandum of law is in the package offered at the end of this post.

Other Recent Documents
On July 20 Theodore H. Katz, a retired federal magistrate judge who presided at the settlement conference, filed a declaration in support of the motion for preliminary approval of the settlement. His declaration is in the package offered at the end of this post.

Also on July 20 an attorney for the plaintiff filed a declaration that included, among other things, the proposed notice to the members of the class and the proposed plan of allocation of the settlement fund. Those two items are in the package offered at the end of this post.

General Observations
At this writing (early August 2018) nothing further has happened. Presumably the next two important developments will be the judge's approval of the proposed settlement, and some months later the judge's final approval of the proposed settlement after the fairness hearing. I plan to report significant further developments.

Available Material
The complimentary 66-page package I offered in No. 145 is still available. Email jmbelth@gmail.com and ask for the February 2016 COI/John Hancock package.

I now offer a complimentary 45-page PDF consisting of the plaintiff's memorandum of law (32 pages), Judge Katz's declaration (4 pages), the proposed notice to class members (7 pages), and the proposed plan of allocation (2 pages). Email jmbelth@gmail.com and ask for the August 2018 COI/John Hancock package.


Thursday, August 9, 2018

No. 281: Senior Health Insurance Company of Pennsylvania Goes to Court

On July 24, 2018, Senior Health Insurance Company of Pennsylvania (SHIP) filed a complaint in federal court against Beechwood Re, several related entities, and several individuals. SHIP is running off the long-term care (LTC) insurance business of the former Conseco Senior Health Insurance Company. The lawsuit alleges massive wrongdoing by Beechwood in investing SHIP's assets.

I have written extensively about SHIP, including several posts about the company's deteriorating financial condition, and several posts about lawsuits in which disgruntled claimants were plaintiffs and SHIP was the defendant. I think this is the first case in which SHIP is the plaintiff. (See SHIP v. Beechwood, U.S. District Court, Southern District of New York, Case No. 1:18-cv-6658.)

In No. 263 (April 23, 2018), I wrote about SHIP's "outsourcing" of functions, as described in the compamy's "2017 Management's Discussion and Analysis." SHIP said it "operates from its offices in Carmel, Indiana, and utilizes third-party providers for key functions." Among those providers are "asset managers for investment portfolio management and accounting." That function is the subject of the recent lawsuit. SHIP also uses Long Term Care Group, Inc. as a third-party administrator for policy and claim administration, "actuarial professionals for pricing and valuation," an affiliate named Fuzion Analytics, LLC for administration of the company, and a public relations firm for media activities. There is no need to outsource the marketing function because the company is in runoff.

The Defendants
The company defendants are Beechwood Re Ltd.; B Asset Manager, L.P.; Beechwood Bermuda International, Ltd.; Beechwood Re Investments, LLC (aka Beechwood Investors, LLC); and Illumin Capital Management, LP. The individual defendants are Moshe M. Feuer (aka Mark Feuer), Scott A. Taylor, David I. Levy, and Dhruv Narain.

The Judge
The case has been assigned to Senior U.S. District Court Judge Jed S. Rakoff. President Clinton nominated him in October 1995, and the Senate confirmed him in December 1995. He assumed senior status in December 2010. Magistrate Judge Ona T. Wang was also designated.

The Thrust of the Case
The thrust of the case may be gleaned from the first three paragraphs of the "Nature of the Action" section of the complaint. They read:

  1. This action arises from Beechwood's deceit, intentional misconduct, and extreme incompetence in the promotion and sale of investments to SHIP and in Beechwood's subsequent mismanagement and misuse of $320 million in policyholder reserves entrusted to it by SHIP through and related to three Investment Management Agreements (the "IMAs").
  2. The IMAs guaranteed SHIP an annual return of 5.85 percent, based on what Beechwood represented to be a conservative investment strategy that would be appropriate to SHIP's status as an insurer in run-off. Beechwood failed to deliver on the guaranteed returns and also has failed to deliver all of SHIP's investment principal back to it. Defendants failed to deliver because, once they secured control over SHIP's funds for investment, they jettisoned their promises to invest safely and in SHIP's best interest. Beechwood instead used SHIP's funds to prop up and perpetuate highly speculative, distressed, and fraudulently valued investments that did not suit or benefit SHIP.
  3. Beechwood also favored its own interests and the interests of undisclosed but related third parties and affiliates who conspired with and effectively controlled Beechwood, all to SHIP's detriment. These related parties were associated with Platinum Partners, described in more detail below. Many of the individuals who were granted improper access to, and who benefited from the improper use of, SHIP's funds ultimately were indicted in federal court for their misdeeds. Defendant Levy and others are scheduled for criminal trial on January 7, 2019 for at least some of their Platinum-related actions.
The Related Litigation
SHIP's complaint mentions two criminal cases and two civil cases, all of which were filed in 2016. I have written about them. Here I provide brief updates, in the order in which they were initially filed.

U.S.A. v. Seabrook
When I wrote about this criminal case in No. 180 (September 19, 2016), I said Norman Seabrook was a former official of New York City's Correction Officers Benevolent Association (COBA) and his fellow defendant Murray Huberfeld was the founder of Platinum Partners, a hedge fund. They were charged with two criminal counts: (1) conspiracy to commit honest services wire fraud and (2) honest services wire fraud. The indictment alleged a "kickback scheme" under which COBA funds were invested in offerings of Platinum. A 17-day trial began October 24, 2017, and ended with a hung jury.

On May 17, 2018, a superseding three-count indictment was filed against the defendants. Eight days later a superseding one-count information was filed against Huberfeld, he entered a guilty plea, and his sentencing was set for September 14. The retrial of Seabrook was set for August 1. (See U.S.A. v. Seabrook, U.S. District Court, Southern District of New York, Case No. 1:16-cr-467.)

Bankers Conseco Life v. Feuer
When I wrote about this civil case in No. 182 (October 7, 2016), I said the complaint lists 12 counts of alleged wrongdoing, including three counts of violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. The plaintiffs were Bankers Conseco Life Insurance Company and Washington National Insurance Company, which are subsidiaries of CNO Financial Group, Inc. The defendants were Feuer, Taylor, and Levy.

On June 15, 2017, Taylor filed a motion to compel arbitration. On March 15, 2018, the judge granted the motion to compel arbitration and stayed the case pending arbitration. On April 27, 2018, the plaintiffs filed a motion for an interlocutory appeal; the motion has not yet been fully briefed. (See Bankers Conseco Life v. Feuer, U.S. District Court, Southern District of New York, Case No. 1-16-cv-7646.)

U.S.A. v. Nordlicht
When I wrote about this criminal case in No. 195 (January 3, 2017), I said that, in December 2016, seven individuals associated with Platinum were charged in an eight-count indictment. The defendants are Mark Nordlicht, David Levy, Uri Landesman, Joseph Sanfillippo, Joseph Mann, Daniel Small, and Jeffrey Shulse. In July 2018 the judge set the trial of the first six defendants to begin January 7, 2019, with the trial of Shulse to begin promptly after the trial of the other six defendants ends. (See U.S.A. v. Nordlicht, U.S. District Court, Eastern District of New York, Case No. 1:16-cr-640.)

SEC v. Platinum
When I wrote about this civil case in No. 195 (January 3, 2017), I said that the Securities and Exchange Commission (SEC) filled a complaint in December 2016 against two Platinum units and the same seven individuals charged in the Nordlicht criminal case. The complaint includes 11 claims for relief. In January 2017 the judge appointed a receiver. The case is proceeding, but no trial date has been set. (See SEC v. Platinum, U.S. District Court, Eastern District of New York, Case No. 1:16-cv-6848.)

General Observations
SHIP's lawsuit against Beechwood's entities and several individuals is in its early stages. I think it will end in a confidential settlement. However, the defendants are wrapped up in other litigation—both criminal and civil—that is likely to leave them without the resources necessary for a significant settlement. I think the fate of the lawsuit rests heavily on the outcomes of the other cases discussed in this post. I am puzzled about the long delay in SHIP's filing of its lawsuit, and I am in doubt about the wisdom of SHIP's use of its limited resources to mount this legal action. Despite these concerns, I plan to follow the case and report on significant developments.

Available Material
I am offering a complimentary 86-page PDF containing SHIP's complaint. Email jmbelth@gmail.com and ask for the August 2018 package containing SHIP's lawsuit against Beechwood.


Thursday, August 2, 2018

No. 280: Long-Term Care Insurance—Kanawha, Falcone, and South Carolina

Kanawha Insurance Company, based in South Carolina, sold long-term care (LTC) insurance for many years. The company stopped selling LTC insurance in 2005 and continued to administer the policies in runoff as a closed block. In 2007 Humana, Inc., a large health insurance company, acquired some Kanawha business, including the LTC block.

In November 2017, as I reported in No. 242 (11/20/17), Humana announced a definitive agreement to sell Kanawha's LTC block, along with some other Kanawha business, to Texas-based Continental General Insurance Company (CGIC), a wholly owned subsidiary of HC2 Holdings, Inc. (NYSE:HCHC). The parties anticipated the transaction would close in the third quarter of 2018, subject to various approvals, including approval by the South Carolina Department of Insurance (Department).

The Hearing Notices
On May 16, 17, and 18, 2018, the Department published notices of a public hearing to be held on June 12 "In the Matter of the Proposed Acquisition of Control of Kanawha Insurance Company, a South Carolina Domestic Insurer, by Continental General Insurance Company, a Texas Corporation." The notices appeared in several area newspapers. One of the notices is in the package offered at the end of this post.

The Public Hearing
The Department asked a retired state judge to preside at the public hearing, which lasted 79 minutes. In attendance were attorneys and other representatives of the Department, Humana, and CGIC. Also in attendance were three members of the public, one of whom spoke briefly about his concerns as a policyholder. After the public hearing, there was an "evidentiary hearing," which apparently was not open to the public.

The Transcript
In response to my request, a Department spokesman graciously provided me with a 78-page double-spaced transcript of the public hearing. However, he said persons interested in seeing the transcript normally buy it from the court reporting firm the Department uses. He therefore asked me not to make the transcript available without charge to my readers. I am honoring that request. Any interested reader may purchase the transcript from Creel Court Reporting (1-800-822-0896) for about $230.

The Conditional Approval Order
On July 12, 2018, South Carolina Director of Insurance Raymond G. Farmer issued a Final Decision and Conditional Order (Order) conditionally approving CGIC's acquisition of Kanawha's business, including the LTC block. The Order is in the package offered at the end of this post.

Financial Strength Ratings
In 2013, according to my September 2013 (final) special ratings issue of The Insurance Forum, CGIC had a B++ (Good) financial strength rating from A. M. Best Company. In April 2015 Best placed the rating under review with negative implications. In March 2016 Best withdrew the rating when HC2 declined to participate in Best's rating system. I am not aware that CGIC is currently rated for financial strength by any of the other major rating firms.

The RBC Provision
Regulators often use risk-based capital (RBC) ratios as a measure of financial strength. The numerator is "Total Adjusted Capital," which is the statutory net worth of the company with some adjustments. The denominator usually is "Company Action Level" (CAL) or "Authorized Control Level" (ACL). CAL is exactly twice ACL. Thus an RBC ratio with CAL as the denominator is exactly half the RBC ratio with ACL as the denominator. The Order includes this provision:
The acquiring company [CGIC] must maintain a minimum RBC ratio of the combined companies of 450% for two years after closing. The acquiring party and its parent, HC2, will infuse the capital necessary to maintain an RBC ratio of 450% as stated above. After the two year period has expired, the acquiring party will maintain the RBC ratio required by the domestic regulator [Texas] and shall infuse any additional capital necessary to maintain it at that level.
The Order does not indicate which RBC ratio was used. The Department spokesman confirmed my belief that ACL was the denominator. If CAL had been the denominator, the RBC ratio required by the Order would have been 225 percent.

CGIC's statutory statement for the year ended December 31, 2017 shows RBC data for the past five years. The RBC ratios, with ACL the denominator, were 571 percent for 2013, 515 percent for 2014, 537 percent for 2015, 531 percent for 2016, and 489 percent for 2017. It is not surprising that the 450 percent figure was used in the Order.

The Falcone Provision
Another provision in the Order relates to Philip A. Falcone. I wrote about him in the previously mentioned No. 242, in No. 244 (12/11/17), and in No. 248 (1/11/18). The Order includes this provision:
As a continuing obligation of CGIC and in accordance with the Disclaimer of Affiliation filed with the Department by Philip A. Falcone, Chairman, President, and CEO of HC2, as supplemented by proof of the discussion of these matters with CGIC's Board of Directors and letters from Mr. James Corcoran to Director Farmer and Texas Insurance Commissioner [Kent] Sullivan, Mr. Falcone shall not have any role in the day-to-day operations of management of Kanawha or CGIC pre- or post-merger. Any subsequent change to the statements/positions in these documents must be filed with and approved by the states of South Carolina and Texas, respectively, before taking effect.
Despite his position at HC2 and the prominence of his name in the Order, Falcone did not testify under oath or appear at the public hearing. Two senior officials of CGIC testified. One was Michael W. Mazur, CGIC's president and chief executive officer. The other was James P. Corcoran, executive chairman of CGIC's board of directors. Corcoran was New York State Superintendent of Insurance from 1983 to 1990.

On April 30, 2018, HC2 filed a proxy statement with the Securities and Exchange Commission (SEC). The proxy, which announced the June 13, 2018 annual meeting of HC2 shareholders, contains a detailed, four-paragraph discussion of Falcone's problems with the SEC and with the New York State Department of Financial Services. The discussion, entitled "Certain Legal Proceedings Affecting Mr. Falcone," is in the package offered at the end of this post.

CGIC's 2017 Statutory Statement
While reviewing the RBC data in CGIC's 2017 statutory statement, I reviewed other parts of the statement. At the end of 2017, CGIC had net admitted assets of about $1.4 billion, total liabilities of about $1.3 billion, and statutory net worth of about $75 million. It had a 2017 statutory net loss of about $80,000. Note 1A of the "Notes to Financial Statements" describes briefly the plan to acquire Kanawha from Humana. The note, along with other selected pages from the statement, is in the package offered at the end of this post.

The Florida Consent Order
According to Schedule T in CGIC's 2017 statutory statement, the company's five leading states in terms of premiums (millions) are Texas ($46.5), Florida ($14.3), Georgia ($8.8), Illinois ($8.6), and North Carolina ($8.6). The company is licensed in all states except Florida and New York. I contacted the Florida Office of Insurance Regulation (FLOIR) to inquire about the interesting fact that, while Florida is CGIC's second largest market, the company is not licensed there.

In response, a spokesman sent me a Consent Order dated August 23, 2016. It said that FLOIR, based on CGIC's 2015 statutory financial statement, found the company "impaired" by about $7.5 million at the end of 2015. The Consent Order approved CGIC's voluntary surrender of its certificate of authority to do business in Florida. It is my understanding that CGIC may try to reinstate its certificate of authority. The Consent Order is in the package offered at the end of this post.

Other Requested Documents
I asked the Department for several other documents alluded to in the Order or in the hearing transcript. One is a "Confidentiality Order" and another is the public portion of the actuarial opinion for Kanawha. Those documents are in the package offered at the end of this post.

Still another document is the "Disclaimer of Affiliation," which is confidential. I also requested the biographical affidavits of the principals (I was most interested in the Falcone affidavit), but they are confidential.

General Observations
Given the volatility of the LTC insurance market and the manner in which the owners of Kanawha LTC insurance policies have been moved from company to company, it is understandable that the policyholders are concerned. I have received several emails containing expressions of concern from owners of LTC insurance policies in the Kanawha block.

I have written about transfers of policies from one insurance company to another, and the question of whether policyholders should be given the opportunity to consent to the transfer. In this case, because policyholders were given no such opportunity, I believe that their constitutional rights were violated. See No. 220 (6/1/17).

Available Material
I am offering a complimentary 42-page PDF consisting of a sample notice of the hearing (1 page), the Department's Order (3 pages), the Confidentiality Order (5 pages), the public portion of the actuarial opinion for Kanawha (12 pages), selected pages from CGIC's 2017 statutory statement (10 pages), Florida's Consent Order (8 pages), and the discussion of Falcone in HC2's recent proxy statement (3 pages). Email jmbelth@gmail.com and ask for the August 2018 package about Kanawha's LTC insurance policies.