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 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 and ask for the August 2018 COI/John Hancock package.