Tuesday, February 25, 2020

No. 357: Philip Falcone Faces a Revolt from Shareholders of His Public Company

Philip A. Falcone is chairman, president, and chief executive officer of HC2 Holdings, Inc. (NYSE:HCHC). He is also the founder of Harbinger Capital Partners, a New York hedge fund. My interest in him grew out of his involvement with long-term care (LTC) insurance, a business in which I am keenly interested. Recent public filings reveal that he now faces a revolt from disgruntled HC2 shareholders.

I have written previously about Falcone's failure to disclose material information in public filings with the Securities and Exchange Commission (SEC). In No. 242 (November 20, 2017), No. 244 (December 11, 2017), and No. 280 (August 2, 2018), I wrote about Falcone, about Kanawha (an LTC insurance company), about Humana (owner of Kanawha for several years, but no longer an owner), and about HC2. Two HC2 filings with the SEC early in 2020 prompted this follow-up post.

The January 2020 Filing
On January 27, 2020, several disgruntled HC2 shareholders filed with the SEC a DFAN 14A. They attached a January 20 letter to their fellow HC2 shareholders announcing a plan to file a preliminary proxy statement in which they will solicit votes for the election of their own slate of HC2 directors. The final section of the letter reads:
Time for a Change: Management's unsuitability, consistent under performance and self-dealing patently disqualify them from continuing to manage the Company. This is why we intend to run our own slate for the Company's board at the next meeting of shareholders as a matter of first priority. Management has wasted six years destroying shareholder value. It's time for a fresh approach.
They point out early in the letter that it has been six years since the appointment of Falcone to the board of directors. The full letter is in the complimentary package offered at the end of this post.

The February 2020 Filing
On February 11, 2020, HC2 filed with the SEC an 8-K (significant event) report and a press release announcing the appointment of an additional member to the board of directors, increasing the size of the board from five to six. What grabbed my attention was that the 8-K includes a one-paragraph "Other Events" section not mentioned in the press release. Here is part of the paragraph that is missing from the press release:
The Compensation Committee of the Board ... has determined that Philip A. Falcone ... will not receive any bonus or other incentive compensation in respect of 2019, whether under the HC2 Executive Bonus Plan ... or otherwise.... Additional information regarding these matters will be provided in the 2020 Proxy Statement.
I sought to understand the significance of the announcement that was buried near the end of the 8-K and was omitted from the press release accompanying the 8-K. I reviewed the DEF 14A proxy statement filed with the SEC by HC2 on April 29, 2019 announcing that the annual meeting of shareholders was to be held on June 13, 2019.

The summary compensation table on page 30 in the 2019 proxy statement shows Falcone's total compensation in 2018 was about $11.5 million, consisting of $600,000 of salary, $7.1 million of stock awards, $1.4 million of option awards, and $2.4 million of non-equity incentive plan compensation. The $11.5 million 2018 total for Falcone dwarfed the 2018 totals for the other top executives, the highest of which was a total of about $2.1 million.

The Forthcoming 2020 Filings
Based on the dates of the HC2 filings with the SEC in 2019, I assume that the 2020 proxy statement with the summary compensation table for 2019 will be posted in late April 2020, and that the 2020 annual meeting of HC2 shareholders will be held in June 2020. I decided not to wait until late April 2020 to see the summary compensation table for 2019 showing Falcone's compensation in 2019. The full "Other Events" paragraph of the 8-K and the press release that accompanied the 8-K are in the complimentary package offered at the end of this post.

Falcone and the SEC
In the previously mentioned No. 244, I discussed Falcone's settlements with the SEC. On August 16, 2013, Falcone and Harbinger settled two SEC complaints, admitted wrongdoing, and paid civil penalties of more than $18 million. (At the time, SEC settlements including admissions of wrongdoing were rare.) Falcone also agreed to be barred from the securities industry for at least five years. However, he was not barred from serving as an officer or director of a public company.

In 2014 Falcone became chairman, president, and chief executive officer of HC2. I searched its subsequent SEC filings but found no disclosure of his settlements with the SEC.

I also searched the statutory financial statements of Continental General Insurance Company (CGIC), a subsidiary of HC2. I found no mention of Falcone. The only familiar name I saw was James Corcoran, a former New York State Superintendent of Insurance, who was shown as one of the directors of CGIC.

Kanawha Insurance Company
Kanawha Insurance Company has been in the LTC insurance business for many years, and was domiciled in South Carolina. On July 12, 2018, the South Carolina Director of Insurance issued an order approving the merger of Kanawha into Texas-domiciled CGIC, and the redomestication of Kanawha from South Carolina to Texas. The order includes a "continuing obligation of CGIC" that "Falcone shall not have any role in the day-to-day operations of Kanawha or CGIC pre- or post-merger." The order also includes a requirement that HC2 maintain a certain risk-based capital ratio for CGIC. The order is in the complimentary package offered at the end of this post.

General Observations
It will be interesting to watch developments relating to Falcone, especially the effort to remove him from the HC2 board and from his position at the helm of the company. It will also be interesting to see his 2019 compensation without the incentive payments. I plan to report developments after HC2 posts information about the June 2020 annual meeting of shareholders.

Available Material
The complimentary packages offered in the previously mentioned Nos. 242, 244, and 280 remain available. Now I am offering a new 10-page complimentary package consisting of the January 2020 letter to HC2 shareholders (4 pages), the "Other Events" paragraph in the February 2020 8-K filing (1 page), the press release that accompanied the 8-K (2 pages), and the South Carolina Director's 2018 order (3 pages). Email jmbelth@gmail.com and ask for the February 2020 package about Falcone and HC2.


Thursday, February 20, 2020

No. 356: GEICO's "Patriot Penalty" Imposed on Automobile Insurance Premiums Paid by Soldiers Returning from Deployment

On February 11, 2020, the Consumer Federation of America (CFA) issued a press release entitled "Consumer Advocates Call for End to GEICO's 'Patriot Penalty' Revealed by Investigative Report." Here is the opening paragraph of the CFA press release:
Berkshire Hathaway subsidiary GEICO adds a surcharge to the auto insurance premiums of soldiers who dropped their coverage while they served abroad, according to a televised report by investigative reporter Lee Zurik. Consumer Federation of America (CFA), which has verified this "patriot penalty" through its own research, called on the nation's insurance commissioners to intervene, in a letter it sent today.
The letter to the state insurance commissioners is over the signatures of Douglas Heller and Robert Hunter of CFA. The letter is in the complimentary package offered at the end of this post, along with the CFA press release.

The Size and the States
According to the investigative news report, the surcharge on returning soldiers can be as large as $500 every six months, even where the service member has a clean driving record. According to the CFA press release, some states, including California and Florida, explicitly prohibit insurers from imposing such surcharges on safe drivers.

However, according to a preliminary review of GEICO's practices, such surcharges have been found in at least 21 states: Arizona, Arkansas, Delaware, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Nebraska, Nevada, New Jersey, New York, North Carolina, Tennessee, Washington, and West Virginia. In its letter, CFA says legislation should be sought immediately if the commissioner does not have authority to prevent such surcharges.

My Efforts to Contact GEICO and a Few Commissioners
I attempted to contact GEICO by telephone for comment, but I was not able to reach a human being. I then tried to contact by email a few of the 21 states mentioned in the CFA press release. One of the states replied immediately, but the others have not yet replied.

Indiana, where I live, sent Bulletin 126 dated June 7, 2004. It is entitled "Applications for Personal Lines Coverage by Returning Members of the Armed Services." It cites Indiana Code Sections 27-1-22-26, which say a violation is "an unfair and deceptive act or practice in the business of insurance." The 15-year-old Indiana bulletin is in the complimentary package offered at the end of this post.

General Observations
I was surprised by the CFA press release about the GEICO surcharge imposed on military personnel returning from deployment outside the country. Such surcharges are outrageous. It is unconscionable to impose surcharges on members of the military, who risk their lives to protect our nation. I agree with CFA that insurance regulators should take action to prohibit such surcharges, and should seek state legislation if the regulators do not already have such authority.

The Indiana bulletin and statute raise at least two questions. First, how many states (in addition to California and Florida, which are mentioned in the CFA material), have such rules and regulations? Second, how many states with such rules and regulations enforce them vigorously?

I hope and fully expect that Warren Buffett, the famous chairman of Berkshire Hathaway, will agree with the sentiments expressed by the CFA and in this post. I am attempting to get this post into his hands.

Available Material
I am offering a complimentary 5-page PDF consisting of the CFA press release (2 pages), the CFA letter to the commissioners (2 pages), and the Indiana bulletin (1 page). Email jmbelth@gmail.com and ask for the February 2020 package about GEICO's patriot penalty.


Thursday, February 13, 2020

No. 355: Greg Lindberg—Another Update on the Federal Criminal Lawsuit in North Carolina

In No. 309 (April 17, 2019), I discussed the indictment of Greg E. Lindberg and three other individuals by a federal grand jury in North Carolina. In No. 320 (July 1, 2019), I reported on the placement of four Lindberg insurance companies into court-ordered rehabilitation at the request of the North Carolina insurance commissioner. In No. 338 (October 24, 2019), I discussed Lindberg's motion to dismiss the criminal lawsuit, and a recent article in The Wall Street Journal. Here I provide another update on the criminal lawsuit. (See U.S.A. v. Lindberg, U.S. District Court, Western District of North Carolina, Case No. 5-19-cr-22.)

Previous Developments
Lindberg is the founder and chairman of Eli Global, LLC, an investment company. He is also the owner of Global Bankers Insurance Group, a managing company for many insurers and reinsurers. The other defendants are John D. Gray, a Lindberg consultant; John W. Palermo, Jr., a vice president of Eli Global; and Robert C. Hayes, chairman of the state Republican party in North Carolina. All four defendants are North Carolina residents.

On March 18, 2019, the grand jury charged the defendants with one count of conspiracy to commit honest services wire fraud; and one count of bribery concerning programs receiving federal funding, and aiding and abetting. Hayes was also charged with three counts of false statements. The defendants pleaded not guilty on all counts, but Hayes later pleaded guilty to one count of false statements.

On September 18, Lindberg filed a motion to dismiss the indictment for failure to state an offense. On September 25, the U.S. Attorney filed an opposition to the motion to dismiss. On October 2, Lindberg filed a reply to the government's opposition to the motion to dismiss. On October 4, The Wall Street Journal carried a lengthy front-page article entitled "Indicted Executive Used Operatives To Spy on Women."

Recent Developments
On October 25, the judge issued an amended scheduling order. It is in the complimentary package offered at the end of this post.

On November 18, Gray filed a motion to dismiss the indictment for failure to state an offense. On December 2, Palermo filed a motion to dismiss the indictment for lack of specificity and for prosecutorial misconduct.

On January 31, 2020, the judge issued an order denying the Lindberg, Gray, and Palermo motions to dismiss the indictment. The order discusses "failure to state an offense," "lack of specificity," and "prosecutorial misconduct." The conclusion of the order reads:
For the foregoing reasons, the Court finds that there is a legally sufficient basis to support defendants' indictment for honest services fraud and federal funds bribery. Moreover, the indictment is sufficiently specific to give the defendants fair notice of the charged offenses. Finally, the defendants have failed to demonstrate prosecutorial misconduct warranting dismissal. Accordingly, the defendants' Motions to Dismiss the Indictment are denied.
The full order is in the complimentary package offered at the end of this post. On February 3, The Wall Street Journal carried another article about the Lindberg case. The article is entitled "Lindberg Trial Set to Proceed." The trial is set to begin on February 18.

General Observations
Lobbying of state insurance regulators by representatives of the insurance business is common. However, detailed allegations of attempted bribery are rare. For that reason, I think this case is important for persons interested in insurance regulation. I plan to report significant developments.

Available Material
The complimentary packages offered in Nos. 309, 320, and 338 are still available. Now I am offering another complimentary 22-page PDF consisting of the judge's amended scheduling order (6 pages) and the judge's order denying the defendants' motions to dismiss the indictment (16 pages). Email jmbelth@gmail.com and ask for the February 2020 package about Lindberg.


Monday, February 10, 2020

No. 354: Senior Health Insurance Company of Pennsylvania Enters Rehabilitation by Order of a State Court

In No. 352 (January 29, 2020), I reported that Jessica K. Altman, the Pennsylvania Insurance Commissioner and primary regulator of Senior Health Insurance Company of Pennsylvania (SHIP), filed in the Commonwealth Court of Pennsylvania on January 23 an application for an order placing SHIP in rehabilitation. On January 29, President Judge Mary Hannah Leavitt issued the order because "rehabilitation has been requested by and consented to by SHIP's board of directors and the trustees of the Senior Health Care Oversight Trust." (See IN RE: Senior Health Insurance Company of Pennsylvania In Rehabilitation, Commonwealth Court of Pennsylvania, No. 1 SHIP 2020.)

The Leavitt Order
Judge Leavitt appointed Commissioner Altman as rehabilitator of SHIP, and said the rehabilitator may appoint a special deputy rehabilitator. The judge ordered the rehabilitator to file a preliminary plan of rehabilitation on or before April 22, 2020, including a timeline for the preparation of a final plan of rehabilitation.

The 13-page order proposed by Commissioner Altman is in the complimentary package offered at the end of No. 352. The five-page order issued by Judge Leavitt is in the complimentary package offered at the end of this post.

The Department's Press Release
On February 3, 2020, the Pennsylvania Insurance Department (Department) issued a press release announcing the rehabilitation. It said the special deputy rehabilitator is Patrick H. Cantillo. It also said more information is available on the Department's website and on SHIP's website. The press release quoted Commissioner Altman as saying (the full press release is in the complimentary package offered at the end of this post):
At this time there will be no immediate changes to the company's insurance policies. But such changes may be part of any rehabilitation plan. Pending the rehabilitation plan, claims and benefits will continue to be paid as they were before the order. It is important that policyholders continue to pay their premiums to avoid cancellation of their policies and loss of valuable insurance coverage.
The SHIP Posting
SHIP, at www.shipltc.com/rehabilitation, posted information: a short statement from SHIP, general questions, policyholder questions, agent and broker questions, other creditor questions, and a modified version of the Department's press release. The modified version includes this paragraph (all the information SHIP posted is in the complimentary package offered at the end of this post):
As is typical with financially troubled insurers, there are many contributing causes to SHIP's difficulties, including poor performance of investments and other such matters the details of which are not yet fully known to the Rehabilitator. However, one key contributing factor that is common to many long-term care insurers is that the expected cost of benefits that will be due under the insurance policies in effect greatly exceeds the assets and expected revenues from which such benefits will have to be paid. Many issues contributed to this shortfall and it is too early for the Rehabilitator to be able to identify them with specificity. One that stands out, however, is that the premiums charged historically for many, if not most, of SHIP's long-term care insurance policies were inadequate for the benefits expected to be due under such policies. In this respect, SHIP is no different than much of the LTC industry.
The Judge
Judge Leavitt has extensive experience with rehabilitations and liquidations of long-term care (LTC) insurance companies. Currently she is President Judge of the Commonwealth Court of Pennsylvania, a position to which she was elected in 2016. My experience with her work dates back to May 2012, when she handed the then Pennsylvania commissioner and his predecessor a major defeat in the case of Penn Treaty Network America Insurance Company. Briefly, here is what happened.

Joel S. Ario was the Pennsylvania commissioner from 2007 to 2010, and Michael F. Consedine succeeded him. Penn Treaty and an affiliate, LTC insurance companies, were insolvent in January 2009. Ario petitioned the court to place them in rehabilitation. The court did so, and appointed Ario the rehabilitator. In April 2009, Ario submitted to the court a preliminary rehabilitation plan, and said he planned to submit a formal plan in October 2009. Instead he petitioned to convert the plan to a liquidation. Penn Treaty and its board chairman petitioned to allow them to intervene in opposition to the liquidation petition. The court granted the petition.

The parties tried unsuccessfully to reach a settlement. A bench trial before Judge Leavitt began in January 2011. The trial was suspended while the parties tried to reach a settlement. Again the effort failed and the trial resumed in October 2011. The trial lasted 30 days and ended in February 2012. Under Pennsylvania law, the rehabilitator (then Consedine) had to prove the rehabilitation would substantially increase the risk of loss to creditors, policyholders, or the public, or would be futile. In May 2012, Judge Leavitt issued a 162-page opinion and a brief order. She ruled Consedine had not met his burden of proof, and she denied the liquidation petition. She ordered Consedine to develop a rehabilitation plan in consultation with the intervenors, and ruled the intervenors were entitled to attorney fees and costs. Here are some extraordinary comments in Judge Leavitt's ruling:
The Insurance Commissioner, wearing his hat as a regulator of the Pennsylvania insurance industry, refused to approve the Companies' actuarially justified rate increase filings in the amount requested, both before and after rehabilitation. The Commissioner has even discouraged other state regulators from approving rate increases. Now the Commissioner seeks to liquidate the Companies because their premium rates are inadequate....
The Rehabilitator's evidence showed that rate regulation is governed by politics, not actuarial evidence or legal principles. The Rehabilitator has even included Pennsylvania in the list of problem states that have refused to approve [Penn Treaty's] actuarially justified rate increase filings for [certain] policies. This case presents a serious indictment of the existing system of rate regulation of long-term care insurance.
At the trial, the rehabilitator's actuarial expert was an actuary at Milliman, Inc., an actuarial consulting firm. There were major differences of opinion in 60-year projections by Milliman and the intervenors' actuary. Judge Leavitt found the testimony by the intervenors' actuary more compelling than Milliman's testimony.

I wrote about the Penn Treaty incident in the August 2012 issue of The Insurance Forum, the monthly newsletter I published from January 1974 until December 2013. The article is in the complimentary package offered at the end of this post. Judge Leavitt placed Penn Treaty in liquidation on March 1, 2017, as reported in No. 208 (March 13, 2017).

General Observations
I fear the proposed rehabilitation plan to be submitted to the court by April 22 will involve a devastating combination of premium increases and benefit reductions, including benefit reductions for policyholders currently receiving benefits. Furthermore, I consider it possible that Judge Leavitt will reject the plan, and that she will order liquidation of the company. That would lead to SHIP being placed in the hands of the National Organization of Life and Health Guaranty Associations, which would coordinate the response of the state guaranty associations.

Available Material
I am offering a complimentary 23-page PDF consisting of Judge Leavitt's order (5 pages), the Department's press release (1 page), the information posted on SHIP's website (15 pages), and the August 2012 Forum article (2 pages). Email jmbelth@gmail.com and ask for the February 2020 package about the SHIP rehabilitation.


Wednesday, February 5, 2020

No. 353: The Massachusetts Securities Division Files a Complaint Against the Promoter of Free Lunch Workshops

On December 17, 2019, the Enforcement Section of the Securities Division in the Office of the Massachusetts Secretary of the Commonwealth filed an administrative complaint against an insurance agent and two companies. The individual respondent is Ryan Patrick Skinner. The other respondents are Summit Financial Partners and Summit Financial Ptrs Inc. (collectively, "Summit"). (See In the Matter of Ryan Patrick Skinner, Massachusetts Securities Division, Docket No. E-2019-0055.)

The Complaint
The complaint alleges that Skinner "acted as an unregistered investment adviser and unregistered investor adviser representative," and that Summit "acted as an unregistered investment adviser that employed an unregistered investment adviser representative." Here is one paragraph in the "Summary" section of the complaint (the full compliant is in the complimentary package offered at the end of this post):
Respondents' modus operandi is to entice residents of the Commonwealth, especially seniors, to attend "free lunch" workshops where Skinner convinces the attendees that he can provide advice to help them maximize their Social Security and retirement income. He then holds individual meetings with the attendees, often at their homes, and uses these meetings as an opportunity to make his pitch. Skinner repeatedly recommends that prospective clients liquidate securities from their retirement investment accounts to purchase fixed indexed annuities. In many instances, Skinner recommends that prospective clients surrender existing annuities thereby incurring significant penalties. In some cases Skinner recommends that an investor's entire life savings consist of annuities sold through him.
The Answer
On January 7, 2020, the respondents' attorney filed an answer to the complaint. The answer includes the usual "admit," "deny," and "insufficient knowledge" responses. It also lists eight affirmative defenses, one of which reads as follows (the full answer is in the complimentary package offered at the end of this post):
The claims are barred because the Respondents lie within the exclusive jurisdiction of the Division of Insurance in accordance with Mass. Gen. Laws ch. 155 section 9 and Mass. Gen. Laws ch. 175 section 162G et. seq.
Further Filings
On January 16, the respondents' attorney filed a letter with the Securities Division. The letter consists of one paragraph:
As you know, Ryan Skinner ("Skinner") and Summit Financial Partners Inc. ("Summit") hold licenses in good standing with the Massachusetts Division of Insurance ("DOI"), and both remain subject to supervision and enforcement by DOI. It has come to my clients' attention that the Enforcement Section has contacted Athene Life and Annuity Co. and other carriers with whom Skinner and Summit hold appointments. If true, please identify the authority upon which the Enforcement Section relies in doing so. Please be advised that Skinner and Summit do hereby reserve all rights, including the right to seek injunctive relief in Superior Court, to protect its appointments and licenses, and to enjoin any unlawful interference with its contractual relations.
On the same day, the respondents' attorney filed a "Stipulation Relative to Scheduling" that suggested eleven deadlines ending with a hearing on October 16, 2020. He also filed a "Respondents' First Request for Production of Documents."

On January 23, the Enforcement Section filed a motion for a scheduling conference. The next day, the Presiding Officer, on behalf of William F. Galvin, Secretary of the Commonwealth, issued an order setting a pre-hearing conference for February 13, 2020.

A report on Skinner (CRD# 4574898) may be viewed through Broker Check on the website of the Financial Industry Regulatory Authority (www.finra.org). He is currently not registered, but was registered with four firms from 2002 through 2008. The report reveals three "disclosure events," the details of which are shown in the report.

One of the disclosure events was initiated by the Massachusetts Division of Insurance (DOI) on February 5, 2016. The matter was resolved on March 17, 2016, when Skinner paid a civil and administrative penalty of $2,500. 

Division of Insurance
I have been in contact with the Massachusetts Division of Insurance (DOI). It is aware of the recent allegations by the Securities Division against Skinner, and has opened an investigation of its own. The spokesperson declined further comment on the matter.

On January 31, I requested from the DOI records access officer, pursuant to the Massachusetts statute governing access to public records, copies of the dockets relating to the 2016 investigation of Skinner and the current investigation of Skinner, as well as all documents listed on those dockets. I await a reply.

Insurance and Securities Regulation
I have long been interested in the relationship and overlap between insurance regulation and securities regulation. The reference in this post to Secretary of the Commonwealth Galvin, who has been in that position for many years, reminded me of an incident more than 20 years ago, when Boston-based John Hancock Mutual Life Insurance Company adopted a demutualization plan. Boston newspapers reported that a huge number of notification letters to Hancock policyholders were returned by the postal service as undeliverable. Galvin intervened because the Massachusetts unclaimed property agency was part of the office of the Secretary of the Commonwealth, and the amount of unclaimed funds was likely to be huge. Insurance regulators and other states' unclaimed property agencies tackled the issue of unpaid benefits later, but it was Galvin who led the way.

General Observations
Free-lunch seminars have been a serious problem for many years. I remember attending a couple of such seminars, and coming away from them appalled by the extent of the deceptive information presented to the attendees, most of whom were gullible seniors. I plan to report further on the Skinner case and other possible future developments.

Available Material
I am offering a complimentary 24-page PDF consisting of the complaint filed by the Securities Division (18 pages) and the answer filed by the respondents' attorney (6 pages). Send an email to jmbelth@gmail.com and ask for the February 2020 package about the Massachusetts complaint against Skinner.