Monday, April 27, 2020

No. 367: The New York Department Comes Down on Athene, Lincoln, MassMutual, and Pacific Life

In April 2020, the New York State Department of Financial Services (Department) entered into four separate consent orders with Athene Annuity and Life Company and Athene Holding, Ltd. (together, Athene); Lincoln Life & Annuity Company of New York (Lincoln); Massachusetts Mutual Life Insurance Company (MassMutual); and Pacific Life & Annuity Company (Pacific Life). Here I briefly discuss the cases.

The Athene case involves the question of whether the company, in its pension risk transfer (PRT) business, was doing business in New York State without a license. In recent years many major employers have been seeking to shed some or all of their obligations to active and/or retired employees. To do so, they have entered into PRT arrangements. Much of the PRT activity involves major insurance companies such as The Prudential Insurance Company of America and Metropolitan Life Insurance Company. Problems at such companies sometimes arise in their PRT business. For two examples, see No. 293 and No. 301.

In January 2019, the Department began an investigation of Athene covering the period from 2017 to January 2019. The Department concluded that the company had been doing business in New York State without a license. The consent order with Athene explains the Department's findings, describes the injunctive relief, and mentions the imposition of a civil monetary penalty of $45 million. The consent order is in the complimentary package offered at the end of this post.

Lincoln, MassMutual, and Pacific Life
The other three cases involve the question of whether the companies violated New York regulations in the process of replacing deferred annuity contracts with immediate income annuity contracts. The Department conducted investigations of Lincoln, MassMutual, and Pacific Life. In separate consent orders, the Department found violations of the disclosure and suitability requirements in Regulations 60 and 187. The consent orders are in the complimentary package offered at the end of this post.

In the Lincoln case, the investigation covered the period from January 1, 2011 to March 31, 2019. The Department imposed a civil monetary penalty of $510,000 and obtained injunctive relief in the form of remediation and restitution.

In the MassMutual case, the investigation covered the period from January 1, 2012 to May 31, 2018. The Department imposed a civil monetary penalty of $692,000 and obtained injunctive relief in the form of remediation and restitution.

In the Pacific Life case, the investigation covered the period from January 1, 2012 to April 30, 2018. The Department imposed a civil monetary penalty of $172,000 and obtained injunctive relief in the form of remediation and restitution.

General Observations
The PRT business involves the exchange of large amounts of long-term liabilities and large amounts of long-term assets. It is worrisome that Athene, part of a private equity organization interested in short-term rather than long-term profits, is involved in the PRT business. As for the other three companies discussed in this post, the consent orders involve violations of Department replacement regulations.

New York State Superintendent of Financial Services Linda A. Lacewell and her Department obviously have remained hard at work in spite of the COVID-19 pandemic. I for one am grateful to her and her staff for their efforts under very difficult circumstances.

Available Material
I am offering a complimentary 63-page PDF consisting of the consent order with Athene (15 pages), the consent order with Lincoln (16 pages), the consent order with MassMutual (16 pages), and the consent order with Pacific Life (16 pages). Email and ask for the April 2020 package relating to the New York consent orders.


Wednesday, April 22, 2020

No. 366: Voter Suppression by Wisconsin Republicans and the Conservative Majority of the U.S. Supreme Court

On April 7, 2020, Wisconsin held its primary election as scheduled in the midst of the COVID-19 pandemic. What happened was a dangerous, irresponsible case of voter suppression. Here I describe the incident.

The Wisconsin Primary
On the ballots were presidential preferences (Sanders withdrew after the primary), a Wisconsin Supreme Court seat held by a Republican whose reelection was supported by President Trump (the incumbent lost in the primary), an amendment to the Wisconsin Constitution, many local referenda, more than 100 other judgeships, and thousands of county, city, village, town, school district, and other positions.

On April 2, a Wisconsin federal district court judge extended by six days the deadline for receipt of absentee ballots and relaxed certain other requirements relating to absentee ballots. Republicans immediately appealed to the U.S. Seventh Circuit Court of Appeals, which allowed the federal district court judge's ruling to stand.

On April 3, Democratic Governor Tony Evers called a special session of the legislature to act on legislation to allow Wisconsin voters to vote safely by mail. On April 4, the legislature, without acting on the legislation, and with no discussion or debate, adjourned within seconds after convening.

The Governor's Executive Order
On April 6, Governor Evers, because of the COVID-19 pandemic, issued Executive Order #74 suspending in-person voting until June 9. The order is in the complimentary package offered at the end of this post.

The U.S. Supreme Court
After the Seventh Circuit allowed the federal district court judge's ruling to stand, the Republican National Committee asked the U.S. Supreme Court for a stay of the ruling. The Democratic National Committee opposed the stay. On April 6, the U.S. Supreme Court, in a 5-4 ruling, granted the stay. The application for a stay went initially to Justice Kavanaugh because he is the justice designated to receive applications after rulings emanating from the Seventh Circuit.

The Majority Opinion
It is not known who wrote the majority opinion, because it was issued Per Curiam, or "for the Court." Here, without citations, are the first paragraph, the first three sentences of the second paragraph, and the next-to-last paragraph of the majority opinion (the full majority opinion is in the complimentary package offered at the end of this post):
The application for stay presented to Justice Kavanaugh and by him referred to the Court is granted. The District Court's order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020.
Wisconsin has decided to proceed with the elections scheduled for April 7, 2020. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process....
The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate. That point cannot be stressed enough.
The Dissenting Opinion
The dissenting opinion, also on April 6, was written by Justice Ginsburg. Justices Breyer, Sotomayor, and Kagan joined in the dissent. Here, without citations, are the first and last paragraphs of the dissenting opinion (the full dissenting opinion is in the complimentary package offered at the end of this post):
The District Court, acting in view of the dramatically evolving COVID-19 pandemic, entered a preliminary injunction to safeguard the ability of absentee voting in Wisconsin's spring election. The Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court's disposition, which the Seventh Circuit allowed to stand....
The majority of this Court declares that this case presents a "narrow, technical question." That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court's order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority's stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others' safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin's citizens, the integrity of the State's election process, and in this most extraordinary time, the health of the Nation.
A Bill Introduced in the U.S. Senate
On March 18, 2020, U.S. Senator Klobuchar (D-MN) issued a press release announcing she and U.S. Senator Wyden (D-OR) had that day introduced the "Natural Disaster and Emergency Ballot Act" (NDEBA). The bill had 29 cosponsors—28 Democrats and one Independent (Sanders). The NDEBA was introduced amid confusion over whether the Ohio primary would be postponed, and over whether there would be delayed primaries in two other states. The introduction of the bill preceded the Wisconsin primary. The NDEBA would provide, among other things, expansion of early in-person voting and use of printable ballots currently available only to military and overseas voters. The press release is in the complimentary package offered at the end of this post.

General Observations
Rocket science is not needed to estimate the probability that the NDEBA will pass in the Republican-controlled Senate. The probability is zero. President Trump has said mass voting by mail would mean no Republican would ever be elected. Therefore, a veto-proof majority in the Senate would be needed.

Our nation has always engaged in voter suppression. One need look no further than Thomas Jefferson's lofty words about all men being created equal and consider what it took for women, former slaves, and others to win the right to vote.

For many years it was southern Democrats and the Ku Klux Klan who fought to suppress voting by African Americans. It is not hard to imagine the shock when a southern Democratic President named Lyndon Johnson rammed through Congress the Voting Rights Act of 1965. Since then, conservatives have succeeded in many efforts to weaken the law.

In recent years it has been the Republicans who have embraced voter suppression on the theory that they are more likely to win elections when voter turnout is small. The Wisconsin fiasco, where voters had to stand in long waiting lines six feet apart for hours in on-and-off rain and sleet will not be forgotten any time soon.

The Wisconsin primary is a precursor of what may happen in the November 2020 presidential election. Wisconsin Republicans have demonstrated they are willing to force voters to risk exposure to serious illness and even death to exercise their right to vote. What we may witness in November will be a brazen and irresponsible example of voter suppression.

A Recent News Story
In the morning on April 21, NBC News reporter Alex Seitz-Wald ran a story about the Wisconsin primary. Here is the opening sentence:
Officials have identified seven people [six voters and one poll worker] who appear to have contracted the coronavirus through activities related to the April 7 election in Wisconsin, Milwaukee's health commissioner said, and advocates worry it could be just the "tip of the iceberg."
Available Material
I am offering a complimentary 18-page PDF consisting of the Wisconsin governor's executive order (4 pages), the majority opinion in the U.S. Supreme Court (4 pages), the dissenting opinion in the U.S. Supreme Court (6 pages), and the press release about the NDEBA (4 pages). Email and ask for the April 2020 package about the Wisconsin primary.


Wednesday, April 15, 2020

No. 365: David Rubenstein's Fascinating Book

David M. Rubenstein is co-founder and co-executive chairman of the Carlyle Group and a prominent philanthropist. In October 2019, Simon & Shuster published his book entitled The American Story: Conversations with Master Historians. The book consists of 15 conversations with prominent historians about important figures in American history, and a conversation with Chief Justice John G. Roberts Jr. about the U.S. Supreme Court. Here is the list:
Jack D. Warren Jr. on George Washington
David McCullough on John Adams
Jon Meacham on Thomas Jefferson
Ron Chernow on Alexander Hamilton
Walter Isaacson on Benjamin Franklin
Cokie Roberts on Founding Mothers
Doris Kearns Goodwin on Abraham Lincoln
A. Scott Berg on Charles Lindbergh
Jay Winik on Franklin Delano Roosevelt
Jean Edward Smith on Dwight D. Eisenhower
Richard Reaves on John F. Kennedy
Taylor Branch on Martin Luther King Jr. and the Civil Rights Movement
Robert A. Caro on Lyndon B. Johnson
Bob Woodward on Richard M. Nixon and Executive Power
H. W. Brands on Ronald Reagan
Chief Justice John G. Roberts Jr. on the U.S. Supreme Court
David McCullough
When I acquired Rubenstein's book, I could not resist the temptation to start with his conversations with two of my favorite writers: David McCullough and Robert Caro. McCullough received Pulitzer Prizes for his magnificent biographies of Harry Truman and John Adams. Here is a small part of Rubenstein's conversation with McCullough about Adams:
In addition to being the most ardent advocate for independence, Adams made two decisions. He recommended somebody to be the general of the army for the American colonies and somebody to write the Declaration of Independence. Why did he pick George Washington and why did he pick Thomas Jefferson?
He picked Thomas Jefferson because he felt he was the best writer. And he liked him very much and admired him very much.
Washington was a clear choice. There wasn't really much mystery about that. There were so very few to choose from, and they were all young in their thirties or early forties, with no experience. They'd never done this before; none of them had. And it's just miraculous out of this tiny population—2,500,000 people and 500,000 of them were slaves held in bondage. Couldn't vote, had no say.
One of the most important virtues or admirable qualities that we all should know and understand about John Adams is he's the only Founding Father to become president who never owned a slave. As a matter of principle. And [his wife] Abigail was staunchly of that same point of view. The slaves weren't all in the South. They were sort of a status symbol in Boston, and you had servants who were slaves. That was the thing to have.
[Adams] was not an abolitionist, though?
No, he wasn't. Nobody was making an issue of that at the time because they had determined that "we can't solve this one now—we've got to sidestep that." They were really putting in the closet an issue they knew eventually had to be solved.
Robert Caro
Caro has received two Pulitzer Prizes. The first was for his towering biography of Robert Moses, the little known but hugely powerful shaper of New York City. The second was for the third of the first four volumes in his as yet unfinished monumental biography of Lyndon Johnson. Here is a small part of Rubenstein's conversation with Caro about Johnson:
We've largely covered the four volumes of The Years of Lyndon Johnson that you've written. With the beginning of the Johnson administration, you end the fourth volume. When is volume 5 coming out? Is it going to be one volume or two volumes?
Well, you're ruining this terrific interview. I'm about halfway through.
You do all your research and then you write—or type—on your Smith-Corona?
That's in theory true, but when you get into each chapter, you suddenly realize that some file that you had thought wasn't important at the Johnson Presidential Library is key. So you have to go back and look into it.
I want the last book to be in one volume. I'll tell you why: because the arc of Lyndon Johnson's presidency is one arc. He starts with the greatest victory in the history of American politics—to this day, still. Sixty-one-point-one percent over Barry Goldwater, his Republican opponent in the 1964 presidential election.
So he starts with the greatest triumph you can imagine. By the end of it, Vietnam has consumed his presidency, and he has to leave office and go back to his ranch. I want that all to be in one book because I see it as one story....
Lyndon Johnson died of a heart attack at the age of sixty-four, relatively young. Would he have been able to survive with modern medical technology?
I asked his cardiologist that very question. He said, "We could have fixed him in a half-hour angioplasty."
I then read the other 14 sections of the Rubenstein book with great interest. I found the book fascinating, and strongly recommend it.


Friday, April 10, 2020

No. 364: The Texas Securities Commissioner Issues an Emergency Cease and Desist Order Against a Florida Promoter

On April 3, 2020, Texas Securities Commissioner Travis J. Iles issued an Emergency Cease and Desist Order against James Frederick Walsh (Boca Raton, FL). Given the COVID-19 pandemic, the allegations in the Order are astounding. According to the final section of the Order, Walsh has 31 days to request a hearing. Any knowing violation of the Order is a criminal offense punishable by a fine of not more than $10,000, or imprisonment for two to ten years, or by both such fine and imprisonment. The seven-page Order is here.


Wednesday, April 8, 2020

No. 363: Scott Witt's Views on Indexed Universal Life

In No. 314 (May 29, 2019), I presented the views of two prominent professionals on indexed universal life (IUL) policies: Lawrence J. Rybka, JD, CFP; and Richard Weber, MBA, CLU, AEP. In that post I said I have never written about IUL and explained why. I do not understand IUL policies well enough to feel comfortable writing about them, and I have always avoided writing about topics I do not understand.

Scott Witt
Scott Witt, FSA, MAAA, is a fee-only insurance advisor and a Financial Services Affiliate member of the National Association of Personal Financial Advisors. He was born and raised in Montana and graduated from Montana Tech in 1993 with a dual major in Mathematics and Computer Science. He received a Master's degree in Statistics from Oregon State University in 1994. He started his career at Northwestern Mutual, where he worked in various actuarial roles for more than ten years. Areas of expertise and responsibility included life insurance pricing, risk management, valuation, mortality studies, and marketing. Before he founded his firm, he worked for Katt & Company, one of the nation's first fee-only insurance advisors. Additional biographical information is on his firm's website at

I have known Witt for many years, and hold him in very high regard. Some time back we discussed the idea of his expressing his views on IUL. He agreed, and the result is "A Critical Review of Indexed Universal Life." It is in the complimentary package offered at the end of this post.

Witt's Views on IUL
Witt's seven-page, single-spaced review of IUL begins with an introductory paragraph. It reads:
Indexed Universal Life (IUL) has long been touted as a product that provides upside potential with downside protection. With the precipitous market decline in the first quarter of 2020 caused by COVID-19, this is no doubt a great opportunity for those who sold or purchased IUL products to take a victory lap. But should they be celebrating? And more broadly, are IUL products everything they are cracked up to be?
The next section of Witt's review consists of four paragraphs entitled "Understanding IUL Policy Mechanics." The section also includes four "critical observations to understand about the IUL policy mechanics."

The third section, a long one, is entitled "Do IUL Policies Provide an Upgrade Over a Good Whole Life Policy?" The first paragraph reads:
In my opinion, no. They certainly look good on paper, and you can contrive situations where an IUL policy can perform well for short (or even relatively long) periods of time, but over the long haul I do not believe a compelling case can be made for an IUL policy outperforming a whole life policy from a good carrier (say a highly rated mutual insurance company)—particularly if the whole life policy were optimized to reduce agent compensation and maximize policy efficiency.
The third section includes ten numbered and detailed discussions of "issues with many IUL illustrations." The fourth section is entitled "Do IUL Policies Have an Investment Advantage Over Whole Life Policies?" The fifth section is entitled "Premium Financing—Even More Leveraging."

The "Conclusion" has three paragraphs. The first paragraph reads:
When you put it all together, many IUL illustrations resemble a house of cards. When you inject heavy internal borrowing into the illustration (using a favorable and potentially unsustainable arbitrage assumption), you now have another house of cards put on top of the first house of cards. (And for those that are so inclined, you can add another house of cards by introducing premium financing into the mix.)
General Observations
I am impressed by Witt's views on IUL. One point I found especially interesting, discussed in the third paragraph of the fourth section of his review, is how the current illustration rules favor IUL policies over whole life policies.

In my opinion, IUL is a product that is sold by agents who do not fully understand it to clients who do not fully understand it. It will be interesting to see what IUL promoters—insurance companies, marketing organizations, and agents—have to say about Witt's views. I would welcome thoughtful comments from them and others.

Available Material
In No. 314 I offered a complimentary 37-page package containing the views of Rybka and Weber on IUL. That May 2019 package remains available.

Now I offer a complimentary seven-page PDF containing Witt's views on IUL. Send an email to and ask for the April 2020 package showing Witt's views on IUL.