Publisher Law Journal Press anticipates a Spring 2014 distribution date for hard copy supplements for Release 55 of "Structured Settlements and Periodic Payment Judgments" (S2P2J) with online S2P2J subscribers receiving their update automatically and simultaneously. Online S2P2J includes a search feature and download capability as well as link features to access individual book sections, appendices, footnotes, cases and statutes.
First published in 1986 and updated semi-annually, S2P2J is co-authored by Daniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert (S2KM's Managing Director). Both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) have utilized S2P2J as an educational resource for their certification programs.
Release 55 Highlights - Release 55 will feature new, updated and/or expanded sections for the following topics:
- Risks of using off-shore companies and re-cycled structured settlements to fund qualified assignments.
- Meeting professional responsibilities for product disclosures.
- Subrogation rights impacting structured settlements.
- Choice of law provisions for attorney compensation.
- Medicaid liens and the 2013 Bipartisan Budget Act.
- How the Brenston case impacts transfer applications.
- Document drafting and anti-assignment restrictions.
- Vermont's structured settlement protection act amendments.
Meta Structured Settlement Themes
Reviewing S2P2J Release 55 and other recent S2P2J highlights, S2KM notes two related structured settlement meta themes:
- Transformational market developments.
- Changing roles, responsibilities and work product.
Transformational Market Developments
A growing dichotomy exists between stagnant primary market sales and multiple, ongoing transformational developments impacting the structured settlement market - the most significant of which are addressed in S2P2J Chapter 15 ("Government Benefits and Structured Settlements") and Chapter 16 ("Transfers of Structured Settlement Payment Rights").
Supplemental resources - structured settlement market developments:
- Recent and upcoming structured settlement, settlement planning and special needs educational conferences.
- S2KM's 2013 structured settlement industry reports:
- S2KM's 2014 structured settlement market updates:
Changing Roles, Responsibilities and Work Product
The transformational market developments outlined above are causing and requiring significant changes to structured settlement roles, responsibilities and work product.
These changes feature more prominent roles for new professional stakeholders (settlement planners, special needs planners, settlement trustees, lien resolution specialists, damage allocators, factoring companies, secondary market brokers and attorneys) as well as adjustments for traditional professional stakeholders (defense and plaintiff attorneys, defendants and liability insurers, structured settlement consultants and annuity providers, judges, mediators, and guardians).
Defense and Plaintiff Attorneys
The original S2P2J publication (1986) included comprehensive chapters detailing respectively the roles and responsibilities of defense attorneys (Chapter 4) and plaintiff attorneys (Chapter 5) in structured settlements. These chapters continue to be updated reflecting new legislative and regulatory developments as well as changing business models and practices.
Release 54, for example, substantially expanded and re-organized S2P2J's coverage of defendant structured settlement disclosure issues. Release 55 enumerates a list of "best practices" for defense attorneys and includes a new structured settlement Appendix document to disclose material information about the costs, commissions and other elements of case specific funding. Release 55 also identifies and summarizes new structured settlement case law related to plaintiff attorney settlement planning, compensation and document drafting responsibilities.
Structured Settlement Consultants
Release 54 expanded and updated S2P2J's existing coverage (Section 6.02) of structured settlement consultants to address: consultant selection criteria; structured settlement product suitability; and consultant business practice issues including laws and regulations, industry standards, commission disputes, privacy rules, and disclosure and representation requirements.
Release 55 adds, as a new Appendix document, the SSP "Standards of Professional Conduct for Settlement Planners" which SSP describes as "rules of reason ... intended to impose high standards on professional settlement planners" including structured settlement consultants.
S2KM's recent summary of the AAJ 2014 Winter Meeting highlighted continuing concerns about structured settlement business standards and practices including:
- Questions about product suitability, disclosure standards and informed consent in the context of expanding structured settlement product and service offerings.
- Misrepresentations in structured settlement sales materials plus a general failure of these same sales materials to provide any information about the transfer issues.
Judges Reviewing Transfer Applications
The recent Settlement Planning v. Brenston and Sanders v. JGWPT Holdings cases highlight changing standards for judicial review of anti-assignment restrictions. S2P2J Chapter 16 ("Transfers of Structured Settlement Payment Rights") already includes an entire section discussing "Judicial Review of Transfer Applications" plus detailed analysis of structured settlement anti-assignment restrictions (Sections 16.02[c] and [d] and 16.05[c]).
Release 55 expands S2P2J's anti-assignment analysis concluding that recent court decisions "should cause judges reviewing transfer petitions to require the full text of structured settlement documentation to see if an anti-assignment provision is present. Without such information, transfer approvals are subject to being found to be void ab initio and thus open to invalidation at any time."
S2P2J also features, as an Appendix document, NSSTA's Annotated and Non-annotated Model Qualified Assignment and Release Agreement. NSSTA's Model Agreement includes recommended language (Paragraph 7 - "Acceleration, Transfer of Payment Rights") for addressing anti-assignment issues in the context of IRC Section 5891 and the state structured settlement protection acts.