Beyond Structured Settlements

ELNY Notice of Appeal

Attorney Edward Stone has filed a Notice of Appeal with the Appellate Division of the Supreme Court of the State of New York, Second Department, challenging the Executive Life of New York (ELNY) Order of Liquidation and Approval of the ELNY Restructuring Agreement signed by New York State Supreme Court Judge John M. Galasso on April 16, 2012.

The appeal, filed May 30, 2012 on behalf of 18 ELNY structured settlement shortfall victims as objectors:

• Alleges Judge Galasso "erroneously denied objectors' request to reject the proposed agreement of restructuring in connection with the [ELNY] liquidation";
• Further alleges Judge Galasso's order:
  • "[I]mproperly grants and/or continues certain injunctions and immunities and discriminates against the objectors";
  • "[C]reates impermissible sub-classes of claimants"; and
  • "[R]eflects the courts erroneous denial of objectors' requests to adjourn the hearing ... due to a lack of proper notice of such hearing."
• Seeks to compel:
  • The Superintendent of the New York State Department of Financial Services (Superintendent), as ELNY's rehabilitator, "to provide certain discovery necessary to, among other things, allow objectors to demonstrate why the plan should not be approved and submit a viable competing restructuring plan";
  • Judge Galasso "to unseal certain documents submitted to the court by the rehabilitator"; and
• Further seeks to allow the objectors "to present evidence (in the form of live testimony by certain witnesses) rebutting the receiver's experts and otherwise showing that the proposed-liquidation plan should not have been approved."

In an exclusive interview with S2KM, Attorney Stone characterized the appeal as "the next step in a crusade by some of the ELNY shortfall victims against an unfair and discriminatory restructuring plan".

Stone added: "Judge Galasso's decision came as no surprise as the Liquidation proceedings were carefully orchestrated to yield a predetermined result" according to Stone. No one who attended the hearing actually believed that the objectors had a chance to prevent the Superintendent from pushing through its plan."

Stone alleges:

• Objectors were "denied the right to call witnesses and were repeatedly rebuffed in their efforts to obtain critical data used by the Superintendent's actuaries to project future liabilities."
• Judge Galasso "ordered injunctions and immunities to continue what appears to be a massive coverup. The New York Liquidation Bureau took a solvent life insurance company and rendered it insolvent at the expense of the shortfall victims. Why is the Bureau entitled to a free pass after decades of waste and mismanagement?"

Stone said he hopes the New York State Supreme Court Appellate Division will "set the record straight" and provide ELNY shortfall victims access to the data used by the Superintendent and NOLHGA to formulate the proposed ELNY restructuring plan approved by Judge Galasso.

"I am convinced that my team can quickly come up with a better plan that is less discriminatory if we are allowed access to original source materials containing the real ELNY payment schedules," Stone stated. "This data should have been made available to the shortfall victims."

For S2KM's complete and continuing reporting about the Executive Life of New York Liquidation, see the structured settlement wiki.

ELNY Hardship Fund - 2

Anticipated appeals of the Order of Liquidation and Approval of the Executive Life of New York (ELNY) Restructuring Agreement by shortfall victims will neither delay the administration of Hardship Fund applications nor cause the Hardship Fund to discriminate against ELNY shortfall victims who participate in such appeals according to recent changes made to the ELNY Hardship Fund website.

Responding to concerns of ELNY shortfall victims, as reported in this prior S2KM blog post, JAMS, as Manager of the ELNY Hardship Fund, has added the following statements to the ELNY Hardship Fund website:

• "Some payees may decide to appeal Judge Galasso’s April 16 decision to approve the ELNY liquidation plan. Participation in the appeals process will not be a factor in decisions JAMS makes about the distribution of money from the fund to eligible payees."
• "Because JAMS is not a party to the court proceedings or any appeal of the court’s order and because JAMS intends to administer the Hardship Fund in an expeditious manner, the preparation, mailing and review of the applications will not be delayed by those court proceedings."

The revised ELNY Hardship Fund website, however, still includes this important proviso: "The Hardship Fund, while not part of the restructuring plan approved by the court, is contingent upon its final approval. In the event Judge Galasso’s decision is appealed and the liquidation order is rejected, the conditions for establishing the Hardship Fund will not be met and no payments from it will be available."

A representative of JAMS has informed S2KM that JAMS' ELNY Mission is "to develop and execute a Hardship Fund process based upon the following values: transparency, fairness, respect, ethics, and excellence." JAMS' current ELNY priority, according to this representative, is to develop the guidelines and application process for the Hardship Fund.

For complete and continuing S2KM reporting about the ELNY liquidation, see the structured settlement wiki.

Structured Settlements and Settlement Planning

Selected video presentations from the Risk Settlement Planning Practicum are now posted online including Patrick Hindert's "History of Structured Settlements".  The conference, hosted April 13-14, 2012 by the University of Tulsa College of Law and attended by attorneys and law students, is believed to be the first law school conference about settlement planning.

Additional practicum presenters and topics - with online video links when available:

• Richard Risk - Introduction
• Joseph Tombs - Overview of Settlement Planning
• Professor Carl Pierce - Standards of Professional Conduct
• Jack Meligan - Pitfalls in Settlement Planning
• Jeremy Babener - Taxation in Personal Injury Cases
• Mark Popolizio - How Medicare Impacts Settlement Planning

Hindert, Managing Director of The Settlement Services Group (TSSG), primary author of "Beyond Structured Settlements" and co-author of "Structured Settlements and Periodic Payment Judgments" (S2P2J) provided a 75 minute discussion explaining the historical and evolutionary relationship between structured settlements and settlement planning. The discussion featured  diagrams by Timothy Morbach:

• Traditional Structured Settlement Funding
• Structured Settlement History
• Settlement Planning - with Structured Settlement Funding
• Structured Settlement Transfer

Hindert's discussion:

• Portrayed settlement planning as an emergent system with structured settlements as a core component.
• Highlighted increasing complexity and variations within the structured settlement life cycle.
• Emphasized the concomitant need for compliance and accountability to satisfy changing legislative and regulatory requirements.
• Specifically addressed: qualified settlement funds; special needs trusts; structured settlement transfers; and the ELNY liquidation.

ELNY Losses by State

The anticipated shortfalls resulting from the liquidation of Executive Life of New York (ELNY) are expected to total $920,641,977 on a present value basis - assuming promised state guarantee association payments and enhancements but prior to any possible payments from the ELNY Hardship Fund and/or from structured settlement defendants who negotiated and promised to pay future periodic payments funded with ELNY annuities.

To make matters worse for anticipated ELNY shortfall payees, most of whom are personal injury victims, the entire anticipated $920,641,977 shortfall will be allocated among approximately 15 percent of the ELNY annuitants - an average present value loss of more than $600,000 per annuitant. The remaining ELNY annuitants are not expected to experience any reduction in their payments.

How are the anticipated ELNY shortfall distributed by state based upon the current residence of ELNY shortfall payees?

Daniel Hindert, co-author of "Structured Settlements and Periodic Payment Judgments" (S2P2J), provided a state-specific analysis of total anticipated ELNY shortfall losses as part of his presentation ("How the ELNY Liquidation Impacts Settlement Planners") at the Society of Settlement Planners (SSP) 2012 Annual Meeting. Hindert based his SSP comments on a spreadsheet analysis of Schedule 1.15, now posted on the structured settlement wiki, which was compiled by attorney Edward Stone and his audit team.

According to Stone's spreadsheet analysis, here are the 10 states whose residents will suffer the largest cumulative ELNY losses:

1. California

• $343,098,363 - Annuity present value
• $173,929,372 - Benefits cut
• 51% - Percentage cut

2. New York

• $217,671,882 - Annuity present value
• $94,996,566 - Benefits cut
• 44% - Percentage cut

3. Michigan

• $191,758,830 - Annuity present value
• $91,966,861 - Benefits cut
• 48% - Percentage cut

4. Florida

• $176,892,255 - Annuity present value
• $89,379,868 - Benefits cut
• 51% - Percentage cut

5. New Jersey

• $157,708,648 - Annuity present value
• $69,892,957 - Benefits cut
• 44% - Percentage cut

6. Texas

• $107,503,620 - Annuity present value
• $44,750,691 - Benefits cut
• 42% - Percentage cut

7. Pennsylvania

• $76,571,781 - Annuity present value
• $32,737,043 - Benefits cut
• 43% - Percentage cut

8. Ohio

• $74,494,174 - Annuity present value
• $34,796,854 - Benefits cut
• 47% - Percentage cut

9. Washington

• $53,108,488 - Annuity present value
• $26,861,644 - Benefits cut
• 51% - Percentage cut

10. Georgia

• $44,179,076 - Annuity present value
• $20,097,401 - Benefits cut
• 45% - Percentage cut

ELNY Hardship Fund

Will the Executive Life of New York (ELNY) Hardship Fund discriminate against individual ELNY shortfall victims if they attempt to appeal the Order of Liquidation and Approval of the ELNY Restructuring Agreement signed by Judge John Galasso on April 16, 2012?

Some ELNY shortfall victims and their attorneys think so. They interpret statements on the ELNY Hardship Fund website as a threat, intentional or unintentional, to prevent them from exercising their constitutional right to appeal. As background for their concerns, see:

• The ELNY Due Process Issue
• The ELNY Immunity Issue
• Mixed ELNY Reactions

The ELNY Hardship Fund statements in question:

"The life insurance industry has voluntarily committed to establishing a $100 million 'Hardship Fund' to assist those people most affected by ELNY’s liquidation. While the Hardship Fund will not fully address the problems arising from ELNY’s liquidation, it aims to mitigate the financial impact on those payees with the greatest need. The Hardship Fund, while not part of the restructuring plan approved by the court, is contingent upon its final approval. In the event Judge Galasso’s decision is appealed and the liquidation order is rejected, the conditions for establishing the Hardship Fund will not be met and no payments from it will be available." (emphasis added).

AND

"Payees who are expected to have their benefit payments reduced will receive an application packet from JAMS. It will include a questionnaire and request for certain documentation such as medical records and information about sources of income. Additional information and conditions may be required to complete the application. With the information you provide, JAMS will determine how to distribute the Hardship Fund’s resources, based on eligibility guidelines as developed by JAMS." (emphasis added).

These statements are repeated in an "Informal Notice" from JAMS, the ELNY Hardship Fund Administrator, mailed to ELNY shortfall victims on April 27, 2012.

The question now being asked by some ELNY victims and their attorneys: "Will the 'eligibility guidelines', developed by JAMS with input from contributing life insurance companies, discriminate against (blackball) ELNY shortfall victims who attempt to appeal Judge Galasso's Order."

Speaking for the ELNY structured settlement shortfall victims he represents, attorney Edward Stone states: "These statements represent another strong arm tactic to try to prevent ELNY shortfall victims from pursuing their constitutional rights."

To protect against Hardship Fund recriminations, the following quotes from ELNY structured settlement shortfall victims are printed anonymously:

• "The 'hardship fund' is a joke intended to save face for the annuity industry which has completely failed to stand behind the annuitants, each of whom was promised 'guaranteed lifetime benefits.' Only 1500 out of the 10,000 ELNY annuitants are suffering losses under this absurd plan. They should be spreading the losses equally among all 10,000 persons who bought these annuities. No hardship fund will correct that injustice. Rather than have JAMS churning fees deciding winners and losers, where absolutely every shortfall payee is suffering a severe hardship, better to save the JAMS overhead and simply give each of the 1500 annuitants $66,600, and close down the fund."
• "The message in the Hardship Fund letter is loud and clear: if we appeal and win, funds allotted to the Hardship Fund will no longer be available. We are unequivocally being asked to accept our losses on their terms. Big brother in this context is a big bully stripping 1,500 of us of our constitutional rights and denying us the ability to defend the financial security we were once promised."
• "I am one of the ELNY shortfall victims. My settlement resulted from medical malpractice when I was a baby.  I was born prematurely, and suffered severe visual impairments due to negligence.  I also have hearing impairments.  I am going to lose 53% of what was promised to me all those years ago.  I am terrified to figure out how in the world I am going to take care of myself and 3 minor children when the check drop hits.  I will need to get public assistance in order for us to survive. If they want to be really fair, divide the Hardship Fund equally among us 1500 shortfall victims and call it good.  That would be the right thing to do."

If you are an ELNY shortfall victim and wish to add your thoughts about the ELNY Hardship Fund anonymously to this blog post, add a comment using the link below or send an email with your comments to patrick@s2km.com. 

For S2KM's complete reporting about the ELNY liquidation, see the structured settlement wiki.

SSP 2012 Annual Meeting - 1

The French author and poet Victor Hugo has been translated and quoted as saying: "There is nothing more powerful than an idea whose time has come."

Has the time come for "settlement planning" to be recognized as a powerful idea deserving professional study and status in the United States? Recent conferences, including the Society of Settlement Planners (SSP) 2012 Annual Meeting, suggest that settlement planning is becoming both an important profession and an alternative business model for the structured settlement industry.

As a foundation for professional status, SSP has previously developed the Registered Settlement Planner (RSP) Program and adopted Standards of Professional Conduct. The 2012 Annual Meeting, held April 30 - May 1 in Las Vegas, featured presentations by leading settlement planning practitioners and subject matters experts. In addition, several product providers introduced insurance and financial products to complement the traditional structured settlement annuity.

What is settlement planning? Joseph Tombs, a former SSP President and co-founder of the RSP program, defines settlement planning as "... a profession helping recipients of settlement proceeds use those proceeds to achieve post-loss goals and transition successfully to post-settlement financial life."

What is a settlement planner? The SSP Standards of Professional Conduct define "settlement planner" as "... a representative who provides advice and other services to a person participating in the design, negotiation or implementation of a settlement or satisfaction of judgment for the benefit of a person claiming a legal entitlement to an award of damages or other compensation."

SSP conference Keynote Speaker Michael Ellsberg, author of "The Power of Eye Contact" and "The Education of Millionaires", discussed how to "Invest in Your Own Human Capital".

Settlement Planning Practitioners and Subject Matter Experts and Topics:

• 2011 SSP President Jack Meligan - SSP Accomplishments
• 2012 SSP President Charles Schell - SSP Goals
• Joseph DiGangi - Reinventing the Settlement Industry
• Douglas Shaw - Medicare Liens
• Robert Wood - Tax Update
• Jeremy Babener - Settlement Agreements and IRS Challenges
• Karen Meyers - Suitability Standards
• Patrick Hindert - Settlement Planning Business Models
• David Higgins - Litigation Rollover Accounts
• Jason Lazurus - Liability MSAs
• Frank Maguire - Overcoming Stalled Markets
• Mark Wahlstrom - Market Trends and Challenges
• Daniel Hindert - The ELNY Liquidation
• Richard Risk - History of Settlement Planning
• Dan Alverez - Lien Resolution
• Joseph Tombs - The RSP Program

Settlement Planning Product Providers

• Wesley Cosgriff - Secured Futures Trust
• John Woolway - Vantage Investment Partners
• Robert Noack - Aequitas Capital Management
• Christi Fried - Continental Trust Services
• Paul Hansen - Morgan Stanley Smith Barney
• Major General James W. Comstock (ret.) - Alternative Design Insurance Services
• Anthony Prieto - Synergy Settlement Services
• James Creel - First Capital Surety & Trust Co.
• Robert Burney - Integrity Financial, Inc.
• Mal Deener - Symetra Life Insurance Company (on behalf of Berkshire Hathaway Life Insurance and National Indemnity)

In subsequent blog posts, S2KM will review selected SSP conference topics. For S2KM reporting of prior SSP meetings, see the structured settlement wiki.

Mixed ELNY Reactions

In an article titled "Loss for Policyholders", written by James Campbell and published April 17, 2012 in the Wall Street Journal (WSJ), Executive Life of New York (ELNY) stakeholders expressed contrasting reactions to Judge John M. Galasso's decisions to:

• Approve the ELNY Restructuring Agreement proposed by the Superintendent of the New York State Department of Financial Services (Superintendent); and
• Grant judicial immunity to the Superintendent, as ELNY's Receiver, and the New York Liquidation Bureau (NYLB) "for any action or omission by any one or more of them when acting in good faith, in accordance with this Order, or in the performance of their duties pursuant to Insurance Law Article 74 ..."

Shortfall Payee

Eric Rabinowitz, a 43-year-old Manhattan man, who received an ELNY-funded structured settlement in 1983 after being blinded in his right eye during a cataract operation, told the WSJ: "They hung us out to dry and they knew for years that this thing didn't get properly protected and yet they gave us a few weeks to lawyer-up in holiday season."

Shortfall Payee Attorney

Connecticut attorney Edward Stone represents 12 payees whose combined ELNY benefits, according to the WSJ article, will be cut by $20 million under the approved plan. The article quotes Stone as saying: "Their benefits are being cut by more than 50%. One of my clients is being cut by 58%. This will mean major changes, and it may impact their ability to get medical care. One of my clients will have to file bankruptcy because the guarantees they were promised are not really guarantees at all."

According to Schedule 1.15 of the ELNY Restructuring Agreement, 1459 structured settlement payees will experience shortfalls ("uncovered amounts") as a result of ELNY's liquidation and restructuring even after state guaranty association contributions and voluntary enhancements by life insurance companies.

Stone also informed the WSJ: "the judge rejected his bid to call a number of witnesses to probe the [NYLB's] management of the company, including a former ELNY president, an actuary, a forensic accountant and a fraud expert."

Spokesman for Superintendent

David Neustadt, a spokesman for the Superintendent, disagreed with Stone's suggestion that the Superintendent and the NYLB might be guilty of mismanaging ELNY during the 20 plus years they supervised ELNY's Rehabilitation. "This is an absurd and baseless suggestion from a small-group of self-interested plaintiff's lawyers seeking to enrich themselves," Neustadt said.

Structured Settlement Industry Spokesman

Eric Vaughn, Executive Director of the National Structured Settlement Trade Association (NSSTA) "defended the structured-settlement industry, amid the failure of the ELNY rehabilitation" according to the WSJ article. Vaughn stated: "The Executive Life insolvency remains the only instance where any insurer of structured-settlement annuity has not made all payments in full and on time." In addition, according to Vaughn, "several hundred of the structured-settlement recipients might be able 'to recover shortfalls from the original insurers and other parties that have continuing responsibility under settlement agreements.'"

For S2KM's complete and continuing reporting about the ELNY liquidation, see the structured settlement wiki - and more specifically related to this blog post:

• The ELNY Due Process Issue - have anticipated shortfall victims received due process?
• The ELNY Immunity Issue - including and featuring Peter Bickford's analysis.
• ELNY Objections and Replies - summarizing arguments in the Superintendent's Reply Memorandum.

ELNY Liquidation Order

S2KM's summary of Judge John M. Galasso's Memorandum Decision for Executive Life of New York (ELNY) left open the question of whether Judge Galasso had granted judicial immunity to the Superintendent of the New York State Department of Financial Services (Superintendent), as ELNY's Receiver.

Immunity Issue

The corresponding Order of Liquidation and Approval of the ELNY Restructuring Agreement signed by Judge on April 16, 2012 confirms the grant of immunity as follows:

"Judicial immunity is extended to the Receiver and his successors in office, the New York Liquidation Bureau, and their respective attorneys, agents and employees, and such immunity is extended to them for any cause of action of any nature against them, individually or jointly, for any action or omission by any one or more of them when acting in good faith, in accordance with this Order, or in the performance of their duties pursuant to Insurance Law Article 74 ..."

A copy of both Judge Galasso's ELNY Decision and the ELNY Liquidation Order are posted on the structured settlement wiki.

Although expected, this judicial grant of immunity is controversial because, according to some legal experts:

• New York insurance laws do not specifically grant legal immunity to the Superintendent, as Receiver.
• ELNY was not judicially determined to be insolvent until Judge Galasso signed the April 16, 2012 Order.
• The Superintendent and its agents, including the NYLB, have "managed" ELNY since it first entered Rehabilitation in 1991.

For background about the immunity issue, see "The Trouble with ELNY", S2KM's review of an article by Peter Bickford.

Factoring Companies

Neither the ELNY Memorandum Decision nor the Liquidation Order address another controversial ELNY issue: whether participating state guaranty associations (PGAs) will provide coverage for ELNY structured settlement annuities where payment rights have been transferred to factoring companies and subsequently sold to investors as securities.

One result of protecting factoring companies and ELNY structured settlement payment right investors could be a reduction in funds available to other ELNY shortfall victims. Some industry experts have estimated that payment rights from as many as 1000 of ELNY's 4168 structured settlement annuities (SSAs) have been transferred to factoring companies and their investors.

According to Schedule 1.15 of the ELNY Restructuring Agreement, 1459 SSAs will experience shortfalls ("uncovered amounts") as a result of ELNY's liquidation and restructuring even assuming state guaranty association contributions and enhancements.

No Closing Date Set

Neither the ELNY Memorandum Decision nor the Liquidation Order identify a closing date for the ELNY Restructuring Agreement. Until that date, the Receiver is directed to continue full payment of all benefits for all ELNY contracts. The Court will retain subject matter jurisdiction over the Restructuring Agreement and ELNY successor company, Guaranty Association Benefits Company (GABC).

The ELNY Liquidation Order requires that all claims against ELNY must be presented to the Receiver within four months of ELNY's Liquidation Date. However, all ELNY policyholders and "holders of Claim-Overs" who appear on ELNY's books and records as of Liquidation Date are deemed to have satisfied this requirement.

The ELNY Liquidation Order requires the Receiver to provide notice of the Order to all ELNY creditors, policyholders and other interested parties and provides a Notice Form as an Exhibit.

Judge Approves ELNY Plan

In a Memorandum Decision issued April 16, 2012, Judge John M. Galasso of the Nassau County New York State Supreme Court has:

• Declared Executive Life of New York (ELNY) to be insolvent and by order converted the former ELNY rehabilitation proceeding into a liquidation proceeding.
• Appointed the Superintendent of the New York State Department of Financial Services (Superintendent), formerly ELNY's Rehabilitator, to be ELNY's Liquidator.
• Concluded that the Superintendent has complied with New York insurance law in satisfying the framework under which the Superintendent may seek liquidation and the Court may adjudicate the insolvency of an insurer.
• Signed a separate order approving the ELNY restructuring plan as proposed and amended by the Superintendent.
• Directed Counsel for the New York Liquidation Bureau (NYLB) to serve a copy of the decision with notice of entry upon all ELNY payees.

For a copy of Judge Galasso's decision, see the structured settlement wiki.

In his decision, Judge Galasso rejected any possible consideration of an amended or alternative ELNY restructuring plan stating:

"It is important to note that in a liquidation proceeding, the Court’s only authority by law is to approve or disapprove the plan. A court cannot amend or supplement a plan or allow objectors to submit a proposed plan. As noted above, the New York State Superintendent of Financial Services has the sole authority to formulate a plan under the laws of New York and the participating states within the statutory structure."

Judge Galasso's decision does not state state whether the Superintendent and his agents, including the NYLB, will be granted immunity from legal actions related to their acts and omissions in managing ELNY since 1991 during its Rehabilitation. The decision, however, does state:

"...[T]he scope of the hearing before the undersigned was limited by the Insurance Law and could not include inquiries into why the insurer failed in the first instance, its investment and operation prior to failure, how the Superintendent and his agents supervised the affairs of the insurer, or why a settlement was not reached or this order to show cause brought before the Court sooner."

In approving the Superintendent's Plan, Judge Galasso noted:

• The plan will include approximately $900 million of ELNY estate assets; $700 million from participating guarantee associations allocated according to statute; plus $71 million to benefit ELNY payees not covered by any guarantee association.
• In addition, $100 million will be voluntarily contributed by unnamed life insurance companies as a "hardship fund" for the benefit of ELNY shortfall payees, benefits that would not otherwise be available in a straight liquidation process.
• Certain insurance companies, including Travelers, Fireman’s Fund, and Hartford, have assured the Court they will honor their legal obligations under structured settlement funding agreements.
• J. G. Wentworth/Peachtree Funding (JGW), the largest structured settlement factoring company, has also assured the Court that to the extent a shortfall is due to ELNY as creditor under JGW's purchase contracts, JGW will not seek restitution from former ELNY payees that subsequently entered into transfer agreements with JGW. Note, however: Judge Galasso's decision does not state whether structured settlement factoring companies and their investors will receive any payments from state guarantee associations.
• If the Superintendent's restructuring plan is not approved, according to Judge Galasso, there might not be any voluntary enhancements.
• Without the coordination of state insurance guarantee fund coverages (part of NOLHGA's role and mission), individual ELNY shortfall payees would have to apply to their own states to determine the amount of guarantee association contribution they would receive. For some, according to Judge Galasso, the answer might be $0.

The ELNY Due Process Issue

Assuming presiding Judge John M. Galasso signs the Order of Liquidation and Approval of a Restructuring Agreement for Executive Life of New York (ELNY) as proposed by the Superintendent of the New York State Department of Financial Services (Superintendent), as ELNY's Receiver, a critical issue arises:

Will the ELNY structured settlement shortfall payees have been afforded "due process" before being deprived of a percentage of their payment rights?

The Fifth and Fourteenth Amendments to the United States Constitution provide in part:

• Fifth Amendment - "No person shall be ... deprived of life, liberty, or property, without due process of law;"
• Fourteenth Amendment Section 1 - "No State shall ... deprive any person of life, liberty, or property, without due process of law."

The United States Supreme Court has interpreted these clauses as creating two doctrines: substantive due process and procedural due process.

Substantive Due Process

Substantive due process addresses whether the government has an adequate reason for taking away a person's life, liberty or property. The most obvious, and presumably adequate, reason why the ELNY liquidation hearing could result in some persons (shortfall payees) being deprived of property (percentage of their annuity payments) is that ELNY is insolvent.

ELNY does not have sufficient assets to meet all of its future payment liabilities. Because of variations in state guaranty association laws (primarily coverage caps) as well as individual ELNY contracts (size of annuities), approximately 15 percent of ELNY's annuity payees (mostly structured settlement payees) anticipate shortfalls while the other 85 percent expect to receive 100 percent of their promised future payments from ELNY's successor company, Guaranty Association Benefits Company (GABC).

Alternative Legal Recourse

Some of the structured settlement shortfall payees should have recourse against defendants and/or liability insurers who funded their structured settlement using a "buy and hold" methodology. Other structured settlement payees, whose structured settlements were funded with qualified assignments, likely would not have similar secondary payment options because First Executive Corporation (FEC), the purchaser and owner of their annuities, declared bankruptcy in 1991 and no longer exists. For an explanation of the difference between "buy and hold" funding and qualified assignments, see this prior S2KM blog post.

Although ELNY shortfall victims (including both policyholders and payees) might have a legal claim against the Superintendent, as Receiver, and his agents, including the New York Liquidation Bureau (NYLB), the Superientent's proposed Liquidation Order includes an immunity clause intended to protect the Superintendent and his agents from any legal claims that they mismanaged the ELNY Rehabilitation and are responsible for ELNY's insolvency. For additional information about the ELNY immunity issue, see this prior S2KM blog post.

Procedural Due Process

Procedural due process addresses whether the government has followed adequate procedures in taking away a person's life, liberty or property. A denial of procedural due process occurs only when there is a denial of life, liberty or property without adequate procedures. For many ELNY structured settlement payees, the probable result of the ELNY Liquidation Order and Restructuring Agreement will be to deny them of a portion of their future structured settlement payment rights. The key question for purposes of procedural due process is whether the procedures that could result in this loss of property have been "adequate".

Structured settlement payees who anticipate shortfalls and their attorneys have argued "no" - the procedures have not been adequate and therefore they anticipate suffering an unconstitutional taking of their property because of:

• Inadequate notice - ELNY's financial records indicate ELNY became insolvent as early as 2002. Former New York Governor Eliot Spitzer held a press conference in 2007 announcing "an agreement in principle" that all future ELNY payments would be paid in full and on time. The NYLB mailed letters to individual ELNY annuity payees on December 7, 2011: 1)  notifying them about the proposed ELNY Liquidation and Restructuring Agreement; and 2) alerting them of anticipated shortfalls for specific ELNY annuity contracts and a January 16, 2012 deadline for filing written objections. Responding to objections of inadequate notice, the Superintendent has argued the ELNY notice and briefing schedule balanced the need for a prompt resolution of ELNY’s deepening insolvency against the ability of affected parties to review and object to the proposed liquidation and Restructuring Agreement.
• Denial of information - ELNY shortfall victims and their attorneys claim they have received inadequate information to properly evaluate the proposed Restructuring Agreement in order to propose possible improvements and/or alternatives. The Superintendent's response: this objection does not constitute grounds for rejecting the Restructuring Agreement because the information sought has been provided or is premature and unnecessary for the Court’s consideration and approval of the Restructuring Agreement. The Superintendent further points out the objectors have not offered a competing plan. During the ELNY hearing, Judge John Galasso denied a motion by attorneys for the structured settlement shortfall victims to gain access to source materials utilized by Jack Gibson, the Superintendent's expert, who testified: 1) GABC is "financially viable"; 2) the Superintendent's proposed plan was "the best plan"; and 3) all ELNY shortfall victims will be better off under the proposed Restructuring Agreement than under a straight liquidation.
• Denial of witnesses - Judge Galasso refused to allow attorneys for ELNY shortfall payees to introduce several expert witnesses stating "they wouldn't help". Among the witnesses not permitted to testify:
  • A former Chief Executive Officer of ELNY.
  • Two expert actuaries.
  • Two forensic accountants one of whom is also an insurance fraud investigator.

In an article published in the Touro Law Review (Vol 16 page 871), titled "Procedural Due Process Claims", constitutional legal expert Erwin Chemerinsky highlights the following three-part balancing test the United States Supreme Court articulated in Mathews v. Eldridge (1976) to determine whether an individual has been denied procedural due process:

• The more important the interest to the individual, the more procedural protections the reviewing court is going to require.
• The reviewing court must balance the ability of additional procedures to increase the accuracy of the fact finding; how likely is it that the additional procedures will reduce the risk of erroneous deprivation?
• Whether the government's interest in administrative efficiency is such that the more expensive the procedures would be, the less likely it would be that the reviewing court would require them.

For S2KM's complete reporting about the ELNY Liquidation Hearing, see the structured settlement wiki.