Beyond Structured Settlements

NASP 2011 Annual Meeting - 2

S2KM has received both positive and negative private feedback about S2KM's coverage of the National Association of Settlement Purchasers (NASP) 2011 Annual Meeting. Although S2KM welcomes any feedback, private or public, negative feedback generally provides greater focus and incentive for afterthoughts.

Among the private criticisms S2KM has received:

• S2KM is biased toward (or has an affinity for) the secondary market at the expense of the primary market.
• S2KM criticizes primary market business conduct without reporting secondary market bad business behavior.
• S2KM should be more of a positive voice for change and not a muckraker.

Bias Toward the Secondary Market

S2KM believes that IRC 5891 and the state protection statutes have radically changed and improved both the structured settlement product and the structured settlement market. To paraphrase NASP President Matt Bracy: structured settlement recipients, in compliance with federal and state laws, now have the right to sell their asset (payment rights) provided a state judge approves the sale in advance as being in the "best interest" of the transferor/payee taking into account the welfare and support of the payee's dependents. Instead of the "grey" secondary structured market that existed from 1986 to 2000, the secondary market is now regulated by state judges and the Internal Revenue Service with substantial penalties for transfer companies who do not comply with federal and state statutes.

Many primary market participants will disagree with portions of the above paragraph. They do not view structured settlements transfers either as a product improvement or as a recipient's "right" however that right may be qualified by statute. In S2KM's opinion, the primary market's general attitude toward and perspective of the secondary market since 2001 represent a serious strategic mistake that has caused considerable harm to the primary structured settlement market. Instead of improving their own products by adding commutation or transfer features, and re-learning how to sell their product in a statutorily re-defined market, the primary market continues to criticize and shun the secondary market.

By comparison, NASP regularly invites and welcomes critics to speak at its educational conferences. These critics have included blogger John Darer, two current co-chairpersons of the NSSTA Legal Committee Peter Vodola and Stephen Harris, and current SSP President Jack Meligan, as well as judges from states where structured settlement transfers are viewed most negatively. Among NASP presentations by S2KM author Patrick Hindert (Hindert), see "How the Primary Market Views Factoring".

Criticizing Business Conduct

Beginning in 2004, S2KM has reported and discussed both primary and secondary structured settlement market business practices and business models. For compilations of S2KM's reporting about secondary market business practices (good and bad), see the Secondary Market page on the structured settlement wiki. For detailed information about pre-2001 secondary market business practices and issues, see section 16.02[2] of "Structured Settlements and Periodic Payment Judgments" (S2P2J) of which Hindert is a co-author.

For S2KM reporting and commentary about primary market business standards and practices, see also the structured settlement wiki:

• Business Standards and Practices .
• Primary Market - includes IRC 468B Qualified Settlement Funds.
• Spencer v. Hartford .

Readers can judge for themselves whether S2KM criticizes primary market business conduct without reporting secondary market bad business behavior.

Positive Voice for Change vs. Muckraker

Wikipedia defines the contemporary use of the term "muckraker" to mean "a journalist who writes in the adversarial or alternative tradition or a non-journalist whose purpose in publication is to advocate reform and change." When S2KM began publishing in 2004, social media (including blogs, wikis and podcasts) represented an "alternative" to traditional print media and educational conferences. Social media provides an opportunity for unpopular or minority ideas and viewpoints to gain an audience not otherwise available. Unfortunately, social media also has a dark side which can include personal attacks and bullying.

In advocating for improved structured settlement business practices and business models, S2KM has attempted (with a few exceptions which S2KM regrets), to follow the lessons taught in "Getting to Yes" which at one time represented a guidebook of sorts for the primary structured settlement market. Perhaps the "Getting to Yes" method can still be useful to help a divided structured settlement industry improve and grow:

• Separate the people from the problem.
• Focus on interests not positions.
• Invent options for mutual gain.
• Insist on using objective criteria.

Without more strategic conversations that include all structured settlement stakeholders and perspectives, the structured settlement industry will never achieve its full potential. To the extent possible, S2KM intends to encourage and to be part of those strategic industry conversations. Some of S2KM's preliminary contributions appear on the following pages of the structured settlement wiki:

• Re-thinking Structured Settlements .
• Growing the Market .

New York Liquidation Bureau

What is the New York Liquidation Bureau (NYLB) and what role will the NYLB play if and when Executive Life Insurance Company of New York (ELNY) is liquidated?

According to its Mission Statement: NYLB "acts for the Superintendent of Insurance as the court appointed fiduciary and Receiver of impaired and insolvent insurance companies, to maximize assets and resolve liabilities, return rehabilitated companies to the marketplace or distribute the proceeds of the company in a timely manner to creditors."

The NYLB website adds:

• NYLB is "a unique entity. Receiving no funding from taxpayers, it carries out the responsibilities of the Superintendent of Insurance as Receiver, and acts on his behalf in the discharging of his statutorily defined duties to protect the interests of the policyholders and creditors of insurance companies that have been declared impaired or insolvent.
  
• "The NYLB has performed this function since 1909, when the New York State Legislature passed the law mandating that the Superintendent assume the separate responsibility of Receiver. In the case of each insurance company in receivership, the Superintendent as Receiver is appointed by the New York State Supreme Court. The Court approves all of the actions of the Superintendent, and by extension those of the NYLB."

The New York Court of Appeals held in 2007 in the case Dinallo v. DiNapoli that, in his capacity as liquidator of insurance companies, the superintendent of insurance is not a state officer and that the NYLB, acting as the superintendent/liquidator's agent, is not a state agency and therefore is not subject to state audit.

The Court of Appeals reasoned: "[t]he Bureau does not perform a governmental or proprietary function 'for the state', but rather runs the day-to-day operations of private businesses in liquidation pursuant to Supreme Court order. The Bureau is not part of the Insurance Department's budget, operates without the benefit of state funds, maintains its own errors and omissions coverage, and is represented by its own private counsel, not the Attorney General, as is normally the case when a state agency is sued. Thus, the Bureau is not a 'state agency' within the ambit of State Finance Law § 8(2-b)(a)."

The Court of Appeals added: "When acting as liquidator of a distressed insurer, the Superintendent operates as a statutory receiver who stands in the shoes of a private entity and 'takes immediate possession and control of the assets and proceeds to a liquidation of its affairs' .... Indeed, the Superintendent as liquidator occupies a legal status that is 'separate and distinct from the superintendent of insurance as the public official charged with regulating the insurance industry generally' .... Thus, while the Superintendent's role as liquidator is judicial and private, his role as regulator and supervisor is administrative and public. Consequently, the Superintendent as liquidator is not a state officer but rather one who acts on behalf of a private entity."

New York attorney Peter Bickford has written a series of blog posts (titled "Insolvency Process in New York") which are highly critical of the NYLB. According to Bickford, the NYLB had (as of 2007) more than 450 employees ("most of whom are protected by union contracts") and an annual budget of more than $100 million.

Bickford's primary complaint about the NYLB is that the "receivership process in New York lacks meaningful transparency and accountability." Although the NYLB has promoted "a new era of openness and accountability" (including external audits beginning in 2006), Bickford maintains the opposite is true. As a primary example, Bickford highlights the NYLB's "recent unprecedented use of the courts to further insulate itself from outside scrutiny and accountability". As evidence, Bickford points to the following provision which he states now appears in liquidation and rehabilitation orders issued by New York courts:

“The Superintendent as [rehabilitator] [liquidator] of [the company], his successors in office and their agents and employees are relieved of any liability or cause of action of any nature against them for any action taken by any one or more of them when acting in accordance with this Order and/or in the performance of their powers and duties pursuant to Article 74 of the New York Insurance Law."

By adding this paragraph to court orders of liquidation or rehabilitation, Bickford claims "the [NYLB] seeks to obtain immunity without any basis in the law", and for which he maintains there is no precedent. This immunity, according to Bickford, "bestows absolute immunity – including for gross negligence or intentional acts committed while acting as liquidator or rehabilitator of an estate."

How do Bickford's criticisms of the NYLB square with the rehabilitation, and anticipated liquidation, of ELNY?

• As of today, 20 years following its 1991 Order of Rehabilitation, the ELNY profile that appears on the NYLB website is threadbare.
• Without any public explanation, the much ballyhooed 2007 announcement of "an agreement in principle", whereby various insurers and guarantee associations apparently had agreed to pay $650 to $750 million to fund future ELNY payments (which is not publicly available), has never materialized.
• The participants in the agreement, which apparently included Allianz, Fireman’s Fund, Allstate, State Farm and Travelers among other liability insurers who previously purchased ELNY annuities to fund structured settlements, have signed confidentiality agreements with the NYLB.

In a separate blog post, Bickford quotes from a Business Insurance article reporting statements by Mark Peters, who then served as the NYLB Superintendent, about the ELNY 2007 agreement in principle:

“The contributions will be enough to offset the $2 billion deficit that ELNY is predicted to face in 12 to 15 years, regulators say. The deficit results largely from an overly optimistic assumption in ELNY’s 1992 rehabilitation plan that the estate would earn 10% annually on its invested assets, Mr. Peters said. The actual return was between 7% and 8%. The Liquidation Bureau is now assuming a future annual return of just over 6%, he said. Most of ELNY’s contracts will run off within 35 years, with the last contract expiring in about 70 years, he said.”

In his blog post, Bickford takes issue with Peter's ELNY explanation, stating in part:

• "Inadequate interest rate assumptions cannot begin to account for the purported deficit."
• "The 1992 plan of rehabilitation does not include interest rate assumptions."
• "The 1992 plan of rehabilitation specifically stated that that the cash flows from investments 'are projected to be sufficient to cover current [covered annuity] payouts for at least ten (10) years.'”
• "So if it is not the interest rate assumptions causing the purported deficit, what is causing it?"

ELNY sold an estimated 8,000 structured settlement annuities prior to entering rehabilitation. To date, all related ELNY structured settlement payments have been paid in full. The most recent financial statements for ELNY (as of December 31. 2010) show assets of $905,945,200 compared with liabilities of $2,474,317,342 resulting in a negative surplus of $1,568,372,142. New York Governor Andrew Cuomo recently appointed Jonathan Bing to serve as Special Deputy Superintendent of the NYLB.

On June 23, 2011 the Superintendent of the New York Insurance Department filed a motion to postpone the previous deadline for filing a proposed order and plan of liquidation for ELNY with the New York State Supreme Court of Nassau County from July 1, 2011 to August 10, 2011 "in order to present a comprehensive and consensual proposed Plan of Liquidation that maximizes the potential benefits for ELNY's structured settlement and other annuitants."

Thanks to John Darer whose earlier ELNY blog posts introduced S2KM to Peter Bickford's writing.

S2KM's complete ELNY reporting and analysis appear on the structured settlement wiki.

Structured Settlements in 2010 - 2

Beginning in 2004, S2KM has utilized this blog ("Beyond Structured Settlements") and related web 2.0 publications to report and analyze strategic developments impacting the structured settlement and special needs settlement planning (aka settlement consulting) industries.

Featuring industry leaders, commentators and professional association conferences, S2KM has attempted to highlight how legal and technology changes are redefining the traditional (pre-2001) structured settlement market including structured settlement public policy as well as structured settlement business standards, business practices and business models.

From S2KM's perspective, the following categories, people and developments defined the structured settlement and special needs settlement planning industries in 2010:

Professional associations

• S2KM attended seven professional educational conferences during 2010 which addressed structured settlement and/or special needs settlement planning issues:
  • National Structured Settlement Trade Association (NSSTA) - 2
  • Society of Settlement Planners (SSP)
  • National Association of Settlement Purchasers (NASP)
  • National Alliance of Medicare Set-Aside Professionals (NAMSAP)
  • National Academy of Elder Law Attorneys (NAELA)
  • Academy of Special Needs Planners (ASNP)
• As a general observation, all of these conferences were valuable and complementary. For S2KM's 2010 (plus historical) conference reports, see S2KM's structured settlement wiki.
• SSP, NASP and NAMSAP deserve special recognition for their 2010 strategic educational discussions featuring industry leaders, commentators and critics who offered alternative perspectives for improving and growing the structured settlement and special needs settlement planning markets.
• By comparison, NSSTA remains reluctant to openly discuss strategic industry issues or to include alternative perspectives in their educational programs. More positively, NSSTA representatives and members increasingly attend and speak at non-NSSTA structured settlement and special needs settlement planning conferences.
• NAELA's educational conferences are noteworthy because they regularly feature sections or entire programs titled "unprograms". NAELA's unprograms are moderated group discussions about specific topics. NAELA's 2010 Special Needs Summit included six separate one hour unprograms with a concluding unprogram wrap-up session. One example of a 2010 NAELA unprogram was titled "Collaboration Opportunities for Special Needs Attorneys and Financial Planners".

Industry leaders

• NSSTA promoted Eric Vaughn, who previously served as NSSTA's lobbyist, to replace Joseph Ricci as NSSTA's new Executive Director effective July 1, 2010. Peter Arnold, previously NSSTA's Marketing Director, was similarly promoted to serve as NSSTA's Associate Executive Director. NSSTA's Board of Directors elected Michael Kelly as its 2010 President and Dan Finn as its President-elect. NSSTA honored Congressman Peter Stark during its Annual Meeting as its 2010 Legislator of the Year. NSSTA also gave special recognition to Karen Meyers and Joseph Bornstein for their contributions to NSSTA's CSSC and NSSTAPAC programs respectively..
• SSP elected Jason Lazarus as its President for 2010-11 and Charles Schell as Vice President. SSP honored Richard Risk with the designation of "life member" for his contributions to SSP and the settlement planning industry. Joseph Tombs continues as Director of SSP's RSP certification program.
• NASP named Matthew Bracy as its new President succeeding Robin Shapiro. Earl Nesbitt continues as NASP's Executive Director.
• NAMSAP elected Michael Westcott as its President.
• NAELA honored Dick Traum as the first recipient of NAELA's Special Needs Leadership Award. Traum is the founder and CEO of Achilles International, a non-profit organization providing community support for athletes with disabilities with members in more than 70 countries.
• Amy Palmiero-Winters, ultra-marathoner and lower-leg amputee, was named during 2010 as the winner of the 2009 James E. Sullivan Award given annually to the top amateur athlete in the United States.

Industry commentators

• For the past several years, Robert Wood has been the preeminent tax commentator and author for the structured settlement and settlement planning industries. Wood's publications appear on the Wood & Porter website.
• During 2010, Jeremy Babener emerged as an important new structured settlement tax commentator and author specializing in public policy and proposing an expanded structured settlement tax subsidy. In addition to authoring several structured settlement articles for tax and legal journals, Babener participated as a featured speaker at both the SSP and NASP 2010 Annual Meetings and authored two blog posts for S2KM during 2010. Babener discussed his structured settlement writing (accessible on S2KM's structured settlement public policy wiki and Babener's Tax Structuring website) in this 2010 S2KM interview.
• Additional authors who wrote and published 2010 legal articles about structured settlement and special needs settlement planning issues included: Daniel Hindert, Matt Garretson, Sylvius von Saucken, Peter Wayne, Mark Popolizio, Gregg Polsky and Brant Hellwig.
• Both the Legal Broadcast Network and Ringler Radio continued to produce and distribute podcasts featuring structured settlement commentators during 2010.
• An increasing number of structured settlement and special needs settlement planning professionals published blogs during 2010 joining industry blogging pioneers such as John Darer, Mark Wahlstrom, Matthew Bracy and Jack Meligan.
• Incisive Media published two new updates (Release 47 and Release 48) for "Structured Settlements and Periodic Payment Judgments" during 2010.

Legislation

• Both the Patient Protection and Affordable Care Act (Health Care Reform) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) redesign the legal environment in which the structured settlement and personal injury settlement planning markets operate.
• Among the anticipated strategic consequences of health care reform:
  • An estimated 16 million more Medicaid participants - and therefore:
  • More special needs trusts;
  • More special needs attorneys;
  • More structured settlement annuities payable to trustees.
• Dodd-Frank re-writes federal banking law and creates a new Bureau of Consumer Financial Protection. A key question, as yet unanswered, is whether the sale and/or purchase of structured settlement annuities constitutes a "financial product or service" under Dodd-Frank requiring regulatory supervision by the Bureau.

Regulations

• The United States Department of Treasury held a public hearing on February 23, 2010 focused on proposed new regulations for Internal Revenue Code section 104(a)(2). The proposed regulations, if enacted, would:
  • Eliminate the requirement that damages be based on “tort or tort type rights” in order to qualify for the section 104(a)(2) tax exclusion, and
  • Incorporate 1996 legislation requiring that personal injuries and sickness damages be “physical” in order to qualify for the section 104(a)(2) tax exclusion.
  • A subsequent S2KM interview featured John McCullough and Richard Risk, two of the structured settlement industry members who spoke at the hearing.
• The Centers for Medicare and Medicaid Services (CMS) continued to issue administrative guidance during 2010 for enforcement of the Medicare Secondary Payer (MSP) Act of 1980 and the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) reporting requirements for insurers. Featured discussions during the NAMSAP 2010 Annual meeting highlighted:
  • The increasing importance and complexity of the MSP statute for all personal injury stakeholders;
  • The need for these personal injury stakeholders (and their professional associations) to cooperate politically and educationally;
  • The challenges of integrating structured settlements, including rated ages, with Medicare set-aside arrangements (MSAs) in the context of health care reform, CMS MSA regulations and related judicial rulings;
  • The evolving business models, claim management strategies and professional skill sets which are now emerging to address these challenges.

Case law

• The Spencer v. Hartford class action lawsuit which settled in 2010 represents one of the most important legal developments in the history of the structured settlement industry.
• Hartford's gross settlement payment of $72.5 million represents 4.5% of total premium dollars Hartford used to purchase structured settlement annuities for class members from January 1, 1997 to June 7, 2010.
• Among the plaintiffs allegations:
  • Hartford and its attorneys, brokers and agents violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and committed common law fraud in structuring its settlements.
  • Hartford's structured settlements were priced so Hartford retained 15% of the value of the structured settlements.
  • Hartford and its attorneys, brokers and agents misrepresented structured settlements including explicit or implicit reference to:
    • The "cost" of the annuity or structured settlement or portion of the settlement being structured; and/or
    • The "value" of the annuity or structured settlement or portion of the settlement being structured.
• Hartford, which stopped writing new structured settlement business in 2009, denied the allegations.

Technology

• Despite the accelerating technology advances revolutionizing society generally, the structured settlement and special needs settlement planning industries have been slow to study and incorporate these advances into their educational programs and business models.
• The best industry-sponsored technology education programs during 2010 were offered by Mark Miller during a NAELA webinar and Harry Margolis at the ASNP 2010 Annual Meeting. Both presentations provided introductory overviews of web 2.0 and including recommendations for integrating specific social networking tools into special needs legal practices.
• NSSTA initiated a NSSTA blog during 2010 and offered an educational program about Internet marketing during its 2010 Fall Education program.

Public policy

• Both SSP and NASP featured specific discussions and presentations about structured settlement public policy during their 2010 Annual Meetings. The discussions included industry commentators representing diverse viewpoints and priorities.
• Jeremy Babener followed his 2009 paper debunking industry myths concerning "structured settlement dissipation studies" with several 2010 articles and papers addressing structured settlement public policy issues. Babener's public policy writing is featured on S2KM's structured settlement public policy wiki.
• Release 47 of "Structured Settlements and Periodic Payment Judgments" re-examined several structured settlement public policy issues related to single claimant 468B funds, structured settlement factoring transactions, dissipation by personal injury victims, the Deficit Reduction Act of 2005, special needs trusts and Medicare set-aside arrangements.
• In a 2010 Boston College Law Review article, professors Gregg Polsky and Brant Hellwig challenged the application of any structured settlement tax benefit for deferring attorney fees or payments to non-physically injured tort plaintiffs under general common law tax principles.

Business standards and practices

• The Spencer v. Hartford case raises many issues about structured settlement business standards and practices which require greater education and analysis if the primary market expects to improve and grow. For example;
  • Is the primary structured settlement market capable of self-regulation?
  • Why shouldn't key elements of the state structured settlement protection statutes (judicial approval; best interest test; compensation disclosure) be applied to primary market transactions?
  • As an additional requirement, or as an alternative, why haven't plaintiff attorneys and plaintiff consultants insisted upon a claimant's written informed consent before entering into a structured settlement?
  • Why haven't the SSP's Standards of Professional Conduct received more public discussion and analysis within the structured settlement industry?
• "Cash now" advertising represents one of the most highly criticized secondary market business practices. Although this practice continues to exist, NASP took an important educational step during its 2010 Annual Meeting by highlighting this issue and inviting secondary market critics to participate in the discussion.

Business models

• While other segments of, and products within, the special needs settlement planning market have expanded and improved in recent years, the structured settlement primary market in general has stagnated and retrenched.
• During 2010, however, representatives of the primary structured settlement market increasingly recognized their interdependency, and interacted, with other settlement planning professionals and professional associations such as special needs attorneys, life care planners, Medicare set-aside professionals and secondary structured settlement market participants.
• Future industry improvement and growth will require even greater appreciation and identification of shared interests as well as expanded implementation of shared political strategies, educational programs and business models.

Prior S2KM annual reports about the structured settlement industry and reports about industry association conferences are available on S2KM's structured settlement wiki.

NSSTA and NASP 2010 Educational Conferences - 3

"Protect and Preserve" or "Improve and Grow".

These polar-opposite imperatives for the structured settlement industry represent S2KM's two strategic lenses for reporting and analyzing simultaneous educational programs this week in Las Vegas sponsored by the National Structured Settlement Trade Association (NSSTA) and the National Association of Settlement Purchasers (NASP).

S2KM's Managing Director, Patrick Hindert, will attend portions of the NSSTA conference (as a NSSTA member and former NSSTA President) and participate in NASP's Friday morning "Industry Analysis" program (as a moderator and speaker). S2KM's continued reporting and commentary about the NSSTA and NASP conferences will appear on this S2KM blog ("Beyond Structured Settlements") as well as S2KM's structured settlement wiki.

NSSTA's strategic mandate is to "protect and preserve".

Question: what exactly does NSSTA want to "protect and preserve"?

The simple answer: Internal Revenue Code sections 104(a) and 130.

More strategically, what NSSTA wants to "protect and preserve" (to the extent possible) are business models and business practices ("good old days") that existed prior to:

• 1986 - Jim Lokey completed the first structured settlement transfer;
• 1991 - Executive Life insolvency;
• 1993 - Congress enacted IRC 468B and introduced qualified settlement funds;
• 1994 - Weil lawsuit settlement permitting structured settlement agents to work directly with claimants and plaintiff attorneys;
• 2001 - Congress adopted IRC 5891 and defined "structured settlement" as well as rules for structured settlement transfers;
• 2010 - Hartford settled the Spencer class action lawsuit (and departed the structured settlement business) following allegations of civil RICO and state fraud violations by Hartford, its agents, brokers and attorneys.

One result of NSSTA's "protect and preserve" mandate has been a "dumbing down" of NSSTA's educational programs - at least from a strategic perspective. Some of NSSTA's technical discussions are excellent. For example, NSSTA's legal committee has re-emerged as a leading structured settlement educational resource. And NSSTA's CSSC certification program continues to receive positive reviews despite low attendance and the lack of a continuing education (CLE) requirement.

NSSTA's primary educational problem is the application of its narrow and political strategic framework ("protect and preserve" as opposed to "improve and grow") for its educational programs. For example, NSSTA never invites knowledge leaders from NASP or SSP (or anyone critical of NSSTA political objectives) to participate in NSSTA's educational programs. For another related example, NSSTA educational programs never provide strategic discussions ("Industry Analysis") with alternative perspectives.

Bottom line: NSSTA's educational programs have fallen behind NASP and SSP who now represent the benchmarks for structured settlement educational excellence. For further S2KM reporting about NSSTA's educational demise, see: S2KM's analysis of NSSTA's 2009 educational program. Unfortunately, NSSTA's announced 2010 educational program looks like "the same old, same old" - at least from S2KM's strategic perspective.

By comparison with NSSTA, NASP will devote three hours of its 2010 educational program this week in Las Vegas specifically to "Structured Settlement Industry Analysis". This portion of the NASP program is subtitled: "How to Improve and Grow the Structured Settlement Industry".

Announced participants for this strategic discussion include industry knowledge experts who are members of NASP, SSP and NSSTA plus Jeremy Babener as an independent writer and analyst. Other participants include: Robin Shapiro, Earl Nesbitt, Matt Bracy, Andrew Savysky, Peter Vodola, Richard Risk, John Darer and Patrick Hindert - and continues prior NASP strategic discussions that featured: Stephen Harris, Jack Meligan and Michael Upchurch among others.

NSSTA and NASP 2010 Educational Conferences - 2

The National Structured Settlement Trade Association ( NSSTA ) and the National Association of Settlement Purchasers ( NASP ) have announced agendas and speakers for their 2010 educational conferences scheduled concurrently and coincidentially next week (November 10-12, 2010) in Las Vegas.

S2KM has published an introductory report for these conferences plus historical reporting about past NSSTA and NASP educational conferences. S2KM's Managing Director, Patrick Hindert, will attend portions of the NSSTA conference (as a member) and participate at the NASP conference (as a moderator and speaker).

S2KM recommends both the NSSTA and NASP educational conferences to all structured settlement stakeholders and offers this preliminary comparative analysis.

Topics

NSSTA and NASP will both address several similar issues:

• Ethics - NSSTA and NASP could enhance their discussions by addressing "business practices" including the "Standards of Professional Conduct" adopted by the Society of Settlement Planners (SSP) on March 7, 2008.
• Legal update - NSSTA's legal committee represents a strategically important structured settlement industry knowledge resource. That said, NASP's structured settlement legal updates are equally diverse and valuable - especially when you include NASP's related "Industry Updates".
• Legislative update - Eric Vaughn is NSSTA's Executive Director, federal lobbyist and legislative guru. NSSTA lobbying weaknesses (especially state lobbying) play to NASP lobbying strengths and suggest collaborative opportunities.
• Marketing - Try a Google search for "structured settlement". Where are NSSTA, SSP and other primary market  participants?

With some important differences:

• NSSTA
  • Medicare/Medicaid - NASP is expected to address these issues as part of NASP's "Industry Analysis".
  • Certification - NASP does not have a certification program.
  • Life care planners - NSSTA, NASP (and SSP) educational programs historically have ignored this important settlement consulting professional community.
  • In force structured settlements - a strange attempt by NSSTA to educate its members about secondary market issues.
  • Wrongful imprisonment - a narrow focus compared with NASP's anticipated tax analysis.
  • Life expectancy - hopefully, NSSTA will link this discussion with related Medicare and Medicaid issues. Whatever happened to the structured settlement industry's life expectancy study initiated by Roger Harbin and Steve Smith?
• NASP
  • Industry analysis - NSSTA's educational programs typically provide limited strategic analysis with only one perspective and no outside critics. NASP features more open discussion of strategic industry issues featuring critics and alternative perspectives.
  • Taxation life cycle - Both NASP and SSP have previously featured Jeremy Babener as a speaker. Why not NSSTA? Babener's NASP presentation promises to be one of the highlights of these two structured settlement educational conferences.
  • Capital markets - NSSTA's educational programs historically lack analysis of the financial markets. NASP's annual panel sets the industry standard.
  • Dodd Frank legislation - a good example of NASP analysis of federal legislation that impacts both the primary and secondary structured settlement markets.

Speakers

NSSTA and NASP speakers both include a mix of association members and non-members. Both associations typically feature judges, attorneys and legislators as speakers. NSSTA's legislative speakers are generally federal while NASP's legislative speakers are generally state.

NSSTA speakers do not include SSP or NASP members. NASP speakers include both NSSTA and SSP members and thereby generate more comprehensive and valuable strategic discussions.

NASP 2010 featured speakers who are members of NSSTA and/or SSP:

• NSSTA
  • Peter Vodola
  • John Darer
  • Patrick Hindert
• SSP
  • Richard Risk

Previous NASP speakers who are members of NSSTA and/or SSP

• NSSTA
  • Stephen Harris
  • Michael Upchurch
  • Patrick Hindert
• SSP
  • Jack Meligan
  • Richard Risk

For more comprehensive S2KM reporting about  NSSTA, NASP and SSP, see S2KM's structured settlement wiki.

NSSTA and NASP 2010 Educational Conferences -1

There are three leading structured settlement professional associations:

• NSSTA (The National Structured Settlement Trade Association)
• SSP (The Society of Settlement Planners)
• NASP (National Association of Settlement Purchasers)

And several affiliated national structured settlement stakeholder associations. These include:

• NAELA (Natonal Academy of Elder Law Attorneys)
• NAMSAP (National Alliance of Medicare Set-Aside Professionals)
• AAJ - (American Association for Justice)
• ASNP - (Academy of Special Needs Planners)

Both NSSTA and NASP have announced simultaneous structured settlement educational programs in Las Vegas, Nevada for November 10-12, 2010.

This strategic coincidence provides an important opportunity for structured settlement participants, knowledge experts, stakeholders and industry analysts to evaluate and discuss the current status of the structured settlement industry.

Among other featured speakers at the NASP conference, Pat Hindert will join fellow bloggers John Darer and Matt Bracy to highlight and discuss the most important structured settlement industry issues. In addition to S2KM commentary, check John's blog and Matt's blog for further discussion and commentary.

Here is S2KM's preliminary list of the most important structured settlement industry issues:

• The Internet - whether, when and how will the structured settlement industry transition its knowledge and business models to web 2.0 technologies?
• Settlement consulting - whether, when and how will the structured settlement industry address (and hopefully embrace) a broader professional perspective to incorporate settlement consulting?
• Regulation - whether the structured settlement industry is capable of self-regulation and how best to regulate the structured settlement industry?
• Government benefits - how best to integrate structured settlements with other government benefits?
• Secondary market - how best to integrate the secondary market to improve structured settlements?
• Insolvencies - how will the structured settlement industry address the upcoming Executive Life of New York (ELNY) insolvency?
• Business standards and practices - what did the structured settlement industry learn from the Spencer v. Hartford case?

For additional S2KM reporting about structured settlement professional associations, see S2KM's structured settlement wiki.

For additional S2KM commentary about 2010 strategic structured settlement issues, see S2KM's related blog reporting.

Treasury Hearing Commentary

S2KM will publish and update links to online commentary about the February 23, 2010 Treasury hearing for IRC section 104(a)(2) regulations on S2KM's blog "Beyond Structured Settlements" and S2KM's public wikis:

• structured settlement wiki
• structured settlement public policy wiki - featuring Robert Wood, Joseph Dehner and Jeremy Babener

S2KM

• Jeremy Babener: "Treasury Hearing on IRC 104 Regulations"
• Jeremy Babener: "A Common Cause at the Treasury Regulation Hearing"
• Jeremy Babener: "Voices at the 104(a)(2) Treasury Hearing"
• "Speaker Comments at the Treasury Hearing"
• "Treasury Hearing Commentary"
• "Legislation to Expand the Structured Settlement Industry"

The Settlement Channel - Mark Wahlstrom

• Robert Wood: "IRC Section 104 Regulations Clarified by IRS"
• Jack Meligan: "Treasury Regulations hearing next week on IRC section 104(a)(2)"

Structured Settlement 4Real - John Darer

• "IRS Hearings on IRC 104(a)(2) Tax Exclusion"
• "Jack Meligan 468B Rant on LBN"
• "Do Meligan and Babener Actions Now Reveal a Level of Panic Over Single Claimant 468B"
• "Settlement Planners Rebuffed ..."

Jeremy Babener Responds

Because of the interest generated by law student Jeremy Babener’s research concerning lump sum dissipation, S2KM has invited Babener to continue to participate in the resulting online dialogue.

Jeremy Babener:

First, thank you to structured settlement industry leaders and commentators for integrating my research into the continuing dialogue about structured settlements. Commentators include: Patrick Hindert, Matt Bracy, and John Darer.

In discussing my paper, all three commentators have used my research to expand old and new arguments about structured settlements. This industry discussion is one of the goals of my research.

The primary purpose of this blog post is to respond directly to one of Mr. Darer’s recent postings, which appears to misunderstand and mischaracterize the thrust of the paper itself. Mr. Darer writes that my paper “attack[s] a statistic that [Babener] opines is the flawed basis for the structured settlement tax subsidy.”

The paper does attack the statistic that 90% of lump sum recipients prematurely dissipate their settlement in five years. My article, however, does not argue that the statistic is the basis for the structured settlement tax subsidy, nor does it argue that the subsidy is necessarily flawed.

Congress legislated the 1982 tax subsidy based on testimony asserting that premature dissipation of lump sum settlements was very common. As my paper notes, today’s industry practitioners attest to the same assertion. Thus, the paper’s introduction states: “The absence of such documented empirical evidence to support favorable tax treatment of structured settlements does not negate the validity of the consensus of professional opinion.  From a policy standpoint, however, the fundamental importance of this subsidy demands more than mere opinion. A policy that impacts millions of taxpayers and subsidy recipients is deserving of a substantiated empirical foundation.”

Mr. Darer’s post makes an interesting point in providing statistics related to the “spendthrift proclivities of Americans.” There is much evidence to suggest that Americans are not saving at sufficient levels. For this reason, the paper observes Americans’ history of consuming through debt, quoting those who have written, “buying dreams on credit is an American invention.”

However, these statistics relate to Americans generally, not the subset of those American recipients of lump sum settlements. For example, my paper discusses how analogizing to lottery winners may not be helpful in drawing conclusions about personal injury lump sum settlements.

My paper addresses every statistic it could find directly related to personal injury lump sum dissipation. While it analyzes data indirectly pertaining to the issue, such discussion must be limited. Mr. Darer's cited data fits within and informs the larger dialogue about Americans generally.

Thanks again to industry leaders and commentators who have integrated my work into their continuing structured settlements dialogue.  Special thanks to Patrick Hindert and S2KM for making this forum available.

Jeremy Babener

NYU Law ‘10