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March 11, 2008

West Virginia Update

The West Virginia legislature has amended and reenacted the state's current structured settlement protection statute.  According to Representative Ronald N. Walters, one of the bill's sponsors, West Virginia Governor Joe Manchin is expected to sign House Bill 4613 into law within the next few days.

The reenacted statute is noticeably different than West Virginia House Bill 4380 which S2KM previously summarized. Most significantly, the reenacted statute does not include any maximum discount rate. The original bill contained a maximum discount rate not to exceed "the current annual average percentage rate of interest on twenty year residual mortgages offered in this state, as determined by the banking commissioner." Factoring companies claimed this maximum discount rate would eliminate structured settlement transfers in West Virginia. Walters acknowledged his original intent was to do just that.

If signed into law by Governor Manchin, the amended West Virginia statute (now titled House Bill 4613) will:

  • Add some consistency between West Virginia's statute, IRC section 5891 and the Model State Structured Settlement Protection Act (Model Act) by:
    • Broadening application from "an infant or an incompetent person" to anyone with structured settlement payment rights arising from a personal injury or other claim; and
    • Eliminating a $40,000 threshold amount;
  • Confirm that a court may appoint a guardian ad litem for any person; and must appoint a guardian ad litem for an infant, an incompetent or a ward of the court;
    • The court will award the guardian ad litem reasonable fees for representing the consumer.
    • The transfer company will pay for "such attorneys' fees and costs".
  • Require the guardian ad litem to:
    • Review the requisite disclosures;
    • Make an independent inquiry to determine whether the proposed transfer:
      • Is fair and reasonable;
      • In the best interests of the consumer and any dependents of the consumer;
      • Has not been attempted or accomplished before.
    • Report the results of that inquiry to the court during the hearing;
    • Inform the consumer about "possible adverse tax consequence to the consumer" - a responsibility the guardian ad litem and the transfer company will now jointly share in West Virginia;
  • Reconfirm the current West Virginia approval standard: the consumer must now "clearly" demonstrate that
    • He or she, or his or her family, is facing a financial hardship that the transfer would alleviate and the transfer would not subject the consumer or the consumer's family to undue hardship; or
    • The transfer is in the best interest of the consumer.

Reaction from the factoring companies to the new West Virginia statute has been generally positive. According to Earl Nesbitt, Executive Director of the National Association of Settlement Purchasers (NASP), the amended West Virginia legislation will have a "minimal impact".

Nesbitt, however, did express concern about NSSTA's conduct (or lack thereof) in West Virginia. In Nesbitt's view, NSSTA's failure to actively lobby for the Model Act in West Virginia violated the spirit, if not the letter, of NSSTA's 2000 agreement with NASP to support the Model Act.

NSSTA representatives have refused to comment about the West Virginia legislation - except to say  "NSSTA supports the Model Act."  According to Walters, NSSTA's General Counsel Craig Ulman did contact Walters early in the process to communicate that "NSSTA supports the Model Act". Other than one telephone communication, however, Walters said he has heard nothing from NSSTA and has received no support from NSSTA. "Craig [Ulman] told me I was on my own".

In Walters' view, "the Model Act does not go far enough". According to Walters, "West Virginia's new law will provide greater protection and greater clarification plus a tougher standard" than the Model Act. Walters said he may introduce additional legislation in 2009 requiring factoring companies to have insurance licenses.  Walters, one of legislative sponsors of West Virginia's House Bills 4380 and 4613, also manages the Charleston, West Virginia office of Structured Financial Associates, Inc. (SFA). SFA is a NSSTA member although Walter individually is not.

Some of the questions NSSTA members should be asking their leaders (and themselves) about settlement transfers:

  • What are NSSTA's legislative and educational objectives and strategies for settlement transfers?
  • What does NSSTA mean when NSSTA says "we support the Model Act"?
  • How did NSSTA support the Model Act in West Virginia?
  • Is the new West Virginia statute better or worse than the Model Act:
    • For consumers?
    • For state judges?
    • For transfer companies?
  • What should NSSTA members say to their clients and other structured settlement stakeholders about settlement transfers?
  • What conduct by NSSTA members represents best professional practices relative to settlement transfer issues and responsibilities?

For additional information:

February 20, 2008

Structured Settlement Transfers in Rhode Island

During the past three weeks, The Providence Journal has published two articles by Staff Writer Edward Fitzpatrick about structured settlement transfers (aka factoring) in Rhode Island.  The articles feature State Superior Court Judges who express strong negative opinions about factoring companies as well as concerns that existing laws and judicial procedures in Rhode Island may not adequately protect structured settlement recipients.

Under the Rhode Island structured settlement protection statute, enacted in 2001, state judges must determine whether a proposed transfer of the payment rights "is in the best interest of the payee taking into account the welfare and support of the payee's dependents." Judges must also ensure that persons attempting to sell structured settlement payment rights have been advised to speak with a lawyer.

According to The Providence Journal articles, these judicial concerns have already resulted in two changes for transfer transactions in Rhode Island:

  • Superior Court Presiding Justice Joseph F. Rodgers, Jr. has announced new court procedures under which Rodgers will personally hear all structured settlement transfer applications to determine the number of transfers and to establish uniform procedures for filing and handling transfers; and
  • Rhode Island Attorney General Patrick C. Lynch, responding to a request from Rodgers, has agreed to make available attorneys from the attorney general's consumer protection unit to advise individuals who are seeking to sell structured settlement payment rights to help ensure that people are making informed decisions.

Both of these changes appear to be positive steps for structured settlement recipients. They also highlight and reinforce some important features and safeguards included in most state structured settlement protection acts (SSPAs):

  • The requirement of advanced court approval is a cornerstone of each of the SSPAs, as well as IRC section 5891;
  • Since 2001, structured settlement transfers are not effective and are subject to a 40 percent excise tax unless approved in advance by a state court.
  • Although the SSPAs are not uniform, most are derived from the Model Structured Settlement Protection Act (Model Act);
  • Since 2000, the National Structured Settlement Trade Association (NSSTA) and the National Association of Settlement Purchasers (NASP) have jointly promoted the Model Act to state legislatures with considerable success including support from state attorneys general, state bar associations and the National Conference of Insurance Legislators (NCOIL);
  • Under each of the SSPAs, factoring companies ("transferees") are required to make written disclosures to structured settlement recipients ("payees");
  • These disclosures are designed to highlight the value of the payments to be transferred and to contrast the value with the amount of money the payee will actually receive;
  • In most states, the transferee must disclose the "discounted present value" of the payments determined by using the "Applicable Federal Rate" most recently published by the Internal Revenue Service for purposes of valuing annuities;
  • At least some aspects of the Model Act's procedural requirements are spelled out under each of the SSPAs;
  • Most of the SSPAs include supplemental protections for payees and their dependents as well as for structured settlement obligors and annuity issuers;
  • In most states, these supplemental protections include notice requirements for interested parties plus a finding by the court that payees have either received independent professional advice or have knowingly waived their right to receive it;
  • Similar to Rhode Island, the standard for judicial approval in most states is the "best interest" test: is the proposed transfer in the best interest of the payee taking into account the welfare and support of the payee's dependents?
  • As judges become more experienced and knowledgeable about structured settlement transfers, some states can be expected to set additional requirements under their SSPAs: for example, New Pennsylvania Rule 229.2, a state rule of civil procedure promulgated by the Pennsylvania Supreme Court in 2007.
  • According to R. Stanton Wettick, Jr., an Allegheny County Judge who serves as Chairman of the Pennsylvania Civil Procedural Rules Committee: "New Rule 229.2 is intended to provide the additional information necessary for a trial court to determine whether a petition to transfer structured settlement payment rights meets the best interest standard".
  • In addition, some states can be expected to propose amendments to their structured settlement protection statutes: for example, West Virginia House Bill 4380, currently under consideration by the West Virginia legislature.

The February 3, 2008 Providence Journal article (headlined "Judge Warns of Financial 'Vultures'") focuses on a single proposed factoring transaction.  The article highlights harsh comments about factoring companies from the reviewing Superior Court Judge Netti C. Vogel and other Rhode Island superior court judges. Their primary complaints about factoring companies include: excessive late night advertising and high discount rates; plus the lack of independent advice for payees. 

The simplicity of the immediate solution for these judicial concerns in Rhode Island is noteworthy:

  • Superior Court Judge Vogel determined the proposed transfer in the McNeil case was not in McNeil's "best interest" and therefore denied the transfer.  Under the SSPAs, judges are the gatekeepers. They are assigned the responsibility for protecting payees under state structured settlement protection statutes.   
  • With support from Rhode Island Attorney General Lynch, Presiding Superior Court Judge Rodgers has addressed three important issues:
    • Tracking the number of transfer requests;
    • Creating uniform procedures for transfer applications;
    • Making available state consumer protection attorneys "to see how the law is being applied, whether the law needs to change, and to provide people with some measure of representation."

Additional S2KM recommendations:

  • Both the primary and secondary structured settlement markets need to improve their educational marketing for judges and other structured settlement stakeholders;
  • Primary market professionals who want to improve the secondary market should change their strategy. Instead of merely attacking and complaining about factoring companies, they should: 
    • Educate themselves about the secondary markets;   
    • Assume a more proactive advisory role about settlement transfers;
    • Re-learn how to sell structured settlements and how to grow the structured settlement market in a changing legal environment.   
  • All structured settlement participants should encourage the development of "best practices" for secondary market transactions including competitive bidding for all proposed transfers.

For additional information about structured settlement transfers, see:

Addendum (posted February 20, 2008) - More descriptive recommendations for two settlement transfer resources:

  • ABA Article – Co-authored by Daniel Hindert and Craig Ulman, the 2005 ABA article titled “Tranfers of Structure Settlement Payments: What Judges Should Know About Structured Settlement Protection Acts” is the definitive analysis for judges as well as for professionals who want to understand the role of judges in settlement transfers.
  • “Structured Settlements and Periodic Payment Judgments” – Originally published in 1986, this hardcopy textbook is co-authored by Daniel Hindert, Joseph Dehner and Patrick Hindert.  Release 39 originated, and subsequent releases have updated, a new chapter titled “Transfers of Structured Settlement Payment Rights”.

February 14, 2008

West Virginia House Bill 4380

The 2000 agreement between the National Structured Settlement Trade Association (NSSTA) and the National Association of Settlement Purchasers (NASP) to support the Model Structured Settlement Protection Act (Model Act) appears to be in jeopardy this week in West Virginia.

Since 2000, NSSTA and NASP have jointly promoted the Model Act to state legislatures with considerable success including support from state attorneys general, state bar associations and the National Conference of Insurance Legislators (NCOIL). Forty-eight states have enacted structured settlement protection statutes many of which are patterned after the Model Act.  Recent amendments to these state protection statutes, such as Pennsylvania Rule 229.2, have generally received favorable reviews from both NSSTA and NASP.

NASP representatives, however, are accusing NSSTA of violating their legislative agreement by failing to oppose West Virginia House Bill 4380. Currently under consideration by the West Virginia House Banking and Insurance Committee, House Bill 4380 would amend and reenact Section 46A-6H-3 of the Code of West Virginia titled "Transfers of Right to Receive Future Payments".

The stated purpose of House Bill 4380 is "to increase protection of beneficiaries to structured settlements as they relate to settlement transfers". In its current form, House Bill 4380 contains three controversial provisions not included in the Model Act:

  • A requirement for a court to approve a guardian ad litem for the consumer in all transfer cases;
  • A "clear and convincing evidence...of financial hardship" standard in addition to the Model Act's "best interest" standard;
  • A maximum discount rate not to exceed "the current annual average percentage rate of interest on twenty year residual mortgages offered in this state, as determined by the banking commissioner."

Representatives of NASP, which opposes House Bill 4380, claim the above provisions violate the Model Act and, if enacted, could effectively end structured settlement transfers in West Virginia. NASP representatives have called upon NSSTA to honor its agreement to support the Model Act by opposing House Bill 4380. NASP contends that NSSTA's failure to oppose House Bill 4380 is a de facto violation of their 2000 legislative agreement and threatens future cooperation between the two trade associations. In addition, they point out that Ronald N. Walters, one of legislative sponsors of House Bill 4380, also manages the Charleston, West Virginia office of Structured Financial Associates, Inc. (SFA).  SFA is a NSSTA member.

According to a NSSTA source, however, "NSSTA has had nothing to do with introducing House Bill 4380.  Although NSSTA does not intend to oppose House Bill 4380, NSSTA still approves the Model Act."

For additional information about state protection laws, see Section 16.04 ("Structured Settlement Protection Acts") in "Structured Settlements and Periodic Payment Judgments".

December 31, 2007

Structured Settlements in 2007

Happy holidays from S2KM Limited. Thank you for reading S2KM's blog during 2007. This final 2007 S2KM blog post highlights some of this year's important structured settlement developments and issues.  For additional background information, see:

Industry Growth and Development

  • Industry insiders are predicting final 2007 structured settlement annuity sales (qualified and non-qualified) will match or slightly exceed total 2006 production of $6.1 billion.
  • Membership growth in 2007 for the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP), the primary structured settlement trade associations, also appears flat. Neither of these associations has articulated a strategy for growing the structured settlement industry.
  • NSSTA replaced long-time Executive Director Randy Dyer in 2007 with association management company Smith Bucklin. NSSTA has announced it will continue a business relationship with Dyer. However, NSSTA has not yet announced Dyer's new role or responsibilities.
  • Annuity provider Mass Mutual exited the structured settlement industry in 2007 joining other recent industry departures such as Genworth, Travelers and Aegon. No new annuity providers entered the structured settlement market in 2007.
  • The secondary life and annuity markets continued to be controversial within the structured settlement industry in 2007. Semetra resigned from NSSTA in 2007 based in part on their disagreement with NSSTA's Bylaw Amendments related to structured settlement factoring. Neither NSSTA nor SSP allows factoring companies to join their associations.
  • Although the secondary structured settlement market continues to grow in 2007, the overall pace of its growth appears to have leveled off for many, but not all, participants.
  • Preliminary strategic recognition and some consolidation continued during 2007 within these overlapping markets:
    • Structured settlements;
    • Personal injury settlement planning;
    • Litigation funding;
    • Special needs planning;
    • Secondary insurance and annuity markets.

Legislation and Regulations    

  • New York Governor Eliot Spitzer announced a $750 million "agreement in principle" for Executive Life of New York in 2007. The agreement is designed to continue paying all ELNY annuitants 100% of their benefits. The announcement represents a public relations victory for the structured settlement industry. Many questions about the agreement, however, remain unanswered. For example: the amount of contributions from indemnity (casualty) insurers who own or have assigned structured settlement annuities.
  • State Medicaid Agencies are continuing to adopt annuity provisions from the Deficit Reduction Act into their state Medicaid Plans. Interpretations and applications of these new annuity rules remain inconsistent creating process bottlenecks and denials. The impact of the secondary annuity markets on Medicaid qualification remains unclear in 2007. The Social Security Administration (SSA) announced in 2007 that it will draft POMS for annuities in 2008. For additional information about the Deficit Reduction Act, see:
  • 48 states have enacted structured settlement protection statutes. Overall, these statutes appear to be accomplishing their purposes and functioning with increasing certainty and efficiency. Pennsylvania's judiciary adopted Pennsyvania Rule 229.2 in 2007 tightening some rules and processes within that state's protection statute.
  • The U.S. Treasury has not ruled on single claimant 468B funds in 2007.

Case Law - some of the significant 2007 cases:    

  • DOJ Sovereign Immunity Defense - see "Drinker Biddle's Structured Settlement Update" for analysis of two DOJ sovereign immunity cases: Transamerica v. Settlement Capital and Continental Casualty v. United States.
  • Primary Market Disclosure Case - "Pullman & Comley's Structured Settlement Insights" provided the first Internet analysis of Joseph v. The City of New York which Pullman & Comley characterizes as ""the first court opinion to analyze the requirements in structured settlement protection acts that disclosures be made when negotiating a structured settlement."
  • Rapid Settlements cases challenging secondary market laws and business practices including:
  • Murphy v. IRS - Eleven months after ruling that taxing damage awards for nonphysical compensatory damages violated the United States Constitution, the United States Court of Appeals for the District of Columbia Circuit has reversed itself in Murphy v. IRS by holding that the United States can tax awards for emotional distress and injury to reputation.
  • Macomber v. Travelers - the parties agreed to a confidential settlement in 2007.  It is unclear what legal precedents, if any, the earlier Connecticut State Supreme Court rulings in this case will hold for current or future structured settlement litigation.

Educational Programs and Resources

  • Both NSSTA and SSP offered certification programs in 2007.    
  • S2KM attended educational programs for the following trade associations in 2007 and wrote blog posts (see links) evaluating their structured settlement educational programs:          
    • National Structured Settlement Trade Association (NSSTA).          
    • Society of Settlement Planners (SSP)          
    • American Association for Justice (AAJ)          
    • National Academy of Elder Law Attorneys (NAELA)          
    • Academy of Special Needs Planners (ASNP)          
    • National Association of Settlement Purchasers (NASP)    
  • The structured settlement industry continued to offer various additional educational resources in 2007:          
    • Blogs, podcasts, wikis and concept maps;          
    • Digital and hardcopy newsletters;          
    • Hardcopy legal textbooks.

Business Standards and Practices

  • 2007 developments
    • Broker Relations Initiative - status report provided in this S2KM blog post.
    • SSP Ethics Project - status report provided in this S2KM blog post.
  • 2007 issues:
    • Structured settlement public policy
    • Claim management vs. settlement planning
    • Consumer and investor protection including:
      • Compensation disclosure;
      • Informed consent;
      • Single claimant 468B funds;
      • Unfair claim practice legislation;
      • Fiduciary responsibilities for professional advisors.

December 11, 2007

Secondary Life and Annuity Markets - 1

Recent developments related to the secondary life insurance and annuity markets should encourage several professional associations to learn more about these markets - and to provide improved education in 2008 for their members about these markets.

Responsible professional associations include:

  • The National Structured Settlement Trade Association (NSSTA)
  • The Society of Settlement Planners (SSP)
  • The National Academy of Elder Law Attorneys (NAELA)
  • The American Association for Justice (AAJ)
  • The Academy of Special Needs Planners (ASNP)
  • The Special Needs Alliance (SNA)

Recent secondary market developments include:

  • Mealey's Conference: "Life Insurance in the Secondary Market" - Mealey's in-person conference, developed in collaboration with Drinker Biddle, is occuring December 11-12, 2007 at the Harvard Club of New York City.
  • Deal Flow Media (DFM) - DFM, a publisher and educator focusing on specialty financial markets including life settlements, has announced it will enter the structured settlement market in 2008.
  • A.M. Best - A.M. Best recently introduced "Best's Structured Finance Center", a web portal for the insurance-linked securities market.
  • NCOIL - The National Conference of Insurance Legislators (NCOIL) adopted a Model Life Settlements Act at its most recent meeting.

For additional information about life settlements, see:

For additional and related S2KM commentary, see:


November 24, 2007

Deal Flow Media Webinar

Deal Flow Media publishes reports, and also sponsors webinars and conferences, about specialized financial markets.

Deal Flow Media's markets include:

  • Life Settlements
  • Private Investments in Public Equity (PIPEs)
  • Special Purpose Acquisition Companies (SPACs)
  • Reverse Mortgages
  • Distressed Debt

On November 29, 2007, Deal Flow Media will enter the structured settlement market by sponsoring its first structured settlement webinar.  Please note the Postcript at the end of this post. Deal Flow Media will be rescheduling and expanding this structured settlement webinar.

In addition to Brett Goetschius, Karen Meyers and Dan Finn, this author will be one of the featured speakers. My topic will be "The Structured Settlement Secondary Market".  Some of the questions my presentation will address:

  • What is a structured settlement 
  • What is a structured settlement factoring transaction?
  • What are structured settlement payment rights?
  • What is the secondary structured settlement market?
  • How do the primary and secondary markets interact?
  • Why do payees sell structured settlement payment rights?
  • What definitions and legal rules apply to this secondary market?
  • How large is the structured settlement secondary market?
  • Who are the leading secondary market participants - and why are they successful?
  • What does an investor in structured settlement payment rights actually purchase?
  • What are the business and investment risks?

Additional S2KM online resources about the structured settlement primary and secondary markets:

Postcript - added November 28, 2007

  • Deal Flow Media has decided to reschedule and expand its structured structured webinar.  Deal Flow Media will announce new dates and details for its expanded webinar on Deal Flow Media's website.   This author will appear as a participant in Deal Flow Media's structured settlement webinars- and will also provide continuing S2KM blog coverage of Deal Flow Media's structured settlement publications.
  • S2KM has added corrected links for the following concept maps developed by Dr. Barbara Bowen of Sound Knowledge Strategies.  Each concept map includes embedded submaps and links.

For additional information about S2KM's collaboration with Barbara Bowen, see "Web 2.0 for Lawyers Concept Map".

October 24, 2007

NASP 2007 Annual Meeting - 3

This blog post concludes S2KM's coverage of the NASP 2007 Annual Meeting held October 18-19 at the Grand Hyatt in Washington, D.C. and highlights selected comments from the NASP panel discussion about the Structured Settlement Market addressing:

  • Structured settlement brand;
  • Settlement transfer market;
  • Factoring discount rates.

S2KM has added a summary of selected panel comments about the structured settlement market to the nasp wiki.

For prior S2KM coverage of NASP's 2007 Annual Meeting, see NASP-1 and NASP-2.

October 23, 2007

NASP 2007 Annual Meeting - 2

This blog post continues S2KM's reporting about NASP's 2007 Annual Meeting.  For earlier S2KM reporting: see NASP 2007 Annual Meeting - 1.

S2KM continues to update and improve the nasp wiki where S2KM is capturing key components of a conversation about "The Structured Settlement Market" initiated October 19, 2007 at the Grand Hyatt Hotel in Washington, D.C.

Recent additions to the nasp wiki include summary outlines for these NASP educational presentations:

  • Stephen R. Harris - topic: "Transfer Issues";
  • Patrick J. Hindert - topic: "The Primary Market".

October 20, 2007

NASP 2007 Annual Meeting - 1

The National Association of Settlement Purchasers (NASP) hosted its 2007 Annual Meeting October 18-19 at the Grand Hyatt in Washington, D.C.   This author was privileged to participate. 

S2KM's reporting about NASP's 2007 Annual Meeting begins with this blog post and this wiki which summarizes NASP's 2007 Educational Program -  a learning conversation about "The Structured Settlement Market". 

For prior S2KM commentary about NASP, see this S2KM blog post.

September 03, 2007

Structured Settlement Educational Programs - Fall 2007

Fall of 2007 features many association meetings and educational events that should interest structured settlement attorneys, other structured settlement professionals and stakeholders.

This S2KM blog post:

  • Highlights these Fall 2007 meetings and educational events; and
  • Features related commentary and analysis from S2KM and structured settlement knowledge leaders.

National Structured Settlement Trade Association (NSSTA)

Society of Settlement Planners (SSP)

National Association of Settlement Purchasers (NASP)

National Academy of Elder Law Attorneys (NAELA)

Special Needs Planners

National Alliance of Medicare Set-Aside Professionals (NAMSAP)

American Association for Justice (AAJ)

Additional Educational Resources - for structured settlement attorneys, other professionals and stakeholders: