Beyond Structured Settlements

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:

• S2KM Mid-2007 Structured Settlement Report
• Structured Settlements in 2006

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:
  • Release 41 of "Structured Settlements and Periodic Payment Judgments";
  • Inconvenient Questions; and
  • NAELA Annuity Policy White Paper.
• 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:
  
  • Rapid v. Symetra; and
  • CNA v. Rapid Settlements

• 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.

• Additional compensation issues:
  • Rebating
  • Affinity programs
  • Secondary market transactions
• Unauthorized practice of law.

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:

• Structured Settlements
  • Overview of the Structured Settlement Market
  • History of Structured Settlements
  • Future of Structured Settlements
  • Structured Settlement Transaction Diagram
  • Structured Settlement Public Policy Wiki
  • Structured Settlements and Government Benefits
  • Blog posts featuring Robert Wood's podcasts
    • Structured Attorney Fees
    • Single Claimant 468B Funds
• Structured Settlement Secondary Market
  • Structured Settlement Transfers
  • Settlement Transfer Update
  • Settlement Transfers - Release 39
  • How the Primary Market Views Factoring
  • NSSTA Bylaw Amendments
  • J.G. Wentworth v. Peachtree Settlement Funding
  • Settlement Transfers: Wentworth and Symetra
  • Rapid v. Symetra
  • Review of Robert Wood's article: "Structured Settlements: Factor vs.Commute".
• National Association of Settlement Purchasers (NASP)
  
  • 2007 Annual Meeting
  • 2006 Annual Meeting
  • NASP Wiki

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.
  • Overview of Structured Settlement Markets
• How the Primary Market Views Factoring

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

CNA v. Rapid Settlements

At a June 7, 2007 hearing of the New York Supreme Court (County of Onondaga), Judge Deborah Karalunas held Rapid Settlements LTD (Rapid) in civil contempt for violating an earlier oral decision and written order of that court in a case titled CNA Structured Settlements and Continental Assurance Company (CNA) v. Rapid Settlement LTD and Willie T. Lawrence.  The New York court ordered Rapid to pay a penalty of $10,000 to CNA "which represents compensation for their costs and attorney fees in prosecuting the contempt motion as well as an amount to coerce Rapid's compliance with this Court's order of March 15, 2007."

According to the case transcript, the New York Supreme Court earlier issued an oral decision and ruling on February 28, 2007 that granted plaintiffs (CNA) a declaratory judgment finding Rapid had no rights to receive the structured settlement payments at issue. The New York court permanently enjoined Rapid from further prosecuting an action in Harris County, Texas against Willie Lawrence, a structured settlement recipient. The court memorialized its decision in a written order March 15, 2007.

On March 14, 2007, however, Rapid convinced a judge in Harris County to sign a "Final Judgment" in the same proceeding that was the subject of the New York court's permanent injunction - apparently without mentioning the prior New York court injunction. In its "Final Judgment", the Texas court affirmed an arbitration award in favor of Rapid concerning the structured settlement payments the New York court had earlier ruled did not belong to Rapid.  On April 30, 2007, relying on the March 14 Texas ruling, Rapid demanded in writing that CNA pay Rapid the structured settlement payments.

At the June 7, 2007 hearing before the New York court, Rapid unsuccessfully argued:

• The Feb 28 legal decision was without legal effect until it was reduced to a written order on March 15;
• The March 15 order was not valid until it was served on Rapid;
• It was inappropriate for the New York court to enjoin the Texas court.

The New York Supreme Court disagreed with Rapid.

Representing CNA, attorney Stephen R. Harris of Drinker Biddle cited cases holding that a directive from the bench is valid whether or not it is reduced to writing. "The only issue", according to Harris, "is whether it's clear to all concerned what the order was."  Harris pointed to a transcript of the court order of February 28, 2007 which stated: "Rapid is permanently enjoined from further prosecuting the Texas action to enjoin its improper arbitration award." According to Harris, "...what Rapid is doing is a national campaign and essentially it's in defiance of courts all over the country."  Harris concluded: "...every court that has looked at Rapid's conduct in terms of trying to enforce these arbitration awards in violation of the transfer act has found against Rapid..."

For related S2KM reporting, see:

• Rapid v. Symetra
• Drinker Biddle's Structured Settlement Update
• S2KM Mid-2007 Structured Settlement Report.