Presiding Judge John M. Galasso today denied a motion filed on behalf of Executive Life of New York (ELNY) structured settlement shortfall victims to compel immediate disclosure of source materials relied upon by testifying expert Jack Gibson as well as copies of all objections filed in connection with the Petition to liquidate and restructure ELNY.
Attorneys for the structured settlement shortfall victims had argued that claims of confidentiality by ELNY's Receiver, the Superintendent of the New York State Department of Financial Services, (Superintendent) intentionally deprived their clients of full and fair access to important and relevant information and, accordingly, a full and fair opportunity to challenge the Superintendent's proposed ELNY Restructuring Agreement.
Gibson, the Superintendent's expert witness, had earlier testified that an ELNY annuity administrative database prepared by MetLife had formed the sole basis for his projections regarding ELNY's future liabilities which, under the proposed Restructuring Agreement, would become liabilities of successor company Guaranty Association Benefits Company (GABC).
In addition to the MetLife database, attorneys for the ELNY structured settlement shortfall victims unsuccessfully sought disclosure of other documents relied upon by Gibson including an ELNY 2002-2010 Mortality Experience Study, a MetLife/ELNY Administrative Agreement, Investment Reports from ELNY's Investment Managers, plus information developed by NOLHGA showing Guaranty Association estimates and allocations for individual annuity contracts.
Neither the ELNY structured settlement shortfall victims nor their attorneys have had access to any of these materials which Gibson relied upon to conclude that GABC is financially viable. The ELNY structured settlement shortfall victims' attorneys claimed it is "extremely prejudicial" to require them to cross-examine Gibson ("a highly skilled actuary") without access to the source data and assumptions he used to perform his calculations.
In addition to Gibson's source materials, the ELNY structured settlement shortfall victims' motion also sought to compel the Superintendent to make accessible all publicly filed court documents including especially the Objections filed by all objectors.
Despite references to various objections in the Superintendent's Reply Memorandum and Jonathan Bing's Affidavit and testimony, the Superintendent has refused to share copies with the ELNY structured settlement shortfall victims or their attorneys. In contrast, the Superintendent has shared the full set of Objections with the National Organization of Life and Health Guaranty Associations (NOLHGA) and the Life Insurance Company Guaranty Corporation of New York (LICGCNY).
To address the Superintendent's claimed concerns of confidentiality, attorneys for the ELNY structured settlement shortfall victims offered to accept redacted versions of the documents or enter into a confidentiality agreement. Challenging the Superintendent's claimed concerns of confidentiality, attorneys for the ELNY structured settlement shortfall victims alleged the Superintendent's true motive is to deprive the ELNY structured settlement shortfall victims a full and fair opportunity to challenge the proposed ELNY Restructuring Agreement.
The ELNY Liquidation Hearing will reconvene Tuesday March 20, 2012 with attorneys for the ELNY structured settlement shortfall victims continuing their cross-examination of Gibson. For S2KM's complete reporting about the ELNY liquidation, see the structured settlement wiki.
My attorney is Edward Stone. His number is 203 550 0738. His website is www.edward-stone.com. If you are a shortfall payee like myself, you should contact him ASAP!
Posted by: Jane Nalod | March 20, 2012 at 01:25 PM
WHO ARE THE ATTORNEYS REPRESENTING THE SHORTFALL VICTIMS, AND HOW CAN WE CONTACT THEM.
Posted by: FAYLEEN SCHWARTZ | March 19, 2012 at 09:54 PM