Garamendi v. Altus Finance S.A.

As Executive Life of New York (ELNY) stakeholders and structured settlement industry participants await the outcome of the ELNY appeal , challenging the ELNY Order of Liquidation and Approval of the ELNY Restructuring Agreement, they may be surprised to learn the ultimate fate of Executive Life of California (ELIC), ELNY's sister company, likewise continues to be litigated.

The most recent ELIC-related development occurred October 29, 2012, in Garamendi v. Altus Finance S.A., when a federal jury in Los Angeles rejected a claim by California's Insurance Commissioner that, but for a conspiracy by French investor group Artemis S.A.:

• ELIC's original conservator (then California insurance commissioner John Garamendi) would have accepted an alternative bid in 1991 by state insurance guaranty associations; and
• The alternative bid would have retained profits from ELIC's junk bond portfolio for the benefit of policyholders including ELIC structured settlement recipients.

The actual 1991 ELIC sales agreement was a two-part sales agreement with New California Life Holdings, Inc. (NCLH) and Altus Finance (Altus), an affiliate of the French Bank Credit Lyonnais. That agreement was subsequently modified and approved by a California Superior Court on August 13, 1993 as part of the ELIC rehabilitation plan.

Under the 1991 agreement, Altus paid $3.25 billion and acquired ELIC's $6.4 billion junk bond portfolio. The Altus purchase price included $300 million of capital for a newly formed company, Aurora National Life Assurance Company, Inc. (Aurora) which assumed ELIC's remaining assets and liabilities including its structured settlement obligations. Also, as part of the actual sales agreement, the Artemis S.A. joint venture acquired a controlling interest in NCLH.

 A California Court of Appeals previously summarized these complex ownership relationships as follows: "Artemis S.A. is the parent of Aurora S.A. Aurora S.A. owns a controlling interest in NCLH. NCLH owns 100 percent of Aurora."

In retrospect, many critics claimed the 1991 agreement substantially undervalued ELIC's junk bond portfolio. Although the junk bond market was depressed and thinly traded in 1991, it was among the best performing investment markets in 1992 and 1993. Even in 1991, a substantial percentage of the junk bonds owned by First Executive Corporation (FEC) and its two Executive Life subsidiaries were current on interest payments and ultimately fulfilled their investment obligations.

ELIC-related legal developments between 1993 and the October 29, 2012 jury decision in Garamendi v. Altus Finance have also been complex. Relevant historical highlights:

• Subsequent to its NCLH purchase, Artemis learned of a conspiracy by Altus/MAAF Group, an investment group which previously controlled NCLH, to evade the prohibition under California law on foreign entities controlling California insurers. Rather than disclose this conspiracy to the California Insurance Commissioner, Artemis submitted multiple filings that contained false or misleading information.
• In 1999, the California Insurance Commissioner learned from a whistleblower about the Altus S.A./MAAF Group conspiracy and filed conspiracy lawsuits against multiple defendants including French bank Credit Lyonnais.
• In 2005, some of the defendants in the conspiracy lawsuits, including Credit Lyonnais, settled for $730,500,000, most of which was distributed to former ELIC policyholders and payees.
• The conspiracy lawsuit against the two remaining defendants, Artemis S.A. and Francois Pinault (Artemis' controlling shareholder), was conducted in Federal Court in 2005. The jurors found Artemis and Pinault liable for engaging in a conspiracy and awarded $0 in compensatory damages and $700 million in punitive damages. The trial court awarded an additional $241 million in equitable restitution.
• On August 25, 2008, the Ninth Circuit Court of Appeals vacated the damage awards against Artemis and Pinault and remanded the case for a new trial on the issue of damages.

For a more detailed background case summary, see S2KM's 2011 blog post "Aurora S.A. v. Poizner".

 In an article published October 30, 2012, Bloomberg Businessweek wrote that, following the most recent Garamendi v. Altus Finance SA verdict, U.S. District Judge Gary Klausner said "he was inclined to reinstate the restitution that the judge presiding over the 2005 trial had awarded the insurance commissioner" and "[Judge] Klausner ordered both sides to file briefs on the restitution including what amounts they thought were appropriate."

 For a background summary of ELIC, see S2KM's blog post "Executive Life of California" and, for greater detail, section 3.05[12] of "Structured Settlements and Periodic Payment Judgments" (S2P2J).

For S2KM's complete and continuing Executive Life reporting, see the structured settlement wiki.