Beyond Structured Settlements

Past Reporting - ASNP, NAELA, NAMSAP

Historical S2KM reporting about conferences sponsored by ASNP, NAELA and NAMSAP which previously appeared on the structured settlement wiki.

ASNP

• 2007 ASNP Annual Meeting
• 2008 ASNP Annual Meeting
• 2009 ASNP Annual Meeting
• 2010 ASNP Annual Meeting
• 2011 ASNP Annual Meeting
• 2012 ASNP Annual Meeting
• 2013 ASNP Annual Meeting
• 2014 ASNP Annual Meeting
• 2015 ASNP Annual Meeting
• 2016 ASNP Annual Meeting
• 2017 ASNP Annual Meeting

NAELA

• 2006 NAELA Advanced Institute
• 2007 Advanced Elder Law Institute
• 2008 NAELA Symposium
• Part 1
• Part 2
• 2010 NAELA Special Needs Summit
• Part 1 - summary
• Part 2 - analysis
• Part 3 - web 2.0 webinar
• 2012 Ohio NAELA Unprogram
• 2013 NAELA Annual Meeting
• 2014 NAELA Annual Conference
• 2016 NAELA Summit

NAMSAP

• 2005 NAMSAP Annual Meeting
• 2008 NAMSAP Annual Meeting
• 2010 NAMSAP Annual Meeting
• 2014 NAMSAP Regional Meeting
• Part 1
• Part 2
• 2014 NAMSAP Annual Meeting
• 2015 NAMSAP Winter Regional Conference
• 2015 NAMSAP Annual Conference

Past Reporting - SSP

Historical S2KM Reporting about Society of Settlement Planner (SSP) Conferences which previously appeared on the structured settlement wiki.

SSP

• 2005 SSP Annual Meeting
• 2006 SSP Annual Meeting
• 2007 SSP Annual Meeting
• 2007 SSP Fall Meeting
• 2008 SSP Annual Meeting - 2 posts
• 2009 SSP Annual Meeting
• 2010 SSP Annual Meeting
• Part 1 - topics and speakers.
• Part 2 - S2KM pre-meeting strategic perspective.
• Part 3 - leadership changes.
• Part 4 - awards and recognition.
• Part 5 - NSSTA's lobbying strategy.
• Part 6 - tax panels part 1 - introducing the participants.
• Part 7 - tax panels part 2 - discussing the issues.
• Part 8 - Dan Clark and NSSTA ethics.
• Part 9 - industry leadership and issues.
• 2011 SSP Annual Meeting
• Part 1 - speakers and topics
• Part 2 - strategic perspective
• Part 3 - tax issues
• Part 4 - transition to settlement planning
• Part 5 - transition to multiple, more flexible products
• Part 6 - transition to the internet
• Part 7 - insurer insolvencies and guaranty associations
• 2012 SSP Annual Meeting
• Part 1
• Part 2
• 2013 SSP Annual Meeting
• 2014 SSP Annual Conference
• Part 1
• Part 2
• 2015 SSP Annual Conference
• Part 1
• Part 2
• 2016 SSP Annual Conference
• SSP 2017 Annual Conference

Past Reporting - NSSTA

Historical S2KM Reporting about National Structured Settlement Trade Association (NSSTA) Conferences which previously appeared on the structured settlement wiki.

NSSTA Conferences

• 2005 NSSTA Winter Meeting
• 2005 NSSTA Annual Meeting - 2 posts
• 2005 NSSTA Fall Meeting
• 2006 NSSTA Winter Meeting
• 2006 NSSTA Annual Meeting - 2 posts
• 2006 NSSTA Fall Meeting
• 2007 NSSTA Winter Meeting - 3 posts
• 2007 NSSTA Fall Meeting
• 2008 NSSTA Winter Meeting
• 2008 NSSTA Annual Meeting - 2 posts
• 2008 NSSTA Fall Meeting - 3 posts
• 2009 NSSTA Winter Meeting
• 2009 NSSTA Annual Meeting
• 2009 NSSTA Fall Meeting
• 2010 NSSTA Annual Meeting
• Part 1 - topics and speakers.
• Part 2 - S2KM pre-meeting strategic perspective.
• Part 3 - leadership changes.
• Part 4 - awards and recognition.
• Part 5 - NSSTA's lobbying strategy.
• Part 6 - tax panels part 1 - introducing the participants.
• Part 7 - tax panels part 2 - discussing the issues.
• Part 8 - Dan Clark and NSSTA ethics.
• Part 9 - industry leadership and issues.
• 2010 NSSTA Fall Meeting
• Part 1 - industry issues
• Part 2 - discussion topics
• Part 3 - "protect and preserve" vs. "improve and grow"
• Part 4 - strategic questions
• 2011 NSSTA Annual Meeting
• Part 1 - speakers and topics
• Part 2 - strategic perspective
• Part 3 - tax issues
• Part 4 - transition to settlement planning
• Part 5 - transition to multiple, more flexible products
• Part 6 - transition to the internet
• Part 7 - insurer insolvencies and guaranty associations
• 2011 NSSTA Fall Meeting
• 2014 NSSTA Fall Educational Conference
• 2015 NSSTA Structures 202 Conference
• 2015 NSSTA Annual Meeting
• 2015 NSSTA Fall Conference
• 2016 NSSTA Structures 202 Conference
• 2016 NSSTA Annual Conference

Structured Settlement 2016 Annuity Sales

Among many recent structured settlement industry developments, perhaps the most significant and impressive has been the continuation of sustained primary market annuity sales growth - especially in the context of various industry challenges. These challenges have included: 1) the aftermath of the ELNY insolvency; 2) continuation of historic low interest rates; 3) public exposure of unsavory secondary market business practices; and 4) a generational transition within the structured settlement industry.

Despite these challenges, primary market annuity sales (on a comparative basis with prior years) totaled $5.73 billion in 2016 (based upon 24,750 cases with an average case size of $231,478) according to industry estimates compiled and recently distributed by Melissa Price. 2016 sales totals compare favorably, and show a steady increase, compared with similar sales totals for these prior years::

• 2015 - $5.35 billion
• 2014 - $5.25 billion
• 2013 - $5.13 billion
• 2012 - $4.82 billion

For the first time, Ms Price's 2016 report included structured settlement annuity sales by USAA. Although USAA is a member of the National Structured Settlement Trade Association (NSSTA), it is S2KM's understanding that USAA is one of multiple "affiliated" life companies that limits its structured settlement sales to internal USAA claims only. Typically, because these companies don't compete for external business, they don't report their sales data.

Inclusive of USSA, 2016 structured settlement sales totaled $5.80 billion (based upon 25,201 cases with an average case size of $230,320. Even including USSA, the 2016 annual premium totals still fall short of the historic 12 month industry high ($6.2 billion in 2008) after consistently averaging close to $6 billion annually from 2001-2007.

It should also be noted, that while structured settlement premium has continued to increase since 2012, the number of structured cases has not noticeably increased - resulting in an ever-increasing average case size. This development may be explained by more structured settlement brokers transitioning to a settlement planning approach, which by definition targets larger cases. For example, Ringler, historically the largest U.S. structured settlement broker, has recently re-branded itself as "the largest settlement planning company in the nation."

Incorporating the USAA 2016 numbers, and adding the 2016 results to historic U.S. structured settlement totals, S2KM estimates the following primary market metrics from 1976 thru 2015:

• Total annuity premium: $156 billion.
• Total structured settlement cases: 879,000
• Average annuity premium: $177,474

Berkshire Hathaway continued its recent primary market leadership in 2016 by generating $1.504 billion of structured settlement annuity premium - a 15% percent increase from 2015. For the first time since 2011, two companies exceeded $1 billion in structured settlement annuity sales as Pacific Life increased its 2016 total to $1.186 billion from its year earlier total of $871MM - a 36% percent increase.

The U.S. structured settlement market now consists of nine NSSTA-member annuity providers who report their structured settlement annuity sales - down from more than 20 as recently as 2002. 2016 sales results (rounded in millions) for the seven other structured settlement annuity providers (per Ms Price's report) plus the rounded percentage increase (+) or decrease (-) from comparable 2015 results:

• MetLife: $815MM (+6%)
• Amgen: $688MM (+12%)
• Liberty Life: $513MM (-6%)
• New York Life: $487MM (+32%)
• Prudential: $399MM (-48%)
• Mutual of Omaha: $141MM (+44%)
• USAA: $72MM (first report)

Ms Price's 2016 compilation also reports an annual increase in annuity premium for non-qualified structured settlement assignments (from $190.3 million in 2015 to $199.2 million in 2016) as a portion of the overall structured settlement numbers. Non-qualified assignments represent transfers of periodic payment obligations that do not meet the requirements of IRC sections 130 and 104(a)(1) or (2) including deferred attorney fees.

From S2KM's perspective, several factors help to explain the sustained primary market sales growth:

• Increased Industry Unity - As former SSP President Neil Johnson pointed out in 2014, for many years, an historical lack of structured settlement industry unity created a drain - a drain on financial resources ... a drain on productivity ... a drain on our public image ... a drain on physical and emotional health. Lack of unity diverts attention from productive projects." Recent leaders of NSSTA, SSP and NASP have encouraged greater cooperation and focused their associations on more productive projects.
  • SSP - As an organization, SSP is no longer a political advocate for injury victims' rights. As Joe Tombs, its current President, stated in this recent S2KM interview: "A year ago, we decided to abandon taking 'political' positions.'' Instead, Tombs added: "1) SSP has substantially expanded its membership; 2) we have re-focused on professional settlement planning as our primary Mission and purpose; 3) we have pretty much put to bed the idea that we oppose NSSTA; and 4) we have developed a new set of Professional Practice Standards which we will introduce during our 2017 Annual Conference."
  • NSSTA - Although NSSTA continues to advocate for structured settlements, NSSTA has likewise undertaken its own initiatives toward achieving greater industry unification. As identified by former NSSTA President Michael Goodman in 2014, these initiatives have included: 1) a strong relationship with the AAJ; 2) improved dialogue with the SSP; 3) guest educational participation involving SSP and NASP representatives; 4) successful cooperation with NASP to enact revised structured settlement protection legislation in multiple states.
• Market Research - Among the structured settlement growth opportunities, expanded use by traditional stakeholders represents arguably the number one priority - a priority which NSSTA highlighted during 2014 by commissioning CLM Advisors to conduct a three-part survey of senior claims executives (Part 1); front line claims professionals (Part 2); and plaintiff attorneys (Part 3). For S2KM's summary and analysis of these surveys, see:
  • Senior Claim Executives
  • Claim Professionals
  • Plaintiff Attorneys
• Transitional Goals- During NSSTA' 2015 Annual Meeting, Goodman announced a series of transitional growth-oriented goals for NSSTA and its members: 1) modifying NSSTA's traditional "protect and preserve" message to inspire primary market growth; 2) moving beyond "interest rate selling"; 3) moving beyond a focus on factoring; 4) identifying and pursuing new markets for structured settlement annuities; 5) adding one or more new life company providers; 6) engaging new, younger structured settlement brokers; 7) providing a new and improved training initiative.
• Growth Initiative Committee - To help support these goals, NSSTA's Board of Directors established a new NSSTA "Industry Growth Initiative," "designed to identify opportunities to expand the use of structured settlements and bring those opportunities to the structured settlement industry marketplace." The first Growth Initiatives to be selected and approved:
  • Rejuvenate Defense Programs (including casualty insurers, commercial insureds and TPAs) - Originally the prime movers for structured settlements, many defense insurers have reduced or completely abandoned their structured settlement programs citing a variety of reasons.
  • Amend the Federal Employee Compensation Act - FECA, which provides workers compensation like benefits for federal workers, currently does not permit structured settlements.
  • Convertible Deferred Lump Sums - As a sales response to "low interest rates", the Growth Committee proposed a new structured settlement feature. As envisioned, the convertible deferred lump sum would allow a structured settlement recipient to select a future lump sum that would automatically convert on its payment date into a series of predetermined periodic payments payable at whatever annuity rates offered at the time of conversion by the issuing life company.
  Under current President Len Blonder and current Growth Committee Chair Sean Coleman, the number of Growth Initiatives continues to expand with assistance from new NSSTA Communications and Marketing Director Abbey Hudson.
• Educational and Lobbying Support - To support its Growth Initiative, NSSTA has also expanded both its educational and certification programming as well as its strategic lobbying and lobbying partnerships. Educational Committee Co-Chairs Jordan Bossler and Nolan Robinson, CSSC Co-Chairs Karen Meyers and Patricia Fairhurst, and their respective committees, plus Compliance and Administrative Director Debbie Sink provide NSSTA with its strongest-ever group of educational resources. NSSTA Executive Director Eric Vaughn, who also serves as Vice Chair of the American Association for People with Disabilities (AAPD) and manages the Congressional Structured Settlement Caucus , has continued to expand NSSTA's lobbying outreach thru strategic relationships with national special needs attorney associations.

Ms Price's reports do not provide information about the structured settlement secondary market. For S2KM's most recent estimates of secondary market metrics, see this prior blog post. Based upon industry sources, it is S2KM's understanding that structured settlement secondary market sales declined during 2016.

NAMSAP 2016 Annual Conference

The National Alliance of Medicare Set-Aside Professionals (NAMSAP), "the only non-profit association exclusively addressing the issues and challenges of the Medicare Secondary Payer (MSP) Statute and its impact on workers’ compensation and liability settlements", hosted its 2016 Annual Conference September 14-16 in San Antonio, Texas.

NAMSAP, which also seeks and welcomes opportunities to help improve Medicare set-aside (MSA) industry standards for documentation, work product and business practices, encompasses a highly diverse professional membership consisting of attorneys, MSA allocators, MSP compliance consultants, CPAs, claims professionals, structured settlement consultants, guardians, nurses, pharmacists, rehabilitation professionals, and life care planners.

As S2KM has observed in reports about past NAMSAP conferences (see links below), the combination of membership diversity, subject matter complexity, legislative and regulatory developments plus an expanding MSA market create extraordinary challenges for NAMSAP in planning and organizing its educational programs. This year's conference, co-chaired by NAMSAP President Gary Paturneau and Michelle Allan, should be congratulated for setting new standards for attendance (180) and sponsor/exhibitors (15) as well as the quality and organization of the speakers and extensive handout materials. The conference educational program was divided into two parts: an "MSP Crash Course" and the General Conference.

NAMSAP 2016 CONFERENCE

TOPICS AND SPEAKERS

MSP "CRASH COURSE"

• MEDICARE SECONDARY PAYER ACT 101 - Dan Anders and Leslie Schumacher
• GENERAL ANATOMY OF THE WCMSA REFERENCE GUIDE - Jake Reason and Kathleen Wyeth
• WHAT WOULD CMS DO? - Barbara Fairchild and Erin O'Neill

GENERAL CONFERENCE

• CONFERENCE INTRODUCTION - Gary Paturneau and Michelle Allan (Co-Chairs)
• MEDICARE ADVANTAGE ORGANIZATION CASE LAW - Ciara Koba; Heather Sanderson Hon Lee Yeakel; Jennifer Jordan
• CIVIL MONETARY PENALTIES - Katie Fox; Monika Boswein
• CURRENT STATE OF CONDITIONAL PAYMENT RECOVERY - Michele Carey; Shawn Deane; William Delaney
• PRIMARY PAYER APPEALS - Deborah Robinson Stewart; Melissa Woitalewicz; Kim Young
• ADVENTURES IN ALLOCATING - Christine Melancon; Beth Hostetler; Jake Reason
• SUBMISSION VS. NON-SUBMISSION (OPT-OUT) FOR WC - John Cattie; Jennifer Jordan; MeLinda Petit; Robert Sagrillo; Mark Sidney; Rita Wilson; Mark Walls (Moderator)
• LIABILITY MSAS - David Cherry; Roy Franco; Thomas Spratt
• SETTLEMENT LANGUAGE - Joy Brewer; James Raines; Vincent Quatrini
• CONFLICTS WITH STATE LAW - Jeanmarie Calcagno (IL), Rodney McColloch (GA), Joseph Schneider (TX)
• WCMSA RE-REVIEW PROCESS - Carmen Folluo; Shannon Metcalf; Kimberly Wiswell
• MITIGATING COSTS WHILE PROVIDING QUALITY CARE - Amy Bilton; Amy Lee; Mark Pew; Pamela Schweitzer.
• WHAT IS AFFECTING STAKEHOLDERS - John Cattie; Doug Holmes; Greg McKenna; Gary Paturneau

NOTEWORTHY NAMSAP PRESENTATIONS

Among NAMSAP's many outstanding conference presentations, S2KM found the following most noteworthy from a structured settlement perspective:

• The "Crash Course" presentation "Medicare Secondary Payer Act 101", which also featured an informative Medicare Overview and included exceptional handouts, did not reference structured settlements. With that single proviso, however, this NAMSAP presentation successfully captured, organized and communicated applicable information and data better than any prior presentation S2KM has attended - and should become part of the core curriculum for future educational programs offered by the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP).
• Another NAMSAP "Crash Course" presentation which arguably should have, but did not, discuss structured settlements, was titled: "General Anatomy of the WCMSA Reference Guide". Specific references to "structured settlements" exist throughout the WCMSA Reference Guide - see, for example: Table of Contents 5.0; 5.2; 19.3; Appendix 3 (Glossary entry for "structured settlement"); and Appendix 5:15. Paradoxically, and more importantly, the subtitle for this NAMSAP's Crash Course presentation (the "Final resting place for the old CMS memos"), is critically important for understanding why structured settlements provide an inherent cost advantage, compared with cash, in funding WCMSAs - as S2KM first explained in this 2013 blog post and which appears to remain just as applicable and important in the context of CMS WCMSA Reference Guide Version 2.5.
• Only one NAMSAP 2016 conference presentation ("Settlement Language") substantively addressed structured settlements issues. Significantly, based upon S2KM's review, the structured settlement documentation included with the NAMSAP conference handouts for this presentation raised potential tax issues and highlighted a fundamental problem. The CMS WCMSA Reference Guide Glossary defines "structured settlement" as "[a] settlement in which the agreed-on funds are paid from an initial deposit and subsequent deposits on a regular basis for a given amount of time." Unfortunately, there is no specific link in the CMS WCMSA Reference Guide to either structured settlement tax law generally or the tax definition for “structured settlement” in IRC 5891(c)(1) or the tax requirements of IRC 130 and 104(a)(1) more specifically. Settlement documentation which may satisfies CMS, therefore, does not automatically satisfy the IRS.
• The concluding NAMSAP panel discussing "What is Affecting Stakeholders" provided a valuable, if overly brief, summary of the complex Federal and state legislative and regulatory developments re-shaping personal injury claim management and settlement planning. Although many of the Medicare-related developments were addressed individually by separate NAMSAP presenters, the "Big Picture" perspective helped to reinforce how dramatically and quickly systemic changes are redefining the marketplace. For the structured settlement industry to expand and retain a leadership position within these dynamic claim management and settlement planning markets, it follows (at least from S2KM's perspective) that industry leaders must improve their collective knowledge of the changing landscape (much of it related to government benefits) in order to help industry participants learn to re-position their sale from a stand alone alternative product to a critical component of integrated claim and settlement solutions.

ADDITIONAL S2KM OBSERVATIONS

During the NAMSAP 2014 Regional Conference, then NAMSAP President Michael Westcott explained why structured settlements and MSAs produce "a perfect match that also saves stakeholders on the cost of compliance":

• "A structured settlement is a contract that defines specific future periodic payments for a specific dollar amount for a specified time."
• "An MSA is an agreement with CMS to pay agreed upon future costs for an agreed dollar amount for an agreed period of time."

"Good settlement planning", Westcott added, "requires that all professional advisers know the roadmap to compliance." Unfortunately, he concluded, structured settlements continue to be underutilized amid too much discussion on process and too little on benefits.

Just as Westcott pointed out in 2014, structured settlements continue to be underutilized in 2016 - especially considering the inherent cost advantage CMS has provided for structured settlement funding of WCMSAs compared with cash. Among the reasons (from S2KM perspective): a strategic knowledge gap separates most of the structured settlement industry from the MSP community creating, especially for structured settlements, educational needs but also business opportunities. Some examples and thoughts:

• Among a diverse, intelligent and influential group of NAMSAP speakers, 15 exhibitors and 180 attendees, only six structured settlement brokers attended this year's NAMSAP conference; none of whom were featured speakers; and only one broker company exhibited. No structured settlement annuity provider representatives attended or exhibited.
• NSSTA's current Certified Structured Settlement Consultant (CSSC) certification program does not cover MSAs, or the MSP Act or government benefits more generally. This educational omission probably results, at least in part, from NSSTA's historic political and marketing slogan that: "structured settlements enable injury victims to live free of reliance on government assistance".
• Regardless of its historic accuracy and/or value, this political/marketing slogan now appears not only false but contradictory and counterproductive. For many of the most promising and strategic structured settlement submarkets (including not just MSAs, but also special needs trusts, the Affordable Care Act, and the ABLE Act) the challenges and growth opportunities require integrating structured settlements with government benefits.
• In 2014 NSSTA commissioned separate surveys of senior claims executives, claims professionals and plaintiff attorneys. Significant for Medicare and MSAs, two thirds of the senior claims executive survey participants said they believed that structured settlement broker/consultant skills had stayed the same compared to 10 years ago and that they would value more educational and informational services about MSA requirements. They also recommended that structured settlement broker/consultants expand their Medicare services. Claims professionals, when asked their preferred areas for more education, gave their highest response by far (71%) to MSAs.
• Providing a "carrier perspective" on MSA compliance during their 2014 NAMSAP Regional Conference presentation, claims executives William Paxman and Todd Reimer pointed out that, although MSA issues are increasingly complex, they tend to align plaintiff attorneys and defendants - a decidedly positive characteristic for the structured settlement industry which has struggled historically with plaintiff vs. defendant broker "issues".

The structured settlement and Medicare Secondary Payer communities of professional practice increasingly overlap and share complementary knowledge and clients. A more formal working relationship that encompasses their respective professional associations and addresses shared educational, marketing, legislative, and regulatory considerations would likely improve and further expand both communities.

MSP ACT AND MSA BACKGROUND

MSAs are administrative and funding mechanisms utilized in certain categories of settlements to protect Medicare's interests as "secondary payer" under the MSP statute. Enacted in 1980, the MSP Act requires certain insurers, including liability, automobile, no-fault and workers compensation insurers, to make payment first for services to Medicare beneficiaries regarding claimed injuries, with Medicare responsible only as a “secondary payer.”

The Centers for Medicare & Medicaid Services (CMS), the Federal agency responsible for administering Medicare policies, failed to take practical steps to enforce the MSP rules until 2001 when it issued the first of several policy memoranda addressing workers compensation (WC) MSAs. These policy memoranda created a format, checklists and procedures for seeking approval for WCMSAs to "protect Medicare's interests" when workers compensation cases are settled.

Several of these WCMSA policy memoranda address, directly or indirectly, structured settlement issues. One of these policy memoranda (dated October 15, 2004) addresses WCMSA present value calculations and provides an important pricing advantage for annuity funding compared with lump sum funding.

During 2013, CMS published both an 88 page WCMSA Reference Guide - since updated to Version 2.5. The Reference Guide's intended purpose is to help WCMSA professionals, beneficiaries and other stakeholders "understand CMS' [WCMSA] amount approval process and to serve as a reference for those electing to submit such proposals to CMS for approval." CMS has also published a WCMSA Self-Administration Toolkit to help self-administrators manage their WCMSA accounts appropriately. Both the Reference Guide and the Toolkit prominently feature structured settlements.

Although CMS and its field offices have also issued informal guidance about the use of MSAs in liability cases, nothing comparable exists to the CMS WCMSA memoranda, WCMSA Reference Guide or the WCMSA Self-Administration Toolkit. As a result, there currently is no consensus among tort practitioners as to whether and when MSAs are required in liability cases. Lack of CMS guidance has not prevented an increase in the number of liability MSAs, according to leading professional MSA administrators. Unlike WCMSAs, however, liability MSAs typically are not submitted to CMS for approval.

S2KM Reporting for Prior NAMSAP Conferences

• 2005 NAMSAP Annual Meeting
• 2008 NAMSAP Annual Meeting
• 2010 NAMSAP Annual Meeting
• 2014 NAMSAP Regional Meeting
  • Part 1
  • Part 2
• 2014 NAMSAP Annual Meeting
• 2015 NAMSAP Winter Regional Conference
• 2015 NAMSAP Annual Conference

S2P2J Release 60

The United States structured settlement market has been in existence for almost 40 years and continues to expand its scope, complexity and importance within the context of personal injury settlement planning.

Since it was first published in 1986, "Structured Settlements and Periodic Payment Judgments" (S2P2J), has provided structured settlement stakeholders with an authoritative reference guide, consisting of 16 chapters with extensive footnotes and Appendix documents, to help them understand issues and fashion settlements and judgments utilizing periodic payments. Both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) have utilized S2P2J as an educational resource for their certification programs.

Co-authored and updated semi-annually by Daniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert, S2P2J now features an online version as well as the traditional hardcopy. Online S2P2J includes a search feature and download capability as well as link features to access individual book sections, appendices, footnotes, cases and statutes.

Publisher Law Journal Press anticipates a late September 2016 distribution date for hardcopy supplements for S2P2J Release 60 with online S2P2J subscribers receiving their update simultaneously with no additional subscription charge. Competent professionals confronted by structured settlement issues should have access to an up-to-date copy (or the online version) of this indispensable source book.

Release 60 Highlights - Release 60 will feature new, updated and/or expanded sections addressing the following structured settlement topics:

• History Chart - To help structured settlement and settlement planning stakeholders analyze the comprehensive changes impacting their professions, S2P2J inserted a History Chart into Chapter 1 several years ago, developed by Timothy Morbach and Patrick Hindert, which tracks legislative, regulatory, financial and market developments impacting structured settlements since 1975 and organizes these developments into three stages of industry development. Release 60 updates this History Chart.
• Primary Market Business Practices - Release 60 continues to update S2P2J's analysis of changes impacting primary market structured settlement business practices including public policy, guidelines for use, industry standards and product suitability.
• Secondary Market Business Practices - An update of Chapter 16 provides background coverage of the Consumer Financial Protection Bureau's civil investigation of J.G. Wentworth as well as historical context for recent Washington Post reporting about continuing abusive business practices by some factoring companies in Maryland which resulted in a civil lawsuit by the State of Maryland Office of Attorney General Consumer Protection Division.
• Taxation Examples - To increase clarity for various tax concepts, Professor Ken Milani, of the University of Notre Dame Mendoza College of Business, provides multiple case examples which have been added to Chapter 2 with this Release. In addition to his other teaching responsibilities, Professor Milani teaches the tax section of NSSTA's Certified Structured Settlement Consultant (CSSC) program which is hosted by the University of Notre Dame.
• Settlement Trusts - As structured settlements increasingly fund settlement trusts, structured settlement stakeholders require greater knowledge of such topics as the duties of settlement trustees under the Uniform Prudent Investors Act plus factors settlement trustees must consider when making investments. Release 60 addresses those topics in Chapter 3.
• NSSTA Surveys - Prior updates of S2P2J provided summary analyses of structured settlement marketing surveys of claims executives and claims professionals sponsored by NSSTA and conducted by CLM Advisors. Release 60 features analysis of Part 3 of NSSTA's three marketing surveys in Chapter 5 which examines how plaintiff attorneys view structured settlements and structured settlement consultants.
• Plaintiff Attorney Malpractice - Also in Chapter 5, Release 60 summarizes a 2015 California lawsuit against a plaintiff law firm (Mraz v. Lief, Cabraser) which, although the jury determined the plaintiff law firm did not breach its duty of care, warns of several potential malpractice dangers for plaintiff attorneys who are: 1) uninformed; 2) lack competent advisors; and/or 3) act carelessly; with regards to structured settlement issues.
• Product Suitability - Recent updates of S2P2J have expanded Section 6.02 which addresses "Settlement Consultant" issues. Release 60 expands prior discussion within this section about the topic of "product suitability" and how it impacts structured settlement and settlement planning professionals.
• Judicial Authority to Impose Structured Settlement - Release 60 features a recent New Jersey Superior Court case (Impink v. Reynes) in Chapter 7 that determined (despite conflicting authority in other states) that a motion judge's inherent parens patriae powers did not permit the judge to change the terms of a settlement to impose a structured settlement for a minor without consent of the parties.

Previous S2P2J releases have highlighted and addressed the following structured settlement developments and growth opportunities:

• Wrongful Convictions Tax Relief Act of 2015.
• Court decisions analyzing "safe harbor annuity rules under the Deficit Reduction Act of 2005 when annuities are used to preserve Medicaid eligibility.
• New cases where courts have identified questions to held judges determine whether proposed transfers of future payment rights meet the "best interest" test under various state Structured Settlement Protection Acts.
• Non-qualified assignment issues - including tax and security issues raised by off-shore assignment companies.
• Templates for: 1) approval of MSAs; and 2) disclosure of consultants' roles and compensation.
• Expanded coverage of Workers Compensation MSAs.
• Summary and discussion of recent PLR for indexed annuities and commutation riders.
• Summarized results of CLM Advisors surveys commissioned by NSSTA to determine the value claims executives and claims professionals place on structured settlements and structured settlement consultants.
• Introduction to ABLE Accounts.
• A new section to introduce and explain federal and international regulatory developments and entities resulting from the 2008 global financial crisis.
• Updated analysis of the changing role of and standards for plaintiff attorneys engaged in personal injury settlement planning and when negotiating structured settlements.
• Summary and analysis of recent U.S. Treasury Regulations for IRC 104(a)(2).
• Practice tips for minimizing the risk of an IRS settlement challenge.
• Updated summary of lessons learned from the Executive Life Insurance of New York (ELNY) insolvency.
• Periodic payment reinsurance as an alternative means of funding structured settlements.

For S2KM's most recent analysis of the structured settlement industry, see: "Structured Settlements 2015":

• Part 1 - Market Metrics
• Part 2 - Market Issues and Developments

PFAC 2016 Annual Conference

Fiduciary standards, as they relate to product suitability specifically, and to business practices generally, can be expected to become more significant factors in product sales for the traditional structured settlement market as it continues to expand into, and interact with, the larger, more complex personal injury settlement planning market.

Multiple developments support this prediction. They include the expanding role of fiduciaries as settlement planning stakeholders and decision makers. In that context, fiduciaries most often serve as trustees, but also as guardians, conservators and/or executors.

Any person acting in a fiduciary capacity has an obligation to act in the "best interest" of another party. A fiduciary duty requires a high standard of honesty and full disclosure including any potential conflicts of interests. A fiduciary must not obtain a personal benefit at the expense of his or her client.

Regardless of who sells/provides a financial or insurance product to a settlement trust, and what independent duties that product provider might have to a trust beneficiary (i.e. injury victim), the settlement trustee's own fiduciary duties arguably should require the settlement trustee to evaluate specific trust products, trust product providers and their related business conduct utilizing that same fiduciary standard which requires honesty, full disclosure, and best interest.

In personal injury settlement planning, several types of trusts are utilized - any of which may be funded with, or utilized to fund, structured settlements: qualified government bond trusts; reversionary grantor trusts; settlement preservation trusts; special needs trusts including pooled trusts; Medicare set-aside trusts; and IRC 468B Settlement Funds.

As one related result of the expanding use of settlement trusts, a unique settlement trust market is evolving in the United States characterized by:

• Specialized knowledge about government benefits required to serve "special needs" beneficiaries and their families.
• Willingness to consider structured settlements as trust assets and knowledge related thereto.
• Willingness to accept corpus amounts less than minimum requirements of traditional corporate trustees.
• Professional individual trustees as well as corporate trustees.

To S2KM's knowledge there does not yet exist any national association of settlement trustees. Instead, settlement trustees participate as members, speakers, sponsors and/or exhibitors at various structured settlement, settlement planning and special needs national conferences such as: NSSTA, SSP, NAMSAP, NAELA, ASNP, SN Alliance, Stetson SNT, University of Texas SNT among others.

PFAC Conference

There exist, however, state fiduciary associations the largest of which is the Professional Fiduciary Association of California (PFAC). To learn more about fiduciaries and fiduciary standards, from a structured settlement perspective, S2KM attended the 21st Annual PFAC Conference, which occurred June 1-4, 2016 in Indian Wells, California and featured 74 exhibitors, more than 600 attendees plus four days of speakers and breakout sessions covering a multitude of topics.

PFAC is an affiliate of the National Guardianship Association (NGA). California Court Rules define education and qualification requirements to serve as guardian, conservator or trustee in California. Attorneys and CPAs with current, active licenses to practice in California automatically qualify. To retain their license, professional fiduciaries must also meet continuing education requirements. Approximately 680 professional fiduciaries are currently licensed in California.

Not all professional fiduciaries, of course, work in personal injury settlement planning. In fact, relatively few of the PFAC Conference presentations and/or exhibits were even relevant to structured settlement and/or settlement planning professionals.

Uniform Prudent Investor Act

Perhaps the most important and relevant lessons S2KM learned during the PFAC conference concerned the duties of care and the investment considerations imposed upon trustees by the Uniform Prudent Investor Act (UPIA). Understanding these UPIA trustee duties and investment considerations will almost certainly help structured settlement and settlement planning professionals improve their sales success when personal injury cases include settlement trusts.

The UPIA , which was adopted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1994, has been enacted, with some state-specific modifications, by 44 states and the District of Columbia. In those states, the UPIA, external to the trust document itself, serves as the most important reference defining a trustee's investment responsibilities.

Prior to the UPIA, courts applied the "prudent man rule" when evaluating trustee investment performance. The UPIA, by contrast, adopts "modern portfolio theory" as a different and more appropriate standard for trustees. Compared with the prudent man rule, modern portfolio theory promotes a holistic view of trust assets by focusing on the total return generated by a trust as opposed to viewing a trust's income and principal separately. This newer standard allows for greater investment diversification so long as the risk/reward ratio matches the purposes and terms of the trust instrument.

In his PFAC conference presentation titled "A Trustee's Duty of Care Under the UPIA", Josh Yager addressed how a trustee can demonstrate prudence and good faith, and thereby avoid a lawsuit, by fulfilling six trustee duties required under the UPIA:

• Duty to have a plan.
• Duty to monitor risk/return.
• Duty to diversify.
• Duty to pay only fair fees.
• Duty to prudently delegate.
• Duty to monitor agent's activities.

Yager never mentioned structured settlements or personal injury settlement planning during his discussion. Within the context of his presentation, however, here are some follow-up questions worth considering at future educational conferences:

• How should life contingent structured settlements be compared with other investment alternatives when trustees calculate rates of return needed to accomplish trust objectives?
• How can structured settlement and settlement planning professionals better anticipate and address trustee risk objections that many structured settlements include too much concentration, as well as a lack of liquidity?
• What are "asset classes" - and should structured settlements be promoted/evaluated as a distinct and necessary "asset class" within settlement trusts?
• Assuming trustees have a duty to evaluate compensation arrangements related to trust assets, should structured settlement professionals be required to disclose their case-specific compensation, including compensation sharing agreements? To whom? When?
• How do "industry standard" four (4%) percent structured settlement commissions compare with commissions and fees charged by other financial product providers? Are these commissions "fair" or "excessive"?
• Why was a given structured settlement design and/or settlement professional selected in a specific case? Does he/she possess appropriate licenses and credentials? Is he/she subject to any undisclosed conflicts of interest? Has he/she been the subject of any prior lawsuits or client complaints? Does he/she understand the trustee's duties under the UPIA? Has he/she accomplished what they promised?
• What legal options does a trustee have when confronted with a structured settlement or structured settlement consultant that the trustee believes violates a fiduciary standard or duty for a specific settlement trust under the UPIA?

Although not specifically discussed in any of the PFAC presentations S2KM attended, Section 2(c) of the UPIA identifies eight additional factors a trustee should consider when making any investment:

• General economic conditions.
• The possible effect of inflation or deflation.
• The expected tax consequences of investment decisions or strategies.
• The role that each investment or course of action plays within the overall trust portfolio.
• The expected total return from income and appreciation of capital.
• Other resources of the beneficiaries.
• Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
• An asset’s relationship of special value, if any, to the purposes of the trust or to one or more of the beneficiaries.

When settlement trusts play a role in a personal injury settlement, structured settlement and settlement planning professionals should be prepared to address these factors as part of their sales strategy. Significant for structured settlements, the UPIA's list of investment considerations fails to mention mental or physical disabilities of a trust beneficiary. From a settlement planning perspective, injuries or diseases that create special needs or reduce an individual's normal life expectancy arguably should receive important consideration when a trustee makes investment decisions.

Comparative Business Standards

How do current business standards of structured settlement and settlement planning professionals measure up to the "best interest" standards required of trustees and other fiduciaries? Although various members of both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) are appointed as independent agents representing many of the same structured settlement annuity providers, the two associations address the issue of product suitability differently.

NSSTA, whose members include defense and plaintiff brokers, has adopted a "Statement of Ethics and Professional Responsibility" (Code of Ethics) with "guiding principles" for its members and member organizations. The Preamble provides: "Implicit in the acceptance of this Statement is an obligation to act in a professionally responsible and ethical manner when providing structured settlement services." Although Principle VI directs NSSTA members to:"…comply with all material federal and state laws and regulations applicable to the structured settlement services that are provided", NSSTA's Code of Ethics does not specifically address either fiduciary or product suitability standards.

By comparison with NSSTA, SSP's Mission Statement provides, in relevant part, that "[m]embership is open to all individuals with a genuine interest in the profession of settlement planning." However, "[c]andidates for membership must attest to their .......striving to ensure plans are consummated to a fiduciary standard." (emphasis added). Unlike NSSTA, almost all of SSP's members represent injury victims and their families and attorneys as opposed to defendants and liability insurers. Many SSP members also sell financial products as well as structured settlement annuities.

Plaintiff structured settlement brokers generally, and SSP members more specifically, regularly face direct competition from non-structured settlement financial advisors. Currently some financial advisors (Certified Financial Planners and Investment Advisors) are held to a fiduciary ("best interest") standard while other financial advisors (broker-dealers) provide services under a “suitability standard” which requires only a reasonable belief that any recommended product is suitable for a client.

Consumer protection concerns appear to be favoring broader application of the fiduciary standard. Acting under authority of Dodd-Frank, the SEC submitted a "fiduciary standard" study to Congress in 2011 recommending the adoption of a uniform fiduciary standard for investment advisers and broker-dealers when providing investment advice to retail customers. Congress has not yet adopted this uniform standard. More recently the U.S. Department of Labor has proposed a rule requiring fiduciary accountability for all investment advice related to retirement assets.

CONCLUSION

For most of its history, the primary structured settlement market has developed its business standards and practices based upon a "claim management" model which limits the scope of its representatives' duties of care toward injury victims - the ultimate customers for its products. Within the larger "settlement planning" market, which encompasses structured settlements, fiduciaries and other participating professionals are superimposing a more demanding "best interest" duty of care. To successfully compete in the settlement planning market place, therefore, structured settlement professionals need to acquire a better understanding of fiduciary and UPIA duties and requirements - and learn to re-shape their product sales accordingly.

NSSTA 2016 Annual Conference

Len Blonder is a structured settlement pioneer now beginning an unprecedented third term as President of the National Structured Settlement Trade Association (NSSTA). It may seem counterintuitive, therefore, or perhaps wishful thinking, but one could describe NSSTA's 2016 Annual Conference, which occurred April 6-8 in Palm Beach Gardens, Florida April 6-8, as a "New Beginning."

Following the transformative leadership of Michael Goodman, NSSTA's immediate past President, however, the opportunity for such a new beginning now exists and the 2016 NSSTA Annual Conference Educational Program outlined some of the future possibilities.

TOPICS AND SPEAKERS

• Opening Remarks - Michael Goodman
• NSSTA Objectives - Len Blonder
• Settlement Experiences and Aftermath - Michael Goodman (Moderator); Tania Root; Todd Falzone, Esq.
• Wrongful Imprisonment: Claimant Story - Michael Goodman (Moderator); Kwame Ajamu
• Structuring Wrongful Imprisonment Claims - John McCulloch and Ryan Jandreau
• Trusts and Structured Settlements - Dan McCarthy (Moderator); Phillip Krause; Tim Denehy
• Mediators and Structured Settlements - Connie Klingler (Moderator); Hyram Montero; Len Blonder
• Projecting Future Economic Damages After the ACA - Roger Bernstein; Noah Katz; Nichole Segal
• Property & Casualty Insurance Program Growth - (Michael Goodman and Len Blonder - Moderators); David Crowe; Richard Woollams
• Legislative and Political Update - Eric Vaughn
• NSSTA Growth Initiative Update - Sean Coleman (Moderator); Jim Early; Melissa Evola Price; Ryan Jandreau
• SSPA Success Stories - Michael Goodman (Moderator); Andy Prindable; Sally Greenberg
• NSSTA Legal Update - Tim O'Driscoll; Peter Vodola; Steve Harris

S2KM COMMENTARY ON SELECTED TOPICS

NSSTA Growth Initiative

During Goodman's Presidency, NSSTA revised its historic and defensive "protect and preserve" strategy by embracing a new "Growth Initiative" which already appears to have generated new energy and improved "community" spirit. Progress reports for preliminary "Growth Initiative" priorities [re-starting P&C programs; convertible lump sums; and Federal Employee Compensation Act (FECA) amendment(s)] were all positive. Equally important, the overall theme was forward looking asking: "How can we move forward? How can we change the dialogue?"

Supporting its "Growth Initiative", NSSTA has also expanded its industry outreach and networking with other professional associations. Improved relationships among NSSTA, the Society of Settlement Planners (SSP) and the National Association of Settlement Purchasers (NASP) has helped unify the structured settlement market. Working together, NSSTA and NASP have added important consumer protection provisions to five state structured settlement protection statutes. As one result, Goodman declared in his Opening Remarks: "we can no longer use factoring as an excuse for not growing the industry."

Len Blonder Presidency

How will Blonder, a 38 year plus industry veteran who, as much as any single individual, has been personally responsible for "protecting and preserving" the tax foundation for structured settlements, respond to NSSTA's current leadership challenges and market opportunities?

"The times are changing and we must change", Blonder stated, as he addressed NSSTA's membership to begin his third term as President. "The business is more complicated. We must determine how the parts fit together. Despite plaintiff growth, defendants remain indispensable to structured settlements. Defendants must continue to play a key role."

Unless NSSTA faces an unexpected crisis, Blonder said his plans for NSSTA include continued industry and community growth. Based upon the preliminary success of the "Growth Initiative", Blonder announced it would become a permanent NSSTA committee and expand its current list of priorities. As a result of recent state legislative successes, Blonder stated he expects NSSTA to spend less time on factoring legislation and more time on judicial education during his term as president.

Among NSSTA's challenges and priorities, Blonder highlighted: growing NSSTA's membership and increasing membership diversity; continuing to improve relationships with outside associations; and improving public relations generally for both NSSTA and structured settlements.

Re-starting P&C Programs

Speaking as part of a panel discussing Property and Casualty Company Program Growth, Richard Woollams, President of Claims for AIG Commercial Insurance, provided a contrarian perspective concerning future structured settlement growth and industry change. Asked to predict what the structured settlement market will look like in five years, Woollams opined: "the same as today with more broker consolidation and better technology."

Woollams also identified reasons why some P&C companies have reduced their structured settlement program participation: "competing priorities; increasing compliance requirements; and inertia". Woollams further challenged NSSTA's membership by stating: "in workers compensation cases, the savings for defendants is obvious. Can you quantify the cost savings with liability cases? Even a couple of points pays for program compliance and administration."

Woollams' challenge concerning "cost savings for liability cases" echoes findings about "metrics and analytics" from a 2011 study (titled: "National Litigation Management Study") commissioned by the Claims and Litigation Management (CLM) Alliance (formerly "the Council on Litigation Management") as well as NSSTA's own 2014 survey of Senior Claim Advisors conducted by CLM Advisors.

Based upon interviews with leading litigation management executives, the 2011 CLM Alliance study identified structured settlement as the "most penetrated external initiative" among 30 litigation-related service areas analyzed. Another "key finding" that emerged from the answers to the more than 160 questions covered in that 2011 CLM Alliance study: "litigation executives are not happy with the metrics and analytics available to them."

Also relative to metrics and analytics, NSSTA's 2014 survey of senior claims executives found:

• Only 20 percent of the participants reported having any set of objectives around the use of structured settlements.
• A majority of the participants did not measure referral volume and only half measure the volume of successfully written structures.

Affordable Care Act

A separate NSSTA conference panel discussion about the Affordable Care Act (ACA) titled "Projecting Future Economic Damages After the ACA and Collateral Source Rule Changes" highlighted one way NSSTA members can utilize structured settlements to quantify potential cost savings for defendants. That being part of an expert team that provides defendants with two-tier (with and without ACA coverage) case specific calculations of future economic damages.

As NSSTA's ACA panel pointed out, the admissibility of ACA coverage for trial purposes (both for evidence and damage calculation) depends upon the common law collateral source rule which not only varies by state, but also is subject to current, state-specific post-ACA legal disputes as to applicability. This contested claims environment, plus the applicable expert damage team recommended by the NSSTA panel (featuring a structured settlement broker), represents both a strategic growth opportunity for NSSTA members as well as a priority for continued in-depth education.

Trusts and Structured Settlements

The NSSTA conference panel discussing "Trusts and Structured Settlements" provided another window for viewing potential structured settlement change and growth. Contrary of traditional structured settlement perspectives, which view trusts as competitive products in a zero sum settlement game, panelist Tim Denehy (who identified himself as a "settlement planner" offering trusts and structured settlement annuities) insisted: "A structured settlement does not solve every problem. However, by offering additional products, I can sell more structures."

Fellow trust panelist Phillip Krause, who also sells multiple settlement products, stated: "I analyze products as an investment fiduciary." He added, however: "There is more potential liability with a multi-product model." As an alternative to a multi-product model, Krause suggested structured settlement brokers might partner with, or delegate product sales to, a trust provider. Moderator Dan McCarthy supported a more traditional approach saying he continues to defer to plaintiff attorneys' relationships with banks and trust companies.

NSSTA has been slow to explore and/or embrace the evolving settlement planning profession in which structured settlement annuities, as well as trusts, represent strategic, interactive products. Other professional associations, especially SSP and the Academy of Special Needs Planners (ASNP), have been more proactive than NSSTA in analyzing settlement planning issues. As more plaintiff brokers offer trusts and other non-structured settlement products, and share commissions with defense brokers, NSSTA should consider helping its members better understand how settlement planning impacts the sale of structured settlements - creating new opportunities as well as risks.

Structuring Wrongful Imprisonment Claims

John McCulloch and Ryan Jandreau traced the history and explained the significance of IRC 139F which was enacted December 21, 2015 as part of the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). "In the case of any wrongfully incarcerated individual," IRC section 139F provides: "gross income shall not include any civil damages, restitution, or other monetary award (including compensatory or statutory damages and restitution imposed in a criminal matter) relating to the incarceration of such individual for the covered offense for which the individual was convicted." Damages paid for wrongful imprisonment, however, which are not derived from a personal, physical injury, are not eligible for an IRC section 130 qualified assignment. Although the exact number of exonerees is not known, McCulloch and Jandreau cited sources estimating approximately 4000 nationally over the past 15 years.

NSSTA DIRECTORS AND AWARD WINNERS - NSSTA announced the election of two Directors: Mal Deener and Ryan Jandreau. In addition, the following individuals were honored during the conference:

• President's Award - Debbie Sink
• Leadership Award - Susan Clark and Robert Caples
• Service to the Industry Award - Andrew McClain

CONCLUSION

Assuming NSSTA's 2016 Annual Conference represents a "New Beginning" for the structured settlement industry, the upcoming year will be one of the most important, if not the most important, in NSSTA's history. Based upon his leadership experience and prior accomplishments, Len Blonder appears uniquely qualified to help NSSTA determine how the parts of an increasingly complicated business fit together in order to continue to grow structured settlement annuity sales and improve the lives of personal injury victims.

CORRECTIONS AND  OMISSIONS

S2KM began receiving valuable feedback to this blog post almost immediately following its publication. Examples:

The second paragraph under "Trusts and Structured Settlements" above has been changed from what originally appeared in this blog post, at the request of Phillip Krause, to clarify that he used the word "investment" and not the word "professional." Krause explained: "An 'investment fiduciary' is a specific role within the management of a Trust. The Trustee delegates or directs investment decisions to the 'investment fiduciary.' The role of 'investment fiduciary,' is separate from the role of a 'structured settlement consultant.' An investment fiduciary uses registered investments with the SEC/FINRA.  A broker dealer may also be involved in the approval of the appropriateness of investments held within the Trust.  The oversight by an OSJ or compliance officer is also common."

S2KM could (still might) write an entire blog post about the informative "Property & Casualty Insurance Program Growth" discussion moderated by Michael Goodman and Len Blonder and featuring Richard Woollams and David Crowe. Some of Woollams' comments appear in the original blog post. Crowe also offered valuable insights and recommendations for re-starting P&C structured settlement programs including the importance of: 1) identifyinging one or more internal structured settlement "champions"; 2) showing the impact on a P&C's bottom line; 3) defense and plaintiff brokers working together for a more efficient settlement process; 4) attracting bright young professionals to the structured settlement industry - a problem, he stated, is shared more generally by the insurance industry.

Patrick Williams Interview

As the National Structured Settlement Trade Association (NSSTA) prepares for its 2016 Annual Meeting this week in Palm Beach Gardens, Florida, the primary structured settlement market faces many challenges - perhaps none greater than succession. What new generation of distributors, or distribution channel(s), will emerge (and when) to replace and build upon the accomplishments of the pioneering generation (now in their 60s and 70s) who originated the structured settlement market in the late 1970s?

One of several NSSTA strategies for attracting and educating "Next Generation" structured settlement participants is NSSTA's Structures 202 conference. Structures 202 targets new industry participants providing attendees a day and one half program explaining case management fundamentals and identifying business development opportunities. It replaces and expands NSSTA's previous Structures 101 program which was directed more narrowly toward structured settlement case analysts and administrators.

To provide one attendee's perspective on structured settlements plus his evaluation of NSSTA's Structures 202 conference, S2KM interviewed Patrick Williams. Williams does not currently work in the structured settlement industry and Structures 202 was his first-ever structured settlement conference.

S2KM: Thank you, Patrick, for agreeing to participate in this interview. How and when did you first learn about structured settlements?

WILLIAMS: I first heard about structured settlements through Cincinnati attorney Joe Dehner. Joe, who co-authors "Structured Settlements and Periodic Payment Judgments" and is also my soon-to-be father in law, knew I was working toward getting my Texas All-Lines adjuster license. He described the industry to me and explained the benefits to the various parties.

S2KM: What first interested you about a possible career in structured settlements?

WILLIAMS: What most attracted me to structured settlements was the overwhelming benefit to injury victims. We all hear financial horror stories about lottery winners and pro-athletes, as well as injury victims, who receive lump sums of money and are broke in just a handful of years. Feeling good about what I do is paramount to the type of person I was raised to be. Structured settlements seemingly is a win-win for both client and broker.

S2KM: How did you learn about the National Structured Settlement Trade Association (NSSTA) and the NSSTA Structures 202 Conference?

WILLIAMS: During my preliminary structured settlement research, I learned about NSSTA. Structures 202 seemed like the right place to begin more detailed education.

S2KM: What preparation or study, if any, did you engage in to prepare yourself for the NSSTA Conference?

WILLIAMS: I primarily continued to study my adjuster study materials, as I thought having a good basis of knowledge in claims and claims management would be beneficial to anything I might learn at the conference. I also reviewed resources I found via "Google" searches.

S2KM: Were you initially confused by the existence of a primary and secondary structured settlement market?

WILLIAMS: The idea of the secondary market was actually something I was more familiar with at first than the primary market - due to JG Wentworth's aggressive ad campaigns.

S2KM: What were your objectives in attending the NSSTA Conference?

WILLIAMS: I wanted to more fully understand the history and function of periodic payments. In that respect, Toni Warbington provided the best introductory information of the seminar in my opinion. Some of the other presentations contained information that I feel would be more beneficial if I had more experience in the industry at the time of my attendence. I also wanted to identify different qualifications and certifications that might make me a more attractive candidate for structured settlement brokering.

S2KM: Did you accomplish those objectives?

WILLIAMS: Yes, I believe I established a good base of knowledge on how the industry operates. I also gathered information on different backgrounds some of the attendees had prior to getting involved in the industry.

S2KM: What, if anything, surprised you most about the NSSTA Conference?

WILLIAMS: What surprised me most about the conference was the number of attendees who had only one year of less in the industry. It was very comforting to know the structured settlement industry appears to embrace a "youth movement" of sorts.

S2KM: What was the most important information you learned about structured settlements at the NSSTA Conference - as far as:

• Case management fundamentals? WILLIAMS: Identifying the type of claimant you are working with seems the most crucial. There appears to be a variety of ways to help a claimant depending on whether he/she is mentally incompetent or a minor who is not qualified to directly receive settlement funds.
• Business development opportunities? WILLIAMS: The rising importance of technology. Specifically, the implementation and usage of CRM technology for brokers.
• Career opportunities? WILLIAMS: Going into the conference I was already aware of the opportunities of working as an approved broker for either a defendant or plaintiff attorney. However, I was unaware that career opportunities might also exist with a life company or an assignment company.

S2KM: Did the NSSTA Conference increase or decrease your career interest in structured settlements?

WILLIAMS: It definitely furthered my interest. The mix of experience and youth in "202" made for a very comfortable environment. The conference also provided me with the base knowledge that I was seeking. The inside look into the industry gave me insight into how the industry works.

S2KM: Does the structured settlement market appear to offer attractive career opportunities for someone like yourself? Why or why not?

WILLIAMS: As someone interested in the fields of claim management and adjustment, structured settlements naturally interests me. The cross-over from claims adjustment was very apparent during the "202" seminars. Structured settlements appears to provide a rewarding career as well as a valuable service.

S2KM: What appear to be the most difficult challenges for someone like yourself thinking about entering the structured settlement market?

WILLIAMS: The most difficult challenge appears to be the lack of introductory knowledge available. There is not really a set education or training course available specifically for people like me who are interested in learning about structured settlements. Other career alternatives provide better introductory educational opportunities.

S2KM: What skill sets do you believe are important for achieving career success in the structured settlement market?

WILLIAMS: Without being directly involved in the industry, my perspective is limited to what I saw in the conference. However, with the insight I acquired during the "202" conference, I would say that a strong background in sales, claims, finance, and legal matters would be very helpful.

S2KM: What structured settlement sub-markets, if any, most interest you?

WILLIAMS: Probably non-qualified structured settlements. The potential for structuring claims other than physical, personal injuries appears to have a lot of potential.

S2KM: How do you intend to follow-up your NSSTA Conference experience?

WILLIAMS: I would like to attend more NSSTA conferences and identify employment opportunities within the structured settlement market.

 

SSP/ASNP 2016 Annual Conferences

Joint overlapping educational conferences hosted by the Society of Settlement Planners (SSP) and the Academy of Special Needs Planners (ASNP) March 9-12, 2016 in Tucson, Arizona provided S2KM and other attendees an opportunity to evaluate the current status of structured settlements within the larger, more complex personal injury settlement planning market. The SSP conference also transferred association leadership from Neil Johnson to Joe Tombs with Tombs promising to maintain Johnson's leadership direction and to "pull SSP back completely from structured settlement politics."

Among S2KM's conference conclusions: Many personal injury settlement planners characterize structured settlements as a strategic product, and recognize new marketing opportunities for structured settlements resulting from recent legislation such as the Affordable Care Act and the ABLE Act . The traditional and collective structured settlement industry should similarly embrace an important opportunity to grow its premium volume in this larger, more complex, more dynamic market than it has in the past by more effectively:

• Analyzing the evolving personal injury settlement and special needs planning markets;
• Addressing concerns and issues about structured settlements identified by plaintiff and special needs attorneys; and
• Re-positioning structured settlements from a single product sale to the core component of an integrated settlement solution.

SSP TOPICS AND SPEAKERS

• Introduction - Neil Johnson
• Comprehensive Settlement Planning - Joe Tombs; Charly Schell; Joe DiGangi; Tim Denehy
• Rules that Apply to Insurance Brokers - David Childers; Jeremy Babener
• The Grillo Case - Craig and Josephine (Grillo) Sullivan
• The Mraz Case - Mark Wilson and Patrick Hindert
• Sudden Money - John Darer
• Alternative Products - Martha Hunt; John Arendt; James Creel; Chris Shumate; Michael Upchurch; Rick Miller.
• Medicare Compliance, Entitlement Planning and Lien Resolution Issues - Anthony Prieto
• Joint ASNP/SSP Session - Structured Settlements and Special Needs Trusts - Frank Johns; Joe Tombs; Jack Meligan.
• ELNY and Factoring Industry Lawsuits - Edward Stone
• Small Business Legal Strategies - Paul Valentine
• Missed Tax Opportunities at Settlement - Jeremy Babener
• Foreign Assignment Companies - Jeremy Babener
• NSSTA's Survey of Plaintiff Attorneys - Patrick Hindert
• SSP President's Statement - Joe Tombs

ASNP TOPICS AND SPEAKERS

• ABCs of Public Benefits - David Lillesand
• ABCs of Special Needs and Settlement Planning - Kevin Urbatsch and Michele Fuller
• Keynote: "Raising Special Kids" - Maureen Beyers & Michael Farrell
• SSI Update - David Lillesand
• SNTs and Retirement Benefits - Melanie Marmion
• Recent Trends in Special Needs Planning - Blaine Brockman
• Joint ASNP/SSP Session - Structured Settlements and Special Needs Trusts - Frank Johns; Joe Tombs; Jack Meligan.
• "Tricky Issues" in SNT Administration - Travis Finchum; Herb Thomas and Daniel Cutter.
• Ask the Experts Panel - Kevin Urbatsch (Moderator)

DISCLAIMERS: Because of overlapping conference schedules, S2KM was able to attend only three ASNP presentations but did receive and has reviewed all ASNP conference handouts. S2KM's Managing Director, Patrick Hindert, testified as an expert witness in the Mraz case concerning structured settlement and QSF issues on behalf of Adriana and Addison Mraz.

S2KM COMMENTS AND RECOMMENDATIONS

SSP Leadership

• In his closing message as SSP President, Neil Johnson continued to emphasize several positive themes including industry unification and increasing collaboration between SSP and NSSTA. Among Johnson's proposed solutions for industry unity: 1) recognizing and accepting product diversity; 2) focusing on client and customer service; 3) identifying and pursuing permanent shared interests without necessarily agreeing on all issues; 4) engaging all perspectives to discuss industry problems and issues; 5) improving relationships among stakeholder groups; 6) promoting and practicing settlement planning not settlement selling.
• Newly elected SSP President Joe Tombs promised to "maintain the direction of Neil Johnson's leadership and even accelerate it in every way possible." He identified the following "main themes" for SSP going forward: "to pull completely back from structured settlement “politics”, redouble our efforts at educating our members and promoting a Code of Ethics, and a membership push to quadruple our high water mark for number of members. We intend to actively encourage our members who sell structured settlement to join and to become actively engaged in NSSTA. We will continue to offer a hand of friendship and cooperation in their agenda although we will be decidedly apolitical. We will also make no attempt no manage our member’s opinions or their expressions of their opinions."
• As for structured settlements, Tombs stated: "we intend to emphasize comprehensive settlement planning which will have the natural result of de-emphasizing structured settlement annuities to some extent as we move alternatives including trusts, taxable annuities, investment accounts, etc. closer to the forefront. We will be increasingly product-neutral and more advice-driven and client-need-focused in the future." Note: despite Tombs' assertion, and perhaps somewhat counter intuitively, multiple SSP conference speakers maintained that settlement trust sales, in particular, have actually increased their sales of structured settlement annuities.
• Tombs also promised "to intensify [SSP's] efforts to stave off any further “infiltration" of our society by factoring companies and their employees. We will want to remain abreast of the goings on in that market as we have always attempted, but as a practical matter we are cutting off any new members or sponsors from that side of things."

Marketing Feedback - NSSTA Survey of Plaintiff Attorneys

• During 2014, the National Structured Settlement Trade Association (NSSTA) commissioned a three-part Structured Settlement Survey project, conducted by CLM Advisors, and previously reviewed by S2KM, of senior claims executives (Part 1), claims professionals (Part 2) and plaintiff attorneys (Part 3).
• Although NSSTA has made reports of all three surveys available to its members, and featured presentations about Part 1 and Part 2 at previous NSSTA educational conferences, NSSTA has not yet featured its Part 3 survey of plaintiff attorneys as an educational conference presentation. NSSTA has also prioritized "rejuvenating defense programs" as one of three preliminary "Growth Initiatives" with no equivalent current Growth Initiative focused specifically on plaintiff attorneys or personal injury settlement planning.
• As one SSP conference presentation, S2KM's Managing Director, Patrick Hindert, discussed S2KM's analysis of NSSTA's Part 3 Structured Settlement Survey which, in S2KM's opinion, provides valuable insights for improving structured settlement marketing and expanding and accelerating structured settlement premium growth. For example:
  1. Only 4% of the responding plaintiff attorneys viewed structured settlement consultants as adding value for negotiations and/or case evaluations separate from, or in addition to, their knowledge of structured settlements.
  2. 35% stated that structured settlement consultants fail to deliver value because they are concerned with structuring as much of a settlement as possible.
  3. 52% contact a structured settlement broker one week (possibly less) prior to a mediation.
  4. 38% make contact only after a case settles.
  5. Less than 25% are likely to have a client sign a letter acknowledging that they were exposed to the opportunity to structure a portion of their settlement before opting for an all cash settlement.
  6. Although 89% believe they "have adequate knowledge of structured settlements so that [they are] able to recognize when they would be in the best interest of an injured party...", only 28% said they suggest a structured settlement for cases involving Medicare set-asides (MSAs).
  7. Only 26% have ever structured their fees.

Settlement Planning - A Special Needs Perspective

• Most presentations by special needs attorneys at structured settlement conferences focus exclusively on special needs trusts. As one result, many structured settlement professionals fail to understand the broad and expanding scope of special needs planning - or how it impacts, overlaps with and differs from personal injury settlement planning. A similar misconception exists among special needs attorneys many of whom identify financial and insurance settlement planners exclusively with structured settlements. The title of the one joint SSP/ASNP presentation in Tucson ("Structured Settlements and Special Needs Trusts") re-enforced this misconception. Fortunately and positively, the actual presentation discussion, moderated my Jack Meligan and featuring Frank Johns and Joe Tombs, addressed a broader agenda.
• Separately, both the ASNP and SSP conferences featured multiple presentations which captured the expanding expertise of their respective members. For structured settlement professionals, S2KM found ASNP's two "Pre-Session" presentations ("The ABCs of Public Benefits" by David Lillesand and "The ABCs of Special Needs and Settlement Planning" by Kevin Urbatsch and Michele Fuller) especially informative. Also recommended for structured settlement professionals seeking a more comprehensive understanding of special needs planning: Blaine Brockman's presentation ("Recent Trends in Special Needs Planning"),
• Urbatsch and Fuller speak and write frequently about personal injury settlement planning and are recognized as leading national settlement planning experts among special needs attorneys. Their settlement planning presentations frequently discuss structured settlement "issues" - often with negative connotations and without rebuttal or explanations from structured settlement experts. What follows are structured settlement "issues" Urbatsch and Fuller identified in Tucson. In S2KM's experience: 1) many special needs attorneys agree with these issues; and 2) structured settlement proponents need to proactively respond to these issues - or risk continuing/increasing loss of potential annuity premium:
  • "Income stream is inflexible and cannot respond to emergency or major cash needs;
  • "High initial fees;
  • "Investment returns nearly always lower than what a diversified portolio would produce;
  • "Big ticket items, such as a home, cannot be easily acquired;
  • "Unscrupulous settlement planning brokers over-structuring because of high commission;
  • "Little regulatory oversight over industry – no fiduciary responsibility or licensing required to sell;
  • "Misleading statements about flexibility;
  • "How it fits into Plaintiff’s overall financial plan?

The Grillo Case

• The Grillo case, which establishes potential legal liability for plaintiff attorneys who do not advise their clients about structured settlements, was the subject of an SSP conference presentation by Craig and Josephine (Grillo) Sullivan. The Sullivans shared the remarkable life story of their daughter, Christina, the Foundation she inspired and the Texas State Statutory amendment her case helped to enact.
• For structured settlement brokers and settlement planners, the Grillo case provides a logical starting point for discussing structured settlements with plaintiff attorneys. As a point of comparison, consider response #5 above under "Marketing Feedback - NSSTA Survey of Plaintiff Attorneys."
• Another important settlement planning "takeaway" from the Sullivans' SSP presentation: both Craig and Josephine emphasized the value of Christina's original life care plan which served as a care management "roadmap" throughout Christina's life accurately predicting future needs and developments which the Sullivans would not otherwise have anticipated.
• This important observation, provided by the only care givers to appear as speakers at the combined SSP/ASNP conferences highlights an important settlement planning issue: Why do other settlement planning professionals ignore life care planners - especially considering their strategic role defining "future needs" for personal injury damage analysis, as well as future expense allocations for Medicare set-asides and Affordable Care Act coverage? For examples:
  • As leading nurse life care planner Wendie Howland stated in this 2014 S2KM interview: "I have never been asked to review a settlement plan to see how well it matches my recommendations."
  • The Urbatsch/Fuller presentation summarized above which identified multiple professionals for the "Settlement Planning Team", omitted life care planners.
  • "Comprehensive" settlement plans S2KM has reviewed typically don't include any life care plan, or other document, providing a detailed "needs analysis".
  • With the exception of the National Alliance of Medicare Set-Aside Professionals (NAMSAP), a majority of whose members are life care planners, none of the many structured settlement or settlement planning conferences S2KM has attended during the past several years has offered specific presentations addressing the topic of "needs analysis" - or, with rare exceptions, featured a life care planner as presenter.
  • Key related issues: 1) what does "needs analysis" mean in the settlement planning context? Who is qualified, if not life care planners, to provide "needs analysis" for settlement planning? What is the relationship between a life care plan prepared for trial (damage analysis) and a life care plan for settlement planning? Who, besides a life care planner, is qualified to transpose one to the other?

The Mraz Case

• The traditional objective and responsibility for plaintiff attorneys in personal injury cases has been to obtain the largest amount of compensation for their clients whether by judgment or settlement. By this standard, the law firm Lief, Cabraser, Heimann & Bernstein was notably successful in obtaining a $55 million verdict and subsequent $24 million settlement in 2009 against Chrysler in the Mraz wrongful death case.
• Settlement planning, in general, and structured settlements, more specifically, however, prioritize an additional set of objectives and responsibilities for plaintiff attorneys. As a result, when the Lief, Cabraser law firm failed to obtain a structured settlement for Addison Mraz, the minor daughter of the deceased, after her mother, Adriana Mraz, allegedly requested Lief, Cabraser to obtain a structured settlement on Addison's behalf, Adriana brought a lawsuit alleging Lief, Cabraser attorneys breached the duty of care they owed to Addison.
• On December 22, 2015, among other findings, a California trial court jury determined Lief, Cabraser attorneys did not breach the standard of care or any fiduciary duty they owed Addison Mraz. Nevertheless, unrelated to damages associated to the loss of the structured settlement, the jury awarded Addison Mraz $400,000 of fees and costs she previously paid to Lief, Cabraser. The case is currently on appeal.
• Mark Wilson, the attorney who represented Adriana and Addison Mraz in their lawsuit against Lief, Cabraser, was a featured speaker at the SSP conference. Based upon the Marz case, and regardless of what occurs on appeal, Wilson highlighted the following structured settlement responsibilities as potential duties of care for plaintiff attorneys and recommended that structured settlement professionals and settlement planners utilize CLE programs to educate plaintiff attorneys about their potential liabilities. Plaintiff attorneys should:
  • Educate themselves about structured settlement issues including how to avoid constructive receipt as well as the appropriate utilization of QSFs and non-qualified assignments.
  • Recommend competent structured settlement professionals to clients (and retain them for advice) prior to settlement negotiations.
  • Insert appropriate language in term sheets and/or settlement agreements to preserve clients' structured settlement options.
  • If and when necessary, know how to correct mistakes to preserve or re-establish their clients' structured settlement options.

Plaintiff Broker Diversification

• The most successful plaintiff structured settlement brokers appear to be diversifying their products and services. It works, according to SSP speaker Anthony Prieto, "because it changes the conversation from a marketing perspective. There are a lot more people who want to talk to me about updates in MSP compliance or lien resolution than structured settlements. You see more cases when you offer other services. You become a problem solver as opposed to a problem identifier."
• Prieto identified multiple sources of alternative revenue now available to settlement planners in 2016: alternative products (retail annuities, life insurance, managed money); trust company fees or referrals; lien resolution or verification fees or referrals; MSP compliance fees or referrals; attorney fee deferral programs; QSF referrals and administration fees.
• Although one SSP panel, discussing "Comprehensive Settlement Planning", emphasized the importance of "planning before products", another SSP panel spoke specifically about expanding opportunities for alternative (non-traditional structured settlement) settlement planning products: Martha Hunt (equity-indexed annuity riders); John Arendt (reinsurance); James Creel (settlement trusts); Michael Upchurch (rehabilitation facilities); Rick Miller (indexed annuities).
• Consistent with the themes of "diversification" and "changing the conversation", John Darer made a convincing case for "transition expertise" as a critical settlement planning skill.
• What potential professional liability issues accompany plaintiff broker product and service diversification? The SSP conference did not directly address this issue comprehensively.
  • Speaking about "ELNY and Factoring Industry Lawsuits", attorney Edward Stone asserted that the "New Normal" (i.e. personal injury settlement planning) will not work if the core product (i.e. structured settlements) does not work. Focusing specifically on structured settlements, Stone asked whether a broker (plaintiff and/or defendant) owed any duty of care - and to whom? Also whether split commission arrangements changed the analysis? Based upon ELNY, he offered several related lessons for settlement planners.
  • Insurance law expert David Childers provided SSP conference attendees with a traditional analysis of standards of care and duties of care for insurance brokers, agents and producers under Arizona law.

CONCLUSION: Personal injury settlement planning is a large, complex, dynamic marketplace within which structured settlements historically has represented a strategic, if arguably under performing, product. The traditional structured settlement industry has heretofore avoided the educational analysis and strategic association relationships necessary to help its "New Generation" membership successfully transition to the "New Normal". It remains to be seen whether, when and how successfully future industry leadership will figure out how to put old wine in new bottles. Based upon this year's joint SSP/ASNP conference (and mixing metaphors), it appears the "New Normal" train is already leaving the station with a diversified cargo of blended products and services.

For additional S2KM analysis about personal injury settlement planning, see the structured settlement wiki.