Beyond Structured Settlements

The ELNY Due Process Issue

Assuming presiding Judge John M. Galasso signs the Order of Liquidation and Approval of a Restructuring Agreement for Executive Life of New York (ELNY) as proposed by the Superintendent of the New York State Department of Financial Services (Superintendent), as ELNY's Receiver, a critical issue arises:

Will the ELNY structured settlement shortfall payees have been afforded "due process" before being deprived of a percentage of their payment rights?

The Fifth and Fourteenth Amendments to the United States Constitution provide in part:

• Fifth Amendment - "No person shall be ... deprived of life, liberty, or property, without due process of law;"
• Fourteenth Amendment Section 1 - "No State shall ... deprive any person of life, liberty, or property, without due process of law."

The United States Supreme Court has interpreted these clauses as creating two doctrines: substantive due process and procedural due process.

Substantive Due Process

Substantive due process addresses whether the government has an adequate reason for taking away a person's life, liberty or property. The most obvious, and presumably adequate, reason why the ELNY liquidation hearing could result in some persons (shortfall payees) being deprived of property (percentage of their annuity payments) is that ELNY is insolvent.

ELNY does not have sufficient assets to meet all of its future payment liabilities. Because of variations in state guaranty association laws (primarily coverage caps) as well as individual ELNY contracts (size of annuities), approximately 15 percent of ELNY's annuity payees (mostly structured settlement payees) anticipate shortfalls while the other 85 percent expect to receive 100 percent of their promised future payments from ELNY's successor company, Guaranty Association Benefits Company (GABC).

Alternative Legal Recourse

Some of the structured settlement shortfall payees should have recourse against defendants and/or liability insurers who funded their structured settlement using a "buy and hold" methodology. Other structured settlement payees, whose structured settlements were funded with qualified assignments, likely would not have similar secondary payment options because First Executive Corporation (FEC), the purchaser and owner of their annuities, declared bankruptcy in 1991 and no longer exists. For an explanation of the difference between "buy and hold" funding and qualified assignments, see this prior S2KM blog post.

Although ELNY shortfall victims (including both policyholders and payees) might have a legal claim against the Superintendent, as Receiver, and his agents, including the New York Liquidation Bureau (NYLB), the Superientent's proposed Liquidation Order includes an immunity clause intended to protect the Superintendent and his agents from any legal claims that they mismanaged the ELNY Rehabilitation and are responsible for ELNY's insolvency. For additional information about the ELNY immunity issue, see this prior S2KM blog post.

Procedural Due Process

Procedural due process addresses whether the government has followed adequate procedures in taking away a person's life, liberty or property. A denial of procedural due process occurs only when there is a denial of life, liberty or property without adequate procedures. For many ELNY structured settlement payees, the probable result of the ELNY Liquidation Order and Restructuring Agreement will be to deny them of a portion of their future structured settlement payment rights. The key question for purposes of procedural due process is whether the procedures that could result in this loss of property have been "adequate".

Structured settlement payees who anticipate shortfalls and their attorneys have argued "no" - the procedures have not been adequate and therefore they anticipate suffering an unconstitutional taking of their property because of:

• Inadequate notice - ELNY's financial records indicate ELNY became insolvent as early as 2002. Former New York Governor Eliot Spitzer held a press conference in 2007 announcing "an agreement in principle" that all future ELNY payments would be paid in full and on time. The NYLB mailed letters to individual ELNY annuity payees on December 7, 2011: 1)  notifying them about the proposed ELNY Liquidation and Restructuring Agreement; and 2) alerting them of anticipated shortfalls for specific ELNY annuity contracts and a January 16, 2012 deadline for filing written objections. Responding to objections of inadequate notice, the Superintendent has argued the ELNY notice and briefing schedule balanced the need for a prompt resolution of ELNY’s deepening insolvency against the ability of affected parties to review and object to the proposed liquidation and Restructuring Agreement.
• Denial of information - ELNY shortfall victims and their attorneys claim they have received inadequate information to properly evaluate the proposed Restructuring Agreement in order to propose possible improvements and/or alternatives. The Superintendent's response: this objection does not constitute grounds for rejecting the Restructuring Agreement because the information sought has been provided or is premature and unnecessary for the Court’s consideration and approval of the Restructuring Agreement. The Superintendent further points out the objectors have not offered a competing plan. During the ELNY hearing, Judge John Galasso denied a motion by attorneys for the structured settlement shortfall victims to gain access to source materials utilized by Jack Gibson, the Superintendent's expert, who testified: 1) GABC is "financially viable"; 2) the Superintendent's proposed plan was "the best plan"; and 3) all ELNY shortfall victims will be better off under the proposed Restructuring Agreement than under a straight liquidation.
• Denial of witnesses - Judge Galasso refused to allow attorneys for ELNY shortfall payees to introduce several expert witnesses stating "they wouldn't help". Among the witnesses not permitted to testify:
  • A former Chief Executive Officer of ELNY.
  • Two expert actuaries.
  • Two forensic accountants one of whom is also an insurance fraud investigator.

In an article published in the Touro Law Review (Vol 16 page 871), titled "Procedural Due Process Claims", constitutional legal expert Erwin Chemerinsky highlights the following three-part balancing test the United States Supreme Court articulated in Mathews v. Eldridge (1976) to determine whether an individual has been denied procedural due process:

• The more important the interest to the individual, the more procedural protections the reviewing court is going to require.
• The reviewing court must balance the ability of additional procedures to increase the accuracy of the fact finding; how likely is it that the additional procedures will reduce the risk of erroneous deprivation?
• Whether the government's interest in administrative efficiency is such that the more expensive the procedures would be, the less likely it would be that the reviewing court would require them.

For S2KM's complete reporting about the ELNY Liquidation Hearing, see the structured settlement wiki.

ELNY Liquidation Hearing - 4

The Executive Life of New York (ELNY) Liquidation Hearing enters its seventh day today before Judge John M. Galasso in Room 35 of the Nassau County State Supreme Court Building in Mineola, New York. This blog post provides a summary update for S2KM readers. Note: see also the Addendum.

Days 1 and 2 - Attorneys for ELNY's Receiver, the Superintendent of the New York State Department of Financial Services (Superintendent), and the National Organization of Life and Health Guaranty Associations (NOLHGA) present their case for ELNY's liquidation and approval of a proposed Restructuring Agreement to create successor company Guaranty Association Benefits Company (GABC). They present two witnesses: Jonathan Bing, Special Deputy Superintendent of the New York Liquidation Bureau (NYLB), and expert witness Jack Gibson, a Managing Director of Towers Watson.

Attorneys for ELNY structured settlement shortfall victims cross examine Bing and begin their cross-examination of Gibson. Before the Superintendent's attorneys complete their case, Judge Galasso allows ELNY structured settlement shortfall victims attending the hearing to offer oral testimony as an accommodation to their travel schedules.

Day 3 - Attorneys for ELNY structured settlement shortfall victims continue their cross examination of Gibson. Judge Galasso denies their motion to compel immediate disclosure of source materials relied upon by Gibson as well as copies of all objections filed in connection with the Petition to liquidate and restructure ELNY.

Attorneys for the shortfall victims had argued that claims of confidentiality by the 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. They also 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.

Day 4 - Attorneys representing ELNY structured settlement shortfall victims continue cross-examining Gibson. Judge Galasso agrees to two of their requests: a reservation of rights to call a witness representing NOLHGA to testify about participating Guaranty Association (PGA) coverage amounts and issues; and a Microsoft Excel version of Schedule 1.15 of the proposed ELNY Restructuring Agreement. In addition to Day 2 testimony from ELNY structured settlement shortfall victims, their attorneys have also entered documents into the Court record including:

• Written and oral statements by ELNY structured settlement shortfall victims;
• A Society of Actuaries Structured Settlement Mortality Study;
• An article titled "The Trouble with ELNY" written by Peter Bickford.

Day 5 - Attorneys from Hogan Lovells, representing Travelers Insurance Company as an "Objector", use their opportunity to cross-examine Gibson to show their support for the proposed Restructuring Agreement. Note: Hogan Lovells also serves as General Counsel for the National Structured Settlement Trade Association (NSSTA).

Cynthia Lindsey, an attorney representing a Michigan structured settlement shortfall victim, reaches the opposite conclusion during her cross examination of Gibson. After quoting dictionary definitions for "fair" and "just", Lindsey characterizes the proposed Restructuring Agreement as "a bunch of bull" telling Gibson: "You are asking this Honorable Court to approve this plan based upon your assumptions. You don't have facts." After repeated questioning by Lindsey, Gibson acknowledges NOLHGA has paid Gibson's employer, Towers Watson, "more than $3 million" since 2006 for their ELNY consulting work.

On re-direct examination, attorneys for the Superintendent (Sidley Austin) and NOLHGA (Faegre Baker Daniels) encourage Gibson to repeat claims from his earlier testimony that the proposed ELNY Restructuring Agreement represents the "best plan" and that none of the ELNY payees will be worse off compared with a straight liquidation.

Day 6 - Edward Stone, an attorney representing several structured settlement shortfall victims, continues questioning Gibson on re-cross examination. Stone questions whether all shortfall victims will be better off under the proposed Restructuring Agreement compared with a straight liquidation. In a straight liquidation, ELNY shortfall victims could receive full coverage payments from PGAs instead of net payments under the proposed Restructuring Agreement. Stone also introduces the idea of an alternative restructuring plan for ELNY and asks Gibson whether he considered various plan options.

Among Stone's suggested alternatives: 1) discounting ELNY's future deferred lump sum obligations to reduce ELNY's future liabilities and provide immediate cash for ELNY payees; and 2) selling ELNY to an existing life insurance company that could benefit from (and pay a premium for) ELNY's net operating loss carryforwards. Note: in an earlier interview with the Courthouse News Service, Stone stated he could develop a more "fair and equitable" alternative ELNY restructuring plan if he had access to the same information provided NOLHGA and Gibson since 2006.

When Gibson finally steps down (after six days of testimony and cross-examination), attorneys for the Superintendent and NOLHGA call NOLHGA's President, Peter Gallanis as a witness. On cross-examination, Carrie Tendler, an attorney representing multiple structured settlement shortfall victims, gets Gallanis to confirm that PGA contributions under the Superintendent's proposed Restructuring Agreement will be "net amounts" - i.e. their full coverage caps minus credits for current ELNY assets.

The ELNY Liquidation Hearing resumes Friday March 23, 2012 with Tendler continuing her cross-examination of Gallanis. For S2KM's complete reporting about ELNY, see the structured settlement wiki.

Day 7 ADDENDUM - Testimony by, and cross-examination of, NOLHGA's President Peter Gallanis continued on Friday March 23 eliciting the following information: Gallanis acknowleged GABC has not yet selected an investment manager or developed an investment strategy. Attorneys for structured settlement shortfall victims raised two issues related to the proposed ELNY Restructuring Agreement:

• Orphan contract enhancements create a potential public policy issue because they shift available funds that could be paid to other ELNY shortfall payees.
• If an ELNY structured settlement payee with life contingent payments dies, that payee could receive less than the present value posted on Schedule 1.15 creating a potential legal claim for his/her estate.

The ELNY Hearing continues on Monday March 26 with attorneys for the ELNY structured settlement shortfall victims expected to present witnesses.

ELNY Liquidation Hearing - 3

The fourth day of the Executive Life of New York (ELNY) Liquidation Hearing ended just like the previous three days - with attorneys representing ELNY Objectors (shortfall payees and policyholders) cross-examining Jack Gibson, the expert actuary retained by ELNY's Receiver, the Superintendent of the New York State Department of Financial Services (Superintendent).

Although presiding Judge John M. Galasso had earlier denied a motion by the ELNY Objectors' attorneys to compel disclosure of Gibson's source materials (see ELNY Liquidation Hearing - 2), Judge Galasso did agree on Tuesday March 20, 2012 to meet two new requests made on behalf of the ELNY structured settlement shortfall victims:

• A reservation of rights to call a witness representing the National Organization of Life and Health Guaranty Associations (NOLHGA) to testify about participating Guaranty Association (PGA) coverage amounts and issues;
• A Microsoft Excel version (as opposed to hardcopy and pdf versions) of Schedule 1.15 of the proposed ELNY Restructuring Agreement.

What exactly are the attorneys for the ELNY Objectors trying to accomplish with their still unfinished cross-examination of Gibson whose testimony and report conclude that Guaranty Association Benefits Company (GABC), the proposed successor company to ELNY, will be "financially viable"?

Edward Stone, an attorney representing multiple ELNY structured settlement shortfall victims, has informed S2KM that part of his cross-examination strategy is to characterize Gibson's expert report as "Garbage In, Garbage Out" work product. Stone does not dispute Gibson's impressive professional credentials. However, if Gibson has relied on faulty data that has not been independently verified and/or vetted, then Stone maintains Gibson's conclusions become suspect.

In his direct testimony, Gibson 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 GABC. He also testified that all of MetLife's administrative reports (covering the years 2002-2010) were compiled in 2011 and that he determined that MetLife data with respect to ELNY structured settlement mortality prior to 2002 was not credible.

"Gibson was hired by the Superintendent and NOLHGA to produce the results they wanted", Stone stated. "His assignment is to help get the proposed Restructuring Agreement approved not to determine whether it is fair or whether better alternative plans exist."

Although the ELNY Objectors have not yet presented their own case, their attorneys have already entered several documents into the Court record including:

• Written and oral statements by ELNY structured settlement shortfall victims;
• A Society of Actuaries Structured Settlement Mortality Study;
• An article titled "The Trouble with ELNY" written by Peter Bickford.

The ELNY Liquidation Hearing is scheduled for only one-half day on Wednesday March 21, 2012 and is expected to conclude later this week. For S2KM's complete ELNY reporting, see the structured settlement wiki.

ELNY Liquidation Hearing - 2

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.

ELNY Liquidation Hearing - 1

Following two days of testimony March 15 and 16, 2012 before Judge John M. Galasso, the hearing to consider the proposed liquidation and restructuring of Executive Life Insurance Company of New York (ELNY) will continue Monday March 19 in Room 35 of the Nassau County New York Supreme Court Building.

In addition to the direct testimony of Jonathan Bing, Special Deputy Superintendent of the New York Liquidation Bureau (NYLB), and expert witness Jack Gibson, a Managing Director of Towers Watson, the first two days featured cross examinations by attorneys representing ELNY structured settlement payees and testimony from ELNY annuitants who would suffer significant payment shortfalls under the ELNY Restructuring Agreement proposed by ELNY's Receiver, the Superintendent of the New York State Department of Financial Services (Superintendent).

According to Schedule 1.15 for the proposed ELNY Restructuring Agreement, 4168 of ELNY's remaining 9694 annuities are structured settlement annuities of which 1459 (approximately 15 percent) will experience shortfalls, some more than 50 percent, even assuming proposed state guaranty association contributions and life insurance company enhancements. The remaining ELNY annuities (approximately 85 percent) are expected to be paid in full by a new special purpose entity to be named Guaranty Association Benefits Company (GABC).

Attorneys representing the Superintendent (Sidley Austin) and NOLHGA (Faegre Baker Daniels) led Bing and Gibson through their direct testimony and introduced multiple Exhibits including Bing's Affidavit and Gibson's Expert Report both of which S2KM summarized in a prior blog post. The essence of the Superintendent's case:

• ELNY is insolvent with assets sufficient to pay for only 34 percent of its future obligations.
• ELNY's insolvency resulted from unfavorable investment results with sustained low interest rates and poor capital market performance.
• The proposed Restructuring Agreement is in best interest of policyholders, creditors and the public.
• Differences among individual annuitants result from variations in state guaranty association limits as applied to specific ELNY contracts.
• ELNY annuitants with anticipated shortfalls received adequate notice to raise objections and no one has proposed an alternative restructuring plan.
• No ELNY annuitant will be worse off under the Restructuring Agreement than with a straight liquidation.
• GABC is financially viable because of its initial funding, participating guaranty association (PGA) contributions plus voluntary life insurance company enhancements.
• GABC will be run by professional insurance managers and supervised by the New York Superintendent.
• Any surpluses earned by GABC will be paid to former ELNY annuitants on a pro rata basis.
• As ELNY's Receiver and Liquidator, the Superintendent is granted discretion under New York Law and should be granted legal immunity along with his agents including the NYLB.

On cross-examination of Bing and Gibson, attorneys for objecting ELNY annuitants highlighted the following issues:

• In fulfilling NYLB's responsibilities for ELNY, Bing has consulted with representatives of NOLHGA, the NOLHGA ELNY Task Force, ELNY PGAs, contributing ELNY life companies, ELNY policyholders, past and present Superintendents, plus the Superintendent's ELNY attorneys and experts. Bing has not, however, consulted with any ELNY annuitants or their representatives.
• Although representatives of NYLB and NOLHGA have access to all of the written objections filed with the Court by ELNY policyholders and payees, representatives of annuitants do not have access to all of the written objections and those objections have not been posted on the ELNY website.
• Although it is difficult, even for Bing, to specifically define the NYLB, it is not a taxpayer funded state agency.
• Except for individual notices mailed to ELNY annuitants on December 7, 2011, none of the other ELNY "notifications" (public notices, press releases, websites, or 800 numbers) informed individual ELNY annuitants whether they would experience shortfalls under the proposed Restructuring Agreement.
• January 16, 2012, the deadline for ELNY policyholders and payees to file objections with the Court was a legal holiday and the Court was closed.
• Until ELNY's 2006 audited financial statements were completed showing a surplus deficit of $1.266 billion, the NYLB was unaware that ELNY had insufficient assets to pays its future obligations.
• In formulating his expert opinions, Gibson relied upon source materials that annuitants and their attorneys have not been given an opportunity to review.
• Note: Judge Galasso set a Monday March 19, 2012 deadline for annuitants' attorneys to file separate motions requesting access to Gibson's source materials and to all written objections previously filed by ELNY policyholders and payees with the Court.

Before the Superintendent's attorneys completed presenting their case, Judge Galasso allowed ELNY annuitants attending the hearing to offer oral testimony as an accommodation to their travel schedules. Some of the highlights of their testimony:

• All of the testifying ELNY annuitants asserted the ELNY Restructuring Agreement and notification process were "unfair" because:
  • The Governor of New York and the Superintendent had assured the public as recently as 2007 that all ELNY benefits would be paid in full.
  • The Superintendent had years to prepare the Restructuring Agreement with assistance from NOLHGA, sophisticated attorneys, actuaries, accountants and financial advisers plus a staff of 250 NYLB employees.
  • When they received their notification letters just prior to the 2011 Christmas holidays in what some described as "junk mail envelopes", ELNY shortfall victims who wanted to challenge the Restructuring Agreement were required to:
    • Comprehend complex legal and financial materials without access to any independent professional evaluation;
    • Locate qualified attorneys willing to assist them on short notice during the holidays;
    • File written objections and propose an alternative restructuring proposal without access to critical source materials on or before a deadline that turned out to be a legal holiday.
• None of the testifying ELNY annuitants thought it was fair that 15 percent of the ELNY annuitants should bear 100 percent of the total ELNY shortfall while 85 percent of the ELNY annuitants continue to receive 100 percent of their payments.
• Some testifying ELNY annuitants stated:
  • Negotiation participants, structured settlement sales materials and/or language in their settlement documents assured them their annuity payments were "guaranteed" for life and/or a period certain.
  • It is unconscionable that: 1) the Superintendent, as ELNY's Receiver, and his agents, including the NYLB, should be granted immunity from lawsuits; and/or 2) the Superintendent should be given any supervisory role for GABC.
  • It is unfair to treat ELNY structured settlement annuitants differently depending upon whether or not original tort defendants funded their payment obligations with a Qualified Assignment.
• One ELNY annuitant (currently serving as a California State Appellate Judge) with an Article 75 (pre-1986) ELNY contract stated that three named representatives of the New York Insurance Department assured him in 1991 that he would receive all of his ELNY payments in full. Note: Judge Galasso requested briefing on the Article 75 New York Guaranty Association issues.

Based upon S2KM's written notes, here are some selected quotes from Judge Galasso during the first two days of the ELNY hearing taken out of context and sequence:

• "We are trying to be fair to everyone."
• "This company has been in trouble since 1991 and unlike banks, you cannot take your money out."
• "I have a gun to my head; if the annuitants don't get the Restructuring Agreement, they get a straight liquidation."
• "It seems unfair that 15 percent of the annuitants bear all of the loss."
• "When agents sold you your policy did they say you exceeded the guaranty association cap?"
• "My problem is that people buy their annuities and think they are 'guaranteed'"
• "Who determined the amount of voluntary life insurance contributions?"
• "Whatever I decide probably will be appealed."
• "How can insurance companies make contributions for orphan contracts but not for seriously injured payees?"
• "Results in many cases depend upon where you live. Why is that fair?"
• "Who is representing the annuitants interests? Does the Superintendent have a conflict of interest?"

The ELNY liquidation hearing continues on Monday March 19, 2012. For S2KM's complete ELNY reporting, see the structured settlement wiki.

New ELNY Website Documents

On March 15, 2012, the Supreme Court of Nassau County New York is scheduled to consider a Petition by the Superintendent of the New York State Department of Financial Services (Superintendent) for an Order of Liquidation and Approval of a Restructuring Agreement for Executive Life Insurance Company of New York (ELNY).

According to Schedule 1.15 for the proposed ELNY Restructuring Agreement, 4168 of ELNY remaining 9694 annuities are structured settlement annuities of which 1459 will experience shortfalls even assuming proposed state guaranty association contributions and enhancements. For the 1459 ELNY SSAs with anticipated shortfalls:

• 156 SSAs are identified as having been factored - although some industry sources believe the actual number of current ELNY SSAs previously factored is considerably higher.
• 1100 SSAs have "uncovered amounts" in excess of $100,000 each on a present value (PV) basis including
• 237 SSAs which have "uncovered amounts" in excess of $1,000,000 PV each including
• 17 SSAs which have "uncovered amounts" in excess of $5,000,000 PV each.
• The largest ELNY SSA has an "uncovered amount" of $25,692,377 PV.

During the past two weeks, five new documents have been added to the ELNY website:

• Affidavit of Jonathan L. Bing,
• Reply Memorandum in Response to Objections to the Proposed Liquidation of ELNY
• Expert Report of Jack L. Gibson
• Exhibit 6.1.1 - Revised Reinsurance and Participation Agreement
• Exhibit 6.1.2 - Supplemental Benefits Reinsurance and Participation Agreement

Bing's Affidavit

Bing was appointed Special Deputy Superintendent of the New York Liquidation Bureau (NYLB) in 2011. Created in 1909 by the New York State Legislature, the NYLB "carries out the responsibilities of the Superintendent of Insurance as Receiver, and acts on his behalf in the discharging of his statutorily defined duties to protect the interests of the policyholders and creditors of insurance companies that have been declared impaired or insolvent." The NYLB has been responsible for the day to day management of ELNY since it entered rehabilitation in 1991.

Filed with the Court on March 1, 2012, Bing's ELNY Affidavit supports the Superintendent's Petition for Liquidation, the proposed Restructuring Agreement and the Reply Memorandum referenced above and summarized below. Bing's Affidavit summarizes the history of the ELNY rehabilitation and acknowledges "[t]he Superintendent or his representatives received a number of requests for additional information concerning the proposed liquidation." In response, Bing's Affidavit states:

• "[C]oncerning the Restructuring Agreement, on February 17, 2012 the Superintendent filed with the Court a revised form of Reinsurance and Participation Agreement (which is Exhibit 6.1.1 to the Restructuring Agreement) and the form of Supplemental Benefits Reinsurance and Participation Agreement (which is Exhibit 6.1.2 to the Restructuring Agreement), which both contained details concerning certain benefits and guarantees provided by a consortium of life insurance companies."
• "[C]oncerning the Guaranty Association Benefits Company (“GABC”), on February 27, 2012 the Superintendent filed and served the expert report of Jack L. Gibson, a Managing Director of Towers Watson, concerning the financial viability of GABC, which was also posted to the ELNY.org website."

Bing's Affidavit further states the Superintendent has received "approximately" 130 objections to the proposed ELNY liquidation and restructuring agreement. Bing's response: "[n]otwithstanding the objections, it is clear that approval of the Restructuring Agreement as part of a comprehensive plan of liquidation is in the best interest of policyholders, creditors, and the public."

Reply Memorandum

Also filed with the Court on March 1, 2012, the Reply Memorandum is fully titled "Omnibus Reply Memorandum of Law in Response to the Objections to the Proposed Liquidation of ELNY and Distribution of ELNY's Assets Pursuant to the Restructuring Agreement." It is signed by Ralph Pernick, Assistant Attorney General, on behalf of Eric T. Schneiderman, Attorney General for the State of New York and Attorney for the Superintendent of Financial Services of the State of New York.

The Reply Memorandum consists of 56 pages plus an Exhibit A titled "List of Objections". Exhibit A identifies individual objectors (presumably ELNY annuity payees) by contract number and liability insurers (presumably ELNY "buy and hold" annuity owners) by name. Exhibit A also identifies a couple of structured settlement factoring companies as objectors.

The contents of the Reply Memorandum are organized as follows:

• Preliminary Statement
• Factual Background
• Argument
• Conclusion
• Exhibit A

The Preliminary Statement confirms that "130 objectors have raised several types of issues that the Superintendent has organized into categories, which this single, omnibus response addresses for the Court’s convenience." The Superintendent's categories of objections:

• Objections to benefit reductions by individual policyholders, including objections that ELNY Contracts cannot be modified pursuant to their contractual terms or a prior court order;
• Objections requesting additional disclosure;
• Objections relating to notice issues;
• Objections arguing that the Restructuring Agreement contravenes applicable New York law and/or is not fair and equitable;
• Objections to the calculation, amount, and timing of participation and funding by the PGAs;
• Objections to the immunity provisions of the proposed liquidation order and requests for the appointment of an independent investigator or expert; and
• Miscellaneous other objections.

The Preliminary Statement concludes:

• "No interested person has come forward with a viable alternative or proposed statutorily compliant changes to the Restructuring Agreement that would increase benefit payments to ELNY Contract policyholders and payees above those already provided for and guaranteed under the Restructuring Agreement."
• "The Court should overrule the objections submitted and issue an order declaring ELNY to be insolvent and directing the liquidation of ELNY on the terms set forth in the Restructuring Agreement."

In addition to providing factual background about the ELNY rehabilitation, the second section states: "[t]he Superintendent continues to believe that obtaining approval of the Restructuring Agreement as part of a comprehensive plan of liquidation is in the best interest of ELNY’s creditors, ELNY Contract policyholders, and the public because it:

• "Adds substantial additional value from state guaranty associations and voluntary insurance industry participants that will result in the full coverage of approximately 85 percent of ELNY Contracts,
• "Minimizes the risk of disruption in annuity benefit payments,
• "Provides guaranty association coverage without disruption of benefits and without requiring ELNY Contract policyholders and payees from having affirmatively to seek guaranty association coverage to which they are entitled under state statutes,
• "Provides for an optimal transition for ELNY from rehabilitation to liquidation,
• "Does not impermissibly discriminate against any class of ELNY creditors, and
• "Treats ELNY creditors and all other interested parties fairly and equitably in accordance with the requirements and intent of Insurance Law Section 7435."

The Factual Background section concludes: "if the Restructuring Agreement is not approved, benefit payments for the more than 9,500 non-objecting ELNY Contract policyholders and payees will be placed at risk of disruption, there will be no guarantee for future payments, and orphan contracts (those not covered by a state guaranty association) would suffer a reduction in benefits to a level supported only by ELNY’s current assets. Such a result is inconsistent with the best interest of ELNY creditors, ELNY Contract policyholders and payees, and the public."

In the Argument section, the Reply Memorandum considers and rejects each of the categories of objections outlined above. S2KM will summarize and discuss the Reply Memorandum arguments in a subsequent blog post.

The Reply Memorandum concludes: "For the reasons set forth above, this Court should grant the relief requested in the Verified Petition and grant such other and further relief as the Court deems just and proper."

Jack Gibson Expert Report

Jack Gibson's Expert Report is dated February 27, 2012. It consists of 18 pages, 33 Exhibits and 3 Appendices. According to Gibson, he has been retained as an expert witness by Faegre Baker Daniels LLP, on behalf of its client, NOLHGA, and Sidley Austin LLP, on behalf of its client, the Superintendent of Financial Services of New York, as Receiver for ELNY. Gibson's clients have asked him to review the proposed ELNY Restructuring Agreement and to assess the financial viability of the resulting special purpose entity (GABC).

Among his qualifications, Gibson states he is a Managing Director of Towers Watson. He previously supported NOLHGA related to Executive Life of California. He has been engaged by NOLHGA since February 2006 as consulting actuary for the NOLHGA ELNY Task Force. In connection with Gibson's ELNY consulting services, his clients are compensating Towers Watson at an hourly billing rate of $525.

Among the information and materials Gibson reviewed for his ELNY analysis, several appear not to have been made available to ELNY annuity payees, their representatives or the general public:

• ELNY 2002-2010 Mortality Experience Study, developed by Towers Watson under Gibson's direct supervision and direction;
• MetLife/ELNY Administration Agreement 2011-2013, dated May 12, 2011;
• Investment asset data provided by the investment managers for ELNY, Wellington Management Company and Goldman Sachs Asset Management, as of July 31, 2011 and December 31, 2011;
• ELNY Contract administrative record detail from MetLife as of September 30, 2002, September 30, 2003, September 30, 2004, September 30, 2005, September 30, 2006, March 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, March 31, 2011, and December 31, 2011; and
• March 31, 2011 estimates for every ELNY contract, showing Guaranty Association coverage state (if any), GA coverage amount (if any), and Article 75 allocations (if any), provided by NOLHGA.

Based upon his analysis, Gibson concludes:

• "GABC is financially viable and provides a combination of significant initial funding of assets, along with an array of guarantees that together provide significant security and protection to enable GABC to meet all future financial obligations; and
• "For every one (100%) of the 9,000 scenarios tested and summarized in this report, the assets of GABC were sufficient to pay all future GABC benefit payments."

For complete S2KM reporting and analysis about ELNY, including an Executive Life timeline, see the structured settlement wiki.