Tag Archives: insurance law

Fixing the Economics of Securities Defense

In my last D&O Discourse post, “The Future of Securities Class Action Litigation,” I discussed why changes to the securities litigation defense bar are inevitable: In a nutshell, the economic structures of the typical securities defense firms — mostly national law firms — result in defense costs that significantly exceed what is rational to spend in a typical securities class action. As I explained, the solution needs to come from outside the biglaw paradigm; when biglaw firms try to reduce the cost of one case without changing their fundamental billing and staffing structure, they end up cutting corners by foregoing important tasks or settling prematurely for an unnecessarily high amount. That is obviously unacceptable.

The solution thus requires us to approach securities class action defense in a new way, by creating a specialized bar of securities defense lawyers from two groups: lawyers from national firms who change their staffing structure and lower their billing rates and from experienced securities litigators from regional firms with economic structures that are naturally more rational.

See Also: Future of Securities Class Actions

But litigation venues are regional. We have state and federal courts organized by states and areas within states. Because lawyers need to go to the courthouse to file pleadings, attend court hearings and meet with clients in that location, the lawyer handling a case needs to live where the judge and clients live.

Right?

Not anymore.

Although the belief that a case needs a local lawyer persists, that is no longer how litigation works. We don’t file pleadings at the courthouse; we file them on the Internet from anywhere (even from an airplane). These days, in most cases, there are just a handful of in-person court hearings. And the reality is that most clients don’t want their lawyers hanging around in-person at their offices because email, phone calls and Skype suffice. Even document collection can be done mostly electronically and remotely. And with increasingly strict deposition limits and witnesses located around the country and the world, depositions don’t require much time in the forum city, either.

In a typical Reform Act case, where discovery is stayed through the motion-to-dismiss process, the amount of time a lawyer needs to spend in the forum city is especially modest. If a case is dismissed, the case activities in the forum city (in a typical case) amount only to (1) a short visit to the client’s offices to learn the facts necessary to assess the case and prepare the motion to dismiss and (2) the motion-to-dismiss argument, if there is one. Indeed, assuming a typical securities case requires 1,000 hours of lawyer time through an initial motion to dismiss, fewer than 50 of those hours — one-half of 1% — need to be spent in the forum city.  The other 99.5% can be spent anywhere.

Discovery doesn’t change these percentages much.  Assume it takes another 10,000 hours of attorney time to litigate a case through a summary judgment motion (so 11,000 total hours). Four lawyers/paralegals spending four weeks in the forum city for document collection and depositions (a generous allotment) yields only another 640 hours. So, in my hypothetical, only 0.63% of the defense of the case requires a lawyer to be in the forum city. The other 99.37% of the work can be done anywhere. Because a biglaw firm would litigate a securities class action with a larger team, the total number of hours in a typical biglaw case would be much higher (both the total defense hours and the total number of hours spent in the forum city), but the percentages would be similar.

And the cost of travel does not move the economic needle. Of course, if a firm is willing not to charge for travel time and travel costs to the forum city, there is no economic issue. My firm is willing to make this concession, and I would bet others are, as well. Even if a firm does charge for travel cost and travel time, the cost is minuscule in relationship to total defense costs. For example, my total travel costs (airfare and lodging) for a five-night trip to New York City are typically less than the cost of two biglaw partner hours.

Of course, there are some purposes for which local counsel is necessary, or at least ideal: someone who knows the local rules, is familiar with the local judges and is admitted in the forum state. But the need to use local counsel for a limited number of tasks doesn’t present any economic or strategic issue, either — if the lawyers’ roles are clearly defined. Depending on the circumstances, I like to work either with a local lawyer in a litigation boutique that was formed by former large-firm lawyers with strong local connections or with a lawyer from a strong regional firm. I just finished a case where the local firm was a boutique and a case where the local firm was another regional firm. In both cases, the local firms charged de minimis amounts. In some cases, the local firm can, and should, play a larger role, but whatever the type of firm and its role, the lead and local lawyers can develop the right staffing for the case and work together essentially as one firm — if they want to.

All of these considerations show securities litigation defense can and should be a nationwide practice. It is no longer local. We need to look no further than the other side of the “v” for a good example. Our adversaries in the plaintiffs’ bar have long litigated cases around the country, often teaming up with local lawyers from different firms. Like securities defense, plaintiffs’ securities work requires a full-time focus that has led to a relatively small number of qualified firms. The qualified firms litigate cases around the country, not just in their hometowns or where their firms have lawyers.

This all seems relatively simple, but it requires us all to abandon old assumptions about law practices that are no longer applicable and embrace a new mindset. Biglaw defense lawyers need to obtain more economic freedom within their firms to reduce their rates and staffing for typical securities cases, or they must face the reality that their firms perhaps are better-suited only for the largest cases. Regional firms must recruit more full-time securities litigation partners and be willing not to charge for travel time and costs. And companies and insurers must appreciate that securities litigation defense will improve — through better substantive and economic results in both individual cases and overall — if they recognize a good regional firm with dedicated securities litigators can defend a securities class action anywhere in the country and can usually do so more effectively and efficiently than a biglaw firm.

5 Changes Needed in Securities Litigation

I am committed to helping shape a system for securities litigation defense that helps directors and officers get through securities litigation safely and efficiently, without losing their serenity or dignity, or facing any real risk of paying any personal funds.

But we are actually moving in the opposite direction of this goal, and, unless some changes are made, securities litigation will pose greater and greater risk to individual directors and officers. It is time for the “repeat players” in securities litigation defense – D&O insurers and brokers, defense lawyers and economists – to make some fundamental changes to how we do things.

Although most cases still seem to turn out fine for the individual defendants, resolved by a dismissal or a settlement that is fully funded by D&O insurance, the bigger picture is not pretty. The law firms that have defended most cases since securities class actions gained footing through Basic v. Levinson – primarily “biglaw” firms based in the country’s several largest cities – are no longer suitable for many, or even most, securities class actions. Fueled by high billing rates and profit-focused staffing, those firms’ skyrocketing defense costs threaten to exhaust most or all of the D&O insurance towers in cases that are not ended on a motion to dismiss. Rarely can such firms defend cases vigorously through summary judgment and toward trial anymore.

Worse, these high prices too often do not yield strategic benefits. A strong motion to dismiss focuses on the truth of what the defendants said, with support from the context of the statements, as directed by the U.S. Supreme Court in Tellabs and Omnicare. Yet, far too often, the motion-to-dismiss briefs that come out of these large firms are little more than cookie-cutter arguments based on the structure of the Reform Act. And if a motion is lost, settlements are higher than necessary because the defendants often have no option but to settle to avoid an avalanche of defense costs that would exhaust their D&O insurance limits. On the other hand, if settlement occurs later, it can be difficult to keep settlement within D&O insurance limits – and defense counsel’s analysis of a “reasonable” settlement can influenced by a desire to justify the amount it has billed.

At the same time that defense costs are continuing to soar, securities class actions are becoming smaller and smaller, with two-thirds of cases brought against companies with market caps less than $2 billion, and almost half less than $750 million. Although catawampus securities litigation economics is a systemic problem, affecting cases of all sizes, the problem is especially acute in the smaller half of cases. Some of those cases simply cannot be defended both well and economically by typical defense firms. Either defense costs become ridiculously large for the size of the case and the amount of the D&O insurance limits, or firms try to reduce costs by cutting corners on staffing and projects – or both. We see large law firms routinely chase smaller and smaller cases. From a market perspective, it makes no sense at all.

So how do we achieve a better securities litigation system?  Five changes would have a profound impact:

  1. Require an interview process for the selection of defense counsel, to allow the defendants to understand their options; to evaluate conflicts of interest and the advantages and disadvantages of using their corporate firm to defend the litigation; and to achieve cost concessions that only a competitive interview process can yield.
  2. Move damages expert reports and discovery ahead of fact discovery, to allow the defendants and their D&O insurers to understand the real economics of cases that survive a motion to dismiss, and to make more informed litigation and settlement decisions.
  3. Increase the involvement of D&O insurers in defense-counsel selection and in other strategic defense decisions, to put those that have the greatest overall experience and economic stake in securities class action defense in a position to provide meaningful input.
  4. Increase the involvement of boards of directors in decisions concerning D&O insurance and the defense of securities litigation, including counsel selection, to ensure their personal protection and good oversight of the defense of the company and themselves.
  5. Make the Supreme Court’s Omnicare decision a primary tool in the defense of securities class actions. Obviously, Omnicare should be used to defend against challenges to all forms of opinions, including statements regarded as “puffery” and forward-looking statements protected by the Reform Act’s Safe Harbor. But defense counsel should also take advantage of the Supreme Court’s direction in Omnicare that courts evaluate challenged statements in their full factual context. Omnicare supplements the court’s previous direction in Tellabs that courts evaluate scienter by considering not just the complaint’s allegations, but also documents incorporated by reference and documents subject to judicial notice.  Together, Omnicare and Tellabs allow defense counsel to defend their clients’ honesty with a robust factual record at the motion to dismiss stage.

These five changes are among the top wishes I have to improve securities litigation defense, and to preserve the protections of directors and officers who face securities litigation.

It’s Time for a Consumer Bill of Rights

On April 6, 2016,  the Department of Labor (DOL) released its long-awaited fiduciary rule. It is clear that things will never be the same. While the fiduciary rule is limited in the products that it applies to, it is a clear sign that the time has arrived for the Insurance Consumer Bill of Rights.

Some complain bitterly about the rule — William Shakespeare has Queen Gertrude say in Hamlet, “The lady doth protest too much, methinks” — but there is clearly a trend, with the DOL’s fiduciary rule, the proposed rule by the SEC, new consumer protection rules for seniors and the amount of complaints to the Consumer Financial Protection Bureau. To go from Shakespeare to a more modern poet: Bob Dylan sang, “The times they are a-changing.”

It is time for the insurance industry to wake up. If the way business is conducted remains as is on products not covered by the fiduciary rule, there will be further regulations and scrutiny thrust upon the insurance world, and there will less opportunity to have a voice at the table.

Insurance Agents, Distribution Systems and Reasonable Compensation:

The traditional agent system has been fading away over the last couple of decades. There are very few companies that still have their own “captive” agents. “Captive” agents are those who primarily represent one specific insurance company such as Northwestern Mutual Life, New York Life, Mass Mutual, State Farm, Farmers, Allstate, etc. and who receive office space and other support from that company.

Most insurance is now sold by agents who represent multiple insurance companies and who try to find the optimal coverage for their clients at the most affordable premiums. Of course, there are agents who are driven by commissions, and those are the ones who are most affected by the fiduciary rule and whatever comes next.  Acting in the best interests of a client is something the majority of agents strive to do, but enough agents don’t that this type of regulatory change is warranted.

Insurance companies are rethinking their distribution strategies, as shown by MetLife and AIG. MetLife recently sold off its Premier Client Group (retail distribution entity with approximately 4,000 advisers). American International Group (AIG) sold off its broker-dealer operation. And a number of insurance companies have withdrawn from the U.S. variable annuity marketplace over the last few years: Voya (formerly ING), Genworth, SunLife and Fidelity stopped selling MetLife Annuities.

The real concern for insurance companies and agents is that they will no longer be able to sell a product that can’t be fully justified as suitable to clients. In other words, selling the annuity with the highest commission and the best incentives will no longer cut it. While the DOL rule only applies to those annuities sold in qualified plans, is it really a stretch of the imagination to consider class action lawsuits against agents who are not following the same practices outside of qualified plans?

And of course there is the issue of reasonable compensation. Reasonable compensation under the BICE is not specifically defined and is certainly open to interpretation. The DOL notes several factors in determining reasonable compensation: market pricing of services and assets, the cost and scope of monitoring and the complexity of the products. There is the interpretation that advisers who have more education (certifications, degrees, licenses, etc.) may be able to justify higher fees or commissions. This is also a good thing as this will encourage advisers to improve their skill set and be of better service to their clients. The Insurance Quality Mark is a great way for agents to show their level of expertise and professionalism.

That Ticking Sound You Hear?

The current distribution system is ineffective with the types of products sold and the accompanying incentives. Agents receive higher compensation for less competitive products, and they receive incentives for making sales targets. This is traditional for sales in any industry. However, as we’ve seen in the investment community, there are few traditional commissioned stock brokers and investment advisers, while the majority are now fee-based planners. Consumers expect more and are more financially literate. The Internet especially has changed the way financial products are sold. And insurance is part of the financial world.

The Securities Exchange Commission may finally be spurred to move forward with its own fiduciary regulation. SEC Commissioner Mary Jo White has stated that fiduciary reform is in order at the commission, and that the SEC should harmonize the rules for investment advisers and broker-dealers serving retail clients.

And will FINRA (Financial Industry Regulatory Authority),  NAIC (National Association of Insurance Commissioners), the CFPB (Consumer Financial Protection Bureau), the U.S. House of Representatives, the U.S. Senate or some other body move forward with their own set of rules and regulations?

The marketing material that I see from many firms is, “We put our customers first.” Thomas E. Perez, the secretary of labor, said in an interview: “This is no longer a marketing slogan. It’s the law.”

The pressure is on annuity companies and insurance companies to design simpler products with lower fees and increased transparency.

Everyone needs to rethink the entire sales and policy management process and follow the best practices outlined in the Insurance Consumer Bill of Rights. It requires insurance agents to place their clients’ (insurance consumers) best interests first to the best of their ability. The Insurance Consumer Bill of Rights focuses on common-sense, thorough communication and providing quality service in a way that benefits everyone. Following the Insurance Consumer Bill of Rights is a win for everyone.

The Bottom Line: 

Insurance agents, insurance brokers and insurance companies can be the leaders in providing insurance consumers with rights or can be led by follow-ups to the DOL’s fiduciary rule. The DOL’s fiduciary rule is not the end, it is only the beginning.

Again, it is good business for everyone when firms must fairly disclose fees, compensation and material conflicts of interest associated with their recommendations and not give their advisers incentives to act contrary to their clients’ interests. (It’s a sad state that such a requirement is necessary.)

The future is up to us. If we start to treat annuities and cash value life insurance as the complex financial vehicles that they are and start to better educate our clients and ourselves and carefully service them, then there will be positive outcomes. If we continue with the current approach, lack of education and disclosure, more contracts will terminate and there will be significant negative consequences for policy/contract owners and their beneficiaries, and agents may very well find themselves as defendants in litigation.

The Insurance Consumer Bill of Rights:

  1. The Right to Have Your Agent Act in Your Best Interest: to the best of her ability. Keep in mind that agents are not fiduciaries and are agents of the insurance company(ies). An agent recommendation should not be influenced by commissions, bonuses or other incentives (cash or non-cash). An agent should not collect a fee and a commission from the same client for the same work.
  2. The Right to Receive Customized Coverage Appropriate to Your Needs: An insurance agent should review your potential coverage needs per each line of coverage under consideration and take into account any existing coverage. Any new recommended coverage must fill a need (gap in coverage). Any replacement must be carefully reviewed with all pros and cons considered and presented in writing to the consumer.
  3. The Right to Free Choice: You have the right to receive multiple competitive options and to choose your company, agent and policy. Agents, brokers and companies must inform you in simple language of your coverage options when you apply for an insurance policy. Different levels of coverage are available, and you have the right to know how each option affects your premium and what your coverage would be in the event of a claim.
  4. The Right to Receive an Answer to Any Question: You’re the buyer, so you have the right to ask any question and to receive an answer. The answer should fully and completely address your question or concern in full and be understandable. If you don’t understand something, you as as the buyer have a duty to ask questions, and, if you still don’t understand, you shouldn’t buy that policy.
  5. The Right to Pay a Fair Premium: There must be full disclosure on how policy premiums are calculated and the impact of different risk factors specific to the type of coverage proposed. Also, information should be provided on factors that may reduce the premium in the future.
  6. The Right to Be Informed: You need to receive complete and accurate information in writing – anything said or promised orally must be put in writing. This includes full Information on any recommended insurance company, including name, address, phone number, website and financial strength rating(s).
  7. The Right to be Treated Fairly and Respectfully: This includes the right to not be pressured. If there is a deadline, the reason must be presented. If an offer is too good to be true, then it most likely is too good to be true. Insurance agents and companies should keep information private and confidential.
  8. The Right to Full Disclosure and Updates: You must receive notice of any changes in the coverage in easy-to-understand language and any relevant changes in the marketplace. All relevant information and disclosure requirements (required or not) on an insurance product must be presented to the client. You must receive in writing a summary of all surrender charges, length of surrender period and any additional costs for early termination. In any replacement situation, all pros and cons must be submitted in writing.
  9. The Right to Quality Service – You must be able to have your coverage needs reviewed at any time upon request, whenever a major event would affect coverage and at least annually. The agent must determine if changes have occurred with the client or in the marketplace that would dictate changes to the insurance coverage. This includes prompt assistance on any claims.
  10. The Right to Change or Cancel Your Coverage: This right must come without any restrictions or hassles.

View the Department of Labor conflict of interest final rule by clicking ere.

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Court Reverses Award of Psychiatric Injury

The First Appellate District Court of Appeal has closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition” contained in Labor Code § 3208.3(d) with a reversal of a W.C.A.B. decision awarding benefits for a psychiatric injury in Travelers Casualty and Surety Co v W.C.A.B. (Dreher).

The applicant was employed as a live-in maintenance supervisor for an apartment complex and had been employed for only 74 days at the time of his injury on Oct. 19, 2009. He was walking in the rain from one building to another in the complex, when he slipped and fell on a slippery concrete sidewalk sustaining multiple significant injuries, including fractured pelvis, injuries to his neck, right shoulder, right leg and knee. He also suffered gait derangement, a sleep disorder and headaches. As a result of those injuries, he developed psychiatric complaints as a consequence of his multiple surgeries and continuing issues. A medical report supported a relationship between his injury and a psychiatric disorder.

However, at trial, the WCJ denied his claim for his psychiatric condition on the basis that his employment failed to meet the minimum six-month requirement for employment under Labor Code § 3208.3(d) and further determined the exception for a “sudden and extraordinary employment condition” had not been met. On reconsideration, a split panel reversed the WCJ holding and determined that the applicant’s fall on slippery concrete met the sudden and extraordinary requirement of the statute. The Court of Appeal granted Travelers’ petition for writ of review.

After dealing with some procedural issues, the court got to the heart of the matter. Reviewing the multiple cases outlining the criterion for applying the sudden and extraordinary employment condition, the court refused to find that a slip and fall on a sidewalk met the criterion. Citing the landmark decision in Wal-mart v W.C.A.B., the court noted that the mere fact the injury was accidental did not meet the statutory exception:

“If the argument were made that an accidental injury constitutes a ‘sudden and extraordinary employment condition,’ we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation; this distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature.”

See Also: Appeals Court Settles Key Work Comp Issue

The court also rejected the argument advanced by applicant that the unexpectedly catastrophic nature of the injury served as a basis for an extraordinary employment condition.

“Here, the statute provides that the six-month limitation does not apply if the psychiatric condition is caused by a ;sudden and extraordinary employment condition.’ (§ 3208.3, subd. (d).) The statute does not include the nature of the injuries resulting from an incident as a basis for the exception. Had the Legislature intended to include the nature of the injury as a factor in the definition of a sudden and extraordinary employment condition, it knew how to do so….

“Accordingly, although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher routinely walked between buildings on concrete walkways at the work site and that he slipped and fell while walking on rain-slicked pavement.”

The court further noted the burden was on the employee to prove the sudden and extraordinary employment condition, and the applicant’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.

The matter was remanded to the W.C.A.B. with instructions to deny the claim for psychiatric injury.

Comments and Conclusions:

This is a relatively short appellate decision but with a firm result. The court was clearly of a mind that the W.C.A.B.’s interpretation of what constituted a sudden and extraordinary employment condition did not meet the common sense test for legislative interpretation. Commissioner Caplane, in her dissent in the W.C.A.B. decision, had noted that the majority’s opinion on what constituted a sudden and extraordinary event could be applied to virtually every claim because injuries were almost always unexpected when they occurred. While the court did not make a specific comment, the idea that an employee slipping on a wet sidewalk was in any way shape or form “extraordinary” simply did not pass the smell test.

The court’s holding that the nature of the injuries sustained did not figure into the equation is also of considerable help in defining application of the rule under Labor Code § 3208.3(d).

While the court’s interpretation of Labor Code § 3208.3(d) is helpful for that section, I do not think this decision is going to have any impact on our understanding of the language in Labor Code § 4660.1(c)(2)(B), with the exception created for “catastrophic injuries.” That section clearly intends there be consideration of the nature of an injury in the determination of whether additional psychiatric sequelae is to be included in the calculation of PD.

Implications for Insurance Taxation?

Election-year politics are dominating legislative action this year as both parties lay down policy agendas for 2017 and beyond. President Obama and the Republican leaders of Congress are offering competing plans on how to reform the U.S. tax system and how to promote other policies intended to increase economic growth and make American companies more competitive. At the same time, both Democratic and Republican candidates seeking their party’s presidential nomination are advancing tax reform plans.

During his final year in office, President Obama likely will continue to rely on his administration’s regulatory authority and the presidential veto to preserve the 2010 Affordable Care Act (ACA)—as well as other legislative and regulatory actions taken during his years in office.

Obama administration action

On Feb. 9, President Obama submitted an FY 2017 budget to Congress that reaffirmed his support for “business tax reform” that would lower the top U.S. corporate tax rate to 28%, with a 25% rate for domestic manufacturing income.

Significant international tax increase proposals that have been re-proposed include a 19% minimum tax on future foreign income and a one-time mandatory 14% tax on previously untaxed foreign income. The president’s budget, again, reserves revenue from a large number of previously proposed tax increases to support business tax reform—including specific proposals affecting insurance taxation (discussed below)—but his budget identifies only part of the revenue that would be needed to support his proposed corporate rate reductions.

Congressional action

House Speaker Paul Ryan (R-WI) has called for House Republicans to vote in 2016 on comprehensive tax reform legislation and on changes to federal entitlement programs as a way to define and build support for a conservative legislative agenda. Senate Majority Leader Mitch McConnell (R-KY) is also expected to advance a conservative legislative agenda with a focus on demonstrating an ability to govern and with an eye on protecting the Republican Senate majority.

See Also: 19 Specific Taxes Directly Related to Healthcare Reform

House Ways and Means Committee Chairman Kevin Brady (R-TX) recently outlined his goals for producing a blueprint for comprehensive tax reform and plans to “move forward immediately to draft international tax reform legislation.” Chairman Brady has said he hopes the Obama administration and Congress can reach common ground on some policies and build on the momentum from the last year’s “tax extender” legislation, which included a provision making permanent Subpart F exceptions for active financing income.

Chairman Brady said comprehensive tax reform “will not happen until we have a new president,” but he is “hopeful that, next January, we will have a president—Republican or Democrat—who is committed to making pro-growth tax reform a reality for the American people.” The chairman outlined several principles for comprehensive tax reform, including a “competitive tax rate” and a “permanent, modern territorial-type system that helps American companies compete and win overseas.” He also said the Ways and Means Committee will look, “with fresh eyes,” at a range of tax ideas, including “consumption tax, cash flow tax, reformed income tax and any other approach that will be pro-growth.”

On international tax reform, Chairman Brady said “developments in the global environment demand our immediate attention.” He pointed to OECD  “base erosion and profit shifting” (BEPS) proposals that “disproportionately burden American companies” and the European Commission anti-tax avoidance package that would provide EU member countries with an “arsenal of new revenue-grabbing tax measures.” He also discussed the growing number of corporate inversions and foreign acquisitions involving U.S. companies: “We will send a clear signal to American companies and shareholders that help is on the way—that we won’t stand idly by while our tax code drives them overseas or makes them a target for a foreign takeover.”

Senate Finance Chairman Orrin Hatch (R-UT) has said he “doubts very much” that international-only tax reform can be enacted this year. The Finance Committee Republican majority staff has been working on options for corporate integration tax reform proposals that would seek to eliminate the double taxation of corporate earnings. Corporate integration proposals generally have focused on approaches providing that any distributions made by such entities would either be deductible by the entity (dividends paid deduction) or would be excludable by the recipient (dividend exclusion). A December 2014 report prepared by the Senate Finance Committee Republican staff stated that a dividends-paid deduction “would generally be easy to implement and would largely equalize the treatment of debt and equity.” Chairman Hatch recently asked Treasury Secretary Jack Lew to “keep an open mind” to a corporate integration proposal that might help to make U.S. corporations more competitive globally and could reduce inversions.

Although there is bipartisan agreement that the U.S. corporate tax rate should be lowered significantly and that our international tax system should be updated, there is significant disagreement over key business tax issues, including how to offset the cost of a corporate rate reduction.

See Also: How a GOP Congress Could Fix Obamacare

Insurance-related revenue raisers

The Obama administration’s FY 2017 budget re-proposes several revenue-increasing measures specific to insurance companies. The proposed legislative changes generally would apply for tax years beginning after Dec. 31, 2016.

Among the insurance-related measures are provisions that would:

  • Disallow the deduction for non-taxed reinsurance premiums paid to affiliates — This proposal would disallow any deduction to covered insurance companies for the full amount of reinsurance premiums paid to foreign affiliated insurance companies with respect to reinsurance of property and casualty risks if the premium is not subject to U.S. income taxation. The proposal would provide a corresponding exclusion from income for reinsurance recovered, with respect to a reinsurance arrangement for which the premium deduction has been disallowed. The proposal would also provide an exclusion from income for ceding commissions received with respect to a reinsurance arrangement for which the premium deduction has been disallowed. The exclusions are intended to apply only to the extent the corresponding premium deduction is disallowed. The proposal would provide that a foreign corporation that is paid a premium from an affiliate that would otherwise be denied a deduction under this provision may elect to treat those premiums and the associated investment income as income effectively connected with the conduct of a trade or business in the U.S. If that election is made, the disallowance provisions would not apply.
  • Conform net operating loss rules of life insurance companies to those of other corporations — This proposal would modify the carry-back and carry-forward periods for losses from operations of life insurance companies to conform the treatment to that of other taxpayers. Under the proposal, losses from operations of life insurance companies could be carried back up to two taxable years prior to the loss year and carried forward 20 taxable years following the loss year.
  • Modify rules that apply to sales of life insurance contracts, including transfer for value rules — This proposal would create a reporting requirement for the purchase of any interest in an existing life insurance contract with a death benefit equal to, or exceeding, $500,000. The proposal would also modify the transfer for value rule to ensure that exceptions to that rule would not apply to buyers of policies.
  • Modify dividends received deduction for life insurance company separate accounts — This proposal would repeal the present-law proration rules for life insurance companies and apply the same proration regime separately to both the general account and separate accounts of a company. Under the proposal, the policyholders’ share would be calculated based on a ratio of the mean of the reserves to the mean of the total assets of the account. The company’s share would be equal to one less than the policyholders’ share.
  • Expand pro rata interest expense disallowance for company-owned life insurance (“COLI”) — This proposal would curtail an exception to a current law interest disallowance of a pro rata portion of a company’s otherwise-deductible interest expense, based on the un-borrowed cash value of COLI policies. As modified, the exception would apply only to policies covering the lives of 20% owners of the business. The proposal would apply to contracts issued after Dec. 31, 2016, in tax years ending after that date.
  • Repeal special estimated tax payment provision for insurance companies under section 847 — This proposal would repeal IRC Section 847 and would include the entire balance of an existing special loss discount account in income in the first tax year after 2016. Alternatively, the proposal would permit an election to include the balance in income ratably over four years. Existing special estimated tax payments would be applied.

Insurance Developments: Judicial and Administrative

A number of judicial and administrative developments occurred in 2015 concerning insurance companies.

These developments affected insurers in various lines of business:

  • Life insurers: The most significant development for life insurers was not solely a tax development. Life principal-based reserves (PBR) will be effective when 42 states representing 75% of total direct written premiums amend their standard valuation law. At the current rate of adoption, Life PBR is expected to be effective Jan. 1, 2017, for contracts issued on or after that date. Life PBR will implicate a number of tax issues, and, for the first time, the IRS and Treasury included guidance on Life PBR in its annual Priority Guidance Plan. Also during 2015, the Tax Court decided in Webber v. Commissioner, 144 T.C. No. 17 (June 30, 2015) that a policyholder was liable for taxes on income earned on assets supporting a variable life insurance contract based on the policyholder’s control over the assets. The case accorded deference to a number of the IRS’s “investor control” revenue rulings and could result in closer attention to variable life insurance and annuity contracts that are privately placed.
  • Non-life insurers: In 2015, the Tax Court addressed what qualifies as insurance risk for purposes of classifying contracts as insurance contracts. In R.V.I. Guaranty Co., Ltd v. Commissioner, 145 T.C. 9 (September 21, 2015), the court held that residual value insurance (RVI) contracts that protect against an unexpected decline in the market value of leased personal property qualify as insurance contracts for federal income tax purposes. The case’s reasoning relies heavily on the treatment of the contracts by non-tax regulators, and it provides taxpayers further guidance for distinguishing between investment risk and insurance risk.
  • Health insurers: In 2015, a Treasury Inspector General for Tax Administration (TIGTA) report criticized the IRS for the “finality” requirement that prevents the service from assessing health insurers that inadvertently or otherwise were not assessed the correct amount (or any) of the health insurance provider fee, which is apportioned among all covered health insurers. Other health insurance providers still wait for the IRS to act on refund requests of the fee in 2015. The ultimate resolution remains uncertain.
  • Captive insurance companies: During 2015, the IRS issued two Chief Counsel Advice (CCA) that analyze whether specific types of policies issued by captive insurance companies constitute insurance for federal income tax purposes. In CCA 201511021, the IRS determined that contracts indemnifying the policyholder for loss of earnings resulting from foreign currency fluctuations did not satisfy the three-prong test to be considered insurance because foreign currency risk is not an insurance risk. The CCA was issued before the tax court’s decision in R.V.I. Guaranty Co., Ltd., so it did not take the tax court’s approach into account. In CCA 201533011, the IRS concluded that excess loss policies issued by a captive insurance company that covered healthcare risks of members of unrelated HMOs are not insurance contracts because they lacked the requisite element of risk shifting. Based on the facts as presented, the CCA analyzed the arrangement as an interest-bearing deposit, but it then concluded that receipts were included in income and deductions were allowed for future claim payments when made. Also in 2015, the IRS issued IR 2015-19, which added section 831(b) companies to the “Dirty Dozen” list of tax scams, indicating the IRS would target these companies in examination.
  • PFIC exception for income derived in the active conduct of an insurance business: Again during 2015, the IRS proposed regulations that would provide guidance on investment income that is treated as derived in the active conduct of an insurance business and, therefore, not treated as “passive income” under the passive foreign investment company (PFIC) rules. In particular, Prop. Reg. §1.1297-4 would provide that “active conduct” requires that an insurer conduct its activities through its own officers and employees and that investment income be earned on assets held to meet obligations under insurance and annuity contracts. Several comments were submitted on these issues and on the use of a bright line test for whether assets are held to meet obligations under insurance contracts.
  • Cross-border reinsurance: The Court of Appeals for the District of Columbia Circuit ruled in Validus Reinsurance, Ltd v. United States of America, 786 F.3d 1039 (2015) that the Federal Excise Tax (FET) on insurance premiums does not apply to retrocessions between two foreign insurers, regardless of whether the underlying risks are U.S.-based. Accordingly, the IRS issued Rev. Rul. 2016-3, 2016-3 I.R.B. 282, which revokes the ruling setting forth the IRS’s prior position on the application of FET on a cascading basis to either reinsurance or retrocession arrangements between two foreign insurers. The Validus decision and Rev. Rul. 2016-3 mark the end of the controversy with the IRS on this issue, and most companies already have submitted claims for refund of previously-paid excise tax on a cascading basis, or they plan to do so.
  • Inversions: In 2014, the Treasury Department and the IRS issued Notice 2014-52, which describes regulations the Treasury and IRS intend to issue concerning transactions sometimes referred to as “inversions.” The notice included a “cash box” rule, which targeted taxpayers who engage in certain inversion transactions with foreign corporations and their subsidiaries with substantial liquid assets. As a follow up to that notice, the Treasury and IRS issued Notice 2015- 79, providing more information about the intended regulations. In particular, Notice 2015-79 describes regulations that the IRS and the Treasury intend to issue addressing transactions that are structured to avoid the purposes of §7874 (concerning expatriated entities) and addressing “post-inversion tax avoidance transactions.” The latter notice clarifies that property held by a U.S. insurance corporation and a foreign corporation that is engaged in the active conduct of an insurance business will be exempted from the “cash box” rule. As in prior years, the IRS and Treasury jointly issued a Priority Guidance Plan outlining guidance it intends to work on during the 2015-16 year. The plan continues to focus more on life than property and casualty insurance companies. The following insurance-specific projects were listed as priority items. Many carried over from last year’s plan, including:
  • Final regulations under §72 on the exchange of property for an annuity contract. Proposed regulations were published on Oct. 18, 2006;
  • Regulations under §§72 and 7702 defining cash surrender value;
  • Guidance on annuity contracts with a long-term care insurance feature under §§72 and 7702B;
  • Guidance under §§807 and 816 regarding the determination of life insurance reserves for life insurance and annuity contracts using principles-based methodologies, including stochastic reserves based on conditional tail expectations;
  • Guidance under §833 (expected to address de minimis MLR relief);
  • Guidance on exchanges under §1035 of annuities for long-term care insurance contracts; and
  • Guidance relating to captive insurance companies.

Implications

  • Election year politics and disagreements between President Obama and Congressional Republicans (notably on how to offset any corporate tax reductions) make domestic or international tax reform unlikely in the coming year.
  • President Obama’s FY2017 budget proposes several revenue-increase measures specific to insurance companies. However, it remains to be seen which, if any, of the measures will come into effect.
  • Multinational insurers and reinsurers should closely monitor legislative and regulatory developments pertaining to taxation of overseas profits. Both the PFIC regulation and the promised regulations on inversions could have a significant effect on some companies and their shareholders.
  • Life insurers should consider the effect of Life PBR tax issues on product development, financial modeling and compliance as they prepare for the Jan. 1, 2017, effective date.
  • Non-life insurers with non-traditional lines of business should consider the effect, if any, that the R.V.I. Guaranty Co. case and the two chief counsel advice memoranda on the nature of insurance risk and the presence of risk shifting may have on insurance qualification.
  • Captive insurers should be prepared for additional IRS scrutiny as a result of the Priority Guidance Plan item promising guidance, and the inclusion of §831(b) companies in the IRS “Dirty Dozen” list.