Tag Archives: macro

Zenefits: Disrupting Lives, Not Just the Insurance Industry

I’m sure you are as tired of reading about Zenefits as I am of writing about it, but, as much as I may want to, it’s hard to turn away from a train wreck in progress.

Wendy Keneipp and I have spent more time reading, writing and talking about Zenefits than we care to admit. We have spent time analyzing its model, discussing how to compete against the company and breaking down its impact on the industry. But this past week has had us shaking our heads at its arrogance and recklessness. I would like to promise this will be my last article about Zenefits, but, well….

No doubt you have recently read about Zenefits’ allegedly selling insurance without proper licenses, and we have now learned the company “may have” (according to new CEO David Sacks) taken shortcuts on at least some of the licenses it did have. May have?! At least take real ownership of the failures, Mr. Sacks!

According to several online articles, the shortcut Zenefits “may have” taken involved writing a program called Macro, which made it appear as if individuals were completing the 52 hours of online training required by the state of California to obtain a license when, in fact, they weren’t. According to a BuzzFeed.com article, those wannabe brokers were then required to sign their name, under risk of perjury, certifying they had completed the required training when, in fact, they hadn’t.

The lack of conscience, level of arrogance and number of culpable “leaders” required to execute on something like this is absolutely mind-blowing. It was bad enough when we thought this was simply a misguided company, confused as to whether it was a tech company or an insurance broker, but that possibility pales in comparison with the malicious company it is proving to be.

Zenefits garnered untold positive press for disrupting an industry and for becoming the fastest-growing SaaS (software as a service) company in Silicon Valley history, but now we are learning just how ugly the reality was behind that thin veil of success.

More than disrupting an industry, Zenefits has built an organization that is disrupting people’s lives—and not in a positive way.

Here are the victims:

INVESTORS

I don’t have a lot of sympathy for this group because they provided the currency that fueled Zenefits’ reckless behavior; they are clearly part of the problem. It was investors who perpetuated a RIDICULOUS valuation and, in doing so, put untold pressure on the company to grow at a rate that would somehow validate the investors’ irrational exuberance over the Zenefits machine.

But, in addition to fueling the behavior, the investors are also victims; they invested in an illusion. They had every reason to believe their investment would be protected by legitimate (albeit misguided) business practices. It should have been reasonable for investors to assume the growth they were witnessing—and using to substantiate their investment—was being driven in a legal manner. It wasn’t.

We have already seen Fidelity cut the valuation of its investment in half. What will be the final financial toll on other investors once the dust settles? How much of investors’ collective $500,000,000 will be lost?

CLIENTS

Zenefits’ clients are potentially victimized in two ways. The first potential problem they could run into is having policies canceled as a result of having been written by non-licensed brokers. While I’m certain this is a possibility, I think it is unlikely the carriers would want to take that black eye. What is a more certain, yet difficult to measure, victimization is the fact that Zenefits’ clients did not have access to adequate advice and guidance in making policy decisions in the first place.

It would be one thing if Zenefits was simply in the online gaming business (as an example). If it was, the model would be to allow customers to download a free game and then make money by selling additional services/features. Essentially, if the game sucks, oh well. Unfortunately, Zenefits chose to play a much more serious game in a highly regulated industry.

Zenefits’ model infringes on two of the most critical aspects of client’s lives: their financial and medical well-being.

When Zenefits takes this responsibility as carelessly and recklessly as it has, it puts people’s financial lives at risk. Even worse, Zenefits could put people’s (literal) lives at risk. That may sound overly dramatic, but protecting the financial lives of its clients (employers and employees alike) and ensuring clients have coverage in place that provides for the right medical attention at time of need, is at the core of what this industry does, has always done and must continue to do for its clients.

For Zenefits, insurance is merely an afterthought, a means to an end, a way to finance the technology it touts as “free.” The company really should be ashamed for hijacking something so critical to people’s well-being and using it so carelessly.

ADVISERS

This may surprise you, but I also see the young advisers of Zenefits as victims. While I have been more than willing to share my criticism of their inexperience in the past, I believe these are mostly well-intentioned young professionals.

The Zenefits leadership team sold these young men and women on a vision that is simply proving to be an illusion. They were sold on the idea of disrupting an industry, being a part of a “unicorn” organization doing something that hasn’t been done before. Who wouldn’t buy into something like that?

Now, don’t get me wrong; while inexperienced in the business world, these young folks still had a personal responsibility to know right from wrong. They had to know they were cheating when they skirted the 52-hour requirement. And, they had to know the personal risk they were taking when they signed their name claiming to have completed training they hadn’t.

Bad on them for not taking a stand. But, even worse on the leadership team for putting them in that position.

I can hear the arguments against me on this point, and I don’t necessarily disagree. However, anytime someone in a position of authority uses their power to coerce and take advantage of a subordinate, there is a level of victimization.

NOW WHAT?

Of course, I don’t know how the rest of this story is going to play out, but I have my suspicions.

I don’t see how David Sacks can be allowed to remain as CEO. He has received great praise for the email he sent to the Zenefits employees, and he is being hailed as the leader who will correct all of what ails Zenefits. Maybe he will be, but I have serious doubts.

The positive media response to his succession scares me. Not that I think Parker Conrad should have remained CEO, but because the change seems to be providing Zenefits a free pass—if not in the eyes of regulators, at least in the public eye.

Outside our industry and Silicon Valley, most people have no idea about how this company has been operating. I guarantee you that Zenefits is about to take its marketing and sales machine to a much higher gear. And there are countless business owners oblivious to the potential danger of a purchase through Zenefits who are awaiting promises of easier HR, shiny user interface and no cost. These business owners need, and deserve, to be protected by the regulators put in place to provide such protection.

In my opinion, Sacks, as the chief operating officer, was as culpable for Zenefits’ failures as anyone. As the executive in charge of all things operational, how could he not have known about the lack of licenses or the fraudulent acts taking place under his nose? And, if he somehow didn’t know, that is simply another kind of failure on his part. How can he be allowed to remain?

I also don’t see how state insurance departments can allow Zenefits to earn another dollar off another insurance policy. The company has left too many victims in its wake, and I believe it is about to go on an even more aggressive hunt for even more “victims.” How can Zenefits be allowed to remain in the insurance business?

It’s time for Zenefits to transform its business model, get out of the insurance business and operate as the technology company it has always been; it’s time for the company to start putting people ahead of growth. After all, done properly, taking care of people first ensures growth will take care of itself. And, if you can’t take care of people and turn a profit, you don’t deserve to be in business.

I’m not holding my breath, however. As a self-described “hyper-growth addict,” Sacks has to manage his addiction with the demands and responsibilities of his new role—a role in which he will have to balance the demands of leading a company in a highly regulated industry (requiring attention to detail and ethical behavior above all else) against the demands of delivering an acceptable return for investors who have entrusted him with $500 million of their money. Early results are not very promising.

Stay tuned. I’m certain there’s more to come.

A version of this article was originally published on Crushing Mediocrity. The article appeared here at Q4intel.com.

How to Prevent IRS Issues for Captives

A regulator of captive insurance is responsible for many aspects of the business of captive insurance companies. He or she must coordinate the application process for obtaining a license, including the financial analysis and financial examination of each captive insurance company. The regulator is also a key marketing person in promoting the domicile as a favorable place to do business, thus fostering economic development for the state.

The captive regulator is not, however, a tax adviser. No statute and regulation in any domestic domicile requires an analysis of the potential tax status of the captives under consideration or under regulation. If the application complies with the stated statutory and regulatory requirements, the regulator must favorably consider the application and allow the new company to be licensed as an insurance company under state law.

That new insurance company may not, however, be considered an insurance company under federal tax law. The Internal Revenue Service recently listed captives as one of their annual “Dirty Dozen” tax scams, citing “esoteric or improbable risks for exorbitant premiums.” And at least seven captive managers (and therefore their clients) have been targeted for “promoter” audits, for allegedly promoting abusive tax transactions.

Yet all of these captives received a license from a regulator, mostly in the U.S. Obviously these regulators did not consider the pricing of the risks to be transferred to the captive, except perhaps at the macro level.

Should the domicile care about the potential tax status of licensed captives? David Provost, Vermont’s Deputy Commissioner of Captive Insurance, has said, “We do not license Section 831(b) captives; we license insurance companies.” While that statement is technically correct, this paper argues that, with respect to small captives, regulators should care about the tax implications of licenses in extreme cases, consistent, of course, with the laws and regulations under which it operates.

Small captives, i.e. those with annual premiums of no more than $1.2 million, can elect under section 831(b) of the Internal Revenue Code to have their insurance income exempt from federal taxation. This provision, combined with certain revenue rulings and case law, creates a strong tax and financial planning incentive to form such a captive insurance company.

This incentive can lead to an “over-pricing” of premiums being paid to the new captive, to maximize the tax benefits on offer. The premiums may be “over-priced” relative to market rates, even after being adjusted for the breadth of policy form, size and age of the insurance company and, in some cases, the uniqueness of the risk being insured by the captive. But “over-priced” in whose eyes?

Insurance regulators are usually more concerned with whether enough premium is being paid to a captive to meet its policy obligations. From that perspective, “too much” premium can never be a bad thing. Indeed, captive statutes and regulations generally use the standard of being “able to meet policy obligations” as the basis of evaluating captive applications or conducting financial reviews. And actuarial studies provided with captive applications generally conclude that “…the level of capitalization plus premiums will provide sufficient funds to cover expected underwriting results.”

These actuarial studies do not usually include a rate analysis, by risk, because none is required by captive statute or regulation.

Small “831(b)” captives, therefore, may easily satisfy the financial requirements set forth in captive statutes and regulations. If, however, the Internal Revenue Service finds on audit that the premiums paid to that captive are “unreasonable,” then the insured and the captive manager may face additional taxes and penalties, and the captive may be dissolved, to the loss of the domicile.

And, as has happened recently, the IRS may believe that a particular captive manager has consistently over-priced the risk being transferred to its captives and may initiate a “promoter” audit, covering all of those captives. Such an action could result in unfavorable publicity to the domiciles that approved those captive applications, regardless of the fact that the regulators were following their own rules and regulations to the letter.

It is that risk of broad bad publicity that should encourage regulators to temper the rush to license as many captives as possible. There should be some level of concern for the “reasonableness” of the premiums being paid to the captives.

One helpful step would be to change captive statutes or regulations to require that actuarial feasibility studies include a detailed rate analysis. Such an analysis would compare proposed premium rates with those of the marketplace and offer specific justifications for any large deviations from market. (Given the competition among jurisdictions for captive business, such a change would only be possible if every domicile acted together, eliminating the fear that a domicile would lose its competitive edge by acting alone.)

Absent such a change, however, regulators still have the power to stop applications that do not pass the “smell test.” Most captive statutes require each applicant to file evidence of the “overall soundness” of its plan of operation, which would logically include its proposed premiums. If the premiums seem unreasonably high for the risks being assumed, the plan of operation may not be “sound,” in that it might face adverse results upon an IRS audit.

Regulators are not actuaries and often have had little or no underwriting experience. They, therefore, could not and should not “nit-pick” a particular premium or coverage. But some applications may be so egregious on their face that even non-insurance people can legitimately question the efficacy of the captive’s business plan.

Insurance professionals know from both experience and nationally published studies that the cost of risk for most companies is less than 2% of revenue. “Cost of risk” includes losses not covered by traditional third-party insurance, which are generally the type of losses covered by “small” captive insurance companies.

If a captive regulator receives an application in which the “cost” of coverage by that captive is, say, 10% to 12% or more of the revenue of the insured, alarm bells should go off. That captive certainly would have plenty of assets to cover its policy obligations! But in the overall scheme of things, including the real world of taxation, that business plan is not likely “sound.”

At that point, the regulator has a choice of rejecting the applicant, requiring a change in the business plan/premiums or demanding additional support for the proposed plan. We are aware of one case in which the captive regulator required the applicant to provide a rate analysis from an independent actuary when he received an application whose premiums did not appear reasonable.

A rate analysis is not, of course, a guarantee that the IRS will find the premiums acceptable on audit. No one can expect guarantees, but a properly done rate analysis has a better chance of assuring all the parties that the captive has been properly formed as a real insurance company and not simply as a way to reduce the taxable income of the insured and its owners.

Captive insurance regulators have a big job, particularly as the pace of captive formations increases. To protect the domicile from appearing on the front page of the Wall Street Journal, the regulator must consider all aspects of the proposed captive’s business, including, in extreme cases, its vulnerability to adverse federal tax rulings.