In its most recent report, “Tomorrow’s World; the Future of Aging in the U.K.,” the International Longevity Centre, a think tank focused on longevity, population and aging, painted a gloomy picture. The report says:
That the social care system is crumbling, and social class will heavily affect the life experience of the aged.
That housing and planning are inadequate to meet the needs of an aging population.
That individuals are underestimating their life expectancy and are likely to run out of money in old age.
That older people will suffer (and perhaps die) of different things: Where once the issue was heart and respiratory diseases, now it is likely to be illnesses of non-communication such as dementia.
It’s a worrying vision – one that perhaps is replicated in many other countries. The report recommends a bold 10-point action plan. It says:
1. Health must find a way to be more responsive and preventative.
2. Government must make progress in delivering a long-term settlement to pay for social care.
3. Savings levels for working age adults must increase.
4. The average age of exit from the workforce should rise.
5. The number and type of homes built should be increasingly appropriate for our aging society.
6. Government should make progress in facilitating greater risk sharing in accumulation of retirement income.
7. There is a need for a more informed older consumer.
8. Our aspirations for retirement must be about much more than us spending more hours watching television.
9. Businesses should better respond to aging.
10. The social contract needs to be strengthened between young and old.
Doesn’t the life and pension insurance industry have a part to play in almost all of this road map? Is there any reason why the industry should sit on the sidelines?
Here are five issues for the industry:
Insurers need to continue the shift from being reactive to being proactive – and must share the benefits with policyholders. Stakeholder buy-in through effective communication and enlightenment is critical – and it is increasingly becoming urgent.
Can insurers – on behalf of their policyholders, who are inevitably with them often for decades – influence issues related to home building and planning? I wonder how I would react if I really thought that my life and pension insurer was representing my interest to a point that it was lobbying about this type of stuff on my behalf?
The need for cooperation between the private and public sectors reinforces the need for empathy by both government and private insurers toward each other, perhaps with tacit agreement that they (we) are all in this together.
As the average age of workers increases, and some seek an alternative to watching TV or just trying to make ends meet, I wonder whether there is propensity for more workplace accidents. Isn’t there an employers liability/workers’ compensation angle to consider?
And, of course, how do we make life and pension insurance attractive to those starting their work life? Doesn’t the industry really need to make insurance both more relevant and fashionable?
Don’t insurers need to communicate better, engage differently, think more about the changing demographic footprint and generally step up the pace? All the innovation seems to be going into P & C insurance, but we can’t allow that to suck the energy from life and pension.
After all, having a “connected bedpan” as part of the Internet of Things might be useful for some – but don’t we need to be bolder than that in our thinking?
OK, there have been some amazingly stupid contracts written over the years. But among people who really ought to know what they’re doing, one from France probably does take the biscuit. It’s a hybrid life insurance/savings product that allows a policy holder to allocate capital among various funds. Nothing very strange or stupid there. However, here’s the catch:
It allows the policy holder to switch funds this Friday based on the prices of the funds last Friday. And that isn’t just stupid, that’s doolally. It may be the worst policy ever issued.
The basic background is that this was a reasonably popular sort of contract among French insurance companies back in the 1980s and ’90s. Take out a life insurance contract (usually, to get the tax privileges that go with such a contract) and use it as a savings vehicle. You can swap between bond, equity funds and so on as you go along. Given the speed of the post in those days, and the general rarity with which people fiddled with their investments, prices of the funds would be published on a Friday, and you had until the next one to switch around your investments based on those prices.
The world has changed since then: We can all look up asset prices in seconds now. And some of those insurance policy holders noticed. They started aggressively managing (as they have every right to do) the savings in their funds. You can see what’s coming here. If I can trade Thursday on last Friday’s prices, I’m likely to do pretty well, because I know what has happened to prices. And so it is with some of these players.
Does a 70% compound profit per annum sound like a juicy investment return to you? It does to me.
Of course, there has been all sorts of scrambling to try and get out of this. The company managing the contracts, Aviva, has been refusing to move funds, for example. And it should be said that most of the people with these contracts were, umm, gently maneuvered out of them over the years both from this company and others. You know the sort of thing: “Sirs, we want to make a slight change to the T&Cs of your contract; here is €100 for your trouble in signing this and returning it to us.” That change being that you’re no longer allowed to shift on the basis of 20/20 hindsight.
Max Herve-George was not tempted by such offers. So, he’s been making those alarmingly high profits, isn’t budging and has been up and down the courts system (winning pretty much all the while) to hold Aviva to that contract.
It gets better: Herve-George is, under the terms of the contract, allowed to add more funds. He’s made arrangements with a hedge fund or two (who wouldn’t like 70%-per-annum returns?) to inject perhaps a further €20 million…..and you can see where this is going, can’t you? At some point, he owns the company, then France and then the entire planet. FT Alphaville gleefully calculates for us when this is going to happen. Might not be in my lifetime. but it’s likely to be in Max’s.
Of course, this isn’t actually going to happen. As Herb Stein pointed out, if something cannot go on forever, then it won’t. But the interesting question is, well, what is going to stop it?
There are really only two possibilities. One is that France, or the French courts, shred contract law. And, believe me, over things like savings and life insurance, the French are very serious indeed about that law. Or, Max ends up owning Aviva, the company that sold him the contract.
As it happens, an old friend of mine is working as an adviser somewhere in this case. And we’ve been chewing the fat over which way it’s going to turn out. Our best bet is that Max ends up owning Aviva France.
The thinking is along these lines: First, France really does take extremely serious ly the law surrounding these sorts of investment, life insurance and pension policies.
We’re both reminded of the case of Jeanne Calment. France has a system of reverse mortgages. You, a nice little bourgeois lawyer, say, look around you and see some little old lady living in a nice apartment that she owns. Say, a 90-year-old little old la dy with no surviving descendants. So, she’d quite like to swap the apartment after her death for an income stream now. A reverse mortgage of sorts. So you do this, and she goes on to be the longest-living human being ever (OK, for completists, leaving out the Antediluvians). In 1965, at age 90 and with no heirs, Calment signed a deal to sell her apartment to lawyer André-François Raffray, on a contingency contract. Raffray, then aged 47 years, agreed to pay her a monthly sum of 2,500 francs until she died. Raffray ended up paying Calment the equivalent of more than $180,000, which was more than double the apartment’s value. After Raffray’s death from cancer at the age of 77, in 1995, his widow continued the payments until Calment’s death in 1997, at age 122.
French law is really very strict about such things. So, we just don’t think that the courts are going to shred the contract: Yo do so would be shredding that basic sanctity of contract law.
Yes, it’s true, you can’t write a contract making yourself a slave, and there are some other restrictions. But you are indeed allowed to write some amazingly stupid contracts, and you will be held to them.
Increasingly, we live in a world of now. Instantaneous access to digital real-time data and news has simply become a given. You may be surprised to know that the Federal Reserve has taken notice.
To this point, GDP data from the U.S. Bureau of Economic Analysis (BEA) has arrived after the fact. From the perspective of a financial market and investors that are always looking ahead, GDP data is “yesterday’s news.” Moreover, revisions to GDP can come to us months or even years later, essentially becoming an afterthought for decision making.
Recently, though, the Atlanta Federal Reserve has developed what it terms a GDPNow model. It essentially mimics the methodology used by the BEA to estimate inflation-adjusted, or real, growth in the U.S. economy. The GDPNow forecast is constructed by aggregating statistical model forecasts of the 13 components that compose the BEA’s GDP calculation.
Private forecasters of GDP, such as the Blue Chip Consensus, use similar approaches. Their forecasts are usually updated monthly or quarterly, but many are not publicly available, and many do not specifically forecast the components of GDP. The Atlanta Fed GDPNow model circumvents these shortcomings, forming a relatively precise estimate of what the BEA will announce for the previous quarter’s GDP. The model is still young, but it is beginning to be discovered more widely among the analytical community.
The reason we highlight this new tool is that we’ve incorporated it into our continuing, top-down review of the U.S. economy. More important to our “here and now” thinking is the current reading of this new model. As you can see in the next chart, the forecast by the Atlanta Fed for Q1 2015 U.S. real GDP growth is 0.1%, up from 0% at the end of March. As is also clear from the chart, as of the end of the March, Blue Chip economists were collectively predicting 1.7% growth — quite a difference.
Chart Source: Atlanta Federal Reserve
Why the drop in the Atlanta Fed real-time forecast for Q1 2015 real GDP? As we look at the underlying numbers in the model, we see recent weakness in personal consumption. Many had predicted an increase in consumption with lower gasoline prices, but that has not played out, at least not yet. Weakness in residential and non-residential construction has also played a part in the downward revision. Weather on the East Coast has not been kind to builders as of late, but that’s a seasonal issue easily overcome by sunshine. Importantly, slowing in U.S. exports and equipment orders meaningfully influenced the March drop in the Atlanta Fed model.
We know global currencies have been weak; the highlight over the last six months has been the euro. With a lower euro, European exports have actually picked up as of late, and the message is clear: The strong dollar is beginning to hurt U.S. exports. We do not see this changing soon. (As you know, the importance of relative global currency movements has been a highlight of our discussions over the past half year.) Finally, durable goods orders (orders for business equipment) have been soft as of late because of slowing in the domestic energy industry. Again, that is a trend that is not about to change in the quarters ahead given dampened global energy prices.
Like any model, the Atlanta Fed GDPNow model is an estimate. Whether Q1 U.S. real GDP comes in near zero growth remains to be seen, but the message is clear, there is downward pressure on U.S. economic growth. This pressure is set against a backdrop of already documented slowing in the non-U.S. global economy. Perhaps most germane to what lies ahead for investors in 2015 is what the U.S. Fed will do in terms of raising interest rates — or not, if indeed the slowing that the Atlanta Fed model predicts materializes.
We believe this slowing will become a real dilemma for the Fed this year and a potential issue for investors. The Fed has been backed into quite the proverbial corner. Whether the U.S. economy is slowing, the Fed is going to need to start raising interest rates for one very important reason.
It just so happens that the end of the second quarter of 2015 will mark an anniversary of sorts. It will be six years since the current economic expansion in the U.S. began. As of July, ours will be tied for the fourth-longest U.S. economic expansion on record (since the Fed began keeping official track in 1945). There have been 11 economic expansions over this period, so this is no minor feat.
The second quarter of this year will also mark the 6 1/2-year point for the U.S. economy operating under the Federal Reserve’s zero interest rate policy. You’ll remember that, during the darker days of late 2008 and early 2009, the Fed introduced 0% interest rates as an emergency monetary measure. That was deemed acceptable as crisis policy. Given that the FED has maintained that policy, it is essentially saying that the current economic cycle has not only been one of the lengthiest on record, but simultaneously is the longest U.S. economic crisis on record.
As we look ahead, the “crisis” in the eyes of the Fed will come to an end as it contemplates higher short-term interest rates.
Although it still remains to be seen what the Fed will decide and when, there is one very important consideration that must be entering their interest-rate-policy decision making at this point in the economic cycle — a consideration they will never speak of publicly. Let’s start with a look at the history of the federal funds rate (the shortest maturity interest rate the Fed directly controls). Alongside the historical rhythm of the funds rate are official U.S. recession periods in the shaded blue bars.
Chart Source: St. Louis Federal Reserve
There is one striking and completely consistent behavior: The Fed has lowered the federal funds rate in every recession since at least 1954. There are no exceptions. You can see the punchline coming, can’t you? Just how does one lower interest rates from zero to stimulate a potential slowdown in the economy?
Of course, in the European banking system and in the European bond market (government and corporate paper), we are witnessing negative yields. Capital is essentially so concerned over principal safety, it is willing to pay to be invested in a perceived safe balance sheet. Will we witness the same phenomenon in the U.S.? A move to negative interest rates in the U.S. would further punish pension funds, which are not only starved for return but are still underfunded despite fantastic returns for financial assets over the past five years — and Baby Boomers have been rapidly moving into their retirement/pension collection years.
Without venturing into negative-interest-rate territory, the Fed is essentially out of interest rate bullets in its monetary policy arsenal. It’s out of the very ammunition it has employed in each and every recession of the prior six decades. If the U.S. were to enter a recession, the Fed would be unable to act on the interest-rate front, as it has for generations.
Is the U.S. teetering on recession? Not as far as we can see, despite the Atlanta Fed GDPNow model’s reading of very close to 0% growth. We need to remember that U.S. GDP growth has been below average in the current cycle and that the cycle is not young. But the time to contemplate questions such as we are posing is well before a recessionary event. If the Fed is going to raise interest rates, it should be while the economy is still growing. Although the Fed will never speak of this publicly, it cannot be trapped at the zero bound (0% interest rates) when the next U.S. recession ultimately arrives.
The proverbial clock of history is ticking just a bit louder as we enter the second quarter of 2015. Is this, perhaps, the key reason the Fed will need to at least begin raising interest rates this year regardless of the near-term tone to the economy?
My eye was caught recently by a small classified ad in the Miami Herald for a care establishment for the elderly called The Door of Heaven. It’s in Fort Lauderdale, if you don’t believe me. The title is a little presumptious and maybe assumes that everyone staying there has pre-qualified for the next (better) life. Less of a care home, more of a departure lounge, with the background music probably falling somewhere between Andy Williams and Doris Day.
That same evening, one of the major life insurers ran an ad on TV that took a rather more sophisticated (and expensive) approach. The ad talked about the company’s reinvention of its pension products to meet the needs of a changing world. The ad was good brand positioning, even if it didn’t tell me exactly what the company had in mind. But at least they are thinking about the issues.
I wondered whether, at the end of the day, we all have the same requirements when we retire. Or will we eventually expect a degree of customization to meet our particular expectations? The recent unforeseen decision by the UK Government to allow policyholders to withdraw their savings as a lump sum in full or part when they retire would seem to provide some new flexibility.
In the UK, at least, policyholders can now choose to spend their pension savings on a new sports car, a cruise or even a Gibson Les Paul guitar while they are young enough to enjoy it, rather than save it up for future needs. Sounds like it’s worth thinking about, at least.
Ultimately, there are probably limits to the degree of pension options available to us, if not as individuals, then as market segments. Perhaps those customer segments will be based on decade of birth.
It seems to me that those born in the era of “flower power” who save their money for future care might have different expectations than do hellraisers of the Led Zeppelin era. Happiness for retired hippies may involve having flowers in now-greying hair. Fans of Zeppelin may demand their carers to provide them with denim-covered Zimmer frames. Dylan fans in their twilight moments as they pass on to the next world will expect to be serenaded by “Knocking on Heaven’s Door.” And for those whose faculties aren’t what they used to be, perhaps a touch of the Stones’ “I Can’t Get No Satisfaction”….
Personally I’m more of a Who man. When Roger Daltry sang “I hope I die before I get old” in 1965, I don’t suppose he was thinking about the complications of pension schemes. I’m not a fan of old age, but, as they say, it’s better than the alternative.
September’s National Labor Relations Board (NLRB) order requiring the buyer of a California nursing home to pay approximately $1.25 million in backpay and interest, rehire 50 employees and recognize the seller’s union reminds buyers of union-organized businesses of some of the significant risks of mishandling union-related obligations in merger and acquisition, bankruptcy and other corporate transactions under the National Labor Relations Act (NLRA) and other federal labor laws.
Buyer’s Obligations To Honor Seller’s Collective Bargaining Obligations
Under the National Labor Relations Act, new owners of a union facility that are “successors” of the seller generally must recognize and bargain with the existing union if “the bargaining unit remains unchanged and a majority of employees hired by the new employer were represented by a recently certified bargaining agent.” See National Labor Relations Board v. Burns Sec. Servs., 406 U.S. 272, 281 (1972).
In assembling its workforce, a successor employer also generally “may not refuse to hire the predecessor’s employees solely because they were represented by a union or to avoid having to recognize a union.” U.S. Marine Corp., 293 National Labor Relations Board 669, 670 (1989), enfd., 944 F.2d 1305 (7th Cir. 1991).
Nasaky, Inc. National Labor Relations Board Order
September’s National Labor Relations Board Order requires Nasaky, Inc., the buyer of the Yuba Skilled Nursing Center in Yuba City, California, to recognize and honor collective bargaining obligations that the seller Nazareth Enterprises owed before the sale and rehire and pay backpay and interest to make whole 50 of the seller’s former employees who the National Labor Relations Board determined Nasaky, Inc. wrongfully refused to hire when it took over the facility from the prior owner, Nazareth Enterprises.
Before Nasaky, Inc. bought the nursing home, many of the employees at the nursing home were represented by the Service Employees International Union, United Healthcare Workers West (Union). After Nasaky, Inc. agreed to buy the facility but before it took control of its operations, Nasaky, Inc. advertised in the media for new workers to staff the facility and told existing employees at the facility that they must reapply to have a chance of keeping their jobs under the new ownership.
When Nasaky, Inc. took operating control of the facility, facility operations continued as before with the same patients receiving the same services. The main difference was the workforce. The new staff included 90 employees in erstwhile bargaining unit positions, of which forty were former employees of the predecessor employer and fifty were newcomers. Nasaky, Inc. then took the position that the change in the workforce excused it from responsibility for recognizing or bargaining with the union or honoring the collective bargaining agreement between the union and seller Nazareth Enterprises.
When the union demanded that Nasaky, Inc. recognize the union and honor the union’s collective bargaining agreement with Nazareth Enterprises, Nasaky, Inc. refused. Instead, Nasaky, Inc. notified the union that it would not allow the union on its premises, would not honor the union’s collective bargaining agreement with the seller, and did not accept any of the predecessor’s terms and conditions of employment. The union then filed charges with the National Labor Relations Board, charging that Nazareth Enterprises had breached its obligations as a successor under the National Labor Relations Act.
After National Labor Relations Board Regional Director Joseph F. Frankl agreed and issued a complaint, California Administrative Law Judge Gerald Etchingham found all the allegations true based on a two-day hearing. He rejected all of Nasaky’s explanations for why it declined to hire most of those who had worked for the previous employer. See the Administrative Law Judge Decision. Since Nasaky, Inc did not file exceptions, the National Labor Relations Board ordered Nasaky, Inc. immediately to recognize and bargain with the union, hire the former employees and make them whole. The amount of backpay and interest is expected to approximate $1.25 million.
Managing Labor Exposures In Business Transactions
The National Labor Relations Board’s order against Nasaky, Inc. highlights some of the business and operational risks that buyers and sellers can face if labor-management relations are misperceived or mismanaged in connection with business transactions. Because the existence of collective bargaining agreements or other labor obligations can substantially affect the operational flexibility of a buyer, buyers need to investigate and carefully evaluate the potential existence and nature of their obligations as part of their due diligence strategy before the transaction. A well-considered understanding of whether the structure of the transaction is likely to result in the buyer being considered a successor for purposes of union organizing and collective bargaining obligations also is very important so that the buyer and seller can properly appreciate and deal with any resulting responsibilities.
Beyond the potential duty to recognize a seller’s collective bargaining obligations, buyers and sellers also should consider the potential consequences of the proposed transaction on severance, pension, health, layoff and recall and other rights and obligations that may arise. At minimum, the existence of these responsibilities and their attendant costs are likely to impact the course of the negotiations.
When a worksite is union-organized, for instance, additional obligations may arise in the handling of reductions in force or other transactions as a result of the union presence. For example, in addition to otherwise applicable responsibilities applicable to non-union affected transaction, the Worker Adjustment Retraining Act (WARN) and other plant-closing laws and/or collective bargaining agreements may impose special notification or other requirements before a reduction in force or other transaction related activities.
Similarly, the existence of collective bargaining agreements also may trigger obligations for one or both parties to engage in collective bargaining over contemplated changes in terms and conditions of employment, to provide severance, to accelerate or fund severance, benefits or other obligations, to provide continued health or other coverage, to honor seniority, recall or other rights or deal with a host of other special contractual obligations.
Where the collective bargaining arrangements of the seller currently or in the past have included obligations to contribute to a multiemployer, collectively-bargained pension or welfare plan, the buyer and seller also need to consider both the potential for withdrawal liability or other obligations and any opportunities to minimize these exposures in structuring the allocation of the arrangement. In this case, both parties need to recognize that differences exist between the federals for determining when successor liability results under the withdrawal liability rules than typically apply to other labor and employment law purposes.
While buyers and sellers often presume that the stock versus assets sale distinction that typically applies for many other legal purposes will apply, this can be an expensive mistake in the case of determining a buyer’s obligation to honor the seller’s collective bargaining obligations post deal. Likewise, buyers can be exposed to multiemployer successor liability from asset transactions, although it may be possible to mitigate or avoid such liabilities by incorporating appropriate representations in the sale documents or through other steps. Since these multiemployer withdrawal and contribution liabilities generally attach on a controlled group basis, both parties need to properly appreciate and address these concerns early in the transaction to mitigate their risks and properly value the transaction.
In light of these and other potential labor-related risks that may affect corporate and other business transactions, parties contemplating or participating in these transactions are urged to engage and consult with competent legal counsel with specific experience in such labor-management relations and multiemployer benefit plan matters early in the process.