OGC Op. No. 11-02-07
The Office of General Counsel issued the following opinion on February 8, 2011, representing the position of the New York State Insurance Department.
Re: Life Settlement Disclosures
Does New York Insurance Law
No. Insurance Law
The inquirer states that he is director of regulatory compliance and closing operations at ABC, Inc. (“ABC”), a life settlement provider, 1 and that he enters into boiler-plate agreements with life settlement brokers that govern the manner in which ABC and a life settlement broker will conduct business if ABC agrees to pursue a life settlement application submitted by a life settlement broker (the “agreement”). Each agreement sets forth definitions and rules of interpretation, terms of authority, life settlement broker undertakings, life settlement broker compensation, ABC undertakings, confidentiality clauses, certain representations and warranties, indemnification terms and conditions, the term and termination of the agreement, dispute resolution, and miscellaneous items. The agreement also includes ten exhibits, which set forth a producer submission agreement, a code of conduct, and a fee schedule, among other things.
The inquirer further states that nothing in the agreement requires ABC to accept a life settlement application submitted by a life settlement broker. Rather, the agreement states that “ABC is willing, under the terms and conditions of the Agreement, to consider purchasing Policies from Sellers who are represented by a Broker.” In addition, the inquirer states that ABC is not affiliated with any particular life settlement broker, and that any commission that a life settlement broker receives is solely related to the transaction that would result from the successful closing of a life settlement application that ABC has accepted. The inquirer also states that ABC will not conduct business with any broker that does not agree to these general arrangements.
As a result, the inquirer asks the Insurance Department (the “Department”) to confirm that Insurance Law
(a) The life settlement provider or life settlement broker shall provide the owner with a separate written document conspicuously displaying the information and disclosures required by this subsection. The separate document shall be signed by the owner and life settlement provider, no later than the date the life settlement contract is signed by all parties. At a minimum, the document shall state:
(13) any affiliations or contractual arrangements with any other life settlement provider, life settlement broker, life settlement intermediary or party financing the transaction;[….]
Thus, a life settlement provider or broker must disclose to a life insurance policy owner any affiliations or contractual arrangements with any other life settlement provider, life settlement broker, life settlement intermediary, or party financing the transaction. Section 7811(c)(3), with respect to the life settlement broker disclosure notice, contains a similar requirement.
In OGC Opinion 10-08-03 (Aug. 5, 2010), the Department opined that a life settlement provider must disclose any affiliations or contractual arrangements with any other life settlement provider, life settlement broker, life settlement intermediary, or party financing the transaction, even if the person or entity is not involved in the life settlement transaction. The Department reasoned that the disclosure requirements set forth in Insurance Law
The Department strongly supported transparency requirements in Article 78 of the Insurance Law when negotiating the bill that enacted Article 78. The Department believes that it is critical for policy owners to be aware of any affiliations or contractual arrangements with any other life settlement provider, life settlement broker, life settlement intermediary, or party financing the transaction that may have a financial interest in a particular life settlement transaction. However, after further consideration, the Department does not believe that the disclosure requirements set forth in
Therefore, in the Department’s view, ABC need not disclose to a policy owner that it enters into boiler-plate agreements with unaffiliated life settlement brokers that govern the manner in which ABC and a life settlement broker will conduct business if ABC agrees to pursue a life settlement application submitted by the life settlement broker, when the life settlement broker is not actually engaged in the life settlement transaction. To the extent that OGC Opinion 10-08-03 appears to state otherwise, it should no longer be followed. However, the Department cautions that a court may construe the language more broadly.
For further information, you may contact Assistant Deputy Superintendent and Counsel Paul A. Zuckerman at the New York City Office.
1 ABC currently has a life settlement provider licensing application pending with the Insurance Department. Pursuant to the transition provisions of Chapter 499 of the Laws of 2009 (the “Act”), entities that were doing business in New York legally before the Act took effect and have met specific requirements under the Act may continue to operate as life settlement providers pending the disposition of their license applications.