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THE COLLAPSE OF EXECUTIVE LIFE INSURANCE

CO. AND ITS IMPACT ON POLICYHOLDERS

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 10, 2002

Serial No. 107–142

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

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C O N T E N T S

Page

Hearing held on October 10, 2002 .......................................................................... 1

Statement of:

Corcoran, James P., former insurance commissioner, State of New York;

Steven J. Green, deputy insurance commissioner and chief counsel,

California Department of Insurance; and Harry Le Vine, special counsel to the commissioner, California Department of Insurance .................. 47

Jacobson, Dru Ann, Malibu, CA; and Robert Bozeman, Evansville, IN ...... 28

Letters, statements, etc., submitted for the record by:

Corcoran, James P., former insurance commissioner, State of New York,

prepared statement of ................................................................................... 50

Green, Steven J., deputy insurance commissioner and chief counsel, California Department of Insurance, prepared statement of ........................... 65

Jacobson, Dru Ann, Malibu, CA; and Robert Bozeman, Evansville, IN,

prepared statement of ................................................................................... 31

Le Vine, Harry, special counsel to the commissioner, California Department of Insurance, prepared statement of .................................................. 69

Lewis, Hon. Jerry, a Representative in Congress from the State of California, prepared statement of ...................................................................... 13

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York:

Los Angeles Times article ......................................................................... 6

Prepared statement of ............................................................................... 9

Ose, Hon. Doug, a Representative in Congress from the State of California:

Exhibit 2 ..................................................................................................... 91

Exhibit 5 ..................................................................................................... 101

Exhibit 6 ..................................................................................................... 128

Prepared statement of ............................................................................... 18

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 137

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THE COLLAPSE OF EXECUTIVE LIFE INSURANCE CO. AND ITS IMPACT ON POLICYHOLDERS

THURSDAY, OCTOBER 10, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 11 a.m., in room 2154,

Rayburn House Office Building, Hon. Dan Burton (chairman of the

committee) presiding.

Present: Representatives Burton, Ose, Waxman, Maloney, Norton, Tierney, and Watson.

Also present: Representative Lewis of California.

Staff present: Kevin Binger, staff director; Daniel R. Moll, deputy

staff director; James C. Wilson, chief counsel; David A. Kass, deputy chief counsel; Marc Chretien, senior counsel; Jennifer Hall,

counsel; Blain Rethmeier, communications director; Allyson

Blandford, assistant to the chief counsel; Robert A. Briggs, chief

clerk; Robin Butler, office manager; Joshua E. Gillespie, deputy

chief clerk; Nicholis Mutton, deputy communications director; Dan

Skopec, energy policy, natural resources and regulatory affairs staff

director; Phil Schiliro, minority staff director; Phil Barnett, minority chief counsel; Christopher Lu, minority deputy chief counsel;

Ellen Rayner, minority chief clerk; and Jean Gosa and Earley

Green, minority assistant clerks.

Mr. BURTON. Good morning. A quorum being present, the Committee on Government Reform will come to order.

I ask unanimous consent that all Members’ and witnesses’ written and opening statements be included in the record. Without objection, so ordered.

I ask unanimous consent that all written questions submitted to

witnesses and answers provided by witnesses after the conclusion

of this hearing be included in the record. Without objection, so ordered.

I ask unanimous consent that all articles, exhibits, and extraneous or tabular material referred to be included in the record.

Without objection, so ordered.

I ask unanimous consent that Congressman Lewis and Berman,

who are not members of the committee, be permitted to participate

in today’s hearing. Jerry Lewis, is he not going to come over, too?

I also would like to include Congressman Jerry Lewis of California,

who I believe will be showing up, who will be able to participate

as well. Without objection, so ordered.

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I want to welcome all of you and once again apologize for our tardiness in getting started, but that is the way things work around

here. There are two things you don’t want to ever watch being

made: laws or sausage. That was a joke, folks. [Laughter.]

We are here today to examine the circumstances surrounding the

purchase of Executive Life Insurance Co., the alleged fraud perpetrated by Credit Lyonnais, and the impact on policyholders.

Before we get started, I would like to thank my colleagues from

California and the California delegation; the ranking minority

member, Mr. Waxman; Mr. Ose, and Mr. Jerry Lewis for bringing

this issue to my attention. Mr. Ose was the most vocal about that,

and I appreciate that very much.

Over the past year the news has been filled with stories of corporate greed, stories of corporations going under and hanging

shareholders and employees out to dry. These stories have outraged the American public, and they have had a very adverse impact on the stock market.

Today we will hear another story of corporate greed. However,

this story is a lot different. This corporation went under over a decade ago, but the fraud only became public knowledge in 1998, and

the stakeholders are still trying to pick up the pieces. Today’s hearing is going to focus on how this happened and what should be

done to prevent this from ever happening again.

Before 1991, Executive Life was one of the country’s largest in- surers, with more than 300,000 policyholders and $10.5 billion in

assets. Executive Life had most of its investments in high-risk,

high-yield junk bonds. With the collapse of the junk bond market

in the early 1990’s, Executive Life became insolvent.

Afraid of a run on the company by policyholders, the Insurance

Commissioner seized Executive Life and put it up for auction. In

late 1991, the Insurance Commissioner accepted a bid for Executive

Life that would separate the insurance business from its portfolio

of junk bonds. This separation left the insurance business without

a strong asset base, forcing benefits to be severely reduced.

The Executive Life debacle resulted in losses to its policyholders.

State insurance guarantee funds made up part of the losses, but

coverage was capped. Of the 300,000 policyholders impacted by the

sale, approximately 5,000 reside in my home State of Indiana. The

taxpayers of Indiana have spent $26.8 million to cover the losses

by the policyholders. There is also an estimated $10.3 million to be

spent in Indiana in the future.

California has approximately 180,000 policyholders. In California

the State guarantees annuities up to $100,000 and life insurance

up to $300,000. Annuitants and recipients of structured settlements in excess of State guarantees suffered great economic losses,

and these are the people who can least afford it.

Of the 300,000 policies in effect at the time Executive Life was

sold, 5,600 were structured settlement annuities held by severely

disabled victims of accidents. For most of these victims the monthly

annuity payments are a primary source of their income. These annuities provide medical care and other necessities for their disabled

recipients.

After the sale of Executive Life, these payments were severely reduced. The life many victims were guaranteed by their structured

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settlement was suddenly jeopardized. This loss has only compounded the hardship they have already endured from the accidents that they suffered.

We will hear today from Dru Ann Jacobson. Mrs. Jacobson is testifying on behalf of her mother, Ann Dixon, an Executive Life policyholder. Unfortunately, Ann Dixon was too sick to come here before us today.

Ann Dixon’s story is similar to many recipients of an Executive

Life structured settlement annuity. Ann Dixon was in a terrible accident. She received a settlement to take care of her medical needs

and provide for her future. Ann Dixon did exactly what she was

supposed to do. She followed the advice of her attorneys. She put

that money into a highly rated safe annuity, which most of us probably would have done. When Ann Dixon bought that annuity, she was receiving $3,000

a month. After Credit Lyonnais bought Executive Life, Ann Dixon’s

monthly income was reduced to $1,800 a month, cut almost in half.

That is a 40 percent decrease in her income, and there aren’t many

people who could survive a 40 percent decrease in income and live

a decent life.

We will also hear today from another structured settlement recipient, Bob Bozeman. Mr. Bozeman worked for the Illinois Railroad. Like Ann Dixon, he was in an accident and received a settlement. Mr. Bozeman told his lawyers he wanted to put his settlement in a low-risk annuity. He wanted to make sure he had that

money for his future. Mr. Bozeman bought the highly rated Executive Life annuity. When he bought the annuity, he was receiving $2,000 a month.

After Credit Lyonnais bought the Executive Life Co., he received

$1,400 per month, which is a 30 percent decrease in income.

We have learned that these people did not need to suffer like

this. We have learned that an affiliate of Executive Life, Executive

Life of New York, went through similar problems. However, the

policyholders of Executive Life of New York were made whole.

So how can there be such a dramatic difference in outcome for

these two companies? Mr. James P. Corcoran, the former New York

Insurance Commissioner, is here to explain how he accomplished

this.

There is much more to this story. We will hear from Steve Green,

the Deputy Insurance Commissioner, and Harry LeVine, Special

Counsel to the Commissioner, about the California State Insurance

Commissioner’s pending lawsuit against Credit Lyonnais and others.

We will learn that, unbeknownst to the California Insurance

Commissioner and in violation of Federal and California law, Credit Lyonnais, a French government-owned bank, was the ultimate

purchaser of Executive Life. Through a series of front companies

and secret agreements, Credit Lyonnais was able to secretly own

the insurance company. This fraud came to light only after an

anonymous whistleblower brought it to the attention of the Insurance Commissioner in 1998.

This is the part that gets me. This fraud netted profits for Credit

Lyonnais of approximately $2.9 billion, almost $3 billion. This

fraud may be the largest ever committed in American history. That

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is definitely something to keep in mind when we hear about Ann

Dixon and Robert Bozeman, who can barely make ends meet.

Luckily for Ann Dixon and Bob Bozeman, the law is on their

side. The law requires that the perpetrator of a fraud must give up

all illegally gotten gains. We are here to shed some light on this

today.

Again, I want to thank the California delegation, in particular,

Mr. Ose, and I see Mr. Lewis is now with us, and we appreciate

your being here, Jerry, to shed light on this.

With that, I see Mr. Waxman is not here.

Incidentally, I have another meeting I have to go to, and Mr. Ose

has consented to chair this hearing when I have to leave, but I will

be back.

Ms. Maloney, do you have an opening statement.

Mrs. MALONEY. Yes. Thank you, Mr. Chairman. I look forward

to the testimony today from today’s witnesses.

I am angered to learn of the great hardships that have been

caused by the fraudulent actions of Credit Lyonnais, a French

bank. More than 5,000 people, many of whom are disabled, victims

of accidents or medical malpractice, who were the beneficiaries of

settlements managed by Executive Life Insurance Co., all of these

people were robbed of their settlement payments.

I know that two of our witnesses can speak personally of this

tragedy and the impact this corruption has had on their lives. I

thank you very much for coming and really putting a human face

on the tragedy.

As you have heard from the chairman, the issues surrounding

the collapse of Executive Life Insurance Co., and its sale to Credit

Lyonnais have been scrutinized for many years by the State of

California and now civil courts. Much of the testimony today will

focus on this history, but, as we are not the California State legislature, the major concern of mine is the role of the Federal Government in this case.

In 1999, a career assistant U.S. attorney in Los Angeles conducted an investigation of the role of the French bank in the sale.

This same career prosecutor requested that the Justice Department

approve indictments against the bank and key officials involved in

the fraudulent transactions. This request was made 2 years ago

and still awaits action.

In the current era of business scandals, after Enron, WorldCom,

Arthur Andersen, Global Crossing, Tyco, I would hope that the Justice Department would not drag its feet on a major corporate criminal case. Two years is too long to delay. These corporate scandals

have done serious, lasting damage to the reputations of American

business and especially the financial services industry, and have

destroyed and hurt many lives. Healing in our business community

and our financial markets will come, in part, when the American

people believe that the government will take timely action against

bad actors.

As a member of the Financial Services Committee and a Representative from the financial capital of the world, New York City,

I am especially concerned about the precedent that this case sets.

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I would ask permission from the Chair to place in the record an

article from The Los Angeles Times, ‘‘Little People Floundering

from Executive Life Losses’’ that spells out this.

Mr. OSE [assuming Chair]. Without objection.

[The information referred to follows:]

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Mrs. MALONEY. But according to these press accounts, the

French government has been aggressively lobbying the Justice Department and the State Department to stall action, and I repeat

these are allegations, but they were printed in the press, even

going as far as to have President Chirac raise this issue with President Bush and to hire a former first Bush administration Deputy

Attorney General to lobby administration political appointees.

Now this I find troubling. One of the things that we have done

in government is to put sunshine on what is happening, so as to

really let people know who is wooing who or who is trying to influence someone. I know that in the FCC and the SEC and other organizations there is a sign-in sheet when you go in to see the head

of the Department. Yet, the Justice Department does not have such

a sign-in sheet.

I would appeal to the Members on the other side of the aisle to

join in a bipartisan effort to have uniformity of sunshine in the departments in the government, particularly Justice, which is so important and has such an important impact on people’s lives. So I

intend to draft that legislation, and I hope the chairman will join

me and the members of the committee.

I sincerely hope that this political pressure is not the cause of

the delay. If a foreign government can successfully delay or stop

criminal proceedings by playing politics, it sets an extremely dangerous precedent for U.S. citizens with assets held by other multinational corporations. It sends a message to my constituents with

accounts in financial institutions that do business in the United

States that are owned by the French, German, or Swiss holding

companies that they should fear that the executives of these companies may be above the law. These are serious issues with potentially major economic consequences.

I look forward to the hearing, and I thank very much the witnesses for coming. I know it is very difficult always to testify about

your personal life and your personal situation, but I think that

your testimony is critical for us to understand exactly the impact

of this and how it happened. So I thank you for coming.

I yield back the balance of my time.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

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Mr. OSE. The committee welcomes the dean of the California Republican delegation, Mr. Lewis, for the purpose of a statement.

Mr. LEWIS OF CALIFORNIA. Thank you very much, Mr. Ose and

Mr. Burton, for allowing me to come and sit in a committee meeting on which I do not serve as a member of the committee.

I would like to also welcome Ms. Jacobson and thank her for

coming and providing testimony for this very serious challenge.

Mr. Chairman, I do have a formal statement I would like to submit for the record.

Mr. OSE. Without objection.

Mr. LEWIS OF CALIFORNIA. As I express my appreciation for your

allowing me to come, let me say, by way of background, the reason

for my coming involves the fact that I spent very much of my early

life in a field that was not connected with government. For 30

years I was an active life underwriter. Indeed, I feel very strongly

about this industry that is being so negatively impacted by companies that would operate in the fashion that Credit Lyonnais has

demonstrated a willingness to practice.

I have come today in no small part because many years ago,

while I was active in the life insurance business, I became acquainted with people who were very successfully practicing my

business. Most of those people spent their lives attempting to help

people build security in their own lives. The sale of life insurance

and annuities and pensions provides a foundation for our personal

security for families across the country like no place else in the

world. Indeed, whole life insurance contracts and pension contracts

are the original IRAs of our country that led to our using our tax

laws to broaden the base of people’s willingness to participate in

their own independence.

During that time, those early years, there were a few of my direct associates who did not reflect that same philosophy. It was a

couple of those very people who created Executive Life in the first

place. I watched with great interest as their business went forward.

I was always astonished in my field to find those who were willing to go out and talk with citizens who had purchased life insurance contracts in their efforts to build their own independence, and

in approaching those individuals they would take their existing

contracts and strip out the cash value or the money, thus, making

essentially that contract almost worthless, and use the money to

encourage them to purchase other contracts. ‘‘Stripping the policies’’ it was called. To say the least, many of us were astonished

at the impact that had on many a life.

The first testimony I ever made before a committee of any kind,

Mr. Chairman, was when I went to the State legislature in California to testify about our concern regarding those kinds of practitioners in an industry that is so important to our economy.

It does not surprise me at all that Executive Life was eventually

sold to a company in Europe that obviously had very similar levels

of value or no value in mind in terms of the reason for their purchase. To have those people who had put their faith in Executive

Life then in the hands of people who were willing to strip out the

values of their life, the disability contracts that Mrs. Jacobson will

talk about, for example, that literally have destroyed many a famiVerDate 11-MAY-2000 11:30 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\DOCS\83976.TXT HGOVREF1 PsN: HGOVREF1
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ly’s ability to provide for their own independence is totally unacceptable.

I did not come today just because I used to be in the life insurance business. Californians have communicated to many of our

Members about their concerns relative to the impact of the actions

of Credit Lyonnais on the lives of their families. There is little

doubt that they went about exercising themselves regarding these

contracts in order to literally cream off profit for their own purposes, and in the process not just destroy lives, but lay the foundation to destroy this very industry here at home.

It is very, very appropriate, Mr. Chairman, both of my chairmen

here, that you hold these hearings. I would hope you would help

us followup to find a way legislatively to impact such transactions

that lead to this kind of disaster. It is an unacceptable form of

practice. It casts a shadow on one of the finest industries that exists in the world, that is, our life and pension industry in this country. Indeed, whatever we can do by way of changing the law or otherwise to see that such organizations cannot operate within the domain of the United States I certainly am not only delighted, but

anxious to participate in and support.

So thank you very much for having me today, and I will leave

you to your fine work as I go back and work on our defense bill

on the floor. Thank you.

[The prepared statement of Hon. Jerry Lewis follows:]

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Mr. OSE. Thank you, Mr. Chairman. It is a pleasure to have you

here.

We have another Member on this side who will join us shortly.

I am going to proceed with my statement.

First, I want to thank Chairman Burton for holding this hearing.

It is interesting, since I got here, I have been involved in a number

of things, and you have never flinched from standing up for what

is right. I would like to thank you on this day for your leadership.

I know your stewardship here is ending, but I do want to compliment you on your leadership.

Mr. BURTON. I was just asking Mr. Lewis because I may be leaving, and maybe you can fill me in, it seems to me that there ought

to be some law against a company like Executive Life or the Insurance Department out there selling this company to a front company

without the knowledge of the policyholder. I doubt if the Insurance

Commissioner knew about that. I have no idea.

But it seems that Credit Lyonnais would be subject to some kind

of legal action beyond just liability for knowingly misleading the

California public and all those policyholders by thinking that some

other company is buying that company rather than them.

Mr. OSE. I think, Mr. Chairman, you will see in the course of the

hearing that both the State of California and the Federal Reserve

Board both had prohibitions on foreign companies acquiring domestic insurance companies. So that law was in place then. It has since

been pulled back a little bit, but I think you will see in the course

of the testimony today that that is the case.

Mr. BURTON. OK, thank you.

Mr. OSE. I am going to recognize my good friend from California,

Mr. Waxman, for the purpose of an opening statement.

[The prepared statement of Hon. Doug Ose follows:]

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Mr. WAXMAN. Thank you very much.

The collapse of Executive Life Insurance Co., in 1991 is an important issue that deserves careful consideration by this committee,

but I am confused by the last-minute timing of this hearing and

the absence of key witnesses. It is unclear what this hearing will

actually accomplish.

The collapse of Executive Life affected over 300,000 policyholders, many of whom lived in California. The hardest-hit policyholders were those people who relied on annuity payments for their

living expenses. When Executive Life collapsed, these policyholders,

many of whom were disabled, lost significant amounts of money.

For this reason, I wrote to Chairman Burton 6 months ago asking him to monitor this issue. According to press accounts, the Los

Angeles Office of the U.S. Attorney’s Office recommended in April

2001 that Credit Lyonnais be indicted. However, there were disturbing reports from The New York Times that the Justice Department might be negotiating a lenient settlement with the bank that

would provide little restitution to policyholders. Concerns were also

being raised about efforts by the French government to lobby President Bush and Secretary of State Powell, and the French bank had

retained a close ally of President Bush to lobby the Justice Department. My letter requested that the committee look into these

issues.

In addition, Representative Nancy Pelosi and Representative

Howard Berman wrote to Attorney General Ashcroft to express

their concerns about how the Justice Department was handling

this matter. Republican Members, including Mr. Ose and Representative Jerry Lewis, had made similar requests. How the Justice Department is proceeding in this matter and whether the DOJ

is being improperly influenced by political considerations are important issues falling squarely within the committee’s jurisdiction.

These issues need to be and can be examined in a bipartisan manner.

Unfortunately, I doubt whether that will happen today. Or at

least I am worried about it. The key witnesses who can help us understand why the Justice Department is not taking action are not

here. Plus, there is no indication that future hearings are planned

into the Justice Department’s failure to act.

Instead, the timing and focus of this hearing creates the impression that it is being held primarily to help a fellow named Gary

Mendoza, who is the Republican candidate running against John

Garamendi for Insurance Commissioner in California. Mr. Mendoza

is trying to make an issue out of the fact that Mr. Garamendi presided over the sale of Executive Life in 1991. That election is only

26 days from today.

Now here are some interesting facts: According to several eyewitnesses, Mr. Mendoza told a group of insurance executives 2

weeks ago, well before this hearing was ever publicly announced,

that a congressional committee would be investigating Mr.

Garamendi’s role in Executive Life. The Dow Jones Newswire is reporting today that the Republican staff is distributing to the media

an old 1994 article critical of Mr. Garamendi.

There is little basis for insinuations about Mr. Garamendi’s conduct. In the late 1980’s the junk bond market was crashing. This

25

drove Executive Life into insolvency. As Insurance Commissioner,

Mr. Garamendi directed that the junk bond portfolio held by Executive Life be sold as a means of protecting policyholders from further losses.

With 20/20 hindsight, it is easy to question this decision, since

the junk bond market rose in the 1990’s. But as millions of Americans at this moment are experiencing, there is nothing improper

about being wrong on the direction of financial markets. How many

people are wondering whether they should sell all their stocks and

worry that, if they do so, stocks may be rebounding in a short period of time, God willing?

Some believe the reason we are holding this hearing is because

Mr. Garamendi is in the middle of a political campaign. Since Mr.

Garamendi can’t be here, there could be an opportunity for political

potshots. I hope that won’t be the case. That would be unfair and

wrong.

Ironically, this hearing runs the danger of actually hurting the

policyholders of Executive Life. The California Insurance Commissioner is litigating a major civil fraud lawsuit against Credit Lyonnais right now. This lawsuit has a very real chance of recovering

some of the over $2 billion that was fraudulently taken away from

policyholders.

The majority has requested testimony from two lawyers in the

Insurance Commissioner’s office. They are here today, but have expressed their great reluctance to testify. These lawyers are legitimately concerned that their testimony might lock them into statements that Credit Lyonnais could use against them in court or that

they might be forced to provide a road map of their legal case. Nevertheless, the majority has insisted that these lawyers testify.

So at the end of the day, here is what we have: We have a hearing that is not addressing the Justice Department’s failure to prosecute Credit Lyonnais. We have a hearing that may be used for

partisan political purposes to affect an election 26 days from now,

and we have a hearing that could possibly damage the only chance

for policyholders to recover any money. This is not how I would

have approached this hearing. Nevertheless, if we are able to send

a unified message to the Justice Department, some good can be accomplished.

It is important for the Justice Department to understand the loss

being suffered by Mr. Bozeman, Ms. Jacobson, and other policyholders, and it is important for the Department to understand the

urgency of Federal action to address their wrongs. I hope this committee will stand united in making that point to the Justice Department, who we presume will be monitoring this hearing, even

though they are unwilling to testify.

Mr. BURTON. Would the gentleman yield to me just quickly?

Mr. WAXMAN. Certainly. I would be happy to yield.

Mr. BURTON. Mr. Waxman, my business before I came to Congress was insurance, all lines, including life insurance and pensions

and things like that. This issue I was not aware of until recently,

and I can assure you, and I give you my word, there is no political

implication, as far as I am concerned, in this hearing.

I will tell you also that I will be happy, after the elections are

over and after there are no more political problems to be dealt

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with, that we will have the Justice Department over here to find

out what they are doing, either in a public forum or a private

forum. I will be happy to have you or some of your staff with us

to find out what they are doing to get these funds back for these

policyholders who have been really raped in my opinion.

So I just wanted to clarify that because you and I have had a

pretty good working relationship, at least the last couple of years,

and I hate to see that jeopardized by this.

Mr. WAXMAN. Thank you for your statement.

Mr. OSE. I thank the gentleman.

We come here today for this hearing, and there are any number

of reasons why we should or shouldn’t have a hearing. I mean

there are Department of Justice contentions that they are in the

middle of a negotiation. There is an attorney general who says they

are in the middle of litigation. There are some who say we are in

the middle or too close to an election.

But the fact of the matter is we have a recommendation from a

deputy U.S. attorney which has had no action for a number of

months. We have over 300,000 policyholders who for years have

suffered losses. The time is now. It is as good a time as any. We

can wait if you want, and we can continue to have our constituents

and our fellow citizens hurt accordingly, but this is as good a time

as any, because some are still seeking justice.

We have got lost retirement funds. We have lost settlements

from injury judgments. We have other losses of investments that

have left many Americans floundering following the fall of Executive Life.

This injury was compounded when it was found that the efforts

to help the victims of this collapse instead left those policyholders

holding the bag while others took the ELIC, the Executive Life Insurance Co., assets and fled the country.

More than a decade later, some of these victims have learned to

live with their loss. Others still feel the pain from this loss every

day. Two representatives of those folks are here with us today, and

I look forward to their testimony and appreciate their willingness

to share with us their knowledge and to help us in asking the question: When will we have a day in court?

Now how did this happen? How did thousands of Americans who

thought their retirements and disability settlements were safe in

the hands of a government-regulated insurance industry entity end

up with cut benefits and no options? How did that happen?

In the 1980’s the Executive Life Insurance Co. was a thriving

business promising better returns and better benefits at a lower

cost. They thought they would be able to achieve this promise because they had invested heavily in a new growth bond market.

This market came to be known as the junk bond market, and many

of those who relied upon it under the conditions just described

ended up falling by the wayside in the early 1990’s.

When the parent company of Executive Life ultimately became

insolvent in 1991, the California Insurance Commissioner stepped

in, took control of it, and placed it into receivership. While the

Commissioner’s mission was to protect the policyholders and rehabilitate the company, instead the decision was made to take what

could be obtained in the short term by selling off the bond portfolio

27

separate from the rest of the package. This decision left the company so weakened as to require drastic cuts in benefits and led

some publications to write articles in 1994 that were, frankly, not

particularly flattering, accusing certain people of just having failed

in their duty.

There is much more to this case, however. In the process of following up the insolvency and seizure, the Commissioner asked for

bids to rehabilitate Executive Life for the purpose of taking care of

its policyholders, and the Commissioner received a number of bids.

One company asked to be allowed to cherrypick the best bonds in

exchange for a cash payment. This company was advised by a gentleman named Leon Black, a former protege ́ and advisor to Michael

Milken. Frankly, if anyone knew which bonds to pick and which

were true junk, this was the guy.

The Commissioner agreed to this deal, despite this unusual characteristic. Now why he chose this option over the bids of the other

companies that wanted the whole package is unclear. Frankly, it

begs a question: When everyone recommends one action and you

take another, why did you do it?

Even if this decision had proven to be the best, and there are

still more elements that this committee needs to review, unbeknownst to almost anyone at the time, the company that bought

the bonds from the Commissioner’s Office was, in fact, a front company controlled under a series of agreements by a French bank

known as Credit Lyonnais.

Credit Lyonnais was owned and controlled by the French government at the time of the transaction. It was illegal under both State

and Federal law for Credit Lyonnais to purchase a U.S. insurance

company. Fortunately, through documents provided by a former

employee, we found out about this.

There is still more. The bonds that Credit Lyonnais acquired

through these machinations performed well, as many market experts had predicted, and netted Credit Lyonnais a profit of over $2

billion. Now this past spring we read press accounts and hear stories here in Congress, and my good friend on my right, Mr. Waxman, and Mr. Berman and Ms. Pelosi, and others, and my good

friend, Mr. Lewis, myself, and others heard that there was a proposed settlement coming down the pike in the neighborhood of

$100 million, whereby Credit Lyonnais would be excused from any

criminal penalty and allowed to retain their banking privileges

here in the United States.

There are also accounts that the offer is now up to $500 million.

Now $500 million, or $100 million or $500 million against $2 billion, that sounds like a pretty good deal for the people who perpetrated this scam, but, frankly, it is not a good deal for the policyholders.

Now the law says that when a fraud occurs, all the gains obtained through the fraud, whether subsequently legal or not, must

be returned. On that basis, the State of California is currently

seeking $6 billion in damages from the entity involved.

Does the involvement of the French government as owners of

Credit Lyonnais complicate the matter? Well, you can be your own

judge, but, frankly, anyone who commits fraud must be held accountable, and it doesn’t matter whether it is a French government

28

or a U.S. Senator or a U.S. Member of Congress or a local banker.

If the French were responsible for deceiving the American people,

leaving the policyholders in the lurch, then they need to own up

to the fact and take responsibility for their actions. It is appalling

that we are seeing people work to delay this process and to avoid

reaching a fair settlement with the victims for this act.

I wish Mr. Burton was still here; I would share with him that

California has not sat back and ignored these allegations. The current Insurance Commissioner and his staff have been advocates for

more than 180,000 policyholders in California and more than

300,000 across the country who were victims of the collapse of Executive Life.

As I said earlier, the U.S. Attorney’s Office in California has

been involved in this investigation, particularly a gentleman

named Jeff Isaacs, who, by many accounts wants to bring this matter to trial.

As Mr. Waxman cited, there have been a number of letters to the

U.S. Attorney General, to the U.S. attorney in Los Angeles, and to

key leaders in Congress, including Mr. Burton, urging them to act

on this case now. The chairman of this committee has responded,

and for that we are appreciative.

Now we have invited a number of people here today, and some

have declined our invitation, including the Department of Justice.

That is very disappointing. As Mr. Waxman suggests, it would be

nice to have the people here responding affirmatively to our invitations, so we can get to the bottom of this in this hearing instead

of having a series of hearings. That would be helpful. However, if

we have to have a series of hearings, we will do so.

Those who suffered and are still suffering today, two of whom

are with us right now, deserve to hear what their government is

doing. Why is the Department of Justice not responding to these

pleas? When will the people who suffered through this collapse of

Executive Life get their day in court?

With that, I am going to stop.

Now, as we do in this committee every time, we swear all of our

witnesses in. So we are going to put you under oath. If you would

please rise and raise your right hand?

[Witnesses sworn.]

Mr. OSE. Let the record show that the witnesses answered in the

affirmative.

Mrs. Jacobson, you are recognized for an opening statement.

STATEMENTS OF DRU ANN JACOBSON, MALIBU, CA; AND

ROBERT BOZEMAN, EVANSVILLE, IN

Ms. JACOBSON. Thank you. I am going to read this because I am

nervous. I have never done this before.

My name is Dru Ann Jacobson. I am here to represent my mother, Ann Dixon, and my sister, Darian Andes Merrick, who were policyholders with Executive Life Insurance Co.

My primary reason for being here today is to put to rest

misstatements made by Credit Lyonnais representatives that Executive Life Insurance policyholders did not suffer any losses. Equally misleading is former California Insurance Commissioner John

Garamendi’s statements that 97 percent of the policyholders were

29

made whole. When my mother and I and others met with California Attorney General Bill Lockyer earlier this year, he confirmed

to us that investigations showed that the real losses in benefits to

policyholders were more than $4.5 billion.

Let me briefly tell you how my family became involved with Executive Life and how our lives drastically changed. My mother is

in a wheelchair and has been since she was in a 1979 auto accident

for which the annuities were granted. My mother and sister were

driving home in the Santa Monica mountains when they were hit

head-on by an oncoming car. My mother tried to turn her car into

the hillside as best she could to protect my sister, so she got the

brunt of the impact.

The paramedics had to use the jaws of life to remove her and put

her in a pressure suit while she was still on the road. She had no

blood pressure and was considered dead for some seconds. She

heard them say, ‘‘We lost her.’’ Somehow she willed herself to live.

That night in the emergency room she had her right leg amputated below the knee while she was awake because they couldn’t

sedate her. She was in ICU for 3 months and in the hospital for

another year. She endured seven surgeries that year. Almost all

her bones in her lower body were broken, including her pelvis and

hip. Her main artery was severed in her other leg and all the tendons and muscles were cut. Her leg healed slowly and had to be

reset twice. She had a major head injury. She was literally scalped.

It goes on and on.

Needless to say, the pain she has endured for the last 23 years

is severe. She was a very beautiful woman before this, but her face

was completely altered. She had been a wonderful mother, active

in our schools and community. She had been a dancer, an athlete,

and a bathing suit model. Her whole life changed in moments. Our

whole family’s life changed. My father couldn’t take the fact that

he no longer had a beautiful wife and left after the accident, leaving her to pay a pile of bills.

My sister, Darian, was seriously injured also. She was in a coma

for 5 days with a massive head injury and broken bones. The doctors told me that she and my mother might not make it through

that first night. She was in the midst of a promising modeling career and was about to start on a tour on the pro beach volleyball

tour. Her future plans collapsed after the accident.

In time my mother and sister went to court and won a lawsuit.

Their lawyers told them that the best company to put their money

in was the AAA-rated Executive Life. Because my mother and sister would need ongoing care, a lifelong structured settlement annuity was thought to be the safest investment.

In 1991, without warning, we received a letter that Executive

Life was being dissolved. We were in shock. The letter said that the

payments would be cut, and the company was to be sold. It was

like reliving the pain of the accident again, a punch in the stomach

for my mother.

Her annuity payments were cut by approximately a third each

month. Also, future bulk payments that she was to receive were

cut. My mom has tried to hold onto our home for as long as we

could, but we finally had to give it up, the home we had lived in

30

for 33 years. Executive Life was in the hands of the Insurance

Commissioner for 31⁄2 years while we twisted in the wind.

I became her sole caregiver and have continued to care for her

for 23 years, while raising my own family. I need surgery soon for

a condition that I developed from lifting my mom all these years.

We can’t afford to hire someone to care for her for the 3-months

I will need to recover. First the accident, then the Executive Life

mess has made all our lives very difficult. It is a constant worry

that continues today.

Credit Lyonnais and Mr. Garamendi cannot tell the 160,000 life

insurance policyholders and 15,000 annuitants that they were

made whole, and you shouldn’t allow them to tell that to the Justice Department either. We learned that a recent Pennsylvania

high court decision stated that not one single Executive Life policyholder was made whole.

We ask you to use your powers to help 360,000 policyholders and

their families receive justice. At our meetings as policyholders

when this first happened, we were struck that so many of them

were of the generations that served their country in World War II

and Korea. They thought they were making safe, prudent plans to

protect their loved ones, and they trusted these companies to uphold our laws.

Concerning Credit Lyonnais, we will be shocked if a foreign government is allowed to plot and scheme to evade State law. It has

been explained to us that, as a result of the Foreign Sovereign Act,

when this French-owned bank lied to State officials and made false

and misleading statements in State court, vindication rests with

the Federal judicial system and the Justice Department.

We are alarmed that the Justice Department has not acted

against Credit Lyonnais since they learned of the side agreements

that the French signed that broke our laws. Please understand that

we believe that if there are no indictments against them, the only

proper action should be based on complete disgorgement of all profits and a penalty. Please understand how much money is involved

here. $100 million would represent only 1 percent of the policy

value of each policyholder. Our loss is enormous.

Finally, we regret that the Justice Department has not investigated former Insurance Commissioner John Garamendi’s role. To

begin with, why did Mr. Garamendi charge the policyholders millions of dollars for consulting fees of top investment bankers to set

a value on Executive Life’s junk bonds when he never disclosed any

of their findings? This enabled him to tell the court that he hadn’t

known the value of the bonds and to sell them to Credit Lyonnais

and Leon Black at fire sale prices. What ever happened to a report

that his own staff completed that set a value to the bonds but was

never made public? Mr. Garamendi’s actions beg for a thorough examination.

Executive Life is a scandal that hurt lots of people like my mother, my sister, and myself. There were 360,000 policyholders from

nearly every State. We have an opportunity for justice, even at this

late date. We need your help.

Thank you very much.

[The prepared statement of Ms. Jacobson follows:]

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Mr. OSE. Thank you, Mrs. Jacobson.

Mr. Bozeman.

Mr. BOZEMAN. Mr. Chairman, members of the committee, I

would like to thank you for finally getting a chance to complain to

somebody that might be able to do something about it. I have been

telling this story for years, mostly to people who really couldn’t

help.

My name is Bob Bozeman. I live in Evansville, Indiana. I am 63

years old. In 1962, I went to work for the L and N Railroad, part

of the CSX now; I don’t know what they call it. It was a pretty good

job, and I also had a union job. In addition to the railroad, I was

local chairman and represented brakemen and conductors. Some

crafts call it union steward, whatever you want to call it.

So during the years I was involved in several derailments. It is

almost like a fighter. I don’t know if it was one punch that got me

or it was that last one, but, anyway, the last injury I ended up with

three back surgeries. I was in the hospital all summer long, 87

days. When it was all over, their doctors, the company doctors, that

is, and my doctors both agreed that I couldn’t do this job anymore.

So they wouldn’t, I don’t think, in my opinion, be reasonable.

I had to hire an attorney and sue them. After 5 years of litigation

and a trial where we were awarded a nice award—of course, during

the appeal process that got reduced, not by the court but by my

own attorneys. I think they got a little scared unnecessarily. But,

anyway, we settled.

I could have taken the money up front, but I opted for the structured settlement because I am not smart enough to go out here in

this high finance world and do my own investing. I would have

probably have been broke in a couple of years. I have seen it happen.

So I told them, ‘‘Get me the most secure, safe-type product that

you can because I’m not some wealthy guy trying to supplement his

income. This is my income.’’

So it ended up I was supposed to receive $2,000 a month, and

things went along pretty well from 1985 to 1991. Then, all of a sudden, this thing happens to a company that was supposed to be riskfree and rated very highly and all of that, and I’m notified that I

will be receiving $1,300 a month instead of $2,000. Well, this went

on for a year or two, and then, finally, after the so-called restructuring of this company, they changed that to $1,455 a month.

I went to a lot of people with this problem. I talked to my law

firm, of course. I went back to them. They were supposedly friends

of mine, not just lawyer-client-type relationship; they were supposed to be friends of mine. I, with this union job, had thrown them

quite a bit of business. When some of the guys would get hurt, I

would recommend them. They were not able to help me.

I went to the AARP and talked to their legal staff. The same

thing, they sympathized but they were no help either. I went to

two international presidents of the union, Tom Dubose and Charlie

Little. I haven’t talked to Mr. Boyd yet, the new guy, but I don’t

think I will bother to do that.

Of course, I went back to the railroad. They flat refused. They

were not embarrassed to tell me that I had already signed a reVerDate 11-MAY-2000 11:30 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 C:\DOCS\83976.TXT HGOVREF1 PsN: HGOVREF1
37

lease, and that was my one and only shot I was going to get at

them.

I called and talked to former Congressman Frank McCloskey. I

think Frank really tried to help me, but he was unable to do so.

I have talked to his successor a couple of times, John Hostettler;

the same thing.

Somebody said, ‘‘Call John Dingell.’’ I did that and never got any

response from Mr. Dingell. I don’t know what happened, breakdown in communications or what.

I even talked to the White House, and I got a letter back that

says, ‘‘Sorry, but the Railroad Retirement Board doesn’t feel responsible.’’ Well, whoever this guy was that I was talking to apparently didn’t understand. My problem was not with the Railroad Retirement Board; it was with this insurance company, and he was

too dumb, I think, to realize what I was trying to explain to him.

So I forgot about that.

I’ve got reams of correspondence, as you might expect, from this

thing and years of anxiety and grief. My whole family has suffered,

not just me. Our lifestyle has been lowered to a great extent. We

have not been able to do many things that we were planning to do.

If we don’t get some relief, we never will be able to.

Now I’m sorry if I am coming across a little bit like I am bitter,

because I am bitter. I’m madder than hell. It is unfair, and it

seems like maybe this is the first opportunity somebody will listen

and do something about it, I hope.

Thank you.

Mr. OSE. Thank you, Mr. Bozeman.

I want to make sure the witnesses understand that Members on

both sides of the aisle welcome their participation today. We are

grateful for the time you have both taken to come to Washington

to testify.

We do have a number of questions. The way this proceeds is that

I will take 5 minutes, then Mr. Waxman will have 5 minutes. Then

we will come back over here, and it just goes back and forth like

so.

So now I am going to ask both of you a series of questions. If

you don’t know the answer, just say, ‘‘I don’t know.’’ It is not a

problem.

So, Mrs. Jacobson, when did you or your family buy your Executive Life annuity?

Ms. JACOBSON. Between 1986 and 1989. The lawsuit was over,

I think it settled in 1986, and within that time.

Mr. OSE. OK, so late eighties?

Ms. JACOBSON. Late eighties.

Mr. OSE. Mr. Bozeman, how about you?

Mr. BOZEMAN. I guess it was 1985. That is when the lawsuit was

finally settled, and it must have been right at the first of the year,

1985.

Mr. OSE. Now, Mrs. Jacobson, at the time you bought your annuity, do you recall the rating that was given to Executive Life? Was

it a highly rated?

Ms. JACOBSON. It was the highest-rated, four-star, triple-A by

Standard and Poors. I think those are the rating systems. It was

the highest-rated one because we asked our lawyers, ‘‘Look for the

38

best one,’’ when they suggested we do this structured. I was young

at the time, so I can’t remember all the—but I know it was the

highest-rated one at the time.

Mr. OSE. OK. Mr. Bozeman?

Mr. BOZEMAN. The same thing. Like I told you a while ago, I am

not familiar with the world of high finance, but something about

A-plus. Then, as it turns out, I find out later that’s not so hot. You

need really to have triple A-plus, and I don’t remember for sure

just how they were rated, but my attorneys and everybody involved

assured me this was a safe—— Mr. OSE. OK, and that as in the mid-eighties?

Mr. BOZEMAN. Sir?

Mr. OSE. That was in the mid-eighties in your case and the latter

part of the eighties in Ms. Jacobson’s case?

Ms. JACOBSON. The latter part of the eighties, yes.

Mr. BOZEMAN. That is right.

Mr. OSE. OK. Was there any discussion at the time you bought

these annuities that you are aware of having to do with any problems that might exist at Executive Life?

Ms. JACOBSON. No.

Mr. BOZEMAN. No. In fact, I find out later, through newspaper

articles and, like you say, there wasn’t much about it for a while,

but as it turns out, it looks like Executive Life was in trouble as

far back as 1983, and that is why I couldn’t understand why somebody didn’t know this.

Mr. OSE. Now after you found out about the collapse and sale of

the company, did you contact anyone at Executive Life, Ms.

Jacobson?

Ms. JACOBSON. Tried to. You couldn’t get a phone call through

at all. I mean, you just couldn’t touch—through our lawyers; you

just couldn’t get through to anybody. We just got letters. Then we

would call; they would say it is in conservation, and they would

make us call somewhere else. Then they would say, ‘‘No, call here.’’ You would just get little middlemen that couldn’t give you any answers.

Mr. OSE. Did you call the company?

Ms. JACOBSON. Yes.

Mr. OSE. Or did you call somebody else?

Ms. JACOBSON. Yes, but they cut the company number off immediately and gave you a special number to call, and that special

number always had some little person on it that didn’t know

any——

Mr. OSE. Do you recall who that, ‘‘little person’’ worked for?

Ms. JACOBSON. Oh, I don’t remember that. Oh, no, it was like a

secretary-type person type-thing. They would just say, ‘‘Office of

Conservation of Executive Life.’’

Mr. OSE. OK.

Ms. JACOBSON. The main numbers that we had on all our policies. Were totally non-functional after it dissolved. So you couldn’t

talk to anybody to find out personally what was going on.

Mr. OSE. Mr. Bozeman, what was your experience in that regard?

Mr. BOZEMAN. Yes, sir, I was able to get through, and I’ve got

some names at home of people that I had spoken with periodically

39

about the problem. They were sympathetic over the phone and everything, but there was something that really scared me. They

changed the policy number. I thought that is kind of unusual, but

what are you going to do? You accept this over the phone and hope

that the check keeps coming and let it go.

Mr. OSE. OK. Mrs. Jacobson, do you recall, the folks or the person that you might have spoken with, do you recall if they did anything other than say, well, a conservator is working on this or was

there any definitive report?

Ms. JACOBSON. No.

Mr. OSE. OK.

Ms. JACOBSON. It was roundabout. I was much younger at the

time, and my mom tried to take a lot of the calls at that point. So

I can’t really answer exactly what they said, but it was very hard

to find out information and to see if we were still going to get our

checks.

Mr. OSE. Now, Mr. Bozeman, you had the ability or you actually

got through on a couple of occasions?

Mr. BOZEMAN. Yes, and some of the problems that concerned me,

of course, was like my original contract stated that I was to receive

this check on or before the 9th of each month, and if it didn’t show

up—and I actually got a check in the mail. I didn’t have this direct

deposit or any of that. Maybe it wasn’t even available back then;

I don’t know.

But, anyway, when the check was late, I would get concerned,

and it was late several times. And I thought, well, you know, I

would get on the phone and I would call everybody. I would say,

‘‘Did they go completely under? I am not even going to get the

$1,300 now I guess.’’ Finally, it would show up, and they would always have some lame alibi, excuse, for why it was late. All it did

was irritate you even more, you know.

I am glad I didn’t live any closer to California than I did or I

might have got in my car and went over there personally, and then

I’d be in the damned jail, I guess. [Laughter.]

Ms. JACOBSON. I did drive there once because it was late. During

that first few years they were late all the time.

Mr. OSE. We are going to come back on these questions. My time

has expired.

Ms. JACOBSON. OK. Thank you very much.

Mr. OSE. I am going to recognize Mr. Waxman for 5 minutes.

Mr. WAXMAN. Thank you very much, Mr. Chairman.

I think what has happened to you is absolutely unconscionable.

You’ve got nothing but a runaround. You bought this insurance

with the expectation that it was going to pay. That is what you

bargained for. Then this whole business starts falling apart because they go and invest in junk bonds.

It is sort of like what you see happening now where these corporations have gone over the cliff because they went into these investments that didn’t make sense. But there they were actually

doing more obvious fraud of creating debts, of hiding them, and all

of that.

But, from your point of view, you really have not been treated

properly. Congresswoman Pelosi and Congressman Howard Berman and Representative Jerry Lewis, all of us have written asking

40

for this hearing to try to do something because we are worried

about the Justice Department.

This is now in the hands of the Justice Department. Have either

of you ever been contacted by the Justice Department?

Ms. JACOBSON. No.

Mr. BOZEMAN. No, sir.

Mr. WAXMAN. Have either of you ever been contacted by the

State Department?

Mr. BOZEMAN. No, sir.

Ms. JACOBSON. No.

Mr. WAXMAN. Well, we are hearing that the Justice Department

is under pressure, and they have hired a lobbyist who is very close

to the Bush administration and he is trying to get them to settle

this thing and not bring criminal indictments. The State Department is hearing from France, where the President of France is

standing up for his company. What we need is American government to stand up for you.

Ms. JACOBSON. Yes.

Mr. BOZEMAN. That just adds insult to injuries, too, sir, because

like this thing was transferred to a foreign—we’re foreign investors

now, I guess. It sounds important, but it had to be—given a choice,

most people wouldn’t invest in a foreign company. There’s too many

good companies right here. That’s another thing.

Mr. WAXMAN. Well, not only that, they weren’t being on the level

about it. They were hiding the fact that they were violating the law

by being a foreign investor in insurance when they weren’t, as I

understand it anyway, permitted to do that. So they created these

front groups.

Ms. JACOBSON. And we weren’t given much choice either.

Mr. WAXMAN. No.

Mr. BOZEMAN. No, no choice. No choice. You just get a letter.

Ms. JACOBSON. You just get a letter.

Mr. WAXMAN. Well, look, I want to tell you that I share your outrage. I can’t even begin to experience how you must feel. As far as

I am concerned, I am going to work with my colleagues on this

committee and in the House not to let the Justice Department let

this thing slide by and not to let others just figure it is over, because it shouldn’t be over.

We want justice to be done. If people have engaged in criminal

behavior, they ought to be prosecuted. If there is a civil case, as

we hope the California Insurance Commission is able to bring successfully, then they ought to be able to get money back for you. I

want to just express my feelings for you.

I have to leave and won’t be here for the other questions. Well,

we don’t have too many other Members here, but I think both of

my colleagues have further questions. On the House floor we are

debating the Iraq resolution, and I have to get over there before

that debate ends to get my statement in.

But thank you for the long trip you took to come from California,

a little bit shorter from Indiana.

Mr. BOZEMAN. Not too bad.

Mr. WAXMAN. But both of you for being here, I thank you so

much.

Mr. BOZEMAN. Could I ask a question before you leave?

41

Mr. WAXMAN. Sure.

Mr. BOZEMAN. I saw where, in the paper the other day on this

Enron thing, they were going to have to pay a fine to the Securities

and Exchange Commission. They don’t need the money. Why don’t

they give that money to the people who lost it, the investors? That

seems confusing to me.

Mr. WAXMAN. Well, it is confusing. I wrote to a number of people

involved in Enron and some of these other corporations that, as far

as I was concerned, these executives came out quite well, and they

claim they didn’t do anything wrong. But they don’t deserve walking away with hundreds of millions of dollars while their employees

and their investors have their financial security yanked out from

under them. I have just written to them and said there is a moral

obligation here to help those who were left with nothing. So far I

haven’t gotten a good response because nobody wants to give up

anything.

But if we do talk about higher standards we expect people to live

up to, certainly some of these corporate wrongdoers or corporate executives, even though they claim they didn’t do anything wrong,

some of whom are in the government, have an obligation to give

some of that money to those who have been treated so poorly.

Thank you very much. Thank you, Mr. Chairman.

Mr. OSE. I thank my friend.

Ms. Watson, for 5 minutes.

Ms. WATSON. Thank you, Mr. Chairman, and I would like to

thank our two witnesses for coming forth.

I served in the California legislature for 20 years. We had some

difficulty with insurance companies in California. That is the reason why I was there when we established the Commission on Insurance. Over the years we have had different Commissioners and

we have had some problems.

One of the things we were really stressing is that we should have

the insurance companies open up their actuarial portfolios, because

what they do is they make these investments, as you have mentioned, in junk bonds and abroad, foolish investments. And who are

the losers? So, accumulatively, they had to go out of business because they made bad investments, and you are the ones that are

suffering from it now.

As I understand, the conservator expects that from the liquidation that there will be money there to pay off the policyholders, but

not at the amount that you expected when you bought that policy.

I would hope that the Department of Justice here would look into

this issue nationally, and I would hope, with the falling stock market and with corporate corruption, as we are seeing played out

today, that the Justice Department will feel it is their obligation

to follow through and will contact you.

But just understand there are people like Mr. Waxman and other

Members, too, who feel this is a real issue. That is why you are

here. We are not going to let it go. We are going to sit on top of

it.

I am certainly going to be working with our new Insurance Commissioner in the State of California. As you know, we have introduced a lot of laws that oversee how the insurance corporations do

business in the State of California. We hope that we can take some

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of that policy and make it national policy. We are on your side, and

we are going to stay on this until you are treated fairly.

Thank you so much, Mr. Chairman.

Mr. OSE. I thank the gentlelady from California.

Ms. Jacobson, when you found out about the sale of Executive

Life, I think your testimony was you received a letter in the mail.

Ms. JACOBSON. Yes.

Mr. OSE. When you found out about the sale of Executive Life,

did you think your annuity payments would be reduced?

Ms. JACOBSON. I can’t quite remember what the wording was.

They said there was going to be some reductions, but didn’t know

what at the time, something like that. Then they wrote another letter back saying they are going to be reduced by, as my mom’s was,

about 30 percent. And then there was nothing we could do about

it. I mean, we couldn’t question it or anything. It was just—— Mr. OSE. Did you call at that point? Do you recall?

Ms. JACOBSON. We were calling constantly.

Mr. OSE. OK. To complain and otherwise about such a cut?

Ms. JACOBSON. Yes. Then when it was sold, we would call the

Aurora people constantly and never really talked to anybody.

Mr. OSE. But prior to the settlement of the estate, your calls to

the Insurance Commissioner and the like regarding the proposed

settlement—— Ms. JACOBSON. Excuse me? Repeat that? I’m sorry.

Mr. OSE. Did you know the terms of the proposed settlement?

Ms. JACOBSON. I just knew our money amount, looking at our letters that we had had from our—— Mr. OSE. OK. So you received a letter before the fact saying that

your monthly payment was going to be reduced by about 30 percent?

Ms. JACOBSON. Well, no—I wish I could—I can’t really answer

that totally because I was younger at the time. They just said it

was going to be cut in the beginning. They didn’t know what was

going to happen.

Mr. OSE. OK. Then you received a subsequent letter saying that

it was going to be reduced by this amount?

Ms. JACOBSON. Yes.

Mr. OSE. OK. So, presumably, I would think that would have

come after the deal had been struck.

Ms. JACOBSON. That was after the deal was struck. I guess that

was after the Aurora. I am not good at this part——

Mr. OSE. OK.

Ms. JACOBSON [continuing]. Knowing all the details. I am not

very good at this. I’m sorry.

Mr. OSE. All right.

Ms. JACOBSON. It was a shock. The whole thing was such a shock

at the time anyway.

Mr. OSE. And you did call and register your obvious——

Ms. JACOBSON. Oh, very many times, yes.

Mr. OSE [continuing]. Outrage that, ‘‘Why am I getting punished?’’ Ms. JACOBSON. We called Mr. Garamendi’s office. We called Executive Life. We called everybody possible at the time during the

transfer.

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Mr. OSE. OK. Mr. Bozeman, did you think your annuity payments were going to be reduced?

Mr. BOZEMAN. I was pretty sure they would be. Nobody said for

sure, but they were, and then there was some correspondence and

some conversations that led me to believe that maybe in time they

would get it back to where it belonged, but, of course, that never

happened and it’s not going to.

Mr. OSE. OK. Now, Mrs. Jacobson, is your annuity payment your

only source of income?

Ms. JACOBSON. My mother’s, yes.

Mr. OSE. Yes, OK. And, Mr. Bozeman, you testified earlier that

this was your sole source of income.

Mr. BOZEMAN. Well, I’ve got a pension from the railroad, but it

is greatly reduced because I quit early.

Mr. OSE. OK.

Mr. BOZEMAN. My wife is not even eligible for her part of that

yet. So when you take into account the reduction from both of

those, plus you lose some of your benefits like health insurance— I’m paying $500 a month health insurance. People are supposed to

get increases with the cost of living when they get old, not cuts,

but that’s what has happened.

Mr. OSE. Mrs. Jacobson, your mother’s annuity payment in the

early eighties was how much?

Ms. JACOBSON. When the settlement was made, after the court

it was—oh, dear—— Mr. OSE. What I am trying to do is figure out how much it was

before and after.

Ms. JACOBSON. I know. Those first years it was about the same. It was about $1,800, and then it was supposed to go, as far as the

lawyer, the deal, the settlement thing, it was supposed to go up another thousand about 2 years after it started. They were giving an

increase 11⁄2 to 2 years later. So we had just gotten that increase

to $3,000 when this all happened. Then it was cut. Now she is getting $1,900 a month rather than the $3,000.

Mr. OSE. So in the mid-eighties you were getting—— Ms. JACOBSON. When we first got it, when we first went with Ex- ecutive Life, it was $1,900. It was supposed to increase to $3,000

within a year because of something in the lawsuit, the way they

set the structure.

Mr. OSE. OK.

Ms. JACOBSON. But it had just increased to that $3,000 when it

fell apart.

Mr. OSE. And now you are receiving how much?

Ms. JACOBSON. We are back down to the $1,900 instead of what

she was supposed to be getting.

Mr. OSE. Mr. Bozeman, your original annuity was scheduled to

be what?

Mr. BOZEMAN. $2,000.

Mr. OSE. And then it fell to $1,300?

Mr. BOZEMAN. For about a year, and then they sold some more property or something, and they got it up to $1,455, and that’s

what it is now.

Mr. OSE. How long has it been at $1,455?

Mr. BOZEMAN. Oh, probably 5 or 6 years anyway.

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Mr. OSE. OK. So it is a fixed amount? There is no inflation adjustment?

Mr. BOZEMAN. They notified me that would be it; there would be

no more changes.

Mr. OSE. All right. Now, Mrs. Jacobson, when you went from $3,000 down to $1,900, I mean, that is a heck of a hit.

Ms. JACOBSON. Yes.

Mr. OSE. It is over 33 percent. How did that change your lifestyle?

Ms. JACOBSON. Well, like I said in my statement, we have been

trying for years to hang onto our house we grew up in. We refinanced. You know, you keep mortgaging and mortgaging to help

bring in some extra income, and we finally did it so far we couldn’t

do it anymore. So we had to sell it, and now my mom is living in

a mobile home. That was a big—that was our home. That was a

huge blow to her, and that just happened a couple of years ago. We

tried as long as we could to keep hanging on.

Even though it doesn’t sound like much, $1,000 a month means

a lot to us that was a lot. It helped with the mortgage and everything else. Now we are still struggling, and it is hard, especially

when you have been injured so badly.

And she is getting older now, and she needs more care, and I am

not physically doing well to do it as much as I always have. If we

have to bring somebody else in, we are really in trouble. I can’t

even get her in and out of the car anymore. It is getting really hard

on us because she can’t do any lifting herself. So we need to get

a van that I can roll her into, but insurance doesn’t pay for any

of that, and we just don’t have the money for that right now. So

it is getting much more difficult.

Mr. OSE. Mr. Bozeman, how about you? You went from $2,000 down to $1,300. You are back to $1,455. How did that affect your

lifestyle?

Mr. BOZEMAN. Well, it impacts you quite a bit. I mean, you drive

old, beat-up cars when you would like to trade. There’s a lot of

things around the house we wanted to do, remodeling, and this and

that and the other, and we put it all off. We haven’t been able to

do much of anything but just exist with the income we’ve got now.

I had a grandson, like I told you, that was living with me. I

wanted to do a lot of things for him that I wasn’t able to do. I

wanted to put him in college for one thing. I couldn’t do it.

So it’s changed our—lowered our lifestyle considerably.

Mr. OSE. I am going to ask you a hindsight question, and I apologize for doing this, but I need to get your input here. Now if you

had the opportunity, if you had just received your settlement,

would you buy an annuity again? How would you handle your future needs?

Ms. JACOBSON. I don’t know. That is hard to say. I don’t think

I would want to buy an annuity again or I don’t think my mother

would and try to manage it ourselves. I can’t really answer that for

her. But after going through this, I don’t think I would ever want

to be with an insurance company again.

Mr. OSE. Mr. Bozeman?

Mr. BOZEMAN. Hindsight, 20/20? Sure, if I knew then what I

know now—well, just last night on the news I heard a guy who reVerDate 11-MAY-2000 11:30 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\83976.TXT HGOVREF1 PsN: HGOVREF1
45

tired from Merrill Lynch and he was able to be honest for a change.

They asked him the same question: ‘‘What would you do if you had

some money and you wanted to invest it?’’ He said, ‘‘I’d put it in

a glass jar and bury it in the backyard.’’ The man said, ‘‘The reason

I specify glass jar is because somebody with a magnet couldn’t find

it.’’

I don’t know of anything that is safe, Mr. Ose. I would probably

take the lump sum and, hopefully, put it into something that would

have been safe and hope for the best. You know, you couldn’t live

off of it, but I sure wouldn’t have bought an annuity with Executive

Life or probably no other insurance company, because they tell you,

‘‘Well, this has never happened.’’ It happened once to a company

named Baldwin International, but those people ended up never losing a dime. Well, they did at Executive Life.

Mr. OSE. I have one final question. Those buzzers you heard

were for a vote. So we are going to take this final question. Then

we are going to recess.

Mrs. Jacobson, if we are able, either through the Department of

Justice or the attorney general’s action out in California to have a

financial recovery, what should the proceeds be used for?

Ms. JACOBSON. To pay back the people up to their 100 percent— they have lost so much—at least. It is not a compensation, but at

least go back to what their original policies were. I think they

should give a retroactive payment to make up for all these years

they have lost to struggling. It has been terrible.

It has really affected our whole family horridly because I couldn’t

go out and get a job because I had to help my mom. I need to be

with her 24 hours plus my children, and we are all struggling to

get by. I mean, we live in Malibu, but we live in a mobile home.

Our house we had before, our old ranchhouse that we lived in for

30 years had to be sold.

Mr. OSE. So there would be a catch-up portion of any such payment?

Ms. JACOBSON. I would think it would be nice to have a catchup portion to what they have taken from us.

Mr. OSE. All right.

Ms. JACOBSON. Plus, go back to our 100. I mean, I am not trying

to be greedy, but it would be nice to be able to buy a car—— Mr. OSE. I understand.

Ms. JACOBSON [continuing]. For my mom, you know, to lift in it,

to get something that we could feel like we could relax a little bit.

It has been on pins and needles for all these years. It would be nice

to be able to know you had something so you could just say, ‘‘Well,

now we can take a breath.’’

Mr. OSE. OK. Mr. Bozeman?

Mr. BOZEMAN. Basically, the same thing. I think they should reimburse us for what we have already lost and then put us back to

where we were originally. If there is any way possible to get some

punitive damages, they should do that as well for the 11 or 12

years we have already suffered.

You know, it is like putting a guy in jail sometime and find out

he is innocent. How do you pay him back? So, yes, I mean, that

is the way I feel about it. At least put us back the way we were.

Ms. JACOBSON. Yes.

46

Mr. OSE. OK. I want to repeat or reiterate that the members of

this committee are thankful and grateful that you both took the

time to come down and testify.

I will tell you that what generated this hearing, and what we are

going to talk about with the second panel, is far more technical in

terms of where we go from here, what is the Attorney General

doing; what is the Insurance Commissioner doing, etc.

I always think when you sit as a Member of Congress oftentimes

you get insulated; it is helpful to talk to real people about real life,

and I am grateful for you coming down here.

Mr. BOZEMAN. Well, the only sympathy and the only real help

that I’ve got all these years was from the National Structured Settlement Trade Association. They have been informative. They have

been knowledgeable, and they have reassured me and kept me

abreast of how things are going, and they still are. I talk with them

on a regular basis. If it wouldn’t have been for them, I guess I

would still be calling out there to California trying to talk to the

morons at Aurora and Executive Life.

Ms. JACOBSON. Which you can’t get through to anyway.

Mr. BOZEMAN. Well, yes, that’s right, usually you couldn’t get

through anyway.

Mr. OSE. All right. Well, thank you for coming.

Ms. JACOBSON. Thank you.

Mr. BOZEMAN. Thank you.

Mr. OSE. The committee is going to go in recess. I have to go over

and vote. We will be back at 12:40.

If we could, I would like to have the second panel, comprised of

Mr. James Corcoran, Mr. Steven Green, and Mr. Harry LeVine,

front and center when we get back.

[Recess.]

Mr. OSE. The committee will reconvene.

All right, as you heard in the first panel, we routinely swear in

our witnesses. So, gentlemen, if you would rise, please.

[Witnesses sworn.]

Let the record show the witnesses answered in the affirmative.

Please be seated.

Joining us on the second panel in order we have Mr. James P.

Corcoran, who is the former New York State Insurance Commissioner; we have Mr. Steven J. Green, who is the Deputy Insurance

Commissioner and Chief Counsel to the California Department of

Insurance, and we have Mr. Harry LeVine, who is Special Counsel

to the Commissioner at the California Department of Insurance.

As we did in the first panel, we are going from my left to my

right with the statements. Mr. Corcoran, you are recognized for 5

minutes. Would you please turn on your microphone there, though?

47

STATEMENTS OF JAMES P. CORCORAN, FORMER INSURANCE

COMMISSIONER, STATE OF NEW YORK; STEVEN J. GREEN,

DEPUTY INSURANCE COMMISSIONER AND CHIEF COUNSEL,

CALIFORNIA DEPARTMENT OF INSURANCE; AND HARRY LE

VINE, SPECIAL COUNSEL TO THE COMMISSIONER, CALIFORNIA DEPARTMENT OF INSURANCE

Mr. CORCORAN. Yes, thank you very much. I have already submitted to the committee a copy of the testimony that I gave in 1987

before Congress on this issue.

Maybe I can review quickly with the committee and with you

some of the history behind why New York State in 1987 we put a

cap on the ability of domestic license life insurance companies to

purchase junk bonds. The reasoning and rationale is contained in

great depth in the copy of the testimony which I have already provided to the committee, but let me sum it up quickly.

In 1985 the New York State Insurance Department began formulating a plan to place limitations on junk bond holdings. At that

time the issue was really brought to our attention because of the

structured settlement market, and we became aware of what was

occurring with Pacific Lumber Co., where the key concerns that I

had were, of course, and you will see in the testimony, some editorials by The New York Times. I was being urged by various individuals and also associations to make sure that companies that had

excessive amounts of junk bonds in their portfolio not be allowed

to do the structured settlement business and that was a serious

concern on my part.

We had had a medical malpractice crisis in New York State. One

of the solutions to that was creating a structured settlement market that would be safe for people to purchase them. So I had the

oversight ability to see what companies were licensed to issued

structured settlements, and that was one of the key issues in 1985

and 1986 that brought the junk bond market to my attention.

The second one, when I became aware of the Pacific Lumber situation, where we saw Drexel and other companies looking to acquire

companies and to leverage out of those companies and declare their

pension funds excessive or surplus funds. Basically, what was occurring was they were acquiring companies and then alleging there

was a surplus in the retirement funds. They were changing the

structure by terminating the pension plans—they did this in Pacific

Lumber, I am aware—and purchasing annuities. In this case they

were purchasing annuities from Executive Life.

Now Executive Life had a competitive advantage, obviously. They

were declaring 13 percent interest rates on these single-premium,

deferred annuities while the industry average was 9.9. So, obviously, if you are going to purchase a guaranteed GIC or a singlepremium, deferred annuity that is declaring 13 percent, you have

to lay out less money in order to assure the pensioner theoretically

of their funds.

So what I saw was a tremendous shift of responsibilities and

guarantees and the pension plan of a guarantee corporation going

to the State life guarantee funds and this behavior. So those two

issues, the structured settlement and what I saw going on in the

pension market, it really brought it to my attention.

48

I would like to note that in 1978 junk bond holdings in American insurers was very trivial. By 1989, they had about $70 billion in

junk bonds, the life insurance industry. That, in fact, would have

made up the entire equity of shareholders, stockholders’ equity, all

the life insurance companies today. So it was huge, growing rapidly.

In 1986, December 1986, I think we decided we were moving

more rapidly, and there was an NAIC meeting in Orlando which

became a focus point of that issue, my proposing to raise to put a

cap on junk bonds. At that point Mr. Milken showed up unannounced at the meeting. We had a long discussion about the issues

at a cocktail party actually.

In December 1986, when we first were proactive in it, we found

out the New York company, Executive Life, had about 57 percent

of their assets in junk bonds. By the time we had the public hearing in February 1987, that amount had gone up to 64 percent. We

had extensive public hearings in New York in February 24, 1987,

at which time I conducted a hearing, and Milt Ghoul, a very prestigious lawyer, represented Executive Life in New York.

We kept stressing with him we were not attacking junk bonds.

We were simply pointing out these were fiduciary funds and that

diversity was a key element. I had asked Mr. Ghoul—he had become an executor of many estates—would he put 64 percent of his

assets or the assets of any estate that he was managing in any one

aspect like any one investment, and he clearly would not, but, of

course, that wasn’t the issue.

We promulgated, after a couple more hearings and tremendous

lobbying effort by Drexel and Mr. Milken to stop the cap, and we

can discuss that at length, if you want to, Mr. Chairman, we issued

the regulation on June 24, 1987 which capped the ability of domestic life insurance companies in the State of New York at 20 percent. It is not that simplistic, but that is the simple way of looking

at it.

But, in addition, it required board directors of any domestic life

insurer that invested in junk bonds to adopt a written policy including quality and diversification standards with respect to its

junk bond investments. We put that in place. We put that in place

in 1987.

Simultaneously, the New York Executive Life was required to

come forward to the Department and present to us a plan of divestiture and diversity and bring the amount down from 64 to 20 percent. Of course, when the company went insolvent, when the parent company went insolvent, I believe it was taken over in April

1991, by that time that plan had been in effect the amount of junk

bonds was being reduced actively.

The only delay that occurred, there was a 10-day delay between

the seizure of the parent company in California and the New York

company. There was a run on the bank, quite extensive run of the

bank in that 10-day period in New York, but the company was able

to withstand that. Ultimately, the company was taken over by

MetLife and the policyholders in New York were made whole.

So it is a success story, but there is a lot more to the story in

the sense of the things we had to resist to put that cap. The market

pressures and the lobbying effort was huge in New York against

49

us putting that cap on junk bonds. Mr. Milken and Drexel I think

hired every lobbying firm in Albany to try to stop us from doing

it, so it was quite significant and quite public. I think all the commissioners were aware we were doing it, and we are proud of what

we did.

Mr. OSE. Mr. Corcoran, we might come back to that.

Mr. CORCORAN. Sure.

Mr. OSE. I appreciate your testimony.

Mr. CORCORAN. Thank you.

Mr. OSE. And we will submit your statement for the record.

[The prepared statement of Mr. Corcoran follows:]

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Mr. OSE. Mr. Green.

Mr. GREEN. Good afternoon, Mr. Ose. In response to your request, California Insurance Commissioner Harry Low has directed

that the California Department of Insurance cooperate with your

investigation of the demise of Executive Life and the fraud perpetrated upon the department by persons and entities who,

through that fraud, gained control of the assets and policies of the

company. As you are aware, and it has been discussed this morning, in 1999 the department filed suit seeking to have those persons and entities held responsible for their actions.

I am Steven Green, Deputy Insurance Commissioner and Chief

Counsel of the Department of Insurance. With me is Harry LeVine,

Special Counsel to California Insurance Commissioner Harry Low.

Mr. LeVine has a 13-year tenure with the department and for over

3 years has been primarily responsible for the in-house direction of

the department’s civil lawsuit. He is uniquely qualified to provide

this committee with the factual information to assist your investigation.

I must respectfully ask that in questioning Mr. LeVine or me the

committee consider two matters which are of great importance to

Commissioner Low, which have been discussed with the staffs of

the committee and your staff, and which we trust you can appreciate.

First, considering that the department is involved in litigation

over events which this committee is also investigating, we must endeavor to avoid comments, speculation, and the like, which could

conceivably prejudice the Commissioner’s position in that lawsuit.

Second, as has been mentioned earlier today, in a matter of

weeks California will again elect an Insurance Commissioner. The

Commissioner at the time of the events you are investigating, John

Garamendi, is the Democratic candidate for the office; Gary Mendoza is the Republican candidate. As two career California public

servants, we must avoid any appearance that we are criticizing or

favoring any candidate.

Finally, I have a personal thank you for you, Mr. Ose, in whose

district I live. As you learned this morning, another of your constituents is here, my son Samuel, a sophomore at the University

of California at Davis. Samuel, for some reason, is impressed that

I sit before a congressional committee. As I belong to the great universe of parents who can never impress their 19-year-old children,

I owe you and the committee a thank you.

[The prepared statement of Mr. Green follows:]

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Mr. OSE. Thank you, Mr. Green. As a parent myself, I am often

trying to find ways to get my children to raise their sights. So perhaps you might visit with Samuel about that, too.

Mr. LeVine, for 5 minutes.

Mr. LEVINE. Good afternoon, Congressman Ose. Thank you for

inviting me to speak today.

I guess I need to sort of reiterate something that Mr. Green has

just said, which is that with respect to the case I am not a witness

to the facts that occurred in 1991 and don’t have any personal

knowledge. So what I say today is simply my understanding of

what occurred and my views as a lawyer on the matter.

But I need to be particularly cautious in what we talk about be- cause it is, as has been said today, $1 billion case. I have heard

some numbers of $6 billion. With punitive damages, who knows?

But I need to be cautious because I can’t have things that I say

and my thoughts being used to cross examine our witnesses, those

people with actual knowledge, when their depositions are taken.

We have heard some overviews already about the case. So I may

be a bit redundant. I am going to try to keep it very short.

Basically, this is a case in which the Insurance Commissioner alleges that Altus Finance and Credit Lyonnais, both French government banks, intentionally concealed their ownership of the California insurance company that was set up to take the Executive Life

policies, that company being Aurora National Life Insurance Co.

They concealed their ownership by written agreements, in some

cases setting up fronts, and the fronts were their partners in the

bid.

In August 1991, Altus and a group that we call the MAAF group

or the MAAF syndicate submitted a bid to buy Executive Life, and

Altus was going to buy the junk bonds and the MAAF group was

going to set up a new insurance company. What the secret agreement showed was that Altus was going to be a true owner of the

insurance company.

It is our belief in doing this that they violated the Federal Bank

Holding Company Act, which at the time prohibited banks from

owning insurance companies, and they violated California Insurance Code Section 699.5, which has changed a little bit, but at the

time provided that a foreign government could not own a California

insurance company if its ownership or actually its financial control

of an insurance company would have a substantial or undue influence upon that company.

So I think getting the story a little bit out of order, but it is important to keep in mind some facts, one of which is that so far in

the development of this case the French don’t deny signing the contracts. There is no contention that the contracts weren’t effective

or they aren’t contracts. The second is there is no denial that the

contracts were not disclosed to the California Department of Insurance in the numerous filings that were made.

I think, like I say, there has been no testimony so far—that the

contracts do exactly what we say they do. They gave the French,

Altus Finance, the ownership of 67 percent of the company.

So, then, backtracking a bit, as you know, the Insurance Commissioner seized Executive Life on April 11, 1991. In May 1991, he

put out what can be called a request for proposals, letting people

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know that he was negotiating with Altus Finance for something

that would be called a definitive agreement, which would be a bid,

and that other people could then, once that bid was set, bid against

it. In a sense, the Altus bid would be a template for other bidders.

So on August 7 the definitive agreement with Altus and the

MAAF group was entered into. In the following months other bids

were received. On November 14, 1991, if I have the date memorized correctly, the Altus bid was accepted by the Commissioner.

Obviously, there are lots of interim steps there, but in the end we

know that the bid was accepted.

What was going on at the same time, or starting at that time,

was a process that the California Department of Insurance goes

through with anybody that wants to set up or own an insurance

company. Insurance is a highly regulated business in California,

and in order to own an insurance company or start one up, one has

to get to set up a company an organizational permit, a stock permit, and eventually has to file an application for the license, which

we call a Certificate of Authority.

The Department of Insurance requires of anybody in those circumstances that they submit financial information, information

about where they are going to get their money to capitalize the

company, about their own financial structure, their own organizational structure, who owns them, in some cases who owns the people that own them, and all the financial connections or corporate

connections between the new insurance company and the owners

and the other people that they identify as having relationships

with.

When we think or when we know that there is a foreign entity

that may be involved, we send out a questionnaire which we call

a 699.5 questionnaire. One of the questions to be answered in there

is, ‘‘Does any government entity direct, or have the power to direct,

the management or policies of your company or of any persons

owning, directly or indirectly, any shares or other interest in your

company by means of any contract?’’

Starting in 1991 and continuing, I would say, almost through the

closing of the transaction, which was on September 3, 1993, Altus,

MAAF, and Credit Lyonnais, for that matter, made numerous representations that they would have no ownership of the new company, Aurora.

The declaration, the 699.5 declaration, was affirmatively answered ‘‘no’’ by all the purported owners, by MAAF, and I could

name the other three or four, which we assert is a complete

misstatement. We received in—I just list the months—September,

October, November, December 1991; January, February, March

1992, April 1992, up until the organizational permit was issued in

May 1992, indicating the background of all the purported owners,

and nowhere in there, of course, do they indicate that Altus has entered into secret agreements.

What we know about the secret agreements, of course, is that

two secret agreements were entered into with MAAF and Altus on

August 6, 1991, and they state right in them: These will not be revealed to anyone. And a subsequent set of agreements was entered

into with MAAF on, I believe—oh, I have got the date written

somewhere—I think November 15, or thereabouts, in 1991.

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Similarly, there were arrangements with Omnium Geneve, one of

the other members of the MAAF group, and they had agreements

in November 1992 and later. Those agreements, of course, also

were not disclosed to the Department of Insurance in connection

with any of its filings.

Mr. OSE. Mr. LeVine, we are over here. So your testimony, I

have a copy of your statement right here, and I presume you are

running through it accordingly. I have actually read it. So how

about we submit it for the record, so we can get to questions?

Mr. LEVINE. That would be fine.

Mr. OSE. That is a great idea. Thank you. [Laughter.]

[The prepared statement of Mr. LeVine follows:]

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Mr. OSE. OK, now I am trying to make sure I understand the

process by which we got to the point where the benefits to the policyholders got a haircut. If you can keep that in mind as you entertain these questions, I would appreciate it.

Mr. Corcoran, you were Commissioner of Insurance until 1990 in

New York?

Mr. CORCORAN. Correct. I left February 1990.

Mr. OSE. OK. Now California in 1988 passed some sort of a referendum or initiative that made the Office of the Insurance Commissioner elective, and then we elected our first Insurance Commissioner in November 1990, and they were sworn in in January

1991.

Mr. CORCORAN. Right.

Mr. OSE. So your tenure actually predates us even having an—— Mr. CORCORAN. Elected Commissioner, yes.

Mr. OSE. Correct.

Mr. CORCORAN. Roxanne Gillespie was appointed Commissioner

at the time.

Mr. OSE. Up until the time—— Mr. CORCORAN. Right.

Mr. OSE [continuing]. When the elected Commissioner was appointed, we had an appointed Commissioner?

Mr. CORCORAN. Correct.

Mr. OSE. OK. I mean, I can tell from your testimony what the

answer to this question is, but you were familiar with the problem

of junk bonds in terms of how big of a percentage of a portfolio of

an investment company or an insurance company it comprised?

Mr. CORCORAN. Correct, and my concern was triggered by the

medical malpractice crisis that we had had in New York a few

years prior to that. We were compelling the use of structured settlements. I felt it was my obligation to make sure that any structured settlement purchased by anyone would be a high-quality

company, not a company that was backed up by junk bonds.

Then the next thing we got involved with was the pension situation. That really brought it to my attention in 1985.

Mr. OSE. So the medical malpractice issue that arose in New

York had to do with concerns on your part that there wouldn’t be

sufficient income to service the structured settlements that came

out of that litigation?

Mr. CORCORAN. One of our reforms to all legislation in New York,

we changed—there is a substantial tort for medical malpractice,

but one of the key things was really kind of imposing structured

settlements on these medical mal. awards to make sure that these

people did not ultimately become wards of the State. Based on that,

it was our obligation to make sure that anyone doing business in

the State of New York issue structured settlements of the highest

quality.

It was brought to my attention that this Executive Life Co. had

a large portfolio of junk bonds. That was our initial awareness.

Mr. OSE. So you were concerned about the quality of the bonds

underlying—— Mr. CORCORAN. Well, the lack of diversity in their portfolio.

Mr. OSE. So you moved to put a limitation, a 20 percent limitation, on the amount of junk bonds you could have in your portfolio?

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Mr. CORCORAN. For a domestic life insurance company, correct.

Mr. OSE. Now are the domestic life insurance companies the

same entities that were doing the medical malpractice structured

settlements?

Mr. CORCORAN. Correct.

Mr. OSE. OK.

Mr. CORCORAN. They have to be licensed. Some are licensed;

some are domestic, right.

Mr. OSE. So let me ask the question directly, and you can just

reiterate that: Why did you act to impose a limitation on the junk

bonds?

Mr. CORCORAN. Well, one, beyond the fact that we were concerned about the lack of diversity in their portfolio, that we were

concerned ultimately the company become insolvent. To us, the

particular company, of course, was in my view unfairly competing.

Executive Life in New York became, in my view, we call it a

‘‘Judas-co.’’ of the industry. They were promising 13 percent—— Mr. OSE. Versus the 9.9?

Mr. CORCORAN. The 9.9. Now the other companies, of course,

fully realized that that is what they were competing against. I always felt, as a regulator, a regulator’s key job is to make sure there

is a fair competitive environment. So I did have the support of

most of the domestic industry in New York when I did impose a

20 percent. Only a few companies opposed me. I think it was Presidential and Executive Life. We acted to make sure that the environment was fair.

Mr. OSE. Were you ever approached by Michael Milken or other

junk bond salesmen during your tenure?

Mr. CORCORAN. Well, we had several would-be appointments

with the chairman of Drexel who didn’t show up. He kept wanting

hearings or meetings, but the only meeting I had face to face with

Mr. Milken was a reception held in, I think it was, Orlando in December 1986, where he approached me at a cocktail party with two

bodyguards. They were not my bodyguards; they were his bodyguards.

And he came over and he said, ‘‘Hello, Jim.’’ And I asked him

who he was, because I had never met him. He then went on to—

he wanted to buy me dinner, and I told him that it was inappropriate to be buying me dinner in light of the fact that we had this

issue out there, and we had a long conversation. He was convinced

that if I had only fully understood this issue, I would have a great

future, and I was touched that he was worried about my future.

Mr. OSE. Who was the chairman of Drexel at the time he requested this——

Mr. CORCORAN. I believe it was Josephs at the time.

Mr. OSE. Do you remember the first name, for the record, of Mr.

Josephs?

Mr. CORCORAN. It was Lenny, Leonard Josephs? I might have it

here somewhere. I will dig it up for you, Mr. Chairman.

Upon my return to my office, Mr. Milken sent me a flashlight

and 1,000 shares of Drexel and a ‘‘happy Christmas.’’ He allegedly,

in my name, gave $15,000 to some charity, which, of course, I reported all of these things to the attorney general, because, as you

well know, it wouldn’t look good.

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So from then on, it was quite—every lobbyist was retained to— my good friends would call up and get permission to oppose me because they were giving them huge amounts of money to try to stop

this cap, and it didn’t work.

As a matter of fact, between the hearing we had and the issuing of the regulation, we fined Executive Life of New York $250,000

and required the parent company to put $155 million more cash

into the New York company. So at the end of the day, the New

York company was in pretty good shape.

Mr. OSE. So you had in New York a sister company, if you will,

to Executive Life of California?

Mr. CORCORAN. Right. So when the State, when the California

company was seized, New York was able to have its own separate

rehabilitation and liquidation sale.

Mr. OSE. Are you familiar with the insolvency that occurred at

Executive Life of California?

Mr. CORCORAN. Well, I am only familiar to the extent, one, I am

familiar with all the issues involved from reading it, but also about

I represented a group of GICs who were trying to get recovery from

both the Guarantee Fund and Executive Life subsequently, probably in 1992.

Mr. OSE. OK. Now given that, as the Commissioner in New York,

you identified some flaws, in your opinion, in terms of how Executive Life might have been operated. What procedures did you institute to protect the policyholders of New York? No. 1, you moved to

reduce the amount of junk bonds in the portfolio underlying the

structured settlements?

Mr. CORCORAN. Right.

Mr. OSE. Were there other steps that you took?

Mr. CORCORAN. Well, I would say, clearly, from 1986 to at least

my end of office they were on the radar screen, and we were making sure that dividends were not going from the subsidiary in New

York to the parent inappropriately. We were making sure that as

quickly as possible they had to file a plan with the Department

showing divestiture and diversification of their investment portfolios. So that was ongoing from 1987 on to my leaving office 3

years later.

Mr. OSE. Did you ever take any affirmative steps regarding the

structure of the assets and liabilities underlying the portfolio? In

other words, keeping the bonds with the liabilities?

Mr. CORCORAN. Sure. Well, the department, by actively looking

at it—I am sure California does the same thing when they monitor

a company. We were making them reduce their junk bond portfolio.

That was the most proactive thing we could do. Plus, we put the

responsibility on the board of directors.

Mr. OSE. In what way?

Mr. CORCORAN. Well, we told the board of directors, as I noted,

the regulation says—I may use the proper language, go back to my

notes for a second. ‘‘Require the board of directors of any domestic

life insurer that invests in junk bonds adopt a written policy including quality and diversification standards with respect to its

junk bond investments.’’ This way, if things went bad, the directors can’t say, ‘‘Gee, no one

told me. I was out in the men’s room when they voted on that,’’ or

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anything like that. I told the board members that if there is a

shortfall and this company goes down, we are going to be looking

to you. Fortunately for the policyholders of New York, there was

no need to do that because the company was able to pay its obligations.

Mr. OSE. Now you did require an additional capital investment

from the parent of $155 million?

Mr. CORCORAN. Correct.

Mr. OSE. Into the New York subsidiary? For what purpose was

that done?

Mr. CORCORAN. Keep it solvent, keep it liquid, keep it liquid.

Mr. OSE. So you had looked at the portfolio over time, and the

relative solvency or insolvency led you to that step?

Mr. CORCORAN. Correct. Of course, and we had some real concerns about their accounting at that time. We fined them based on

their accounting creativity.

Mr. OSE. In terms of valuing the bonds?

Mr. CORCORAN. Valuing their entire portfolio and their reinsurance.

Mr. OSE. And that $250,000 fine was——

Mr. CORCORAN. That was a straight-out fine.

Mr. OSE. That was punitive in nature for the purpose of sending

them a clear and unequivocal message that that was not going to

be tolerated?

Mr. CORCORAN. Correct.

Mr. OSE. All right. Now in the process of the collapse of the parent and the subsequent dealing with that portion of Executive Life

that existed in New York, what losses, if any, occurred to the New

York policyholders?

Mr. CORCORAN. Well, of course, I was no longer superintendent

when it occurred. Sal Curiale succeeded me as my first deputy. But

from my understanding, there were no losses and no long-term

agony for the policyholders. MetLife I think ultimately came in and

assumed the book, and I think for them it was lucrative, but the

policyholders were not damaged in any way.

Mr. OSE. So MetLife assumed both—they took both the bonds

and the accompanying liabilities?

Mr. CORCORAN. I believe they took the whole thing——

Mr. OSE. The whole thing?

Mr. CORCORAN [continuing]. But I might not be correct on the

exact because I wasn’t there. There was some minor Guarantee

Fund assessments for some products, but it was very minor.

Mr. OSE. Now your successor’s name for the record?

Mr. CORCORAN. Sal Curiale.

Mr. OSE. Could you spell it?

Mr. CORCORAN. C-U-R-I-A-L-E.

Mr. OSE. OK. Are you—I am sure you have been. I don’t know

if you were then, but you are now. Are you familiar with the rehabilitation plan for Executive Life of California?

Mr. CORCORAN. Only from recollection, from having represented

the GIC group. I read it, obviously, and gave opinions to that group

of clients, but it would be only recollection.

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Mr. OSE. Now I have a copy of the original memorandum soliciting the bids and the like, and I have been through it. I think I am

on my fourth read of it. So it is starting to sink in.

Mr. CORCORAN. Well, I was doing it for billable hours, so it was

no problem. [Laughter.]

Mr. OSE. There are a number of suggestions in this as to how

the Commissioner or the conservator chose to proceed. I would be

curious about just some feedback, and you will see it on the screen

here, the memorandum itself. I would be curious about your feedback. Was this particular approach that is laid out in this memorandum sound in your opinion?

Mr. CORCORAN. In all fairness to the California department and

my own opinion about what could occur in the future, what should

occur, this was new ground then. This was probably the most complicated, biggest insolvency, and there were many people, including

the NOLHGA, which is the National Organization of Life/Health

Guarantee Associations, making bids and discussions on this.

Mr. OSE. There were, in fact, eight bids, if I recall?

Mr. CORCORAN. There were eight bids, and I think NOLHGA

itself might have made a bid.

Mr. OSE. They did make a bid, yes.

Mr. CORCORAN. NOLHGA made a bid themselves.

Mr. GREEN. NOLHGA’s was one of the eight bids.

Mr. OSE. Correct.

Mr. CORCORAN. So, I mean, I am aware of that, aware of that situation, but I was not sitting in the driver’s seat. No one was telling

me what the real value of the bonds was and how it was shaky.

Don’t forget, I came with a predisposition of calling them junk

bonds. So I wouldn’t, you know——

Mr. OSE. Your dealing with the collapse in New York——

Mr. CORCORAN. Well, there wasn’t much of a collapse.

Mr. OSE. OK. For whatever reason, but the issue that you dealt

with——

Mr. CORCORAN. It is an issue I am proud of.

Mr. OSE. I understand that.

Mr. CORCORAN. So we didn’t get the collapse.

Mr. OSE. We will go through that, if you want, but the manner

in which you——

Mr. CORCORAN. I put up with a lot of aggravations so that thing

didn’t collapse, so I figured I would just point that out.

Mr. OSE. The manner in which you handled it in New York, if

I understand, you approached it on a bonds-in basis? In other

words, you left the bonds in the company and worked through it?

Mr. CORCORAN. Worked through it. There were liquidity problems.

Mr. OSE. Why did you choose a bonds-in versus a bonds-out approach?

Mr. CORCORAN. Well, I didn’t get to choose, but my successor got

to choose because there was enough liquidity. The domestic industries were cooperating. The Guarantee Fund in New York was cooperating because they saw the company was not in dire straits,

and, ultimately, I believe MetLife took it over, and it was not going

to be an issue of pulling out the bonds.

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Mr. OSE. In your opinion, do you have to take these things on

a case-by-case basis or is there kind of a template that you would

work with?

Mr. CORCORAN. Well, a template that I would suggest for the future—we can jump ahead and I will come back to this—is you can

look at every one of these major agonies, Confederation Life, Baldwin, Mutual Benefit, Executive Life, and once the rehabilitation

process is triggered, and this is what is very difficult for them, and

thank God it is not my job, all sorts of rights begin to vest. You’ve

got issues of, will somebody get a priority if you pay this one and

what share of assets?

I think the rehabilitation process in and of itself must be

changed. There is no reason to go through this agony because you

have these guarantee fund associations, who ultimately pay the

shortfall assessment.

There is no reason not to have a Federal FDIC guarantee association with standing to come into these companies and say, ‘‘OK,

we’re ultimately going to pay the assessment anyway. We are now

going to assume running it.’’ To make sure it is not anticompetitive, the Commissioner would

oversee it and start running these companies now, because, as in

this situation, ultimately, the bonds, as no one knew at the time,

proved to be more valuable than people thought. Surely, the policyholders should not have gone through this suffering. We all agree

with that today, but that, of course, is 20/20 hindsight.

But the system needs to be changed because I was always very

reluctant—and while I was in there, I was the longest-tenured su- perintendent except for the first one in 1865 who was paid $10,000

a year for 10 years, which was a very good salary in 1865.

I was very reluctant to take companies down. I made sure I went

in quickly enough to them to stop writing certain lines of business.

We took down 23, but they were small property casualty companies

that were just badly run. But I knew the minute you triggered a

rehabilitation process, you landed up in a State court. Not like your

Federal bankruptcy court, where you have judges who are trained

in the area, who can look at it and understand the rights—because

I have testified as an expert in the Federal bankruptcy court. You

have all these rights that vest. All of a sudden, the carcass is being

pulled apart by investment bankers, lawyers, accountants, actuaries, and it really is a feeding frenzy.

It is something, unfortunately, the commissioners don’t have the

standing to resist or can they legally. So whatever plan was put

forward here, I am sure in its time and moment it seemed like a

good idea, but the whole system needs to be changed.

So that is why I was always reluctant. In New York we had some

troubled companies which will go unnamed, but we sat them down

and we had the ability to say, ‘‘You can’t write this line. We’re not

going to go public,’’ without putting them into rehabilitation.

I had a standard speech I made, and people used to kid me about

it: the will to regulate, the will to act. That is what you really needed.

Now I think when John Garamendi took over, by that time my

own opinion was Executive Life was long gone because the junk

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ated, and there is no recourse back. That was one of our concerns

back in 1987.

Mr. OSE. Do you know of any—let me rephrase this. Your successor had to deal with the Executive Life of New York issue.

Mr. CORCORAN. Right.

Mr. OSE. Are you aware of any contacts that he may have had

in terms of the rehabilitation plan itself relative to, say, MetLife’s

ultimate purchase or any other bidders?

Mr. CORCORAN. Oh, sure, I am not privy to the confidential, but

I am aware of the discussions when they were discussing with him

to see what went on.

Mr. OSE. One of the things that I find most curious and I am trying to understand is the provision that I am aware of at least

anecdotally relative to the sale of these companies. There is something called a put-back provision where, if someone comes in and

buys the portfolio of an insurance company, all the bonds and what

have you, apparently, there are provisions in some of these agreements whereby the buyer has a certain period of time after the

close to put unsatisfactory bonds back to the seller. Are you familiar with this?

Mr. CORCORAN. No, I have never dealt with one of those.

Mr. OSE. You understand the concept?

Mr. CORCORAN. I understand the concept. I understand the concept in a private sector way, but not as a regulator.

Mr. OSE. You have never done that? I mean, you never did that

during your tenure?

Mr. CORCORAN. No. We never had it in my tenure.

Mr. OSE. Why wouldn’t you do that? It seems to me like to facilitate a sale—— Mr. CORCORAN. As a regulator?

Mr. OSE. Yes.

Mr. CORCORAN. The issue never came as superintendent. In fact,

we never had that situation. Why would I not do that? Well, my

own theory as a regulator was people would come forward with investment proposals and all sorts of wonderful things, and if I didn’t

understand them, I said, ‘‘Look, we’re not doing it.’’ If it is too complicated, we are not in the business of risk assumption here; we are

in the business of getting things done in the open light of day, and

whatever is simple, I am keeping it simple.

Mr. OSE. I have to admit I am not Michael Milken, or whatever.

I have a passing understanding of the put-back concept. If I came

to New York and I had approached you and said I would like to

buy the seized company known as Executive Life of New York but

I would like a period of time after close to go through the bond

portfolio and basically cull out that which I really don’t want and

put them back to you, what would your reaction have been?

Mr. CORCORAN. Well, I am not trying to be argumentative here,

but if I were in a multicomplex situation like that, I would probably have to go get experts to tell me that that is something you

do, because I am a lawyer by training, and it sounds like something that the Wall Street brokers would know more about. I would

have to find out if that is fair and normal, and how does that benefit the policyholders. So they would have to give me their analysis.

Is this the only way I can get the bonds sold? Maybe it is true.

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Maybe it isn’t. But I think you would have to go through that process.

My first reaction to it would be, well, you’ve got to convince me

that that is the best thing for the policyholders, and maybe they

could. I don’t really——

Mr. OSE. It seems to me that the ability to put back bonds from

the portfolio that you don’t want is almost a risk-free guarantee.

Mr. CORCORAN. It sounds good to me, but the only question I

would have there is, are you the only one that wants to buy this?

Am I so illiquid—and I think I don’t really know this, but let’s presume that this company was so illiquid, and I think that was its

problem initially, and you guys can tell me whether or not it was,

that they needed cash. I don’t know how far my back would be to

the wall to agree to something like that. It had to be pretty far

back.

Mr. OSE. But you dealt with technical insolvencies also?

Mr. CORCORAN. Well, we never had something like that, no. No,

no one——

Mr. OSE. In this issue, in those situations where you did have

a technical insolvency, I mean you would make a judgment as to

the revenue stream and whether it could meet the demands of policyholders in the structured settlements?

Mr. CORCORAN. And the other one you had, they were mostly

small insolvencies, and I had the Guarantee Fund to lean on if

there was a shortfall. Now, of course, the Guarantee Fund would

say, do whatever you can do to make my assessment as small as

possible, and they are sitting at a table with you. So if someone

came to me with a complex deal like that, I would probably turn

around to the Guarantee Fund and say, ‘‘Well, you know, you’re the

guys who are ultimately going to pay the price. This is a national

group. Is this the best thing to do? Tell me. I’m not an expert in

all areas. I will admit I don’t understand all these things, but explain to me why I should do that.’’

Mr. OSE. So you would negotiate whether or not to include a putback provision into any such deal?

Mr. CORCORAN. The only criteria I would have, is this the best

thing for the policyholders?

Mr. OSE. OK.

Mr. CORCORAN. I have a real simple criteria as Insurance Commissioner. It was, is that best for the policyholders?

Mr. OSE. From your understanding of the Executive Life of California deal, if that included a put-back provision, would that have

been beneficial to the policyholders?

Mr. CORCORAN. I am just guessing here, so the testimony isn’t

that valuable. But if it was the only way out, if there was nobody

else at the table, if everybody wanted that, if this was the highest

price I could get for the bonds—I wasn’t sitting there doing the negotiating, I can’t tell you.

But I do know that the company was illiquid, and they wanted

to start paying claims, I presume, to policyholders as fast as possible.

Mr. OSE. It is my understanding they were technically insolvent

also.

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Mr. CORCORAN. Yes, there was a liquidity issue. Now in hindsight we all agree it was liquidity and the thing could have probably within time come out of it, but at that time they needed cash

desperately. That I do know. I don’t know what else—— Mr. OSE. Of the seven or eight bids that were received, I am only

aware of one that ended up having the put-back provision included.

Mr. CORCORAN. I am, Mr. Chairman, unaware of any of these.

Mr. OSE. OK.

Mr. CORCORAN. All I know is there were seven or eight bids, and

NOLHGA made a bid, and the Guarantee Funds make bids. Of

course, the Guarantee Fund’s effort there, don’t forget, I mean in

all fairness to the Guarantee Fund, they represent all the companies that competed with Executive Life and lost business, and now

they get the privilege of paying the bill.

Mr. OSE. Right.

Mr. CORCORAN. So they’re not happy bunnies when they are sitting at the table because their whole thrust is try to pay as little

as possible. So that is why I do believe that we need to go to a Federal system, much more comprehensive, and stop this process,

which is every Commissioner loses control the minute it gets into

that courtroom, because then it becomes the great game.

Mr. OSE. OK, this has been very illuminating. I appreciate your

time.

Mr. CORCORAN. I appreciate the opportunity.

Mr. OSE. Mr. Green, your tenure at the Insurance Commission

commenced when?

Mr. GREEN. Actually commenced on the evening of July 5, 2000,

when Bill Lockyer called me to his office and said, ‘‘Tomorrow

morning Law Professor Clark Kelso is going to take over for Mr.

Quackenbush and you get to go over to the Department of Insurance to be the Deputy Commissioner and Chief Counsel.’’ For the almost 12 years previous to that, I was Deputy Attorney

General of the State of California. I still technically am; I am on

leave and I will be returning to that position whenever my tenure

at the department is over.

Mr. OSE. So from 1988 to 2000 you were at the AG’s office?

Mr. GREEN. Yes.

Mr. OSE. You are on temporary assignment, so to speak, over at

the IC’s office at this point?

Mr. GREEN. Right, right, and most of my hours as a deputy attorney general from 1988 to 2000 were spent representing the Department of Insurance.

Mr. OSE. In the course of the transaction in which Executive Life

was seized, what deliberations occurred? Did the office go outside

for third-party advice? How did they make the decision that in fact

the company was insolvent?

Mr. GREEN. It is very hard for me to say. I need to give you a

little bit of background.

Mr. OSE. OK.

Mr. GREEN. In December 1990, approximately a month before

Mr. Garamendi took office as the first elected Commissioner, Commissioner Gillespie, the last appointed Commissioner, came to John

Vandecamp, who was then the attorney general, and basically said,

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side counsel to help me with this problem.’’ Attorney General

Vandecamp, pursuant to his ability under the California Government Code, gave that permission.

So what subsequently transpired is that the attorney general’s

office never was really part of the representation, never has been

part of the representation, of three now, four now, Commissioners

in connection with Executive Life because, as I understand it, Mr.

Garamendi took that initial approval from John Vandecamp and

took the position that he was, therefore, entitled to only use outside

counsel, never use the attorney general for any matter involving

Executive Life.

So while, for some technical reasons, Dan Lungren’s name was

on some of the pleadings in Executive Life, my office, that office,

had nothing to do with it. I don’t know what Mr. LeVine has seen

in the documents about the deliberative process, but, unlike we

were mentioning today when we were speaking before the hearing,

the Pacific Standard case, which I was lead counsel for the Commissioner as a deputy AG for 10 years, I don’t know what processes

the department went through. Maybe Mr. LeVine has some information from the documents that he has looked at.

Mr. OSE. So you wouldn’t know whether or who advice was

sought from?

Mr. GREEN. Well, I do know, because it is part of the record, that

the law firm that Ms. Gillespie hired was Rubenstein and Perry.

I do know that Mr. Carl Rubenstein took a lead role in representing first Roxanne Gillespie and then John Garamendi in the court

proceedings. I do know that.

I don’t recall as I sit here—maybe Harry does—the names of

other law firms that were involved, but I do know that law firm

was basically lead counsel for the Insurance Commissioner in the

Executive Life proceedings in the early nineties.

Mr. OSE. OK. Mr. LeVine, the same question.

Mr. LEVINE. Yes, I didn’t work on Executive Life at the time. So

it is my understanding that the department staff, financial staff,

worked on—yes, the question was monitoring the solvency of the

company, I believe. I know that department staff worked on that.

I don’t know whether there were experts. I know that once Executive Life went under, as Mr. Green just mentioned, they hired

Rubenstein and Perry, and they hired lots of other consultants. But

prior to the insolvency, I am unclear right now on whether someone else helped in the analysis of the financial picture.

Mr. OSE. So in December 1990 Commissioner Gillespie approached Mr. Van de Kamp and said, ‘‘I’ve got a problem.’’ Van de

Kamp approved Gillespie going outside for third-party counsel, so

to speak. Then, subsequently, the newly elected Insurance Commissioner came into office, inherited Rubenstein’s firm as the lead

counsel on the case?

Mr. LEVINE. I believe that’s correct, and Rubenstein and Perry

certainly was the lead counsel in the conservation.

Mr. OSE. In terms of Gillespie’s determination in December 1990

as to the insolvency or lack thereof at Executive Life, who would

have been involved in that deliberative process at the Insurance

Commissioner’s office?

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Mr. GREEN. For sure, one of the people who would have been involved is Norris Clark, who remains the Deputy Commissioner for

Financial Affairs and a very nationally respected individual.

Mr. OSE. Norris Clark?

Mr. GREEN. Clark, yes. What he does, he for sure would have

been involved. After that, between Norris and Roxanne Gillespie,

you know, I don’t know who that would be. I have seen—and I

have the ability to waive the attorney/client privilege, and I am to

a certain extent—I have seen the memo that went from—— Mr. OSE. I will be clear: I haven’t asked you to do that.

Mr. GREEN. I know that, sir. I know that.

I have seen the memo once that went from then-Commissioner

Gillespie to Mr. Vandecamp. I just recall it saying that there was

a problem and there was a need for specialized counsel. You know,

I haven’t probably looked at it in 8 or 9 months. I had a reason

to look at it about 8 or 9 months ago, and that is the first time

I had ever seen it.

Mr. OSE. Mr. LeVine, you are currently at the Department of Insurance?

Mr. LEVINE. Yes.

Mr. OSE. As counsel, you are career counsel at the Department

of Insurance?

Mr. LEVINE. Yes, I am.

Mr. OSE. Your primary duties and responsibilities include what?

Mr. LEVINE. My primary responsibility is overseeing this current

piece of litigation.

Mr. OSE. Relating to Executive Life?

Mr. LEVINE. Relating to Executive Life and some other issues relating to Executive Life that still need to be resolved.

Mr. OSE. Such as?

Mr. LEVINE. There are some trusts that are out there that are

making distributions. There are legal issues that come up occasionally. Every now and then we need to modify the rehabilitation

agreement to facilitate a distribution, things like that.

Mr. OSE. OK. So you have, is it fair to say that you have dayto-day management responsibilities of the Commissioner’s suit

against Credit Lyonnais?

Mr. LEVINE. Well, subject to Mr. Green’s review, yes.

Mr. OSE. OK. Can you review for us briefly the events that led

to the purchase of most of the assets of Executive Life by agents

and subsidiaries of Credit Lyonnais, just generically? I just want

to put it on the record relative to your guys’ understanding.

Mr. LEVINE. Well, I mean, I am not sure if I understand what

you are asking, but the basic outline is starting with, I guess,

the——

Mr. OSE. Let me be a little more specific.

Mr. LEVINE. OK.

Mr. OSE. We are talking about the initial overtures from the purported buyer, whether it be Credit Lyonnais or otherwise. Did the

Commissioner’s office get approached early on, and were there any

communications back and forth?

Mr. LEVINE. Well, I can tell you what I know about that, but,

again, here is where I want to indicate that I need to be cautious

because I am not the witness and there will be people who will be

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deposed and testify about various contacts and what they said,

what they meant.

But it is my understanding that Altus was already working with

Executive Life before the insolvency on their own presumably proposed recapitalization or restructuring, or whatever it might have

been. I believe there were some meetings or a meeting—I don’t

know if I should use the plural—with the Commissioner prior to

the seizure of the company. But on April 11, 1991, the Commissioner was appointed as conservator and seized the company.

Mr. OSE. Now would it have been illegal for Credit Lyonnais to

have openly purchased the assets of Executive Life in 1991?

Mr. LEVINE. Yes, I believe so. It would have violated the Bank

Holding Company Act. I don’t think they were able to do that.

Mr. OSE. And you are indicating that Altus may have approached

the Commissioner’s office prior to April 11, 1991?

Mr. LEVINE. Right, but I don’t mean—— Mr. OSE. You don’t know what the reason was?

Mr. LEVINE. Exactly, and I don’t know that Altus was proposing

buying the company or proposing some piece of it or working with

someone else. I don’t know the nature of the approach.

Mr. OSE. Do you know when the Commissioner’s office was first

approached by the agents of Credit Lyonnais?

Mr. LEVINE. No, I don’t.

Mr. OSE. OK.

Mr. LEVINE. I mean, I think it was sometime in—actually, I

shouldn’t speculate. I mean I’m going to guess. I will speculate.

Sometime at the end of 1990 or early 1991.

Mr. OSE. Do you know what was discussed in those meetings?

Mr. LEVINE. No, I am not the person that would know the answer to that one.

Mr. OSE. There is a memorandum that was put out dated May

21, 1991, entitled, ‘‘Memorandum,’’ and it is addressed to ‘‘Parties

Interested in Financial Participation in Executive Life Insurance

Company Rehab. Plan.’’ This is the document, and I would be

happy to have the clerk deliver the document to you.

The question is, are you familiar with this document?

Mr. LEVINE. I have seen the document, and I know generally

what it is.

Mr. OSE. Does this document constitute the requirements for bidders interested in purchasing Executive Life?

Mr. LEVINE. That is my understanding, but I haven’t, again, I

haven’t worked with the witnesses and the people that drafted it,

and don’t know the context, but on its face that appears to be what

we would have called an RFP.

Mr. OSE. So this is, if you will, the initial document, the purpose

of which would have been to move forward with rectifying the situation that arose from the insolvency of Executive Life? In other

words, this kind of is the road map that we are going to go down?

Mr. LEVINE. I think whether it was the initial document or not,

again, I don’t know, but it was certainly a public pronouncement

of how the Commissioner was going to go about getting a definitive

bid and then inviting overbids, other bids.

Mr. OSE. Do you have a copy there with you?

Mr. LEVINE. Yes, I do.

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Mr. OSE. OK. If you will look at page 2, section 2, titled, ‘‘General Structure of Rehabilitation,’’ the second sentence states, ‘‘The

general concept is that all fixed assets and liabilities would be

transferred from ELIC to NEWCO.’’

If I read that correctly, the initial proposal, as represented in

this memorandum, would track fairly closely what transpired in

New York in the sense that the original bid requirement was for

both the assets and the liabilities to be transferred to the proposed

new company. Am I reading this correctly?

Mr. LEVINE. Well, here’s where the rubber meets the road on my

sort of not having personal knowledge. I mean, I could read that

and I agree it says, ‘‘fixed assets,’’ but I don’t know whether that

means selling the bonds and taking the cash and giving it to a new

company or giving the junk bonds to a new company or if there’s

flexibility in there. I mean, I don’t know, and I would suspect that

is something that our witnesses will be asked in the course of discovery in this case.

Mr. OSE. I was going to ask what the word ‘‘fixed’’ means, but

the next sentence defines it fairly well to include both the liabilities

and the assets to be transferred.

Now, pursuant to this memorandum, there was a final purchase

agreement, if you will, I think in November, that led to acceptance

of Altus’ bid on November 14, 1991. The reason I ask that—I don’t

know if you have a copy of this in front of you; I think you do.

Mr. LEVINE. I do.

Mr. OSE. That is a copy of the final purchase agreement?

Mr. LEVINE. Well, this is a copy—this has been updated since

then. There have been many modifications. Things didn’t go as

anybody initially planned probably in November 1991. As changes

were made, this document was modified. It is my understanding

this is through 1997. So this does include all the changes through

1997, but it is my understanding that it embodies the original document as well.

Mr. OSE. How does the original document differ from this memorandum of May 21, 1991? Do you have any analysis of that?

Mr. LEVINE. I think they are entirely different. I think this is basically an outline of a structure for a bid, and this is all the dirty

details.

Mr. OSE. If I understand the memorandum from May 21, the

road map laid out there is a bonds-in kind of deal. Do you know

whether or not this document is a bonds-in or a bonds-out type of

document?

Mr. LEVINE. Well, I know that the Altus bid was bonds-out. I

don’t know if this is. As I was saying earlier, I don’t really know

if this May 21st document contemplated bonds-in or bonds-out, or

who knows what kind of structure. But, yes, the Altus deal was a

bonds-out deal.

Mr. OSE. You say the eventual sales was a bonds-out deal?

Mr. LEVINE. Yes.

Mr. OSE. OK. So at some point or another, somebody either determined that the memorandum did not require a bonds-in deal or

changed what they would be willing to accept to make the deal to

allow a bonds-out deal?

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Mr. LEVINE. Again, I just don’t know because I don’t know that

bonds-out or bonds-in was contemplated, prohibited, allowed, anything in this document.

Mr. OSE. Did the assets as well as the liabilities in this deal get

transferred together to the new company?

Mr. LEVINE. Well, it is my understanding, yes, they did. I mean

the cash, not all of it, but most of the cash, most of the assets from

Executive Life were transferred to—well, transferred to a number

of places. They were transferred to Aurora. Certain assets were put

into what we call the enhancement trusts, and then certain assets

were retained by the estate. But eventually all the assets were for

the benefit of the policyholders.

Mr. OSE. Do you know whether a separate sale of the bonds

without the liabilities or the underwriting portion of the business

was part and parcel of the final agreement on sale?

Mr. LEVINE. Again, other people would testify to this, but I am

fairly confident that the answer is no, that the bid was to—it was

a bid, and part of it was that one person would take the bonds and

other people would take the insurance assets and liabilities, but,

no, they were not separate deals. And the bonds left the company.

Mr. OSE. Do you know whether or not the sale represented in

this document allowed for a separate purchase of the bonds or a

purchase of the bonds separate from the liabilities to the policyholders?

Mr. LEVINE. I think the answer to that is no, but I believe it is

also an issue in the case. I believe you will have the defendants

telling you that the bonds were separated somehow at some point

in time in the transaction, but we don’t believe that’s true.

Mr. OSE. That is one of the items being litigated?

Mr. LEVINE. Absolutely, yes.

Mr. OSE. As to what—there is writing and then there is actuality, if I understand the law in some of these cases.

Mr. LEVINE. I’m sorry, there’s what and there’s actuality?

Mr. OSE. There is writing, there is a written document, and then

there is actuality as to what happens, and that is apparently what

the subject of the litigation is. You don’t need to comment.

Mr. LEVINE. Thank you.

Mr. OSE. Now the document for the final purchase and sale was

amended over time?

Mr. LEVINE. Yes, it was.

Mr. OSE. Do you have a copy of the amended purchase and sale

agreement? That is what this is?

Mr. LEVINE. That’s what that is.

Mr. OSE. OK.

Mr. LEVINE. But, again, I wanted to point out that it is not up

through—not current to date. There are other separate agreements

that have been negotiated, and nobody has taken the time to put

them into one comprehensive agreement.

Mr. OSE. I have a document; it is called exhibit 2, from Morgan,

Lewis & Bockius out of Pennsylvania, which represented certain

French interests. Do you have it there?

[Exhibit 2 follows:]

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Mr. LEVINE. Yes, I do.

Mr. OSE. Do you recognize it?

Mr. LEVINE. I have seen a lot of documents in this case. I believe

I have seen this one.

Mr. OSE. OK. It appears to describe which entity owns what percentage of the new entity that bought Executive Life. Is that your

understanding?

Mr. LEVINE. Yes, that is my understanding. At least that is what

was being proposed in October 1991. This list of proposed owners

actually changed and is not the final list.

Mr. OSE. Does this letter accurately represent the real ownership

of the assets of Executive Life post-purchase?

Mr. LEVINE. Of course not because Altus and Credit Lyonnais

aren’t listed here.

Mr. OSE. Those are who the real owners were?

Mr. LEVINE. At the close of the transaction, it is our contention

they owned 67 percent of the company, yes.

Mr. OSE. I have another document dated April 8, 1992 from the

same law firm. In the document, some pages back, it contains a

statement from Omnium Geneve, which is a Swiss corporation,

that claims that Credit Lyonnais has no ownership interest in it

except for two purportedly irrelevant European interests. If you

will give me a minute, I can find the page.

Mr. LEVINE. I have it in front of me.

Mr. OSE. It is paragraph 2 that makes that representation. Does

this document accurately reflect Omnium Geneve’s—excuse me— Credit Lyonnais’ ownership interest?

Mr. LEVINE. It is our contention that it does not.

Mr. OSE. OK. Who had the ownership and control over Omnium’s

share of Executive Life assets?

Mr. LEVINE. Well, they had written agreements with—excuse

me—Altus had written agreements with Omnium giving them the

right or selling them the shares; the forward transfer of shares, I

believe it might have been called.

Mr. OSE. These are what are called ‘‘call options’’?

Mr. LEVINE. The document has been translated from French to

English. I think one of the translations is call options.

Mr. OSE. Actually, it says, the French document says, ‘‘Promesse

de Vente D’Actions,’’ ‘‘promise of selling’’ something. Well, you

speak French; I don’t.

Mr. LEVINE. I figured 3 years ago this case couldn’t go that long,

so I wouldn’t learn French. [Laughter.]

Mr. OSE. Patience. You might.

Now this document has a call option on Omnium’s share of Executive Life assets, is in favor of Altus?

Mr. LEVINE. Yes.

Mr. GREEN. You’re talking about exhibit 5?

Mr. OSE. I am talking about exhibit 5, yes. Thank you.

[Exhibit 5 follows:]

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Mr. GREEN. OK, thank you. That is fine.

Mr. LEVINE. This is sale of a stock, or a forward sale, I believe.

Mr. OSE. Well, it gives one party the option to purchase the stock

within some period of time in the future.

Mr. LEVINE. I want to be cautious about not categorizing it as

a call because I believe that Omnium absolutely had no ownership

interest, and other people have to testify to this.

Mr. OSE. OK.

Mr. LEVINE. In other words, Altus actually had the ownership interest.

Mr. OSE. The net effect is to give control to some other party, if

I understand?

Mr. LEVINE. That is my understanding as well.

Mr. OSE. And that other party would be, according to this document, Altus that would have control over Omnium’s share?

Mr. LEVINE. That’s right.

Mr. OSE. According to this document. Now when did the Insurance Department become aware of these arrangements?

Mr. LEVINE. We became aware—well, the department was first

told that some arrangement might exist in the middle of June. I

don’t have the exact date in mind. The documents actually were received by us in January 1999.

Mr. OSE. So middle of June 1998——

Mr. LEVINE. Yes.

Mr. OSE [continuing]. To January 1999, you heard anecdotally,

more or less, in June 1998; you got actual documents in January

1999?

Mr. LEVINE. That is correct. In January 1999 we received copies

of some—there were a number of different, we called them ‘‘portage,’’ is our version of the French word. We got a number of the

‘‘portage’’ contracts in January 1999.

Mr. OSE. So there are a number of these agreements. In whole,

they comprise 100 percent ownership of the entity, but Company

A has got an agreement, Company B has got an agreement, Company C has got an agreement. Is that what you are referring to?

Mr. LEVINE. Some of them have different arrangements. MAAF

and Omnium Geneve have written agreements. In connection with

two of the other French fronts, as we say ‘‘fronts,’’ I don’t know

that they had written agreements quite as nice and neat as these,

but it is our belief and our allegation that they had effectively

agreements whereby they didn’t own the shares and that Altus did

own the shares.

Mr. OSE. The net effect, giving Altus control of the shares?

Mr. LEVINE. Right.

Mr. OSE. And, thereby, control of the company?

Mr. LEVINE. That’s right.

Mr. OSE. All right. Were there any provisions in these documents

for confidentiality, any confidentiality provisions in these documents?

Mr. LEVINE. Yes, there are. They say that they will be kept secret.

Mr. OSE. For what purpose?

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Mr. LEVINE. Well, you have to ask the defendants, but I assume

so the violation of the Bank Holding Company Act and Insurance

Code Section 699.5 won’t be revealed.

Mr. OSE. Now these documents were executed, if I recall, back

in 1991?

Mr. LEVINE. They vary. There are some in 1991; there are some

in 1992; I believe there are some in 1993.

Mr. OSE. So prior to the actual closing of the sale, these documents were in existence, but nobody knew about it?

Mr. LEVINE. That’s our belief. It is our belief that—right, that

Altus had the ownership interest prior to the closing.

Mr. OSE. Now did Credit Lyonnais—the Commissioner’s office required some sort of a guarantor from the successful bidder on certain assets or payments to be made to the policyholders? Do you

recall that?

Mr. LEVINE. I’m not sure what you have in mind. There were

guarantees. Some of the bidders had guarantees; other bidders had

guarantees of capital values. I’m not sure what you have in mind.

Mr. OSE. Let me ask the question differently. Did Credit Lyonnais play a public role as a guarantor of certain purchases in this

case?

Mr. LEVINE. I don’t think—again, I am not the person with the

precise knowledge, but I can tell you what is my basic understanding. There was a time when they guaranteed Altus’ ability to buy

the junk bonds, and I believe that they gave a guarantee that the

minimum capital and surplus of the new company, Aurora, they

guaranteed that capital.

Mr. OSE. At what level?

Mr. LEVINE. $300 million.

Mr. OSE. OK. If you will look at exhibit 6, it is a letter to the

Commissioner of the Insurance Department from or on Credit Lyonnais’ stationery, dated April 19, 1991, representing ‘‘such additional funds as may be required to consummate the additional

transactions being discussed as soon as agreement is reached.’’

Is this the document that the department considers to be the

$300 million guarantee?

[Exhibit 6 follows:]

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Mr. LEVINE. I don’t know how many different documents there might have been, but I believe this refers to the $300 million guarantee, yes.

Mr. OSE. So there was correspondence in April 1991 relative to

the guarantee that, if I recall, was outlined in this memorandum

as being a necessary part of the deal between this party, in this

case Credit Lyonnais, relative to Altus’ ability to perform?

Mr. LEVINE. Well, the $300 million might relate to the ability of

the MAAF group of investors to perform, but yes.

Mr. OSE. But this is what constitutes a representation that there

was a guarantee? Now this also contemplates that the transaction

would be consummated within 90 days, if you look at the last paragraph of the letter, dated April 19, 1991, exhibit 6?

Mr. LEVINE. They were only off by a little. [Laughter.]

Mr. OSE. Well, that begs the question. I mean I have borrowed

money before, and I have had letters of credit. Typically, there is

a charge for that. I mean $300 million, I figure half a point.

Mr. LEVINE. I have no idea.

Mr. OSE. You don’t have any ideas about that?

Mr. LEVINE. I have no idea about the mechanics of that, the mechanics of their guarantee.

Mr. OSE. OK.

Mr. LEVINE. I don’t mean to be flip, but you know that the transaction didn’t close for years.

Mr. OSE. Well, that is my point. I mean, in fact, it was September 3, 1993.

Mr. LEVINE. That’s right.

Mr. OSE. I just want to be clear that I understand the purpose

of this letter of April 19. Is the purpose of this letter to assure the

department that the guarantee is in place?

Mr. LEVINE. I am going to have to say that I don’t know the answer to that, and probably the Commissioner’s staff who were involved in the negotiation of this and will be deposed on all those

kinds of questions are the ones that can answer it best. I mean,

it certainly evidences it, and I don’t know if there are other documents that also relate to it.

Mr. OSE. You have already mentioned that or we have already

covered the fact that this had a 90-day period, so you figured it was

going to end in 3 months.

Mr. LEVINE. Well, somebody thought that.

Mr. OSE. OK.

Mr. LEVINE. Or maybe somebody thought that. I shouldn’t speculate whether they thought they were going to really consummate

anything within 90 days.

Mr. OSE. Was Credit Lyonnais’ guarantee—I mean, I presume

from the simple reading of this that they expected a timely transaction and that they would be out of it in 90 days. It doesn’t say

that explicitly, but—well, actually it does. It says that, ‘‘contemplated transactions will be consummated within 90 days thereafter,’’ of May 19, 1991. So, essentially, they are saying they are

out of this thing in 90 days?

Mr. LEVINE. Yes, I read the same words, but I just don’t know

what all was going on. As you know, April 19, that is 8 days after

we seized the company.

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Mr. OSE. Right.

Mr. LEVINE. I have no idea all the circumstances that surround

this and—— Mr. OSE. OK.

Mr. LEVINE [continuing]. What else might have been spoken of

or written or in words.

Mr. OSE. And the transaction continued for roughly a year, 2

years after that, a little over 2 years beyond that. Can you give the

committee some sense as to why the transaction went on or took

this long?

Mr. LEVINE. Yes, there was a lot of litigation. There was litigation over whether the muni-GICs were properly policyholders or

not. There was then litigation over whether the Commissioner’s

plan for valuing the muni-GICs was proper. I think those are the

major pieces of litigation, but perhaps, as Mr. Corcoran noted,

there’s a lot of people who had a lot of dogs in the fight, and everybody was asserting their rights.

Mr. CORCORAN. There was Guaranteed Fund litigation. There

was contract definition litigation. It was incredible. It was a ‘‘bar

association meeting.’’ Mr. OSE. Now I want to go through and make sure I understand

how the succeeding entity dealt with the policyholder claims. The

company was seized. The portfolio, in part or in whole, was liquidated for the purpose of raising cash. We heard from our two witnesses earlier, Mrs. Jacobson and Mr. Bozeman, that their distributions were reduced.

How did the department go about determining who got what

after the seizure?

Mr. LEVINE. Well, I believe it is actually in both this rehab. plan

and then probably also in something called the product books, but

it is my understanding that actuaries and other people were involved in determining how to give what is colloquially called a haircut to the policies, because Executive Life being insolvent, it obviously didn’t have enough to pay everybody. I think it was quite a

complicated procedure and Executive Life had quite a complicated

collection of products it sold.

Mr. OSE. Now you had 300,000-odd policyholders. Some of them, their benefits exceeded the $100,000 and the $300,000 thresholds.

To the extent that you had policyholders whose benefits were

$100,000 or less in one case or $300,000 or less in another, those

folks were taken care of by virtue of the Guarantee Fund?

Mr. LEVINE. I would assume generally that is correct, assuming

their State had a $100,000 limit, right.

Mr. OSE. OK, in California I think that is the case.

Mr. LEVINE. So there was restructuring—it is a very complicated

transaction. There are restructuring percentages. There is something called conservation date statutory reserves. They had to find

a way to value the policies to know what they were worth, to know

how to structure them.

So somebody just having a $100,000 shortfall, I don’t know that

I could be the one to say they automatically got their $100,000

from a guarantee association. It was tremendously complicated.

Mr. OSE. And, yet, in New York you had to deal with something

similar, I am sure, relative to policyholders?

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Mr. CORCORAN. Well, the nature of the product was pretty simple. It was single-premium, deferred annuities and some structured

settlements. It wasn’t nearly as complicated as the California company.

The key issue there was what was guaranteed under the Guarantee Funds and what wasn’t, but, once again, as I said, the assets

were adequate long term and only needed to be provided with some

liquidity. MetLife, more or less, stepped up to the bat. Ultimately,

I believe MetLife, it was a good deal for them. All the old policyholders were made whole, I believe.

Mr. OSE. Now the folks in California, the Guarantee Fund, to the

extent that they stepped up, they now are a creditor to the estate?

Mr. LEVINE. They have subrogation rights, right.

Mr. OSE. So any recovery, they might get a piece of that?

Mr. LEVINE. That is correct.

Mr. CORCORAN. The Guarantee Fund also had their own exotic

formula, and that was subject to challenge, that we got involved in.

It wasn’t so simple. I thought it was simple. We had written a statute thing that was simple, but they came up with these theories

of weighted coverage. So that became part of this case.

Mr. OSE. If the department or the attorney general or the Department of Justice successfully conclude their actions and they recover $100, for lack of a better number, how does that $100 get allocated out to the current creditors, if you will?

Mr. GREEN. I am assuming by that question, Congressman Ose,

that you are presuming that, if the U.S. Department of Justice

prosecutes and gets money, that will assign $100 to the policyholders, because I don’t think Mr. LeVine and I are competent to

testify as to when the Federal Government makes a recovery, how

the award or penalty gets——

Mr. OSE. OK, let’s say in terms of the attorney general of California or the Insurance Department.

Mr. GREEN. The next one, as you know, the attorney general’s

case has been dismissed, but it is on appeal. That is a qui tam action and there are some real issues about how much the qui tam

gets and how much the attorney general’s qui tam fund gets.

Now the third is ours and, as we have explained to the staff, it

will go pursuant to, first, section 1033 of the California Insurance

Code, which sets up priorities very similar to the Bankruptcy Code

priorities. Then that money assigned for policyholders, which are a

second priority under our statute, would go pursuant to the rehabilitation plan. Those participating guarantee associations—for example, Congressman Burton mentioned Indiana, which we now

think that the debt to that association is $38 million—they are subrogated to their policyholder rights. So they would get, if there was

money, they would get—their proportionate share would go to the

Indiana Guarantee Association, and policyholders would get their

proportionate share pursuant to the rehab. agreement.

Mr. OSE. So you’ve got $38 million going to Indiana.

Mr. GREEN. Hopefully.

Mr. OSE. You’ve got $600-odd million that would go to—is it

CIGA?

Mr. GREEN. CLIGA. It is called CLIGA.

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Mr. OSE. OK, California Life Insurance Guarantee Association.

Then there are other states that have participated.

Mr. GREEN. Right.

Mr. OSE. So they would each get a piece. So if you add all that

up, what does it come to?

Mr. LEVINE. Do you mean what is the percentage?

Mr. OSE. No, what is the number we have got to get or recover

in order to make everybody whole?

Mr. LEVINE. Oh, I don’t have that number, but it is astronomical.

I think the loss for time value of money and everything else——

Mr. OSE. This is Washington; I mean the numbers—[Laughter]——

Mr. LEVINE. I don’t know the number. It is billions, ‘‘billions ’’

plural, I am certain.

Mr. OSE. $5 billion?

Mr. LEVINE. Oh, I couldn’t even speculate because I don’t know.

I am not sure that anybody, first of all, has calculated the actual

loss that each policyholder took, taking what they got versus what

they would have gotten had Executive Life never gone under. I

don’t think that number exists.

Mr. OSE. OK, so it is more than $1 billion because you said ‘‘billions.’’

Mr. LEVINE. I think it is more than $1 billion, yes.

Mr. OSE. Is it more than $2 billion?

Mr. LEVINE. I’m going to guess more than $2 billion, but, I mean,

I——

Mr. OSE. Is it $10 billion?

Mr. LEVINE. I don’t even have a basis for speculating on how

much it takes to make everybody whole. I would hope $10 billion

would do it, but I don’t—I shouldn’t even say that because I just

really don’t know.

Mr. OSE. If I understand correctly, on qui tam provisions the

whistleblower gets a percentage, is that correct?

Mr. LEVINE. That is correct.

Mr. OSE. What is the percentage?

Mr. LEVINE. Oh, well, that’s the AG’s lawsuit. It depends on

whether or not—my understanding of that law is it depends on

whether or not the attorney general has intervened in the case. In

that case, since the attorney general did intervene in the case, it

is lowered, I would say, 15 to something.

Mr. GREEN. Yes, but once the attorney general intervenes, while

the qui tam recovery goes down, the attorney general is entitled to

make a recovery for his qui tam fund. So, yes, we understand—

again, I am talking as a Deputy Commissioner, not a Deputy Attorney General—we understand that can be, the fund recovery can be

as high as one-third. That is money that would not go to policyholders. That money would go to the attorney general’s qui tam

fund.

Mr. OSE. What is that money used for?

Mr. GREEN. Well, it funds—again, I am talking as a Deputy

Commissioner, because in my AG life I don’t work on false claims

cases, but it is my understanding it goes to fund the attorney general’s whistleblower lawsuits.

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Mr. OSE. I have to ask this question because I don’t quite understand why this would ever occur. We’ve got a situation where the

policyholders have just been pounded. Why would you turn over up

to a third of a billion dollars in one case or a third of something

even larger to a fund that doesn’t benefit the policyholders? Are

there no limits on this?

Mr. LEVINE. I believe they say that there are limits, but I believe

the attorney general would tell you that they have some flexibility,

but we agree. That is why we believe the Commissioner suit—the

Commissioner is the proper person to pursue recovery, because no

part of the Commissioner’s recovery goes to an attorney general’s

qui tam fund.

Mr. OSE. I will admit to some concern about the level of reward.

I mean I recognize we would never have gotten this information

without somebody stepping forward, but having stepped forward,

what is the right amount to reward such a person? How do we

make it enough so that the next guy does the same thing without

hammering the policyholders?

Mr. GREEN. I can tell you of a case, because I use it in the business law classes that I teach, of a case for defrauding Medicare and

Medicaid where the whistleblowers, three whistleblowers are going

to share $105 million. That was just reported in—it was an $875

million penalty that the drug companies agreed to pay, and $105

million—— Mr. OSE. So they got one-eighth. They got one-eighth of it?

Mr. GREEN. One-eighth, yes, but it is $105 million being shared

by three individuals.

Mr. OSE. You are making an argument for some sort of a cap on

such rewards.

Mr. GREEN. No, not—I echo Mr. LeVine’s comment, that our

laws—while the Commissioner has gone on record as supporting,

as being in favor of a decision by the Department of Justice to indict and bring criminal charges, in terms of a civil action ours is

the one that in theory, and we hope in reality, will prove to provide

the best benefit for the policyholders.

Mr. OSE. Let me change the focus here a little bit because I don’t

understand something relative to the component parts of the total

estate. There were about $1.9 billion worth of guaranteed investment contracts that were held by or sold by Executive Life. The initial determination was that those constituted junior creditors at

the time the insolvency was declared, and they were essentially

wiped out with that determination.

A subsequent court ruling reinstated them as equal participants

to the initial group of beneficiaries. Have the holders of the guaranteed investment contracts received anything in this process?

Mr. CORCORAN. No.

Mr. LEVINE. Yes.

Mr. OSE. You need to turn on your microphone.

Mr. CORCORAN. I don’t believe ultimately—I left the case after a

while, but they got payments but they never got Guarantee Fund

coverage, but they got a haircut payment and, ultimately, some

may have been made whole, I think, after time. There was a time

value of money loss to them, but I think they did not qualify for

Guarantee Fund coverage. They lost something.

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Mr. LEVINE. That is my understanding as well. They don’t qualify for Guarantee Fund coverage, but they were policyholders. That

was the ruling of the Superior Court. It was upheld by the Court

of Appeals. So they had the rights of policyholders. It is my understanding that most of them opted out. So they got their cash when

they opted out.

Mr. OSE. They cashed in at the haircut value?

Mr. LEVINE. Yes.

Mr. CORCORAN. Right. The analysis they did was get the cash

now; by the time this is over, I will get my money back through

my own investments; I’ll lose it on my own.

Mr. OSE. Was that a universal approach? Were there some that

did stay in?

Mr. CORCORAN. The 60 companies I represented, it was mixed.

It was mixed. Most of them opted out and took their cash, I believe.

Mr. OSE. In opting out, did they waive any claim to further payment?

Mr. CORCORAN. I believe they did, and they wanted to litigate

separately against the Guarantee Fund, but I don’t—in some courts

they were there, but it was state by state.

Mr. OSE. So there are still a few that are in there having not

opted out?

Mr. CORCORAN. I believe there is, yes.

Mr. LEVINE. Well, opt-out, they are still policyholders, so they

will still share in a recovery.

Mr. OSE. They still get checks?

Mr. LEVINE. But you are correct that by opting out they got their

haircut liquidation value. Maybe I shouldn’t speak about liquidation value. They got their haircut and they did not share in enhancement payments that were received by those who opted in.

Mr. OSE. Right.

Mr. LEVINE. The real estate trust, something called the base assets trust, something called the——

Mr. CORCORAN. Quite a few of them stayed in, I think, for that

purpose, but quite a few got out.

Mr. OSE. If there is further recovery through this deliberative

process with our friends across the pond, will the policyholders, regardless of class, benefit from that?

Mr. LEVINE. Yes.

Mr. OSE. So you will have not only the structured settlement recipients like Mrs. Jacobson and Mr. Bozeman, but the holders of

the guaranteed investment contracts and the like also?

Mr. LEVINE. Right. They are policyholders according to the court

ruling.

Mr. OSE. Is there a difference in the treatment of any of these

policyholder classes dependent upon who prevails in the litigation?

For instance, if it is the Federal Government versus the attorney

general versus the Insurance Commissioner?

Mr. CORCORAN. I think it would go pursuant to a preference——

Mr. GREEN. Whatever money is allocated to go to the estate will

go pursuant to the combination of the priority statute and the

rehab. plan.

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Mr. OSE. Is that a function of the actual—if there is a settlement,

is that a function of the actual settlement talks or is that a legally

defined——

Mr. GREEN. It is legally defined.

Mr. OSE. OK. So there is no discretion, if you will?

Mr. GREEN. Yes, I don’t believe the Commissioner has any discretion. If, for example, tomorrow we sat down and the defendants

said, ‘‘We’ll write you a check for ‘X’,’’ I don’t believe the Commissioner has any discretion except to put that into the ELIC estate

and have it paid out pursuant to the combination of the Insurance

Code and the rehab. plan. That would be done with notice to the

liquidation court, which is the Los Angeles County Superior Court.

Mr. OSE. All right, now we have invited a number of people here,

as we invited you. You all came; some didn’t. I will tell you I am

somewhat disappointed that those didn’t. Had they come and the

people would come, the person who was the elected Insurance Commissioner then, the Department of Justice, or the person representing ostensibly the French government, we would have asked them

a number of questions, such as:

How long does it usually take for the Department of Justice to

approve the request of a career prosecutor to move forward on a

case, and whether 2 years is an above-average length of time for

that or below average or an average average? Does the Department

of Justice take into account that statutes of limitations may run

out while it is pondering its decision? That is a very real concern.

Is it a normal activity for a foreign government to lobby the U.S.

Government on criminal cases pending before the Department, and

if so, what rules apply?

I hope to ask these questions at some point in the future, and

I know you guys can’t respond because you are not the subject of

the questions.

I appreciate the fact that you all came down here. We may very

well have additional hearings on this matter because there is a ton

of money involved and a ton of people, and they have just gotten

hammered. If somebody on the other side of this just wants to give

us our money back, then maybe we won’t have hearings, but we

are going to shine light on this until we get a satisfactory resolution.

We have the typical practice here at this committee of following

up with our witnesses with written questions. We are going to do

that. Given the passage of time, we are going to go ahead and end

this hearing, but we do have written questions we will forward to

you. We would appreciate timely responses. The record will stay

open for 2 weeks for that purpose.

With that, we are going to wrap up. Gentlemen, we thank you

very much. We thank you for coming. We appreciate your input.

This hearing is adjourned.

[Whereupon, at 2:05 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[The prepared statement of Hon. Henry A. Waxman, additional

information submitted for the record, and the complete set of exhibits referred to follow:]

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