Electronic copy available at: http://ssrn.

com/abstract=1669558
THE FUTURE OF DEATH FUTURES: WHY
VIATICAL SETTLEMENTS MUST BE
CLASSIFIED AS SECURITIES
Miriam Albert
Pace Law Review, Vol. 19, No. 3, Spring 1999
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=1669558
Electronic copy available at: http://ssrn.com/abstract=1669558
PACE
LAW REVIEW
. The Future of Death Futures:
Why Viatical Settlements Must
. Be Classified as Securities
Miriam R. Albert
VOLUME 19 SPRING 1999 NUMBER 3
Article
The Future of Death Futures: Why Viatical
Settlements Must Be Classified
as Securities
Miriam R. Albert*
Introduction
Less than two decades ago, AIDSl was virtually unknown
by most of the world's population. Today, many Americans
know of someone who is suffering from or who has succumbed to
AIDS. The total number of persons infected with mv is' enor­
mous
2
and.growing, albeit at a slower rate than in prioryears.
3
... Assistant Professor of Legal and Ethical Studies, Fordham University
Schools of Business; LL¥, New York University, 1997; JD and MBA,·Emory Uni­
versity, 1987; BA Tufts University, 1984. The Author would like to thank those
who-proVided. valuable assistance: Dan Berick, Mark Conrad, Dennis Corgill, Ken
Davis, John Gedid, Kevin Jackson, and Leo Orenstein .
. 1. According to the Center for Disease Control and Prevention. ("CDC"), ac­
quired immunodeficiency syndrome, or AIDS, is "a specific group of diseases or
conditions that are indicative of severe immunosuppression related to infection
with the human immunodeficiency virus, [H1V]." CENTERS FOR DISEASE CONTROL
AND PREvENTION,' lllV/AIDS SURVEILLANCE REPORT, YEAR END 1997 EDITION
(1997) [hereinafter CDC REPORT, 1997 EDITION].
2. From the first reported cases of AIDS in 1981 through December 31,1997,
more than 641,000 cases have been reported; the CDC estimates that over 259,000
persons have died of AIDS or .related causes between 1991 and 1996. Over 92,000
persons have been reported to the CDC with lllV infection without full-blown
AIDS. See id.
Through.1997, over 247,000 persons were living with AIDS. See id. The CDC
believes this figureunderrepresents the number ofpersons with lllV because most
lllV-infected persons have not yet progressed to full-blown AIDS, and many per­
sons infected with lllV have never been tested. See CENTERS FOR DIsEASE CON·
TROL AND PREVENTION, lllV/AIDS SURVEILLANCE REPORT, YEAR END 1996 EDITION
(1996) lhereina.fter CDC REPORT, 1996 EDITION].
345
346 PACE LAW REVIEW [Vol. 19:345
The expansion of the AIDS crisis affects more than just
those afflicted with the disease. Researchers, practitioners, and
other healthcare service providers are affected by increases in
both the number of AIDS patients and the treatment altema­
tivesavailable. The sheer number of persons infected, and the
dollar amounts involved in treating them,4 have resulted in the
creation of AIDS as a business,. encompassing both medical and
financial serviCes and innovations.
5
Despite recent treatment breakthroughs and the continued
hope researchers have for finding'a way to eradicate this deadly
3. From 1995 to 1996, for the first time in the AIDS pandemic, deaths among
persons reported with AIDS decreased by 25%. This decline was in large measure
. due to the increasing Use of combination antiretroviral therapy, including protease
inhibitors. See CDC REPoRT, 1997 EDITION, supra 1, at 5; see also infra note 6.
4. AIDS is a financially devastating diagnosis. Typically, with no income from
employment, AIDS patients must find money to fund any of the 'nnmerous avail­
able therapies to treat their. illness, ranging from the traditional {in a relative
sense, in.tliatAIDS is such a new disease that "traditional" therapies:may not even
be a few years old) to the experimental. AIDS patients also may need funds to pay
for costly home care; in addition to their other bills and living expenses. Insurance
coverage, to the eXtent is hy no means comprehensive. See Kathe- .
rine DePeri, Brokered Viatical Settlement Contracts Are Not Securities - Securities
& Exc1w.nge Commission v. Life Partners, Inc., 70 TEMP. L. REv. 857, 873 (1997).
A 1992 study: by the National Association of People With AIDS' ("NAPWA")
found that over 50% of AIDS patients surveyed lived on less than $12,000 annu­
ally. Over half of the survey respondents reported significant difficulties in provid­
ing for basic personal needs such as rent, food and medicines. See "HIV in
America: A Profile of the Challenges Facing Americans Living With HIV,"
NAPWA, Sept. 1992; see also Prepared text of William J. Freeman, Executive Di­
rector of the National Association of People AIDS, Attachment One-C to the
Minutes of Insurable Interest Working Group of the Life Insurance (A) Committee
of the National Association of Insurance Commissioners, Dec. 8, 1992, 1993-1
NAIC Proc. 779,
Predictions of the costs oftreating AIDS have grossly underestimated the ac­
tual dollar amounts. involved. See Karen A. Clifford & Russel P. Iuculano, AIDS
and Insurance: The Rationale for AIDS-Related Testing, 100 HARv. L. REv. 1806,
1807 (1987).
. AIDS treatment is very expensive. A 1992 study by the American Medical
Association found that HIV patients incur an average of $119,000 in medical ex­
penses from the time of infection with HIV until death from AIDS-related ill­
nesses. See Clifford Carlsen, AIDS Life Policy Purc1w.ser Seeks New Life from lPO,
S.F. Bus. TIMEs, Nov. 10, 1995, at 3. This figure pre-dates the costly new protease
inhibitors. See infra note 42.
5. Because AIDS is so expensive to treat, the huge number of AIDS patients
has affected the insurance industry as well. See Clifford & Iuculano, supra note 4,
at 1806.
1999] Tl
disease, there
continues to ('
cially. Attemp
devastation of
seek medical I
advances into
patients.
A develop:
atical settlemE
6. In the mic
AIDS involving
inhibitors.
[The researche
defeats the imI
now use three •
virus. The the
and over time t
mutant AIDS I
tem, and a perf
body is better
ments it has
ritonavir, and i
combination of
than just the u
David W. Sommer
and Insureds, J. E
ments have "alter
crease in the num
epidemic curves."
7. Asset-backc
sets. The assets a
principal payment
Field for Issuers, (
Asset-backed
purchasing the rig
of income-producir
tric bills, and futl
under life insuran·
pot! Legal Settlem
BOND WEEK, May
Tradeable Securl
www.nytimes.com:
ized by the right t
8. The term'"
charist or commUlJ
to the Romans, it
refer to the last rit
journey." See THE
L
[Vol. 19:345
more than just
actitioners, and
by increases in
Itment alterna­
Ifected, and the
resulted in the
)th medical and
d the continued
cate this deadly
lemic, deaths among
Tas in large measure
r, including protease
see also infra note 6.
with no income from
the numerous avail­
tional (in a relative
Irapiesmay not even
ay need funds to pay
3xpenses. Insurance
hensive; See Kathe­
'ecurities - Securities
:EN. 851, 813 (1991).
;hAIDS ("NAPWA")
than $12,OOOannu­
lifficulties in provid­
cines. See "HIV in
Living With HIV,"
eman, Executive Di­
:hment One-Cto the
(A) Committee
lec. 8, 1992, 1993-1
ierestimated the ac­
II P. Iuculano, AIDS
HARv. L. REV. 1806,
e American Medical
9,000 in medical. ex­
1m·
I New Life from IPO,
! costly new protease
rer of AIDS patients
:ulano, supra note 4,
1999] THE FUTURE OF DEATH FUTURES 347
disease, there is no cure for AIDS.s Thus, the AIDS pandemic
continues to devastate its victims, both physically and finan­
cially. Attempts to alleviate, or at least ameliorate, the physical
devastation of AIDS are made by the countless researchers who
seek medical advances and by the practitioners who put those
advances into effect through new treatment strategies for their
patients.
A developing form of asset-backed security,7 known as a vi­
atical settlement,8 represents one approach at ameliorating the
6. In the mid 1990s, researchers announced breakthrough tre.atments for
AIDS involving a combination antiretroviral therapy, including protease
inhibitors. .
[The researchers] broke new ground in the theory of how the AIDS virus
defeats the immune system in the body. Based on their theory, doctors can
now use three different types of drugs at the same time to defeat the AIDS
virus. The theory assumes the body is constantly fighting the AIDS virus
and over time the virus develops strains that the body cannot defeat. These
mutant AIDS strains then multiply and overcome the bOdy's defense sys­
tem, and.a person develops AIDS. By using a combination ofnew drugs, the
body is better able to defeat the AIDS virus. In some small scale experi­
ments it has been demonstrated that the combined use of saquinavir,
ritonavir, and indinavir can be effective in containing the AIDS virus. The
combination of these drugs with A'Zlf is hundreds of times more effective
than just the use of AZT, the most commonly used drug.
David W. Sonimer et al., Viatical Settlements: Perspectives ofInuestors, Regulators
and Insureds, J. SOC'Y C.L.U. & CHFC 54, 56-51 (Mar. 1991). These new treat­
ments have "altered the natural history of HIV infection, contributed to an in­
crease in the number of persons living with AIDS, and changed the shape of the
epidemic curves." CDC REPORT, 1997 EDITION, supra note 1, at 5.
1: Asset-backed securities are claims on cash flows from pools of similar as­
sets. The assets are packaged and sold to investors who receive the interest and
principal payments from these cash flows. See Asset-Backed Securities Is Booming
Field for Issuers, CARD NEWS, Apr. 1, 1996.
Asset-backed securities are increasingly popular today, with investors
purchasing the right to receive income streams from any number ofdifferent kinds
of income-producing assets,· ranging from lottery winnings, legal settlements, elec­
tric bills,· and future royalties on rock and roll songs to death benefits payable
under life insurance policies held by the terminally ill. See Douglas Brown, Jack­
pot! Legal Settlements, Lottery Winnings May Be Next in Line for Securitization,
BOND WEEK, May 20, 1996, at 1; see also Leslie Eaton, You Too Can Become a
Tradeable Security, Rated AAA (last modified June 1, 1998) <http://
www.nytimes.com>. David Bowie raised $55 million by selling bonds collateral­
ized by the right to receive future royalties on his songs. See id.
8. The term "viatical" comes from the Latin word "viaticum" which is the Eu­
charist or communion given to Christians who are dying or are in danger of death;
to the Romans, it meant money or provisions for a journey, but the term came to
refer to the last rites-something to sustain the deceased person on his or her "last
journey." See THE AMERICAN HERITAGE DICTIONARY OF THE AMERICAN LANGUAGE
348 PACE LAW REVIEW [Vol. 19:345
financially devastating aspects of AIDS.9 This specialized form
of receivable financing gives life insurance policyholders access
to death benefits under their policies that would be otherwise
unavailable to them during their lives.
In the typical viatical settlement, a terminally-ill policy­
holder, known as aviator, sells the right to receive the proceeds
of his or her life insurance policy to an investor. During his or
her lifetime, the policyholder is paid an estimation of the pres­
ent value of the death benefits under the policy, calculated
based on such factors as projected life expectancy, the face value
of the policy, and the cost of at least two years of future premi­
1988 (3d ed. 1996); see also David Jay Korn, Viaticals: When Sooner Is Better Than
Later, ACCT. TODAY, Jan. 19, 1998 (for a description of the viatication process).
9. Another vehicle to provide terminally-ill policyholders with access to life
insurance benefits while they are alive are "accelerated death benefit" ("ADB") pro­
visions in traditional insurance policies. The insurer guarantees the payment of
the policy face value upon the death of the insured, as long as the policy is then in
effect.. The insurer is under no obligation to advance any portion of the death bene­
fit to the insured in the absence of an ADB provision.
ADB provisions can be included in the initial policy, or can be added as riders
or attachments to new or existing policies. Unlike. viatical settlements, ADB provi­
sions typically provide that a portion of the face value benefit be retained as a
death benefit for the traditional beneficiary. An ADB provision typically pays a
smaller percentage of the face value of the policy than a viatical settlement and is
subject to more stringent requirements on availability, in terms of triggering con­
ditions. ADBs are typically only available to insured persons with life expectan­
cies of less than one year, whereas viatical settlements can be made with viators
with much longer life expectancies.
In an ADB provision, the issuing insurance company pays benefits directly to
the insured, unlike a viatical settlement where some third party advances funds to
the insured. Other differences between ADB provisions and viatical settlements
include: ADB payouts can be slow, while viatical settlements are typically paid
within a few weeks; ADB provisions are typically limited to universal and whole
life policies, while viatical settlements can be made on a much wider range of pol­
icy types; and insureds must deal exclusively with the issuing insurance company
with ADBs, while insureds can shop their policies to various viatical settlement
firms. See Sharon Crockett & Lynn Homa, Viatical Settlement Firms Look to
Securitize, STANDARD AND POOR's CREDITWEEK, Apr. 3, 1995, at 1; see also Abbie
Crites-Leoni & Angellee S. Chen, Money for Life- Regulating the Viatical Settle­
ment Industry, 18 J. LEG. MED. 63, 80-81 (1997); see also Sheila D. Foster, Viatical
Settlement: A New Employee Benefit, MANAGEMENT ACCT., May 1998, at 55. See,
e.g., Alexander D. Eremia, Viatical Settlement and Accelerated Death Benefit Law:
Helping Terminal, but Not Chronically III Patients, 1 DEPAUL J. HEALTH CARE L.
773, 784 (1997), for a comparison of ABD provisions and viatical settlements.
Additional vehicles that provide access to otherwise unavailable assets include
reverse mortgages and sale-leaseback arrangements coupled with a life estate on
residential properties. See id. at 774.
1999J T
urns, which,
comes the re
waiver of pre;
The inve:
benefits ultim
the discounte
turn depends
a lesser exten
is notified anI
Viatical
pose. Howevc
terminally ill
receive life ir
sured, viatica
Because viati
vestment com
eral securiti€
gather inforn
ment decisior
lions and rerr
have only a (
statements or
ter of
ous threat of
and in the
stability of th
cial innovatio
The typi
wherein some
icy from the tl
the new OwnE
10. A disabili
policy and is typi
Osborne, Rapidl)
REV. 471, 489-90
11. Commen:
cations in the
ment of a policy
settlement. See i
[Vol. 19:345
1999] THE FUTURE OF DEATH FUTURES 349
tis specialized form
,olicyholders access
'1ould be otherwise
:rminally-ill policy­
eceive the proceeds
:;tor. During his or
mation of the pres­
! policy, calculated
mcy, the face value
irS of future premi­
:en Sooner Is Better Than
Ie viatication process).
llders with access to life
,ath benefit" ("ADB") pro­
arantees the payment of
tg as the policy is then in
;>ortion ofthe death bene-
or can be added as riders
I settlements, ADB provi­
benefit be retained as a
,rovision typically pays a
viatical settlement and is
1 terms of triggering con­
,rsons with life expectan­
::an be made with viators
7 pays benefits directly to
d party advances funds to
and viatical settlements
,ments are typically paid
d to universal and whole
much wider range of pol­
suing insurance company
mous viaticalsettlement
:ettlement Firms Look to
L995, at 1; see also Abbie
lating the Viatical Settle­
Sheila D. Foster, Viatical
T., May 1998, at 55. See,
Death Benefit Law:
J. HEALTH CARE L.
I viatical settlements.
mavailable assets include
lpled with a life estate on
urns, which, under most viatical settlement agreements, be­
comes the responsibility of the investor, absent a disability
waiver of premiurns.lO
The investor's return is the difference between the death
benefits ultimately paid, presumably the policy's face value, and
the discounted amount paid to the policyholder. Thus, the re­
turn depends primarily on the date of the viator's death, and, to
a lesser extent, on the speed with which the insurance company
is notified and ultimately pays out on the policy.
Viatical settlements are legal and serve a benevolent pur­
pose. However, beyond the altruism of providing funds to the
terminally ill, and the legalities of simply selling the right to
receive life insurance proceeds to someone other than the in­
sured, viatical settlements pose other legal and ethical issues.l1
Because viatical settlements have not yet been classified as in­
vestment contracts, and thus securities for purposes of the fed­
eral securities laws, investors in viatical settlements must
gather information themselves on which to base their invest­
ment decisions. Furthermore, investors are denied the protec-:
'tions and remedies provided by the federal securities laws,. and
have only a comrilon law fraud remedy to redress misleading
statements or omissions by viatical settlement firms. The spec­
ter of conflicts of interest, confidentiality problems, and the seri­
ous threat of fraud ·loomsover the viatical settlement industry;
and in the absence of appropriate regulation, threatens the very
stability of this compassionate and increasingly popular finan­
cial innovation.
The typical viatical settlement has a purchase side,
wherein some person or entity purchases the life-insurance pol­
icy from the terminally-ill policyholder, and a sale'side, wherein
the new owner sells either an entire policy,or fractional inter­
10. A disability waiver eliminates the need to pay premiums on the insurance
policy and is typically renewable as long as the disability exists. See Malcolm E.
Osborne, Rapidly Developing Law on Viatical Settlements, 31 WAKE FOREST L.
REV. 471,489-90 (1996).
11. Commentators have raised concerns about insurable interests and compli­
cations in the assignment· of policies, and about the effect of an absolute assign­
ment of a policy on a waiver of premium clause in connection with a viatical
settlement. See id. at 485-90.
350 PACE LAW REVIEW [Vol. 19:345
ests ina policy or a pool of policies, to investors.12 The initial
purchase of life· insurance policies by viatical settlement firms
from terminally-ill viators is subject to some regulation at the
state level, typically by a state's insurance department.
Twenty-four states regulate the purchase side of viatical settle­
ments; another eight states are considering such legislation.
13
12. There are three basic scenarios for viatical settlement transactions. First,
the viator may sell his or her policy directly to an investor who holds the policy
until the viator dies and then collects the death benefits. Second, a viator may use
a broker who matches up viators and m.vestors for a fee, and never assumes an
ownership interest in the policy. Third, the viator may sell his policy to a finn who
then sells fractional interests in such policy, or pools the policy with other policies
and sells fractional interests in the pooL See Elizabeth L. Deeley, Viatical Settle­
ments Are Not Securities: Is It Law or Sympathy?, 66 GEO. WASH. L. REV. 382, 386
(1998).
This Article focuses· on the third scenario, as that is the only scenario that
arguably results in the sale ofa security for purposes of the federal securities laws,
triggering the. need for the protections thereunder. In SEC u. Life Partners, Inc.,
87 F.3d 536 (D.C. Cir. 1996), the D.C. Circuit Court ofAppeals considered the sta­
tus offractional interests in viatical settlements as securities. The court obliquely
eliminated. theflrsttwo scenarios as constituting securities:
[PJresumably a finn might also buy insurance policies for its own account or
act as an agent, matching a single investor with a terminally ill insured,
without runnfug afoul of the securities laws.
SEC v. Life Partners, Inc., 87 F.3d 536, 539 (D.C. Cir. 1996).
13. Arkansas, .1997 Ark. Acts 490, approved by the G1>vernor Mar. 13, 1997;
California, CAL.ms. CODE §§ 10113.1 to .2 (Deering 1996); Connecticut, 1997
CONN. ACTs·202 (Reg. Sess.), approved June 24, 1997; Florida, FLA. STAT. 626.991
to .993 (1996);lllinois, 215 Iu.. COMPo STAT. 158/1-95 (West 1996), approved June
21,1996); Indiana, INn. CODE §§ 27-8-19.8-27-8-19.8-26 (1994); Kansas, KAN. STAT.
ANN. §§ 40-2,140 -152 (1992); Kentucky, 1998 Regular Session, H.B. 414, ap­
proved Apr. 7, 1998; Maine, ME. REV. STAT. ANN. tit. 24-A, §§ 6801 to 16, (West
1997) enacted June 10, 1997; Michigan, MICH. STAT. ANN. §§ 24.569(1)-(8) (Law.
Co-op. 1996); Minnesota, MINN. STAT. §§ 60A.961 to .974 (1996); Montana, 1997
Mont. Laws 298, approved Apr. 18, 1997; New Mexico, N.M. STAT. ANN §§ 59A-20­
34-36 (Michie 1989); New York, N.Y. INS. LAw §§ 7801 - 10 (Consol. 1993); North
Carolina, N.C. GEN. STAT. § 58-58-42 (1995); North Dakota, N.D. CENT. CODE
§§ 26.1-33.1-01-26.1-33.1-10 (1995); Oklahoma,S. 791, 46th Leg., 2d Sess. (Okla.
1997); Oregon, 1995 Or. Laws 342; Texas, TEx. ms. CODE ANN. § 3.50-6A (West
1993); Utah, UTAH CODE ANN. § 3IA-21-104 (1994); Vermont, VT. STAT. ANN. tit. 8,
§§ 3826-3832 (1994); Virginia, 1997 Va. Acts ch. 814, approved Apr. 2,1997; Wash­
ingt.on, WASH. REV. CODE §§ 18.102.005 to .001 (1995); Wisconsin, WIS. S'I'A'l'.
§ 632.68 (1996).
In addition, as of October 1, 1998, eight states were considering some form of
regulation for the viatical settlement industry: Delaware, S.B. 39, 139th Gen. A
(DeL 1997); Hawaii, H.B. 580, 20th State Leg. (Haw. 1991); Iowa, S.B. 354, 78th
Gen. A 1st Sess. (Iowa 1997); Massachusetts, H.B. 27, 181st Gen. Ct. (Mass.
1997); Missouri, H.B. 1019, 90th Gen. A (Mo. 1998); New Hampshire, H.B. 263,
1997 Reg. Sess. (N.H. 1997); New Jersey, AB. 2712, 208th Leg. (N.J. 1997); Ohio,
1999]
These regul:
ments for po
ing of viatic
the purchasl
quent sales
subject to ad
ities laws.
I0
The sale
currently nc
state or fede
curities law!!
formation
decisions.17
is high, and
cause fractio
vestment co
protection of
Act")18 and .
("Exchange .
beneficiarieE
protections I
H.B. 12, 122nd
. 1997); and Sout
14. The cov
tors and is bey()
ateness of thesE
15. See Det
16. Certain
interests in viat
which specifical
ARIz. REV. STA1
which specifi.cal
1999 S.D. SB 4:
tration for viati
regulating insu
change Commis
in viatical settl!
tual Benefits Cl
settlements.
17. See inf
ground and goa
18. 15 U.S.
19. 15 U.S.
"Securities Law
curities Exchan
351
[Vol. 19:345
1999] THE FUTURE OF DEATH FUTURES
The initial
:al settlement firms
Le regulation at the
rance department.
de of viatical settle­
such legislation.
13
ment transactions. First,
ltor who holds the policy
Second, a viator may nse
:l, and never assnmes an
II his policy.to a firm who
policy with other policies
Deeley, Viatit;al Settle·
I. WASH. L. REV. 382, 386
is the only scenario that
le federal securities laws,
f!:C u. Life Partners, Inc.,
,peals considered the sta­
:ties. The court obliquely
ies:
for its own account or
erminally ill insured,
:J96).
Governor Mar. 13, 1997;
. 996); Connecticut,.1997
lrida, FLA. STAT. 626.991
1996), approved June
994); Kansas, KIm. STA'I:.
• Session, RB. 414,· ap­
-A, §§ 6801 to 16; (West
N. §§ 24.569(1)-(8) (Law.
1 (1996); Montana, 1997
M. STAT. ANN §§ 59A-20­
10 (ConSoi. 1993); North
ikota, N.D. CENT. CODE
lth Leg., 2d Sess. (Okla.
)E ANN. § 3.50-6A (West
mt, VT. STAT. ANN. tit. 8,
aved Apr. 2, 1997; Wash­
:Wisoonsin, WIS. STAT.
:onsideringsome. form of
,S.B. 39, 189thGen. .A
H); Iowa, S.B. 354, 78th
• 181st Gen. Ct. (Mass.
w Hampshire, H:.B. 263,
b. Leg. (N.J. 1997); Ohio,
These regulations cover, among other topics, minimum pay­
ments for policies, pre-signing disclosures to viators, and licens­
ing of viatical settlement firms.14 These regulations focus on
the purchase of the policy from the viator, and not on subse­
quent sales to investors, which this Article argues should be
subject to additional regulation through state and federal secur­
ities laws.
15
The sale of fractional interests in viatical settlements is
currently not subject to meaningful regulation at either the
state or federalieveU
6
The legislative intent ofthe federal se­
curities laws was to prevent fraud through the disclosure· of in­
formation necessary to make meaningful investment
decisions.1,7 The potential for fraud in this develo'pingindustry
is high, and there is no mandatory disclosure to investors.. Be­
cause fractional interests in life insurance policies constitute in­
vestment contracts, investors therein should be granted the
protection of theSecurities Act of 1933, as amended {"Securities
Act")18 and the Securities Exchange Act of 1934, as amended
{"Exchange Act").19 The viators themselves would be indirect
beneficiaries of this change. In the absence of the necessary
protections provided by the Securities Laws, investors may ulti-
H.B. 12, 122nd Gen .. A (Ohio 1997); Pennsylvania, H.B. 1127, .183rd Gen. A (Pa.
1997); and South Carolina, H.B. 3542, 112th Sess. of the Gen: A. (S.C. 1997).
14. The coverage of the existing and proposed viaticallegislation protects via­
tors and is beyond the scope of this Article. For a full discnssion of the appropri­
ateness of these legislative initiatives, see Osborn, supra note 10 .
15. See Deeley, supra note 12, at 382.
16. Certain states are starting to consider legislation to regulate fractional
interests in viatical settlements as securities. Arizona recently enacted a statute,
which specifically includes viatical settlements in the definition. of security. See
ARIz. REV. STAT. § 44-1801(23) (1998). South Dakota recently enacteda statute
which specifically includes viatical settlements in the definition of security. See
1999 S.D. SB 48 (1999). However, the statnte provides an exemption from regis­
tration for viatical settlements offered by companies in compliance with Title 58,
regulating- insurance in South Dakota. See id. Further, the Securities and Ex­
change Commission is actively involved in the effort to regulate fractional. interests
in viatical settlements as securities. See infra Part IV for a discnssion of the Mu­
tual Benefits case and states' efforts to regulate fractional interests in viatical
settlements.
17. See infra notes 136-60 and accompanying text for a discnssion of back­
ground and goals of the federal securities laws.
18. 15 U.S.C. §§ 77a-h (1994) .
19. 15 U.S.C. §§ 78a-h (1994). For purposes of this Article, the nomenclature
"Securities Laws" means both the Securities Act of 1933, as amended, and the Se­
curities Exchange Act of 1934, as amended.
352 PACE LAW REVIEW [Vol. 19:345
mately decide not to invest in viatical settlements, taking with
them the life blood of this industry.20 The Securities .and Ex­
change Commission ("SEC") was unsuccessful in its first bid to
classify fractional interests in viatical settlements· as invest­
ment contracts under the Securities Act, in the recent case of
SEC u. Life Partners, Inc.
21
Despite its setback inLife.Partners,
the SEC has not given up its efforts to regulate fractional· inter­
ests in viatical settlements.
22
Some states are also considering
the classification of certain forms of viatical settlements as
securities.
23
Part I of this Article presents an overview of the evolution
of the viaticalsettlement industry, as it responds to changing
life expectancies of AIDS patients resulting from new drug
treatments and to viatical settlement firms' attempts to diver­
sify byviaticating policies of patients suffering from illnesses
other than AIDS.
Part IIof this Article raises the ethical issues imbedded in
viatjcal settlement transactions, including conflicts of interest,
cooodentiaJity concerns, and fraud, all of which should be dis­
closed as risk factors to investors iIi viatical settlements.
Part TIl of this Article considers the classification of viatical
settlements as securities for purposes of the Securities. Laws.
Part III examines the legislative history and case law interpret­
ing the Securities Laws, critiquing the holding in Life Partners
. that fractional interests in pools of viatical settlements do. not
constitute securities as defined in the Securities Act and its in­
terpretive case law. Part III concludes that fractional interests
20. The dollar amount of policies viaticated has increased continually since
the first viatica! settlements in the late 1980s. See infra Part I for a discussion of
the viatica! settlement industry. Although there are investors who are presently
willing to do without the protections of the Securities Laws, if the fraud in this
industry worsens, such investors may elect to put their investment funds else­
where. Offering investors the protection of the Securities Laws may serve to keep
such investors in the viatica! settlement market, and may attract new investors,
making the viatica! settlemeut market broader and more liquid.
21. SEC v. Life Partners, Inc., 87 F.3d 536 (D.C. Cir. 1996), reh'g denied, 102
F.3d 587 (D.C. Cir. 1996); see infra PartIII for a discussion of this litigation.
22. The SEC does not take the position that all viatica! settlements are securi­
ties; it focuses on the sale of fractional interests in policies to multiple investors.
See supra note 12 for a description of the three scenarios for viatica! settlements;
see also infra note 130; infra Part IV for a discussion of the Mutual Benefits case.
23. See infra Part IV for a discussion of states' efforts to regUlate fractional
interests in viatica! settlements.
1999] T
in viatical set
of the Securit
in order to fu
Part IV (
dustry after I
to classify ce
and the SEC'
tion denied b:
I: 'I
Viatical
since their int
a response to
try is estimat
billion by the
Theviati
change dram:
large extent,
24. There ar
first viatica! settl
Albuquerque, Ne
person to explore
show featuring a
only months to li'
he tried unsuccel
Mr. Worley
participants abol
then bought his 1
Bruer, Financial
Others clain:
nancial plauner,
to help some of J
POST, Nov. 17, 1!
25. Because
neither mandate
number of policil
available estimal
May illtimately ,
1995, at C1; see I
Nov. 5, 1996.
26.0necau
bility and ACCOUI
as amended in s'
viatica! settleme
conferred tax-fre
i .
[Vol. 19:345
1999] THE FUTURE OF DEATH FUTURES 353
~ m e n t s .. taking with
Securities and Ex­
ful in its first bid to
tlements· as invest­
1 the recent case of
lck in Life Partners,
ate fractional inter­
ire also considering
lcal settlements as
ew of the evolution
3ponds to changing
o.g from new drug
attempts to diver­
ring from illnesses
issues imbedded in
onflicts of interest,
mch should be dis-
settlements.
Imcation of viatical
e Securities Laws.
case law interpret­
o.g in Life Partners
3ettlements do not
ties Act and its in­
ractional interests
·eased continually since
'art I for a discussion of
stars who are presently
ws, if the fraud in this
investment funds else­
:.s.ws may serve to keep
r attract new investors
liquid. '
1996), reh'g denied, 102
In of this litigation.
settlements are securi­
s to multiple investors.
or viatical settlements·
e Mutual Benefits case:
3 to regulate fractional
in viatical settlements fall within both the spirit and the letter
of the Securities Laws, and thus should be considered securities
in order to further the legislative goals of the Securities Laws.
Part IV of this Article explores the viatical settlement in­
dustry after Life Partners, focusing on the efforts of some states
to classify certain forms of viatical settlements as securities,
and the SEC's continued efforts to achieve the investor protec­
tion denied by the court in Life Partners.
I: The Changing Face of the Viatical Market
Viatical settlements have become increasingly popular
since their inception in the late 1980s,24 developing primarily as
a response to the AIDS crisis. The annual volume of the indus­
try is estimated at over $500 million, with estimates of up to $1
billion by the year 2000.
25
The viatical settlement industry has continued to grow and
change dramatically over the first decade of its existence.
26
To a
large extent, the viatical market was, and continues to be, de­
24. There are two competing theories concerning who actually Completed the
first viatical settlement in the late 1980s. Rob Worley, of Living Benefits Inc., an
Albuquerque, New Mexico viatical settlement firm, has been credited as the first
person to explore viatical settlements. Worley was listening to a radio call-in talk
show featuring a 36-year-old caller with no family who had learned that he had
only months to live. The caller's only asset was a large life insurance policy, which
he tried unsuccessfully to sell to insurance companies and banks.
Mr. Worley researched the relevant laws and surveyed insurance industry
participants about available alternatives for the terminally-ill policyholders, and
then bought his first policy, through Living Benefits, in April 1989. See Nancy L.
Bruer, Financial Help for the Terminally Ill, PERSONNEL J., Jan. 1993, at 78.
Others claim that viatical settlements were developed by an HIV-positive fi­
nancial planner, David Petersen, who started the first viatical settlement company
to help some of his dying friends. See Arthur Allen, As They Lay Dying, WASH.
POST, Nov. 17, 1996, at W13.
25. Because annual reporting requirements by viatical settlement firms are
neither mandatory nor uniform, a verifiable estimate of the dollar volume or
number of policies viaticated is not yet possible. There is a wide disparity in the
available estimates. See Albert B. Crenshaw, Tackling an Issue ofAgony; Ruling
May Ultimately Aid the Business of Buying Death Benefits, WASH. POST, Sept. 1,
1995, at Cl; see also Viatical Association Drafts Its Own Model Laws, BESTWlRE,
Nov. 5, 1996.
26. One catalyst for growth was the enactment of the Health Insurance Porta­
bility and Accountability Act of 1996. Pub. L. No. 104-191, 110 Stat. 1936 (codified
as amended in scattered sections of 42 U.S.C). The statute makes proceeds from
viatical settlements exempt from federal income taxes in most cases. The statute .
conferred tax-free status on viatical settlements paid after DecembeI' 31, 1996 to
1
354 PACE LAW REVIEW [VoL 19:345
pendent on AIDS and HIV-infected policyholders to supply the
raw materials for viatication - life insurance policies, in good.
standing, held for more than two years (so any applicable con­
testibility period has expired).27 Thus, the viatical industry is
. very sensitive to factors affecting life expectancies of viators,
such as new treatments for various illnesses, primarily those
associated With HIV and AIDS, that may affect the purchase
price paid for policies and the ultimate return to investors.28
When researchers at the August 1996 World AIDS Confer­
ence in Vancouver announced that protease inhibitors could
prolong the lives of some AIDS patients,29 the viatical settle­
viators with a life expectancy of less than two years by a viatical settlement firm
licensed in the state where the viator lives.
There may be additional taxes on viatical settlement proceeds at the state and
local levels. To achieve consistency with this new federal legislation. other states
are eXpected to adopt legislation making viatical settlements tax free. New York
and California confer tax-free treatment on the proceeds of viatical settlements.
However, most states still follow the old federal rule, holding proceeds of viatical
settlements as taxable to the extent the proceeds exceed the viator's tax basis in
the policy. See Sommer et al., supra note 6, at 59.
For a discussion of the general tax issues arising in connection with viatical
settlements, see Osborn, supra note 10; see also Denise M. Schultz, Comment,An­
gels of Mercy or Greedy Capitalists? Buying Life Insurance Policies from the Ter­
minally Ill, 24 PF;pP. L. REV. 99, 103-106 (1996). For a discussion of the tax
treatments ofviatical settlements as compared to ABDs, see Eremia, supra note 9,
at 787-91.
27. See infra Part II for a discussion of incontestability clauses.
28. See supra note 6.
29. Protease inhibitors have affected more than just the viatical settlement
market. Because AIDS is no longer considered a death sentence, some insurance
companies are now eXperimenting with selling life insurance policies to HIV-in­
footed applicants.
In April, 1997, Guarantee Trust Life Insurance Co., of Glenville, IL, a firm
specializing ininsuring impaired individuals, began offering whole life coverage to
some HIV-positive applicants. The president of Guarantee Trust said the com­
pany undertook this change because "'we believe many otherwise healthy HIV-pos­
itive individuals are more appropriately viewed as having a treatable chronic
illness rather than a terminal disease." See Greg Lugliani, Body Positive July
1997 (visited Mar. 22, 1999) <http://www.thebody.comlbpljuly97/news.html#life>.
These policies are much more expensive than typical life insurance, to compensate
the insurer for the additional risk of the insured's HIV-positive status. See id.; see
also Sommer et al, supra note 6, at 55.
The coverage was made available to certain people age 20 to 49 with HIV, but
not full-blown AIDS. See Insurer Flooded With Queries About HN Life Policy,
BESTWlRE, Apr. 23, 1997. The insurance is not available to patients who con­
tracted HIV through the injection of drugs. The company fears that drug use "cre­
ates incalculable risks for the company, including the chance that drug users won't
take their health-sustaining medications." Lugliani, supra.
I
I
!
,
I
!
i
I
I
~
i
I
,
i
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t
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,
~
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1999]
ment industr
eagerly antic:
but had othe2
GuaranteeT
after . months. of 1
CDC, insurance
views with local .
perts, andconsu
work with them.
NAT'L UNDERWRf
This prograr
the number of pc
cal settlement in
Trust policyhold,
discussion of inc.
30. See Betl
vivors Alive, Wei
not all necessari
are eXpensive, 81
The ironyis that
a less attractive·
increased life ex:
Sommer et al,st.
31. While n(
unthinkable tha:
More Disappoint
signing Destiny:
Coaster, HARTFo:
public perceptiOI
interest in actw:
Among HN Pan
32. Onecasl
nity Partners, a
Dignity Partners
Dignity Partnen
cated policies,ru
offering. See Iro;
set Securitizan01
Mar. 2, 1995. S
notes an "A" rati
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ment deals in N·
In complyin;
nity listed as a I
the developm
illnesses (inel
the life eXpe(
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[Vol. 19:345
olders to supply the
:lCe policies, in good
any applicable con­
viatical industry is
dancies of viators
,
,es, primarily those
affect the purchase
lrI1 to investors.28
Vorld AIDS Confer­
se inhibitors could
the viatica! settle­
viatical settlement firm
Jroceeds at the state and
legislation, other states
mts tax free. New York
of viatical settlements.
:ling proceeds of viatical
the viator's tax basis in
connection with viatical
Schultz, Comment, An­
Policies from the Ter­
1 discussion of the tax
Eremia, supra note 9,
ty clauses.
. the viatical settlement
l.tence, some insurance
nce policies to HIV-in­
)f Glenville, IL, a firm
g whole life coverage to
Trust said the com­
rwise healthy HIV-pos­
Ig a treatable chronic
i, Body Positive - July
uly97/news.html#life> .
:urance, to compensate
;ive status. See id.; see
20 to 49 with HIV, but
.bout HlV Life Policy,
to patients who con­
ll"S that drug use "cre­
. that drug users won't
1999] THE FUTURE OF DEATH FUTURES 355
ment industry was thrown into a state offlux.
30
This news was
eagerly anticipated by AIDS and HIV patients and advocates,31
but had other implications for some viatica! settlement firmS.32
Guarantee Trust decided to insure the lives of certain HIV-positive applicants
after months of research and developmental work, including studying data from
CDC, insurance industry mortality tables, information from its reinsurer, inter­
views with local doctors treating HIV-infected patients and with national HIV ex­
perts, and consultations with people in the HIV community and consultants who
work with them. See Linda Koco, Guarantee Trust Looks at Applicants with HlV,
NATL UNDERWRITER, Apr. 21, 1997, at 13.
This program has significance for the insurance industry, and, depending on
the number of policies issues to HIV-positive applicants, may also affect the viati­
cal settlement industry; after the incontestability period expires, these Guarantee
Trust policyholders may seek to viaticate their policies. See infra Part II for a
discussion of incontestability clauses.
30. See Beth Ashley, Changes Prove Fatal for Some Viatical Companies; Sur­
vivors Alive,· Well, GANNET NEWS SERVICE, Feb. 18, 1998, at ARC. The news was
not all necessarily bad for the viatical·settlementindustry. The new treatments
are expensive, and thus wo.uld fuel demand for viatical settlements from·viators.
The irony is that these costly medical advances arguably make viatical settlements
a less attractive investment, or at least subject to a deeper discount, based on the
increased life expectancies of viators availing themselves of the treatments. See
Sommer et al, supra note 6.
31. While no one was claiming a cure for AIDS, the idea of a cure seemed less
unthlDkable than ever before. See Lawrence K Altman, With AIDS Advances,
More Disappointment, N.Y. TIMEs, Jan. 19, 1997, at 14; see alSQ Joel Lang, Rede­
signing Destiny: New Drugs Have Added Ups and Downs to the AIDS Roller
Coaster, HARTFORD COURANT, Mar. 30, 1997, at 10. AIDS activists worried that a
public perception that AIDS was almost curable would dry up funding and public
interest in actually achieving a cure. See Bob Condor, New Drugs Kindle Hope
Among HlV Patients, Cm. TRIB., Apr. 13, 1997, at 1.
32. One casualty of the new protease inhibitors was San Francisco-based Dig­
nity Partners, a viatical settlement company that was once a media darling; See
Dignity Partners Announces Second Quarter Earnings, Bus. WIRE, Aug. 14, 1996.
Dignity Partners was the first firm to sell notes securitizing the proceeds of viati­
cated policies, and the first viatical settlement firm to sell shares in a registered
offering. See Ironwood Capital and Dignity Partners Completes the First Ever As­
set Securitization of Viatical Settlements in the.Amount of$35 Million, Bus. WIRE,
Mar. 2, 1995. Standard. & Poor's gave the 1995 public offering of $35.million of
notes an "A"rating,.and as a reflection of the market'soptiniism about the future
of the viatical settlement industry, published new rating criteria for viatical settle­
ment deals in November, 1995. See id.
In complying with its disclosure under the Securities Laws, Dig­
nity listed as a risk factor in its prospectus for the initial public offering that:
the development of a cure or vaccine against. diseases and other terminal
illnesses (including AIDS) or the development ofa treatment which extends
the life expectancy of individuals with such illnesses could delay substan­
tially the collection of the face value of policies purchased by the company...
Any such delay could materially reduce the company's actual yield on its
portfolio.
356 PACE LAW REVIEW [VoL 19:345
Carlsen, supra note 4, at 3.
Dignity had been attempting to diversify its portfolio, hoping to viaticate poli­
cies from AIDS patients with life expectancies in excess of 24 months, and policies
from patients with other terminal illnesses. See Anne Colden, Dignity Partners'
Future May Be Murky as AIDS Mkt. Shifts, Dow JONES NEWS SERVICE, July 29,
1996. However, in light of the reports from the Vancouver World AIDS Confer­
ence in 1996, Dignity instead announced that because over 95% of its viatication
business had been with AIDS- and HIV-infected viators, it would temporarily
cease processing any new applications from that population. See Despite Win Over
SEC, Viaticals' Profits Face Threat, BESTWlRE, July 19, 1996 [hereinafter Profits
Face Threatl.
According to Dignity, the medical developments announced at the conference
were welcome news for many, but, if the treatments prove to be effective in the
long term, Dignity's results would be adversely affected. Following this announce­
ment, Dignity's stock dropped by 77% in one day. See Colden, supra . .Dignity be­
gan selling off its policies and repurchasing its shares to correct what it perceived
as an overreaction by the market to its announcement. &e Dignity Partners An­
nounces Share Repurchase·Program, Bus. WIRE, Oct. 18, 1996.
Life Partners called Dignity Partners "an insignificant player in the viatical
market" and said that Dignity was using the new treatments for AIDS as a "poor
excuse to get out of the market." Profits Face Threat, supra. .
Dignity later decided to cease its viatical settlement business and to sell off its
non-AIDS policielil.
During the third quarter of 1996, the company concluded that the efficacY of
the treatments reported at the AIDS Conference and substantially reported
treatments increased the risks of purchasing and holdfug policies insuring
the lives of individuals diagnosed· with HIV or AIDS, especially those with
longer life expectancies. The company also reported that it does not believe
it is viable to continue to operate a viatical settlement business solely for
non-AIDS policies while a market for non-AIDS policies develops, ifit devel­
ops at all As a result, the company reported that the board of directors had
recently decided to cease the company's viatical settlement business and ap­
proved the sale of the company's non-AIDS policies.
Dignity Partners Announces Earnings, Sale of Policies, Sale of Equity Investment
and Cessation of Via tical Settlement Business, Bus. WIRE, Mar. 31,1997, at 1.
Other firms were slowly and less publicly undertaking the same course of ac­
tion as Dignity - weaning their portfolios from an almost exclusive reliance on
AIDS- and HIV-infected policyholders, and seeking out policYholders suffering
from other terminal illnesses. See David W. Dunlap, AIDS Drugs Alter an Indus­
try's Math: Recalculating Death-Benefit Deals, N.Y. TIMEs, July 30, 1996, at D1.
Fearful of a mass exodus from this blossoming industry, the National Viatical
Aslilociation ("NVA"), an induliltry trade group, iIiIsued its own prelillil release entitled
"Protease Inhibitors Are Not Inhibiting All Viatical Settlement Firms." The re­
lease reiterated remarks of some lilpeakers at the World AIDS Conference that the
new treatments were not a cure, finil;hing up with a pledge to continue to provide
AIDS patients with viatication opportunities "as part of a liIeries of viable financial
options, which can offer fiscal dignity during the most trying times." See Press
Release of National Viatical Association, July 25, 1996.
1999]
As the
from which.
ical market
shifted. from
eludes polic:
such as AlzI
in some cas
result of the
the life expe
thecorrespc
cating polici
dustry parti
33. See Alt
34. The inf
by the sobering
Geneva. The p ~
an. undetectable
simply hiding, '
Kim Roller, TwE
DRUG STORE NJ
Thus, whitt
tients had a ch
market, the ne....
yet. The virus :
back. One clini,
virus after 48 w
return. See Ne
Sept. 3, 1996, a
35. See Ere
ical Firms Fighi
at 69.
A program
70, toviaticate 1
Inc., expects to
relatively healtl
ing, N.Y. TIMEE
InclUlk New Fi;
Elderly Market·
Adds Seniors, I
UtiLe 8.
Accordingt
big market for v
chronic illnesse:
to seniors age ~
See Viatical Set
MATURING M.AR
36. See En
v
trying tim'e8." See Press MATURING MA.rumTPLACE, Mar. 11, 1997, at 1.
36. See Eremia, supra note 9, at 786.
[Vol. 19:345 1999] THE FUTURE OF DEATH FUTURES 357
)lio, hoping to viaticate poli­
IS of 24 months, and policies
'1
,e Colden, Dignity Partners'
lE8 NEWS SERVICE, July 29,
::ouver World AIDS Confer­
lover 95% of its viatication
l ~ r s , it would temporarily
ltiOU. See Despite Win Over
:t, 1996 Ihereinafter Profits
nnounced at the conference
prove to be effective in the.
L Following this announce­
Colden, supra. Dignity be­
&0 correct what it perceived
• See Dignity Partners An­
.8,1996.
icant player in the viatical
ments, for AIDS as a "poor
lJupra.
t business and to sell off its
lc;led that the efficacy of
I substantiallyTeported
llding policies insuring
I, especially those with
that it does not believe
.entbusiness solely for
ies develops, ifitdevel­
I board of directors had
ment business and ap-
Sale of Equity Investment
IE, Mar. 31, 1997, at 1.
:ng ,the same course of ac­
ltistexclusivereliance on
It policyholders suffering
OS Drugs Alter an Indus­
~ S . July 30, 1996, at Dl.
try, the National Viatical
rwn press release entitled
;tlement Rirms." The re­
UDS Confel'ence that the
Ige to continue to provide
l series of viable financial
As the perception of AIDS began to shift from a disease
from which one dies to a disease with which one lives,33 the viat­
ical market responded.
34
The pool of selling policyholders has
shifted from solely AIDS and HIV-infected persons, and now in­
cludes policyholders suffering from a wide range of illnesses,
such as Alzheimer's disease, heart disease, stroke, cancer, and,
in some cases, just old age.
35
This shift is, at least in part, a
result of the changes in the treatments for AIDS that may alter
the life expectancy of some AIDS and HIV-infected persons, and
the corresponding recognition of the need to diversify by viati­
eating policies of patients with other terminal illnesses.
36
In­
dustry participants also credit the changing composition of the
33. See Altman, supra note 31, at 14.
34. The infectious optimism of the 1996 World AIDS Conference was muted
by the sobering and tempered reports from the 1998 World AIDS Conference in
Geneva. The participants cautioned that simply lowering a patient's viral load to
an undetectable level did not mean that the disease was gone. Instead, it was
simplyhiding, with the potential to come back at some future point in time. See
Kim Roller, Twelfth World AIDS Conference; Experts Examine Latest HIV Options,
DRUG STORE NEWS, Aug. 24, 1998, at CP54.
Thus, while protease inhibitors and their encouraging, results for AIDS pa­
tients had a chilling effect on at least part of the burgeoning viatical settlement
market, the new therapies are not universally effective, and no one has been cured
yet. The virus remains dormant in cells, with the ever present potential to come
back. One clinical study found that 86% of patients had no detectal>le trace of the
virus after 48 weeks on protease inhibitors, while the remaining 14% saw the virus
return. See New AIDS Drugs Restoring Vitality, SAN ANToNIO ExPRESS-NEWS,
Sept. 3, 1996, at 10.
35. See Eremia, supra note 9, at 785-87; see also Charles E. Schmidt, Jr., Viat­
icalFirms Fighting Outlaw Image, BEST'S REV. - LIFE-HEALTH INS. ED., Mar. 1996,
at 69.
A program called "Senior Settlements" permits healthy seniors, typically over
70, to viaticate their life insurance policies. One viatical settlement firm, Viaticus,
Inc., expects to purchase up to $300 million in policies in 1998, 80% of these from
relatively healthy people. See Joseph B. Treaster, Death Benefits, Now for the Liu­
ing, N.Y. TIMEs, Sept. 27, 1998, § 3, at 1; see also ViaticalIndustry Expands to
Include New Financial Opportunities For Seniors - Senior Settlemimts Help The
Elderly Market Cash in on Their Life Insurance, Bus. WIRE, Apr. 14, 1998; Viaticus
Adds Seniors, BEST'S REV; LIFE-HEALTH INS. ED., Dec. 1997, at 89; Korn, supra
note 8.
According to one viatical settlement firm, senior citizens are considered to be a
big market for viatical settlements because seniors often are the demographic with
chronic illnesses. However, some viatical settlement firms are offering viatication
to seniors age 75 and over, even without a life-threatening or chronic condition.
See Viatical Settlements: Big New Senior Product in Financial Planning Business,
358 PACE LAW REVIEW [VoL 19:345
pool of viators to the increasing acceptance of viatication as a
legitimate financial vehicle.
37
The growing pains evident in the viatical settlement indus­
try highlight certain risks· inherent in these transactions, to
both viators
38
and to investors.39 Merely identifying these risks
37. Viaticus, Inc. began a two-pronged campaign to legitimize viatica! settle­
ments. The company engaged first in federal and state lobbying campaigns, press­
ing for the regulation of the viatica! settlement industry in an effort to prevent.
fraud and to standardize viatica! payouts. The second prong of the attack was a
campaign to achieve treatment for the proceeds of viatica! settlements.
See Marketing a New, Complex Financial Option For Terminally Ill; HEALTHCARE
PR AND MARKETING NEWS, Oct. 16, 1997.
Both prongs of Via tic us' effortBwere realized; 25 states now regulate viatical
settlements, and Congress passed HIPPA, making viatica! settlements tax free for
viators with life expectancies ofless than two years. See supra note 13 for a list of
state regulations on viatica! settlements; see also supra note 26 for a discussion of
the tax legislation.
The increasing respectability and popularity ofviatica! settlements may prove
. troublesome to the insurance industry. Insurers set premiums on policies based on
a statistical expectation that some percentage of the polices will be abandoned, and
thus no death benefits will be due thereon. Ifviatica! settlement firms continue to
intervene, and purchase some or all of the policies that would otherwise be aban­
dontJd, insurance comparues·will end up paying out more than planned. This could
lead to increases in premiums on policies, and even a corresponding decrease in
sales. See Korn, supra note 8.
38. Viators are three primary risks in the viatication process.
First, viators run the risk of losing income-derived benefits, such as welfare or
Medicare, as a result of the sale of their policy. Second, viators run the risk that
their private medical history furnished to the viatica! settlement firm will some­
how become more publicly disseminated. Third, viators run the risk that the ad­
vent of new drug therapies will make their life expectancies so uncertain as to
drive investors from the viaticaI settlement market, or valued so low as to make
such investments not financially worthwhile, in either case eliminating viators'
. access to death benefits dUring their lives. For a full discussion of the risks to
viators, see generally Miriam R. Albert, Selling Death Short: The Regulatory and
Policy Implications of Viatical Settlements, 61 ALB. L. REv. 1013 (1998).
39. Investors in viatica! settlements are also exposed to certain risks. There
is a substantial financial risk, where the ultimate return on this investment is tied
to the actual lifetime of the viator. Investors know how much they will get, but the
date of the payment is uncertain. Thus, the risk is that the effective return de­
clines as the payment dates gets further away from the estimated date of death.
See Amy S. Friedman, Banks Now Selling Viatical Settlements, NA'r'L UNDER­
WRITER, Nov. 3,1997, at 41. The viator may outlive his or her projected life expec­
tancy, diminishing the return to the investor. Because AIDS is such a new
disease, no reliable mortality tables have been established yet. There are no long­
term studies on the effectiveness of the new drug treatments, and, although the
new treatments do not cure AIDS, they seem to extend the lives of certain AIDS
patients. For investors in viatica! settlements, the possibility of extending the life
of the viator increases the risk of the investment, and may thus decrease the
1999] T
amount investors
57.
However, sor
late the purchase
gan increasing tl
expectancy of a p:
pricing of the tra
greater the perce:
outlived, the projl
ment, the return
This risk is v
21 policies on th(
two years. ThreE
would have to pa
See Marcia Vicke
N.Y. TIMEs, Apr.
mate return whel
sense, increases t
bility for ongoing
supra note 6, at I
varying lengths (
386.
Viatica! settl
has done so yet,
mental capacity t
under duress, COll
also the possibilil
celable, or that IJ
irrevocable, unde
ity statute inapp
rescind the
the viatica! settlE
Finally, beca'
ance company th
transaction; expo
that the insuran(
supra note 9, at .
Because viat
not yet considere
of capacity or dUl
companies defaul
cies are viaticate·
such an occurren.
pany failing to pe
of fraud. See inf,
settlement indus'
See Thomas
CORP. COUNS. Q.
duress, mistake,
company and the
the position to br
l
leW
[Vol. 19:345 1999] THE FUTURE OF DEATH FUTURES 359
;ance of viatication as a
aticaI settlement indus­
these transactions, to
{ identifying these risks
Pl to legitimize viatical settle­
!ite lobbying campaigns, press­
dustry in an effort to prevent
md prong of the attack Was a
JCeeds of viatical settlements.
·r Terminally ill, IIEALTHCARE
5 staLes now regulate viatical
iatical settlements tax free for
See supra note 13 for a list of·
,ra note 26 for a discussion of
settlements may prove
IremlUms on policies based on
IOlices will be abandoned, and
l settlement firms continue to
lat would otherwise be aban­
ore than planned. This could
a corresponding decrease in
I in the viatication process.
benefits, such as welfare or
nd, viators run the risk that
1 settlement firm will some­
)rs run the risk that the ad­
so uncertain as to
:>r valued· so low·as to make
.er case eliminatiDg viators'
11 discussion of the risks to
. Short: Tlie Regulawry and
REv. 1013 (1998).
>sed to certain risks. There
rll" on this investment is tied
r much they will get; but the
hat the effective -return de­
lle estimated date of death.
Settlements, NAT'L UNDER­
; or her projected life expec­
luse AIDS is such a new
Iled yet 'I'hereare no long­
Itments, and, although the
d the lives of certain AIDS
nbility of extending the life
Id may thus decrease the
amount investors are willing to pay for policies. See Sommer et al, supra note 6, at
57.
However, some estimate of the viator's life expectancy must be used to calcu­
late the purchase price of a policy. Therefore, even before protease inhibitors be­
gan increasing the life expectancies of some AIDS patients, estimating the life
expectancy of a particular viator was challenging. This estinlation is critical to the
pricing of the transaction; the shorter the life expectancy of the policyholder, the
greater the percentage of the policy value paid. If the viator died earlier than, or
outlived, the projected life expectancy used to calculate the viatical settlement pay­
ment, the return to the investor is affeCted.
This risk is very real. In one case, an Arizona man invested over $100,000 in
21 policies on the lives of viators who were predicted to die within the following
two years. Three years later, only seven had died, and the investor was told he
would. have :to pay the premiums or lose· his entire investment in those policies.
See. Marcia Vickers, Investing It: J:i'or Death J/utures, the Playing p'ieLd 1s Slippery,
N.Y. TIMES, Apr.. 27, 1997, § 3, at 5. So the viator's longevity decreases the ulti­
mate return when the death payments are finally paid, and in a more immediate
senae, increases the costs to the investor, who must assume responsi­
bility for ongoing policy premiums after the first two years. See Sommer et al.,
supra note 6, at 55, for a tabular illustration of the range of expected returns for
varying lengths of time and initial investment; see also Deeley, supra note 12, at
386.
Viatical settlements also pose legal risks to the investors. Although no court
has done so yet, a judicial determination that the viator necessary
mental capacity to enter into the viati.cal settlement, or that the dedSion was made
under duress, could force.an equitable recision ofthe viaticationcontract. Ther.e is
also the possibility that a court would hold the policy to be 9I' can­
celable, or .that not all, the prior would' have waived their rights,if
irrevocable, wider the policy. LikeWise, a court could find a state's incontestabil­
ity statute inapplicable, thereby allowing the issuing life insurance company to
rescind the policy. For a discussion of incontestability clauses and their effect on
the viatical. settlement industry, see infra Part II.
Finally,because ofthe nature 1Jfthe viatical settieII).ent transaction, the insur­
ance company that issued the original policy.provides .the ultimate credit for the
transaction, e,xposing both the viator and the viatical settlelllent firm to the risk
that the.insurance company will default on its payment obligations. See Eremia,
supra note 9; at 783.
Because viatical settlements are such a new type.of transaction,courts have
not yet considered issues common in traditional insurance litigatioq, such as lack
of capacity or duress. Further, there are, as of yet, no· cases. of issuing. insurance
companies defaulting onviatical settlement transactions. However,.as more poli­
cies are viaticated, and in the absence of apprqpriate regulation, the likelihood of
such an occurrence increases. There have been cases of the issuing insurance com­
pany failing to pay, however. In such cases, typically has been an allegation
of fraud. See infra Part II for a discussion of the fraud problems in the viatical
settlement industry. .
See Thomas Hammack, Regulating Viatical Transactions, 45. FED'N INs. &
CORP. COUNS. Q. 85, at 103 (1994), for a discussion ofunequal bargaining power,
duress, mistake, .and incapacity in contracts made between a viatical settlement
company andthe terminally ill, concluding that, because the insured is. often not in
the position to bring a claim after the contract has been entered because of his or
360 PACE LAW REVIEW [Vol. 19:345
is insufficient. The risks present in the viatical settlement in­
dustry mandate that some form of disclosure be required to pro­
tect investors so as to maintain or even expand the number of
investors in their critical role as supplier of funds in the viatica­
tion process. Those opposed to regulating the sale side of the
viatical settlement industry might argue that these risks are
self-evident, and that a savvy investor ought to be able to pro­
tect himself or herself contractually from any resulting expo­
sure.
40
However, viatical settlements are a relatively new type
oftransaction, and participants are not limited to financially so­
phisticated or accredited investors.41 Viatical settlements have
a humanitarian component that may attract first-time, unso­
phisticated investors who need information about the risks of
viatication. In addition, the increasing costs of treating AIDS
means that viatorsneed investors to buy their policies more
than ever.42 This combination increases the need for the disclo­
sure and antifraud protections of the Securities Laws.
1999]
As the,
with conditi
crease in th
absence of 1
tentially lel:
viatical sett:
nies or indi,
themselves
adequate di
both to inve
regulation (
order to pro'
eral regulat
IJ
While ~
her health, "paternalistic regulation is necessary to prevent the abuse from occur­
ring, and to ensure economic efficiency and distributive justice, personal integrity,
and sound judgment."
40. As the viatical settlement market matures and responds to a changing
landscape, new risks are identified, and, because of the lack of protection under
state or federal securities laws, new innovations must be created to manage the
risks. For example, as a hedge against the risk that the viator will outlive his or
her projected life expectancy, thereby reducing the investors' return, some viatical
settlement companies are using supplemental insurance policies to provide in­
terim payments to investors. Several U.S. viatical settlement companies and one
U.K viatical settlement company teamed up to offer a product called "ProfitShield"
under which investors can purchase the insurance through their viatical settle­
ment company on invested capital. The' program has a one-year deferment follow­
ing maturity and will provide a maximum coverage of two years to death. The
investor receives the benefit of the insurance plus the actual death benefit under
the policy when the insured dies. See Barbara Mannino, Moving Beyorul the
Learning Curve: Emergence of Via tical Insurance Settlements, BESTS REV. - LIFE­
HEALTH INS. ED., Aug., 1997, at 72.
41. See Michael R. Davis, Unregulated Investment in Certain Death: SEC v.
Life Partners, 42 VILL. L. REV. 925, 926-27 (1997).
42. Before the advent of costly protease inhibitors, the proceeds of the first
viatical settlements tended to be used by patients to pay medical and other bills,
and grant last wishes. See Kara Swisher, Allstate to Offer Discounts to Buy Poli­
cies of the Terminally Ill, WASH. POST, Aug. 1, 1991, at B8. This use of funds may
have been simply a function of the lack of any meaningful life-prolonging treat­
ments available at that time. Now the new protease inhibitors are available and,
for many patients, are proving helpful in reducing their viral load down below de­
tectable levels, with the potential for corresponding reductions in HIV opportunis­
tic infections. See Sommer et al., supra note 5, at 56-57.
viatication l
settlements
protect viat<
may seek t<
applied tra(
ence, and la
try continUE
AIDS has I
protease inhibil
ase inhibitors c
administer, HI'
health insuranl
those included
also Sommer e
43. See Osl
44. See suJ.
islation of viati
45. Traditi
one sort of rem
contract that is
the peculiar cir
insufficient. T ~
incapacity, and
time on litigati<
mack, supra no
L
361 w [Vol. 19:345
viatical settlement in­
;ure be required to pro­
expand the number of
of funds in the viatica­
ng the sale side of the
Ie that these risks are
ught to be able to pro­
m any resulting expo­
e a relatively new type
.mited to financially so­
itical· settlements have
ttract first-time, unso­
lion about the risks of
costs of treating AIDS
uy their policies. more
the need for the disclo­
curities Laws.
prevent the abuse from occur­
ive justice, personal integrity,
. and responds to· a changing
rthe lack of protection under
ustbe created to·manage the
t the viator will outlive his or
lvestors' return. some viatica!
1r8llce policies to provide in­
IElttiementcompames·and one
1999] THE FUTURE OF DEATH FUTURES
As the viatical settlement industry grows to include viators
with conditions other than AIDS, there is a corresponding in-.
crease in the need for disclosure to investors. In the continued
absence of federal regulation, the threat of fraud remains, po­
tentially leading to the absence of investors. As a result, the
viatical settlement market would consist only of the few compa­
nies or individuals who would agree to buy a policy and hold it
themselves until it matures. Investors must be provided with
adequate disclosure to eliminate, or at. least minimize, fraud,
both to investors and viators.. However, since the only existing
regulation of viatical settlements occurs at the state level, in
order to protect viators, the protection of investors through fed­
eral regulation becomes paramount. .
II: Ethical Considerations in the Viatical
Settlement Industry
While viatical. settlements are legal, the moral aspects of
viatication are less clear.
43
The current regulation of viatical
settlements ignores. investors' needs. Instead, the regulations
protect viators from unscrupulous viatical settlement firms that
may seek to take advantage· of viators.
44
Courts have not yet
applied traditional contract defenses like duress, undue inHu­
ence, and lack of capacity, but as the viatical settlement indus­
try continues to grow, this is likely to change.
45
a product called"ProfitShieW
through· their viatica! settle­
; a one-year deferment follow­
e of two years to death. The
he actual death benefit under
4annino, Moving Beyond the
?ttiements, BEST's REV. - LIFE­
'.ent in Certain Death: SEC v.
tors, the proceeds of the first
o pay medica! and other bills,
o Offer Discounts to Buy Poli­
at BS. This useoffunds may
mingful life-prolonging treat­
are available and,
neir viral load down below de­
reductions in HIV opportunis­
i6-57.
AIDS has always been a very expensive disease, and with the .advent of the
protease inhibitors, the.cost of fighting it has gone up dramatically. "[S]ince prote­
ase inhibitors do not help everyone and can cost as much as $20,000 per year to
administer, HIV/AIDS patients may still be in need of medica! funds since most
health insurance plans limit medication reimbursement as well as medications to
those included on a specific approved list." See Eremia, supra note 9, at 787; see
also Sommer et al., supra note 6, at 57; see also Lang, supra, note 31, at 10.
43. See Osborne, supra note 10, at 485-90.
44. See supra note 13 for a list of the current state statutes and proposed leg­
islation of viatica! settlements.
45. Traditional contract law principles dealing with lack of capacity provide
one sort of remedy forviators. A patty lacking contractual capacity enters into a
contract that is voidable at the incompetent party's option. However, because of
the peculiar circumstances of terminally-ill viators, contract law remedies may be
insufficient. Terminally ill parties may not realize or be able to face their own
incapacity, and further, might not seek to spend any of their precious remaining
time on litigation. See Crites-Leoni & Chen, supra note 9, at 80-81; see also Ham­
mack,. supra note 39, at 103.
362 PACE LAW REVIEW [Vol. 19:345
Viatical settlements are not the only enterprise to profit
from the dying. Death is its own industry, encompassing hospi­
tals, hospices, physicians, home care attendants, pharmaceuti­
cal companies and funeral homes. These participants are not
generally considered ghoulish; yet there is a stigma attached to
viatical settlements, perhaps because of the more direct connec­
tion between profit and death.
Viatical settlements are not for the squeamish. The return
on the investment does not depend on the performance of anon­
ymous workers in a competitive market; it depends on howlong
a terminally-ill human being lives.
46
The investor, and the viat­
ical settlement firm, while sympathetic to the viator's medical
condition, hope, at least from a financial point of view, that the
viator does not live out his or her life expectancy.
The unsettling ethical aspects of viatical settlements can be
offset by the corresponding moral good in helping the dying.
The tension involved with viatical settlements stems from the
inexorable linking of the benevolent and the financial incen­
tives. If investors do not earn a decent, if not superior, rate of
return, they· will move their investment funds into other
vehicles.
Perhaps with these concerns in mind, many of the state regulations on viatical
settlements requirethat the viatical settlement firm obtain a medical certification
as to the viator's mental capacity. See ARK.. ConE ANN. § 28-81-509(A)(I) ("A viati­
.cal settlement provider entering into a viatical settlement contract with any per­
son with a terminal illness or condition shall first obtain [) a written statement
from a licensed attending physician that the person.is ofsound mind and under no
constraint or undue influence."); see also ConE ME.R. § 24-A at 6809 (1997). Ar­
guably, ethical viatical settlement firms would require this of their own accord.
46. "The financial risk in viaticals creates a morally perverse feature not pres­
ent in other investments: the investor must hope for the early demise of the person
whose life insurance he buys. The longer the person hangs on, the lower the an­
nual rate of return." Michael J. Sandel, You Bet Your Life, NEW REpUBLJC, Sept. 7,
1998, at 11.
Promotional materials from one viatical settlement firm listed T-cell counts of
twelve viators, along with their names, medical summaries, life expectancies and
the rates of return on their policies. The viatical settlement firm was prominently
featuring one particular viator, with a T-cell count of 150 per cubic milliliter of
blood, compared with a normal level of about 1,000. In the words of the company,
this viator was suffering from "Thrush, Kaposi's Sarcoma, Hairy Leukoplakia! Pe­
ripheral Hyperesthesia!" The company promised the viator wouldn't live more
than 15 months. See Allen, supra note 24, at W13.
1999] Tl
Beyond tl
ethical issues:
of interest, COl
ries constitute
is needed to
though conflk
forms of fraud
on the purchru
ing aspects of
addressed by 1
of the Securiti
sues, whether
. lation, or no rE
these issues ir
to the Securiti
A. Conflicts (
The viatic
terestproblem
truly be in a vi
new protease j
ing from inveE
life end soonel
in the busineE
who will predt
expectancies il
application inl
tor's medical
quickly the vi
financial inceI
47. See Crites
48. U.S. New:
industry in the mi
by conflicts of intel
Heolth care provil
nally ill may bene
who claim to find
buy the policies." ]
REP., Aug. 21, 199
49. According
firm to evaluate m
a window as aped.
:w
[Vol. 19:345
lly enterprise to profit
-y, encompassing hospi­
;endants, pharmaceuti­
:Ie participants are not
is a stigma attached to
the more direct connec­
;queamish. 'ilie return
e perfonnance of anon­
it depends on how long
investor, and the viat­
to the viator's medical
point of view, that the
pectancy.
ical settlements can be
in helping the dying.
ments stems from the
d the financial incen­
if not superior, rate of
mt funds into other
state regriIations onviatical
.btain a medical certification
[. §2S..:s1-509(A)(I) ("A viati­
ment contract. with any per­
·tain [] a written statement
ofBound mind·arid under no
. §24-A at 6869 (1997). Ar­
e this of their own· accord. .
ty perverse feature not pres­
.e early demise ofthe person
bangs on,. the lower the an­
'..i(e, NEW REl'UBLIC, Sept. 7,
t firm listed T-,cellcounts of
taries, life expectancies and
,ment firm was prominently
:- 150 per cubic· milliliter of
I the words ofthe company,
na, Hairy Leukoplakia! Pe­
viator wouldn't live more
1999] THE FUTURE OF DEATH FUTURES 363
Beyond the legalities of viatical settlements are complex
ethical issues.
47
These issues fall into three categories: conflicts
of interest, confidentiality concerns, and fraud.
48
These catego­
ries constitute the primary areas where disclosure to investors
is needed to permit infonned investment decisions. Even
though conflicts of interest, confidentiality concerns, and some
fonns of fraud can be adequately addressed by state regulation
on the purchase side of viaticaI settlements, the more threaten­
ing aspects of fraud in the viatical settlement industry are best
addressed by bringing viatical settlements under the protection
of the Securities Laws. Investors need disclosure on these is­
sues, whether such issues are handled by state or federal regu­
lation, or no regulation at all. 'ilie following discussion explores
these issues in their context as subjects for disclosure pursuant
to the Securities Laws.
A. Conflicts of Interest
The viatical settlement industry is subject to conflict of in­
terestproblems that pit the agendas of others against what may
truly be in a viator's best interest. Because ofthe expense of the
new protease inhibitors, funds for life-sustaining care are com­
ing from investors with a very real stake in seeing the viator's
. life end sooner rather than later. Viatical settlement finns are
in the business of making money, so they aim to find viators
who will predecease their life expectancy. While predicting life
expectancies is not an exact science, the evaluation of a viatical
application includes an examination of the quality of the via­
tor's medical care; the lower the quality of care, the more
quickly· the viator is likely to die.
49
Viatical finns have strong
financial incentives to discourage or prevent viators from par­
47. See Crites-Leoni & Chen, supra note 9, at 78.
48. U.S. News & World Report conducted a study of the viatical settlement
industry in the mid 1990's and "uncovered a darker side of the business, marked
by conflicts of interest, lack of disclosure and nonexistent or ineffectual regulation.
Health care providers, lawyers and financial planners who work with the termi­
nally ill may benefit without the knowledge of their patients or clients. Brokers
who claim to find the best terms for sellers actually work for the companies that
buy the policies." Pamela Sherrid, Enriching the Final Days, U.S. NEWS & WORLD
REP., Aug. 21, 1995, at 56.
49. According to one infectious disease specialist paid by a viatical settlement
firm to evaluate medical records, "it's morally distressing work, like watching from
a window as a pedestrian heads for an open manhole. But I can't call up a doctor I
364 PACE LAW REVIEW [VoL 19:345
1999]
ticipating in experimental or life-prolonging therapies. 50 Like­
wise, a nursing home or other care facility that is paid more by
private patients than by Medicaid has a strong financial incen­
tive to pressure patients to viaticate policies, even when the
viatication serves the facility's best interest, and not necessarily
that of the viator.51
The clearest potential conflict of interest in the viatical set­
tlement industry arises when health professionals and care
providers ally themselves with viatical settlement firms. The
concern stems from a caregiver who becomes financially linked
to a venture that ultimately benefits from the viator's death,
with the size of such benefit inversely related to the length of
the viator's life.
52
The underlying issue is whether it is morally
sound, or even appropriate, for a facility providing services to
AIDS patients. to ally itself with a venture profiting from the
death of its patients.
53
The conflict arises on an enterprise-wide level, in relation­
ships between health care facilities and viatical settlement
firms,54 and on an individual level, between one health care
don't even know and say 'You don't know what you're doing.''' Allen, supra note 24,
at W13.
50. See Crites-Leoni & Chen, supra note 9, at 78.
51. See Sherrid, supra note 48, at 56
52. See id.
53. See -Philip P. Pan, D.C. AIDS Clinic Makes Deal with Insurance Buyer:
Critics Question Arrangement of Payments to Whitman· Walker, WASH. POST, Sept.
11, 1995, at AOL
54. In 1995, the Whitman-Walker Clinic, Washington, D.C.'s then largest pro­
vider of AIDS services, entered into an alliance with Life Entitlements Corp., a
New York viatical settlement firm. See id.; see also Sherrid, supra note 48, at 56.
The clinic received three percent of the face value of policies purchased by Life
Entitlements from viators within a 1oo-mile radius of Washington; the clinic also
gave permission for Life Entitlements to use the clinic's name in its promotional
materials. See Pan, supra note 53, at AOl. The clinic was apparently in dire finan­
cial straits, which this alliance would no doubt ease. The viatical settlement firm
gained the opportunity to piggy-back onto a respected medical establishment, in­
creasing its own reputation. See id.
Officials at the clinic stressed that the alliance was in no wayan endorsement
of Life Entitlements, and that the clinic would receive its percentage regardless of
whether a given viator was a clinic patient. &e Sherrid, supra note 48, at 56. The
executive director of the clinic characterized the relationship as strictly donor and
recipient. While the clinic would single out Life Entitlements, it would be singled
out as the only firm donating money to the clinic. The clinic would advise its cli­
ents to get bids from other firms, a list ofwhich it claimed to provide to clients. See
Pan, supra note 53, at AOL Although the clinic brochure on viatical settlements
worker and 01
ment firms hs
tals,56 and SOl
for referring'
The spect
industry has
states,58 and .
begun to legis
tial for conflic
becomes more
more educate,
aware oftheSE
these conflict:
advised potential
ment firms, Life
and in fact, Life I
name, along with
55. At AIDS
supervising social
firm. The f a c i l i ~
because the social
at the facility, an
have life insuranc
agreed not to dis
deleted from the :
facility. See Sher
56. Viaticus,
cal settlements tc
note 24, at W13.
unpaid salesmen.
the maze of care 0
ofcontemporary I
ication, or to a p ~
convincing patien
presumably inclu
pita!. See id.
57. See Sher:
58. See CAL.
59. Viatica11
for their membe!
Business PracticE
LET,15-16.
According to
trade group, it is
ing absolute resp'
level of professioI
[Vol. 19:345
ng therapies.50 Like-
that is paid more by
;rong financial incen­
:cies, even when the
~ , and not necessarily
,st in the viatical set­
)fessionals and care
ttlement firms. The
les financially linked
1 the viator's death,
lted to the length of
Nhether it is morally
)roviding services to
e profiting from the
de level, in relation­
viatical settlement
!en one health care
ng.''' Allen, supra note 24,
-at with Insurance Buyer:
Valker, WASH. POST, Sept.
-n, D.C.'s then largest pro.
ife Entitlements· Corp., a
rrid, supra note 48, at 56.
olicies purchased by Life
rashington; the clinic also
. name in its promotional
I apparently in dire finan­
e viatica! settlement firm
ledica!·establishment,. in-
l. no wayan endorsement
. percentage regardless of
lupra .note 48, at 56. The
lhip as strictly donor and
lents, it would be singled
linic would advise its cli­
to provide to clients. See
c on viatica! settlements
1999] THE FUTURE OF DEATH FUTURES 365
worker and one viatical settlement firm.55 Some viatical settle­
ment firms have begun offering their services directly to hospi­
tals,56 and some physicians have requested direct commissions
for referring viators to viatical settlement firms. 57
The specter of conflict of interests in the viatical settlement
industry has lessened somewhat over time, in part because
states,58 and viatical settlement industry trade groups,59 have
begun to legislate codes of conduct aimed at reducing the poten­
tial for conflicts, and in part because, as the industry grows and
becomes more mainstream, viators and their advocates become
more educated about viatication in general, and become more
aware of these potential conflicts. Nonetheless, the potential for
these conflicts of interest must be disclosed to viatical settle-
advised potential viators to shop their policies around to multiple viatica! settle­
ment firms, Life Entitlement's logo was prominently displayed in the brochure,
and in fact, Life Entitlements was the only viatica! settlement firm mentioned by
name, along with its toll-free telephone number. See Sherrid, supra note 48, at 56.
55. At AIDS Foundation Houston, a nonprofit AIDS support organization, a
supervising social worker moonlighted as a representative of a viatical settlement
firm. The facility's executive director knew of the arrangement, but justified it
because the social worker was not allowed to promote her viatica! settlement firm
at the facility, and because the majority of the facility's clients were too poor to
have life insurance to viaticate. To ease this conflict, the viatical settlement firm
agreed not to display brochures at the facility's group offices and had its name
deleted from the list of recommended viatical settlement firms distributed by the
facility. See Sherrid, supra note 48, at 56.
56. Viaticus, Inc. sent representatives to hospitals to sell the benefits ofviati­
ca! settlements to health care providers, such as case workers. See Allen, supra
note 24, at W13. Viaticus was, in effect, asking hospital personnel to serve as its
unpaid salesmen. However, case workers are supposed to "steer patients through
the maze of care options while helping their hospital survive in the cutthroat world
of contemporary medicine" and not steer them toward the particular option ofviat­
ication, or to a particular viatica! settlement firm. The conflict arises in that, by
convincing patients to viaticate, the patients get an influx of cash to pay debts,
presumably including debts owed to the case workers' employer, the treating hos­
pital. See id.
57. See Sherrid, supra note 48, at 56.
58. See CAL. INS. CODE § 10113.2(f) (West 1997).
59. Via tical settlement industry trade groups have adopted codes of conduct
for their member firms. Members of the NVA must adhere to stated "Standard
Business Practices" and "Code of Ethics." See NA'r'L VlATICAL AsS'N INFO. BOOK·
LET,15-16.
According to the Viatical Association of America ("VAA"), another industry
trade group, it is "dedicated to the maintenance of high ethical standards, includ­
ing absolute respect of viator privacy and confidentiality. We promote the highest
level of professionalism by our members and full compliance with state laws." [d.
366 PACE LAW REVIEW [VoL 19:345
ment investors in order for them to make informed investment
decisions.
B. Confidentiality
Another problem burdening the viatical settlement indus­
try flows from the tension between protecting viators' privacy
regarding the details of their illness, and providing viatical set­
tlement firms with that same information which is critical to
appropriately pricing the policies. In most viatical settlements,
the viator releases his or her medical records to the viatical set­
tlement company. This release may contain a confidentiality
provision, but at least some of the viator's specific medical his­
tory will need to be disseminated to potential investors as part
of the necessary, albeit, macabre, marketing of thepolicy.60
This tension has been eased through the efforts of the N a­
tional Association of Insurance Commissioners ("NAIC").61 The
NAIC Viatical Settlements Working Group drafted a Viatical
Settlements Model Act and Regulation, which serve as the basis
for most of the state regulation of viatical settlements.
62
Some regulators fear that the current state laws do not pro­
vide sufficient protection to viators.63 Of the states that regu­
late viatical settlements, only Maine prohibits the release of the
viator's personal information.
64
However, even without being
60. Allen. supra note 24, at W13; see alsa Treaster, supra note .35, § 3, at 1.
61. The NAIC is a voluntary association made up of the cbiefinsurance regu­
latory commissioners and staff from all 50 states, the· District of Columbia and
American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands.
62. In December 1993, the NAIC adopted the "Viatical Settlement Model Act"
and in September 1994, the NAIC adopted the "Viatical Settlement Model Regula­
tion" (collectively, the "NAIC Models"), designed to protect viators when dealing
with viatical settlement companies. The three primary areas of regulation in the
NAIC Models are enforcement provisions, mandatory disclosure to viators, and
mandated mininlum payouts. See 1994-1 NAIC Proc. 352, 362.
63. Tom Foley, Commissioner of the North Dakota Insurance Department,
wants to protect viators from any possible physical risk stemming from the release
of their personal information, including names and addresses. Mr. Foley led an
effort at the NAIC's 1998 spring meeting to adopt a model regulation that prohib­
ited viatical brokers from revealing the names of viators to investors. See NAlC
Mulls Privacy Option on Viaticals, AM. BANKER-BOND BUYER, Apr. 6, 1998, at 1
{hereinafter NAlC Mulls Option].
64. See CODE ME. R. § 24-A at 6806 (1997); see also NAlC Mulls Option, supra
note 63, at 1.
1999]
Tj
legally prohib
to release thi!
In 1998,
again took up
bility of inclUi
tion.
66
If the
the statesma:
statutes. Thi!
by granting v
lowing viatica
essary to Sl
protection, at
protection, in!
who might be
C. Fraud
The third
settlement int
increasing Ie,
have created
cal settlemen
cripple this ir
may tempt s(
permit viator
ments, but 01
Thus, viators
even when tl
65. SeeNAl(
66. SeeNAl(
67. Life Part
closure rules on 1
false concern, bee
ing securities, no
securities." SEC'
68. "The dev
may increase ant
insurance as an c
funding would b
premiums." Geor
Fraudulently Pw
HEALTH INs. ED.,
69. Disclosu
insurance. An it
I

/VoL 19:345
infonned investment
cal settlement indus­
cting viators' privacy
)roviding viatical set­
:1 which is critical to
· viatical settlements,
ds to the viatical set­
;ain a confidentiality
specific medical his­
Hal investors as part
ng of the policy.GO
;he efforts of the Na­
tlers ("NAIC").61 The
.p drafted a Viatical
.ch serve as the basis
settlements.
62
tate laws do not pro­
he states that regu­
its the release of the
even without being
· supra note .35, § 3, at 1.
: the chief insurance regu­
District of Columbia and
tin . Islands.
::at Settlement Model Act"
3ettlement Model Regula­
;eel; viators when dealing
areas of regulation in the
lisclosnre to viators, and
i2,362.
l Insurance Department,
:emming from the release
resses. Mr. Foley led an
regulation that prohih­
• to investors. See NAlC
;uYER, Apr. 6, 1998, at 1
:AlC MuUs Option, supra
1999] THE FUTURE OF DEATH FUTURES 367
legally prohibited, some viatical settlement companies decline
to release this information as a policy matter.65
In 1998, the NAIC Viatical Settlement Working Group
again took up the issue of confidentiality, discussing the possi­
bility of including some privacy language in the Model Regula­
tion.
66
If the NAIC includes language to combat this problem,
the states may be inspired to adopt the language into their own
statutes. This approach would ease the confidentiality problem,
by granting viators needed additional protection, while still al­
lowing viatical settlement firms to disclose the information nec­
essary to sell the policies. However, increasing viator
protection, and even providing remedies for· violations of such
protection, increases the need for disclosure to viatical investors
who might be pulled into such remedy.67
C. Fraud
The third and most pervasive ethical concern in the viatical
settlementindustry is the threat offraud. The rapid growth and
increasing legitimacy of viatical settlenientsas investments
have created a corresponding possibility offraud on or by viati­
cal settlement participants that, if unchecked, could·ultimately
cripple this industry. The expense offighting a terminal illness
may tempt some viators to commit fraud. Viatical settlements
permit viators access to funds to pay for life-prolonging treat­
ments, but only if there is a valid underlying insurance policy.
Thus, have every incentive to secure lifeinsurance,68
even when they know they are HIV-positive.
69
Likewise, un­
65. See NAlC Mulls Option, supra note 63, at 1.
66. See NAlC Mulls Option, supra note 63, at. 1. .
67. Life Partners raised concerns about the efrect of the Securities Laws' dis­
closure rules on the privacy of viators. The district court characterized this as a
false concern, because the disclosure obligatious fall only on those "selling. or offer­
ing securities, not on those selling assets which are then repa-ckagedby others as
securities." SEC v. Life Partners, Inc., 898 F. Supp. 14, 19 (D:n,C. 1995). .
68. "The development of these drugs and drug regimeus [(ptoteaseinhibltors)]
may increase antiselection risks because unscrupnlousindividuals might view life
insurance as an opportunity to pay for the drugs and other medical care. Any such
funding would be borne indirectly by healthy individuals in the form of higher
premiums." George B. Kozol, Home HlV Tests Create New Problems: Some May
Fraudulently Purchase Life Insurance to Fund Medical Care, 'BESTS REV. - LIFE­
HEALTH lNs. ED., Dec. 1996, at 68.
69. Disclosure ofHIV-positive status is no longer a total bar to obtaining life
insurance. An insurance company recently began marketing insurance for HIV­
368 PACE LAW REVIEW [Vol. 19:345 1999)
T
scrupulous viatical settlement firms may try to sell non-existent
policies to investors who are unprotected by the disclosure re­
quirements of the Securities Laws.
Fraudulent· practices have been documented in the viator's
purchase of the underlying policy from the issuing insurance
company; and on both the purchase and sale side of the viatical
settlement industry. These fraudulent practices fall into four
basic scenarios: (1) unscrupulous insurance agents assisting vi­
ators in defrauding insUrance companies by keeping the viators'
HIV status secret; (2) viators defrauding insurance companies
on their own, relying on traditional insurance law incontestabil­
ity clauses;7o (3) viators defrauding viatical settlement compa­
nies; and (4) viatical settlement companies defrauding viators
and investors.
The potential for fraud perpetrated by viators and insur­
ance agents pales in comparison to the potential for fraud per­
petrated on investors by unscrupulous viatical settlementfirms.
Moreover, unlike the fraud by viators and insurance agents,
which are somewhat controlled by state regulation, there is es­
sentially no regulation in place to curb the potential fraud by
viatical settlement firms, other than a common law action for
fraud.
positive applicants. See supra, note 29. However, the vast majority of insurers
decline to provide new policies for applicants whom it knows to be HIV-positive,
creating an incentive for unethical viators to hide their HIV status:
For the first time the life insurance indnstry faces a situation in which an
individual can reap significant financial rewards from a fraudulent life in­
surance application. For instance, someone who knows he is serionsly ill at
the tiine of his application can intentionally misrepresent his health and
medical history to obtain a life insurance policy. The person who survives
the two-year contestability period can then obtain a substantial percentage
of the policy face amount from a viatical settlement company.
Kozol, supra note 68, at 68.
70. An incontestability period represents the agreement that an insurer will
not dispute the validity of the policy after the expiration of some fixed time, typi­
cally two years, from the date of the policy. See Burke A Christensen, Incontesta­
ble Clause Gives Insurance Fraud New Meaning, TRUSTS & ESTATES, Apr., 1997, at
68. The purpose is to protect beneficiaries from unnecessary litigation after the
insured dies. See Eric K Fosaaen, AIDS and the Incontestability Clause, 272 N.D.
L. REV. 267, 271 (1990). Any application for an increase in the dollar amount of
insurance coverage starts the incontestability period over again with respect to
such increase. See also Dignity Viatical Settlement Partners v. Cedalion Systems,
Inc., 4 F. Supp. 2d 466 (W.D.N.C. 1998).
1. Insur
The first
panies, arises
policies that 1:
an incentive t
cies are corre
the applicant
applicant, thE
to assume, f<
such risk. I
fraudulentac
dustry, and, t
surance and l
These unethi
would be un
health situat
possibility of.
viatication.
72
both issuing
profits for be
firms, and ml
try, or potent
Unscrupl
form of fraud
dustry partie
71. See Fosa
72. See Cw
Fraud, BEST's Rl
73. Accordin
to finance media
Life insurance
goal of under
actuarial crit.
based on heal
life expectanc
who are place
pectancy, typi
risks are cluu
ance coveragE
presents.
Kozol, supra not.
v
tv01. 19:345
;ry to sell non-existent
by the disclosure re­
nented in the viator's
;he issuing insurance
ue side of the viatical
ractices fall into four
!e agents assisting vi­
y keeping the viators'
insurance companies
(lee law incontestabil­
al·settlement compa­
~ s defrauding viators
,y viators and insur­
tential for fraud per­
ical settlement firms.
Id· insurance agents,
gulation, there is es­
lepotential fraud by
nmon law action for
, vast majority of insurers
knows to be IllV-positive,
• IllV status:
1 situation in which an
1m a fraudnlent life in­
,ws he is seriously ill at
;n'eBent his health and
te person who survives.
substantial percentage
company.
ment. that an insurer will
[l ofsomefixed time, typi­
.. Christensen, Inconiesta­
& ESTATES, Apr., 1997, at
eaaary litigation after the
!Stability Clause, 272 N.D.
:e in the dollar amount of
;rer again with respect to
ners v. Cedalion Systems,
1999] THE FUTURE OF DEATH FUTURES 369
1. Insurance Agents Defrauding Insurance Companies
The first scenario, agents defrauding their insurance com­
panies, arises because insurance agents make money selling the
policies that underlie viatical settlements. Therefore, they have
an incentive to sell as many policies as possible. When the poli­
cies are correctly priced and issued, based on full disclosure by
the applicant of all relevant risks, including the health ·of the
applicant, the insurance company bears only the risk it agreed
to assume, for a price it deemed adequate compensation for
such risk. However, when insurance agents grant viators
fraudulent access to life insurance coverage, the insurance in­
dustry, and, to a eertain extent, innocent participants in the in­
surance and viatical settlement industries, also pay the price.
71
These unethical agents give viators insurance coverage that
would be unavailable if the issuing company knew of· their
health situation. Further, the agents give viators at least the
possibility of access to the corresponding death benefits through
viatication.
72
This fraudulent behavior increases the costs of
both issuing and viaticating policies, and thus decreases the
profits for both insurance companies and viatical settlement
firms, and may cause existing viatical firms to leave the indus­
try, or potential new firms to avoid the industry.73
Unscrupulous insurance agents certainly contribute to this
form of fraud, but they are not solely to blame. Insurance in­
dustry participants argue that the insurance applications are
71. See Foaaaen, supra note 70, at 294.
72. See Charles E. Schmidt, Jr., Shady Agent, Viatical Mix Creates Recipe for
Fraud, BEST's REV. - LIFE-HEALTH INSUR. ED., Mar. 1996, at 68.
73. According to insurance industry participants, life insurance is not priced
to finance medical treatment:
Life insurance pricing is baaed on mortality risks, not'morbidity risks. The
goal of underwriting is to categorize individnal risks baaed on reC9gnized
actuarial criteria. In general, standard risks are. those individuals ·who,
baaed on health and medical history, are projected to have the same average
life expectancy as individuals the same age. Rated .risksare individuals
who are placed in a group projected to have a shorter-than-averagelife ex­
pectancy, typically because of health impairment or medical incident. Rated
risks are charged a higher price than standard risks for similar life i n s ~ ­
ance coverage, commensurate with the greater mortality risk their group
presents.
KozoI, supra note 68, at 68_
370 PACE LAW REVIEW [Vol. 19:345
inadequate for screening out HIV-positive applicants.
74
Insur­
ance agents therefore must rely on the incontestability period,75
and the sometimes-questionable ethics of applicants and agents
for protection.
76
Some agents are proud to helpHIV-positive ap­
plicants secure life insurance by misleading the issuing com­
pany, to whom the agent owes various legal duties, including a
duty ofloyalty.77 If the application asks whether the applicant
has AIDS, but is not specific enough to pick up an HIV-positive
applicant who has not developed full-blown AIDS,agents can
counsel applicants so that their answers are literally .true, yet
misleading, or they can counsel the viators to lie, or to sanitize
medical records to eliminate references to HIV status, all in an
effort to "help" the viator by securing life insurance.
One way to eliminate this type of fraud would be for all
states to legislate that any knowledge on the part of the agent
about the applicant is deemed to be imputed to the insurance
company.78 This would prompt the insurance industry to create
application materials' and procedures designed to uncover the
applicants' . true health status, and would hold the insurance
agents directly liable for their fraud.
79
74. Insurance industry participants find the standardized medical question­
naire used by insurance companies problematic. Under some state laws, any
knowledge on the part of the agent selling the policy is deemed to be imputed to
the insurer. So if the agent lear,ns.of adverse medical information regarding an
applicant, not listed on the application, it is as ifthe insurer actually learned of it.
See Kozol, supra note 68, at 68; see also Small Life Insurers Warned of HIV Expo­
sure, BESTWIRE, Oct. 18, 1995 [hereinafter Small Life Insurers].
75. See infra notes 81-100 & accompanying text for a discussion of incontest­
ability clanses.
76. See Small Life Insurers, supra note 74.
77. See Schmidt, supra note 72 at 68.
78. Arizona, Kentucky and Oregon attribute to the insurer the knowledge of
the agent about an applicant's medical history. As a result, lawsuits in those
states arising out of undisclosed medical facts usually include the agent as a de­
fendant, along with the insured. On the other hand, New York, Maryland, and
Washington rarely impute information that is unrevealed on the application to the
agent. In Wisconsin, insurers are prohibited from voiding a policy if the selling
agent was aware of the applicant's health status when the policy was issued. See
Schmidt supra note 72, at 68; see also Small Life Insurers, supra note 74.
Because the concept of imputed knowledge is not the law in all states, insur­
ance compauies must change their standards on medical questionnaires, depend­
ing on the state law. See Kozol, supra note 68, at 68.
79. Insurance compauies have the power to correct this imbalance on their
own.
1999] Tl
2. Viatm
The secor
nies without t
tection of the
applicant miSt
surance cover
statute of 1imi
ing the permi
abuses that v
simply a mecD
has the entire
certain any in
or anything el
tion of an inci
statements, iI
so unless the i
Insurers can p
in favor of via
agency. The in
mitted with th
surer discoveI
particular agel
mine whether:
tivity amounts
and would sub.
Kozol, supra note
80. According
ments undertaker
epidemic, there WI
year incontestabil
during the inconu
payment based or
two-year incontesl
81. For a del;;
rine Cooper, Note
Revere Life Insure
82. See Fosal>
83. See CynU
'Materiality' Restr
also Cooper, suprl
84. The insUI
was terminally ill
intentionally misl
sponding to questi
note 68, at 68.
[Vol. 19:345
applicants.
74
Insur­
mtestability period,75
pplicants and agents
lelp HIV-positive ap­
ng the issuing cOm­
uduties, including a
hether the applicant
{ up an HIV-positive
n AIDS, agents can
re literally true, yet
to lie, or to sanitize
nvstatus, all in an
nsurance.
ud would be for all
he part ofthe agent
;ed to the insurance
ce industry to create
~ e d to uncover the
hold the insurance
irdized'medical question­
.er some state laws, any
deemed to be imputed to
information regarding an
trer actually learned.ofit.
"ers Warned ofHWExpo­
£surerS].
a discussion of incontest­
insurer the knowledge of
result, lawsuits in those
tclude the agent as a de­
ew York, Maryland, and
on the application to the
ng a policy if the selling
te policy was issued. See
'"S, supra note 74.
! law in all states, insur­
questionnaires, depend-
this imbalance on their
1999] THE FUTURE OF DEATH FUTURES 371
2. Viator Fraud on Insurance Companies
The second scenario, viators defrauding insurance compa­
nies without the knowledge of the agents,80 centers on the pro­
tection of the incontestability clause.
81
In this scenario, the
applicant misstates his or her HIV status when applying for in­
surance coverage.
82
An incontestability clause operates like a
statute of limitations for the issuing insurance company, limit­
ing the permissible time period to investigate fraud and other
abuses that would otherwise void coverage. The clauses are
simply a mechanism for sharing risk.88 The insurance company
has the entire incontestability period, typically two years, to as­
certain any improprieties about the applicant, the application,
or anything else relating to the policy.84 Typically, the expira­
tion of an incontestability clause is deemed to remove all mis­
statements, including fraud, as grounds for denying coverage;
so unless the incontestability clause provides a judlcially-recog-
Insurers can protect themselves further by monitoring policy assignments
in fl:l-vor of viatical settlement societies and tracking them by agent and
agency. The insurer might routinely scrutinize medical questionnaires sub­
mitted with the application for these policies. In an instance where an in­
surer discovers a number of suspicious applications submitted by a
particular agent or agency, the insurer should investigate each one to deter­
mine whether impostors were used to avoid underwriting screens. This ac­
tivity amounts to criminal fraud on the part of the agent and the agency,
and would subject the perpetrator to criminal and monetary sanctions.
Kozol, supra note 68, at 68.
80. According to one viatical settlement industry participant, viatical settle­
ments undertaken by AIDS patients are ripe for fraud because, prior to the AIDS
epidemic, there were very few terminal conditions that lasted longer than the two­
year incontestability period. Thus, a fraudulent applicant would most likely die
during the incontestability period, thereby preserving the company's right to deny
payment based on fraud. However, HIV-positive applicants may well outlive the
two-year incontestability period. See Schmidt, supra note 72, at 68.
81. For a detailed discussion of incontestability clauses, see generally Kathe­
rine Cooper, Note, Liar's Poker: The Effect of Incontestability Clauses After Paul
Revere Life Insurance Co. v. Haas, 1 CONN. INs. L.J. 225 (1995).
82. See Fosaaen, supra note 70, at 287.
83. See Cynthia Koehler, Incontestability Laws Abet Fraud by Applicants and
'Materiality'Restricts the Right to Rescind, NAT'L L. J., Sept. 8, 1997, at C12; see
also Cooper, supra note 81, at 226.
M. The insurer must payout on the policy even ifit learns that the "insured
was terminally ill at the time of the application, knew he was terminally ill, and
intentionally misrepresented his health circumstances and medical history in re­
sponding to questions posed by the agent or medical interviewer." See Kozal, supra
note 68, at 68.
372 . PACE LAWREVIEW lV01. 19:345
nized exception for fraud, the insurer can only raise a fraud de­
fense prior to the expiration of the incontestability period.
85
Thereafter, with several statutorily-created exceptions,86 the in­
surance company must pay on the policy when the insured dies.
Insurance industry participants would like to see incontest­
ability periods eliminated entirely, as they drastically limit the
protection available to insurers.
87
At a minimum, the industry
would like to see these periods extended, to help reconcile the
. incontestability period with the latency period that can exist
before an insured develops AIDS.88 However, these incontest­
ability periods serve a valid function and should not be elimi­
nated.
89
They simply require the insurance industry to take a .
85. See Cooper, supra note 81, at 228. Some courts have said that even if the
policy language does contain such an exclusion for fraud, the exclusion may be
invalid.
Although there have been a few cases to the contrary, the general rule has
long been that even the defense of fraud is barred by the. incontestable
clause. Few states permit insurers to insert fraud as an exception to the
incontestable clauSe. Until recently, however, the courts permitted insurers
to deny claims based upon the fraudulent acts of the applicant if the fraud
was of a very serious type. Examples of serious fraud are policies procured
with an intent to murder the insured or when the insured sends a substitute
to apply for the policy and take the medical exam.
Christensen, supra note 70, at 68; see Koehler, supra note 83, at C12; see also
United Fidelity Life Ins. Co. v. Emert, 49 Cal. App. 4th 941 (4th Dist. 1997) (af­
firming the continuing application of incontestability clauses to fraud claims); in­
fra note 99 for a discussion of the Protective Life case.
86. Exceptions include matters such as "non-payment of premiums or viola­
tion of the conditions of the policy relating to military or naval service in time of
war and except, if the company so elects, for the purpose of contesting claims for
total and permanent disability benefits or additional benefits specifically granted
in case of death or accident." Protective Life Ins. Co. v. Sullivan, 89 F.3d 1,2 (1st
Cir. 1996) (citing Mass. Gen. L. ch. 175 § 132).
87. See Small Life Insurers, supra note 74.
88. "Given an average latency period offour years for AIDS, coupled with leg­
islative prohibitions against insurance-related testing, it becomes relatively simple
for an individual with knowledge of his or her infected status to make misrepre­
sentations regarding such knowledge with reasonable assurance that the incon­
testability period will expire before "suspicious" symptoms appear that alert the
insurer to the possibility that misrepresentation has occurred." Clifford & Iucu­
lano, supra note 4, at 1819; see also Fosaaen, supra note 70, at 287.
89. Incontestability clauses are required in life, health and disability insur­
ance policies in most states, for public policy reasons, to "encourage consumer con­
fidence and reduce insurer contests to the policies based on information given in
the application form." Cooper, supra note 81, at 225. Incontestability clauses aid
dishonest people whose dishonesty is not discovered during the period. However,
these clauses also give insured persons piece of mind and eliminate the possibility
1999] T
more proacti'
interests.
The inco]
advent of hon
for fraud by u
sign up with ]
ing small poli
such as blood
policies beyon
icies, defraud
of an insured payi
denly notice a pr<
dence to dispute
Christensen,sup1
90. In May 1
test.
The test offers
The .kit caD. bl
pricks his or b
test.card beari
tory for HIV b
the individual
cation number
Kozol, supra note
anonymous HlV t
not disclosingthei
for all applicants:
policy sought. Set
91. "Because
our society, appli(
the virus very weI
conditions when a
be grounds for rec
ability period has
physical disabilit)
supra note 4, at ]
92. See Smal
blood tests has hi
company to test f
accepted both wi1
laws in the mid If
that "substantial
thereby undercut1
ity to pay future c
ANN. § 631.90 (W(
ing applicants if t
[Vol. 19:345
lly raise a fraud de­
testability period.
85
exceptions,S6 the in­
.en the insured dies.
ike to see incontest­
:lrastically limit the
imum, the industry
o help reconcile the
!riod that can exist
·er, these incontest­
.hould not be elimi­
~ industry.to take a .
nave said that even if the
leI. the exclusion may be
. , the general rule has
by the. incontestable
B an exception to the
rtiI permitted insurers
applicant if the. fraud
l are policies procured
red sends a substitute
lOte 83, at C12; see also
941 (4th Dist. 1997) (af­
llSeS to fraud claims); in­
nt of premiums or viola­
. naval service in time of
l of contesting claims for
lefits specifically granted
ullivan, 89 F.3d 1, 2 (lst
~ AIDS, coupled with leg­
teCOmes relatively simple
tatus to make misrepre­
~ u r a n c e that the incon­
fiB appear that alert the
urred." Clifford & Iucu­
70, at 287.
lth and disability insur­
mcourage consumer con­
on infurmation given in
ontestability clauses aid
o.g the period. However,
eliminate the possibility
1999] THE FUTURE OF DEATH FUTURES 373
more proactive and prompt approach to protecting its own
interests.
The incontestability clause framework, coupled with the
advent of home testing for HIV status,90 increases the potential
for fraud by unscrupulous HIV-infected viators.91 Viators could
sign up with many different life insurance companies, purchas­
ing small policies that typically do not trigger intense scrutiny
such as blood testing for HIV.92 The viators could then hold the
policies beyond the incontestability period and viaticate the pol­
icies, defrauding either the viatical settlement company, if the
of an insured paying premiums for years, only to have the insurance company sud­
denly notice a problem with the policy and deny a claim when the necessary evi­
dence to dispute the denial of the claim may no longer be available. See
Christensen, supra note 70, at 68.
90. In May 1996, the Food and Drug Administration approved a home HIV
test.
The test offers more privacy and anonymity than a visit to a doctor's office.
The kit can be purchased at drugstores without a prescription. The user
pricks his or her finger with the kit's lancet and places blood droplets on a
test .card bearing an identification number. The card is mailed to a labora­
tory for HIV testing; samples that test positive are retested. A week later,
the individual obtains test results via phone punching in his or her identifi­
cation number.
Kozol, supra note 68, at 68. These tests are now available. nationwide, providing
anonymous HIV testing. As a result, viators can applyfor insurance, knowing and
not disclosing their HIV status. Insurers have options;.they can require blood tests
for all. applicants, regardless of the applicant's presentation or the face value of
policy sought. See Kozol, supra note 68, at 68.
91. "Because the fear of an AIDS epidemic is very real for certain groups in
our society, applicants for life insurance who believe they have been infected with
the virus very well may misrepresent their health history or their present physical
conditions when applying for coverage. These misrepresentations would normally
be grounds for recision of the policy; however, after the time period in an incontest­
ability period has passed, benefits cannot be.denied on the ground that ill health or
physical disability existed at the time the policy was issued." Clifford & Iuculano,
supra note 4, at 1819.
92. See Small Life Insurers, supra note 74. The legality of requiring such
blood tests has been questioned. Until the mid-1980s, the right of an insurance
company to test for any condition affecting mortality or lllOrbidity was generally
accepted both within and outside the insurance industry. States began to pass
laws in the mid 1980s, presumably to prevent discrimination against homosexuals,
that "substantially impede(d] the insurance industry's ability to assess risk,
thereby undercutting the industry's financial stability and compromising its abil­
ity to pay future claims." Clifford & Iuculano, supra note 4, at 1815; see WIS. STAT.
ANN. § 631.90 (West Supp. 1986) (prohibiting insurance companies from even ask­
ing applicants if they have been tested for HlV).
374 PACE LAW REVIEW [Vol. 19:345
policy was not yet resold, or the investors who purchased inter­
ests in the policy.93
Because HIV-positive individuals can remain asymptom­
atic for insurers have begun to require blood tests to sup­
plement the medical questionnaire and examination, even for
younger applicants or those seeking small face value policies.
94
HIV-:positive viators have a strong incentive to avoid these
blood testS.
95
This form of fraud is especially problematic for
insurers in states that do not recognize an exemption to the in­
contestability period for impostor situations.
96
In states that
recognize such an exemption, if the specimen provided for an
insured is proven to be from someone else, the insurance com­
pany can refuse to pay on the policy, or rescind the policy.97
Two egregious examples of this type of fraud are the Cali­
fornia case of Amex Life Assur. Co. v. Superior Court,98 and
93. Another possibility is that viators could purchase many small policies, and
viaticate the policies before the expiration ofthe two year incontestability period, if
they could find a willing viatical settlement firm. Then, if the insurance company
voided the policy for fraud, the viatical settlement firm or its investors would be
stuck. This scenario does not present a great potential for fraud because most
viatical settlement companies are now savvy enough to know the relevant state
laws on incontestability, and tend not to purchase policies until they have been
held for more than such period. See NAIC Mulls Option, supra note 63, at 1.
94. "In response to the new home-based anonymous HIVtests, many insurers
will find it necessary to and claim-processing practices in order to protect the in­
tegrity of life insurance pricing and underwriting. Recent developments in HIV
testing and drug therapies will intensify the unique "antiselection" risks that life
insurers face as a result of the AIDS crisis and burgeoniitg viatical settlement
business. Some life insurers may experience severe financial problems as a conse­
quenceof this elevated antiselection activity. Antiselection occurs when. those
most at risk are most likely to seek a particular type of coverage. But, life insurers
have some options - short of imposing blood tests for all insurance applicants - to
combat this." KozoI, supra note 68, at 68. For a discussion of the issues surround­
ing AIDS testing for insurance applicants, see generally Clifford & Iuculano, supra
note 4.
95. See Kozol, supra note 68, at 68.
96. See infra note 99 for a discussion of the legal result when an applicant for
life insurance sends an impostor to take a required medical exam or blood tests.
97. Insurers can use this impostor safe-harbor to carefully examine claims
submitted on policies that are beyond the contestable period, especially those sub­
mitted under policies being viaticated. See KozoI, supra note 68, at 68.
98. In Amex Life Assur. Co. v. Superior Court, 14 Cal. 4th 1231(1997), Jose
Morales knowingly misrepresented his HIV status when applying for life insur­
ance from Amex in January, 1991, and sent someone four inches taller and 30
pounds heavier than he to take the required medical eXamination. See Amex Life
Assur., 14 Cal. 4th at 1234. Amex personnel fulled to notice these discrepancies
; ,
!.i
?tt
1999] TB
the Massachw
van.
99
and on May 1, 1991
barring Amex from
of premiums, after 1
34. Morales
June 11, 1993, he E
id. at 1235.
Amex denied I
Slome Capital, the
ance bad faith and I
clause. See id. at I!
which was charactE
policy and takes tl
sured, the policy do
completedthe appli
Amex, under the iJ
inception, thus the
at 1242.
The California
Appeals decision fo:
and the ensuing lit
the person taking tl
tion. Amex did not
impostor from the j
for Amex to have
Court of Appeals di
steps to verify the
their files after the
tend that someone
examination proces
363 (1996).
The Amex hold
and the viatical set
fraud, arguably gi
scheme. AIDS advi
case had come out
AIDS would be s'
DiEdoardo, Patient
EGO DAlLY TRANsCl
Circuit Giues Victo,
Nonetheless, v
As the court said, B
identity. See Amex
have to find impost
cally;finther, they
ance company requ
99. In Protectil
van also misrepres.
Protective Life. He
I
[VoL 19:345
who purchased inter­
n remain asymptom­
ire blood tests to sup­
,xamination, even for
. face value policies. 94
ntive to avoid these
:ially problematic for
l exemption to the in­
Ins.
96
In states that
men provided for an
the insurance com­
rescind the policy.97
fraud are the Cali­
'uperior Court,98 and
se many small policies, and
U' incontestability period, if
l, if the insurance company
n or its investors would be
ial for fraud because most
to know the relevant state
!ides until they have been
>n, supra note 63, at 1.
s mv tests, many insurers
I in order to.protect the in­
cent developments in mv
ntiselection" risks·that life
:eoning viatical settlement
mcial problems as a conse­
lection occurs when those
:overage. But, life insurers
II insurance applicants - to
ion of the issues surround­
Clifford & Iucuiano, supra
..suIt when an applicant for
mcal exam or blood tests.
carefully examine claims
:riod, especially those sub­
-a note 68, at 68.
Cal. 4th 1231(1997), Jose
en applying for life insur­
four inches taller and 30
:amination. See Amex Life
notice these discrepancies
1999] . THE FUTURE OF DEATH FUTURES 375
the Massachusetts case of Protective Life Ins. Co. v. Sulli­
van.
99
and on May 1, 1991, issued a policy to Mr. Morales, with an incontestability clause
barring Amex from contesting coverage under the policy, except for non-payment
of premiums, after the policy had remained in effect for two years. See id. at 1233­
34. Mr. Morales paid all the premiums on the policy, and just before he died. on
June 11, 1993, he sold his policy to Slome Capital, a viatical settlement firm. See
id. at 1235.
Amex denied payment for fraud when it learned of the impostor situation.
Slome Capital, the beneficiary of record, sued Amex for breach of contract, . insur­
ance bad faith and equitable estoppel, relying on the validity ofthe incontestability
clause. See ide at 1235. Amex tried to get the court to adopt an "impostor" defense,
which was characterized as a defense where "a person applies for a life insurance
policy and takes the medical examination but names another person as the in­
sured, the policy does not insure the named person but; if anyone, the person who
completed the application and took the examination." Id. at 1235-36. According to
Amex, under the impostor defense, Morales' coverage was void from the policy's
inception, thus the incontestability clause was inapplicable. See Amex, 14 Cal. 4th
at 1242.
The California Supreme Court was unpersuaded and affirmed the Court of
Appeals decision for Slome Capital. See ide at 1246. As a policy matter, this fraud
and the ensuing litigation could have been avoided if Amex had simply required.
the person taking the medical examination to produce a verifiable photo identifica­
tion. Amex did not dispute that it had the information about the appearance of the
impostor from the time it issued the policy. See id, at 1242. Thus, it was posF.ible
for Amex to have discovered this fraud from inforrilation in its own files. The
Court of Appeals did not want to permit insurance companies who "have taken no
steps to verify the identity of their applicants· or medical examanees then comb
their files after the incontestability period expires, looking for some basis to con­
tend that someone other than the named insurer took part in the application or
examination process." Superior Court v. Slome Capital Corp., 51 Cal. Rptr. 2d 354,
363 (1996).
The Amex holding added fuel to the tension between the insurance industry
and the viatical settlement industry, because it in essence rewarded Mr. Morales'
fraud, arguably giving other unethical viators incentive to attempt the same
scheme. AIDS advocates were pleased with the verdict; the worry was that if the
case had come out the other way, payouts on policies issued to· those who die of
AIDS would be subject to investigations, thus delaying benefits. See Chris
DiEdoardo, Patient Advocates Take Heart from Ruling on Life Insurance, SAN DI­
EGO DAD..Y TRANscRIPl', Feb. 26, 1997, at AI; see also Victoria Slind-Flor, Ninth
Circuit Gives Victory to Viaticals, NATL L.J., Mar. 10, 1997, at A6 .
Nonetheless, viators may not be able to easily duplicate Mr. Morales' fraud.
As the court said, all Amex had to do to prevent this require proofof
identity. See Amex Life Assur., 14 Cal. 4th at 1243. Future unethical viators will
have to find impostors who match their physical descriptions closely if not identi­
cally; further, they will need to produce whatever sort of identification the insur­
ance company requests. Thus, this type of fraud is relatively easy to curtail.
99. In Protective Life Ins. Co. v. Sullivan, 425 Mass. 615 (1997), Dennis Sulli­
van also misrepresented his HIV status on his application for life insurance from
Protective Life. He authorized Protective Life to conduct medical tests, including
376 PACE LAW REVIEW [Vol. 19:345
With few exceptions, the general rule remains that even a
fraud defenseis barred by the expiration of an incontestability
period, seemingly giving viators incentives to attempt these
kinds of frauds. However, the Amex and Protective Life deci­
sions actually decrease the potential for such fraud by providing
an HIV test, but Protective Life never did so, and issued the policy with a two year
incontestability period, with an exception for fraud, on November 8, 1991. See Pro­
tective Life, 425 Mass. at 617.
Mr. Sullivan's policy stated: "[Protective Life] cannot bring any legal action to
contest the validity of this policy after it has been in force two years except for
failure to pay premiums unless fraud is involved." Protective Life Ins. Co. v. Sulli­
van, 89 F.3d 1, 2 (1996). This policy language was approved by the Massachusetts
Commissioner of Insurance in 1988 as being in conformance with the applicable
statute. See id. .
In October 1993, Sullivan undertook to viaticate the policy with Dignity Part­
ners; Dignitysubmitted assignment papers to Protective Life, and when Protective
Life approved the assignment on December 22, 1993, Dignity paid Sullivan the
proceeds from the viatical settlement. See Protective Life, 425 Mass. at 617. On
April 15, 1994, Protective Life filed suit to rescind the policy, claiming Sullivan
obtained the policy through fraudulent misrepresentations. See id. at 615. Ac­
cording to the Supreme Judicial Court of Massachusetts ("SJC"):
It is undisputed that Sullivan knew he. was HIV-positive when he applied
for the life insurance policy, that he failed to disclose that he was seeing a
physician for treatment of this condition despite questions calling for this
information, and that Protective Life would not have issued the policy had it
known of Sullivan's true medical condition.
Id. at 618.
Sullivan and Dignity Partners moved to dismiss the action as violating the
Massachusetts law, in that the two year incontestability period had expired. See
Protective Life, 89 F.3d at 3. The district court denied the motion, and after a trial,
found that Massachusetts state law did not bar Protective Life's action, and thus
entered a judgment for Protective Life. See id. Sullivan died on April 4, 1995, so
the claims against him were dismissed. See id.
Dignity appealed to the First Circuit, which in July 1996, certified the issue to
the SJC. See id. at 4. The SJC held that Massachusetts state law does not permit
a fraud-based exception to the incontestability statute, regardless of the policy's
language. Protective Life, 425 Mass. at 615. The court found that Sullivan's "wil­
ful concealment of his medical condition was deplorable and deserve[d] condemna­
tion." Id. at 630. However, Sullivan specifically authorized Protective Life to
conduct whatever medical tests it deemed necessary, including an HIV test. See
id. at 617. IfProtective Life had not waived the tests, it would have learned about
the fraud, presumably prior to issuing the policy, but certainly before the expira­
tion of the incontestability period. The Protective Life court made clear that Mas­
sachusetts insurance companies have a two year finite period to investigate
suspected frand, and after such period, they are bound to pay, even if they later
learn the insured lied about his or her health, and even if the policy itself contains
an exception to the incontestability period for fraud. See id. at 632; see also John
Ellement, Ruling Called Win For Terminally Rl: SJC Limits Life Insurance Fraud
Detection, BOSTON GLOBE, July 30,1997, at B2.
1999]
insurance co
applications
allocation th
up suspected
ures as reqUl
identificatioI)
While these
ment in the ~
long run, for
one Amex an
3. Viat(
The thirl
between viat
cies, and via
volves the vi
payment UP(
possible pay
with the sho
prolonging tl
result, viator
personal cho
the viatical Sl
it believed ri
viator then b
feet of increa
mentfirmha
eroded its pI
settlement fu
mate detrim(
100. The idE
insurance. In Bl
(1994), for exam
could not rescin<
existing HIV con
action. See Blue
right to demand;
Incontestability i
LEY's INS. L. WE:
101. See Vic
72.
i:j i
;¥a
101. See Vickers, supra note 39, § 3, at 5; see also Mannino, supra note 40, at
72.
r
[Vol. 19:345
remains that even a
of an incontestability
res to attempt these
Protective Life deci­
ch fraud by providing
d the policy with a two year
8, 1991. See Pro·
lot bring any legal action to .
force two years except for
ective Life Ins. Co. v. Sulli­
'OVed by the Massachusetts
mance with the applicable
le policy with Dignity Part­
e Life, and when Protective
Dignity paid Sullivan the
425 Mass. at 617. On
e policy, claiming Sullivan
.tions. See id. at 615. Ac­
ts ("SJC");
)sitive when he applied
se that he was seeing a
lestiOns calling for this
, issued the policy had it
ilie action as violating the
ty period had expired. See
Ie motion, and after a trial,
tive Life's action, and thus
n died on April 4, 1995, so
1996, certified the issue to
; state law does not permit
, regardless of the policy's
found that Sullivan's "wil.
and deserve[d] condemna·
norized Protective Life to
Ilcluding.im HIV test. See
. would have learned about
ertainly before the expira·
ourt made clear that Mas·
rite period to investigate
l to pay, even if they later
if the policy itselfcontains
!e id. at 632; see also John
emits Life Insurance Fraud
1999] THE FUTURE OF DEATH FUTURES 377
insurance companies with greater incentives to process their
applications promptly and thoroughly.loo The result is a risk
allocation that requires insurance companies to actively follow
up suspected fraud, and to engage in such prophylactic meas­
ures as requiring blood tests and demanding verifiable picture
identifications from individuals who appear for medical exams.
While these measures may add some marginal cost to imple­
ment in the aggregate, they will prove to be cost efficient in the
long run, for the industry as a whole, if they prevent even just
one Amex and Protective Life fraud from occurring.
3. Vi.ator Frau.d on Viatical Settlement Firms
The third scenario results in two forms of fraud, this time
between viators with valid and presumably incontestable poli­
cies, and viatical settlement firms. The first form of fraud in­
volves the viator compromising his or her health for a higher
payment upon viatication; AIDS patients seeking the highest
possible payment for policies, hoping to present themselves
with the shortest life expectancy possible, delay starting life­
prolonging therapies until they have sold their policies.
IOI
As a
result, viators may compromise their own health, which is their
personal choice. this behavior essentially defrauds
the viatical settlement firm that purchased the policy for a price
it believed reflects the viator's probable life expectancy. If the
viator then begins a successful course of treatment, with the ef­
fect of increasing the viator's life expectancy, the viatical settle­
ment firm has incorrectly priced the viatical settlement and has
eroded its profit margin. If this occurs often enough,. viatical
settlement firms may decide not to viaticate policies, to the ulti­
mate detriment of all potential viators.
100. The idea of fraud also arises in other areas of insurance, such as health
insurance. In Blue Cross & Blue Shield of (korgia v. Sheehan, 215 Ga. App. 228
(1994), for example, Georgia's Court of Appeals held that an insurance company
could not rescind health insurance coverage because of its failure to note a pre­
existing HIV condition, but said that the insurance company could pursue a fraud
action. See Blue Cross, 215 Ga. App. at 229-30. The insurance company had the
right to demand a medical examination, but it never did so. See id. at 230; see also
Incontestability Clause Trumps Impostor Defense in California HIV Case, MEA.
LEy'S INs. L. WEEKLY, Mar. 6, 1997; Koehler, supra note 83, at C12.
378 PACE LAW REVIEW [Vol. 19:345
The second form of viator fraud on viatical settlement firms
centers on the viator compromising his or her ethics, not health.
Viators may attempt to viaticate the same policy with different
viatical settlement firms, a practice which was more possible in
the infancy of this industry, when neophyte viatical settlement
firms were undertaking their first viatical settlements.
102
Via­
tors could also viaticate policies written by foreign life insur-·
ance companies subject to insurance laws that permit
immediate cancellation. The viator would then sell his or her
policy to the viatical settlement firm and immediately cancel
the policy, leaving the viatical settlement company with no as­
set on which to collect. Similarly, viators could viaticate the
policies and leave the country or disappear, leaving the viatical
settlement firm and the investors in limbo, as life insurance
companies typically will not payout on policies in the absence of
a death certificate. loa
This form of fraud would be fairly easy to eliminate if the
viatical settlement firm simply required the applicant to sur­
render the actual policy rather than a copy. Further, the viati­
cal settlement firm could withhold the proceeds until it has
written confirmation from the issuing insurance company that
the policy is in full· force and effect.
4. Viatical Settlement Firm Fraud on Viators and on
Viatical Investors
The last scenario involves viatical settlement firms that en­
gage in fraudulent behavior with respect to viators, who take on
faith what information, if any, the viatical settlement firms pro­
vide.
104
Some firms try to avoid paying the settlement amount
when due.
105
Recent regulations based on the NAIC Models
102. See David Sussman, Cashing out Before the End, MINNEAPOLIS - ST. PAUL
CITY Bus., Dec. 16, 1994, at 11.
103. See Vickers, supra note 39, § 3, at 5.
104. See Debora Vrana, U.S. Charges Four with Fraud in Life Insurance In­
vestment Case, L.A. TIMEs, Apr. 22, 1997, at Dl. According to the Texas Securities
Commissioner, the recurring theme is that investors are told that the particular
viators will die within a year or two. Becanse of the new treatments for AIDS, this
is not always the case. Since August 199B, a North American Securities Adminis­
trators Association task force has been looking into viatical settlements. See
Treaster, supra note 35, § 3, at 1.
105. Credit Life Corp, Inc., a Florida viatical settlement firm, purchased 30
policies from viators in 1990 and then failed to pay the viators for them. Florida
TE
19991
have lessened
the states whe
Viatical SE
outside the pre
tors to gathe
whether to co:
ments. If a v i ~
policies from \
the investors ­
any of the pro'
An egregie
volved Peisom
California viat
tors interests i
defrauding all
pca, purporte
authorities closed
them to the viaton
Mannino, supra n(
dies for Sale, CENT
at A6; Helen Hunt
1994, at lOA.
106. See supr.
107. See SEC
108. A Florid.
mately $4 million
principals of the c(
nse. The firm's III
filed against them
ant Quinn, Viaticc
23, 1995, at 13C; s
Humanitarian 1m
1996; Thomas W. «
Dec., 1996, at 102
109. PCO did
money. Instead, tl
ultimately to pay I
Pins, Inc., the tim
two viatical settlE
charged with cons
Settlement Investo
lNs. FRAUD, May ~
A doctor invol
to conspiracy to co
he lied to investol
hundreds of termiJ
v
379
[Vol. 19:345
ttical settlement firms
her ethics, not health.
policy with different
-was more possible in
te viatical settlement
I settlements.
102
Via­
by foreign life insur­
laws that permit
i then sell his or her
i immediately cancel
company with no as­
s could viaticate the
r, leaving the viatical
bo, as life insurance
ides in the absence of
)y to eliminate if the
;he applicant to sur­
r. Further, the viati­
Iroceeds until it has
trance company that
t Viators and on
ement firms that en­
viators, who take on
;ettlement firms pro­
settlement amount
!l the NAIC Models
d, MINNEAPOLIS - ST. PAUL
'aud in Life Insurance In­
ng to the Texas Securities
'e told that the particular
treatments for AIDS, this
,rican Securities Adminis­
viatical settlements. See
,ment firm, purchased 30
viators for them. Florida
1999] THE FUTURE OF DEATH FUTURES
have lessened the potential for this kind of fraud, but only in
the states where such regulations are in place.
106
Viatical settlements have been judicially determined to fall
outside the protections of the Securities Laws , 107 leaving inves­
tors to gather what information they can when deciding
whether to commit funds to an investment in· viatical settle­
ments. If a viatical settlement firm represents that it is buying
policies from viators, and purports to resell them. to investors,
the investors must take that representation on ,faith, without
any of the protections of the Securities Act.
1
°S
An egregious case of fraud by a viatical settlement firm in­
volved Personal Choice Opportunities ("PCO"), a Palm Springs,
California viatical settlement company accused ofselling inves­
tors interests in non-existent The firm was accused of
defrauding almost 1000 investors who loaned $50 million to
PCO, purportedly to purchase policies from the terminally ill.
109
authorities closed the firm, requiring insurers to reissue the policies and return
them to the viators. Two viatical companies made good on mostofthepolices. See
Mannino, supra note 40, at 72; see also Lois Caliri, Gambling on Death: Life Poli­
cies for Sale, CENTRAL PENN Bus. J., Aug. 4, 1995, at 1; Slind-Flor, supra note 98,
at A6; Helen Huntley, State Moves to Close Firm, ST. PETERSBURG TIMEs, Feb. 22,
1994, at lOA.
106. See supra note 62.
107. See SEC v. Life Partners, Inc., 87 F.3d 536 (D.C. Cir. 1996).
108. A Florida viatical settlement firm called United Benefits sold approxi­
mately $4 million worth of non-existent life insurance policies to investors. The
principals of the company misappropriated the investor's funds for their personal
use. The firm's assets were frozen by the federal courts, and an injunction was
filed against them; The SEC recently put the firm out of business. See Jane Bry­
ant Quinn, Vwtical Life Insurance Deals Require Scrutiny, BALTIMORE SUN, Oct.
23, 1995, at 13C; see also Florida Office of the Comptroller, Viatical Settlements ­
Humanitarian Investments with Great Risk of Fraud, PR NEWSWIRE, Apr. 16,
1996; Thomas W. Johnson, Life Insurance as a Liquid Asset, FINANCIAL PLANNING,
Dec., 1996, at 102. .
109. PeO did not payout any insurance proceeds or inteFest on the loaned
money. Instead, the company used new investors' money to pay, old 'investors, and
ultimately to pay themselves. The owner of PCO, along with the. owner' ofEscrow
Plus, Inc., the firm that claimed to administer the viatical programforPCO, and
two viatical settlement brokers who marketed the non-existent policies, were
charged with conspiracy to commit securities mail and wire fraud. See Viatical
Settlement Investors Charge Fraud After Sting Operation, :MEALEYs LrrIG. REP.:
lNs. FRAUD, May 22, 1997; see also Viana, supra note 104, atDl.
A doctor involved in the scheme was also indicted and ultimately plead. guilty
to conspiracy to commit securities, mail and wire fraud. The doctor admitted that
he lied to investors, telling them that he had reviewed the medical histories of
hundreds of terminally ill people who had sold their life insurance policies to PeO.
19991 PACE LAW REVIEW [VoL 19:345
A large-scale fraud like peD, with the attendant publicity, has
380
These lies, in the form of oral and written medical opinions, arguably lent credibil­
ity to the scam. See David M. Halbfinger, Man Who Promised Profits Pleads Guilty
in $95 Million Fraud, N.Y. TIMEs, Nov. 14, 1997, at B3; see also Over Half of $95
Million Invested in Scam Found, BUFFALO NEWS, Oct. 5,1997, at 15A.
The scam ran from June 1996 until March 1997. Investors were induced to
"lend" funds to PCO to finance the purchase of life insuranee policies from termi­
nally-ill policyholders, with a promise of a 25% arinual return. Investors advanced
a minimum of $25,000 each, with some investors advancing as much as $300,000.
Investors were told that their funds would be held by Escrow Plus, Inc. until PCO
turned over the policies that collateralized the loans. Insurance benefits paid on
the policies upon the insureds' death were to be paid to Escrow Plus, to be dis­
bursed to the investors. This was apparently such a believable deal that some
viatical brokers invested their own money in PCO. The inclusion of an escrow fund
with a respected track record led some investors to believe the investment was
legitimate. Instead of buying policies, Escrow Plus disbursed most of the investor
funds to. the president of PCO, David Laing. See John Rebchook, Pitchman Ar­
rested in Insurance Scheme Investors Defrauded in Plan to Buy Policies from Ter­
minally Ill, DENVER RocKY. MOUNTAIN NEWS, Apr. 15, 1997, at 1B; see also Gail
Dianne Cox, Growth Market in Death Futures Spawn Suits, NATL L.J., May 26,
1997, at A9; David McNary, Ponzi Scheme Exposed: Canoga Park Man Victimized
by Fraud, DAILY NEWS OF L.A., Apr. 24, 1997, at B1.
Onee the California Department of Corporations discovered in February 1997
that PCO was operating without a license, it subpoenaed the cOmpany's records .
.peO refused to comply with the subpoena, claiming confidentiality. This response
triggered action by the Federal Bureau ofInvestigation, and the California Bureau
ofInvestigation. See Viatical Settlement Investors Charge Fraud After Sting Oper­
ation, supra note 109; see also Halbfinger, supra, at B3. Ultimately, a receiver for
PCO's assets was appointed. State officials in Idaho, South Dakota; California,
Washington, Colorado, Montana, and New Mexico, and Wisconsin began investi­
gating PCO. See Four Charged in InsuranceScam, ST. LoUIS DISPATCH, Apr. 8,
1997 at 1A; see also Joe Kolman, Montana Investors Lose Money in $95 Million
Viatical Scam, BILLINGS GAZETrE, May 20, 1998.
Colorado Securities Commissioner Philip Feigin began conducting an investi­
gation ofPCO. See Bill Morlin, Charges Dropped in Insurance Scam; State or Civil
Action Still Possible, SpoKESMAN-REV., July 10, 1997, at A1; see also Rebchook,
supra at 7B.
The Idaho Department of Finance filed suit against PCO .for alleged invest­
ment fraud and violation of the state securities act. The department sought to
have the defendants enjoined from future violations, and sought restitution for all
of the approximately 40 Idaho investors, along with civil penalties. See STATE OF
IDAHO, DEPARTMENT OF FINANCE, NEWS RELEASE, STATE SUES SEVEN DEFENDANTS
FOR INvEsTMENT FRAUD: OVER 57 MILLION ALLEGEDLY INvEsTED IN VIATICA!. SET­
TLEMENT SCHEME (1997); see also Backers of Viatical Scam Busted in Idaho,
SpoKESMAN-REV., June 14, 1997, at A13; Ron Lent, Federal Authorities Broaden
Case Involving Alleged Viatical Scam, J. OF COM., Apr. 28, 1997, at 8A.
Michael Vargon, deputy director of the New Mexico Securities Division, re­
ports that at least five New Mexicans lost money in the PCO scam. His depart"
ment also began an investigation ofPCO. See Macario Juarez, Jr., New Mexicans
Among Group Bilked in Insurance Scam, ALBUQUERQUE TruB., Dec. 11, 1997, at
C4.
the potentia
and provides
industry.110
risks for inVI
law, are den
Securities Ll:
Steps ha
trade organi:
has adopted
have enacte(
Models.
113
1
fraud on via
ment firms, :
atical settler
The state sb
rian desire tt
the state leVI
sufficient. Sl
provide the (
ties Laws.
Theexis
teet investor
dustry. Inv€
TheWisconl
agent license all!
considers to be E
1254972, ResPOJ
1998 Wise. Sec.
110. "What'
-legitimate, lie
executive direct<
111. See Ge
to the Terminall
see also supra n
112. See SUj
113. See SUj
114. See Cr
tlement industr:
lated. The indu
state insurance
records. The pr
quent bill eJ..imiI:
statutory langul
opportunity in v
[V01. 19:345
ndant publicity, has
mB, arguably lent credibil­
nised Profits Pleads Guilty
; see also Over Half of$95
i, 1997, at 15A.
Investors were induced to
.ranee policies ·from termi­
3turn. Investors advanced
cing as much as $300,000.
;crow Plus, Inc. until PCO
nsurance benefits paid on
to Escrow Plus, to be dis­
believable deal that some
nclusion ofan escrow fund
!lieve the .investment was
Ursed most of the investor
l Rebchook, Pitchman Ar­
I to Buy Policies from Ter­
1997, at 1B; see also' Gail
)uits, NAYLL.J., May 26,
wga Park Man Vzctimized
lcovered in Februaty 1997
edthe company's .records.
identiality. Tbisresponse
and the GaliforniaBureau
re FraU(/. After-Sting· Oper­
. Ultimately, a,receiver for
30uth Dakota, California,
Wisoonsini beganinvesti­
• LoUIS DISPATCH, Apr. 8,
ose Money in $95 Million
flUl' conducting.an inveSti­
ranee Scam; State or Civil
at A1; see also Rebchook,
It PCO forallegedinv.est­
'he department SOUght to
1-sought restitution for all
1,penalties.. See STATE OF
SUES SEVEN DEFENDAN'I'S
NvEsTED IN VIATICAL SET-
Scam Busted in Idaho,
leral Author:ities Broaden
28, 1997, at 8A.
:0 Securities Division,. re­
e PCO scam. His depart­
fuarez, Jr., New Mexicans
E 'i'Rm., Dec. 11, 1997, at
1999] THE FUTURE OF DEATH FUTURES 381
the potential to taint the entire viatical settlement industry,
and provides the SEC with additional incentive to regulate this
industry.11o The specter of this kind of fraud presents serious
risks for investors in viatical settlements, who, under current
law, are denied the disclosure and antifraud protection of the
Securities Laws.
Steps have been taken to combat fraud on viators. Viatical
trade organizations have adopted codes of conduct,l11 the NAIC
has adopted its Model Act and Regulations,112 and 25 states
have enacted regulations based, at least in part, on the NAIC
Models.113 The state regulations decrease the potential for
fraud on viators by mandating disclosures by viatica! settle­
ment firms, setting up advertising standards and requiring vi­
atical settlement firms to escrow funds to be paid to viators.114
The state statutes are an appropriate response to a humanita­
riandesire to protect a vulnerable population, but at
the state level of the purchase side of viatica! settlements. is in­
sufficient.. State insurance regulations cannot' be expected to
provide the comprehensive protections contained in the Securi­
ties Laws.
The existing regulation of viatical settlements fails to pro­
tect investors by alleviating the fraud in the sale side of in­
dustry. Investor protection is essential, simply to insure their
The Wisconsin Securities Commission petitioned for an order of suspension of
agent license"and of prohibition for a salesperson who sold PCOinterests, which it
considers to be securities. See In the Matter of Daniel Lawrence Kouba, CRD No.
1254972, Respondent, File Number S-97079, Wisconsin Securities Commission,
1998 Wise. Sec. 1998 WL 155402 (Mar. 16, 1998).
110. "What's so sad about this case is that it will affect my member companies
legitimate,licensed firms trying to comply with the law," said William E. Kelley,
executive director of VAA. See Vrana, supra note 104, at Dl.
111. See Gene Meyer, Mixing Death and Profit: Vmtical Contracts Bring Cash
to the Terminally Ill, Profit to Investors, KANsAS CITY STAR, May 10, 1998, at F1;
see also supra note 59, at 15-16.
112. See supra note 62, at 362.
113. See supra note 13.
114. See Crites-Leoni & Chen, supra note 9, at 83. However, the viatical set­
tlement industry has a huge finanlrial investment in leaving the industry unregu­
lated. The industry successfully watered-down a 1993 Texas bill to ensure that
state insurance regulators were unable to look at a viatica1 settlement company's
records. The proposed language was so vague as to be unenforceable. A subse­
quent bill eliminated this vagueness, but the two year delay in getting appropriate
statutory language gave unscrupulousviatica1 settlement firms a nice window of
opportunity in which to operate. See NAIC Mulls Option, supra note 63, at 1.
1
382 PACE LAW REVIEW [Vol. 19:345
continued presence in this market.l15 Without investors, the vi­
atical settlement industry could trickle down to the purchase of
policies by only those truly altruistic persons or firms, leaving
manyviators with no access to death benefits with which to pay
for life-prolonging medical treatments.
The better approach is to protect investors, and by exten­
sion, viators, by bringing viatical settlements within the scope
. of the· Securities Laws. This would provide investors with dis­
closure and remedies, and provide viators with a broader range
of. potential investors. If viatical settlement investors were
granted the protections of the Securities Laws, viatical settle­
ment· firms would have an affirmative obligation to disclose as
risk factors the possibilities of conflicts of interest, confidential­
ity concerns, and the various forms offraud present in the viati­
cal settlement industry, enabling investors· to make informed
decisions about whether to invest in viatical settlements. Fur­
thermore, defrauded investors would have the full arsenal of
Securities Laws remedies, beyond a simple common law fraud
action. These protections, while admittedly somewhat costly to
the viatical settlement firms, may ultimately prevent investors
from moving their funds to ventures that disclose material
information.
III: ClassifYing Viatical Settlements as Securities:
Decreasing the Potential for Fraud on Investors
A comprehensive way to increase investor protection and
curtail fraud in the resale side of the viatical settlement indus­
try would be to classify fractional interests in viatical settle­
ments as securities for purposes of the Securities Laws; their
sales would thereby fall under the protection of the Securities
115. "The need to protect investors is acknowledged by nearly all responsible
participants in the viatical settlement industry." See Brieffor the SEC, Appellee at
8, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos. 95-5364 & 96­
5018).
1999]
Laws, com pl.
and civil rem
Fractiom
within the Ie
acted with t
mandatory d
settlements t
much debate:
in the courts.
the D.C. Cire1
cided the Liff.
tunity to ad
adhering to s
a new bright·
the cost ofig:
The SEC
vestors in via
cal settlemel
settlement fu
116. One eft
ments to register
paring a registrf
registration, and
requirements of
money; the proce
poses the issuer l
ally Escott v. Bru
The financial
as issuer of the 51
Life Partners aI'll
sponding decreas
F.3d 536, 539 (D:
benefit of keepin;
117. The SEll
protective of viet
lower the require
Multiple InvestQl
Notes, 1998 COLt
118. See inti
goals of the Secu
119. See SE(
102 F .3d 587 (D.
120. See Lifi
121. See Det
[VoL 19:345
ut investors, the vi­
:1 to the purchase of
1S or fii-ms, leaving
s with which to pay
tors, and by exten­
I;s within the scope
investors with dis­
th a broader range
!nt investors were
.ws, viatical settle­
ltion to disclose as
erest, confidential­
resent in the viati­
to make informed
settlements. Fur­
;he full arsenal of
!ammon law fraud
omewhat costly to
prevent investors
disclose material
s Securities:
:l on Investors
or protection and
settlement indus­
n viatical settle­
:ities Laws; their
of the Securities
nearly all responsible
r the SEC, Appellee at
) (Nos. 95-5364 & 96­
1999] THE FUTURE OF DEATH FUTURES 383
Laws, complete with antifraud and disclosure obligations,116
and civil remedies.ll7
Fractional interests in viatical settlements clearly fall
within the letter of the Securities Laws. These laws were en­
acted with the overall goal of investor protection, through
mandatory disclosure of information.l1B The status of viatical
settlements under the Securities Laws has been the subject of
much debate, both within the viatical settlement industry and
in the courts. The only court to rule directly.on this issue was
the D.C. Circuit Court ofAppeals that heard and incorrectly de­
cided the Life Partners case.
119
The D.C. Circuit had an oppor­
tunity to advance the goals of the Securities Laws, while
adhering to sound precedent. Instead, the.court chose to create
a new bright-line test, with no explicit precedential support, at
the cost of ignoring over fifty years of thoughtful case law.
120
The SEC, worried about the adequacy of disclosure to in­
vestors in viatical settlements,121 had been monitoring the viati­
cal settlement industry, and in particular, a large viatical
settlement firm in Waco, Texas called Life Partners, Inc. and its
116. One effect of requiring sellers of fractional interests in viatica! settle­
ments to register such offerings would be increased costs, such as the costs ofpre-:
paring a registration statement, in the absence of an available exemption from
. registration, and the cost of compliance thereafter with· the continuing disclosure
requirements of the Exchange Act. The cost of compliance is more than·simply
money; the process, initially and on an on-going basis, is time consuming, and ex­
poses the issuer and various of its related persons to potential liability. See gener­
ally Escott v. BarChrist Construction Corp., 283 F. Supp. 643 (S.D.N.Y. 1968).
The financial costs would fall, at least initially, on the viatica! settlement firm,
as issuer of the securities, and could be passed on to, or shared with the investors.
Life Partners argued that· passing these costs on to investors would cause a corre­
sponding decrease in the amount paid to viators. See SEC v. Life Partners, Inc., 87
F.3d 536,539 (D.C. Cir. 1996). If this proved true, the cost might be well worth the
benefit of keeping investors in the industry.
117. The Securities Laws "provide civil remedies for fraud which are more
protective of victims than is common law fraud....in general the securities laws
lower the requirements ofrecovery." James D. Gordon III, Common Enterprise and
Multiple Investors: A Contractual Theory For Defining Investment Contracts and
Notes, 1998 COLUM. Bus. L. REV. 635, 637 (1998).
118. See infra notes 136-43 and accompanying text for a discussion of the
goals of the Securities Laws.
119. See SEC v. Life Partners, Inc., 87 F.3d 536 (D.C. Cir. 1996), reh'g denied,
102 F.3d 587 (D.C. Cir. 1996).
120. See Life Partners, 87 F.3d at 551 (Wald, J., dissenting).
121. See Deeley, supra note 12, at 383.
384 PACE LAW REVIEW [Vol. 19:345
president, Brian Pardo.
l22
The SEC began a lengthy and ulti­
mately unsuccessful battle to classify fractional interests in vi­
atical settlements sold by Life Partners as securities, subject to
the registration requirements of the Securities Act. The SEC
brought suit against Life Partners, alleging, among other
things, the sale of unregistered securities.
123
Life Partners dis­
putedthat the fractional interests inthe viatica! settlements it
marketed were subject to the Securities LawS.
l24
The SEC was
122. Mr. Pardo was a major part of tbislitigation. He had difficulties with
varions federal regulators prior to the Life Partners litigation. In 1989, the SEC
alleged that.Mr. Pardo engaged in securities fraud in his capacity as chairman and
CEO of another company, ASK Corporation. See Plaintiff SEC's Brief in Support
of Motion for Preliminary Injunction and Other Provisional Relief at 13, SEC v.
Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No. b94CV01861). Specifically,
the SEC alleged that Mr. Pardo falsified financial reports to ASK shareholders.
See Sougata Mukherjee, In;;urance Policies for the Terminally III Come Under Fire
from Federal Agencies, Bus. J. SAN JOSE, May 12, 1997; see also Caliri, supra note
105, at 1. In 1991, Pardo was enjoined from violating the antifraud and books and
records.provisions of the Exchange Act as a consequence of his association with
ASK Corporatjon, whi<ili was forced .into bankruptcy while under his controL See
Plaintiff SEC's Brief in Support of Motion for Preliminary Injunction and Other
Provisional Relief at 1, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(No. 1:94CVOl861).
Also in 1991, Pardo was sued by the Federal Deposit Insurance Corporation
for having defaulted on a loan from a failed savings and loan, and thereafter be­
came subject to an unsatisfied judgment that, with interest, exceeded $3 million.
See Brief of the SEC, Appellee at 17, SEC v. Life Partners, Inc., 898 F. Supp. 14
(D.D.C. 1995) (Nos. 95-5364 & 96-5018).
In yet another action,. this time with the Resolution Trust Corporation, Pardo
was found liable and was ultimately the subject of a sizable judgment in connec­
tion with a $1.78 million loan, plus interest and legal fees, made to Pardo and
ASK, from a now-defunct federally-insured savings and loan association. See Brief
of the SEC, Appellee at 17, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C.
1995) (Nos. 95-5364 & 96-5018); see also Rob Wells, House Candidate Pardo Topic
of Federal S&L Fraud Inquiry, AUSTIN AMERICAN-STATESMAN, Feb. 16, 1996, at
D2.
Apparently, Mr. Pardo, who ran an unsuccessful campaign for'Congress in
1996, was upset with the SEC's comments about him to the press, and filed a
Hatch Act complaint and a libel suit against the SEC. See Brady, Babin Snare
GOP RUlWffs for House Seats, Hous. CBRON., Apr. 10, 1996, at 15; see also Defend­
ants' Opposition to the SEC's Motion for Supplemental Provisional Relief at 11-13,
SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995).
123. SEC v. Life Partners, Inc., 898 F. Supp. 14, 18 <D.D.C. 1995).
124. Life Partners argued that fractional interests in viatical settlements do
not constitute securities for purposes of the Securities Laws. Life Partners also
raised a number of other arguments in court and in the press to support its posi­
tion, including a lack of investor losses, an appeal to public sympathy and a re­
quest to create a public interest exemption to the Securities Laws.
1999]
First, Life Pa
ners investors sm
ners misappropri
doesn't] make a si
investor...they aJ
You have to ask, ,
in Death Futures,
for Life Partners)
The SEC did
Partners, but neit
the SEC. In fact,
fact that no inves
ative interventiOI
the disclosure re(
abuses before the
1996). See LPI C
see also Life Partl
Second, Life
would harm the 1
which Life Partn.:
only available via
on the viatical sel
agreed. See SEC
Insurance Benefit
Judge Backs.SE(
NAPWAinteI
ieal settlements c
we know it." Plail
nary Injunction aJ
tion to Dismiss at
1:94CV01861). TJ
ate protections fOl
Hopefully, a recol
pliance with the ~
the material infO]
The district c
uitable remedy," ;
ness that helps S<l
Accordingly, the c
inary relief than •
fractional interes!
ply with the Secl
<D.D.C. 1996).
Finally, Life
sult" of "put[ting]
year to persons d
they are selling n
an injunction bec
tially seeking a jl
Laws. PlaintiffS
I
[Vol. 19:345
a lengthy and ulti­
mal interests in vi­
ecurities, subject to
ties Act. The SEC
f,ing, among other
Life Partners dis­
LtiCal settlements it
VS.
124
The SEC was
He had difficulties with
In 1989,the SEC
:apacity as chairman and
If SEC's Brief in Support
Inal Relief at 13, SEC v.
J4CVOl861). Specifically,
ts to ASK shareholders.
..ally III Come Under Fire
ee also Caliri, supra note
antifraud and books and
e of his association with
Ie under his control. See
ry Injunction and Other
. Supp. 14 (D.D.C. 1995)
it Insurance Corporation
loan, and thereafter be­
est, exceeded $3 million.
lrs, Inc., 898 F. Supp. 14
['rust Corporation, Pardo
lble judgment in connee­
'"ees, made to Pardo and
an association. See Brief
898 F. Supp. 14 (D.D.C.
e Candidate Pardo Topic
!:SMAN, Feb. 16, 1996, at
unpaign for' Congress in
;0 the press, and filed a
See Brady, Babin Snare
16, at 15; see also Defend­
'Ovisional Relief at 11-13,
).
(D.D.C. 1995).
n viatieal settlements do
.aws. Life Partners also
press to support its posi­
lhlicsympathy and a re­
ties Laws.
1999] THE FUTURE OF DEATH FUTURES 385
First, Life Partners claimed the suit was without merit, because no Life Part­
ners investors suffered losses, and further, there was no evidence that Life Part­
ners misappropriated funds. According to Life Partners' counsel: "[the SEC
doesn't] make a single allegation in this complaint that there's been any loss to any
investor...they are essentially bringing a lawsuit without any precipitating event.
You have to ask, 'who are they trying to protect?'" Tony Munroe, SEC Sues Dealer
in Death Futures, WASH. TIMEs, Aug. 27, 1994, at D5 (quoting Ida Draim, counsel
for Life Partners).
The SEC did not allege investor losses, or misappropriation of funds by Life
Partners, but neither point was required to prove the allegations actually made by
the SEC. In fact, because the Securities Laws are intended to prevent abuse, the
fact that no investor has lost any funds yet makes this situation ripe for prevent­
ative intervention. According,to the.SEC, "the securities laws, and in particular
the'disclos1.lre requirements of the 19.33 and 1934 Acts, are intended to prevent
abuseshefore they arise." SEC v.,Life Partners, Inc., 87 F.3d 536, 539 (D.C. Cir.
1996). See LPI Characterizes Lawsuit as.Groundless, Bus. WIRE, Aug. 31, 1994;
see also Life Partners,87 F.3d at 556 (Wald, J., dissenting).
Second. Life Partners played' the sympathy· card; arguing that the lawsuit
would harm.the'AIDScommunity by afi"eetingthe viatieal,settiement market, in
which Life Partners was a major participant. However, Life J>artners was not the
only available viatieal SElttlement tirm. The SEC correctly countered that impact
on the viatieal.settlement. market should not be dispositive,and the district court
agreed. See,SEC v. Life Partners, Inc., 898 F. Supp. 14, 23 (D.D.C.1995); AIDS
Insurance Benefits Trader Sued, DES MOINES REG., Aug. 26, 1994, at 8; see also
Judge Backs:SEC in VwticalsCase, THE INSURANCE AcCT., Sept. 11, 1995,at 1.
NAPWA intervened in the litigation, and at a hearingargnedthat finding viat­
ieal settlements1constituted;securities"is essentially going, to end this industry as
we knowit:"Plaintiff SEC'sPoslrHearing Brief in Support of Motion for Prelimi­
nary Injunction and Other Provisional Relief and in Opposition to Defendants' Mo­
tion to Dismiss at 10, SEC v. Life Partners, Inc.,.898 F. Supp. 14 (D.D.C. 1995) (No.
1:94CV01861). This. is a drl,UD.atic overstatement, but. in the absence of appropri­
ate inviatiCaIsettlements, perhaps not such a bad result.
settlement'industry, selling .. securities in com­
pliance with .theSecuri.ties Laws, would protect investors by providing them with
the material information they need to make a Sound investment decision.
The district court ooDsidered the'''apparentiack of injury in fashioning an eq­
uitable remedy/,. antl."theeffects of .the Commission's request forreliet on a busi­
ness,that helps .somany tenninally. ill patients. " Life Partners, 898 F. Supp; .at23.
Accordingly, the cournconcluded.that ,the SEC was entitled to more'limited'.pre1im­
inary reliefthan it was. seeking, and deelined to enjoin Life Partners from selling
fractionruinterestsin viatieal settlements. pending completion' ofits'eiforts, to com­
ply with the Securities Laws. See SEC v. Life Partners, Inc., 912 F. Supp. 4, 6
(D.D.C. 1996).
Finally, Life Partners claimed that the SEC was seeking the "draconian re­
sult" of "put[ting] an end to a business that provides over forty million dollars a
year to persons dying of AIDS," and so they argued that, even if the court finds
they are selling non-exempt·and unregistered securities, it shoulddec1ine to issue
an injunction because to do so would be contrary to "the public interest," essen­
tially seeking ajudiciaIly,.()reated "public.interest" exemption from the Securities
Laws. Plaintiff SEC's Reply Briefin Support of Motionfor Preliminary Injunction
386 PACE LAW REVIEW LV01. 19:345
successful at trial,125 but the D.C. Court ofAppeals reversed the
trial court decision.
126
After the SEC unsuccessfully sought a
rehearing on the issue,127 the agency filed an unsuccessful Mo­
tion Seeking Leave to Amend Complaint.
12s
Although the SEC
ultimately declined to appeal the decision to the United States
Supreme Court, the agency has continued to pursue, through
other avenues, the legally sound classification of fractional in­
terests in viatical settlements as securities.
129
An analysis of Life Partners will illustrate those issues that
arise in connection with regulating sales offractional interests
and Other Provisional ,Relief and in Opposition to Defendants' Motion to Dismiss
at 18, SEC v. Life Partners, Inc., 898 F. Supp.14 (D.D.C. 1995) (No. 1:94CV01861).
No such "public interest" exemption from the registration requirements of the
Securities Laws exists. According to the SEC, "the defendants' view of where the
public interest lies cannot take precedence over that of Congress. Many companies
engage in socially useful activities, but are nevertheless required to comply with
the federal securities laws. Congress enacted the securities laws to protect inves­
tors. It did not exempt from their application enterprises that claim to advance
the public weal." Brief ofthe Securities and Exchange Commission, Appellee at 3­
4, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos. 95-5364 & 96·
5018). If Life Partners intended to conduct a humanitarian, non-profit enterprise
operating in the public interest; it could avail itselfofthe existing exemption from
registration of the Securities Act, which exempts:
[a]ny security issued by a person organized and operated exclusively for reli­
gious, educational, benevolent, fraternal, charitable, or reformatory pur­
poses and not for pecuniary profit, and no part of the net earnmgs ofwhich
inures to the benefit of any person, private stockholder or individual. .
15 U.S.C.A. § 77c(a)(4) (1998). Life Partner's argument assumes that the SEC is
seeking to put it out ofbusiness, and that Life Partners would somehow be unable
to stay in buSiness if it elected to comply with the Securities Laws. Although Dig­
nity Partners has left the viatica! settlement industry, there is no evidence to indio
cate that the Securities Act compliance was even a factor. See supra note 32.
Life Partners made two other arguments<to support its claims that fractional
interests in viatica! settlements were not securities. First, it claimed that viatica!
settlements were simply insurance agreements and therefore exempt from the re­
gistration requirements of § 5 through § 3(a)(8). See infra note 163 for discussion
ofthe insurance issue. Life Partners claimed in the alternative that if their viati­
ca! settlements were found to be investment contracts, it would be nonetheless
exempt from the·registration requirements of § 5 of the Securities Act under the
§ 4(2) private offering exemption. The court was unpersuaded. See Life Partners,
912 F. Supp. at 9-11.
125. See SEC v. Life Partners, Inc., 898 F. Supp. 14, 14 (D.D.C. 1995).
126. See SEC v. Life Partners, Inc., 87 F.3d 536, 536 (D.C. Cir. 1996).
127. See SEC v. Life Partners, Inc., 102 F.3d 587,588 (D.C. Cir. 1996).
128. See SEC v. Life Partners, Inc., 986 F. Supp. 644, 645 (D.C. Cir. 1997).
129. See infra Part IV for a discussion of the Mutual Benefits case and states'
efforts to regulate fractional interests in viatica! settlements.
1999]
in viatical Sl
D.C. Circuit'
to increase iI
of the Securi
A. Factual
In Augr
Partners, all
ments it mru
curities Act.
violated the
, ties Laws by
and issued f
mately enjoi
in viatica1 St
130; The S:
settlements as ;
sales: specifieaII
investors. See J
agrees that a st
ployed by defenl
tion in this cast
administered b:
the question wi
nor does the SEI
ity." See Plaint:
Injunction and I
to Dismiss at I.
1:94CV01861) (­
131. See SI
132. 'See Sl
at *3 (D.D.C. M:
ing the sale of]
several of whicl:
18. The SEC w
own account or
Partners actuaI
ests in the poli
Laws. See MUD
Life Partne
as $650 and PUl
ners, Inc., 87 F
settlements to I
sion of the pro!
through their n
nue Code prom
r
I
lVoL 19:345
ppeals reversed the
ccessfully sought a
n unsuccessful Mo-
Although the SEC
) the United States
00 pursue, through
on of fractional in­
!29
I;e those issues that
fractional interests
lants' Motion to Dismiss
.995) (No. 1:94CV01861).
,tion requirements of the
dants' view of where the
JgreSS. Many companies
required to comply with
.es laws to protect inves­
IS that claim to advance
mmission, Appellee at 3­
195) (Nos. 95-5364 & 96­
an, non-profit enterprise
existing exemption from
xempts:
ld: exclusively for reli­
or reformatory pur­
let earnings ofwhich
r or individual.
IBSnmes that the SEC is
ould somehow·be unable
.es Laws.· Although Dig­
re is no evidence to indi­
'. See supra note 32.
ts claimsthatfractional
, it elainledthat viatical
fore exempt from. the re­
: note 163 for discussion
mtivethat if their viati­
it would be. nonetheless
Jecurities,Act· under the
lded. See Life Partners,
14 (D.D.C. 1995).
(D.C. Cir. 1996).
8'.(D.C. Cir.1996).
" 645 (D.C. Cir. 1997).
Berre/itsicase and states'
nts. .
1999] THE FUTURE OF DEATH FUTURES 387
in viatical settlements, and will demonstrate the error in the
D.C. Circuit's reasoning, and the resulting missed opportunity
to increase investor protection, fulfilling the spirit and the letter
of the Securities Laws.
A. Factual Context of the Life Partners Litigation
In August 1994, the SEC filed a complaint against Life
Partners, alleging that the fractional interests in viatica! settle­
ments it marketed constituted securities for purposes of the Se­
curities Act.l30 The SEC. further alleged that Life Partners
violated the registration and antifraud provisions of the Securi­
ties Laws by selling these interests.
131
The district court agreed
and issued four separate orders over a six month period, ulti­
mately enjoining Life Partners from selling fractional interests
in viatical settlements, pending appeal.
132
130. The SEC was careful to say that it was not characterizing. all viatical
settlements as securities, per se. Rather, its focus was on the structure of the
sales: specifically, Life Partners' practice of grouping policies and selling them to
investOrs. See Life Partners, 898 F. Supp. at 18·19. ("The Commission readily
agrees that a straight viatical settlement is not a security. It is the methods em­
ployed by defendants which are challenged.") As the SEC said, the "central ques­
tion in this case is whether such investments - as packaged,. offered, sold, and
administered by the defendants - constitute securities. The case does not raise
the question whether a so-called viatical'settlement itself constitutes a security,
nor does the SEC take the position that such a transaction does constitute a secur­
ity." See Plaintiff SEC's Post-Hearing Brief in Support of Motion for Preliminary
Injunction and Other Provisional Relief and in Opposition to Defendants' Motion
to Dismiss at 10, SEC v. Life Partners, Inc., 898 F. Supp. 14'(D.D.C. 1995) (No .
1:94CV01861) (emphasis omitted).
131. See SEC v. Life Partners, Inc., 898 F. Supp. 14, 18 (D.D.C. 1995).
132. See SEC v. Life Partners, Inc., No. 94-1861,1996 U.S. Dist. LEXIS 3451,
at *3 (D. D.C. Mar. 19, 1996). Life Partners operated a nnmber of programs involv­
ing the sale of life insurance policies purchased from terminally-ill policyholders,
several of which were problematic for the SEC. See Life Partners, 898 F; Supp. at
18. The SEC was not concerned with companies that purchase policies fur their
own account or that act as brokers. See supra note 12. However, because Life
Partners actually assnmes ownership of the policies and then sells fractional inter­
ests in the policies, the transactions are thereby brought within tile Securities
Laws. See Munroe, supra note 124, at D5.
Life Partners offered viatical settlements to individuals who invested as little
as $650 and purchased as little as three percent of a policy. See SEC v. Life Part·
ners, Inc., 87 F.3d 536, 539 (D.C. Cir. 1996). Life Partners also offered viatical
settlements to Individual Retirement ACcounts ("IRAs"). See id. A detailed discus­
sion of the program by which investors could participate in viatical settlements
through their IRAs is beyond the scope of this Article. In short, the Internal Reve­
nue Code prohibits funds from an IRA to be used to purchase life insurance poli­
PACE LAW REVIEW [VoL 19:345 388
cies. See I.R.C. § 408(a)(3) (1994). Life Partners attempted to circumvent this
prohibition by structuring the purchase of policies through a separate trust, with
Life Partners as trustee. See Life Partners, 87 F.3d at 539. The investors in­
structed the IRA to lend money to the trust and to take back a non-recourse note.
See id. The trust used the loan proceeds to purchase an interest in a life insurance
policy, with the death benefits ofthat life insurance policy collateralizing the loan.
See id. When the insured died and the benefits were paid, the proceeds were paid
against the note held by the IRA. See id.
Both LifePartDers' individual investor and IRA programs went through three
incarnations during the course ofthe litigation. See id. Common to all three incar­
nations were the pre-purchase efforts undertaken by Life Partners, including lo­
cating potential viators, evaluating the policyholder's medical condition, reviewing
the terms of the policy, negotiating the purchase price, and preparing and execut­
ing certain legal documents. See Life Partners, 87 F.3d at 539-40. The differences
between the three incarnations centered on the ever-decreasing amount of post­
purchase efforts provided by Life Partners, which, Life Partners contended, settled
the .question ofwhether the fractional interests in viatica! settlements were securi­
ties. See id. at 538. Sterling TrnstCompany, ail independent escrow agent, acted
as agent for Life Partners and actually performed most ofthe post-purchase activi­
ties/administrative functions on its behalf. See id. at 540.
In the first incarnation, called "Version 1" by the court, .either Life Partners or
Mr. Pardo was listed as the policy owner, even after the investors had purchased
their interests. See id. at 545. Thus, the investors had epntractual rights only
against Life Partners, and not against the issuing insurance company. See id. Life
Partners claimed that the investors were the legal policy owners, but, as some sort
of accommodation to the insurance companies, Pardo or Life Partners remained
the record owners. See Life Partners,.87 F.3d at 538. According to Life Partners,
this was not. evidence of any continning entrepreneurial role for Life Partners. See
id. at 539. In Version I, Life Partners offered some post-purchase administrative
services, including monitoring the insured's medical condition, insuring that the
premiums were paid so that the underlying policy did not lapse, converting group
policies into individual policies, and creating a seCondary market in viatica! settle­
ments by arranging the resale of investors' interests when requested and feasible.
See id..
On August 30, 1995, United States District Court for the District of Columbia
held that Life Partners had violated the Securities .Laws by selling unregistered
securities. See SEC v. Life Partners, Inc., 898 F. Supp. 14, 24 CD.D.C. 1995). The
court ordered Life Partners to bring its operations into compliance with the Securi­
ties Laws "forthwith" but did not issue an injunction prohibiting Life Partners
from selling viatica! settlements. See id.
On September 29, 1995, the district court denied Life Partners' . motion for
modification and a partial. stay of the August 30th order, and directed Life Part·
ners to file a progress report within twenty days, detailing Life Partners' efforts to
comply with the Securities Laws. See SEC v. Life PRrtnl'.l'B, Inc., 912 F. Supp.1, 7
<D.D.C. 1996). Life Partners attempted to comply with the September 29th order
by reducing the amount of post-purchase efforts that it undertook. See id. Life
Partners'view, later validated by the Court of Appeals, was that this approach
would keep the sale of fractional interests from falling within the statutory defini·
tion of a "security." See id.
On January 22, 1996, however, the district court amended its August 30th
order and held that the steps that Life Partners had taken were insufficient. See
1999]
Tl
Life Part
United States
July 5, 1996,
versed the di:
id. at 12. This tir
registered fractiol
1996, Life Partnel
22nd order and, a
interests in
U.S. Dist. LEXIS
that Life Partners
ued all of its post­
the Securities La,
Between the (
ners, in an effort 1
II." See SEC v. Li:
corrected the obvi
listed as the
id. Additionally, l
when paid, were (
and no longer thr,
tial investors thai
that he had unre:
Finally, Life Part
retain Sterling Tl
539-40. Life Part:
necessary for the)
Because the (
III. See id. Mr. P
the former presil
agent. See id. at
longer provide pOI
through a design;
The SEC was
the SEC, "such a .
tion, does not dim
investment to fro
the scope of the f
mental Provision
(D.D.C. 1995) (N(
On March 19
Supplemental Pr(
U.S. Dist. LEXIS
the changes mad.
ners had "done Ii
preliminarily enjl
appeal. See id.
133. See SEC
134. In addit
ities, the D.C. C
t
[Vol. 19:345
:ed to circumvent this
a separate trust, with
;39. The investors in­
:k a non-recourse note.
·rest in a life insurance
ollateralizing the loan.
;he proceeds were paid
ns went through three
anon to all three incar­
including lo­
U condition, reviewing
preparing and execut­
39-40. The differences
asingamount of post­
lers contended, settled
ttlements were securi­
nt escrow agent, acted
e post-purchase activi­
3ither Life Partners or
restors had purchased
)ntractual rights only
company. See id. Life .
(lers, but, as some sort
fe Partners remained
-ding to Life Partners,
for Life See
rchase administrative
ion, insuring that the
pse, converting group
Il'ket in viatical settle­
equested and feasible.
e District of Columbia
y selling unregistered
14 (D. D.C. 1995). The
iance with the Securi­
dbiting Life Partners
Partners' . motion for
ld directed Life Part­
ife Partners' efforts to
[nc., 912 F. Supp. 4, 7
:leptember 29th order
dertook. See id. Life
is that this approach
1 the statutory defini­
lded its Augnst 30th
Here insufficient. See
1999] THE FUTURE OF DEATH FUTURES 389
Life Partners appealed the trial court decision to the
United States District Court for the District of Columbia. On
July 5, 1996, that court, reviewing the issues de nouo,lSS re­
versed the district court 2-1, holding, among other things,134
id. at 12. This time, the court enjoined Life Partners from offering or selling un­
fractional interests in viatical settlements. See id. On February 23,
1996, Life Partners filed an affidavit, asserting its had complied with the January
22nd order and, accordingly, stating that it planned to resume sales of fractional
interests in viatical settlements. See SEC v. Life Partners, Inc., No. 94-1861, 1996
U.S. Dist. LEXIS 3451, at *1 (D.D.C. March 19, 1996). The affidavit made clear
that Life Partners interpreted the January 22nd order to mean that if it discontin­
ued all of its post-purchase efforts, it could resume sales without running afoul of
the Securities Laws. See id.
Between the district court's Augnst 1995 and January 1996 orders, Life Part­
ners, in an effort to satisfy the court, implemented what the court called "Version
IL" See SEC v. Life Partners, Inc., 87 F.3d 536, 539-40 (D.C. Cir. 1996). Version II
corrected the obvious problems with Version L See id. Now the investors were
listed as the policy owners, and were in privity with the insurance companies. See
id. Additionally, under Version II, both the invested funds and the death benefits
when paid, were disbursed through Sterling Trust, the independent escrow agent:
and no longer through Life Partners. See id. Life Partners. disclosed to its poten­
tial investors that Mr. Pardo was the 95% beneficial owner of Life Partners and
that he had unrelated dispntes with certain federal regulatory agencies. id.
Finally, Life Partners specifically disclosed that investors were not obligated to
retain Sterling Trust for the post-purchase efforts. See Life Partners, 87 F.3d at
539-40. Life Partners claimed that it furnished investors with all the information
necessary for them to handle these responsibilities on their own. See id.
Because the district court was still not satisfied, Life Partners crafted Version
III. See id. Mr. Pardo resigned as president of Life Partners, and was replaced by
the former president of Sterling Trust, the purportedly "independent" escrow
agent. See id. at 540. Most importantly, Life Partners disclosed that it would no
longer provide post-purchase services at an investor's request, either on its own or
through a designated provider such as Sterling Trust. See id.
The SEC was not persuaded that these changes were significant. According to
the SEC, "such a cosmetic change does not transform the character of the transac­
tion, does not diminish the investors' passivity and reliance on others to bring·this
investment to fruition, and thus does not take the defendants' business outside of
the scope of the securities laws." Emergency Motion of Plaintiff· SEC for Supple"
mental Provisional Relief, at 1-2, SEC v. Life Partners, Inc., 898 F. Supp.14
(D.D.C. 1995) (No. 94-1861) (emphasis omitted).
On March 19, 1996, the district court granted the SEC's Emergency Motion for
Supplemental Provisional Relief. See SECv. Life Partners, Inc., No. 94-1861,1996
U.S. Dist. LEXIS 3451, at *3 (D.D.C. March 19, 1996). The court concluded that
the changes made by Life Partners were merely technical in nature, as Life Part­
ners had "done little to alter the suhstance of services provided to investors," and
preliminarily enjoined Life Partners from selling the fractional interests, pending
appeal. See id.
133. See SEC v. Life Partners, Inc., 87 F.3d 536, 541 (D.C. Cir. 1996).
134. In addition to holding that interests in viatical settlements, are not secur­
ities, the D.C. Circuit ruled that viatical settlements were not exempt under
PACE LAW REVIEW [Vol. 19:345 390
that the fractional interests in viatical settlements sold by Life
Partners were not securities within the meaning of the Securi­
ties Act, and remanded the matter, with instructions to vacate
the injunctions.
135
B. Case Law Context of the Life Partners Litigation
In order to accurately evaluate the D.C. Circuit's decision,
the Life Partners litigation must be viewed in light of its case
law and statutory context, as well as its factual and procedural
context. This evaluation ofnecessity must begin with an exami­
nation of the purposes and history of the Securities Laws, and
an examination of the relevant case law interpreting those
Laws.
1. Background of the Securities Laws
l36
After the stock market collapse in 1929, the federal govern­
ment was eager to restore investor confidence.
137
Promptly af­
ter his inauguration, President Roosevelt began to push for
securities reform, based on the idea that disclosing adequate in­
formation to investors would lessen or eliminate the specter of
fraud.
138
According to the President, the Securities Act "adds to
the ancient rule of caveat emptor, the further doctrine 'let the
§ 3(aX8) of the Securities Act as insurance contracts. For a discussion ofthis issue,
see infra note 163 and accompanying text. The court further held that the notes
collateralized by viatica! settlements and sold to IRAs, like the viatica! settlements
underlying them, were not "securities." See infra note 164.
135. In December 1996, the D.C. Circuit denied the SEC's petition for a re­
hearing. See SEC v. Life Partners, Inc., 102 F.3d 587, 588 (D.C. Cir. 1996). The
SEC then filed an nnsuccessful Motion Seeking Leave to Amend Complaint. SEC
v. Life Partners, Inc., 986 F. Supp. 644, 645 (D.D.C. 1997).
136. For a detailed discussion of the circumstances and considerations
surrounding the enactment of the Securities Act, see generally James M. Landis,
The Legistative History of the Securities Act of 1933, 28 GEO WASH. L. REv. 29.
(1959).
137. The Securities Laws were enacted "to restore the confidence of the pro­
spective investor in his ability to select sound securities." See S. REp. No. 73-47, 1,
at 6-7 (1933); see also H.R. REP. No. 73-85, at 1-2 (1933).
138. The idea was not to have the federal government sign off on the sound­
ness of any particular investment, but rather to require issuers to provide inves­
tors with necessary and material information upon which to make investment
decisions. In his message to Congress on March 29, 1933, President Roosevelt
said:
Of course, the Federal Government cannot and should not take any action
which might be construed as approving or guaranteeing that newly issued
19991
TI.
seller also bew
on the seller."]
The Secur
most importar
ties Act, also .
basic objective
terial informa1
prevent fraud
provide pote
fl1
the Securities
curities prior 1
The provi
investments tJ
ity." Therefore
tional interet
threshold que;
this statutory
securities are Ii
the properties
There is, howe
securities to b
publicity and :
tending the is>
H.R. REp. No. 73·
139. ld.
140. Accordir
investors by proI
formed investmel
(1953) (citing A.C
(1941). See l . . A R R ~
141. See 346
142. The Exc
ties Act tosecurii
curities Act Arnel
See 15 U.S.C. § 7
143. The ana
for the seller of tb
bility of certain rl
al., SECURITIES R
A necessary
empted from the
Of course, such e:
visions of the Sec
definitional ques1
tion of § 3 of the
7
391
[Vol. 19:345
sold by Life
tning of the Securi­
;tructions to vacate

. Circuit's decision,
in light of its case
ual and procedural
!gin with an exami­
curities Laws, and
interpreting those
;he federal govem­
:e.
137
Promptly af­
)egan to push for
osing adequate in..
late the specter of
tritiesAct "adds to
!rdoctrine
discussion of thisissue,
ner held that the notes
llie viatica! settlements
,EC's petition for a re­
I (D.C. Cir. 1996). The
.mend Complaint. SEC
and considerations
-ally James M. Landis
,
..rEO WASH. L. REv. 29.
confidence of the pro­
!e S. REP. No. 7347, 1,
sign off on .the sound­
mers to provide inves­
1 to make investment
1, President· Roosevelt
lot take any action
that newly issued
1999] THE FUTURE OF DEATH FUTURES
seller also beware.' It puts the burden of telling the whole truth
on the seller."139
The Securities Laws reflect the idea that information is the
most important element of investor protection.
140
The Securi­
ties Act, also known as the "truth in securities" law, has two
basic objectives: to insure that investors are provided with ma­
terial information about securities offered for public sale, and to
prevent fraud in the sale of securities.141 To insure that issuers
provide potential investors with the appropriate information,
the Securities Act mandates registration of all non-exempt se­
curities prior to their offer and .sale.
142
The provisions of the Securities Laws apply only. to those
investments that fall within the statutory definition of "secur­
ity." Therefore, the regulation of any investment, including frac­
tional interests in viatical settlements, depends on the
threshold question of whether such an investment falls within
this statutory definition.
l43
securities are sound in the sense that their value will be maintained or that
the properties which they represent will earn profit..
There is, however, an obligation upon us to insist that every issue of new
securities to be sold in interstate commerce shall be accompanied by full
publicity and information, and that· no essentially important element at­
tending the issue shall be concealed from the buying public.
H.R. REp; No. at 2 (1933).
139 . .Id.
140. According to the Supreme Court, the design of the statute was to "protect
investors bypr.omoting full disclosure of information thought necessary to in­
formed investment decisions." SEC v. Ralston Purina Co., 346 U.S. 119, 124
(l953) (citing A.C. Fro,st & Co. v. Coeur D'Alene Mines Corp., 312 U.S. 38, 40
(1941). See LARRy D. SODERQUIST, SECURITIES REGULATION, 179-80 (3d ed. 1994}).
141. See 346 U.S. at 124 n.10.
142. The ExchangeAct extends the investor protection purpose of the Securi­
ties Act to securities listed on national securities exchanges and,· through the Se­
curities Act Amendments of 1964, to securities in the over-the-cOunter markets.
See 15 U:S.C. § 78a-78mm (1994); see also supra SODERQUIST, note 140, at 4-8.
143. The answer to this question has regulatory and compliance implications
for the seller ofthe instrunleilt. In addition, the answer will determine the availa­
bility of certain remedies to purchasers of the instrunlents. See JAMES D. Cox, et
al., SECURlTIES REGULATIONS;. CASES AND MATERIALS (1991).
A necessary follow-up question is whether such a security is statutorily ex-·
empted from the registration requirements pursuant to § 3 of the Securities Act.
Of course, such exempted securities are nonetheless sucbject to the anti-fraud pro­
visions of the Securities Laws. This Part of the Article centers on the threshold
definitional question, which is answered ·herein in the·atIir.mative. An examina­
tion of § 3 of the Securities Act, which lists exempt securities, indicates that frac­
392 PACE LAW REVIEW [Vol. 19:345
2. Definition of "Security"l44
The Securities Act was not intended to provide a broad
federal remedy for all fraud,145 but rather a mechanism to pro­
vide investors with necessary information.
l46
Courts often talk
about the need for flexibility in applying this definition.147 Cog­
nizant of the-remedial goals of the Securities Act,148 Congress
tried to craft a broad definition that would "meet the countless
and variable schemes devised by those who seek the use of the
money of others on the promise of profits."149 Thus Congress
included in the definition the catch-all phrase "investment con­
tional interests in viatical settlements are not exempt from the registration
requirements of the Securities Act. See 15 U.S.C. § 77c(a) (1994).
One commentator argues that viatica! settlements should be exempted from
the· Securities Act through the SEC's new administrative powers under § 28 of the
Securities Act. See Deeley, supra note 12, at 410-12.
144. Unless the context otherwise requires ­
(1) The term "security" means any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral-trust certificate, preorganization
certificate or subscription, transferable share, inyestment contract, voting­
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas, or other mineral rights, any put, call, straddle, option, or
privilege on any security, certificate of deposit, or group of index securities
(including any interest therein or based on value thereof), or any put, call,
straddle, option, or privilege entered into on a national securities exchange
relating to foreign currency, or, in general, any interest or instrument
commonly known as a "security," or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
15 U.S.C; § 77b(aXl) (1994). The Exchange Act definition of "security" is substan­
tially similar to the Securities Act definition, and, according to the Supreme Court,
are to be treated as "virtually identical." Tcherepnin v. Knight, 389 U.S. 332, 335­
36 (1967); see also 15 U.S.C. § 78c(a)(10) (1994); DePeri, supra note 4,at 860-61.
145. See Marine Bank v. Weaver, 455 U.S. 551, 556 (1982); see also North­
land Capital Corp. v. Silver, 735 F.2d 1421, 1431 (D.C. Cir. 1984); Baurer v. Plan­
ning Group, Inc., 669 F.2d 770, 774 (D.C. Cir. 1981). .
146. See SEC v. Ralston Purina Co., 346 U.S. 119, 124 (1953). Additionally,
the Securities Laws provide civil remedies that. offer more protection than a com­
mon law fraud action. See Gordon supra,note 117, at 637.
147. See Pinter v. Dahl, 486 U.S. 622, 653 (1988).
148. See Landis, supra note 136, at 30; see also SEC v. Koscot Interplanetary,
Inc., 497 F.2d 473,479 (5th Cir. 1974); William L. Doerler, SEC v. Life Partners,
Inc.: An Extended Interpretation of the Howey Test Finds That Viatical Settle­
ments Are Investment Contracts, 22 DEL. J. CORP. L. 253, 255-56 (1997).
149. SEC v. W.J. Howey, 328 U.S. 293, 299 (1945).
1999]
tract" to give
and far-read
Numero'
case law mo
and investm
overview is I
in fractional
3. DevE
The first
definition of
SEC v. C.M.
and sale of
moter'spron
offers to cont
ing of the te:
150. "Thrm:
courts have beel
particular inves
investor protect:
THE LAw OF SE(
151. See St
Satisfy the FOUl
Inc., 38 SANTA C
foundation of in
JudgeWald
articulated thre.
ment scheme is
(D.C. Cir. 1996
overly formal re
"instead apply s
at 549. The sec
for all investme:
The final princij
is the most imp
152. See in,
153. 320 U
154. AlthOt
vided interests .
were not fractic
divided interest
interest part of
ests constituted
155. IndeD
the Joiner court
[Vol. 19:345
)rovide a broad
chanism to pro­
oorts often talk
finition.147 Cog­
\.ct,l48 Congress
et the countless
k. the use of the
Thus Congress
investment con­
)m the registration
)94).
d be exempted from
!r8 under § 28 of the
:try stock, bond,
; or participation
. preorganization
contract, voting­
tional undivided
raddle, option, or
, index securities
or any put, call,
:urities exchange
t or instrument
of· interest or
;»t for; guarantee
the foregoing.
lecurity" is substan­
the Supreme Court,
;, 389 U;S. 332; 335­
%note 4, at 860"61.
52); see also North­
84); BaUrer v. Plan­
(953). Additionally,
,tection than a com­
~ c o t Interplanetary,
'?C v. Life Partners,
'hat Viatical Settle­
:56,(1997).
1999] THE FUTURE OF DEATH FUTURES 393
tract" to give the courts flexibility in interpreting this important
and far-reaching definition.150
Numerous commentators and judges have analyzed the
case law modifications to the definition of security in general,
and investment contract in particular.
151
Thus, only a brief
overview is necessary here for later application to investments
in fractional interests in viatical settlements.
152
3. Development of Law on Investment Contracts
The first United States Supreme Court case to interpret the
definition of "investment contract" in the Securities. Act was
SEC v. C.M. Joiner Leasing COrp.153 Joiner involved the offer
and sale of assignments in oil leases, coupled with the pro­
moter's promise to drill test wells.
154
The Court, in finding such
offers to constitute investment contracts, adopted a broad read­
ing of the term.
155
150. "Throughout the history of struggling for an appropriate definition,
courts have been mindful of the fact that the bottom-line question is whether the
particular investment or instrument involved is one that needs or demands the
investor protection of the federal (or state) securities laws." THoMAS LEE HAzAN,
THE LAw OF SECURlTJES REGULATION, 30-31 (3d ed. 1996).
151. See Stephanie Ann Miranda, Can Pre-Purchase Entrepreneurial Efforts
Satisfy the Fourth Prong of the Howey Test?: A Critique of SEC v. Life Partners,
Inc., 38 SANTA CLARA L. REv. 269, 279-82 (1997) for a detailed discussion of the
foundation of investment contract analysis.
Judge Wald, the dissenting judge in the D.C. Circuit opinion in Life Partners,
articulated three background principles to guide the analysis ofwhether an invest­
ment scheme is a security. See SEC v. Life Partners, Inc., 87 F.3d 536, 549-50
(D.C. Cir. 1996) (Wald, J., dissenting). The first principle is to avoid imposing
overly formal restrictions on the determination of what constitutes a security, and
"instead apply securities laws flexibly so as to achieve their remedial purpose." Id.
at 549. The second principle is that the securities laws do not provide protection
for all investments, just to those that meet the definition of "security." Id. at 550.
The final principle is that the Securities Laws "embody the belief that information
is the most important fortn of investor protection." Id.
152. See infra notes 161-270 and accompanying text.
153. 320 U.S. 344 (1943).
154. Although the statutory definition of "security" includes "fractional undi­
vided interests in oil, gas or other mineral rights," the interests at issue in Joiner
were not fractional undivided interests. See Joiner, 320 U.S. at 352. They were
divided interests. See id. Accordingly, the SEC could not rely on the fractional
interest part of the definition, and went on to successfully argue that such inter­
ests constituted "investment contracts." See id. at 351.
155. In determining whether a given investment was an investment contract,
the Joiner court looked to "what character the instrument is given in commerce by
394 PACE LAW REVIEW [Vol. 19:345
Three years later, the Court refined the definition of "in­
vestment contract" in the seminal case of SEC u. W.J. Howey.1OO
In Howey, the Supreme Court held that if "a person invests his
money in a common enterprise and is led to expect profits solely
from the efforts of the promoter or a third· party," the invest­
ment scheme is an investment contract for purposes of: the Se­
curities Act.
157
The Howey definition of investment contract
"permits the fulfillment of the statutory purpose of compelling
full and fair disclosure relative to the issuance of 'the many
types of instruments that in our commercial world fall within
the ordinary concept of a security.'"I58
The Court's statement in Howey has been refined in the
last half century, with little substantive change, into the test
used by courts today to determine whether an investment
scheme is a security for purposes of the Securities Act.
159
In the
Life Partners case for example, the D.C. Circuit applied the
Howey test to the sale of fractional interests in viatical settle­
ments; holding that, to be classified as an investment contract,
the· fractional interests must involve an investment of money
with the expectation of profits from a common enterprise that
depended on the efforts of·others.
160
the. terms of the offer, the plan of distribution, and the economic inducements held
out to the prospect." ld. at 352-53.
156. 328 U.S. 293 (1946). In Howey, a Florida corporation that owneda fruit
grove offered prospective investors land sales contracts fur orchard land, as well as
service contracts for harveSting and marketing. See Howey, 328 U.S at 295. The
investors were required to·engage some service provider in order to enter into the
purchase land sales contracts; and while investors were permitted to make their
own service arrangements for this required maintenance, the service company
under common control with the offeror was heavily promoted to the investors. See
id. at 302. The Court found this arrangement to constitute an investment contract
for purposes of the Securities Act. See id. at 299.
157.ld.
158. ld. (citing H.R. REp. No. 73-a5, at 11 (1933)). Additional support for this
idea comes from Tcherepnin v. Knight, 389 U.S. 332 (1967), where the Court stated
that "[iJn searching for the meaning and scope of the word "security" in the Act,
form should be disregarded for substance and the emphasis should be on economic
reality." ld. at 336 (citing Howey, 328 U.S. at 298).
159. "After half a century, Howey still states the test for determining the
existence of an investment contract. In the intervening years, litigation has not
focused on the correctness of the test, but rather on the precise meaning of one or
more of its parts." Soderquist, supra note 140, at 134.
160. Some commentators and courts distill the Howey test into a four prong
test: (1) an investment of money; (2) with the expectation of profits; (3) derived
from the efforts of others; (4) in a common enterprise. See Miranda, supra note
1999J
C. The D.(
Life Pa
groundS.
161
in viatical s'
the scope of
Life Partne:
from registr
151, at 270; set.
the Regulatory
(1993). Wheth.
prong or not, it
satisfied for an
161. See S:
162. LifeP
issued by Profe:
ical settlement!
securities laws.
Benefit Interest
terizes SEC Lal
also relied on tl
sity of Chicago
tlements were
learned colleag
conclusions. Se.
151; DePeri, su
163. Befor,
tlements canst
settlements cor
§ 3(a)(8) of the
[aJny insura
contract, iss
commission,
functions, 0
Columbia.
15 U.S.C. § 77(
On the iru
redistribute ru
relevant risk if
ners' second at
insurance" anc
shall be constn
for the purpOSE
To bolster its a:
viatical settlen
The D.C.!
tlements did I
court, Life Par
take the norm;
[VoL 19:345
inition of "in­
N'.J. Howey. 156
·on invests his
t profits solely
.,," the invest­
Ises of the Se­
nent contract
of compelling
of 'the many
~ l d fall within
refined in the
. into the test
n investment
Act.
159
In the
.t applied the
riatical settle­
nent contract,
lent of money
1terprise that
inducements held
hat owned a fruit
~ d land, as well as
; U.S at 295. The
~ to enter into the
ted to make their
service company
;he investors. See
restment contract
usupport for this
~ the Court stated
urity" in the Act,
ld be on economic
determining' the
litigation has not
neaning of one or
into a four prong
refits; (3) derived
anda, supra note
1999] THE FUTURE OF DEATH FUTURES 395
C. The D.C. Circuit Decision
Life Partners appealed to the D.C. Circuit on several
groundS.
161
In addition to the claim that the fractional interests
in viatical settlements marketed by Life Partners were beyond
the scope of the definition of "security" in the Securities Laws,162
Life Partners claimed that viatical settlements were exempt
from registration as insurance contracts,163 and, in the alterna­
151, at 270; see also Shanah D. Glick, Are Viatical Settlements Securities Within
the Regulatory Control of the Securities Act of 1933?, 60 U. Cm. L. REv. 957, 969
(1993). Whether a given court actually articulates the ."investment of money"
prong or not, it is uniformly acknowledged that all the elements of thetest must be
satisfied for an instrument to be considered a security. Seeid.
161. See SEC v. Life Partners, Inc., 87 F.3d 536, 538 (D.C. Cir. 1996).
162. Life Partners based its conclusions on a legal opinion from January 1994,
issued by Professor David Lipton at Catholic University, to the effect that the viat­
ical settlements it arranged should not be considered securities. under the federal
securities laws. See SEC Files Fraud, Registration Claims Based on Sale of Death
Benefit Interests, SEC. REG. & L. REp., Sept. 2, 1994, at 1203; see also LPI Charac­
terizes SEC Lawsuit as Groundless, Bus,WIRE, Aug. 31, 1994, at 1. Life Partners
also .relied on the only published commentary on the subject at that time, a Univer­
sity of Chicago Law Review article by Shanah Glick, concluding that viaticru set­
tlements were not securities. Ms. Glick has since been joined by many other
learned colleagues in considering the issue, some of which have come to contrary
conclusions. See Glick supra note 160; Deeley, supra note 12; Miranda, supra note
151; DePeri, supra note 4; Doerler, supra note 148:
163. Before reaching the issue of whether fractional interests in viatical set­
tlements constitute securities, the court examined the issue of whether viatical
settlements constitute insurance contracts, and thus fall within the exemption of
§ 3(a)(8) of the Securities Act. This subsection exempts:
[alny insurance or endowment policy or annuity contract or optional annuity
contract, issued by a corporation subject to the supervision of the insur.ance
commissioner, bank commissioner, or any agency or officer performing like
functions, of any State or Territory of the United States or the District of
Columbia.
15 U.S.C. § 77c(a)(8) (1994).
On the insurance issue, Life Partners first argued that viatical settlements
redistribute risks in the same manner as insurance contracts. It argued that the
relevant risk is that the insured will outlive his or her life expectancy. Life Part­
ners' second argument was that its viatical business was part of "the. business of
insurance" and thus, under the McCarran-Ferguson Act, "[nlo Act of Congress
shall be construed to invalidate, impair, or supersede any law enacted by any State
for the purpose ofreguIating the insurance business." 15 U.S.C. § 1012(b) (1994).
To bolster its argument, Life Partners cited to the various state statutes regulating
viatical settlements as part of their insurance laws.
The D.C. Circuit affirmed the district court's determination that viatical set­
tlements did not qualifY for the § 3(a)(8) exemption. According to the district
court, Life Partners did not "issue insurance policies or· underwrite risk or under­
take the normal activities of an insurance company." SEC v. Life Partners, Inc.,
396 PACE LAW REVIEW [VoL 19:345
tive, that the notes purchased by lRAs, collateralized by viatical
settlements, were beyond the scope of the definition of secur­
ity.164 Because this Article focuses on the issue of whether frac­
tional interests in viatical settlements are securities, detailed
discussions of the insurance and IRA note issues are left for
other commentators.
The D.C. Circuit applied Howey as a three-pronged test re­
quiring (1) the expectation of profits arising from (2) a common
enterprise that (3) depends on the efforts of othersJ65 This Part
898 F. Supp. 14, 19 (D.D.C. 1995). The "hallmark" of insurance is the spreading
and underwriting of a policyholder's risk, unlike the situation with securities in­
vestments, where the risk is borne by the purchaser of the investment and not by
the issuer. Thus, securities, unlike insurance policies, do not transfer or spread
risk. See id. at 18. In viatical settlements, the investor assnmes no market risk,
only maturity risk- the possibility that the viator will outlive his life expectancy,
thereby reducing the investor's return. However, this risk is inherent in every
investment and does not serve what the court termed the "central purpose of insur­
ance"- to transfer risk from the insured to the insUrer. Id.
The D.C. Circuit agreed with the SEC that the fact that the asset underlying a
viatical settlement is an insurance policy was irrelevant. See SEC v. Life Partners,
Inc., 87 F.3d 536, 541 (D.C. Cir. 1996). The court concluded that Life Partners'
offerings were not exempt under § 3(a)(8) and were not shielded from federal regu­
lation by the McCarran-Ferguson Act; viatical settlements are not insurance poli­
cies and "the business of selling fractional interests in insurance polices is no part
of the 'business of insurance.'" Id. at 542.
For additional discussion on the insurance issue, see Glick supra note 211, at
959-68; see also Timothy P. Davis, Should Viatical Settlements Be Considered "Se­
curities" Under the 1933 Act?, 6 KAN. J.L. & Pus. POL'y 75, 77-78 (1997); Deeley,
supra note 12, at 397; DePeri, supra note 4, at 858.
164. Because the D.C. Circuit found that the viatical settlements marketed by
Life Partners were not securities, and "because the essential characteristics of the
investment are no different whether the purchaser is an IRA or an individual in­
vestor, the status of the notes under the 1933 Act does not require extended analy­
sis....we hold that the notes-like the viatical contracts for which they stand
are not securities." SEC v. Life Partners, Inc., 87 F.3d 356, 548-49 (D.C. Cir.
1996). A determination that fractional interests in viatical settlements are in fact
securities wonld undermine this result, but that discussion is beyond the scope of
this Article.
165. See id. at 542. Because this Article is, in part, an evaluation of the Life
Partners decision and its implications, the Author has adopted the three pronged
test used by the D.C. Circuit. The D.C. Circuit did not discuss the investment of
money requirement as a separate prong, but rather as a necessary component of
the expectation of profits. According to the district court, "[tJhe parties to the in­
stant case do not contest that the buyers of viatical settlements are investing
money." SEC v. Life Partners, Inc., 898 F. Supp. 14, 19 (D.D.C. 1995). If a later
court should revisit this issue and rely on a four pronged version of Howey, articu­
lating the investment of money as a specific stand alone element, the ultimate
conclusion would not be affected because viatical settlements satisfy the "invest­

1999] '1
examines eat
law refining
to the facts 0
tique of the ]
1. How
The.firs1
scheme that:
refined by th
Forman.
167
1
the definitiOI
common ven'
its to be deri
of others."l68
The For.
and supervis
ties forpurp(
not purchase
efforts of oth
modities to g
ment, for tl
Forman, to s
ment must 1
solely by per
ment of money"
vances money t
investment. See
166. SeeLit
capital appreciaj
a participation i
case the investo
ment." United I
167.421 U.
168. Forma.
169. Id.atl
prospective inve
Court said, "in e
apartment." Id.
170. "In the
solely by the pre
their investmenl
171. Id. at I
[Vol. 19:345
zed by viatica!
ition of secur­
:- whether frac­
ities, detailed
es are left for
ronged test re­
o (2) a common
8,165 This Part
:e is the spreading
with securitieS in­
:Stment and not by
transfer or spread
es no market risk,
lis life expectancy,
inherent in every
11 purpose of insur­
asset underlying a
:C v. Life Partners,
;hat Life Partners'
frOm federal regu­
not insurancepoli­
e polices is no part
supra note 211, at
Be Considered $e­
-78 (1997); Deeley,
1999] THE FUTURE OF DEATH FUTURES 397
examines each prong of the Howey test, and the relevant case
law refining that prong. Then this Part applies the Howey test
to the facts of Life Partners, and where appropriate, offers a cri­
tique of the D.C. Circuit's analysis.
1. Howey's First Prong: the Expectation of Profit
The first prong of the Howey test calls for an investment
scheme that involves an expectation of profit. 166 This prong was
refined by the Supreme Court in United Housing Foundation v.
Forman.
167
According to the Forman court, the "touchstone" of
the definition of security is "the presence of an investment in a
common venture premised on a reasonable expectation of prof­
its to be derived from the entrepreneurial or managerial efforts
of others."168
The Forman court held that· shares in a state-subsidized
and supervised nonprofit housing cooperative were not securi­
ties for purposes of the Securities Act, because the investors did
not purchase the stock "in the hope of receiving profits from the
efforts of others,"169 Rather, they purchased the shares as com­
modities to get the right to occupy units in the housing develop­
ment, for their personal consumption or use.
170
So, after
Forman, to satisfy the first prong of the Howey test, the invest­
ment must be motivated by an expectation of profits, and not
solely by personal consumption or use.l71
nents marketed by
aracteristics ofthe
r; an individual in­
re extended analy­
'hich they stand
548-49 ( D ~ C . C i r .
lements are infact
.ayond the scope of
l1nation of the Life
the three pronged
. the investment of
:aa.ry component of
e parties. to the in·
ents·are investing
J. 1995). If a later
n of Howey, articu­
nent, . the· ultimate
,atisfy the "invest­
ment of money" prong. An investor who participates in a viatical settlement ad­
vances money to the policyholder, with the expectation of a return on that
investment. See Davis, supra note 163, at 79.
166. See Life Partners, 87 F.3d at 542. "By profits, the Court has meant either
capital appreciation resulting from the development of the initial investment...or
a participation in earnings resulting from the use of investors' funds .... In such
case the investor is 'attracted solely by the prospects of a return' on his invest­
ment." United Housing Foundation v. Forman, 421 U.S. 837, 852 (1975).
167. 421 U.S. 837. (1975).
168. Forman, 421 U.S. at 852.
169. [d. at 858. In order to occupy an apartment in the housing cooperative,
prospective investors had to acquire a certain number of shares of stock. As the
Court said, "in effect, their purchase [of the shares] is a recoverable deposit on an
apartment." [d. at 842.
170. "In the present case there can be no doubt that investors were attracted
solely by the prospect of acquiring a place to live, and not by financial returns on
their investments." [d. at 853.
171. [d. at 858.
398 PACE LAW REVIEW [VoL 19:345
The D.C. Circuit queried as to whether investors in viatica!
settlements have the requisite expectation of profit.
172
The
court found that investors in Life Partners received an asset in
the form ofa claim on future death benefits of the viator. Viati­
cal settlements are by their very nature unable to be "con­
sumed" at the time of the investment.173 They are simply
unmatured rights to collect life insurance proceeds at an inde­
terminate future tiine after the investors commit funds to the
investment. Investors paysome portion of the discounted pres­
ent value of the policy, for the right to receive a financial re­
turn- their pro rata share of the full face value of the policy
when it matures. Thus; the D.C. Circuit correctly determined
that the sale offractionalinterests in viatica! settlements satis­
fied, the first prong of the Howey test, because the investments
were made in the expectation of profit.
, 2. Howey's Second Prong: Common Enterprise
The second prong of the Howey test calls for a common en­
terprise.
174
The com.m.on enterprise requirement centers on the
relationship between the investors, the investment, and the
172. The D.C. Circuit read the Forman gloss on Howey to say that "expected
profits must, inconformity with ordinary usage, be in the form ofa financial return
on the investment, not in the form of consumption." SEC v. Life Partners, Inc., 87
F.3d 536, 543 (D.C. Cir. 1996).
173. According to the court, the investor "is obviously purchasing not for con­
claims cannot be currently consumed- but rather for the
prospect of a return onbis investment." ld. at 543.
Life Partners'encouragedinvestors' expectations of a return on their invest­
ments through its promotional materials,like its "Newsgram," which stated that
"rates of return on viatical settlements consistently out perform market rates by a
wide margin... the disco1.in.t for the longer term commitments is higher, and there­
fore, the potential annual yield more attractive." SEC v. Life Partners, Inc., 898 F.
Supp. 14, 20 (D.D.C. 1995).
174. See Life Partners, 87 F.3d at 542. One commentator, Michael Davis,
breaks the common enterprise requirement ofHowey into a "two-step determina­
tion that (1) investors share commonality and (2) an enterprise exists. Ifan invest­
ment contract fails to exhibit these criteria, it fails to satisfy the second prong of
the Howey test-and ill not fln investment contract constituting a security." Accord­
ing to Mr. Davis,
the question of whether a common enterprise exists depends on whether the
interest acquired by the investor is simply an interest in property and noth­
ing more, or whether the property interest is an interest in an ongoing busi­
ness enterprise and, thus, constitutes a security within the definition of the
Act. Some courts ignore this new portion of the test, while others merge it
into the third prong, giving the issue short shrift. In the interest of com­
-
1999]
promoter,l
isfY this ]
commonali
these com:
proach, lel
jurisdictiOl
Under
joined in a
commonali
sharing of
vertical co:
the Howey
viatical se'
tailed disc·
fractional
propriate 1
pleteness;
the Howey
Davis, supra
175. See
176. Hor
enth Circuits
CURlTIES REa
177. Ver1
interwoven w
Vertical coml
commonality
ity has been )
this approach
dependent on
See Davis, su
the Ninth Cir
mirror the St
together."
178. See
179. See
180. See
181. See
, 163, at 81. C
its own; see I
182. The
tal commonal
of a fractiona
183. The
addition to h(
viatical settlE
[Vol. 19:345
'estors in viatica!
of profit.
l72
The
eived an asset in
~ h e viator. Viati­
able to be "con­
['hey are simply
~ s at an inde­
mit funds to the
discounted pres­
'e a financial re­
Iue of the policy
:mtly determined
ettlements satis­
the investments
'prise
or a common en­
It centers on the
;tment, and the
to say that "expected
1 of a financial return
.Me Partners, Inc" 87
Il'Chasing not for con­
- but rather for the
turn on their invest­
fl," which stated that
rm market rates by a
: is higher, and there­
Partners, Inc., 898 F.
atoT,Michael Davis,
"two-step deteimina­
e exists. Ifan invest­
, the second prong of
~ a security." Accord-
is on whether the
roperty and-noth­
l an ongoingbusi­
e definition of the
.e others merge it
~ interest of com­
1999J THE FUTURE OF DEATH FUTURES 399
promoter,175 depending on which approach a court adopts to sat­
isfy this requirement, horizontal commona!ityl76 or vertical
commonality.1
77
The Supreme Court had occasion to review
these competing approaches and declined to choose one ap­
proach, leaving the different approaches in place in different
jurisdictions.178
Under horizontal commonality, the investors' fortunes are
joined in a pooling of interests.l79 The hallmarks of horizontal
commonality are a pooling of resources, sharing of profits and
sharing of 10sses.
lSO
Because horizontal commonality, unlike
vertical commonality, is accepted as sufficient for this prong of
the Howey test,181 and because the sale of fractional interests in
viatical settlements satisfies horizontal commonality,182 no de­
tailed discussion of vertical commonality and its application to
fractional interests in viatical settlements is necessary or ap­
propriate here.
l83
pleteness and caution, this factor must be considered in all applications of
the Howey test because it is gaining more widespread recognition.
Davis, supra note 41, at 937.
175. See Hazan, supra note 150, at 32.
176. Horizontal commonality has been adopted by the Third, Sixth and Sev­
enth Circuits. See Doeler, supra note 148, at 257 (citing 2 Loss & SELIGMAN, SE­
CURITIES REGULATION 169 (3d ed. 1989».
177. Vertical commonality requires that an investor's fortunes be inextricably
interwoven with the fortunes of the promoter. See Gordon, supra note 117, at 643.
Vertical commonality in turn breaks down into two subcategories: broad vertical
commonality and narrow or strict vertical commonality. Broad vertical commonal­
ity has been recognized by the Fifth, Eighth, Tenth and Eleventh Circuits. Under
this approach, all that is required is that the success ,or failure of the investor is
dependent on, but not necessarily positively correlated with, the promoter's efforts.
See Davis, supra note 163, at 81. Narrow vertical commonality is recognized by
the Ninth Circuit. Uuder this approach, the success or failure of the investor must
mirror the success or failure of the promoter; "their fortunes must rise and fall
together." Davis, supra note 163, at 81.
178. See generally Mordaunt v. Incomco, 469 U.S; 1115 (1985).
179. See SEC v. Life Partners, Inc., 898 F. Supp. 14, 19 (D.D.C. 1995).
180. Sei SEC v. Life Partners, Inc., 87 F.3d 536,543 (D.C. Cir. 1996).
181. See id. at 544; see also Hazan, supra note 150, at 33; Davis, supra note
163, at 81. Courts are divided as to whether vertical commonality will suffice on
its own; see Deeley, supra note 12, at 392; see also Davis, supra note 41, at 939.
182. The D.C. Circuit agreed: "we conclude that all three elements of horizon­
tal commonality - pooling, profit sharing, and loss sharing - attend the purchase
of a fractional interest through LPI." Life Partners, 87 F.3d at 544.
183. The district court found both broad and narrow vertical commonality, in
additionto horizontal commonality, in Life Partners' sale of fractional interests in
viatical settlements. Life Partners, 898 F. Supp. at 20.
PACE LAW REVIEW [VoL 19:345 400
The D.C. Circuit evaluated whether fractional interests in
viatical settlements satisfy the horizontal pooling approach to
the common enterprise prong of the Howey test. The court
looked for the three defining characteristics of horizontal com­
monality: pooling of investment funds, shared profits, and
shared losses.
1M
The court found the 'requisitepooling because Life Partners
involved multiple investors
185
and aggregated their invested
funds to purchase the policies.
186
Thus, the completion of any
one investor's purchase of a fractional interest was dependent
on Life Partners finding investors to purchase the rest of the
policy.187
184. See Life Partners, 87 F.3d at 543.
185. The majority of Life Partners' business at the time of the litigation was
in fractional interests in viatical settlements. Typically, Life Partners would at­
tract 10 to 15 investors in a poliCy, but some policies had as many as 34 investors.
See Brief of the SEC, Appellee at 10, SEC v. Life Partners, Inc., 898 F. Supp. 14
(D.D.C. 1995) (Nos. 95-5364 & 96-5018).
186. See Life Partners, 87 F.3d at 543. At least one commentator would disa­
gree. Ms. Glick engages in a detailed analysis of the various kinds of viatical set­
tlements including multiple purchaser brokered settlements and non-brokered
settlements, and finds a lack of pooling in each case. She contends that the
purchase onractional interests in a poliCy is merely. the sale
of a fixed percentage interest of an insurance poliCy... The buyer purchases
an intangible asset (the future right to a specific amount of money) and ex­
pects to receive profits derived from the value of that asset - not from a
larger enterprise for which the asset is employed. The fact that several in­
vestors purchase a fixed percentage of the same poliCy does not convert indi­
vidual asset sales into a common pool of invested funds. Each investor
forwards her money to buy title to a percentage of an insurance policy. The
transfer of title of that insurance poliCy is the substance of the transaction.
It is not incidental, and it is not a proxy for an ownership interest in a re­
lated enterprise. There is no larger, related enterprise; hence, there is no
pooling. Brokered viatical settlements therefore do not satisfy a horizontal
commonality requirement.
Glick, supra note 160, at 977. Ms. Glick's point with respect to what she terms
"non-brokered" viatical settlements, however, is well taken. In this scenario, when
one investor buys an entire poliCy, there is no pooling of funds. Thus there is no
horizontal commonality. See Glick, supra note 160, at 976; see also Davis, supra
note 41, at 938.
187. See Life Partners, 87 F.3d at 543. Life Partners followed Ms. Glick's ap­
proach, claiming there was no pooling, and thus no shared profits or losses, be­
cause each investor acquired his or her own interest in the policy; further, there
was no requirement that the entire poliCy be purchased. The court correctly fo­
cused on whether there is:
a threshold percentage of a policy that must be sold before an investor can
be assured that his purchase of a smaller percentage interest will be con­
1999]
Thecal
sharing of J
Partners so
could not rE
other inves1
tionate amo
icy, if the r,
predicted, 1:
date of dea
Likewise, if
viator outli'
viator's poli
Thus, t:
fractional il
prong of thE
a common E
summated.
other invest
ing. On the
mum perceJ
investment
[d. at 544. Bru:
to sell a sufficiE
to withdraw fr
essential ingre·
188. See i(
prong of Howe)
tors, so that al
trict court fou
Howey. See id.
189. See L
ners claims th.
mon enterpris
"enterprise" in
part of the con
issue for its dis
efforts of other
prong was not
securities, the ,
no 'venture' as
one's profit de]
cording to one
been resolved i
Howey." See D;
- - - - - - - - - - - - - - . ~ - - ..~ .
l
[Vol. 19:345
onal interests in
ling approach to
test. The court
'horizontal com­
:-ed profits, and
lse Life Partners
i their invested
,mp1etion of any
; was dependent
the rest of the
of the litigation was
l Partners would at­
lany as 34 investors.
nc., 898 F. Supp. 14
l.entator would disa­
kinds of viatical s e t ~
s and non-brokered
l contends that the
buyer purchases
f money) and ex­
et - not from a
; that several in­
not convert indi­
. Each investor
ance policy. The
the transaction.
interest in a re­
lnce, there is no
isfy a horizontal
to what she terms
this scenario, when
>. Thus there is no
e also Davis, supra
"ed Ms. Glick's ap­
rofits or losses, be­
olley; further, there
court correctly fo­
an investor can
est will be con­
1999] THE FUTURE OF DEATH FUTURES 401
The court also found the requisite sharing of profits and
sharing of losses on a policy-by- policy basis. iSS Because Life
Partners sold fractional interests in each policy, one investor
could not realize a gain or loss in a given policy without each
other investor in that same policy gaining or losing a propor­
tionate amount. Since each investor owned a fraction of the pol­
icy, if the return on that policy was as good as or better than
predicted, because the viator died on or prior to the expected
date of death, each investor benefited in a pro rata fashion.
Likewise, if the return were less than predicted, because the
viator outlived his or her life expectancy, all investors in that
viator's policy would share pro rata in such loss.
Thus, the D.C. Circuit correctly determined that the sale of
fractional interests in viatical settlements satisfied the second
prong of the Howey test, because the investments were made in
a common enterprise.
189
summated. If not, then each investor's acquisition is independent of all the
other investors' acquisitions and LPI is correct in asserting there is no pool­
ing. On the other hand, if LPI must have investors ready to buy some mini­
mum percentage of the policy before the transaction will occur, then the
investment is contingent upon a pooling of.eapital.
[d. at 544. Based on Life Partners' own assertions that if it were somehow unable
to sell a sufficient percent ofa given policy, Life Partners would allow the investors
to withdraw from the transaction, the court finds that "pooling is in practice an
essential ingredient of the LPI program." [d.
188. See id. at 543. Life Partners unsuccessfully argued that to satisfy this
prong ofHowey, each investor's money had to be pooled with all of the other inves­
tors, so that all Life Partners investors' fortunes rose and fell together. The dis­
trict court found pooling on a policy-by-policy basis to be sufficient to satisfy
Howey. See id. at 544.
189. See Life Partners, 87 F.3d at 544. In a surprising argument, Life Part­
ners claims that horizontal commonality, ordinarily sufficient to satisfy the com­
mon enterprise prong of Howey, was insufficient because of the lack of an
"enterprise" in the scheme. The D.C. Circuit .deferreddiscussion on this issue as
part of the common enterprise prong, purportedly reserving consideration of this
issue for its discussion of the third prong, involving profits deriving solely from the
efforts of others. See id. Since the D.C. Circuit incorrectly found that the third
prong was not. satisfied, and thus the viatical settlements in question were not
securities, the court never fully addressed this issue, saying only that "we see here
no 'venture' associated with the ownership of an insurance contract from which
one's profit depends entirely upon the mortality of the insured." [d. at 548. Ac­
cording to one commentator, it is therefore "unclear how this issue would have
been resolved ifthe court had evaluated it within the context of the second prong of
Howey." See Davis, supra note 41, at 954 n.162.
402 PACE LAW REVIEW lVoL 19:345
3. Howey's Third Prong: Profits Derived From the Efforts
of Others
The third prong of the Howey test calls for the profits ex­
pected by the investor to be derived "from the efforts of
others."190 This requirement has been the. subject of much de­
bate, and, ultimately, some erosion in the case law.
Under Howey, the profits had to be secured "solely"· from
the efforts of others.191 This requirement has been refined over
time to include profits that come ''primarily," "substantially" or
"predominantly" from the efforts of others.192 In SEC v. Glenn
W. Turner Enterprises,193 the Ninth Circuit relaxed the "solely"
condition in Howey to an evaluation of "whether the efforts
made by those other than the investor are the undeniably sig­
nificant ones, those essential managerial efforts which affect the
failure or success of the enterprise."194 The Ninth Circuit, in
crafting this more flexible approach, was trying to avoid "un­
realistic results" that would come from a dogmatic application
of the "solely" from the efforts ofothers requirement.
19S
Such a
result would "frustrate the remedial purposes of the Act."I96
The Ninth Circuit's interpretation of this prong of the Howey
test is consistent with the objectives of the Securities Laws, and
was implicitly endorsed by the Supreme Court in Forman.
197
190. See Life Partners, 87 F.3d at 545.
191. See SEC v. W.J. Howey, 328 U.S. 293, 299 (5th Cir. 1946).
1 9 2 ~ See Life Partners, 87 F.3d at 545; SEC v. Glenn W. Turner Enterprises,
474 F.2d 476, 481 (9th Cir. 1973); see also Hazan, supra note 150, at 31; SEC v.
Koscot Interplanetary, Inc., 497 F.2d 473, 480 (5th Cir. 1974).
193. 474 F.2d 476 (1973).
194. Turner, 474 F.2d at 482.
195. See id. at 483. Turner involved a pyramid sales scheme in which inves­
tors purchased certain plans that were designed to help them sell the plans to
others. See id. at 478. The investor had to sell at least some plans to others in
order to realize a return on his own investment. See id. Accordingly, the original
investor's profits were at least partially self-derived, and not derived "solely" from
the efforts of others. See id. at 482.
196. SEC v. Koscot Interplanetary, Inc., 497 F.2d 473, 480 (5th Cir. 1974).
197. "The touchstone ofthe definition of security is the presence of an invest­
ment in a common venture premised on a reasonable expectation of profits to be
derived from the entrepreneurial or managerial efforts of others." United Housing
Foundation, Inc. v. Forman, 421 U.S. 837, 852 (2d. Cir. 1975). Most ofthe Circuits
have incorporated Turner's more flexible approach. See Koscot, 497 F.2d at 477;
see also Glick, supra note 160, at 972; Davis, supra note 41, at 944.
1999]
TheD.C
proach and
rigid idea tl
efforts ofott
in its place
tied to the 1
test, the COl:
ments did r
accordingly
linetest ere:
by Howey 01
dent
200
or tl:
The thr
whether the
orily their ef
had been m
applies to d,
the efforts 0
an examinai
determine e
what degret
purchase eft
sion of the e
ous versionE
Life Pal
that concern
These effortl
policyholder
policy by offl
evaluating t
198. In SEI
court found an
not "solely" fron
199. ThebI
investment is n
moter occur POSl
1996) (Wald, J.,
200. See in;
201. See su
202. These
agent, Sterling'
203. SEC v
[Vol. 19:345
"om the Efforts
the profits ex­
the efforts of
of much de­
Law.
d "solely" from
len refined over
ubstantially" or
rl SEC v. Glenn
xed .the "solely"
the efforts
undeniably sig­
which affect the
inth Circuit; in
Lg to avoid "un­
.atic application
nent.
195
Such a
; of the Act."196
19 of the Howey
rities Laws, and
in Forman.
197
.. 1946).
Turner Enterprises,
i;e 150, at 31; SEC v.
b).
neme in which inves­
lem sell the plans to
ne plans to others in
:ordingly, the original
derived "solely" from
iBO (5th Cir. 1974).
presence of an invest­
tation of profits to be
.ers." United Housing
I. Most of the Circuits
;cot, 497 F.2d at 477;
,at 944.
1999] THE FUTURE OF DEATH FUTURES 403
The D.C. Circuit has wisely followed the Ninth Circuit's ap­
proach and eliminated from this prong of the Howey test the
rigid idea that the profits had to be derived "solely" from the
efforts of others. 198 However, in Life Partners, the court adopted
in its place an even more rigid idea, creating a bright-line test
tied to the timing of these efforts.
199
Applying this bright-line
test, the court found that fractional interests in viatical settle­
ments did not satisfy the third prong of the Howey test, and
accordingly were not securities. The court's arbitrary bright­
line test creates an artificial distinction that is neither required
by Howey or its progeny, nor supported by any case law prece­
dent
2
°O or the history and objectives of the Securities Laws.
201
The threshold legal question facing the Circuit was
whether the court could consider all of Life Partners' efforts, or
only their efforts after the investment in the viatical settlement
had been made. Regardless of the modifier a particular court
applies to describe the degree to which profits must flow from
the efforts of others, the third prong of the Howey test requires
an examination of the efforts of the investors and promoters to
determine exactly whose efforts generated the profits, and to
what degree they did so. Accordingly, the pre- versus post­
purchase efforts question will be considered, following a discus­
sion of the efforts Life Partners actually undertook in the vari­
ous versions of its viatical investment programs.
202
Life Partners engaged in substantial pre-purchase efforts
that concerned "all aspects offinding and evaluating policies."203
These efforts included: locating potential viators, evaluating the
policyholder's medical condition and reviewing the terms· of the
policy by offering its "diligence and expertise in discovering and
evaluating the legal status of an insurance policy and the in­
198. In SEC u. Int'l Loan Network, Inc., 968 F.2d 1304 (D.C. Cir. 1992), the
court found an investment contract where the profits came "predominantly" but
not "solely" from the efforts of others. See id. at 1307.
199. The bright-line rule is that "whatever the surrounding circumstances, an
investment is not a security unless significant managerial activities by the pro­
moter occur post-purchase." SEC v. Life Partners, Inc., 87 F.3d 536,551 (D.C. Cir.
1996) (Wald, J., dissenting).
200. See infra note 254 .
201. See supra notes 136-52.
202. These efforts by Life Partners include efforts made on its behalf by its
agent, Sterling Trust, in some cases. See Life Partners, 87 F.3d at 540.
203. SEC v. Life Partners, Inc., 898 F. Supp. 14, 17 (D.D.C. 1195).
404 PACE LAW REVIEW [Vol. 19:345
sured's medical condition before. offering it for investment,"204
negotiating the purchase price, and preparing and executing
certain legal documents.
Life Partners also engaged in post-purchase efforts in some
or all of the versions of its viatical programs.
205
Life Partners
claimed to offer "a comprehensive package of additional serv­
ices,"206 including: monitoring the insured's medical condi­
tion;207 insuring that the premiums were paid so that the
underlying policy did not lapse;208 converting group policies into
individual policies; handling all efforts relating to the collection
and distribution of the' proceeds of the policies, including sub­
mitting claim forms, accepting payment and paying out the pro
rata shares of the proceeds; threatening, initiating and defend­
ing litigation when necessary;209 and, most importantly, creat­
204. Id. at 21.
205. See supra notes 130-35 for a discussion of the various viatica! programs
offered by Life Partners.
206. See Brief of the SEC, Appellee at 2, SEC v. Life Partners, Inc., 898 F.
Supp. 14 (D.D.C. 1995) (Nos. 95-5364 & 96-5018).
207. According to Life Partners, this was accomplished by calling the viator's
attending physician to see if the viator kept his or her most recent appointment. If
the viator missed the appointment, Life Partners attempted to determine if the
viator had.died by contacting associates of the viator. See Plaintiff SEC's Brief in
Support of Motion for Preliminary Injuncl;i.on and Other Provisional Relief at lO­
ll, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No. 1:94CV01861).
208. "For those policies without a premium waiver,Sterling Trust pays premi­
ums periodically out offunds escrowed for that purpose. Ifthe escrowed funds are
exhausted; Sterling Trust collects additional funds from investors for. the payment
of premiums." Brief of the SEC, Appellee at 14, SEC v. Life Partners, Inc., 898 F.
Supp. 14 (D.D.C. 1995) (Nos. 95-6364 & 9&-5018).
These,efforts were the basis for the SEC's unsuccessful 1997 Motion Seeking
Leave to Amend Complaint. According to the SEC, viators were outliving the pe­
riod for which premiums had been reserved, and in some cases, the reserves for
premiums were exhausted prematurely. The SEC asserted that Life Partners was
advancing premium payments to issuers and then seeking reimbursement from
viatica! settlement investors, thus engaging in entrepreneurial post-purchase ef­
forts that satisfy the third prong of the Howey test. The district court was uncon­
vinced and denied the motion. See SEC v. Life Partners, Inc., 986 F. Supp. 645,
647-48, (D.D.C. 1997).
209. According to the SEC:
LPI also reserves the authority to 'take such actions as are necessary to
preserve and protect [investors1 ownership rights, including actious relat­
ing to conversion ofgroup policies to individual policies.' Upon learning that
an insured has died, LPI or Sterling Trust obtains the death certificate, sub­
mits a claim to the insurance carrier for the death benefit, and distributes
the proceeds to investors. When disputes arise regarding the collection of
death benefits from a life insurance company, LPI 'assume[s] an adversarial
1999]
ing a secon(
resale ofth
Thesu
of passive iJ
on Life Pa
managerial
Howey test
ners' progr:
occur" test,
necessaryl
court's mis
suIts in a I
TheD.
forts in all
distinguish
nature, an'
those that
for purpose
entrepren€
role with r·
in order tI
initiated a
Brief of the :
(D.D.C. 1995)
Companyv. I
(EDMich.Ap
No. 94 Civ. !
1995).
210. Wit
investors tha
years [it has]
conditions co
immediately
Inc., 898 F. ~
resale marke
ments that e
211. Lill
. the insuranc
managerial t
Registration
Sept. 2, 1994
212. See
dissent d i s a ~
the policies (
to constitute
[VoL 19:345
~ investment,"204
~ and executing
e efforts in some
)5 Life Partners
additional serv­
medical condi­
tid so that the
!)Up policies into
to the collection
, including sub­
ving out the pro
ing and defend­
lortantly, creat-
IS viatical programs
Irlners, Inc., 898 F.
r calling the viator's
ent appointment. If
to determine if the
intiff SEC's Brief in
isionalRelief at lO­
(No. 1:94CV01861).
g Trust pays premi­
escrowed funds are
Jrs for the payment
Irlners, Inc., 898 F.
197 Motion Seeking
re outliving the pe­
:lB, the reserves for
t Life Partners was '
imbursement from
1 post-purchase ef­
t court wasuncon­
986 F. Supp. 645,
re necessary to
g actions relat­
In . learning that
certificate, sub­
and distributes
he collection of
an adversarial
1999J THE FUTURE OF DEATH FUTURES 405
ing a secondary market in viatical settlements by arranging the
resale of the investor's interest when requested and feasible.
210
The sum of these pre- and post-purchase efforts, on behalf
of passive investors in viatical settlements who were dependent
on Life Partners' expertise, constitute sufficient evidence of
managerial or entrepreneurial efforts to satisfy this prong ofthe
Howey test.
211
Yet, when the D.C. Circuit evaluated Life Part­
ners' programs against its new bright-line "when did the efforts
occur" test, it concluded that none of the versions reflected the
necessary link between the profits and the efforts of others. The
court's misguided reliance on its artificial bright-line test re­
sults in a legally insupportable conclusion.
The D.C. Circuit examined Life Partners' post-pu.rchase ef­
forts in all three versions of its viatical settlement programs,
distinguishing between those efforts that were ministerial in
nature, and thus insufficient for purposes, ofthe Howey test, and
those that were entrepreneurial in nature, and thus sufficient
for purposes of the Howey test. The court found no significant
entrepreneurial efforts on the part of Life Partners.
212
Even if
role with respect to that company and even threaten[s] the filing of a lawsuit
in order to protect its beneficial owners' rights: Defendants have in fact
initiated and defended lawsuits on behalf of their investors.
Brief of the SEC,Appellee at 14,SEC v. Life Partners, Inc., 898F.Supp. 14
(D.D.C. 1995) (Nos. 95-5363 & 96-5018). See also Capital Bankers Life Insurance
Company v ~ Life Partners Inc., No. 94-CV-73458-DT, 1995 U.S. Dist. LEXIS 8734
(ED Mich. Apr. 28, 1995); DeRiggi and Life Partners Inc. v. Legacy Benefits Corp.,
No. 94 Civ. 9678 (DC), 1995 U.S. Dist. LEXIS 18734, at *1 (S.D.N.Y. Dec. 18,
1995).
210. With respect to the secondary market, Life Partners represented to its
investors that it "had never failed to place a policy [in the resale market] in the
years [it has] been in business, and offered the assurance that "if present market
conditions continue (and we see no reason why they wouldn't) the policies will be
immediately repurchased." Brief ofthe SEC, Appellee at 35, SEC v. Life Partners,
Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos. 95-5364 & 96-5018). The promise of a
resale market is more critical with respect to the portion of Life Partners' settle­
ments that cover insured with life .expectancies exceeding 24 months.
21l. Life Partners and Pardo handled all aspects of evaluating and acquiring
the insurance policies underlying the investment contracts and handled "all the
managerial tasks essential to the success of the enterprise." See SEC Files Fraud,
Registration Claims Based on Sale of Death Benefit Interests, SEC. REG. & L. REP.,
Sept. 2, 1994, at 1203, 1205.
212. See SEC v. Life Partners, Inc., 87 F.3d 536, 546 (D.C. Cir. 1996). The
dissent disagreed, considering Life Partners' promise "to assist with the resale of
. the policies combined with its emphasis on the availability of resale opportunities
to constitute managerial post-purchase activities." Since this feature was elimi­
406 PACE LAW REVIEW [Vol. 19:345
this were true, the court failed to recognize that some nominally
pre-purchase. entrepreneurial efforts transcend the closing date
and essentially function as post-purchase entrepreneurial ef­
forts. The investors' initial dependence onLife Partners' exper­
tise continues after the investment, in that investors must rely
on Life Partners to monitor and protect their investment. In
the absence of required disclosures' under the Securities Laws,
this reliance may be to their detriment.
213
Version 1214 satisfied the third prong of the Howey test, for
. three reasons. First, either Life Partners or Sterling Trust was
listed as the record owner ofthe policy, and thus had the ability,
after the purchase closed, to change the beneficiary. This tied
the fortunes ofthe investors even more closely to Life Partners,
because the investors were now dependent on Life Partners to
deal with them honestly and in good faith.215 Yet the D.C. Cir­
nated from Versions II and III, the dissent finds the point immaterial. See id. at
551 (Wald, J., dissenting).
213. Investors passively depend on Life Partners to select a good investment
from a myriad of life insurance policies covering the lives of unique individuals,
each with particular medical circumstances; Life Partners is legally free to make
whatever representations it desires to potential investors, without Securities Act
liability.
The SEC was concerned ahout representations Life Partners made to potential
investors that an "independent reviewing physician" examines viators' medical
records and calculates a life expectancy. It turns out that Dr. Kelly, the "independ­
ent reviewing physician" was really a family practice physician with very limited
experience treating.AIDS. Additionally, the doctor was a director and shareholder
of Life Partners and was paid by Life Partners for his evaluations only if he deter­
mined that the viator qualified for viatication by Life Partners, and if Life Partners
actually purchased the policy. Because its investors were denied the protection of
the Securities Laws, Life Partners was not required by any federal law to disclose
Dr. Kelly's relationship with Life Partners, his experience level in treating AIDS
and his contingency fee arrangement. See Plaintiff SEC's Brief in Support of Mo­
tion for Preliminary Injunction and Other Provisional Relief at 16, SEC v. Life
Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No. 1:94CVOI861s); see also Brief of
the SEC, Appellee at 39, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(Nos. 95-53d64 & 96-5018).
214. See notes 130-35 for a discussion ofthe various versions of Life Pmtners'
viatical programs.
215. A further implication of Life Partners or Sterling Trust listed as the rec­
ord owner, instead of the investors, was the possibility that creditors of Life Part­
ners or Sterling Trust might have access to the policies, ifeither entity experienced
financial difficulties. So, in another very real way, the investors' profits were de­
pendent on Life Partners remaining in financial good health. See Life Partners,
898 F. Supp. at 22; see also Life Partners, 87 F.3d at 551 (Wald, J., dissenting).
1999]
cuit was not I
between the i
In additi(
test because i'
zation and m
upon the eff01
the efforts of
m.anagement
the procedurE
ners or Sterli
the death bel
from the effOJ
216. AccordiJ
or tortious beha
trepreneurlal exe
its arising from 't
217. In its pl
vestors have sint:
the "Policy Fundi
the policy, the ir.
ment; Life Partn'
Brief in Support •
at 9-10, SEC v
1:94CVO 1861).
218. Accordi
[tlhe undispu:
and their surr
are essential
left on his ow.
that he is a st
policy, and tb
under the poJ
tured," i.e., w:
with the inst
whether the b
learned of the
confronted wi
which he was
fronted with 1
terests in dea
towhat portie
an investor Vi
ance on LPI's
Plaintiff SEC's P
and Other Provi:
at 2-3, SEC v. Li
(JHP».
[Vol. 19:345
me nominally
e closing date
preneurial ef­
rlners' exper­
;ors must rely
vestment. In
!uritiesLaws,
rowey test, for
ing Trust was
ad the ability,
tied
Life Partners,
:e Partners to
the D.C. Cir-
IteriaL See id. at
L good investment
rique individuals,
:ally free to make
JUt Securities Act
made to potential
; viators' medical
ly, the "independ­
with very limited
r and shareholder
s only if he deter­
ld ifLifa Partners
l the protection of
to disclose
in treating AIDS
in Support of Mo­
e16, SEC v. Life
); see also Briefof
14 (D.D.C. 1995)
!l of Life Partners'
. listed as the rec­
itors of Life Part­
ntity experienced
;' profits were de­
lee Life Partners.
. J., dissenting).
1999] THE FUTURE OF.DEATH FUTURES 407
cuit was not persuaded that this created a sufficient connection
between the investors' profits and Life Partners' efforts.
216
In addition, Version I satisfied the third prong of the Howey
test because its investors were essentially passive and the reali­
zation and magnitude of any profits depended predominantly
upon the efforts of Life Partners for pre-purchase expertise and
the efforts of Life Partners or Sterling Trust for post-purchase
management of the investment.
217
Even if the investors knew
the procedures, the record owner of the policy (Le., Life Part­
ners or Sterling Trust) would need to be involved in filing for
the death benefits, making any profits predominantly derived
from the efforts of Life Partners or Sterling Trust.
218
216. According to the court, the "promoter's 'efforts' not to.engage in criminal
or tortious behavior and not to breach its contract are not the sort of en­
trepreneurial exertions that the Howey Court had in mind when it referred to prof­
its arising from 'the efforts of others.'" Life Partners, 87 F.3d at 545.
217. In its promotional materials, Life Partners emphasizes that after the in­
vestors have singed the "Agency Agreement and Special Power of Attorney" and
the "Policy Funding Agreement," and written a check for their pro rata portion of
the policy, the investors have no further obligations with respect to the invest­
ment; Life Partners promises to take care of everything else. See Plaintiff SEC's
Brief in Support ofMotion for Preliminary Injunction and Other Provisional Relief
at 9-10, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No.
1:94CV01861).
218. According to the SEC:
[tlhe undisputed facts establish that the ongoing efforts of the defendants
and their surrogates following the sale ofdeath-benefit interests to investors
are essential to the investors' realizing a return. A Life Partners investor
left on his own would encounter a host of problems stemming from the fact
that he is a stranger to the insured, the insurance company that issued the
policy, and the other investors who bought interests in the death benefits
under the policy. An investor thus would not know when his rights "ma­
tured," ie., when the insured died. Indeed, having had no previous contact
with the insured or the insured's agent, he could not readily determine
whether the insured was alive or dead. Assuming that an investor somehow
learned of the insured's death and documented it properly, he would then be
confronted with the problem of making a claim under an insurance policy of
which he was neither the owner nor the beneficiary. He would also be con­
fronted with the problem of identifYing the other investors who bought in­
terests in death benefits under the policy and determining who was entitled
to what portion of the proceeds. The problems would be even more acute for
an investor who bought an interest in a policy of longer "maturity" in reli­
ance on LPI's undertaking to make a secondary market in them.
Plaintiff SEC's Post-Hearing Brief in Support of Motion for Preliminary Injunction
and Other Provisional Relief and in Opposition to Defendants' Motion to Dismiss
at 2-3, SEC v. Life Partners, Inc., 898 F. SllPP. 14 (n.n.c. 1995) (No. 1 :94CV0l861
(JHP».

408 PACE LAW REVIEW [VoL 19:345
1999]
Finally, Version I satisfied the third prong of the Howey
test because Life Partners negotiated the purchase price of the
policy with the viator, connecting the investors' profits with Life
Partners' efforts. However, the D.C. Circuit did not find a suffi­
cient connection between the investors' profits and Life Part­
ners' "efforts." The court myopically fixated on the idea that the
life span of the viator was the sole determinant of the investors'
profits. AcCording to the court, even as record owners, Life
Partners or Sterling Trust would be unable to have any impact
on the "near exclusive determinant of the investors' rate of re­
turn, namely how long the insured However, much
more goes into the profitability of these investments than sim­
ply the date of the viator's death.
220
The initial price paid for
the policy, which is negotiated and set by the experts at Life
Partners, based on their knowledge of the viatica! market and
of the life expectancies of AIDS patients,221 is a material factor.
219. SEC v. Life Partners, Inc., 87 F.3d 536, 545 (D.C. Cir. 1996).
220. According to the SEC:
LPI's efforts, moreover, are essential to the success or failure of the invest­
ment. Although the death benefit under any givenpoIicy is a fixed amount,
the value of an investment with LPI varies as a function of the longevity of
the insured and the length of time it takes after the insured's death for the
investor to realize his pro rata share of the death benefits. LPI's efforts af­
fect the value of the investment at each step in the process, first when it
applies its claimed expertise in identifying insured who will die sooner
rather than later and whose insurance policies are valid and transferable;
then when it undertakes to determine in a timely fashion whether the in­
sured has, in fact, died; then when it obtains the death certificate and sub­
mits the claim to the insurance company; and finally when it distributes the
proceeds to the investors.
Plaintiff SEC's Brief in Support of Motion for Preliminary Injunction and Other
Provisional Relief at 23, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(No. 1:94CY01861).
221. According to Mr. Pardo, investors do not participate in price negotiations
with the viator, because the policy is not offered to investors for purchase until the
seller and Life Partners have settled on a price. Thus, investors:
rely on Life Partners, with its familiarity with going rates and prominence
as a major viatica! company, to obtain a favorable purchase price. Any delay
in obtaining benefits after the insured dies, for example if a former benefici­
ary or the insurance company challenges the assignment, cuts into profits.
Hence, Life Partners' services of investigating policies, drafting valid assign­
ment contracts, and arranging if necessary for former beneficiaries to agree
to the assignment, is also very important. In addition, policy sellers in some
states may have enhanced protections and revocation rights, and some
states may not recognize the purchase of policies by persons without an in­
surable interest. As a result, investors must rely on Life Partners' knowl-
In fact, the
purchase, is
ing of the
trepreneuri
viatical set!
forts of LifE
constitute "
Howey. test.
Versio:r
test, becaus
settlements
the policies
Partners c(]
chaxacteriz·
ices,particl
. settlementE
lishing a r

the sU.ccess
cially true
with longe]
more likely
cause ofth
edgeofmS
1
proposed IE
Life Partners,
222. Acco
activities are (
in Howey req1:
moter." SEC'
223. See 1
viatica! progn
224. See.
225. Life
sued on viatoJ
LPlalsow
in conjunc'
sist invest
sents to in'
the originf
Plaintiff SEC
Provisional R­
(No. 1:94CYO
[VoL 19:345
~ o f the Howey
ase price of the
)rofits with Life
not find a suffi­
and Life Part­
le idea that the
)f the investors'
d owners, Life
ave any impact
tors' rate of re­
However, much
Lents than· sim­
l price paid for
experts at Life
!al market and
naterial factor.
.r. 1996).
re of the invest­
a fixed amoUnt,
the longevity of
i's..deathJor.the
LPrs efforts af­
3S, first when it
will die sooner
1999] THE FUTURE OF DEATH FUTURES 409
In fact, the negotiation of the price, normally completed pre­
purchase, is a factor that continues to resonate beyond the clos­
ing of the investment, and functions as a post-purchase en­
trepreneurial effort. Thus, in Version I, the profits from the
viatical settlements were predominantly derived from the ef­
forts of Life Partners and/or Sterling Trust, who in any event
constitute "others,"222 thereby satisfying the third prong of the
Howey test.
Version II223 also satisfied the third prong of the Howey
test, because of Life Partners' role as market maker for viatical
settlements. The investors were listed as the record owners of
the policies instead of Life Partners or Sterling Trust, but Life
Partners continued to provide post-purchase services, which it
characterized as ministerial in nature.224 However, these serv­
ices,particularly the creation of a secondary market for viatical
settlements, were not simply ministerial in nature.
225
Byestab­
lishing a resale market, Life Partners inexorably linked the
profitability and liquidity of the investments it was selling to
the success of its own efforts in the resale market. This is espe­
cially true for investors who purchased policies from viators
with . longer life expectancies, and thus would presumably be
more likely to avail themselves of such a resale opportunity be­
cause of the greater time period until the investment matures.
nd transferable;
whether·the in­
;ilicate and sub­
t distributes the
iunction and .Other
p.1.4 (D.D.C. 1995)
1 price negotiations
purchase until the
md·prinilmence
,rice. Any delay
for.merbenefici­
uts·intoprofits.
Dg\va:lid'aSsign­
iciaries,to.'agree
'sellers in: Bome
~ t s , and some
Fwithout an in­
'artners' . knowl­
edge of insurance laws in the different states and Life Partners' tracking of
proposed legislation affecting viatical settlements.
Life Partners, 87 F.3d at 555 (Wald, J.; dissenting).
222. According to the district court, "[i]t is not dispositive that some of the
activities are carried out by an escrow agent acting on LPI's instructions. Nothing
in Howey requires the efforts of others to he exclusively those of the issuer or pro­
moter." SEC v. Life Partners, Inc., 898 F. Supp. 14,22, n.ll (D.D.C. 1995).
223. See notes 130-35 for a discussion of the various versions of Life Partners'
viatical programs.
224. See Life Partners, 87 F.3d at 545.
225. Life Partners held itself out as standing ready to repurchase policies is­
sued on viators With longer life expectancies:
LPI also undertakes to reevaluate the insured's medical condition each year
in conjunction with the insured's attending physician and Dr. Kelly to as·
sist investors in deciding whether to hold or sell their interests. LPI repre­
sents to investors that it can resell such investments at prices that will yield
the original investors an annualized return of 15 to 30 percent.
Plaintiff SEC's Brief in Support of Motion for Preliminary Injunction and Other
Provisional Relief at 12, SEC v. Life Partners, Inc., 89.8 F. Supp. 14 (D.D.C. 1995)
(No. 1:94CV01861).
.. ..
PACE LAW REVIEW [VoL 19:345 410
This service functions as an entrepreneurial· post-purchase
service.
The D.C. Circuit, however, was unconvinced of the impor­
tance of resale opportunities, apparently because there was
nothing in the record to indicate that investors actually sought
to liquidate their investments prior to the receipt of death bene­
fits.226 The court noted that it saw no evidence that Life Part­
ners' assistance would add value to the investment contract,
claiming that investors could get the same resale help from any
other viatical settlementfirm.227 Further, Life Partners specifi­
cally warned its clients that viatical settlement transactions
were not liquid assets, and that there was no established resale
market.
228
Thus, the court held that "LPI's promise of help in
arranging for the resale of a policy is not an· adequate basis
upon which to conclude that the fortunes of the investors are
tied to the efforts of the company, much less that their profits
derive 'predominantly' from those efforts."229
Nothing said by the court eliminates the possibility, and in
the case of policies covering viators with longer life expectan­
cies, the probability, that Life Partners'holding itself out as a
market maker for viatical settlements played a role in the deci­
sion to invest. Life Partners agreed to make a secondary mar­
ket. The fact that the court did not find evidence that anyone
had. yet availed themselves of this entrepreneurial post­
purchase service does not mean that the investors failed to take
that service into account in deciding to make the investment­
in determining what their exposure and return were likely to
226. See Life Partners, 87 F.3d at 546. However, as the Supreme Court said
in Howey, it is sufficient that the prnmoter "offer the essential ingredients of an
investment contract." SEC v. W.J. Howey Co., 328 U.s. 293,301 (5th Cir. 1946);
see also PlaintiffSEC's Reply Briefin Support of Motion for Preliminary Injunction
and Other Provisional Relief and in OppQSition to Defendants' Motion to Dismiss
at 11, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No. 1:94CV01861
(JHP».
227. See Life Partners, 87 F.3d at 546. The SEC maintained that this holding
is "directly in conflict with decisions of the Supreme Court and this Court. It has
long been recognized that the mere fact that investors might make their own ar­
rangements for the provision of certain services does not negate their dependence
on the promoter's efforts." Petition of SEC for Rehearing and Suggestion for Re­
hearing En Bane at 14, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(Nos. 95-5364, 96-5018 & 96-5090).
228. See Life Partners, 87 F.3d at 546.
229.Id.
------------------.-- . ~
1999J
be. The ve]
assist in thE
the possibili
set. Absent
value is im}:
of the inve!:
from the vi
derived frO!
satisfying t]
Version
because inv!
tify the viat
alize the pE
claimed to I
sis for the]
viatical sett
Of all OJ
return on tl:
230. With<
effectively be u
market for viat
goes out of bus
factor in their "Ii
See Brief of th!
(D.D.C. 1995) t
Merrill Lynch,
According .
while an in'
wholiquida
market rate
of providing
Id.
231. See n'
viatical progrru
232. Accor
In its prom
carries out '
tive legal 3I
fully compli
sively evalu
from three J
he must reI
insured reg
naire' comp]
formation 0:
l
[Vol. 19:345
post-purchase
l of the impor­
Ise there was
dually sought
of death bene­
;hat Life Part­
nent contract,
help from any
Jrtners specifi­
t transactions
tblished resale
nise of help in
ldequate basis
investors are
It their profits
sibility, and in
life expectan­
itself out as a
lIe in the deci­
econdary mar­
:e that anyone
meurial pOst­
~ failed to take
, investroent­
were likely to
Ilpreme Court said
I ingredients ,of an
01 (5th Cir. 1946);
iminary Injunction
Motion to'Dismiss
(No. 1:94CV01861
d that this holding
this Court. It has
aake theirownar­
:l their dependence
Suggestion: forRe­
I. 14 (D.D.C. 1995)
1999] THE FUTURE OF DEATH FUTURES 411
be. The very fact that Life Partners advertised that it would
assist in the resale if requested adds value to the investment­
the possibility of an exit strategy from an otherwise illiquid as­
set. Absent questioning the actual investors, quantifying that
value is impossible, but it is naive to simply write this factor out
of the investment equation.
230
Thus, in Version II, the profits
from the viatical settlement investments were predominantly
derived from the efforts of Life Partners and/or Sterling Trust,
satisfying the third prong of the Howey test.
Version 111
231
satisfied the third prong of the Howey test,
because investors had to rely on Life Partners' expertise to iden­
tify the viatical settlement investment opportunities and to re­
alize the payout on the policies. In Version III, Life Partners
claimed to provide no post-purchase support, serving as the ba­
sis for the D.C. Court's holding that the fractional interests in
viatical settlements were not securities.
Of all of Life Partners' services, those most important to the
return on the investment were the selection ofviators
232
and the
230. Without Life Partners to create a secondary market, -the investors will
effectively be unable to liquidate their investments. There is no other secondary
market for viatical settlements. So, if Life Partners gets into financial trouble, or
goes out of business, its investors are denied what could have been a significant
factor in their view ofthe profitability of this iD.vestment- the chaIice for liquidity.
See Brief of the SEC, Appellee at 35, SEC v. Life Partners, Inc., 898 F. Supp. 14
(D.D.C. 1995) (Nos. 95-5364 & 96-5018) (citing Gary Plastic Packaging Corp. v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230, 240 '(2d Cir. 1985).
According to the SEC:
while an investor who must either hold the investment until "maturity" or
who liquidate on his own might realize a negative rate of return (relative to
market rates), the defendants promote their resale mechariism as a means
of providing high returns.
Id.
231. See notes 130-35 for a discussion of the various versions of Life Partners'
viatical programs.
232. According to the SEC:
In its promotional materials, LPI represents that, in selecting policies, it
carries out 'months of research and due diligence' and 'conducts an exhaus­
tive legal and medical review to assure [LPI's] underwriting criteria is [sic]
fully complied with.' According to LPI's promotional materials,-LPI 'exten­
sively evaluates the medical condition of the 'Viaticator' [Le., the-insured]
from three principle [sic] sources': (1) the insured's medical records (which
he must release to LPI) and an 'extensive questionnaire' filled. out by the
insured regarding his medical history; (2) a 'thorough medical question­
naire' completed by the insured's attending physician 'providing detailed in­
formation on the progress of the patient's condition., all related diseases to
412 PACE LAW REVIEW [Vol. 19:345
pricing of the viatical settlements. These efforts in a real sense
determined the ultimate return on the investment. Admittedly,
Life Partners cannot control when the viators die, but it cer­
tainly does control how it prices the settlements; based on its
expert evaluation of the viator's life expectancy.233 Investor
profits depend on whether the viator dies within the period esti­
mated by the experts at Life Partners.
234
Its nominally pre­
purchase selection, negotiation and pricing efforts resonate be­
yond the closing of the sale of the fractional interests in the vi­
atical settlements to function as entrepreneurial post-purchase
efforts.
235
Investors rely on Life Partners' expertise in selecting poli­
cies for viatication. Investors new to the viatical settlement in­
dustry may know nothing of AIDS or any other terminal illness
suffered by viators. Data such as T-cell counts and viral loads
would offer such investors essentially no usable information on
the AIDS condition, treatments and prognosis: and the physician's certifica­
tion that the insured is mentally competent; and (3) a review of 'all relevant
medical records' conducted by LPI's 'independent reviewing physician,'
.based on whose estimate of the insured's life expectancy LPI 'evaluatelsJ the
anticipated term of the policy holding period.
Plaintiff SEC's Brief in Support of Motion for Preliminary Injunction and Other
Provisional Relief at 7, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(No. 1:94CVOI861).
233. According to the dissent:
IwJhether investors realize the profits they expect depends on whether LPI's
estimation of the insured's life span is accurate. The longer the insured re­
mains alive, the lower the investors' profits, particularly if premiums must
continue to be paid. Moreover, the record clearly supports the district
court's finding that investors rely on LPI's evaluation of the insured's life
expectancy. LPI emphasizes the detailed assessment of the insured's medi­
cal condition that it performs in its promotional matures. While the T-cell
count of a person with AIDS is an important indicator of life expectancy,
LPI's reviewing physician testified that he bases his life expectancy esti­
mates on several other factors as well, such as incidence of opportunistic
infections, platelet count, pulmonary studies, etc. Potential advances in the
treatment of AIDS must also be taken into account.
SEC v. Life Partners, Inc., 87 F.3d 536, 555 (D.C. Cir. 1996) (Wald, J., dissenting).
234. See id. at 556 (Wald, J., dissenting).
235. This idea has support in the dissent: Judge Wald disagrees that all in­
vestments based onjust pre-purchase managerial efforts should be outside the def­
inition of security; she believes the third prong can be met by pre-purchase
managerial activities when "it is the success of these activities, either entirely or
predominantly, and not the market, that determines whether profits are eventu­
ally realized. The pre-purchase activities must be directed at the sale of the invest­
ment opportunity." Id. at 551 (Wald, J., dissenting).
1999J
which toma
naturally re:
atingthe po
the D.C. COl
in nature, ig
post-purcha:
nantly on L:
price for the
alize the pr<
tion of the il
Life Pm
wholly irre1
whomever p
are only mi
claim that, I
ices and pur
tors couldnc
Even if the i
take the pos
perts at Li£
unwilling,23£
236. See id
medical informf
they "rely on re
insured and the
Motion for Preli
Partners, Inc., I
the investors ru
basis to commit
Although in,
condition filE
cal informati
offices. Nor (
beyond that
plicated nat1
able to asses
Life Pa.rtners, 8
237. Id. at
238. Id. at
239. Accorc
Although in
the district c
bulk of defel
little as 3% ­
413
LV01. 19:345
in a real sense
t. Admittedly,
lie, but it cer­
:, based on its
y.233 Investor
he period esti­
lOminally pre­
s resonate be­
'eSts in the vi­
post.,.purchase
selecting poli­
settlement iIl­
nninal illness
nd viral loads
nformation on
::ian's certifica­
of 'all relevant
ng physician,'
:lvaluate[s]. the
nction.and Other
14 (D.D.C. 1995)
whether LPfs
heinsuredre­
remiUlllB must
;s the district
! insured's life
lSured's medi­
blle the T-wll
fe expectancy,
peetancy esti­
. opportunistic
lvances in the
.d, J., dissenting).
grees that all in­
oeoutsidethe def­
by pre-purchase
either entirely or
:-ofits are eventu­
we of the invest­
1999] THE FUTURE OF DEATH FUTURES
which to make their investment decision. Such investors would
naturally rely on Life Partners' expertise in selecting and evalu­
ating the policies and in pricing the viatical settlements, efforts
the D,C. Court incorrectly characterized as purely pre-purchase
in nature, ignoring the continuing role such efforts played in the
post-purchase period. 236 Investors' profits depend predomi­
nantly on Life partners' expertise in negotiating the purchase
price for the policy. As the dissent said, "whether investors re­
alize the profits they expect depends on whether LPI's estima­
tion of the insured's life span is accurate."237
Life Partners argued that "its pre-purchase functions are
wholly irrelevant and that the post-purchase functions, by
whomever performed, should not count for Howey because they
are only ministerial. "238 Life Partners makes the unrealistic
claim that, since it ceased performing any post-purchase serv­
ices and purportedly ceded such services to investors, the inves­
tors could now undertake all necessary post-purchase functions.
Even ifthe investors had the legal right, or obligation, to under­
take the post-purchase efforts previously undertaken by the ex­
perts at Life Partners, most, as a practical matter, would be
unwilling,239 or perhaps unable
240
to do so. As the district court
236. See id. at 548. Life Partners investors typically do not see any of the
medical information provided by the viators to the viatical settlement firm; rather,
they "rely on representations made by LPI and its sales representatives that the
insured and the policy meet LPI's criteria." See PlaintiffSEC's Brief in Support of
Motion for Preliminary Injunction and Other Provisional Relief at 9, SEC v. Life
Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No.1: 94CV01861). Presumably,
the investors are to take it on faith that these criteria are somehow a sufficient
basis to commit funds to the investment. Seesupro note 213.
Although investors can ask for a copy of the report on the insured's medical
condition filed by LPI's reviewing physician, they can only review the medi­
cal information supplied by the insured and the insured's physician in LPI's
offices. Nor do they have any access to medical information on the insured
beyond that obtained by LPI... In any event, given the technical and com­
plicated nature of this medical information, few investors are likely to be
able to assess the reliability of LPI's life expectancy estimate.
Life Partners, 87 F.3d. at 555 (Wald, J., dissenting).
237. Id. at 555 (Wald, J., dissenting).
238. Id. at 545.
239. According to the SEC:
Although in theory other persons might perform these services, they are, as
the district court found, performed by defendants or their agents. The vast
bulk of defendants' businf'.'Ill involvQs tho orue of fractional interests - as
little as 3% - of an insurance policy. Any such investor seeking to perform
414 PACE LAW REVIEW [Vol. 19:345
said, "it is neither realistic or [sic] feasible for multiple inves­
tors, who are strangers to each other, to perform post-purchase
tasks without relying on the knowledge and expertise of a third
party."241
these services would have to coordinate with all ofthe other investors on the
policy, and would of course have to undertake considerable added expense
(and a commensurate lower return) to do so.
Petition of the SEC for Rehearing and Suggestion for Rehearing En Bane at l3,
SEC v. Life Partners, Inc., 898 F. Supp.14 (D.D.C. 1995) (Nos. 95-5364, 96-5018 &
96-5090).
240. Under some state statutes, only licensed viatical settlement providers
are authorized to contact the insured to check on their health, and then only at
specific intervals. See 28 TEx. ADMIN. CODE § 3.10012 (West 1996). However, a
small investor in a life insurance 'policy needs the post-purchase assistance of a
licensed viatical settlement firm to learn of the viator's death, information that is
critical to realizing a return on the investment.
This regulation obviously benefitsviators, who, in the throes of their illness,
could likely do without the vulture-circling phone calls. For example, Kendall
Morrison used a broker to viaticate several life insurance policies five years ago
when he was "extremely sick - wasting, unable toretainfood, in diaper." Morri­
son's health began to improve in response to a regime including· protease inhibi­
tors. The investor in one· of his policies became impatient, sending him federal
express queries about his health. According to Morrison, it was as if the investor
was asking, "are you still alive?" Morrison moved and changed his phone number
in an effort to avoid the investor's queries. The investor threatened to sue the
viatical broker for fraud and breach of contract because after 5 years, Morrison
was still alive. The broker agreed to repurchase the policies to avoid a lawsuit and
to spare Morrison additional grief. See Still Waiting, N.Y. TIMEs, July 19, 1998, at
11; see also Sandal, supra note 46; see also Stephen Rae, Die, Damn You - I've Got
Money On It, THE INDEPENDENT, Aug. 2, 1998, at 14.
Moreover, in some cases, performing the post-purchase activities might be im­
possible. At least one version of Life Partners' promotional materials stated that
that the option to take over post-sale functions was only possible if the buyer
owned the entire policy. See Brief of the SEC, Appellee at 43, SEC v. Life Partners,
Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos. 95-5364 & 96-5018).
241. SEC v. Life Partners, No. 94-1861 (RCL), 1996 U.S. Dist. LEXIS 3451, at
*2 (D.C. Cir. March 19, 1996). The SEC agreed:
It simply is not feasible for multiple investors, who are strangers to each
other, to profit from the purchase of fractional interests in viatical settle­
ments without delegating responsibility for "post-closing" tasks to someone
who possesses the knowledge, skill, and expertise needed to perform them.
Without the assistance of such a third party, how are a dozen or twenty or
thirty strangers who happen to own fractional interests in the death bene­
fits under a given policy going to convert a group policy to an individual
policy if the insured loses his job and ceases to be a member of the covered
group? [M]onitor the insured to determine when he dies? [D]ocument his
death once it occurs? [Slubmit a claim to the insurance company? OOnstruct
the insurance company as to how the payment of benefits should be made?
[Alttend to the initiation and prosecution of claims against the insurance
1999]
While·
these effort
theinvestn
locating an
tors, and. nc
ing the Ho
purchase.
24
sound brig
these effort
drew a bri!
purchase e:
purchase e
failure of t.
company n
evident thf
on some tb
Emergency M
SEC v. Life P;
242. SEC
243. See i
tion for Rebe.
(D.D.C. 1995).
Themajori
considered
the "pred01
ing the set
will almos1
first place.
Id.
244. The
that investors
"the SEC is u
ence upon in,
SEC forRehe
ners, Inc., 891
Accordinj;
tance of LPrf
before the mo
245. The
Defendant
insured's I
legislation
knowledge
informatio
vestments
about insu
-
[Vol. 19:345
utiple inves­
ost-purchase
ise of a third
restors on the
lded expense
: En Bane at 13,
·5364, 96-5018 &
ement providers
md then only at
96). Howl;'lver, a
~ assistance .of a
'ormation that is
I of their illness,
IWUlple, Kendall
~ s five years ago
I diaper." . Morri­
protease inhibi­
ling him federal
18 if.the investor
is phone· number
taned to sue the
years, Momson
)id·a lawsUit and
July 19, 1998, at
n You - I've Get
tieS might be im­
,rials· stated that
.ble if the· buyer
v. Life Partners,
'. LEXIS 3451, at
Ilgers to each
iatiCal ~ t t l e ­
tS to smneone
terform . them.
l or twenty or
e death bene­
an individual
)f the· covered
IJocument his
ny? mnstruct
,uJd- be made?
;he insurance
1999] THE FUTURE OF DEATH FUTURES 415
While the D.C. Circuit agreed with the district court that
these efforts were "undeniably essential to the overall success of
the investment,"242 it would not allow these "essential" efforts of
locating and evaluating the medical condition of potential via­
tors, and negotiating a purchase price, to count towards satisfy­
ing the Howey test simply because they occurred prior to the
purchase.
243
The court applied its rigid and precedentially un­
sound bright-line rule to discount the "essential" quality of
these efforts,244 despite the fact that the Supreme Court never
drew a bright-line distinction in Howey between pre- and post­
purchase efforts, and despite the fact that these nominally pre­
purchase efforts have an ongoing importance to the success or
failure of the investment.
245
company if benefits are not paid in accordance with the policy? It is self­
evident that the majority of such investors will remain passive and will rely
on some third party to perfo,rm the necessary tasks to obtain a pay-out,
Emergency Motion of Plaintiff SEC for Supplemental Provisional Relief at 4-5,
SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (No. 94-1861 (RCL».
242. SEC v. Life Partners, Inc., 87F.3d 536, 547 (D.C. Cir. 1996).
243. See id. at 547-48; see also Petition of the SEC for Rehearing and Sugges­
tion for Rehearing En Bane at 2, SEC v. Life Partners, Inc., 898 F. Supp. 14
(D.D.C. 1995).
The majority's disregard of pre-purchase efforts is especially troubling when
considered in light of the principle that efforts are relevant only if they are
the "preQ.ominant" source of the investors' profits. In any investment involv­
ing the securitization of an asset, the predominant determinant of profits
will almost always be the skill of the promoter in selecting the asset in the
first place, something which typically will occur pre-purchase.
Id.
244. The court ignored the economic reality of these investments and found
that investors' profit "depends entirely upon the mortalityof the insured" and that
"the SEC is unable to show that the promoter's efforts have a predominant infiu­
ence upon investors' profits." Life Partners, 87 F.3d at 548. See Petition of the
SEC for Rehearing and Suggestion for Rehearing En Banc at 8, SEC v. Life Part­
ners, Inc., 898 F. Supp. 14 (D.D.C. 1995). .
According to the SEC, it would be "hypertecbnical ...to discount the impor­
tance of LPfs pre-purchase entrepreneurial functions simply because they occur
before the moment of closing." Life Partners, 87 F.3d at 547.
245. The post-purchase efforts of LPI are not merely ministerial.
Defendants themselves concede that post-sale evaluation and monitoring of
insured's health require sensitivity (in some states, legislation or proposed
legislation "restricts contact with the insured"); it also requires medical
knowledge and skill, especially in situations where LPI uses the medical
information to aid investors in deciding whether to retain or sell their in­
vestments. Many of the other tasks require extensive detailed knowledge
about insurance policies, litigation, and other specialized areas. And many
416 PACE LAW REVIEW [VoL 19:345
According to the D.C. Circuit, in order for Howey's third
prong to be met, the promoter must perform managerial and
entrepreneurial efforts after the investment is purchased.
246
Certainly, the third prong of the Howey test is satisfied in such
a situation, but this is not the only such scenario that satisfies
the Howey test.247 Under the D.C. Circuit's new and unique
bright-line test, an "undeniably significant" action undertaken
by the promoter immediately after the purchase would satisfY
the Howey test, yet the identical action taken immediately prior
to the purchase would not.24S This bright-line rule establishes a
of these efforts required coordinating among as many as thirty or more in­
vestors in a single policy.
Appellee's Brief at 44, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(Nos. 95-6364 & 96-5018),
It is true, as the panel majority notes that in other cases where pre­
purchase efforts were considered, those courts also found significant post­
purchase efforts. But the majority does not explain why pre-purchase ef­
forts that are considered significant in conjunction with post-purchase ef­
forts should lose all significance when considered in isolation.
Petition ofthe SEC for Rehearing and Suggestion for Rehearing En Bane at 10-11,
SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995).
246. Life Partners, 87 F.3d at 548.
247. The dissent proposes that compliance with this third prong of Howey be
determined by: "focusing on the kind and degree of dependence between the inves­
tors' profits and the promoter's activities." I believe that
the third prong of the Howey test can be met by pre-purchase managerial
activities of a promoter when it is the success of these activities, either en­
tirely or predominantly, that determines whether profits are eventually re­
alized. These pre-purchase activities must be directed at the sale of the
investment opportunity; for example, efforts to build up a business are di­
rected at making a business successful and therefore would not qualify, even
if the ultimate aim is to sell the business to an investor. [citations omittedl.
In practice, this requirement may impose a time element, as activities that
do not occur around the time of sale are unlikely to be found to be directed at
the sale of an investment opportunity. But provided the promoter's activi­
ties are so directed, the fact that the activities occurred prior to purchase
would not bar the investment from qualifying as an investment contract
under Howey.
ld. at 551 (Wald, J., dissenting).
248, For example, if an invelltor giVAR fundI'! to Life Partners, and thon Life
Partners takes a few days to locate a viator, evaluate his or her medical condition,
and pools that investor's funds with the funds of other investors, the investment is
a security. However, if the same viator is located and evaluated just before the
investor commits the money, that otherwise identical investment is not a security
for purposes of the Securities Act. See Petition of the SEC for Rehearing and Sug­
gestion for Rehearing En Bane at 6, SEC v. Life Partners, Inc., 898 F. Supp. 14
(D.D.C. 1995) (Nos. 95-5364, 96-5018 & 96-5090).
1999]
distinction 1
needs for il
ClassifYing
some additi
formation fi
market, wl:
The D.C. (
ments with
only on su(
or simply
nities.
252
Nocou
of Howey a
profits be E
should the)
creating a
In both sil
tion about its
they may mak
Judge Waldst
the investors'
551).
249. Thee
the registrati{
250. "The
tlements... sl
viatical settle:
Support of M{
Opposition to
F. Supp. 14 (1
251. Inve:
with whicl
they are I
Pardo and
"issues" wi
discussion
financial c
offShore C{
self, who J
Plaintiffs Bri
sional Relief
(No.1: 94CV(
252. QuE
out. Viators \
benefits, whil
253. See
[Vol. 19:345
lowey's third
nagerial and
purchased.
246
isfied in such
that satisfies
, and unique
1 undertaken
would satisfY
:diately prior
establishes a
"?I or more in­
14 (D.D.C. 1995)
s where pre­
;nifica.nt post­
l-purchase ef­
;-purchase ef­
:n Bane at 10-11,
~ o n g of Howey be
ltween the inves-
Ie managerial
ioo, either en­
:wentually re­
te sale of the
sinoos are di­
;qualify,even
ions omittedl.
lctivities that
be directed at
noter's activi­
r to purchase
nent contract
~ s , and then Life
ledica! condition,
he investment is
d just before the
is not a security
learing and Sug­
898 F. Supp. 14
1999] THE FUTURE OF DEATH FUTURES 417
distinction that is without a difference in terms of the investors'
needs for information, a central goal of the Securities Laws.
ClassifYing viatical settlements as securities, while generating
some additional expenses to promoters,249 will increase the in­
formation flow and arguably bring additional investors into this
market, while furthering the goals of the Securities Laws.
25o
The D.C. Circuit's decision leaves investors in viatical settle­
ments with the choice of making an investment decision based
only on such information as they can gather on their own,251
or simply walking away from the investment opportu­
nities.252
No court before Life Partners has ever read into this prong
of Howey a requirement that the efforts of others generating the
profits be expended after the purchase of the investment, nor
should they have.253 Nonetheless, the D.C. Circuit did just that,
creating a bright-line test, with no explicit precedential sup-
In both situations investors rely on the promoter, and are in need of informa­
tion about its expertise, its track I:ecord, its officers, and other matters, so that
they may make an informed decision on whether to invest. The majority's test, as
Judge Wald stated, "elevates a formal element, timing, over the economic reality of
the investorS' dependence on the promoter." Id. (citing Life Partners, 87 F.3d at
551).
249. These expenses could be passed on to the investors, as beneficiaries of
the registration requirements. .
250. "The depth, liquidity, and competitiveness of the market in viatica! set­
tlements... should be enhanced, not diminished, by requiring those who securitize
viatica! settlements to comply with the securities laws." Plaintiff's Reply Brief in
Support of Motion for Preliminary Injunction and Other Provisional Relief and in
Opposition to Defendants' Motion to Dismiss at 20, SEC v. Life Partners, Inc., 898
F. Supp. 14 (D.D.C. 1995) (No.1: 94CV01861) (emphasis omitted).
251. Investors receive virtually no information regarding LPI, the company
with which they are entering into a contractual relationship and to· which
they are entrUsting their money. Unless they undertake to investigate
Pardo and the company, they have no way of knowing that. [pardo has had
"issues" with federal regulators in the past-- see supra note 122 hereof for a
discussion of these issues.] Nor do they have any way of assessing LPrs
financial condition; not only is LPI closely held, but its majority.ownersare
offshore companies whose owners cannot be readily identified. Pardo him­
self, who founded LPI, claims not to know who the owners are.
Plaintiff's Brief in Support of Motion for Preliminary Injunction and Other Provi­
sional Relief at 13-14, SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995)
(No.1: 94CVOI861).
252. Query what would happen to this vital industry if investors simply opted
out. Viators would be left. with fewer and fewer options in terms of accessing death
benefits, which might ultimately cost them their lives.
253. See Life Partners, 87 F.3d at 553 (Wald, J., dissenting).
418 PACE LAW REVIEW [Vol. 19:345
1999]
port,254 that distinguished pre-purchase efforts from post­
purchaseef
forts weret
254. The D.C. Circuit supports its decision to create this arbitrary and insup­
portable new bright-line test with two cases, both of which are factually distin­
guishable, and arguably do not support the new bright;..line test. Neither case
argues that the timing of the efforts of others is dispositive. Instead, the cases
focus on "the role that market forces as opposed to the promoter's activities play in
the realization of profits." Id.
First, in Noo u. Key Futures, Inc., 638 F.2d 77 (9th Cir. 1980), the promoters
offered investments in silver bars, which, unlike life insurance policies covering
the lives of unique individuals, are fungible and capable of being independently
and empirically evaluated. See id. at 79 Like Life Partners, Key Futures, the pro­
moter, made efforts to locate prospective investors. However, unlike Key Futures,
Life Partners performed "highly specialized functions in identifYing and evaluat­
ing individual policies suitable for purchase by investors." Life Partners, 87 F.3d
at 547.
Key Futures promised that, at a customer's request, it would store the silver
bars at no charge for a year after purchase; further it promised to repurchase them
at the spot price quoted in the Wall Street Journal. See Noo, 638 F.2d at 79. The
Noo court .concluded that these·services were "only minimaUy related to the profit;..
ability of the investment: Once the purchase ofsilver bars was made, the profits to
the investor depended upon the fluctuations of the silver market, not the manage­
rial efforts of Key Futures." Id. at 79. This is the sum total of the Noo court's
discussion of the managerial efforts requirement of the Howey test.
The Noo court found that, asa result, the investment contracts for the silver
bars were not securities. See id. at 79-80. Despite the holding, the Noo court in no
way articulated, even implicitly, a bright-line test splitting this prong of Howey
into irrelevant pre-purchase efforts and dispositive post-purchase efforts. See id.
There is a significant difference between a commodity with an established
market, whose value can be independently verified, and a commodity like the life
insurance poliey of a terminally-ill person. There is corresponding difference in the
need for information about these two investments. As the Life Partners dissent
points out:
When profits depend on the intervention ofmarket forces, there will be pub­
lic information available to the investor by which the investor could assess
the likelihood of the investment's success .... Where profits depend on the
success of the promoter's activities, however, there is less access to protec­
tive information and the type of information that is needed is more specific
to the promoter.
Life Partners, 87 F.3d 536, 552 (D.C. Cir. 1996) (Wald, J., dissenting).
Terminally ill polieyholders are not fungible bars of silver. They are geneti­
cally different, living, breathing people, with widely disparate responses to even
the same nominal medical condition. Information about them, and about the viati­
cal settlement companies that promote investments in their life insurance policies,
is thus highly individualized and not generally publicly available, in the absence of
required disclosure of the relevant risk factors.
Life Partners claims that its investors play a very active role in the pre­
purchase phase by setting up their own "purchase criteria" and reviewing the in­
sured's health profile and policy. Nonetheless, the experts at Life Partners pre­
sumably prepared these same health profiles. The investors are asked for input
like the amount they would like to spend, and to specify parameters like the ages
and T cell com
at 547. Howe'
rights of contr
passive one." .
The seron,
204 (lOth eir.
coupled with t
205. The MeG.
The court fOCl
promises to m,
question as to
remanded the
never articulal
that the p o s t ~ l
court looked al
aggtegate as s
255. The:
ing line:
If the invE
moter's effc
requiremer
moter's effi
the purcha
one else is
the investn
minished. l
quantity (8
prior to clo
fraud.' [cit:
and the qt
interest in
look for 'all
entreprene
SEC v. Life P;
However,
[tJhat first
essence of"
intoasecu
efforts to t
could simp
laws. As ~
tectedprio
the goal of
commit tht
Petition of the
v. Life Partne
5090).
mil' _.____________________._._._.
I
[Vol. 19:345
rts from post-
Irbitrary and insup­
ire factually distin­
test. Neither case
Instead, the cases
r's activities play in
980), the promoters
.ce policies covering
.eing independently
ey Futures, the pro­
mlike Key Futures,
ifying and evaluat­
~ Partrters, 87 F.3d
,uld store the silver
to repurchase them
j38 F.2d at 79. The
:elated to the profit­
made, the profits to
et, not the manage­
. of the Noa court's
test.
tracts for the silver
the Noa court in no
his prong of Howey
ase efforts.. See id.
rith an established
!Dlodity like the life
ingdifference in the
:fe Partners dissent
lerewillbe pub­
ltor could assess
;s depend on the
3.ccess to protec­
. is·more· specific
mnting).
r. They are geneti­
~ -responses to even
and about the Viati­
l insurance policies,
Ie, in the absence of
ve role in the Pre­
dreviewing the in­
Life Partners pre­
ll'e asked for input
aeters like the ages
1999] THE FUTURE OF DEATH FUTURES 419
purchase efforts, arbitrarily deciding that only post-purchase ef­
forts were to be considered towards satisfaction of this prong.
255
and T cell counts, but this investor input is of little practical significance. See id.
at 547. However, as the district court said "[tjhe mere retention of theoretical
rights of control are of no consequence where the investor's role is essentially a
passive one." Life Partners, 898 F. Supp. 14, 22 (D.D.C. 1995).
The second case relied on by the D.C. Circuit, McCowan u. Heidler, 527 F.2d
204 (10th Cir. 1975), involved promoters selling investments in undeveloped land,
coupled with the promise to make future improvements on the plots. See id. at
205. The McCowan plaintiffs claimed these parcels were securities. See id. at 207.
The court focused on the promoters' substantial pre-purchase efforts, and the
promises to make post-purchase improvements; thus it found there was a factual
question as to whether the sale oflots constituted the sale of securities and thus
remanded the matter. See id. at 210. It is noteworthy that the McCowan court
never articulated, even implicitly, that the pre-purchase efforts were irrelevant, or
that the post-purchase efforts alone could satisfY Howey; arguably, the McCowan
court looked at the combination of significant pre- and post-purchase efforts in the
aggregate as satisfYing this prong of Howey.
255. The D.C. Circuit did not agree that the time of sale is an artificial divid­
ing line.
If the investor's profits depend thereafter predominantly upon the pro­
moter's efforts, then the investor may benefit from the disclosure and other
requirements of the federal securities laws. But if the value of the pro­
moter's efforts has already been impounded into the promoter's fees or into
the purchase price ofthe investment, and if neither the promoter nor any­
one else is expected to make further effarts that will affect the outcome of
the investment, then the need for federal securities regulationis greatly di­
minished. While, to be sure, coverage under the 1933 Act might increase the
quantity (and perhaps the quality) of iDformation available to.the investor
prior to closing, 'the securities laws [are not] a broad federal remedy for all
fraud.' [citations omitted]. They are concerned only with securities fraud,
and the question before us is the threshold question whether a fractional
interest in a viatical settlement is a security. To answer that question we
look for 'an investment in a common venture' with profits 'derived from the
entrepreneurial or managerial efforts of others.' [citationsomittedj.
SEC v. Life Partners, Inc., 87 F.3d 536, 54748 (D.C. Cir. 1996) .
However, as the SEC points out, in response:
[tlhat first 'if,' however, rests on an assumption that runs counter to the
essence of the securities laws. Pre-purchase efforts will only be 'impounded'
into a securities price if the promoter has made full and fair disclosure of its
efforts to the market. But if the forthrightness and honesty of promoters
conld simply be assumed, there would be no need at all for the securities
laws. As Judge Wald observed 'the claim that investors need not be pro­
tected prior to committing funds has been rejected by Congress, which made
the goal of ensuring that investors have adequate information before they
commit their money... the central concern of the Securities Act:
Petition of the SEC for Rehearing and Suggestion for Rehearing.En Ban,c at 7, SEC
v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos .. 95-5364,96-5018 & 96­
5090).
PACE LAW REVIEW [VoL 19:345 420
The D.C. Circuit, in crafting this bright-line rule, lost sight of
the letter of the law, as well as the spirit of the law.
256
The
court gained a streamlined process for eliminating investments
from the protection of the Securities Laws, but at a great cost.
257
The D.C. Circuit ignored the goals of the Securities Laws to pro­
vide investors with adequate and accurate information from
which to make thflir necision. The court, in focusing almost ex­
clusively on the life of the insured, left the investor to twist in
the wind.
258
256. AB the dissent says:
Given the paucity of cases where pre-purchase managerial activities of the
promoter alone are likely to create a security. my fear that the majority's
approach will unduly restrict the flexibility of the Howey test might appear
exaggerated. On the other hand, the difficulty with illustrating the restric­
tive effects of the majority's bright-line approach could be seen as a very
good reason to preserve flexibility, for flexibility is what allows us to adapt
our existing securities laws to address 'novel schemes,' schemes that we can­
not easily anticipate ahead of time.
Life Partners, 87 F.3d at 554-55 (Wald, J., dissenting).
TheSEC agreed:
That artificial bright-line distinction between pre- and post-purchase efforts
is antithetical to the aims of the securities laws. It deprives investors of the
disclosure and other protections of those laws in situations where, precisely
because the investors are relying on the promoters' efforts, expertise and
fidelity, such protection is needed. This new rule places in question the ap- .
plicability of the federal securities laws to other kinds of investments, such
as certain asset-backed securities, that heretofore have long been recognized
as securities.
Petition of the SEC for Rehearing and Suggestion for Rehearing En Bane at 1, SEC
v. Life Partners, Inc., 898 F. Supp. 14 <D.D.C. 1995) (Nos. 95-5364, 96-5018 & 96­
5090).
257. The advantage of this approach is that it offers a clear method for
distinguishing between investment contracts that are securities and invest­
ment contracts that are simply investments. In that regard, it accords with
the principle that the securities laws cannot be so broadly interpreted as to
encompass all investments. But it does so at a substantial cost. Like the
district court's approach, it elevates a formal element, timing, over the eco­
nomic reality of the investors' dependence on the promoter. Even more
troubling, the majority's approach undercuts the flexibility and ability to
adapt to 'the countless and variable schemes' that are the hallmarks of the
Howey test.
Life Partners, 87 F.3d at 551 (Wald, J., dissenting).
258. "In this case it is the length of the insured's life that is of overwhelming
importance to the value of the viatica1 settlements marketed by LPI. AB a result,
the SEC is unable to show that the promoter's efforts have a predominant influ­
ence upon investors' profits; and because all three elements of the Howey test must
1999]
To hono
should look •
andthepar1
concluding t
after the sal
viatical sett
the negotiat
tinue to resl
sentially by
such efforts
purchase pe
The bet
read Howey
degree of de:
moter, not s .
purchase efl
the Howey .
pendspredo
keeping wit
established
new bright-J
be satisfied befi
that the viatica
259. Accort
only
after the sale 0
efforts immedif
moter's experti
"It would be im
Court not to c(
efforts occurree
260. JudgE'
purchase mana
its depends prE'
ners, 87 F.3d a
261. Thed
the Supreme C.
and because it
tion. See Life 1
262. ld. at
ities and post-!
id. at 553 (Wal
Scotch Distribs
ically stated tho
third prong of.
[VoL 19:345
, lost sight of
law.
256
The
~ investments
t great cost.257
; Laws to pro­
rmation from
ng almost ex­
;or to twist in
ctivities of the
the majority's
might appear
ng the restric­
leen as a very
IVS us to adapt
,s that we can­
rrchase efforts
iVestors ofthe
1999] THE FUTURE OF DEATH FUTURES 421
To honor the letter and the spirit of the Howey test, courts
should look closely at the specifics of both the promoter's efforts
and the particular investment. The district court did just that,
concluding that it was free to look at promoter efforts before and
after the sale of the investments.259 In an investment such as a
viatical settlement, some nominally pre-purchase efforts, like
the negotiation of the purchase p ~ c e for the policy, will con­
tinue to resonate long after the purchase of the investment es­
sentially by determining the realization of profits. Therefore,
such efforts should not be considered merely to affect the pre­
purchase period.
The better choice for the D.C. Circuit would have been to
read Howey the way the dissent advocated,260 focusing on the
degree of dependence between the investor's profits and the pro­
moter, not solely on the timing of the promoter's efforts.261 Pre­
purchase efforts of the promoter would then completely satisfy
the Howey test when the "realization of investors' profits de­
pends predominantly on these activities."262 This approach is in
keeping with the economic reality of viatical settlements, and
established case law. Instead, the D.C. Circuit left us with a
new bright-line test, threatening to blind courts to the possibil­
b.ere. precisely
expertise and
lestionthe ap­
,stments. such
:len recognized
~ n Bane at 1, SEC
34, 96-5018 & 96­
ar method for
iesandinvest­
it:accords with
;erpreted as to
cost. Like the
:, over the eco­
r. Even more
and ability to
llmarks of the
: of overwhelming
LPI. As a result,
redominant infl.u­
I Howey test must
be satisfied before an investment is characterized as a security, we must conclude
that the viatical settlements marketed by LPI are not securities." [d. at 548.
259. According to the district court,"[aJs a general rule, the Court considers
only managerial or entrepreneurial efforts which take place concurrently with or
a.tl;er the sale of the security. The Court remains free to consider the promoter's
efforts immediately surrounding the sale when such efforts are based on the pro­
moter's expertise." SEC v. Life Partners, Inc., 898 F. Supp. 14,21 (D.D.C. 1995).
"It would be improper in this era of increasingly complex investment tools for the
Court not to consider the particular effurts of. the promoter simply because the
efforts occurred in the immediate context of the sale and not later." [d.
260. Judge Wald argued that Howey's third prong is satisfied "by pre­
purchase managerial activities ofa promoter whenthe eventual realization of prof­
its depends predominantly on these activities and not on the market." Life Part­
ners, 87 F.3d at 554 (Wald, J., dissenting).
261. The dissent undertakes this focus believing it to be more in keeping with
the Supreme Court's decision in Howey, with its emphasis on substance over form,
and because it furthers the idea that investors are protected by access to informa­
tion. See Life Partners, 87 F.3d at 552 (Wald, J., dissenting).
262. [d. at 554 (Wald, J., dissenting). Courts often look at pre-purchase activ­
ities and post-purchase activities in satisfaction of the third prong of Howey. See
id. at 553 (Wald, J., dissenting). For example, the dissent cites SEC v.Brigadoon
Scotch Distrib,s., Ltd., 388 F. Supp. 1288 (S.D.N.Y. 1975), in which the court specif­
ically stated that the pre-purchase activities there were enough to alone satisfy the
third prong of Howey. See Life Partners, 87 F.3d at M3. (Wald, J., dissenting).
422 PACE LAW REVIEW [Vol. 19:345
ity of loopholes to be exploited by crafty promoters seeking to
avoid compliance with the Securities Laws by simply through
manipulating the timing of their activities,263 and threatening
to undercut the courts' ability to rein in unscrupulous
promoters.
264
The D.C. Court's artificial bright-line test will only prove
more artificial over time. With the advent of new drug. thera­
pies, like protease inhibitors, viatical settlements now arguably
require additional "essential" post-purchase efforts. Taking or
failing to take the drugs could bring the viator in as a possible
"other" from whose efforts profits must derive. These· new de­
velopments may make it. e v ~ n harder to accurately predict the
life expectancy of AIDS patients, making the pricing of new pol­
icies purchased even more critical, and further affecting the re­
263. "It would make little sense to draw a sharp line between those efforts
occurring at or around the time of the investment of money, and those occurring
thereafter. Such a distinction would merely open a loophole whereby promoters
would structure·their operations so that efforts would occur prior to the final com·
mitment of money by investors. The fundamental question is whether investors
are dependent on the efforts of others, not when those efforts occur." Brief of the
SEC, Appellee at 41; SEC v. Life Partners, Inc., 898 F. Supp.14 (D.D.C. 1995)
(Nos. 95-5364, 96-5018 & 96-5090).
264. According to the SEC:
This rigid rule also threatens to give unscrupulous promoters a means of
evading the securities laws by artificially deferring .the "purchase" of the
instruments t1iey offer·without changing their economic substance. Such an
outcome runs counter to the Supreme Court's observation that because Con­
gress "recognized the virtually limitless scope ofhuman ingenuity" to devise
"countless and variable schemes" to use other persons' money, it "enacted a
definition of 'security' sufficiently broad to encompass virtually any instru­
ment that might be sold as an investment."
Petition of the SEC for Rehearing and Suggestion for Rehearing En Bane at 3-4,
SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C. 1995) (Nos. 95-5364, 96·5018 &
96-5090).
SEC Enforcement Director William McLucas called the D.C. Circuit's decision
"troublesome," noting that the court's bright-line test could "potentially open the
door...for a lot of imaginative schemes that people can put together" for which the
SEC and Congress would have trouble "figuring out how to write rules or how to
divine laws." John F. X. Peloso and Stuart M. Sarnoff, Viatical Settlements: An·
other Form of Unregulated InlJestment, N.Y.L. J., Aug. 15, 1996, at 3.
As the dissent points out, this new bright-line rule will apply to all invest­
ments, not just viatical settlements. So, for example, with derivative products,
which, like viatical settlements, do not appear to satisfy the new bright line test,
"the majority's approach could seriously hamper regulators as they seek to deter­
mine how best to treat this burgeoning class offinancial instruments." SEC v. Life
Partners, Inc., 87 F.3d 536, 557 (D.C. Cir. 1996) (Wald, J., dissenting).
1999]
'1
turn to inv
additional Pi
settlements.
This de(
ment firms, .
less and unti
at least dim
gaping hole
firms should
efforts after
ily amortize
viatication v
nal illnesses
alack ofma
vel in their 1
gin to mov
investmentE
the specter I
atively imp
these vulne}
life-sustaini
265. The ~
tive impact on
unprecedented
curities laws."
and SuggestiO)
Supp. 14 (D.D.
266. AccoJ
that there is a
ning afoul of S:
ical C(Jmpany,
267. See 8
268. Acco:
This is clea
and for pri'
the SEC h
has unwitt
living bene
has also gi'
try, inhibil
needy ill 0:
U.S. Court of,
at 21.
Vol. 19:345
seeking to
ly through
hreatening
scrupulous
only prove
xug thera­
~ arguably
Taking or
a possible
3e·new de­
)redict the
3fnewpol­
ing the re-
those efforts
,ose occurring
by promoters
. the final com­
her investors
," Brief of the
:D.D.C. 1995)
1999] THE FUTURE OF DEATH FUTURES 423
turn to investors on existing policies, possibly reqUlnng
additional post-purchase efforts, such as repricing of viatical
settlements.
This decision will have a great impact on viatical settle­
ment firms, viators, investors, the SEC, and the COurts.
265
Un­
less and until the D.C. Circuit's bright-line test is eliminated, or
at least dimmed, viatical settlement firms can operate in the
gaping hole of logic created thereby. 266 Viatical· settlement
:firms should all retain counsel to ensure that they undertake no
efforts after the closing. The cost of such· counsel should be eas­
ily amortized over the increasing numbers of viators seeking
viatication when suffering from AIDS and a host of othertermi­
nal illnesses.
267
However, investors will continue to suffer from
a'lack of material information. As viatical settlement :firms re­
vel in their Life partners-induced euphoria,268 investors may be­
gin to move out of this unregulated industry, into other
investments where disclosure is mandated, or at least where
the specter of fraud is not looming quite so large. This will neg­
atively impact viators. Without investors for these policies,
these vulnerable, terminally-ill people may be unable to pay for
life-sustaining treatments.
means of
Be" of the
'. Suchan
:auseCon­
~ t o devise
'enacted a
ny instru-
Bane at 3-4,
W, 96-5018 &
:nit's decision
ally open the
for which the
les or how to
!lements: An·
I.
to all invest·
lve. products,
ghtline test,
eek to deter·
• SECv. Life
g).
265. The SEC has characterized the decision as having a "far-reaching nega­
tive impact on the Commission, investors and capital markets'because it imposes
unprecedented limits on the definition of the term 'security' under the federal se­
curities laws."Petition of the Securities and Exchange Commission For Rehearing
and Suggestion for Rehearing En Bane at 1, SEC v. Life Partners, Inc., 898 F.
Supp. ·14 (D.D.C. 1995)·(Nos. 95-5364, 96-5018 & 96-5090).
266. According to the president of VAA, the Life Partners decision "affirms
that there is a legal way to sell pieces of settlements to individuals without run­
ning afoul rifSEC investment law." See Amy S. Friedman, SEC Fines Florida Viat·
ical Company, NATL UNDERWRITER, May 18, .1998, at 21­
267. See supra note 33.
268. According to Mr. Pardo:
This is clearly a victory for the terminally-ill, for small individual investors
and for private enterprise, and for taxpayers and consumers; For four years
the SEC has blatantly attempted to expand its regulatory authority, and
has unwittingly abetted those interests determined to institutionalize the
living benefits industry at the expense of the ill and the small investors. It
has also given currency to those parties that would over-regulate the indus­
try, inhibiting competition in a fair and open market, while depriving the
needy ill of desperately needed funds and confidentiality.
U.S. Court ofAppeals Foils SEC Bid to Regulate Vwticais, Bus.WIRE, Jan. 2, 1997,
at 21.
PACE LAW REVIEW [Vol. 19:345 424
Additionally, the SEC, and ironically, the federal court sys...
tem itself, have all lost a valuable tool in the ongoing effort to
adhere to the spirit and goals ofthe Securities Laws,269 because
they have lost the ability to retrun oversight, through disclosure
obligations, over perpetrators of the "countless and variable
schemes devised by those who seek the use of the money of
others on the promise of profits."270
IV: The Continuing Efforts to Protect Investors in
Viatical Settlements
In December 1996, the court denied the SEC's petition for
rehearing in the Life Partners litigation.
271
The SEC ultimately
declined to appeal the decision to the United States Supreme
Court. Accordingly, the D.C. Circuit's bright-line test remains
the law, leaving investors in viatical settlements vulnerable to
dishonest and unscrupulous promoters, without the protection
of the Securities Laws. However, the SEC has not given up the
fight to regulate what it terms "ongoing violations of the regis­
tration and antifraud provisions" of the Securities LawS.
272
Un­
til the Supreme Court takes up this issue and snuff's out the
D.C. Circuit's bright-light test, the SEC has simply changed
strategies in its efforts to protect investors in viatical settle­
ments. Although the D.C. Circuit's bright-line test is not bind­
ing outside of its jurisdiction,273 the decision reverberates
through the states, as some state securities departments have
269. "Throughout the history of struggling for an appropriate definition,
courts have been mindful of the fact that the bottom-line question is whether the
particular investment or instrument involved is one that needs or demands the
investor protection ofthe federal (or state) securities laws." Hazan, supra note 150
at 30-31.
270. SEC v. W.J. Howey Co., 328 U.S.293, 299 (1946).
271. See SEC v. Life Partners, Inc., 102 F.3d 587 (D.C. Cir. 1996); the SEC
then filed an unsuccessful Motion Seeking Leave to Amend Complaint; SEC v. Life
Partners, Inc., 986 F. Supp. 644 (D.D.C. 1997).
272. See Plaintiffs Brief in Support .of Motion for Preliminary Injunction and
Other Provisional Relief at 1; SEC v. Life Partners, Inc., 898 F. Supp. 14 (D.D.C.
1995) (No.1: 94CV01861); see also Vickers, supra note 39, at 3.
273. To date, the bright-line test set out in the D.C. Circuit's opinion in Life
Partners has not been relied on.
1999]
looked to j
within thei
Much I
in viatical
state leveL
tiny in Ala
274. For,
Partners decis
quest for a No
In light of
that decisi<
viatica1 se
Act...Be ~
the current
prudenceiJ
ulate viati(
State of ConnE
LEXIS 32, at
275. The.
against a viati
"Policy Purehf
defined in ALA
98-0027; 1998
276. AriZ!
administrativi
as securities 1
(1998). The di
said the state
settlements, i:
industry. See
ANCE REp., Mt
On the ad
Cease and Uef
the funds to iJ
the investmen
REv, STAT. § 4
ing Foundatio
1998 Ariz. Be<
277. Calli
tion areas, liko
quires viatice
comparable t<
§ 10113.2 ( 1 9 ~
278. The
letter that via
ties," as' defin
(1997). See"&
ries 1998A - $
[Vol. 19:345
ral court sys­
ling effort to
S,269 because
;h disclosure
md variable
h.e money of
1999] THE FUTURE OF DEATH FUTURES 425
looked to Life Partners as they position viatical settlements
within their own securities law frameworks.
274
Much of the current battle to regulate fractional interests
in viatical settlements as securities is now being waged at the
state level. Viatical settlements have attracted regulatory scru­
tiny in Alabama,275 Arizona,276 California,277 Colorado,278 Con-
tors in
. petition for
:J ultimately
;es Supreme
;est remains
tilnerable to
e protection
;venupthe
of the regis­
aws.272 Un­
uffs . out the
)ly changed
tical settle­
is not bind­
everberates
ments have
ate definition,
is whether the
demands the
note 150
99.6); the SEC
1t; SEC v. Life
njunction and
pp. 14 (D.D.C.
'Pinion in Life
274. For example, the State of Connecticut, although not bound by the Life
Partners decision, nonetheless took the decision into account in answering a re­
quest for a No-Action letter on viatical settlements.
In light of [the Life Partners decision], and the reasoning contained within
that decision, this department will take no enforcement action at this time if
viatical settlements are sold securities registration under the
Act. . .Be advised that this department is taking this position based upon
the current state of the law in this rapidly developing area; should the juris­
prudence in this field be reversed, this department reserves the right to reg­
ulate viatical settlements under the Act in the future.
State of Connecticut Office of the Banking Commissioner, 1996 Conn. Sec. No-Act.
LEXIS 32, at *1-2 (Sept. 18, 1996).
275. The Alabama Securities Commission obtained a Cease and Desist Order
against a viatical settlement firIn, on the grounds that, among other. matters, the
"Policy Purchase Agreements" offered by the respondents constituted securities as
defined in ALA. CODE § 8.:6c2(10) (1975). See In re ·Life Options Intl, Inc., No. CD­
98-0027; 1998 Ala. Sec. LEXIS 25, at *1 (Apr. 15, 1998). .
276. Arizona now regulates viatical settlements at both the legislative and
administrative·levels. The·state enacted a statute classifying viatical settlements
as securities under its state securities law. See ARIZ. REv. STAT. § #1801(23)
(1998).· The director of the Arizona Corporation Commission's Securities Division
said the state was seeking to govern unregistered representatives who sell viatical
settlements, in an effort to curb the increasing fraud in the viatical settlement
industry. See Arizona MayBe First to Define Death Benefit as a Security, COMPLI­
ANCE REp., Mar. 2, 1998.
On the administrative front, the Arizona Corporation Commission obtained a
Cease and Desist Order against a business trust that sold subscriptions and pooled
the funds to invest in viatical settlements, on grounds that, among other matters,
the investments in the interests sold were securities within the meaning of ARIZ.
REV. STAT. § #1801(23) (1998). See In re Offering ofSecurities by: Federal Fund­
ing Foundation Corporation, Docket Nos. S-3175-I, S-3180-I; Decision No. 60926;
1998 Ariz. Sec. LEXIS 24, at *1 (May 26, 1998).
277. California has a viatical statute that covers the traditional viator protec­
tion areas, like minimum payments, disclosure and.licensing. The statute also re­
quires viatical settlement firms to provide disclosure to investors that are
comparable to those required under the Securities Act. See CAL. INS. CODE
§ 10113.2(1997); see also Davis supra note 216, at 85; supra note 98.
278. The Colorado Division of Securities has taken the position in "No Action"
letter that viaticalsettlements constitute "investment contracts" and thus "securi­
ties," as'defined in the Colorado Securities Act at section 11-51-201(17), C.RS.
(1997). See Be: Cotton Ranch Metropolitan District General Obligation Bonds Se­
rles 1998A - $2,000,000, 1998 Colo. Sec. No-Act. LEXlS 1 (Mar. 26, 1998).
426 PACE LAW REVIEW [Vol. 19:345
necticut,279 Florida,280 Idaho,281 Kansas,282 Massachusetts,283
According to the. Division, although the SEC did not prevail in Life Partners,
that decision "was based on the particular fact pattern involved in that case. The
manner in which other federal district and circuit courts dealing with federal se­
curities laws as well as state courts interpreting state securities laws may react to
the same or similar fact patterns remains an open question." Re: Viatical Settle­
ment Contracts under the Colorado Securities Act, [No number in original] State of
Colorado Department of Regulatory Agencies Division of SectIrities, 1997 Colo.
Sec. No-Act. LEXIS 10, at *3 (June 2, 1997).
The Division went on to say that they were not banning, and indeed .could not
ban, viatica! settlements. However, the Division felt it would be prudent for "in­
vestment professional doing business in Colorado and elsewhere to refrain from
offering or selling - not just investments involving viatica! settlement contracts
but any unregistered, non-exempt "exotic" investment product without more
definite and express regulatory and judicial authority to the effect that they are
not sectIrities. Anyone who ignores this general maxim does so at their peril." Id.
at *4.
279. See supra note 274.
280. According to the Office ofthe Comptroller in Florida, the "sale by a termi­
nally ill person of the right to death benefit proceeds from his or her life insurance
policy does not in itself violate Florida law. Sale of the right to those proceeds by
the original purchaser to yet another party may very well constitute violations of
FL law ifthe right to the proceeds is combined or packaged or divided mto shares."
See Florida.Dfficeofthe Comptroller, Viatical Settlements - Humanitarian Invest­
ments with Great Risk of Fraud, PR NEWSWlRE, Apr. 16, 1996.
281. See supra note 109.
282. The Kansas securities commissioner recently warned four viatica! settle­
ment companies to revise some potentially misleading statements in their
presentations to potential investors in Kansas. See Gene Meyer, Mixing Death
and Profit: Viatical Contracts Bring Cash to the Terminally Ill, Profit to Investors,
KANSAS CITY STAR, May 10, 1998, at .F1.
Further, the Office ofSecurlties Commissioner of the State of Kansas issued a
No-Action letter in November 1995 that essentially tracks the Life Partners facts.
The Commissioner applied the Howey test, and found that the first and third
prongs were indisputably met. He paused on the second prong, the common enter­
prise requirement, but found that "[tlo the extent that the viatical settlement pools
the funds from multiple investors to purchase the benefits of a smgle policy, hori­
zontal commonality, which is universally accepted as satisfying this element of the
test, is clearly present." The Commissioner ultimately was· of the opinion that vi­
atical settlements are securities, which he finds to be consistent with the district
court opinion in Life Partners; this no-action letter was issued between the district
court decision and the D.C. Circuit decision in Life Partners. See Re: Interpretive
Opinion - Viatical Settlements Definition of a Security - RAN. STAT. ANN. § 17­
1252(j), 1995 Kan. Sec. No"Act. LEXIS 188, (Nov. 14, 1995).
283. See supra note 99 and accompanying text.
1999]
Michigan,2:
consin,288 a
Viatical Se
Mutual Be:
The S]
j
terests in'
j
1
1
news in a
.
!
284. See·
& SECURITIES
the Bureau's:
securities as ,
1
.1 285. The
!
ments to be s·
. ~
1997. See In
ij
LEXIS51 (Se
l
1
Missouri Sect
1
Alpha &OmE
q
Securities Co:
ing Inc. et al,
I
~
LEXIS 30 (M
1
286. See
i
287. The
J
~ Life Partners
1
of State disC'(
~
1 [t]o the el
tures simi
tative opi:J
securities
anyviatic
that'secu
broad prO'
broadly ir
File No. 0-01
original], 191:
LEXIS 21 (Jl
288. See
97U(EX), W
289. Thl
viatica! ques
dements con
case-by-caSe
VlATICAL SE'
vision views
force W.S. §
W.S. § 7-4-11
vestor prote
(Apr; 26, 19!
Vol. 19:345
chusetts,283
Life Partners,
hat case. The
ith federal se­
s may react to
rwtical Settle­
ginal] State of
~ , 1997 Colo.
ieedcould not
"Udent for "in"
) refrain frOm
lent contracts
without more
tl:w.t they are
leir peril." Id.
ue by a termi­
life insurance
Ie proceeds by
il vioIatioilB of
lmto shares."
tarian Invest-
Tiaticalsettle­
mts in their
Wixing Death
t to Investors,
;DSas issued a
'artners facts.
rst· and third
}mmon enter­
tlement pools
epolicy, hori­
,lement·of the
inion that vi­
h the district
IRthedistrict
; Interpretive
T. ANN. § 17­
1999] THE FUTURE OF DEATH FUTURES 427
Michigan,284 Missouri,285 North Dakota,286 Washington,287 Wis­
consin,288 and Wyoming.289
Viatical Settlements as Securities After Life Partners: the
Mutual Benefits Case
The SEC is continuing its efforts to regulate fractional in­
terests in viatical settlements. The agency received welcomed
news in a U.s. District Court case it filed against one of the
284. See GREGORY A POPOWICZ, MICHIGAN DEPr. OF COMMERCE CoRPORATION
& SECURITIES BUREAU, RE: POPOWICZ - VlATICAL CONTRACT SETl'LEMENTS, 1 ("It is
the Bureau's position that the fractionalized interests (pooling arrangements) are
securities as defined in Section 401(1) of the Act").
285. The Missouri Securities Commission has repeatedly found viatical settle­
ments to be securities as defined under Section 409.401, RSMo Cumulative Supp.
1997. See In re Masters Group Mktg., Inc., File No. CD-9S-54, 1998 Mo. Sec..
LEXIS 51 (Sept. 18, 1998); see also In re Capwill & Company, Order No. CD-98-26,
Missouri Securities Commission, 1998 Mo. Sec. LEXIS 29 (May 21, 1998); In re
Alpha & Omega Asset Protection Strategies, LLC, Order No. CD-98-28, Missouri
Securities Commission 1998 Mo. Sec. LEXIS 6 (May 15, 1998); In re Aide the Liv­
ing Inc. et al, Order No. CD-98-25, Missouri Securities Commission, 1998 Mo. Sec.
LEXIS 30 (Mar. 23, 1998).
286. See In re Raoul Brandt, 1996 N. Dak. Sec. LEXIS 6 (Nov. 15, 1996).
287. The Washington Securities Division looked to the trial court opinion in
Life Partners and an interpretive opinion from the Missouri Office of the Secretary
of State discussing viatical settlements; the Division coucluded that
[t]o the extent that the viatical settlement programs [offered] contain fea­
tures similar to those discussed in the LPI cases and the Missouri interpre­
tative opinion, it is likely that those programs involve the offer and sale of
securities pursuant to RCW 21.20.005(12). We also note tl:w.t in interpreting
any viatical settlement program, the Division will be .guided by the principle
that 'securities regulation is remedial in nature and has as its purpose
broad protection ofthe public. Thus it is appropriate to construe the statute
broadly in order to maximize the protection offered.'
File No. 0-01646, 1996 Wa. Sec. LEXIS 27 (Mar. 29, 1996); see also [No number in
original], 1996 Wa. Sec. LEXIS 19 (June 4,1996); FileNo. 0-01997,1996 Wa. Sec.
LEXIS 21 (July 14, 1997).
288. See supra note 109; see also In re Viatical Capital Inc., File No. S­
9711(EX), Wisc. Sec. Commission; 1998 Wisc. Sec. LEXIS 190 (Feb. 19, 1998).
289. The Wyoming Secretary of State, Securities Division has exanlined the
viatical question, and has not yet taken a formal position on whether viatical set­
tlements constitute securities. The Division looks at each viatical settlement on a
case-by-case basis. See WYOMING SECRETARY OF STATE; SECURITIES DIVISION, RE:
VIATICALSETTLEMENT CoNTRACTS 1 (May 21,1996). "The Wyoming Securities Di­
vision views viatical settlements as investment contracts securities and will en­
force W.S. § 17-4-107 requiring registration of securities prior to their sale and
W.S. § 7-4-103 requiring those who sell securities to be licensed and subject to in­
vestor protection rules." WYOMING SECRETARY OF STATE; SECURITIES DIVIsION
(Apr. 26, 1996).
299. S.
290. Brothers Pay $950,000 to Settle SEC Charges, DALLAS MORNING NEWS,
May 2, 1998, at 2F [hereinafter Brothers].
Settle SEC
300.S,
291. See Friedman, supra note 266, at 21; see also Brothers, supra note 290, at
301. S,
2F.
SEC senior
292. See Brothers, supra note 290, at 2F; see also Humberto Cruz, Viatical
302. S.
Deals Trigger Fines; Pompano Men to Pay Interest on Inuestment, SUN-SENTINEL,
senior trial
May 2, 199B, at 15C.
ami. A
293. See Cruz, supra note 292, at 15C.
under appr
294. Id.
tlement ca!
295. Allen, supra note 24, at WIS.
290, at 2F.
296. See id.
304. S.
297. See Cruz, supra note 292, at 15C.
305. A
29B. See Helen Huntley, SEC Wins Battle Ouer Viatical Settlements, ST. PE­
a security ~
TERSBURG TIMES, May 2, 199B, at BE.
266, at 21.
428 PACE LAW REVIEW [Vol. 19:345
nation's largest viatical settlement firms, Mutual Benefits
Corp., of Fort Lauderdale, Florida ("MBC").200As in the Life
Partners litigation, the SEC. alleged that the viatical settlement
firm sold $100 million in unregistered viatical seitlements to
1,190 investors from October 1994 until April 1996. This time,
however, the viatical settlement firm agreed toa settlement,
giving the SEC its first win in its effort to regulate fractional
interests in viatical settlements.
291
In the settlement, the two principals involved in MBC
neither admitted nor denied the allegations; but they. each
agreed to pay $50,000 in fines and a total of $850,000 in restitu­
tion.
292
Both agreed to be permanently enjoined from violating
registration and· antifraud provisions of the federal securities
laws.
293
The MBC scam was much like the viatical settlement
frauds on investors discussed in Part III. MBC'offered its inves­
tors "guaranteed" fixed returns of 12 to 42 percent, depending
on the life expectancy of the insured.
294
The firm's promotional
materials claimed viatical settlements were "a fully secured,
non-speculative financial opportunity."295 MBC ghoulishly
played up AIDS as a deadly disease, and soft-pedaled the ability
of modern medicine to offer life':'prolonging or curative
treatments.
296
MBC made numerous misrepresentations, such as telling
investors that their funds would be kept in a special trust ac­
count.297 The money was actually held in MBC's operating.ac­
count.
298
Further, MBC failed to disclose to investors that funds
would typically be held for several weeks before a policy was
1999]
found. T
ment.
299
hadexpe:
held "irrE
mitted or
armed SE
"full well
cable inti
Acco:
and then
rent law,
argued iI
that case
mentdoe
calprec€
obtained
ment COl
much att
as viaticl
ing the E
DesI
tors in vi
tion to a
This is tl
(and Othl
Vol. 19:345
tl Benefits
in the Life
settlement
lements to
This time,
;ettlement,
, fractional
d in MBC
they each
in restitu­
n violating
securities
settlement
d its inves­
depending
romotional
.y secured,
ghoulishly
the ability
. curative
as telling
tl trust ac­
~ r a t i n g ac­
that funds
policy was
1999] THE FUTURE OF DEATH FUTURES 429
found. This delay effectively lowered the return on the invest­
ment.
299
The MBC principals also misrepresented that they
had experience in the viatical settlement industry and that they
held "irrevocable interests" in some policies, which are not per­
mitted on life insurance policies ofveterans and members of the
armed services.
3OO
The SEC argued that the principals knew
"full well" that the law prohibited them from putting an irrevo­
cable interest on these policies.
301
According to the SEC, the firm was "pooling investments,
and then selling them for actualized interests, which under cur­
rent law,is what a security is."302 This is exactly what the SEC
argued in Life Partners, and despite the disappointing ruling in
that case, the SEC vows to press on.
303
While the MBC settle­
ment does not set a legal precedent for the SEC, it sets a practi­
cal precedent, as it represents the first time the agency has
obtained a fine and injunctive relief against a viatical settle­
ment company.304 Furthermore, the MBC case has received
much attention from other interested parties besides the SEC,
as viatical settlement industry trade groups are closely follow­
ing the SEC's progress.
305
Conclusion
Despite the insupportable holding in Life Partners, inves­
tors in viatical settlements must be provided adequate informa­
tion to allow them to evaluate their investment opportunity.
This is the overriding goal of the Securities Laws - that issuers
(and other participants in the sale of securities, like underwrit­
)RN1NG NEWS,
a note 290, at
::ruz, Viatical
UN-SENTINEL,
'lents, ST. FE­
299. See Cruz, supra note 292, at 15C; see also Viatical Firm Pays $950,000 to
Settle SEC Complaint, BESTWIRE, May 5,1998, at 219 [hereinafter Firm PaysJ.
300. See Cruz; supra note 292, at 15C. .
301. See Firm Pays, supra note 299, at 219 (quoting Christian Bartholomew,
SEC senior trial counsel in Miami).
302. See Friedman, supra note 266, at 21 (quoting Christian Bartholomew,
senior trial lawyer for the SEC in Miami).
303. According to Mr. Bartholomew, the MBC case "says pretty clearly that
under appropriate facts and circumstances we will continue to pursue viatical set­
tlement cases." See Huntley, supra note 298, at 8E; see also Brothers, supra note
290, at 2F.
304. See Friedman, supra note 266, at 21.
305. According to the president ofVAA, "[k)nowing when such a sale becomes
a security sale is "very high on our radar screens this year." Friedman, supra note
266, at 21.
430 PACE LAW REVIEW [Vol. 19:345
ers and control persons) would therefore be prohibited from
making materially misleading statements or omissions. This
prohibition was designed to alleviate the fear that a lack of ade­
quate information would lead to pricing that did not re:Hect the
true value of the investment.
The. method for accomplishing this. goal is already in place;
the registration requirements of the Securities Laws and the re­
sulting continuous disclosure obligations thereunder would in­
sure that investors are provided with both the information
needed to make investment decisions and the statutory reme­
dies to redress any failure thereof.
Requiring sellers of fractional interests in viatical settle­
ments to register such sales and to participate in the continuous
disclosure system is expensive and time consuming, but it
would be more expensive, in a broader sense, to permit these
securities·to be unregistered, both·for viatical investors and for
the integrity of the securities market in general. Ifthe resales
of these fractional interests in viatical settlements are not clas­
sified as securities for purposes of the SecuritiesLaws,·thecon­
tinuous disclosure . system would not be triggered, and
information asymmetries would threaten the continued pres­
ence of investors in the industry. This, coupled with the specter
of fraud, could well spell the end ofwhat should be a financially
sound and socially beneficial industry.

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