Firm News Archives - Page 56 of 76

Avoiding the Potholes on the Road to Retirement: Understanding Annuity Risks

Saving for one’s own retirement is something everyone needs to consider. There are many financial vehicles that can be used when traveling along the road to retirement. One of these financial vehicles is an annuity. However, annuities are often not suitable for consumers, especially more elderly consumers, because of excessive “hidden” fees and large surrender charges that apply when annuities are surrendered/terminated before a certain time. This is due in part to large commissions paid to agents who sell them, who often act in their own best interest, rather than in the interest of consumers. John Waggoner of USA Today provides some sound advice in his recent article entitled “Annuities are a Retirement Option, But Be Wary of Fees:”

In an article posted on this blog in September entitled, “New California Law Requires That Insurers and Agents Verify that an Annuity is Suitable for the Consumer,” McKennon Law Group PC explained that California Governor Jerry Brown recently signed a new law that provided increased protection to seniors and other consumers who are interested in purchasing an annuity. AB 689, which was sponsored by the California Department of Insurance and authored by Assembly Budget Committee Chair Bob Blumenfield (D-San Fernando Valley), requires that insurers verify that an annuity purchase is suitable and appropriate for the consumer based on an evaluation of his or her age, income, financial objectives and ten other factors.

Knowing the fundamental basics about how an annuity works, the options available and the pitfalls is essential in understanding whether an annuity should be purchased.

Buying Disability Insurance: What You Should Be Looking For

What Are the Advantages of Buying Disability Insurance? What Should You Be Looking for in a Disability Policy? McKennon Law Group PC partner Robert J. McKennon has been litigating disability insurance claims for over twenty-five years and gives his advice on buying disability insurance.

What are some advantages to private disability insurance?

Benefits you receive if you become disabled will be tax-free, as long as you paid the insurance premiums with after-tax money;
Own occupation policies ensure you for your inability to perform the substantial and material duties of your own occupation in the usual and customary manner and with reasonable continuity. This California law standard is very favorable for consumers when insurance companies determine when you are disabled;
The policy is not tied to your current occupation. This means you can move around to different occupations and still maintain your policy;
Once you obtain it, as long as you timely pay your premiums, most policies do not allow insurers to cancel disability policies, no matter your change in health;
If you buy disability insurance when you are earning a high income, most policies provide that the benefits at the time you apply for a disability policy are based on a percentage of your income and your benefits will be locked in even if your income substantially diminishes;
If you buy a policy with lifetime benefits and if you are permanently disabled, you now have a nice “annuitized” income for the remainder of your life;
Your greatest asset is your earning capacity and disability insurance insures that asset – it should be an important part of your financial planning.

What are some important things to look for when considering disability insurance?

Be sure the policy is “guaranteed renewable” and “non-cancellable.” This guarantees that policy premiums cannot be changed as long as you pay them and your policy must be renewed every year no matter your health condition;
Be sure the policy provides benefits to age 65 or lifetime;
Look for disability policies that have “accident” or “injury” definitions that pay benefits for your lifetime;
Although more expensive, always buy “own occupation” policies (with an occupational specialty rider if applicable);
“Residual benefits” are available as an optional rider. This benefit essentially allows you to collect partial disability benefits while you work if you can only work part-time or I can work full-time but can perform some, but not all, of your occupational duties. I recommend against buying this rider because it is expensive and, under California law, it is mostly likely not necessary. In addition, such a rider/provision can be interpreted to disallow total disability benefits when a residual rider is in place (insurers often make this argument);
If you can afford it, a cost-of-living rider will protect your future benefits from inflation;
Buy a policy with a right elimination period (time when you are disabled but you not entitled to receive benefits) – the longer this period, the less expensive your policy.

Once you become disabled, it is vitally important that you fully understand all provisions of your policy and that you obtain necessary counsel if your claim is denied. If you have any questions about your disability coverage, your individual disability claim or ERISA disability claim, please contact us.

Insurance Commissioner Jones Advises Consumers on the Importance of Disability Insurance Policies

Very recently, California Insurance Commissioner Dave Jones issued a bulletin advising consumers about the importance of understanding their options when considering disability income insurance. Here is what he had to say:

“In a down economy many people may not think their most valuable asset is their ability to work,” said Commissioner Jones. “But if illness or injury were to keep you from earning a living you would still need to pay your bills. Disability income insurance could be a viable option for people and their families, and that’s why consumers need to take the time and evaluate their options closely.”

According to the U.S. Census Bureau, one in four of today’s 20-year-olds will become disabled before reaching retirement age; however, only 32 percent of U.S. private industry workers have long-term disability income insurance as part of their benefits package.

An individual may obtain disability income insurance coverage in two ways – either through a group-sponsored setting or purchased as an individual. Group insurance is available through an employer or an association, and these policies may offer short-term and long-term coverage. Short-term disability income insurance typically replaces a portion of the policyholder’s salary up to a year following the disability, while long-term disability income insurance may begin six months after the disability and can last a few years or even until retirement.

Individual insurance is coverage that can be purchased from any insurance company that offers it. The terms of the policy, length and type of coverage are negotiated between the individual and the insurance company and are generally subject to underwriting requirements.

Comparing Disability Policies – When considering disability income insurance policy options there are definitions and benefits consumers should carefully compare.

Definition of disability – the definition varies from policy to policy. Some may pay benefits if you cannot perform the duties of your own occupation, while others may require that your disability keep you from performing tasks of any occupation you are reasonably expected to perform based on your age, education, training and experience.

Extent of disability – Some policies may require you be totally disabled before it pays benefits, while others may pay a limited amount or for a limited time if your injury limits you to performing only part of your job.

Disabilities Covered – The list of covered injuries or illnesses considered disabilities under the policy will vary. Coverage for pre-existing conditions may be limited or excluded.

Residual benefits – This coverage fills in a gap in come if you are partially disabled, you return to work, and your income is reduced because you can’t perform all of the duties of your job.

Determining How Much Coverage You Need

Before purchasing disability income insurance, determine how much income you need to meet critical financial obligations such as rent/mortgage, food, fuel/transportation, utilities, etc. An easy way to do this is by adding up your monthly expenses and comparing them with the income from any existing disability coverage, plus any income from other sources, such as personal savings.

Becoming disabled can also bring with it increased or additional expenses like health care costs, assistance with daily activities, even home modifications. Keep this in mind while evaluating the amount and type of coverage you could need.

The amount of benefits you receive is based on a percentage of your pre-disability earned income. The benefit amount received can be reduced by other sources of disability support such as Social Security disability payments, employer long-term disability insurance, among others.

If the long-term disability income insurance coverage your employer offers is not enough to cover your needs, there are options for purchasing additional coverage”.

As a corollary to this article, you may by wondering: what are the advantages of buying disability insurance? What should you be looking for in a disability policy? McKennon Law Group PC partner partner Robert J. McKennon has been litigating disability insurance claims for over twenty-five years and gives his advice on buying disability insurance in his article: Buying Disability Insurance: What You Should Be Looking For

If you have any questions about your disability coverage, your disability claim or ERISA disability claim, please contact us. Insurance consumers can learn more about insurance by visiting the California Department of insurance web site at www.insurance.ca.gov.

Cause of Action Asserted Against Blue Cross for Violation of Montana’s Unfair Trade Practices Act is Not Preempted by ERISA

In a recent decision, the Ninth Circuit Court of Appeals ruled that ERISA does not preempt causes of action based on unfair insurance practice claims brought under Montana’s Unfair Trade Practices Act. However, the Court did find that Montana’s so-called “little HIPAA” was preempted by federal HIPAA, which is part of ERISA.

In Fossen v. Blue Cross and Blue Shield, __ F.3d __ (9th Cir. October 18, 2011), the Court considered an appeal from a District Court ruling that entered summary judgment in favor of Blue Cross on two causes of action. Plaintiffs – which consisted of three brothers, their corporations and a partnership of the three corporations – sued Blue Cross after the health insurer increased their premiums by over 40%. The lawsuit, filed in state court, alleged two causes of action: violation of Montana Code Annotated § 33-22-526(a) (also known as Montana’s “little HIPAA” statute) and violation of Montana Code Annotated § 33-18-101 (also known as Montana’s Unfair Trade Practices Act). Plaintiffs alleged that premium increase violated little HIPAA’s prohibition against imposing a “premium or contribution that is greater than the premium or contribution for a similarly situated individual” on account of “any health status-related factor of the individual” and the Unfair Trade Practices Act’s prohibition against “unfair discrimination between individuals of the same class and of essentially the same hazard in the amount of premium, policy fees, or rates charged.” The action, filed in state court, was removed to the District Court, which eventually granted Blue Cross’ motion for summary judgment as to all causes of action.

On appeal, the Ninth Circuit first considered whether ERISA and federal HIPAA preempted state law causes of action based on Montana’s little HIPAA statute and conferred federal jurisdiction over the claim. Applying the two-part test detailed in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the Ninth Circuit determined the little HIPAA claim was preempted because the same claim could have been brought under the federal HIPAA statute and there was no other independent duty implicated by Blue Cross’ actions. Specifically, the Ninth Circuit advised that:

Because the Fossens’ state HIPAA cause of action could have been brought under ERISA § 502(a), and because that cause of action is identical to and expressly dependent upon ERISA, the district court properly denied the Fossens’ motion to remand and exercised jurisdiction over this case.

Next, the Ninth Circuit evaluated whether ERISA preempts the plaintiffs’ statutory unfair insurance practice claim, considering both express preemption under ERISA § 514 (29 U.S.C. § 1144) and conflict preemption under ERISA § 502 (29 U.S.C. § 1132). With respect to express preemption, the court applied the two-part test detailed in Kentucky Association of Health Plans v. Miller, 538 U.S. 329 (2003) and determined that because statute is both “specifically directly toward entities engaged in insurance” and substantially affect[s] the risk pooling arrangement between the insurer and the insured” it is exempt from express preemption.

As to conflict preemption, the court again applied Davila, and determined that the unfair insurance practice claim was not preempted by ERISA because it sought relief (i.e., restitution) that was consistent with ERISA’s enforcement scheme, but that no provision of ERISA expressly guarantees the same rights as the statute.

Also, the unfair insurance practices statute creates a right that is separate from and could not possibly be remedied under ERISA. Whereas HIPAA (both the state and federal versions) prohibits plans and their insurers from charging different premiums on account of “health status-related factor[s],” 29 U.S.C. § 1182(b)(1); Mont. Code Ann. § 33-22-526(2)(a), the unfair insurance practices statute applies more broadly to bar “any unfair discrimination” with respect to premiums, Mont. Code Ann. § 33-18-206(2) (emphasis added); see, e.g., McCarter v. Glacier Gen. Assurance Co., 546 P.2d 249, 251 (Mont. 1976). Because these statutes are not identical in scope (as is the case with the state and federal HIPAA provisions), they are not conflict preempted.

Accordingly, the Ninth Circuit reversed the district court’s grant of summary judgment and remanded this claim for further consideration of the plaintiffs’ allegations that Blue Cross violated Montana’s Unfair Trade Practices Act.

MCKENNON LAW GROUP PC OBTAINS $3.93 MILLION DAMAGE AWARD FOR CLIENTS IN BUSINESS DISPUTE OVER INTELLECTUAL PROPERTY AND LICENSING RIGHTS

In January 2010, McKennon Law Group PC was approached by weight loss supplement company TriPharma, LLC, about a dispute involving its exclusive rights to advertise, market and sell a revolutionary patented and clinically studied weight loss product that was manufactured by San Diego based company Imagenetix, Inc. TriPharma discovered Imagenetix’s multiple breaches of its exclusive license agreement with Imagenetix which had all but destroyed its ability to sell its weight loss product, destroyed much of the goodwill built up for the product, and was threatening to destroy the years of hard work put in developing TriPharma’s one-of-a-kind weight loss beverage, which was due to hit the stores in a few short months. Shortly thereafter, Imagenetix wrongfully terminated TriPharma’s exclusive license and began to sell product directly to TriPharma’s customers.

The attorneys at McKennon Law Group PC LLP took immediate action and filed lawsuits in federal court against the companies which were infringing on TriPharma’s exclusive license through product sales of their own, and filed claims in JAMS arbitration against Imagenetix for, among other things, fraud, breach of contract, and injunctive relief, seeking damages as well as reinstatement of the exclusive license agreement

After aggressive discovery and motion practice in the JAMS arbitration for over a year-and-a-half, and after a fourteen (14) day arbitration hearing, TriPharma prevailed and was awarded $2.1 million in compensatory damages, pre and post-judgment interest, and its attorneys’ fees and costs in both prosecuting TriPharma’s claims as well as successfully defending frivolous claims asserted against its CEO. The McKennon Law Group PC LLP attorneys were also able to prove TriPharma’s claim of promissory fraud and obtained punitive damages in the amount of $250,000, as well as personal, and joint and several liability against Imagenetix CEO William Spencer. The total monetary award amounted to over $3.93 million.

Even more significantly, the McKennon Law Group PC LLP attorneys were able to obtain the injunctive relief they fought for so vigorously on behalf of TriPharma. The arbitrator reinstated TriPharma’s exclusive license agreement, extended the term of the agreement, provided a six month abeyance of minimum obligations so that TriPharma could get its business back up and running, and enjoined Imagenetix from selling its weight loss product, or any other weight loss product based on the patent or clinical studies, to any other company. The award effectively won back the rights that TriPharma had bargained for and which had been stolen by Imagenetix through its various activities relating to the sales and distribution of the product.

The victory for TriPharma and the McKennon Law Group PC LLP law firm was a complete success. Not only did TriPharma recoup the ability to conduct business, but TriPharma and its CEO were vindicated and awarded significant monetary compensation for the fraud perpetrated on him and his company. In issuing the award, the arbitrator gave particular mention to McKennon Law Group PC partner Robert J. McKennon:

McKennon l Schindler achieved substantial success in this litigation and its chief trial attorney Robert McKennon demonstrated exceptional skill in cross-examining [Imagenetix’s CEO and other employees]. Indeed, those examinations exposed the lack of credibility of those witnesses, which was a decisive factor in the Arbitrator’s findings and rulings.

Robert J. McKennon and Reid A. Winthrop tried the case on behalf of TriPharma.

MCKENNON LAW GROUP PC WINS DEFENSE VERDICT AGAINST $2 MILLION SUCCESSOR LIABLITY CLAIM

On October 12, 2011, the McKennon Law Group PC law firm won a complete defense verdict on a $2 million successor liability claim against their client, Elephant Talk Communications Corp., in a case called Chong Hing Bank Limited v. Elephant Talk Communications, Inc., Orange County Superior Court Case No. 30-2009-00328467.

Chong Hing Bank Limited (Bank), a Hong Kong financial services company, began making loans to Elephant Talk Limited (ETL), a Hong Kong telecommunications company, beginning in 1996. In 2002 ETL reverse acquired a California public shell company called Staruni Corp. in a stock-for-stock exchange in which Staruni became the parent company and ETL became its wholly-owned subsidiary. Staruni changed its name to “Elephant Talk Communications, Inc.” (Elephant Talk) in connection with the reverse acquisition.

By 2004 ETL was in default on all of the loans. In 2005 a European investment group acquired control of Elephant Talk. In 2009 the Bank called the loans and filed suit against Elephant Talk (the parent company of the entity that took out the loans) in Orange County Superior Court on a theory of successor liability. The Bank did not proceed directly against ETL. The Bank contended that the reverse acquisition was a statutory merger, a de facto merger or an asset purchase resulting in Elephant Talk’s assumption of liability for the loans to ETL. Elephant Talk contended that the reverse acquisition was merely a stock exchange acquisition in which ETL became Elephant Talk’s wholly-owned foreign subsidiary, and maintained its separate existence as a Hong Kong company in order to do continue doing business in China. Elephant Talk denied any successor liability, denied otherwise assuming liability for the loans, and contended that California’s four-year statute of limitations had already run on the Bank’s claims.

Elephant Talk and the Bank stipulated to a bench trial on all issues. After a five-day bench trial, the court issued a decision in favor of Elephant Talk on the issue of successor liability, on the first cause of action for breach of contract, on the second cause of action for open book account, and on the Bank’s proposed amendments to add causes of action for intentional misrepresentation and negligent misrepresentation. The court entered judgment in favor of Elephant Talk on November 2, 2011.

Eric J. Schindler and Scott E. Calvert tried the case on behalf of Elephant Talk.

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