Bill Text: NJ A376 | 2010-2011 | Regular Session | Introduced
Bill Title: "Life Settlements Act"; regulates life settlement contracts and prohibits stranger-originated life insurance contracts; repeals "Viatical Settlements Act."
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced, Referred to Assembly Financial Institutions and Insurance Committee [A376 Detail]
Download: New_Jersey-2010-A376-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Assemblyman GARY S. SCHAER
District 36 (Bergen, Essex and Passaic)
SYNOPSIS
"Life Settlements Act"; regulates life settlement contracts and prohibits stranger-originated life insurance contracts; repeals "Viatical Settlements Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning certain life insurance contracts, supplementing Title 17B of the New Jersey Statutes, amending P.L.1967, c.93 and repealing sections 1 through 17 of P.L.2005, c.229.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "Life Settlements Act."
2. (New section) As used in this act:
"Advertisement" means any written, electronic or printed communication or any communication by means of recorded telephone messages or transmitted on radio, television, the Internet or similar communications media, including film strips, motion pictures and videos, published, disseminated, circulated or placed before the public, directly or indirectly, for the purpose of creating an interest in or inducing a person to purchase or sell, assign, devise, bequest or transfer the death benefit or ownership of a life insurance policy or an interest in a life insurance policy pursuant to a life settlement contract.
"Broker" means a person who, on behalf of an owner and for a fee, commission or other valuable consideration, offers or attempts to negotiate life settlement contracts between an owner and providers. A broker represents only the owner and owes a fiduciary duty to the owner to act according to the owner's instructions, and in the best interest of the owner, notwithstanding the manner in which the broker is compensated. A broker does not include an attorney, certified public accountant or financial planner, retained in the type of practice customarily performed in their professional capacity to represent the owner, whose compensation is not paid directly or indirectly by the provider or any other person, except the owner.
"Business of life settlements" means an activity involved in, but not limited to, offering to enter into, soliciting, negotiating, procuring, effectuating, monitoring, or tracking, life settlement contracts.
"Chronically ill" means:
(1) Being unable to perform at least two activities of daily living, including, but not limited to, eating, toileting, transferring, bathing, dressing or continence;
(2) Requiring substantial supervision to protect the individual from threats to health and safety due to severe cognitive impairment; or
(3) Having a level of disability similar to that described in paragraph (1) of this subsection as determined by the United States Secretary of Health and Human Services.
"Commissioner" means the Commissioner of Banking and Insurance.
"Department" means the Department of Banking and Insurance.
"Financing entity" means:
(1) An underwriter, placement agent, lender, purchaser of securities, purchaser of a policy or certificate from a provider, credit enhancer, or any entity that has a direct ownership in a policy or certificate that is the subject of a life settlement contract, but:
(a) Whose principal activity related to the transaction is providing funds to effect the life settlement contract or purchase of one or more policies; and
(b) Who has an agreement in writing with one or more providers, to finance the acquisition of life settlement contracts.
(2) "Financing entity" does not include a non-accredited investor or purchaser.
"Financing transaction" means a transaction in which a licensed provider obtains financing from a financing entity including, without limitation, any secured or unsecured financing, any securitization transaction, or any securities offering which either is registered or exempt from registration under federal and state securities law.
"Fraudulent life settlement act" means and includes:
(1) Acts or omissions committed by any person who, knowingly and with intent to defraud, for the purpose of depriving another of property or for pecuniary gain, commits, or permits its employees or its agents to engage in acts including, but not limited to:
(a) Presenting, causing to be presented or preparing with knowledge and belief that it will be presented to or by a provider, premium finance lender, broker, insurer, insurance producer or any other person, false material information, or concealing material information, as part of, in support of, or concerning a fact material to one or more of the following:
(i) An application for the issuance of a life settlement contract or insurance policy;
(ii) The underwriting of a life settlement contract or insurance policy;
(iii) A claim for payment or benefit pursuant to a life settlement contract or insurance policy;
(iv) Premiums paid on an insurance policy;
(v) Payments and changes in ownership or beneficiary made in accordance with the terms of a life settlement contract or insurance policy;
(vi) The reinstatement or conversion of an insurance policy;
(vii) The solicitation, offer, or effectuation of a life settlement contract or insurance policy;
(viii) The issuance of written evidence of a life settlement contract or insurance policy;
(ix) Any application for, or the existence of, or any payments related to, a loan secured directly or indirectly by any interest in a life insurance policy; or
(x) Entering into any practice or plan which involves stranger-originated life insurance or STOLI.
(b) If the insurer has requested such disclosure, failing to disclose to the insurer that the prospective insured has undergone a life expectancy evaluation by any person or entity other than the insurer or its authorized representatives in connection with the issuance of the policy.
(c) Employing any device, scheme, or artifice to defraud in the business of life settlements.
(d) In the solicitation, application or issuance of a life insurance policy, employing any device, scheme or artifice in violation of state insurable interest laws.
(2) In the furtherance of a fraud or to prevent the detection of a fraud, any person commits or permits its employees or its agents to:
(a) Remove, conceal, alter, destroy or sequester from the commissioner the assets or records of a licensee or other person engaged in the business of life settlements;
(b) Misrepresent or conceal the financial condition of a licensee, financing entity, insurer or other person;
(c) Transact the business of life settlements in violation of laws requiring a license, certificate of authority or other legal authority for the transaction of the business of life settlements;
(d) File with the commissioner or the chief insurance regulatory official of another jurisdiction a document containing false information or otherwise concealing information about a material fact from the commissioner;
(e) Engage in embezzlement, theft, misappropriation or conversion of monies, funds, premiums, credits or other property of a provider, insurer, insured, owner, insurance policy owner or any other person engaged in the business of life settlements or insurance;
(f) Knowingly and with intent to defraud, enter into, broker, or otherwise deal in a life settlement contract, the subject of which is a life insurance policy that was obtained by presenting false information concerning any fact material to the policy or by concealing, for the purpose of misleading another, information concerning any fact material to the policy, if the owner or the owner's agent intended to defraud the policy's issuer;
(g) Attempt to commit, assist, aid or abet in the commission of, or conspiracy to commit the acts or omissions specified in this subsection; or
(h) Misrepresent the state of residence of an owner to be a state or jurisdiction that does not have a law substantially similar to this act for the purpose of evading or avoiding the provisions of this act.
(3) Entering into stranger-originated life insurance or "STOLI" as defined in this section.
"Insured" means the person covered under the policy being considered for sale in a life settlement contract.
"Life expectancy" means the arithmetic mean of the number of months the insured under the life insurance policy to be settled can be expected to live as determined by a life expectancy company considering medical records and appropriate experiential data.
"Life insurance producer" means any person licensed as a resident or nonresident insurance producer with a life insurance line of authority pursuant to the "New Jersey Insurance Producer Licensing Act of 2001," P.L.2001, c.210 (C.17:22A-26 et al.).
"Life settlement contract" means a written agreement entered into between a provider and an owner, establishing the terms under which compensation or any thing of value will be paid, which compensation or thing of value is less than the expected death benefit of the insurance policy or certificate, in return for the owner's assignment, transfer, sale, devise or bequest of the death benefit or any portion of an insurance policy or certificate for compensation. The minimum value for a life settlement contract shall be greater than a cash surrender value or accelerated death benefit available at the time of an application for a life settlement contract.
(1) "Life settlement contract" also includes the transfer for compensation or value of ownership or beneficial interest in a trust or other entity that owns that policy if the trust or other entity was formed or availed of for the principal purpose of acquiring one or more life insurance policies, which life insurance policy insures the life of a person residing in this State.
(2) "Life settlement contract" also means and includes:
(a) A written agreement for a loan or other lending transaction, secured primarily by an individual or group life insurance policy; or
(b) A premium finance loan made for a policy on or before the date of issuance of the policy and pursuant to which one or more of the following conditions apply:
(i) The loan proceeds are not used solely to pay premiums for the policy and any costs or expenses incurred by the lender or the borrower in connection with the financing; or
(ii) The owner receives on the date of the premium finance loan a guarantee of the future life settlement value of the policy; or
(iii) The owner agrees on the date of the premium finance loan to sell the policy or any portion of its death benefit on any date following the issuance of the policy.
(3) "Life settlement contract" does not include:
(a) A policy loan by a life insurance company pursuant to the terms of the life insurance policy or accelerated death provisions contained in the life insurance policy, whether issued with the original policy or as a rider;
(b) A premium finance loan, as defined in this section, or any loan made by a licensed financial institution, provided that neither default on that loan nor the transfer of the policy in connection with that default is made pursuant to an agreement or understanding with any other person for the purpose of evading regulation under this act;
(c) A collateral assignment of a life insurance policy by an owner;
(d) A loan made by a lender that does not violate the "Insurance Premium Finance Company Act," P.L.1968, c.221 (C.17:16D-1 et seq.) so long as that loan is not described in paragraph (1) above, and is not otherwise within the definition of a life settlement contract;
(e) An agreement in which all the parties:
(i) Are closely related to the insured by blood or law; or
(ii) Have a lawful substantial economic interest in the continued life, heath and bodily safety of the person insured; or
(iii) Are trusts established primarily for the benefit of such parties;
(f) Any designation, consent or agreement by an insured who is an employee of an employer in connection with the purchase by the employer, or trust established by the employer, of life insurance on the life of the employee;
(g) A bona fide business succession planning arrangement:
(i) Between one or more shareholders in a corporation or between a corporation and one or more of its shareholders or one or more trusts established by its shareholders;
(ii) Between one or more partners in a partnership or between a partnership and one or more of its partners or one or more trusts established by its partners; or
(iii) Between one or more members in a limited liability company or between a limited liability company and one or more of its members or one or more trusts established by its members;
(h) An agreement entered into by a service recipient, or a trust established by the service recipient, and a service provider, or a trust established by the service provider, who performs significant services for the service recipient's trade or business; or
(i) Any other contract, transaction or arrangement that the commissioner determines is not of the type intended to be regulated by this act.
"Net death benefit" means the amount of the life insurance policy or certificate to be settled, less any outstanding debts or liens.
"Owner" means the owner of a life insurance policy or a certificate holder under a group policy, with or without a terminal illness, who enters or seeks to enter into a life settlement contract. For the purposes of this act, an owner shall not be limited to an owner of a life insurance policy or a certificate holder under a group policy that insures the life of an individual with a terminal or chronic illness or condition except where specifically addressed.
The term "owner" does not include:
(1) Any provider or other licensee under this act;
(2) A qualified institutional buyer as defined in Rule 144A (17 C.F.R. 230.144A) of the federal "Securities Act of 1933," title I of Pub.L.73-22 (15 U.S.C. s.77a et seq.) as amended;
(3) A financing entity;
(4) A special purpose entity; or
(5) A related provider trust.
"Patient identifying information" means an insured's address, telephone number, facsimile number, electronic mail address, photograph or likeness, employer, employment status, Social Security number, or any other information that is likely to lead to the identification of the insured.
"Policy" means an individual or group policy, group certificate, contract or arrangement of life insurance owned by an owner who is a resident of this State, regardless of whether delivered or issued for delivery in this State.
"Premium finance loan" means a loan made primarily for the purposes of making premium payments on a life insurance policy, which loan is secured by an interest in that life insurance policy.
"Person" means any natural person or legal entity, including but not limited to, a partnership, a limited liability partnership, limited liability company, association, trust or corporation.
"Provider" means a person, other than an owner, who enters into or effectuates a life settlement contract with an owner.
A "provider" does not include:
(1) Any bank, savings bank, savings and loan association, credit union;
(2) A licensed lending institution or creditor or secured party pursuant to a premium finance loan agreement which takes an assignment of a life insurance policy or certificate issued pursuant to a group life insurance policy as collateral for a loan;
(3) The insurer of a life insurance policy or rider to the extent of providing accelerated death benefits or riders or cash surrender value;
(4) Any natural person who enters into or effectuates no more than one agreement in a calendar year for the transfer of a life insurance policy or certificate issued pursuant to a group life insurance policy, for compensation or anything of value less than the expected death benefit payable under the policy;
(5) A purchaser;
(6) Any authorized or eligible insurer that provides stop loss coverage to a provider, purchaser, financing entity, special purpose entity, or related provider trust;
(7) A financing entity;
(8) A special purpose entity;
(9) A related provider trust;
(10) A broker; or
(11) An accredited investor or qualified institutional buyer as defined respectively in Regulation D, Rule 501 through 508 (17 C.F.R. 230.501-230.508) or rule 144A (17 C.F.R. 230.144A) of the federal "Securities Act of 1933," title I of Pub.L.73-22 (15 U.S.C. s.77a et seq.) as amended, who purchases a life settlement policy from a provider.
"Purchased policy" means a life insurance policy or group certificate that has been acquired by a provider pursuant to a life settlement contract.
"Purchaser" means a person who pays compensation or anything of value as consideration for a beneficial interest in a trust which is vested with, or for the assignment, transfer or sale of, an ownership or other interest in a life insurance policy or a certificate issued pursuant to a group life insurance policy which has been the subject of a life settlement contract.
"Related provider trust" means a titling trust or other trust established by a licensed provider or a financing entity for the sole purpose of holding the ownership or beneficial interest in purchased policies in connection with a financing transaction. The trust shall have a written agreement with the licensed provider under which the licensed provider is responsible for ensuring compliance with all statutory and regulatory requirements and under which the trust agrees to make all records and files relating to life settlement transactions available to the commissioner as if those records and files were maintained directly by the licensed provider.
"Settled policy" means a life insurance policy or certificate that has been acquired by a provider pursuant to a life settlement contract.
"Special purpose entity" means a corporation, partnership, limited liability partnership, trust, limited liability company, or other legal entity formed solely to provide, either directly or indirectly, access to institutional capital markets:
For a financing entity or provider; or
(1) In connection with a transaction in which the securities in the special purpose entity are acquired by the owner or by a qualified institutional buyer as defined in Rule 144A (17 C.F.R. 230.144A) of The federal "Securities Act of 1933," title I of Pub.L.73-22 (15 U.S.C. s.77a et seq.) as amended; or
(2) The securities pay a fixed rate of return commensurate with established asset-backed institutional capital markets.
"Stranger-originated life insurance" or "STOLI" means an act, practice, or plan to initiate a life insurance policy for the benefit of a third party investor who, at the time of policy origination, has no insurable interest in the life of the insured. STOLI practices include but are not limited to cases in which life insurance is purchased with resources or guarantees from or through a person, or entity, who, at the time of policy inception, could not lawfully initiate the policy himself or itself, and where, at the time of policy inception, there exists an arrangement or agreement, whether verbal or written, to transfer directly or indirectly, the ownership of that policy or the policy benefits to a third party. Trusts that are created to give the appearance of insurable interest, and are used to initiate policies for investors, violate insurable interest laws and the prohibition against wagering on life. STOLI arrangements do not include those practices set forth in paragraph (2) of the definition of "life settlement contract" in this section.
"Terminally ill" means having an illness or sickness that can reasonably be expected to result in death in 24 months or less.
3. (New section) a. A person shall not act as a provider or broker with an owner or multiple owners who is a resident of this State, without first obtaining a license from the commissioner. If there is more than one owner on a single policy and the owners are residents of different states, the life settlement contract shall be governed by the law of the state in which the owner having the largest percentage ownership resides or, if the owners hold equal ownership, the state of residence of one owner agreed upon in writing by all owners.
b. Application for a provider, or broker, license shall be made to the commissioner by the applicant on a form prescribed by the commissioner, and the application shall be accompanied by a fee in an amount established by the commissioner, provided, however, that the license and renewal fees for a provider license shall be reasonable and that the license and renewal fees for a broker license shall not exceed those established for an insurance producer, as those fees are otherwise provided for in this act.
c. A life insurance producer who has been duly licensed as a resident insurance producer with a life insurance line of authority in this State or his or her home state for at least one year and is licensed as a nonresident producer in this State shall be deemed to meet the licensing requirements of this section and shall be permitted to operate as a broker.
d. Not later than 30 days from the first day of operating as a broker, the life insurance producer shall notify the commissioner that he or she is acting as a broker on a form prescribed by the commissioner, and shall pay any applicable fee to be determined by the commissioner. Notification shall include an acknowledgement by the life insurance producer that he or she will operate as a broker in accordance with this act.
e. The insurer that issued the policy that is the subject of a life settlement contract shall not be responsible for any act or omission of a broker or provider or purchaser arising out of or in connection with the life settlement transaction, unless the insurer receives compensation for the placement of a life settlement contract from the provider or purchaser or broker in connection with the life settlement contract.
f. A person licensed as an attorney, certified public accountant or financial planner accredited by a nationally recognized accreditation agency, who is retained to represent the owner, whose compensation is not paid directly or indirectly by the provider or purchaser, may negotiate life settlement contracts on behalf of the owner without having to obtain a license as a broker.
g. Licenses may be renewed annually on the anniversary date upon payment of the periodic renewal fee. Failure to pay the fee within the terms prescribed shall result in the automatic revocation of the license requiring periodic renewal.
h. The term of a provider license shall be equal to that of a domestic stock life insurance company and the term of a broker license shall be equal to that of an insurance producer license. Licenses requiring periodic renewal may be renewed on their anniversary date upon payment of the periodic renewal fee as specified in subsection b. of this section. Failure to pay the fees on or before the renewal date shall result in expiration of the license.
i. The applicant shall provide information as required by the commissioner on forms prepared by the commissioner. The commissioner shall have authority, at any time, to require an applicant to fully disclose the identity of its stockholders (except stockholders owning fewer than ten percent of the shares of an applicant whose shares are publicly traded), partners, officers and employees, and the commissioner may, in the exercise of the commissioner's sole discretion, refuse to issue such a license in the name of any person if not satisfied that any officer, employee, stockholder or partner thereof who may materially influence the applicant's conduct meets the standards of sections 1 to 14 of this act.
j. A license issued to a partnership, corporation or other entity authorizes all members, officers and designated employees to act as a licensee under the license, if those persons are named in the application and any supplements to the application.
k. Upon the filing of an application and the payment of the license fee, the commissioner shall make an investigation of each applicant and may issue a license if the commissioner finds that the applicant:
(1) If a provider, has provided a detailed plan of operation;
(2) Is competent and trustworthy and intends to transact its business in good faith;
(3) Has a good business reputation and has had experience, training or education so as to be qualified in the business for which the license is applied;
(4) If the applicant is a legal entity, is formed or organized pursuant to the laws of this State or is a foreign legal entity authorized to transact business in this State, or provides a certificate of good standing from the state of its domicile; and
(5) Has provided to the commissioner an anti-fraud plan that meets the requirements of section 13 of this act and includes:
(a) A description of the procedures for detecting and investigating possible fraudulent acts and procedures for resolving material inconsistencies between medical records and insurance applications;
(b) A description of the procedures for reporting fraudulent insurance acts to the commissioner;
(c) A description of the plan for anti-fraud education and training of its underwriters and other personnel; and
(d) A written description or chart outlining the arrangement of the anti-fraud personnel who are responsible for the investigation and reporting of possible fraudulent insurance acts and investigating unresolved material inconsistencies between medical records and insurance applications.
l. The commissioner shall not issue any license to any nonresident applicant, unless a written designation of an agent for service of process is filed and maintained with the commissioner or the applicant has filed with the commissioner the applicant's written irrevocable consent that any action against the applicant may be commenced against the applicant by service of process on the commissioner.
m. Each licensee shall file with the commissioner on or before the first day of March of each year an annual statement containing that information which the commissioner prescribes by rule.
n. A provider may not use any person to perform the functions of a broker as defined in this act unless the person holds a current, valid license as a broker.
o. A broker may not use any person to perform the functions of a provider as defined in this act unless that person holds a current, valid license as a provider.
p. A provider or broker shall provide to the commissioner new or revised information about officers, stockholders holding ten percent or more of the outstanding shares of the corporation, partners, directors, members or designated employees within 30 days of the change.
q. An individual licensed as a broker shall complete on a biennial basis 15 hours of training related to life settlements and life settlement transactions, as required by the commissioner; provided, however, that a life insurance producer who is operating as a broker pursuant to this section shall not be subject to the requirements of this subsection. Any person failing to meet the requirements of this subsection shall be subject to the penalties imposed by the commissioner.
4. (New section) a. The commissioner may refuse to issue, suspend, revoke or refuse to renew the license of any licensee if the commissioner finds that:
(1) There was any material misrepresentation in the application for the license;
(2) The licensee or any officer, partner, member or director has been guilty of fraudulent or dishonest practices, is subject to a final administrative action or is otherwise shown to be untrustworthy or incompetent to act as a licensee;
(3) The provider demonstrates a pattern of unreasonably withholding payments to policy owners;
(4) The licensee no longer meets the requirements for initial licensure;
(5) The licensee or any officer, partner, member or director has been convicted of a felony, or of any misdemeanor of which criminal fraud is an element; or the licensee has pleaded guilty or nolo contendere with respect to any felony or any misdemeanor of which criminal fraud or moral turpitude is an element, regardless of whether a judgment of conviction has been entered by the court;
(6) The provider has entered into any life settlement contract that has not been approved pursuant to this act;
(7) The provider has failed to honor contractual obligations set out in a life settlement contract;
(8) The provider has assigned, transferred or pledged a settled policy to a person other than a provider licensed in this State, a purchaser, an accredited investor or qualified institutional buyer as defined respectively in Regulation D, Rule 501 through 508 (17 C.F.R. 230.501-230.508) or Rule 144A (17 C.F.R. 230.144A) of the federal "Securities Act of 1933," title I of Pub.L.73-22 (15 U.S.C. s.77a et seq.) as amended, a financing entity, special purpose entity, or related provider trust; or
(9) The licensee or any officer, partner, member or key management personnel has violated any of the provisions of this act.
b. Before the commissioner denies a license application or suspends, revokes or refuses to renew the license of any licensee under this act, the commissioner shall conduct a hearing in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq,).
5. (New section) a. A person shall not use any form of life settlement contract in this State unless it has been filed with and approved, if required, by the commissioner in a manner that conforms with the filing procedures and any time restrictions or deeming provisions, if any, for life insurance forms, policies and contracts.
b. No insurer may, as a condition of responding to a request for verification of coverage or in connection with the transfer of a policy pursuant to a life settlement contract, require that the owner, insured, provider or broker sign any form, disclosure, consent, waiver or acknowledgment that has not been expressly approved by the commissioner for use in connection with life settlement contracts in this State.
c. A person shall not use a life settlement contract form or provide to an owner a disclosure statement form in this State unless first filed with and approved by the commissioner. The commissioner shall disapprove a life settlement contract form or disclosure statement form if, in the commissioner's opinion, the contract or provisions contained therein fail to meet the requirements of sections 9 through 11 and subsection d. of section 14 of this act, or are unreasonable, contrary to the interests of the public, or otherwise misleading or unfair to the owner.
d. At the commissioner's discretion, the commissioner may require the submission of advertising material to determine compliance with section 8 of this act.
6. (New section) a. For any policy settled within five years of policy issuance, each provider shall file with the commissioner on or before March 1 of each year an annual statement containing that information as to settled policies which the commissioner may prescribe by regulation. In addition to any other requirements, the annual statement shall specify the total number, aggregate face amount and life settlement proceeds of policies settled during the immediately preceding calendar year, together with a breakdown of the information by policy issue year. The annual statement shall also include the names of the insurance companies whose policies have been settled and the brokers that have settled said policies.
(1) Such information shall be limited to only those transactions in which the insured is a resident of this State and shall not include individual transaction data regarding the business of life settlements or information that there is a reasonable basis to believe could be used to identify the owner or the insured.
(2) Every provider that willfully fails to file an annual statement as required in this section, or willfully fails to reply within 30 days to a written inquiry by the commissioner in connection therewith, shall, in addition to other penalties provided by this act, be subject, upon due notice and opportunity to be heard, to a penalty of up to $250 per day of delay, not to exceed $25,000 in the aggregate, for each such failure.
b. Except as otherwise allowed or required by law, a provider, broker, insurance company, insurance producer, information bureau, rating agency or company, or any other person with actual knowledge of an insured's identity, shall not disclose the identity of an insured or information that there is a reasonable basis to believe could be used to identify the insured or the insured's financial or medical information to any other person unless the disclosure:
(1) Is necessary to effect a life settlement contract between the owner and a provider and the owner and insured have provided prior written consent to the disclosure;
(2) Is necessary to effectuate the sale of life settlement contracts, or interests therein, as investments, so long as the sale is conducted in accordance with applicable state and federal securities law and the owner and the insured have both provided prior written consent to the disclosure;
(3) Is provided in response to an investigation or examination by the commissioner or any other governmental officer or agency or pursuant to the requirements of section 13 of this act;
(4) Is a term or condition to the transfer of a policy by one provider to another provider, in which case the receiving provider shall be required to comply with the confidentiality requirements of this subsection;
(5) Is necessary to allow the provider or broker or their authorized representatives to make contacts for the purpose of determining health status. For the purposes of this paragraph, the term "authorized representative" shall not include any person who has or may have any financial interest in the settlement contract other than a provider, licensed broker, financing entity, related provider trust or special purpose entity. A provider or broker shall require its authorized representative to agree in writing to adhere to the privacy provisions of this act; or
(6) Is required to purchase stop loss coverage.
c. Non-public personal information solicited or obtained in connection with a proposed or actual life settlement contract shall be subject to the provisions applicable to financial institutions under the federal "Gramm-Leach-Bliley Act," title V of Pub.L.106-102, (15 U.S.C. s.6801 et seq.) and all other state and federal laws relating to confidentiality of non-public personal information.
7. (New section) a. The commissioner may, when he deems it reasonably necessary to protect the interests of the public, examine the business and affairs of any licensee or applicant for a license. The commissioner may order any licensee or applicant to produce any records, books, files or other information reasonably necessary to ascertain whether that licensee or applicant is acting or has acted in violation of the law or otherwise contrary to the interests of the public. The expenses incurred in conducting any examination shall be paid by the licensee or applicant.
b. In lieu of an examination under this act of any foreign or alien licensee licensed in this State, the commissioner may, at his discretion, accept an examination report on the licensee as prepared by the commissioner for the licensee's state of domicile or port-of-entry state.
c. Names and individual identification data, for all owners and insureds shall be considered private and confidential information and shall not be disclosed by the commissioner unless required by law.
d. Records of all consummated transactions and life settlement contracts shall be maintained by the provider for three years after the death of the insured and shall be available to the commissioner for inspection during reasonable business hours.
e. (1) Upon determining that an examination should be conducted, the commissioner shall issue an examination warrant appointing one or more examiners to perform the examination and instructing them as to the scope of the examination. In conducting the examination, the examiner shall use methods common to the examination of any life settlement licensee and should use those guidelines and procedures set forth in an examiners' handbook adopted by a national organization.
(2) Every licensee or person from whom information is sought, its officers, directors and agents, shall provide to the examiners timely, convenient and free access at all reasonable hours at its offices to all books, records, accounts, papers, documents, assets and computer or other recordings relating to the property, assets, business and affairs of the licensee being examined. The officers, directors, employees and agents of the licensee or person shall facilitate the examination and aid in the examination so far as it is in their power to do. The refusal of a licensee, by its officers, directors, employees or agents, to submit to examination or to comply with any reasonable written request of the commissioner shall be grounds for suspension or refusal of, or nonrenewal of any license or authority held by the licensee to engage in the life settlement business or other business subject to the commissioner's jurisdiction. Any proceedings for suspension, revocation or refusal of any license or authority shall be conducted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
(3) The commissioner shall have the power to issue subpoenas, to administer oaths and to examine under oath any person as to any matter pertinent to the examination. Upon the failure or refusal of a person to obey a subpoena, the commissioner may petition a court of competent jurisdiction, and upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence.
(4) When making an examination under this act, the commissioner may retain attorneys, appraisers, independent actuaries, independent certified public accountants or other professionals and specialists as examiners, the reasonable cost of which shall be borne by the licensee that is the subject of the examination.
(5) Nothing contained in this act shall be construed to limit the commissioner's authority to terminate or suspend an examination in order to pursue other legal or regulatory action pursuant to the insurance laws of this State. Findings of fact and conclusions made pursuant to any examination shall be prima facie evidence in any legal or regulatory action.
(6) Nothing contained in this act shall be construed to limit the commissioner's authority to use and, if appropriate, to make public any final or preliminary examination report, any examiner or licensee work papers or other documents, or any other information discovered or developed during the course of any examination in the furtherance of any legal or regulatory action which the commissioner may, in his sole discretion, deem appropriate.
f. (1) Examination reports shall be comprised of only facts appearing upon the books, from the testimony of its officers or agents or other persons examined concerning its affairs, and those conclusions and recommendations which the examiners find reasonably warranted from the facts.
(2) No later than 60 days following completion of the examination, the examiner in charge shall file with the commissioner a verified written report of examination under oath. Upon receipt of the verified report, the commissioner shall transmit the report to the licensee examined, together with a notice that shall afford the licensee examined a reasonable opportunity of not more than 30 days to make a written submission or rebuttal with respect to any matters contained in the examination report and which shall become part of the report or to request a hearing on any matter in dispute.
(3) If the commissioner determines that regulatory action is appropriate as a result of an examination, the commissioner may initiate any proceedings or actions provided by law.
g. (1) Names and individual identification data for all owners, purchasers, and insureds shall be considered private and confidential information and shall not be disclosed by the commissioner, unless the disclosure is to another regulator or is required by law.
(2) Except as otherwise provided in this act, all examination reports, working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this act, or in the course of analysis or investigation by the commissioner of the financial condition or market conduct of a licensee shall be confidential by law and privileged, shall not be subject to any State or federal freedom of information law, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. The commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as part of the commissioner's official duties. The licensee being examined may have access to all documents used to make the report.
h. (1) An examiner may not be appointed by the commissioner if the examiner, either directly or indirectly, has a conflict of interest or is affiliated with the management of or owns a pecuniary interest in any person subject to examination under this act. This section shall not be construed to automatically preclude an examiner from being:
(a) An owner;
(b) An insured in a life settlement contract or insurance policy; or
(c) A beneficiary in an insurance policy that is proposed for a life settlement contract.
(2) Notwithstanding the requirements of this subsection, the commissioner may retain from time to time, on an individual basis, qualified actuaries, certified public accountants, or other similar individuals who are independently practicing their professions, even though these persons may from time to time be similarly employed or retained by persons subject to examination under this act.
i. (1) No cause of action shall arise nor shall any liability be imposed against the commissioner, the commissioner's authorized representatives or any examiner appointed by the commissioner for any statements made or conduct performed in good faith while carrying out the provisions of this act.
(2) No cause of action shall arise, nor shall any liability be imposed against any person for the act of communicating or delivering information or data to the commissioner or the commissioner's authorized representative or examiner pursuant to an examination made under this act, if the act of communication or delivery was performed in good faith and without fraudulent intent or the intent to deceive. This paragraph shall not abrogate or modify in any way any common law or statutory privilege or immunity heretofore enjoyed by any person identified in paragraph (1) of this subsection.
(3) A person identified in paragraph (1) or (2) of this subsection shall be entitled to an award of attorney's fees and costs if that person is the prevailing party in a civil cause of action for libel, slander or any other relevant tort arising out of activities in carrying out the provisions of this act and the party bringing the action was not substantially justified in doing so. For purposes of this paragraph a proceeding is "substantially justified" if it had a reasonable basis in law or fact at the time that it was initiated.
j. The commissioner may investigate suspected fraudulent life settlement acts and persons engaged in the business of life settlements.
8. (New section) a. A broker or provider licensed pursuant to this act may conduct or participate in advertisements within this State. These advertisements shall comply with the provision of chapter 30 of Title 17B of the New Jersey Statutes and all rules and regulations promulgated by the commissioner that are applicable to life insurers or to brokers and providers licensed pursuant to this act.
b. Advertisements shall be accurate, truthful and not misleading in fact or by implication.
c. No person or trust shall:
(1) Directly or indirectly, market, advertise, solicit or otherwise promote the purchase of a policy for the sole purpose of or with an emphasis on settling the policy; or
(2) Use the words "free," "no cost" or words of similar import in the marketing, advertising, soliciting or otherwise promoting of the purchase of a policy.
9. (New section) a. The provider shall provide in writing, in a separate document that is signed by the owner and provider, the following information to the owner no later than the date the life settlement contract is signed by all parties:
(1) The fact that possible alternatives to life settlement contracts exist, including, but not limited to, accelerated benefits offered by the issuer of the life insurance policy;
(2) The fact that some or all of the proceeds of a life settlement contract may be taxable and that assistance should be sought from a professional tax advisor;
(3) The fact that the proceeds from a life settlement contract could be subject to the claims of creditors;
(4) The fact that receipt of proceeds from a life settlement contract may adversely affect the recipients' eligibility for public assistance or other government benefits or entitlements and that advice should be obtained from the appropriate agencies;
(5) The fact that the owner has a right to terminate a life settlement contract within 15 days of the date it is executed by all parties and the owner has received the disclosures contained herein. Rescission, if exercised by the owner, is effective only if both notice of the rescission is given, and the owner repays all proceeds and any premiums, loans, and loan interest paid on account of the provider within the rescission period. If the insured dies during the rescission period, the contract shall be deemed to have been rescinded subject to repayment by the owner or the owner's estate of all proceeds and any premiums, loans, and loan interest to the provider;
(6) The fact that proceeds will be sent to the owner within three business days after the provider has received the insurer or group administrator's acknowledgement that ownership of the policy or interest in the certificate has been transferred and the beneficiary has been designated in accordance with the terms of the life settlement contract;
(7) The fact that entering into a life settlement contract may cause other rights or benefits, including conversion rights and waiver of premium benefits that may exist under the policy or certificate of a group policy, to be forfeited by the owner and that assistance should be sought from a professional financial advisor;
(8) The amount and method of calculating the compensation paid or to be paid to the broker, or any other person acting for the owner in connection with the transaction, wherein the term compensation includes anything of value paid or given;
(9) The date by which the funds will be available to the owner and the transmitter of the funds;
(10) The fact that the commissioner shall require delivery of a buyer's guide or a similar consumer advisory package in the form prescribed by the commissioner to owners during the solicitation process;
(11) The disclosure document shall contain the following language:
"All medical, financial or personal information solicited or obtained by a provider or broker about an insured, including the insured's identity or the identity of family members, a spouse or a significant other may be disclosed as necessary to effect the life settlement contract between the owner and provider. If you are asked to provide this information, you will be asked to consent to the disclosure. The information may be provided to someone who buys the policy or provides funds for the purchase. You may be asked to renew your permission to share information every two years.";
(12) Separate signed fraud warnings by the provider and broker on their respective applications and life settlement contracts as follows:
"Any person who knowingly presents false information in an application for insurance or life settlement contract is guilty of a crime and may be subject to fines and confinement in prison.";
(13) The fact that the insured may be contacted by either the provider or broker or its authorized representative for the purpose of determining the insured's health status or to verify the insured's address. This contact is limited to once every three months if the insured has a life expectancy of more than one year, and no more than once per month if the insured has a life expectancy of one year or less;
(14) The affiliation, if any, between the provider and the issuer of the insurance policy to be settled;
(15) That a broker represents exclusively the owner, and not the insurer or the provider or any other person, and owes a fiduciary duty to the owner, including a duty to act according to the owner's instructions and in the best interest of the owner;
(16) The document shall include the name, address and telephone number of the provider;
(17) The name, business address, and telephone number of the independent third party escrow agent, and the fact that the owner may inspect or receive copies of the relevant escrow or trust agreements or documents;
(18) The fact that a change of ownership could in the future limit the insured's ability to purchase future insurance on the insured's life because there is a limit to how much coverage insurers will issue on one life;
b. The written disclosures shall be conspicuously displayed in any life settlement contract furnished to the owner by a provider, including any affiliations or contractual arrangements between the provider and the broker.
c. A broker shall provide the owner and the provider with at least the following disclosures no later than the date the life settlement contract is signed by all parties. The disclosures shall be conspicuously displayed in the life settlement contract or in a separate document signed by the owner and provide the following information:
(1) The name, business address and telephone number of the broker;
(2) A full, complete and accurate description of all the offers, counter-offers, acceptances and rejections relating to the proposed life settlement contract;
(3) A written disclosure of any affiliations or contractual arrangements between the broker and any person making an offer in connection with the proposed life settlement contracts;
(4) The name of each broker who receives compensation and the amount of compensation received by that broker, which compensation includes anything of value paid or given to the broker in connection with the life settlement contract;
(5) A complete reconciliation of the gross offer or bid by the provider to the net amount of proceeds or value to be received by the owner. For the purpose of this paragraph, "gross offer or bid" means the total amount or value offered by the provider for the purchase of one or more life insurance policies, including commissions and fees; and
d. The failure to provide the disclosures or rights described in this section shall be an unfair trade practice pursuant to section 17 of this act.
10. (New section) Without limiting the ability of an insurer to assess the insurability of a policy applicant and determine whether to issue the policy, and in addition to other questions an insurance carrier may lawfully pose to a life insurance applicant, insurance carriers may inquire in the application for insurance whether the proposed owner intends to pay premiums with the assistance of financing from a lender that will use the policy as collateral to support the financing.
a. If the loan provides funds which can be used for a purpose other than paying for the premiums, costs, and expenses associated with obtaining and maintaining the life insurance policy and loan, the application shall be rejected as a violation of section 13 of this act.
b. If the financing does not violate subsection a. of this section in this manner, the insurance carrier may make disclosures, including but not limited to the following, to the applicant and the insured, either on the application or an amendment to the application to be completed no later than the date of delivery of the policy:
"If you have entered into a loan arrangement where the policy is used as collateral, and the policy does change ownership at some point in the future in satisfaction of the loan, the following may be true:
(1) A change of ownership could lead to a stranger owning an interest in the insured's life;
(2) A change of ownership could in the future limit your ability to purchase future insurance on the insured's life because there is a limit to how much coverage insurers will issue on one life;
(3) Should there be a change of ownership and you wish to obtain more insurance coverage on the insured's life in the future, the insured's higher issue age, a change in health status, or other factors may reduce the ability to obtain coverage or may result in significantly higher premiums;
(4) You should consult a professional advisor, since a change in ownership in satisfaction of the loan may result in tax consequences to the owner, depending on the structure of the loan."; and
c. In addition to the disclosures in subsection b. of this section, the insurance carrier may require the following certifications, from the applicant or the insured:
"(1) I have not entered into any agreement or arrangement providing for the future sale of this life insurance policy;
(2) My loan arrangement for this policy provides funds sufficient to pay for some or all of the premiums, costs, and expenses associated with obtaining and maintaining my life insurance policy, but I have not entered into any agreement by which I am to receive consideration in exchange for procuring this policy; and
(3) The borrower has an insurable interest in the insured."
11. (New section) a. A provider entering into a life settlement contract with any owner of a policy, wherein the insured is terminally or chronically ill, shall first obtain:
(1) If the owner is the insured, a written statement from a licensed attending physician that the owner is of sound mind and under no constraint or undue influence to enter into a life settlement contract; and
(2) A document in which the insured consents to the release of his medical records to a provider, broker, or insurance producer and, if the policy was issued less than two years from the date of application for a life settlement contract, to the insurance company that issued the policy.
b. The insurer shall respond to a request for verification of coverage submitted by a provider, broker, or life insurance producer not later than 30 calendar days after the date the request is received. The request for verification of coverage shall be made on a form approved by the commissioner. The insurer shall complete and issue the verification of coverage or indicate in which respects it is unable to respond. In its response, the insurer shall indicate whether, based on the medical evidence and documents provided, the insurer intends to pursue an investigation at that time regarding the validity of the insurance contract.
c. Before or at the time of execution of the life settlement contract, the provider shall obtain a witnessed document in which the owner consents to the settlement contract, represents that the owner has a full and complete understanding of the settlement contract, that the owner has a full and complete understanding of the benefits of the policy, acknowledges that the owner is entering into the settlement contract freely and voluntarily, and, for persons with a terminal or chronic illness or condition, acknowledges that the insured has a terminal or chronic illness and that the terminal or chronic illness or condition was diagnosed after the policy was issued.
d. The insurer shall not unreasonably delay effecting change of ownership or beneficiary with any life settlement contract lawfully entered into in this State or with a resident of this State.
e. If a settlement broker or life insurance producer performs any of these activities required of the provider, the provider is deemed to have fulfilled the requirements of this section.
f. If a broker performs those verification of coverage activities required of the provider, the provider is deemed to have fulfilled the requirements of subsection a. of section 9 of this act.
g. Within 20 days after an owner executes the life settlement contract, the provider shall give written notice to the insurer that issued that insurance policy that the policy has become subject to a life settlement contract. The notice shall be accompanied by the documents required by subsection b. of section 10 of this act.
h. All medical information solicited or obtained by any licensee shall be subject to the applicable provision of State law relating to confidentiality of medical information, if not otherwise provided in this act.
i. All life settlement contracts entered into in this State shall provide that the owner may rescind the contract on or before the 15th day after the date it is executed by all parties to the contract. Rescission, if exercised by the owner, is effective only if both notice of the rescission is given, and the owner repays all proceeds and any premiums, loans, and loan interest paid on account of the provider within the rescission period. If the insured dies during the rescission period, the contract shall be deemed to have been rescinded subject to repayment by the owner or the owner's estate of all proceeds and any premiums, loans, and loan interest to the provider.
j. Within three business days after receipt from the owner of documents to effect the transfer of the insurance policy, the provider shall pay the proceeds of the settlement to an escrow or trust account managed by a trustee or escrow agent in a state or federally chartered financial institution pending acknowledgement of the transfer by the issuer of the policy. The trustee or escrow agent shall be required to transfer the proceeds due to the owner within three business days of acknowledgement of the transfer from the insurer.
k. Failure to tender the life settlement contract proceeds to the owner by the date disclosed to the owner renders the contract voidable by the owner for lack of consideration until the time the proceeds are tendered to and accepted by the owner. A failure to give written notice of the right of rescission hereunder shall toll the right of rescission until 30 days after the written notice of the right of rescission has been given.
l. Any fee paid by a provider, party, individual, or an owner to a broker in exchange for services provided to the owner pertaining to a life settlement contract shall be computed as a percentage of the offer obtained, not the face value of the policy. Nothing in this section shall be construed as prohibiting a broker from reducing that broker's fee below this percentage if the broker so chooses.
m. The broker shall disclose to the owner anything of value paid or given to a broker, which relate to a life settlement contract.
n. No person, at any time prior to, or at the time of, the application for, or issuance of, a policy, or during a two-year period commencing with the date of issuance of the policy, shall enter into a life settlement contract regardless of the date the compensation is to be provided and regardless of the date the assignment, transfer, sale, devise, bequest or surrender of the policy is to occur. This prohibition shall not apply if the owner certifies to the provider that:
(1) The policy was issued upon the owner's exercise of conversion rights arising out of a group or individual policy, if the total of the time covered under the conversion policy plus the time covered under the prior policy is at least 24 months. The time covered under a group policy shall be calculated without regard to a change in insurance carriers, so long as the coverage has been continuous and under the same group sponsorship; or
(2) The owner submits independent evidence to the provider that one or more of the following conditions have been met within the two-year period:
(a) The owner or insured is terminally or chronically ill;
(b) The owner or insured disposes of his ownership interests in a closely held corporation, pursuant to the terms of a buyout or other similar agreement in effect at the time the insurance policy was initially issued;
(c) The owner's spouse dies;
(d) The owner divorces his or her spouse;
(e) The owner retires from full-time employment;
(f) The owner becomes physically or mentally disabled and a physician determines that the disability prevents the owner from maintaining full-time employment; or
(g) A final order, judgment or decree is entered by a court of competent jurisdiction, on the application of a creditor of the owner, adjudicating the owner bankrupt or insolvent, or approving a petition seeking reorganization of the owner or appointing a receiver, trustee or liquidator to all or a substantial part of the owner's assets;
(3) Copies of the independent evidence required by paragraph (2) of this subsection shall be submitted to the insurer when the provider submits a request to the insurer for verification of coverage. The copies shall be accompanied by a letter of attestation from the provider that the copies are true and correct copies of the documents received by the provider. Nothing in this section shall prohibit an insurer from exercising its right to contest the validity of any policy;
(4) If the provider submits to the insurer a copy of independent evidence provided for in item subparagraph (a) of paragraph (2) of this subsection, when the provider submits a request to the insurer to effect the transfer of the policy to the provider, the copy is deemed to establish that the settlement contract satisfies the requirements of this section.
12. (New section) a. If there is more than one owner on a single policy, and the owners are residents of different states, the life settlement contract shall be governed by the law of the state in which the owner having the largest percentage ownership resides or, if the owners hold equal ownership, the state of residence of one owner agreed upon in writing by all of the owners. The law of the state of the insured shall govern in the event that equal owners fail to agree in writing upon a state of residence for jurisdictional purposes.
b. A provider from this State who enters into a life settlement contract with an owner who is a resident of another state that has enacted statutes or adopted regulations governing a life settlement contract shall be governed in the effectuation of that life settlement contract by the statutes and regulations of the owner's state of residence. If the state in which the owner is a resident has not enacted statutes or regulations governing life settlement contracts, the provider shall give the owner notice that neither state regulates the transaction upon which he or she is entering. For transactions in those states, however, the provider shall maintain all records required if the transactions were executed in the state of residence. The forms used in those states need not be approved by the department.
c. If there is a conflict in the laws that apply to an owner and a purchaser in any individual transaction, the laws of the state that apply to the owner shall take precedence and the provider shall comply with those laws.
13. (New section) It shall be a fraudulent life settlement act for any person to:
a. Commit a fraudulent life settlement act as defined in section 2 of this act;
b. Enter into a life settlement contract if that person knows or reasonably should have known that the life insurance policy was obtained by means of a false, deceptive or misleading application for such policy;
c. Engage in any transaction, practice or course of business if that person knows or reasonably should have known that the intent was to avoid the notice requirements of this section;
d. Engage in any fraudulent act or practice in connection with any transaction relating to any settlement involving an owner who is a resident of this State;
e. Issue, solicit, market or otherwise promote the purchase of an insurance policy for the purpose of or with an emphasis on settling the policy;
f. Enter into a premium finance agreement with any person or agency, or any person affiliated with that person or agency, pursuant to which that person shall receive any proceeds, fees or other consideration, directly or indirectly, from the policy or owner of the policy or any other person with respect to the premium finance agreement or any settlement contract or other transaction related to that policy that are in addition to the amounts required to pay the principal, interest and service charges related to policy premiums pursuant to the premium finance agreement or subsequent sale of that agreement; provided, further, that any payments, charges, fees or other amounts in addition to the amounts required to pay the principal, interest and service charges related to policy premiums paid under the premium finance agreement shall be remitted to the original owner of the policy or to the estate of the owner if he or she is not living at the time of the determination of the overpayment;
g. With respect to any settlement contract or insurance policy and a broker, knowingly solicit an offer from, effectuate a life settlement contract with, or make a sale to, any provider, financing entity or related provider trust that is controlling, controlled by, or under common control with that broker;
h. With respect to any life settlement contract or insurance policy and a provider, knowingly enter into a life settlement contract with an owner, if, in connection with that life settlement contract, anything of value will be paid to a broker that is controlling, controlled by, or under common control with, that provider or the financing entity or related provider trust that is involved in that settlement contract;
i. With respect to a provider, enter into a life settlement contract unless the life settlement promotional, advertising and marketing materials, as may be prescribed by regulation, have been filed with the commissioner. In no event shall any marketing materials expressly reference that the insurance is "free" for any period of time. The inclusion of any reference in the marketing materials that would cause an owner to reasonably believe that the insurance is free for any period of time shall be considered a violation of this act; or
j. With respect to any life insurance producer, insurance company, broker, or provider make any statement or representation to the applicant or policyholder in connection with the sale or financing of a life insurance policy to the effect that the insurance is free or without cost to the policyholder for any period of time unless provided in the policy.
14. (New section) a. A person shall not commit a fraudulent life settlement act.
b. A person shall not knowingly and intentionally interfere with the enforcement of the provisions of this act or investigations of suspected or actual violations of this act.
c. A person in the business of life settlements shall not knowingly or intentionally permit any person convicted of a crime involving dishonesty or breach of trust to participate in the business of life settlements.
d. (1) Life settlement contracts and applications for life settlement contracts, regardless of the form of transmission, shall contain the following statement or a substantially similar statement:
"Any person who knowingly presents false information in an application for insurance or life settlement contract is guilty of a crime and may be subject to fines and confinement in prison."
(2) The absence of a statement as required in paragraph (1) of this subsection does not constitute a defense in any prosecution for a fraudulent life settlement act.
e. (1) Any person engaged in the business of life settlements having knowledge or a reasonable belief that a fraudulent life settlement act is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
(2) Any other person having knowledge or a reasonable belief that a fraudulent life settlement act is being, will be or has been committed may provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
f. (1) No civil liability shall be imposed on and no cause of action shall arise from a person's furnishing information concerning suspected, anticipated or completed fraudulent life settlement acts or suspected or completed fraudulent insurance acts, if the information is provided to or received from:
(a) The commissioner or the commissioner's employees, agents or representatives;
(b) Federal, state or local law enforcement or regulatory officials or their employees, agents or representatives;
(c) A person involved in the prevention and detection of fraudulent life settlement acts or that person's agents, employees or representatives;
(d) Any regulatory body or their employees, agents or representatives, overseeing life insurance, life settlements, securities or investment fraud;
(e) The life insurer that issued the life insurance policy covering the life of the insured; or
(f) The licensee and any agents, employees or representatives.
(2) Paragraph (1) of this subsection shall not apply to statements made with actual malice. In an action brought against a person for filing a report or furnishing other information concerning a fraudulent life settlement act or a fraudulent insurance act, the party bringing the action shall plead specifically any allegation that paragraph (1) of the subsection does not apply because the person filing the report or furnishing the information did so with actual malice.
(3) A person identified in paragraph (1) of this subsection shall be entitled to an award of attorney's fees and costs if he or she is the prevailing party in a civil cause of action for libel, slander or any other relevant tort arising out of activities in carrying out the provisions of this act and the party bringing the action was not substantially justified in doing so. For purposes of this paragraph a proceeding is "substantially justified" if it had a reasonable basis in law or fact at the time that it was initiated.
(4) This subsection shall not abrogate or modify common law or statutory privileges or immunities enjoyed by a person described in paragraph (1) of this subsection.
g. (1) The documents and evidence provided pursuant to subsection e. of this section or obtained by the commissioner in an investigation of suspected or actual fraudulent life settlement acts shall be privileged and confidential and shall not be a public record and shall not be subject to discovery or subpoena in a civil or criminal action.
(2) Paragraph (1) of this subsection does not prohibit release by the commissioner of documents and evidence obtained in an investigation of suspected or actual fraudulent life settlement acts:
(a) In administrative or judicial proceedings to enforce laws administered by the commissioner;
(b) To federal, State or local law enforcement or regulatory agencies, to an organization established for the purpose of detecting and preventing fraudulent life settlement acts or to the National Association of Insurance Commissioners; or
(c) At the discretion of the commissioner, to a person in the business of life settlements that is aggrieved by a fraudulent life settlement act.
(3) Release of documents and evidence under paragraph (2) of this subsection does not abrogate or modify the privilege granted in paragraph (1) of this subsection.
h. Nothing in this act shall:
(1) Preempt the authority or relieve the duty of other law enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
(2) Preempt, supersede, or limit any provision of any State securities law or any rule, order, or notice issued thereunder;
(3) Prevent or prohibit a person from disclosing voluntarily information concerning life settlement fraud to a law enforcement or regulatory agency other than the department; or
(4) Limit the powers granted elsewhere by the laws of this State to the commissioner or an insurance fraud unit to investigate and examine possible violations of law and to take appropriate action against wrongdoers.
i. Providers and brokers shall have in place antifraud initiatives reasonably calculated to detect, prosecute and prevent fraudulent life settlement acts. At the discretion of the commissioner, the commissioner may order, or a licensee may request and the commissioner may grant, such modifications of the following required initiatives as necessary to ensure an effective antifraud program. The modifications may be more or less restrictive than the required initiatives so long as the modifications may reasonably be expected to accomplish the purpose of this section. Antifraud initiatives shall include:
(1) Fraud investigators, who may be provider or broker employees or independent contractors; and
(2) An antifraud plan, which shall be submitted to the commissioner. The antifraud plan shall include, but not be limited to:
(a) A description of the procedures for detecting and investigating possible fraudulent life settlement acts and procedures for resolving material inconsistencies between medical records and insurance applications;
(b) A description of the procedures for reporting possible fraudulent life settlement acts to the commissioner;
(c) A description of the plan for antifraud education and training of underwriters and other personnel; and
(d) A description or chart outlining the organizational arrangement of the antifraud personnel who are responsible for the investigation and reporting of possible fraudulent life settlement acts and investigating unresolved material inconsistencies between medical records and insurance applications.
(3) Antifraud plans submitted to the commissioner shall be privileged and confidential and shall not be a public record and shall not be subject to discovery or subpoena in a civil or criminal action.
15. (New section) a. In addition to the penalties and other enforcement provisions of this act, if any person violates this act or any rule or regulation implementing this act, the commissioner may seek an injunction in a court of competent jurisdiction in the county in which the person resides or has a principal place of business and may apply for temporary and permanent orders that the commissioner determines are necessary to restrain the person from further committing the violation.
b. Any person damaged by the acts of another person in violation of this act, or any rule or regulation implementing this act, may bring a civil action for damages against the person committing the violation in a court of competent jurisdiction. In the event of a willful violation of this act, the trial court may award statutory damages in an amount up to three times the actual damage award, in addition to actual damages.
c. The commissioner may issue a cease and desist order upon a person who violates any provision of this act, any rule or order adopted by the commissioner, or any written agreement entered into with the commissioner, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
d. When the commissioner finds that such an action presents an immediate danger to the public and requires an immediate final order, he may issue an emergency cease and desist order reciting with particularity the facts underlying those findings. The emergency cease and desist order shall be effective immediately upon service of a copy of the order on the respondent and shall remain in effect for 90 days. If the department begins non-emergency cease and desist proceedings under subsection a. of this section, the emergency cease and desist order shall remain in effect, absent an order by a court of competent jurisdiction pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
16. (New section) a. It shall be a violation of this act for any person, provider, broker, or any other party related to the business of life settlements, to commit a fraudulent life settlement act.
b. For criminal liability purposes, a person that commits a fraudulent life settlement act is guilty of committing insurance fraud and shall be subject to additional penalties under sections 72 through 74 of P.L.2003, c.89 (C.2C:21-4.5 through 2C:21-4.7).
c. The commissioner shall be empowered to levy a civil penalty not exceeding $10,000 and the amount of the claim for each violation upon any person, including those persons and their employees licensed pursuant to this act, who is found to have committed a fraudulent life settlement act or violated any other provision of this act. This penalty may be collected in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
d. The license of a person licensed under this act that commits a fraudulent life settlement act shall be revoked for a period of at least one year.
17. (New section) A violation of this act shall be considered an unfair trade practice pursuant to N.J.S.17B:30-1 et seq. and shall be subject to the penalties contained in N.J.S.17B:30-17.
18. (New section) The provisions of this act may not be waived by agreement. No choice of law provision in a life settlement contract may be utilized to prevent the application of this act to any settlement in which a party to the settlement is a resident of this State.
19. (New section) a. A provider lawfully transacting business in this State prior to the effective date of this act may continue to do so pending approval or disapproval of that person's application for a license as long as the application is filed with the commissioner not later than 30 days after publication by the commissioner of an application form and instructions for licensure of providers pursuant to this act. If the publication of the application form and instructions is prior to the effective date of this act, then the filing of the application shall not be later than 30 days after the effective date of this act. During the time that an application is pending with the commissioner, the applicant may use any form of life settlement contract that has been filed with the commissioner pending approval thereof, so long as that form is otherwise in compliance with the provisions of this act. Any person transacting business in this State under this subsection shall be obligated to comply with all other requirements of this act.
b. A person who has lawfully negotiated life settlement contracts between any owner residing in this State and one or more providers for at least one year immediately prior to the effective date of this act may continue to do so pending approval or disapproval of that person's application for a license as long as the application is filed with the commissioner not later than 30 days after publication by the commissioner of an application form and instructions for licensure of brokers. If the publication of the application form and instructions is prior to the effective date of this act, then the filing of the application shall not be later than 30 days after the effective date of this act. Any person transacting business in this State under this subsection shall be obligated to comply with all other requirements of this act.
c. A viatical settlement provider licensed and operating pursuant to the "Viatical Settlements Act," P.L.2005, c.229 (C.17B:30B-1 et seq.) immediately prior to the effective date of this act may continue to do so pending approval or disapproval of an application for a license pursuant to this act.
20. (New section) The commissioner shall promulgate regulation implementation of the provisions of this act pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
21. Section 2 of P.L.1967, c.93 (C.49:3-49) is amended to read as follows:
2. When used in this act, unless the context requires otherwise:
(a) "Bureau" means the agency designated in subsection (a) of section 19 of P.L.1967, c.93 (C.49:3-66);
(b) "Agent" means any individual other than a broker-dealer, who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities. "Agent" does not include an individual who represents an issuer in (1) effecting transactions in a security exempted by paragraph (1), (2), (3), or (11) of subsection (a) of section 3 of P.L.1967, c.93 (C.49:3-50); (2) effecting transactions exempted by subsection (b) of section 3 of P.L.1967, c.93 (C.49:3-50); (3) effecting transactions with existing employees, partners, or directors of the issuer, if no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this State; or (4) a broker-dealer in effecting transactions in this State limited to those transactions described in paragraph (2) of subsection (h) of section 15 of the "Securities Exchange Act of 1934," 15 U.S.C. s.78o(h)(2); or (5) such other persons not otherwise within the intent of this subsection (b), as the bureau chief may by rule or order designate. A partner, officer, or director of a broker-dealer or issuer, or a person occupying a similar status or performing similar functions, is an agent only if he otherwise comes within this definition. The bureau chief may by rule or order, as to any transaction, waive the requirement of agent registration. The bureau chief may by rule define classes of persons as "agents," if those persons are regulated as "agents" by the Securities and Exchange Commission or any self-regulatory organization established pursuant to the laws of the United States;
(c) "Broker-dealer" means any person engaged in the business of effecting or attempting to effect transactions in securities for the accounts of others or for his own account. "Broker-dealer" does not include (1) an agent, (2) an issuer, (3) a person who effects transactions in this State exclusively in securities described in paragraphs (1) and (2) of subsection (a) of section 3 of P.L.1967, c.93 (C.49:3-50), (4) a bank, savings institution, or trust company, or (5) a person who effects transactions in this State exclusively with or through (i) the issuers of the securities involved in the transactions, (ii) other broker-dealers, (iii) banks, savings institutions, trust companies, insurance companies, investment companies as defined in the "Investment Company Act of 1940," pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees or (iv) such other persons not otherwise within the intent of this subsection (c), as the bureau chief may by rule or order designate;
(d) "Capital" shall mean net capital, as defined and adjusted under the formula established by the Securities and Exchange Commission in Rule 15c3-1, 17 C.F.R. s.240.15c3-1, made pursuant to the "Securities Exchange Act of 1934," prescribing a minimum permissible ratio of aggregate indebtedness to net capital as such formula presently exists or as it may hereafter be amended;
(e) "Fraud," "deceit," and "defraud" are not limited to common-law fraud or deceit. "Fraud," "deceit" and "defraud" in addition to the usual construction placed on these terms and accepted in courts of law and equity, shall include the following, provided, however, that any promise, representation, misrepresentation or omission be made with knowledge and with intent to deceive or with reckless disregard for the truth and results in a detriment to the purchaser or client of an investment adviser:
(1) Any misrepresentation by word, conduct or in any manner of any material fact, either present or past, and any omission to disclose any such fact;
(2) Any promise or representation as to the future which is beyond reasonable expectation or is unwarranted by existing circumstances;
(3) The gaining of, or attempt to gain, directly or indirectly, through a trade in any security, a commission, fee or gross profit so large and exorbitant as to be unconscionable, unreasonable or in violation of any law, regulation, rule, order or decision of the Securities and Exchange Commission, or the bureau chief; or to the extent that such law, regulation, rule or order directly applies to the person involved, the gaining of, or attempt to gain, directly or indirectly, through a trade in any security, a commission, fee or gross profit so large and exorbitant as to be in violation of any law, regulation, rule, order or decision of any other state or Canadian securities administrator, or any self-regulatory organization established pursuant to the laws of the United States;
(4) Generally any course of conduct or business which is calculated or put forward with intent to deceive the public or the purchaser of any security or investment advisory services as to the nature of any transaction or the value of such security;
(5) Any artifice, agreement, device or scheme to obtain money, profit or property by any of the means herein set forth or otherwise prohibited by this act;
(f) "Guaranteed" means guaranteed as to payment of principal, interest or dividends;
(g) (1) "Investment adviser" means:
(i) any person who, for direct or indirect compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, selling or holding securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities; and
(ii) any financial planner and other person who provides investment advisory services to others for compensation and as part of a business or who holds himself out as providing investment advisory services to others for compensation.
(2) "Investment adviser " does not include:
(i) a bank, savings institution, or trust company;
(ii) a lawyer, accountant, engineer, or teacher whose performance of these services is solely incidental to the practice or conduct of the profession and who does not hold himself out as providing investment advisory or financial planning services, and who receives no special compensation for those investment advisory or financial planning services;
(iii) a broker-dealer registered under this act;
(iv) a publisher of any bona fide newspaper, news magazine, or business or financial publication of general, regular, and paid circulation;
(v) a person whose advice, analyses, or reports relate only to securities exempted by paragraphs (1) and (2) of subsection (a) of section 3 of P.L.1967, c.93 (C.49:3-50);
(vi) a person whose only clients in this State are other investment advisers, any person that is registered as an "investment adviser" under section 203 of the "Investment Advisers Act of 1940," 15 U.S.C. s.80b-3, or excluded from the definition of an "investment adviser" under paragraph (11) of subsection (a) of section 202 of the "Investment Advisers Act of 1940," 15 U.S.C. s.80b-2(a)(11), broker-dealers, banks, bank holding companies, savings institutions, trust companies, insurance companies, investment companies as defined in the "Investment Company Act of 1940," pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees;
(vii) any person that is registered as an "investment adviser" under section 203 of the "Investment Advisers Act of 1940," 15 U.S.C. s.80b-3, or excluded from the definition of an "investment adviser" under paragraph (11) of subsection (a) of section 202 of the "Investment Advisers Act of 1940," 15 U.S.C. s.80b-2(a)(11);
(viii) an investment adviser representative; or
(ix) such other persons not otherwise within the intent of this subsection (g) as the bureau chief may by rule or order designate.
Subject to applicable federal law, the bureau chief may by rule limit the exclusions set out in this paragraph (2), except for those exclusions provided in subparagraph (i) of paragraph (2).
For purposes of this act, "investment advisory services" means those services rendered by an "investment adviser" as defined in this subsection;
(h) "Issuer" means any person who issues or proposes to issue any security, except that (1) with respect to certificates of deposit, voting-trust certificates, or collateral-trust certificates, or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors (or persons performing similar functions) or of the fixed, restricted management, or unit type, the term "issuer" means the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust or other agreement or instrument under which the security is issued; and (2) with respect to certificates of interest in oil, gas, or mining titles or leases, there is not considered to be any "issuer";
(i) "Person" means an individual, a corporation, a partnership, an association, a joint-stock company, a trust where the interests of the beneficiaries are evidenced by a security, an unincorporated organization, a government, or a political subdivision of a government;
(j) (1) "Sale" or "sell" includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security or investment advisory services for value;
(2) "Offer" or "offer to sell" includes every attempt or offer to dispose of, or solicitation of any offer to buy, a security or interest in a security or investment advisory services for value;
(3) Any security given or delivered with, or as a bonus on account of, any purchase of securities or any other thing is considered to constitute part of the subject of the purchase and to have been offered and sold for value;
(4) A purported gift of assessable stock is considered to involve an offer and sale;
(5) Every sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer, as well as every sale or offer of a security which gives the holder a present or future right or privilege to convert into another security of the same or another issuer, is considered to include an offer of the other security;
(6) The terms defined in this subsection (j) do not include (i) any bona fide pledge or loan; (ii) any stock dividend, whether the corporation distributing the dividend is the issuer of the stock or not, if nothing of value is given by stockholders for the dividend other than the surrender of a right to a cash or property dividend when each stockholder may elect to take the dividend in cash or property or in stock; (iii) any act incident to a class vote by stockholders, pursuant to the certificate of incorporation or the applicable corporation statute, on a merger, consolidation, reclassification of securities, or sale of corporate assets in consideration of the issuance of securities of another corporation; or (iv) any act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims, or property interests, or partly in such exchange and partly for cash;
(k) "Savings institutions" shall mean any savings and loan association or building and loan association operating pursuant to the "Savings and Loan Act (1963)," P.L.1963, c.144 (C.17:12B-2 et seq.), and any federal savings and loan association and any association or credit union organized under the laws of the United States or of any state whose accounts are insured by a federal corporation or agency;
(l) "Securities Act of 1933," 15 U.S.C. s.77a et seq.; "Securities Exchange Act of 1934," 15 U.S.C. s.78a et seq.; "Public Utility Holding Company Act of [1935] 2005," [15 U.S.C. s.79 et seq.] 42 U.S.C. 16451 et seq.; "Investment Advisers Act of 1940," 15 U.S.C. s.80b-1 et seq.; "Investment Company Act of 1940," 15 U.S.C. s.80a-1 et seq.; and "Commodity Exchange Act," 7 U.S.C. s.1 et seq. mean the federal statutes of those names;
(m) "Security" means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement, including, but not limited to, certificates of interest or participation in real or personal property; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest in an oil, gas or mining title or lease; a viatical investment; 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, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. "Security" does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed or variable number of dollars either in a lump sum or periodically for life or some other specified period;
(n) "State" means any state, territory, or possession of the United States, as well as the District of Columbia and Puerto Rico;
(o) "Nonissuer" means secondary trading not involving the issuer of the securities or any person in a control relationship with the issuer;
(p) "Accredited investor" means any person who is an "accredited investor" as defined by paragraph (15) of subsection [(15)] (a) of section 2 of the "Securities Act of 1933," 15 U.S.C. s.77b(a)(15), and 17 C.F.R. s.230.215 and s.230.501 or any successor rule promulgated pursuant to that act.
The bureau chief may rule, or order, waive or modify the conditions in this subsection (p) and shall interpret and apply this subsection (p) so as to effectuate greater uniformity and coordination in federal-state securities registration exemptions;
(q) "Direct participation security" means a security which provides for flow-through tax consequences (tax shelter), regardless of the structure of the legal entity or vehicle for distribution, including, but not limited to, a security representing an interest in gas, oil, real estate, agricultural property, cattle, a condominium, a Subchapter S corporation, a limited liability company and all other securities of a similar nature, regardless of the industry represented by the security, or any combination thereof. Excluded from this definition are real estate investment trusts, tax qualified pension and profit-sharing plans pursuant to sections 401 and 403(a) of the Internal Revenue Code of 1986, 26 U.S.C. ss.401 and 403(a), and individual retirement plans under section 408 of the Internal Revenue Code of 1986, 26 U.S.C. s.408, tax sheltered annuities pursuant to the provisions of section 403(b) of the Internal Revenue Code of 1986, 26 U.S.C. s.403(b), and any company including separate accounts registered pursuant to the "Investment Company Act of 1940;"
(r) "Blind pool"means an offering of securities in which, as to 65% or more of the proceeds of the offering, the prospectus discloses no specific purpose to which the proceeds of the offering will be put, or the prospectus discloses no specific assets to be purchased, projects to be undertaken, or business to be conducted, except for:
(1) an offering of securities to provide working capital for an operating company (as opposed to a development stage company);
(2) an offering of securities by an investment company registered under the "Investment Company Act of 1940," including a business development company; or
(3) an offering of securities by a small business investment company licensed by the Small Business Administration or a business development company within the meaning of the "Investment Advisers Act of 1940;"
(s) "Investment adviser representative" means any person, including, but not limited to, a partner, officer, or director, or a person occupying a similar status or performing similar functions, or other individual, except clerical or ministerial personnel, who is employed by or associated with an investment adviser registered under this act, or who has a place of business located in this State and is employed by or associated with a person registered or required to be registered as an investment adviser under section 203 of the "Investment Advisers Act of 1940," 15 U.S.C. s.80b-3; and who does any of the following:
(1) makes any recommendations or otherwise renders advice regarding securities if the person has direct advisory client contact;
(2) manages accounts or portfolios of clients;
(3) determines recommendations or advice regarding securities;
(4) solicits, offers or negotiates for the sale of or sells investment advisory services; or
(5) directly supervises any investment adviser representative or the supervisors of those investment adviser representatives. "Investment adviser representative" does not include a broker-dealer or an agent;
(t) "Institutional buyer" includes, but is not limited to, a "qualified institutional buyer" as defined in SEC Rule 144A, 17 C.F.R. s.230.144A;
(u) "Willful" or "willfully" means a person who acts intentionally in the sense that the person is aware of what he is doing;
(v) "Federal covered security" means any security described as a covered security in subsection (b) of section 18 of the "Securities Act of 1933," 15 U.S.C. s.77r(b);
(w) "Viatical investment" means the contractual right to receive any portion of the death benefit or ownership of a life insurance policy or certificate, for consideration that is less than the expected death benefit of the life insurance policy or certificate. Viatical investment does not include:
(1) (i) any transaction between a viator and a viatical settlement provider as defined by the "Viatical Settlements Act", P.L.2005, c.229 (C.17B:30B-1 et al.); or
(ii) any transaction between an owner and a provider as defined by the "Life Settlements Act," P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) (i) any transfer of ownership or beneficial interest in a life insurance policy from a viatical settlement provider to another viatical settlement provider as defined in the "Viatical Settlements Act", P.L.2005, c.229 (C.17B:30B-1 et al.) or to any legal entity formed solely for the purpose of holding ownership or beneficial interest in a life insurance policy or policies; or
(ii) any transfer of ownership or beneficial interest in a life insurance policy from one provider to another provider as defined in the "Life Settlements Act," P.L. , c. (C. ) (pending before the Legislature as this bill) or to any legal entity formed soley for the purpose of holding ownership or beneficial interest in a life insurance policy or policies;
(3) the bona fide assignment of a life insurance policy to a bank, savings bank, savings and loan association, credit union, or other licensed lending institution as collateral for a loan;
(4) the exercise of accelerated benefits pursuant to the terms of a life insurance policy issued in accordance with the provisions of Title 17B of the New Jersey Statutes; or
(5) a loan by a life insurance company pursuant to the terms of the life insurance contract.
(cf: P.L.2005, c.229, s.18)
22. Sections 1 through 17 of P.L.2005, c.229 (C.17B:30B-1 et al.) are repealed.
23. This act shall take effect on the 90th day next following enactment.
STATEMENT
This bill, the "Life Settlements Act," regulates the business of life settlements in this State, and as part of that regulation, prohibits stranger-originated life insurance or "STOLI."
A life settlement is a written agreement for the sale or transfer of an existing life insurance policy, while the insured or owner is still alive, for an amount less than the expected death benefit of the policy, but for more than the cash surrender value, or any accelerated death benefit available at that time. Stranger-originated life insurance, or STOLI, is a practice in which a life insurance policy is purchased for the benefit of a third party investor who, at the time of policy origination, has no insurable interest in the life of the insured. Insurable interest, under long standing insurance law, generally requires that a person applying for a life insurance policy have an interest in the continued life of the insured, usually because the insured is a blood relative or because an economic relationship exists between the parties. Thus, STOLI transactions offend traditional concepts of life insurance, and may in fact involve fraud perpetrated against the insured, often a senior citizen, and the life insurer.
Life settlements have also sometimes been referred to as "viatical settlements." The bill also repeals the existing "Viatical Settlements Act," P.L.2005, c.229 (C.17B:30B-1 et seq.) and replaces it with this new statutory scheme.
The bill defines a "life settlement contract" as a written agreement between a provider and an owner of a life insurance policy, establishing the terms of compensation. "Stranger-originated life insurance" or "STOLI" is defined as an act or practice to initiate the issuance of a life insurance policy for the benefit of a third party investor who has no insurable interest in the life of the insured at the time of policy origination.
The bill establishes licensing requirements for life settlement brokers and providers. A broker negotiates life settlement contracts between owners or insureds, and providers. A provider is the person who is "buying" the policy and who enters into the life settlement contract with the owner.
Life insurance producers licensed with a life insurance line of authority in this State are considered to meet the licensing qualifications under the bill to operate as a broker. Brokers, other than life insurance producers, must complete 15 hours of training relating to life settlements on a biennial basis. A viatical settlement provider licensed and operating pursuant to the "Viatical Settlements Act" immediately prior to the effective date of this bill may continue to do so pending approval or disapproval of an application for a license pursuant to this bill.
Life settlement contract forms to be used in the State must be filed with and approved by the Commissioner of Banking and Insurance, in a manner consistent with that used for life insurance forms.
The bill requires life settlement providers to file an annual statement with the commissioner which includes the total number, aggregate face amount, and life settlement proceeds of policies settled during the preceding calendar year, for all polices settled within five years of policy issuance in which the insured is a resident of this State. These reporting requirements are intended to enable regulators to identify and stop STOLI transactions.
The commissioner is authorized to investigate the business of any licensee or licensee applicant, and may issue subpoenas, administer oaths and examine persons under oath as to any matter pertinent to an examination.
Brokers and producers may advertise, so long as these advertisements are accurate, truthful and not misleading. The marketing of a life insurance policy for the sole purpose of settling the policy is prohibited, as is the use of words such as "free" or "no cost" in the marketing of life insurance policies.
The bill requires certain disclosures concerning life settlement contracts no later than the date the contract is signed. These include disclosures by the provider to the owner/insured as to the availability of any alternatives to a life settlement allowing for access to a cash payout from the policy, possible tax ramifications, and other consequences of entering into a life settlement. Brokers are required to provide owners and providers with disclosures concerning all offers, acceptances and rejections relating to the proposed life settlement, any affiliation or contractual arrangement between the broker and any and all providers, and a reconciliation of the transaction, including commissions and fees. The bill also allows insurers to inquire in an application for life insurance as to whether the proposed owner intends to pay premiums with the assistance of financing from a lender that will use the policy as collateral to support the financing of the policy. In this way, the proposed owner's disclosures can also become a tool in detecting fraudulent life settlement practices, including STOLI.
The bill generally prohibits entering into a life settlement contract during the two-year period after the date of issuance of a life insurance policy except under certain circumstances, such as the result of the exercise of conversion rights from another policy, or if the owner is terminally ill, the owner's spouse dies, the owner divorces, or certain other similar circumstances.
The bill provides that the owner may terminate a life settlement contract within 15 days of the date of execution of the contract and receipt of all disclosures and requires the provider to pay the proceeds of the settlement to an escrow or trust account within three business days after receipt of documents necessary to effect the transfer of the policy.
The bill defines a fraudulent life settlement act and enumerates various practices that constitute fraudulent life settlement acts. It establishes civil penalties for violations, as well as providing for injunctions, and suspension and revocation of licenses, as appropriate. In addition, a violation of the bill shall also be considered an unfair trade practice and be subject to the penalties established therefor. A civil action for damages may be maintained by any person damaged as the result of a violation of the bill and in the event of a willful violation, the court may award statutory damages in an amount up to three times of the actual damage award.
Through these licensing and reporting requirements, the disclosures on the part of brokers, providers and owners, and its investigation and enforcement provisions, the bill provides new measures to detect and prevent STOLI. At the same time, it creates a comprehensive regulatory scheme for the transaction of life settlements.
