Just one day after the NFL announced that it would work to end  the use of “race-norming” in the NFL Concussion Settlement, U.S. District Judge Anita Brody (E.D. Pa.) granted the request of two former Pittsburgh Steelers, Kevin Henry and Najeh Davenport to intervene in the mediation between the NFL and class counsel, Chris Seeger. Mr. Davenport and Mr. Henry sued the NFL in August 2020 alleging civil rights violations resulting from the use of “race-norms” in the NFL Concussion Settlement. The suit was dismissed by Judge Brody as “an improper collateral attack on the settlement agreement….”

The controversial practice of “race-norming” assumes that Black players have a lower cognitive function compared to non-Black players, which made it much more difficult for Black players to qualify for an award in through the NFL Concussion Settlement.

Last month, a group of NFL families dropped off more than 50,000 petitions at the Federal Courthouse in Philadelphia where Judge Anita Brody dismissed Mr. Henry’s and Mr. Davenport’s civil rights lawsuit which alleged that both former players would have received settlement awards from the NFL if the settlement administrators had applied the same norms used for non-Black players.

The NFL Concussion Settlement was finalized in 2017. Since that time, more than 2,000 former players have filed claims, but fewer than 600 former players have received awards.

Henry and Davenport are represented by Cyril V. Smith, Aitan D. Goelman and Ezra B. Marcus of Zuckerman Spaeder LLP, Edward S. Stone of Edward Stone Law PC, and J.R. Wyatt of J.R. Wyatt Law PLLC. The two cases are In re: National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323 (E.D. Pa.), and Henry et al. v. NFL, No. 2:20-cv-04165 (E.D. Pa).

 

 

February 2020:  Armstrong World Industries transfers $1 Billion for 10,000 retirees to Athene

December 2020: Lockheed Martin transfers $1.4 Billion of pension liabilities for 13,500 retirees to MetLife

December 2020: Phillips North America transfers $1.2 Billion in pension liabilities for 11,000 retirees to MetLife and Principal

December 2020:  GE transfers $1.7 Billion of pension liabilities for 70,000 retirees to Athene.

February 2021: Dow transfers $700 Million in pension liabilities for 12,000 retirees to MetLife

April 2021: JCPenney transfers $2.8 Billion in pension liabilities for 30,000 retirees to Athene

Not all companies who offload their pension liabilities to insurance companies disclose the name of the company taking on the pension liabilities. Below is a recap of some 2020 transfers where the company did not disclose the insurance company , as reported by S&P Global Market Intelligence.

Teradyne Inc. – $24.4 Million

Lockheed Martin – $793 Million

Kellogg Co. – $470 million

Newell Brands Inc. – $157 Million

Eastman Chemical Co. – $110 Million

DTE Electric Co. – $60 Million

 

GE  transferred $1.7 Billion in pension liabilities to Athene Annuity and Life Company and Athene Annuity & Life Assurance Company of New York in late 2020. This transaction affects approximately 70,000 retirees who have been receiving benefits from GE’s pension plan. Bermuda based Athene Holding has purchased more than $18.5 Billion in pension liabilities affecting over 300,000 retirees since it entered the pension risk transfer business in 2017.

 

 

 

JCPenney, the ailing retailer, declared bankruptcy in May 2020 and sold off its retail operations before emerging from Chapter 11 at the end of 2020.  In early April, Athene Holding took over $2.8 Billion of JC Penney’s pension obligations, completing the termination of JCPenney’s pension plan. Two of Athene’s wholly owned subsidiaries, Athene Annuity and Life Company and Athene Annuity & Life Assurance Company of New York will issue a group annuity contract to JCPenney and individual annuity certificates to eligible participants. This transaction affects approximately 30,000 JC Penny retirees and is Athene’s largest pension risk transfer transaction to date.

 

 

 

Facts from 2020

First Quarter 2020:

  • “Buy-out” purchases $4.462 Billion

Second Quarter 2020:

  • “Buy-out” purchases were $2.270 Billion

Third Quarter 2020:

  • “Buy-out” purchases were $4.599 Billion

Fourth Quarter 2020:

  • “Buy-out” purchases were $13.680 Billion

Total “Buy-out” contracts for 2020: 432

Total of “Buy-out” purchases: $25 Billion

Total Number of Retirees Affected: 408,277

Philips North America has transferred $1.2 Billion of pension liabilities to MetLife and Principal Financial Group. This transaction affects approximately 11,000 retirees and their beneficiaries. MetLife will administer the benefits and will be financially responsible for 75% of the liabilities. Principal has sole responsibility for approximately 2,000 deferred participants.

 

 

Senior financial reporter for the NBC News Investigative Unit, Gretchen Morgenson delved into the issue of pension de-risking in an exposé published on June 14, 2020. Morgenson interviewed Karen Friedman of the Pension Rights Center, and Thomas Gober, a certified fraud examiner who has worked as a consultant to the U.S. Department of Justice, and Joseph Belth, professor emeritus of insurance at Indiana University, and author of The Insurance Forum.  Focusing on Athene Annuity & Life, Morgenson points out that “Athene has acquired $12 billion in corporate pension obligations recently, including those of Bristol-Myers Squibb, Dana Corp. and Lockheed Martin Corp.” Some 178,000 people now rely on Athene for their pension benefits.  In April 2020, Athene was fined by the State of New York for failing to register before engaging in its pension de-risking business in New York.

On February 1, 2021 American International Group, Inc. agreed to pay a $12 Million fine to the State of New York to settle charges by the New York State Department of Financial Services (NYDFS) that it conducted life insurance business in New York without a license. Between 2014 and 2019, AIG entered into four pension risk transfer (a/k/a pension de-risking) transactions without being licensed in New York. As part of the settlement, AIG will transfer those transactions to its New York based subsidiary. NYDFS’s superintendent, Linda Lacewell is quoted in Business Insurance as saying: “A DFS license offers consumers peace of mind through the requirement of compliance with New York laws and regulations, helping to safeguard assets. The department will continue to vigorously enforce the law to protect retirement assets of New Yorkers.”

Midland, Michigan based Dow Inc. transferred $700 million in pension liabilities to Metropolitan Tower Life Insurance Company, a subsidiary of MetLife Inc. in the 4th quarter of 2020. The transfer affected retirees in the Dow Pension Plan who receive $950 or less in monthly benefits, and retirees in the Union Carbide Pension Plan receiving less than $420 per month. Over 12,000 retirees were impacted by this transfer.