Together with attorneys from Zuckerman Spaeder and J.R. Wyatt Law, in a lawsuit filed on August 25, 2020 in federal court in Philadelphia, Edward Stone Law is representing two Black retired NFL players, Kevin Henry and Najeh Davenport, who claim that the NFL deliberately manipulated ex-players’ “cognitive function” test scores in a way that made it less likely that Black ex-players would receive benefits under the landmark 2016 concussion settlement.
Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and Henry, who played 8 years for the Pittsburgh Steelers, say that the NFL violated federal law in processing claims under the settlement by using different sets of data for Black and White players. This “race-norming,” which is not required by the NFL-sponsored settlement agreement, has made it much more difficult for Black retirees to receive compensation for cognitive impairment under the settlement – undercutting one of the main purposes of the deal.
The two players have asked the federal court overseeing the settlement to make clear that the NFL cannot use harmful “race-normed” scores when assessing eligibility for retiree benefits. In a separate filing, they have asked that the NFL pay damages to Black ex-players who were subjected to the illegal practice.
“The NFL’s administration of the settlement created a ‘Black’ door and a ‘White’ door for benefits, in which former players with identical test scores get different treatment – solely on the basis of race,” said Cy Smith, a Zuckerman Spaeder LLP partner and lead counsel for the players. “This approach was not required by the settlement and the NFL is fully aware of its discriminatory impact on Black players. The NFL has a choice to make: live up to its word and treat Black players like their lives matter, or continue pushing them aside.”
The NFL’s use of race-norming is explained in the lawsuit: “When being evaluated for the Qualifying Diagnoses of Neurocognitive Impairment, Black former players are automatically assumed (through a statistical manipulation called “race-norming”) to have started with worse cognitive functioning than White former players. As a result, if a Black former player and a White former player receive the exact same scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment…The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits…”
The lawsuit can be viewed here (pdf), and the motion for relief can be viewed here (pdf).
The retired players are represented by Cy Smith, Aitan Goelman, Steve Herman, David Reiser, Ezra Marcus and Megan McKoy of Zuckerman Spaeder in Baltimore and Washington, D.C., as well as Justin Wyatt of J.R. Wyatt Law and Edward Stone of Edward Stone Law, both in New York. The existing NFL concussion case is Kevin Turner, et al. v. National Football League, et al., No. 2:12-md-02323-AB (E.D. Pa.), and the new case is Kevin Henry, et al. v. National Football League, et al. (E.D. Pa.).
Kemper Corp Transfers Pension Liabilities
Pension De-RiskingThe Kemper Corporation, an insurance holding company based in Chicago, Illinois completed a transfer of $205 million in pension liabilities to Banner Life Insurance Company. Kemper’s pension plan was closed to new hires on January 1, 2006, and benefit accruals have been frozen since June 30, 2016. Kemper also offered to make lump-sum payments to certain inactive, vested plan participants who were not yet in pay status. $117 million in lump-sum payments were distributed.
GE Transfers More Pension Liabilities
Pension De-RiskingGeneral Electric (GE) recently announced that it had transferred $1.7 Billion of its pension liabilities to two insurance companies owned by Athene Holding Ltd. The two insurance companies are Athene Annuity and Life company and Athene Annuity & Life Assurance Company of New York. The pension risk transfer, or pension de-risking transfer affects approximately 70,000 GE retirees and beneficiaries whose pension benefits were less than $360 per month. This pension de-risking transfer follows GE’s decision to pre-fund $2.5 Billion of its GE Pension Plan funding requirements for 2021, 2022, and 2023.
NFL Sued For Limiting Black Players’ Access To Concussion Benefits
Sports Injury LitigationTogether with attorneys from Zuckerman Spaeder and J.R. Wyatt Law, in a lawsuit filed on August 25, 2020 in federal court in Philadelphia, Edward Stone Law is representing two Black retired NFL players, Kevin Henry and Najeh Davenport, who claim that the NFL deliberately manipulated ex-players’ “cognitive function” test scores in a way that made it less likely that Black ex-players would receive benefits under the landmark 2016 concussion settlement.
Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and Henry, who played 8 years for the Pittsburgh Steelers, say that the NFL violated federal law in processing claims under the settlement by using different sets of data for Black and White players. This “race-norming,” which is not required by the NFL-sponsored settlement agreement, has made it much more difficult for Black retirees to receive compensation for cognitive impairment under the settlement – undercutting one of the main purposes of the deal.
The two players have asked the federal court overseeing the settlement to make clear that the NFL cannot use harmful “race-normed” scores when assessing eligibility for retiree benefits. In a separate filing, they have asked that the NFL pay damages to Black ex-players who were subjected to the illegal practice.
“The NFL’s administration of the settlement created a ‘Black’ door and a ‘White’ door for benefits, in which former players with identical test scores get different treatment – solely on the basis of race,” said Cy Smith, a Zuckerman Spaeder LLP partner and lead counsel for the players. “This approach was not required by the settlement and the NFL is fully aware of its discriminatory impact on Black players. The NFL has a choice to make: live up to its word and treat Black players like their lives matter, or continue pushing them aside.”
The NFL’s use of race-norming is explained in the lawsuit: “When being evaluated for the Qualifying Diagnoses of Neurocognitive Impairment, Black former players are automatically assumed (through a statistical manipulation called “race-norming”) to have started with worse cognitive functioning than White former players. As a result, if a Black former player and a White former player receive the exact same scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment…The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits…”
The lawsuit can be viewed here (pdf), and the motion for relief can be viewed here (pdf).
The retired players are represented by Cy Smith, Aitan Goelman, Steve Herman, David Reiser, Ezra Marcus and Megan McKoy of Zuckerman Spaeder in Baltimore and Washington, D.C., as well as Justin Wyatt of J.R. Wyatt Law and Edward Stone of Edward Stone Law, both in New York. The existing NFL concussion case is Kevin Turner, et al. v. National Football League, et al., No. 2:12-md-02323-AB (E.D. Pa.), and the new case is Kevin Henry, et al. v. National Football League, et al. (E.D. Pa.).
FORUM SHOPPING – FACTORING COMPANIES – STRUCTURED SETTLEMENTS
Structured Settlement Fraud, Structured SettlementsHere at Edward Stone Law, we get phone calls every day from people who feel they have been taken advantage of by factoring companies when selling their structured settlement payments.
One of the most common things we hear is that sellers have been told it is legal to go to another state and sell their payments. The courts in some states, like New York, Maryland, and Pennsylvania look very carefully at transfer petitions. Factoring companies don’t like this because they make a big profit when they buy a seller’s payments.
This practice of a factoring company moving a seller from one state to another in order to buy their structured settlement payments is called “forum shopping.” Factoring companies are telling sellers it is legal to do this. It is not. The transfer petition must be brought in a court in the state in which the seller lives or is domiciled.
Every state except New Hampshire has a Structured Settlement Protection Act that sets forth the requirements a factoring company must follow in filing a transfer petition. The factoring company must comply with those laws, and a Federal statute, 26 U.S.C. Section 5891. Section 5891 imposes an excise tax on a factoring transaction that does not qualify for exemption under the conditions specified in Section 5891(b).
If you are a seller who was victimized by a factoring company that filed a transfer petition in a state that you did not reside in, please contact Edward Stone Law by email at eddie@edwardstonelaw.com or by phone at (203) 504-8425.
Forum Shopping – Fraud in Factoring Transactions
Structured Settlement Fraud, Structured SettlementsForum shopping in the transfer of structured settlement payment rights transfer is not legal.
26 U.S.C. Section 5891 imposes a 40% excise tax on any structured settlement transfer that does not qualify for one of the exemptions set forth in Section 5891(b).
In order to qualify for one of the exemptions, a transfer petition must be brought in the state that the seller is domiciled in, if that state has a Structured Settlement Protection Act. The only state that does not have a Structured Settlement Protection Act is New Hampshire.
The Internal Revenue Service has published an “Excise Tax on Structured Settlement Factoring Transactions Audit Technique Guide” that states “Structured settlement factoring companies may sometimes be trying to avoid an unfavorable SSPA or an unfavorable forum in the payee’s home state. For example, if a factoring company seeks to acquire structured settlement payment rights from a payee domiciled in North Carolina (which limits the discounts and fees that factoring companies can charge), the factoring company may seek to have its transaction approved under the SSPA, and in the courts, of another state. If that occurs, the resulting order is not a qualified order for purposes of section 5891(b), and the factoring company is liable for the excise tax. ”
If you are a seller who was victimized by a factoring company that filed a transfer petition in a state that you did not reside in, please contact Edward Stone Law by email at eddie@edwardstonelaw.com or by phone at (203) 504-8425.
Structured Settlement Fraud – Forum Shopping
Structured Settlement FraudA factoring company may only file a transfer petition in the seller’s state of residence or domicile. If a factoring company causes a transfer petition to be filed in a state other than the state where the seller lives, then the factoring company is not complying with applicable State and Federal laws.
Edward Stone Law has been advised of many situations where a factoring company told a seller that it is legal to file a transfer petition in another state. It is not. Every state except New Hampshire has a Structured Settlement Protection Act that sets forth the requirements a factoring company must follow in filing a transfer petition. The factoring company must comply with those laws, and a Federal statute, 26 U.S.C. Section 5891. Section 5891 imposes an excise tax on a factoring transaction that does not qualify for exemption under the conditions specified in Section 5891(b).
If you have been a victim of forum shopping, contact us now via email at eddie@edwardstonelaw.com or by phone at (203) 504-8425.
#BlackLivesMatter
Uncategorized#BlackLivesMatter
This is no time to be silent. To be silent is to be complicit.
Edward Stone Law stands in solidarity with the Black community in support of the fight to end racial injustice.
In the words of Martin Luther King, Jr., “Injustice anywhere is a threat to justice everywhere.”
#BlackLivesMatter
Life Policy Found Void as an Illegal Human Life Wager
Life SettlementsIn a recent decision issued by the U.S. District Court for the Northern District of Georgia – Atlanta Division, the Court found that an insurance policy taken out on the life of Kelly Douglas Couch and issued by Jackson National Life Insurance Company was void ab initio as “an illegal human life wager.” In a lengthy, 24-page opinion, the Court made a variety of factual findings in reaching its conclusion that the life policy was void. Relying upon Clements v. Terrell, 167 Ga. 237 (1928), the Court concluded that the “focus of this Court’s inquiry is Mr. Couch’s intent at the time of his procurement of the Policy.” The Court concluded that Jackson National Life Insurance Company had met its burden of proof, and held that based on a “preponderance of the evidence, that Mr. Couch intended to enter into a wagering contract at the time he procured the Policy. As such, the Policy is void ab initio as an unlawful wagering contract under Georgia law.” You can read the Court’s full opinion here.
New York Fines Athene $45 Million
Pension De-RiskingAthene Holding Ltd. paid a $45 Million fine to the State of New York for violations related to its pension de-risking business operated by its subsidiary Athene Annuity & Life Corporation. The New York State Department of Financial Services (DFS) discovered that Athene both solicited and did insurance business in New York without a license. According to the DFS, Athene entered into fourteen pension de-risking transactions involving thousands of New York residents, including two transactions involving New York based defined benefit plan sponsors. As part of the settlement with the State of New York, Athene will transfer certain transactions to its New York licensed subsidiary, Athene Annuity & Life Insurance Company of New York.
Favorable Decision for Executive Life Victim Trevor Langkamp
Annuities, ELNYTrevor Langkamp was the recipient of one of the dreaded notices from the New York Liquidation Bureau in December, 2011 telling him that his annuity benefits from Executive Life Insurance Company of New York would be cut. The liquidation of Executive Life Insurance Company of New York (ELNY) was finalized in April, 2012 and despite the best efforts of Edward Stone Law, reductions in annuity benefits took effect on August 8, 2013.
Langkamp was injured in a fire when he was just 17 months old at a U.S. Army facility, and Langkamp’s parents sued the United States. In 1984 Langkamp and the United States settled their lawsuit. The U.S. purchased two Executive Life annuities to provide a lifetime of periodic payments to Langkamp. In 2013, with the ELNY liquidation finalized, Langkamp’s periodic payments were cut by more than 40%. Langkamp filed suit against the U.S. in the Court of Claims in 2015, seeking to hold the United States liable for his shortfall. He lost at the trial level, with the court dismissing his claims and holding that “the government has not unequivocally agreed to guarantee the monthly and periodic lump-sum payments required under the [settlement] agreement.” On appeal, the U.S. Court of Appeals for the Federal Circuit determined that the trial court had erred in holding that the U.S. had no continuing liability for Langkamp’s periodic payments, and remanded the case to the Court of Claims for proceedings consistent with its opinion. Looks like Mr. Langkamp will be one of the few Executive Life shortfall victims to recover his shortfall from the United States.