April 2009


TARP Funds May Become Available to Insurers

Last week Treasury Secretary Timothy Geithner wrote a letter to the TARP Congressional Oversight Panel regarding the current state of TARP funds.  In the letter, Geithner considered future disbursements to banks and insurance companies in estimating the total amount of funds to be disbursed through the Capital Purchase Program (CPP).  There are a number of insurance companies who applied for TARP funds that are still awaiting approval, including Hartford Financial Services Group and Lincoln Financial.  Even if insurers get approved to receive TARP funds, there is still the chance that they will reject funding in light of all the TARP restrictions and regulations that have been announced since last year’s initial TARP distributions.



FASB Final Staff Positions on Fair Value Accounting

As already noted in our 4/13/09 Ad Hoc LRA, FASB issued its Final Staff Positions (FSPs) on fair value accounting this month.  The FSPs are effective for interim and annual periods ending after June 15, 2009, but entities may early adopt the FSPs for the interim and annual periods ending after March 15, 2009.



H.R. 1880 – National Insurance Consumer Protection Act (NICPA)

On April 2nd, Representatives Melissa Bean (D-IL) and Ed Royce (R-CA) introduced NICPA, the third attempt in less than three years to create federal insurance regulation.  Similar to the current banking regulatory framework, there would be an optional federal charter to be a national insurer and national insurance agency.  NICPA proposes to establish within Treasury an Office of National Insurance, which would be headed by a National Insurance Commissioner.  NICPA would also establish the National Insurance Guaranty Corporation which is designed to provide similar protections to policyholders as the present state guaranty association scheme (i.e. for national insurers).  State insurance regulators are adamantly opposed to an optional federal charter, arguing that the proposed legislation would undermine consumer protection and cause a needless redundancy to a more comprehensive system already in place – the existing state-based regulatory regime.  It is expected that the U.S. House Financial Services Committee will conduct hearings on an optional federal charter.



Regulation D Exemption Process Audit

On March 31st, the SEC inspector general’s office issued a report entitled Regulation D Exemption Process.  The audit report’s objective was to evaluate the effectiveness of SEC’s oversight of the private offering exemption process.  The report estimated that in 2008 there were more than 20,000 Form D filings identifying about $609B in private offerings.  The report disclosed that generally the SEC staff did not take any action when they learned of non-compliance with Regulation D exemption requirements and provided 17 recommendations to strengthen the exemption process.  Some speculate that this report will further fuel state regulators who are seeking state authority of Regulation D offerings.  At two separate congressional committee hearings held last month, state regulators pressed for state oversight to prevent Regulation D abuse.


Fifth Third BOLI News

As noted in our 4/23/09 Ad Hoc LRA, Fifth Third Bancorp (FITB) disclosed more information regarding their BOLI policies in their 2009 Q1 earnings release.  FITB took a $54M charge on the policy and recognized a $106M tax benefit in anticipation of surrendering one of their BOLI policies.  Court documents suggest that the policy in question includes stable value protection; while the surrender may have been anticipated by stable value providers, it will still likely add to the recent trend of unfavorable new SVP terms and pricing.  It should be reiterated that FITB’s extraordinary BOLI losses were anomalous relative to the vast majority of separate account BOLI.  They arose from a concentrated investment allocation to a highly leveraged, fixed income, hedge fund fund-of-funds.


Ad Hoc LRA – April 13, 2009

FASB Final Staff Positions on Fair Value Accounting

As part of our Legislative, Regulatory & Accounting (LRA) Tracking, we have closely followed the ongoing discussions with respect to Fair Value Accounting.  On Thursday, April 9, 2009 FASB issued three Final Staff Positions (FSPs) intended to provide additional application guidance and enhance disclosures regarding fair value measurements and impairments of securities:

  1. FSP FAS 157-4, Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly, provides guidelines for making fair value measurements more consistent with the principles presented in FASB Statement No. 157, Fair Value Measurements.
  2. FSP FAS 107-1 and APB 28-1, Interim Disclosures about Fair Value of Financial Instruments, enhances consistency in financial reporting by increasing the frequency of fair value disclosures.
  3. FSP FAS 115-2 and FAS 124-2, Recognition and Presentation of Other-Than-Temporary Impairments, provides additional guidance designed to create greater clarity and consistency in accounting for and presenting impairment losses on securities.

FSP FAS 157-4 relates to determining fair values when there is no active market or where the price inputs being used represent distressed sales. It reaffirms what Statement 157 states is the objective of fair value measurement—to reflect how much an asset would be sold for in an orderly transaction (as opposed to a distressed or forced transaction) at the date of the financial statements under current market conditions. Specifically, it reaffirms the need to use judgment to ascertain if a formerly active market has become inactive and in determining fair values when markets have become inactive.

FSP FAS 107-1 and APB 28-1 relates to fair value disclosures for any financial instruments that are not currently reflected on the balance sheet of companies at fair value. Prior to issuing this FSP, fair values for these assets and liabilities were only disclosed once a year. The FSP now requires these disclosures on a quarterly basis, providing qualitative and quantitative information about fair value estimates for all those financial instruments not measured on the balance sheet at fair value.

FSP FAS 115-2 and FAS 124-2 on other-than-temporary impairments is intended to bring greater consistency to the timing of impairment recognition, and provide greater clarity to investors about the credit and noncredit components of impaired debt securities that are not expected to be sold. The measure of impairment in comprehensive income remains fair value. The FSP also requires increased and more timely disclosures sought by investors regarding expected cash flows, credit losses, and an aging of securities with unrealized losses.

The FSPs are effective for interim and annual periods ending after June 15, 2009, but entities may early adopt the FSPs for the interim and annual periods ending after March 15, 2009. Beyond these near-term actions, the FASB has a joint project with the International Accounting Standards Board aimed at more broadly revamping and converging their respective standards on accounting for financial instruments.


Ad Hoc LRA – April 23, 2009

Fifth Third BOLI News

Today, Fifth Third Bancorp (FITB) released their 2009 Q1 earnings.  In their announcement, FITB disclosed information regarding their BOLI policies.  The following is a summary of the key developments:

  • FITB has made a decision to surrender one of their BOLI policies.  The surrender has not occurred yet as FITB has not decided how they will surrender it.
  • In 2009-Q1 FITB took a $54 million charge (i.e., write down) on the policy.  This includes $43 million in reserves recorded in connection with the intent to surrender and $11 million related to market value declines.
  • FITB recognized a $106 million tax benefit during 2009-Q1 related to losses recorded in prior periods on the BOLI policy that are now expected to be tax deductible.

FITB held a conference call this morning to discuss the earnings announcement.  Typically, we have been able to obtain a transcript of the quarterly call a couple of days afterwards.  If any additional pertinent information is discussed in the transcript, we will certainly pass it along.