Marsh & McLennan, the nation's largest insurance broker, last week agreed to an $850 million settlement with New York Attorney General Eliot Spitzer for conspiring to rig insurance bids and steer business to preferred insurers in exchange for lucrative kickbacks.
The settlement was the largest brought against an individual firm during Spitzer's tenure as Gotham's chief regulator and looks to be a blueprint for all future cases involving abusive insurance sales practices. Under the terms of the deal, Marsh will not pay a fine or a penalty but, rather, must make annual contributions to a restitution fund over the next four years to be returned to policyholders harmed by the scheme. An initial payment of $255 million is due June 1.
Marsh apologized for the actions of a handful of its 60,000 employees, calling their conduct both "shameful" and "unlawful." The New York-based company vowed to make the necessary business and governance reforms to regain the trust of its clients. "This settlement culminates a dark period in this company's history," said Chief Executive Officer Michael Cherkasky on a conference call with reporters.
Still, Marsh stopped short of admitting any wrongdoing, an obvious attempt to prevent an onslaught of class-action lawsuits and further sanctions from other state regulators. Interestingly enough, the apology was included in the Spitzer agreement but was noticeably absent from Marsh's press release, its Web site and its 8-K filing with the Securities and Exchange Commission. Marsh spokeswoman Barbara Perlmutter explained that the apology was likely omitted for "redundancy" purposes.
When questioned about the perceived ambiguity of the terms - apologizing for breaking the law but not admitting wrongdoing - Cherkasky said that it was a legal distinction that was a "critical factor" in reaching an agreement with regulators. The apology, he said, was made on behalf of the handful of employees that engaged in the unlawful behavior and was not an admission of corporate wrongdoing. "We've never been a company that condones price-fixing or fake bids," he explained. "But sometimes, individuals make mistakes."
His response was particularly curious because former Marsh CEO Jeffrey Greenberg was forced to resign just days after the suit was filed by the attorney general's office. Had there been infractions made by a few bad apples, why would there be a need to get rid of the head of the company? Both Spitzer and Marsh have said that Greenberg's resignation was a necessary step in avoiding criminal prosecution
Still, it raises serious questions about accountability: For example, at what point do the actions of individuals within a firm justify corporate wrongdoing?
The fact that there was no penalty or fine in this case is also peculiar. In previous cases against mutual funds, Spitzer has imposed civil penalties in the form of fines or reduced management fees. Since this was not the first time Marsh ran afoul of regulators, having seen its Putnam Investments subsidiary sued for abusive mutual fund trading practices, Spitzer likely did not want to see the company collapse. Spitzer's office did not return phone calls seeking comment.
Further monetary penalties would only have put the company in dire financial straits, which would inflict even more pain on its already defrauded customers. More important to Spitzer was that Marsh cleans up its act and is able to adapt a new business model. "The company has embraced restitution and reform as a way of making a clean break from the practices that misled and harmed its clients in the past," Spitzer said in a release.
Spitzer's lawsuit centered on incentive payments known as market service agreements for providing increased business and boosting profits to the insurance companies. Marsh had promised to deliver unbiased advice to its commercial insurance customers, but instead, Spitzer alleged, it betrayed that trust by accepting undisclosed kickbacks from insurance firms for steering business their way and inflating prices. In addition to reimbursing customers, Marsh was forced to make fundamental changes to the way it does business.
According to the settlement, Marsh agreed to disclose in "plain, unambiguous written language" all payments received in connection with its insurance coverage. Secondly, all forms of contingent compensation have been effectively banned. Marsh also pledged not to accept anything of material value from insurance companies such as credits, loans, gifts, vacations or the payment of employee salaries. In addition, the company is prohibited from setting up pay-to-play and bid-rigging arrangements as well as reinsurance brokerage leveraging.
"The settlement has ramifications for every nook and cranny of the insurance business," said Joseph Belth, professor emeritus of insurance at Indiana University of Bloomington, Ind. He believes the case is the most important event in the history of the insurance industry because it reveals the "blurred distinctions" that exist between brokers and agents and forces a debate on the transparency of distribution. Indeed, Spitzer has said that his office continues to investigate whether conflicts of interest are driving up prices for medical and legal malpractice insurance, auto and home insurance and group life and health insurance.
Policyholders from all 50 states will receive restitution from Marsh, with California, New York, Pennsylvania, Texas and Illinois receiving a bulk of the money. Although it does not preclude it from other settlements, Marsh hopes that by providing restitution nationally it can avoid any further monetary damage to the firm. As stipulated in the agreement, the affected policyholders will receive a notification by mail that they are eligible to receive a payment from the company provided that they agree not to sue the broker for having overpaid for coverage. Marsh must calculate the amount each policyholder is owed by April 30 and mail notices to customers by May 20.
In order to fund the restitution effort, the company took a $618 million charge against fourth-quarter earnings to help reimburse its customers. Marsh will also continue to ask insurers for the incentive fees owed as a means of paying for its settlement. The company has already received $25 million of the approximately $230 million in incentive fees owed. Cherkasky noted that the company will not have to borrow money to uphold its end of the deal and ensured that "the compensation fund will not threaten the company's viability." The four-year installment plan calls for two payments of $255 million in 2005 and 2006, and two payments of $170 million on the back end.
While the agreement has removed an overhang from the company, there promises to be rough terrain ahead for Marsh financially. "Fundamentals going forward should be adversely affected by lost contingent commissions and a soft property and casualty insurance market," said Jay Gelb, a stock analyst at Prudential Equity Group. He suggested that Marsh shareholders sell their shares if the stock continues to improve in the near-term. As for the settlement's implications for the rest of the industry, Gelb noted, "The attorney general extracted a substantial monetary penalty from Marsh, and may use this settlement as leverage against the other insurance brokers."