Smart Variable Annuities: The New Approach To Offering Dynamic Benefits and Managing Risk under Varible Annuity Products

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1 205 THE AMERICAN LAW INSTITUTE Continuing Legal Education Conference on Life Insurance Company Products Featuring Current SEC, FINRA, Insurance, Tax, and ERISA Regulatory and Compliance Issues November 12-14, 2014 Washington, D.C. Smart Variable Annuities: The New Approach To Offering Dynamic Benefits and Managing Risk under Varible Annuity Products By Chip Lunde Carlton Fields Jorden Burt, P.A. Washington, D.C. This paper is for general information purposes only and does not constitute the rendering of legal or professional advice. The views expressed in this paper are those of the author and do not necessarily reflect the views of Carlton Fields Jorden Burt, P.A., its clients its attorneys.

2 206 2

3 207 Table of Contents I. Introduction...1 II. New Product Design Innovations...2 A. Adjustable Pricing Features...2 B. Differentiating Price Based on Risk Factors...3 C. Adjusting Living Benefits Based on Market Events...3 D. Use of Investment Requirements and Restrictions...6 E. Use of Managed Volatility Strategy Funds MVS Fund Background SEC Staff Position New York Department of Financial Services Variable Insurance Product Disclosure Managing Conflicts of Interest...11 F. Non-Guaranteed Automated Withdrawal Monitoring Features...13 III. Rise of Alternative Products...14 A. Deferred Income Annuities Shorter Deferral Periods Flexibility to Change Income Payment Commencement Date Increased Liquidity Features...15 B. Investment-Only Variable Annuities...17 C. Single Investment Option Variable Annuities...20 D. Structured Product Annuities...20 E. Contingent Deferred Annuities (CDAs)...22 IV. Buyout Offers...22 A. Background...22

4 208 B. Three Types of Buyout Offers Surrender and Exchange Offers Rider Give-Up Offers Accelerated Annuitization Offer...24 C. Differences Among Buyout Offers...25 D. Unique Features of Recent Buyout Offers ING 2014 Buyout Offer AXA 2014 Buyout Offer...28 E. SEC Staff Comments...29 F. Select Cautionary Disclosures in Buyout Offer Supplements Disclosure to Consider Consequences of Giving Up Existing Benefits Disclosure to Consider Changed Circumstances Financial Benefit to the Issuer Financial Incentive of Financial Representatives...32 G. Checklist for Buyout Offers...33 V. Limiting Sales Volume...34 VI. Conclusion...35

5 209 SMART VARIABLE ANNUITIES: THE NEW APPROACH TO OFFERING DYNAMIC BENEFITS AND MANAGING RISK UNDER VARIABLE ANNUITY PRODUCTS 1 By Chip Lunde, Esq. Carlton Fields Jorden Burt, P.A. Washington, DC I. Introduction We have smart phones, smart cars and smart buildings. Politicians in Washington, DC even talk about smart government. And now, we can see the emergence of smart variable annuity products. Over the past few years, retirement-focused investors have sought variable annuity products that offer: lower-cost tax-deferred equity accumulation; more liquidity and choice in timing of withdrawals and income payments; and more dynamic investment options and benefits that accommodate a variety of market conditions. At the same time, variable annuity issuers have sought to offer annuity products that offer attractive benefits, and that provide some mechanisms to control risk and maintain financial strength to support the benefits guaranteed to all contract owners. In response, variable annuity issuers have innovated, and have developed: variable annuities with adjustable pricing, flexible market-based living benefits, and dynamic investment allocation features; investment-only variable annuities with lower-cost access to tax-deferred investments; structured product annuities with adjustable crediting rates; and deferred income annuities with more liquidity and more control over annuity commencement. Recent variable annuity product innovation also has extended to buyout offers and methods for moderating sales volume. This outline examines these product innovations and certain related legal issues. 1 In addition to variable annuities, this outline discusses certain other registered annuity products, such as structured product annuities and contingent deferred annuities, and deferred income annuities often offered with variable annuities. 1

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