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1 September 2002 S TRUCTURED S ETTLEMENT U PDATE Since the enactment of section 5891 of the Internal Revenue Code, there has been a substantial increase in the number of petitions filed for approval of factoring transactions. Indeed, certain of the representatives of the factoring industry seem to have taken the position that the new federal legislation, when coupled with the existing and expanding state legislation, operates to not just regulate factoring transactions but to automatically validate them. Although many insurers have adjusted their strategies for responding to factoring transactions, it most certainly can not be said that all factoring transactions are valid and that anti-assignment language is no longer to be given effect. Indeed, recent case law has indicated exactly the opposite. On August 16, 2002, in WebBank v. American General Annuity Service Corp., et al., P.2d (Utah 2002), the Utah Supreme Court reversed and remanded a trial court decision that had held that certain factoring transactions were loans and that the anti-assignment language at issue was therefore invalid. Recognizing that, at the very least, the transactions created a question of fact with respect to whether they were loans or sales, the Utah Supreme Court precluded WebBank and its joint venture partner, Settlement Funding, L.L.C. (i.e., Peachtree), from achieving the drive-thru justice that they were desperately seeking. In Singer Asset Finance Company, L.L.C. v. CGU Life Insurance Company of America, 2002 LEXIS 590 (Georgia Sup. Ct., July 15, 2002), the Supreme Court of Georgia not only invalidated the factoring transaction in question, but found that the elimination of the insurers tax concerns (by section 5891) did not have any effect on the result. This decision, although at first improperly articulated by the Georgia Supreme Court, now constitutes strong precedent for precluding factoring transactions, when necessary and appropriate, even though the federal legislation has eliminated section 130 and section 72 tax concerns. Finally, in Singer Asset Finance Company, L.L.C. v. Johnny L. Bachus a/k/a/ Johnny Backus, et al., 741 N.Y.S.2d 681 (4th Dept. 2002), the Supreme Court of New York, Appellate Division, sent a clear message to Singer Asset Finance Company that it will no longer be permitted to commence actions against annuitants without naming the involved insurance companies as parties, and will instead have to provide the involved insurance companies with early notice and an opportunity to be heard. This case should be of considerable assistance in connection with the many dispute cases that still exist despite the enactment of section 5891 and the related state legislation. 1 The lesson to be drawn from these cases is not necessarily that insurers should again adjust their strategies and renew their vigorous opposition to factoring transactions, but that, even if insurers are stipulating to these transactions and permitting them, in appropriate circumstances, to go forward, these insurers need not be bullied by the factoring companies. Rather, if necessary and appropriate, the insurers can still successfully challenge the validity of factoring transactions. Lawyers at Drinker Biddle represented the insurers in three of the four cases referenced in this Update and are available to discuss these matters in greater detail. The text of all of the cases referenced in this Update appear below. 1. Even more recently, in Singer Asset Finance Company, L.L.C. v. John Cardillo, Supreme Court of New York, New York County,Trial Division, No (August 7, 2002), a decision was rendered whereby, even before the insurance company was named in the case, Singer Asset Finance Company was precluded by the court, sua sponte,from obtaining a default judgment against the annuitant. Briefly stated, it seems that the courts in New York have caught onto, and have had enough of, this factoring company s litigation practices. Structured Settlement Update September 2002

2 Structured Settlement Update Author: Michael J. Miller Questions regarding this Structured Settlement Update should be directed to: Stephen C. Michael J. Jeff A. Drinker Biddle & Reath LLP, a Pennsylvania Limited Liability Partnership, is a full service law firm headquartered since 1849 in Philadelphia, PA. Drinker Biddle & Reath LLP practices as Drinker Biddle & Shanley LLP in New Jersey. With more than 425 attorneys, the firm represents a broad spectrum of public and private, commercial, financial and educational enterprises, governmental authorities, charities and individuals throughout the United States and abroad. This Drinker Biddle & Reath LLP Structured Settlement Update is intended to inform our clients and friends of developments in the law and to provide information of general interest. It is not intended to constitute legal advice regarding any client's legal problems and should not be relied upon as such All rights reserved. PHILADELPHIA Drinker Biddle & Reath LLP One Logan Square 18th and Cherry Streets Philadelphia, PA (fax) BERWYN Drinker Biddle & Reath LLP Suite Westlakes Drive Berwyn, PA (fax) PRINCETON Drinker Biddle & Shanley LLP Suite College Road East Post Office Box 627 Princeton, NJ (fax) Jonathan I. Epstein, Partner in charge WASHINGTON Drinker Biddle & Reath LLP Suite K Street, N.W. Washington, DC /66 (fax) LOS ANGELES Drinker Biddle & Reath LLP Wells Fargo Building 333 South Grand Avenue Suite 1700 Los Angeles, CA (fax) SAN FRANCISCO Drinker Biddle & Reath LLP 225 Bush Street, 15th Floor San Francisco, CA (fax) FLORHAM PARK Drinker Biddle & Shanley LLP 500 Campus Drive Florham Park, NJ (fax) Daniel F. O Connell, Partner in charge NEW YORK Drinker Biddle & Reath LLP 30 Broad Street, 30th Floor New York, NY (fax) Structured Settlement Update September 2002 Page 2

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