This month the plaintiffs filed their Motion for Class Certification (click here). In this motion, the plaintiffs are asking the court to certify that the case may proceed as a class action rather than requiring each CalPERS Long Term Care policy holder to file an individual lawsuit. In the motion, the plaintiffs summarize the evidence that has been obtained in the case to date and argue that the case should be permitted to proceed on a group basis .
Specifically, plaintiffs motion has a lengthy discussion concerning a “second opinion” actuarial report that was ordered by CalPERS a year after it started the program in 1996. In the report, the actuaries were very critical of the way CalPERS had set up its program and provided several warnings that eventually came to fruition. In the report, the actuaries warn that CalPERS decision to invest a large percentage of the Long Term Care Fund in equities was highly unusual within the insurance industry. Unlike most insurance companies that invest almost all premiums in bonds and other low risk investments, CalPERS decided to invest 65% of the long term care fund in the stock market. The actuaries expressly warned CalPERS that this was highly unusual and would most certainly cause rate increases down the road. The report also noted that CalPERS was compounding the problem by failing to incorporate reserves into its pricing structure. As such, any errors in the assumptions used to set premiums (even small errors), would lead to rate increases. The report concluded that these two actions would likely lead to “criticism that [CalPERS] had ‘low-balled’ premiums to attract sales, with the intent—or at least willingness—to make future increases.”
Plaintiffs further claim that CalPERS did nothing in response to these warnings. It did not change its pricing structure or divest itself from the stock market. As predicted in the report, CalPERS ordered rate increases following stock market crashes in 2002 and 2008. It was not until 2012 that CalPERS finally decided to “stabilize” the fund. To do this, it reduced its stock holdings from what was originally 65% to 15%. It also decided to incorporate a 10% reserve into its pricing structure. These two actions were the primary basis for the 85% rate increase that was adopted by the Board in 2012.
In their motion, Plaintiffs assert that under the contract with policy holders rate increases are not permitted when they become necessary due to stock market losses, a change in investment strategy, or CalPERS’ decision to incorporate reserves into its pricing model. Plaintiffs assert that this issue is the type that should be decided on a class basis instead of individually for each class member.
The plaintiffs also assert that CalPERS breached its fiduciary duty to class members. The basis for this claim is CalPERS’ failure to advise class members about 1) CalPERS’ highly unorthodox investments strategy, 2) its unorthodox no reserve policy, and 3) the fact that CalPERS was told in 1996 that rates were almost certain to rise in the future. Plaintiffs also assert that the problems with Program were likely the result of the way CalPERS structured the compensation of the outside vendors who were responsible for helping set premiums and create advertising for the program. Specifically, the company that was hired to prepare all of the advertising for the Long Term Care Program and the actuaries who helped set premiums were both paid on a “per applicant” basis. Hence, these vendors had a strong economic incentive to “under price” the policies and omit important negative information from the advertising for the program. In fact, the company responsible for creating advertising for the policies now makes approximately $20 million per year from the program.
The hearing on the motion is set for November 23, 2015 in Department 308 of the Los Angeles County Superior Court.