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October 15, 2004

Spitzer is at it again

New York Attorney General Eliot Spitzer cranked up his questionable litigation propaganda machine again yesterday and sued the world's largest insurance broker -- Marsh & McLennan Cos. -- on the grounds that it cheated its corporate customers by rigging bids and collecting huge fees from major insurance companies in return for guiding insurance business their way.

The charges were included in the civil lawsuit and in two plea bargains of criminal charges against two insurance executives from American International Group, Inc. ("AIG"). In addition to AIG, Spitzer named Hartford Financial Services Group Inc. and Munich-American Risk Partners in the civil suit as participants with Marsh in the bid rigging and improper fee-paying charges.

This is the latest in Mr. Spitzer's use of the New York attorney general's office to sue large companies in an effort to trigger reform in business practices, although some grizzled observers contend that the lawsuits are more about promoting Mr. Spitzer's political ambitions than reforming business. Earlier posts on Mr. Spitzer's other lawsuits are here, here and here.

Mr. Spitzer's latest lawsuit depicts the insurance industry as a corrupt business in which bid rigging and payment of improper fees have become accepted practices. Unlike markets for securities, commodities and other financial products, commercial insurance is bought and sold in private, so most of the business passes through the hands of insurance brokers, who are middlemen who match buyers and sellers in return for a cut of the transaction.

Normally, a company that is shopping to buy insurance advises its insurance broker on the type and amount of coverage that it is seeking and the broker then solicits bids from insurance companies. The broker usually is paid by commission, which is calculated as a percentage of the insurance buyer's premium payments. It is not unusual for the insurance purchaser to send its premium check to the broker, who then deducts its commission before passing the premium payment on to the insurance company.

Spitzer's lawsuit does not appear to take direct aim at the system described above. Rather, the lawsuit is going after the brokers from accepting what are called "contingent commissions," which are payments that insurance companies make directly to brokers based on factors such as the total volume of business a broker does with that insurer or the profitability of that business. Big insurance brokers such as Marsh have been able to demand and receive such contingent commissions in recent years because of the large amount of insurance business that they control.

Spitzer contends that the contingent commissions prompt brokers to book their business where it is most profitable to the broker rather than where it best serves the interest of the customer. client. On the other hand, it's not like the companies buying such insurance do not know about the contingent commissions and cannot take their business to another broker if they are uncomfortable with such arrangements. Mr. Spitzer's lawsuit appears to overlook that rather obvious market truth.

As noted in the previous posts, Spitzer has become controversial figure in the financial services industry. This insurance industry lawsuit follows high-profile lawsuits into conflicts of interest that allegedly taint the research of Wall Street analysts and into special trading privileges that big mutual-fund investors enjoy. The probes have tarnished the reputations of some of the country's best-known and largest corporations, and although the facts differ in each lawsuit, they all have a common theme -- the alleged wrongdoing has been going on for years and the corrupt industry is unwilling or incapable of correcting it.

Inasmuch as the state governments handle regulation of insurance, differing regulation standards, controls, and disclosure requirements apply from state to state. Although large insurers and brokers for years have resisted federal regulation of insurance, lawsuits such as Spitzer's latest may have them rethinking that position.

Wouldn't that be rich? Big insurers and brokers lobbying with consumer groups for federal regulation of insurance? Politics certainly makes for strange bedfellows!

Posted by Tom at October 15, 2004 6:47 AM |

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