by John Darer CLU ChFC CSSC RSP
By far the most notorious structured settlement fraud involved convicted felon James R. Gibson.
Gibson's criminal indictment stemmed from his activities as owner and president of SBU, Inc. and several affiliated companies. The companies were operated by Gibson in the St. Louis, Chicago, and West Palm Beach areas. SBU offered tax-advantaged structured settlements to personal-injury plaintiffs. Gibson marketed SBU by representing to personal-injury victims that he would use their settlement money to purchase United States Treasury Bonds and hold these bonds in trust for the victims. Gibson promised to make periodic payments to the victims from the proceeds of the investments. Some of the settlement funds were placed with legitimate trust companies and funded with bonds.
Gibson transferred all of the trust accounts to Flag Finance Corporation, another corporation wholly owned and operated by Gibson. After a period of legitimate operation Gibson stopped purchasing Treasury obligations for most of the trusts and instead used new settlement proceeds and bond proceeds in his own unauthorized business transactions, high-risk investments (including the operation of a chain of grocery stores that eventually sought bankruptcy protection), and the purchase of real estate and personal luxury items. The total loss to the personal injury victims in the case was $156,256,316.92. Source: United States v Gibson 356 F.3d 761
Scott Rothstein on the other hand has allegedly defrauded investors not personal injury victims
The terms "structured settlement" and "fabricated structured settlement" have been, in the opinion of this author, irresponsibly bandied about in the complaint against him as well as in press reports in the Sun Sentinel and Miami Herald as well as bloggers and other news organizations who have picked up the story and cited non personal injury lawyers. As far as this author can tell the Rothstein alleged fraud involves what it known as pre-settlement funding. Unlike structured settlements involving annuities such activity requires no insurance license and indeed Scott Rothstein has no life insurance license (allows person to sell annuities) in Florida as of November 3, 2009. The Miami Herald today shamelessly quotes Florida personal injury attorney Ira Leesfield, in an effort to let readers know what structured settlements really are but fails to explain that what Rothstein was peddling were not structured settlements.
From most accounts the press appears to have exposed, but chosen not to emphasize, that Scott Rothstein appeared to be engaging in pre-settlement funding transactions with his own clients. At this point we seem to be way beyond ethical considerations. But it opens up another discussion.
It is common knowledge that lawyers invest in pre-settlement funding due to the fabulous potential rate of return. This author understands that some firms charge 2.5-4% per month for non recourse financing. Survey the major players and you may even find lawyers among the owners, however at least one that I am aware of refers out such transactions involving his firm's own clients. Why didn't Rothstein?