In re AXA Equitable Life Ins. Co.

• Decision Date: 31 March 2022
• Docket Number: 16-CV-740 (JMF)
• Citation: 595 F.Supp.3d 196
• Parties: IN RE: AXA EQUITABLE LIFE INSURANCE COMPANY COI LITIGATION This Document Relates to All Member Cases
• Court: U.S. District Court — Southern District of New York

595 F.Supp.3d 196

IN RE: AXA EQUITABLE LIFE INSURANCE COMPANY COI LITIGATION

This Document Relates to All Member Cases

16-CV-740 (JMF)

United States District Court, S.D. New York.

Signed March 31, 2022

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

INTRODUCTION...209

BACKGROUND...209

A.FactualBackground...210

B.ProceduralBackground...212

CROSS-MOTIONS FOR SUMMARY JUDGMENT...215

A.LegalStandards...215

B. Breach-of-ContractClaims...215

1.Choice of Law...216

2.ContractualStanding...216

3.Definition of "Given Class"...219

4.Reasonableness of MortalityAssumptions...221

5.Procedures and Standards on File...226

6.Minimum InterestRate...226

7.Burden to EstablishDamages...227

8.Appropriate Remedy for Croft Plaintiffs’ Breach-of-ContractClaims...229

C. Illustration-BasedClaims...230

1. Standing...230

2.Section 4226 Claims...231

a. Whether the AUL II Illustrations ConstitutedMisrepresentations...232

b. Whether Any Misrepresentation Was "Knowing"...236

c. The Choice of Law Applicable to Currie Plaintiffs’Section 4226 Claim...237

d. Claims on Behalf of Predecessors-in-Interest...239

3.Section 349 Claims...240

4.Common Law FraudClaims...241

5.Currie Plaintiffs’ California LawClaims...244

a. The CUCL Claims...244

b. The Elder Abuse LawClaims...245

MOTION TO STRIKE...247

MOTIONS TO EXCLUDE EXPERT TESTIMONY...249

A.LegalStandards...249

B.Plaintiffs’ Motion to Exclude...251

1.TimothyPfeifer...251

2.GlenHubbard...253

3.Mary Jo Hudson and HowardMills...254

C. AXA's Motion to Exclude ExpertTestimony...255

CONCLUSION...257

INTRODUCTION

In these lawsuits — a class action¹ and related individual actions² — life insurance policyholders bring claims against DefendantAXA Equitable Life Insurance Company("AXA")³ arising from an increase in the charges associated with certain life insurance policies.Specifically, they arise from a 2016 increase in the "cost of insurance" or "COI" — a monthly charge deducted from the value of a policyholder's account — on a subset of Athena Universal Life II ("AUL II") universal life insurance policies.Plaintiffs principally allege that the increase in COI violated the terms of their insurance policies.They also allege that AXA issued policy illustrations, or documents depicting the performance of a given policy under various assumptions, that were false or misleading because the illustrations failed to disclose the likelihood of a future increase in COI based on AXA's mortality experience and changing assumptions as to future mortality since AUL II's initial pricing in 2004.

AXA now moves for summary judgment on all claims, and Plaintiffs in the related individual actions ("Individual Plaintiffs") cross-move for partial summary judgment on their breach-of-contract claims.Both sides also move to exclude the reports and testimony of various expert witnesses, and Individual Plaintiffs move to strike, on the basis of judicial estoppel, a portion of AXA's Rule 56.1 statement of material undisputed facts and the evidence cited therein.For the reasons that follow, the Court denies AXA's motions for summary judgment nearly in their entirety.The exceptions are for (1) one set of Individual Plaintiffs’ breach-of-contract claims regarding the guaranteed minimum interested rate; (2) the claims of registered owners in the class related to the illustration-based claims who purchased policies after the COI Increase; (3) another set of Individual Plaintiffs’ illustration-based Section 349 claims; and (4) Class Plaintiffs’ and a set of Individual Plaintiffs’ claims based on the interests of prior policyholders, as to which AXA's motion for summary judgment is granted.The Court also denies Individual Plaintiffs’ partial motion for summary judgment as to their breach-of-contract claims.Finally, with limited exceptions, the Court denies the parties’ motions to exclude expert testimony and Individual Plaintiffs’ motion to strike.

BACKGROUND

The following facts — drawn from the admissible materials that the parties submitted in connection with these motions — are either undisputed or, where noted, described in the light most favorable to the relevant non-moving party.See, e.g. , Costello v. City of Burlington , 632 F.3d 41, 45(2d Cir.2011).The Court assumes general familiarity with its many prior opinions in this case and, thus, recounts the relevant facts only briefly.⁴

A.Factual Background

Plaintiffs are registered and beneficial owners of AUL II policies, which are flexible-premium universal life insurance policies that AXA issued between 2004 and 2008.SeeECF No. 1-1 ("Doe Policy"), at 1;ECF No. 457-42("Brown Rpt."), ¶¶ 20, 42;ECF No. 457-36("Pfeifer Rpt."), ¶¶ 31, 44.⁵AUL II policies have both an insurance component and a savings component, and their premiums are flexible, as opposed to fixed.Doe Policy 1-2;BrownRpt. ¶ 20;PfeiferRpt. ¶¶ 32-33.That means that AUL II policyholders make premium payments into an interest-bearing Policy Account from which AXA, in turn, deducts COI and other charges.Doe Policyat 1-2, 7-9;BrownRpt. ¶¶ 20, 28-29;PfeiferRpt. ¶¶ 32-33.After making an initial premium payment, the policyholder can generally decide when and how much to pay in premiums, within certain limits.Doe Policy 1-3, 7;BrownRpt. ¶ 20;PfeiferRpt. ¶¶ 32-33.As long as the Policy Account contains sufficient funds to cover the monthly deductions, the policy remains in force, and the policyholder earns interest on any remaining funds.Doe Policy 1-3, 7;BrownRpt. ¶¶ 20, 28-29;PfeiferRpt. ¶¶ 32-33.Upon the insured's death, the policy beneficiary receives a Death Benefit in an amount determined based on the face amount of the policy, among other factors.See Doe Policy 2, 5-6.

Typically, the COI is the most significant expense associated with an AUL II policy.BrownRpt. ¶¶ 23, 53, 207.It is largely determined by multiplying the monthly COI rate by the net amount at risk, or the difference between the Death Benefit and the amount in the Policy Account, divided by $1,000.Doe Policy 8;BrownRpt. ¶¶ 28-29.Significantly, the COI rate scale is a non-guaranteed element of an AUL II policy, meaning that AXA is entitled to change it, subject to certain restrictions.Doe Policy 9;BrownRpt. ¶ 22;PfeiferRpt. ¶¶ 24, 34, 43.Among these restrictions, COI rates can never exceed a contractually guaranteed maximum rate scale, and any changes in COI rates must comply with a clause in the policy titled "Changes in Policy Cost Factors."Doe Policy 4, 9;BrownRpt. ¶¶ 30-31;PfeiferRpt. ¶ 35.A representative version of that clause provides:

Changes in policy cost factors (interest rates we credit, cost of insurance deductions and expense charges) will be on a basis that is equitable to all policyholders of a given class, and will be determined based on reasonable assumptions as to expenses, mortality, policy and contract claims, taxes, investment income, and lapses.Any change in policy cost factors will never result in an interest crediting rate that is lower than that guaranteed in the policy, or policy charges that exceed the maximum policy charges guaranteed in the policy.Any change in policy cost factors will be determined in accordance with procedures and standards on file, if required, with the insurance supervisory official of the jurisdiction in which this policy is delivered.

ECF No. 495, at 1-70("Class Pls.’56.1 Resp."), ¶ 11;ECF No. 512, at 1-143("Indiv.Pls.’56.1 Resp."), ¶ 37.

AXA set the original rate scale for AUL II policies in 2004, when it first sold them, and that scale remained in effect for over a decade.SeeECF No. 462("Def.’s Class56.1 Stmt."), ¶¶ 8, 12.In October 2015, AXA announced that it was raising COI rates on some — but not all — AUL II policies and that the increase would take effect on March 8, 2016.Class Pls.’56.1 Resp. ¶ 12; Indiv.Pls.’56.1 Resp. ¶ 38.This action (the "COI Increase" or "Increase") applied only to AUL II policies with (1) an issue age of at least seventy, meaning the age of the insured at the time of policy issuance was seventy or older; and (2) a face amount of at least $1 million ("70+/$1M+" policies).Class Pls.’56.1 Resp. ¶¶ 12-13; Indiv.Pls.’56.1 Resp. ¶¶ 39-40.The Increase affected policies with issue ages of seventy through seventy-nine and issue ages of eighty through eighty-five differently.That is, COI rates for the former group of policies were increased by one percentage scale, and COI rates for the latter group of policies were increased by a different percentage scale.Class Pls.’56.1 Resp. ¶¶ 42-43; Indiv.Pls.’56.1 Resp. ¶¶ 78-79;BrownRpt. ¶ 52;PfeiferRpt. ¶¶ 9, 183;ECF No. 457-19 ("COI Increase Mem."), at 5.⁶Depending on the issue age of the policy (seventy through seventy-nine or eighty through eighty-five) and its duration (that is, how long the policy had been in effect), COI for affected policies increased between 7.3% and 72.5% for a given year.COI IncreaseMem. 5.

AXA internally documented the basis for the COI Increase in a memorandum dated September 18, 2015.Class Pls.’56.1 Resp. ¶ 14; Indiv.Pls.’56.1 Resp. ¶ 41;see COI Increase Mem.As relevant here, the mortality assumptions on which the COI Increase was based were a new set of assumptions that AXA had adopted internally in 2013 as its "current best estimate" assumptions, called "ELAS 12."Class Pls.’56.1 Resp. ¶¶ 19-20; Indiv.Pls.’56.1 Resp. ¶¶ 48-49;COI IncreaseMem. 2, 9;BrownRpt. ¶ 50;PfeiferRpt. ¶¶ 6, 46.Between 2014 and 2015, AXA analyzed the expected future profitability of the block of AUL II policies that were in force as of the third quarter of 2014 in light of ELAS 12.COI IncreaseMem. 9;BrownRpt. ¶ 63;PfeiferRpt. ¶ 48.To do so, AXA compared the present value of future profits of these policies under its then-current best estimate assumptions, including ELAS 12, on the one hand, with their present value of future profits under what AXA maintains were the original assumptions that it used to develop...