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PLANNING TO INVEST IN VIATICAL POLICIES? I WOULDN'T DO BUSINESS WITH LIFE PARTNERS

Companies often try to use my columns to sell products or services. But I almost never grant reprint rights to commercial enterprises. Nor do I give endorsements, other that those that appear as journalism in my columns.

So I'm pretty unhappy about a viatical company called Life Partners that's using my name without permission.

In a column in 1995, I described Life Partners as the largest viatical company in the country. That short statement appears on its Web site, amid laudatory blurbs from other sources.

After the quote, I'm identified as a Newsweek contributing editor, which is indeed one of my jobs. But the words on the Web site didn't appear in Newsweek, as readers of the site might be led to believe.

Just in case you missed that '95 newspaper column, let me reprise what else I wrote about the company, which the Web site doesn't include.

The Securities and Exchange Commission, I said, was pressing Life Partners president Brian Pardo "to disclose more clearly that he previously was involved in a separate SEC action for securities fraud."

In a column in 1994, I noted that Pardo, "after a previous run-in with the SEC" was "enjoined from violating the anti-fraud provisions of the federal securities laws." At the time, Pardo told me that his previous problems with the securities regulators weren't "relevant to his viatical business."

So what's the viatical business? It's a fledgling industry that matches investors with people who are terminally ill and who own life insurance policies.

Investors buy the policies, usually paying 50 percent to 80 percent of the face value. The middlemen get a cut; a portion of the money is set aside for paying monthly insurance premiums; the rest goes to the dying person to help cover expenses.

When death occurs, the investor collects the policy's face value. The return on investment depends on how long the seller lived relative to how much the buyer paid.

Some investors are institutions, partnerships or wealthy people who buy whole policies themselves. Life Partners and its imitators, however, split individual policies into small units and sell by the piece.

To the SEC, that means Life Partners is selling investment securities. If so, Pardo would be subject to the securities laws, including the laws on disclosure.

Life Partners, however, believes that its viaticals aren't securities. It resisted the SEC and won its case in 1996 before the U.S. Court of Appeals for the District of Columbia. The court found that the investments don't meet all the tests that would bring them under the SEC.

The SEC is still trying. In April, the commission asked the U.S. District Court for the District of Columbia to let it file an amended complaint against Life Partners, based on what it says is new evidence.

Pardo says that the SEC lost its chance, and that all the evidence has been thoroughly aired. The court hasn't yet rendered its decision.

One thing the SEC wants Pardo to disclose is that, if you invest in viaticals, you might have to put up more money than you thought.

According to Life Partners' policy funding agreement, "purchasers will not incur costs of any type beyond the amount tendered as the policy purchase deposit."

But in fact, if the ill person lives longer than expected, investors will have to put up more money to keep the insurance policy in force. Otherwise, Life Partners tells them, they'll lose their share of the final payoff.

Pardo says that the funding agreement refers only to the policy's initial acquisition cost, not any subsequent costs. As he sees it, "every sophisticated investor" knows that premiums have to be paid for life insurance, "so we don't have to tell them."

Furthermore, he says, the payment might be only $30 or $50 a year, which he calls "below the level of materiality."

SEC attorney Leo Orenstein says he has documented cases where investors have had to pay $700 or $800. Pardo says that could be true for very large policies.

Pardo will get a lawyer's letter, saying he can't use my words in a way that seems to endorse his company. His preliminary reply:

"If it's improper, we'll take it off, but if it's in the public domain . . . we might keep it on there."

If you find my name on his Web site, remember: This isn't a company I'd do business with.

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