Suit: Annuity language intentionally misleading

David MoonBlog

The Securities and Exchange Commission (SEC) won’t like this next paragraph, but read the entire thing, not just the tantalizing “promises” in the first sentence.

If you hire me to manage your money, I promise to always outperform the market, never lose money and that you will never be fat. You just have to let me define the terms “the market,” “outperform,” “lose money” and “fat.” As the old lawyer joke reminds us, you can name any price you want in a transaction, as long as I get to define all of the terms.

Don’t email me or report me to the SEC. The previous paragraph was complete satire, not an offer to sell securities or services. But the satire loses any humor it might have when you realize that it is eerily similar to the marketing pitch for many investment products, including the periodically popular indexed annuity.

If the stock market weakness of the past three weeks continues throughout the year, expect a return of ads, mailers and free dinners touting indexed annuities.

An indexed annuity differs from a vanilla variable annuity in that it usually includes downside protection, combined with positive returns tied to some index – traditionally a well-known stock market index such as the S&P 500. This sounds almost like a miracle. “Never lose money and still earn stock market returns when the index goes up?”

Yes, but the trick is the definition of the terms “never,” “lose money,” “stock market returns” and “goes up.” And in a somewhat recent twist, patsies … I mean investors, must now also be especially wary of the way annuity companies define the word “index.”

To most investors, the term “stock market index” implies a widely followed index like the S&P 500 or maybe even the Dow Jones Industrial Average. Think again. Many annuity companies now create their own proprietary indexes to use with their annuity contracts. These non-standard, novel indexes always show outstanding hypothetical historical results, which don’t always occur in real life.

According to a recent class action, annuity promoter Security Benefits intentionally defined the terms of its indexed annuity so that it would purposefully produce near-zero returns, due to misrepresented and undisclosed features, risks and charges. One investor described in the suit earned exactly zero percent in the same five-year period that Security Benefits’ sales material touted a five-year “index return” of nearly 39 percent.

Maybe every claim in the lawsuit is a fabrication and Security Benefits will prevail. Regardless of the outcome, the lesson is clear. Words have meanings – and the definitions on page 125 of an investment contract are more important than the plain English ones found in the Webster Dictionary.

David Moon is president of Moon Capital Management. A version of this piece originally appeared in the USA TODAY NETWORK.