Qualified Settlement Funds: A Legal and Financial Analysis ...
Qualified Settlement Funds: A Legal and Financial Analysis ...
Qualified Settlement Funds: A Legal and Financial Analysis ...
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
<strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong>: A <strong>Legal</strong> <strong>and</strong> <strong>Financial</strong> <strong>Analysis</strong> Showing Why They<br />
Can Be So Beneficial To You <strong>and</strong> Your Client<br />
Peter H. Wayne IV <strong>and</strong> Matthew L. Garretson<br />
© Civic Research Institute, Inc.<br />
(reprinted with permission)
<strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong>:<br />
A <strong>Legal</strong> <strong>and</strong> <strong>Financial</strong> <strong>Analysis</strong><br />
Showing Why They Can Be So<br />
Beneficial To You <strong>and</strong> Your Client<br />
Counsel should provide himself or herself with the opportunity to focus on the areas of law the client hired him or<br />
her to advocate <strong>and</strong> let the QSF serve as a safety net.<br />
PETER H. WAYNE IV AND MATTHEW L. GARRETSON<br />
The richest person in the Entertainment Industry,<br />
David Geffen, once said, “It’s the perfect<br />
definition of a settlement – both parties<br />
didn’t get what they wanted.” Fortunately, <strong>Qualified</strong><br />
<strong>Settlement</strong> <strong>Funds</strong> (“QSFs”) allow a claimant or<br />
claimants involved in a legal dispute to avoid such a<br />
result. QSFs were established to enable claimants <strong>and</strong><br />
defendants to determine how <strong>and</strong> when settlement<br />
funds are taxed <strong>and</strong> deductions obtained. Further,<br />
they are a valuable settlement tool whereby claimants<br />
can address critical settlement-related issues<br />
without the stress of settlement negotiations, because<br />
they release defendants from alleged tort (or other)<br />
liability through the doctrine of novation. QSFs,<br />
therefore, are both a useful settlement tool <strong>and</strong><br />
Matthew L. Garretson is the founding partner of The<br />
Garretson Law Firm which provides mass tort/class<br />
action settlement allocation <strong>and</strong> fund administration<br />
services. The firm also h<strong>and</strong>les Medicare / Medicaid<br />
reimbursement claims, government benefit preservation<br />
strategies, <strong>and</strong> probate administration for individual<br />
<strong>and</strong> mass tort plaintiffs. Mr. Garretson received his BA<br />
from Yale University <strong>and</strong> his law degree at Kentucky’s<br />
Salmon P. Chase College of Law <strong>and</strong> has served<br />
as the special master or administrator of settlement<br />
funds throughout the country. His role in numerous<br />
high profile church-related sexual abuse <strong>and</strong> civil<br />
rights settlements (including the historic Cincinnati<br />
police brutality/racial profiling settlement) led to his<br />
selection by Lawyers Weekly as 1 of 5 “Lawyers of<br />
asset providing unique tax benefits to claimants <strong>and</strong><br />
defendants alike.<br />
LEGISLATIVE HISTORY<br />
The framework for the QSF was created by Congress<br />
in 1986 when Tax Reform Act 1 added Section 468B<br />
to the Internal Revenue Code.<br />
Section 468B regulates the establishment <strong>and</strong><br />
administration of Designated <strong>Settlement</strong> <strong>Funds</strong> or<br />
1<br />
PL 99-514.<br />
the Year” in Ohio for 2003. He was nominated by his<br />
peers <strong>and</strong> selected as an Ohio Super Lawyer – Rising<br />
Star in 2005 <strong>and</strong> 2006. His work was featured in the<br />
LA Times in January of 2005. Peter H. Wayne, IV<br />
earned his undergrad degree in Finance from Miami<br />
University in Ohio <strong>and</strong> his JD at the Salmon P. Chase<br />
College of Law. While in Law School, Peter worked<br />
for the Garretson Law Firm, LLC in Cincinnati, Ohio<br />
managing the <strong>Qualified</strong> <strong>Settlement</strong> Fund Administration<br />
practice <strong>and</strong> providing counsel in tax advisory,<br />
government benefit preservation <strong>and</strong> health lien<br />
resolution. Following his graduation he returned home<br />
to Louisville, Kentucky to open a regional office for the<br />
Garretson Law Firm, LLC, enabling the firm to better<br />
serve their Kentucky <strong>and</strong> Southeastern clients. Mr.<br />
Wayne is also a Kentucky-licensed settlement planning<br />
consultant. The Garretsonfirm web address is www.<br />
garretsonfirm.com.<br />
November/December 2007 Vol 21 / No 2 QUALIFIED SETTLEMENT FUNDS: A LEGAL AND FINANCIAL ANALYSIS 71<br />
tfi-2102-s2-Garretson.indd Sec2:71<br />
10/14/2007 1:36:41 PM
“DSFs.” 2 Not only did DSFs arise to assist in class<br />
action lawsuits, but also to allow insured <strong>and</strong> selfinsured<br />
defendants to determine when their settlement<br />
payments are deducted. 3 Once DSFs were available,<br />
it was only a matter of time before their use was<br />
extended. That extension came from 1992 Treasury<br />
Regulations, 4 which became effective on January<br />
1, 1993. 5 Those Treasury Regulations set forth the<br />
following three requirements for a settlement fund,<br />
account or trust to be treated as a QSF: 6 A fund,<br />
account, or trust satisfies the requirements of Reg.<br />
1.468B-1(c) if:<br />
QSFs were established to enable claimants <strong>and</strong><br />
defendants to determine how <strong>and</strong> when<br />
settlement funds are taxed <strong>and</strong> deductions obtained.<br />
• It is established pursuant to an order of, or be<br />
approved by, the United States, any state (including<br />
the District of Columbia), territory, possession,<br />
or political subdivision thereof, or any<br />
agency or instrumentality (including a court of<br />
law) of any of the foregoing <strong>and</strong> is subject to<br />
the continuing jurisdiction of that governmental<br />
authority;<br />
• It is established to resolve or satisfy one or<br />
more contested or uncontested claims that have<br />
resulted or may result from an event (or related<br />
series of events) that has occurred <strong>and</strong> that has<br />
given rise to at least one claim asserting liability<br />
(I) Under the Comprehensive Environmental<br />
2<br />
26 USC 468B: A DSF is defined as (A) which is established<br />
pursuant to a court order <strong>and</strong> which extinguishes completely<br />
the tort liability of the defendant or the defendant’s insurance<br />
carrier to the plaintiff, (B) with respect to which no amounts<br />
may be transferred other than in the form of qualified payments,<br />
(C) which is administered by persons a majority of whom are<br />
independent of the defendant or the defendant’s insurance carrier,<br />
(D) which is established for the principal purpose of resolving <strong>and</strong><br />
satisfying present <strong>and</strong> future claims against the defendant (or any<br />
related person or formerly related person) arising out of personal<br />
injury, death, or property damage, (E) under the terms of which<br />
the defendant (or any related person) may not hold any beneficial<br />
interest in the income or corpus of the fund, <strong>and</strong> (F) with respect<br />
to which an election is made by the defendant.<br />
3<br />
John J. Campbell, “468b <strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong> in Single<br />
Claimant Plaintiff Physical Injury <strong>Settlement</strong>s,” The Medicare<br />
Set Aside Bulletin, Issue 18 (August 1, 1005). (QSFs came about<br />
to help in class action lawsuits where the individual shares of a<br />
settlement to various class members are not determined <strong>and</strong> to<br />
allow insured <strong>and</strong> self-insureds to deduct their settlement payments<br />
when made as opposed to when a settlement trust trustee<br />
disburses the funds).<br />
4<br />
Reg. 1.468B-1.<br />
5<br />
See Restatement (Second) of Contracts, section 280 (1981).<br />
6<br />
Reg. 1.468B-1.<br />
Response, Compensation <strong>and</strong> Liability Act of<br />
1980 (hereinafter referred to as CERCLA), as<br />
amended, 42 U.S.C. 9601 et seq.; or (II) Arising<br />
out of a tort, breach of contract, or violation of<br />
law, or (III) Designated by the Commissioner in a<br />
revenue ruling or revenue procedure; <strong>and</strong><br />
• The fund, account, or trust is a trust under applicable<br />
state law, or its assets are otherwise segregated<br />
from other assets of the transferor (<strong>and</strong><br />
related parties). 7<br />
It is no coincidence that the requirements for a QSF<br />
<strong>and</strong> DSF are so similar. The requirements for a QSF,<br />
although not specifically mentioned in Section 468B,<br />
clearly fall within the realm of a DSF. 8 As mentioned<br />
above, the impetus behind the QSF was to merely<br />
extend on the DSF; the only difference being that<br />
a QSF allows for a broader range of claims to be<br />
considered, including environmental <strong>and</strong> breach of<br />
contract claims. 9 The legislature simply wanted the<br />
benefit of the DSF to reach a larger audience.<br />
WHY A QSF?<br />
QSFs are useful tools that ensure proper client<br />
counseling can occur before, during, <strong>and</strong> even after<br />
settlement. QSFs uniquely introduce a degree of<br />
breathing space to the settlement process that is made<br />
valuable by:<br />
1. Allocating the settlement proceeds among the<br />
claimants;<br />
2. Verifying <strong>and</strong> negotiating liens <strong>and</strong> / or subrogation<br />
claims;<br />
3. Determining the appropriate role <strong>and</strong> underwriting<br />
10 of a structured settlement annuity;<br />
7<br />
Reg. 1.468B-1(c).<br />
8<br />
See U.S. v. Brown, 334 F. 3d 1197 (10th Cir. 2003) <strong>and</strong> John<br />
J. Campbell, “468b <strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong> in Single Claimant<br />
Plaintiff Physical Injury <strong>Settlement</strong>s,” The Medicare Set Aside<br />
Bulletin, Issue 18 (August 1, 2005).<br />
9<br />
Don McNay <strong>and</strong> William Garmer, “Is a qualified settlement<br />
fund right for your client?” Trial Magazine (January 2002.<br />
10<br />
Unless provided with evidence to the contrary, annuity<br />
companies assume a claimant has a normal medical condition<br />
<strong>and</strong>, therefore, a normal life expectancy. As a result, published<br />
annuity rates are by sex <strong>and</strong> age only. However, subst<strong>and</strong>ard<br />
(i.e., lower) annuity rates are available if the annuity company<br />
is provided with evidence that the claimant’s life expectancy is<br />
less than normal. Many serious injuries can reduce a claimant’s<br />
life expectancy. However, it is not necessary that the reduced<br />
life expectancy be caused by the injury that is the subject of the<br />
claim. Any claimant, therefore, may qualify for a subst<strong>and</strong>ard<br />
rate. Physicians who are employed for that purpose by the annuity<br />
companies make the evaluation of a claimant’s life expectancy.<br />
Their evaluation is based on a review of medical information<br />
provided to them.<br />
72 JOURNAL OF TAXATION AND REGULATION OF FINANCIAL INSTITUTIONS November/December 2007 Vol 21 / No 2<br />
tfi-2102-s2-Garretson.indd Sec2:72<br />
10/14/2007 1:36:44 PM
4. Evaluating the need to preserve governmental<br />
entitlement benefits (e.g. the need for the establishment<br />
of a special needs trust); <strong>and</strong><br />
5. Enabling a host of other decisions to be made<br />
without the pressure associated with the litigation<br />
itself.<br />
This breathing space is made available because, as<br />
mentioned above, while temporarily parked in the<br />
QSF, the assets are not constructively received by or<br />
an economic benefit to a claimant.<br />
Furthermore, given the valid concerns that lawyers<br />
have about adding unreasonable delay or expense to<br />
the transfer of settlement funds to clients, QSFs may<br />
be created <strong>and</strong> administered to:<br />
1. Facilitate placement of a structured settlement<br />
annuity without requiring the signature / participation<br />
of the defense; 11<br />
2. Resolve <strong>and</strong> satisfy any <strong>and</strong> all private companies<br />
or government agencies that may have a<br />
reimbursement right or lien against a claimant’s<br />
settlement amount.<br />
3. “Fast track” the payment of settlement proceeds<br />
to those clients who determine quickly that they<br />
are not interested in any form-of-settlement<br />
options besides a lump sum award; 12<br />
4. Minimize expenses to settlement; 13<br />
5. Make monies available to settle claims <strong>and</strong> while<br />
not being subject to the defendant’s creditors;<br />
11<br />
Section 130(c) “qualified assignment means any assignment<br />
to make periodic payments as damages, or as compensation under<br />
any workmen’s compensation act, on account of personal injury or<br />
sickness if the assignee assumes such liability from a person who is<br />
a party to the suit or agreement, or the workmen’s compensation<br />
claim <strong>and</strong> if the other factors of Section130(c) are met. Rev. Proc.<br />
93-94, 1993-2 CB 470, provides the rules by which a QSF will be<br />
considered “a party to the suit or agreement, or the workmen’s<br />
compensation claim” for purposes of Section 130(c).<br />
12<br />
If the “form-of-settlement” component of the clientcounseling<br />
model is employed early, lawyers should be able to<br />
identify these clients prior to settlement <strong>and</strong> shape the QSF motion<br />
practice to allow the QSF Administrator to transfer funds to these<br />
“fast track” clients as soon as the defendant tenders the settlement<br />
proceeds to the QSF.<br />
13<br />
For instance, if the administer is appropriately licensed, his<br />
or her fee might be offset by (1) a portion of the st<strong>and</strong>ard money<br />
management fees charged by the financial institution at which the<br />
funds are on deposit; <strong>and</strong> /or (2) a potion of the interest earned or<br />
growth on the proceeds while they are invested in the QSF fund -<br />
This is similar to most escrow arrangements wherein interest is not<br />
applied to the fund corpus due to the higher cost of administration;<br />
<strong>and</strong> / or a portion of the structured settlement commission payable<br />
to a broker when certain clients chose to structure all or part of<br />
their settlement award. Such cost-saving arrangements should be<br />
disclosed to the client <strong>and</strong> / or approved by the court as part of<br />
the 468B fund pleadings.<br />
6. Allow monies to earn interest for the benefit of<br />
the plaintiff (unlike a typical Interest on Lawyers’<br />
Trust Accounts (“IOLTA” account).<br />
QSFs also permit defendants to disengage from litigation<br />
<strong>and</strong> qualify for economic performance. Payments<br />
made by defendants are in exchange for a release from<br />
the present claimants <strong>and</strong> possible future claimants.<br />
Once a payment is made to a QSF, the litigation<br />
process will cease for a defendant, thereby reducing<br />
Payments made by defendants are in exchange<br />
for a release from the present claimants <strong>and</strong><br />
possible future claimants.<br />
legal costs <strong>and</strong> freeing the resources being used in such<br />
litigation. Further, QSFs permit defendants to deduct<br />
their payments to a QSF as if the defendants had paid<br />
claimants directly or paid into an irrevocable <strong>and</strong><br />
unconditional fund established to receive payments<br />
for the benefit of claimants, thereby permitting a current<br />
income tax deduction if available.<br />
The ability of defendants to be completely released<br />
from present <strong>and</strong> future claimants, despite a cause of<br />
action remaining alive, is permitted through the legal<br />
doctrine of novation (party substitution), which has<br />
the added affect of adding a new party as substitute<br />
obligor who was not a party to the action (the new<br />
party is always the QSF Administrator), <strong>and</strong> discharging<br />
the original defendants by agreement of all the<br />
parties, completely extinguishing any alleged liability<br />
of defendants. 14<br />
A DEEPER BENEFIT – LIEN RESOLUTION<br />
As mentioned above, QSFs introduce an amount of<br />
breathing space after a settlement value is determined<br />
that is not otherwise available. This breathing space<br />
will allow the lawyer to concentrate on any potential<br />
liens that may exist against a client’s settlement.<br />
Why is this important? In torts, resolution of health<br />
care liens represents a great deal more than merely<br />
an administrative function. Personal injury lawyers<br />
traditionally develop expertise in litigation <strong>and</strong> tort<br />
law relevant to establishing the plaintiff’s personal<br />
injury claim. The law <strong>and</strong> legal processes relevant to<br />
14<br />
If the “form-of-settlement” component of the client-counseling<br />
model is employed early, lawyers should be able to identify<br />
these clients prior to settlement <strong>and</strong> shape the 468B motion practice<br />
to allow the 468B Administrator to transfer funds to these “fast<br />
track” clients as soon as the defendant tenders the settlement<br />
proceeds to the 468B.<br />
November/December 2007 Vol 21 / No 2 QUALIFIED SETTLEMENT FUNDS: A LEGAL AND FINANCIAL ANALYSIS 73<br />
tfi-2102-s2-Garretson.indd Sec2:73<br />
10/14/2007 1:36:45 PM
vindicating personal injury claims are distinct from<br />
developing law <strong>and</strong> legal processes relevant to evaluating<br />
a health care plan’s right of recovery <strong>and</strong> resolving<br />
the plan’s reimbursement claims <strong>and</strong> liens. Further, as<br />
For certain clients the lien resolution strategy<br />
may arguably be as important a factor in the<br />
client’s final “net” (in pocket) recovery as any<br />
other aspect of proving <strong>and</strong> litigating the case.<br />
seen in recent settlements, for certain clients the lien<br />
resolution strategy may arguably be as important a<br />
factor in the client’s final “net” (in pocket) recovery<br />
as any other aspect of proving <strong>and</strong> litigating the case.<br />
Equally important, the process also must ensure that<br />
plaintiffs’ future benefits will not be denied as a direct<br />
result of improperly considering the agencies’ interest<br />
in any settlement.<br />
The “broad sweep” of expenditures that Medicare,<br />
Medicaid, private health insurers, <strong>and</strong> the<br />
Department of Veterans Affairs may attempt to<br />
recover must be vigorously evaluated <strong>and</strong> audited.<br />
For instance, in light of recent changes in lien-related<br />
laws <strong>and</strong> regulations, it is imperative to scrutinize<br />
carefully the nature of the damages that were<br />
originally claimed by plaintiffs; the objective compensation<br />
criteria utilized to allocate the aggregate<br />
settlement proceeds; as well as the language in the<br />
release to determine what the health care agencies<br />
may be entitled to recover.<br />
By establishing a QSF, counsel is able to avoid<br />
tackling both the client’s tort action <strong>and</strong> subrogation<br />
action simultaneously; settle the underlying tort<br />
case, remove the defendant from the equation, <strong>and</strong><br />
then allow counsel to focus on any subrogation issues<br />
that might exist. While it is likely still advisable to<br />
hire outside counsel to resolve the liens that relate to<br />
a settlement, a QSF allows counsel to take the time<br />
necessary to locate a reputable firm to perform this<br />
service <strong>and</strong> furthermore, it allows that firm the peace<br />
of mind in knowing that they possess the time necessary<br />
to adequately consider the client’s situation <strong>and</strong><br />
how those liens may affect their final recovery. Lastly,<br />
it is important to note that a QSF not only permits<br />
the lien resolution process to proceed with no further<br />
involvement from a defendant, but also takes the<br />
pressure off of counsel <strong>and</strong> his or her client to quickly<br />
determine how their receipt of the settlement proceeds<br />
will affect their government benefits. Time is likely<br />
an attorney’s most valuable tool when dealing with<br />
government benefits preservation <strong>and</strong> lien resolution.<br />
Thus, a QSF is exactly that – TIME.<br />
ESTABLISHING A QSF<br />
In order to establish a QSF, counsel must ensure that<br />
all of the requirements set forth in Reg. 1.468B-1<br />
are met. The most common way a QSF is established<br />
is through court order. Pursuant to Reg. 1.468B-<br />
1(c)(1), courts possess the authority to sign an order<br />
creating a QSF. Further, in United States v. Brown,<br />
the Tenth Circuit Court of Appeals stated that a<br />
“[<strong>Qualified</strong> <strong>Settlement</strong>] Fund satisfies subparagraph<br />
(1) of § 1.468B-1(c) if it is established pursuant to<br />
an order of … a court of law.” 15 Because a Court has<br />
jurisdiction over an underlying litigation, it also has<br />
jurisdiction over the establishment of a QSF which<br />
is created to resolve the settlement matters relating<br />
to the legal dispute.<br />
The second prong of Reg. 1.468B-1 is satisfied so<br />
long as the QSF is established to resolve a claim arising<br />
Under CERCLA or arising out of a tort, breach of contract,<br />
or violation of law, or designated [an acceptable<br />
claim] by the IRS Commissioner in a revenue ruling<br />
or revenue procedure. It is important to note that a<br />
QSF may not be established to resolve a claim arising<br />
under (1) a worker’s compensation act or self-insured<br />
plan; (2) an obligation to refund the purchase price<br />
of, or to repair or replace, products regularly sold in<br />
the ordinary course of the taxpayer’s trade or business;<br />
(3) an obligation of the taxpayer to make payments to<br />
its general trade creditors or debt holders that relates<br />
to a bankruptcy case, or a work-out; or (4) a designation<br />
[an unacceptable claim] by the commissioner in<br />
a revenue ruling or a revenue procedure. 16 The third<br />
prong of the QSF establishment requirements dem<strong>and</strong><br />
that the QSF be in conformity with the situs state’s laws<br />
regulating the formulation of trusts or that its assets be<br />
segregated from the other assets of the transferor.<br />
Lastly, while it is typical for all of these elements<br />
to be present simultaneously, they need not be. For<br />
example, the treasury regulations provide that if there<br />
is a fund that meets the criteria for both the second<br />
<strong>and</strong> third prongs of Reg. 1.468B-1, but has yet to<br />
obtain an order authorizing its establishment, the<br />
transferor <strong>and</strong> the settlement fund administrator can<br />
make an “election back” for the fund to be a QSF<br />
upon the later of (1) the date the requisite purpose<br />
<strong>and</strong> asset segregation or trust tests have been met or<br />
(2) January 1 of the calendar year in which requirements<br />
1, 2 <strong>and</strong> 3 are met in totality. 17<br />
Procedural Process. The claimant or defendant moves<br />
for the entry of an order by the court to (a) establish<br />
15<br />
U.S. v. Brown, 348 F.3d 1200 (2003).<br />
16<br />
Reg. 1.468B-1(g).<br />
17<br />
Reg. 1.468B-1(j).<br />
74 JOURNAL OF TAXATION AND REGULATION OF FINANCIAL INSTITUTIONS November/December 2007 Vol 21 / No 2<br />
tfi-2102-s2-Garretson.indd Sec2:74<br />
10/14/2007 1:36:45 PM
a QSF <strong>and</strong> (b) completely release any liability of the<br />
defendant <strong>and</strong> its liability insurer once the insurer<br />
pays the agreed-upon settlement amount in the QSF’s<br />
account. The motion is to stipulate that the claimants<br />
<strong>and</strong> the Fund Administrator will agree to the terms<br />
of the Fund Administrator’s allocation of the amount<br />
placed in the QSF through the execution of fund agreements<br />
<strong>and</strong> releases 18 . The motion is to further specify<br />
that no settlement proceeds are to be set apart for any<br />
individual claimant, or otherwise made available so<br />
that he or she may draw upon or otherwise control<br />
said settlement proceeds.<br />
Next, the motion should authorize the fund administrator<br />
to distribute immediately all attorney fees to<br />
counsel for claimants consistent with existing contingency<br />
fee contracts, 19 <strong>and</strong> state that further court<br />
approval for such fee distribution shall only be necessary<br />
to the extent required by law (i.e., for minors or<br />
incompetents). The motion should also state that as<br />
soon as possible after the entry of the order, the fund<br />
administrator will file with the court a declaration of<br />
supporting materials setting forth:<br />
1. The release <strong>and</strong> indemnity agreement, completely<br />
extinguishing the defendant’s liability;<br />
2. The claimants’ agreement for allocation <strong>and</strong><br />
form of the settlement; <strong>and</strong><br />
3. The agreement <strong>and</strong> release between the QSF <strong>and</strong><br />
individual claimants (“fund agreements”).<br />
It is important that the claimant or defendant also<br />
move for the entry of an order by the court (a) appoint<br />
a QSF fund administrator, 20 <strong>and</strong> (b) establish terms<br />
of the QSF. This motion should be simultaneously<br />
submitted with the entry of an order.<br />
Next, the claimant or defendant moves for the<br />
entry of an order by the court (a) to approve settlement<br />
with the defendant, <strong>and</strong> (b) for dismissal with<br />
prejudice of the defendant(s). Once the court executes<br />
this order the defendant’s only remaining requirement<br />
18<br />
The fund agreements <strong>and</strong> releases must state that, as part<br />
of the release <strong>and</strong> indemnity agreement, the defendant paid <strong>and</strong><br />
clients consented to certain sums in full <strong>and</strong> final settlement of all<br />
claims that the claimants had or may have against the defendant.<br />
In addition, the agreement shall specify claimants enter into the<br />
fund agreements <strong>and</strong> releases in order to provide payments in full<br />
settlement <strong>and</strong> discharge of all claims against the QSF that are or<br />
might have been subject to the original lawsuit.<br />
19<br />
The fund administrator distributes attorney’s fees <strong>and</strong> costs<br />
upon receiving an affidavit by the attorney <strong>and</strong> finding it to be<br />
in compliance with the contingent fee agreement relating to the<br />
claims for which the settlement proceeds are being received by<br />
the Fund.<br />
20<br />
The Fund administrator must submit themselves to the<br />
jurisdiction of the court for purposes of proceedings relating to<br />
this appointment.<br />
is to provide the fund administrator with the information<br />
statement set forth in Reg. 1.468B-3(e)(2). This<br />
statement must provide for the amount transferred<br />
to the QSF, including identifying information for the<br />
transferor <strong>and</strong> the QSF (name, address, <strong>and</strong> taxpayer<br />
identification number), the date of transfer, <strong>and</strong> the<br />
amount transferred. The statement must be provided<br />
by February 15 of the year following the date of this<br />
order.<br />
The most common way a QSF is established is<br />
through court order<br />
Lastly, the fund administrator is to petition the<br />
court for (a) approval of distribution to the plaintiffs,<br />
<strong>and</strong> (b) certification of fund agreements. The petition<br />
states that the fund administrator certifies that fund<br />
agreements <strong>and</strong> releases were reached for all claims<br />
of which the Fund Administrator possesses actual<br />
knowledge, <strong>and</strong> requests the court to enter its order<br />
authorizing disbursement of the funds pursuant to<br />
those fund agreements <strong>and</strong> releases.<br />
WHAT THE SETTLEMENT AGREEMENT<br />
MUST SAY<br />
The importance of the language contained in a settlement<br />
agreement cannot be overstated. A QSF allows<br />
for the time necessary to resolve all liens for injuryrelated<br />
payments made by the both private companies<br />
<strong>and</strong> governmental agencies as well the time necessary<br />
to choose the appropriate income stream to both<br />
meet a claimant’s needs <strong>and</strong> protect their government<br />
benefits. A QSF can be rendered useless if the<br />
language in a settlement agreement can be construed<br />
as bestowing an economic benefit on or constructive<br />
receipt to the claimant. Such a construction would<br />
eliminate the ability to capitalize on the tax benefits<br />
of a structured settlement <strong>and</strong> jeopardize a claimant’s<br />
government benefits.<br />
In order to ensure that the client avoids such pitfalls,<br />
it is important that the settlement agreement<br />
recite the following:<br />
This Release is given in exchange for a $100,000<br />
payment by the Releasees into the ___Jon Doe___<br />
<strong>Qualified</strong> <strong>Settlement</strong> Fund. The receipt for which<br />
will be acknowledged, <strong>and</strong> the funds distributed<br />
according to the terms <strong>and</strong> conditions of the Order<br />
establishing the ___Doe___ <strong>Qualified</strong> <strong>Settlement</strong> Fund<br />
<strong>and</strong> Appointing the Fund Administrator issued by<br />
the Probate Court of Alpha County (State of Beta).<br />
November/December 2007 Vol 21 / No 2 QUALIFIED SETTLEMENT FUNDS: A LEGAL AND FINANCIAL ANALYSIS 75<br />
tfi-2102-s2-Garretson.indd Sec2:75<br />
10/14/2007 1:36:45 PM
Releasees further agree to enter into Fund Agreements<br />
with the Fund Administrator, in which they accept the<br />
Fund Administrator’s allocation of their derivative,<br />
separate or other claims.<br />
Further, <strong>and</strong> equally as important, is that the<br />
Defense or their insurer make their settlement payment<br />
made payable to “___Alpha Beta___ as Fund<br />
Administrator of the ___Doe___ <strong>Qualified</strong> <strong>Settlement</strong><br />
Fund.” Making the check made payable to the<br />
settlement administrator as administrator of the QSF<br />
eliminates a potential argument from the IRS that<br />
the receipt of funds by the Fund Administrator was<br />
constructive receipt by or an economic benefit to<br />
the claimant. By confirming that both the settlement<br />
agreement <strong>and</strong> the settlement payment language mirror<br />
the above, counsel is protecting the client from<br />
any subsequent claim of taxation by the IRS.<br />
MAKINGS OF A FUND ADMINISTRATOR<br />
The claimant’s counsel should qualify potential fund<br />
administrators with the same st<strong>and</strong>ards that they use<br />
for other experts to whom they turn to for assistance<br />
in resolving client matters (i.e., physicians, investigators,<br />
expert witnesses, etc.). 21 For instance, does the<br />
c<strong>and</strong>idate fully comprehend to following?<br />
Motion Practice. Has he or she drafted such documents<br />
in the past? Has he or she served as a fund<br />
administrator before?<br />
Allocation Issues (conflict/tax/public benefits/<br />
liens). Does he or she underst<strong>and</strong> how to avoid the<br />
multiple plaintiff conflicts consistent with the ABA<br />
Model Rules of Professional Conduct for lawyers?<br />
Does he or she underst<strong>and</strong> how to allocated proceeds<br />
between wrongful death <strong>and</strong> survivorship in order<br />
to minimize tax implications? Does he or she underst<strong>and</strong><br />
the client’s public benefits? (I.e., is it helpful or<br />
harmful to allocated proceeds to the derivative claim<br />
of the parent of an injured child on Medicaid?) Does<br />
he or she underst<strong>and</strong> how to allocated an individual<br />
plaintiff’s damages amount pain <strong>and</strong> suffering, medicals,<br />
wage loss etc.<br />
Tax Filing Procedure . Does he or she fully underst<strong>and</strong><br />
the tax filing <strong>and</strong> accounting requirements:<br />
obtaining W9 forms from all attorneys that are to be<br />
paid from the QSF; obtaining the taxpayer ID number<br />
for the QSF fund; Preparing quarterly estimated<br />
tax payments for the QSF; maintaining accounting<br />
records necessary to complete tax return for the<br />
QSF; preparing Form 1099’s for all attorneys (<strong>and</strong><br />
21<br />
Compare Smith v. Farber, 704 A.2d 569 (N.J. Super. App.<br />
Div. 1997) <strong>and</strong> Swann v. Waldman, 465 A.2d 844 (D.C. 1983) <strong>and</strong><br />
Geller v. Harris, 685 NYS2d 734 (N.Y. App. Div. 1999).<br />
claimants if required); preparing the annual tax return<br />
for <strong>Qualified</strong> <strong>Settlement</strong> Fund; <strong>and</strong> final accounting<br />
<strong>and</strong> affidavit?<br />
TAX BENEFITS<br />
The Defendant. As previously mentioned, QSFs arose<br />
largely as a result of insured <strong>and</strong> self-insured defendants<br />
wanting to deduct their settlement payments in<br />
the year in which a payment is made to a QSF, rather<br />
than the year a settlement administrator decides to disburse<br />
those funds. A defendant is permitted to deduct<br />
the transfer of cash into a QSF without recognizing a<br />
gain or a loss in the year in which the payment into<br />
the QSF is made. However, if a defendant decides<br />
to transfer property, the defendant must account for<br />
the gain or loss on the transfer equaling the difference<br />
between the fair market value of the property<br />
<strong>and</strong> the taxpayer’s income tax basis in the property. 22<br />
In such a scenario, the defendant will be permitted a<br />
deduction for the transfer into the QSF equal to the<br />
fair market value of the QSF, but certain types of nonpublicly<br />
traded securities or partnership interests must<br />
be accompanied with a “qualified appraisal.” 23<br />
The Claimant. Often the most important aspect of a<br />
QSF is how the settlement proceeds held in a QSF<br />
are recognized by a claimant or claimants from a tax<br />
st<strong>and</strong>point. If the QSF <strong>and</strong> settlement agreement are<br />
drafted properly <strong>and</strong> the settlement payment is made<br />
payable to the Fund, then a claimant need not recognize<br />
a taxable event until a payment is received from<br />
the QSF itself. Once a disbursement is made from the<br />
QSF to a claimant, the claimant will need to report its<br />
receipt to the IRS <strong>and</strong> will be taxed on its receipt as if<br />
the defendant had paid the claimant directly. Therefore,<br />
if the payment by the defendant into the QSF<br />
was in lieu of lost wages due to the claimant, then the<br />
QSF’s payment to the claimant must be recognized as<br />
wages <strong>and</strong> taxed accordingly. But, if the defendant’s<br />
payment into the QSF was as a result of personal<br />
injuries suffered by the claimant, the claimant could<br />
avail itself of Section 104(a)(2)’s personal injury<br />
tax exemption <strong>and</strong> possess the monies tax free. The<br />
essence behind a claimant’s ability to avoid recognizing<br />
22<br />
George W. Kuney, <strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong>: A Tool to<br />
Shelter Gains <strong>and</strong> Taxable Income with Payments on Account of<br />
Disputed Claims, 24 Calif. Bankr. J. No. 2, pgs. 137-144 (1998)<br />
Citing Treas. Reg. 1.468B-3(a)(1)<br />
23<br />
George W. Kuney, “<strong>Qualified</strong> <strong>Settlement</strong> <strong>Funds</strong>: A Tool to<br />
Shelter Gains <strong>and</strong> Taxable Income with Payments on Account of<br />
Disputed Claims,” 24 Calif. Bankr. J. No. 2, pgs. 137-144 (1998)<br />
citing Reg. 1.468B-3(b).<br />
76 JOURNAL OF TAXATION AND REGULATION OF FINANCIAL INSTITUTIONS November/December 2007 Vol 21 / No 2<br />
tfi-2102-s2-Garretson.indd Sec2:76<br />
10/14/2007 1:36:45 PM
a taxable event upon the defendant’s payment into the<br />
QSF is such payment’s failure to be neither constructive<br />
receipt, economic benefit, nor a cash equivalency.<br />
Constructive Receipt. Section451 provides that “the<br />
amount of any item of gross income shall be included<br />
in the gross income for the taxable year in which<br />
received by the taxpayer.” 24 Treasury Regulations help<br />
further refine the definition of constructive receipt<br />
by stating, “gains, profits, <strong>and</strong> income are received<br />
by the taxpayer are to be included in gross income<br />
from the taxable year in which they are actually or<br />
constructively received by the taxpayer.” 25 Further,<br />
the Treasury Regulations state, “income, although<br />
no actually reduced to taxpayer’s possession, is constructively<br />
received in the taxable year during which<br />
it is credited to this account, set apart for him, or<br />
otherwise made available so that he may draw upon<br />
it at any time, or so that he could have drawn upon<br />
it during the taxable year if notice of intention to<br />
withdraw had been given. 26 But, income is not constructively<br />
received if the taxpayer’s control is subject<br />
to substantial limitations or restrictions. 27<br />
While a defendant’s payment into a QSF in order to<br />
settle an existing lawsuit is a payment into a fund, it<br />
is not into such a trust or fund that allows the claimant<br />
the ability to draw upon the settlement monies<br />
at any time or withdraw funds by providing notice<br />
to the settlement administrator. The QSF is created<br />
to help fully settle claims that exist between the<br />
defendants <strong>and</strong> claimants. While the total settlement<br />
value is finalized upon the defendants’ payment into<br />
the QSF <strong>and</strong> subsequent release, the claimants’ claims<br />
are still alive <strong>and</strong> the portion that is to be disbursed<br />
to the claimants is yet to be determined. The fund<br />
administrator is to settle fully the existing claims with<br />
the approval of <strong>and</strong> upon the order of the court by<br />
entering into subsequent qualified settlement fund<br />
agreements <strong>and</strong> releases (the “Fund Agreements”)<br />
with persons or entities asserting those claims. Until<br />
such time that Fund Agreements are executed, no<br />
settlement proceeds are to be set apart for claimants,<br />
or otherwise made available so that they may draw<br />
upon or otherwise control said settlement proceeds.<br />
The substantial limitations placed on a claimants’<br />
receipt of settlement proceeds quashes the potential<br />
for constructive receipt to exist.<br />
Economic Benefit Doctrine. The economic benefit<br />
doctrine developed from case law <strong>and</strong> requires a<br />
determination that the actual receipt of property or<br />
the right to receive property in the future confers a<br />
24<br />
Section 451.<br />
25<br />
Reg. 1.451-1(a) (as amended in 1999).<br />
26<br />
Reg. 1.451-2(a) (as amended in 1979).<br />
27<br />
Id.<br />
current economic benefit on the recipient. Sproull<br />
became the seminal case on this doctrine <strong>and</strong> set<br />
forth the required elements, which are, as restated in<br />
Thomas v. U.S .:<br />
1. There must be some fund in which money or<br />
property is placed;<br />
2. The fund must be irrevocable <strong>and</strong> beyond the<br />
reach of the creditors of the party who transferred<br />
the funds to the escrow or trust; <strong>and</strong><br />
3. The beneficiary must have vested right to the<br />
money, with the receipt conditioned only on the<br />
passage of time. 28<br />
While a defendant’s payment into a QSF would satisfy<br />
both of the first two elements of the economic benefit<br />
doctrine, a QSF beneficiary (the claimant) would never<br />
satisfy the third element because claimants do not<br />
possess vested rights in the money that is placed into<br />
a QSF until the settlement administrator determines<br />
a claimants allocated portion of the settlement monies<br />
<strong>and</strong> enters into <strong>and</strong> executes with court approval<br />
a fund agreement with the claimants <strong>and</strong> disburses<br />
the cash from the QSF to them. All of these requirements<br />
st<strong>and</strong> in stark contrast to the economic benefit<br />
doctrine’s requirement that the claimant’s possession<br />
be conditioned solely on the passage of time.<br />
Cash Equivalency Doctrine . The cash equivalency<br />
doctrine is another common law doctrine that the IRS<br />
attempts to use on occasion to find future payments or<br />
rights to payments taxable in the year an agreement<br />
is made as opposed to the year in which the money<br />
is physically received. The doctrine is defined quite<br />
well in Cowden , 29 where the court said:<br />
If promise to pay of a solvent obligor is unconditional<br />
<strong>and</strong> assignable, not subject to set-offs, <strong>and</strong> is of a kind<br />
that is frequently transferred to lenders or investors at<br />
a discount not substantially greater than the generally<br />
prevailing premium for the use of money, such promise<br />
is the equivalent of cash <strong>and</strong> taxable in like manner<br />
as cash would have been taxable had it been received<br />
by the taxpayer rather than the obligation. 30<br />
A defendant’s payment of settlement monies into<br />
a QSF is neither unconditional nor assignable by the<br />
claimant. Further, the payment is subject set-offs as<br />
a result of potential third parties that may possess a<br />
subrogation interest in a claimants recovery. As mentioned<br />
previously, there are several steps that must be<br />
28<br />
Sproull, 16 TC 244, 247 (1951), aff’d. 194 F. 2d 541 (6th<br />
1952); Thomas v. U.S. 45 F. Supp. 2d. 618, 620 (1999), aff’d. 213<br />
F. 3d 927 (6th 2000).<br />
29<br />
289 F. 2d 20 (1961).<br />
30<br />
Id.<br />
November/December 2007 Vol 21 / No 2 QUALIFIED SETTLEMENT FUNDS: A LEGAL AND FINANCIAL ANALYSIS 77<br />
tfi-2102-s2-Garretson.indd Sec2:77<br />
10/14/2007 1:36:45 PM
accomplished before a claimant possesses any rights<br />
to the monies that are placed into a QSF <strong>and</strong> those<br />
very steps help to eliminate the potential application<br />
of the cash equivalency doctrine.<br />
Single Claimant QSF. There exists significant<br />
debate over whether a QSF is a viable settlement<br />
tool for a single claimant involved an in injurious<br />
incident where no other derivative action at law<br />
exists. The main arguments in opposition to the<br />
single claimant QSF are the same taxation doctrines<br />
that apply to multiple claimant QSFs – “economic<br />
benefit” <strong>and</strong> “constructive receipt.” Similar to above<br />
neither doctrine is triggered by a single claimant<br />
QSF.<br />
First, neither the definition above for economic<br />
benefit nor the IRS’ definition from PLR 200138006,<br />
“In order for a taxpayer to include an amount in<br />
income under this doctrine, the amount must be set<br />
aside irrevocably, for the taxpayer’s sole benefit,<br />
without restrictions or conditions based upon the<br />
occurrence of future events,” captures a claimant’s<br />
position with respect to a QSF. 31 The money that<br />
The QSF’s basis in property that is distributed or<br />
sold is the fair market value of the property on<br />
the date of its transfer to the fund.<br />
is placed in a QSF, as discussed above, is not set<br />
aside for the taxpayer’s sole benefit <strong>and</strong> possesses<br />
a multitude of conditions <strong>and</strong> restrictions that are<br />
based on future events. Second, the fact the a taxpayer/claimant<br />
must execute fund agreements with<br />
the Fund Administrator in order to receive his or<br />
her share of the QSF settlement proceeds st<strong>and</strong>s in<br />
direct contrast to the definition of constructive receipt<br />
regardless of whether the QSF involves a claimant or<br />
claimants. Third, in addition to the arguments that<br />
st<strong>and</strong> in opposition to either the economic benefit or<br />
constructive receipt doctrines, Rev. Rul. 93-94, the<br />
ruling by the IRS that provides the rules under which<br />
a QSF will be considered a “party to the suit or agreement”<br />
for the purposes of Section 130, continuously<br />
references singular “claimant” as opposed to the<br />
plural “claimants” throughout the ruling. It is hard<br />
to fathom that the IRS would repetitively reference<br />
the singular form of a word unless it intended to do<br />
so. In conclusion, a QSF is a settlement tool that can<br />
be utilized by either many claimants or a singular<br />
claimant involved in one of the aforementioned Reg.<br />
1.468B-1(c)(2) categories.<br />
31<br />
PLR 200138006 (May 7, 2001).<br />
The <strong>Qualified</strong> <strong>Settlement</strong> Fund. In order for a settlement<br />
administrator to properly administer a QSF, it<br />
is important that the administrator obtain an EIN<br />
number for the fund itself. 32 The most important<br />
administrative duties include making the necessary<br />
tax payments when due as well as withholding <strong>and</strong><br />
reporting the appropriate amount of money <strong>and</strong><br />
information. An administrator is obligated to make<br />
tax deposits at a federal depository using the Form<br />
8109(B), the Federal Tax Deposit Coupon, quarterly<br />
for tax estimates <strong>and</strong> on March 15th for the final tax<br />
return. A QSFs tax liability is determined by applying<br />
the maximum tax rate 33 to the QSF’s “modified gross<br />
income” for the given tax year. 34 Treasury Regulations<br />
describe a QSF’s “modified gross income” as gross<br />
income as described in Section 61 less the following<br />
exclusions <strong>and</strong> deductions: (1) amounts transferred<br />
to the qualified settlement fund by, or on behalf of, a<br />
transferor to resolve or satisfy a liability for which the<br />
fund is established <strong>and</strong> (2) administrative costs <strong>and</strong><br />
other incidental expenses incurred in connection with<br />
the operation of the qualified settlement fund that<br />
would be deductible under chapter 1 of the Internal<br />
Revenue Code in determining the taxable income of a<br />
corporation. Administrative costs <strong>and</strong> other incidental<br />
expenses include state <strong>and</strong> local taxes, legal, accounting,<br />
<strong>and</strong> actuarial fees relating to the operation of the<br />
qualified settlement fund, <strong>and</strong> expenses arising from<br />
the notification of claimants <strong>and</strong> the processing of<br />
their claims. 35 Further, a QSF’s gross income includes<br />
the gain or loss from the sale or distribution of property<br />
equal to the fair market value of the property on<br />
the date of distribution. The QSF’s basis in property<br />
that is distributed or sold is the fair market value of<br />
the property on the date of its transfer to the fund. 36<br />
It should be noted that QSFs are unable to deduct for<br />
payments made on behalf of claimants, such as attorney’s<br />
fees <strong>and</strong> costs awarded for obtaining a settlement<br />
or judgment or for the distribution or return of<br />
assets to the transferor.<br />
It is very important that a settlement administrator<br />
make a determination on the tax status of future<br />
QSF distributions near the beginning of the fund’s<br />
32<br />
Reg. 1.468B-2(k)(4).<br />
33<br />
The Economic Growth <strong>and</strong> Tax Relief Reconciliation Act<br />
of 2001, PL 107-16, implemented a staged tax decrease in the tax<br />
rates that began in 2001 <strong>and</strong> was accelerated by the Jobs Growth<br />
Tax Relief Reconciliation Act of 2003, PL 108-27. As a result of<br />
these acts the maximum tax rate to be applied to the gross income of<br />
QSFs is 35% until 2011 when it is set to go back up to 39.6%.<br />
34<br />
Reg. 1.468B-2(a).<br />
35<br />
Reg. 1.468B-2(b).<br />
36<br />
Jude P. Damasco <strong>and</strong> Todd F. Taggart, “Taxation <strong>and</strong> reporting<br />
of qualified settlement funds,” The Tax Adviser (1996 American<br />
Institute of Certified Public Accountants Inc.).<br />
78 JOURNAL OF TAXATION AND REGULATION OF FINANCIAL INSTITUTIONS November/December 2007 Vol 21 / No 2<br />
tfi-2102-s2-Garretson.indd Sec2:78<br />
10/14/2007 1:36:46 PM
existence. A QSF administrator must determine from<br />
the facts <strong>and</strong> circumstances giving rise to a QSF being<br />
established whether or not one or more of the transferors<br />
would have had to report a distribution via a<br />
Form 1099 or withhold any tax had the defendant<br />
made the distribution directly to the claimant. 37 A QSF<br />
must fulfill reporting <strong>and</strong> withholding obligations<br />
on distributions from the QSF as if the QSF was the<br />
original defendant. As a result of this obligation, it is<br />
always important that the settlement administrator<br />
require that the defendants provide to them the necessary<br />
information to make the appropriate withholding<br />
<strong>and</strong> reporting determinations. The failure of which<br />
to do so could prevent the settlement administrator<br />
from having the information necessary to meet their<br />
QSF obligations. Failing to report or withhold the<br />
right information or money may subject the QSF to<br />
large IRS penalties that the settlement administrator<br />
may not even become aware of until 36 months later. 38<br />
For example, failing to prepare <strong>and</strong> file a Form 1099,<br />
when one is required, may subject the fund to a penalty<br />
of at least $100 per document, which in the case<br />
of a large class action, where hundreds of 1099s may<br />
be necessary, is an overwhelming mistake. 39 Thus, it<br />
highly important that a QSF administrator pay close<br />
attention to both the tax requirements of a QSF <strong>and</strong><br />
those that would have applied had the defendant paid<br />
the claimant directly.<br />
37<br />
Id.<br />
38<br />
The IRS uses a st<strong>and</strong>ardized calendar to address EIN related<br />
issues.<br />
39<br />
Jude P. Damasco <strong>and</strong> Todd F. Taggart, “Taxation <strong>and</strong> reporting<br />
of qualified settlement funds,” The Tax Adviser (1996 American<br />
Institute of Certified Public Accountants Inc.).<br />
CONCLUSION<br />
In a world where the average individual believes the<br />
IRS is rarely on his or her side, QSFs are the exception.<br />
Regardless of whether or not you are an attorney for<br />
a class of claimants or a single injured claimant with<br />
derivatively injured spouse, parents, or chrildren,<br />
QSFs can be an excellent resource for an attorney’s<br />
practice. Resolving liens is a complicated <strong>and</strong> convoluted<br />
aspect of tort law <strong>and</strong> dem<strong>and</strong>s significant<br />
attention <strong>and</strong> the same can be said for government<br />
benefit preservation <strong>and</strong> advising a claimant about<br />
the tax ramifications of their settlement.<br />
It highly important that a QSF administrator pay<br />
close attention to both the tax requirements of<br />
a QSF <strong>and</strong> those that would have applied had the<br />
defendant paid the claimant directly.<br />
All of these aforementioned areas of law are often<br />
not a part of the general expertise of an attorney’s<br />
practice <strong>and</strong> this is only compounded during a lawsuit<br />
where a defendant is trying to avoid liability <strong>and</strong><br />
resolve their case as soon as possible. Because of this,<br />
it is advisable to become the tortoise <strong>and</strong> not the hare.<br />
Counsel should provide himself or herself with the<br />
opportunity to focus on the areas of law the client<br />
hired him or her to advocate <strong>and</strong> let the QSF serve<br />
as a safety net. The client that receives his settlement<br />
award first only to later lose government benefits or<br />
be subject to litigation as a result of an ERISA lien is<br />
far worse off than the client that receives their settlement<br />
award second, but free <strong>and</strong> clear of any further<br />
claim or litigation.<br />
■<br />
November/December 2007 Vol 21 / No 2 QUALIFIED SETTLEMENT FUNDS: A LEGAL AND FINANCIAL ANALYSIS 79<br />
tfi-2102-s2-Garretson.indd Sec2:79<br />
10/14/2007 1:36:46 PM