Secwrities/Antitrust Treatment of Charitable Gift Annuities: Richie v. American Council on Gift Annuities, Inc.

CRS Report for Congress
Received through the CRS Web
Securities/Antitrust Treatment of Charitable
GiftAnnuities: Richie v. American Council on Gift
Annuities, Inc.
Janice E. Rubin and Michael V. Seitzinger
Legislative Attorneys
American Law Division
Summary
A lawsuit challenged, on both securities and antitrust grounds, the right of charitable
organizations to issue so-called charitable annuities. Federal and state legislation to
protect the charities was enacted. However, the Fifth Circuit has recently declined to
review a district court's refusal to dismiss the case. The following Report briefly
summarizes the theory of the lawsuit, the federal and state legislation which was enacted,
and the recent decision by the Fifth Circuit.
Discussion
In 1988 a widow in Texas signed over assets to a religious foundation. The
arrangement between the widow and the charity was a relatively common one: the widow
was to receive from the charity a fixed amount of money at regularly scheduled times, and
at her death the charity was to receive a lump sum distribution. This type of arrangement
is often referred to as a charitable gift annuity.
Potential heirs of the widow brought suit in federal District Court in Wichita Falls,
Texas, alleging violations of federal securities and antitrust laws.¹ The claim of the
potential heirs that violations of federal securities laws occurred was based upon the

¹Civil Action No. 7-94CV-128-X (N.D. Tex.). In May, 1997 a Federal District Court judge
issued a partial summary judgment against the religious foundation, stating that it had violated state
law by issuing charitable gift annuities without being licensed as an insurance company. In
October, the judge agreed to expand the group of potential plaintiffs to include anyone who, from
1991 to the present, owned charitable gift annuities or related life income properties sold by the
defendants. (Richie v. American Council on Gift Annuities) This defendant group reportedly would
be comprised of more than 1500 charitable organizations, including the American Cancer Society,
the Boy Scouts of America, and the Salvation Army.
Congressional Research Service ˜ The Library of Congress

argument that, because charities commingled a number of trust funds in a pooled income
fund and because part of the funds' net earnings may be viewed as inuring to the benefit
of persons and individuals, the charities should have registered with the Securities and²
Exchange Commission (SEC) as required by the Investment Company Act of 1940 and
other federal securities laws.³
During the past twenty-three years, the SEC has addressed questions raised by⁴
charitable income funds. The SEC had provided no-action assurances that charitable
income funds could operate under certain circumstances without registering under the
various federal securities laws. Despite these assurances concerning a particular
transaction, a recipient could still have been liable to a private litigant who alleged that the
same transaction violated federal securities laws. It is for this reason and certain other
reasons, such as state securities registration requirements, that proponents of the bills
discussed below believed that statutory exemptions needed to be granted under the federal
securities laws for charitable income funds.
In the class-action lawsuit, the practice alleged to be violative of the antitrust laws as
price fixing was the use by numerous charitable organizations of the annuity "payout rates"
and actuarial tables provided by the American Council on Gift Annuities. Charities were
also alleged to have engaged in deceptive trade practices by promoting themselves as
"shrewd financial investors" who can offer optimum income options to "vulnerable" (the
word used by plaintiff's lawyer) donors.
The Supreme Court has stated on several occasions, beginning with the Court's
assertion of a "state action" exemption to the antitrust laws as a reason for not applying
them to the States, that the purpose of the antitrust laws generally, and the Sherman Act
particularly, has traditionally been to protect marketplace competition and commercial⁵
transactions from monopolistic or detrimental practices. In Parker v. Brown and
subsequent "state action" cases, the Court has made the distinction between private actions
pursued for commercial, competitive gain and governmental actions assumed to be in the
public interest.⁶ Charities (nonprofits which are generally tax-exempt organizations) assert
that since their activities are noncommercial they should not be subject to the operation
of the antitrust laws. In addition, it should be noted that the defendant charities are not
competitors of the individuals they are alleged to have harmed.

²15 U.S.C. §§ 80a-1 et seq.
³These other laws include the Securities Act of 1933 (15 U.S.C. §§77a et seq.) and the
Securities Exchange Act of 1934 (15 U.S.C. §§78a et seq.).
⁴See, e.g., Investment Company Release No. 11016 (Jan. 10, 1980).
⁵Parker v. Brown, 317 U.S. 341 (1943).
⁶Parker, supra, note 5, is the decision in which the Court first enunciated the antitrust "state
action" doctrine which has been repeatedly expanded over the past 50 years: "That [the] purpose
[of the Sherman Act] was to suppress combinations to restrain competition and attempts to
monopolize by individuals and corporations, abundantly appears from its legislative history." 317
U.S. at 351 (emphasis added). See, also, City of Lafayette v. Louisiana Power & Light Company,

435 U.S. 389 (1978), and subsequent "state action" cases.

Many commentators and jurists agree with that argument, although they recognize
the question surrounding the antitrust treatment/analysis of noncommercial activities --
i.e., whether all noncommercial activities should receive an unqualified exemption from
the antitrust laws; or should be analyzed under the antitrust "rule of reason" doctrine
(under which the anticompetitive results of a practice are balanced against any
procompetitive consequences); or analyzed under the antitrust per se rule (under which
only the occurrence of an antitrust-violative activity need be proved).
In Missouri v. National Organization for Women, Inc., for example, the state
unsuccessfully attempted to enjoin the organization's boycott of states that had not ratified
the Equal Rights Amendment; the claim that the boycott constituted a "combination and
conspiracy in restraint of trade" was rejected by the United States Court of Appeals for the
Eighth Circuit, and the Supreme Court refused to hear an appeal from that decision.⁷
Although the appeals court acknowledged that "an examination of the legislative history
does not clearly indicate the answer to the question ... whether Congress wanted to protect
`free and fair' competition from political or social activities that can have the same effect
upon competition as the commercial activities of a trust against a business," it also noted
that "Missouri does not direct us to, nor have we discovered any legislative history that
indicates an affirmative intent of Congress to do so" (620 F.2d at 1305).
On the other hand, in two more recent cases, both the Supreme Court and the United
States Court of Appeals for the Third Circuit found just such an intent: "There is no doubt
that the sweeping language of [section 1 of the Sherman Act] applies to nonprofit entities
... and in the past we have imposed antitrust liability on nonprofit entities which have
engaged in anticompetitive behavior";⁸ "Congress ... intended [the Sherman Act] to
embrace the widest array of conduct possible .... Section one's scope thus reaches the
activities of nonprofit organizations [which] are not beyond the purview of the Sherman
Act because the absence of profit is no guarantee that an entity will act in the best interest
of consumers." The appeals court did note, however:
[a]lthough nonprofit organizations are not entitled to a class exemption from the
Sherman Act, when they perform acts that are the antithesis of commercial
activity, they are immune from antitrust regulation. . . . This immunity,
however, is narrowly circumscribed. It does not extend to commercial
transactions with a `public service aspect.'"⁹
The House bills, H.R. 2519 (Philanthropy Protection Act of 1995) and H.R. 2525
(Charitable Gift Annuity Antitrust Relief Act of 1995), each passed the House
unanimously on November 28, 1995; they dealt separately with securities and antitrust
issues. H.R. 2519 permitted charitable income funds to operate without registering with
the SEC under the Investment Company Act of 1940, the Securities Act of 1933, and the
Securities Exchange Act of 1934. H.R. 2519 also provided further exemptions from
federal and state securities laws to charitable organizations and persons associated with

⁷620 F.2d 1301 (1980), certiorari denied, 449 U.S. 842 (1980).
⁸National Collegiate Athletic Association v. University of Oklahoma, 468 U.S. 85, 101 (fn.

22) (1984) (note omitted).

⁹United States v. Brown University, 5 F.3d 658, 665, 666 (1993)(notes omitted).

these organizations concerning the maintenance and operation of charitable income funds.
The legislation applied to actions pending on the date of its effectiveness in order to
protect charitable organizations then being sued.
H.R. 2525 specifically allowed the practice alleged to be price fixing and, therefore,
under antitrust attack in the Texas lawsuit -- the use by two or more nonprofit
organizations of "the same annuity rate for the purpose of issuing [a] charitable gift
annuit[y]." States, however, remained able to enforce their own antitrust-like statutes in
this area, if, within three years from the enactment of H.R. 2525, they enacted statutes that
"expressly provide" that the provisions of the federal legislation shall not apply.
S. 978 affected both securities and antitrust issues. The securities provisions of S.
978 were very similar to those in H.R. 2519. Its antitrust provisions were somewhat
broader than H.R. 2525, granting an exemption from the antitrust laws for "the activities
of a charitable organization relating to the issuance, maintenance, or investment of a
charitable gift annuity." It, too, provided specifically for state enactment of statutes to
prevent federal preemption of state law. S. 978 was not reported out of the Senate
Committee on Banking, Housing, and Urban Affairs.
The House bills were enacted as the Charitable Gift Annuity Antitrust Relief Act,
which provides that
it shall not be unlawful under any of the antitrust laws, or under a
State law similar to any of the antitrust laws, for 2 or more persons
described in section 501(c)(3) of Title 26 that are exempt from
taxation under section 501(a) of Title 26 to use, or to agree to use,
the same annuity rate for the purpose of issuing 1 or more charitable¹⁰
gift annuities.
Congress made this Act retroactive.¹¹ The Texas legislature also passed legislation
intended to prevent state law claims by retroactively allowing nonprofit organizations to¹²
sell annuities and operate trusts.
After passage of the new federal and state legislation, the plaintiff amended his
complaint to add non-exempt defendants, such as law firms, insurance companies, and
commercial banks, in essence alleging a hybrid conspiracy by exempt and non-exempt
organizations. The district court again refused to dismiss the case.¹³ Defendants
petitioned to the Fifth Circuit for a writ of mandamus, requesting dismissal of both the
state and the federal claims on the grounds that the district court abused its discretion by
refusing to grant the second motion to dismiss, asserting jurisdiction to consider whether
defendants meet the Relief Act's requirements for antitrust exemption, refusing to grant
the first motion to dismiss, and refusing to enter summary judgment on the Texas state law

¹⁰15 U.S.C. § 37(a).
¹¹P.L. 104-63, § 4.
¹²Vernon's Texas Banking Code Ann. art. 342-1113(3).
¹³Richie v. American Council on Gift Annuities, 943 F.Supp. 685 (N.D. Tex. 1996).

issues. Plaintiff requested that the court dismiss the defendants' appeals on numerous
grounds, most importantly for lack of appellate jurisdiction.¹⁴
The Fifth Circuit held that it lacked jurisdiction to hear the appeal and imposed a
$15,000 sanction on the defendants for pursuing a frivolous appeal.¹⁵ In ruling that it
lacked jurisdiction to hear the appeal, the Fifth Circuit stated that the district court's refusal
to dismiss the case is not a final decision that can be appealed under 28 U.S.C. section

1291.

It should be evident, from the above, that because the refusal to
dismiss was predicated on Richie's claims of non-exempt defendants
and a hybrid conspiracy involving them, the matters it addressed were
neither conclusively determined nor separate from the merits of the
case. To the contrary, the district court went out of its way to state
that it would reconsider the defendants' claims of exemption as soon
as there was sufficient evidence to do so. Given that the ruling was
based on the possibility of a hybrid conspiracy, we need not consider
whether the Relief Act grants § 501(c)(3) organizations some sort of
immunity or right not to stand trial. It follows that because the denial
of the motion to dismiss did not actually require a finding of no
immunity, it is not a collateral order, and we lack jurisdiction to
entertain the appeal.¹⁶
The court also held that it lacked jurisdiction to hear Northwestern University's claims
for the same reasons that it lacked jurisdiction to hear the defendants' claims.¹⁷ The court
also denied defendants' petition for mandamus relief, finding that the grant of summary
judgment by the district court was neither an abuse of discretion nor a usurpation of
power, and the court found that the Texas Attorney General was entitled to intervene as
of right. Finally, the court imposed sanctions for bringing an appeal that it considered
frivolous.

¹⁴Richie v. American Council on Gift Annuities, Inc., No. 96-11332, 1997 Westlaw 169400
(5^th Cir. 1997).
¹⁵[T]he defendants ... have blithely ignored that Richie is alleging some of them to be non-
exempt, which creates factual issues, and that he is alleging a hybrid conspiracy. Richie v.
American Council on Gift Annuities, Inc., 1997 Westlaw 169400, *11 (5^th Cir. 1997).
¹⁶Id., at *5.
¹⁷Northwestern University had separately appealed the denial of its motion for summary
judgment, arguing that it had demonstrated its exemption under the Relief Act.