The Finn Blog

Dewayne Johnson v. Monsanto Company Tax Surprise

April 13, 2018 – The “Tax Cuts and Jobs Act” presumably did not factor into a San Francisco jury’s decision last week to award Dewayne Johnson $289.2 million in his lawsuit against Monsanto Company, et al. His case is potentially affected by it nonetheless.

In addition to $39.2 million in compensatory damages awarded to the former Benicia Unified School District groundskeeper who claimed years of exposure to the herbicide Roundup caused him to develop non-Hodgkin lymphoma, the jury tagged on $250 million in punitive damages against defendant Monsanto for failing to warn users about the dangers of their popular product.

With more than 4,000 people waiting in the wings to have their similarly-styled lawsuits heard, the implications of this verdict are far reaching. Even though an appeal is anticipated, the significance of this bellwether case cannot be understated.

Let’s assume for an unlikely moment the verdict is not appealed and no post-verdict settlement discussions occur. Despite the best intentions of the jury to properly compensate Mr. Johnson for his suffering and punish Monsanto for its maliciousness, the ultimate beneficiary of this outcome is, strangely enough, the U.S. taxpayers thanks to Congress’ recently passed legislation.

The Surprising Beneficiary: Taxpayers

Let’s start with the easy part. Any of the $39.2 million compensatory damage income flowing to the plaintiff, whether in cash or as periodic payments, is tax-free in accordance with 26 U.S. Code § 104(a)(2). Attorney fees and costs will be deducted from this amount, but the remainder belongs to the Mr. Johnson.

Assuming a 40% contingency fee (I have no idea what the retainer agreement calls for but 40% for cases which go to trial is not uncommon though it could reasonably be higher or lower), Mr. Johnson could still expect to see 60% of the gross figure, or $23.5 million, less costs and expenses which likely are significant on a case of this magnitude.

The tax code views punitive damages differently. Very expensively differently. More so today than in 2017 and earlier thanks to the 115th Congress and its passage of PL 115-97 signed into law on December 22, 2017.

That’s because, in its effort to streamline the tax code, our elected officials passed a logic-defying law which eliminates the ability to deduct attorney fees from many types of nonphysical injury lawsuits. This Monsanto case, because it is not employment or whistleblower related (lawsuits which retain their above-the-line deductibility of attorney fees in most instances), is fully taxable to the plaintiff with no ability to offset taxes owed for legal fees paid to the attorneys representing them.

That was not a typo: Plaintiffs owe taxes on the ENTIRE nonphysical injury portion of the verdict even though they never receive the portion they pay for legal representation.

In this instance, Mr. Johnson could expect to pay roughly 50%, or $125 million, if not more, in taxes for the punitive damages component of this verdict.

But the story gets more unbelievable.

Not factoring costs and expenses incurred for developing and trying the case and applying the same 40% contingency fee listed above in the compensatory phase, means Mr. Johnson can also expect to see his $250 million punitive damage verdict reduced by another 40%, or $100 million, for attorney fees.

Doing some quick math reveals $250 million less $225 million (50% for taxes PLUS 40% for attorney fees) nets him $25 million, or 10%, of the total punitive damage verdict.

That was not a typo either: The plaintiff nets a scant $1,500,000 more of the $250 million punitive damage portion of the verdict than he does the $39.2 million compensatory piece.

Does it make sense that a jury verdict of $50 million in compensatory damages and zero dollars in punitive damages would net Mr. Johnson more money than this $289.2 million combination verdict? True, such an outcome would not punish the defendant as intended but one would think a plaintiff deserves more than 10% of the verdict less expenses.

But there’s more.

Congress’ ultimate gift to the taxpayers? Lest you think the attorneys are exempt from paying taxes on their contingency fees earned (since, after all, the plaintiff already paid taxes on that sum once, right?), the attorney fee gets taxed a second time when the attorneys file their own taxes.

The irony of a “tax cut” law resulting in double taxation on sums awarded should not be lost on anyone practicing in this arena.

Nonphysical Injury Structured Settlements to The Rescue

Until or unless stakeholders successfully lobby Congress to rectify this ill-advised tax law, many nonphysical injury claims will continue to disproportionately subsidize those of us who are not even involved in the case. Our federal, state and local tax authorities will appreciate the windfalls, but this flagrant absence of common sense has no place in a judicial system striving for fairness.

Fortunately, some help exists in the form of nonphysical injury structured settlements for practitioners evaluating their post-verdict negotiation options. Nonphysical injury structured settlements don’t invalidate the nonsensical tax law but can help render some parity to an otherwise gloomy reality.

By deferring taxable dollars into the future, plaintiffs can increase the total value of their settlement and lower the percentage of the verdict they ultimately pay in taxes. This increased recovery and steady, guaranteed cash flow also have the added benefit of being a better needs-based outcome for those seeking safety and security after a long-drawn-out legal process.

Practice Pointer: While it may be tempting during post-verdict negotiations to drop the punitive damage component altogether in exchange for the more tax-friendly all-compensatory outcome, caution is urged here since this would likely be viewed as a deliberate attempt to evade taxes. Reasonable, defensible allocation of damages, along with the need for qualified, independent tax advice, is recommended.

Poor Mr. Johnson didn’t ask to get cancer and didn’t set out to be a poster child for the folly of our new tax laws. But his case offers valuable insights into the realities that await those who “win” a lawsuit only to end up on the losing end of the ultimate tax outcome.

Taxes image courtesy of Stuart Miles at


Dear Congress: This is Wrong!

August 6, 2018 – When the Tax Cuts and Jobs Act, as it’s known, went into effect earlier this year, many hailed the legislation for simplifying things and saving the average taxpayer money.

Others protested the legislation disproportionately benefits the ultra-wealthy who didn’t need and weren’t asking to have their taxes reduced.

Whichever side of the debate you happen to fall on, one category of taxpayers stands out as being most unfairly and adversely impacted by this legislation:

People who hire legal counsel for nonphysical injury claims.

That’s because, whether intentional or inadvertent, Congress failed to consider one disastrous consequence of the new law:

Going forward, taxpayers can no longer deduct attorney fees they incur for many types of nonphysical injury disputes they bring against their alleged tortfeasors.

In an ironic twist worthy of a Shakespearean drama, plaintiffs who “win” their personal, nonphysical injury lawsuits ultimately find themselves on the losing end of their own litigation come tax time.

This careless, shortsighted, unwise and downright mean oversight must be corrected.


To illustrate how unfair this law, if left unamended, can be, assume Plaintiff A successfully resolves a libel (nonphysical injury) case against Defendant B, pre-trial, for $10,000,000.00. Because the plaintiff is taxed on the ENTIRE award (including attorney fees), the full ten million dollars is considered taxable income.

In California, the tax on this settlement is approximately 49% (married filing jointly) to 50% (single taxpayer), or, roughly $5,000,000.00.

Further assume, since the case was heading to trial, a 40% contingency fee agreement was in place for legal representation – a standard arrangement given the skill required and the financial risk of trial absorbed by the law firm.

Not counting additional costs associated with developing and trying the case which need to be reimbursed and could erode the total recovery further, the plaintiff stands to net a mere 10% OR LESS of this otherwise substantial settlement.

Is it fair that a plaintiff ends up with less than $1,000,000 of a $10,000,000 settlement?

“Let me tell you how it will be,

There’s one for you, nineteen for me”

In some cases where costs are exceptionally high, it’s not inconceivable a plaintiff might end up OWING money on a case they supposedly won!

If the whole point of the litigation process is to right a perceived wrong, to attempt to make someone whole again and to achieve justice, what reasonable person can find anything just about this outcome?


Remember that $4,000,000 attorney fee? Even though that sum was already considered taxable income to the plaintiff, the attorney who earns and actually receives that money will owe taxes on it as well resulting in the same money being taxed twice!

“Should five percent appear too small,

Be thankful I don’t take it all”

What about the legal fees incurred by the defense? Most likely the defense can deduct their defense costs depending on the type of lawsuit and the status of the defendant.

Add it all up and there is nothing equitable about any of this.

Taxing an individual on money that isn’t theirs and which gets taxed a second time is, at best, a gross failure of the framers of the tax laws to recognize this parity gaffe. At worst, it’s their calculated effort to discourage litigation and allow egregious, harmful behavior to continue unencumbered.

(The irony here, of course, is that plaintiffs now have greater incentive to reject otherwise reasonable settlement offers and proceed all the way through trial. Why not?)

Some exceptions and a partial solution

There are some exceptions to this inability to deduct of attorney fees from the outcome of a nonphysical injury lawsuits.

Most employment and whistleblower cases still permit an above the line deduction for attorney fees as do sexual harassment cases not covered under a nondisclosure agreement. Certain damages, if attributable to one’s business, may also be deductible. Clients are always urged to seek qualified, independent tax advice to analyze their own situation.

NOTE: Income received on account of personal, physical injuries or illness remains tax-free to the plaintiff. Since these damages are not considered income, the attorney fees associated with them are also not subject to taxation to the plaintiff.

Fortunately, much of the headache that accompanies the grievous tax pain can be mitigated by choosing a Nonphysical Injury Structured Settlement during the litigation resolution process. By arranging to have portions of the taxable settlement or verdict paid out over time, a more tax efficient outcome can usually be achieved saving the plaintiff significant sums of money along the way.

While nonphysical injury structured settlements can help ease the tax-induced misery caused by this harmful change in the law, the root of the problem remains. Clients and fair-minded advocates everywhere should voice their concerns to their elected officials lest they someday find themselves on the losing end of a winning proposition.

“Taxman” song lyrics by George Harrison

Taxes gauge image courtesy of Stuart Miles at

Yanny or Laurel Justice

May 18, 2018 – Have you caught wind of this Yanny/Laurel thing yet?

There are few things that can cause you to question your own sanity more than being positively convinced of something that others are equally convinced is untrue.

I listen to this clip and hear Yanny. Absolutely, 100%, no doubt about it.

But according to more than 50% of the people who voted for Laurel, I’m wrong.

How can this be?

“Tomato, tomahto, potato, potahto, let’s call the whole thing off.”

– Ira Gershwin –

This isn’t some difference in regional dialect conversation we’re having. This gets to the very essence of how wildly our senses can vary when responding to the exact same stimuli.

What This Means for Our Civil and Criminal Justice Systems

Forget the unreliability of memory.

Going forward, every claims representative taking a recorded interview and every attorney deposing a witness no longer need concern themselves solely with whether that person is telling the truth. They need to account for the possibility that a person can be truthful but still contradictory.

“Who ya gonna believe? Me or your own eyes?”

 – Rufus T. Firefly –

Do we need to allow for the possibility that Yanny could commit a crime for which Laurel is convicted? Before I heard the Yanny/Laurel audio clip, I would have considered such a notion absurd.

Now, I’m not so sure.

When coupled with its white/gold, blue/black dress visual cousin, Yanny/Laurel forces us to doubt much of what we think we see and hear. We now have no choice but to accept that our senses can mislead us in ways we never imagined possible.

“What evidence would you have of my reality beyond that of your senses?”

– Jacob Marley –

For those who prefer a black/white, right/wrong world, now might be an appropriate time to take an extension course in Grey Area 101 to help with the confusion you’re experiencing. Understanding and acceptance is not likely to come easily, but it just might help prepare you for the world that isn’t all we thought it was.

PS It’s still Yanny




Image courtesy of Stuart Miles at

A Cure for the CD Blues

May 2, 2018 – Stored lovingly in the back of a closet in my house rests a box filled with vinyl record albums of (mostly) rock ‘n’ roll artists whose music I listened to growing up.

From The Allman Brothers Band to The Zombies, these Long Player, or LP, discs, once turntable-revolving staples of my high school, college and early professional career existence, now lie dormant, an undignified, coffined homage to my younger self.

Compact discs, or CDs, offering digitally enhanced sound, emerged in the 1980s and became the preferred medium for most of the music-listening public for several decades, easily outlasting 8-track tapes which had a brief run.

Now that streaming services have emerged, threatening to relegate CDs to the same passé status as the LPs they themselves supplanted a generation earlier, I am reluctantly making room in the closet for my CD collection even if I have yet to publish its obituary.

Non-Musical CDs

Certificates of Deposit (aka CDs – no relation to compact discs), offer investors a haven for funds they can afford to set aside for a period of time. Generally available at any FDIC-insured bank, they usually pay interest which is around 25 to 50 percent better than what’s available in a typical savings account, depending on the term.

Today’s available 3-year CD Rate = 2.80%

Individuals seeking the highest possible return with the lowest possible risk often choose CDs when they want to “live off the interest” and preserve their capital.

Even multi-million dollar trusts often have a CD component for the security portion of the assets under management.

What’s Better Than a CD?

No, not two CDs. Multi-Year Guaranteed Annuities. If you invest in CDs and never heard of MYGAs, you’ll want to learn about them. Especially if you are within a few years of or are already in retirement.

Today’s available 5-Year MYGA Rate = 3.80%

Multi-Year Guaranteed Annuities (MYGAs) work just like longer term CDs except you’re dealing with an insurance product (regulated by the state) instead of a bank offering (regulated by the Federal Government). You simply purchase a single premium fixed deferred annuity which guarantees a fixed rate of return through the maturity date.

The best part of MYGAs is that they pay roughly 33% more (5-year MYGAs) than bank CDs (which, remember, are already 25% to 50% better than savings rates).

Bonus MYGA Advantage: Whereas CD owners receive 1099-INTs each year for interest earned (unless held within a qualified retirement account), MYGA owners can roll funds over into the next year until maturity at which point all accumulated interest not previously withdrawn (along with original principal) becomes due and payable. Optionally, contracts can then automatically renew at prevailing rates or be rolled into another MYGA.

As with CDs, you forfeit some flexibility with MYGAs in exchange for the enhanced returns (penalties for early withdrawal are the same for both CDs and MYGAs) but by staggering maturity dates, some of the opportunity cost can be mitigated.

If your desire is to stash away some cash for a few years and get the best possible return with the least possible risk, MYGAs may be right for you.

Your ability to purchase a MYGA depends upon the source of your funds since different tax rules apply and not all funds will be eligible. Other factors to consider include age, suitability, minimum deposit requirements and risk tolerance but they’re certainly worth inquiring about if safety and principal protection are key objectives.

Just Put Those Old CDs On the Shelf

Whether funded using personal injury settlement proceeds or your retirement savings, MYGAs are an excellent choice for money that you can’t risk losing and won’t need until age 59½ or later. Often paying nearly a full percentage point more interest than CDs, it’s an easy choice for the CD-oriented crowd.

Within the broad range of structured settlement and retirement income options, Multi-Year Guaranteed Annuities can play a significant role as part of one’s overall financial plan for anyone desiring to safely set aside funds with specific target maturity dates of 3 to 10 years.

Now, if you’ll excuse me, I need to end this post because I feel this sudden urge to “. . . reminisce about the days of old with that old-time rock ‘n’ roll.”

(Even if I have to stream the music)

One final word of caution: DO NOT listen to those self-interested financial planners who say they hate annuities. Pull back the curtain to understand their feigned cynicism by reading one of my earlier blog posts: Great News for Annuities. You can thank me later when you didn’t lose any money.

CD photo courtesy of Giovanni Sades at

New Structured Settlement Video

April 11, 2018 – Courtesy of our friends at Pacific Life, we’re happy share with you today a new educational video designed to help plaintiffs answer a few very basic questions they’re likely to ask themselves when in the process of resolving their personal injury claim:

At two minutes nineteen seconds, the video is an easy watch and hits all the high notes about why this proven settlement option has remained so popular since its inception decades ago.

We appreciate when our life company business partners provide materials to help us help our clients better understand the value of the important services we provide.

Pacific Life is among the many excellent companies we proudly represent, and we are grateful to them for providing this important service to the public.

But what else would you expect from a company that has been honoring its financial commitments for 150 years? Thanks Pac Life!

Enjoy the video.

Sparring With Bears

April 6, 2018 – With today’s close of the Dow Jones Industrial Average ending the day down 572.46 points (2.34%), some market forecasters are speculating that we may, after a prolonged run up of equity values, finally be dipping our toes into bearish waters.

Of course, it’s always important to take these forecasts with a grain of salt since nobody can accurately predict the future. Markets go up. Markets go down. Rinse and repeat.

What’s helpful, though, is to remember your money’s exposure to loss when bears start jabbing:

Bear markets usually last about 15 months

During which time stocks usually decline about 32%

Clients of ours often come into large sums of money following the resolution of a personal injury lawsuit. Many have had their ability to earn a living compromised. Many face long and costly rehabilitation and care costs. Some are dealing with the death of a loved one who may have been the family’s sole breadwinner.

Whatever their circumstances, all our clients have one thing in common:

Their risk tolerance for loss is usually less than that of the typical investor.

Structured Settlement Payees Outlast Bears

Our clients who are lucky enough to structure portions of their settlements never need worry about a bear sending them to the canvas. When choosing guaranteed tax advantaged future income, it doesn’t matter what direction the market takes. This adds an unmatched level of security to their lives which makes adjusting to their new, post-settlement reality that much easier.

To help put the impact of a bear market into perspective, consider the real-life implications for someone netting $1,000,000 from a personal injury lawsuit:

As of today, the market is down 10.1% from its all-time high;

If a person’s investment experience mirrored the DJIA since then;

They would only have $899,000 today.

How would you feel if you lost $101,000 in ten weeks?

Balance and Timing

Our general advice to clients anticipating large personal injury settlement dollars is simple: Structure some, keep some, set some aside for a rainy day.

The structured settlement provides the foundation of most of our clients’ financial plans. This is the money they will live off. Their safety net. The money they can count on if everything else fails.

We tell them to keep some in reserve for immediate and anticipated short term needs.

Depending on their risk tolerance, we tell them to not worry too much and take a little bit of a risk with their money. Much will depend on their time horizon and the severity of their injuries, but most people will do well to put some of their money into the market since time usually works in their favor. Just not more than they can afford to lose.

Bulls and bears come and go but structured settlements just keep on paying. For this reason, structured settlements remain a preferred settlement alternative for guaranteed future income and give clients peace of mind.

You might even call them bear necessities?

Boxing bears courtesy of vectorolie at

Christmas Magic

December 15, 2017 – Sometimes Christmas magic arrives unexpectedly.

Take this Christmas card I just received from a client our firm helped nearly two years ago:


Not sure if you remember us or not. However, just wanted to say THANK YOU for everything. Since our last meeting, we have purchased a house in (redacted), as well as added an additional family member (smiley face). I’m glad we counted for 3 kids (in designing the structured settlement). We are so grateful for your kindness & support. I hope you and your family have a blessed & Very Merry Christmas!

Take care,

(name redacted)”

When I first met this lovely young couple to discuss their personal injury settlement options, we performed a pretty comprehensive needs-and-wants analysis to ensure we charted the best possible path for their financial future. Ultimately, we designed a structured settlement plan that contemplated them making tax deductible mortgage payments (for a house they had yet to purchase) with tax-free guaranteed income. In addition, we established college funds for their current and contemplated children.

From the sounds of this note, things worked out exactly as planned.

I love when that happens!

At this festive time of year, receiving thoughtful, affirming words of appreciation from someone I helped along the way fills my heart with joy and the spirit of Christmas. I am grateful that my life’s work connects me with so many wonderful people in their time of need and am so appreciative that I can help make their futures, many of which will last long after I’m gone, a little more secure.

Wishing you and yours all the best this holiday season and hoping 2018 brings health, happiness and much success in your personal and professional lives.

Expect magic!


Sexual Misconduct Lawsuit Considerations

November 18, 2017 – Having helped countless individuals who prevailed with claims of sexual misconduct against their perpetrators deal with the financial aftermath of their civil settlements and judgments, I wish I could say I am surprised by all these recent allegations.

I am not.

I’ve met the plaintiffs who prevailed against their transgressor priests, teachers, classmates, camp counselors, coworkers, superiors and even grandparents. I’ve seen the photographs and medical records, read the deposition transcripts and listened to the voicemails. The most severe cases especially test one’s faith in humanity to know that people are actually capable of such abhorrent behavior.

The attorneys who undertake this class of cases (and I’ve had the privilege of working with some of the very best in the country) deserve tremendous, special respect because theirs is not an easy task. The litigation process can take such a heavy toll on their personal and professional lives that more than a few have left the practice of law once the matter ended.

Civil Remedies

Statutes likely have already run in many of the cases coming to light over the course of the past few weeks rendering civil justice through the courts problematic. But where lawsuits will proceed, there are some hurdles to consider.

Because the fact pattern laid out in the complaint of any civil lawsuits alleging sexual abuse and/or harassment will determine the tax treatment of any damages paid on the settlement, practitioners need to understand the distinction in the law as it pertains to this type of litigation.

In order for any settlement funds to be considered income tax-free, a demonstrable physical injury must have occurred. In instances of rape and sexual battery, medical records and police reports can easily support a claim of physical injuries.

On the other hand, in many hostile work environment or similar harassment cases where no physical injury (as recognized by U.S. Tax Code interpretation) occurs, these damages are almost universally considered nonphysical in nature and, thus fully taxable.

Two points worth highlighting here:

Emotional distress alone is insufficient to constitute physical injury; and,

Physical contact alone is insufficient to constitute physical injury.

There are some exceptions to these general rules but attorneys working on these types of cases are well advised to make sure all issues are properly evaluated and fully considered prior to filing complaints.

Unintended Consequences?

It’s a very good thing the public seems to finally be taking abuse charges, which for too long have been trivialized when reported, more seriously than they have in years past. We can only hope our culture will change for the better as a result of the focus now placed on sexual misconduct.

I applaud the brave individuals who have had the courage to come forward against the backdrop of a skeptical public and hope criminal and civil justice will ultimately be served for their sake.

That said, I’m mindful of how easy it may become going forward to ruin an innocent person’s life with false accusations and think perhaps another reading of Lillian Hellman’s The Children’s Hour may be in order.

The Interest Rate Dance

August 31, 2017 – Ever since the global financial near-apocalypse of 2009 caused everybody everywhere to rethink everything we thought we knew about money, saving, the market, investing, et cetera, I’ve noticed a pattern here in America. If you’ve been paying attention, you probably noticed it, too.

Once a year or more, we hear “they” are going to raise interest rates. They have to, right? Interest rates can’t stay depressed forever. Something’s got to give and we need to get back to normal, whatever that is.

So, the day of this big announcement arrives and everyone’s on pins and needles in anticipation of a big jump in rates that will make us all feel better. Then, at the prescribed hour, the keynote address is delivered ending with an ignoble “Ha, ha, made ya look” tease. Maybe rates go up a smidgen, or maybe they drop a whisker but usually, it’s just crickets. No change.

In 2009 when I began circulating this chart on Historical Long-Term Interest Rates, a lot of people scoffed at the notion of interest rates remaining low for an extended number of years. I feel no profound sense of pride in being right almost a decade later but it was just too hard to ignore 135 years’ worth of data however painful it was to realize.

Kiplinger even removes the mystery of their latest projection earlier this month with their unambiguously titled article, “Long Rates to Stay Low”.

Economists don’t get more straightforward than that.

There is no shortage of reasons interest rates are likely to remain at or near current levels for the foreseeable future, possibly for another quarter century. So, don’t be surprised if the next time “they” say interest rates are going to go up, nothing much happens.

Since nobody ever really knows what the future holds, it’s worth reminding clients that waiting comes with a cost. Structured settlements and retirement income annuities still make a great deal of sense for most people and will ALWAYS be in style. Why?

Because guaranteed future income has a good beat and you can dance to it.

Images courtesy of sattva and IceHawk33 at

Future Income Balancing Act

August 21, 2017 – A lot of people pretend to know a lot about retirement income planning. But few are truly as knowledgeable on the subject as Dr. Wade Pfau, Professor of Retirement Income at The American College and retirement researcher extraordinaire.

Not only does he analyze retirement alternatives with the precision of a Swiss watchmaker, he willingly shares the results of his thorough research with others in an engaging style that simplifies a subject that can otherwise Wade (I couldn’t resist) into esoterica.

As one of his biggest fans and followers, I find his research refreshing in a world where far too often practitioners focus solely on one approach to financial planning to the exclusion of all other approaches or who try to over-simplify the process. If you, like me and most of our clients, are looking for insight into how to more thoughtfully plan for your own future, I highly suggest this blog post by Dr. Pfau where he asks quite non-rhetorically:

Which is Better for Retirement Income: Insurance or Investments?

Like so much in life, balance matters when it comes to retirement income planning. People who drive cars that are out of alignment or subscribe to diets lacking variety often end up worse off for their planning failures or over-reliance on a single solution.

Why not be smarter?

Adopting a balanced approach to future income planning by understanding the benefits and risks associated with ALL the various methods advocated by knowledgeable professionals and then matching the strengths of each with your own future needs should lead you to your own retirement Zen.

Image courtesy of Stuart Miles at