AEI Life, LLC v. Lincoln Benefit Life Co.

17‐224
AEI Life, LLC v. Lincoln Benefit Life Co.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2017 3
(Argued: October 2, 2017 Decided: June 8, 2018) 4
Docket No. 17‐224 5
6
7
AEI L IFE LLC, 8
Plaintiff‐Appellee, 9
v. 10
L INCOLN B ENEFIT L IFE C OMPANY , 11
Defendant‐Appellant. 12
13
Before: S ACK, R AGGI, AND C ARNEY , Circuit Judges. 14
AEI Life LLC is the beneficiary of a life insurance policy issued by Lincoln 15
Benefit Life Company. A third party originally obtained the policy by fraudulent 16
means. That party sold it to AEI several years later. AEI brought this action 17
seeking a declaratory judgment that Lincoln was barred from challenging the 18
validity of the policy because the two‐year contestability period had lapsed. The 19
United States District Court for the Eastern District of New York (Jack B. 20
Weinstein, Judge) granted AEIʹs subsequent motion for summary judgment. The 21
principal issues on appeal are whether New York or New Jersey law applies, and 22
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whether the incontestability law of that state will allow Lincoln to challenge the 1
policy’s validity. We conclude that the contract does not contain a choice‐of‐law 2
provision and therefore New York conflict‐of‐law rules govern the dispute. 3
Because those rules instruct the courts to look to the ʺcenter of gravityʺ of the 4
events at issue to determine which state’s substantive law applies, and the center 5
of gravity here is New York, we look to New York’s substantive law in analyzing 6
the issues presented. New York’s substantive incontestability law bars Lincolnʹs 7
challenges to the policy in this litigation. Accordingly, the district courtʹs 8
judgment is: 9
AFFIRMED. 10
JULIUS A. R OUSSEAU (Eric Biderman, on the 11
brief), Arent Fox LLP, New York, NY, for 12
Defendant‐Appellant. 13
K ATHERINE L. V ILLANUEVA (Jason P. 14
Gosselin, on the brief), Drinker Biddle & 15
Reath LLP, Philadelphia, PA, for Plaintiff‐ 16
Appellee. 17
S ACK, Circuit Judge: 18
Lincoln Benefit Life Company (ʺLincolnʺ) is an insurance company with its 19
principal place of business in Lincoln, Nebraska. In 2008, it approved and issued 20
a life insurance policy for Gabriela Fischer, the insured. The policy application, 21

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AEI Life, LLC v. Lincoln Benefit Life Co.
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amongst other misstatements, fraudulently exaggerated Fischer’s wealth. The 1
policy was paid for by a stranger to the transaction, which rendered the policy 2
voidable. (The parties dispute on appeal whether it was void ab initio.) Lincoln 3
failed to contest the validity of the policy until after the policyʹs two‐year 4
contestability period had lapsed, and after the policy had been sold to an 5
innocent third party, AEI Life LLC (ʺAEIʺ). AEI brought suit against Lincoln 6
seeking a declaratory judgment that Lincoln was barred from contesting the 7
validity of the policy under the incontestability clause it contained. 8
The laws with respect to such incontestability clauses in New York and 9
New Jersey differ in a crucial respect: Unlike New York, New Jersey allows an 10
insurance company to contest the validity of a policy obtained by fraudulent 11
means even after two years have expired since the policy became effective. The 12
Fischer policy contains what the district court called a choice‐of‐law clause, but 13
we refer to it, more accurately we think, as a conformity clause. It reads: ʺThis 14
certificate is subject to the laws of the state where the application was signed. If 15
any part of the certificate does not comply with the law, it will be treated by us as 16
if it did.ʺ Fischer Policy, Page 16, at Joint Appʹx 98. Although the policy 17
purports to have been signed in New Jersey, the district court concluded that it 18

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AEI Life, LLC v. Lincoln Benefit Life Co.
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was in fact signed in New York—the domicile of Fischer and her son. AEI 1
contends that New York law applies and that its incontestability law bars 2
Lincoln’s challenges. 3
The United States District Court for the Eastern District of New York (Jack 4
B. Weinstein, Judge) granted AEIʹs motion for summary judgment. AEI Life, LLC 5
v. Lincoln Benefit Life Co., 225 F. Supp. 3d 136 (E.D.N.Y. 2016). Following an 6
evidentiary hearing, the district court decided that: (1) The conflict‐of‐law rules 7
of the state in which the district court sits, New York, determine the applicable 8
choice‐of‐law principles, id. at 140; (2) under New York conflicts law, the court 9
ordinarily would apply a choice‐of‐law clause included in an insurance contract, 10
id. at 143; (3) in this case, however, the original beneficiaryʹs ʺextensive fraud in 11
the inducementʺ in obtaining the policy invalidated what the district court 12
identified as the insurance contractʹs choice‐of‐law clause, id. at 148; (4) the 13
district court was therefore required to use New Yorkʹs ʺcenter of gravity ruleʺ to 14
identify which stateʹs substantive law applied, id. at 148‐49; (5) the disputeʹs 15
center of gravity was New York because ʺevery contact of significance [with 16
respect to the issuance of the insurance policy] was in New York,ʺ id. at 141; and 17

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AEI Life, LLC v. Lincoln Benefit Life Co.
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(6) under New York law, Lincolnʹs challenges to the validity of the policy failed, 1
id. at 149‐50. 2
We agree with the district court that New York law governs this policy 3
and that under New York law, the policy is incontestable. We differ from the 4
district court only in the reasoning we employ in rejecting the policy provision 5
purportedly favoring New Jersey law. In our view, the provision is not a 6
ʺchoice‐of‐lawʺ clause because it does not reflect the partiesʹ intent to select the 7
law of a specified state. We therefore need not decide whether the provision was 8
rendered invalid by fraud, because we conclude that it never controlled the 9
choice‐of‐law question in any event. 10
The judgment of the district court is therefore affirmed. 11
BACKGROUND 12
The Inception of Gabriela Fischerʹs Life Insurance Policy 13
In May 2008, Lincoln received an application to insure the life of then 77‐ 14
year‐old Gabriela Fischer (ʺFischerʺ). The application represented that Fischer 15
had a net worth of $87 million, an annual income of $1.5 million, and unearned 16
income of $5 million. A confidential financial statement included in the 17
application stated that Fischer had assets totaling $1 million in cash, $10 million 18

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in accounts receivable, $40 million in real estate, and $30 million in other 1
business interests. Three individuals signed the application and declared the 2
information truthful: Fischer, Irving Fischer (Fischerʹs son and the trustee of the 3
Gabriela Fischer Trust (ʺFischer Trustʺ), hereinafter ʺIrvingʺ), and Joel Jacob (the 4
insurance broker). A Brooklyn accountant also verified by letter Fischerʹs net 5
worth as stated in the application. Lincoln approved Fischerʹs application 6
shortly thereafter, agreeing to pay $6,650,000 to the policyʹs beneficiary—the 7
Fischer Trust—upon the death of Fischer. 8
It is uncontested that the financial information contained in the application 9
was false and fraudulent. Fischer testified that she never owned one million 10
dollars and that it was ʺabsurdʺ for the application to report that she earned $1.5 11
million in one year. Joint Appʹx 824. The policy required an initial payment of 12
$151,450 and premiums totaling $205,000 per year. Fischer testified that she did 13
not have the resources to make these payments. Instead, account records show 14
that a stranger to the policy deposited $1 million into the Trust shortly after 15
Fischerʹs application was submitted, and this money was used to make payments 16
related to the policy. 17

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A policy thus obtained is known as a Stranger‐Originated Life Insurance 1
(ʺSTOLIʺ) policy, which is generally procured as an investment for the stranger, 2
rather than for the benefit of the insuredʹs beneficiaries.1 Nevertheless, Lincoln 3
received all the payments it was due under the contract, and it is not alleged that 4
the application was fraudulent with regard to Fischerʹs health.2 Jacob, the broker, 5
received a commission of approximately $100,000 for his efforts with respect to 6
Fischerʹs policy and, although he was aware that agents are forbidden by law to 7
share their commissions with clients, transferred $50,000 to Irving for acting as a 8
1 STOLI policies are generally disfavored or prohibited. See, e.g., N.Y. Ins. Law
§ 7815(c) (ʺNo person shall directly or indirectly engage in any act, practice or
arrangement that constitutes stranger‐originated life insurance.ʺ). The reasons STOLI
policies are disfavored include (1) that they constitute wagers on human life because
strangers not only bet on how long the insured will live, but against his or her
longevity, and (2) the stranger lacks an insurable interest at inception. See, e.g., 2005 NY
Insurance GC Opinions LEXIS 280 (finding that a STOLI policy lacked an insurable
interest and was therefore prohibited). New York insurance law defines ʺinsurable
interestʺ as either (1) ʺa substantial interest engendered by love and affectionʺ between
ʺpersons closely related by blood or law;ʺ or (2) ʺa lawful and substantial economic
interest in the continued life, health or bodily safety of the person insured.ʺ N.Y. Ins.
Law § 3205(a)(1)(A)‐(B). An insurable interest is required for the creation of a valid
insurance policy to avoid a situation in which one would financially benefit from the
insured’s death without any countervailing reason to care if the person lives or dies.
2 Lincoln concedes that despite the fraud, the policy’s premiums were calculated
ʺbased on the statistics that applied to this woman with respect to her age and other
conditions,ʺ which Lincoln does not allege to be fraudulent, and it received all the
ʺpremiums that [its] actuary said should be applicable here.ʺ In other words, Lincoln
was not ʺcheated of premiums.ʺ Joint Appʹx 804.

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ʺmiddleman.ʺ Joint Appʹx 892. Although everyone involved feigned ignorance 1
during his or her testimony—testimony that the district court found 2
untrustworthy, AEI Life, 225 F. Supp. 3d at 148—the district court found little 3
reason to doubt that they all knowingly engaged in what was a STOLI scheme. 4
Some three years later, in 2011, the Fischer Trust sold the policy to 5
Progressive Capital Solutions, LLC, which two days later resold it to the plaintiff, 6
AEI. AEI is a bona fide purchaser: Lincoln does not allege that AEI knew about 7
the fraud when it bought the policy. 8
Lincoln discovered the fraud in 2013 and sought to invalidate the policy 9
through a declaratory judgment action that it brought in the United States 10
District Court for the District of New Jersey. After that court dismissed the case 11
for lack of subject matter jurisdiction, 3 AEI filed this lawsuit in the Eastern 12
3 Lincoln Benefit Life Co. v. AEI Life, LLC, 13 F. Supp. 3d 415 (D.N.J. 2014). The Third
Circuit eventually overturned the judgment of the district court, Lincoln Benefit Life Co.
v. AEI Life, LLC, 800 F.3d 99 (3d Cir. 2015), but the lawsuit in the Eastern District of New
York had by then already begun. Judge Weinstein declined to dismiss that lawsuit in
deference to Lincolnʹs first‐filed action in New Jersey. He decided that although the
case was first filed in New Jersey, the ʺEastern District was the first to establish
jurisdiction over the parties, the New York Action is procedurally far more advanced
than the New Jersey Action, and the balance of convenience weighs against transferring
the case.ʺ AEI Life, LLC v. Lincoln Benefit Life Co., No. 14‐CV‐6449, 2015 WL 9286283, at
*4, 2015 U.S. Dist. LEXIS 170225, at *10 (E.D.N.Y. Dec. 21, 2015).

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District of New York seeking a declaratory judgment holding that the life 1
insurance policy is incontestable as a matter of law. Both New York and New 2
Jersey have enacted two‐year incontestability laws, which prohibit insurance 3
companies from successfully challenging the validity of a life insurance policy 4
after accepting the policyʹs premiums for two years or more.4 N.Y. Ins. Law 5
§ 3203(a)(3); N.J. Stat. Ann. § 17B:25‐4. But the two states have interpreted their 6
incontestability laws differently. Because of that difference, the central issue on 7
appeal is whether New York or New Jersey law applies. 8
District Court Hearing and Decision 9
In the case at bar, the district court conducted a hearing related to the 10
choice‐of‐law issue, making several findings of fact based on it. The court found 11
that Fischer is a New Yorker who has lived in Brooklyn for the past sixty years. 12
Her son is also a New York resident, having lived in Monsey, New York for 13
thirty years. Jacob solicited the Fischers in New York, and evidence in the record 14
establishes that the medical history portion of the application was completed by 15
4 New York enacted its incontestability law to reflect its ʺconviction that a policyholder
should not indefinitely pay premiums to an insurer, under the belief that benefits are
available, only to have it judicially determined after the death of the insured that the
policy is void because of some defect existing at the time the policy was issued.ʺ New
Eng. Mut. Life Ins. Co. v. Caruso, 73 N.Y.2d 74, 78, 535 N.E.2d 270, 272, 538 N.Y.S.2d 217,
219 (1989).

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a New York doctor in Brooklyn. The Fischer Trust was formed and operated in 1
New York. Transfers of the Trust’s funds were made through a New York bank 2
account. And the current beneficiary, AEI, is also a New York citizen. 3
The principal portion of the life insurance application, however, purported 4
to be signed in Lakewood, New Jersey, and the form used in the policy was 5
submitted to the New Jersey Department of Insurance. Lincoln is licensed to 6
provide insurance in New Jersey, not in New York. But the district court 7
credited Fischerʹs testimony to the effect that she had never been to Lakewood, 8
New Jersey, and Irvingʹs testimony that the application was actually signed in 9
New York. Based largely on that evidence, the court found that ʺ[t]he policy was 10
negotiated, contracted, signed, and issued in New York to individuals residing in 11
New York.ʺ AEI Life, 225 F. Supp. 3d at 149. 12
After concluding that the policyʹs choice‐of‐law clause—which, as noted, 13
we think is better denominated a conformity clause—was invalid due to fraud in 14
the inducement, the court analyzed these contacts under New Yorkʹs center‐of‐ 15
gravity test. Id. at 147‐49. It concluded that New York had the most significant 16
relationship to the transaction, and New York law therefore governed. Id. at 148‐ 17
49. The district court then considered New Yorkʹs substantive law and held that 18

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insurance companies cannot avoid the application of New Yorkʹs incontestability 1
law by alleging public policy concerns or lack of consent. Id. at 149‐50. Finally, 2
the court held that there was insufficient evidence to support Lincolnʹs argument 3
that the Fischer Trust was improperly constituted. Id. at 150‐51. 4
Accordingly, the district court ruled that the policy was incontestable and 5
granted judgment for AEI. This timely appeal followed. 6
DISCUSSION 7
I. Standard of Review 8
We review a district courtʹs interpretation of a contract provision de novo. 9
Yakin v. Tyler Hill Corp., 566 F.3d 72, 75 (2d Cir. 2009). We also review de novo a 10
district courtʹs choice‐of‐law determination and its application of state law. 11
Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal 12
Van Saybolt Intʹl B.V. v. Schreiber, 407 F.3d 34, 43 (2d Cir. 2005). The district 13
courtʹs findings of fact related to its choice‐of‐law analysis, however, are 14
reviewed for clear error. See Aceros Prefabricados, S.A. v. TradeArbed, Inc., 282 F.3d 15
92, 97 (2d Cir. 2002); N.Y. Marine & Gen. Ins. Co. v. Tradeline (L.L.C.), 266 F.3d 112, 16
121 (2d Cir. 2001). To the extent that facts are relevant to the resolution of AEIʹs 17
substantive summary judgment motion, we review the record before the district 18

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court in the light most favorable to Lincoln. See Cross Commerce Media, Inc. v. 1
Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016). 2
II. Conformity with State Law Provision5 3
At the outset of its analysis, ʺ[a] federal court sitting in diversity 4
jurisdiction applies the choice of law rules of the forum state.ʺ Forest Park 5
Pictures v. Universal Television Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012); see 6
also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496‐97 (1941); GlobalNet 7
Financial.com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 382 (2d Cir. 2006). Under 8
New York law, ʺcourts will generally enforce choice‐of‐law clauses,ʺ Ministers & 9
Missionaries Benefit Bd. v. Snow, 26 N.Y.3d 466, 470, 45 N.E.3d 917, 919, 25 10
N.Y.S.3d 21, 23 (2015), because ʺcontracts should be interpreted so as to 11
effectuate the partiesʹ intent,ʺ id. at 470, 45 N.E.3d at 919, 25 N.Y.S.3d at 23; cf. 12
Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 700 (2d Cir. 2009) 13
(concluding that a forum‐selection clause is ʺentitled to a presumption of 14
enforceabilityʺ in a foreign dispute); see also Dukes Bridge LLC v. Sec. Life of Denver 15
Ins. Co., No. 10‐CV‐5491, 2015 WL 3755945, at *4, 2015 U.S. Dist. LEXIS 77724, at 16
*11 (E.D.N.Y. June 16, 2015) (stating that the ʺpresumption of enforceabilityʺ 17
5 As noted, the district court referred to this clause as a choice‐of‐law clause.

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applies to a choice‐of‐law clause (citing Aguas, 585 F.3d at 700)). While there is 1
no magical incantation that parties must utter to create an effective choice‐of‐law 2
provision, the clause must clearly manifest the parties’ intent to be governed by 3
the law of a particular jurisdiction. Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 4
N.Y.3d 624, 629, 859 N.E.2d 498, 500, 825 N.Y.S.2d 692, 694 (2006) (noting that the 5
agreement should be ʺclear and unambiguousʺ). 6
Lincoln argues that a provision in Fischerʹs policy is an enforceable choice‐ 7
of‐law clause. As quoted above, it reads: 8
Conformity with State Law 9
This certificate is subject to the laws of the state where 10
the application was signed. If any part of the certificate 11
does not comply with the law, it will be treated by us as 12
if it did. 13
14
Fischer Policy, Page 16, at Joint Appʹx 98. According to Lincoln, this provision 15
unambiguously specifies that New Jersey law applies because the principal 16
portion of the policy application purports to have been signed in Lakewood, 17
New Jersey. AEI responds that the provision is not a choice‐of‐law clause and is 18
unenforceable because of fraud in the inducement with respect to the purchase of 19

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AEI Life, LLC v. Lincoln Benefit Life Co.
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the policy.6 In any event, AEI contends, the provision must be read as specifying 1
New York law because the policy was in fact signed in New York. 2
As we have already stated more than once above, we agree with AEI that 3
the policyʹs provision is not a choice‐of‐law clause. It is, instead, exactly what it 4
is called in the policy: a conformity clause. ʺA conformity clause has the effect of 5
excising a provision of an insurance policy that conflicts with or is voided by 6
state law and replacing the provision with the prevailing state statute or judicial 7
rule of law.ʺ Lawrimore v. Progressive Direct Ins. Co., 627 F. Appʹx 253, 254 (4th 8
Cir. 2016) (per curiam) (citing Kay v. State Farm Mut. Auo. Ins. Co., 349 S.C. 446, 9
450, 562 S.E.2d 676, 678‐79 (Ct. App. 2002)); see also Vencor Inc. v. Natʹl States Ins. 10
Co., 303 F.3d 1024, 1032 n.15 (9th Cir. 2002) (describing a ʺConformity with State 11
Statutesʺ provision that purports to amend any provision of the insurance policy 12
so that it conforms with state law); Wesselman v. Travelers Indem. Co., 345 A.2d 13
423, 423‐24 (Del. 1975) (describing a similar conformity clause); 2 C OUCH ON INS . 14
§ 19:3 (3d ed. 2017) (describing the scope of ʺ[a] conformity clause in a[n 15
insurance] policy . . . [as] provid[ing] that clauses which are in conflict with the 16
6 Because we agree that the provision does not clearly signal the partiesʹ intent to be
governed by New Jersey law, we need not reach the district courtʹs ruling that this
clause is invalid because of Fischer’s fraud (but, counterintuitively, not the policy as a
whole).

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statutes are declared and understood to be amended to conform to such 1
statutes.ʺ). 2
The Rhode Island Supreme Court reviewed an identical provision in 3
another of Lincolnʹs policies and concluded that it was, indeed, a conformity 4
clause: 5
The unambiguous title of the provision establishes that 6
its purpose is to ensure that the annuity conforms with 7
each stateʹs laws relating to insurance, investments and 8
other relevant subjects, and, if not in compliance with 9
state law, the annuity will not be held invalid by 10
Lincoln. Indeed, the second sentence of the provision 11
makes this explicit, articulating that Lincoln will treat 12
the SIA as enforceable even if a state law invalidates a 13
particular provision of the contract. 14
15
DeCesare v. Lincoln Benefit Life Co., 852 A.2d 474, 482 (R.I. 2004). 16
We do not foreclose the possibility that a single policy provision might 17
constitute both a conformity clause and a choice‐of‐law clause. We conclude 18
only that the provision in the policy at issue here, as written, is not both.7 If the 19
7 To the extent courts, in non‐precedential opinions, have construed similar language
in other policies to do double duty, we do not follow their decisions. See Montague v.
Dixie Natʹl Life Ins. Co., No. 3:09‐cv‐687‐JFA, 2011 WL 2294146, at *10‐11, 2011 U.S. Dist.
LEXIS 61539, at *32 (D.S.C. June 8, 2011); Smith v. Lincoln Benefit Life Co., No. CIV. A. 08‐
01324, 2009 WL 789900, at *7, 2009 U.S. Dist. LEXIS 24941, at *17 (W.D. Pa. Mar. 23,
2009).

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parties intended this provision also to act as a choice‐of‐law clause, we would 1
expect it to bear a title that indicated it was serving both purposes. Instead, the 2
provision here was denominated ʺConformity With State Law,ʺ suggesting that it 3
was intended to be a conformity clause only. We would also anticipate that the 4
clause would name the chosen state if it were also operating as a choice‐of‐law 5
clause. Lincolnʹs conformity clause, to the contrary, does not state anything like, 6
hypothetically: ʺThis certificate is to be governed by the laws of New Jersey. If 7
any part of the certificate does not comply with New Jersey law, it will be treated 8
as if it did.ʺ Instead, it refers to ʺthe state where the application was signed.ʺ 9
Fischer Policy, Page 16, at Joint Appʹx 98. And, in making the certificate ʺsubject 10
toʺ such laws, the clause suggests only conformity to such laws. 8 11
8 Lincoln argues that the ʺsubject toʺ language of the provision sufficiently establishes
that the provision is also a choice‐of‐law clause. In support, it points to our opinion in
Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 162 (2d Cir. 1998). But Advani
is inapposite. First, the clause at issue in Advani—ʺsubject to English law and
practiceʺ—specified within the clause itself the jurisdiction whose law was to be
applied. Id. at 159. Second, our opinion interpreted the language against the drafter,
who in that case argued that English law should not apply. Id. at 162‐63. Moreover, the
ʺsubject toʺ provision in Advani—unlike the provision here—was not preceded by a
heading identifying it as a ʺConformity Clause,ʺ and it does not appear that any party
argued that it should be interpreted as one.

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The language, even if viewed as a choice‐of‐law clause, is at best 1
ambiguous as applied to the facts of this case. The district court found that the 2
principal portion of the contract was in fact signed in New York, despite 3
purporting to be signed in New Jersey. Is ʺthe state where the application was 4
signedʺ the actual or the purported location? Lincoln argued that this question 5
should be resolved in its favor. But we are obligated to resolve any ambiguity 6
against Lincoln, the contractʹs drafter.9 See Guardian Life Ins. Co. of Am., Inc. v. 7
Schaefer, 70 N.Y. 2d 888, 890, 519 N.E.2d 288, 289, 524 N.Y.S.2d 377, 378 (1987); 8
Pacifico v. Pacifico, 920 A.2d 73, 78 (N.J. 2007). 9
Indeed, as far as we can tell, most courts to consider the issue have held 10
that a conformity clause does not determine the applicable law. Sonoco Bldgs., 11
Inc. v. Am. Home Assurance Co., 877 F.2d 1350, 1352 (7th Cir. 1989) (stating that a 12
conformity clause ʺmerely indicates an intent to avoid inconsistencies between 13
9 Lincoln argues that we should not interpret the contract against it, the defrauded
party. See generally DeSola Grp., Inc. v. Coors Brewing Co., 199 A.D.2d 141, 141, 605
N.Y.S.2d 83, 84 (1st Depʹt 1993); Kahn v. Great‐W. Life Assur. Co., 61 Misc. 2d 918, 923, 307
N.Y.S.2d 238, 244 (Sup. Ct. Richmond Cty. 1970). This argument might be persuasive if
Lincolnʹs adversaries were Fischer and her son. But the principle carries considerably
less weight here because AEI was an innocent bona fide purchaser, not the fraudster.
Cf. Bankers Tr. Co. v. Litton Sys., Inc., 599 F.2d 488, 492‐93 (2d Cir. 1979) (ʺWhere an
innocent third party, such as a holder in due course, is suing upon an illegal contract,
the policy argument is inapplicable because the plaintiff has done no wrong for which it
should be penalized.ʺ).

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the statutory laws of the state in which the policy was issued and the terms of the 1
policy,ʺ and does not act ʺas the source of law for interpreting the terms of the 2
policy.ʺ (emphasis in original)); Crisler v. Unum Ins. Co. of Am., 366 Ark. 130, 134, 3
233 S.W.3d 658, 661 (2006) (concluding that a conformity clause is not a choice‐of‐ 4
law clause because ʺ[n]o specific state is mentioned, and a reasonable 5
construction of this provision is simply that any illegal provisions are void to the 6
extent that they deviate from the law of the state in which the policy is 7
deliveredʺ); DeCesare, 852 A.2d at 482‐83 (holding that Lincolnʹs conformity 8
provision ʺis a savings clause and does not operate as a choice‐of‐law provisionʺ 9
because it does not ʺexpress[ly] stipulat[e] the partiesʹ intentʺ); see also Natʹl Sur. 10
Corp. v. Mack, No. CV 15‐35‐BLG‐SPW, 2015 WL 8779995, at *2, 2015 U.S. Dist. 11
LEXIS 167634, at *5 (D. Mont. Dec. 15, 2015) (noting that ʺthe provision entitled 12
ʹConformance with State Lawʹ does not operate as a choice‐of‐law provisionʺ); 13
Ins. Co. of N. Am. v. San Juan Excursions, Inc., No. C05‐2017z, 2006 WL 2635635, at 14
*4, 2006 U.S. Dist. LEXIS 68240, at *13 (W.D. Wash. Sept. 12, 2006) (concluding 15
that the injured claimantʹs ʺassumption that the Policyʹs conformity‐to‐state‐law 16
provision operates as a choice‐of‐law provision is mistakenʺ).10 We agree with 17
10 Not all courts agree. See Montague, 2011 WL 2294146, at *10‐11, 2011 U.S. Dist. LEXIS
61539, at *32 (deciding that identical language ʺappears to be a combination of a choice‐

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AEI Life, LLC v. Lincoln Benefit Life Co.
19
these courts and conclude that Lincolnʹs conformity clause does not dictate 1
which stateʹs law applies in this matter. 2
III. Center of Gravity 3
Without an effective choice‐of‐law provision to guide us, we must resort to 4
New Yorkʹs conflict‐of‐law analysis to determine whether New York or New 5
Jersey substantive law applies. New York ʺlooks to the ʹcenter of gravityʹ of a 6
contract to determine choice of law.ʺ11 Forest Park Pictures, 683 F.3d at 433 (citing 7
of‐law provision, as well as a form of a savings clause in the event that part of the
policies violated South Carolina lawʺ); Smith, 2009 WL 789900, at *7, 2009 U.S. Dist.
LEXIS 24941, at *17 (concluding without analysis that Lincolnʹs conformity clause is a
choice‐of‐law clause). The only New York court (either federal or state) expressly to
consider the issue left the question unresolved. See Eagley v. State Farm Ins. Co., No. 13‐
CV‐6653P, 2015 WL 5714402, at *6 n.4, 2015 U.S. Dist. LEXIS 132184, at *16 n.4
(W.D.N.Y. Sept. 29, 2015); cf. Frank v. Reassure Life Ins. Co., No. 12 Civ. 2253 (KEF), 2012
WL 5465027, at *5, 2012 U.S. Dist. LEXIS 161512 , at *14 (S.D.N.Y. Nov. 9, 2012)
(concluding without discussion that a policyʹs clause stating ʺ[a]ny provision of this
Policy which conflicts on its Date of Issue, with the statutes of the state where you live
will be automatically amendedʺ constituted ʺdesignat[ion of] the law of the state of the
insured as applicable lawʺ), affʹd, 548 F. Appʹx 706, 708 n.5 (2d. Cir. 2013) (observing
parties agreed on appeal as to the choice of law). After the Eagley court noted the split
in authority, it concluded that it need not decide the question because New York law
applied irrespective of whether the clause was an enforceable choice‐of‐law provision.
Eagley, 2015 WL 5714402, at *6 n.4, 2015 U.S. Dist. LEXIS 132184, at *16 n.4. We think
that this judicial disagreement at most underscores the provisionʹs ambiguity.
11 Before determining ʺcenter of gravity,ʺ courts must first consider ʺwhether an actual
conflict exists between the laws of the jurisdictions involved.ʺ Forest Park Pictures, 683
F.3d at 433. The district court and the parties agree that such conflict exists as to
Lincolnʹs ability to seek a declaration that the policy here is invalid. See AEI Life, 225 F.
Supp. 3d at 148 (determining that in New York, but not New Jersey, an incontestability

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AEI Life, LLC v. Lincoln Benefit Life Co.
20
In re Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 226, 613 N.E.2d 936, 939, 597 1
N.Y.S.2d 904, 907 (1993)). ʺUnder this approach, courts may consider a spectrum 2
of significant contacts, including the place of contracting, the places of 3
negotiation and performance, the location of the subject matter, and the domicile 4
or place of business of the contracting parties.ʺ Brinkʹs Ltd. v. S. African Airways, 5
93 F.3d 1022, 1030‐31 (2d Cir. 1996). But ʺ[t]he place of contracting and place of 6
performance are given the greatest weight.ʺ Forest Park Pictures, 683 F.3d at 433. 7
The district court made several findings of fact that are relevant to this 8
inquiry. Most importantly, it found that 9
[t]he policy was negotiated, contracted, signed, and 10
issued in New York to individuals residing in New 11
York. The broker and general agency who sold the 12
policy were located in New York, and the Trust was 13
executed and operative in New York. Transfers of the 14
Trust’s funds were made through a New York bank 15
account. 16
17
AEI Life, 225 F. Supp. 3d at 149 (internal citation omitted). By contrast, the court 18
detected only minimal contacts with New Jersey. It found that Fischer, her son, 19
and the broker falsely stated that the application was signed in New Jersey, even 20
clause bars contests to a policy after two years, without exceptions for claims of fraud or
lack of insurable interest).

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AEI Life, LLC v. Lincoln Benefit Life Co.
21
though it was in fact signed in New York. Id. And Lincoln—which was licensed 1
to provide insurance in New Jersey, not New York—submitted the form used for 2
the Fischer policy to the New Jersey Department of Insurance. Id. at 148‐49. 3
The two most important factors under New York law are the place of 4
contracting and the place of performance. Based on the district courtʹs factual 5
findings—which, we conclude, were not erroneous (let alone clearly so)—the 6
place of contracting is New York: the state in which ʺthe policy was negotiated, 7
contracted, and signed.ʺ Id. at 149. The place of performance for an insurance 8
contract is the location where ʺthe premiums [are] billed and a claim on the 9
policy [is] made.ʺ Fed. Ins. Co. v. Keybank Natʹl Assʹn, 340 F. Appʹx 5, 8 (2d Cir. 10
2009) (summary order). The district court found that the premiums were billed 11
to New York citizens and paid out of a New York bank account. AEI Life, 225 F. 12
Supp. 3d at 149. And throughout the life of the policy, the claim was to be paid 13
in New York. When the policy was created, the benefit was to be paid to the 14
Fischer Trust in New York. Now, the benefit is to be paid to AEI in New York. 15
As to the other center‐of‐gravity factors: Fischer and Irving were both 16
domiciled in New York. AEI is a citizen of New York, and Lincoln is a citizen of 17
Nebraska, not New Jersey. All the contract negotiations between the Fischers 18

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AEI Life, LLC v. Lincoln Benefit Life Co.
22
and the broker occurred in New York. The principal contact with New Jersey 1
was the purported place of signing, but even if we assumed this fictional place of 2
signing were real for the choice‐of‐law analysis,12 that one contact would not 3
outweigh the significance of New Yorkʹs various relationships with the policy. 4
Considering the totality of these contacts, we endorse the district courtʹs 5
conclusion. To employ its felicitous phrasing: ʺThe center of gravity here is as 6
clearly fixed in New York as is the Empire State Building.ʺ Id. at 141. 7
IV. New York Substantive Law 8
Proceeding under New Yorkʹs substantive law, then, we turn to Lincolnʹs 9
assertions of error by the district court in granting AEIʹs motion for summary 10
judgment. 11
1. Public Policy Exception 12
Lincoln first argues that Fischerʹs policy should be void ab initio because it 13
constitutes a wager on human life. Under this theory, New Yorkʹs 14
12 Lincoln argues that AEI should be estopped from denying that the contract was
executed in New Jersey and cites to non‐binding case law to suggest that parties cannot
use their fraud on insurance applications to their advantage. See, e.g., Am. Centennial
Ins. Co. v. Sinkler, 903 F. Supp. 408, 413, 417 (E.D.N.Y. 1995); Matter of Eagle Ins. Co. v.
Singletary, 279 A.D.2d 56, 59, 717 N.Y.S.2d 351, 353 (2d Depʹt 2000). These cases are
plainly distinguishable from the case at bar: AEI did not commit, or indeed know about,
the fraud perpetrated against Lincoln.

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AEI Life, LLC v. Lincoln Benefit Life Co.
23
incontestability law would be irrelevant because the policy was void at its 1
inception, i.e., it was never effective in the first place.13 Lincoln cites cases from 2
other states, or cases applying out‐of‐state law, to support its argument that 3
STOLI policies are void ab initio. Although conceding that no New York court 4
has so held, Lincoln contends that New England Mutual Life Insurance Co. v. Doe, 5
93 N.Y.2d 122, 710 N.E.2d 1060, 688 N.Y.S.2d 459 (1999) supports its position. 6
We disagree. There, the New York Court of Appeals interpreted an 7
incontestability clause in a disability insurance policy, declining to find an 8
exception for fraud. But this case hinges on a difference between New Yorkʹs 9
incontestability law for disability insurance and for life insurance. New York’s 10
incontestability law for disability insurance provides an exception for application 11
fraud—an exception not available in the incontestability statute for life insurance 12
policies. Compare N.Y. Ins. L. § 3216(d)(1)(B)(i) (providing an exception to the 13
incontestability defense for claims relating to ʺfraudulent misstatementsʺ), with 14
13 Policies void at inception never come into existence, while voidable policies are in
effect until the insurer challenges them and, under New York law, may not be contested
after two‐years have elapsed since the policy was issued. Caruso, 73 N.Y.2d at 76, 535
N.E.2d at 271, 538 N.Y.S.2d at 218; see generally 17 Couch on Ins. § 240:67 (3d ed. 2017)
(ʺAn incontestable clause means exactly what it says; that is, it cuts off all defenses
based on misrepresentations where the policy is not affirmatively repudiated within the
incontestable period, at least when the misrepresentations are not such as to render the
entire policy void ab initio under the law of the jurisdiction.ʺ).

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AEI Life, LLC v. Lincoln Benefit Life Co.
24
N.Y. Ins. L. § 3203(a)(3) (providing no exception to the incontestability defense 1
for fraud). Thus, the court determined that when a disability insurer drafted its 2
policyʹs incontestability clause without including a fraud exception, the insurer 3
made the calculated decision to exclude it and could therefore not seek to 4
invalidate its policy based on fraud after two years had elapsed since the policy 5
became effective. New Eng. Mut. Life Ins. Co. v. Doe, 93 N.Y.2d at 130‐31, 710 6
N.E.2d at 1063‐64, 688 N.Y.S.2d at 463. 7
Lincoln cites language from the Doe opinion, id., which, it urges, indicates 8
that the court would have ruled differently if it were analyzing a life insurance 9
policy that was not legally permitted to contain an exception for fraud (as we are 10
here): ʺWere we faced with a choice between fraud and statutory design, a far 11
more difficult case would be presented. It would be difficult for us to conclude 12
that the Legislature knowingly enacted a statute that would encourage fraud. 13
But that is not the case.ʺ Id. at 130‐31, 710 N.E.2d at 1063, 688 N.Y.S.2d at 463. 14
This language appears to be no more than an equivocation by the Doe court 15
about an issue not then before it. We therefore agree with the district court here 16
that ʺ[d]icta suggesting that public policy could bar enforcement or that a court 17

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AEI Life, LLC v. Lincoln Benefit Life Co.
25
considering disability insurance might rule differently if life insurance were at 1
issue, are inapplicable.ʺ AEI Life, 225 F. Supp. 3d at 150 (emphasis in original). 2
Moreover, the New York Court of Appeals has rejected just that argument 3
in a case that is strikingly similar to the one before us: New England Mutual Life 4
Insurance Co. v. Caruso, 73 N.Y.2d 74, 535 N.E.2d 270, 538 N.Y.S.2d 217 (1989). 5
There, an insurer sought to challenge a life insurance policy after the two‐year 6
contestability period expired. Like Lincoln, the insurer argued that the policy 7
was void ab initio because the beneficiary impermissibly lacked an insurable 8
interest and because wagering contracts are to be discouraged.14 Id. at 76, 535 9
N.E.2d at 271, 538 N.Y.S.2d at 218. 10
The court was not convinced: ʺ[N]othing in the statutory scheme makes 11
void ab initio policies acquired by one lacking an insurable interest or forecloses 12
the application of an incontestable clause to bar an insurerʹs disclaimer of 13
liability.ʺ Id. at 80‐81, 535 N.E.2d at 273, 538 N.Y.S.2d at 221. The court noted 14
14 New York insurance law defines ʺinsurable interestʺ as either (1) in the case of
persons closely related by blood or law, ʺa substantial interest engendered by love and
affectionʺ or (2) ʺa lawful and substantial economic interest in the continued life, health
or bodily safety of the person insured.ʺ N.Y. Ins. Law § 3205(a)(1). In Caruso, the
beneficiary was a business partner of the insured, but was alleged to have no economic
interest in his life or health. Caruso, 73 N.Y.2d at 80, 535 N.E.2d at 273, 538 N.Y.S.2d at
220.

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AEI Life, LLC v. Lincoln Benefit Life Co.
26
that ʺfurther deterrentsʺ against wagering contracts would only have a marginal 1
benefit, while permitting insurers to contest a contract after two years would 2
ʺresult in a forfeiture to [the beneficiary] and an unnecessary advantage to [the 3
insurer].ʺ Id. at 82, 535 N.E.2d at 274, 538 N.Y.S.2d at 221. In reaching this 4
conclusion, the court noted that insurers are not defenseless—they may challenge 5
invalid policies, but must do so promptly within the applicable time limit. Id. at 6
82‐83, 535 N.E.2d at 274‐75, 538 N.Y.S.2d at 222. Caruso leaves little room for 7
doubt, we think, that under New York law, wagering insurance contracts entered 8
for the benefit of parties that lack an insurable interest are simply voidable, not 9
void ab initio, and therefore cannot be challenged after the contestability period 10
has expired. 11
2. Fischerʹs Consent 12
Lincoln also argues that the policy was void ab initio because Fischer never 13
consented to it. Fischer testified that she was unaware of the life insurance 14
policy and denied signing the application. Maybe so, but New York’s 15
incontestability law does not create an exception for lack of consent. Again, we 16
are bound by Caruso, 73 N.Y.2d at 79‐83, 535 N.E.2d at 272‐75, 538 N.Y.S.2d at 17
219‐22. The court’s decision—concluding that policies lacking an insurable 18

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AEI Life, LLC v. Lincoln Benefit Life Co.
27
interest are not void ab initio, but only voidable upon an insurerʹs challenge 1
within the contestability period—was dependent on its analysis of the language 2
found in New York Insurance Law Section 3205. Section 3205 requires insurance 3
policies to have both an insurable interest and the insuredʹs consent: ʺSection 3205 4
says that such contracts shall not be ʹprocuredʹ unless the benefits are payable to 5
one having an insurable interest and are issued with the consent of the insured.ʺ 6
Caruso, 73 N.Y.2d at 79, 535 N.E.2d at 272, 538 N.Y.S.2d at 220 (emphasis added). 7
The court decided that Section 3205ʹs ʺprocurementʺ language, when compared 8
to the stronger terms used in other sections of the insurance law, indicated that 9
the legislature did not intend to void such policies at inception. Id. at 79‐81, 535 10
N.E.2d at 272‐74, 538 N.Y.S.2d at 219‐21. 11
[O]ther sections provide that policies on the life of 12
minors shall not be ʺissuedʺ except in certain amounts 13
and that policies on property are not ʺenforceableʺ 14
except for the benefit of one having an insurable 15
interest. Such terms are traditionally used when 16
policies are void at inception and enforcement is 17
contrary to public policy. They differ substantially from 18
the prohibition against ʺprocurementʺ found in 19
section 3205. 20
21
Id. at 80, 535 N.E.2d at 273, 538 N.Y.S.2d at 220 (citations omitted). 22

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AEI Life, LLC v. Lincoln Benefit Life Co.
28
We think the Court of Appealsʹ interpretation of Section 3205 extends to 1
lack of consent. See id. at 79, 535 N.E.2d at 272, 538 N.Y.S.2d at 220 (interpreting 2
Section 3205 to forbid the procurement of policies without an insurable interest 3
or the insuredʹs consent). Section 3205ʹs prohibition as to lack of consent does 4
not, like insurable interest, use the stronger terms identified by the Caruso court, 5
such as ʺissuedʺ or ʺenforceable,ʺ which the court thought generally to indicate 6
that a policy was void at inception. Id. at 79‐81, 535 N.E. 2d at 72‐73, 588 N.Y.S2d 7
at 520; N.Y. INS . L AW § 3205(c) (stating that ʺ[n]o contract of insurance . . . shall be 8
made or effectuated unless . . . the person insured . . . applies for or consentsʺ). 9
And we agree with the courts that have held similarly. See Berkshire Settlements, 10
Inc. v. Ashkenazi, No. 09‐CV‐0006, 2011 WL 5974633, at *5, 2011 U.S. Dist. LEXIS 11
136663, at *15 (E.D.N.Y. Nov. 29, 2011) (relying on Caruso to conclude that ʺ[t]he 12
Court can think of no reason why the insured consent provision would receive a 13
different treatmentʺ than the insurable interest provision, and holding that the 14
incontestability clause prevented a consent‐based challenge to the policy); 15
Halberstam v. United States Life Ins. Co. in the City of N.Y., 36 Misc. 3d 497, 502, 945 16
N.Y.S.2d 513, 517 (Sup. Ct. Kings Cty. 2012) (relying on Berkshire Settlements to 17

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AEI Life, LLC v. Lincoln Benefit Life Co.
29
conclude that the expiration of a life insurance policy’s two‐year contestability 1
period prevented an insurer from challenging consent). 2
Some New York courts have held that forged names on an insurance 3
application will void a policy at inception, see McHugh v. Guardian Life Ins. Co. of 4
Am., 277 A.D.2d 1016, 1017, 716 N.Y.S.2d 178, 179 (4th Dep’t 2000); Choczner v. 5
William Penn Life Ins. Co. of N.Y., 212 A.D.2d 750, 752, 623 N.Y.S.2d 597, 598‐99 6
(2d Dep’t 1995), and constitute a proper challenge to a life insurance policy after 7
the contestability period has tolled, see Am. Mayflower Life Ins. Co. of New York v. 8
Moskowitz, 17 A.D.3d 289, 292, 794 N.Y.S.2d 32, 35 (1st Depʹt 2005). But there is 9
authority to the effect that this exception, if it exists under New York law, 15 does 10
15 The New York lower courts are divided on the issue of whether lack of consent
renders a policy voidable or void ab initio. Compare McHugh, 277 A.D.2d at 1017, 716
N.Y.S.2d at 179 (void ab initio), and Choczner, 212 A.D.2d at 752, 623 N.Y.S.2d at 598‐99,
with Halberstam, 36 Misc. 3d at 502, 945 N.Y.S.2d at 517 (voidable). We are not required
to follow any of those decisions, however. ʺWe are bound, as was the district court, to
apply the law as interpreted by New Yorkʹs intermediate appellate courts . . . unless we
find persuasive evidence that the New York Court of Appeals, which has not ruled on
this issue, would reach a different conclusion.ʺ Pahuta v. Massey‐Ferguson, Inc., 170 F.3d
125, 134 (2d Cir 1999); cf. Strubbe v. Sonnenschein, 299 F.2d 185, 188 (2d Cir. 1962) (noting
that we are unlikely to rely on lower state court decisions if they appear to conflict with
a ruling of the stateʹs highest court, the courts are divided on the issue, or we are
ʺconvinced by other persuasive data that the highest court of the state would decide
otherwiseʺ) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). In light of our
analysis of the Court of Appealsʹ opinion in Caruso above, we are, indeed, persuaded
that the New York Court of Appeals would conclude, if the question were squarely
before it, that policies lacking consent because of forgery are only voidable at the
request of the insurer within the contestability period.

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AEI Life, LLC v. Lincoln Benefit Life Co.
30
not apply where ʺa trust was the undisputed purchaser, owner and beneficiary of 1
the policy,ʺ because ʺthe trust is not a stranger to the policy, even where the 2
insured did not consent to its purchase.ʺ Halberstam, 36 Misc. 3d at 500‐01, 945 3
N.Y.S.2d at 516. Here, the Fischer Trust was the beneficiary and purchaser of the 4
policy, and its trustee, Irving, testified that he negotiated the application with 5
Jacob and signed documents related to the policy. The Trust was thus not a 6
stranger to the policy, and Lincoln’s challenge to Fischer’s consent is also barred 7
by New York’s incontestability law. 8
3. Trust Formation 9
Finally, Lincoln argues that it was entitled to a jury trial on the issue of 10
whether the Fischer Trust was validly established. In general, if a trust is not 11
properly formed, it cannot enter into a contract. See, e.g., Fasano v. DiGiacomo, 49 12
A.D.3d 683, 685, 853 N.Y.S.2d 657, 659 (2d Depʹt 2008). Lincoln argues that the 13
Trust was not compliant with New York law because Fischer’s signature 14
establishing the Trust was a forgery. The district court determined, however, 15
that because the trust document was notarized, there was a presumption that the 16
signature was authentic, which could only be successfully rebutted by clear and 17
convincing evidence. AEI Life, 224 F. Supp. 3d at 151 (citing Orix Fin. Servs., Inc. 18

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AEI Life, LLC v. Lincoln Benefit Life Co.
31
v. Roth, No. 06‐CV‐2069, 2008 WL 953994, at *5, 2008 U.S. Dist. LEXIS 28554, at 1
*16‐17 (S.D.N.Y. Apr. 8, 2008); Orix Fin. Servs., Inc. v. Thunder Ridge Energy, Inc., 2
No. 01‐CV‐4788, 2006 WL 587483, at *18, 2005 U.S. Dist. LEXIS 401889, at *39 3
(S.D.N.Y. Mar. 8, 2006); Chianese v. Meier, 285 A.D.2d 315, 320, 729 N.Y.S.2d 460, 4
466 (1st Depʹt 2001), aff’d as modified and remanded, 98 N.Y.2d 270, 774 N.E.2d 722, 5
746 N.Y.S.2d 657 (2002); Spilky v. Bernard H. La Lone Jr., P.C., 227 A.D.2d 741, 743, 6
641 N.Y.S.2d 916, 917‐18 (3d Depʹt 1996)). The district court decided that 7
Lincoln’s evidence was not sufficiently clear and convincing to rebut this 8
presumption. Id. at 150‐51. 9
We agree. Lincolnʹs primary evidence to suggest forgery is the testimony 10
of a handwriting expert, who concluded that the Fischer signature on the trust 11
document matched the Fischer signature on the policy application. And because 12
Fischer testified that she did not sign the policy application, Lincoln argues that 13
we should infer that she also did not sign the trust document, and that the same 14
Fischer imposter forged Fischerʹs signature on both occasions. We conclude that 15
no reasonable juror could find Lincolnʹs indirect evidence that Fischerʹs signature 16
was forged to be ʺclear and convincing.ʺ Unlike the policy application, Lincoln 17
offered no direct testimony from Fischer that she had not signed the trust 18

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AEI Life, LLC v. Lincoln Benefit Life Co.
32
document. Moreover, in his own report, the handwriting expert proffered by 1
Lincoln acknowledged ʺintrinsic limits in the examination of copies rather than 2
original documentsʺ and that the copies he examined were ʺvery low quality 3
images, making it difficult, if not impossible, to see the fine details in the 4
images.ʺ Joint Appʹx 696. This testimony is too weak to warrant the inferential 5
leap Lincoln suggests or rebut the presumption of authenticity created by 6
notarization. Lincoln’s challenge to the Trust’s validity therefore also fails. 7
CONCLUSION 8
We have considered all the partiesʹ remaining arguments on appeal and 9
conclude that they are without merit. For the foregoing reasons, we AFFIRM the 10
judgment of the district court. 11

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