Monthly Archives: May 2014

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House Republicans Draft TRIA Proposal Could Mean Big Changes to Come

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Last week, Rep. Randy Neugebauer (R-TX), Chairman of the House Insurance Subcommittee, released to his fellow Republicans a draft proposal to extend the federal terrorism insurance program. That proposal, now made public, would bring drastic changes to a program that has helped to stabilize the market since its 2002 creation. At this point, the proposal is only in outline form with bill language expected over the next few weeks.

The proposal, entitled the Terrorism Risk Insurance Modernization Act of 2014, would extend the TRIA program for only three years while significantly increasing the program trigger limit to $500 million from $100 million, for non-NBCR events, and reducing the annual government assistance cap from $100 billion to $75 billion. The government’s co-share of losses would decrease from its current 85% to 75% beginning in 2017, for non-NBCR events. The government’s responsibility and trigger would remain the same for NBCR certified acts.

The industry has been expecting adjustments to be made to TRIA, upon its extension; however, the numbers included in the Republican proposal are more drastic than many envisioned. Beyond concerns with the changes to the program trigger and co-share percentages, there are additional concerns with language in the proposal allowing for small insurers to opt-out and an implication that domestic terrorism events would no longer be covered by the program.

The requirement that insurers offer terrorism coverage is the backbone of the program, and allowing some insurers to opt-out of offering such coverage could lead to reduced capacity and higher prices for consumers. Excluding domestic terrorism would also be a mistake, as history has shown us that terrorists can come from inside and outside the United States.

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If there is a positive in the House Republican proposal, it is in changes to the certification process. Many industry groups, including RIMS, have been asking for a timeline for events to be certified as “acts of terrorism.” The proposal includes a deadline of 90 days.

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The House Republican proposal is a far cry from the recent Senate agreement. That bi-partisan legislation, S.

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2244, would extend the program for seven years while making much smaller adjustments to the program. If both chambers pass bills along current lines, then the conference committee would have a lot of work to do in order to rectify the two pieces of legislation into a compromise extension.

Strong ERM Gives Companies Higher Market Value

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A new study, “The Valuation Implications of Enterprise Risk Management Maturity,” released by the Journal of Risk and Insurance, has found that organizations exhibiting mature risk management practices realize a value growth potential of up to 25%.

The survey is the first wholly independent research project that confirms the value connection of mature enterprise risk management practices in organizations.

Using data from the RIMS Risk Maturity Model (RMM) gathered from 2006 to 2011, Mark Farrell, the paper’s author and the actuarial science and risk management program director at Queens University Management School of Belfast (QUMS) and Dr. Ronan Gallagher of the University of Edinburgh Business School, provided evidence through this research that firms that have reached mature levels of enterprise risk management qualities exhibit a higher firm value.

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 The broad data set encompassed publicly-traded organizations from a variety of industries. Nearly half the data tabulated by the researchers were submitted by RIMS members.

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The study’s authors reported that “firms that have successfully integrated the ERM process into both their strategic activities and everyday practices display superior ability in uncovering risk dependencies and relationships across the entire enterprise and as a consequence enhanced value when undertaking the ERM maturity journey.”

The authors added, “Upon decomposition of the maturity score, we find that the most important aspects of ERM from a valuation perspective relate to the level of top-down executive engagement and the resultant cascade of ERM culture throughout the firm.”

The RIMS Risk Maturity Model for Enterprise Risk Management (RIMS RMM), was developed in 2005 by risk professionals and LogicManager, and is a free assessment tool for risk professionals and executives to develop and improve sustainable enterprise risk management programs. This online resource allows organizations to score their risk programs and receive an immediate downloadable report.

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The report provides information not only on current maturity levels, but offers ideas on what it may take to achieve a higher level of maturity in each of seven attributes.

“One of the biggest challenges in implementing an enterprise risk management program is articulating the value that it brings,” said Carol Fox, RIMS director of strategic and enterprise practice. “This research makes that value link quite clear. Although the study necessarily focused on publicly traded companies, the value proposition of enterprise risk management applies to not-for-profits and the public sector as well. In highlighting this research, we hope that more organizations will take advantage of the RIMS Risk Maturity Model to improve their risk practices and, in turn, create additional enterprise value.”

Steven Minsky, CEO of LogicManager and developer of the RIMS Risk Maturity Mode noted, “Boards and ERM committees now have an actionable internal road map and a corresponding return on investment measure to improve their enterprise risk management maturity from whatever level they are at today.”

Temple University Students Winners of Risk and Insurance ‘Super Bowl’

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Pictured above, left to right, are RIMS Executive Director Mary Roth; Zakia Campbell, vice president, Spencer Educational Foundation and executive vice president, Willis NA; competition winners Cathleen Gabriel, Steven Costa and Martin Leicht; and Carolyn Snow, RIMS president and director of risk management for Humana Inc. Not pictured is winner William Thorsson. Photo by Joseph Zwielich

Four Temple University students are the new winners of the 2014 Spencer-RIMS Risk Management Challenge, a competition that began in January with 15 universities. Each team was presented with a risk management situation—a case study provided by Dan Kugler, the now retired risk manager for Snap-on Inc., and newly hired director of the Center of Risk Management-and Insurance at the University of Wisconsin Oshkosh. Each team was asked to make a presentation to “win” Snap-on’s broker business.

The teams submitted written papers prior to the Denver RIMS conference and the field was narrowed to nine schools. During the conference, the nine schools made oral presentations to a panel of 10 judges and three schools were named finalists: Temple University, Florida State University and Virginia Commonwealth University. Those finalists presented one last time in front of risk professionals at the conference.

The second-place winner of the challenge was Florida State University and the third-place team was Virginia Commonwealth University.

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 The first-place university received 00, second ,000 and third ,000.

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Kugler noted, “It was exciting to see a large contingent of colleges participating. This is like the Super Bowl for risk management and insurance! The RIMS conference was a great place for the students to demonstrate their abilities, and I only can see this competition growing. I was very pleased with how they analyzed Snap-on in a broad case study.”

Cathleen Gabriel, a senior from Temple University, a member of the winning team and one of 35 students who competed in the challenge said, “Looking back at my academic career, I never expected to compete and present on a national level.” She described working with teammates Martin Leicht, Steven Costa and William Thorsson as “an amazing experience in itself. I am very excited for each of our respective professional careers, especially after I have seen the work ethic and quality of each person.

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Two weeks shy of graduation, competing and winning the Spencer-RIMS Risk Management Challenge is a tremendous way to end a remarkable college career!” The team’s academic adviser was Michael McClosky.

Brion Callori, the newly-elected chairman of the Spencer Educational Foundation, said, “We are pleased to have provided RIMS with a grant to hold the risk management challenge. The competition showcased the knowledge, skills and abilities of tomorrow’s industry leaders and at the same time, provided the participants with a tremendous learning opportunity. The students from all 15 schools were well-prepared and insightful, and we congratulate Temple University on winning this distinguished competition.”

RIMS Executive Director Mary Roth said the Challenge is “an engaging way to showcase the brilliant minds of these future industry leaders.” In addition to providing students with a platform to show off their risk management talents, the competition “is also a reminder to established professionals at our conference about the importance of supporting the next generation of risk professionals.”

Finalists of the Spencer-RIMS Risk Management Challenge. Photo by Joseph Zwielich

Texas Fires Back at EEOC Motion

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We normally pass, on blogging about briefs filed by a party before a court ruling, but Texas’ litigation against the EEOC and U.S. Attorney General Eric Holder is not shaping up to be just an everyday lawsuit.

This is a must read for employers. It goes to the heart of what the EEOC is doing these days, and how it is carrying out its duties.

Case Background

In April 2012, the EEOC issued guidance urging businesses to avoid a blanket rule against hiring individuals with criminal convictions, reasoning that such rules could violate Title VII if they create a disparate impact on particular races or national origins. Like various other states, Texas has enacted statutes prohibiting the hiring of felons in certain job categories. In November 2013, Texas sued the EEOC, seeking to enjoin the enforcement of this guidance, which Texas has nicknamed the “Felon Hiring Rule.” In March of this year, Texas amended its complaint to include more specific allegations of injury. For example, Texas alleged that the EEOC issued a right-to-sue letter to an applicant who had been rejected by the Texas Department of Public Safety after disclosing on his application that he had been convicted of a felony (unauthorized use of a motor vehicle). Texas claimed that the job involved “access to sensitive personal information for all 26 million Texans.”

Against this backdrop is a growing firestorm of litigation initiated by the EEOC over hiring checks based on criminal backgrounds. We have blogged about those cases and rulings previously (here, here, here, here, and here).

Earlier this month, the EEOC filed a motion to dismiss Texas’ lawsuit. In its motion, the EEOC offered three primary arguments. First, the EEOC contends that the U.S. District Court lacks jurisdiction to hear the case because the EEOC’s guidance is not legally binding and does not constitute a final agency action. Second, and in part because the EEOC claims its guidance has no binding authority, the EEOC argues that Texas lacks standing to pursue its claims. As the EEOC stated, “[t]he state may disagree with the EEOC’s interpretation of the law, but that does not imbue the interpretation with any legal consequences.” Third, the EEOC said the state’s claims should be dismissed because they are not ripe.

The State Of Texas Replies

In its brief, Texas started by pointing out other cases in which the EEOC pursued administrative investigations and lawsuits against employers and invoked its 2012 guidance. Making the point that the EEOC was attempting to have its cake and eat it too, the state characterized the EEOC as arguing that the guidance is “not worth the paper it’s printed on—even though it urges other courts to defer to it.”

Having set the theme, Texas turned to its legal arguments. The state argued that whether or not the 2012 guidance was a “final agency action” was not a jurisdictional issue, as the EEOC contended it was. Nevertheless, the state explained why the 2012 guidance in fact constituted a “final agency action” under the Administrative Procedure Act. Texas argued that the EEOC’s argument, that only those rules and regulations that were entitled to Chevron deference were reviewable, improperly narrowed the term “action” in a way that “no case from any court in the history of the Nation” had adopted. Texas also pointed out that the EEOC could not prevent review under the APA simply by re-characterizing its process in order to avoid judicial scrutiny under the Act.

Turning to the standing  issue, Texas identified three types of injury it has suffered, each of which independently established Article III standing, including (i) as an employer, the State of Texas is subject to the EEOC’s “Felon Hiring Rule,” and the EEOC issuance of a right-to-sue letter to an applicant denied a job after a criminal background check demonstrates that the state has been subjected to enforcement of the rule; (ii) Texas is seeking to enforce its right to participate in the notice-and-comment provisions of the APA, and the EEOC’s failure to comply with the APA had denied Texas its right to do that; and (iii) Texas has been injured by the EEOC’s purported preemption of the State’s laws. As evidence of this final injury, Texas pointed to the EEOC’s own website, which states that the Felon Hiring Rule “says that state and local laws or regulations are preempted by Title VII” if they cause a disparate impact.

On the ripeness question, Texas argued that, despite the EEOC’s attempts to recast its 2012 guidance as not requiring “individualized assessments” of all job applications, the case remained ripe for adjudication because it presents the “purely legal question” of whether “the State of Texas can continue to follow its facially neutral blanket no-felons policies …or whether the state must abandon those facially neutral policies.”

Implications for Employers

In defending against Texas’ case, the EEOC may have compromised future efforts to enforce its “guidance” against employers in Texas and other jurisdictions. To the extent the EEOC attempts to rely upon its 2012 statements as the basis for prosecuting disparate impact cases focused on criminal background check practices, particularly in cases where the EEOC alleges that an employer willfully violated Title VII, employers need only turn to the EEOC’s representations to the U.S. District Court for fodder in their own defense. Stay tuned for the upcoming ruling in this case.

This column previously appeared on the Seyfarth Shaw blog site.