Monthly Archives: May 2016

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The Dos, Don’ts and Maybes of Social Media

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Social mediaIt takes one second to send a Tweet or Instagram post onto the internet for all to see. But for companies active on social media, the legal ramifications of those 140 characters or that one photo can last a whole lot longer.

At a recent seminar in New York, lawyers and communications professionals representing some of the world’s most famous brands learned a lot about the dos and don’ts of social media for companies, specifically companies interested in pushing boundaries but avoiding lawsuits. Perhaps more importantly, they learned a lot about the maybe dos and maybe don’ts through several real-world examples.

“When you get it wrong, it comes with a lot of implications,” said Maggie O’Neill, managing director and partner at strategic communications firm Peppercomm, which recently co-hosted the event with Davis & Gilbert LLP.

Sue Me, Maybe?

O’Neill and her counterpart, Davis & Gilbert marketing and promotions partner Allison Fitzpatrick, brought up one of the more famous “maybe don’ts” in recent memory: Peyton Manning’s proclamation after Super Bowl 50 that his first order of business was to “drink a lot of Budweiser,” setting off a social media firestorm.

“This had the potential to really blow up into something legal,” O’Neill said. After all, Manning isn’t a spokesman for Budweiser, but he does own several Budweiser distributors. The appearance of “free” advertising if, say, an implicit agreement between the two parties was in place, would have been a no-no, and the fact that it’s not common knowledge that Manning owns those distributors makes it a “maybe no-no.” Adeptly, a Budweiser communications pro tweeted that, while the brewer was “surprised and delighted” at Manning’s off-the-cuff endorsement, “Budweiser did not pay Peyton Manning” for it. While that tweet doesn’t guarantee Budweiser’s immunity from a government lawsuit, it certainly represents a skillful handling of the situation.

Know Your Subject

Not all companies have been as adept, O’Neill and Fitzpatrick pointed out. The Duane Reade chain famously got sued by Katherine Heigl after tweeting an unflattering photo of the actress coming out of one of its pharmacies carrying bags. Heigl sued for $6 million, claiming the company violated New York State and federal laws that protect the use of a person’s likeness for trade purposes. She eventually dropped the suit, but it made the kind of headlines Duane Reade – and most companies – never want.

Fast-food chain Arby’s, on the other hand, got universal kudos for its tweet about the hat worn by rapper Pharrell Williams at the 2014 Grammy’s, which looked similar to the one on the Arby’s logo. “Hey @Pharrell, can we have our hat back,” Arby’s tweeted, with the hashtag #GRAMMYs. Pharrell was a good sport about it, and when he eventually put the hat up for charity auction on eBay, Arby’s announced via Twitter that it was the party responsible for the $44,100 winning bid.

“The best part is, Pharrell did not sue,” Fitzpatrick said at the panel. But, she added, “it doesn’t mean there’s no risk.” One quick and easy first step, according to Fitzpatrick, is to do a quick Google search to “see if they’re litigious or not.”

Copyright Law in the 21st Century

For brands active on social media, copyright law is another consideration. Being mindful of trademarks like “Super Bowl” and “NCAA” while tweeting about events can save companies a lot of money from potential legal woes.

For instance, when TGI Friday’s pushed boundaries by petitioning the International Olympic Committee to make bartending an official sport, lawyers were kept in the loop to make sure the campaign garnered media and public interest on traditional and social media but didn’t cross any copyright law lines.

What’s next?

With technology constantly changing and regulators scrambling to adapt to those changes, Fitzpatrick said the next frontier could be regulatory action against celebrity spokespeople. It’s generally known around the world that Nike endorses Tiger Woods, but what if a celebrity whose endorsement deal is lesser-known doesn’t disclose the relationship in a tweet? This could be the next major question the Federal Trade Commission starts asking.

Key Guidelines

Fitzpatrick offered a few general guidelines that companies can follow.

  • When using hashtags, be careful not to suggest an endorsement or association between your brand and the event, unless there actually is one.
  • The more the merrier. See if other brands are tweeting about the event. If they are, chances are your legal risks are lower.
  • There are a lot of work-related reasons to follow, a brand, on social media, so most experts think a simple follow is probably okay. A “like” or a “share” could be a little dicier.
  • When in doubt, research, confirm, and speak to legal.

Companies Failing to Use Technology to Fight Fraud

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While an increasing number of malicious actors are using technology to perpetrate fraud, the vast majority of companies are not using the technological resources available to fight it.

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According to KPMG’s new report Global Profiles of the Fraudster, technology significantly enabled 29% of the 110 fraudsters analyzed in North America and 24% of the 750 fraudsters analyzed worldwide. What’s more, 25% of frauds that hinged on the use of technology were detected by accident rather than safeguards or analytics, compared to just 10% spotted by accident in cases where the criminals did not use technology.

Indeed, proactive data analytics was not the primary means of detection in any North American cases and was only used to detect 3% of fraudsters worldwide.

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In North America, the most common means of detecting fraud were: tip offs and complaints, management review, accidentally, suspicious superiors and internal audit.

KPMG found that weak internal controls contributed to 59% of frauds in North America.

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Companies are failing to focus on strengthening controls, the firm reported, despite the increasing threat of newer types of frauds, such as cyber fraud and continued traditional forms of wrongdoing.

“In addition to ensuring internal controls are thoughtfully designed, companies should deploy effective training and instill a culture of integrity so that controls are properly executed,” said Phillip Ostwalt, partner and Global Investigations Network Leader at KPMG LLP. “Companies should also adopt new controls as their risk profiles change. Ongoing risk assessments can help cost-constrained companies ensure they are properly investing in such controls.”

Who are these fraudsters?

  • 65% are between ages 36 and 55
  • 39% are employed by the victim organization for over six years, most in operations, finance or office of the chief executive
  • 42% operate in groups and 52% of collusive frauds involved external parties

Check out the infographic below for more of the study’s findings:

Profiles of the Fraudster InfographicFraudster Infographic Women

California’s New Localized Water Controls a Step Forward

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With higher levels of rain and snowfall over the winter, California’s water situation has eased in some areas, prompting the state to initiate new water conservation rules, adopted on May 18 and in effect June 1 through January 2017. The regulations give control over water usage to local communities, which means more restrictions in some areas than in others. In Northern California, winter precipitation has filled some reservoirs, while drought conditions persist in Southern California.

The previous rule—enacted in April 2015 by Gov. Jerry Brown, who issued an Executive Order mandating a 25% reduction of urban water usage from 2013 levels over a nine-month period—saw a savings of about 424 billion gallons. That followed a failed year-long effort to achieve a voluntary 20% reduction in water usage, with statewide conservation results averaging between just 7% and 12%.

The State Water Resources Control Board explained that the new approach replaces the percentage reduction-based water conservation standard with a localized approach. The emergency regulation requires that urban water suppliers ensure that at least a three year supply of water would be available to their customers in case of drought conditions. Suppliers that would face shortages under three additional dry years are now required to meet a conservation standard equal to the amount of a shortage. A water agency that projects it would have a 10% supply shortfall, for example, would have a mandatory conservation standard of 10%. The regulation also makes previously passed water-wasting rules permanent, including no hosing of sidewalks, washing cars without a hose nozzle, or watering lawns within 48 hours of measurable rainfall.

“El Nino didn’t save us, but this winter gave us some relief,” Water Board Chair Felicia Marcus said in a statement. “It’s a reprieve though, not a hall pass, for much if not all of California. We need to keep conserving, and work on more efficient practices, like keeping lawns on a water diet or transitioning away from them. We don’t want to cry wolf, but we can’t put our heads in the sand either.”

Will Sarni, director and practice leader of water strategy at Deloitte, agrees with the direction the state is taking on conservation.

While it may appear that restrictions are being eased, which could send the message that things are going back to business as usual, “It’s not business as usual, but local entities are being given more control,” Sarni said. “My view is that water is ultimately a local issue, so providing greater flexibility and decision-making at the local level that aligns with an overall strategy within the state, or nation, makes sense.”

The model of local management actions that roll up to a regional entity have successfully been adopted in other parts of the country, he said, explaining that states do work together. One example is the Delaware River Basin Commission, which is an entity that has a say in how water is managed in the Delaware River. Other examples include the Great Lakes Commission and the Colorado River Compact. “So cooperating on water is actually more common than not,” Sarni said.

Drought1

Drought 2

Beware of Coverage Gaps for Social Engineering Losses

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Social engineering is the latest cyberrisk giving companies fits and large financial losses. A social engineering loss is accomplished by tricking an employee of a company into transferring funds to a fraudster. The fraudster sends an email impersonating a vendor, client, or supervisor of the company and advises that banking information for the vendor/client has changed or company funds immediately need to be wired at the “supervisor’s” direction.

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The email looks authentic because it has the right logos and company information and only careful study of the email will reveal that the funds are being sent to the fraudster’s account. Unsuspecting and trusting employees unwittingly have cost their companies millions of dollars in connection with social engineering claims.

But when companies look to their traditional insurance program, they are usually met with the unhappy surprise that they do not have coverage for such a loss.

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Most assume that the loss will be covered by the crime/fidelity policy that nearly all companies have. Insurers, however, have denied coverage for social engineering claims under those policies, claiming that the loss did not result from “direct” fraud. Insurers contend that the crime policy applies only if a hacker penetrates the company’s computer system and illegally takes money out of company coffers. In the case of a social engineering claim, company funds have been released with the knowledge and “consent” of an employee, albeit the employee has been induced by fraud to release the funds. Policyholders and insurers are currently litigating the scope of coverage under traditional crime policies nationally with mixed results.

Some crime policies also contain exclusions that may pose specific barriers to social engineering claims. For example, many traditional crime policies contain a “voluntary parting” exclusion that bars coverage for losses that arise out of anyone acting with authority who voluntarily gives up title to, or possession of, company property. In addition, some insurers have put overly broad exclusions on crime policies that are directed toward eliminating coverage for many cyber risks, including social engineering claims.

Given the prevalence of social engineering claims and the clear market for companies looking to insure against such risks, some insurers have begun to offer an endorsement that provides coverage for social engineering claims.
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The coverage may be subject to a sublimit and may include coverage for some, but not all, social engineering risks. The coverage also might be subject to additional exclusions.

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Like all insurance policies, the precise words of the endorsement matter and, therefore, should be carefully reviewed.

Finally, and most important of all, social engineering coverage will not automatically be added to a company’s policy and not all insurers will provide such coverage. Therefore, companies should review their current insurance program with their insurance professionals and experienced coverage counsel to determine whether they have appropriate coverage that is in line with the market for social engineering claims.

Check out “6 Tips to Minimize the Risks of Social Engineering Fraud” from Risk Management.