About Emily Holbrook

Emily Holbrook is a former editor of the Risk Management Monitor and Risk Management magazine. You can read more of her writing at EmilyHolbrook.com.
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Who Pays for the Cost of Cyberwar?

There is no question that the computers controlling the nation’s critical infrastructure (the power grid, financial system, water treatment facilities, etc.) must be protected from potential cyber attacks launched by domestic or foreign enemies. But who’s responsibility is it to pay for this security, business leaders or national security organizations?

Some are backing stricter government regulation of cybersecurity, which has been proposed in the Lieberman-Collins legislation, while the majority of business leaders oppose this idea.

“The major concern is the vast regulatory structure that would be set up at the Department of Homeland Security,” says Larry Clinton, president of the Internet Security Alliance, an association of major U.S. companies with interests in the cybersecurity debate. It’s a concern not shared by Stewart Baker, a top cybersecurity official in the Bush administration who says he generally holds pro-business and anti-regulation views. “I see a big conflict between the desire to avoid regulation and the desire to protect national security,” Baker says.

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“I come down on the national security side of that debate.

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There is also disagreement as to whether private industry, which owns most of the U.S.’s infrastructure, is even capable of defending themselves against the increasing sophistication of external (or even internal) attacks. Many feel the government, with its cyber intelligence, could do a much better job. But again, that would require businesses to endure endless cyber regulations. As of now, many business leaders feel that is too much to handle (sounds similar to complaints about Dodd-Frank?). But when the electric grid is knocked offline in a cyber attack, they may feel differently. At that time, however, it could be too late.

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As corporate boards and senior executives continue to deny the potential risks and consequences of cyber threats, we are indeed, as NPR put it best, fighting “a war without an army.”

Discussing Trends at the Advisen Casualty Conference

At Tuesday’s Advisen Casualty Conference here in New York, a hot topic was that of trends within the industry. It was clear that Stan Galanski, president and CEO of Navigators, had put some thought into the topic, coming up with the following trends he feels are important to the industry:

  • Globalization — “There is a need for global product liability coverage,” said Galanski. We need to look no further than the UK Bribery Act and the Foreign Corrupt Practices Act (the recent news involving Walmart is a good example).
  • Miniaturization — “We’ve gone from records to 8-tracks to CDs to iPods to the cloud,” said Galanski, talking about how the density of electronic components can be construed as a risk. He referenced the case of Intuitive Surgery, Inc., the maker of the da Vinci surgical robot, which has allegedly caused numerous injuries and at least one death — that of a 24-year-old woman who was undergoing a hysterectomy when the robot caused burns to an artery and her intestines, which led to her death two weeks later.
  • Disintermediaton — By this, Galanski means the removal of intermediaries in a supply chain. “So what exposures are risk managers picking up with the absence of these people and/or businesses?” Though disintermediation may be more cost effective, it comes with added risk.
  • Personalization — When you open iTunes, the application suggests songs you may like based on your recent purchases or downloads. The same goes for Amazon. When you log into the site, it suggests new books or apparel you may want to purchase based on past buying habits. “It’s a great feeling as a consumer, but as a risk manager it brings concerns about your business’ laptops and computers.
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These are indeed interesting observations of trends, but they are, in fact, only one man’s opinion. But we learn by sharing. With that in mind, I ask you what trends you’re noticing within the casualty industry?

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Advisen Casualty Conference Cautions on Severity

At the second annual Casualty Insights Conference held yesterday in New York, Stan Galanski, president and CEO of Navigators, cautioned those in attendance about not so much the frequency of claims he’s seeing in the industry, but the severity of each. Galanski referenced the below clip from the movie The Graduate:

After which he exclaimed, “Today, I have one word for you…severity!”

Of course, we need to look no further than 2011 catastrophes to see the impact of severity on claims. Though there may have been fewer claims compared with the past, the impact has been much more costly than any previous year on record. But there are other, maybe not so well known, examples of high severity claims cases, such as:

  • Middleton vs Collins: The case of an 8-year-old boy who was intentionally set on fire by a neighbor. The reward to the family of the victim was a record $150 billion.
  • Pacesetter Inc. vs Nervicon: The case of St. Jude subsidiary Pacesetter and former engineer Yonging Zou, who used his access to confidential information to found a competing company, Nervicon, in China. St. Jude Medical won $2.3 billion in the case.
  • Allison vs Exxon Mobil Corp: A 2006 gasoline leak in Maryland was the impetus to a lawsuit filed on behalf of 160 plaintiffs. The jury awarded $1.5 billion in punitive damages in addition to $495 million in compensation for damage.
  • DuPont vs Kolon Industries Inc.: The theft of trade secrets regarding the manufacture of Kevlar prompted this lawsuit, in which a jury found South Korea-based Kolon guilty and awarded DuPont $919.9 million.

These are just a few examples of the harrowing severity of recent claims.

So why is this happening? What has prompted this uptick in severity? Galanski points to a “cultural shift,” explaining that “things have changed and there’s a strong sentiment stemming from the financial crisis — one which says we must punish the evil doers.”

If this is true, big businesses, if they haven’t already, should prepare accordingly.

 

What’s Next for Walmart

In the wake of the massive bribery scheme that allegedly allowed one of the world’s largest companies to expand throughout Mexico and dominate its retail industry, many are left wondering what will happen next to Walmart.

The Week has a few ideas of what’s possible:

  1. U.S. authorities will go after Walmart aggressively 
The Justice Department may treat the Walmart scandal as “a prominent case to demonstrate the need for vigorous enforcement of the Foreign Corrupt Practices Act,” which prohibits U.S. corporations from bribing foreign officials, says Peter J. Henning at The New York Times. The government encourages American companies to disclose possible violations of the law, and rewards their honesty by reducing fines and dropping criminal charges. If the Justice Department finds that Walmart did cover up the scheme, it could come down even harder on the retailer.
  2. The investigation could spread to other countries 
Walmart “faces an uphill battle to convince U.S. regulators that its problems are confined to Mexico,” say Jessica Wohl and Carlyn Kolker at Reuters. Walmart has major operations in Brazil and China, and is banking on emerging markets in India and Africa to boost its profits in the coming decades. A wide-ranging global investigation, which could last as long as four years, will likely hamper its overseas growth.
  3. Executives could face dismissal and even prison
Walmart will likely face “pressure from shareholders to take action against any executives who didn’t act on the bribery allegations sooner,” say David Welch and Thom Weidlich at Bloomberg News. Indeed, cleaning house could be a prerequisite for any out-of-court settlement with the U.S. authorities. And experts aren’t ruling out “potential jail time for Walmart executives,” says Roland Jones at MSNBC.
  4. Congress will get involved 
Reps. Elijah Cummings (D-Md.) and Henry Waxman (D-Calif.) have already announced that they are launching an investigation into the scandal, requesting a face-to-face meeting with CEO Duke and other Walmart officials so that they “can respond to these allegations.”
  5. Walmart stocks are being hammered… 
Walmart’s share price fell by 5% the day after the story broke, as investors weighed the numerous factors that could hurt Walmart in the future, such as large legal fees and stunted international growth.
  6. …And so is its reputation — perhaps most damaging of all is the public relations hit the company is taking. This is a “huge black eye” for Walmart, “which prides itself on its reputation for integrity and transparency,” says Henry Blodget at Business Insider. The report undermines a years-long “campaign to improve its reputation as a good corporate citizen by changing its practices in such areas as labor relations,” says Ben W. Heneman Jr. at The Atlantic.
  7. Still, Walmart could fight back with legal technicalities 
The retail giant could argue that the bribes were “facilitating payments,” which, for example, are made to speed up the approval of permits, says Nathan Vardi at Forbes, and that such payments are technically legal under the Foreign Corrupt Practices Act (FCPA). Because the alleged bribery scheme unfolded in the mid-2000s, Walmart could also foil the Justice Department’s efforts to prosecute, by invoking the FCPA’s five-year statute of limitations.

That’s a pretty good summation of what’s likely to occur. But let’s not forget about the questions this event has has raised regarding Dodd Frank and the FCPA. Does the Dodd Frank act’s whistleblower provision apply to foreigners? And can foreigners qualify as eligible whistleblowers under the FCPA and, in turn, qualify for a monetary reward? There is a definite grey area in terms of both acts and it remains to be seen if this Walmart event will clear up anything.