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Overcoming ‘Balkanization’ of Business Continuity Planning

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To be sustainable, organizations must prepare for crises that occur or risks that crystalize. General responses to those threats include alternative office sites, IT back-ups and communication protocols. As reality demonstrates over and over, it is critically important to have a strong leader in a crisis situation, be it the captain of a ship in a storm, the commanding officer of a platoon under fire or the CEO of a company in turmoil. A cacophony of contradicting orders or disintegration in the line of command is the surest way to increase a disaster’s impact and the time needed to recover.

Instead of creating a strong BCP landscape with clear lines of command and control, however, we more often see “balkanization,” or fragmentation of responsibilities. Business continuity planning, environmental health and safety, operational risk and IT disaster recovery are different teams with overlapping roles and responsibilities for crisis management.

The newest buzzword is resilience, which is discussed in a growing number of articles and lectures and defined as the “ability to bounce back to a normal operating status after a state of crisis.” There are also a number of overlapping areas with the aforementioned functions—and that is just on an intra-company level. The OECD has issued Guidelines for Resilience System Analysis, urging member states to set up resilience management on a country level basis.

Recent private initiatives like the 100 Resilient Cities (100RC) by the Rockefeller Foundation brings resilience management to an urban level. So if a natural disaster hits a major city, thousands of firms, and the city itself, will invoke a patchwork of crisis plans. For a larger disaster, there might also be a national crisis plan. Are there clear lines of command, however? Is everybody aware of what to do? We doubt it.

Modern BCP management does not need more specialization and buzzwords, but coordination of the different functions and initiatives to provide a clear, consistent and timely response. One of the most pressing tasks is establishing a common risk language to ensure that all stakeholders involved in the process have the same understanding. For example: While the 100RC initiative is coining the term CRO for chief resilience officer, the acronym is also widely used as an abbreviation for chief risk officer. So while talking about roles and responsibilities of a CRO, everyone involved should have a clear understanding about which CRO is meant.

100RC also looks at urban resilience in terms of surviving and thriving, regardless of the challenges—be they acute shocks (such as severe weather or earthquakes) or chronic stress (long term unemployment and violent crime)—and it seeks a much wider remit than the traditional concept of resilience as “the ability to bounce back from an event.”

The response is to call for a more coordinated approach working across multiple stakeholders through the chief resilience officer who, according to Michael Berkowitz (President of 100RC) “needs to build connections across not just various departments of municipal government, but across an entire ecosystem of people and places.” This is welcomed, since it is both forward looking and holistic in its approach to solving some of the world’s major issues in the next 20 years. Given that most entities are no longer stand-alone enterprises, but part of an increasing global network of customers, suppliers, regulators and other stakeholders, disaster recovery cannot be handled effectively by an individual member of that network. Instead, the entire group needs to collaborate to create an effective disaster recovery program. A central CRO who coordinates the needs of the various parts of the network seems to be the best way.

While we see this forward looking risk management approach to resilience as a welcome development, it does further complicate interaction between resilience and BCP by muddying command and control and introducing the potential for more stakeholders into an already complex chain. What is required for this to work is very clear planning and, one could argue, the ability for external (such as municipal) CROs to assume command of enterprises under his or her jurisdiction.

As of now, in most jurisdictions it is the responsibility of the CEO and the board to determine and define risk capacity and risk appetite. This leaves little room for outsourcing BCP or resilience planning. The key question, then, is whether a change in mindset and approach is required to enable the development of network-wide recovery solutions, thus overcoming the balkanization of BCP.

Time for Post-Storm Claims Filing

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Record-breaking Storm Jonas, which struck a large portion of the East Coast last weekend, was yet another reminder to have property insurance policies up to date and be familiar with claims procedures. To get the claims process moving, risk professionals whose business suffered damage should contact their insurer and broker as soon as possible.

According to the Insurance Information Institute, business owners need to:

▪ Fill out claims forms as soon as possible—including a “proof of loss” form, which must be completed within 60 days.

▪ Make a list of damaged property; the more detailed the better. Take photos or video to back up the claim.

▪ Be prepared to show the adjuster the damaged property as well as financial records or other documents.

▪ Get at least two bids for repairs or replacements.

▪ Keep copies of all correspondence regarding the claim and note the name, title and phone number of everyone you speak with. For more details, see Filing a Business Insurance Claim.

 What Is, and Is Not, Covered 

Business property owners also need to understand what is and is not covered by insurance, and the various coverage options available to protect their business. Property damage is typically covered under a business owners policy (BOP) or through a commercial multi-peril (CMP) policy.

Most commercial property policies provide either:

Replacement cost coverage – pays to rebuild or repair the property, based on current construction costs.

Actual cash value coverage – pays to rebuild or replace the property minus depreciation

Depreciation is a decrease in value due to wear and tear or age so with actual cash value coverage a business that is destroyed may not be in a position to completely rebuild. Business owners can also opt for a combination of both types of coverage.

Business income insurance, also known as business interruption, is typically included in a BOP or CMP and provides coverage for:

▪ Revenue lost due to the closure.

▪ Fixed expenses, such as rent and utility costs.

▪ Expenses of operating from a temporary location.

To receive appropriate reimbursement from business interruption coverage, there must be direct physical damage to the property resulting from an insured event. Also, there is generally a 24- to 48-hour waiting period before business income coverage kicks in.

Determining a business interruption loss involves establishing what the business would have earned had there been no loss. Insurers will consider past tax returns, profit and loss statements, projected sales and non-continuing expenses.

If basic business interruption insurance and property insurance coverage was expanded to include utility interruption, you may be covered if either electrical or water service was discontinued as a result of the storm.

Businesses that rent or lease a building can purchase tenant coverage, which insures your on-premises property, including machinery, furniture and merchandise. The building owner’s policy will not cover contents, however.

At Risk for Flood Damage?

Location is the most important factor for weighing your risk for flood damage. Is your business located in or near a flood zone? (Flood map search tools can be found online.) In what part of the building is your businesses equipment and inventory located? Anything housed on a lower floor, for instance, will be at greater risk.

Standard commercial insurance policies exclude flooding from melting snow or tidal surge. Commercial flood coverage is available from the National Flood Insurance Program (NFIP) and from a few private insurers. The NFIP provides up to $500,000 in building coverage and $500,000 for contents. Excess flood insurance is also available for businesses.

For more information on coverage options and disaster preparedness, see the Business Insurance section of the III website.

Related Links

▪ Facts and Statistics: Catastrophes

▪ Articles: When Disaster Strikes: Preparation, Response and RecoveryDoes My Business Need Flood Insurance?Does My Business Need Earthquake Insurance?Does My Business Need Terrorism Insurance?;

 

Captive Regulators Disappointed in New FHFA Rule

A final rule released by the Federal Housing Finance Agency (FHFA) amended its regulation on Federal Home Loan Bank (FHLB) membership to specify that captive insurance companies can no longer be used as a conduit to membership of the organization. Membership offers entities access to low-cost FHLB funding and other benefits. Because insurers may become FHLB members, along with credit unions and savings and loans, the Federal Home Loan Bank Act has been revised to specify that the term “insurance company” excludes captives.

Housing regulators have viewed captive insurers as a loophole used to access low-cost, government-backed financing. “Real-estate investment trusts that invest in mortgages are normally ineligible for home-loan-bank membership, but over the past few years have created captive insurers to gain indirect access to cheap federal funding,” The Wall Street Journal wrote.

As a result of captives being admitted as members, “25 are owned by entities that are not themselves eligible for membership.” The FHFA said it is “concerned that this practice will continue to grow and there is no reason to believe it will not grow to include entities other than REITs (Real Estate Investment Trusts), such as hedge funds, investment banks and finance companies, some of which have already inquired about establishing captives to gain access to the FHLB System.”

FHFA Director Melvin L. Watt said in a statement, “FHFA has the authority and the duty to implement the statutory membership provisions of the Federal Home Loan Bank Act and by adopting the proposal to exclude captives from the definition of insurance company we are making sure that institutions can’t frustrate the intent of Congress.” He added, “Congress has amended the Federal Home Loan Bank Act in the past to allow additional entities to become members of a Federal Home Loan Bank and it can certainly do so again if it wants some of these entities to be eligible for membership.”

Captive regulators of Vermont and Delaware expressed disappointment in the decision. David Provost, deputy commissioner of captive insurance of the Vermont Department of photo_provostFinancial Regulation, said, “Vermont’s response to the proposed rule was pretty straightforward: Don’t ban captives from FHLB membership just because they are captives. Captive insurance companies are regulated insurance companies, licensed for a particular purpose, and regulated in a manner commensurate with their risk,” he said.

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Steve Kinion, director of the Bureau of Captive and Financial Insurance Products for the Delaware Insurance Department said, “The Delaware Insurance Department is disappointed that the Federal Housing FinancSteve Kinion (2)e Agency made the decision it made. In at least two comment letters, one in 2012 and the other in 2015, we have made attempts to work with the Federal Housing Finance Agency to help it understand captive insurers.” He added that what has been disappointing is that “our offers were never accepted. Delaware Insurance Commissioner Stewart continues to believe that captive insurers that are members of the FHLB system are well regulated and contribute to the FHLB’s mission of fostering housing in the United States.”

Kinion explained that that REITs have long sought membership in the Federal Home Loan Bank system, which was formed in 1932 to provide liquidity for the housing market. Because current law states that only certain types of institutions may become Home Loan Bank members, “captives have been a portal for membership. It’s unfortunate when well-regulated captive insurers are excluded from membership.

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 I only wish that, before it issued its regulation, the FHFA would have allowed me the opportunity to show what Delaware does at the state level to regulate captive insurers.”

Delaware had been seeing increased interest in REITs. The domicile has one such captive and others were in the pipeline. One reason Delaware likes them is the revenue they bring in. “Our regional Home Loan Bank is in Pittsburgh and 10% of the profits generated have to be designated for affordable housing programs,” Kinion said. “In Delaware, there are a number of organizations that receive grants from the bank to promote affordable housing, and that benefits the state.”

The REITs captive program was fostered by Delaware Insurance Commissioner Karen Weldin Stewart. Her rationale was that, through the program she could “help with affordable housing in Delaware, which she can’t do directly as insurance commissioner,” Kinion said. “This was an indirect means of helping Delaware’s affordable housing programs.

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Provost said that while he supports REITs captives, the new rule will have a negligible impact on Vermont. “We have studiously avoided jumping on bandwagons of forming captives that have no apparent insurance purpose solely for some ancillary advantage,” he said. “We have allowed captives to apply for membership to the FHLB, and so far five have joined. They will have one year or five years to leave the FHLB system, depending on when they joined.”

Kinion noted, “I wish the FHFA would have at least talked to us, so they could have seen how we regulate captive insurance companies. If regulation is a concern, they should have at least taken a step to find out what we do at the state level. But that didn’t happen.”

Legal Woes Highlight Dangers of the Food Industry Supply Chain

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A spate of recent cases offers a clear warning for the food industry about the legal and reputational perils of not getting more serious about supply chain control.

On Monday, the U.S. Supreme Court declined to consider an appeal from Nestle, Archer Daniel Midlands Co. and Cargill Inc., allowing a slave and child labor lawsuit to proceed against the three food industry giants.

Three plaintiffs who claim they were trafficked from Mali as child slaves and forced to work harvesting and cultivating beans in Cote d’Ivoire, and allege that the companies aided, abetted or failed to prevent the torture, forced labor and arbitrary detention they suffered.

According to Reuters:

The plaintiffs, who were originally from Mali, contend the companies aided and abetted human rights violations through their active involvement in purchasing cocoa from Ivory Coast. While aware of the child slavery problem, the companies offered financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa, the plaintiffs said.

The defendants knew about the child slavery problems in the region and offered both financial and technical farming assistance to support the agriculture methods in place, the plaintiffs claim. What’s more, they say, the defendants could have used their leverage in the cocoa market to stop or limit the alleged child labor practices and failed to do so.

According to the Wall Street Journal:

Mark Theodore, a partner at Proskauer Rose, said that the ruling reinforces to companies that they need to be socially responsible employers. And while there is no way to ever completely prevent such risks, he said the ruling is a reminder to companies that they “should be monitoring and also maybe doing a little bit of introspective thinking about their own practices to avoid these things, or prevent them from happening, or to put themselves in legally defensible position if they can’t prevent them.”

In September, the Justice Department finalized a landmark conviction of the former head of the Peanut Corporation of America, who was sentenced to 28 years in prison for knowingly shipping salmonella-tainted products that sickened 714 people and killed nine. That may be the department’s first step in a new approach to taking food industry product safety more seriously, and more aggressively pursuing wrongdoing on a criminal level. The Justice Department has now opened formal investigations into the e. coli outbreak at Chipotle and the listeria outbreak at Blue Bell Creameries, both of which sickened hundreds of consumers.

The department has already signaled a broad intention to focus more efforts on individual law-breakers in corporate crimes. Now, the government appears to be showing the food industry that things are changing in terms of corporate responsibility and food safety, according to Andrew Lankler, partner at Baker Botts. Lankler told the Wall Street Journal that the Department of Justice is signaling that whatever standard the food industry thought it needed to meet for food safety, the bar is higher. “The department is going to step up enforcement in areas where they can prove they sold tainted product,” he said.

And the trouble at Chipotle shows little sign of abating. The CDC is still investigating multiple outbreaks, and the chain has now been served a subpoena as part of a criminal probe by the U.S. Attorney’s Office and the Food and Drug Administration’s Office of Criminal Investigations regarding an isolated norovirus incident in August.

A fourth lawsuit was recently filed by a customer who claims he was sickened by the same strain of e. coli linked to Chipotle, but this case dates back to July, meaning far more people may have been affected in the outbreaks. At least nine suits have been filed by customers, and Bill Marler, a food and safety litigator in Seattle, claims more are coming from the 75 Chipotle-related clients he represents.

At this week’s ICR conference this week, CEO Steve Ells said he is hopeful that the CDC will soon declare the restaurant’s e. coli outbreak over, adding, “we know that Chipotle is as safe as it’s ever been before.”

To that end, Chipotle announced today that it will close all of its stores on Feb. 8 to have a corporation-wide meeting with all staff regarding food safety.

But customers remain extremely wary. Indeed, while it may be an e. coli cliché, it would not at all be a stretch to say public opinion about the brand remains in the toilet, with YouGov’s BrandIndex score for the company seeing a drop equal to that of GM during its crisis.

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To combat that, the company also announced plans to launch a sizable new marketing campaign to win back customers, using direct mail and traditional advertising to attempt to win back consumer confidence. As Fortune reported, executives said the campaign will attempt to provide a “detailed story of what happened” to explain to customers why they are now safe, and that it will not focus overtly on food safety, but will have “an undertone” of humility.

Chipotle’s stock dropped nearly 42% in the wake of the outbreaks, and according to an SEC filing, sales at stores open more than a year were down 30% last month. Ells and his team admitted they could not guess how much the fallout will impact 2016 financial results, but expect it will be a “messy” year. Costs are expected to go up from the marketing campaign and new food safety measures, including processing more food through centralized kitchens in an attempt to better control the conditions of ingredients.

The company darkened its outlook for Q4 results, and As Wells Fargo Securities wrote in a recent research note, “We expect CMG to point to a hard-fought and long-tailed [same-store sales] recovery across 2016, and to stress that there is still much work to be done in assessing the sizeable costs associated with the company’s supply chain overhaul.”

For more about food safety crises and product recall, check out the following articles from Risk Management:

Feeding an Appetite for Trust, A Q&A with Center for Food Integrity CEO Charlie Arnot

Food Safety Updates Stalled by Funding

Maximizing Coverage for a Product Recall