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2017 Storms Break Records

The 2017 hurricane season is finally behind us, but it left its mark with two Category 5 hurricanes and one Category 4 striking within weeks of each other, causing an estimated $300 billion in damage. In fact, 2017 broke records, including the strongest storm—Irma—and the longest-lasting storm, which was Hurricane Harvey.

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Other natural disasters in 2017 also did their share of damage, including hailstorms and 1,496 tornadoes compared to an average of 1,202.
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Then there were the wildfires, which burned more than 9 million acres of land.

Highlights of 2017 are summarized below by Interstate:

Santa’s Impact on Business and Finance

Just as Santa Claus brings gifts down chimneys, his name alone also carries the stigma of risks that transcend all industries. Indeed, thanks to the logistics of his job we better understand the risks of reindeer-led aviation. But perhaps more importantly, Kris Kringle’s presence has long influenced finance and business.

Mentioning him on Wall Street this year may trigger an underlying wealth management risk. The annual “Santa Claus Rally” marks an uptick in the stock market and a 1.4% average return of the S&P 500 index from the last five trading days of the year through the first two of January. This phenomenon can be attributable to people spending and investing a bit extra – possibly from holiday bonuses – leading to a generally happy mood on and off trading room floors.

Since 1950, the market has declined only 15 times during the Santa Claus Rally period. But due to the uncertainty surrounding the tax reform plan making its way through Congress, that 1-in-4.4 chance of downturn is on the minds of cynical investors. As reported recently by Investopedia, “Some bears think that, if Congress fails to make appreciable progress on tax reform before their holiday recess, Scrooge or Krampus will elbow Santa aside, and send the markets downward at year-end.”

And similar to the way Punxatawney Phil seeing his shadow on Groundhog Day can predict six more weeks of winter, Santa skipping stock exchanges’ chimneys may indicate a frosty new year. According to The Stock Trader’s Almanac, some of the more recent holiday seasons without a rally included the last two, as well as in late 2007 and early 2008 leading up to the financial crisis, and just before the dotcom bubble burst in the 1999-2000 holiday period.

Santa’s influence isn’t just relegated to stock speculation and short-term investments, however. Some executives and employees may emulate his work ethic without realizing it. All eyes turn to him in good times and especially during the bad. He’s trying to meet year-end quotas while keeping a workforce happy and focused. Plus, Santa has the burden of trans-meridian travel with frequent stops over a 24-hour period, which is sure to cause jet lag. Sound familiar?

While one all-nighter might not have major long-term effects, regular ones could lead to shift work disorder, which has been linked to chronic diseases and illnesses. Anyone known to “Santa Claus it” too frequently may accumulate a large “sleep debt” over time. According to the Sleep Foundation, “if you work at night, you’re also going against your biological clock, which is naturally cueing you to become less alert and encouraging you to sleep during the nighttime hours.”

This can lead to seasonal “presenteeism,” an issue Risk Management magazine recently explored, detailing pain management in the workforce. Presenteeism occurs when a worker inhabits a space at their job, but “is unable to focus and perform as expected” and can be an even greater drag on productivity than absenteeism. The condition is indiscriminate – it can affect interns and CEOs – and may cause someone to “miss out not only on the income, but also the sense of meaning, purposefulness and belonging that can be gained from a job. Initial distress may lead to chronic anxiety and even depression.”

Identify these risks now, so that the mention of Santa Claus doesn’t put a humbug in your eggnog this holiday season.

What Organizations Need to Know about Risk Culture Audits

Today’s risks require more proactive oversight by boards of directors on the issue of risk management. Transitioning to this approach is easier said than done, however. The trouble is that many organizations are weighed down by antiquated risk management frameworks that prevent them from being proactive. Even today, how financial services and other industries address risk is deeply ingrained in organizations’ character, requiring a broader change which extends beyond simply implementing new risk management frameworks.

Overcoming this hurdle is easier said than done. In fact, businesses across the capital markets are prime for a risk culture rewiring.

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What’s in a risk culture audit?
A risk culture audit is a critical first step in reinventing risk management because it helps identify challenges in behavior and reorients how companies think about today’s increasingly complex risk landscape.

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Here are the key focus areas in any risk culture audit:

Organization Vision and Values: Evaluating leadership and established communications by senior leaders relative to risk and compliance.

Risk Management: Evaluating the maturity of risk frameworks, defining clear roles and responsibilities, and implementing education and training programs designed to empower individuals to include risk management in their decision-making consistently across the organization.

People Management: Understanding how risk management is introduced early in the onboarding process on the front end and back end, as well as directly into incentive compensation programs.

Risk culture audit lessons learned
I recently led OCC (Options Clearing Corporation) through one of these trailblazing exercises, leading me to my new mantra of “identify, escalate and debate.”

Rather than promote a reactive risk culture in which specific risk incidents derail teams from business-as-usual, we’re adopting a risk-focused culture that enables our teams to escalate an event immediately, assess its impact quickly, and debate its resolution broadly.

While every financial institution has unique considerations in its risk management framework, OCC’s risk culture audit revealed some key hurdles that are commonplace across financial services firms.

The first challenge is developing a risk management framework that boards and management can easily implement for risk oversight. This framework can be difficult to pin down because it must be formal, objective, and metrics-driven—and ultimately must map back to a risk appetite and process that team leaders can follow.

The second challenge is developing an action plan to help team leaders manage the shift toward a proactive risk culture. To effect change, team leaders need to be able to demonstrate that the new approach reduces risk or manages new risks within the firm’s risk appetite.

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Oftentimes, this means replacing human judgment with transparent rules and objective criteria.

Finally, the third challenge is shifting employees toward adopting a risk-based mindset at the individual level. A successfully retooled risk culture ultimately comes down to the people. Doing this successfully requires firms to reinforce the new risk culture at every turn, such as linking positive risk culture behaviors to performance rewards. At OCC, we are working on this third piece of the puzzle by identifying “risk champions” across the business and training them on the techniques needed to evaluate risk.

At the end of the day, financial institutions’ risk cultures must support risk management models that ensure market confidence does not erode, that issues are addressed, and that business continues as planned. I have concluded the best way for organizations to do this is to use a risk culture audit to identify opportunities that will help them transition to a strong risk-oriented business model. This enables them to comprehensively evaluate and understand the risk posed to their business, put mitigating controls in place, and enable an environment where risk can be discussed openly across the firm.

If companies can re-orient their risk culture to be more forward-thinking, they will put themselves in the best possible position to address today’s ever-evolving and complex risk environment.

Awful but Lawful: Attorney Fee Provision Gone Bad

Companies that sign contracts, including renewals, without careful review could be in for an unpleasant surprise if the unexpected happens. For example, extra caution would have saved “Widget Corp.” a lot of money and time in its dispute with “Acme Inc.

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Here’s the scenario: Widget Corp. enters into a contract with Acme Inc. While Acme Inc. expects to earn more than a million dollars from the contract, Widget Corp. later closes its doors after selling most of its assets. Angered and disappointed, Acme Inc. decides to sue Widget Corp. over the contract even though it has a weak claim that Widget Corp. did anything wrong.

The risk is that, perhaps recognizing it will lose on its breach of contract claim, Acme Inc. points to a peculiar provision in the contract that, in a nutshell, requires Widget Corp. to pay Acme Inc.’s attorney fees—win or lose.

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(Can you guess which company drafted the contract?)

The result: At arbitration, a respected arbitrator hears arguments on the contract dispute and concludes that Widget Corp., in fact, had done nothing wrong and had not broken its contractual promises to Acme Inc. The arbitrator, nonetheless, required Widget Corp. to pay Acme Inc.’s attorney fees incurred in litigating the dispute—those fees exceeded $150,000.00.

Widget Corp.’s counsel raised a number of defenses:

  1. As a general rule, courts won’t interpret contract provisions in such a way that creates absurd or unreasonable results. Widget Corp.’s counsel argued that it would be absurd if Acme Inc. could sue Widget Corp., lose all of its arguments, but still collect attorney fees.
  2. Attorney fees aren’t typically awarded unless the side getting the attorney fees wins at least part of the dispute. This is so because courts view attorney fees as a form of damages, and if the other side did nothing wrong, then there is no damage to award—including attorney fees.
  3. An attorney fee award must be “reasonable.” Widget Corp.’s counsel argued that it is unreasonable to award any attorney fee whatsoever given that Acme Inc.
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    lost the entire dispute.

The arbitrator found these arguments unpersuasive and enforced the contract as written. Since the contract said what it said, at the end of the day Widget Corp. signed the contract. As the arbitrator aptly quipped, the provision was “awful but lawful.”

Lessons:

  1. Companies must read contracts carefully to understand what they mean. Companies may be particularly tempted to sign without internal or legal review when renewing an annual or semi-annual contract; companies sometimes assume that the renewal contract will contain the identical language, and the companies do not want to spend additional time or money to review what has already been reviewed. Nothing guarantees that next year’s contract will match the current contract, however. Companies are thus wise to review even renewal contracts to ensure they understand the terms, exposure and risks.
  2. Get a second (and even third) set of eyes on the contract before signing. Companies would be prudent to devote even more resources to reviewing contracts that impose more liability. The rub is that companies often do not comprehend their contractual exposure until multiple people review the contract.
  3. Assume the worst when it comes to a particular, seemingly unreasonable contractual provision. In other words, assume the provision will be enforced as written. Reasonable minds can differ as to what constitutes a “reasonable” provision and it is foolhardy to assume that a court or arbitrator will disregard what parties agreed to—particularly when those parties are businesses.
  4. Remember, if a provision seems questionable in what it purports to do, it is easier to request that the other side remove the provision before you sign than to ask a court or arbitrator to ignore the provision despite your agreement. As Benjamin Franklin once advised fire-threatened Philadelphians, an ounce of prevention is worth a pound of cure.