Category Archives: Governance, Risk & Compliance

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Plan Now for the Political and Risk Landscape Ahead

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With a new president in office in 2017, there are sure to be changes ahead for businesses in the United States. Yet of risk professionals surveyed, fewer than half are actively preparing. Organizations are expected to see impact in areas including regulation and enforcement strategies, a new national trade policy, and a potential rollback of Affordable Care Act (ACA) provisions, according to Marsh.

Speakers on Marsh’s webcast, The New Reality of Risk, noted that the new administration appears to favor deregulation across several industries including financial services, although a complete repeal of the Dodd-Frank Wall Street Reform and Consumer Protection Act is unlikely, said Arthur Long, a partner at Gibson, Dunn & Crutcher LLP. The Trump administration is also expected to reduce regulation in the energy industry and others.

Areas to watch, according to the webcast:

  • Regulation and Taxes
    Less regulation and lower taxes are the most significant changes that are expected next year, both of which are expected to benefit businesses, said Michael Poulos, president of Marsh Risk Consulting. A stronger dollar could also help larger companies with extensive operations overseas, while others could benefit from changes in credit and monetary policies.
  • Trade Policy
    Changes in trade policy — including a move away from free-trade agreements — could alter the trade credit market, said Michael Kornblau, Marsh’s US Trade Credit Practice leader. These changes could lead to balance-sheet pressures — including reductions in sales and working capital — on companies with more than half of their revenues outside of the US.
  • Health Care
    Meanwhile, the future of the ACA (commonly referred to as Obamacare) remains uncertain for health care organizations and employers, said Mark Karlson, Marsh’s US HealthCare Practice leader, as transition officials have made sometimes conflicting statements about whether they will pursue repeal, replacement, or amendment of the existing law. If any changes are made to the law, it may be some time before they take effect.
  • Cyber Risk
    The election also highlighted cyber risks for businesses, including the potential threat of hackers and the need to encrypt corporate emails, said Tom Fuhrman, Cybersecurity Consulting and Advisory Services Practice leader at Marsh Risk Consulting. Generally, cyber regulations are expected to focus more on ensuring effective risk management for businesses rather than the existence of specific controls.

Although uncertainty remains about many specific policy changes to be made under the new administration, businesses should be thinking about the potential effects of new policies on their operations. Among other steps, businesses should:

  • Stay up-to-date on policy and regulatory proposals from transition and administration officials and develop a post-election game plan that includes actions and strategies that can be taken in preparation for regulatory changes.
  • Assess how reliant they are on global economic models that could become further strained.
  • Plan to reassess their risk more frequently than they have in recent years, according to Marsh.
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2016’s Worst U.S. ‘Judicial Hellholes’

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This year’s Judicial Hellholes report, published by the American Tort Reform Association, identifies nine “hellholes” in light of changes in the U.S. state court system, the types of cases being seen and the courts’ balance between defendants and plaintiffs.

The top nine judicial hellholes are:
j-hellholesAnd if that isn’t enough, the report also includes a “Watch List,” calling attention to eight additional jurisdictions “that bear watching due to their histories of abusive litigation or troubling developments.” Those are:
jh-watchlistBut the news isn’t all bad. The report examines “Points of Light,” which are examples of “fair and balanced judicial decisions that adhere to the rule of law and respect the policy-making authority of the legislative and executive branches.” Highlights include positive court rulings from 11 states.

These courts made it easier to dismiss groundless claims, tougher to bring junk science into court, gave juries a more accurate understanding of how injuries occurred in auto accident cases, and reduced the potential for inflated damage awards. Courts also confirmed that a state attorney general can dismiss meritless cases brought on behalf of the state, but can’t hand the state’s law enforcement power to private contingency fee lawyers.

The report also points out that there are a staggering number of new laws on the books for companies to keep track of. In fact, since 2010, there was an average of 827 new laws annually in California alone.

From 2010 through 2015, lawmakers in Sacramento managed to tack onto the books an annual average of more than 800 new laws. In 2016, they added another 893, at least some of which (see SB 859, SB 1063, SB 1130, SB 1150 and SB 1241) were designed primarily to foment still more litigation and related costs that for many years have helped drive businesses, along with their jobs and tax revenues, into the arms of less litigious states across the country and around the globe.
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Annual Report Card Finds Vermont Has the Best Insurance Regulatory System

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Examining a matrix of variables affecting a state’s insurance regulations, the R Street Institute determined that Vermont has the best regulatory system for insurance and that vermontNorth Carolina has the worst, according to the Insurance Regulation Report Card.

The annual report grades each state across seven dimensions. The three fundamental questions the report seeks to answer are:

1. How free are consumers to choose the insurance products they want?

2. How free are insurers to provide the insurance products consumers want?

3. How effectively are states discharging their duties to monitor insurer solvency and foster competitive, private insurance markets?

“We believe states should regulate only those market activities where government is best-positioned to act; that they should do so competently and with measurable results; and that their activities should lay the minimum possible financial burden on policyholders, companies and, ultimately, taxpayers,” Senior Fellow R.J. Lehmann said in a statement.

According to the report:

The insurance market is both the largest and most significant portion of the financial services industry to be regulated almost entirely at the state level. While state banking and securities regulators largely have been preempted by federal law in recent decades, Congress reserved to the states the duty of overseeing the “business of insurance” as part of 1945’s McCarran-Ferguson Act. On balance, we believe states have done an effective job of encouraging competition and, at least since the broad adoption of risk-based capital requirements, of ensuring solvency. As a whole and in most individual states, U.S. personal lines markets are not overly concentrated. Insolvencies are relatively rare and, through the runoff process and guaranty fund protections enacted in nearly every state, generally quite manageable. However, there are certainly ways in which the thicket of state-by-state regulations leads to inefficiencies, as well as particular state policies that have the effect of discouraging capital formation, stifling competition and concentrating risk. Central among these are rate controls.

For the third straight year, the report found that Vermont had the best insurance regulatory environment in the United States, receiving the only A+ score. Other states receiving either an A or A- were Arizona, Idaho, Illinois, Kentucky, Maine, New Hampshire, Utah and Wisconsin.

Meanwhile, North Carolina had the worst score, receiving a failing grade for the third year in a row. States ranking a D include Alaska, Massachusetts, California, Hawaii, Louisiana, Mississippi, Delaware, Montana, North Dakota and New York.

R Street found the most significant shift to be the continued expansion of North Carolina’s two property insurance residual market entities, even as Florida’s Citizens Property Insurance Corp.—previously the nation’s largest residual market entity—has continued to shrink.

“Not coincidentally, when R Street issued its first regulation report card in 2012, Florida ranked dead last and North Carolina was somewhere in the middle. This year, North Carolina is dead last and Florida is somewhere in the middle,” Lehmann wrote.

Wells Fargo: What Should Have Happened

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When Wells Fargo fired 5,300 employees in September for inappropriate sales practices, then-CEO John Stumpf approached the scandal with an outdated playbook. In response to the $185 million in fines levied by regulators, he first denied any knowledge of the illegitimate accounts. Attempting to mitigate press fallout by distancing the company from a group of “bad eggs” acting independently is not the answer, however. Even if Stumpf had maintained this assertion of innocence, changes in the risk environment over the past few years demand a proactive approach.

Rather than simply deflecting responsibility in these situations, executives must be able to accomplish two things:

• Provide historical evidence of due diligence and risk management (if such a program was actually used)
• Demonstrate how the company is adjusting its policies and/or implementing new policies to ensure a similar incident doesn’t happen in the future

In 2010, the SEC’s Proxy Disclosure Enhancement (rule 33-9089) explicitly made boards of directors responsible for assessing and disclosing risk management effectiveness to shareholders. It mandates the use of risk monitoring systems to demonstrate that existing controls (mitigation activities) are effective. Under this rule, “not knowing” about an activity performed by employees is considered negligence.

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This is a crucial development; negligence carries the same penalty as fraud, but it does not require proof of intent. The Yates Memo (2015) gave the SEC ruling more “teeth” by requiring organizations to provide the Department of Justice with all the facts related to responsible individuals.

As a result, many companies have suffered significant penalties and frequently criminal charges, even though their executives were allegedly unaware of illicit activities. Consider the emissions scandal at Volkswagen and fines paid (to the SEC) by global health science company Nordion Inc. In both instances, deceptions were perpetrated by individuals below the executive level, but senior management’s inability to detect/prevent the incidents came back to bite them.

How to Prevent Risk Management Failures at Your Organization

John Stumpf’s approach should have started with an admission of Wells Fargo’s failure in risk management processes across the enterprise, followed by evidence that a more effective, formal enterprise risk management process is being implemented. For example, risk assessments must cascade from senior management down to the front lines and across all business silos. This ensures that the personnel most familiar with operational risks (and how to mitigate them) can keep the board informed.

In other words, instead of simply apologizing and attempting to provide restitution, Stumpf should have demonstrated that Wells Fargo is taking proactive risk management measures to protect its many stakeholders.

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It is the company’s duty to ensure that something like this never happens again.

The scandal is predictably following the same track as have previous failures in risk management: it starts with regulatory penalties, then leads to punitive damages, class action lawsuits, and finally, criminal charges and individual liability, depending on the particular case.

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The key to this pattern is the absence of adequate risk management, which means negligence under the new enterprise risk management laws, regulations and mandates passed since 2010.

The good news is that avoiding serious, long-term consequences is possible if proper actions are taken. For example, by providing a historical record of risk management practices, Morgan Stanley avoided regulatory penalties when an employee evaded existing internal controls. Other corporations that can provide evidence of an effective risk management program (risk assessments, internal controls that address risks, monitoring activities over these internal controls, and an electronic due-diligence trail) are largely exempt from punitive damages, class-action lawsuits, and possible jail time.

When implemented proactively, effective risk management systems have and will continue to prevent scandals, regulatory fines, litigation and imprisonment. For a more in-depth analysis of the Wells Fargo scandal, read the LogicManager blog post “The Walls Fargo Scandal is a Failure in Risk Management.”