Category Archives: Legal

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Risk Link Roundup

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Here are a few articles that caught my attention during the past week highlighting some interesting issues impacting the world of risk and insurance. They include tips on handling cyber disputes, news about the coming El Niño, Department of Labor remote work policies, how students at Butler University are establishing a captive insurer and an interesting look at potential FCPA lessons learned from the July death of Cecil the Lion.

5 Tips for Success in Cyber Litigation

Insurance Thought Leadership: Many insurance coverage disputes can be, should be and are settled without the need for litigation and its attendant costs and distractions. However, some disputes cannot be settled, and organizations are compelled to resort to courts or other tribunals to obtain the coverage they paid for, or, with increasing frequency, they are pulled into proceedings by insurers seeking to preemptively avoid coverage. – See more at: http://insurancethoughtleadership.com/5-tips-for-success-in-cyber-litigation/#sthash.m6sFEr8X.dpuf

El Niño and La Niña: Weather Patterns that Could Impact Your Business

Interstate Restoration: “…the Godzilla El Niño.”“All Signs Indicate a New Monster El Niño is Coming.” These quotes aren’t from a new action movie. They are just a couple of examples of the dramatic headlines and descriptions about the potential of this year’s El Niño. Since most of the stories hearken back to the El Niño of 1997 – 98—the strongest on record—it’s understandable if you’re concerned about the potential impact that of this year’s El Niño on your business. But depending on where you’re located, you may or may not need to worry.

DOL Forcing Everyone to Change Remote Work Policies: Pitfalls to Avoid

HR Morning: If the DOL’s new overtime regs go through as written — and there’s every indication to believe they will — employers of all stripes will have much more than just classification issues to contend with.

Grant Helps Butler Create Student-Run Insurance Company

Butler University Newsroom: The Butler University College of Business will establish a student-run insurance company with the goal of having the company fully operational by the 2019–2020 academic year, thanks to a $250,000 gift from MJ Insurance and Michael M. Bill.

On the Death of Cecil the Lion and the FCPA

Compliance Week: Cecil the Lion was shot and killed in July. What does the death of this well-known and well-beloved lion in Zimbabwe have to do with the Foreign Corrupt Practices Act? More importantly, what are the lessons to be learned by any chief compliance officer or compliance professional from this event? Much more than you would first think, actually.

Cultivating a Reporting Culture

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While many organizations view whistleblowers as disgruntled employees looking for revenge and monetary rewards from the SEC, this is generally not the case, according to a recent study.

According to “Embracing Whistleblowers: Understand the Real Risk and Cultivate a Culture of Reporting,” by The Network, whistleblowers most often turn to the U.S. Securities and Exchange Commission only after they have tried reporting internally, or if they are concerned about retaliation by their company. In fact, only 20% ever reported to someone outside their company.

Organizations can do much to protect themselves, while also looking after employees. Since the majority of employees go to the company first with their concerns, organizations have an opportunity to address issues before regulatory involvement.

According to the report:

The fact that whistleblowers may prefer to keep things in the company doesn’t mean they won’t turn to the government or media if they think it necessary. Sixty-five percent of surveyed employees would be willing to report externally, “if my company didn’t do anything with my internal report.” An even higher percentage would report externally, “if keeping quiet would cause possible harm to people” or “if it was a big enough crime.”

How can companies manage this risk? By encouraging a strong “reporting culture,” they can learn about, and take care of potential problems through quality hotline reporting programs, The Network said.

Hotline programs have been around for years, but are more important than ever in today’s regulatory and business environment. Compliance teams should stop thinking of hotlines as purely telephonic; they’ve grown to include mobile and Web-based reporting solutions that give employees and others a safe and reliable way to raise their concerns internally via whichever method is most comfortable for them. They also give the compliance team important insight into what is going on inside the company.

 

Cyber Blackout Could Cost Insurers $71 Billion, Lloyd’s Reports

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A cyberattack targeting the U.S. power grid would have widespread economic implications, resulting in insurance claims of between $21.4 billion and $71.1 billion in a worst case scenario, according to a report by Lloyd’s.

Lloyd’s and the University of Cambridge’s Centre for Risk Studies recently released “Business Blackout,” which examines the insurance implications of a major cyberattack using the U.S. power grid as an example. In the scenario outlined, malware is used to infect control rooms for generating electricity in areas of the Northeastern U.S. The malware goes undetected and locates 50 generators that it can control, forcing them to overload and burn out. The scenario, described as “improbable but technologically possible,” leaves 15 states in darkness, meaning that 93 million people are without power.

Economic impacts include direct damage to assets and infrastructure, decline in sales revenue to electricity supply companies, loss of sales revenue for businesses and disruption to the supply chain. The total impact to the U.S. economy is estimated at $243 billion, rising to more than $1 trillion in the most extreme version of the scenario.

Claimant types fell into six categories:

Power generation companies

• Property damage to their generators.

• Business interruption from being unable to sell electricity as a result of property damage.

• Incident response costs and fines from regulators for failing to provide power.

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Defendant companies

• Companies sued by power generation businesses to recover a proportion of losses incurred under defendants’ liability insurance.

Companies that lose power – companies that suffer losses as a result of the blackout.

• Property losses (principally to perishable cold store contents).

• Business interruption from power loss (with suppliers extension).

• Failure to protect workforces or causing pollution as a result of the loss of power.

Companies indirectly affected – a separate category of companies that are outside the power outage but are impacted by supply chain disruption emanating from the blackout region.

• Contingent business interruption and critical vendor coverage.

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• Share price devaluation as a result of having inadequate contingency plans may generate claims under their directors’ and officers’ liability insurance.

Homeowners

• Property damage, principally resulting from fridge and freezer contents defrosting, covered by contents insurance.

Specialty

• Claims possible under various specialty covers, most importantly event cancellation.

 Other key findings of the report include:

• Responding to these challenges will require innovation by insurers. The pace of innovation will likely be linked to the rate at which some of the uncertainties revealed in this report can be reduced.

• Cyberattack represents a peril that could trigger losses across multiple sectors of the economy.

• A key requirement for an insurance response to cyber risks will be to enhance the quality of data available and to continue the development of probabilistic modelling.

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• The sharing of cyberattack data is a complex issue, but it could be an important element for enabling the insurance solutions required for this key emerging risk.

What Employers Can Expect from the SCOTUS Decision on Same-Sex Marriage

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On June 26, 2015, the U.S. Supreme Court issued its long-awaited decision in Obergefell, et al. v. Hodges, Director, Ohio Department Of Health; Tanco, et al. v. Haslam, Governor Of Tennesee, et al.; DeBoer, et al. v. Snyder, Governor of Michigan, et al.; and Bourke, et al. v. Bershear, Governor of Kentucky, and ruled five to four that the equal protection guarantee provided by the 14th Amendment to opposite-sex marriages extends to same-sex marriages. The SCOTUS opinion, authored by Justice Kennedy, holds that “same-sex couples may exercise the fundamental right to marry in all States [and] that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

With same-sex couples now having the same rights as opposite-sex couples, how will the decision affect employers and what can employers expect as an outcome?

More Lawsuits?

With the new decision, much of what employers provide and are mandated to provide to employees, such as those rights granted by the Family and Medical Leave Act (FMLA) and other employee benefits, may change to include same-sex couples. Although the U.S. Department of Labor modified its definition of “spouse” in the FMLA back in March 2015, employers must verify they are granting all eligible employees in same-sex marriages their FMLA rights. Speaking of the U.S. Department of Labor, we expect that there will be guidance from it soon.

Employers can also expect more lawsuits under Title VII of the Civil Rights Act of 1964. Although Obergefell, Tanco, DeBoer, and Bourke are not employment cases, the Supreme Court’s decision implicates employment laws. Claims of transgender, sexual orientation, and/or gender discrimination may increase as gender identity and expression continue to be a topic of discussion. Likewise, discrimination based on marital status may give rise to lawsuits in certain states under state anti-discrimination laws.

Health and Welfare Plans Update

One of the biggest impacts the U.S. Supreme Court decision will have on employment is on employee benefits. Medical insurance coverage and taxes will change, so employers should be prepared to accommodate such changes in its policies and contracts. We expect the Internal Revenue Service will provide guidance soon.

Employee Handbook and Company Policies Update

Employers are also well-served to update their employee handbooks to reflect and extend the rights given to the opposite-sex spouses to same-sex spouses to minimize litigation risks. Employers must also revised its enrollment processes, such as updating its consent and eligibility forms, to ensure that they comply with the new rule.

We will continue to update you on the impact of the decision on employee benefits in greater detail soon.

This article previously appeared on the Seyfarth Shaw website.