Category Archives: Regulatory Risk

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Brexit Creates Turmoil

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Brexit
Britain’s unexpected vote to leave the European Union has left many unanswered questions, some of which may not be resolved for years as Britain and the EU iron out the details of the split. Meanwhile, in the wake of the announcement, oil prices dropped, global stock markets have taken a significant hit, the Euro and the British Pound plunged.

Fitch said today that overall, Britain’s decision is broadly “credit negative” for most U.K. sectors.

During a Eurasia Group conference call this morning, Europe associate Charles Lichfield asserted, “The U.K. has lost relevance to Washington.” In the past, he explained, the United States has worked closely with Britain on many European issues, but will now bolster relations with Germany, Spain and other countries, bypassing Britain.

According to the Wall Street Journal:

The move triggered a selloff across markets dragging down the British pound, commodities and shares in U.K.-listed banks, utilities and oil-and gas companies including BP PLC and Royal Dutch Shell PLC, whose shares fell 6.2% and 4.9%, respectively.

A spokesman for Shell said the company will work with the U.K. government and European institutions on navigating a British exit from the EU, known as Brexit. The Bank of England announced it was prepared to use its $371.85 billion war chest to stabilize the market.

The uncertainty in the marketplace after the referendum could hurt oil companies by exacerbating the already-challenging environment created by lower oil prices.

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In the aftermath of the vote, U.K. Prime Minister David Cameron announced plans to step down.

The referendum is expected to jolt the U.S. economy, likely driving up the value of the dollar.

Members of the insurance industry and their buyers are wondering what the impact on Lloyd’s and the London market will be. So far, Lloyd’s has maintained a cool façade.

“I am confident that Lloyd’s will stay at the center of the global specialist insurance and reinsurance sector, and I look forward to continuing our valuable relationship with our European partners,” Chairman John Nelson said in a statement on the vote. “For the next two years our business is unchanged.

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Lloyd’s has a well prepared contingency plan in place and Lloyd’s will be fully equipped to operate in the new environment.”

The Financial Times, however, expects the insurance sector to be “hit hard” by the vote and that the impact could have a negative impact on the London market.

According to the FT, “One of the big attractions to insurers of operating via Lloyd’s is that it has passporting rights into the EU. Many of the insurers who do business there at the moment say that after a Brexit they will simply shift some of their business to subsidiaries within the EU, bypassing the Lloyd’s market in the process.”

Brexit is also expected to have more impact on the life insurance market than property/casualty. “The impact on the non-life insurers was more muted, given that many of them have little cross-border business and hold very conservative investment portfolios.

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Shares in Direct Line, RSA and Admiral were all down in mid-single digits,” according to the FT.

Risk Landscape: Coverage Trends to Watch

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Being aware of your company’s new and changing risks is critical for sound risk management. As the year progresses, we have identified growing risks facing
companies, and their directors and officers, that are likely to impact policyholders. These risks include cybersecurity, Telephone Consumer Protection Act (TCPA) lawsuits, drones, wage and hour lawsuits and food recalls. The risks and issues to watch out for are expanded below:

Cybersecurity

Cyberattacks against businesses doubled in 2015 and are expected to continue to increase as attackers become even more sophisticated. Watch out for:

Phishing scams and social engineering fraud. In social engineering scams, hackers utilize phishing, purporting to be legitimate employees or third parties try to trick businesses into wiring funds or allow access to their systems. Although many businesses have crime insurance that covers “computer systems fraud,” ambiguous provisions or liability limits may restrict coverage. SomCompliancee courts have held that fraud coverage applies only when intrusions are unauthorized, but not when an unwitting employee falls prey to an online scam.

Data breaches. Companies should also be conscious about their coverage for data breaches, which increasingly present significant exposures. Insurers often contest whether data breaches constitute “publication” of private information, and, if so, whether an insurer’s duty to defend applies. This is particularly important as the storage of consumer data is a lynchpin of many businesses’ operations and marketing.
Businesses need to ensure that their commercial insurance policies adequately cover their business risks and consider purchasing dedicated cyber policies.

Coverage for TCPA claims

Certain efforts to engage with consumers may come at a steep cost. Under the Telephone Consumer Protection Act (TCPA), businesses that send unsolicited faxes, voice calls or text messages to consumers may be held liable for at least $500 per violation.

General liability coverage of TCPA claims. In recent years, commercial general liability (CGL) insurers have increasingly added broad exclusions to their policies for TCPA claims. Moreover, courts are split on whether “right to privacy” coverage in CGL policies cover these claims. Some courts uphold coverage only for losses from incidents that divulge confidential information (secrecy-related claims), whereas others uphold coverage for unsolicited communications, even if they do not republish confidential information.
While such coverage may be restricted under CGL policies, policyholders may have coverage under their directors’ and officers’ (D&O) insurance.

LA Lakers test case for D&O coverage. In 2016, the Ninth Circuit will likely address this issue in an appeal by the Los Angeles Lakers. The franchise’s marketing campaign included sending unsolicited text messages to fans. When sued under the TCPA, the franchise sought coverage for its defense costs under its D&O policy. In April 2015, a California federal court rejected coverage, finding that the policy’s “invasion of privacy” exclusion precluded coverage.
As businesses seek to engage consumers directly through various media, they should consider whether their insurance protects against TCPA claims.

UAVs and Insurance in 2016

Unmanned aerial vehicles (UAVs), or drones, promise to revolutionize not just commerce but insurance as well. The United States Federal Aviation Administration (FAA) estimates that, by 2023, annual global spending on UAVs will total $11.5 billion, and by 2020, about 30,000 commercial and civil drones will dot the skies.

Drone property loss and liability. The rise of drones raises several risks. The most obvious of these risks are loss of property and third-party liability. Use of drones for package or cargo delivery raises the risk of damage to the UAV itself—or its payload, which is usually the bigger loss. As shown by recent news reports and the first lawsuit, Boggs v. Merideth (W.D. Ky.), operators face liability for costs of defense and settlements or judgments payable to third-party claimants when UAVs go astray. With drones’ ability to film and collect data, other risks include privacy-related claims and data breach and hacking.

New coverage provisions. In June 2015, the Insurance Services Office, Inc. (ISO), approved new coverage provisions addressing commercial use of drones. The new ISO provisions modify standard CGL and umbrella/excess liability policy forms and merit close consideration by policyholders.
Because these new provisions are untested, policyholders should review them carefully against their entire insurance program and consult with insurance advisors to ensure that new provisions or policies provide the protection needed. Companies using UAVs should consider the aviation insurance market and also assess the need for cyber insurance coverage for privacy and data-breach exposures.

Wage-and-Hour Lawsuits

Cases alleging violations of the Fair Labor Standards Act (FLSA) have shot up in recent years. In 2015, almost 9,000 FLSA cases were filed in federal court, up more than 10% from 2014, and 30% from 2011. State courts have also experienced high volumes of wage-and-hour cases. California and New York recently enacted laws that allow directors, officers, and in New York, “top 10 shareholders” to be held personally liable for wage-and-hour violations.
Traditionally, companies have looked to their employment practices liability (EPL) and D&O insurance to protect against the defense and liability costs in wage-and-hour lawsuits. However, EPL insurance policies today regularly exclude coverage for such claims. Unlike EPL policies, D&O policies do not routinely exclude such coverage, but are including such exclusions with increasing frequency. As a result, policyholders must review D&O policies carefully to ensure that they protect against the threats posed by such claims.
Brokers and insurers have been developing new insurance products that specifically address these increasing wage-and-hour exposures. Policyholders, particularly those with significant operations in California and New York, should consider these newly emerging wage-and-hour specialty policies to ensure that they are adequately protected.

Food Contamination and Recall Coverage

The number of food product recalls for alleged contamination, undisclosed ingredients and other mislabeling issues also has risen dramatically. Although CGL and business property insurance policies provide some protection against liability for food contamination and recalls, savvy food companies should also consider specialized recall and contamination coverage.
These specialized policies may cover the reasonable costs that a policyholder incurs, for example, to examine its products for contamination, announce and institute a product recall, safely destroy contaminated products, and reimburse distributors and retailers for down-stream recall costs. Such policies often include crisis management coverage to help the policyholder mitigate negative media reports.

Varying types of special coverage. Because recall and contamination policies are not standardized, individual insurers offer differing policy terms and levels of coverage. Companies contemplating the addition of such coverage, or pursuing coverage under an existing policy, should closely examine the policy to understand the scope and limitations of coverage.

Items to watch. When purchasing such coverage, food companies need to identify their primary risks and negotiate the broadest possible coverage. In addition, because such policies often include very strict notice requirements, policyholders should give notice as soon as a recall arises to avoid coverage denial on late notice grounds.

Christina Buschmann, Linda Powell and Adrian Torres, Perkins Coie Insurance Recovery attorneys, also contributed to this article.

Oil and Politics: Brazil’s Petrobras Scandal

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PetrobasLast month, we focused on Mexico and specifically the state-owned oil company Pemex as a risk for companies selling or investing into Latin America. We saw that Pemex represents a drag on Mexican fiscal accounts and is imposing losses on suppliers and investors. This month, we turn our gaze to Brazil: it is similar to Mexico in that it has a dominant, politically charged state-owned oil company, but different because the scale of the crisis is much more severe, as are the risks to suppliers and investors.

Brazil is undergoing a major economic and political crisis, and its state-owned oil company, Petróleo Brasileiro S.A. (Petrobras), is right at the center of the trouble. Petrobras shares some of the same challenges as Pemex: It started as an entirely state-owned firm, was used as an instrument of government policy from inception and took on enormous quantities of debt in recent times, exemplified by its $11 billion debt issue in 2013—the largest on record for emerging markets.

Brazil, however, recognizing earlier than Mexico the necessity of foreign investment for a viable oil industry, opened up the sector in 1997 and eventually reduced the government shareholding to 64% (direct plus indirect). Petrobras expanded into deepwater areas in Angola and the Gulf of Mexico and became one of the few national oil companies able to equally compete with companies such as Royal Dutch Shell and Total.

In 2014, information about the extent of corruption between Petrobras board members, various politicians and business executives not only came to light, but also sparked official investigations and arrests. President Dilma Rouseff has been temporarily removed from office pending a trial by the Senate. The official charge against her is manipulating the federal budget by directing state banks to support spending programs. She was the chair of Petrobras when the corruption allegedly occurred, however, and she and her party (Partido dos Trabalhadores or PT) are perceived by many as at least partly responsible for the scandal.

It is likely that Rouseff will be permanently removed from office within six months, but the uncertainty does not end there: As of this writing, two cabinet ministers have been removed from office, and six more are under investigation. Dozens of politicians and executives have been convicted in connection with the scandal, and prosecutors have recovered $795 million in stolen money. The economy of Brazil shrank 3.8% in 2015 and is projected to shrink another 3.5% in 2016. Moody’s downgraded Petrobras to Ba2 in December 2015, and S&P cut the sovereign rating to BB with a negative outlook in February. With the Zika virus now causing a global health emergency and the Olympics beginning in August, one wonders how many more stresses Brazil can take before serious political unrest breaks out.

Like with Pemex, the Petrobras crisis is increasing risks to suppliers already: There are trade credit insurance claims stemming from suppliers to Petrobras, and the wider Brazilian economic downturn (combined with the commodity price trough) is giving rise to other credit losses. But the Brazilian crisis goes well beyond trade credit risk. Brazil is a $2.2 trillion economy and one of the largest bond issuers in the emerging markets. As a result, this crisis has global implications: Eurasia Group has Brazil as one of its top 10 global risks for 2016.

Mexico and Brazil are not the only countries dependent on state-owned oil (or other natural resource) companies that are facing major challenges: Venezuela, Ecuador, Nigeria, Angola, Russia—the list goes on and on. In Brazil, however, there are some mitigating circumstances that reveal a silver lining. First, 85% of Brazil’s sovereign debt is held domestically, meaning it is less affected by currency depreciation and is easier to reschedule. Provided Brazil takes on some painful fiscal reforms, the country can dig itself out of the economic crisis. Secondly, so far, officials have been able to investigate and prosecute some of the parties responsible, despite the defendants being some of the more powerful people in Brazil.

There is hope that Brazil’s institutions will emerge all the stronger for being able to correct wrongdoing, which may set the stage for a more just Brazil and a better investment and credit risk environment in the long run. In the meantime, we are likely to see severe market and political volatility. It is a good idea to closely monitor your exposure in Brazil and in other countries dependent on highly indebted state-owned natural resource companies.

The Dos, Don’ts and Maybes of Social Media

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Social mediaIt takes one second to send a Tweet or Instagram post onto the internet for all to see. But for companies active on social media, the legal ramifications of those 140 characters or that one photo can last a whole lot longer.

At a recent seminar in New York, lawyers and communications professionals representing some of the world’s most famous brands learned a lot about the dos and don’ts of social media for companies, specifically companies interested in pushing boundaries but avoiding lawsuits. Perhaps more importantly, they learned a lot about the maybe dos and maybe don’ts through several real-world examples.

“When you get it wrong, it comes with a lot of implications,” said Maggie O’Neill, managing director and partner at strategic communications firm Peppercomm, which recently co-hosted the event with Davis & Gilbert LLP.

Sue Me, Maybe?

O’Neill and her counterpart, Davis & Gilbert marketing and promotions partner Allison Fitzpatrick, brought up one of the more famous “maybe don’ts” in recent memory: Peyton Manning’s proclamation after Super Bowl 50 that his first order of business was to “drink a lot of Budweiser,” setting off a social media firestorm.

“This had the potential to really blow up into something legal,” O’Neill said. After all, Manning isn’t a spokesman for Budweiser, but he does own several Budweiser distributors. The appearance of “free” advertising if, say, an implicit agreement between the two parties was in place, would have been a no-no, and the fact that it’s not common knowledge that Manning owns those distributors makes it a “maybe no-no.” Adeptly, a Budweiser communications pro tweeted that, while the brewer was “surprised and delighted” at Manning’s off-the-cuff endorsement, “Budweiser did not pay Peyton Manning” for it. While that tweet doesn’t guarantee Budweiser’s immunity from a government lawsuit, it certainly represents a skillful handling of the situation.

Know Your Subject

Not all companies have been as adept, O’Neill and Fitzpatrick pointed out. The Duane Reade chain famously got sued by Katherine Heigl after tweeting an unflattering photo of the actress coming out of one of its pharmacies carrying bags. Heigl sued for $6 million, claiming the company violated New York State and federal laws that protect the use of a person’s likeness for trade purposes. She eventually dropped the suit, but it made the kind of headlines Duane Reade – and most companies – never want.

Fast-food chain Arby’s, on the other hand, got universal kudos for its tweet about the hat worn by rapper Pharrell Williams at the 2014 Grammy’s, which looked similar to the one on the Arby’s logo. “Hey @Pharrell, can we have our hat back,” Arby’s tweeted, with the hashtag #GRAMMYs. Pharrell was a good sport about it, and when he eventually put the hat up for charity auction on eBay, Arby’s announced via Twitter that it was the party responsible for the $44,100 winning bid.

“The best part is, Pharrell did not sue,” Fitzpatrick said at the panel. But, she added, “it doesn’t mean there’s no risk.” One quick and easy first step, according to Fitzpatrick, is to do a quick Google search to “see if they’re litigious or not.”

Copyright Law in the 21st Century

For brands active on social media, copyright law is another consideration. Being mindful of trademarks like “Super Bowl” and “NCAA” while tweeting about events can save companies a lot of money from potential legal woes.

For instance, when TGI Friday’s pushed boundaries by petitioning the International Olympic Committee to make bartending an official sport, lawyers were kept in the loop to make sure the campaign garnered media and public interest on traditional and social media but didn’t cross any copyright law lines.

What’s next?

With technology constantly changing and regulators scrambling to adapt to those changes, Fitzpatrick said the next frontier could be regulatory action against celebrity spokespeople. It’s generally known around the world that Nike endorses Tiger Woods, but what if a celebrity whose endorsement deal is lesser-known doesn’t disclose the relationship in a tweet? This could be the next major question the Federal Trade Commission starts asking.

Key Guidelines

Fitzpatrick offered a few general guidelines that companies can follow.

  • When using hashtags, be careful not to suggest an endorsement or association between your brand and the event, unless there actually is one.
  • The more the merrier. See if other brands are tweeting about the event. If they are, chances are your legal risks are lower.
  • There are a lot of work-related reasons to follow, a brand, on social media, so most experts think a simple follow is probably okay. A “like” or a “share” could be a little dicier.
  • When in doubt, research, confirm, and speak to legal.