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Shale Shakes Up Energy Sector

shale oil industry

HOUSTON—In the words of the well-known rock group REM, “It’s the end of the world as we know it,” at least for the energy sector in the last decade, said Ross Payne, managing director of Wells Fargo Securities and keynote speaker at the IRMI Energy Risk and Insurance Conference here. Since 2009, production in the United States is up 72%, he said. “That’s a phenomenal increase, driven by shale production.”

The huge boon in shale production was the result of technology. “Just sticking one straw into shale was not going to be economic, butwhen you were able to take that drill bit and turn it horizontal, and go out one to two miles horizontally and pop a hole into the ground every hundred yards along that one or two miles, you got enough flow to make that economically an option,” he said. “That’s why, when we broke the technology on that, it did change the world as we know it.

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Looking at energy from 30,000 feet, he explained that, since the early ’90s, the energy sector has enjoyed “one way pricing,” which was brought about by constricted supplies. The only new technology before developments to extract shale came along was in the deep water offshore arena, “a brand new territory for drilling in the 1980s and ’90s.”

Adding to that was dramatic global growth and demand, primarily from the BRIC countries–Brazil, Russia, India and China–and geopolitical issues such as the Arab Spring and the Iraq war, Payne said.

With high prices, however, “you get substitutions and you get disrupters. Clearly shale has become a disrupter.” What kind of impact has shale had on the industry? “Just since 2011 to 2013, the Energy Information Administration (EIA) doubled their crude basin estimates to 95. There are now 41 countries out there with significant shale assets.

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Shale reserves increased 980% in that two year time frame. Currently in the United States, 42% of production is through shale, with crude production around 50%,” he said.

As technology continues to evolve, Payne said, “we are continuing to do a better job of pulling this gas and crude out at a lower price. We are going to get more prolific and drive down costs even further.” Meanwhile, other countries, including China and Russia, are doing the same.

“Shale is the future, it’s the future on a global basis as well,” he said. The country with the largest shale reserves, he noted, is Russia, with the United States in second place. “We’re obviously the largest producer of shale crude, and China is number three.

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On the natural gas side, China is number one and the U.S. is number four.”

But how long will crude prices stay low? “We think it’s going to be awhile,” Payne said. “Because of shale, prices will be capped. As prices start to come up, we will see a situation where rigs come back on line very quickly. We think that, as we get into the $65 to $70 per barrel range, a lot of rigs will come back on line,” he said. “At peak, we were at 1,610 crude rigs in the U.S., and if you have 1,610 rigs working in the fields primarily on shale, you will get 1 million barrels of growth year-over-year.” He also does not see prices going much above $80 because of the ability to turn these rigs so quickly, primarily in the U.S.

A poll among energy experts in the audience as to where prices will be by the end of 2015 reached a consensus of $55 to $60 per barrel. Asked whether he believes the Nixon-era ban on exporting oil will be lifted, Payne pointed out that a number of CEOs have been pushing for U.S. exports of crude. “I’m surprised that Obama let LNG [liquefied natural gas] exports materialize as quickly as he did,” he said, adding that the president has allowed for other similar exports as well. However, he warned, “Once we start to export, there could be a knee-jerk reaction from OPEC. We are going to be viewed as a competitor rather than a customer, and they may want to squelch that competitor a bit longer than people’s expectations. So I think there is a danger to doing that, but it could very well move forward.”

Top 10 Benefits of Return to Work Programs

According to the Occupational Health and Safety Administration, 4.1 million U.S. employees experience work-related injuries or illnesses each year and 1.12 million of those employees lose work days as a result. With the average employee missing eight days per injury, even a minor injury can create a domino effect in your company.

When employees experience illness or injury, it often impacts their ability to perform their jobs, especially in occupations that are more labor intensive. As soon as your worker is able, it is in everyone’s best interest to return him or her to work in some capacity. Oftentimes, this is done through formalized return to work programs. Return to work programs are extremely effective because they provide benefits to not only the employee, but also your company.

Example Job Duties

Return to work programs involve “light duty” or alternative jobs for recovering employees. For example, you can assign less strenuous or stressful parts of the employee’s normal job or have them work at a slower rate. You can also combine the less strenuous or stressful parts of several different jobs to create one full-time job for the recovering employee; this could free up other workers to take on special projects or catch up with work that is falling behind.

A supervisor can also assign a special project without a tight deadline to a recovering employee. As another alternative, some companies work with local not-for-profit organizations to keep the employee engaged with light work duties while making a notable contribution to the community.

Establishing these types of assignments will create a more fruitful and engaging return to work program. Still not convinced? Here is a list of the top 10 benefits of return to work programs for both your employee and business.

Top Benefits for Your Employees

Implementing a return to work program for injured employees communicates care and concern. It also shows employees that you value their well-being and want them back on the job as soon as possible.

Employees benefit in the following ways:

1.            Retaining full earning capacity

2.            Maintaining a productive mindset

3.            Staying on a regular work schedule

4.            Avoiding dependence on a disability system

5.            Having a sense of security and stability

Top Benefits for Your Company

A return to work program can also benefit your company financially by:

1.            Anticipating and controlling hidden costs

2.            Reducing financial impact of workplace injuries

3.            Providing a proactive approach to cost containment

4.            Improving your ability to manage an injury claim and any restrictions

5.            Getting your experienced employees back to work, resulting in less time and money spent on recruiting and hiring

It should be no surprise that a simple workers compensation case may result in expensive litigation. A well-executed return to work program will also provide clear expectations and guidelines for employees injured on the job and have been shown to reduce litigation.

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Additionally, many workers compensation insurers now require their clients to establish return to work programs.

If nothing else, having a well-documented return to work program will show a prospective insurance company that your organization takes risk management seriously. It’ll demonstrate a commitment that may mean the difference in getting into a better insurance deal and/or more favorable rates.

Getting Started

Establishing a return to work policy and or program is not difficult. Some companies already include many of the policies unofficially in the way they handle claims. It is important, however, to execute these programs correctly. Clear guidelines and specific, consistent policies must be established in writing. Your insurance broker or carrier’s loss control or claims personnel can help you get started.

According to data collected by the Job Accommodation Network, 74% of employers that implemented some form of return to work accommodations rated them as either very or extremely effective—with most accommodations costing the employers nothing. Of those that do have associated costs, the one-time expenditure on average is 0.

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Seeing the minimal costs involved and the resulting high value begs the question: why not implement a return to work program?

Insurers See Worldwide Drop in Customer Satisfaction

Non-life insurers in most of the world saw improved underwriting ratios last year, thanks to a significant drop in claims expenses and rising premium volume aided by growth in emerging markets. According to Capgemini’s 2015 World Insurance Report, however, insurers were not nearly as successful with their customers.

Globally, positive customer experiences decreased significantly in 2014, indicating that steps taken by insurers are not matching rising customer expectations, the consultancy reported. The fall was pervasive worldwide, but North America witnessed the largest drop of 8.3 percentage points, followed by Latin America with 5.3 points.

According to the report, “The agent channel delivered positive experience levels that were almost double those of digital channels, suggesting that digital channels are dragging down global customer experience levels. Customer expectations of digital channels such as mobile and social media are rising rapidly along with their usage and importance. However, more than 40% of customers cited positive experiences through the agency channel, while less than 30% of customers had positive experiences through digital channels such as mobile and social media.”

Claims servicing is also problematic in terms of customer experience, seeing the lowest percentage of happy customers.

Among all customers, Gen Y currently presents the biggest decrease in satisfaction. The drop in positive experience levels was much steeper for this age group than any other, and this trend is seen across all regions, especially in the developed markets. In North America, the drop in experience levels for Gen Y customers was approximately 10 percentage points steeper than other age segments, while in developed Asia-Pacific the difference was around five percentage points, Capgemini reported.

Check out more of the study’s key findings in the infographic below:

2015 world insurance report infographic

 

Second Circuit Overturns Rule 23 Class Certification as Individual Inquiries ‘Overwhelm’ Class Issues

On March 4, 2015, the U.S. Court of Appeals for the Second Circuit reversed a District Court’s decision to certify a class action against Nextel Communications, Inc. (“Nextel”) in Johnson, et al v. Nextel Communications, Inc., et. al., which we previously blogged about here. In Johnson, the District Court certified a class action – pursuant to Rule 23(c)(4) – relative to the claims of 587 employees of Nextel who allege that Nextel, and the former plaintiffs’ law firm representing the employees, engaged in various illegal acts against them by entering into a Dispute Resolution Settlement Agreement (“DSRA”) to resolve their employment discrimination claims. The ruling provides yet another interesting spin on Comcast Corp. v. Behrend, 131 S. Ct. 1426 (2013).

Background To The Case

Around 2000, a law firm representing 587 employees (current and former) entered into a DRSA with Nextel to resolve various discrimination claims. As a result of the DSRA, the law firm received $5.5 million in attorneys’ fees as well as an additional $2 million to act as consultants to Nextel on its employment practices. In total, the 587 employees received less than half of the amount that their law firm received as part of the DRSA. As a result, the employees filed two state court actions in Colorado, which resulted in a $1.2 million class-wide settlement against the law firm, with 39 employees opting out of the settlement.

Plaintiffs in Johnson – the 587 individuals whose claims against Nextel were resolved pursuant to the DRSA – sought to certify a proposed liability class against Nextel only as well as a sub-class made up of the 39 employees who-opted out of the Colorado settlements against their former law firm. The District Court granted this motion.

The Second Circuit’s Decision

The Second Circuit reversed the District Court and held that class certification was inappropriate because under Rule 23(b)(3), class-wide issues would not predominate, and individualized issues would “overwhelm” the case. The Second Circuit reasoned that Rule 23(b)(3)’s predominance requirement is more demanding than the Rule 23(a) commonality requirement, and that individual issues must be considered in deciding whether class issues outweigh issues involving individualized proof. The Second Circuit so ruled based on its reading on Comcast Corp.

Against this backdrop, the Second Circuit held that the District Court incorrectly held that New York law should apply in deciding whether the DRSA was enforceable. Rather, the Second Circuit held that the majority of the alleged wrongdoing took place outside of New York, where the individual employees resided, and “where he or she were promised representation.” As such, the Second Circuit held that “the state with the most significant relationship to plaintiffs’ claims is each individual state in which a class member resides and where he or she was promised representation.”

Once the Second Circuit established that the substantive law of each class member’s state applied, “the case for finding predominance of common issues and the superiority of trying this case as a class action diminishes to the vanishing point.” These individualized inquiries associated with looking at the substantive law of each class member’s state “…are not collateral issues that could be determined in individual hearings after common questions are resolved for the class – they go to the heart of defendants’ liability for each class members’ alleged injury” and therefore warranted the denial of class certification. The Second Circuited noted that “the specter of having to apply different substantive laws does not necessarily warrant refusing to certify a class…whereas here, the variations in state law present ‘insuperable obstacles’ to determining liability based on common proof, such variations defeat the predominance of common issues and the superiority of trying the case as a class action.”

Implications for Employers

Workplace class actions are being reshaped before our very eyes as courts across the country apply new Supreme Court precedent. The application of Comcast to class certification in a variety of contexts is still developing in the law. The decision in Johnson adds to the ever growing post-Comcast appellate court decisions on Rule 23 certification and is a must-read for employers caught in the crosshairs of high stakes, “bet the company” class action litigation, whether employment-related or otherwise.

This column previously appeared on the Seyfarth Shaw website, here.