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Coca-Cola Hit with a $21 Million Distracted Driving Judgment

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Last week, a jury in Corpus Christi, Texas awarded $21 million in damages to a woman who was struck by a Coca-Cola driver who had been talking on her cell phone at the time of the accident. The plaintiff’s attorneys were able to successfully argue that Coca-Cola’s cell phone policy for its drivers was “vague and ambiguous.” They also suggested that Coca-Cola was aware of the dangers but “withheld this information from its employee driver,” which led directly to the circumstances that caused the accident.

“From the time I took the Coca Cola driver’s testimony and obtained the company’s inadequate cell phone driving policy, I knew we had a corporate giant with a huge safety problem on our hands,” said Thomas J.

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Henry, one of the plaintiff’s attorneys.

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Coca-Cola disagreed with the verdict and, in a statement, expressed its plans to appeal:

“This case was tried because the parties could not come to an agreement on damages. We have accepted responsibility for the accident. We understand that this verdict is a response to a plea from plaintiff’s counsel to the jury to ban all cell phone use while driving.

“Coca-Cola Refreshments’ cell phone policy, which requires the use of a hands-free device when operating a motor vehicle, is completely consistent with, and in fact, exceeds the requirements of Texas law. Coca-Cola Refreshments values the well-being of all citizens in the communities in which we operate. There is no discernible connection between the damages awarded in this case and the injuries sustained by the plaintiff. Although we respect the verdict of the jury, we plan to appeal.”

Nevertheless, the case does emphasize the need for all companies to have a clear cell phone use policy for their drivers. In a recent blog post, Matt Howard, CEO of ZoomSafer, a mobile phone safety software provider, outlined three important lessons the case can teach fleet managers. First, when accidents happen, plaintiffs will sue (and obviously judgments could get costly). In addition, policies cannot exist only on paper and they must be enforced.

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Hoffman concludes:

This case emphasizes just how serious the risk is – and that all employers can be vicariously implicated if they fail to manage and monitor how employees are using mobile devices while driving. Employers who want to minimize liability as much as possible must institute risk management programs to actively or passively enforce cell phone use policies.

The risks of distracted driving have been well documented and with more and more states enacting some sort of ban on cell phone use while driving, either for talking, texting or both, cell phone policies are quickly becoming a necessity. And as this case shows, it’s not just about legal compliance or driver safety–it can also have a substantial financial impact on your company.

ExxonMobil and Big Oil’s Fight Against Dodd-Frank

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There are no shortage of Wall Street firms that want to strip some teeth from the Dodd-Frank financial reform act. But energy companies also have some incentive to parse out at least one key provision.

The item at issue, Section 1504 of Dodd-Frank, centers on transparency. Specifically it would, according to Bloomberg Businessweek, use SEC rules to force publicly traded energy/mining companies “to make timely, detailed disclosures of the tax and royalty payments they make to governments worldwide.” What is the specific arrangement agreed upon by, say, ExxonMobil and the government of Chad for the energy giant to pump oil from the resource-rich nation?

Businessweek notes how Chad, specifically, had much of its wealth pilfered by corrupt leadership. Proponents of Section 1504 hope that mandating greater transparency of these deals will keep the blame-less citizens of poor, resource-rich countries from having their country’s resources sold away to the highest bidder for the personal gain of their crooked rulers.

Now, Exxon and most other big energy companies say they aren’t against this concept in principle. As much as history has certainly helped them benefit from he actions of corrupt governments in the developing world, they have realized that transparency and “information sharing can improve governance,” according to Businessweek.

Their main issue seems simple: they already do this.

Large oil and mining companies already participate in a voluntary regime, the Extractive Industries Transparency Initiative. Executives at ExxonMobil, the world’s biggest oil company, have sat on the Initiative’s board.

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Reformers have been frustrated by the slow and incomplete nature of the disclosures required by EITI; Dodd-Frank is a chance to push through tougher rules. Lobbyists are now urging the SEC to delay action or to narrow the kinds of disclosures that would be required.
The American Petroleum Institute, the industry’s Washington arm, is leading the push, but all major oil and mining companies have joined in on their own. (Newmont Mining is the only major exception; it has expressed support for the 1504 rules.)

The question is whether or not this voluntary effort is enough.

Those in favor of Section 1504 say that the mandatory regulations go further and would better ensure that everything is reported and those living in poor, resource-rich nations are protected.

That is probably hard to argue with.

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Big Oil, however, argues that the rules would be overly onerous.

The companies argue that the proposed rules would be “excessively burdensome,” in the words of Patrick Mulva, ExxonMobil’s vice president and controller. Big Oil’s “greater concern,” as Mulva wrote in a letter to the commission, is that 1504 would have a “detrimental effect” on the “global competitiveness of U.S. companies.” The fear is that Chinese, Russian, Brazilian, and Indian oil and mining companies, lacking qualms and unburdened by Dodd-Frank rules, would exploit the financial disclosures made by their Western competitors to outbid them—and potentially persuade leaders of resource-rich countries in the developing world to stay away from U.S. companies altogether.

Like all things with the rolling implementation of Dodd-Frank, I’m sure that there will be more to come on this … slowly.

Perhaps most interestingly to me, however, the article also compares this provision to the Foreign Corrupt Practices Act, which was passed by Congress in 1977 to stamp out the rampant bribery of foreign government office that goes on between U.S. companies operating abroad.

A generation ago, Congress insisted when it passed the Foreign Corrupt Practices Act that U.S.-headquartered multinationals would be held to a special standard, forgoing bribery even where it was commonplace abroad, and would have to learn how to compete with unscrupulous Russian, Chinese, or French companies. Not only did American business survive and thrive after the law was passed, but forward-thinking American executives learned to use the law to fob off outstretched hands and avoid unsavory rents they wouldn’t have wished to pay in the first place.

That may be true.

But companies are now facing an increased enforcement of the FCPA. We just finished edited a story for our June issue about how companies can insure themselves against Justice Department FCPA investigations. There are a lot of nuanced, policy-language questions that come into play if a claim is triggered. It is some very arcane stuff, frankly.

But what is notable is seeing how the enforcement has increased. Here are two charts that tell the story.

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Organizations Lose an Estimated 5% of Annual Revenues to Fraud

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There’s no doubt fraud, committed by both external and internal parties, is on the rise as methods for committing theft become more available and easier to hide due to technology. And according to a recent survey by the Association of Certified Fraud Examiners, businesses around the world lose an estimated 5% of their annual revenues to fraud, for a total loss of more than $3.5 trillion.

The 2012 “Report to the Nations on Occupational Fraud & Abuse” found the following:

  • Fraud schemes are extremely costly. The median loss caused by the occupational fraud cases in the study was $140,000. More than one-fifth of these cases caused losses of at least $1 million.
  • Schemes can continue for months or even years before they are detected. The frauds in the study lasted a median of 18 months before being caught.
  • Tips are key in detecting fraud. Occupational fraud is more likely to be detected by a tip than by any other method. The majority of tips reporting fraud come from employees of the victim organization.
  • Occupational fraud is a global problem. Though some findings differ slightly from region to region, most of the trends in fraud schemes, perpetrator characteristics and anti-fraud controls are similar regardless of where the fraud occurred.
  • High-level perpetrators do the most damage. The median loss among frauds committed by owner/executives was $573,000, the median loss caused by managers was $180,000 and the median loss caused by employees was $60,000.
  • Small businesses face increased risk. The smallest organizations in the study suffered the largest median losses. These organizations typically employ fewer anti-fraud controls than their larger counterparts, which increases their vulnerability to fraud.

The report goes on to break down occupational frauds by category, duration of fraud based on scheme type, size of victim organization and initial detection of occupational frauds. Here is the breakdown in graphical form:

The full report can be downloaded here.

Who Pays for the Cost of Cyberwar?

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There is no question that the computers controlling the nation’s critical infrastructure (the power grid, financial system, water treatment facilities, etc.) must be protected from potential cyber attacks launched by domestic or foreign enemies. But who’s responsibility is it to pay for this security, business leaders or national security organizations?

Some are backing stricter government regulation of cybersecurity, which has been proposed in the Lieberman-Collins legislation, while the majority of business leaders oppose this idea.

“The major concern is the vast regulatory structure that would be set up at the Department of Homeland Security,” says Larry Clinton, president of the Internet Security Alliance, an association of major U.S. companies with interests in the cybersecurity debate. It’s a concern not shared by Stewart Baker, a top cybersecurity official in the Bush administration who says he generally holds pro-business and anti-regulation views. “I see a big conflict between the desire to avoid regulation and the desire to protect national security,” Baker says.

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“I come down on the national security side of that debate.

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“

There is also disagreement as to whether private industry, which owns most of the U.S.’s infrastructure, is even capable of defending themselves against the increasing sophistication of external (or even internal) attacks. Many feel the government, with its cyber intelligence, could do a much better job. But again, that would require businesses to endure endless cyber regulations. As of now, many business leaders feel that is too much to handle (sounds similar to complaints about Dodd-Frank?). But when the electric grid is knocked offline in a cyber attack, they may feel differently. At that time, however, it could be too late.

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As corporate boards and senior executives continue to deny the potential risks and consequences of cyber threats, we are indeed, as NPR put it best, fighting “a war without an army.”