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Awful but Lawful: Attorney Fee Provision Gone Bad

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Companies that sign contracts, including renewals, without careful review could be in for an unpleasant surprise if the unexpected happens. For example, extra caution would have saved “Widget Corp.” a lot of money and time in its dispute with “Acme Inc.

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Here’s the scenario: Widget Corp. enters into a contract with Acme Inc. While Acme Inc. expects to earn more than a million dollars from the contract, Widget Corp. later closes its doors after selling most of its assets. Angered and disappointed, Acme Inc. decides to sue Widget Corp. over the contract even though it has a weak claim that Widget Corp. did anything wrong.

The risk is that, perhaps recognizing it will lose on its breach of contract claim, Acme Inc. points to a peculiar provision in the contract that, in a nutshell, requires Widget Corp. to pay Acme Inc.’s attorney fees—win or lose.

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(Can you guess which company drafted the contract?)

The result: At arbitration, a respected arbitrator hears arguments on the contract dispute and concludes that Widget Corp., in fact, had done nothing wrong and had not broken its contractual promises to Acme Inc. The arbitrator, nonetheless, required Widget Corp. to pay Acme Inc.’s attorney fees incurred in litigating the dispute—those fees exceeded $150,000.00.

Widget Corp.’s counsel raised a number of defenses:

  1. As a general rule, courts won’t interpret contract provisions in such a way that creates absurd or unreasonable results. Widget Corp.’s counsel argued that it would be absurd if Acme Inc. could sue Widget Corp., lose all of its arguments, but still collect attorney fees.
  2. Attorney fees aren’t typically awarded unless the side getting the attorney fees wins at least part of the dispute. This is so because courts view attorney fees as a form of damages, and if the other side did nothing wrong, then there is no damage to award—including attorney fees.
  3. An attorney fee award must be “reasonable.” Widget Corp.’s counsel argued that it is unreasonable to award any attorney fee whatsoever given that Acme Inc.
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    lost the entire dispute.

The arbitrator found these arguments unpersuasive and enforced the contract as written. Since the contract said what it said, at the end of the day Widget Corp. signed the contract. As the arbitrator aptly quipped, the provision was “awful but lawful.”

Lessons:

  1. Companies must read contracts carefully to understand what they mean. Companies may be particularly tempted to sign without internal or legal review when renewing an annual or semi-annual contract; companies sometimes assume that the renewal contract will contain the identical language, and the companies do not want to spend additional time or money to review what has already been reviewed. Nothing guarantees that next year’s contract will match the current contract, however. Companies are thus wise to review even renewal contracts to ensure they understand the terms, exposure and risks.
  2. Get a second (and even third) set of eyes on the contract before signing. Companies would be prudent to devote even more resources to reviewing contracts that impose more liability. The rub is that companies often do not comprehend their contractual exposure until multiple people review the contract.
  3. Assume the worst when it comes to a particular, seemingly unreasonable contractual provision. In other words, assume the provision will be enforced as written. Reasonable minds can differ as to what constitutes a “reasonable” provision and it is foolhardy to assume that a court or arbitrator will disregard what parties agreed to—particularly when those parties are businesses.
  4. Remember, if a provision seems questionable in what it purports to do, it is easier to request that the other side remove the provision before you sign than to ask a court or arbitrator to ignore the provision despite your agreement. As Benjamin Franklin once advised fire-threatened Philadelphians, an ounce of prevention is worth a pound of cure.

Open Offices and Holidays: A Parade of Risks

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‘Tis the season for many businesses to stay open through the holidays and for some to take part in the tradition of partying or watching a parade warmly from behind office windows. That’s why businesses located near public events should inform employees of how their offices will be impacted during the holiday season.

Parades pose various operational risks to property owners and businesses, both inside and outside their buildings. On Nov. 23 alone, at least five large parades will inch their way through the streets of major cities like Chicago and Detroit. Macy’s anticipates 3.5 million spectators to pack New York City’s streets for its annual Thanksgiving Day Parade. That means 2.5 miles of barriers and street closings in the “frozen zone” between 77th and 34th streets, and businesses in the country’s most congested city should prepare for some disruption.

Theresa Morzello, the managing director for asset services for CBRE in New York City, has advised many companies who stay open or host events coinciding with parades and holidays. She said the first steps in mitigating disruption involve communicating with the event organizers and disseminating that information to tenants.

“This way they’ll know, for example, if one of their building’s entrances will close because of a parade,” Morzello said. “We also make sure that employees and their guests know the protocol for providing documentation for entering and exiting. That is usually handled in advance and lists are provided to security. And there are protocols for what to do when someone doesn’t have it. These are all things we do on a daily basis, but amped up a few levels because of the holidays.”

Morzello also said that property managers often try to utilize vacant office space because there is less potential for damage or disruption there. Wherever the gathering takes place within CBRE’s properties, she advises tenants to consider the following:

Hire elevator operators to help keep guests on their assigned floors.

  • Obtain a temporary alcohol license, if necessary.
  • Confirm that outside caterers are insured.
  • Address if the windows are operable and ensure they are kept closed.

But parades and crowded events are not relegated to big cities, as many major retailers take part in the festivities. Acadia Realty Trust manages hundreds of retail and office properties in the U.S. and Kellie Shapiro, vice president of risk management said clearing a physical path is the first step to mitigate safety risks during a high-traffic season.

“We issue a moratorium on any work during the holiday season. We email tenants reminding them to get everything done before Thanksgiving,” she said. “From then until New Year’s is not the time to have scaffolding and things like that.” She added that capital improvements are suspended across most of Acadia’s portfolio to avoid interfering with tenants’ operations during their busiest season.

Businesses can easily lose track of who’s coming and going during the busy holiday season, Shapiro noted. Acadia’s focus is on knowing its vendors, and she reminds tenants to be diligent about vetting third-party contractors for the sake of safety and reputation.

“You can protect your company by being diligent about who you bring in to your site. You should know who your contractors are – you don’t want to let some criminal just walk right in because you handed over the keys to your building,” Shapiro said. “You would hope tenants, if they saw something suspicious, would pick up the phone. We’d all like to secure something 100% but you have to know your limitations.”

Public safety in the U.S. has been headline news, considering the recent high-profile violence involving weapons and automobiles in just the last two months in Las Vegas, California, Texas and Manhattan. In a recent interview with Risk Management Monitor, Rezwan Ali, risk solutions group head of security at Falck Global Assistance, discussed how businesses and employees should review their emergency plans during high-volume times. He maintained, however, that the odds of being impacted by a terror attack is very low.

“When participating in larger events, such as the Thanksgiving Day Parade in New York, people tend to focus only on the parade and their phones taking pictures and posting on social media,” said Ali. “However, it is important to stay alert and aware of one’s surroundings. Not just to be prepared for terror, but also to prevent being a victim of crime.

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It is recommended to download apps either provided by the authorities or by media outlets that generate alerts allowing you to get direct notifications should anything happen in your vicinity.”

Keeping Parades and Events Safe for Businesses and Employees

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Holiday parades will be marching down many U.S. city streets during the next six weeks, with millions of revelers expected to attend. And while these are historically joyous occasions, safety is a top concern for businesses located near the festivities—especially considering the high-profile violence that has recently dominated headlines. Rezwan Ali, risk solutions group head of security at Falck Global Assistance, which advises companies about security, safety and travel risks, spoke about the challenges and best practices faced by businesses and employees located near parade routes.

Risk Management Monitor: How are companies responding to the rise in low-tech terrorism and violence?

Rezwan Ali: Companies have become more aware of the need for crisis management. Recent terror events in cities such as Paris, London, Las Vegas and New York have shown companies that duty of care is much more than just health and safety – it is knowing where your employees are traveling and aiding them if affected by terror or violent events. As companies become more globally oriented, their employees are required to travel more, which expands the company’s duty of care responsibility and creates a need for travel risk management. In recent years, there has been an increase in the demand for travel risk management, which originates in a company’s acknowledgement of providing duty of care services to travelling employees to mitigate the possible impact of attacks on the business, its reputation and employees.

RMM: What steps can businesses take to prevent disruption?

RA: The best way to mitigate disruption caused by terrorism is to be prepared at both the business and individual level. On a business level, companies should implement a crisis management process and a contingency plan. A crisis management process includes appointing a crisis management team and training the organization using various scenarios. The contingency plan provides guidelines on how to maintain business as usual when a crisis occurs and works in parallel with the crisis management process. On an individual level, training can provide employees with tools to cope with stressful situations and alleviate the impact of an incident. When employees know how to manage demanding situations, the effect on the company will also be minimized.

RMM: How can businesses located near a parade route or major event protect their employees?

RA: All businesses should have emergency and evacuation plans, which can be applied in the event of emergency. These plans should cover procedures for evacuating the office, safe areas and roles and responsibilities. Businesses located in areas identified as potential targets for terror attacks should incorporate specific emergency measures related to terrorism into their plans. They should also ensure that all employees know and understand that the emergency plans exist.

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These plans could include guidelines for what to do should a terror attack take place outside the office, as well how to react in the event of an active shooter. It is crucial that these plans and procedures are trained, exercised and tested.

Having an office in an area prone to various incidents requires the company to be informed of relevant developments. Sound intelligence can alert the company of an event, enabling quick initiation of applicable plans.

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Many companies use their network to provide intelligence or rely on local media to provide alerts. Regardless of the information, it is important to use trustworthy sources to ensure validity. The company can choose to develop a trigger system that determines whether the alert should activate any emergency procedures.

RMM: How likely is it that someone will be a victim of terrorism or violence during a large event?

RA: Although terrorism has severe consequences, the likelihood of being a victim of terror is low when compared to other risks such as traffic accidents and illness. The impact of a traffic accident on the individual can still be high, while the impact on the business will be minimal, in most cases.

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 What makes terror so dangerous is not likelihood, but the fear of it happening. Terror literally means “fear,” and it is the uncertainty and severity of terror that is pivotal for how we perceive it. Employees may express a somewhat irrational fear that must be addressed and taken seriously by the company, as it affects the employee and his/her work.

Insurance Industry Responds to House Approval of NFIP Renewal

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Insurance industry trade groups lauded the U.S. House of Representatives’ vote on Nov.

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14, reauthorizing the National Flood Insurance Program (NFIP). The 21st Century Flood Reform Act (H.R. 2874) would reauthorize the program for five years and enact operational changes.

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Advocates from RIMS, the risk management society, the Property Casualty Insurers Association of America, and SmarterSafer.org also asked that the Senate waste no time in passing its version of the measure before its expiration on Dec. 8.

On Sept. 8, President Trump signed legislation passed by both houses to extend NFIP authorization until Dec. 8, which previously had been set to expire Sept. 30.

Dow Jones reports that the act’s reforms include:

  • Authorizing $1 billion to elevate, buy out or mitigate high-risk properties
  • Capping flood insurance premiums at $10,000 per year for homeowners
  • Removing hurdles to the private flood insurance market, which often offers better coverage at lower cost than the NFIP
  • Providing for community flood maps and a homeowner’s ability to appeal their flood designation
  • Better aligning NFIP rates to match a property’s true risk, particularly for in-land and lower-value properties
  • Improving the claims process for flood victims
  • Addressing repeatedly flooded properties, which account for 2% of NFIP policies but 25% of claim payments

While it applauded the U.S. House of Representatives for deciding to reauthorize the NFIP, RIMS, the risk management society, also urged the Senate to quickly follow-up before the program’s Dec. 8 expiration. Allowing the NFIP to expire would have “significant repercussions, impacting both corporate and residential property owners,” said RIMS Vice President Robert Cartwright Jr.

“Nearly five million American consumers rely on the NFIP to protect their homes, properties, and businesses,” said Nat Wienecke, senior vice president of federal government relations at the Property Casualty Insurers Association of America (PCI). “A long-term reauthorization is needed to provide consumers and markets with reliability and stability when it comes to flood insurance coverage.

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SmarterSafer.org, a coalition of taxpayer advocates, environmental groups, insurance interests, housing organizations and mitigation advocates, said in a statement that this year’s “historic hurricane season has pushed the nation’s debt-ridden flood insurance program past the point of bankruptcy once again, so we applaud the House for passing a legislative package that reforms the NFIP to ensure the program is financially sustainable for the future.” The organization also lauded the House for investing in recommended measures including “mapping and mitigation, addressing affordability and providing consumer choice in the flood insurance marketplace.”

The NFIP was created more than 50 years ago to provide affordable flood insurance as private insurers pulled out of the market. The program’s large debt led Congress to cancel $16 billion of its debt last month. NFIP now has about $6 billion to pay claims and $10 billion left that it can borrow from the Treasury Department, according to the Federal Emergency Management Agency, which manages the program.