Wednesday, April 30, 2008

Session INS 201: Trends in D&O - Say it Ain't So

Litigation connected to the collapse of the subprime market, more institutional investors deciding to opt out of class action lawsuits, and more aggressive prosecutions by state and federal authorities has led to an increase in the severity and frequency of directors’ and officers’ liability lawsuits, according to ACE USA’s chief counsel.

“The end result is that executives and corporations today are faced with defending more complex litigation on more varied fronts, which is costly and compromising,” according to Zacharias, author of a recent report on the subject. “D&O litigation is back, and appears to be poised to continue unabated in the near future.”

The percentage of cases settling for more than $100 million has grown from 1.7 percent in 1998 to 5.2 percent in 2003 to 8.1 percent in 2007, according to her study, titled “The Return of D&O: Trends Driving Increasing Costs and Frequency of Litigation Against Corporate Directors and Officers.” The report was released at the annual conference of the Risk and Insurance Management Society Inc. in San Diego.

Excluding settlement of more than $1 billion, median settlements in 2007 increased by 37 percent, $9.6 million from $7.0 million in 2006, and average settlements increased 46 percent, to $33.2 million in 2007 from $22.7 million in 2006.

While the volume of cases settling for less than $10 million, there are a higher percent of cases setting in the higher damage brackets, said Zacharias.

Another trend, said Zacharias, was the increasing likelihood of institutional investors to opt out of the class action status, in an attempt to seek retribution on their own. Zacharias blamed the heavy lobbying efforts of plaintiffs lawyers.

Institutional investors opt out because they can get a larger settlement on their own, they can negotiate lower attorneys fees, and they feel a duty to investors to recover as much as they can rather than settle for cents on the dollar. In the case of public pension funds, it may even be a way to jockey for political attention, she said.

The early opt-out case used as a benchmark is Worldcom, in which eight institutional investors who decided to opt out recovered $651 million. The Worldcom case was followed by AOL-Time Warner with nine opt-out institutional investors recovering $795 million. In the Qwest case, the entire class of plaintiffs settled for $400 million, but some of the opted-out institutional investors settled for $411 million, according to the report.

Some industries are at higher risk of litigation than others: One quarter of the 2007 cases filed were brought against technology companies, 13 percent were filed against pharmaceutical companies, and 21 percent were filed against the banking/brokerage/financial services sectors, the report also found. CEOs and CFOs are sued more often than other executives in securities class actions. Committees are much less likely to be sued.

“The size of a company is not necessarily a determinant as to whether the company will be subject to a securities class action,” the report also said.

Sessions: Surviving a Workplace Shooting...and a Boring Session

Things I learned in Session RMG 203 "Lightening Strikes: Surviving an Active Shooter-Hostage Event in the Workplace":

1.) False Advertising: What is contained in the RIMS Conference Guide should be taken with a grain of salt. Sessions often do not live up to their cool titles and descriptions. Sessions also tend to be a bit more basic and elementary than their experience levels would suggest.

2.) Blind Leading the 20/20: Session speakers don't always represent their field's most brilliant minds. Those attending sessions can be disappointed to discover that they possess more knowledge about the topic than those standing behind the podium. These folks need to approach RIMS about leading sessions of their own in the future--we would all benefit.

3.) PowerPoint BS: When a topic demands you step outside the PowerPoint, do it! For example....

This particular session sounded engaging and exciting. Others must have shared my opinion because the room was packed. I was disappointed to hear some of the survival strategies though. They included such earth-shattering concepts as:

"The best way to survive is to be where the shooter is not."
(Really? I always thought murders could use a nice bear hug)

"Find a room that locks, block the door, and be silent."
(Hmm...I was under the impression that standing behind a potted plant half my size, like I do when I play hide-and-go-seek with my niece, would suffice)

"Assume that his intentions are lethal."
(But maybe he's just looking for a partner at the shooting range?)

"Remain calm."
(The response to this is so obvious, I can't mention it)

All half-jokes aside, the session led (disappointingly) mostly by PowerPoint presentation, did address one issue that many risk and safety managers have a difficult time grasping. In an active shooter situation, when no other options are available, you must confront the shooter. Session leader, Randy Spivey, director of the Safe Travel Institute, said companies often clam up when he broaches the subject.

"Some people wouldn't even discuss that in a corporate environment," he said. "My response is, how can you ignore that?"

Spivey pointed to the most well known example of the strategy, United Flight 93, whose passengers decided to take matters into their own hands on Sept. 11, 2001. Of course, we all know the plane crashed, but other than those on board no lives were lost. Spivey said confronting an attacker takes a group effort and a total commitment is necessary to be successful. Taking action, instead of freezing in place, is what Spivey terms giving oneself a "mental permission slip."

It seems that many people lose that permission slip, however. Spivey said research indicates that folks trained to respond in such shooter-hostage situations vary dramatically from untrained individuals when put in an actual event. He claims 10 percent of untrained individuals will respond well in a crisis, while 10 percent of trained individuals will screw it up. I find those numbers a bit difficult to believe.

I've taken a self-defense course, but does that mean when approached by an assailant from behind, I would have the clarity of mind to recall my training and be able to jab that elbow in a calm, calculated manner and hit my mark? Much more likely, I would flail about in a desperate and hysterical manner.

For now, I think I'll be able to sleep tonight, with the peace of mind that I am well aware of the emergency exits closest to my cubicle at the Risk & Insurance office building. And when no other options exist in an active shooter scenario, I think I'll try the bear hug tactic. That, and a piece of candy from the dish on my desk. That should sweeten the deal, don't you think?

Tradeshow Floor: Insurance Gnomes Unite!

Bob Horkovich has been coming to RIMS for almost 20 years, since 1989 to be precise, and he has never seen it like this. Horkovich, the New York-based attorney who heads the insurance recovery group for Anderson Kill & Olick, PC, said he senses from talking to risk managers that they are getting a whiff of an opportunity that they have never had before.

The opportunity is coming in the guise of the adjustments that have occurred in the financial sector over the past seven months as the mortgage-backed securities and some of the other investments bundles crafted by Wall Street’s whiz kids have turned into financial hand grenades: hand grenades with Super Glue on them.

Call them mentally leaden, call them arrogant, but the residents of some of this country’s C-suites are finally looking at their corporate phone directories and realizing that they have someone who has been on their payroll all along who can actually help them avoid getting their hands blown off, financially speaking of course: it’s called a risk manager.

“All these financial geniuses out of Wharton and the Harvard Business School, how did they get themselves into all this trouble? Wasn’t there somebody who could have warned them not to do this and then ‘Bingo, oh gee, this is risk. We’ve got somebody in our company who is responsible for risk,’” said Horkovich, his eyes bugging.

Horkovich said that callousness to reality and to being able to find it within one’s three-piece-suited self to seek the advice of someone who you’re actually paying to help you avoid losses is breaking up this year more than it ever has previously. And risk managers, a dour, overworked, troubled lot if their countenances as they roam around the San Diego Convention Center are any indication, are feeling a tinge of something unusual in their chests, and it’s not the after-effects of Tuesday’s Aon-sponsored wine and cheese party: It’s called hope.

“I have been doing RIMS since 1989 but this is the first time I really get a sense from the risk managers that there is a real potential here for them here to play a significant role within a corporation,” said Horkovich.

Previously, according to Horkovich, risk managers were shuffled off to dingy corners and treated as “insurance gnomes”. That is, one whose sole purpose in life is to buy more coverage cheaper than they did the year before.

“I’ve seen over the years the risk managers unfortunately put in the position where companies are chiefly concerned with paying less premium for more coverage and not even really that concerned about getting claims paid. No risk manager that I’ve ever known ever got promoted because a claim was paid or a claim was denied,” said Horkovich, as, visibly conference weary, he balanced a tall cup of the ever-present Starbucks on his knee on the showroom floor on Wednesday noonish.

Speaking of the exhibition floor, Horkovich said he noticed something else at RIMS this year that was different. He said more and more, the risk managers that attend the conference and the booths that populate the exhibition space are concerned with risk-avoidance techniques and processes and not so much the purchase of insurance.

“Just walking around I’ve seen a lot fewer major booths for insurance companies.”

Sessions: INS209: By reading this, you agree to the indemnification provisions contained herein

The voices of the three presenters at the INS209 session fade out ... and their last point is pulling me off into my own little la-la land. (At RIMS, I really haven't had too much time to go there, so I've really been missing my la-la land.) The topic of discussion in the session (and sorry for not giving you the full title for this session, it's really long) was how contractual indemnification agreements can be designed so that a subcontractor would have to indemnify a third party for the mistakes of the contractor.

Say contractor A is doing construction and takes the wrecking ball, by accident, to the building next door to the worksite ... and then has his architect subcontractor be responsible for it (and the subcontractor's insurance company). Roughly speaking, that's what the speakers were talking about as the session faded onto the back burner here, and instead I am wondering how I can use these indemnification agreements on my own life ...

And I can't. Because I never make a mistake, so there's no need to have somebody on the hook for them.

But let's say I did make mistakes ... I could start making everyone I meet sign a contract that says they are on the hook should I screw up while dealing with them, directly or indirectly, or as long as they know me. If I had enough people sign these contracts, and then I pissed off my wife, say, I could whip out one of my contracts and say, "Look, honey, John Schmoe here agreed to indemnify you in the event I made a mistake so please ask him to do the dishes and put away the laundry." If John Schmoe balked, I'd whip out another contract signed with somebody else, then another, until I found the push-over who'd do my chores for me.

Here's another example: I've been forgetting to wear my wedding band during RIMS ... during the day, during the night ... and no, I am not false advertising, Gail, or revealing some sort of unconscious weakness in morality or fidelity, Erin. It's because I am bouncing from one meeting to another, to a session, to the computer to blog, to a lunch meeting, to another interview, to another interview ... so my brain can only focus on 30-minute intervals throughout the day until I make it to the latest nighttime party at Stingaree and shut down my brain completely. (Great place, Stingaree. I could go to an insurance party there every night the rest of this year and not wonder at all how many other excellent restaurant and bar venues in the city of San Diego I'm missing out on.)

But my point is: Let's say my wife were to find out that I haven't been wearing my wedding band, and let's say she then uncharacteristically turned terribly vengeful and decided not to speak to me for a whole week or two after I get home (I say uncharacteristically because she'd only maybe not talk to me for a day, maybe a weekend).

Were I to have all of my interviewees, all of my session speakers, all of my co-workers and especially all of my bosses sign these indemnity provisions, then I could return home comfortably sleeping on my red-eye flight knowing that my wife would then have to not speak to one of them, not me. Through my indemnity obligation (and the words of someone speaking in the session are seeping into my consciousness now), I could transfer the risk of my own forgetfulness to some other party, any other party, and my wife would be forced to put up with me and curse under her breath at them.

But I'd first have to check PA state laws ... some states would prohibit John Schmoe from indemnifying her because of something caused by my own stupidity and laziness.

Yes, laziness is involved here too. Yesterday morning, I remembered that I forgot my ring ... but only after having walked 8 flights down the stairs in my hotel, and with 4 more flights to go, I sure as hell was not walking back up those 8 flights to get my ring. It's only a ring, people! And I surely wasn't even going to think of taking the elevator to get up there.

The elevators in my hotel do not stop at any floor where someone is waiting for them. They might not stop at all. They merely rush up and down, without pausing anywhere for a lit down button or a glowing up button, whooshing past each floor loud enough so you can hear them come and go, passing you over and over and over and over.

Any takers on indemnifying the hotel should I kick in their elevator doors?

The RIMS Apprentice: My experiences at RIMS

Editor's note: Another Temple University student volunteered to guest post for us here at RIMS. His name: Jonathan Leather. But let's not keep you waiting. Here's Jonathan ...

The first thing that I have to say is that as a student, RIMS is what you make of it. Physical presence is not enough; in order to get the most out of it you have to be outgoing and social.

Many of my felow students took the approach that they have already accepted an nternship or full-time position and therefore don't need to network. I took a different approach; I already had accepted an internship, but still wanted to meet as many people, do as many things, and learn as much as I could for the time I was there.

I must say that it was the people I met that made this one of the best experiences of my life.
I can't provide any names at the moment, since my luggage containing business cards was lost at the airport.

What I was most impressed by was the caliber of the people and events that contributed to my experience. I accumulated a stack of business cards about two inches thick, and I can honestly say that I held a great conversation with every person I met.

There were three things that impressed me most with both RIMS and the risk management and insurnace industry.

First was how friendly everyone was. I took every opprotunity to speak to anyone I could meet, and was surprised to find that most of them remembered me when I ran into them at various events. I was under the impression that I was only a student, and would be forgotten as soon as the conversation ended. The fact that more often than not people remembered who I was is incredible. As a student, it is the most amazing feeling to have any industry professional, especially executives such as CEO's and Senior Vice Presidents remember you and greet you by name. On top of that, everybody was willing to take the time to speak to me, a student, no matter how buisy their schedules or how many important clients they had to meet.

Second was the size of the event. I have never been in so many nice buildings and I have never attended an event of such caliber. The RIMS conference its self is impressive; I managed to visit many of the booths and events, but what was most impressive to me was the parties hosted by different companies. It seemed as though each party outdid the last. The food and drink was exceptional; I can honestly say I had the best desserts at the AIG party, the best Chinese food at the Willis party, and the best time at all of them. The places where the events were held and entertainment (Hootie & the Blowfish) was incredible. This was my first experience at an event like this, and it was overwhelming. I cannot fathom how much time and money went into the parties, and it is hard for me to imagine getting a large enough return on investment by hosting a party.

Third was how much I learned. In class we learn concepts and theories, but at RIMS, I started to learn how they are applied. The knowledge I gained by atending sessions, visiting booths, and meeting people gave me a glimpse of the actual complexity of insurnace, opening my eyes to how much there is that I don't know.

As well as meeting industry professionals, I had the opprontunity to meet Risk Management students from other Universities and Gamma Iota Sigma Chapters. It was interesting to see the differences in our approaches to learning; for everything that I knew that they didn't, they knew something that I didn't. I had a great time meeting my peers and forsee a long relationship with more than a few of them.

It seemed as though each booth had something both unique and cutting edge to offer, much of what I learned was by having people explain what their company does, and how it differentiates its self.

Overall I was very impressed with the program, having only a few regrets.

First was the location of our hotel. We (Temple University Students) stayed at the Best Western Hacienca Old Town, which was about six or seven miles away from the event. I would have preferred staying closer, since it was a hassle to deal with the trolley, or figuring out a ride incase we wanted to stay out after the trolley stopped running.

Although the vast majority of attendees were professional, there were a few, including students, that had too much of a good time. Occasionally I would meet a professional, and more often I would meet students who seemed more concerned with indulging in drink than they were in meeting people, socializing, and having a good time. There were a few students who occasionally lapsed in their professionalism; I hope that they did not influence the opinions of people they met. I feel as though we were guests at this event, leaving us no room for unprofessional behavior.

Lastly, I was dissapointed with the conflict of school and RIMS. RIMS is always held a week before our finals, meaning that I came later, and left earlier than I would have liked, and had to worry about schoolwork as well. If finals were two weeks earlier or RIMS two weeks later, I (and my classmates) would have been able to relax a bit more, stay a bit longer, and hopefully gain a bit more knowledge and a few more friends.

Overall, I had the best time of my life. I fully intend to attend next year's RIMS event (Orlando?) and I plan on staying the whole time. I believe that I made friends and contacts that I will have for a very long time, and that knowledge I gained will influence my career positively.

Thanks for Reading,
Jonathan Leather
Jonathan.Leather@temple.edu

Session: Human incubators and other upcoming al-Qaeda attacks

The next big Bin Laden attack could occur on the 10-year anniversay of 9/11, according to John Cloonan, president of Clayton Consultants and a 25-year veteran of the FBI who's personally interrogated the al-Qaeda member who brainstormed the plane attacks into the World Trade Center.

On that 10-year anniversary, he said, the attack is likely to be one meant to cripple our already beaten-down economy, perhaps one involving biochem. He explained that al-Qaeda is already experimenting with using human "incubators"--suicide "bombers" infected with some painful, debilatating, deadly vector who then are sent on a tour of America -- up elevators, through malls, into subways, onto airplanes -- all in an effort to spread the bio weapon into as much American airspace as possible before they themselves succumb to it. Imagine that.

You should. According to Cloonan, it is going to happen. Not if. When. It was a horrible session that Cloonan spoke at -- Tuesday afternoon in RMG305: Terrorism 2008 Update: Domestic to Al-Qaeda.

Not horrible in the sense that Cloonan was clueless. He knew exactly what he was talking about. And it was terrifying. You had the sense that the audience was in pain, in silent anguish, hearing what they knew to be true but, as Americans, living in American la-la land, we'd rather not think about, let alone enunciate in public.

It's been the only session I've attending where no one left mid-session. We couldn't. We were trapped, stuck, listening to some Nostradomus-esque prediction of how our society will be battered, slashed, sucker-punched, pricked, slapped, bled, generation after generation. Religious, ideological terrorism is a risk that we have no answer for. This is coming from an intel expert who specializes in handling kidnap and ransom situations, interrogations and other terrorism-related situations.

"They think very very long term," he said. "They will take years to get revenge, and they will get it."

The problem for commercial interests, and the risk managers who protect them, is that this revenge is targeting upon business and public victims, as much as it was on military and governmental ones.

The other problem is -- and before I say this, let me report that Cloonan did a very delicate and excellent job of staying apolitical when discussing the war on Muslim fundamentalism -- and I repeat, the other problem is we are NOT good at stopping terrorists.

"We're not that good," he said, adding that more terroristic attacks have occurred since 9/11 than before.

We have 36 FBI agents who speak Arabic beyond a vocab of five words. Our embassy in Baghdad has 6 staff who speak Arabic. Our human intel capabilities, in other words, suck. And we're fighting an organization, a movement, an idea based entirely on killing Americans and their allies.

If it makes you feel any better, Cloonan recalled how, when eavesdropping on Bin Laden during phone conversations with his mother -- yes, Cloonan is a bad ass --he'd heard the most wanted man in the world complain to his mom about sore throats and other nonsense that grown men still call their moms to whine about.

"He's a momma's boy," reported Cloonan.

Yes, a momma's boy who helped to launch a movement of thousands dedicated to killing Americans, destroying their businesses and properties, and sinking our economy and our society.

The RIMS Apprentice: Day 3

Hello All,

I know this post is a bit late, but this is literally the first time I have been in my room in about 24 hours. Unlike all you business folk, I am a measly student with no blackberry or wireless Internet, and my hotel is a 15-minute cab ride from the convention center, so I have no way of accessing my laptop.

I will write about yesterday's events today, and today's events tomorrow so I have time to catch up!

Yesterday, Monday, was quite a long day! I woke up and wrote about 900 e-mails to mostly everyone I had met the day before. Many industry people responded almost immediately; it was nice to have a response back. All of the Temple students then headed to the luncheon, which was fantastic. There was a doo wop band after, and everyone sang along!

After lunch, we went to a session on captives. Of course, we walked right up and sat in the front row, at which time one of the speakers said "A ha, you must be students, students are the only people who ever sit in the front row!"

It was nice to chat with the speakers one on one before the presentation. The presentation was very interesting. The other students and I were contained in the 5 percent of the people in the room who didn't own or operate a captive. I find captives to be a very interesting market, so it was interesting to hear other people in the industry's takes on the captive markets.

We took the trolley back to the hotel to get ready, then the night truly began. Everyone has been joking that I seem to know where all the parties are, but it is the truth. I have a habit of meeting people who will be hosting the parties that night just in the nick of time.

My friend Tiffany and I began the night at the Miller party at a bar/lounge. There was quite a large turnout. It was very nice, because Tiffany's aunt's best friend (if you can follow that!) actually runs the Bermuda office for Miller. It is definitely true what is said; the insurance industry is a very small industry. Sure, there are offices and people in every corner of the globe, but everyone seems to know everyone! Six degrees of separation definitely applies, and usually it is only 2 or 3 degrees!

David Fuhrman of Willis had invited us to a party at PETCO park, so that was our next stop. Another friend of ours from Temple, Jon, met up to mingle with everyone from Willis and their guests. It was incredible, hosted up in one of the suites on the third floor. There were all kinds of self serve food stations, including one complete with Chinese take out boxes that you could fill with Asian delicacies.

David introduced me to Frank Beuthin, the Vice President of Property Risk Solutions at Willis, and I was very excited to find out that he was originally from Berlin, Germany! Ich liebe Deutschland! I have been there a few times, and it was great to talk with someone who knew the area.

That is another thing I have learned over the trip: Once you have made a connection with someone and formed some sort of common ground, it is very easy to network and get along.

Much to the moaning and groaning of the Willis party attendees, we had to leave to go to the Marsh party at Dick's last resort (sorry guys!). The party was very crowded, but I recognized a lot of people I knew.

My friend Erica and I ended up meeting Paul Funchess and Kyle Bassett from RPost, a neat company specializing in registered email, who we hung out with for most of the party. They introduced us to a lot of their friends and clients as well.

Once they closed up the Marsh party, all of us rushed over to the Convention Center to see Hootie and the Blowfish. The show was intense; they played many amazing songs. I may be young, people, but I still know who Hootie is!

But in all seriousness, was anyone else severely freaked out by the floor shaking? Will Nagel of riskproducts.com and I were laughing at how ironic it would be if the floor caved in at a risk management conference. It was literally shaking and pulsating to the music. I tried to stick near the edge, figuring that if the floor collapsed, it wouldn't be near me. Or since I was on the edge, if I collapsed in too, my fall would at least be cushioned by everyone in the center who had already fallen! Just kidding, I know that is morbid.

The ACE party was of course amazing. The food, lighting, decorations, and of course music was phenomenal.

After ACE, Tiffany, our faculty advisor Dr. Drennan, our professor Mike McClosky, and I took a cab to the Zurich party on the other side of the harbor. It was quite a sight to see: we were greeted with flashing necklaces and waitresses carrying rum drinks! We mingled with everyone at the party, and I made some new friends out on the deck. A big thank you to Eleanor Barnard, who put us on her private guest list!

I looked all over the bar for a family friend of mine who helps run the Zurich Philadelphia office, but alas he was nowhere to be found! I especially loved all of the floating advertisements (aka yachts) for Zurich. I was dying to go for a sail on one, but no one would take me :-(

They said they were for advertisements only, but someone has to be on the boat steering, right?

We finally finished up the night and headed back to my hotel in Old Town. We had an early meeting the next day, so I had to get to bed.

It is now 3 a.m. in San Diego, and I am such a devoted blogger that I am up typing. Did I mention that I have a taxi picking me up to take me to the airport at 6 a.m.? Oh well! I will write my blog all about today (well, technically yesterday) tomorrow (again, technically today) either in the airport or when I get home to Philadelphia.

Until then, Goodbye, Ciao, Auf Wiedersehen, Adios, etc.