Workers' compensation insurance premium fraud is a major issue affecting our industry. Not only is it illegal, it hurts the bottom lines of both producers and carriers and leads to higher insurance premiums for honest businesses. It can also cause a loss in commission for agents, have a negative impact on a state's rate-making system and create an unfair business advantage for the perpetrator through artificially reduced operating costs.

To protect their interests as well as the interests of honest policyholders, agents need to be aware of the different types of premium fraud and their warning signs. Agents also need to know the steps to take if they suspect premium fraud. Armed with the right information, independent insurance agents - who are a key conduit between policyholders and insurance carriers - can play a crucial role in identifying and preventing workers' compensation insurance premium fraud.

Types of Workers' Compensation Insurance Premium Fraud

There are three basic types of premium fraud: under-reporting payroll, misclassification of employees and experience modification evasion.

Under-reporting of payroll occurs when a policyholder inaccurately reports its work staff to the insurance company, often by paying employees off the books or presenting employees as sub-contractors or independent contractors rather than actual company employees.

The second type of premium fraud is the misclassification of employees, which occurs when a high-risk employee such as a construction worker is classified as a person with lower risk, like an office clerk. This misclassification is intended to result in a lower workers' compensation premium for the perpetrator.

The third type of premium fraud is experience modification evasion. It occurs when an established company with a greater than average loss history attempts to re-emerge as a new company on paper to obtain a lower experience modification factor. However, the business is actually unchanged in its operations and still presents a greater than average risk.

Warning Signs for Agents

Here are common warning signs that indicate business owners may be attempting to commit workers' compensation premium fraud. The presence of two or more of the following should raise concern and warrant further examination:

• The business address is a mail drop or P.O. box, or the business is physically located in another part of the state from its mailing address.
• A prior carrier has dropped the business or the business frequently changes carriers.
• An excessive number of certificates of insurance are issued on a small policy.
• Reported injuries are not consistent with purported job titles or duties.
• There is an unusual ratio of clerical to non-clerical staff for the type of business.
• The business avoids audits or has never been audited.

How Agents Can Protect Themselves

Agents are not immune from being accused of advising policyholders to commit fraudulent acts. There are simple steps agents can take, however, to protect themselves and assist in workers' compensation fraud investigations. Foremost, they should be aware of and monitor for the common warning signs of fraud and work with carriers that offer active anti-fraud programs.

Agents should also maintain detailed records of their interactions with policyholders, including all e-mails. Agents should verify the identity of the policyholder or person of contact with a driver's license, and original signatures should be obtained on all applications. By keeping this information on file, agents can help protect themselves against false accusations and help prosecutors in a criminal case, if necessary.

If agents ever suspect a policyholder is engaging in workers' compensation premium fraud, they should inform the carrier's special investigation or fraud investigation unit. In certain cases, law enforcement may also need to get involved.

If criminal charges are eventually filed against a policyholder, the evidence agents possess will be important to the prosecution's case. When a prosecutor serves a subpoena or search warrant for an agent's records, the types of evidence most often required are applications, copies of checks used for payments, correspondence (including e-mail) with the accused policyholder and any documents signed by a person responsible for the business.

Agents play an important role as a critical front line defense against workers' compensation insurance premium fraud. It is important for agents to be aware of the different types of fraud and their common warning signs. They should never hesitate to report any suspicious activities to the carrier for further investigation.

It has been interesting that, after several years of excitement around the topic of "gamification," this year more commentators have suggested that it's "game over." I certainly agree that this concept has moved through the Gartner hype-cycle, into the wonderfully named "trough of disillusionment."

However, that is the springboard for entering into the stages of pragmatic realism. My experience is that it is often once technologies or ideas reach this stage that those interested in just delivering results can begin to realize benefits, without the distraction of hype/fashion.

Even though I can see the points made in this Forbes article, I think that the evidence cited concerns a failure to revolutionize business more broadly. What has not yet been exhausted, in my view, is the potential for gamification to help with market research.

One growing issue springs to mind. I'm thinking of the challenge faced by any client-side researcher seeking a representative sample for a large, quantitative study. The issue is that participation rates are falling, unless research is fun, interesting and rewarding. Coupled with that problem is the risk that some ways that agencies use to address it risk a higher skew toward "professional" research participants.

Gaining a sufficient sample, one that matches a company's own customer base's demographic or segments, can be important for experimentation. This issue is timely for financial services companies that are seeking to experiment with behavioral economics and need sufficient participation in tests to see choices made in response to "nudges." So, there is a need to freshen up research with methods of delivery that better engage the consumer.

No doubt the full hype will not be realized for gamification. But I hope that, as the dust settles, customer insight leaders will not give up on the idea of gamification as a research execution tool. Some pioneers like Upfront Analytics are seeing positive results. Let's hope others get a chance to "play" with this.

With their variety of business strategies and product innovations, financial services organizations often have very complex corporate structures. The mix of regulated operating, distribution, investment, holding and dormant companies - together with various special-purpose vehicles - means that few employees fully know the complexity of an enterprise's legal entity structure.

Generally, management prefers simplicity and accountability. Accordingly, it typically organizes enterprises into distinct, separately managed, strategic business units (SBUs), which are overlaid on top of the existing legal entity structure, with the SBUs sharing various legal entities. This management approach creates a simplified internal view of financial performance relative to the legal entity structure; however, it often masks the considerable extra work (and therefore potentially avoidable cost) associated with the corporate structure within an organization's corporate accounting, tax and other back-office functions.

Few organizations start off with a complex corporate structure or seek to achieve one, but a combination of factors can lead to complexity:

• Growth by acquisition - Entities inherited as part of an acquisition and entities (such as holding companies) formed to make acquisitions;
• Tax strategies - Entities formed to minimize multi-jurisdictional taxation, preserve the utility of tax attributes (such as basis, losses and credits) or effectively manage product state taxes;
• Historical regulatory requirements - Companies formed to facilitate various regulated pricing tiers (particularly in property and casualty (P&C) insurance); and,
• Business line expansion and reorganization - Organic growth into new product areas, alignment within different market segments (sometimes under reinsurance pooling arrangements), discontinued business, etc.

Complexity adds to administrative costs and can slow production of management information. In the capital structure work that PwC performs, we frequently find that a company's structure is out of date; for example, the original rationale for a tax planning structure is no longer applicable because of a change in law, or a legal entity structure established to facilitate a line of business has survived even though the line of business has not. As another example, an entity that was established before the advent of the entity classification election regime (i.e. "check the box" rule) now may be unnecessary to achieve the intended tax benefits. Accordingly, organizations should examine the costs and benefits of maintaining current structures.

The complexity of corporate structures in financial services is evident in the insurance industry's use of legal entities. As the table below shows, among P&C and life and health (L&H) insurers, the top 25 insurance groups hold a majority of industry capital (69% in P&C, 58% in L&H). Despite this concentration, there is evidence that inefficiencies exist: There is a high number of dormant entities relative to total legal entities and the number of domiciles some groups are managing. The number of domiciles tends to be five or fewer for most insurers, but in some extreme cases there are as many as 12 domiciles for P&C companies and 31 for L&H companies (primarily because of health maintenance organization (HMO) entities). When factoring in the potential costs (real and opportunity costs) of maintaining unused or underutilized legal entities, the impact on the industry as a whole is very real.

Insurance industry capital is relatively concentrated
	P&C	L&H
Groups	~330	~250
Legal entities	~2,700	~1,800
Capital in top 25 groups	69%	58%

But there are indications of inefficiency

Dormant entities	150+	300+
Fronting entities	500+	100+
Range of domiciles/groups	1-12	1-31

Source: SNL, PwC Analysis

Legal entity cost

Organizations rightly consider the costs of administering legal entities a normal part of doing business. Such frictional costs vary by organization and entity usage and typically include:

• Financial reporting costs - Licensed insurance companies require separate annual and quarterly financial statement preparation in their state of domicile. The time spent on statement preparation correlates to complexity. The greater the number of legal entities, the greater the complexity and the higher the risk of misstatement.
• Auditing costs - These costs will vary with the size and complexity of the balance sheet. Again, costs tend to be correlated with complexity (e.g., degree of intercompany transactions, complex reinsurance structures, investments/financial products, etc.).
• State assessments - Premium or loss-based assessments for a variety of state programs will vary in size relative to the business written in the legal entity. It is important to recognize that minimum assessments also can apply even when business is no longer written on a direct or net basis.
• Regulatory exams - State regulators conduct both market conduct exams and financial exams of insurance companies domiciled in their respective jurisdictions. Market conduct exams occur on an as-needed basis and relate to examination of operational (sales, underwriting, claims) business practices. Certain domiciles are more challenging than others. Financial exams occur every three to five years, at the insurance company's expense.
• Tax - Each legal entity in the structure adds to the company's overall compliance burden, as insurance companies are required to prepare and file forms with state and federal tax authorities on a periodic basis even when dormant. A company also may be required to respond to periodic inquiries about its activities, or lack thereof, and may be subject to minimum taxes and filing fees. Active operating companies must monitor and manage the interplay of premium tax rates and retaliatory taxes, which arise when states in lower tax jurisdictions increase state taxes to match the level of the domicile state, if it is higher.
• Management time - Spans all of the above areas. The more complex a legal entity structure, the more time middle management and, in some cases, senior management have to spend on issues related to excess legal entities.

In light of these frictional costs, the expense of administering an overly complex legal entity structure can be considerable. Eliminating redundant or unused entities through merging companies, outright sale of the insurance company (or companies) or clearing out the liabilities and selling a "shell" company can result in significant savings.

Improving access to capital

Moving capital through legal entities can be complicated by regulatory constraints and often involves frictional costs such as sub-optimal tax consequences (e.g., withholding taxes on dividends from a foreign subsidiary and excise taxes on premiums paid to a foreign affiliate). Capital trapped in dormant or underutilized entities will provide sub-optimal returns and therefore serve as a drag on the overall group return on equity. For example, an organization with a 15% corporate required rate of return and a 5% average investment portfolio rate of return has a 10% opportunity cost of maintaining the capital in a redundant legal entity. Accordingly, one of the few positive outcomes of the financial crisis has been insurers' streamlining their corporate structures to simplify internal access to capital and gain capital efficiency.

One method of improving capital deployment in a dormant or underutilized entity is through merger with a continuing entity. However, before merging a licensed company out of existence, insurers need to consider the marketability of the unwanted entity in terms of the number and location of state licenses, the degree to which the company has gross liabilities, the type of liabilities (e.g., excluding asbestos and environmental), the domicile state, the credit quality of the counterparty backing the reinsurance contract or contracts used to create the shell, etc. In light of the regulatory hurdles and time delays that accompany the obtainment of state licenses, there is a market for selling licensed companies as "shell" companies. The process typically requires transferring insurance liabilities out of the legal entity through indemnity - or preferably assumption - reinsurance. This market has yielded significant value to its customers. That said, it is critical to gain proper restructuring advice before entering into these transactions because undesirable accounting and risk-based capital outcomes can result from poorly structured reinsurance transactions.

Simplifying corporate structure: Opportunities & challenges

Eliminating unnecessary organizational complexity and reducing associated frictional expenses are the main reasons to undertake a corporate simplification program. The benefits of corporate simplification are:

• Streamlined financial management across a manageable number of entities;
• Removal of unnecessary frictional costs;
• Reduced overall state tax burden, leading to competitive advantages in market pricing;
• Consolidation of entities within favorable state regulatory environments;
• Identification of alternative capital structures or mechanisms to free trapped capital for the top-tier company to use for other purposes;
• Generation of capital through the sale of unnecessary licensed companies as "shell" companies.

However, the simplification program does present some challenges:

• Internal resource constraints may limit design and implementation of the simplification;
• Regulatory approvals for material changes may prolong implementation;
• Product filings may need to be updated;
• Re-domestication of entities may present political or regulatory issues (including perceived or real job losses or transfers, closed block regulatory requirements, etc.) that can delay the process;
• Changes in legal entity structure can affect near-term business operations and supporting technology platforms. For example, changes in legal entities used by the insurance underwriting organization may require process changes in the distribution channel as new and renewal business is mapped to different entities;
• Selling or merging active operating companies can also present challenges for management, including: identifying intercompany accounts between merged entities; updating intercompany agreements, such as intercompany reinsurance pooling agreements, to reflect the changes; cleaning up outstanding legal entity accounting reconciliations, if any; re-mapping ledgers for historical data; re-mapping upstream company eliminations; creating and maintaining merged company historical financials for statutory and GAAP/IFRS financial statements; locating and analyzing details of historic tax attributes (such as basis and earnings and profits) and studying qualification for tax-free reorganization; potential reversal of subsidiary surplus impacts from asset purchase/sale transactions within the holding company structure; and potential scrutiny over differing methodologies, if any, used for accounting (e.g., deferred acquisition cost) or actuarial reserve methodologies used by the entities to be merged.

The corporate simplification process

Many large insurance organizations have some level of corporate simplification on their annual to-do list, but the initiative often gets pushed aside because of gaps between corporate and business priorities and available resources. The corporate simplification process requires a champion who can take into account and balance varying points of view, call upon required resources, facilitate project management and authorize access to subject-matter expertise. Moreover, a corporate simplification program must balance corporate (tax, regulatory, governance and financial reporting costs) and business (customer, distribution, products, process and technology) needs and considerations. Depending on the complexity of the organization and underlying challenges, a simplification initiative can take several months to well over a year.

The three stages of such an initiative include:

1. Assess - The ultimate goal of a corporate simplification process is a streamlined corporate structure that corresponds to business core competencies and strategy. This structure will have an efficient balance of cost, risk, regulatory, tax, capital, governance and operational parameters that aligns business operations with the legal entity structure. In the initial phase of the initiative, representatives from corporate and business areas must come together to review the current use of legal entities and create the desired future organizational structure, as well as take into account the existing corporate environment (rather than what existed in the past). If the simplification effort is part of a broader business unit re-alignment, the assessment and design phase will require a significant commitment of time and effort to redefine the desired business strategy. If the simplification is taking place within a well-defined business unit structure, then the focus can be limited to streamlining and reducing overall cost within the existing business unit strategies.

A complete inventory of legal entities should be created outlining information such as the business use, applicable business unit, domicile, direct and net business written (for insurance companies only), required/minimum capital, actual capital, potential for elimination, and other information as defined by the group. Furthermore, to complete the assessment of the simplification effort, a business impact analysis that includes a premium tax analysis by state domicile and a regulatory domicile analysis should occur at this stage. Companies also need to carefully look at their portfolio of companies to ensure they have the entities they need today and for the near future.

2. Design - As the plan starts to take shape, the project team must conduct a deeper analysis of accounting, business and technology transition issues. The deliverable will be a proposed road map that:

• Outlines a streamlined legal entity organization structure with greater capital efficiency and alignment with business strategy;
• Identifies the proposed combinations/eliminations of insurance and non-insurance entities;
• Describes the proposed movement of capital (including extraordinary dividends required) and reinsurance transactions to effectuate the change (if applicable); and
• Establishes a communication plan within a high-level timeline.

This outline of proposed changes must be well vetted internally before the organization approaches regulators, rating agencies and other constituents.

3. Implement - Once the design is ready, project management and subject-matter expert resource requirements must be confirmed. Program and change management and associated governance structures are critical throughout the planning and implementation phases as the number of work streams, constituents, interdependencies and issues can be substantial for larger-scale simplification programs. Once the team is in place, it must create detailed implementation project plans, identify quick wins, establish an effective communication plan and establish an issue/dependency management process. Communication to all constituents - employees, sales force/agents, regulators, rating agencies and policyholders - is vital in any simplification initiative.

Following the design phase, those entities that have common activities, objectives, operational process or customer segmentation can be merged, which should effectively align business and legal entity structure. The remaining, redundant legal entities should be eliminated, sold as-is or sold as a shell. This final step will result in cost savings and the raising of new capital through the sale of licensed shell companies.

Conclusion: Corporate simplification is a priority

In light of the need to be nimble while reducing costs, corporate simplification should be at the top of the corporate to-do list. A well-managed corporate simplification program provides strategic alignment of entities, reduces costs and facilitates more efficient use of capital. The companies that execute an effective corporate simplification process and maintain a commitment to simplification over time will succeed in reducing costs and be able to devote their time and attention to valuable activities.

You may (or may not) remember that when Amazon.com began in the late 1990s, the single focus of the company was selling books online. One product category, one type of manufacturer, one market focus -- people who buy books. At the time, virtually everyone in the publishing industry scoffed at the idea that anyone would want to buy a book they couldn't first touch. Today, Amazon.com sells all types of products from all types of manufacturers to all types of individuals and businesses every day of the year. No one is scoffing any more -- except perhaps the insurance industry.

Just like the publishing industry two decades ago, the insurance industry in facing a once-in-a-generation digital disruption and transformation, and I'm not sure the industry knows it. Let's look at the distribution of insurance through the lens of an Amazon.com-like buying experience.

Most insurers and distributors automatically start with the typical objections: "Insurance is complex," they say; or, "What about the regulatory restrictions?"; or, "My agents have to explain the product benefits to the customer." The knee-jerk reactions make sense in an industry that is mostly agent-centric and that seemingly treats customers with at least some contempt.

We have, after all, built rules around every aspect of insurance: who can buy, what they can buy, when and how they can buy, who they are, where they are located, what they want to insure, how much insurance they need, how much it costs. There are licensing and appointment rules, compliance and regulatory issues, insurance company underwriting requirements, rating rules, policy issue guidelines, premium remittance standards and distributor channel conflict rules, and these may all be different depending on the kind of product - life, accident and health, property and casualty, individual, group, association, employer and so forth. While many of these rules make sense, many others are simply vestiges of "the way things have always been done." That is a problem for our industry.

The reality is that a consumer doesn't care about most of the nitty-gritty, inside baseball, that affects all of the above. The consumer cares about being in control of the insurance purchase experience like he is in control of every other shopping experience. That's not to say the consumer wants to go it alone without an agent necessarily. But it does mean the consumer wants to be able to make that choice -- and, today, she can't. Increasingly, consumers are being schooled on how to buy everything through the convenience of a digital market; why not all of their insurance?

It won't be long before insurance consumers will expect to access products from multiple carriers, shop, compare, buy their policy with the credit card they pull from their wallet and have their policies, ID cards, welcome letters, privacy notices, etc. instantly delivered to their own online account (not through a carrier). How about the convenience of going to a digital marketplace that remembers each consumer for subsequent transactions? Maybe like Amazon Prime?

I've always wondered what the executives at Barnes & Noble, Borders, Simon & Schuster, HarperCollins and Penguin (not to mention Circuit City and J.C. Penney and Sears) were thinking back in the 1990s as Amazon.com started to gain traction. I wonder the same thing now about some insurance executives.

Savvy insurers and distributors will meet consumers where they want to be met and transact business in the digital marketplace. Or they won't. But if the industry doesn't go there quickly, someone else will - of that, I'm sure.

With our past few posts on ITL, we have been exploring how insurers can continue to bring more private capacity to U.S. flood (Note: Everything we talk about for U.S. flood is also relevant for Canada flood). We have explored here how technology, data and analytics exist to handle flood in an adequately sophisticated manner, and we have described here the market opportunity that exists. Now, it’s worth a look to explore how a flood program could be introduced, starting from scratch through cherry-picking mischaracterized risks and then to a full, mass-market solution.

What’s a FIRM? It’s not what you think

First, let’s take a quick look at how National Flood Insurance Program (NFIP) rates are determined: the Flood Insurance Rate Maps, or FIRMs. For the NFIP, FIRMs solve two core problems – identifying which properties must have flood insurance and how much to charge for it. The first function is for banks, giving them an easy answer for whether a property to be lent against requires flood insurance – this is what the Special Flood Hazard Area (SFHA) is for. Anything within the SFHA is deemed to be in a 100-year flood zone (basically, A and V zones), and requires flood insurance for a mortgage. The second function sets the pricing and conditions for the NFIP to sell the actual policies. The complexity of solving these two problems should not be underestimated for a country of this size. But it must be remembered that a FIRM is a marketing device and not a risk model.

Considering that FIRMs are a marketing device built on a huge scale, it makes perfect sense that some generalizations needed to be made on the delineation of the various flood zones. The banks needed a general guideline to know when flood insurance was needed, and the NFIP needed rates to be distributed in a way that could result in a broad enough risk pool to generate enough premium to be solvent. While the SFHA has served the banks well enough over the years, the rating of properties has not been so successful. There are plenty of reasons the NFIP is deep in debt (see page 6 of this report); suffice it to say that the rates set by FIRMs do not result in a solvent NFIP.

Cherry-picking

The fact that the FIRMs are a flawed rating device based on geographical generalizations means there are cherries to be picked. By applying location-based flood risk analytics to properties in the SFHA, a carrier can begin to find where the NFIP has overrated the risk. Using risk assessments based on geospatial analysis (such as measurements to water) and their own data (such as NFIP claims history), a carrier can undercut the NFIP on specific properties where the risk fits their own appetite. Note to cherry-pickers: Ensure you account for the height above ground of the building, because you won’t need elevation certificates for this type of underwriting. So far, cherry-picking has been focused on the SFHA for a couple reasons – homeowners need to have coverage, and the NFIP rates are the highest. There is no reason, though, that cherry picking can’t be done effectively in X zones and beyond.

Mass-market solution

The same data and analytics used for cherry-picking can be used more broadly to create a mass-market solution. By adjusting the dials on the flood risk analytics – and flood risk analytics really should be configurable – you can calibrate to calculate the flood risk at low-risk locations. In other words, flood risk can be parsed into however many bins are needed to underwrite flood risk on any property in the country. With the risk segmented, rates can be defined that can (and should) be applied as a standard peril on all homeowner policies. Flood risk can be underwritten like fire risk.

Insurers have traditionally been confident underwriting fire risk. But consider this: While fire is based on construction type, distance to fire hydrants and distance to fire station, flood risk can be assessed with parameters that can be measured with similar confidence but with greater correlation to a potential loss.

Flood will be the new fire

Insurers have been satisfied to leave flood risk to the Feds, and that was prudent for generations. But technology has evolved, and enterprising carriers can now craft an underwriting strategy to put flood risk on their books. Fire was once considered too high-risk to underwrite consistently, but as confidence grew on how to manage the risk it became a staple product of property insurers. Now, insurers are dipping their toes into flood risk. As others follow, confidence will grow, and flood will become the new fire.

Healthcare is broken in this country; I don't think I really have to convince too many people of that. Whether your political leanings are blue or red, whether you're a senior citizen or a teenager, really whether you're rich or poor -- just about everybody senses that something is wrong with how we manage care. This is not a quality-of-service issue, not so much an access-to-care issue and not really a lack-of-options issue. No, the problem most Americans rightly recognize as being wrong in current system boils down to one word: price.

But how do you fix that? For 20 years now, I have tried to help employers manage their healthcare costs for employees and their families. For at least the first 15 years of my career, that job mostly entailed comparing options from the national and regional carriers, negotiating the lowest rates possible, making suggestions to help lower benefits to offset rising premiums and then preparing spreadsheets of all those options for our CEO, CFO and HR director. Basically, my job was to bring in bad news, but to try to bring in the least bad news. All to get new clients and keep old ones.

Any time a business owner would ask me, "Why are our premiums rising so much?" I'd turn the question around a bit and ask what she thought the causes were. Inevitably, I'd hear the same three things. First, those "staggering profits of the insurance companies." Closely behind that is America's notorious "increase in obesity." Then third -- every once in a while -- someone would actually get closer to the truth and say the reason is that "medical costs are rising." And all of these are true, no doubt, to one degree or another. But none explains how health insurance premiums have historically risen at a rate five times or more beyond normal inflation.

When pressed for an answer on higher premiums, I’d explain how we receive very little information from carriers (especially in the fully insured market), but you’ve got a higher-than-desirable loss ratio -- or I might mention the aging employee population, declining overall health, new taxes and regulations perhaps related to the Affordable Care Act. Again, all those reasons, to some degree or another, have a real impact.

The one that kept coming closest to the truth, at least from an insurance insider's perspective, is the steady rise in costs. Or, unfortunately, as most consumers see it, the outlandish profiteering manufactured from the suffering, confusion and fear of others.

To truly find a more meaningful answer -- something consumers and advocates and carriers and even legislatures could theoretically one day use to craft a lasting solution -- I started to look at the actual unit cost of medical care. That's vital, because it strips away taxes, fees, insurance profits and many other considerations like America's decreasing health, or the continued drop in smoking. It clears all that fog and gives you a hard-number comparison. And what I discovered was that we as a nation spend more per unit of care than the next seven most-expensive countries COMBINED.

That deserves repeating. Not only do we as a nation maintain the world's most expensive healthcare system as a whole, but at the individual level you are likely to be billed more for the same procedure than similar patients in China, France, Germany, Canada, Malaysia, India and the U.K. if all their bills were rolled into one.

Comparisons

To put things in better perspective, I looked at other common costs we incur going back as far as before the Industrial Revolution. And what I found was that the price of a car has not wildly changed in all those years. Nor do gas prices rise against inflation. Meanwhile, prices of computers and technology have historically gone down. So how then do healthcare premiums justify such leaps?

Housing is a great example. Since 1970, housing costs have only gone up 15% -- 15% in 45 years. In that same time period, medical care costs have jumped 1,800% -- 18 times greater since 1970. How about since 1935? According to Federal Bureau of Labor Statistics, costs have risen 4,200% in that time.

When further comparing health insurance and healthcare itself against any other goods and services we might buy, I realized that Americans, in general, tend to apply common sense and rational thinking to many other purchases, but that much of that practice somehow goes out the window when it comes to medical care.

We’ve become very good at consuming health insurance, but does that mean we're actually good consumers? The executives at businesses do what they're supposed to: compare costs, co-pays and deductibles presented by their broker/consultant each year. And when these executives do decide which plans to roll out to their employees, they are good shoppers. They compare their employers' costs with their spouses' employers, compare against the Obamacare exchanges (or individual plans pre-ACA) and consider other important factors -- your out-of-pockets, your deductible, your premiums....

The goal is to control overall healthcare costs. But look at other types of insurance.

Many of us likely will shop out our car insurance every few years. After all, 15 minutes could save us 15%, right? Yet we know that any savings only apply to the insurance. We don't expect shopping around for our car insurance to actually affect the price of the car. But the price of the car does affect insurance: A higher price tag means more expensive insurance.

The same is true in healthcare. We CANNOT lower our healthcare costs by shopping our insurance. Our healthcare costs are not at all affected by our insurance costs. This has been proven with the "consumer-driven" model of insurance (which has had limited to no impact on premiums long term). Yet our health insurance costs are almost fully driven by our actual healthcare costs. As a matter of fact, a provision of the Affordable Care Act known as "medical loss ratios" practically guarantees this.

Imagine that your teenager just got his driver's license. After some good old-fashioned consternation and badgering, you’ve agreed to let him take out the car out unsupervised for the very first time, only to go to the corner store to get some much-needed milk. You hand over the keys and try not to stress too much. Of course, less than 15 minutes later, you get the dreaded phone call: He's been in an accident.

Rushing to the scene, you're relieved to discover it's only a fender bender. The other driver, seemingly a reasonable person, agrees to accept your offer to not file an insurance claim, and instead pay him directly for what appears to be, let's say, $1,000 of damage. After all, you've got a $500 deductible, and a claim filed by your teenager just weeks after getting his license could jack your rates up much more than the difference. Or, worse, your carrier could drop you, jeopardizing your freedom completely! So paying out of pocket makes sense, right?

But would we do ever this with our healthcare? Can you imagine anyone walking into a cardiologist appointment, especially with a co-pay plan, and saying, "I don't want my insurance company knowing I may have heart disease, so let me just pay the $500 charge instead of submitting the claim and paying the co-pay"?

And let's look at how oddly blind we are to the actual quality of healthcare we receive. For instance, in an operating room, a strong argument can be made that the anesthesiologist is the second most important person on the surgical team. After all, when you're under general anesthesia, it's her job to control the machines that keep you breathing. She also controls how "under" you go. She makes sure you don't go so deep that you slip into a coma, but, equally important, makes sure you don't wake up mid-procedure. Yet, with all that responsibility in her hands, who among us has even known who the anesthesiologist would be until five minutes prior to being knocked out? After all, for such an important role, wouldn't it be nice to develop a relationship with this doctor, and maybe even have her be the one who administers sedatives for future surgeries? Maybe you'd just like to know if she only graduated medical school last week? That might be pertinent, too.

Instead, we juggle our healthcare purchases like nothing else we buy. Imagine if we consumed hotel stays like we do healthcare. We might have a high-deductible "hotel" plan. Say we had a $500 deductible before our plan covered stays at 100%. So if I'm only staying one night, I might look into cost and quality, maybe compare rooms on Trivago. But what if I needed a hotel room for a week, or a year, and I knew I'd be hitting that $500 threshold no matter where I stayed, from the most rat-infested hotel to a five-star resort? Wouldn't I be inclined to stay at the Ritz Carlton in a $1,000-a-night because I know I'm hitting my deductible either way.

One of the pushbacks I get is that we, as patients, are not doctors and must rely on the pros. After all, when faced with a major medical condition, we're usually not in the best frame of mind to make intelligent decisions. "I should just trust my doctor" is a common reaction, maybe the most common. And a very understandable one. But I'd argue that dealing with a major medical condition is the exact time to be most involved. Most aware. Most informed. The stakes couldn't be higher, and yet our awareness is disturbingly low.

If we bought houses as we buy healthcare, it'd be like finding a reputable real estate agent and then asking him to go ahead and pick out a neighborhood, a house and the price we'll pay. We'll just meet him at the closing. Sounds crazy, right?

Where Insurance Is to Blame

Please know that I'm not holding insurance companies blameless. I do, for instance, blame the insurance industry for a major shift in our overall thinking. I hold the industry responsible for creating an environment in which the cost of care, and therefore the quality of care, becomes irrelevant. This was mainly born out of HMOs, of course, which, you'll recall, lowered costs tremendously at first, and were hailed as the cure to all that ails our system, before things went so horribly wrong.

Here again, comparison can be useful. A while back, I was in a meeting with service department workers at a car dealership. I asked if they'd agree that most people, when paying for their own repair, would care about both the cost and quality. Everyone nodded -- of course they would. I asked how that differed from a customer whose car was still under warranty. In that situation, they told me, the customers generally don't care at all about cost, and, in fact, will likely come to a dealership on a warranty job specifically BECAUSE it's the most expensive. After all, someone else is paying, right?

What most people are unaware of -- mainly because they don't ask -- is that you can get warranty work done at many non-dealer repair shops.

Most people think of their health insurance a lot like they do a car warranty. The total cost, the competitively and fairly priced service, and, to a large extent, how good the work is just doesn't matter so much when we're not reaching into our pockets.

Doesn't that tell us precisely why the "consumer driven" model hasn't worked?

The idea was that if our plans have us paying higher deductible and co-pays, we'll care more about the overall cost. Yet in 2015, the highest out- of-pocket allowed by the Affordable Care Act is just $6,600. If I'm going in for a procedure that may range in cost from $25,000 to $125,000, what exactly is my incentive to go looking for a deal? Or even ask questions? Not when I know I'll be hitting my $6,600 threshold regardless of where I go.

And we inherently associate higher costs with greater quality of care. Is that a fair assumption? Not with the system we have. Actually, the opposite generally proves true.

Transparency

All of these things keep coming back to a singular issue for me: transparency. We simply don't have the information we need to make wise decisions. Like finding out how good a specific hospital is at replacing hips, or how much it actually charges compared with another facility.

However, I believe the reason this information is not systematically available is the same reason why, if it suddenly were available overnight, with the wave of my magic wand, there would still be little impact. What is that reason? Because today, under the system and mentality we have, there's simply no consumer demand for it.

Let's look at it from the pharmaceutical side. The cost at a retail pharmacy for the generic Lipitor can vary from $16 to almost $80, depending on where you go to. But if you have a $10 co-pay, or have already reached your 100% coverage, how can I convince someone to go three miles out of his way to get the lower-cost prescription? How do I get him to even ask the question?

Another argument I hear frequently when I ask customers to identify the problems with healthcare: "Isn't it the insurance company's job to control cost? Don't companies set up networks for this very purpose?"

Yes, they certainly do. But look at what really matters. Walmart started a list of $4 prescriptions. Many other pharmacies quickly followed suit. Try showing your insurance ID card for one of those drugs next time you go. In most cases, you'll find the insurance company would pay a significantly higher price. Why? Because you have much more power than the insurance company does. Having you be willing to spend your money at a store is far more compelling to the business than anything an insurance company can negotiate.

We treat our own health like a discount haircut. We basically know as much about the professionals and facilities charged with saving our lives as we do with the stylists at Supercuts. It's an insanely ill-informed way to manage the most important thing we have.

What can I leave you with in terms of possible solutions? They do exist, even though the Affordable Care Act limits some options.

What needs to happen is we have to encourage patients to care about the quality AND costs of the care they receive.

I envision a day when I can go on my smartphone and, using a basic app, find all the suitable places for replacing my hip, how well they're rated, how often they do the operation and, of course, how much they charge. How many of us would walk into a new restaurant without the benefit of any word-of-mouth or knowing anything about the specialties, pick from a menu but only find out the price when you get your check? We do that every day with sprained wrists, broken bones, personal addictions, genetic illnesses, respiratory issues and even open-heart surgery,

The bigger picture here is really using our consumer dollars to force providers -- meaning hospitals, doctors, drug manufacturers, pharmacies, etc. - to compete on the cost and quality of the services they provide, like nearly every other provider of any products or service we buy.

We've seen it work: In areas of healthcare that insurance typically doesn't cover, like laser eye surgery or even cosmetic surgery, the change is already happening. The costs in those areas have gone down considerably while the quality has increased.

Naturally, I recognize that making the comparisons available and getting consumers to use them would be a huge challenge. What can we do in the meantime?

Well, some tools do exist. There is an online service called MediBid that allows hospitals and providers to actually bid on your medical care. When providers respond, patients can compare costs and quality among those providers.

Another possible solution: Instead of an annual deductible of, say, $2,500, we could have a monthly resettable deductible of something like $200. How would that help? Well, it would give us, as consumers, a little skin in the game year-round. It would encourage us to participate in lowering overall costs by not applying the car dealership model to an already bloated and wasteful system.

Another push, an indirect result of the ACA, is more self-insured products. Many times, these are appropriate for smaller businesses. Not only does the self-insured employer have significantly more transparency on costs but also, more importantly, has real incentive to control those costs.

Some employers negotiate reasonable pricing and, if they use a service like MediBid and it results in a significant savings, may offer to pay the employee's deductible and even cover any travel expenses.

One innovative carrier has actually tied physical activity to a patient's out-of-pocket cost. Any adult on the plan can opt-in to wear a step tracker, like a Fitbit. If certain goals are met, people can earn as much as $4 a day, or $1,000 a year, off their deductible and out-of-pocket.

Which brings up the topic of wellness, which has become a real buzzword in the last five years or so. While I do agree that getting "well" can translate into consuming less care, wellness programs don't address the fact that nearly all people will consume care at some point in their lives and that many diseases are completely unrelated to lifestyle. My approach, the one I believe in: More transparency on the healthcare process and a community of well-informed consumers can help lower costs and improve quality on all care.

Conclusion

I believe that 90% of our problems would right themselves fairly quickly if only patients had the right incentives. If only information were made readily accessible. If only patients were allowed to be consumers, to shop for based on quality AND cost, just as we do with nearly everything else we buy.

This change would naturally force providers to improve their quality and lower their costs at a far more rapid pace. The pattern of unnecessary and duplicate testing would go down. Prices would quickly become far more competitive, as they should be.

And I believe Americans would start to see a more direct link between their financial picture and the decisions they make about their own health. If all this happened, if we had the transparency we need, then that dollar menu at McDonald's might not seem so affordable once we understand the health and cost impact a double-cheeseburger really has down the road.

We all know that digital technology has changed, and continues to change, how people shop for, buy and use goods and services. Power has shifted from the company to the customer. All companies must adopt the digital technologies that create the interaction that consumers now demand and expect. But is digital readiness more of an imperative for some industries than others?

What if you are in an industry that sells a product that most people don't really even want to buy, own or use...that people probably wouldn't even buy if they didn't have to...a product that was confusing and mysterious? Heck, one that isn't even a "product" at all? If you were a company that fit this description and you lagged behind in digital readiness, how long do you think you'd last if a new competitor came along and used digital technology to actually make the experience of buying, owning and using the product you sell more appealing to customers?

Well, this is the position the insurance industry finds itself in. Satisfaction ratings with the industry vary - they're so-so in the U.S. and pretty poor in the U.K., based on research commissioned by Majesco in a report titled "Assessing the Quality of the Customer Experience ," for example - and few customers actually switch each year, but loyalty, if you can call it that, is driven more by inertia than a true feeling of satisfaction and emotional connection to one's insurance company. Quite frankly, it's a royal pain to shop for and switch insurance, and most people are willing to put up with minor annoyances - until they get pushed too far.

The company that can best remove or reduce the pain of buying and owning insurance stands to reap a huge market of consumers who are tired of being treated poorly by the insurance industry, compared with the new benchmarks set by Amazon and Apple.

This is not new news. But the good news is that most leaders in the insurance industry get it. They know they need to act, and they are. Three-quarters of respondents in a cross-industry survey by MIT-Sloan on digital strategy said that digital technologies are important to their companies today, and 93% said they would be important in the next three years.

The issues are easy to talk about, but it's hard to actually make the digital transformation in any industry or company, not just insurance. It's not just implementing new technology. It also requires strategy, leadership, culture, resources and technical capabilities. The MIT-Sloan survey found that most companies are in the early or developing stages of digital maturity. Even those that were in the most advanced "maturing" phase could not be truly considered as fully mature.

Majesco surveyed its insurance customers in the third quarter of 2014 to get a better understanding of the insurance-specific promises and challenges that digital capabilities are presenting them, which are profiled in the report "Digital Readiness in Insurance." The customers overwhelmingly agreed that digital capabilities are the foundation for the future and that this was the biggest driver of their digital strategy work. While their current priorities for digital transformation are focused on specific internal business operations like billing and payments and e-service for customers and agents, they at least are aiming at improving the experience of their two most important stakeholder groups: customers and agents.

Despite these good intentions, most of these insurers reported that these operations are currently only weakly supported by digital technologies. Most said there was little concern in their companies about the strategic priority of implementing their digital strategies, but they are encountering barriers when it comes to integration of systems and the capacity and capabilities of their organizations and technology.

It's great that Majesco's customers recognize the expectation to improve the experience of shopping for, buying, owning and using insurance. The mandate for a compelling digital experience, and the necessity to compare themselves with companies like Amazon, are the first steps on the digital journey. Where are you?

Having credit monitoring instead of identity monitoring is like putting a security system in the elevator but not in the whole office building. The scope of security is limited and leaves the workforce vulnerable. Thus, understanding how monitoring programs differ, how they work and why it matters is critical for safeguarding your identity.

Why should you care?

Victims of identity theft deal with increased stress, hours of work rebuilding their reputation and recovering from major financial losses; all of which have major consequences in other areas of life - like decreased productivity and performance on the job.

• More than one-third (36%) of victims said their identity theft incident caused them moderate to severe emotional distress, and 60% of employees said they have lower productivity at work because of stress.
• Every two seconds someone becomes a victim of identity theft, and over the past year, 70% of companies suffered from fraud.

Given the statistics, if you haven't dealt with the crime in some capacity, it's only a matter of time.

The good news is that arming yourself with credit monitoring and identity monitoring gives you a better chance of stopping identity theft before it gets out of hand, thereby diminishing the negative effects that follow.

What is credit monitoring? How does it work?

There's a broad range of credit monitoring services available in today's market, and each program varies. Credit monitoring is a reactive approach to identity theft that involves checking credit reports for fraudulent activity. Because a credit report shows past activity, it will only reveal fraud or theft that has already affected the victim. That's why it's like only having security in the elevator: Once you realize the culprit is there, he has already infiltrated the building.

Credit monitoring programs will pull a member's report, often quarterly or annually, from any number of the three major credit bureaus and make it visible to the member. On top of that, programs watch credit reports, transactions and activity for changes that could be criminal.

Another aspect of credit monitoring is resolution and recovery assistance, but, again, the levels of assistance vary from product to product. For instance, credit monitoring services will alert a member if they find fraudulent activity on the credit report(s), but some services don’t inform the credit bureaus on behalf of the member.

What is identity monitoring? How does it work?

Identity monitoring takes a more active approach. It not only focuses on credit reports but broadens the security sweep to account for name, birth date, address, email, driver's license, Social Security number and more. Think of it as a security system for the whole office building, with security officers at every door and window.

Top-notch identity monitoring programs will check national databases for suspicious activity, watch out for questionable transactions and ultimately try to keep the member informed with real-time alerts about a data breach or fraudulent act. Touch points could even include scanning criminal record databases, sex offender registries and public records.

Identity monitoring can also give people peace of mind about their biggest worries: More than 70% of consumers are concerned about their Social Security number, credit card, insurance and driver's license number, while less than 60% are concerned about their credit score and transaction history. People want more protection than what's offered by credit monitoring alone, and identity monitoring is the answer.

What is the difference?

One major difference between identity monitoring and credit monitoring is accuracy. The all-inclusive nature of identity monitoring allows for a more accurate assessment of susceptibility to identity theft. For example, credit monitoring may not detect problems like tax fraud or medical identity theft because credit reports don't necessarily show those types of information. Because identity monitoring is more robust, it can discover anomalies and provide protection for more than the financial aspects covered by credit monitoring.

Simply put, identity monitoring provides more coverage than credit monitoring.

For more information, visit clcidprotect.com.

Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs' lawyers who file them, the defense counsel who defend them, the characteristics of the insurance that covers them, the way insurance representatives approach coverage, the government's investigative policies - and, of course, the attitude of public companies and their directors and officers toward disclosure and governance.

This culture has been largely stable over the nearly 20 years I've defended securities litigation matters full time. The array of private securities litigation matters (in the way I define securities litigation) remains the same - in order of virulence: securities class actions, shareholder derivative litigation matters (derivative actions, board demands and books-and-records inspections) and shareholder challenges to mergers. The world of disclosure-related SEC enforcement and internal corporate investigations is basically unchanged, as well. And the art of managing a disclosure crisis, involving the convergence of shareholder litigation, SEC enforcement and an internal investigation involves the same basic skills and instincts.

But I've noted significant changes to other characteristics of securities-litigation culture recently, which portend a paradigm shift. Over the past few years, smaller plaintiffs' firms have initiated more securities class actions on behalf of individual, retail investors, largely against smaller companies that have suffered what I call "lawsuit blueprint" problems such as auditor resignations and short-seller reports. This trend - which has now become ingrained into the securities-litigation culture - will significantly influence the way securities cases are defended and by whom, and change the way that D&O insurance coverage and claims need to be handled.

Changes in the Plaintiffs' Bar

Discussion of the history of securities plaintiffs' counsel usually focuses on the impact of the departures of former giants Bill Lerach and Mel Weiss. But although the two of them did indeed cut a wide swath, the plaintiffs' bar survived their departures just fine. Lerach's former firm is thriving, and there are strong leaders there and at other prominent plaintiffs' firms.

The more fundamental shifts in the plaintiffs' bar concern changes to filing trends. Securities class action filings are down significantly over the past several years, but, as I have written, I'm confident they will remain the mainstay of securities litigation and won't be replaced by merger cases or derivative actions. There is a large group of plaintiffs' lawyers who specialize in securities class actions, and there are plenty of stock drops that give them good opportunities to file cases. Securities class action filings tend to come in waves, both in the number of cases and type. Filings have been down over the last several years for multiple reasons, including the lack of plaintiff-firm resources to file new cases as they continue to litigate stubborn and labor-intensive credit-crisis cases, the rising stock market and the lack of significant financial restatements.

Although I don't think the downturn in filings is, in and of itself, very meaningful, it has created the opportunity for smaller plaintiffs' firms to file more securities class actions. The Reform Act's lead plaintiff process gives plaintiffs' firms incentives to recruit institutional investors to serve as plaintiffs. For the most part, institutional investors, whether smaller unions or large funds, have retained the more prominent plaintiffs' firms, and smaller plaintiffs' firms have been left with individual investor clients who usually can't beat out institutions for the lead-plaintiff role. At the same time, securities class action economics tightened in all but the largest cases. Dismissal rates under the Reform Act are pretty high, and defeating a motion to dismiss often requires significant investigative costs and intensive legal work. And the median settlement amount of cases that survive dismissal motions is fairly low. These dynamics placed a premium on experience, efficiency and scale. Larger firms filed most of the cases, and smaller plaintiffs' firms were unable to compete effectively for the lead plaintiff role or make much money on their litigation investments.

This started to change with the wave of cases against Chinese issuers in 2010. Smaller plaintiffs' firms initiated most of them, as the larger firms were swamped with credit-crisis cases and likely were deterred by the relatively small damages, potentially high discovery costs and uncertain insurance and company financial resources. Moreover, these cases fit smaller firms' capabilities well; nearly all of the cases had "lawsuit blueprints" such as auditor resignations or short-seller reports, thereby reducing the smaller firms' investigative costs and increasing their likelihood of surviving a motion to dismiss. The dismissal rate has indeed been low, and limited insurance and company resources have prompted early settlements in amounts that, while on the low side, appear to have yielded good outcomes for the smaller plaintiffs’ firms.

The smaller plaintiffs' firms thus built up a head of steam that has kept them going, even after the wave of China cases subsided. For the last year or two, following almost every "lawsuit blueprint" announcement, a smaller firm has launched an "investigation" of the company, and smaller firms have initiated an increasing number of cases. Like the China cases, these tend to be against smaller companies. Thus, smaller plaintiffs' firms have discovered a class of cases - cases against smaller companies that have suffered well-publicized problems that reduce the plaintiffs' firms' investigative costs - for which they can win the lead plaintiff role and that they can prosecute at a sufficient profit margin.

To be sure, the larger firms still mostly can and will beat out the smaller firms for the cases they want. But it increasingly seems clear that the larger firms don't want to take the lead in initiating many of the cases against smaller companies and are content to focus on larger cases on behalf of their institutional investor clients.

These dynamics are confirmed by recent securities litigation filing statistics. Cornerstone Research's "Securities Class Action Filings: 2014 Year in Review" concludes that (1) aggregate market capitalization loss of sued companies was at its lowest level since 1997 and (2) the percentage of S&P 500 companies sued in securities class actions "was the lowest on record." Cornerstone's "Securities Class Action Filings: 2015 Midyear Assessment" reports that two key measures of the size of cases filed in the first half of 2015 were 43% and 65% lower than the 1997-2014 semiannual historical averages. NERA Economic Consulting's "Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review" reports that 2013 and 2014 "aggregate investor losses" were far lower than in any of the prior eight years. And PricewaterhouseCoopers' "Coming into Focus: 2014 Securities Litigation Study" reflects that, in 2013 and 2014, two-thirds of securities class actions were against small-cap companies (market capitalization less than $2 billion) and that one-quarter were against micro-cap companies (market capitalization less than $300 million). These numbers confirm the trend toward filing smaller cases against smaller companies, so that now, most securities class actions are relatively small cases.

Consequences for Securities Litigation Defense

Securities litigation defense must adjust to this change. Smaller securities class actions are still important and labor-intensive matters - a "small" securities class action is still a big deal for a small company and the individuals accused of fraud, and the number of hours of legal work to defend a small case is still significant. This is especially so for the "lawsuit blueprint" cases, which typically involve a difficult set of facts.

Yet most securities defense practices are in firms with high billing rates and high associate-to-partner ratios, which make it uneconomical for them to defend smaller litigation matters. It obviously makes no sense for a firm to charge $6 million to defend a case that can settle for $6 million. It is even worse for that same firm to attempt to defend the case for $3 million instead of $6 million by cutting corners - whether by under-staffing, over-delegation to junior lawyers or avoiding important tasks. It is worse still for a firm to charge $2 million through the motion to dismiss briefing and then, if it loses, to settle for more than $6 million just because it can't defend the case economically past that point. And it is a strategic and ethical minefield for a firm to charge $6 million and then settle for a larger amount than necessary so that the fees appear to be in line with the size of the case.

Nor is the answer to hire general commercial litigators at lower rates. Securities class actions are specialized matters that demand expertise, consisting not just of knowledge of the law but of relationships with plaintiffs' counsel, defense counsel, economists, mediators and D&O brokers and insurers.

Rather, what is necessary is genuine reform of the economics of securities litigation defense through the creation of a class of experienced securities litigators who charge lower rates and exhibit tighter economic control. Undoubtedly, that will be difficult to achieve for most securities defense lawyers, who practice at firms with supercharged economics. The lawyers who wish to remain securities litigation specialists will thus face a choice:

1. Accept that the volume of their case load will be reduced, as they forego smaller matters and focus on the largest matters (which Biglaw firms are uniquely situated to handle well, on the whole);
2. Rein in the economics of their practices, by lowering billing rates of all lawyers on securities litigation matters, and by reducing staffing and associate-to-partner ratios; or
3. Move their practices to smaller, regional defense firms that naturally have more reasonable economics.

I've taken the third path, and I hope that a number of other securities litigation defense lawyers will also make that shift toward regional defense firms. A regional practice can handle cases around the country, because litigation matters can be effectively and efficiently handled by a firm based outside of the forum city. And they can be handled especially efficiently by regional firms outside of larger cities, which can offer a better quality of life for their associates and a more reasonable economic model for their clients.

Consequences for D&O Insurance

D&O insurance needs to change, as well. For public companies, D&O insurance is indemnity insurance, and the insurer doesn't have the duty or right to defend the litigation. The insured selects counsel, and the insurer has a right to consent to the insured's selection, but such consent can't be unreasonably withheld. D&O insurers are in a bad spot in a great many cases. Because most experienced securities defense lawyers are from expensive firms, most insureds select an expensive firm. But in many cases that spells a highly uneconomical or prejudicial result, through higher than necessary defense costs or an early settlement that doesn't reflect the merits but that is necessary to avoid using most or all of the policy limits on defense costs.

Given the economics, it certainly seems reasonable for an insurer to at least require an insured to look at less expensive (but just as experienced) defense counsel before consenting to the choice of counsel - if not outright withholding consent to a choice that does not make economic sense for a particular case. If that isn't practical from an insurance law or commercial standpoint, insurers may well need to look at enhancing their contractual right to refuse consent or even to offer a set of experienced but lower-cost securities defense practices in exchange for a lower premium. It is my strong belief that a great many public company CFOs would choose a lower D&O insurance premium over an unfettered right to choose their own defense lawyers.

Because I'm not a D&O insurance lawyer, I obviously can't say what is right for D&O insurers from a commercial or legal perspective. But it seems obvious to me that the economics of securities litigation must change, both in terms of defense costs and defense-counsel selection, to avoid increasingly irrational economic results.

According to the Identity Theft Resource Center (ITRC), as of Aug. 11, there have been 472 data breaches, exposing 139,278,685 records in 2015 alone. It's a safe bet that much of the personal identification information (PII) exposed in those breaches will be - at some point - used to perpetrate fraud. With all that PII out there, you might wonder what industry will likely fall victim to the fraud. The answer, according to the recently released results of the 2015 Fraud Mitigation Study, is simple: Cyber criminals do not choose one industry over another when it comes to committing fraud. In fact, all industries are targets.

The study, commissioned by the LexisNexis Fraud Defense Network, examines cross-industry fraud trends of all types - including identity-based fraud - and surveyed 400 fraud mitigation professionals from the insurance, financial services, retail, government, healthcare and communications industries. Overwhelmingly respondents (84%) indicated that the cyber fraud cases they investigated within their industry were also connected to another industry. And the impact of cross-industry fraud is significant: 77% of respondents said cross-industry fraud cases had a moderate to extreme financial impact on their organization.

So, what can industries do to mitigate cyber fraud? It's often been said the best defense is a good offense - and that's what's required. That begins with changing how they are fighting fraud. The siloed approach to each sector dealing with the problem on its own - and relying only on data within its industry - isn't adequate. Criminals count on the fact that industries aren't talking to each other. Once the fraudsters have pilfered one industry sector, they move on to the next unsuspecting industry. But what if one industry sent up a flare to the others?

Imagine if data about fraud cases was shared across industries. The dynamic would shift. Through cross-sector collaboration, industry would have the upper hand. In this scenario, the fraudsters would be at a disadvantage. This is not just a pipe dream. Study respondents recognized they need more information to fight fraud; in fact, 74% acknowledged it would be valuable to have information on fraud cases from outside their industry.

75% of study respondents stated that they do rely on external data analytics to detect and prevent fraud; the other 25% do not primarily because of a lack of budget, awareness, knowledge, comfort level or relevant training. The primary question is, what's the most effective way to share information?

This is the mission of the Fraud Defense Network: to facilitate sharing of information, best practices and data around fraud mitigation across industry and government sectors. We have created the LexisNexis Contributory Risk Repository, a cross-industry database that houses information about fraudulent and suspicious events from organizations in finance, retail, insurance, healthcare, law enforcement and government. After the data is collected through the Risk Repository, LexisNexis applies advanced analytics to identify meaningful connections that not only illuminate past fraudulent behavior but also help to flag suspicious patterns on future transactions.