Tag Archives: employee retirement income security act

Ready to Comply With Fiduciary Standard?

Recent actions by the U.S. Department of Labor (DOL) are causing insurance and other financial services brokers to rethink their business models and how they communicate with their customers. That’s because the DOL recently finalized a controversial new standard broadening the definition of who constitutes a “fiduciary” under the Employee Retirement Income Security Act (ERISA).

Essentially, the rule, with an applicability date of April 10, 2017, heightens the duty of financial advisers for 401(k) plans and IRAs who are considered “brokers,” defined as registered representatives of a broker dealer paid commissions by the investments they recommend. Before the new rule, brokers were held to a standard of suitability, which meant that, when a broker recommended that a client buy or sell a particular security, the broker must have a reasonable basis for believing that the recommendation is suitable for that client. That standard allowed brokers to recommend an investment product that paid them a higher commission as long as it was suitable for the client, even though it may not be the best choice. Under the new fiduciary standard, brokers must put their clients’ interests ahead of their own in recommending investments.

See also: Do Brokers, Agents Owe Fiduciary Duty?  

The new standard for brokers puts them on par with investment advisers registered with the Securities and Exchange Commission or individual states, who were already required to meet the fiduciary standard. The change presents a challenge to the business model of brokers, who typically get paid from commissions, unlike registered investment advisers, who are paid a percentage fee based on the amount of plan assets under management.

New challenges for broker customer communications

The challenges the new rule poses for brokers don’t end with compensation. The new duty will directly affect any information brokers provide to customers in print or digital form that might be deemed a “recommendation” under the rule. A fact sheet provided by the DOL describes a “recommendation” as follows:

“A ‘recommendation’ is a communication that, based on its content, context and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action. The more individually tailored the communication is to a specific advice recipient or recipients, the more likely the communication will be viewed as a recommendation.”

A holistic view of the customer communications ecosystem

In short, every broker customer communication will now need to be audited to determine whether it constitutes a recommendation and modified if it would violate the new standard. This could be an onerous task.

Customer communications management (CCM) processes will be essential for complying with this new rule. Adding personalization to communications is a huge advantage to the adviser, but it is now critical to have a process for reviewing these personalized communications to confirm that they conform to the new legal reality.

CCM becomes even more critical considering the efficiency and control that can be gained by centrally managing this content. Scattered, decentralized communications processes will make it far more likely that an adviser will send noncompliant content to a customer, exposing the company and the adviser to considerable risk.

Many insurance agencies and other brokers use legacy systems to generate their customer communications, which makes it costly and time-intensive to modify them to ensure compliance with the new rule. IT departments have the skills to make the needed changes, but not the time or full expertise to review and audit the updated customer communications. Insurance organizations should give careful consideration to the following to identify potential obstacles to compliance:

  • Determine where customer information is stored. If it resides in multiple departmental systems, there is greater risk that advisers will send noncompliant communications to customers unless these systems are coordinated.
  • Consider whether existing CCM processes and systems are flexible enough to incorporate compliance review for today’s wide range of communications channels, including mobile, email, web pages and social media.
  • Analyze how customer activities are supported by different channels in the organization. Channel communications may be intertwined from a customer’s perspective, but managed separately within the organization. Achieving compliance will require understanding how communications appear to the customer.
  • Ensure that compliance officers and other regulatory personnel are engaged early in communications creation and automate approval processes to speed time-to-market and create audit trails.

With the new DOL rule, brokers want to know what constitutes a recommendation, and they want to know how to effectively communicate with customers in a compliant way. Ideally, insurance organizations will find strategies that allow brokers the freedom to personalize their customer communications so that they can differentiate from the competition, while at the same time receive the timely guidance they need to avoid making an unintentional recommendation.

See also: Fiduciary Liability Insurance in the Nonprofit Sector – What You Need to Know  

Accomplishing this will require a careful look at the current customer communications ecosystem and taking the necessary steps to ensure that compliance review is integrated into workflows in the most effective, yet least intrusive, way.

An Underestimated Source of Risk

When directors or CEOs or senior managers think about risk, they generally envision risks associated with the company’s finances, manufacturing, data, supply chain and customers. Human resource risk is often underappreciated, and that can be a serious misjudgment. Recent events, lawsuits and settlements prove this point.

It is true that the risk associated with talent and a lack thereof has risen in the risk hierarchy of most organizations. However, the many other serious risks associated with managing existing talent are often relegated to the bottom of the risk register.

The reasons for this underestimation are varied. Many executives tend to think that: 1) human resource matters are supplemental to the business rather than integral, 2) being an “employer at will” protects the company and enables it to make human resource decisions however it sees fit, 3) a single employee, applicant or retiree is no risk to the organization as a whole (even though a single employee can potentially cause a “class” to be formed under the law). The danger inherent in underestimating HR risk is that it does not get adequately addressed with mitigation plans.

Not all organizations will have the same exposure to risks. Even if they did have the same exposure, some will have more safeguards already in place and warrant a lower risk ranking than some other organization. The discussion that follows is not meant to imply that all HR risks must be prioritized at the top right hand corner of a heat map. It is meant to highlight the potential impact that some HR risks can have on an organization.

Rogue Employee Risk

The rogue employee is one of the most amazing phenomena among human resource risk categories. In financial services, rogue employees have wreaked havoc on otherwise solid and long-standing businesses. Two noteworthy examples are Barings Bank, London’s oldest merchant banks, and UBS, one of Switzerland’s financial giants. Roughly 20 years ago, Nick Leeson, a Barings Bank derivatives trader, gambled away the equivalent of $1. 4 billion of bank money from a secret “error” account. The bank went bust and was bought by ING for a nominal sum. In 2011, UBS announced it had lost $2 billion due to unauthorized trades by a director at its global synthetic equities desk.

And financial institutions are not the only organizations exposed to rogue employee actions that create huge risks and large losses. For instance, GNP, parent of Just BARE and Gold’n Plump, just recalled 55,608 pounds of chicken because of what it called a “product tampering incident” at one of its processing plants.

Here are some of the ways in which such an employee can create risk in just about any industry sector and for which organizations need to develop safeguards as part of their mitigation plans:

  • Abetting a data breach affecting customer/employee personal data
  • Sabotaging mechanical or technological equipment
  • Sabotaging products intended for sale
  • Stealing company property, including intellectual property
  • Mishandling customers/patients on purpose

See also: Risk Management, in Plain English

A fundamental safeguard is thorough vetting during the employment process. Others include: 1) active supervision, 2) automatic, system alerts when authorities are exceeded or other rogue actions are attempted, 3) robust internal audits.

Regulatory Violations Risk

Organizations must deal with employee-related regulation at the local, state and federal level. The number of major federal regulations has grown significantly in the past few decades and now includes such well-known acts as: the Fair Labor Standards Act, Title VII, Age Discrimination Act, the Americans with Disabilities Act, Employee Retirement Income Security Act, Family and Medical Leave Act and WARN Act. Each of these has numerous elements that must be understood and complied with, including gray areas that need to be thought through before any action regarding an employee can be decided on.

The Fair Labor Standards Act has been the high-risk area of late. There have been numerous types of suits under this act related to: 1) misclassification of employees into exempt and non-exempt categories, which has implications for overtime pay, 2) incorrect calculation of overtime pay for those due it, 3) mismanagement of paid break time.

A $188 million judgment against Walmart, which is being appealed, had to do with paid versus unpaid break time. Interestingly, this case revolves around the company not living up to the policies in its own handbooks, not around a failure to fulfill specific requirements spelled out in the law. This case is, therefore, illustrative of two important points. First, settlements can be financially significant even for the largest of companies. Second, when dealing with human resource matters, formal programs or policies, which constitute a contractual obligation, have to be considered.

See also: Building a Strong Insurance Risk Culture

Wage and hour suits are likely to keep increasing in 2016 due to the success of recent plaintiffs, new regulations regarding overtime pay and an overall concern among employees that wages are not sufficient or not fair. In an article titled “Why Wage and Hour Litigation Is Skyrocketing,” Lydia DePillis writes, “The number of wage and hour cases filed in federal court rose to 8,871 for the year [ended] Sept. 30, up from 1,935 in 2000.”

Title VII and age discrimination cases have been associated with large dollar losses over the years. Given the many federal, state and local statutes, coupled with a more informed and litigious employee population, organizations can inadvertently step into non-compliance pitfalls rather easily.

Organizations should always follow the laws that apply to them. Risk enters into the equation because there is always the potential that someone in management is unaware or careless or, worse yet, disrespectful of the laws. Thus, the organization is continuously exposed to the risk of violations. Every effort should be made to be compliant, including: 1) having a clear set of core values that guide lawful behavior, 2) educating management and all employees about the laws and how to comply with them, 3) investing in strong compliance processes and 4) making sure violators are dealt with quickly and appropriately.

HR Program Risk

Human resources professionals create and administer many expensive programs such as retirement, benefits, compensation and incentive programs. A large error in terms of budgeting or managing such programs could lead to a sizable financial risk for the organization.

Imagine an actuarial error that creates severe pension underfunding or a poorly managed self-insured medical benefit plan that costs double what benchmarks would suggest. Or, consider a new incentive program that produces the antithesis of the behavior it was intended to promote. The risk can be major, not unlike the size and seriousness of a natural catastrophe or product recall or supply chain debacle.

CEOs need to ensure that HR programs and policies are being handled by expert professionals, whether staff or consultants. At the same time, senior management needs to invest the attention and support necessary to ensure these are well-designed and implemented according to specification.

The comments in this article are neither meant to be all-inclusive nor to be construed as advice.

Texas Work Comp: Rising Above Critics

Recently, published articles have been critical of the Texas workers’ compensation system and the choice of an “Option” available to Texas employers. Such articles tend to be an accumulation of plaintiff attorney opinions and confusion of out-of-state persons who do not have sufficient working knowledge of the subject matter. This article will address two recent examples:

  1. “The Status of Workers’ Compensation in the United States — A Special Report” by the Workers’ Injury Law and Advocacy Group (“WILG”).[1]

This is a group of attorneys supposedly “dedicated to representing the interests of millions of workers and their families.”[2]  Their paper is at best a rant against the original “grand bargain,” which was struck to create each state’s statutory workers’ compensation system. It is without virtually any legal citations or other back-up. It does, however, illustrate the wisdom of the Texas system in offering a choice — (1) workers’ compensation insurance or (2) the “nonsubscriber” Option. For example, the article notes that many physicians will not take workers’ compensation patients, that 33 states have cut workers’ compensation benefits and that insurance companies continually clamor for reform by lobbying legislatures to cut medical costs or implement other cost savings — all of which the authors say makes it more difficult for the injured worker to recover.

See Also: Who Is to Blame on Oklahoma Option?

The article changes course when it suddenly says that an option to workers’ compensation is at fault, boldly declaring that “opt-out is bad for everyone” and claiming that intervention by the federal government is “immediately needed.” WILG criticizes the no-fault workers’ compensation insurance system and in the same breath castigates those who elect the Texas Option and thrust themselves into the tort system, which plaintiff attorneys have long claimed they love. This is particularly perplexing for Texas readers in view of two factors: (1) the need for plaintiff attorneys has been largely eliminated from the Texas workers’ compensation system,[3] and (2) the fact that the Texas Option gives the injured employee the right to sue for negligence and recover actual and punitive damages. [4]

Responsible employers that elect the Texas Option establish injury benefit plans for medical, lost wage and other benefits.   The benefits are subject to the Employee Retirement Income Security Act (ERISA), which provides numerous employee protections, including communication of rights and responsibilities, fiduciary requirements, and access to state and federal courts.[5] Only negligence liability claims against the employer can be forced into arbitration, which many employers insist upon as a more efficient method of dispute resolution that has been sanctioned for decades by both the U.S. Supreme Court and the Texas Supreme Court. Arbitration even supports awards for pain and suffering and punitive damages. In those cases, plaintiff attorneys have the advantage because an Option employer loses the defenses of contributory/comparative negligence, assumption of the risk or negligence of a fellow employee.

Perhaps the real reason why WILG is fighting Options to workers’ compensation is a combination of not wanting to learn how to succeed at ERISA litigation and fear that other workers’ compensation systems will become as efficient as the Texas system. Why aren’t these self-serving lawyers touting workers’ compensation Option that embraces the tort system they have so righteously pledged to protect?

  1. “Worse Than Prussian Chancellors: A State’s Authority to Opt-Out of the Quid Pro Quo” by Michael C. Duff, University of Wyoming College of Law, Jan. 9, 2016. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2713180

Professor Duff complains primarily about “compulsory arbitration” of workplace claims. He erroneously and boldly declares, “In states both retaining the exclusive remedy rule and allowing employers to opt-out of the workers’ compensation system, employees of opt-out employers are left with no legal remedy for workplace injury.[6]

This apparently refers to the Oklahoma Option, in which an employer can adopt an injury benefit plan with benefits at least equal to or greater than traditional system levels. Such a high benefit mandate may merit application of the “exclusive remedy rule,” which prevents an injured employee from suing their employer. However, Professor Duff overlooks the fact that ERISA provides injury claimants with extensive legal rights, including causes of action for wrongful denial of benefits, failure to produce documents, breach of fiduciary duty and discrimination (including retaliatory discharge). He also overlooks the fact that ERISA claims generally cannot be made subject to mandatory arbitration. [7] So, is this really a matter of having “no legal remedy” or a case of Professor Duff (who is also a WILG member) trying to support the positions and business of his plaintiff attorney friends?

See Also: Strategic Implications of the Oklahoma Option

Professor Duff makes it clear in the rest of his long article that the real enemy is an employer’s ability to implement a employment dispute resolution system that includes arbitration. Professor Duff omits the fact that he is bucking almost the entire U.S. judicial system, which endorses arbitration. For example, the U.S. Supreme Court clearly maintains that arbitration is right, proper and allowed.[8] “By agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute, it merely results in submitting the resolution of the claim in “an arbitral, rather than judicial, forum.”[9] The Texas Supreme Court has been even more clear by stating that “. . . an agreement to arbitrate is a waiver of neither a cause of action nor the rights provided under [The Texas Labor Code]” and is not the denial of a right but rather simply “an agreement that those claims should be tried in a specific forum.”[10]

Oddly, when discussing his arguments against arbitration, Professor Duff states emphatically that it might be “acceptable if employees have knowingly signed pre-injury waivers of workers’ compensation benefits.” [11] What Professor Duff apparently does not understand is that pre-injury waivers of negligence claims have long ago been essentially outlawed in Texas, and an injured employee under the Texas Option retains his rights to sue the company for negligence. [12] The Texas Labor Code also specifies strict conditions under which an employee is allowed to even settle such a tort claim — i.e., only after at least 10 days have passed following the employee’s receipt of a medical evaluation from a non-emergency care doctor, the agreement is in writing with the “true intent of the parties as specifically stated in the document” and the provisions are “conspicuous and appear on the face of the agreement.”[13]

Like the WILG report, Professor Duff confuses benefit and liability exposures in Texas and Oklahoma, overlooks available legal remedies in both states and refuses to accept well-established public policy and judicial precedent that favors arbitration of employment-related claims.

Conclusion

The publication titled, “Non-Subscription: The Texas Advantage,” [14] states that, “Fortunately . . . legislators who drafted the first workers’ compensation laws in 1913 were farsighted enough to provide an option.” Employers that elect the Texas Option to workers’ compensation are subjected to an extra measure of liability as they cut out the middleman and decrease the taxpayer expense of the governmentally prescribed workers’ compensation system. Those Option employers that are operating legally and responsibly should be credited with advancements, such as improving worker access to better medical care, offering modified duty job availability and oftentimes providing better wage replacement benefits.

At the end of the day, perhaps WILG and Professor Duff should make an investment of their time to learn how ERISA protects injured workers and how to litigate an ERISA dispute. These authors should also further consider the ample remedies under Texas law for employer negligence liability, an exposure that provides more incentive to maintain a safe workplace.

No doubt, pursuing such claims does require some effort. Perhaps, therefore, the real objectives of these two papers is a desire to maintain the profitability of legal work favoring injured workers and reducing the attorney effort.

[1]https://s3.amazonaws.com/membercentralcdn/sitedocuments/wp/wp/0245/745245.pdf?AWSAccessKeyId=0D2JQDSRJ497X9B2QRR2&Expires=1458161961&Signature=7rYh45nzAcLAZ%2BYqPx1HilrodQ4%3D&response-

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Grand%2520Bargain%2520Report%25201%252D16%252Epdf

[2] www.wilg.org

[3] St. Mary’s Law Journal 2000, “Texas Workers’ Compensation: At Ten Year Survey – Strengths, Weaknesses and Recommendations,” Phil Hardburger, Chief Justice, Court of Appeals, Fourth District of Texas, San Antonio, page 3, 41, citing to research an oversight counsel on workers’ comp, an examination of strengths and weaknesses of the Texas Workers’ Compensation System (August, 1998).

[4] Tex. Lab. Code § 406.033 and Carlson’s Texas Employment Laws Annotated, 2015 Edition.

[5] 29 USC Chapter 18, Subtitle B, Parts 1, 4 and 5.

[6] Page 3 of Professor Duff’s treatise.

[7] 29 C.F.R. 2560.503-1(c)(4); see also Professor Duff’s footnote 26, stating “in Texas and Oklahoma, employers are able to combine opt-out with arbitration.”

[8] Scherk v. Alberto-Culver Company, 417 U.S. 506, 519, 94 S. Ct. 2449, 41 L. Ed. 2nd 270 (1974) (holding that arbitration clauses are, “in effect, a specialized kind of forum-selection clause.”)

[9] Id. at 631 quoting Mitsubishi Motors Corp v. Solar Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985).

[10] In re Golden Peanut Company, LLC, 298 S.W.3d, 629 (Tex. 2009).

[11] Professor Duff at page 2.

[12] Tex. Lab. Code see 406.033(e) and (f) (a legal cause of action by an employee who claims to be injured on the job “may not be waived by an employee before the employee’s injury or death”); Tex. Lab. Code 406.033(a).

[13] Tex. Lab. Code 406.033(f) and (g).

[14] Published by the Texas Association of Business.

Firms Must Now Clean Up Health Plans

Businesses, brace yourself for health plan enforcement! With the Supreme Court’s much anticipated June 25, 2015, King v. Burwell decision dashing the hope that the Supreme Court would provide relief for businesses and their group health plans from the Patient Protection and Affordable Care Act (ACA) mandates by striking down ACA, U.S. businesses that offered health coverage in 2014 and those continuing to sponsor health coverage must swiftly act to review and verify the adequacy of their 2014 and current group health plan’s compliance with ACA and other federal group health plan mandates. Business must also begin finalizing their group health plan design decisions for the coming year.

Prompt action to assess and verify compliance is particularly critical in light of the much-overlooked “Sox for Health Plans” style rules of Internal Revenue Code (Code) Section 6039D. The rules generally require group health plans that violated various federal group health plan mandates to self-identify and self-report these violations, as well as self-assess and pay the excise taxes of as much as $100 a day per violation triggered by uncorrected violations. While the mandates were applicable prior to 2014 for uncorrected violations of a relatively short list of pre-ACA federal group health mandates, ACA broadened the applicability of Code Section 6039D to include ACA’s group health plan mandates beginning in 2014. This means that, in addition to any other liability that the company, its group health plan and its fiduciaries might bear for violating these rules under the Employee Retirement Income Security Act, the code, the Social Security Act or otherwise, the sponsoring business also will incur liability for the Code Section 6039D excise tax for uncorrected violations, as well as late or non-filing penalties and interest that can result from late or non-filing.

Many employers have significant exposure to these Code Section 6039D excise tax liabilities because many plan sponsors or their vendors have delayed reviewing or updating their group health plans for compliance with some or all of ACA’s mandates. In many cases, businesses delayed in hopes that the Supreme Court would strike down the law, Congress would amend or repeal it, or both. In other cases, limited or continuing changes to the regulatory guidance about some of ACA’s mandates prompted businesses to hold off investing in compliance to minimize compliance costs. Regardless of the past reasons for such delays, however, businesses sponsoring group health plans after 2013 need to recognize and act to address their uncorrected post-2013 ACA violations exposures.

Although many businesses, as well as individual Americans, have held off taking long overdue steps to comply with ACA’s mandates pending the Supreme Court’s King v. Burwell decision, the three agencies charged with enforcement – the IRS, Department of Labor and Department of Health and Human Service — have been gearing up to enforce those provisions of ACA already in effect and to finalize implementation of others in the expectation of the ruling in favor of the Obama administration. As a practical matter, ACA opponents need to recognize that the Supreme Court’s King decision realistically gives these agencies the go-ahead to move forward with these plans for aggressive implementation and enforcement.

Although technically only addressing a challenge to the Obama administration’s interpretation of the individual tax credit (“Individual Subsidy”) that ACA created under Code Section 36B, the Supreme Court’s decision eliminates any realistic hope that the Supreme Court will provide relief to businesses or their group health plans with any meaningful past or current ACA violations by striking down the law itself. Of all of the currently pending challenges to ACA working their way to through the courts, the King case presented the best chance of a Supreme Court ruling that would wholesale invalidate ACA’s insurance reforms, if not the law itself, because of the importance of the Individual Subsidy to the intended workings of those reforms. By upholding the Obama Administration’s interpretation of Code Section 36B as allowing otherwise qualifying individuals living in states without a state-run ACA health insurance exchange to claim the Individual Subsidy for buying health care coverage through the federal Healthcare.gov health insurance exchange, the Supreme Court effectively killed the best possibility that the Supreme Court would invalidate the insurance reforms or ACA itself. While various challenges still exist to the law or certain of the Obama administration’s interpretations of its provisions, none of these existing challenges present any significant possibility that the Supreme Court will strike down ACA.

While the Republicans in Congress have promised to take congressional action to repeal or reform ACA since retaking control of the Senate in last fall’s elections, meaningful legislative reform also looks unlikely because the Republicans do not have the votes to override a presidential veto.

In light of these developments, businesses must prepare both to meet their current and future ACA and other federal health plan compliance obligations and defend potential deficiencies in their previous compliance over the past several years. The importance of these actions takes on particular urgency given the impending deadlines under the largely overlooked “Sox for Health Plans” rules of Code Section 6039D for businesses that sponsored group health plans after 2013.

Under Code Section 6039D, businesses sponsoring group health plans in 2014 must self-assess the adequacy of their group health plan’s compliance with a long list of ACA and other federal mandates in 2014. To the extent that there exist uncorrected violations, businesses must self-report these violations and self-assess on IRS Form 8928 and pay the required excise tax penalty of $100 for each day in the noncompliance period with respect to each individual to whom such failure relates. For ACA violations, the reporting and payment deadline generally is the original due date for the business’ tax return. Absent further regulatory or legislative relief, businesses providing group health plan coverage in 2014 or thereafter also should expect to face similar obligations and exposures. As a result, businesses that sponsored group health plans in 2014 or thereafter should act quickly to verify the adequacy of their group health plan’s compliance with all ACA and other group health plan mandates covered by the Code Section 6039D reporting requirements. Prompt action to identify and self-correct covered violations may mitigate the penalties a company faces under Code Section 6039D as well as other potential liabilities associated with those violations under the Employee Retirement Income Security Act (ERISA), the Social Security Act or other federal laws. On the other hand, failing to act promptly to identify and deal with these requirements and the potential reporting and excise tax penalty self-assessment and payment requirements imposed by Code Section 6039D can significantly increase the liability the business faces for these violations substantially both by triggering additional interest and late payment and filing penalties, as well as forfeiting the potential opportunities that Code Section 6039D otherwise might offer to qualify to reduce or avoid penalties through good-faith efforts to comply or self-correct.

While current guidance allows businesses the opportunity to extend the deadline for filing of their Form 8928, the payment deadline for the excise taxes cannot be extended. Code Section 6039D provides opportunities for businesses to reduce their excise tax exposure by self-correction or showing good faith efforts to comply with the ACA and other group health plan mandates covered by Code Section 6039D. Businesses need to recognize, however, that delay in identification and correction of any compliance concerns makes them less likely to qualify for this relief. Accordingly, prompt action to audit compliance and address any compliance concerns is advisable to mitigate these risks as well as other exposures.

Businesses preparing to conduct audits also are urged to consider seeking the advice from qualified legal counsel experienced in these and other group health plan matters before initiating their audit, as well as regarding the evaluation of any concerns that might be uncovered. While businesses inevitably will need to involve or coordinate with their accounting, broker and other vendors involved with the plans, businesses generally will want to preserve the ability to claim attorney-client privilege to protect all or parts of their audit investigation and analysis and certain other matters against discovery. Business will also want assistance with proper evaluation of options in light of findings and assistance from counsel to document the investigation and carefully craft any corrective actions for defensibility.