Tag Archives: insurance coverage

Selling to Millennials Is Easy!

Recently, I’ve read more and more articles asserting that millennials are one of the most difficult consumer segments to nail down and serve. It’s a complicated equation with moving and changing variables, and every company is scrambling to find out which social media platform, which YouTube video and which new mobile app will give it the sustainable competitive advantage it needs to corner the market for millennials.

I’d actually argue it’s a simple equation. The classic formula is well understood:

Sales = Speed + Price + Service

But, just as Leonhard Euler’s clarification of Descartes formula will forever be known as “Euler’s Formula For Polyhedra” (F-E+V=2) and James Clerk Maxwell’s improvements on Michael Faraday’s pioneering work is still known as “Maxwell’s Equations” 170 years henceforth, I submit for your critique “McMyler’s Equations of Millennial Mathematics.”

First Postulate: 

Technology = (Greater Speed + Better Pricing + Superior Service)

or 

Technology = Sales^x

The emergence of technology in our everyday lives has changed the way this generation perceives the world and, in turn, its expectations from it. Technology has enabled us to do everything we used to do … faster, cheaper and, arguably, with better service. Millennials know this and prefer companies that embrace it.

But, at the end of the day, it’s the same basic calculus: It’s not because you have a hip YouTube video or a Facebook page, and it’s not because you have cool apps or tens of thousands of “likes.” It’s because you are able to do the basics … faster, cheaper and with better service.

Since even Einstein acknowledged that his famed E=MC^2 would be met with skepticism and therefore immediately set out to defend it, I feel I should do no less. And, so, for your consideration:

This past February I moved to a new apartment. As a skilled professional procrastinator, I waited eight weeks until the end of March to remember to purchase renter’s insurance.  I remembered this because it was Friday night. And it wasn’t just any Friday night, it was the Friday night before my Tuesday 4 a.m. sojourn to the airport for a restful vacation far from home. 

This unfortunate, yet real, situation demonstrated the morbid time limitations of the classic model or, essentially, the equation for getting quotes and purchasing insurance coverage. 

I hopped online to try and get some quotes. I called a mutual insurer who, in addition to having a solid insurance product, possessed the advanced technology platform that would allow me to get coverage in a timely manner … er, I mean …  test my mathematical hypothesis.

If the classic calculation describes time as measured by the activity of purchasing insurance, The McMyler’s Equations of Millennial Mathematics demonstrated how the time element of purchasing insurance in all its components could be shifted, bent and even stopped. 

I called the customer service number and was connected to the sales department. I asked a ton of coverage questions, all of which the woman was able to answer. When we were done, she emailed me my quote. Like a good little insurance geek, I thoroughly read through the entire policy (no lie, policy review is actually my favorite part of getting insurance) and emailed my supplemental list of questions. Within the hour, her electronic response almost magically appeared in my inbox. Along with the quote, I received a link to an eSign service to initial and sign the documents. Great, we were moving along! 

While that should be sufficient proof of the integrity of the McMyler’s Equations of Millennial Mathematics, I am willing to provide further proof.

As the Princess of Procrastination, it wasn’t until 6 a.m. at the airport – well, to be more specific, on the tarmac waiting to take off  that I remembered I forgot to sign those documents. So, I confidently pulled out my smartphone, accessed the email that would link me to the eSign URL, signed the documents, reviewed the confirmation and went on to have a (fabulous) vacation free of any worries about my apartment or insurance coverage.  (I did, however, continue to wonder if I locked the door and shut off the lights.)

The insurers definitively proved the McMyler’s Equations of Millennial Mathematics: it was faster than expected, at the right price, with flawless customer service provided through effective use of technology.

But, more than just my business, the insurers earned my loyalty. The mathematical probability of my leaving them approaches zero. Of course, because of the mathematician Zeno’s 2,500-year-old work, known as Zeno’s Paradox of the Tortoise and Achilles, it can approach but never achieve absolute zero. But I digress just long enough to complete my second postulate (also known as McMyler’s Constant):

Sales Mass = Circle of Influence  where Technology  ≥ the Customer’s Expectations.

In the great tradition of mathematicians, I seek thoughtful peer review.

Captives: Congress Shoots, Misses

In late December, Congress put together a last-minute “tax extender” package that, among many other things, made some changes to section 831(b) of the Internal Revenue Code. That section allows “small” captive insurance companies to elect to exempt from income tax all of their insurance income.

These small captives have been widely used in recent years by owners of large, privately held businesses to allegedly add to their existing insurance coverages while enjoying immediate income tax reductions. Further tax benefits could include conversion of ordinary income to capital gains and a potential estate transfer benefit, depending on the ownership of the captive.

Congress has changed those benefits a bit, by eliminating any estate planning benefits, starting in 2017. But Congress failed to address the true levels of abuse that this code section has spawned and, indeed, may have made things worse.

These “enterprise risk” or “micro” captives are primarily used as a form of tax shelter, notwithstanding the pious claims of captive managers that they are meeting legitimate insurance needs. While such needs certainly may exist in some clear cases, the vast majority of entrepreneurs forming these captives care much more about the tax benefits than any increased insurance coverage.

The IRS knows this and has stepped up both audits of individual companies and larger, promoter audits of captive managers in an effort to crack down on captives that are being formed without the intent to form an insurance company. In addition, the IRS is well aware that unscrupulous captive managers create vastly inflated “premiums” payable by the operating company to the captive to maximize the tax benefits of owning such a small captive. These premiums often bear no relation to third-party market costs, nor can they be justified by a reasonable actuarial analysis of the actual risk being insured by the captive.

Another abuse is found in captive managers’ offering the new captive owner what the IRS would call a sham “pooling” arrangement, to comply with certain “risk distribution” requirements of court cases and revenue rulings.

There are many cases pending in the Tax Court that attempt to corral these abuses. Their outcome is, of course, uncertain.

So the Treasury Department went to the Senate Finance Committee in early 2015, hoping to obtain legislation that would gut section 831(b) (and put a lot of captive managers out of business).

Instead, the department got legislation that only stops these captives from being used as estate planning tools.

The legislation also increased the annual allowable premium paid to such captives, from $1.2 million to $2.2 million, indexed for inflation. The reasons for this failure have a lot to do with Sen. Chuck Grassley of Iowa, who has long wanted an increase in premium to benefit certain farm bureau captives in his state. He needed some revenue offset to allow for the increase, and, by closing this “estate planning loophole,” he can claim that tax revenues will increase.

That claim may be doubtful (only about 1% of taxpayers end up being subject to the estate tax), and captive managers now have a new, higher goal of $2.2 million for the “premiums” to be paid to these small captives.

It is also clear that this new legislation will have no effect on the current robust enforcement actions underway by the IRS. The issues of inflated premiums, sham pooling arrangements and lack of substance in the alleged insurance transaction remain in force and subject to serious scrutiny.

It is unlikely that Congress will bother to look at this code section again any time in the near future.

As a result of this new legislation, section 831(b) captives can generally no longer be owned by the entrepreneur’s spouse, children, grandchildren or trusts benefiting them. (Details about how the legislation achieves this change can be found in other sources).

Perhaps as many as half of all existing micro captives were formed with estate planning in mind. These captives will have to change their ownership or dissolve before the end of 2016. Tax professionals should review all captives owned by their clients to ensure that they remain complaint with the changes in the law. Relying on the captive managers may not be sufficient.

7 Tools for Cutting Insurance Costs in 2016

Pondering New Year’s resolutions? Check out these seven helpful insurance calculator tools:

If you’re like most Americans, one of your New Year’s resolutions probably involves cutting spending in the coming year. But, rather than planning to avoid expensive shopping sprees, consider saving money in other ways – like reevaluating your insurance coverage. This may seem like an overwhelming amount of work, but you don’t need to spend hours on the phone to find out if you can save money.

Instead of jumping right in with insurance quotes, consider using insurance calculators to get started – they require less personal information while still providing accurate estimates based on your needs. These seven insurance calculators are a great place to begin if you want to save money in 2016.


  1. Bankrate: Auto Calculators

To get an idea of how much you’ll be paying in car-related expenses every month, Bankrate provides you with a wide variety of automotive expense calculators. Once you have an estimate of how much you can save each month based on your interest rate and auto loan term length, you can then more accurately plan your auto insurance budget.

Additionally, while Bankrate focuses a lot of its research on automotive expenses, you can also learn more about home and retirement insurance plans with its other financial planning calculators.

  1. CarInsurance.com: Car Insurance Calculators

CarInsurance.com offers in-depth information about all areas of car insurance. The simple and organized layout of the calculator interface gives users easy-to-read results, and it provides additional explanations on overall cost and coverage.

The CarInsurance.com calculator section also serves to connect visitors to other informative resources that can help make lowering their car insurance premiums much easier.

  1. The Hartford: Car Insurance Coverage Calculator

The Hartford car insurance coverage calculator avoids using ballpark estimates, meaning that it requires specific details about your coverage needs to create a more relevant figure. While it does ask more questions than some of the other insurance calculators on this list, it is still an efficient and quick way to get customized results.

The Hartford calculator page also provides links to relevant articles that discuss different available benefits and options for auto insurance.

  1. HomeInsurance.com: Home Insurance Calculator

This basic calculator requires you to answer only three simple questions – ZIP code, square footage and home layout – to get an idea of how much coverage you need. The calculator also provides higher coverage ranges and explains the protection you can expect from each type of plan.

If you have questions about coverage terminology, the HomeInsurance.com calculator offers an extensive FAQ section.

  1. Liberty Mutual: Home and Auto Insurance Coverage Calculators

With an extremely user-friendly and visually appealing platform, the Liberty Mutual home and auto insurance calculators ask simple questions about your life to help you determine which plan is right for you. The home insurance coverage calculator tells you which areas you should be spending more to protect, while the auto insurance calculator allows you to see suggestions for towing and rental coverage. The major elements of the calculator are adjustable, making it easy to customize the estimate to reflect your needs.

  1. Geico: Coverage Coach

Like the Liberty Mutual tools, the Geico Coverage Coach offers estimates for auto and home insurance, but this calculator does both at once. The calculator gives accurate coverage estimates for a wide variety of demographics, and the platform is straightforward and engaging — it takes just a couple minutes to fill out the seven simple questions.

  1. Allstate: Insurance Calculator Tools

Allstate’s insurance calculator tools address all your major coverage needs, including auto, home, life and retirement. The calculators come with all the information necessary to help you decide which plans will work best for you and your family. Additionally, the thorough platform acts as an all-in-one learning center for the most common questions about various types of coverage.

calc

It’s not hard to figure out where you can save money on your current coverage policies. Try these seven insurance calculator tools to find the best home, automotive and life insurance coverage to suit your budget for the coming year. Once you’ve done some preliminary research, you can start seriously shopping for home coverage, life insurance and automotive protection.

Know someone who is looking for ways to cut down on expenses in 2016? Share this post!

Returning Insurance to Its 19th Century Roots

As we celebrate the Wharton Risk Center’s 30th anniversary, we are at the same time envisioning the future of risk management. In this spirit, I would like to make the case that the insurance industry return to its 19th century roots by requiring those at risk to undertake cost-effective loss-reduction measures as a condition for insurance coverage. Back to the future!

This is the way that factory mutuals operated when they were founded in the mid-1800s, and some insurers still do today when marketing commercial policies. Firms were given an insurance policy only after they were inspected and shown to be safe. Insurance premiums reflected the best estimates of the risk; improvements were rewarded with lower premiums, reflecting the expected reduction in future claims. Firms that did not continue to keep their factories operating safely were warned that their insurance policy would be canceled unless they took corrective action.

Insurance could play a similar role with respect to providing coverage to the residential sector where, today, limited attention is given to encouraging homeowners to invest in loss-reduction measures. Premiums should reflect risk, and risk information should be communicated in a transparent manner so decision makers have accurate signals. Those at risk should also be made aware of the reduction in premiums they could receive.

Public-private partnerships are necessary for dealing with insurance against some extreme events. Low-income individuals residing in hazard-prone areas are likely to demand financial assistance if their premiums are subsidized and the increase in the cost of their insurance raises issues of affordability. Even in situations where insurers are allowed to charge risk-based premiums, they may still feel that some hazards are uninsurable without public-sector involvement if catastrophic losses would cause their surplus to be reduced to an unacceptable level and perhaps lead to insolvency.

The National Flood Insurance Program (NFIP) offers an opportunity to creatively address these issues with regard to flood hazards. The Federal Emergency Management Agency (FEMA)’s technical mapping advisory council has already begun focusing on ways to design flood maps that reflect risk, and several reports by the National Research Council are addressing ways the flood insurance program can be modified in advance of its renewal in 2017. More specifically:

  • Updated flood maps will allow insurers to more accurately assess the hazard. If private insurers can charge risk-based rates, they would have an economic incentive to market flood coverage.
  • The public sector could provide financial assistance to low-income homeowners to address issues of affordability and encourage them to undertake cost-effective measures to reduce their risk. One way to do this is through a means-tested voucher program tied to low-interest loans. Well-enforced building codes and seals of approval would provide an additional rationale for undertaking loss-reduction measures.
  • A multi-year insurance policy tied to the property would prevent policyholders from canceling, as many do today when they have not made a claim for several years. Property owners would be provided with stable annual premiums and would know that they were protected against water damage from floods and hurricanes.
  • Reinsurance and risk-transfer instruments marketed by the private sector could cover a significant portion of the catastrophic losses from future floods. Some type of federal reinsurance would provide insurers with protection against extreme losses.

The broader challenge we face is developing long-term strategies that provide short-term rewards so that change is politically viable. There is a growing interest by policy makers and other stakeholders in ways that insurance can encourage individuals, firms, communities and countries to undertake protective measures.

Insurance has an opportunity to play this role in the residential sector by going back to its basic principles that were adopted almost 200 years ago from the commercial side of the house: encourage or require investments in loss-reduction measures today while providing claims payments should one suffer a severe loss.

The full Wharton risk newsletter is here.

Future of Securities Class Actions

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.