Archive for June, 2009

TRIA Setting On the Horizon

Thursday, June 18th, 2009
It Won't Last Forever

It Won't Last Forever

I chose this graphic because it was a more optimistic image than my 9/11 World Trade Center photographs, several of which I have already published on this site. But while the image is positive, the message is not. A sunset provision repeals all or part of the law on a specific date, unless further legislative action is taken to extend it. Most laws do not have sunset clauses; they remain in effect indefinitely. Such is not the case with the Terrorism Risk Insurance Act (TRIA), which became a U.S. federal law in 2002. The Act authorizes the federal government to provide a reinsurance backstop for insurance claims related to terrorism and was motivated by the events of 9/11.  Indeed, in the first edition of Prepare for the Worst, Plan for the Best: Disaster Preparedness and Recovery for Small Businesses (John Wiley & Sons Inc., second edition, 2008), I wrote, in connection with terrorism insurance, that “several countries particularly exposed to the risk of terrorism – the United Kingdom, Spain, South Africa and Israel – have special government support to cover these risks, but they are the exceptions. Most countries implicitly allow the commercial underwriting of terrorist risks….now, the new dimensions of terrorism call for some type of private sector-public sector solution.  Until such time as a solution is put forward, however, insurance companies will pay significant premiums for reinsurance cover because they now realize that they cannot afford to be without it.” The first edition went to press early in 2002 for publication in October and six weeks after the book came out, this prediction came true with respect to TRIA. Soon thereafter, France and Germany each passed similar legislation to deal with terrorism insurance in their countries.

However, TRIA was intended to be a temporary measure to afford time to the insurance industry to develop its own solutions to cover terrorist risks. TRIA was set to expire, or sunset, on December 31, 2005. Congress extended it for two years to December 31, 2007 and then on December 26, 2007, five days before it was due to expire, extended TRIA once more through December 31, 2014. The lengthy extension was to compensate for the market disruptions caused by the delay in dealing with TRIA only five days before its scheduled expiration.  But it won’t likely be extended again. In connection with its budget proposal, the Obama Administration wishes to phase out TRIA at its scheduled expiry in 2014. The stated motive is to realize $263 million in budget savings.

The threat of terrorism in the U.S. has not diminished and the global threat environment has actually increased since 9/11 with events like the Mumbai attacks and bombings in London and Madrid. Aon, a leading commercial insurance brokerage, estimates that 70 – 80% of the commercial property market, by per risk capacity, will revert to absolute exclusions for terrorism. Aon derived this estimate based on prior periods when TRIA’s fate was in question.  There is no need to take action now, but we should have this issue on our radar screen. It was because of presidential fiat that many 9/11 terrorist claims were paid by the insurance industry (even though for most policies they had probably been excluded) because the alternative was economic catastrophe. The issues around TRIA impact domestic terrorism as well, such as the Oklahoma City bombings. The turbulence in the commercial real estate market around the most recent sunset provision was extreme, so we should plan how to deal with this well in advance of TRIA’s expiration, assuming of course, that the Administration’s recommendation for the phase-out is accepted.

What’s Not to Like?

Wednesday, June 17th, 2009
They Turn Very Slowly

They Turn Very Slowly

100% risk-free to the lender and interest-free to the borrower – what is not to like about America’s Recovery Capital Loans, the new program of the U.S. Small Business Administration? Well, for one thing, it is hard to find a bank that will underwrite the loans. SBA loans are guaranteed by the SBA, but issued by participating banks. I have called most of the institutions on the SBA’s preferred lender list and I have yet to identify one that has decided it will participate in the program.  The banks have identified four problems: first, they have to navigate the thicket of SBA rules with little guidance for this new program. That is a lot of work to do for loans capped at $35,000. Second, while the loans are interest-free for the borrowers, the SBA will pay the lenders prime plus 2%, a lower interest rate than the SBA charges for its other loan programs. Third, 100% of the principal is guaranteed and should the default rate continue to rise, a not unlikely prospect given that unemployment is high and rising, bankers don’t want to be blamed for shifting more losses to taxpayers. Finally, there may be relatively few qualified applicants for this program given the criteria established by the SBA and the risk for small businesses to assume more debt in such an uncertain market.

Dial Another Tax

Tuesday, June 16th, 2009
Dial Another Tax

Dial Another Tax

According to the Wall Street Journal, the Internal Revenue service issued a notice this week to advise of stricter enforcement of taxation on employer-provided fringe benefits, specifically, mobile telephones. Pursuant to a 1989 law, employees who use company-paid mobile phones for personal calls are required to impute the cost of those calls as income on which they must pay federal tax. But, as is the case with frequent flyer miles earned on business travel, employees rarely do so. Now with budget deficits stretching out for generations, the federal government is desperate for tax revenues. The IRS proposes that employers assign 25% of an employee’s annual telephone expense as a taxable benefit. Employees could avoid that tax liability if they could demonstrate that they use personal mobile phones for personal calls made during work hours. Alternatively, employers could use a statistical sampling to calculate the proportion of employees’ cell phone use that is personal and assess the tax accordingly.  This tax will likely cost more in compliance than it will yield in revenues. As a recognition of the compliance costs, large corporations are already debating the idea of canceling employer-paid mobile phones and requiring employees to pay for their own phones and submit invoices to the company for reimbursement of work-related calls. What a great idea – shift more of the cost of employment and cash flow strain on workers whose taxes are increasing and who cannot keep up with inflation! I don’t like that one, particularly since mobile phones are critical to disaster preparedness and recovery. I want to maintain some quality control over how those phones are selected and maintained. Let’s hope that the wireless companies are successful in their lobbying efforts to kill this proposal.

Putting a Positive Spin On It – Or At Least Trying to Do So

Monday, June 15th, 2009
The New Direction of the Financial District

The New Direction of the Financial District

The Alliance for Downtown New York hosted the Small Business Community Expo, a networking event for small business owners, advocates and service providers. Alliance president Liz Berger stated that “people are really pushed and empowered by the current economy to try things they haven’t tried before. They’re hungry for knowledge and they want to know that they’re not out there by themselves.” It often feels that way. Wall Street has lost nearly 20,000 jobs since August 2008, according to the New York State Department of Labor. And Wall Street isn’t the only Manhattan industry that is downsizing; the media and fashion industries are also in trouble. But in Lower Manhattan, where rebuilding the World Trade Center site is moving at a glacial pace, it is small consolation to know that it isn’t just the financial district that is experiencing the economic pain. However, the Alliance for Downtown New York points out that that despite Lower Manhattan’s reputation as an extension of Wall Street, less than a third of jobs in the area are finance-related, and a growing number of them are in the creative and nonprofit industries. In addition, they say, the residential population of Lower Manhattan grew 11% last year, to 53,900, and is forecast to reach 60,000 by 2011. The growth of the residential population in an area that used to go dark at 7:00 p.m. as financial district workers left for home creates an opportunity for small businesses to provide retail services that the residents will demand, so says the Alliance.

I am all for an optimistic outlook on life, so I applaud the brave efforts of the Alliance to try to do something for economic development by reaching out to small businesses. But there is no way that this development can be interpreted as anything by the sad consequence of disastrous government policies. Lower Manhattan has become a miserable place to live, I know. The round-the-clock and unpredictable disruptions around rebuilding the World Trade Center site, orchestrated for nearly one decade by those who don’t have to live in the area, has taken its toll on the community. The encouragement to offer new retail services to new residents is a bit misleading; while the residential population has increased, it has not done so at a rate sufficient to offset the decline in employees in the area, employees who sustained restaurant and other retail businesses. I have watched as neighborhood fixtures like Foxhounds go out of business because the loss of 20,000 jobs in Wall Street following the loss of 50,000 workers based at the World Trade Center basically wiped out their luncheon business and the new residents are not dining out enough to offset that loss.

And you wonder how long the new residents will stick around. Many of the residential apartments were conversions motivated not by market demand but by incentives, such as Liberty Bonds, offered to real estate developers. One such result is the conversion of 180 Maiden Lane, which used to be the office of Cadwalader, Wickersham & Taft, a Wall Street law firm. I toured the apartments with a broker; they had all the charm of a law clerk’s cubicle. You could almost imagine Bartleby the Scrivener hunched over his desk here. The real estate developers apparently were unwilling to spend the money required to do a complete gut renovation and change the bones of the building to make the place feel like home. Still, the interior is less depressing than stepping outside and looking at all of the half-finished construction projects, stalled for lack of financing. These projects were not motivated by market demand; they were a response to corporate welfare offered by post-9/11 reconstruction plans of the government.  Small wonder that many of the journalists who work for the Wall Street Journal are looking forward to leaving the World Financial Center and moving to 1211 Avenue of the Americas in mid-town Manhattan. My friends who continue to work in the neighborhood describe it as a “ghost town”.

What is so sad is that the events of 9/11 notwithstanding, Lower Manhattan was a vibrant community of economically productive small businesses. When government policy decided to distort market mechanisms for supply and demand, we were displaced to make way for boondoggle real estate projects that were dependent of subsidies and ultimately, were not sustainable. Many of the new residents of Lower Manhattan chose to live there, despite the poor quality of life, for its proximity to work and the incentives offered to sign apartment leases. Basically, you had to bribe people to live there. But when Merrill Lynch, AIG and others got into trouble, residents lost their employment and until they find new work, they cannot afford to move. But rest assured that once they find new jobs, they will. Even if a few new restaurants and shops appear to serve this transient residential population, these are low-margin businesses that don’t generate the kinds of returns to replace the employment and tax base supported by the commercial businesses that were driven out. If you doubt me, go to the Tiffany’s shop on Wall Street at lunch hour and observe that there is not a single customer there. The market would have adjusted supply and demand for commercial real estate in the aftermath of 9/11 by the mechanism of price. Offering corporate welfare to wealthy real estate developers allowed them to continue to benefit from a real estate bubble that should have burst a bit earlier. But the distortions effectively destroyed a community. Only now are politicians and various business improvement district groups recognizing the importance of local small businesses – now that we are gone.

Is Anyone Surprised, Really?

Sunday, June 14th, 2009
The View From My Office Window

The View From My Office Window

In the first edition of Prepare for the Worst, Plan for the Best: Disaster Preparedness and Recovery for Small Businesses (John Wiley & Sons, Inc., second edition, paperback, August 2009), published in 2002, I wrote that you should consult with professional and trade associations and others in the small business community to learn of their experiences in selecting an insurance carrier. Certain companies have good reputations of service in the small business market, while others are best avoided. I also wrote that there were two insurance companies that were particularly difficult to deal with for Lower Manhattan small businesses to get their 9/11-related claims paid. So I was not altogether surprised to read in the news media that “AIG was playing hardball on paying claims” to the passengers of USAirways Flight 1549. Could it be argued that AIG’s tough stance on claims relates to its present financial difficulties?

Nope.

In the current edition of the book, I shared the experience of “Ariel Goodman, whose small business was based in the World Trade Center. Ariel also lived in an apartment building directly facing the World Trade Center. Following the terrorist attacks, the Department of Health condemned her apartment building. What was doubly unfortunate was that her business records were backed up at her home and her personal records were backed up at her office. Within the space of a few minutes, she lost both simultaneously…Ariel, by the way, founded From the Ground Up, a nonprofit association of Lower Manhattan small businesses affected by 9/11.” Ariel needed her commercial insurance policy to file her claims. Obtaining a copy from her accountant was not an option, as her accountant’s office was also located in the World Trade Center and he had not thought to back up his records offsite. Her insurance company denied her commercial claims and when she sought to protest their decision, repeatedly refused her requests over several months to furnish her with a copy of her policy. I advised her to send a copy of her written request to the New York State Insurance Commissioner, to make the regulators aware of her struggle with her insurance company. That did the trick.

You already guessed it: her insurance company was AIG.

That, in my opinion, is the problem for AIG. Aviation insurance is an anomaly in that insurers are typically not obligated to pay claims unless there is proof of negligence on the part of the airline. In this case, no finding of negligence has been made. At the same time, because of the sheer size of potential aviation liability claims, such coverage is typically syndicated among a group of insurers with one insurer acting as the lead underwriter. If the lead insurer pays claims that it is not obligated to pay, it faces problems of its own with the other insurers in the syndicate. An insurance company with a pristine reputation might be able to explain this phenomenon to angry passengers. They could show how paying claims that they are not obligated to pay raises the cost of coverage for everyone. It is just that if there are those who believe that the insurance company knowingly denies legitimate claims and then, on top of that, owes its continued existence to a massive taxpayer bailout of the reckless behavior of its senior executives, well, don’t expect much sympathy.

Influenza Pandemic Alert Raised

Saturday, June 13th, 2009
No Need To Go Here

No Need To Go Here

The World Health Organization (“WHO”) raised the level of influenza pandemic scale to Phase 6. The pandemic scale goes from 1 to 6, with 6 being characterized by human-to-human spread of the virus in at least two countries in the same region plus another region in the world.  Phase 6 indicates that a global pandemic is underway. However, according to the Director of the WHO, “Globally, we have good reason to believe that this pandemic, at least in its early days, will be of moderate severity. As we know from experience, severity can vary, depending on many factors, from one country to another.”

You should advise your employees to take the following precautions with respect to hygiene:

  • Cover the nose and mouth with a tissue when coughing or sneezing, and dispose of the tissue after it is used.
  • Wash the hands often with soap and water, especially after coughing or sneezing. Alcohol-based hand cleaners are also effective.
  • If employees share equipment such as phones or keyboards, wipe these with a light disinfectant tissue. Do not use very wet cleaning cloths on keyboards.
  • If an employee becomes ill, summon a doctor and have him or her remain home to limit contact with others until medically cleared to return to work.

The usual advice for remote telecommunications applies. Remember some employees may need to stay home from work to take care of sick family members, so where feasible, make arrangements for them to do so. Finally, given the public health risks, business travel should be limited to absolute necessity. Of course, this should be part of your small business policy for reasons of your budget!

Time Is Not On Your Side

Thursday, June 11th, 2009
Speed Is Of The Essence

Speed Is Of The Essence

In Prepare for the Worst, Plan for the Best: Disaster Preparedness and Recovery for Small Businesses (Wiley, second edition paperback, 2009), I cited a study conducted by the group of certified public accountants concerning the experiences of small businesses in the immediate vicinity of the World Trade Center at the time of the 1993 bombing. They found that of those businesses that could not resume operations within five days, 90% of them were out of business one year later. In other words, small businesses recover quickly or they do not recover at all. You simply cannot recover at a leisurely pace. And cash flow is the life blood of a small business. This lesson appears to have eluded the U.S. Small Business Administration which on June 15 will begin to accept applications for the small business emergency loan program that was authorized by Congress back in February. The adage “Better late than never” simply does not apply to small businesses.

Geography Is Not Destiny

Wednesday, June 10th, 2009
World Geography, Not Predestination

World Geography, Not Predestination

When serving as the keynote speaker at the annual entrepreneurs’ award luncheon of the Colorado Springs Small Business Development Center, I spoke of the risk of Colorado’s favorable geography. Disaster-prone locales tend to have heightened awareness of risk threats, whether it is small businesses in California attuned to earthquake risks or Gulf Coast small businesses concerned about hurricanes. The happy fact that Colorado Springs is not located on a geological fault line or a coast can give rise to complacency. Consider, for example, that in any given year, 30% of the areas that flood have never before flooded and are not located in flood plains. While flood is a much more significant risk than either hurricane or earthquake, it is not this peril, but the underlying principle is that it is the everyday risk that is the more imminent threat. Today, a citizen journalist in Colorado posted on the CNN website a video of a tornado in his community. So what is the take home message? Focus on preparing for the everyday disaster, such as human errors and power outages, and this way you will gradually build resilience for the more serious disasters. This is critical because you cannot always predict on the basis of your locale the more severe disaster that will threaten you. It may be a flood or tornado that has never before struck your community.

Securing Our Digital Infrastructure

Tuesday, June 9th, 2009
Vulnerable

Vulnerable

President Obama’s recent statement on cyber-security highlights threats to our digital infrastructure which has been increasingly compromised by hackers. The President declared this a national priority to ensure resilience owing to our dependence on safe and secure computer networks. In connection with the President’s statement, the White House released a document titled “Cyberspace Policy Review“, which outlines the issues around our grid utilities, including computing.

Tomorrow, I will be speaking at a web-cast organized and hosted by Symantec, which has long been dealing with stealth security threats. Click here to register for participation. I hope you will join this discussion.

A Lesson From Detroit

Monday, June 8th, 2009
Small Business on the Menu

Small Business on the Menu

In Prepare for the Worst, Plan for the Best: Disaster Preparedness and Recovery for Small Businesses (Wiley, second edition, 2008), in the section titled “Sometimes Aid Can Be Harmful”, I wrote “Lesson 1: Time is your most precious asset and it is better spent on growing revenues and pursuing business opportunities than trying to qualify for many aid programs. These programs have onerous documentation requirements, each one is different and they generally yield a poor return on the time invested.” I thought of this sentiment when I read the leader in this week’s Economist which commented that “if Detroit had spent less time lobbying for government protection and more on improving its products, it might have fared better.” The trap is a psychological one: everyone wants to feel that they got something for nothing and having paid taxes, you want to recoup some of that payment. But it is not a wise investment of your time and an investment in this effort probably signals your own assessment of your business prospects. In a recent roundtable discussion of small business issues on the “Money for Breakfast” program of Fox Business News, I disclosed that I had tracked the hours I put into disaster relief programs post-9/11. On a pre-tax, pre-expense basis, I recovered $2.10 per hour of time invested, less than minimum wage. Other small business owners fared even worse. Government program requirements are so convoluted that you often need expert tax, accounting and legal advice to prepare the program applications. Obviously, the expense incurred with such service providers reduces your net proceeds. The Economist lead was titled “Detroitosaurus Wrecks”; unless you see your business going the way of the dinosaurs, invest your time in growing revenues and market share, not dealing with government programs.