Wednesday, December 28, 2011

Foreseeability of Disaster and Disaster Preparedness

Often, our response to a disaster is "how could this happen?"  and yet many of our disasters are predictable.  We may not know when and where the disasters will occur, but we do know they will occur, because the conditions precedent are obviously in existence.  Consider two new books addressing the impact of killing drought in the west, reviewed in the New York Times today. “A Great Aridness,” by William deBuys, a conservationist based in New Mexico, and “Bird on Fire,” by Andrew Ross, a social scientist at New York University,  discuss the impact of weather changes on the "New West."  The development and population here in the New West took off during a period in the 20th century when the region enjoyed perhaps its wettest weather in hundreds of years. The killing droughts that have lately gripped the region are, in fact, the result of more typical weather patterns.  This will mean the occurence of more events that we classify as typical disasters like forest fires and flash floods, and also more slow motion disasters:  pestilence, die-offs of native grasses, depletion of watersheds and increasing competition for scarce water. The American Bar Association's Tort, Trial & Insurance Practice Section's Disaster Initiative will present programs on  May 17, 2012 at the TIPS Spring Meeting in Charlotte, NC focusing on disasters caused by acts of nature, and a full CLE track on disaster preparedness).  For more information about TIPS' Disaster Initative click here

Tuesday, December 27, 2011

Cyber Attacks Expected to Boom

This New York Times article discusses how industry observers expect cyber attacks to boom in the upcoming year.  The article is interesting because it discusses the many lawsuits that get brought when a company is attacked and personal information is lost or stolen.  It points out the need for cyber insurance and the failure of many companies to buy the product.

At the American Bar Association's Tort,Trial & Insurance Practice Section's Fall Meeting in Seattle, this topic was discussed at the CLE presentation as part of the TIPS Disaster Initiative.  Additionally, TIPS Disaster Initiative podcasts discuss cyber terrorism and the need for cyber insurance.  You can find this information at the TIPS Disaster Initiative website here.  We have a number of great programs coming up in February, May, and August 2012 covering disaster preparedness and response.  Please visit our website to learn more.

Monday, December 19, 2011

Lessons of the Deepwater Horizon Disaster

This New York Times Editorial (December 19, 2011) discusses a new report from the National Academy of Engineering and the National Research Council on the Deepwater Horizon disaster finding that there were a series of poor decisions.  The Editoral concludes that if drilling is to continue, the industry and the regulators have to start doing things differently, including for focus on preparedness and oversight.

The American Bar Association's Tort, Trial & Insurance Practice Section's Disaster Initiative will put on a program on the Deepwater Horizon disaster and other disasters caused by negligence at the ABA's mid-year meeting in New Orleans on February 3, 2012, at 2:00 p.m.  Entitled "BP and Beyond:  Litigation and Claims Following Mass Disaster," the panel includes Allan Kanner, Kanner & Whiteley, L.L.C., New Orleans, LA, as moderator and features Professor Francis McGovern, Duke University, Honorable Lee Rosenthal, United States District Court, Houston, TX, and Theodore R. Henke, Senior Vice President and General Counsel, The OIL Group of Companies, Hamilton, Bermuda.  This program will discuss litigation and claims arising out of the Deepwater Horizon oil spill that occurred in 2010 in the Gulf of Mexico. The oil spill resulted from an explosion that killed eleven men and injured several more. The after-effects of the spill were extensive and resulted in significant litigation as well as the creation of a compensation fund, the Gulf Coast Claims Facility, that is funded by BP and administered by Kenneth Feinberg. This panel will address the claims administration process and litigation arising from the spill, including a look at insurance coverage issues.  For more information on this program, and on all the TIPS Disaster Initiative programs, click here.

Thursday, December 15, 2011

Worldwide Disaster Claims to Exceed $350 Billion in 2011

Swiss Re, one of the world's largest reinsurers, has issued a preliminary Sigma analysis of disasters in 2011 and has projected 2011 to be a record-breaking year for disasters.  The comprehensive sigma study “Natural and man-made catastrophes in 2011” will be published in Spring 2012.  The prelminary analysis shows that total insured losses for the global insurance industry from natural catastrophes and man-made disasters reached $108 billion in 2011. This is more than double the figure of $48 billion in 2010. Claims from natural catastrophes alone reached $103 billion in 2011, compared to only $43 billion last year.

The American Bar Association's Tort, Trial & Insurance Practice Section's Disaster Initiative has a series of webcasts, podcasts, and programs that address natural and man-made disasters, as well as disasters caused by terrorism.  Many of the issues outlined in the Sigma study by Swiss Re have been and will be discussed at upcoming Disaster Initiative programs and podcasts, including those on February 3, 2012 in New Orleans at the ABA's Mid-Year meeting (focusing on disasters caused by man-made acts, including the Deepwater Horizon oil spill, which is going to trial in 2012, and the unique challenges faced by courts and local governments when disasters happen like when the levees broke); May 17, 2012 at the TIPS Spring Meeting in Charlotte, NC (focusing on disasters caused by acts of nature, and a full CLE track on disaster preparedness); and August 3, 2012 at the ABA's Annual Meeting in Chicago (with the focus on disasters caused by terrorism - including a blockbuster panel with important government officials and an insurance industry panel including Bob Hartwig).

To access the podcasts and videocasts that have already taken place and for more information about the TIPS Disaster Initiative and upcoming programs, including how to register, please click here.

Wednesday, December 14, 2011

New Study on Catastrophic Losses in Alabama

The linked presentation by Robert Hartwig, President of the Insurance Information Institute, focuses on the effects of catastrophic losses on homeowners' insurance in the State of Alabama.  This study, of course, has parallels with other similarly situated States.  According to the study, between 1998 and 2011, insured catastrophe losses across the state totaled $8.4 billion, with homeowners and renters insurance accounting for about 67 percent of the losses. 2011 was the worst year in Alabama history for catastrophe losses, with homeowners losses representing 66 percent of the $3.2 billion in cat losses. This record of catastrophes has taken a toll on the state’s insurers. The return on net worth (RNW) for the Alabama homeowners insurance market from 2000-2009 averaged negative 7.9 percent, ranking the state 43rd out the 50 states. Inclusion of the 2011 storms could make Alabama close to the least profitable state.

The study offers some interesting information that makes for a good segue with the American Bar Association's Tort, Trial & Insurance Practice Section's Disaster Initiative program for the TIPS Spring Meeting in Charleston, SC on May 17, 2012.  The Charleston Disaster Initiative program includes Mayor Joseph Riley of Charleston, who masterminded the response to Category 4 Hurricane Hugo in 1989 and won international accolades for his vision will host the panel.  Other panelists include Governor Bev Perdue (invited), who received tremendous media attention for her thorough and thoughtful preparation in the path of Hurricane Irene.  The Mayor of Birmingham William Bell, who weathered and learned from the tornados that sliced across Alabama this year, has also been invited and should be familiar with the effects of the III study.  Their experiences and what they learned will be front and center.  A second panel, including Judge Bernice Donald of the Sixth U.S. Circuit Court of Appeals, Ed Collins, from Protecting America, and Dr. Robert Bailey from Exponent, will assess national preparedness, the likely hot spots geographically and what can and must be done now to avert even worsened consequences.
The Charleston meeting will also feature a second CLE grouping of four panels on:  1)  “Advising Businesses on Natural Disaster Preparedness and Business Interruption Insurance”;  2)  “ Second Responders:  Experts Responding to a Natural Disaster Loss from Start (investigation) to Finish (Daubert Challenges)”; 3) “Handling a Catastrophic Claim from Beginning to End, including Pre-Storm Preparedness and Post-Storm Evaluation”; and 4) “5-Minute Drills-Foreseeable Ethical Problems and Solutions After a Natural Disaster.”  For more information about TIPS Disaster Initiative and the Charleston program click here.  Coincidentally, Bob Hartwig will be speaking at the TIPS Disaster Initiative program in Chicago on August 3, 2012 on Disasters Caused by Acts of Terrorism.

Monday, December 12, 2011

Give the Gift of Disaster Preparedness

I found this interesting article searching around for disaster preparedness information.  FEMA, who we have linked below, is suggesting adding disaster preparedness items to holiday gift giving.  The article provides some suggestions for disaster preparedness holiday gifts such as disaster kits for homes, offices and cars (first aid kits; food, water and prescription medications for 72 hours, extra clothing, blankets, and flashlights), NOAA weather radios with extra batteries, enrollment in a CPR or first-aid class, smoke and carbon monoxide detectors, fire extinguishers (for the kitchen, garage, car, etc.), foldable ladders for second-story escape in a fire, winter car kits (emergency flares, shovels, ice scrapers, flashlights and fluorescent distress flags, jumper cables), pet disaster kits (food, water, leashes, dishes, toys, and carrying case or crate), and battery powered lamps.  What cool ideas.  Let's have our readers' comments on other disaster preparedness holiday gifts!

The American Bar Association's Tort, Trial & Insurance Practice Section's Disaster Initiative has some suggested gifts in its podcasts, recorded audio and video webinars, and its upcoming Disaster Initiative programming at its mid-year, Spring, and annual meetings.  TIPS will be visiting local venues and will be supplying disaster preparedness information to the local population in New Orleans, Charleston, and Chicago.   Visit our Disaster Initiative page for more information and to register or access these great disaster preparedness and response programs and materials.

Thursday, October 27, 2011

BP Oil Spill Liability is Sorting Itself Out

The New York Times reports that British Petroleum's partner in the Deepwater well that exploded last year in the Gulf of Mexico, Anadarko Petroleum, had agreed to pay $4 billion to settle claims related to the oil spill. The explosion caused an oil spill which is is the second worst natural disaster in U.S. history, after the dust bowl.

The settlement ends a dispute between BP, which operated the well in the gulf, and Anadarko, which owned a 25 percent stake. BP, whose investigation concluded that the accident was the result of conduct involving several companies, continues to look for contributions from its contractors, Transocean, which operated the rig, and Halliburton, which was responsible for cement work.  The Deepwater Horizon situation will be one of the subjects covered by the ABA's Tort, Trial & Insurance Practice Section's Disaster Initiative program on disasters caused by negligence at the ABA mid-year meeting in New Orleans on February 3, 2012.  For more information about this program and the other TIPS Disaster Initiative programs, please visit the TIPS Disaster Initiative page by clicking here.

Wednesday, October 19, 2011

TIPS Wows Them in Seattle

The Super Lawyers Blog has a great article about the ABA's Tort, Trial & Insurance Practice Section's Cyber Security program held at the TIPS Fall Meeting in Seattle, Washington on October 13, 2011.  Three great panels discussed cyber security, terrorisim, and the insurance issues related to cyber security.  According to the blog the discussions were dynamic, captivating, and interesting.  Check out the blog for the highlights of the program.  For more information about upcoming TIPS Disaster Initiatiive programs, and to access the Disaster Initiative teleconferences and podcasts, click here.

Friday, October 14, 2011

Oil Contractors Likely To Strengthen Liability Protection After Spill Citations

Dow Jones newswire reported on October 13, 2001 that oil contractors will be looking to strengthen liability protection in view of the recent government fines levied against oil rig contractors arising out of the Deepwater Horizon disaster.  Here are some excerpts from the article:

"However, if the courts determine that the government has the right to issue a citation to oil-service contractors, there's no contract that will protect them from the fine, according to Larry Nettles, an environmental attorney with Vinson & Elkins, a Houston law firm. "In most jurisdictions the courts do not allow indemnification for fines and penalties, because it defeats the purpose," which is to punish bad behavior, Nettles said.
Still the industry is expected to bulk up its contracts even more in the wake of the regulators' action, legal experts say, to get as much liability protection as possible.  "They will probably review their contracts," said Owen Anderson, a professor of law specializing in energy at the University of Oklahoma.
The contractors currently have considerable bargaining power to win such new concessions from rig operators on contract protection. Relatively high oil prices have led to a shortage of drilling crews and have put oilfield services at a premium, giving the contractors the upper hand in negotiations."

Indemnification for fines and penalties is an interesting insurance issue and is often addressed in contracts in the form of indemnities and hold harmless agreements.  The Deepwater Horizon situation will be one of the subjects covered by the ABA's Tort, Trial & Insurance Practice Section's Disaster Initiative program on disasters caused by negligence at the ABA mid-year meeting in New Orleans on February 3, 2012.  For more information about this program and the other TIPS Disaster Initiative programs, please visit the TIPS Disaster Initiative page by clicking here.

Tuesday, October 4, 2011

WORM-The Fight Against a Cyber Terrorist Threat

Mark Bowden, the author of "Black Hawk Down," has written about a different kind of battle in a different kind of war in "Worm." Worm is reviewed in today's New York Times.  The review summarizes the threat, the response, and the difficulties inherent in writing about cyberterrorism for "amateurs." In 2008, Conficker was created and metastasized in the cyber world, making up to 83 million possible contacts in a very short time.   Worm tells the story of the malware and the people who fought it, in terms that a non technical reader can follow.  The book gives readers an overview of the history and development of these kinds of threats.  While the reviewer notes that the book lacks drama because of the nature of the conflict, because the purposes of Conficker were never understood and Conficker did not fulfill the worm-fighters’ dire predictions, Bowden's attempt to increase awareness of cyber threats is worth a read.

Wednesday, September 28, 2011

Does Government Intervention Hinder Disaster Recovery?

In this recent article, Lloyd's of London's General Counsel talks about a report to be released by Lloyd's that questions whether the intervention by the federal and state governments in the US in natural disasters helps or hurts recoveries.  The article states that "the government covers too many damages. 'You have the coverage of flood risk funded by taxpayer at state and federal level,' added Mr McGovern. 'A lot of claims coming out of the national flood insurance programme are for repeat losses on homes. That’s not sustainable.'”  This raises an interesting question about the balance between private insurance and government response to natural disasters. 

The subject of natural disasters will be covered by the ABA's Tort, Trial & Insurance Practice Section at its Spring Meeting on May 17, 2012, in Charleston, North Carolina.  One of the panels will include government officials who will talk about government response to natural disasters.  For information about the ABA/TIPS Spring Meeting or any of the TIPS Disaster Initiative Programs, including past programs, please click here.

Tuesday, September 27, 2011

New Cyberattacks in Japan

According to the New York Times, the United States issued a stern warning over cyber attacks on Japan’s biggest defense contractors, including Mitsubishi Heavy Industries, which builds F-15 fighter jets and other American-designed weapons for Japan’s Self-Defense Forces. The IHI Corporation, a military contractor that supplies engine parts for fighter jets, may have also been a target, the Nikkei business daily reported. The breaches threaten to undermine any progress made by Japan, an important American ally, in bolstering cybersecurity in recent years. Mitsubishi Heavy Industries said Monday that its computer systems had been hacked and that some network information may have been compromised. According to the company, 83 computers and servers at 11 locations, including its Tokyo headquarters, factories, and a research and development center were accessed in the attack. Mitsubishi Heavy Industries has built F-15 fighter jet and missile systems, including Patriot batteries, and AIM-7 Sparrow air-to-air missiles, that were designed in the United States. The company builds some of that equipment with American contractors, including Raytheon and Lockheed Martin.

TIPS is presenting the first of the Disaster Initiative live CLE programs on October 13, 2011 from 2:00pm-5:00pm: Homeland Security – 10 Years Later. How Innovation and Technology Have Changed the Approach to Homeland Security Since the 9/11 Attack. Register today for this can't miss program that will address cyber security, transportation security, and insurance protection for cyber liability risks and security breach disasters. The cost to attend the CLE program and the Reception that will immediately follow is only $50! TIPS is also Co-Sponsoring a program with the Ports of Seattle, Tacoma and California. The Business Case for Secure Ports will discuss port security, the steps necessary to ensure regional safety and the impact a disaster would have on the business community. To register, click here.

Monday, September 12, 2011

September 11th, Ten Years Later, Where Are We In The Handling Of Mass Claims Within The Legal System?

On September 8, 2011, I had the honor of moderating a live webinar entitled September 11th, Ten Years Later, Where Are We In The Handling Of Mass Claims Within The Legal System? Participating in this fascinating panel discussion were the Honorable Alvin K. Hellerstein, Senior Judge, Southern District of New York, Kenneth Feinberg, and Shelia Birnbaum. I am pleased to provide you with some of the highlights below.

The 2001 Victim’s Compensation Fund, established by Congress within two weeks after September 11, 2001, was an unlimited fund, which distributed over $7.049 billion to survivors of 2,880 persons killed on that day and to over 2,680 persons injured in the attacks or rescue efforts thereafter. Ninety seven percent of the families of deceased victims received compensation from the Fund. The average award for families of deceased victims exceeded $2 million. The average award for injured victims was nearly $400, 000. According to Kenneth Feinberg, the Special Master who administered the Fund, the Fund and its success remains unprecedented, and is unlikely to ever be replicated again. It was the nation’s response to a horrific tragedy of our nation, like the tragedy of Pearl Harbor and the assassination of President Kennedy. The overwhelming success of the Fund would never have been possible without the cooperation of the private bar, who assisted applicants through the claims process. For victims who needed a hearing to relieve their pain and present their evidence for compensation, those hearing were held both before Ken Feinberg and before Judge Hellerstein, who handled the over 10,000 cases filed in his courtroom in the aftermath of September 11, 2001.

The success, in terms of the 97% participation rate, was due in large part also to the fact that Judge Hellerstein suspended his docket for two years, to enable the Fund, for its 33 month time limit, to process its claims. A litigant would need to dismiss their lawsuit to participate in the Fund. Since collateral source payments were deducted from fund compensation, litigants with large life insurance policies opted for the litigation route which did not include deductions for collateral source payments. Special Master Sheila Birnbaum was appointed by Judge Hellerstein to mediate 92 cases in his courtroom, which she did successfully. Judge Hellerstein organized the cases by grouping them into master dockets, 4 of them, organized by subject matter. Legal challenges to jurisdiction and other issues like governmental immunity and dealing with the thicket of security issues made the litigation quite challenging. Special Masters were appointed, who created an electronic database to track each and every plaintiff as well as each and every defendant. Bellwethers were selected from the large mass of cases and discovery commenced on this select group of cases. According to Judge Hellerstein, it was only after the terrorist cases of Zahawari proceeded to trial in Northern Virginia and some of the sensitive security information became public, that the litigants before Judge Hellerstein had access to that SSI information. The cases were bifurcated and Judge Hellerstein set a trial date for a damages only trial. After discovery and before trial, the parties entered into a mass settlement for $712.5 million. Ultimately most of the onsite lawsuits have settled, even after an initial settlement was rejected because some lawyers were for demanding too much money in attorneys’ fees. Judge Hellerstein was committed to making sure that the persons settling early in the litigation did not receive less money than those who settled on the eve of trial. He worked very hard to ensure that the early and late settlers received approximately the same amounts and no one was disadvantaged by the timing of settlement. As of today, one death case remains, the Bavis lawsuit, and only 65 other case from the onsite group remain from the initial over 10,000 cases. A November trial date is set for the Bavis case. The offsite cases remain. Judge Hellerstein expects those cases will be impacted by the Zadroga Act. He does expect his caseload to diminish once the Zadroga act is up and running and litigants choose to dismiss their cases and file claims under the Act.

Neither Feinberg nor Hellerstein thought the Zadroga Act would passed and were initially opposed to it. But, it did pass and no one better could have been appointed to administer it, according to both, than Sheila Birnbaum. The Act is divided into two parts: Part I(medical) and Part II (compensation). Unlike the original Fund, the $2.8 billion reconstituted Fund is limited with administrative expenses deducted from the Fund. Hence, administration will be a challenge. The Fund encompasses a broader geographic area than the original Fund, so potentially more people will be claimants. Dismissal of pending litigation, like the original Fund, is a requirement for participation. Collateral source payments, like the original Fund, will be deducted from the final award. Like the original Fund, the methodology for calculating awards will be published so that a claimant will be able to gauge their expected payment. But, unlike the original Fund, payments will be made not all at once, because the Zadroga Act permits distribution of only $875 million in the first five years, leaving the remaining amount to be paid in the program’s sixth year. The awards will be pro-rated and received in two parts over a period of six years.

The panel discussion could have continued with these well respected panelists who enjoy their work and enjoyed working together to resolve the legal aftermath of this horrific tragedy in our nations history. Judge Hellerstein explained his thoughts about whether he will allow the request for “terror damages” in the Bavis lawsuit headed toward trial this November. He has not made up his mind about whether to permit such damages, but appears to be leaning in that direction, sharing his though process with us. Sheila Birnbaum discussed her thoughts about whether cancer will ever be compensated under the Zadroga Act, and if so, when. Judge Hellerstein lamented that cancer claims did not receive enough compensation in his courtroom, some did, but the emphasis was on respiratory illnesses due to the latency factor. Sheila Birnbaum also discussed the treatment of PTSD and physiological injuries under Part I of the new Fund, although compensation for those injuries is not allowed under Part II of the Fund. Ken Feinberg discussed the challenges he currently faces in administering the BP Fund, which has many many more claimants from all 50 states. As of August 23, 2011, over $5 billion has been distributed to 204,434 claimants, with approved payments by the GCCF of 359,441 claims. While there are no bodily injury or death claims, to all the families facing economic displacement and loss, it was a personal disaster.

Feinberg would let the politicians decide if and when circumstances are suitable to enact another Fund for handling mass torts. Although he is exceptionally experienced in administering these funds, having administered some of the largest funds in our legal history, he is not a proponent of the establishment of funds for the handling of mass disasters, nor of a separate court for handling mass disasters, which Judge Weinstein once espoused. Feinberg will not go out and seek creation of a fund to solve a national tragedy, he would rather let the politicians/Congress decide whether or not to create a fund in response to a national tragedy. He does think the Fund established in response to September 11th was right thing to do. He applauded judges like Judge Hellerstein in administering cases and accepting the challenges of handling 10, 000 cases within the traditional litigation system and making our system work. He stated that there are other judges, state and federal, doing the same in our complex litigation courts across the country. Ironically, Judge Hellerstein appeared a proponent of the fund approach, stating that funds do have its place in our legal system, using the original Fund’s success as an example. Sheila Birnbaum will face challenges in administering the new limited fund which is capped and includes more people, but no one finer is up to the task than Ms. Birnbaum, according to both panelists and this author who moderated this panel.

Should you wish to learn more about the claims and litigation filed as a result of September 11, 2001, the recent live broadcast of September 11th, Ten Years Later: Where Are We In the Handling of Mass Claims Within the Legal System? is now available on demand at West LegalEdcenter. If you missed any of the ten programs in the September “Disaster Preparedness and Response” series, each program is now available on demand. West LegalEdcenter, part of Thomson Reuters, has dedicated a landing page specific to this ABA-TIPS series. Click here to view all available programs and have the opportunity to register for this impactful and timely series through a promotional bundle and applicable discounts for TIPS members.

Friday, September 9, 2011

TIPS Chair Randy Aliment Remembers Those Lost on September 11th

 Ten years ago we woke up, readied ourselves for work, and went about our business on a beautiful Tuesday morning. Little did we know that a new kind of war, a 21st century war, would soon begin when foreign terrorists turned four U.S. commercial aircraft into weapons of mass murder and destruction. We knew then, and it has proven true, that things would never again be quite the same. But Americans have demonstrated that we are, as a people and a nation, both strong and resilient. And although we dearly miss, and will never forget, our friends and family who were lost on that fateful September day, we must carry on with our lives in the spirit of their memory. Please take a moment to reflect upon their smiles and laughter, and the good times we shared.

Tuesday, September 6, 2011

Aviation Teleconference Takes Center Stage

We had the pleasure of listening to the first of 10 Teleconferences in commemoration of the 10th Anniversary of September 11th being put on by the American Bar Association’s Tort, Trial & Insurance Section’s Disaster Preparedness and Response Initiative in conjunction with the West LegalEd Center. Today’s panel, focused the audience on where we are today in preparations for aviation disasters. The panel kicked off with Steven Predmore, Vice President & Chief Safety Officer of JetBlue Airways discussing how Jet Blue trains its employees for handling any type of disaster, be it natural or man made. Out of Jet Blue’s approximately 13000 employees, approximately 1200 employees are trained to play some role in disaster response. These employees conduct monthly notification drills, “table top” exercises and a full scale drill every two years, inviting insurers, NTSB officials, FAA officials, outside counsel and airline partners and manufacturers to observe and comment. Because there are so few airline crashes, JetBlue uses other emergencies, such as natural disasters, to stay fresh and current on the drills. Ellyn Slow, Senior Vice President-Risk Manager of NetJets, Inc., discussed the challenges the challenges faced in implementing disaster preparedness programs for corporate clients and the importance of disaster preparedness. Like Jet Blue, NetJets developed a formal emergency response in the aftermath of September 11th. That response included establishing three command centers with dataports, as well as retaining media consultants to train key executives in learning how to prepare for the media frenzy following any disaster. Net Jets has 25 personnel trained on notification teams, as well as 100 personnel trained on family assistance teams, and has retained an NTSB inspector as part of its response team. Like Jet Blue, Net Jets conducts annual full fledged drills involving media consultants, underwriters, etc., as well as table top drills.

Matt Barkett, a PR consultant to the airlines, echoed the theme of emergency preparedness stating it is critical for a PR consultant to be part of the emergency preparedness drill, be it table top drills or otherwise, because communication is so important in a crisis. Mr. Barkett, leader of Dix and Eatton’s Crisis Communications practice, participates in disaster drills with his corporate clients and finds that preparation for a crisis definitely improves your ability to respond should a crisis occur. You do not want to encounter the unexpected in a crisis; you want to have prepared for it. The NTSB limitations on communications to the media was discussed, as well as the fact that should any criminal act be suspected, the NTSB will turn its investigation over to the FBI. Erik Grosof, assistant to the Director of Operations of NTSB, discussed what NTSB has been doing in terms of disaster preparedness since September 11, 2001. According to Mr. Grosof, the relations that NTSB had in place with the airlines before September 11th were definitely helpful in managing the disaster following September 11th. After every accident NTSB investigates, the NTSB calls representatives from that industry together to roundtable what were the causes, what the industry could do better to prevent similar accidents from occurring in the future, etc. NTSB is not regulatory, per Mr. Grosof, “we are here to make it better.” As for drills, Mr. Grosof cautioned that you need to make the mistakes in your drills so you know how to solve those mistakes and move forward, “ Don’t say we had a drill and it was perfect, it’s more effective for disaster preparedness if it wasn’t perfect.” Marc Moller, partner in the law firm of Kreindler & Kreindler LLP spoke of his 40 years of experience in representing the families of airline disasters and commented on the September 11th Victim’s Compensation Fund established by Congress in the aftermath of September 11, 2001.

David Nelson, Assistant Vice President of Global Aerospace, discussed the role of insurance in disaster planning. According to Mr. Nelson, Global Aerospace, which insures a a number of airlines and has substantial claim experience, can assist the airlines in preparing for a disaster in terms of insurance. The biggest challenge companies face in responding to a disaster, Mr. Nelson said, is the lack of an emergency plan in place to do so. Many companies just have no emergency response plan in place at all, and if they do, they do not have an aviation disaster response plan in place. The time to practice an emergency response plan is not during the disaster. We thank our charming and very experienced moderator, Desmond Barry of Condon & Forsyth for a very interesting panel and invite all of you to join us for the nine additional programs in the TIPS Disaster Preparedness and Response Teleconference Series in commemoration of the 10th Anniversary of September 11th by registering here today. The series continues tomorrow and runs daily through September 19, 2011.

Today's the Day - TIPS Disaster Initiative Teleconference Series Starts

Today starts the 10-part Teleconference Series presented by the American Bar Association's Tort Trial & Insurance Practice Section in conjunction with the West LegalEd Center.  This Teleconference Series commemorates the 10th Anniversary of September 11th and focuses on lessons learned in how to prepare for and respond to disasters of all kinds.  The Teleconference series is being featured on the ABA's home page as well.

If you have not registered for the series, you still have time to do so.  Please visit the TIPS Disaster Initiative page or click here.  You can register for the entire series at a discount or individual programs.  There are also discounts for multiple registrants from a single organization.

The first program focuses on aviation disasters and crisis management.  This program starts at 2:00 p.m. EDT today. 

With the various disasters hitting the world today, participating in the TIPS year-long Disaster Initiative is a great way to learn about all aspects of disaster preparedness and response.

Wednesday, August 31, 2011

ABA Members Recall How 9/11 Changed Their Lives and Their Work

This article in the ABA Journal discusses how September 11th changed the lives of various ABA members, a theme that will be recurring over the next several days about people from all walks of life.  Being prepared for disaster and the aftermath of disaster and how government and businesses respond are critical issues.  As the sidebar in the article notes, the ABA TIPS Disaster Initiative will be covering all these issues.  In commemoration of the 10th Anniversary of September 11th, the ABA TIPS Disaster Initiative September Teleconference Series will have 10 teleconferences and webinars on various issues relating to September 11th and disaster preparedness and response.  To register for the Teleconference Series, click here.

Battle Over Disaster Aid Brewing in Congress

The budget and deficit battles in Washington affect government disaster relief.  With all previous disasters this year, FEMA's disaster coffers have been depleted.  To provide federal disaster relief to those who have suffered harm from Hurricane Irene, Congress may have to replenish the disaster funds.  Will they?  How should government respond to natural disasters?  Is federal funding an entitlement?  This article discusses many of these issues.  Should disaster payments for Irene be offset by additional budget cuts?  What do you think?  Comment on this post.

How government responds to disasters of all kinds is the subject of the ABA's Tort Trial and Insurance Practice Section's year-long Disaster Initiative.  The upcoming Teleconference Series (September 6 - 19) will include many government speakers who will discuss government's response to disasters.  To register, click here.  Disaster Initiative programs in Seattle on October 13, 2011, New Orleans on February 3, 2012, Charlotte on May 17, 2012, and Chicago on August 2, 2012, will all have speakers from government discussing disaster preparedness and response from myriad perpectives.  Click here to learn more about TIPS' Disaster Initiative and to register for these programs.

Tuesday, August 30, 2011

The New York Times reported yesterday that the total damage inflicted by Hurricane Irene may reach $7 billion by the time the storm dissipates in the coming days, making 2011 one of the insurance industry's worst years. The most expensive disaster by far was Hurricane Katrina in 2005, which caused $45 billion worth of damage, the second at $23 billion was the September 11, 2001 terrorist attacks on the World Trade Center and Pentagon. The ABA's TIPS Section is presenting a year long Disaster Initiative, starting with 10 teleconferences from September 6-19, 2011 to commemorate September 11, 2001, followed by 4 live programs on the topic of Disaster Preparedness and Response: Seattle (October 13, 2011 - Homeland Security and Cyber Disasters); New Orleans (February 3, 2012 - Disasters Caused by Negligent Acts); Charleston, South Carolina (May 17, 2012 - Disasters Caused by Acts of Nature); and Chicago (August 2, 2012 - Disasters Caused by Foreign and Domestic Acts of Terrorism). Please join us at these events by clicking here.

Predicting the Unpredictable

The challenges of anticipating and responding to disasters were painfully clear in reviewing the events before and during Hurricane Irene.  Everyone knew it was coming, and what the possible threats were, but could only guess at precisely where it would strike and how severe the impact would be.  New York City battened down the hatches, but New Jersey and Vermont took the hardest hits.  Rain and not storm surge turned out to have the most significant impact.  Power outages, road closures and flooding are ongoing.  The question of who will pay for the recovery, and where the money will come from, is unanswered.  These and other issues will be discussed in the ABATIPS teleconference series in September.  For more information about the TIPS Disaster Initiative, please click here.

Monday, August 29, 2011

Punitive Damages Possible in Deepwater Horizon Spill Case

This short article discusses Judge Barbier's recent ruling that punitive damages may be sought for certain claims in the Deepwater Horizon economic damages litigation.  He also dismissed some state law claims that were preempted by federal maritime law.  These and other issues will be discussed at the ABA's mid-year meeting in New Orleans where the Tort, Trial and Insurance Law Section's Task Force on Disaster Preparedness and Response will put on a program focused on disasters caused by negligence.  For more information about the TIPS Disaster Initiative, please click here.

Thursday, August 25, 2011

NY Officials Begin Preparing for Hurricane Irene

Office of Emergency Management Commissioner Joseph F. Bruno is quoted in this article about NYC's preparations for Hurricane Irene.  Commissioner Bruno is one of the speakers at the TIPS Disaster Initiative September Teleconference Series on September 12, from 12:00 noon to 1:30 p.m. EDT, in a live webinar on Disaster Preparedness - Dissater Recovery.  You can sign up for the entire Teleconference Series at a 20% discount.

The TIPS Disaster Preparedness and Response Initiative also will cover preparations for hurricanes and other natural disasters at the TIPS Spring Meeting in Charleston, SC on May 17, 2012.  For more information on the TIPS Disaster Initiative, click here.

Friday, August 19, 2011

Disaster Preparedness and Response Teleconference Series - Update

This updates one of our earlier posts on the TIPS Disaster Initiative September Teleconference Series.  The series starts September 6 and goes through September 19.  You can now save 20% by registering for all 10 Teleconferences.  For TIPS members, the cost for all 10 Teleconferences is $760.  This discount rate also applies to certain other groups as well, including government employees and employees of non-profits.  Click here for details.  This is a fabulous way to obtain a CLE credit from your desk and a great overview of how far we have come in addressing disasters since September 11th.

But there is more good news.  Reduced rates have been established for additional registrants from a single law firm, company, or organization.  The first registrant pays the standard rate (e.g., TIPS members pay $95) and every additional registrant from that same organization pays the reduced registration fee (e.g., the second TIPS member from the same firm pays only $45).  Every individual must register to attend each Teleconference.  Just coordinate within your organization to take advantage of the reduced rates for additional registrants.  Click here for the details on the reduced rates.  Law students pay only $25.


One of the key features of the year-long TIPS Disaster Preparedness and Response initiative is a wonderful series of teleconferences and webinars that will take place in September 2011 as part of TIPS' commemoration of the 10th Anniversary of September 11, 2001.  On this Blog's home page at the bottom right you will find a page that lists in detail information about all 10 teleconferences (it is also hyperlinked to the title of this post).  We have a great line-up of speakers on a wide range of subjects including responses to aviation disasters, how mass disasters have created canine heros (live rescue dogs at this program), an insiders look at how the September 11th tort litigation was handled presented in a live webinar by Judge Hellerstein, the judge who continues to manage much of the World Trade Center litigation, Ken Feinberg, and Sheila Birnbaum, another litigator's look at the World Trade Center litigation in a live webinar featuring the lead counsel for the City and the contractors and one of the lead plaintiffs' lawyers, along with Michael Cardozo, Corporation Counsel for the City of New York, a look at how to prepare for disasters, international approaches to disaster preparedness and response, a look at how insurance policies have changed to respond to disasters since September 11th, how the coverage litigation surrounding the World Trade Center collapse has affected the way insurance contracts are now being completed, the role of directors and officers in disaster preparedness and response, and employment issues that arise when disaster strikes.

These teleconferences and live webinars begin on September 6 and conclude on September 19.  A detailed listing of all teleconferences and live webinars is on the Pages section of his blog.  Information on how to sign up to listen or watch these programs is available on the TIPS Disaster Initiative home page, this Blog, and on the WestLegalCenter page.  To register at a 20% discount package deal for all teleconferences, click here.

This is one of the most comprehensive series of programs covering disaster preparedness and response.  Please join us.

Thursday, August 18, 2011

Podcast: Cyber Security - Terrorism, Crime, and Hostile States

The second in a series of podcasts in the TIPS Disaster Preparedness and Response Initiative features Professor Jeffrey Addicott, the Director and founder of the Center for Law on Terrorism, at St. Mary's University, School of Law, in San Antonio, Texas.  Professor Addicott discusses the emerging trends in the different forms of cyber attacks that our nation may experience.  Professor Addicott will also be a panelist at the TIPS Fall meeting at the Fairmont Olympic Hotel in Seattle Washington on October 13, 2011 as part of a three hour CLE on “Homeland Security 10 Years Later – How Innovation and Technology Have changed  the Approach to Homeless Security Since the 9/11 Attack,” part of TIPS Chair Randy Aliment's  year-long initiative designed to bring disaster awareness to a heightened level.  Click here to listen.

Teleconference - Employment Issues When Disaster Strikes

In the last ten years, emergencies ranging from horrific terrorist attacks to devastating natural disasters have significantly impacted the workplace. What are the employer’s legal responsibilities and liabilities in a disaster? What responsibility does the employer have to employees after the emergency? Continuing pay? Help to the employee and their families? When employees are represented by a Union, what is the employer’s obligation to bargain with the Union representing its employees?

On September 19, 2011, from 2:00 p.m. to 3:30 p.m. EDT, this teleconference, sponored by the TIPS Employment Law Committee, will provide an experts’ view of the myriad of employment issues that occur when disaster strikes, including the questions listed above and more, all of which are critical to the workplace when disaster strikes.  Moderated by Marlene Heyser, Workplace Law Strategies, the expert panel includes Kay Hodge, Partner, Stoneman Chandler & Miller LLP; Sandra R. McCandless, a past TIPS Chair and Partner, SNR Denton US LLP; Horace Thompson, Occupational Safety & Health Review Commission (invited).

This teleconference is part of the ABA Tort Trial & Insurance Practice Section's series of podcasts, teleconferences, and live programs dedicated to Disaster Preparedness and Response. Co-Sponsored by Thomson Reuters, it addresses issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events and by threats to our cyber-security and will confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims and litigation. For more information regarding the TIPS Initiative on Disaster Preparedness & Response, click here.

To register for this teleconference, click here.  Save 20% and register for the complete TIPS September Teleconference Series by clicking here.  For the complete list of teleconferences, click here.

Wednesday, August 17, 2011

Teleconference - September 11, 2001 Terrorist Attacks: Duties of Corporate Directors and Officers in the Preparation and Execution of Disaster Avoidance and Recovery

What are the obligations of corporate directors and officers in evaluating whether companies they serve have reasonable disaster preparedness and recovery plans in place? What are the tasks that need to be undertaken in avoiding catastrophic situations, including property damage, employee injury and death; and what type of plans should be put in place to minimize business interruptions and compensate injured employees and families of employees killed in the line of work? What liabilities do corporate directors and officers face in failing to live up to their obligations and what insurance is available to protect directors and officers from liability?

On September 16, 2011, from 12:00 noon to 1:30 p.m. EDT, the Professional Directors and Officers Liability Committee of TIPS will put on a teleconference answering these questions.  Speakers include, Richard Allyn, Partner, Robins, Kaplan, Miller, & Ciresi L.L.P, whose litigation experience includes include the Northeast Power Outage of 2003 and the World Trade Center collapse, Kevin W. DeVore, Partner, Larson King, LLP, Neil B. Posner, Partner, Much Shelist, and Joe Flach - CEO Safe Harbor Consulting, LLC, formerly, Director, Business Continuity & Emergency Preparedness at  Alaska Airlines.

To register for this teleconference, click here.  To view all of the TIPS September Teleconference Series, click here.  To register at a 20% discount package deal for all teleconferences, click here.

This teleconference is part of the ABA Tort Trial & Insurance Practice Section's series of podcasts, teleconferences, and live programs dedicated to Disaster Preparedness and Response. Co-Sponsored by Thomson Reuters, it addresses issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events and by threats to our cyber-security and will confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims and litigation. For more information regarding the TIPS Initiative on Disaster Preparedness & Response, click here.

Tuesday, August 16, 2011

Video Webinar - International Approaches to Disasters

This Post was prepared by Marshall Turner of Condon & Forsyth LLP.  Before the dust settles and the body count is in, the media finger pointing has already begun and the lawsuits are already being filed to place the blame for the consequences of natural and manmade disasters.  What lessons have the public and private sectors learned from past disasters and how can they better respond the next time around?

A decade after the September 11, 2001 terrorist attacks, on September 13, 2011, from 10:00 a.m. to 11:30 a.m. EDT, the International Law Committee and the Governmental Law Committee of the ABA’s TIPS section will present a live video webinar on international approaches and responses to disasters.  Since 9/11, the United States and most of the industrialized world have expended enormous resources to attempt to protect their citizens from terrorist attacks.  To what extent have these efforts succeeded?  At what cost?  Can they be improved?  Can they be sustained?

These are some of the questions that will be explored by prominent experts and experienced counsel who will provide their “in the trenches insider views” on the essential elements of what public agencies and private companies must do to prepare to address the legal and practical issues that will arise when disaster strikes.  Various countries have taken divergent approaches to protect and compensate their citizens with differing results and at varying cost.  How much are citizens willing to pay for this protection in terms of dollars out of their pockets and sacrifice of their civil liberties?  This webinar will give viewers the opportunity to ask questions and receive real time answers on important subjects such as: What legislation to support; What preparation should your company or client take to mitigate potential casualties and damages; What role does insurance play? How to avoid communication breakdowns; and whatever related issues are important to you.

Michael Balboni (Former New York State Senator was the senior Homeland Security and Law Enforcement official for the State of New York after 9/11and also participated in planning the security for the rebuilding of the World Trade Center) along with James R. Tortorella, Esq. ( Director of AON’s property risk consulting group including Rapid Response) will address these issues on this live video webinar.  They will share their first hand experiences in dealing with the aftermath of the September 11 terrorist attacks; Hurricane Katrina; Japan’s March 2011 earthquake/nuclear crisis; and other disasters.  The moderators will include experienced litigators:   Marshall S. Turner, Partner, Condon & Forsyth LLP, who has been involved in numerous major airline and private aircraft disasters; Shirley Spira, with the Law Offices of Todd M. McCauley, LLC, who was an attorney with the Port Authority of New York and New Jersey Law Department during the September 11, 2001 terrorist attacks; Jill Mariani, Chief Money Laundering and Tax Crimes Unit of the New York County District Attorney’s Office in Manhattan; and Reid Feldman, Partner, Kramer Levin Naftalis & Frankel LLP, and a member of the District of Columbia and Paris (France) Bars with extensive international law experience.

To register for this webinar, click here.

For more information on the entire September Teleconference Series, click here.  For more information on the TIPS Disaster Initiative, click here.  To register at a 20% discount package deal for all teleconferences, click here.

Live Webinar - Disaster Preparedness-Disaster Recovery

Every business and organization can experience a serious incident that can prevent it from continuing its normal operations. This can happen any day at any time. The potential causes are many and varied: flood, explosion, computer malfunction, accident, grievous act---the list is endless. Following a disaster time is of the essence and the ability to think clearly is impaired. To reduce the impact on families, business and communities, a Disaster Plan is essential.  This live webinar, sponsored by the TIPS Toxic Tort and Environmental Law Committee, will take place on September 12, 2011, from 12:00 noon to 1:30 p.m. EDT.  Speakers include, Joseph Bruno, Commissioner of New York City Office of Emergency Management; Alan Winchester, Partner, Harris Beach PLLC; and Andrew Feeney, Director of New York State Office of Emergency Management.  The webinar will be moderated by Cynthia Weiss Antonucci, Chair of the Mass Tort and Industry Wide Litigation and Product Liability Practice Groups Harris Beach PLLC, a firm forced to relocate after being in the Second Tower on September 11, 2001.

To register for this program, click here.  To view all of the September Teleconference Series, click here.  To register at a 20% discount package deal for all teleconferences, click here.

This webinar is part of the ABA Tort Trial & Insurance Practice Section's series of podcasts, teleconferences, and live programs dedicated to Disaster Preparedness and Response. Co-Sponsored by Thomson Reuters, it addresses issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events and by threats to our cyber-security and will confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims and litigation. For more information regarding the TIPS Initiative on Disaster Preparedness & Response please click here.

Monday, August 15, 2011

Live Webinar - The World Trade Center Rescue, Recovery and Clean-Up Mass Litigation

After the collapse of the World Trade Center towers on September 11, 2001, thousands of first responders and construction workers appeared at the site. Within two years, nearly 10,000 plaintiffs initiated suits in individual cases that were eventually venued in the Southern District of New York before Judge Alvin K. Hellerstein. Today, over 95% of the original cases involving the Ground Zero site have been resolved through a complex settlement agreement. Looking back at this disaster and how the litigation process unfolded, what were the lessons learned by the lawyers who were the key litigators in this unique complex case?

On September 9, 2011, at 12:00 noon to 1:30 p.m. EDT, this webinar will bring together James Tyrrell, Managing Partner, New York/New Jersey offices of Patton Boggs, and Lead Defense Liaison Counsel for the City of New York in the First Responder Litigation; Paul Napoli, Senior Partner, Napoli Bern Ripka LLP, and Lead Plaintiff Liaison Counsel for Injured WTC victims; and Michael Cardozo, New York City's Corporation Counsel.  The webinar will be moderated by Stanley Goos, Partner, Harris Beach PLLC, Chair of TIPS Toxic Tort and Environmental Law Committee and defendants' co-liaison counsel for the personal injury claim cases brought by off-site workers after the September 11, 2001 terrorist attacks.  You can register for this Live Webinar by clicking here.  To view the entire September Teleconference Series, click hereTo register at a 20% discount package deal for all teleconferences, click here.

This webinar is part of the ABA Tort Trial & Insurance Practice Section's series of podcasts, teleconferences, and live programs dedicated to Disaster Preparedness and Response. Co-Sponsored by Thomson Reuters, it addresses issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events and by threats to our cyber-security and will confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims and litigation. For more information regarding the TIPS Initiative on Disaster Preparedness & Response click here.

Friday, August 12, 2011

Live Webinar - Ten Years Later: Mass Disaster Spawns Canine Heroes

With the growing number and types of disasters, humans have found that our canine companions have capabilities that we lack and which provide important tools for us in addressing disasters. Canine heroes include scent dogs who work to defend and potentially avoid the disaster, search and rescue dogs who work to find survivors and the remains of loved ones—human and non-human alike—in the immediate aftermath of a disaster, and therapy dogs who provide comfort for victims in recovery. On September 7, 2011, from 1:00 p.m. to 2:30 p.m. EDT, this webinar will bring together the individuals who train and work with these magnificent canine heroes some of whom were present at ground zero when the World Trade Center collapsed to discuss a variety of technical and legal issues.  Register now by clicking here. To register at a 20% discount package deal for all teleconferences, click here.

This webinar is part of the ABA Tort Trial & Insurance Practice Section's series of podcasts, teleconferences, and live programs dedicated to Disaster Preparedness and Response.  Co-Sponsored by Thomson Reuters, it addresses issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events and by threats to our cyber-security and will confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims and litigation. For more information regarding the TIPS Initiative on Disaster Preparedness & Response click here.

Thursday, August 11, 2011

Terrorism Insurance Risk

Guy Carpenter, one of the leading reinsurance intermediaries, has released a comprehensive report on the state of terrorism insurance and reinsurance.  The report states that terrorism insurance remains abundant and that the industry is meeting the demand, along with governmental pools, for the increased terrorist risk.  Nevertheless, the report concludes that the insurance and reinsurance market remains vunerable to a major terrorism loss. 

The TIPS Disaster Preparedness and Response Initiative will be addressing the terrorism risk and the insurance/reinsurance aspects of that risk at the ABA Annual Meeting in Chicago on August 2, 2012.  Please watch for information about that program.  The September Teleconference Series, starting on September 6, has numerous panels on terrorism and the insurance response.  For more information and to register for the Teleconference Series click here.