Michael D. Moberly July 29, 2014 ‘A long form blog where attention span really matters’.
Reputation risk resilience…
Admittedly, I do not know, other than a mere guesstimate, the number of companies which are current in their continuity, contingency, and resilience planning. I suspect, based on numerous conversations with company leadership teams who would presumably have an oversight role insofar as initiating and executing such plans, far fewer companies than today’s increasingly predatorial, competitive, and winner-take-all business (transaction) environment warrant, have current plans, in place.
Too, there is no reason to doubt a significant, but admittedly unknown percentage of the plans which are in place, have merged or morphed into web-based policy and procedure ‘manuals’ awaiting resurrection when a ‘reputation risk’ serpent stalkingly emerges from the murky and interconnected environs associated with global business.
A companies reputation is, generally it’s most valuable (intangible) asset…
As an intangible asset strategist and risk specialist, I strongly believe that continuity, contingency, and resilience planning must extend far beyond company’s IT systems, supply chains, and consumer, customer, client services to include the full spectrum (15+ categories) of intangible assets which most companies now produce, possess, utilize, and/or acquire.
The reason, it should not go unnoticed that today, 80+% of most company’s value, sources of revenue and ‘building blocks’ for growth, profitability, and sustainability globally reside in – evolve directly from intangible assets! Through my lens, that represents a fairly clear (fiduciary) obligation that a company’s key intangibles warrant safeguarding and their value, materiality, and risk consistently monitored.
A beneficial and instructive prelude to company reputation risk resilience…
A beneficial and instructive prelude for any company wishing to achieve the necessary (reputation risk) resilience that’s warranted in today’s go fast, go hard, go global business (transaction) environment begins by acknowledging the range of questions that will inevitably be asked and debated in c-suites, board rooms, among management team members, employees, on social media platforms and possibly within regulatory – oversight bodies, once a significant reputation risk materializes.
Examples of inevitable questions when reputation risk materializes …
The questions below are neither company nor event specific, but nevertheless, they are real and they can be framed in various ways and in various contexts to represent dominant (reputation risk) issues for which answers will be sought and demanded one a reputation risk emerges – materializes, e.g.,
- What is/are the origin(s) of this particular risk?
- Are the ways which the risk is adversely affecting company reputation describable, measurable, monitorable, and trackable?
- Can it be ascertained how-when the risk initially materialized to a level of company consciousness?
- Are there human initiators associated with the risk and if so, are they known?
- Is there any factual basis to the risk insofar as the manner in which it being characterized by any/all facets, and if so, will that influence the risks’ perpetuation for the near (long) term?
- Is the risk tangible insofar as requiring the company to ethically make operational and/or design decisions to the targeted product or service?
- Is the risk measurably gaining in strength, and, if so, how rapidly, why, and are the constituencies distinguishable?
- Is the depth and breadth of the risk, among consumers, stakeholders, investors, etc., subject to objective qualitative – quantitative measurement and monitoring?
- Is there a probability this particular, or simultaneous set of risks will subside on their own volition without an official (company) response or intervention?, wishful thinking doesn’t count.
- Is a formal (company) response and mitigating action required, and ethically and legally being advised?
- Does this particular reputation risk require a specific (nuanced) response or action that will resonate with the affected – complaining parties?, and, if so, can a response be fashioned to de-escalate further adverse rhetoric that exacerbates the (reputation) risk?
No single best strategy…
Experientially, I am hard pressed to suggest there is a single ‘best’ strategy that delivers answers to these (and myriad other) questions to consistently mitigate the asymmetric elements of reputation risk events due in large part o their distinctive origins and often company specific motivation, therefore any presumption there is a ‘one size fits all’ approach is poor strategy.
I do believe however, the most effective foundation to induce a recuperative path to a materialized reputation risk starts with having an…
objective, experienced, forward looking, ‘speak truth to power’, and rapid assessment and response mechanisms in place that fit a variety of scenarios, each with the potential to adversely affect a company’s primary sources of value, revenue, and/or market-sector competitive advantages!
Too, it is here that an intangible asset strategist and risk specialist should be close at hand. After all, effectively preventing or mitigating reputation risk cannot and should not be left exclusively to a counter campaign mounted by a public relations unit which has morphed into reputation risk.
A percentage of company’s that become embroiled in a reputation risk event will find a useful starting point to embarking on a mitigation and recovery strategy, or preferably resolve the risk in its early stages would be well advised to have a clear understanding that their company’s reputation is often comprised of – embedded with multiple and collaborative intangible assets that produce revenue generating competitive advantages which warrant safeguarding.
Not all reputation risks rise to a level of…
Insofar as developing a sound reputation risk resilience plan, it’s necessary to recognize, not all materialized (reputation) risks rise to a level in which life, death, or serious injury to consumers – users will occur, are imminent, or that, for publicly traded firms, stock price and market share will irreversibly decline. Some reputation risk events emerge initially as merely verbal expressions of displeasure regarding a specific company product or service. often on a social media platform. However, one need not look further, and I am not so sure this is a particularly distinctive example when derogatory expressions attributed to the former owner of the NBA’s Los Angeles Clippers’ made toward Clipper players themselves to witness the obvious and initial harm and financial damage which discipated quite rapidly following the teams’ purchase by Steve Balmer. In other words, while the former Clipper owners’ remarks were vile and racist by any standard, there is no particular reason to believe there will be permanency, due in part to the new NBA Commissioners’ prompt and substantial action.
On the other hand, some risk events may appear almost irrelevant insofar as the potential to adversely affect a company’s reputation, at least initially, because initial assessments find no compelling reason to manufacture an immediate response. However objective monitoring of such circumstances, with few exceptions, should always be monitored for a period of time. Absent monitoring, circumstances can quickly escalate by finding a receptive audience and rapidly encompass large blocks of consumers, stakeholders, and social media platforms in ways that indeed cast disfavor and suspicion on a company’s reputation.
Going inside a c-suite, Craig’s List example…
While I have absolutely no firsthand knowledge, I do believe it’s instructive never-the-less, to speculatively examine, in sort of a case study context, the decision that occurred in September, 2010 by Craig’s List and its ‘adult services’ section. Initially my thoughts were, this clearly falls into the proverbial ‘no-brainer’ category, or does it?
Again, I pretend to have no insider perspective on this matter, but I am confident there were numerous meetings/discussions in the months preceding the September, 2010 decision as their ‘adult services section’ was emerging as a genuine reputation risk. I fully suspect, the company’s decision making hierarchy were debating the larger question…’what should we do about our adult services section’, e.g., do we…
- retain the adult services section as is, and try to muscle through the current backlash, law suits, and reputational risks?
- retain the adult services section, but tone it down through monitoring and imposition of less provocative parameters, or
- jettison the entire adult services section immediately, which presumably would remove the accelerant that are influencing the rising levels of reputation risk?
I am confident these and variants of these questions were duly debated among legal counsel, public/media relation providers, reputation risk specialists, and financial advisors each offering their perspectives and prognostications about the outcomes of various courses of action being considered.
The fly on the wall…
Unable to be the proverbial ‘fly on the wall’ to actually witness first hand, these discussions, I’m thinking it’s not rocket science to assume the consensus reached in most of the early meetings, at least up to the September 4th decision to suspend the adult services section, were variously influenced by the economic fact – business reality that Craig’s List adult service section was a consistent revenue generator to the tune, it’s been reported, of $37+ million per year.
Too, I am equally confident that during some of the initial discussions among Craig’s List managerial hierarchy, when the ’what should we do about the adult services section’ question arose, there was at least periodic consensus to ‘ride this risk out’ for as long as was prudent. I presume the speed, depth, and breadth of the adverse reactions to the adult services section issue were being thoughtfully and thoroughly assessed. Of course, if that were true, I would be inclined to interpret it as…
….unless and/or until the adverse public reaction rises to some, perhaps pre-determined level, e.g. 15+ state’s attorney general’s filing civil actions and going public with their admonitions, only then would the remaining option of closing down the adult services section be considered prudent and ultimately executed.
Reputation risk management 101 vs. graduate level…
Should such speculation be reasonably close to correct, which I suspect it is, I would be further inclined to characterize Craig’s List response in the context of ‘no decision is a decision’. Ultimately, the situation Craig’s List soon found themselves in, was, pure and simple, ‘company reputation risk management 101‘ versus a graduate or Ph.D level it could have been.
Reputation risk intelligent company culture…
Of course, we must not overlook the reality that if such (adult) services were not in demand, particularly in a semi-anonymous web-based format, ala Craig’s List, it’s likely, from a business perspective, Craig’s List would have made the decision to discontinue that particular offering at the initial hint of problems (i.e., reputation risk) on the horizon or revenues being generated were insufficient to justify its continuation.
If that were the case, it’s likely Craig’s List could have leveraged their decision (to discontinue their adult services section) in a manner that would allow them to reap strategic accolades from their stakeholders and consumers versus being on the receiving end of civil actions from a growing list of detractors, special interest groups, and politicians. Bad timing on the part of Craig’s List, perhaps, but, it’s a good business reason to invest in a ‘reputation risk intelligent company culture’!
21st century version of a ‘wake up’ call…
Reputation glitches, such as the one Craig’s List experienced, duly represent 21st century versions of ‘wake-up calls’ for management teams, c-suites, and boards to closely and objectively examine and monitor how or whether their company culture is…
- attuned to and observant of reputational risk.
- genuinely reflects the company’s public behavior, and
- consistently meets the expectations of its customers, consumers, stakeholders, and clients?
This post was inspired by a paper produced by Deloitte titled ‘The People Side Of Risk Intelligence: Aligning Talent And Risk Management.
As always, reader comments and perspectives are welcome at firstname.lastname@example.org
Michael D. Moberly July 27, 2014 ‘A long form blog where attention span really matters.’
Value of company reputation…
I suspect there is agreement that no reasonable executive or management team member would question today the value associated with – attached to their company’s reputation, i.e., its image, goodwill, and the relationship capital it has built. Consequently, as born out in numerous studies, surveys, and published papers that address various facets of reputation risk this is a category of intangible asset which has ratcheted up considerably on c-suites attention and ‘to do’ lists.
Reputation is an intangible asset…
Of course, a company’s reputation is one of multiple intangible assets which consistently play increasingly critical roles in company’s ability to achieve their intended revenue, profitability, and sustainability objectives. After all, it is an economic fact that today, 80+% of most company’s value and sources of revenue lie in or evolve directly from intangible assets, which reputation is certainly one.
Once a company’s reputation has become tarnished, undermined, or been the subject of warranted scrutiny, sometimes, regardless of the reason, whether it be successive managerial missteps, one-off process glitches, or patterns of unethical behavior and neglect, returning to some semblance of reputational normalcy will, in most instances, be costly, lengthy, and require a well purposed and enterprise wide effort.
Reputation risk intelligent company culture…
Well purposed initiatives which a company’s management team and board may undertake to return their company to itsprevious or perhaps a higher state of reputational normalcy following the materialization of a reputation risk, despite having thoroughly vetted contingency plans in place, may be for naught, if the groundwork and foundations for a viable ‘reputation risk intelligent company culture’ have been overlooked.
It’s certainly reasonable to assume that increases in respondents’ affirmative admissions in surveys regarding reputation risk have been variously influenced by the very public and often self-inflicted calamities experienced by BP, Massey Energy, Craig’s List, McDonalds’ China, General Motors, and numerous others that have been on the receiving end of stakeholder, consumer, and regulatory agency ire.
Of course we know in some instances, consumer ill-will can be relatively short-lived, that is, a materialized reputation risk simply does not resonate or come to be on broad numbers of consumers’ radar screens. That’s not to suggest a company’s reputation can quickly ‘bounce back’, instead, it’s probably a case where a ‘tipping point’, for whatever reason, has not materialized in the media and/or actions of consumers in sufficient numbers to render it an action item on c-suite agendas.. That said however, one need not look far to see evidence in which consumer ill-will is much longer lived, to the point it rises to irreversible permanence which appears particularly relevant in the consumer products and consumables arena.
Too, for publicly traded companies, materialized reputation risks frequently manifest as downward spikes in stock price which translates to overall losses in company value.
Reputation risk is not limited by industry sector…
The current state of (company) reputational risk is not entirely an expectation of companies that operate in what may classify as high or low risk sectors, i.e., baby foods, drilling in the Gulf of Mexico, or coal mining compared to say graphics arts firms, libraries, or flower shops for example. Nor is it necessarily due to the reality that risk events can expand and exacerbate so rapidly today.
Some companies get what they deserve…
Let there be no doubt, some companies get precisely what they deserve in terms of being on the receiving end of a reputation risk event or act that implodes. That is, if or when there is a clear incident or pattern of knowingly engaging in risky behaviors or giving only lip service to regulatory mandates and risk management oversight, be it on the high seas, a coal mine, a chicken processing plant, or a manufacturer of toothpaste, all reasonable and legal efforts should be mounted against them to make things whole, if that’s possible for the victims and/or complainants.
Reputation risk attributed to the absence of risk intelligent company culture…
Today, in my view, it’s essential to recognize that the materialization of some (types of) reputation risk can be attributed to the absence of a ‘company culture’ that understands…
- the relevance and potential (enterprise wide) adverse and potentially long term impact to a company’s reputation when certain risks materialize, and
- how such risks can reverberate through global media platforms and find resonance (tipping points) among large blocks of consumers and stakeholders.
- this prompts a defense only response path.
Horizontal reputation risk monitoring and assessment…
A company’s reaction to a potential – probable reputation risk, relative to the speed which it can materialize, can be particularly acute for companies which have no advance ‘horizontal monitoring and assessment’ procedures in place to…
- provide timely, regular, and objective insights and updates about where and how a risk emanated and commenced.
- reach internal consensus for executing an effective and appropriately timed response of some type, which I believe is more frequently than not, warranted.
A ‘reputation risk intelligent company culture’ can be an effective and complimentary path that will deliver returns far greater than the alternative!
As always, I welcome readers’ comments and perspectives at email@example.com.
Michael D. Moberly July 26, 2014 ‘A blog where attention span really matters’.
For most companies, there are numerous preludes to reputation risk…
First, let me respectfully suggest that I am hard pressed to identify any company or organization I have engaged in recent years on intangible asset matters, irrespective of industry sector, that I and numerous colleagues could not objectively identify (operationally, transactionally) having numerous requisites - preludes which could potentially manifest as significant and adverse reputation risks if left unacknowledged and unmanaged through neglect rooted in operational unfamiliarity about intangible assets.
The speed which events, acts, and behaviors manifest to become reputation risk…
In most circumstances which I am familiar, the speed which an adverse event, behavior, or act can progress to a reputation risk stage, is speculative at best. But, we can probably agree that most reputation risks are variously dependent on how quickly they are ‘outed’ and find a sympathetic and/or pre-disposed audience where ‘the issue’ resonates and achieves the requisite traction prompting it to rapidly escalate. Of course this is particularly true if such risks manifested in consumer – user death, injury, or adverse health challenges.
Respectfully aside from the above, the speed and trajectory which a particular (reputation) risk may advance is seldom more than a ‘best guesstimate’. In other words, it is dependent on numerous variables and factors, some of which can be favorably mitigated or absorbed, so to speak, while others intensify independently, regardless of the best efforts of risk prevention, mitigation, and management. That said, there is no shortage of company c-suites who naïvely assume that the speed which particular risks evolve to adversely affect a company’s reputation is far longer than what it ultimately is. C-suites would be well advised to recognize there is no conclusive evidence to suggest there are term (time) limits in which some categories-types of reputation risk can materialize and rightfully exacerbate, just ask General Motors.
Reputation risks’ rear view mirror perspective…
Engaging in a quick scan of public domain articles published in business and academic journals, blogs, government agency oversight reports, and other open source media, one quickly sees there is no shortage of media that are purposed to draw attention to the adverse affects associated with materialized reputation risks, albeit with the benefit of a rear view mirror context.
Identifying and assessing reputation risks in a rear view mirror perspective, is not particularly challenging, as readers know. What I often find missing in such ‘monday morning analysis’ however, are assessments of a company’s desire or ability to distinguish the myriad of acts, behaviors, verbal miscues, or process oversights, etc., which…
- can achieve the requisite traction, external appeal, and media attention to become full blown reputation risks, and
- produce quick near and long term adverse effects to the victim company’s economics, competitive advantages, image, goodwill, and of course, reputation.
Too, I find there is no particular challenge to engage in a reverse investigation to reveal reputation risk points of origin and rationales why they intensified.
Realistically, are there any events, acts, or behaviors today which can’t plausibly manifest as reputation risk…?
In discussions with numerous senior executives across industry sectors regarding reputation risk, two routinely raised perspectives that are often framed with an air of rhetorical and contemptuous pessimism are,
- ‘…it’s difficult to think of any event, act, or behavior, either intentional or inadvertent, discounting legitimate ‘whistleblowers, that exist in today’s increasingly competitive, predatorial, and gotcha business environment, which do not carry the potential to materialize as reputation risks so long as there are purposed, sympathetic, and righteous mediums willing to instantaneously disseminate and dramatize its significance’.
- ‘…there preconceived agendas and/or motives embedded in open source – social media reporting of business risks which companies have knowingly elected to undertake and assume, but, once a risk materializes, it can simultaneously and adversely affect a company’s economics’, competitive advantages, market share and overall market space presence?
With respect to either of the above I am hard pressed to recall any management team member or executive who doesn’t, in their own nuanced words, respond affirmatively to one or both perspectives.
We just didn’t see it coming, that won’t happen to us…
These are two common refrains I and others routinely hear of which one thing is certain, anecdotally at least, there is ample evidence that numerous potential reputation risk events have been dismissed or overlooked by companies with the time honored, but rear view mirror declaration, ‘we just didn’t see it coming’.
Examining the phenomena of reputation risk through the lens of senior company executives, I sense, as an intangible asset strategist and risk specialist, there is substance to this perspective that’s worthy of study. Certainly, I am not advocating senior executives should adopt a passive or dismissive perspective toward reputation risks that merely meet some subjective criteria for being a potential (reputation) risk.
I do hold the view however, that in numerous instances when reputation risks have materialized, there is absolutely no surprise and are generally self-evident, especially since effective counsel on such matters is readily available.
Wisely though, risks that adversely affect a company’s reputation warrant much more study, because, among other things, it’s certainly no secret that the foundations for reputation risks to emerge and materialize into the public domain are often laid well in advance, perhaps even years of less than optimal stewardship, oversight, and management of specific intangible assets, particularly, intellectual, structural, and relationship capital.
As always, your perspectives and comments are most welcome at firstname.lastname@example.org.
Michael D. Moberly July 21, 2014 ‘A blog where attention span really matters’!
The intent of this post is certainly not to suggest there should be a greater sense of dismissiveness directed toward the various origins, motives, or consequences to materialized reputation risks, which companies and organizations with unfortunate and often times unnecessary frequency, encounter and ultimately are compelled to address.
What is reputation risk…
Responsibility for materialized reputation risk events is frequently and variously attributed to unfettered and barrier free entry to social media and/or blog platforms by agenda driven individuals or groups to communicate adverse views about what a company (a.) may have done, (b.) intends to do, or (c.) continues to do. This includes acts such as the use/application of products or services with known design or operational flaws or substandard contents in which there is public consumption, as well as litanies of other forms of neglect or indifference to potential adverse affects which any of the aforementioned can have on reputation.
An internationally respected colleague, Dr. Nir Kossovsky, characterizes (a company’s) reputation, and I agree, as equating with client and/or consumer expectation.
Logically, I would assume, corporate c-suites globally, have no argument with Dr. Kossovsky’s characterization because I routinely observe them stressing the importance which they and their company attach to accommodating and sustaining customer-consumer expectations and goodwill which leads me to draw several, albeit subjective, conclusions, i.e., there…
- There is a rather obvious disconnect between c-suites’ often robust and eloquent treatment of the necessity to meet or exceed customer expectations when those expectations and trust are sullied by a lack of consistent oversight.
- There is frequent and awkward ineptness demonstrated by company some c-suites when they endeavor to mitigate reputation risks which have become public.
- There are, what reasonable consumers would likely regard as genuine reputation breaches when a corporate c-suite is operating on either misplaced guidance or assumptions that the act or omission underlying the materialization of a reputation risk event must rise to some preconceived (ill-conceived) metric as a requisite to public and apologetically toned acknowledgment.
- If there is such a metric, aside from legal (liability) or insurance rationales, it may well be that the adverse event is resonating in a manner that leaves decision makers with no further ‘cover’ options.
- Presumably, some c-suites believe they have achieved a level of reputation risk awareness and countermeasure sophistication to effectively thwart prospective or even some materialized risks in that they can be localized or compartmentalized to sufficiently avoid or mitigate any far reaching adverse affects.
- So, should the above conclusions approach reality, which I believe they do, a final conclusion may well be that c-suites’ find safeguarding their company’s reputation to be a particularly troublesome category/type of risk to consistently sustain and effectively address, regardless of the origin or reason for a reputation risk to have materialized.
- Ultimately, I suspect that there are numerous c-suites have arrived at a point (in the context of business and economic globalization) in which manifestations of reputation risk appear indistinguishable insofar as those which can – will transcend a company’s headquarters to adversely affect their entire global presence?
Again, it may be little wonder then why reputation risk is often characterized as being the most difficult and challenging type/category of risk to manage!
As always, I welcome your comments.
Michael D. Moberly July 14, 2014 ‘A long form blog where attention span really matters’.
A not-so-hypothetical circumstance…
The following represents a not-so-hypothetical circumstance which I’m confident many readers have encountered. For me, as an intangible asset strategist and risk specialist, it represents one of the more consistent and disconcerting challenges insofar as safeguarding intangible assets, for which I have no one-size-fits-all answer. The hypothetical begins this way. I have been invited by Company A’s management team to conduct intangible asset awareness training and assess their intangible assets.
During the early stages of the engagement, it quickly becomes apparent that Company A has developed and utilizes company centric proprietary intellectual capital (know how) that delivers efficiencies and market – sector competitive advantages. However, as the engagement proceeds, it becomes even more apparent that the firms’ management team lacks sufficient operational familiarity with those and other particularly valuable intangible assets they have produced in terms of identifying, unraveling, assessing, distinguishing, utilizing, exploiting, and safeguarding, etc.
With respect to each of the latter, the company’s failure to recognize the contributory value, sources of revenue, and competitive advantages their specialized proprietary intellectual capital (intangible assets) are delivering represents an obvious breakdown in asset stewardship, oversight, and management. Fortunately, it is a breakdown that not only must, but usually can be remedied providing the value and functionality (life) cycle of the asset or assets remain relevant and durable.
In defense of management teams…
I should say in defense of management teams’ absence of operational familiarity with (their firms’) intangible assets, such circumstances, unfortunately, are relatively common. That is, countless companies globally have deeply embedded, in their routine business operations and processes, a myriad of intellectual, structural, and relationship capital and other forms of intangible assets which frequently, for lack of a better explanation, are taken for granted and therefore remain unacknowledged, undervalued, and thus, at risk.
So, the maximum contributory value, competitive advantages, and efficiencies these assets could deliver may remain un-exploited, if not idle, throughout their potential functionality – value cycle. Importantly, under such circumstances, a company may never fully recognize the economic or competitive advantage benefits. An especially unfortunate element to this hypothetical is that a company management team may have no perspective for the importance or necessity to preserve (safeguard) the contributory value and competitive advantages the asset are delivering, and which the company has likely, but unknowingly, grown dependent.
Ex post facto trade secrecy requisites…
So, one important question is, can, or should this company’s proprietary intellectual capital as portrayed here, be cast (ex post facto) as trade secrets? This of course, representing one strategy to help remedy the situation? More specifically, can these intangibles meet the six requisites of trade secrecy (ex post facto) when in fact, the proprietary intellectual capital has not previously been recognized nor treated in a manner consistent with those criteria? Nor are any procedures/practices in place to safeguard, i.e., preserve control, use, ownership, and monitor value, materiality and risk to those assets, i.e., infringement, theft, and/or compromise? Admittedly, I am doubtful.
A second, and equally important question is that if, not when, this particular proprietary intellectual capital is stolen, copied, or otherwise compromised, absent having any specific (trade secret requisites) safeguards in place, does Company A have grounds to mount a viable legal recourse in terms of seeking damages, assuming of course, the firm becomes sufficiently aware in a timely fashion that such adverse acts, i.e., the loss, theft, and/or compromise, have actually occurred?
The patent statute…
As articulated by Scott Hampton, Hampton IP and Economics, USC 35, 284, often referred to as the ‘patent statute’, states that patent infringement damages should be in an amount adequate to compensate the patent holder for the defendant’s infringement of the patent-at-issue. But, in this hypothetical, Company A, the developer of the intangible assets, but previously unacknowledged user, has neither filed or been issued a patent, so this prospective remedy strategy seems, at best, very shaky, if not irrelevant.
Given my predilection that risks, i.e., theft, misappropriation, compromise, etc., to most intellectual capital assets will materialize with litigation promoted as the relevant strategy to try to regain control and use of the assets, plaintiffs will routinely endeavor to make a determination, usually early, as a element of the pre-litigation process, whether to seek lost profit – competitive advantage damages, or limit the remedies they are seeking to a reasonable royalty? Again, its doubtful either are viable strategies for this particular hypothetical, but nevertheless, worth exploring.
Most companies do not go down the conventional intellectual property path…
It’s useful to recall at this point that today, globally speaking, it is an economic fact that 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability either lie in – evolve directly from intangible assets of which conventional intellectual properties are merely one type or category of intangible asset. However, a reasonably high, but realistically unknown percentage of companies with developed intellectual and structural capital assets presumably and purposefully opt out of the conventional intellectual property (patent) path due in large part no doubt to the expense.
So, the intent of this post is to bring clarity to the initial dilemma (question) in Company A’s hypothetical, that is, with its contributory value and efficiency – competitive advantage delivering intangible assets, can it be realistically be positioned (ex post facto) to legally seek monetary damages if key proprietary intellectual capital – structural were to be stolen or compromised when conventional intellectual properties, i.e., patents or trade secrets were not in place from the outset?
Panduit Corporation v. Stahlin Brothers Fibre Works, Inc.
Hampton points out, as we know, there is no single method for calculating lost (profit) damages, but the most common is a four-part test first recognized in 1978 in case of Panduit Corporation v. Stahlin Brothers Fibre Works, Inc. According to the Panduit test, says Hampton, to obtain damages, the profit, in our Company A hypothetical, a real patent owner must prove…
- a demand exists for the (patented) product or presumably process, i.e., intellectual and structural capital.
- there is an absence of acceptable (non-infringing) substitutes in the current market space.
- there is sufficient manufacturing and marketing capacity to exploit that demand, and
- with some reasonable precision, the amount of profit Company A would have made, had the adverse act not occurred.
Hampton also points out there are other means of proving lost profit damages in addition to the above Panduit test, such as measuring increases in the cost of product inputs. Is it feasible then, for Company A to plausibly characterize the latter as costs related to the development (internally) or acquisition (externally) of other suitable (replacement) intellectual capital for that which had been misappropriated – comprised?
Please consider the following as a respectful call to action! That is, for companies operating in the increasingly and irreversibly competitive and predatorial knowledge-based global economy where growing percentages of most company’s value, revenue, profitability, and sustainability are inextricably linked to the use and exploitation of their intangible assets, i.e., intellectual, relationship, and structural capital, most all of which are quite vulnerable when effective processes – procedures are not in place, i.e., (a.) to sustain – preserve asset control, use, ownership, value, and monitor their materiality and risk, and (b.) for asset stewardship, oversight, and management,
A special thanks to Scott Hampton, Hampton IP and Economics for the inspiration for this post at http://hamptonip.com
As always, reader comments are most welcome.
Michael D. Moberly July 12, 2014 ‘A long form blog where attention span really matters’.
Economic Espionage Act of 1996…
I have been consistently engaged in studying, conducting investigative research, publishing, and consulting on a variety of ‘open source’ matters related to economic espionage beginning well in advance of the passage of the Economic Espionage Act in 1996. Admittedly, while my interest in economic espionage issues are broad based, having served fulltime in academia for 20+ years, much of my interest has been directed toward the targeting and victimization of university-based research and corporate-university research alliances by insiders, competitor intelligence, data miners, information brokers, and foreign (independent and state-corporate sponsored) entities, and now ‘legacy free players’.
A distinctive aspect of my work in this arena is that I began to characterize these entities as ‘economic and competitive advantage adversaries’ as a more relevant descriptor of…
- the variants of economic espionage that exist today
- the range of domestic and international parties engaged.
Admittedly, this descriptor reaches beyond the definitions (precise requisites) codified in the federal Economic Espionage Act (18 U.S.C. § 1831-1839) statute. Doing otherwise, in my judgment, is limiting, and does not begin to convey the currency, depth, and breadth of this persistent and extraordinarily predatorial risk.
Capturing diversity and methodology of global players…
Too, I believe the phrase ‘economic and competitive advantage adversaries’ better captures the diversity of global players in terms of what and why particular assets are targeted, adversary’s motivations, as well as a testament to the ‘layered methodologies’ which are challenging to unravel with respect to those actually engaged in the acquisition initiative and the ultimate and/or primary (end) beneficiary of the acquisition.
My intent for re-phrasing the time honored (economic espionage) language are that it…
- brings greater relevance to businesses and companies and elevates their recognition that the theft or acquisition of their proprietary information, ala trade secrets, has many more dimensions and facets today compared to when the EEA became Federal law in October, 1996.
- indicates the targets are not exclusively national security and/or defense related.
Ultra sophisticated data mining…
The product, i.e., intangible asset acquisition, analysis, and insight, etc., capable of being delivered to an end user(s) through the application of sophisticated and frequently ‘off the shelf’ data mining technologies by economic and competitive advantage adversaries today is phenomenal by any standard or metric.
Determining who the ultimate end user or beneficiary is…?
Of the countless global entities, independent operators, and legacy free players engaged in some aspect of business, competitive intelligence, and/or information brokering today whether it be legitimate or illegal, believe me, it’s not necessarily a simple task to identify precisely who the real end user (beneficiary) of the work product will be or actually is.
Absent knowing who the real beneficiary of any misappropriated – stolen information-based intangible assets is, understanding how such assets will (can) be used or applied, once acquired and delivered, particularly if there are dual-use features involved, is useful. Still it remains challenging to objectively quantify, in dollar terms, the adverse economic, including competitive advantage, reputation, market share, etc., consequences attributed to any single event or collective loss.
Economic and competitive advantage adversaries…
I do believe reframing conventional economic espionage activities in a context of ‘economic and competitive advantage adversaries’ has substantially greater relevance in today’s increasingly competitive, aggressive, predatorial, and winner-take-all global business transaction, R&D, and new product launch environments.
Too, as the global economies’ become increasingly intertwined, yet overwhelmingly dominated by highly valuable intangible assets, particularly intellectual, structural, and relationship capital, achieving most any economic and/or competitive advantage is all but sure to outweigh the relatively minimal risk associated with most targeting and intelligence collection-acquisition initiatives. In other words, it has become obvious to me and I’m sure others as well, that the significant potential benefits of securing an economic and/or competitive advantage in a specific market or industry sector exceeds, intellectually at least, most costs and/or risks.
To anyone paying more than passing attention to economic (cyber) espionage today, they should recognize the adverse activities described above, as evolving from primarily targeting defense and national security projects to an unrelenting, costly, and inevitable risk for most any (public-private) commercial entity, regardless of size or industry sector, in which valuable intangible assets are being produced and applied. It is the intellectual, structural, and relationship capital which have become the globally universal forms of currency, often with company and/or country specific application and relevance.
Extrapolating costs of economic espionage…
As for extrapolating the costs – losses of economic espionage (acts of economic and competitive advantage adversaries) to a single company or to an individual country’s economy, either as a whole or to a specific industry sector, such analysis comes with a host of challenges, not the least of which is the often subjective nature of the calculations which, it’s not unrealistic to assume, are embedded with various corporate, government, policy, and political agendas.
Interestingly, in the 25+ years that I, and numerous others, many of whom have become colleagues, have been examining and consulting in the economic espionage arena, there is little that I can readily point to insofar as objective methodologies to measure…
- the specific damages and/or costs to a targeted/victim company.
- how to specifically attribute –differentiate the source of those losses to acts of economic espionage, and then
- extrapolate that data to either the U.S. or other country’s economy as a whole.
….aside from using the ‘contributory value’ approach.
Go fast, go hard, go global…
For example, the full range of economic – competitive advantage repercussions from a single incident/act of ‘economic espionage’ is challenging to fully grasp, in part due, I suggest, to the go fast, go hard, go global business transaction environment which most businesses now routinely function and the multitude of valuable intangible assets being produced.
Exacerbating this phenomena is the reality that a company’s awareness of trade secret – intangible asset theft or compromise seldom, in my experience, emerges immediately. Thus, its adverse economic – competitive advantage consequences to the victim company can only be objectively calculated if the consequences can be specifically attributable to an economic – competitive advantage event and should be done so in both strategic (long term) and near term contexts.
My rationale is that a single (stolen, misappropriated, compromised) trade secret and/or proprietary information (intangible asset) frequently involves multiple iterations and combinations of intellectual and structural capital being embedded which, in a strategic context, may be applicable to variety of products and/or services in different industry sectors.
It’s worth reminding readers of the globally universal economic fact, that today, 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, competitive advantage, and sustainability lie in – evolved directly from intangible assets.
I am not suggesting that the loss, theft, or compromise of a single trade secret or intangible asset is immeasurable. Rather, I am suggesting that measuring the real economic loss to a company must include objective near and long term calculations which can only come, in my view, from recognizing that trade secrets (proprietary know how) can readily become embedded with not just one, but numerous (proprietary) intangible assets.
As always, your comments are appreciated at email@example.com
Michael D. Moberly July 11, 2014 ‘A long form blog where attention span really matters’!
Know what you don’t know about intangible assets…
So, how is Michael Roberto’s book ‘Know What You Don’t Know, How Great Leaders Prevent Problems, Before They Happen’, relevant to intangible assets? While, I dislike having to make such an admission, there is this lingering that still, a probably significant, but actually unknown percentage of business management teams and c-suites, etc., remain operationally and financially unfamiliar with their firms intangible assets.
As an intangible asset strategist and risk specialist, the obvious theme of Dr. Roberto’s book, i.e., its title, translates very well with one of my themes’ expressed consistently throughout this blog, that is, elevating intangible asset awareness among company c-suite’s and management teams and putting a company’s intangible assets to work as tools to elevate and sustain a company’s value, create new streams of revenue, and fortify competitive advantage. In other words, prevent problems before they occur.
The initial path to ‘preventing problems before they occur’ begins by encouraging business policy and decision makers to genuinely engage, and let’s be clear on this, the economic fact that 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability today lie in or directly evolve from intangible assets!
From problem solving to problem finding…
In Chapter 1 of Roberto’s book for example, appropriately titled by the way, ‘from problem solving to problem finding’ the author commences with a very relevant quote from G.K. Chesterton which I take the liberty of paraphrasing somewhat, i.e., ‘it isn’t that management teams can’t see the solution, rather it’s that they often can’t see the problem’. The problem not seen, in my view, resides in overlooking and/or dismissing intangible assets as comprising the real sources of most company value, revenue, and competitive advantage as noted above.
The author (Roberto) makes many other introspective points, which I genuinely believe translate as strikingly relevant paths for not merely elevating management team awareness and operational familiarity with intangible assets, but also, for intangibles to become routine discussion – action items on c-suite and management team meeting agendas.
To pursue this example further, I am confident that numerous company management teams would agree, there are benefits to occasionally reversing conventional thinking, i.e., from problem solving to problem finding! By this I mean, for a substantial percentage of companies globally, the intangible assets their businesses routinely produce, frequently become embedded in various operations and transactions, but remain unrecognized, undistinguished, and otherwise not exploited to the level possible.
So, put another way, in a global business environment in which such substantial and irreversible percentages of business growth, competitive advantages, value, sources of revenue, and transactions, in general are essentially being underwritten with parties’ intangible assets, too me, this signals a significant ‘business problem’ if senior members of a company’s management team remain operationally and financially unfamiliar with the intangibles in play, and leave them unrecognized and undistinguished insofar as their contributory role and/or value are concerned.
Simply stated, this is no longer an arguable point and its resolution merely requires recognition of intangibles. For me, this constitutes a reasonable and certainly valid motivator for management teams and c-suites, whose companies may be experiencing challenges, to shift from problem solving to problem finding. Problem finding may well lie in the absence of or poorly executed practices for…
- sustaining control, use, ownership, and monitoring intangible assets’ value, materiality, and risk
- enhancing a company’s value, sources of revenue, market share, reputation, brand, and competitive advantages, and
- mitigating risks intangible assets.
More specifically, exhibiting disregard of, or dismissiveness toward a company’s intangible assets, particularly those with most companies routinely produce can be and often is ‘the’ problem’ and its resolution is straightforward as described here in numerous posts under the category of ‘training’..
To continue though, as readers know, a time honored starting point for solving most problems is conventionally speaking, recognizing a problem exists and/or risk has materialized with ‘problem finding’ coming through management teams’ introspection that preferably follows. So, ‘taking a page’ from Roberto’s book, one strategy for remedying high value problems companies experience, should commence by finding/identifying the intangible assets in play.
In the context of‘ ’knowing what you don’t know and how great leaders can prevent problems for they happen’ means adding personal characteristics of anthropology and ethnography to one’s managerial repertoire.
For example, in the context of this blog, being an ethnographer would encompass identifying and observing a firms’ producers – developers of intangible assets on the proverbial shop floor, i.e., in their natural settings, wherever that may be. In other words, ‘finding the problem’ means avoiding simply asking employees how things are going, or relying on survey data or focus groups as the dominant or sole methods for acquiring insight, i.e., problem finding. Instead, management teams should actually ‘watch what employees do, in the same manner as an anthropologist. That is, engage and observe how employees, customers, clients, and suppliers, etc., actually behave and interact.
This leads not only to ‘problem finding’ but more importantly recognition and appreciation for the intellectual, structural, and relationship capital (intangible assets) that are woven into each.
By conducting such observations through an anthropological and ethnographic lens, management teams can become more effective and confident ‘problem identifiers’, in large part because they have become more adept at distinguishing – analyzing the contributory role and value of their firms’ intangible assets absent subjective, misleading, or over analyzed data that sometimes leads to biases and misconceptions.
Too, by making observations through these distinctive lens, management team members are better positioned to not just identify what and how intangible assets are being used, but, if they are being used effectively, and which, if any, intangible assets need to be developed or acquired and ultimately integrated to make those processes better.
This post was inspired by Michael A. Roberto’s book ‘Know What You Don’t Know…How Great Leaders Prevent Problems Before They Happen’, Wharton School Publishing, 2009.
I always welcome your inquiry at 314-440-3593 or firstname.lastname@example.org.
Michael D. Moberly July 9, 2014 ‘A long form blog where attention really span matters’.
Being an intangible asset strategist and risk specialist, my experiences in many company conference rooms over the past 25+ years, among other things, is that the proverbial 900 pound economic – competitive advantage ‘intangible asset’ elephant is always present, but, in most instances, goes unnoticed, unattended, under-used, under-protected, under-valued, and not clearly defined.
This makes it both frustrating and challenging to persuade c-suites, management teams, and boards about the importance of acknowledging, engaging, and exploiting their intangible assets in ways to elevate company value and create new-additional sources of revenue, sustainability, and competitiveadvantages.
Several of my colleagues have written very good pieces in which they variously compared the 2011 film Moneyball to bringing change in business operational attitudes, particularly toward intangible assets. Of course, as my colleagues eluded to in their respective pieces, and I as well, attempting to execute change, regardless of the environment, i.e., business, institutional, organizational, etc., is routinely met with various levels of resistance, hesitancy, and reluctance, and of course, ‘second guessing’.
That is, endeavoring to change ‘the way things have always been done’, i.e., established past practice, is all but sure to experience at least some resistance because those charged with carrying out what ever changes are being contemplated or advised frequently believe – argue past practice has worked fine! So, as the adage goes, ‘if it’s not broken, why try to fix it’? And here is where there are numerous commonalities and/or comparisons to the dialogue in the film ‘Moneyball’.
I suspect there are an abundance of management team members and c-suites who believe that occasionally change, away from past practice, is, simply stated, necessary, and should be executed. One need not look far to see very public examples wherein change has produced extraordinary positives and, to be accurate, the occasional ‘sanfu’ as well.
I can think of few exchanges that characterize the intricacies of change so well as dialogue in the film ‘Moneyball’, in which Oakland A’s General Manager Billy Beane, played by Brad Pitt, and Peter Brand, Mr. Beane’s advisor and confidant, played by Jonah Hill, and the entire cadre of A’s player scouts and development staff are engaged in a discussion ostensibly regarding t the team’s player draft picks for the upcoming 2002 season.
The scene I am describing occurs in a conference room at the Oakland A’s stadium following their highly successful 2001 season. However, several star players from the 2002 season, including Jason Giambi and Johnny Damon are no longer with the team having accepted lucrative free agent offers from two rival teams.
In this scene, seated at a long table are GM, Billy Beane, Peter Brand, and seven Oakland A’s scouts whose time honored responsibilities include finding, assessing, and developing new (prospective) professional baseball players. Mr. Beane commences the meeting by expressing frustration, prompted in large part by counsel from his newly hired advisor, Peter Brand which questions the conventionality of the time honored methods baseball scouts apply to assessing and developing new talent.
‘We are going to be doing things differently’…
- Mr. Beane: We’re trying to solve a problem here, but you (referring to the scouts and player development staff seated at the table) are trying to solve the problem as you still see it, which is the same way MLB (Major League Baseball) has approached it for the past 120 years, that is, by finding ballplayers to replace ballplayers! You want to find players to replace star player Jason Giambi and Johnny Damon, but, both are gone, their history!
- Head scout: I think we all know what the problem is Billy. There is a lot of experience in this room and you need to let us do our job of replacing two key players who have been hired by other teams, Jason Giambi and Johnny Damon.
- Mr. Beane: But, you are not looking at the real problem!
- Head scout: No, we are very aware of the problem!
- Mr. Beane: OK, so what’s the problem?
- Head scout: We have to replace two star players.
- Mr. Beane: NO! The problem we are trying to solve here is that you scouts are sitting around talking the same old ‘body’ non-sense, like you’re selling blue jeans and looking for another Fabio! We’ve got to think differently about how we find and assess prospective ballplayers, assemble a team, and put a team on the field for 161 games each season.
- Head scout: This all sounds like fortune cookie wisdom to me.
- Mr. Beane: NO! It’s just logic!
- Mr. Beane: There is epidemic failure in the game of professional baseball. Baseball is medieval. Baseball teams are asking the wrong questions because they don’t understand what must really happen on a baseball field to win. This misunderstanding leads the people who run MLB teams to misjudge their players. People who run ball clubs think in terms of buying players!
- Mr. Beane: Our goal here should not be to buy players, instead, our goal should be to buy wins, and in order to buy wins a team needs to buy runs! So, what I see here is an imperfect understanding of where runs come from or how runs are generated!
- Head Scout: But baseball is not just about numbers, Billy. Google boy here (a disparaging reference to Peter Brand) just doesn’t know what we know. He doesn’t have our experience, or our intuition. These are ‘intangibles’ that only baseball people like us, who truly know the game understand. You are simply discounting what baseball scouts and player development staff have done for the past 120 years. So, we don’t care what you think Billy, because MLB thinks the way we think with our evaluative experience and our intuition. This is not a game about statistics, it’s a game about people!
- Mr. Beane: We will find value in players which no one else sees! Good players are routinely overlooked or dismissed for a variety of biased reasons, mostly because this is the way we’ve always done it! Are there really other players out there like Giambi and Damon? NO! So, what we can do is recreate Giambi and Damon in the aggregate!
- Head scout: Yes, but will they get on base?
- Mr. Beane: Do I really care how a ballplayer gets on base, whether it’s by a hit or a walk? On-base percentage is what we’re looking for now! This is the new direction of the Oakland A’s. We are now card counters!
- Mr. Beane: The truth is, we can find 25 winning players because everyone else in baseball under values them. So, if we approach the game the same way it’s been done for the past 120 years, then, we will lose on the field! MLB teams must adapt or die!
- Mr. Beane: It’s a process…it’s a process…it’s a process!
Changing the status quo…
So, not unlike Billy Beane’s and Peter Brand’s desire to change ‘the way things have always been done’, intangible asset strategists and risk specialists are equally committed. The changes we wish to bring are to the time honored ways company management teams function, develop and launch new product and services and engage in and execute (global) transactions.
Of course, achieving this must be a bit more respectful that Billy Beane’s approach, but just as persuasively articulated through compelling and objective ’upside’ evidence that recognizing, developing, exploiting, and safeguarding intangibles will deliver returns, competitive advantages, growth, depth, and sustainability to a company.
In the case of intangible assets, the changes I advocate are rooted in the irreversible and global economic fact that 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability lie in – evolve directly from intangible assets! (Brookings Institution, Intangibles Project).
In other words, it’s simply no longer business as usual, regardless of management teams’ wishes or their dedication to past practice. This is what Oakland A’s manager Billy Beane and his advisor Peter Brand recognized well before any other MLB teams’ did, that is, there are different and more effective ways, that is to focus on buying wins by buying players who ‘get on base’, not just buying players with extraordinarily costly contracts.
So, be it a MLB team or a private sector business and regardless of size, sector, or revenue, each must adapt to new economic facts and operational realities, or be prepared to become a casualty that encompasses dwindling returns, reduced market space presence and competitiveness, high turnover, and perhaps most damaging of all, the permanent loss and/or undermining of a company’s most valuable assets, its intangibles!
Of course, this requires the managerial fortitude and vision to seek and acquire new understanding where (company) value and revenue originate and skill sets and metrics to safeguard those assets and monitor their value, materiality and risk. So, today, and for the foreseeable future, profitability, growth, and sustainability are irreversibly linked to developing, assessing, and sustaining control, use, ownership and monitoring intangible assets’ contributory value!
As always, your comments are most welcome at email@example.com
Michael D. Moberly July 8, 2014 Pre-order a new book by Mike Moberly!
Knowledge is power…
“Knowledge is power”, a statement attributed to Sir Francis Bacon in the 17th century which translates well to the present 21st century where we find there is no other arena of economic and social relations, in which Bacon’s statement comes to fruition as intangible assets, i.e., intellectual, structural, and relationship capital dominate business economies globally with most company operations and transactions are dependent upon the creation, utilization, and conversion of intangible assets, which, not so coincidentally, serve as foundations for most company’s value and sources of revenue.
One challenge to the intangible asset dominated business environment however, is company’s ability to sustain control, use, ownership, and monitor the value, materiality, as well as mitigating risks to those intangible assets throughout their contributory value and functionality cycles. Thus, the management, oversight, and stewardship of intangibles is rapidly becoming a skill set requisites.
After all, unlike patents, trademarks, and copyrights, there is no certificate issued by any government that states these are your intangible assets. Instead, responsibility for identifying, unraveling, assessing, safeguarding, managing and exploiting a company’s intangible assets lie solely with company management teams.
Too, recognition and monetization of intangible (non-physical) assets has changed conventional business practices globally, which, for hundreds of years, evolved exclusively around the production and utilization of tangible or physical assets
There are three very clear features of 21st century global business transactions…
- We are only in the early stages of the irreversible economic fact that 80+%, of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability, either lie in or evolve directly from intangible assets.
- Intangible assets are playing critical – essential roles in most company’s value, profitability, growth potential, competitive advantages, and long term sustainability.
- In today’s globally intertwined business transaction environments dominated by intangible assets, it’s inevitable that intangible assets will be simultaneously in play and at risk.
My new book is particularly applicable to the time constrained reader…
For time constrained readers, to maximize my book’s benefits, I have designed each chapter to deliver numerous multipliers to respectfully bring graduated operational clarity to the stewardship, oversight, and management of intangible assets. For starters, this includes…
- treating the management of intangible assets as business decisions and fiduciary responsibilities, not solely as legal or accounting processes.
- structuring business transactions to mitigate the inevitable asset risks which, when materialized can (a.) entangle intangible assets in costly and time consuming legal disputes and challenges, (b.) disrupt the momentum of company projects or new product or service launches, and/or (c.) undermine projected or anticipated synergies and competitive advantages.
- fostering a ‘company culture’ that recognizes and supports the contributory and collaborative value of intangibles…
- making companies more organizationally resilient to the materialization of risks, by including intangible assets in continuity and contingency planning.
- ensuring the production, contributory role, and value of intangible assets is aligned with a company’s core mission, strategic planning, and the various types of transactions it typically engages.
- elevating company reputation, image, and goodwill among stakeholders and gain the attention of prospective consumers beyond its traditional market space.
- reducing asset vulnerability to theft, misappropriation and other types of risks and threats, because when certain risks materialize unabated, they will undermine asset value, competitive advantages, market position, and otherwise adversely affect company reputation.
- using and exploiting intangible assets, commensurate with their respective life, value, and functionality cycles.
Collectively, the above serves as preludes for achieving more consistent business success and profitability, which now, more than ever before, each is inextricably linked to the effective development, management, and safeguarding of intangible assets.
As always, comments are welcome at Mike Moberly, firstname.lastname@example.org.
Pre-order a new book, ‘Safeguarding Intangible Assets’ by Mike Moberly!
Michael D. Moberly July 1, 2014 ‘A long form blog where attention really span matters.
Calculating the cost of economic espionage, micro, macro…
Calculating the cost of economic – cyber espionage, i.e., its micro adverse impact to a specifically targeted company asset and competitive advantage, supply chain partners, etc., or its macro adverse impact to a broader (local, regional, national) economy are, at best, a challenging and often times, up to this point anyway, a largely subjective undertaking. Too, address the costs and/or consequences of economic – cyber espionage has being ratcheted up on company’s decision making ladder by assuming a sense of fiduciary responsibility and/or obligation, due in part to Stone v. Ritter (911 A.2d 362 (Del. 2006). But, still, as noted numerous times in this blog, assigning a precise value to the loss of intangible assets involves in my judgment, subjective calculations which at best constitute guesstimates.
Decisions for the victimized company …
There are numerous decisions which company’s victimized by economic – cyber espionage must endure which will variously have a bearing on the end result, i.e.,
- Whether or when to ‘go public’ with the event. In a growing number of instances prudent reputation risk management best practices and state and federal law, dictate ‘going public’ quickly.
- How to address the inevitable questions, revelations, and possible investigations which will likely convey uncomplimentary perspectives about a company’s overall readiness. Few, c-suites’ are oblivious to these potentialities that now routinely follow breaches that adversely effect reputation, e.g., how did it happen, why did it happen, was the company sufficiently prepared to thwart, contain, and/or defend against such attacks, what activities was the company engaged in to make it an attractive target for economic – cyber espionage, and when did the company first realize it had been victimized? The latter is usually framed as ‘why not sooner’?
- What is the best methodology for quantifying the near and/or long term adverse effects to specific operational units – brands in the company or the company as a whole, as well as economy, particularly the sustainability of key supply chain partners, as well as the ability of a victimized company to return to a state of operational normalcy.
Underlying variables which often weigh heavily on these, and other ‘reputation risk’ matters is not knowing precisely how stockholders, stakeholders, consumers, and media will react to economic – cyber espionage events and whether their reaction will be short-lived, or adversely long term?
There is little argument that economic – cyber espionage represents a serious, persistent, and asymmetric risk/threat to most companies, and now, as globalized business is a routine fixture, multiple country’s economies’ can be adversely effected. Broadly speaking, this perspective was initially conveyed during Judge Sessions’ tenure as FBI Director during a speech to the Cleveland Economics Club in which he very appropriately uttered the now often repeated statement ‘economic security and national security are synonymous’.
Of course, the realities embedded in Director Session’s statement are much more relevant today, particularly given the economic fact that consistently rising percentages of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability’ lie in – evolve directly from intangible assets which now routinely reach or exceed the 80+% mark. This translates as the attractivity for certain companies to become targets (victims) of economic – cyber espionage is related to specific intangible assets a company has developed, acquired, and assembled in the form of intellectual, structural, and relationship capital or, more simply stated, ‘know how’.
Assessing losses and damages to intangible assets…
First, let me point out that incidents’ of economic – cyber espionage produce the obvious tangible losses, but also losses to various intangible assets a company may have developed or acquired, in this instance reputation and other intangibles in the form of intellectual, structural, and relationship capital.
Assessing (translating) intangible asset losses in dollar values is not for the uninitiated nor is it necessarily for asset valuation specialists whose expertise lies largely in valuing more ‘stationary’ objects or assets.
Valuing (measuring) intangible asset losses-damages present unique challenges which I find may be quite subjective insofar as advancing a particular agenda or accommodating a specific need. In fact, the full extent of a successfully executed economic – cyber espionage event to a target’s intangible assets can seldom be recognized quickly. For example, if a company experiences a theft of specific proprietary information, i.e., intellectual, structural capital, or trade secret, those assets may be distributed and/or applied to multiple beneficiaries internally and externally with each contributing to efficiencies in the production and operability of different products in different industry sectors.
Contributory value of intangible assets…
Be assured, I am not suggesting such losses of a company’s intangible assets are absolutely immeasurable, rather those engaged in their valuation must recognize they have distinctive features and characteristics, the primary one being they are not tangible. So in valuing intangible asset losses, I want to ensure the findings are as objective as possible. So when valuing intangible asset losses, I start by identifying and distinguishing the intangibles at risk – in play. I then commence a process of examining each asset in the context of their ‘contributory value’ .
Understanding intangible asset value…
An important key to understanding, and ultimately estimating the value of a company’s intangibles assets which have been illicitly acquired or stolen through an act(s) of economic – cyber espionage, lie in understanding the processes, procedures, and resources necessary to sustain control, use, ownership, and monitor the value, materiality, and risk to those assets. In today’s hyper-aggressive, predatorial, and go fast, go hard, go global business transaction environments which many companies, regardless of size or sector, routinely operate, any company’s intangible asset safeguards should be constructed to withstand the inevitable consequences of ‘category five hurricanes, cyclones, or Richter scale 5+ earthquakes’ or even the occasional Tsunami. The reason is, there are an abundance of global players working 24/7 in this arena one of which are what Thomas Friedman refers to as legacy free players which I have taken the liberty of re-applying to reflect this current phenomenon.
Legacy free players…
A proper starting point for achieving today’s much warranted level of asset (value, competitive advantage) sustainability, must include…
- measures to monitor of asset value, materiality, and risk.
- being alert to anecdotal reports that provide important glimpses into economic – cyber espionage techniques and methodologies, and
- knowing (understanding) who the global players are, particularly the origins of the increasing number of ‘legacy free players’ (Thomas Friedman, ‘The Flat World).
My definition of ‘legacy free players’ is quite similar to that of Mr. Friedman’s, that is, these individuals/groups may not be necessarily aligned with or employees of nation state sponsors which are frequently technology dependant and sophisticated, or even organized units/cadres of economic spies. Instead, ‘legacy free players’ are, for the most part, independent operators or groups of individuals whose country of origin, and consequently the cultural perspective about honoring the intangible properties of others is a relatively new concept insofar as respecting personal, let alone intellectual property rights. In other words, there is an absence of legal, social, or cultural legacy to others’ properties of the mind, i.e., intellectual – human capital.
No over dramatizations here…
Readers’ who elect to construe these characterizations as over dramatizations would be mistaken. Too, it’s indicative of not being current about the risks and threats posed by increasingly (ultra) sophisticated and organized groups of state sponsored, independent actors, and the growing numbers of ‘legacy free players’, i.e., global economic – competitive advantage adversaries, each functioning quite effectively and probably profitably in their predatorial environments.
So, in my judgment, any asset loss or damage assessment which excludes, in its equation, the economic fact that 80+% of most company’s value and sources of revenue lie in intangible assets, will not convey the full extent/consequence of economic – cyber espionage.
In far too many instances, I observe information asset protection practitioners and programs that appear to have been constructed using quite conventional ‘infosec’ frameworks…
- designed to address subjective, anecdotal, or one-off types of (information asset) threats, risks, or events, or are
- based on pre-conceived notions of who the adversaries’ are, their origins, motives, and methods, or
- that are country (adversary) specific based on presumptions of who the beneficiaries are.
As always, I welcome your comments at email@example.com or 314-440-3593 (St. Louis)