Bierce & Kenerson, P.C.

Business Operations: Compliance and Risk Management

Enterprise risk management (ERM) is more than an exercise to eliminate potential liability. Holistic and disciplined risk management also enables management to understand the upside of their business through the ability to take more risk by pursuing more business opportunities with defined risk profiles. As lawyers, one of our goals is to consciously help management pursue their chosen risk profiles through basic compliance and risk management.

Risk profiles change in response to evolving stages of a businesss operations. Even the simplest startup business activities are subject to various legal, tax and regulatory compliance obligations. Effectively designed, risk management techniques can shift or mitigate potential liability to customers, employees and third parties. If a business process is not designed properly, technology-enabled services businesses have the potential for repeated errors causing potentially substantial legal liability.

We advise clients on specific governance, risk and compliance (GRC) management techniques for enterprise risk management upon request. This may include preparation of a code of conduct or code of ethics for the company and its suppliers.

In the initial legal design of a clients business operations, we provide basic risk management through capital structures and corporate finance of relevant corporate entities, internal corporate governance and use of specialized compliance management service companies.
At inception of our relationship and from time to time upon request, we offer to conduct an internal review of a clients legal risk profile in designated domains, particularly those involving data protection, privacy and certain vertical industry sectors involving services or information technology.
During contract drafting and negotiation, we advise on key compliance and risk management issues. Various techniques are available, such as allocation of contractual obligations, designating duties of compliance with various designated applicable laws and regulations, limitations of liability, indemnifications, choice of law, insurance and insurance certificates, waivers of subrogation, conditional and absolute termination rights, financial risk allocations, audit and control rights, flowdown clauses, optional remedies, other contingencies and springing rights for business continuity in the case of force majeure or a termination.

Risk management and compliance are an interdisciplinary endeavor. As lawyers, we assist in risks that involve individual hazards, operational risks and some human capital risks. There are other risks, particularly strategic competitive risks and financial risks. Consequently, for a holistic approach, we recommend that our clients seek the professional advice of GRC experts in insurance brokerage, security and data management, disaster recovery and business continuity planning, environmental protection and remediation, consumer product safety, logistics and supply chain administration, customs brokerage, information security risk management, third party risk management, business continuity risk management, enterprise risk management, internal audit, accounting and industry standards organizations.

Bierce & Kenerson, P.C. has relationships with professional organizations who provide expertise in these areas.

Further, larger clients can benefit from software for enterprise risk management (typically a part of employee resource planning, ERP) and for business process management (BPM) and modeling. We can advise on such software licensing transactions.

For more information, see www.Outsourcing-Law.com

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