Tesla Loses a Senior Lawyer Just as SEC Tightens Grip

Bloomberg is reporting that an experienced securities lawyer has left Tesla Inc. just as the company needs one under its fraud settlement with U.S. regulators.

Phil Rothenberg, a vice president in Tesla’s legal department who joined the company in 2011, became general counsel at Sonder, a hospitality startup, on Nov. 5, writes Bloomberg reporter Dana Hull.

Before joining Tesla, Rothenberg was an attorney-adviser for the U.S. Securities and Exchange Commission and has extensive securities law experience.

Read the Bloomberg article.


2018 Third-Party Risk Management Benchmark Report

NAVEX Global has published a new report discussing how to assess your program maturity, gain organizational buy-in and understand the value of a comprehensive third-party due diligence program.

The report can be downloaded from the NAVEX website at no charge.

“Third parties are an extension of your business and expose your organization to reputational and business risks,” NAVEX says on its website. “Help protect your organization with the latest insights, benchmarks and trends around how to manage these business partners.”

The report answers questions such as:

  • What strategies do organizations use to manage third-party risks?
  • How do organizations employ risk-based procedures to manage third-party risks?
  • How do respondents measure the effectiveness of their program?

Download the report.



IADC Journal Covers Asbestos, Punitive Damages and Manufacturers’ Legal Hurdles

The International Association of Defense Counsel (IADC), an invitation-only global legal organization for attorneys who represent corporate and insurance interests, has published its fourth quarter 2018 Defense Counsel Journal (DCJ) with articles on current trends in the practice of law.

The current DCJ issue’s articles explore asbestos tort reform on the state level, the growth of punitive damages in Anglo-Canadian contract law, and legal hurdles that manufacturers face when launching products in the United States.

In a release, the organization, said the DCJ is a quarterly forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general. DCJ articles are written by members of the IADC, which is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

The DCJ is available for free and without a subscription via the IADC’s website.

The current DCJ issue is the first to be overseen by new editor and former IADC board member Kenneth R. Meyer, a partner in the products liability practice group at McCarter & English, LLP, in Newark, N.J. The issue also is the first under the leadership of new IADC president Craig A. Thompson, a partner at Venable LLP.

Following are brief summaries of key articles included in the fourth quarter 2018 issue of the DCJ:

— “The More Things Change: Bankruptcy Trust Reform and the Status Quo in Asbestos Litigation” – The article debunks plaintiffs’ lawyers’ arguments that trust transparency reforms would delay litigation, deny compensation to the most sympathetic of plaintiffs, and divest plaintiffs of their traditional control over the trust and tort systems. The authors explain how trust transparency reforms have not delayed litigation and have, in fact, accelerated compensation from the asbestos trusts. The article also describes that, where reforms have been enacted, they have achieved their purpose of fostering communication within the two-tiered system of asbestos compensation so that juries can properly account for all of a plaintiff’s exposures to asbestos.

— “Moving Beyond Uberrima Fides? The General Duty of Honesty in Contractual Performance and Punitive Damage Awards in Anglo-Canadian Contract Law” – The article’s authors suggest that the characterization of punitive damages as “the bane of corporate defendants” has perhaps never been more true under Anglo-Canadian contract law. This article demonstrates that while punitive damages for pure breach of contract are undoubtedly exceptional remedies at common law, they are generally larger and more common than ever before, which marks an extraordinary development in Anglo-Canadian contract law considering that only 30 years ago punitive damages were barred for pure breach of contract.

— “Entering the U.S. Market: Legal Hurdles That Manufacturers Must Overcome” – Investigates the life cycle of a product’s development and marketing and provides insight into some of the most common legal hurdles – especially consumer protection lawsuits – faced by manufacturers entering the U.S. market.



Download: New NACD Blue Ribbon Commission Report on Disruptive Risks

National Association of Corporate DirectorsThe  National Association of Corporate Directors has published its 2018 Report of the NACD Blue Ribbon Commission on Adaptive Governance: Board Oversight of Disruptive Risks to provide directors with valuable insights and tools.

How can directors do a thorough job of assessing disruptive risks and then of guiding their companies toward effective responses? More broadly, how can directors fulfill their core responsibilities for overseeing performance, strategy, risk management, and enterprise content management when volatility, uncertainty, complexity, and ambiguity (VUCA) are the only constants?

The report provides:

  • a functional definition of disruptive risk
  • characteristics of the current environment—and their implications
  • a definition of adaptive governance as a framework for overseeing disruptive risks
  • the essential components of adaptive governance
  • recommendations for putting adaptive governance into practice

Download the complimentary report.



Hospital System Fires General Counsel Amid Alleged Compliance Violations

The Broward Health board fired its general counsel Lynn Barrett as the Florida taxpayer-supported health system continues to struggle after a series of state and federal investigations related to alleged overspending, kickbacks and open-government law violations, reports Modern Healthcare.

“Broward Health doctors alleged during Wednesday’s board meeting that Barrett helped cultivate a hostile culture at the South Florida health system, which led to a ‘mass exodus’ of doctors that crippled the organization,” explains reporter Alex Kacik.

Barrett’s dismissal comes amid a controversy over an independent review process led by law firm Baker Donelson concerning a $69.5 million healthcare fraud settlement agreement reached in 2015.

Read the Modern Healthcare article.




New Law Firm Study: 4 Tips for Maximizing Value from Law Firms

Exterro has published its 2018 Law Firm Benchmarking Report, in which more than 100 law firm professionals supplied advice and tips for getting more out of a law firm.

This is the third annual edition of the Exterro report.

The report includes:

  • In-depth analysis of how law firms are working with their clients around e-discovery issues
  • New techniques for improving how you communicate and work with your law firms
  • Survey responses from over 100 law firm respondents on 25+ questions

Download the report.




Ex-Penn State University GC Cleared of Wrongdoing

Former Pennsylvania Supreme Court justice and Penn State University general counsel Cynthia Baldwin was cleared Friday of any wrongdoing relative to her representation of university officials during the Jerry Sandusky investigation, reports the Pittsburgh Post-Gazette.

She had been accused by the Pennsylvania Office of Disciplinary Counsel of violating several of the Rules of Professional Conduct for attorneys as she represented Penn State, former PSU president Graham Spanier, and two other administrators while she served as university general counsel from 2010 to 2012, writes reporter Paula Reed Ward.

The case included an alleged conflict in representing the interests of the university as well as the three administrators before the investigating grand jury. All three administrators were convicted of child endangerment stemming from a case which resulted in a former university assistant football coach being convicted of sexually abusing children.

Read the Post-Gazette article.



Google Exec Clouded by Scandal is a Veteran Silicon Valley Counsel

David Drummond, the  chief legal officer of Google parent Alphabet Inc. and a one-time Wilson Sonsini Goodrich & Rosati partner, was cited in a New York Times report about the allegedly lax approach that Google has taken to relationships between supervisors and their subordinates.

Bloomberg Law focused  on the part of the report that detailed an alleged extramarital affair involving Drummond and a subordinate, an in-house senior contract manager at Google. The affair resulted in the woman giving birth to Drummond’s child, the Times reported.

“The report, which cited [Jennifer] Blakely and other Google employees, said she and Drummond had a son in 2007,” Bloomberg reports. “Thereafter, it said, Drummond disclosed the relationship to the company—and Blakely was asked to leave because relationships between managers and subordinates were ‘discouraged.’”

Read the Bloomberg Law article.




ECVC2018: Ethics & Compliance Virtual Conference

NAVEX Global will present the 2018 Ethics & Compliance Virtual Conference as an online event Thursday, Nov. 8, 2018.

This year’s ECVC focuses on putting the ideals of ethics and compliance into practice. Find out how your program should perform through regulatory scrutiny, leadership influence and program enhancements, then deliver quantifiable proof of success.

The conference will feature:

• 4 Learning Tracks
• 3 High-Profile Keynotes
• 13 Hour-Long Sessions
• No Travel; No Cost
• 6000+ Peers for Networking
• Dozens of Free Resources
• Live Speaker Q&A
• On-Demand Access

Register for the virtual conference.




Pac-12 General Counsel Called Officials During Game to Change Call

Pac-12 general counsel Woodie Dixon interfered with an official review of a foul in a game between USC and Washington State, resulting in the NCAA conference deciding to change its policy on non-trained officials weighing in on such reviews.

CBS Sports reports that Pac-12 commissioner Larry Scott addressed the incident in which Dixon interfered with a targeting review during the game in September.

Tom Fornelli writes that reports indicate that Dixon, who is not a formally trained official, called into the Pac-12 replay booth and said he didn’t think a targeting penalty applied to the play. In the official game report, Gary McNanna, who was the replay official in the booth for the game, wrote that “a third party did not agree so the targeting was removed.”

Read the CBS Sports article.





Download: A Field Guide to Bad Directors

National Association of Corporate DirectorsBad corporate directorship can be incredibly detrimental to a company or organization. From inattention to detail to feelings of entitlement, bad board members can seriously impede board operations, waste precious resources, and stifle best-practice corporate governance.

The National Association of Corporate Directors has published  “A Field Guide to Bad Directors,” in which four-time corporate chair and CEO of Special Investigations Michael Pocalyko

  • lays out the defining characteristics of a bad director,
  • identifies 14 of the most prevalent bad director archetypes, and
  • offers suggestions for mitigating the effects of a bad director.

Additionally, Pocalyko interviews three seasoned directors about their personal experiences with deficient board members and what management styles and personal qualities are beneficial in maintaining a high-performance board.

The article can be downloaded at no charge from the NACD website.

Download the article.



Murdoch’s GC Who Saw Fox Through Crises to Exit After Deal

Bloomberg is reporting that Gerson Zweifach, the lawyer who guided billionaire Rupert Murdoch and his family through the British phone-hacking scandal, will step down as general counsel of 21st Century Fox Inc. once the media company completes its $71 billion asset sale to Walt Disney Co.

Zweifach, who has worked Murdoch since since 2012, will return to Williams & Connolly after the deal closes in the first half of 2019, Fox said in a statement Thursday.

“Zweifach saw the company through several challenges, including a sex-harassment scandal at Fox News, an unsuccessful bid for Time Warner Inc. and now the company’s breakup in a sale to Disney,” writes reporter Anousha Sakoui.

Read the Bloomberg article.



Online Quiz Scores Maturity of E-Discovery Process

Exterro has posted an online quiz to quickly find out how mature an e-discovery process is when compared to EDRM Duke Law’s e-discovery maturity scale. The complimentary quiz takes about 10 minutes to complete.

The quiz consists of 20 multiple choice questions based on best practices ranging across the Electronic Discovery Reference Model (EDRM) from information governance through matter closing.

It will help participants:

  • Understand your organization’s e-discovery maturity
  • Improve your in-house e-discovery process
  • Learn more about what mature e-discovery operations look like

Take the quiz.



Download: Effective Practices for Internal Investigations Led by the Board

National Association of Corporate DirectorsA new article published by the National Association of Corporate Directors discusses the steps a company needs to take before deciding to embark upon a board-led investigation, and provides insight into essential actions the company should take to “weather the storm of an investigation,” like assigning committee responsibilities and having disinterested directors.

Based on best practices discussed at this spring’s AC Committee Chair Advisory Council meeting, this article outlines the key considerations for boards beginning an investigation:

  • Early decisions have far-reaching impacts
  • Keep the external auditor informed, while maintaining privilege
  • Take a proactive approach to remediation
  • Get ahead of reputational damage
  • Discuss whether the circumstances warrant self-reporting

The company said this article helps directors develop an internal investigation protocol to follow should an issue arise, and equips directors with a framework to mitigate the effects of an investigation both internally and externally.

Download the article.



Cryptocurrency GC Has Left the Company at an Awkward Time

Brynly Llyr, general counsel of Ripple, one of the world’s leading cryptocurrency companies, has left the payment and remittance network, reports Quartz’s Private Key newsletter.

Quartz reporter Matthew De Silva explains: “Ripple is gearing up for a class-action battle about whether its XRP cryptocurrency is a security or not, and has bolstered its legal team by retaining heavyweights like former US Securities and Exchange Commission chair Mary Jo White and the regulator’s former director of enforcement, Andrew Ceresney. Although Llyr is an experienced attorney with impressive credentials, she doesn’t have the same sway as some of these other legal advisors. Still, the turnover on Ripple’s in-house legal team comes at an awkward time, given the impending case.”

Read the Quartz article.



Master Class: Aligning Board Responsibilities

NAVEX Global will present the online master class “Herding Big Cats: Improving Executive & Board Engagement” on Thursday, Sept. 20, 2018, beginning at 10:30 a.m. Central time.

Getting positive buy-in needed from an organization’s executives and board members is a common issue for most businesses, NAVEX says on its website. “And, it can be especially difficult for compliance professionals needing to demonstrate the true ROI of their programs. In this Master Class, you’ll learn how to wrangle top-level decision-makers to ensure all executives and board members understand their responsibilities for compliance oversight. Effectively protect your organization from compliance and behavioral risk, and learn why active board engagement is critical for establishing a strong ethical culture from the top down.”

This master class will cover:

  • How to contribute to the goals of the board
  • Rules of engagement for difficult board discussions
  • Common communication mistakes to avoid
  • Meaningful board training methods
  • How to position compliance to get critical program buy-in

Register or get more information.




Budget Benchmarks: Where Do You Stand?

As budget season approaches, a post on the Xakia website takes a look at the financial side of corporate legal operations – from alternative fee arrangements to special considerations for smaller departments.

The post offers some benchmarks to help gauge how a department’s budget compares with others. While every team and company is different, benchmarks can help establish context – or give you fodder to ask for a budget increase, the company says.

Headings include: Legal Budget as a Percentage of Revenue, Legal Budget by Department Size, Legal Budget by Location, Legal Budget by Industry, and Why Budget Matters.

Read the article.



Just Released: ACC 2018 Global Compensation Report

ACCThe Association of Corporate Counsel has published an in-depth, self-reported compensation survey for in-house counsel and legal operations professionals.

For companies seeking to stay competitive in the marketplace and lawyers considering career moves, access to detailed compensation data for in-house counsel and legal operations professionals is essential, the ACC says on its website.

Based on responses from more than 5,000 lawyers in corporate legal departments from 65 countries and 39 different industry sectors, this first-ever ACC Global Compensation Report is available from the organization.

Download the report.




ConocoPhillips to Hire Baker Botts M&A Partner as GC

Houston-based energy giant ConocoPhillips is expected to name Baker Botts corporate transactional partner Kelly Brunetti Rose of Houston as its new general counsel, according to a report in The Houston Chronicle.

The Texas Lawbook, via the Chronicle, reports that multiple legal industry sources confirm that Rose, who has represented ConocoPhillips and several other major oil and gas companies in dozens of billion-dollar mergers, acquisitions, joint ventures and securities offerings, will replace retiring ConocoPhillips general counsel Janet Langford Carrig.

“Rose has led some of the largest oil and gas M&A deals in Texas over the past two decades. She has represented Halliburton, Shell Oil Company, Linn Energy and Waste Management in an assortment of large transactions,” writes Mark Curriden of the Texas Lawbook.

Read the Chronicle article.



Measuring Legal Tech ROI

On its face, ROI seems pretty straightforward – a basic math equation that determines the ratio between an investment’s profit and its cost. But with legal technology, this can get a little nebulous: Your department deals in time, not in widgets, according to a blog post on the website of Xakia.

“Perhaps that’s why 74 percent of law firms in the U.K. don’t even try to calculate the ROI of their legal technology projects, according to a March 2018 report by Lexis Nexis,” Xakia said in the post. “While no similar statistic was available for corporate legal departments, we’d make the educated guess that the majority aren’t monitoring their legal tech return – despite the fact that, as a recent Association of Legal Administration presentation put it, ‘ROI is the only technology acronym that matters.’

“Indeed, ROI is the language of the C-suite, and it’s imperative for in-house lawyers to show fluency. (Recall that one-third of CEOs and directors rank “controlling legal spend” as a top-three priority for law department performance.) You need to know your ROI to demonstrate that you are a good steward of company resources, to test and validate your decision-making, and to inform future projects in your legal technology roadmap.”

Read the article.