Download: Gartner’s New Analyst Report on E-Discovery

Exterro has made available a new Gartner report titled “Defining Your E-Discovery Process Will Lower Costs and Reduce Risks.”

The report, which discusses six recommendations Gartner has for defining e-discovery process, can be downloaded from Exterro’s website at no charge.

“The goal of e-discovery is to find important files and communication that is usually spread out across an organization’s data footprint,” according to the Gartner report. “Infrastructure and operations leaders can use these procedures to better control their information and equip themselves for legal discovery requirements while improving overall maturity.”

Download the report.



ACC Annual Meeting: Oct. 27-30 in Phoenix

The annual meeting of the Association of Corporate Counsel in Phoenix in October will feature more than 140 sessions that will allow participants to earn up to a year’s worth of CLE/CPD credit in less than three days.

The event will be Oct. 27-30.

Topics at those sessions will include such subjects as contract drafting, data security, corporate sustainability, records management, and business education for in-house counsel.

Register or get more information.



Plane Crash Changed Everything for Oilfield Tech Company’s General Counsel

Tim Johnson, general counsel of Houston-based Peak Completion Technologies, was devastated when the company’s found died in a plane crash, reports the Houston Chronicle.

But things got worse when “Johnson reviewed documents showing that founder Ray Hofman had been secretly siphoning off millions and millions of company dollars to pay for his ever more extravagant lifestyle, which included buying vintage military airplanes, a $250,000 pirate ship for his backyard and a fleet of Ferraris, Bentleys and Porsches,” according to the report.

Mark Curriden of the Texas Lawbook reports on the GC’s investigation and subsequent $20 million lawsuit alleging fraud, breach of fiduciary duty and gross negligence against Hofman’s estate and the accounting firms that looked the other way.

Read the Houston Chronicle article.



When Icahn Comes Knocking: Best Practices and Recent Developments in Shareholder Activism

WebinarThe University of California at Berkeley School of Law will present a Berkeley Boosts webinar, “When Icahn Comes Knocking,” to explore best practices and recent developments in shareholder activism.

The free one-hour webinar will be May 29, 2019, 10 a.m. Pacific time.

Speakers will be Kenton King and Thomas Ivey of Skadden, Arps, Slate, Meagher & Flom LLP.

Register for the webinar.



Orano USA appoints Michael Woods as General Counsel

Orano USA announced the appointment of Michael Woods as its new general counsel, effective April 15, 2019.

Prior to joining Orano, Woods served as general counsel for Sol Systems, a solar energy finance and development firm based in Washington, DC; was a partner in the Energy and Corporate practice groups in the Washington, DC office of Kirkland & Ellis; and worked as an attorney in the Office of the General Counsel at the U.S. Nuclear Regulatory Commission.

Woods is admitted to the Bars of the District of Columbia and the State of Georgia. He earned his J.D. with honors (Order of the Coif) from Emory University School of Law in Atlanta, Georgia. At the University of Florida, Woods graduated with a B.S. in Business Administration, Finance, and with a B.A. in Spanish.

Woods is based at the Orano USA corporate office in Washington, DC.

Orano USA is a technology and services provider for used nuclear fuel management, decommissioning shutdown nuclear energy facilities, federal site cleanup and closure, and the sale of uranium, conversion, and enrichment services to the U.S. commercial and federal markets. Orano Med is developing targeted alpha therapy to fight cancer.



Download: 5 Ways to Manage Expanding Board and Committee Agendas

The National Association of Corporate Directors has published a briefing that explains how audit and nominating and governance committee chairs can improve their risk-oversight strategy.

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

The report discusses such questions as: How can boards and committees continue to scale up their capacity for overseeing the major risks on their agendas? How should they address the concerns risk oversight raises among investors and regulators?

Some of the strategies discussed are:

  • Use ad hoc committees to cope with expanding oversight requirements.
  • Leverage evaluations and carefully review charters to ensure that committees are focusing on clearly-defined priorities and responsibilities.
  • Ensure directors’ skills are keeping pace with rapidly-evolving and future issues.
  • Increase meeting efficiency with prereads, consent agendas, and other tactics.
  • Communicate risk-oversight priorities and processes to investors and regulators.

Download the briefing.




A GC Says She Was Told to Serve the Cake. She Complained, Then She Was Fired.

The former general counsel of ExlService Holdings says in a lawsuit that she suffered from gender stereotyping in her job, illustrated by an order from the CEO that she serve cake to the company’s junior male employees at a company anniversary.

The Washington Post reports on the complaint, which says the CEO at that anniversary event singled out then-GC Nancy Saltzman as one of the “ladies” in the room, despite the fact that she was the most senior female executive at the company. The complaint says Saltzman was humiliated.

The complaint says the event was an example of gender stereotyping. The Post‘s Deanna Paul writes: “According to the complaint, [the CEO] ‘took steps to exclude her from career and advancement opportunities, subjected her to enhanced scrutiny, and micromanaged her’ in a manner her male equals were not.”

She complained to other executives about stereotyping, but she later was fired.

Read the Washington Post article.




Boeing Appoints Legal Czar to Oversee Fallout From Fatal 737 MAX Crashes

Facing an onslaught of lawsuits and a criminal investigation, Boeing announced the appointment of a newly created czar to oversee all legal matters arising from two deadly crashes of 737 MAX jetliners, reports The Seattle Times.

J. Michael Luttig, 64, a former federal appeals court judge who has served as Boeing’s general counsel since 2006, is now the new counselor and senior adviser to Boeing Chairman and CEO Dennis Muilenburg and the company’s board of directors, according to the Times Steve Miletich.

Dozens of lawsuits seeking monetary damages have been filed against Boeing in U.S. courts, alleging negligence on the part of the company. Statements indicate Boeing plans to take an aggressive stance in responding to civil allegations and any potential criminal accusations.

Read the Seattle Times article.



Webinar: Former DOJ Compliance Expert on Decoding Regulations

NAVEX Global will present a complimentary webinar, “Decoding Regulations: An Insider’s Guide,” on Wednesday, May 15, 2019, at 10 a.m. Pacific/ 1 p.m. Eastern time.

Speakers will be Hui Chen, former DOJ compliance counsel expert, and Carrie Penman, Chief Compliance Officer of NAVEX Global. Chen wrote the DOJ’s “Evaluation of Corporate Compliance” guidelines and can provide an insider’s view of what to include in a program and how to define effectiveness.

“Law enforcement guidelines for evaluating your compliance program are subjective, not prescriptive,” NAVEX says on its website. “Even the Department of Justice (DOJ) expresses that their guidance is not a ‘checklist nor a formula’ for compliance.”

Register for the webinar.



Download: The 2019 Guide to Contract Management Software

ContractWorks has published a guide to evaluate current contract management processes and learn best practices for vetting the right software for a company’s needs.

“The 2019 Buyer’s Guide to Contract Management Software” can be downloaded from ContractWorks’ website at no charge.

“Purchasing contract management software can be a complicated and time-consuming process for in-house counsel. Recognizing that you need a better way to manage your organization’s contracts is an important first step, but understanding what to do next can be a challenge,” the company says.

The guide covers:

• How to recognize failing contract management indicators
• How gauge software readiness at your company
• How software can help and where it can’t
• How to evaluate and understand your options
• How to ensure successful on-boarding

Download the guide.



Freelance Attorneys or Firms – What’s the Difference?

By Greg Hoover

What value does an in-house legal department bring to the company? We are the lawyers that know our clients best. We understand the business at a fundamental level and understand how the legal environment affects operations. Often, we also serve as the buyer of outside legal services, ensuring that the company receives value for money. To outside counsel, we are something of a professional client; one that makes our living hiring other lawyers, managing the attorneys so selected, and expressing the wishes of the company. The tools and resources we use to get our jobs done are, for the most part, invisible to our clients so long as we remain the primary gatekeeper.

Just as technology has introduced a number of new tools to make us more efficient, new models like online freelance attorney marketplaces have opened up a world of opportunity, which in some cases can give the tried and true firm model a run for its money.

When to Stick with Status Quo Firm Relationships

Most in-house legal departments do not rely on a single attorney or firm to provide all of their outside services. After all, it is highly unlikely that the best attorneys in each jurisdiction and practice area needed by the company work for the same firm. Instead, we assemble a team of lawyers from our contacts. This generally yields better results for our client in terms of cost, effectiveness, and conflicts management. After all, the best employment discrimination litigator in the city is probably not the best patent attorney.

In some cases, sticking with this status quo model of retaining outside help is the prudent route to take. Those instances include:

1. If you, as the in-house lawyer, are unable to manage the freelance attorney. Some in-house lawyers are skilled managers of attorneys and support staff; some are not. Managing outside counsel, whether a firm or a freelancer, is a skill that some in-house lawyers never pick up. If you would rather not review the pleadings and just trust the relationship partner to get it right, then maybe hiring a freelancer isn’t for you. On the other hand, if you will be reviewing the work before anything is set in stone, and you track deadlines and know how to set expectations, then managing a freelancer will come naturally to you.

2. When defining the scope of a complex engagement presents a challenge, breaking out the Rolodex of known firm attorneys makes sense. In these cases, an issue comes up and the initial goal of the general counsel is simply to mitigate damage. The in-house department may not know enough about the issue to even frame the issue and define a successful outcome for the company. However, most of us are capable of doing a little research and at least getting a general idea of the type of attorney to hire and making a first pass at issue-spotting a fact pattern. If you can do that much, you can probably frame the issue sufficiently to at least get a memo from a freelance attorney outlining next steps. Then you can make the decision to parse out another piece of the case to a freelancer, expand the scope of your original freelancer, or, when necessary, hire a firm for a more full-scope representation.

When and How to Use Online Freelance Attorneys

Before we get into the when and how of using freelance attorneys, let’s pause and consider whether this new contract attorney model is really different than the tried-and-true firm model. Aren’t freelance attorneys signed to projects for specific matters really just outside counsel in all but the name? What separates the senior associate at Dewey, Cheetam, and Howe, LLP from the contract attorney available for hire on a freelance network? Or, perhaps the more pertinent question is: what separates the contract attorney Dewey, Cheetam, and Howe would have hired from the one available on one of these online marketplaces? The pool of attorneys interested in working as contract attorneys used to vary significantly by location and practice area. There are large pools of SEC attorneys in New York City; not so many in Minneapolis. With the advent of the internet and some relatively recent ethics opinions, most attorneys can now work as contract attorneys in most locations. The pool of contract attorneys available to the big firm in another city is now available to the in-house lawyer via the internet.

For smaller in-house legal teams, hiring and managing contract attorneys through online freelance marketplaces provides speed, control and affordability that cannot be achieved hiring outside counsel at a law firm. For example, many law firm malpractice policies require that a partner be assigned to a case, even if all of the work will be done by an associate who is perfectly competent to do the work. This not only adds time for the partner to review the work, but also the overhead to pay for the partner’s time. Suddenly, a 2-hour task becomes a 4-billable-hour exercise, when the in-house counsel would have probably been satisfied with the first draft! To compound matters, without a preexisting relationship, in-house counsel usually do not get to select the associate or associates assigned to their matter. This means that they will get whomever is available, even if another associate could have done the task for less money. If the firm is especially busy or the work is in a niche area of the law, the law firm is likely to hire contract attorneys anyway, and add their markup. All of this adds up to a bigger bill and less control for the client.

However, unlike the execution of a project with a contract attorney, which depends less on the direct involvement of the hiring in-house counsel, the freelance attorney model requires involvement and supervision from in-house counsel. Online platforms help by automating communication flows, and more sophisticated ones like LAWCLERK have the ability to create “Teams” of subject matter experts like a virtual Rolodex. Another benefit is the flexibility to scale up and down as projects ebb and flow.

Getting started is easy. Although each online freelance marketplace will vary slightly, I’m most familiar with LAWCLERK so this process is based on my own experience.

1. Scope the Project: To begin, define the project and deliverable that you want from a contract attorney. Remember, the contract attorney doesn’t know more about the case than you tell them. For example, let’s say you represent a Nevada corporation that does business nationwide. You learn that a company in Georgia is soliciting your customers with the assistance of one of your former employees. The employee signed a nondisclosure agreement when he began working for you, but it is not clear if it is enforceable across the country or even applicable in this situation. You want a memo on the causes of action that may be available to you in Nevada or Georgia.

2. Set a Price and Post It: Now that you know what you want to receive, it is time to decide a price. Understand that freelance attorneys are running their own firms and have overhead expenses and downtime like every firm. They aren’t paralegals receiving a salary whether they’re working or not or receiving benefits from a benevolent third party. The freelancer might not have hard office expenses or staff, but there are things like office equipment, insurance, and bar memberships to pay for. Those are real costs and must be compensated for. An under-priced research memo might be the most expensive advice you ever get. Price the work in line with what you know the project will take to complete. Once you develop a relationship with a few contract attorneys, you can poll them in advance regarding pricing.

When posting a project, the posting attorney sets a fixed price for the delivery of the project and a due date. Contract attorneys hired through the platform agree to perform the work described for a fixed fee only, so there are no surprise bills for the hiring attorney. Then, the money is deposited with the online platform provider and the project is posted. Attorneys with expertise in the relevant area of the law receive an alert informing them that a project matching their interests is available. They are then directed to the platform to submit their name and a short message expressing their interest. After the application period expires, the posting attorney selects the contract attorney they think will best accomplish the task and ask them to clear conflicts. After reviewing the relevant rules of professional conduct and the parties, the contract attorney accepts the case and receives access to the case documents uploaded to the platform.

3. Completion of the Project and Payment: Once the project is accepted, the attorneys can message each other through a portal within the platform. When the project is completed, the contract attorney will send the deliverable to the hiring attorney through the portal. The hiring attorney will then have 96 hours to approve or reject the deliverable and can be unilaterally extended for another 96 hours if needed. If the hiring attorney does nothing, the project is automatically approved at the expiration of the review period. A day or two after the deliverable is approved, the contract attorney is paid. No invoices to review, no check requests to write, no W-9 to chase. Under current law, the corporation does not need to issue a 1099-MISC to the contract attorney, as they are paid through a third-party payment platform. If the contract attorney exceeds the threshold to require tax documents (presently $20,000 per year), then the payment platform is responsible for that filing.

4. Managing Disputes: By now, you’re probably wondering what happens when you aren’t satisfied with the contract attorney’s work. With LAWCLERK, the platform will hold the funds pending resolution and serve as the arbitrator of the issue. This provides a degree of expediency and detached judgment often not available in disputes with outside firms.

5. Rinse and Repeat: Once you have received the deliverable and the contract attorney is paid, you can create another post for the next steps, be it a demand letter, pleading, or more research. You can direct a project to particular contract attorney before posting it to the community writ large. Another convenient feature of the platform is the ability to form teams with which you can build a rapport and direct work when you need someone who understands your preferences in a way that is only learned through repeat work.

I am not here to advocate replacing your entire outside counsel network with freelance attorneys. I am suggesting that it is a good substitute for matters which are well-defined and which might be handled more cost effectively outside the traditional law firm model. After all, the job of a general counsel is to ensure the legal needs of the corporation are met, and it is incumbent upon each of us to be good stewards of the shareholders’ money.

About the Author: Greg Hoover is the in-house counsel to a small division of a Fortune 100 company. His work focuses on general business law, government contracts, international sales of goods, and export controls.



‘Brilliant and Inspirational’ In-House Lawyer Killed in Sri Lanka Blasts

Anita Nicholson, in-house counsel at mining company Anglo American in Singapore, was killed along with her two children in an explosion at the Shangri La hotel in Sri Lanka on Easter Sunday, according to The Law Society Gazette.

Her husband Ben Nicholson, also a solicitor, survived the attack, one of at least seven terrorist attacks reported in churches and luxury hotels in the capital city of Colombo.

“Anita was a wonderful, perfect wife and a brilliant, loving and inspirational mother to our two wonderful children,” Ben Nicholson said in a statement.

The Law Society reported that Anita Jane Nicholson was admitted in 2000. Her LinkedIn profile states she was a regulatory and compliance managing counsel at Anglo American and previously held roles at BP and HM Treasury. She also had been a solicitor at international law firm DLA Piper in London.

Read the Gazette article.



State Department Lawyer Who Drafted Patriot Act is New Facebook GC

Facebook announced that it’s bringing in a new general counsel as it tries to rebuild its image following a year filled with scandals, according to a CNBC report.

Jennifer Newstead, legal adviser to the U.S. State Department, is joining the company as its general counsel, replacing Colin Stretch, who said last year that he would be departing.

“Newstead brings some controversy with her,” writes CNBC’s Ari Levy. “As part of the George W. Bush administration in the aftermath of the Sept. 11 terrorist attacks, Newstead helped draft the Patriot Act, which granted law enforcement agencies greater surveillance power over ordinary Americans.”

Read the CNBC article.



Download: A Blueprint for an Automated Compliance Program

GAN Integrity has published the second edition of A Blueprint for an Automated Compliance Program, an ebook that can be downloaded from the GAN website at no charge.

The ebook is a detailed guide to risk management, due diligence, training, policy management, reporting, and more.

The book is designed to help readers:

  • Understand what to ask when designing your processes
  • Comprehend the building blocks of an automated compliance program
  • Grasp how automation streamlines previously time-consuming processes
  • See how automation heightens the strategic value of compliance

Download the ebook.



Anatomy of a Prosecutorial Meltdown

A prosecutor in Lancaster County, Pennsylvania, finds himself embroiled in a legal scorched earth conflict against his county commissioners — a fight that started when he used $21,000 in asset forfeiture funds to lease a car.

Above the Law traces the conflict between the commissioners and Lancaster District Attorney Craig Stedman.

Along the way, Stedman doubled down after commissioners said they would have leased him a vehicle through proper channels if he’d asked for one, but that using the forfeited funds to get a car on his own violated protocol, writes Above the Law senior editor Joe Patrice.

Stedman sued the commissioners, and they responded by blocking the use of county funds for the lawsuit. Stedman turned over documents, but the records didn’t include receipts documenting what specific seized items were sold and what items were bought with the proceeds.

Read the Above the Law article.



University’s General Counsel Suspended, Gets 30 Days in Jail for Court Behavior

Bowling Green State University’s top lawyer was placed on leave Friday and will begin serving a 30-day jail sentence Monday after a Wood County judge found him to be in contempt of court while representing himself during his divorce hearings, according to The Toledo Blade.

The Blade‘s Allison Dunn explains:

Sean P. FitzGerald, 58, who is employed as the university’s general counsel and vice president, was sentenced by visiting Judge Stephen Yarbrough following a series of misbehavior incidents while representing himself in the Wood County Common Pleas Court Domestic Relations Division in the divorce from his wife, Margaret A. FitzGerald.

Read the Toledo Blade article.



Former Hertz General Counsel Rebuffs Demand for Clawback

Hertz Global Holdings has filed a lawsuit against its former general counsel and some other former managers after they refused to pay back at least $70 million in incentive compensation for their roles in an accounting scandal five years ago, reports The Global Legal Post.

The company accused the former executives of pressuring employees to use fraudulent accounting techniques to inflate income and earnings, according to a March 25 lawsuit.

Former general counsel Jeffrey Zimmerman has refused to return incentive compensation tied to the erroneous accounting results.

Read the Global Legal Post article.




Former SeaWorld Associate GC Pleads Guilty to Insider Trading

SeaWorld Entertainment’s former associate general counsel, who was fired last October, pleaded guilty Tuesday to a federal charge of insider trading that allowed him to make nearly $65,000 from a stock sale last year, The San Diego Union-Tribune reports.

Paul B. Powers, 60, entered his plea before a U.S. district judge in Florida. Sentencing has not yet been determined, writes the Union-Tribune‘s Lori Weisberg.

The U.S. Securities and Exchange Commission said that it had also charged Powers with insider trading based on confidential information he received that SeaWorld’s revenue would be better than anticipated for the second quarter of 2018.

Read the Union-Tribune article.



Join Sally Yates at NACD’s 2019 General Counsel Event

National Association of Corporate DirectorsThe National Association of Corporate Directors will present the 2019 Strategic-Asset GC event, taking place Tuesday, June 11, at the Metropolitan Club in New York City.

The event will feature an expert panel that will include former U.S. deputy attorney general Sally Yates. Participants will learn about revisions being made to the Yates Memo and how those revisions will apply to board members specifically. The discussion will also include information about legal blind spots that general counsel and directors need to be aware of, as well as a poignant discussion around the bigger picture of corporate responsibility and culture.

Learn more and register.



Webinar: #MeToo is Transforming Corporate Governance

Berkeley Law professor Amelia Miazad will analyze how the #MeToo movement has impacted foundational aspects of corporate governance when Berkeley Boosts presents a free webinar on April 23, 2019, at 10 a.m. Pacific time. MCLE credit will be available.

Those aspects to be discussed include board composition, how the board oversees risk, CEO selection and compensation, and M&A deals.

Berkeley Boosts is a monthly series of free webinars (with MCLE credit) and articles for legal practitioners and organizational leaders. Berkeley Boosts content is curated by the Berkeley Center for Law and Business and Berkeley Law Executive Education.

Register for the webinar.

Past Berkeley Boosts webinars have covered a range of topics, including:

The Wild World of Class Actions
March 20, 2019
Presenters: David Singh, Partner and Hannah Jones, Associate at Weil

The Rise of the Committee on Foreign Investment in the United States (CFIUS)
February 26, 2019
Presenter: Mario Mancuso, Kirkland & Ellis (formerly Under Secretary of Commerce for Industry and Security)

Blockchain Explained
January 22, 2019
Presenters: Ian Lee, IDEO CoLab, and Nancy Wojtas, Cooley LLP

To access recordings of these presentations, as well as receive notice of upcoming webinars, sign up for the mailing list.