A recent report by the Dallas Women Lawyers Association, titled Bridging the Gap: Practical Resources and Suggestions for Promoting and Retaining Female Attorneys in the Legal Profession, is a concise rundown of the challenges women lawyers face and how to address them, according to Amy Boardman Hunt of Muse Communications.

She says the report illustrates two important points:

1) the legal profession has a long way to go to reach anything close to gender parity, and;

2) it is incumbent on women lawyers to help close the gap, both by advocating for systemic changes in the profession and by engaging in the kind of strategic self-promotion that can position them to make those changes happen.

Read the article.

Thomas McVey, partner and chair of Williams Mullen’s International Practice Group, will lead a complimentary webinar on the latest International Traffic In Arms Regulations (ITAR) developments for government contracts executives.

The event will be Wednesday, Dec. 13, 2017, at 1 p.m. Eastern time.

ITAR is an important area of regulation for government contractors, the firm says on its website. This includes firms in the defense, technical services, information technology, cyber-security, military training and DOD-funded R&D fields. These requirements often apply even if a company is not engaged in any exporting activities – often just performing activities in the U.S. can trigger ITAR obligations. The stakes are high – violations can result in criminal penalties of up to 20 years imprisonment.

The program will provide executives a clear overview of the law and an update on important recent developments.

Who Should Attend: CEOs, CFOs, COOs, in-house counsel, compliance personnel, operations directors and contracts administrators

Topic outline:
• How do I know if my company is subject to ITAR?
• Is my company required to register under ITAR
• Requirements for ITAR-controlled technical data and software
• Controls on defense services and Technical Assistance Agreements
• Requirements for dealing with foreign national employees and other foreign individuals
• Obligations of second- and third-tier suppliers; subcontractors and vendors
• Are we subject to ITAR if we only perform services for U.S. government agencies?
• Contracts with foreign military organizations
• How to develop an effective ITAR compliance program
• Requirements under DFARS §225.79 and 252.225-7048
• Recent data security requirements
• What to do if you discover a violation

Time has been allotted for a brief Q&A for the speakers to address questions from the audience.

Register for the webinar.

The concept of off-duty misconduct and any on-duty punishment that may occur can sometimes be a slippery slope, warns Natalie Lynch of Lynch Service Company in a web posting.

While there are plenty of instances of people being fired or reprimanded for their off-duty behaviors, there are also instances of terminated employees fighting for reinstatement under the guise that their off-duty conduct did not impact their on-duty work or the reputation of the company, she writes.

“Problems may arise when a company fails to outline what type of off-duty conduct is considered verboten and how employees are to conduct themselves during their off-duty hours. Problems can also arise when an employee punishes or terminates an employee for thoughts or actions that the company deems unsatisfactory, but are not illegal or truly damaging to the company, Lynch writes.

Read the article.

Fitch, Even, Tabin & Flannery LLP has posted an on-demand webinar, “The Ubiquitous Problem of Inherency in Obviousness: Southwire Co. v. Cerro Wire, LLC,” featuring Fitch Even attorney Giles N. Turner.

Obviousness challenges tied to the doctrine of inherency can arise during various stages in the patent life cycle, including patent prosecution, post-issuance proceedings, and litigation, the firm says on its website. Despite how frequently these challenges occur, the law applicable in this area has been less than clear. While recent case law has helped to provide clarification, the Southwire case illustrates that overcoming inherency-based obviousness arguments does not always result in a win for the applicant or patentee.

The webinar explores these topics and more:

• The nature of obviousness contentions based on inherency
• Practice pointers in applying the doctrine of Southwire and other recent cases
• Hypothetical examples showing how to demonstrate patentability

A recording of the webinar will be available to view until Nov. 28, 2018.

Watch the on-demand webinar.

By Eric Begun
King & Fisher Law Group, PLLC

In its 10-Q filing for the quarter ended September 30, 2017, Merck & Co., Inc. stated the following:

On June 27, 2017, the Company experienced a network cyber-attack that led to a disruption of its worldwide operations, including manufacturing, research and sales operations. … [T]he Company was unable to fulfill orders for certain other products in certain markets, which had an unfavorable effect on sales for the third quarter and first nine months of 2017 of approximately $135 million. … In addition, the Company recorded manufacturing-related expenses, … as well as expenses related to remediation efforts … , which aggregated $175 million for the third quarter and first nine months of 2017.

Worth noting, this $310 million amount likely does not include all legal fees, forensic costs, and all other costs, expenses, and losses related to the cyber-attack. Nor does it appear to include other costs, expenses, and losses that may be indirectly revealed elsewhere in Merck’s business or operations. The attack in question is the NotPetya ransomware attack, which impacted countless companies worldwide on June 27 of this year.

Lost Business Resulting from Ransomware
Merck’s announcement is remarkable for several reasons, especially for those who negotiate technology contracts and agreements with data privacy and security implications. First, it’s noteworthy in its relatively clear quantification of lost business resulting from the ransomware attack. That is, often it is difficult to quantify lost business, lost sales, and consequential damages when negotiating liability provisions related to data security and information security in technology agreements and other commercial contracts. This is not to say that Merck’s recitation of these amounts is a new rule-of-thumb or benchmark, but it may start a conversation.

Quantifiable Losses
Second, the loss numbers reported by Merck are not small ones. It is common to discount publicly announced forecasts of ransomware impacts that are viewed as extreme – $75 billion per year, according to one recently cited resource. But the concreteness of Merck’s number and the specificity of the ransomware attack merits attention.

Ransomware is Fact-Specific
Third, the Merck announcement implicitly underscores the criticality of the precise facts surrounding the NotPetya ransomware attack and the unique business and situation of Merck. Not all ransomware or malware attacks can cause the same sort or amount of losses reported by Merck, nor does the same ransomware or other malware give rise to the same quality or quantity of losses for every corporate victim. When negotiating data privacy and data security provisions in commercial technology contracts and similar agreements, it is important for all sides to consider the specific circumstances and risks related to the transaction and parties in question.

Ransomware Impacts Are Not Necessarily Per-Record
And, fourth, the Merck report sheds light on the financial repercussions of ransomware, as opposed to other malware and hacking activities. That is, there are a number of industry and other reports and surveys that speak to the financial and other impacts of data breaches and security breaches on a per-record basis (for example, cost per record, records per breach, etc.). The 2017 Ponemon Institute Cost of a Data Breach Study, Verizon’s 2017 Data Breach Investigations Report, and Gemalto’s Breach Level Index Findings for the First Half of 2017 are just a few. However, in many cases the particular per-record numbers reported do not provide a clear picture of the financial effects of ransomware, which often is not the kind or scope of cyber-attack that can be assessed on a per-record basis.

Merck’s 10-Q for the third quarter of 2017 is definitely not a quick-fix answer to the question of how much a ransomware attack would or could financially impact a company. However, for attorneys, contract professionals, and others who draft and negotiate technology agreements and contracts and, specifically, information and data security and privacy provisions, the Merck quarterly report is potentially meaningful.

Reuters is reporting that a former partner at a major law firm in Washington pleaded guilty on Wednesday to charges that he tried to sell copies of sealed whistleblower lawsuits against corporations that he obtained while working at the U.S. Justice Department.

Reporter Nate Raymond writes that Jeffrey Wertkin was working at Akin Gump Strauss Hauer & Feld LLP when he was arrested in January trying to sell an undercover federal agent one of the lawsuits while wearing a wig as a disguise, according to court papers.

As a former employee of the Justice Department, he had access to lawsuits filed by whistleblowers against companies on the government’s behalf to recover taxpayer funds paid out based on fraudulent claims. Prosecutors said he copied several whistleblower complaints and then tried to sell them for a “consulting fee.”

Read the Reuters article.

Twenty-three Trump businesses including his Mar-a-Lago Club must retain records after they receive subpoenas from the attorneys general in Maryland and the District of Columbia as part of a lawsuit accusing the president of profiting from his office, Bloomberg reports.

A U.S. district judge granted the Democratic officials’ request to serve so-called preservation subpoenas, which require the businesses to retain documents but not to immediately produce them, accordingn to reporter Andrew W. Harris.

The AGs claim that the president’s continued ownership of his business empire allows him to make money from foreign and domestic governments.

Read the Bloomberg article.

Just days into his new job as chief legal officer at Uber, Tony West sent an email to the firm’s security team telling them to stop any competitive intelligence projects that included surveilling individuals, reports Recode.

In the email, West said he and new CEO Dara Khosrowshahi “are still learning the details about the extent of these operations and who was involved in directing them, but suffice it to say there is no place for such practices or that kind of behavior at Uber.”

Reporter Johana Bhuiyan writes that Khosrowshahi also sent an email to all employees, saying in part, “I will not tolerate misconduct or misbehavior that was endorsed or excused in the past. Period.”

The ride-hailing company has had to deal with the sudden loss of its former CEO, a lawsuit from a competitor, and other challenges in recent months.

Read the Recode article.

Littler has added Russell A. Jones and Kathryn S. McConnell as shareholders in the Atlanta office. The  employment litigation and counseling practitioners join Littler from Kilpatrick Townsend & Stockton.

“Our Atlanta office has grown steadily over the years and now comprises more than 40 lawyers,” said L. Traywick Duffie, office managing shareholder of Littler’s Atlanta office. “Adding Russell and Katy, who both bring extensive experience in labor and employment law and a deep knowledge of the region, will further strengthen our team in Atlanta, which recently was among several Littler offices to earn a Tier 1 ranking in the 2018 U.S. News – Best Lawyers® ‘Best Law Firms’ list.”

Jones focuses his practice on providing counseling and training on various issues that arise out of the employer-employee relationship, including compliance with equal employment opportunity laws, union avoidance, wage and hour issues, disability and medical leave requirements, and non-competition and other employment agreements. He also helps businesses comply with state and federal laws related to background checks of employees and job applicants, workplace privacy and information security, policies related to employees’ social media activity, and whistleblowing and retaliation. Jones regularly represents clients in state and federal courts, before administrative agencies, and in the mediation of employment-related claims.

“Having begun my legal career at Littler nearly 18 years ago, I am thrilled to rejoin the Atlanta office and to be part of a firm with unparalleled capabilities and resources,” said Jones. “Littler has handled some of the most complex and significant labor and employment cases, including several out of the Atlanta office, and I look forward to leveraging Littler’s impressive platform to serve the evolving needs of global employers.”

McConnell counsels and defends multinational and domestic companies on employment and traditional labor law matters, including discrimination, harassment and retaliation in the workplace; wrongful termination; wage and hour compliance; unfair labor practice charges and union avoidance; and restrictive covenants. She regularly prepares and advises on non-competition, confidentiality, non-disclosure and other employment-related agreements, as well as the development of incentive and commission plans. McConnell’s employment litigation practice includes defending employers before state and federal courts, the Equal Employment Opportunity Commission and equivalent state agencies, and the National Labor Relations Board, as well as representing employers in arbitrations implicating collective bargaining agreements.

“Littler is a dominant force in labor and employment law, with technological capabilities, deep subject matter knowledge and a global footprint that is unrivaled in the space,” said McConnell. “I am excited to work with such a talented team of attorneys in the Atlanta office and across the globe to counsel employers operating in the U.S. and globally.”

Jones received his J.D., magna cum laude, from the University of Tennessee College of Law and his B.S., summa cum laude, from Appalachian State University. He worked as an associate in Littler’s Atlanta office from 2000 to 2003. McConnell received her LPC, with honors, from the College of Law in the United Kingdom and her B.A. from the University of Cambridge. She is admitted as a solicitor in England and Wales and, earlier in her career, worked in the London office of an international law firm.

Sidley Austin LLP has announced that Christopher Fonzone, former National Security Council (NSC) legal adviser and deputy assistant and counsel to the President, has joined the firm as a partner in its Washington, D.C. office. He will be a member of Sidley’s global Privacy and Cybersecurity practice.

Fonzone has years of experience advising high-level government officials on some of the most pressing national security issues of our time. Most recently, he provided counsel to the National Security Advisor, NSC staff and other White House officials on legal matters concerning cybersecurity, foreign investment issues and trade sanctions, intelligence, military and counter-terrorism operations, and international disputes. He played a pivotal role in helping to develop the Obama Administration’s Executive Orders on cybersecurity and position on key legislation designed to enhance the deployment of cybersecurity defensive measures and facilitate the sharing of cyber threat information between the public and private sectors. Prior to his time at the White House, Fonzone held positions within the Department of Justice and the Department of Defense, where he advised senior officials on a wide array of domestic and international legal issues, including those involving national security, military operations and litigation.

“Chris is an extraordinarily accomplished lawyer with significant high-level policy experience and an impressive background providing counsel on complex cybersecurity issues,” said Alan Raul, founder and co-leader of Sidley’s global Privacy and Cybersecurity practice. “We are proud to have Chris become a key member of our practice and join a growing number of notable recent additions to our privacy and cybersecurity group. We are very excited to welcome him to the team and look forward to working with him to expand our privacy and cybersecurity work in the defense and intelligence sectors.”

Sidley’s Privacy and Cybersecurity practice has grown this year, and now has more than 70 lawyers worldwide focused on U.S. compliance and litigation, the EU’s General Data Protection Regulation and Asia’s fast-evolving privacy regimes. In addition to internal growth, the practice has recently added lawyers in the privacy and cybersecurity space including:
• Wim Nauwelaerts, a leading EU data protection lawyer, who is a new partner in Brussels;
• Tim Muris, former Federal Trade Commission chairman, now senior counsel in Washington, D.C.;
• Anthony Gardner, former U.S. Ambassador to the EU, now senior counsel in Brussels and London; and
• Kate Heinzelman, who joined the firm’s privacy, cybersecurity and healthcare practices as counsel in Washington, D.C., following her service as deputy general counsel of the Department of Health and Human Services and associate White House counsel.

For 10 years, Blickstein Group, in cooperation with Consilio, has surveyed hundreds of law departments solely on the operations function to provide benchmarks that are useful to all law departments.

The written survey report is available now and may be downloaded at no charge.

On December 14, at 1 p.m. Eastern time / 10 a.m. Pacific, Blickstein will host a webinar to provide exclusive LIVE analysis of survey results by five industry leaders.

Those leaders are Brad Blickstein; David Cambria, Global Director of Operations – Law, Compliance and Government Relations at Archer Daniels Midland Co.; Joe Polizzotto, Senior Vice President, Strategy & Client Services at QuisLex; Kristin Calve, Publisher of Metropolitan Corporate Counsel; and Robin Snasdell, Managing Director at Consilio.

They will benchmark topics such as:

• The role of Legal Ops
• Change management
• Alternative fee arrangements
• Technology and tools
• Metrics and reporting

Download a copy of the report.

Register for the webinar.

Image by Grendelkhan

Explosive evidence alleging that a covert Uber unit stole trade secrets and hid internal communications emerged in federal court on Tuesday in the bitter intellectual-property dispute between Waymo and Uber, reports the San Francisco Chronicle.

Reporter Carolyn Said writes that a visibly angry U.S. District Judge William Alsup postponed the high-profile case’s trial, which had been set for next week, saying Waymo needs time to review the new evidence.

“We’re going to have to put the trial off,” Alsup said. “If even half of what’s in that letter is true, it would be a huge injustice to force Waymo to go to trial and not be able to prove the things said in that letter.”

He was referring to a letter from lawyers for Uber’s former manager of global intelligence. The U.S. Attorney’s office had provided the letter to the judge.

Read the Chronicle article.

The scorched earth legal battle over the Cellino & Barnes law firm has escalated, with one of the partners threatening to “burn the place to the ground,” according to court papers.

The New York Daily News reports that Stephen Barnes argued that his estranged partner Ross Cellino’s effort to dissolve the firm spells “financial suicide” for both of them, according to documents filed last week in a Buffalo court.

“The move, Barnes says in papers, would kill one of the most successful personal injury firms in the country,” writes reporter Stephen Rex Brown. “The Buffalo-based firm will earn Cellino and Barnes $12 million each in 2017 alone, papers say.”

Read the NY Daily News article.

Former TIAA general counsel Paul Cellupica has been hired by the Securities Exchange Commission at a time TIAA is under scrutiny from a NY State Attorney General investigation and a pending SEC whistleblower complaint, reports The Global Legal Post.

The state attorney general has been investigating TIAA’s mutual fund and annuity sales practices following a whistleblower complaint filed by TIAA with the SEC in the autumn outlining questionable sales practices the company and its brokers allegedly perpetuated on public school teachers investing for retirement, the report says.

Read the Global Legal Post article.

NAVEX Global will present a webinar to launch a new role-based Ethics & Compliance Benchmark Report for Legal Professionals.

The event will be Tuesday, Dec. 5, 2017, at 10 a.m. Pacific / 1 p.m. Eastern time.

The program will provide insights into how a legal department manages compliance program initiatives. Participants will discuss best-practices for building effective programs, revealing particular challenges and strengths unique to the legal function.

Featured speakers will be Randy Stephens, Vice President, NAVEX Global; and Scott Nelson, Partner, Baker McKenzie LLP.

Anyone interested in the webinar who is unable to attend the online event may register and receive a link to the recording and a full copy of the report afterwards.

Register for the webinar.

Conga has published an eBook designed to help readers get clearer visibility across contracts  through automating and integrating the contract lifecycle.

“Use-it-or-lose-it budgets are a fact of life, but they don’t have to derail your organization,” the company says on its website. “Your remaining dollars will go farther when everyone in your organization works smarter, more efficiently, and more diligently. Lightning-fast automation, policy enforcement, and true oversight will help you get the most out of end-of-quarter initiatives without taking on unnecessary risk.”

Download “The Path to Year-End Efficiency” to:

• Do more with your year-end dollars
• Learn how to accelerate sales processes
• Understand the importance of getting contract management right
• Stop the bottlenecks associated with year-end
• Boost purchasing efficiency and oversight

Download the guide.

A former general counsel of insurer WellCare Health Plans Inc. has been sentenced to six months in prison for making a false statement to Florida’s Medicaid program as part of what prosecutors called a $35 million healthcare fraud scheme, Reuters reports.

A U.S. district judge in Tampa sentenced Thaddeus Bereday, who was indicted in 2011 along with four other former WellCare executive. The former GC pleaded guilty to a false statement charge in June, according to court records.

Reuters reporter Nate Raymond writes that Bereday, 52, was also sentenced to three years of supervised release during which he must spend one year in home confinement, prosecutors said. He was also ordered to pay a $50,000 fine.

Read the Reuters article.

The Northeast Clean Energy Council and NECEC Institute will present a webinar exploring how established corporations and early-stage companies can partner to develop new technologies in a mature market.

The one-hour event will be Tuesday, Nov. 12, 2017, at 1 p.m. EST.

Panelists will cover topics such as collaboration strategies that enable entrepreneurs and corporates to iterate, how to launch new products that may change the status quo, and how to explore new markets, NECEC says on its website.

Speakers will share the latest research on corporate partnerships as well as a presentation of a case study on a strategic partnership between Schneider Electric and KGS Buildings.

Attendees will learn:

• The formats a strategic partnership can take
• The importance of aligning strategies, customer value, sponsorship and patience
• How a partnership can help leverage resources
• Different needs require different partners

Register for the webinar.

In an article in the Pillsbury Policyholder Pulse blog, Kimberly Buffington and Cara Adams discuss the question: Will insurance policies become the laboratory to test the thesis behind smart contracts?

“Whether there is room for smart contracts in the insurance context remains to be seen. Generally, the ‘if this occurs, then that’ nature of insurance policies lends itself to the conditional nature of smart contracts,” they write.

There are drawbacks, they explain, writing that it would be unrealistic to expect smart contracts to eliminate ambiguities and resulting disputes any more than such disputes are currently eliminated by traditionally written contracts.

Read the article.

You can draft the best, most protective contract in the world, but if the statement of work (SOW) fails to adequately describe the deliverables and the services to be rendered, projects can fail, cost can overrun results and project schedules can be delayed, writes Michael R. Overly of Foley & Lardner LLP.

He writes that he believes the primary cause for project failures is a poorly drafted SOW.

In his article, Overly discusses six tips for better drafting, covering: a plain English statement, attention to detail, using clear grammar, guesses vs. estimates, reading assumptions carefully, and ensuring consistency with the primary agreement.

Read the article.