The National Association of Corporate Directors has published a guide that reviews the three main indicators of an effective partnership between the general counsel and the board. The guide is available for free downloading.

Those three indicators include:

• aligned role expectations
• open and direct communication
• enhanced dialogue on risk oversight

Over the past few years, the role of the general counsel has grown in both scope and stature, the NACD says on its website. Once seen purely as legal advisors, many general counsel now spend much of their time serving as strategic advisors, regularly providing strategic direction to the CEO and to the board of directors.

General counsel should recognize that directors’ expectations of them go beyond their traditional legal role and that their unique legal and ethical perspective strengthens their ability to help mitigate organizational risk.

Download the guide.

More than 1,700 compliance professionals are expected to attend the 16th Annual Compliance & Ethics Institute in Las Vegas Oct. 15-18, 2017.

The event — at Caesars Palace — will be presented by the Society of Corporate Compliance & Ethics Institute.

The agenda calls for more than 150 speakers in more than 110 sessions.

Learning tracks will include ethics, risk, case studies, compliance lawyer, multi-national/international, IT compliance, general compliance/hot topics, and advanced discussion groups.

New for 2017 is a full-day pre-conference workshop on building professional skills.

Register for the event.

E-commerce players, led by the industry giant Amazon, have made it so easy and fast for people to shop online that traditional retailers, shackled by fading real estate and a culture of selling in stores, are struggling to compete, reports The New York Times.

Reporter Michael Corkery says the shift has been building gradually for years. But economists, retail workers and real estate investors say it appears that it has sped up in recent months.

“Between 2010 and 2014, e-commerce grew by an average of $30 billion annually. Over the past three years, average annual growth has increased to $40 billion,” writes Corkery.

While the retail industry has always had its ups and downs, but even to many experienced retail workers, who are used to losing their jobs based on the seasons, this downturn feels different, the Times reports.

Read the NYT article.

Mark Lanier

Trial lawyer Mark Lanier was not looking for new cases when two Idaho attorneys called him earlier this year with an appeal to what he described as his “core sense of right and wrong,” according to a post on the website of Androvett Legal Media & Marketing.

The Androvett post continues:

The always-busy Houston lawyer recently earned a $1 billion  product liability verdict against J&J and is gearing up for numerous other trials. But when he heard more about the case involving Antwon McDaniel, a developmentally disabled teen who was bullied and raped at a rural Idaho high school, the decision to join the legal team was an easy one.

“It’s outrageous. It’s horrible,” Mr. Lanier told the Magic Valley Times-News. “As a lawyer, if I can help in a case like this and I don’t, they ought to take away my bar card.”

The federal lawsuit, filed last year, claims that the individually named school board trustees, administrators, teachers and coaches of the Dietrich School District chose to ignore the ongoing physical and mental abuse being suffered by Antwon McDaniel, effectively depriving him of his constitutional rights. The racially motivated violence inflicted on the now 19-year-old Mr. McDaniel, who is black, included anal rape with a coat hanger by several white football teammates in 2015. Criminal cases stemming from the locker room attack have all been resolved, but the civil lawsuit seeking $10 million is ongoing, with the next hearing set for May 9. Trial dates have not yet been scheduled.

Mr. Lanier described his decision to join the lawsuit in an interview with the Times-News:

“My goal is to make sure no student in Idaho or anywhere else has this problem again,” [Mr. Lanier] said. “We need to do something to protect our children who don’t fit in, aren’t the right color, aren’t the right religion and don’t fit that model profile. There’s a chance to do something here.”

There were three main motivating factors, Mr. Lanier said. The need for the school district to be responsible; the “egregiousness of it all”; and because he “cares deeply about racial issues.”

“America is at a place where we have to find a way to be accepting of people of different race, religion, gender, or even political affiliation,” Mr. Lanier said.

Social media offer many benefits through its hyper connectivity, but it also can cause problems in the business world for those whose viewpoints may conflict with their clients, employees or colleagues, writes Christina DiPinto of Muse Communications.

She explains that, while there are a variety of these social media ethics violators, there are three types that all lawyers should know about and avoid emulating: the double agent, the rebel, and the frenemy.

The post concludes with some helpful hints, strategies and tips to make sure a firm’s social media experience is free of ethical concerns.

Read the article.

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A recent decision of the Arizona Court of Appeals provides guidance for evaluation of the enforceability of arbitration agreements in the health care field, reports Snell & Wilmer in its Health Law Checkup blog.

Andrew Sniegowski explains that Gullett v. Kindred Nursing Centers West, LLC arose out of the plaintiff’s claims that a rehabilitation center had abused and neglected his father, who lived there for the last month of his life. The plaintiff argued that the arbitration agreement was substantively and procedurally unconscionable.

The court determined that the agreement was substantively valid, but it remanded the case for further proceedings in the trial court limited to the issue of procedural unconscionability.

Read the article.

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A company that has always sold widgets can be expected to rely on time-tested terms of sale/purchase in its contracts. But, according to a post in the Tech & Sourcing @ Morgan Lewis blog, a company that now uses an online portal or provides other electronic access to counterparties should update those trusty standard terms.

“Have you been utilizing e-commerce to significantly improve convenience and efficiency? If an online platform were your product, rather than just a logistical tool, you would carefully craft end user terms that protect your rights and limit your liabilities associated with the platform,” write Barbara Murphy Melby and A. Benjamin Klaber.

The authors discuss the steps to take to make sure standard contract terms will more closely reflect the hybrid physical/digital nature of transactions and commercial relationships.

Read the article.

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Conga has posted a complimentary webinar discussing the need of an organization to gain a clear understanding of contract data to attain maximum efficiency.

“You need to access to reports and analytics to truly understand the contracts within your company and to better understand how to increase efficiencies and manage relationships,” Conga says on its website. “Analytics provides superb insight into workflow, facilitating project management and allowing you to identify which steps or contract types are creating slowdowns.”

The webinar can help users to:

• ​Target contract pain points in your organization
• Gain deep insight into contract lifecycle data
• Learn about our powerful Analytics functionality

Watch the on-demand webinar.

In his Commonsense Construction Law blog, Stan Martin asks the question “How do additional insured obligations work with subcontract flow-down clauses.” And he answers it with one word: “They don’t.”

“Unless the subcontract is carefully drafted, that is. So where the prime contract required the owner to be named as an additional insured, and the subcontract flow-down clause passed along the GC’s obligations to the owner, as the sub’s obligations to the GC, this did not by itself result in a requirement that the sub name the owner as an additional insured. That is one lesson from a New York court decision,” Martin explains.

He discusses Navigators Ins. Co. v Merchants Mut. Ins. Co. at length and concludes with two lessons to be learned.

Read the article.

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ETF Trends has posted an on-demand webinar titled “Navigating the 2017 Oil Market.”

On the recent webcast, Drill Into the Future of Oil With Wall Street’s Top Geopolitical Analyst, Helima Croft, Managing Director and Global Head of Commodity Strategy Global Research at RBC Capital Markets, and Simeon Hyman, Head of Investment Strategy at ProShares, touched upon various factors that could affect the crude oil prices, including OPEC and policy changes, and looked to investment opportunities to potentially capitalize on the energy market.

The discussion coveers:

• OPEC — Its role in the current environment
• Policy — A look at the key decision makers
• Risk — The red herrings versus the real risks
• Investing — Different vehicles and strategies

Watch the on-demand webinar.

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Image by U.S. Coast Guard

A committee of attorneys involved in litigation arising from the 2010 Gulf of Mexico oil spill has made its recommendation for dividing $700 million in fees among 122 law firms involved in years of complex legal work, reports the Associated Press.

Two Louisiana law firms that steered the litigation will get the biggest payouts. Domengeaux Wright Roy & Edwards of Lafayette and Herman, Herman & Katz in New Orleans will get about $87.8 million if a federal judge approves the recommendation filed this week in U.S. District Court in New Orleans.

“Millions of barrels of oil spewed into the Gulf of Mexico for 87 days after an explosion on the Deepwater Horizon offshore rig at BP’s Macondo well in the Gulf of Mexico,” writes Kevin McGill. “Eleven workers were killed and the pollution affected Gulf fisheries, delicate wetlands and recreational beaches.”

Read the AP article.

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The general counsel of Dewey & LeBoeuf while the now-defunct law firm collapsed has experience with crises, so Bloomberg Law asked her to explain the likely legal ramifications of United Airlines’ botched handling of an overbooked flight and what the company may do to mitigate the fallout.

Janis Meyer, now a partner at Hinshaw & Culbertson, focuses her practice on professional responsibility, writes Jason Booth.

She discusses what the airline’s general counsel likely is doing this week to deal with the crisis, who he will speak to, who ultimately bears responsibility, whether apologies serve any legal purpose, and whether the incident would play out differently if phones to capture the event were not available.

Read the Bloomberg article.

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A Florida appellate court rejected Trump National Doral’s attempt to get out of paying a Miami paint store chain over $315,000 — based on an unpaid bill for $32,535, reports The Miami Herald.

“Trump’s company argued last summer and to the appellate court that The Paint Stop hadn’t followed certain Florida statutes to the letter and the Notice to Owner from The Paint Stop identified the wrong contractor. Both [the trial court] and the appellate court slapped those arguments down,” writes reporter David J. Neal.

The bill was for renovations on Donald Trump’s golf resort. Attorneys’ fees accounted for $282,949 in the judgment.

Read the Miami Herald article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Full Disclosure: Bridging the Information Gap Between Inventors and the Patent System,” featuring Fitch Even partner Michael J. Krautner.

The webinar will take place on Thursday, April 27, 2017, at 9:00 am PDT / 10:00 am MDT / 11:00 am CDT / 12:00 noon EDT.

In a release, the firm said patents can be extremely valuable business assets, but only as valuable as the information they convey. Before a patent can be monetized, it will be scrutinized by myriad individuals — inventors, attorneys, examiners, judges, juries, and business leaders — each of whom will interpret the patent in the light most favorable to their objective. As a patent filer, it’s vital to ensure inventors provide clear, detailed, and accurate descriptions of their inventions so they’ll withstand scrutiny and generate the optimal return on investment.

Inventors can provide abusiness with a true competitive advantage, but because of the technical and legal complexities involved, attempting to capitalize on their innovations can be both expensive and risky. By educating inventors to recognize patentable innovations, the expense can be reduced and the risk mitigated.

This webinar will provide tips and strategies on how to
• Educate inventors on how to identify viable inventions and distinguish them from unpatentable ideas and concepts
• Ask the right questions to get inventors to divulge the unique details of an invention
• Tell a story that clearly illustrates why a patent is warranted

CLE credit has been approved for California and Illinois and is pending in Nebraska. Other states may also award CLE credit upon attendee request. There is no fee to attend, but registration is required.

Following the live event, a recording of the webinar will be available to view for one year at www.fitcheven.com.

Register for the webinar.

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Practical Law has completed its annual survey of public M&A transactions, the fourth to analyze deal-protection measures binding target companies.

The company will discuss the survey results in a complimentary 60-minute webinar scheduled for April 26 at 1 p.m. EDT.

This year’s edition reviews the first full year of public merger deals to have been negotiated following the Delaware Supreme Court’s seminal 2015 decision in Corwin v. KKR, which held that an informed stockholder vote can restore the presumptions of the business judgment rule in the target board’s favor. The study provides a timely snapshot of how practitioners have begun responding to this increased deference toward director decision-making in M&A.

The Practical Law study examines how various deal characteristics — including buyer type, form of consideration, deal size, and financing—affect the negotiations and ultimate agreement between the transaction parties. The study also reviews the deal protections negotiated by buyers who require their own stockholder approval before closing. This analysis has two goals: to learn how frequently those buyers agree to symmetrical deal-protection measures, and to determine how reciprocally binding covenants and remedies affects the deal protections agreed to by the target company.

Daniel Rubin, Senior Legal Editor, Practical Law Corporate and M&A and primary author of the study, will review the study’s results, including its findings on no-shop and go-shop provisions, fiduciary outs and matching rights, termination rights, and break-up fees.

Following the webinar, attendees will receive a link via e-mail to these Practical Law resources:

Fiduciary Duties in M&A Transactions
Fairness Opinions

Register for the webinar.

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The Boston Herald is reporting that United Airlines — embroiled in controversy after it forcibly removed a doctor from an overbooked flight — could be in for a legal beatdown if the passenger takes the beleaguered carrier to court, according to legal experts.

Reporter Bob McGovern quotes Anthony Tarricone, a Boston attorney who has handled cases involving aircraft accidents and disasters: “I think they are going to have a serious legal issue on their hands. United might say they didn’t hurt him, and that it was security, but United set that situation in motion.”

“United CEO Oscar Munoz may have shot the company in the foot when he told the airline’s employees on Monday that they ‘followed established procedures,’” writes McGovern. “Instead of pegging the case on rogue security personnel, attorneys may be able to point to the statement as an acknowledgement that the company backed the behavior.”

Read the Boston Herald article.

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A review of 10 trademark databases shows that President Trump’s enterprise has 157 trademark applications pending in 36 countries, reports The New York Times.

This business enterprise poses legal and moral perils to the president, even though that business now is run by his two sons. A team of constitutional lawyers and ethics lawyers brought litigation arguing that the Constitution prohibits the president from accepting any economic benefit, including trademark approvals, from foreign governments, write Sharon LaFraniere and Danny Hakim.

“The legal question is whether new foreign trademark registrations and other transactions between Mr. Trump’s businesses and foreign governments violate the emoluments clause of the Constitution,” according to the Times. “The clause prohibits federal officials from accepting ‘any present, emolument, office or title of any kind whatever from any king, prince or foreign state.’”

Read the NYT article

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BlackBerry said Wednesday it has been awarded a preliminary $814.9 million in royalty overpayments made to Qualcomm, according to a CNBC report.

“BlackBerry argued that it was overpaying Qualcomm in royalty payments,” writes Todd Haselton. “Last April, BlackBerry and Qualcomm entered discussions to settle the dispute and analyze an existing ‘agreement to cap certain royalties applied to payments made by BlackBerry under a license agreement between the two parties.'”

Apple also has a suit pending against Qualcomm, claiming the company is “withholding nearly $1 billion in payments from Apple as retaliation for responding truthfully to law enforcement agencies investigating them.”

Read the CNBC article.

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By Christopher Barnett
Scott & Scott LLP

It is common practice for software publishers to incorporate by reference various licensing rules and policies to govern the usage of the publishers’ software products. For example, Microsoft’s volume license agreements (such as MPSAs or Enterprise Agreements) incorporate Microsoft’s Product Terms, Online Services Terms and Service Level Agreement for Online Services (among other documents), with a specific references to those documents, indications of which versions of the documents will control during the term of the agreement, and the URL of the websites where current versions of the documents may be found. While Microsoft’s licensing terms occasionally can be somewhat ambiguous or difficult to apply, the documents incorporated by reference in its agreements are comprehensive and serve to reasonably define the parties’ respective rights, obligations and expectations regarding usage of Microsoft’s products and services.

Oracle takes a different approach, one that reasonably may be characterized as “hiding the ball” from its customers.

Oracle’s current, standard-form OMA and OMA Schedule P (governing software usage) does incorporate a number of documents by reference, including but not limited to:

(1) “Program Documentation,” defined as “the Program user manual and Program installation manuals,” available at: http://oracle.com/documentation

(2) Oracle technical support policies, also available at: http://oracle.com/contracts

(3) The Program-Related Service Offerings document, also available at: http://oracle.com/contracts

(4) Various program-specific documentation sets identified in the License Definitions and Rules section of Schedule P, also available at: http://oracle.com/contracts

(5) Oracle’s Processor Core Factor Table, also available at: http://oracle.com/contracts

(6) Oracle’s Application Licensing Table, also available at http://oracle.com/contracts

That list may seem fairly lengthy at first glance, but it is deficient in a number of respects, as follows:

Notably absent from the list is Oracle’s (infamous) Partitioning Policy, which currently is available here: http://www.oracle.com/us/corporate/pricing/partitioning-070609.pdf .The Partitioning Policy also does not appear to be clearly identified at the http://oracle.com/contracts website that is referenced so frequently in the OMA.
The Partitioning Policy is a truly problematic document.

Schedule P includes the following definition:
“Processor: shall be defined as all processors where the Oracle Programs are installed and/or running.”

Schedule P then provides a number of program-specific rules for calculating the number of Processor licenses required for licensed servers. However, the basic definition above would appear to pertain to all of those use cases.

Oracle customers whose use of Oracle programs such as Database Enterprise Edition has been the subject of audit activity know all too well that Oracle’s License Management Services (LMS) compliance teams do not limit their reviews to a natural definition of what constitutes “installed and/or running.” Instead, LMS applies concepts described in the Partitioning Policy to vastly expand the scope of what most IT professionals would assume those words to mean. In particular, LMS uses the policy to support its contentions that only specific kinds of virtualization technologies (which notably do not include VMware) may be used to limit the number of licenses required in virtualized environments, and, absent strict adherence to those rules, that all physical processors on all physical hosts in a virtualization environment must be licensed to their full capacities for all Oracle products running anywhere in the environment.

Despite the fact that such a counter-intuitive and aggressive policy is nowhere expressly incorporated in the OMA, LMS typically insists on that interpretation, potentially upon pain of terminating a customer’s licenses or escalating to litigation.

While it is mentioned in Schedule P, the Application Licensing Table (ALT) is not really where Oracle says it is.

The ALT identifies and defines a number of licensing prerequisites and Oracle technologies that may be bundled with certain Oracle Applications (such as E-Business Suite). It is a critical document for understanding the scope of the licenses that companies purchase for those Applications.

However, when you browse to http://oracle.com/contracts, the ALT is not identified on the displayed page. Instead, the page contains links to a few policy documents, plus sub-pages where agreement-specific information may be found. Clicking on the link to the “Oracle Master Agreement” displays a page from which the ALT is conspicuously absent. To get to that document, it is necessary to click on the link for the Oracle “License and Service Agreement” (OLSA), which is a different kind of master agreement governing usage of Oracle products and services.

That kind of ambiguity regarding the location of incorporated terms may seem to be a minor issue. However, it nevertheless further complicates an already complicated licensing universe, and it also offers LMS yet another way to surprise Oracle’s customers with previously unidentified licensing requirements during audits.

Unlike Microsoft’s agreements, there also is no “version control” language in the OMA to identify which, specific ancillary documents have been incorporated into the agreement. That fact provides Oracle an excellent opportunity to change the terms upon little or no notice.

Oracle generally provides little or no meaningful guidance regarding how to avoid unexpected license exposure.

For example, in Microsoft’s Product Terms, each product typically includes a list of added-cost functionalities related to that product and the additive licenses that are required in order to support such usage. By contrast, there is nothing stated either in the OMA or in any readily accessible, ancillary documents that defines when a licensee of Oracle Database Enterprise Edition is required to purchase licensing for added-cost Database options, like Active Data Guard or Spatial and Graph. This is true even though those added-cost options are included with the default Database installation package and often require technical reconfigurations in order to avoid triggering a licensing obligation.

As a result, during an audit, LMS often will ask a targeted entity to run Oracle’s proprietary measurement tools to validate product usage, and the outputs of those tools will reflect usage of Database options or other, added-cost functionalities that target’s business teams never intended to use or knew that they were “using.”

All of the above confusion related to the basic structure and presentation of Oracle’s licensing rules again emphasizes the need for companies using Oracle products to consider engaging and periodically working with a knowledgeable, third-party Oracle licensing consultant. I consider those kinds of engagements to be a necessary cost of business for using Oracle’s products, and they need to be factored into financial models whenever companies considering making or maintaining significant investments in Oracle software.

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Barnes & Thornburg LLP has added Will Russ to its Dallas office as a partner in the Real Estate Department.

Russ advises investors, developers and operating companies with significant real estate assets. His practice focuses on M&A deals, secured financings, and projects across the energy value chain, including pipelines, gathering systems, refineries, traditional and renewable power plants. For his energy and infrastructure clients, Russ negotiates surface-use agreements, easements and rights-of-way, renewable power leases, and ground leases for commercial and industrial uses, the firm said in a release.

“Will has handled a variety of real estate transactions for leading energy companies in Texas and across the country,” said Mark Bayer, manager partner of Barnes & Thornburg’s Dallas office. “He can lead complex projects from beginning to end, and he does so with the practical, business-oriented approach sought by our clients.”

Russ’ representation of traditional real estate clients includes acquisitions, dispositions and the formation of joint ventures and development programs in the industrial, multifamily, office, and retail sectors.

Russ joins from Vinson & Elkins and is reunited with former colleague Elizabeth Brandon. His arrival comes on the heels of another attorney with strong ties to the energy sector, Bill Jones, former general counsel to Texas Gov. Rick Perry. The Dallas office now has 14 attorneys since opening in 2015.

Russ earned his J.D. from Harvard Law School and his A.B. from Princeton University. He is admitted to practice in Texas.

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