Companies must shift from focusing on rules and consequences to emphasizing culture and values, according to Carolyn Frantz, Microsoft’s deputy general counsel and corporate secretary, in an article published by the National Association of Corporate Directors.

The article is available for downloading from the NACD website.

n this interview from the Strategic Asset General Counsel forum, an annual day-long event hosted by The National Association of Corporate Directors, Frantz answers these questions:

• Who presents compliance-related information to the board?
• Do you need an outsider CEO to change a company’s culture?
• What does tone-in-the middle training look like?
• What shapes culture at the bottom?
• How do you address differences in moral values as a global company?

Download the article.

A new study from BarkerGilmore confirms that female lawyers are still paid less compared to their male counterparts — and the disparity is greater for GCs.

The Global Legal Post reports on the study: “On average, female in-house counsel earn 84 per cent of what male in-house counsel earn. The gap is much larger at the general counsel level, with a 78 per cent disparity, than at managing counsel or senior counsel levels, which show 90 per cent and 89 per cent disparities respectively.”

Above the Law takes a look at overall compensation for general counsel of both genders: “As one might expect, general counsel have the largest variation — with total compensation ranging from $350K to around $900K based on company revenue. Managing counsel, those with at least one direct report who aren’t the GC, are much more consistent across companies, with comp averaging from just under $300K to around $350K.”

Read the Legal Post article.

Zapproved and Hobson & Company recently partnered to research the average return on investment (ROI) that businesses gained by implementing Digital Discovery Pro for in-house ediscovery. A report on the research is available for downloading at no charge.

Zapproved reports that its research shows a 4X return on investment with an automated, cloud-based software solution.

“Companies in this study reported that for many of their investigations and legal matters, in-house ediscovery is more cost-effective than outsourcing,”  Zapproved reports. “Our experience with clients backs that up: for organizations that are ready, automating data processing and review in house is well worth the investment. But how quickly does that investment pay for itself?”

Download the report.

Select Counsel will present its latest In House Focus CLE program, What GCs Need to Know About Vendor, Customer and Competitor Bankruptcies, on Wednesday, May 9, 2018,  at 9 a.m. PT / 12 ET.

The event is accredited for CLE in most states and is free for in-house counsel.

Ted Storey, former general counsel of Round Table Pizza, will join Tobias Keller and Jane Kim, partners in Keller & Benvenutti LLP, to discuss a range of issues commonly presented to healthy companies when vendors, customers or competitors file bankruptcy cases. These issues include engaging in competitive behaviors, recovering claims and evaluating ongoing credit exposure, and protecting against common motions and actions taken in bankruptcy.

Here are some of the questions that will be answered during the course of the program:

1. In what ways can a competitor’s bankruptcy filing be used to your advantage?

2. What will happen to the IP you’ve licensed when the licensor files for chapter 11?

3. What are the pros and cons to buying assets in bankruptcy?

4. How can you get paid when your customer or licensee files for bankruptcy?

Register for the webinar.

Exterro has published its 2nd Annual Study of Effective Legal Spend Management and made it available for downloading at no charge.

The report discusses how legal departments are allocating spend over the past year and what techniques are most effective in reducing legal spend.

It includes:

• 22 Page comprehensive report to benchmark your legal spend against other leading legal departments
• Analysis of the top techniques to reduce legal spend (22 techniques ranked)
• Expert insight with report key takeaways

Download the report.

NAVEX Global has published the 2018 Ethics & Compliance Hotline & Incident Management Benchmark Report. The report is available for downloading at no charge.

The newly released report shows the number of employee complaints and misconduct reports are rising — and a surprising 44 percent of all reports are substantiated.

However, cases are taking longer than ever to close, NAVEX points out in the report. “When cases take too long to resolve, employees feel unheard and are more likely to report outside your organization, where you miss the opportunity to mitigate risk with an appropriate response. Download the report to compare your compliance program against industry standards and get best practices from the experts to help you encourage internal reporting.”

Download the report.

Merck & Co.’s loss of a $200 million jury verdict for patent infringement shows that companies with internal prosecution staff need to observe strict rules for external communications, according to Bloomberg Law.

“The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s judgment that Merck could not collect the award because of its ‘unclean hands’ in procuring the two patents asserted against Gilead Sciences Inc.,” writes Tony Dutra. “Under the unclean-hands doctrine, the lower court was reasonable in wiping out the entire amount because Merck’s patent attorney’s misconduct in 2004 directly affected its litigation position in 2013, the appeals court said.”

A Merck in-house lawyer listened in on a 2004 phone call during which another company divulged information on a compound being developed. The lawyer — despite being under a nondisclosure agreement — subsequently changed a Merck patent application that was in the works, narrowing the applied-for patent claims to cover what the other company disclosed, Dutra explains.

Read the Bloomberg article.

Morrison & Foerster announced the results of “Legal Risks to Consumer Products Companies in 2018,” a survey of senior in-house legal counsel at consumer products companies. Morrison & Foerster commissioned the survey to gain and share insights into consumer products companies and their key legal concerns, perceptions of emerging risks, and expectations for 2018.

The report includes the following findings:
• The most important drivers of change for consumer products companies in 2018 will be the economy (78%), government regulatory change (71%), and technological advancements (59%).
• 69% of respondents said that litigation was their biggest concern, followed closely by protection of brand equity (60%) and privacy and data security (56%).
• Approximately two out of five legal departments expect their litigation costs to increase in 2018. Estimated cost increases ranged from 5% to 11% or more.
• Approximately one in three legal matters in 2017 were considered high risk or complex, with one out of five in-house counsel expecting more high-risk lawsuits in 2018.
• Survey respondents expect that product liability (45%), data privacy (44%), and regulatory/compliance (42%) will give rise to the most new case activity.

“Consumer products companies have always faced unique legal challenges, but in-house counsel are now under more pressure than ever to protect their brand and keep their consumers’ trust,” said Erin Bosman, chair of Morrison & Foerster’s Product Liability and Counseling Practice. “Our survey revealed that, while reputation and litigation threats continue to grow, advancing technology ¬ like the Internet of Things ¬ has created an even more complex legal landscape that will force companies to anticipate and plan for previously unknown risks.”

“Our survey results show that the ever-changing regulatory environment is also top-of-mind for consumer products companies,” stated Julie Park, a partner in the Product Liability and Counseling Practice. “While the current federal government is unlikely to add regulations, state and local governments are taking a different approach and could implement changes on everything from climate change and nutrition to privacy and labor laws.”

Morrison & Foerster’s “Legal Risks to Consumer Products Companies in 2018” survey of consumer products companies was conducted in late 2017 by telephone, primarily by market research company YouGov. The survey incorporates responses from senior in-house counsel at more than 60 consumer products companies in the United States with revenues ranging from $250 million to $1 billion. Companies participating in the survey represent a range of consumer products, including electronics, foods and beverages, household products, apparel, cosmetics, and office products.

Read the report.

Kevin LaCroix, writing in The D&O Diary, discusses a recent scholarly article that takes a detailed look at director and officer claims arising out of allegations of sexual misconduct.

The University of Chicago Law School article examines the potential bases of liability, and considers the relative social utility of this kind of litigation, as well as the practical implications for corporate boards and their organizations.

LaCroix writes: “The authors conclude that ‘in some instances, corporate fiduciaries will indeed be liable to shareholders when workplace-sexual misconduct occurs at companies.’ In light of this conclusion, it would be prudent for companies and their executives to take steps to reduce their potential exposure to these kinds of suits.”

Read the article.

Kim Technologies will present a complimentary webinar, “Automating with a Legal Ops Platform vs Siloed Product Solutions,” on May 3, 2018, beginning at 1 p.m. EDT.

“The benefits of a unified software platform over multiple siloed products are clear,” the company says on its website. “Who wouldn’t want to keep all their data in one place; search and report on anything at the click of a button; provide a seamless user experience across the entire department or organization? Traditionally, this ‘holy grail’ has taken huge amounts of time and money to implement and maintain, and has rarely been an option for Legal. Instead, most law departments and law firms have organically grown a hodge-podge of software siloes that create an obstacle to innovation, efficiency and transparency.”

This webinar will cover:

• Global AI market update
• Preparing for the Age of Data
• Platform vs Product and why it matters
• To code or not to code, that is the question
• Automating workflows, documents and dashboards in hours, with no IT support!
• Q&A session

Register for the webinar.

An article published by Zapproved breaks down the results and explains the benefits of replacing an existing system — or lack thereof — with automated, cloud-based legal hold software.

The article can be downloaded at no charge.

Research results demonstrate a real rate of return on investment generated by automated cloud-based legal hold software, the company says on its website.

“E-discovery is expensive, but the risks of not handling it are even more costly,” Zapproved says on its website. “Many legal teams tend to focus their cost-reduction efforts on later phases of discovery, such as processing and review, overlooking the benefits of optimizing the preservation process. Yet putting in the effort to preserve and collect the right data has a trickle-down effect, saving money and time in every step that follows while minimizing potential spoliation. The question is, just how much can you save with effective preservation?”

Download the article.

The National Association of Corporate Directors recently convened a meeting of Fortune 500 audit and compensation committee chairs to discuss the key issues and challenges the board faces in the selection and use of nonfinancial metrics. A free report on the results of that meeting is available from NACD.

Three key takeaways emerged from the meeting.

• Boards should link nonfinancial metrics to strategic and cultural objectives.
• Audit committees should leverage internal audits to meet the challenge of nonfinancial data quality oversight.
• Compensation committees are focusing on the role nonfinancial metrics play in compensation-plan design and in eventual payouts.

The full report from the meeting includes:

• key questions for boards to ask about nonfinancial metrics
• the four critical roles for internal audit in support of governance over nonfinancial reporting
• special considerations for the compensation committee

Download the report.

Special Counsel, a provider of legal staffing and eDiscovery solutions, released the results of its first In-House Legal Trends Survey, a comprehensive look at how in-house legal departments are structured, how they are hiring and what their priorities are for the year ahead.

More than 500 in-house counsel, including general counsels and chief legal officers, completed the survey on topics related to talent acquisition resources, legal budgets and national and local salary data, including an examination of diversity and gender gaps.

In a release, Special Counsel said in-house legal departments have a strong desire to bring more talent in-house. According to the survey findings, 65 percent of respondents said they would prefer to bring additional talent in-house instead of relying on outside counsel. Nearly one third of respondents (32 percent) would consider using contract attorneys during their continued search for an appropriate full-time hire.

“Our expertise in the legal space allows us to provide niche solutions that help in-house teams compete in this tight labor market. Whether ready to add headcount or in need of a temporary hire, we work closely with our clients to understand their unique staffing needs and offer the most appropriate fit,” said Laurie Chamberlin, president, Special Counsel.

The economy is at one of its strongest points in years and the employment of lawyers is projected to grow 8 percent between 2016 and 2026 (according to the Bureau of Labor and Statistics). For the legal professionals surveyed, the study found that over half of them said they are planning to grow or would consider growing their department in 2018.

The In-House Legal Trends Survey found that salary was not the biggest draw for talent, with only 13 percent of respondents citing compensation as a top reason for working at their current company. On the other hand, benefits like flexible work arrangements (23 percent), as well as long-term growth opportunities (23 percent) help make a difference for employees. The right mix of salary and benefits may be contributing to strong tenure within legal departments, with nearly half of respondents saying they have been at their current job for six years or more (48 percent).

“Monetary compensation is only one piece of the puzzle,” said Amanda Ellis, senior vice president, Special Counsel. “Following suit with other industries, in-house legal departments are now offering alternative perks to compete for and retain talent.”

Talent acquisition continues to be a pain point for in-house legal departments, with over half of respondents (56 percent) sharing they are not confident in their HR or Talent Acquisition department’s ability to staff attorney positions, citing a lack of expertise. Alternatives such as a retained search firm, external contingency recruiters, and internal and external referrals continue to be used as positive talent acquisition resources throughout the industry.

See details of the In-House Legal Trends Survey.

The Association of Corporate Counsel is conducting the new 2018 Global Compensation Survey — the largest self-reported compensation survey within the in-house counsel profession in the world.

This groundbreaking global study of salaries and total compensation will provide in-house counsel and legal operations professionals with the data they need to benchmark pay and benefits.

Participants who complete the survey will receive 25 percent off the report when published.

Take the survey

Anyone ruminating over the elevated role of in-house lawyers might consider the case of Facebook, points out Elizabeth Olson in a Bloomberg Big Law Business report.

She writes that the company’s top two lawyers, Colin Stretch and Paul Grewal, have played both lawyer and spokesperson as the social media giant confronts a dizzying number of legal issues, which are besieging the Wild West of data privacy at tech companies.

“As tales of data misuse spilled into the open, Grewal, a former federal magistrate, took to social media to staunchly defend his employer. His blog posts filled the void created by the initial silence from CEO and founder Mark Zuckerberg and other top company brass. No doubt everyone in the company will be working overtime to stem billions in losses in recent days,” predicts Olson.

Read the Bloomberg article.

A magistrate judge in the U.S. Western District of Texas has disqualified a former counsel to Rolls-Royce from representing a client in litigation against his former employer, reports Bloomberg Law.

“Donald Little represented Rolls-Royce as in-house counsel from 1997-2008 and as outside counsel in a 2010 case where Rolls-Royce was alleged to have made false statements about ‘suspect’ airplane parts,” explains reporter Mindy L. Rattan. “Rolls-Royce hired George Gage as an expert in that case.”

Then, when Gage sued Rolls-Royce North America Inc. in a qui tam case that involved the explosion of a U.S. Air Force plane, Little represented him.

The magistrate judge who heard the defendant’s motion to disqualify Little said it was “stunning” that Little took that position.

Read the Bloomberg article.

Image by Elliott Brown

Before the top corporate lawyer at Uber Technologies departed last year, she sought a $100 million exit package, reports Business Insider.

Salle Yoo joined Uber as its first general counsel in 2012 and was later promoted to be its chief legal officer, leading the company’s 290-person legal department during a tumultuous time. She resigned in September 2017.

Reporter Julie Bort explains: “Yoo thought [the exit package request] only fair because she had seen male executives ask for and get huge exit packages, and she had spent her career at Uber encouraging women to lean in. So she took her own advice, opened her negotiations with [former CEO Travis] Kalanick by shooting high, and held her breath.”

She and Kalanick negotiated a compromise: less than two-thirds her original demand, but with a kicker: If Uber gave a better severance deal to another employee, it had to match the difference for Yoo.

Read the Business Insider article.

Zapproved has published “Audit Trail Checklist: Set Yourself Up for Success,” a guide that presents five steps to a defensible legal hold audit process.

The guide can be downloaded from Zapproved’s website at no charge.

“Litigation is inevitable — and all too often, so are accusations of lost, destroyed or withheld evidence,” the company says on its website. “Yet many companies aren’t prepared. They may not have a clear record of when a legal hold was issued or who received it — meaning they have to scramble to put notices together when litigation arises. Out-of-date legacy systems of complicated spreadsheets or confusing email read receipts are expensive, time-consuming and risky.”

Zapproved’s audit trail checklist provides five simple steps to create a customized litigation response plan. It includes an outline of where to start, which is where discovery obligations begin, with the Federal Rules of Civil Procedure. It goes on to discuss tips on assessing your current approach and selecting automated, cloud-based tools based on today’s best technologies. The guide also includes suggestions on how to get a team on board.

Download the guide.

Affirming a jury verdict, the U.S. Court of Appeals for the Sixth Circuit found that ten weeks of telecommuting was a reasonable accommodation for a pregnant lawyer put on bed rest, reports Manatt Phelps & Phillips LLP.

The Manatt article explains:

Due to complications from pregnancy, in-house counsel Andrea Mosby-Meachem was put on bed rest. Pursuant to the Americans with Disabilities Act (ADA), she requested to work from home during that period. Memphis Light, Gas & Water denied the request, taking the position that in-person attendance was an essential function of her job. Mosby-Meachem sued, and a jury awarded her $92,000 in compensatory damages on her claim of disability discrimination. The employer appealed, but the federal appellate panel upheld the verdict. The plaintiff presented sufficient evidence for a reasonable jury to conclude that in-person attendance was not an essential function of her job for the ten-week period she requested to work from home, the court said.

Read the article.

The National Association of Corporate Directors has published an article titled “The Innovation Era’s Implications for Boards,” which available for downloading free of charge.

The article, from NACD Directorship magazine, suggests five steps for boards and executives to become better versed in cutting-edge technologies—including combinations of new technologies—to create totally new business categories. These five steps are summarized below.

1. Create a technology learning plan.
2. Assess advanced technologies and their potential impact on your business.
3. Elevate board skills and competencies.
4. Reconsider which companies might be future competitors.
5. Identify internal and external experts.

Download the article.