By: Alexander W. Major & Franklin C. Turner, McCarter & English LLP

The federal government can provide a large and lucrative line of business, but not without significant risk. Alexander Major and Franklin Turner of McCarter & English caution companies regarding the growing trend toward contract-related claims, how False Claims Acts penalties are affecting suits and why preparing for a bid protest needs to begin at the inception of the bid itself. Their remarks are edited for length and style.
Continue Reading The Flipside of Federal Contracts: Pursue government bids fully aware of the complications and compliance nuances

By: Joe Calve, Metropolitan Corporate Counsel

Unless You Ask bills itself as a “guide for law departments to get more from external relationships.” As such, it is an important addition to the lengthening shelf of self-help resources for in-house counsel (many offered up by consultants themselves eager to help). It is also an odd duck of a document – by turns a menu, checklist, conversation starter, jeremiad, marriage counselor, screed, shrink and opera buffa – all rolled into one.

The 84-page guide is the handiwork of primary author D. Casey Flaherty, former in-house counsel with Kia Motors America and associate with Holland & Knight, best known, at least to me, for his contributions to the popular “3 Geeks and a Law Blog.” He now consults with in-house departments and law firms on sourcing, process and tech, with an emphasis, as he puts it, on “fostering a structured dialogue between the two” (thus the marriage counseling element).

It is noteworthy that UYA is backed by the External Resources Interest Group of the Association of Corporate Counsel’s 18-month-old Legal Operations organization. That pumps serious credibility into the effort. Among the ops bigwigs contributing to the project are: Diana Barlow, AVP of
Continue Reading Backstory: Ask and Ye Shall … Get More!

By: Carolyn Casey

As the role of the chief compliance officer (CCO) takes on more prominence, many CEOs and boards must evaluate whether their general counsel (GC) can take on this second role or if the function should be led by a separate executive. After the financial crisis, Enron, and growing privacy, corruption, and whistleblower actions, the glare of the regulatory spotlight seems as certain as sunrise. According to Deloitte, “One of the most important regulatory and policy developments in recent years has been the government’s heightened scrutiny of the effectiveness of an organization’s compliance program in making decisions regarding both liability and cooperation.” It doesn’t take a fortune-teller to predict that corporations will increasingly grapple with the dual-role question.

Are GCs One for Two?

Let’s start by considering the traditional role of lawyers. Lawyers give legal advice and advocate to gain the best outcomes for their clients. When a government subpoena or legal claim arrives on their desk, they gear up to do whatever is necessary to avoid costly judgments or fines, reputation hits and even jail time for their C-suite colleagues. They are protectors and risk managers.

Of course, lawyers also interpret regulatory requirements and things like

Continue Reading One for Two or Two for Two with CCOs?: The Chief Compliance Officer Debate

By: Vicki Kramer, Marcy Cohen and Mary Quazzo, Thirty Percent Coalition

Getting more women, and more diverse representation of all kinds, on corporate boards is a goal for a number of groups. Now the Thirty Percent Coalition has pulled together many of them, along with various other individuals with a shared interest, to work together on increasing the velocity of change in the boardroom. Below, two leading in-house counsel, Marcy Cohen of ING Americas and Mary Quazzo of Bechtel Group, Inc.,  join with Vicki Kramer, president of the Thirty Percent Coalition, to discuss with MCC the group’s goals and their own thoughts and experiences on what GCs and CLOs can do to advance diversity in their companies’ boardrooms. Their remarks have been edited for length and style.

MCC: Please tell our readers about the Thirty Percent Coalition.

Kramer: We are a national collaboration of more than 80 members. We’re committed to the goal of women, including women of color, holding 30 percent of board seats across public companies, on the way to parity. We have a diverse group of members that includes public companies, private equity funds, institutional investors, professional services firms, national women’s organizations, government officials and

Continue Reading On the Road to Parity in the Boardroom: The Thirty Percent Coalition makes a strong case for more women, including women of color, becoming corporate directors

By: David White, AlixPartners LLP

Regulators around the globe have been stepping up anti-corruption compliance efforts. The past few years have seen a marked uptick in both formal inquiries and legal actions related to money laundering and bribery, with regulators demanding increased access to company records. Given their global scope, the costs of responding can be enormous. For example, the global retailer Walmart predicts that its anti-bribery compliance-related costs for this year alone will be upward of $180 million[1].

This is not atypical for companies with a large global footprint. Earlier this year, Olympus resolved a $22.8 million Foreign Corrupt Practices Act (FCPA) enforcement action concerning alleged misconduct in Brazil, Bolivia, Colombia, Argentina, Mexico and Costa Rica. Managers at an Olympus factory in China were also tied to related company investigations[2]. Separately, Olympus Corporation of the Americas agreed to pay $612 million plus interest to resolve parallel criminal and civil investigations into alleged violations of the Anti-Kickback Statute and the False Claims Act[3].

The primary costs are typically pre-enforcement action professional fees and expenses, with the bulk of these expended on information collection and analysis. This information typically comes from a myriad of
Continue Reading Finding the Needle in the Anti-Corruption Haystack

By: Rebecca Love Kourlis, Institute for the Advancement of the American Legal System and Brittany Shultz, Ford Motor Company

Nine months after major changes to the Federal Rules of Civil Procedure (FRCP) took effect, the Institute for the Advancement of the American Legal System (IAALS) continues its outreach to attorneys and judges to educate them about the impact of the rules on practices and caseloads. Below, IAALS’ Rebecca Love Kourlis joins with Brittany Schultz of Ford Motor Company to discuss the impact of the rules from an in-house perspective. Their remarks have been edited for length and style.

MCC: Can you make the case for why the changes to the Federal Rules of Civil Procedure were needed in the first place?

Kourlis: The civil justice system was, and to some extent still is, plagued by inefficiencies and bloated costs, which were undermining access and public trust and confidence. A significant portion of those costs were in conjunction with discovery.

Schultz: The ever-increasing scope of discovery led to a “scorched earth, overturn every stone” approach, which created problems for efficiency, proper case management and resolution of cases.

Kourlis: The Duke 2010 Conference took on the question of how to make

Continue Reading The Federal Tools of Civil Procedure: The FRCP amendments are waiting to be used by litigants and judges to build a better litigation system

By Joe Calve, Metropolitan Corporate Counsel

Altman Weil, a management consultancy dedicated exclusively to the legal industry, kicked off its “Law Firms in Transition” survey on the heels of the Great Recession. Now in its eighth edition, the survey, released earlier this month, reveals a frightening gap between lawyers and clients.

The gap is so wide that it seems to be spurring corporate law departments to throw up their hands in a manner reminiscent of the famously obnoxious 1960s TV commercial for Anacin pain reliever. A hovering mother tries to help her harried grown daughter with her household chores. Pushed to the edge, the daughter finally erupts:

“Mother, please, I’d rather do it myself!”    
Continue Reading Backstory: GCs Take Matters Into Their Own Hands – Literally

By: Rees Morrison

This article introduces a type of graph that shows multiple metrics of law departments on the same scale – probably a new graph for most readers – a parallel coordinate plot (PCP). We will explain the PCP1 using data from the General Counsel Metrics LLC benchmarking survey sponsored by Major, Lindsey & Africa.

To create the PCP for this article, we extracted data of law departments that participated one or more years over the past six years of the benchmark survey.  More specifically, the subset consists of U.S.-based companies in technology or telecommunications.  We then narrowed the group to companies that reported fiscal year revenue between $500 million and $5 billion.  The resulting 62 companies formed this article’s “tech” industry.

Establishing the tech law department data set is one step, but analyzing and presenting conclusions about its metrics is another.  One of the challenges of displaying benchmark data in graphs is organizing, on one chart, multiple metrics for each law department.  Making the challenge even harder is when the data comes in different scales such as single or double digits for head-count metrics, hundreds or thousands for patent records, millions for spend data, and billions
Continue Reading Tech and Telecomm Benchmarks with a PCP