By Pamela D. Hans & Christina Yousef / Anderson Kill


A lawsuit of any magnitude can be devastating for your business, whether it manifests its hardship financially or otherwise. The stress of making the right decision for your company’s future can seem insurmountable at times. And just like that, a light at the end of the tunnel: a settlement offer that is reasonable and good for your business. The only problem is that your insurance company will not consent. Continue Reading Policyholders’ Hands Are Strengthened When Insurance Companies Refuse to Settle: Appellate decisions on a California case suggest the tables may be turning

By Reese Arrowsmith, Association of Corporate Counsel (ACC)

Intro: Reese Arrowsmith, who heads legal operations at Campbell Soup Company, is the inaugural chair of the legal operations membership section of the Association of Corporate Counsel (ACC). He spoke with us about his new role at ACC, the growth he’s seen in the field of legal operations and where he thinks it’s going next. His comments have been edited for style and length.

Continue Reading ACC Is All In on Legal Operations: The association’s first chair of its ops section explains why

By Rees Morrison, Altman Weil, Inc.

The Roman god Janus looked both ways at once. That’s an apt metaphor for the divergence in how lawyers look at the use of data in management decisions. Some lawyers look askance at data being used to augment decisions; others look with favor on it. The more clearly that lawyers understand the conflicting bases for their own views and those of their colleagues, the more adroitly they will deal with data in decisions.

Continue Reading A Metrics Conundrum: What Would Janus Do?: Lawyers are sometimes torn when considering how much to rely on data

By Aaron Fluss, FRONTEO

Aaron Fluss, the National Director of Managed Review for FRONTEO, talks about the value of creativity during document review and explains why, despite an explosion of data – and costs related to corralling all that data – technology can’t replace the human touch. His remarks have been edited for length and style. Continue Reading How to Design Document Reviews To Cut Costs: It all starts with building the right workflow

By Bill Sowinski, David Moran, Wolters Kluwer ELM Solutions

Legal bill reviewers are specialists who can help in-house counsel keep a close eye on the bottom line without spending all day poring over detailed invoice line items. Below, two legal billing and technology veterans, David Moran and Bill Sowinski of ELM Solutions, discuss the obvious, and not so obvious, advantages of third-party legal bill review. Their remarks have been edited for length and style.

Continue Reading It’s All About That Bill: Invoice review specialists explain why managing the bill improves relationships with providers

By Lloyd M. Johnson Jr., Chief Legal Executive LLC

For in-house counsel, convincing colleagues in the C-suite —or in the rest of the company, for that matter —is rarely a simple matter of saying, “Do it. I’m the lawyer.” Influence and persuasion require strategic thinking, a deep understanding of a company’s objectives and culture, credibility in the organization, and a keen sense of timing. Continue Reading Influencing the C-Suite: Advice for in-house counsel on the fine arts of influence and persuasion

By: Eric J. Barr, Marks Paneth LLP

Shareholder agreements document the intentions of the parties in connection with, among other things, the price to be paid for an ownership interest in the event of a shareholder’s death, disability, retirement or other triggering event. There are four commonly used methods to value a company.

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 SEC No Action letters to keep their company within the letter of the law. Many argue that the GC/CCO dual role makes sense because regulatory noncompliance issues ultimately can turn into legal risk-management challenges.

Specialized skills for compliance policy development and program execution, even if not in the direct hands of the general counsel, can reside in a chief compliance officer reporting to the GC. In some organizations, especially where the CCO role is newer, having a GC/CCO one for two can boost the clout of compliance based on strong GC/C-suite relationships.

General counsels that have both roles need to be careful in sending emails, taking care to distinguish between when they are providing privileged legal advice and when they are acting in the compliance role.

Separate but Equal CCOs
The Society of Corporate Compliance and Ethics (SCCE) has long held that compliance must be a separate role. They espouse the two-for-two approach.

Chief compliance officers are the architects of the enterprise compliance strategy, structure and processes. They must understand complex regulations and laws and simplify them down to required behaviors in a policy document. They must create education, monitoring and detection programs. Evangelizing a culture of accountability and compliance is central to the role. Whistleblowers must feel safe to come forward to report any unethical behavior or other misconduct. SCCE believes these functions are very different than giving legal advice.

The CCO serves as the primary contact to the regulators and works closely with the GC during investigations and audits. PWC reports that 62 percent of pharmaceutical companies have a separate compliance role, frequently reporting to the CEO.

The government increasingly sees the CCO as a “watchdog” that must inform and stand up to executives when a business decision would violate regulatory or ethical standards. The argument goes that clever lawyers will find loopholes in regulations that the business can lawfully take advantage of in its decision-making, while the CCO would focus discussions on the ethical and reputational fallout from such actions.

After a record-setting 2009 corporate integrity agreement and $2.3 billion settlement with a pharmaceutical giant, federal authorities commented that “[t]he lawyers tell you whether you can do something, and compliance tells you whether you should. We think upper management should hear both arguments.”

In recent months, a drug company raised the price of a toxoplasmosis drug by 5,000 percent, with major reputation hits quickly following. Another pharma company increased a cardiac drug price by 525 percent after acquiring it.[1] Both moves were within the letter of the law, no doubt designed to increase shareholder value. Yet they sparked huge ethical debates, with the cardiac drug company experiencing a 91 percent drop in share price in the last year.

A blood-testing biotech company appointed a chief compliance officer amidst government investigations and the fall of their CEO.[2] The new compliance officer came from a pharma company where he was a regulatory AGC.

In 2016, Bloomberg reported that a major U.S. bank shifted its compliance group from legal to risk management under pressure from regulators. The concern was that the legal group was trying to minimize rules application. Other major banks similarly took the CCO role out from under the direction of the GC following government settlements.[3]

Just like any other department in the enterprise, the legal team could potentially be investigated for wrongdoing. This potential conflict of interest problem is a frequent discussion point in the two-for-one conversation. Although the vast majority of corporate lawyers operate ethically and comply with policies, problems can occur. During the General Motors scandal, two assistant general counsels from GM’s legal department were let go for wrongdoing. This raises questions about what happens if the CCO is accused of wrongdoing.

What’s the Chief Compliance and Ethics Officer?
Perhaps a critical inflection point in the “two-for” debate is arriving as corporations wrestle with the balance between the objectives of the role and how much weight to put on building an ethical, value-based culture versus one based on monitoring and detection. There seems to be a trend of morphing the CCO title to chief compliance and ethics officer (CECO), putting more emphasis on the ethical bullhorn aspects of the role.

Clearly, the compliance role is still emerging and taking shape inside corporations. A July 2016 survey conducted by SCCE and the Health Care Compliance Association shows 49 percent of CCOs see ethical culture as their primary objective, with 35.4 percent citing preventing misbehavior as primary. Yet 42 percent of CCOs felt that meeting regulatory requirements is No. 1 for management, and 29 percent think management sees preventing and detecting misconduct as the primary objective. CCOs see the promotion of an ethical culture as the primary objective for management at 13.3 percent. The respondents thought their board had yet additional divergent priorities for the role.

Specific Factors to Consider
Culture building and architecting policy and programs to detect transgressions seem quite different than giving legal advice and protecting corporate interests at all costs. Can the two live in one? There are many factors to consider when making the two-for-one decision.

  • Company Size. A small company with less than 25 employees may not be able to afford to pay two people. Companies with tens of thousands of employees might want separate compliance and legal advocacy executives, given the sheer volume and scale needed to monitor compliance. On the other hand, a GC/CCO can employ a compliance director to develop and execute programs under their supervision. Technology can be leveraged to scale for enterprise-wide compliance efforts.
  • Legal vs. Compliance Needs. Highly regulated industries may have a more acute need for separate roles. Less regulated industries may combine the roles. Some businesses that don’t have a lot of legal issues don’t have a GC. When legal issues or major regulatory inquiries come up, they prefer to use outside counsel. Yet they may have a CCO or director of compliance to file regulatory reports, for example.
  • Culture Building. FINRA, for one, has been hot on requiring a “culture of compliance.” Dodd-Frank and Sarbanes-Oxley certainly call for integrating a compliance culture into operations. This need leans toward having a separate CECO who focuses on culture more than legal advice.
  • Compliance Skill Set. A key factor to consider is the skill sets needed in the newer, emerging compliance role. Ask yourself if the GC in a dual role is in the best position to develop policies and processes and conduct audits. We lawyers didn’t learn these skills in law school. But the new emphasis on project management and process know-how in legal department operations is growing these skills in lawyers.
  • Who Should Compliance Report to? Reporting lines vary from the separate CCO reporting to the CEO, the board, risk management, the CFO and the GC. Some say the position must report to the board to elevate it to a strategic governance focus. The counterargument is that the board is not in a position to manage an operational function.
  • Ethics Culture vs. Detection and Monitoring. With reputations and stock prices taking big hits over corporate ethics, and whistleblowers earning millions of dollars in payouts for exposing bad behavior, ethics weighting may become a bigger factor in two-for-one discussions.


Are you a two-for-one or a one-for-two company? Corporations must sort through these issues and perspectives to choose the best approach for their compliance initiative. The only thing that is certain is that the sun will rise tomorrow, along with a glare on corporate regulatory, ethical and reputation strategies.

[1] “Where Is the Line Between Ethical and Legal?” Raquel Baldelomar, Fortune, July 21, 2016

[2]Theranos Hires Compliance, Regulatory Executives,” Austen Hufford, WSJ, July 21, 2016

[3] “Why Chief Compliance Officers Are More Important Than Ever,” John Browning, D Magazine


Carolyn Casey is a content marketing strategist and writer for WritMarketing. Formerly, she worked for AccessData as an attorney leading its industry relations initiatives.


By Laura Kibbe and Shelley Brown, Esq., RVM Enterprises, Inc.


One of the greatest challenges facing in-house counsel today is the soaring cost of litigation. One of the primary contributors to those extraordinary costs is the ever-growing creation of data and data sources, resulting in the unpredictability of e-discovery. For years the e-discovery industry has been exploring alternative fee arrangements (AFAs). The AFA methodology was created to increase predictability in litigation-related spend. The foundation is simple: Provide cost predictability and the ability to create future budgets based on historical spend. While AFAs have certainly met their cost predictability goals, in an age of complex electronic discovery, it raises a question as to whether or not the model has sacrificed expertise and strategies that provide valuable, high-quality solutions for an overall lower cost. We think so.

Rather than relying upon AFAs alone as a solution to the budget problem, perhaps we should look toward the use of more strategic methodologies to better control costs. Strategic alternative fee arrangements (SAFAs) could be the answer. In the e-discovery world, AFAs often take the form of per document charges, an all-in processing flat fee or some combination thereof. But those AFAs do not incentivize the service provider to reduce volume (and therefore cost). Instead, we should look to implementing early case assessment and litigation readiness strategies to help mitigate e-discovery costs. At first blush, the higher initial spend in per hour analytics or consulting may seem counterintuitive to cost savings, but if the exercise results in a reduction of the reviewable universe by 40 to 50 percent, total case cost goes down. The perfect SAFA model would combine the cost-predictability goals of the AFA while encouraging new strategic approaches to traditional tasks, resulting not only in a lower total case cost but also in giving the case team a strategic advantage over their adversary. Knowing their case early on can direct case strategy.

Utopia or Reality: A New Approach

The traditional electronic discovery budget looks like a laundry list of unit prices and assumes, for the most part, that a linear process will be followed: collection, processing, search terms, maybe analytics and a review of the resulting data. In this model, ensuring that each unit price is as low as it can be will lower costs and create predictability, but at what effect on total case cost? What if the collected data contained information that was particularly harmful to your client’s theory of the case? What if the collected data does not include a key custodian? What if the collection was generally overbroad due to similarly overbroad corporate data retention policies or nonexistent litigation readiness plans? In failing to take a strategic look at what the case team hopes to accomplish in discovery, those unit prices often result in spend which could have been avoided altogether. In addition, that traditional model does not necessarily identify the key documents early enough in the case to assist the client in reevaluating its strategy.

The analytics tools that are available today make it possible to spend time and resources on a true early case assessment that can result in an overall lower total case cost. Ultimately even greater savings and efficiencies could be achieved. As with law firms, engaging an experienced partner early on to help formulate strategy is important. Delegating the execution of that strategy to more cost-effective resources and engaging a consultant with specific e-discovery subject-matter expertise (and likely a higher billable rate) broad enough to span information governance, litigation readiness and e-discovery can reduce downstream discovery spend. Continue Reading Alternative Fee Arrangements: Panacea or Problem: Delegate strategically to reduce downstream litigation costs