Article by James A. Merklinger /  Association of Corporate Counsel (ACC)

 

There is no doubt that 2016 was a record-setting year in the history of the enforcement of the Foreign Corrupt Practices Act. The nearly $2.5 billion in settlements that companies paid to resolve FCPA cases dwarfs the previous year’s figure of $133 million. However, nearly absent from the books last year were incidents in the Middle East. Continue Reading ACC and Dubai Join Forces on Anticorruption Program: Goal is to train in-house counsel active in the Middle East

Article by Beth S. Rose / Sills Cummis & Gross PC

 

Who would have thought that the question of where venue lies in a patent infringement action could generate so much buzz among lawyers? But it has. The U.S. Supreme Court’s May decision in TC Heartland v. Kraft Foods Group Brands held that, under the patent venue statute, a domestic corporation resides only in its state of incorporation.

This was a big deal. The implications for forum shopping could be huge. But don’t count plaintiffs out yet. They still have options. And some of them may create new problems for defendants.

But first, let’s review how we got here.

Continue Reading Four Likely Implications from TC Heartland v. Kraft Foods: The Supreme Court’s decision on venue in patent litigation could shake things up

Article by John Filar Atwood / Wolters Kluwer Legal & Regulatory U.S.

 

U.S. Department of Justice officials have gone out of their way recently to emphasize that enforcement of the Foreign Corrupt Practices Act is alive and well under the new administration. Perhaps in response to concerns that President Donald Trump is reportedly no fan of the FCPA, both Acting Assistant Attorney General Kenneth Blanco and Acting Principal Deputy Assistant Attorney General Trevor McFadden said in recent public remarks that the DOJ continues to vigorously investigate and enforce FCPA violations. Worth noting in McFadden’s comments is that the prosecution of individuals remains a DOJ priority. Continue Reading No Free Pass Under Trump: Individuals who think they can do what they want without having to worry about FCPA enforcement should think again

Interview with Steven Maslowski / Akin Gump Strauss Hauer & Feld LLP

Steven Maslowski, an IP litigator at Akin Gump Strauss Hauer & Feld LLP, handles cases on the cutting edge of life sciences. It’s a complicated place to be these days, as the courts are sorting through changes in the law and litigators are waiting for guidance from the Food and Drug Administration. And it’s all playing to the tune of something called “the patent dance.” The interview has been edited for style and length. Continue Reading Changes in the Law Leave Life Sciences Litigators Dancing as Fast as They Can: Lawyers also await guidance from the FDA

By Mary O’Carroll, head of legal operations at Google

 

Many of you have asked me to post my closing remarks from the 2017 CLOC Institute that wrapped up last week. It was an incredible event and I am honored to be a part of the CLOC movement. #CLOC2017 

It is my great pleasure to say a few words to close out our time together. Where do I even begin? What can I say to do justice to what we’ve just experienced?  How about this for starters: we just completed the world’s largest legal operations event in history!

I experienced so many amazing moments over the last few days. One in particular stands out… It was the eve of the Institute and I was standing on a patio, overlooking the Bellagio fountains and the famous Las Vegas strip.  As I looked up, I saw the Bellagio marquee, one of the most well recognized and iconic billboards in the entire world. And on it was an image that read “Welcome CLOC.”  I had to stop and pinch myself.  Think about how far we have come!  This is an organization that didn’t even exist a year and a half ago!

Continue Reading Mary O’Carroll’s Closing Remarks at the 2017 CLOC Institute

By Stephanie Mullette, Robert E. Bostrom, National Association of Corporate Directors (NACD), Abercrombie & Fitch

Introduction: As the role of general counsel has evolved, they are increasingly called upon to provide corporate boards with advice on company strategy and business operations. This has led the National Association of Corporate Directors (NACD) to launch a new initiative, the Strategic-Asset GC, designed to help boards fulfill their mission of creating long-term corporate value. Stephanie Mullette, NACD’s Director of Corporate Solutions, and Robert E. Bostrom, previously a lawyer at the Federal Reserve of New York who became a partner at Winston & Strawn, SNR Denton and Greenberg Traurig, and general counsel of NatWest Bancorp, Freddie Mac and, currently, Abercrombie & Fitch, discuss below the initiative and what it takes to be a Strategic-Asset GC. Their remarks have been edited for length and style.

Continue Reading GC Outlook: Clear and Stormy: In a crisis, it’s easy to contribute. The challenge is when it’s calm.

By: Joe Calve, Metropolitan Corporate Counsel

 

Last month, in the sweltering depths of a tumultuous summer, the Conference of Chief Justices (CCJ), an association of top state judicial leaders, and its civilian counterpart, the Conference of State Court Administrators (COSCA), took an important, if little noticed, step toward righting a badly listing civil justice ship. Both groups threw their weight behind a report by CCJ’s 23-member Civil Justice Improvement Committee (CJIC), led by Chief Justice Thomas A. Balmer of Oregon, beseeching state judicial leaders to take 13 specific steps to improve the U.S. civil justice system. The report, entitled “Call to Action: Achieving Civil Justice for All,” is a joint venture of the National Center for State Courts (NCSC) and the Institute for the Advancement of the American Legal System (IAALS), with funding provided by the State Justice Institute (SJI). Joining Balmer’s committee were a number of corporate law department representatives, including David G. Leitch, Global GC of Bank of America; Tom Falahee, Assistant GC of Ford; and two retired GCs, Thomas Allman of BASF and Kim Brunner of State Farm.

If acronyms are any indicator, this effort just may have legs.

As we’ve written here previously, the planets seem to be aligning for civil justice reformers. With caseloads swelling and public perception sinking, our choking courts long have been an object of scrutiny, derision and pity. Underfunded, understaffed and underwater, many courts have devolved into rickety processing centers dishing up a second-rate brand of justice to lawyerless litigants whose small-potatoes matters – debt collection, landlord/tenant, foreclosure, small claims – are a big deal to them but seemingly not so much to the courts and the lawmakers who fund them. Anyone who can generally will opt out and buy a brand of private justice (or beg for an appearance before Judge Judy). The rest are left to wait and wait and grouse and grouse about the unfairness of it all as they helplessly watch their particular cans get kicked and kicked down the road.

Given the rather dismal track record of prior reform efforts, it is altogether fair for skeptics to question why the CCJ-COSCA-NCSC-CJIC-IAALS-SJI effort will fare any better. Consider this statement, to an ABA audience, from a well-known jurist:

“We like comfortable old shoes out of style and worn through as they may be and dread having a new pair, none of us like to learn new ways of doing things (but) the convulsive change in society confronts our profession with the urgent challenge to get our house in order if we are to renew the public’s confidence in the American justice system that safeguards and protects individual rights and liberties.”

That’s U.S. Supreme Court Justice William J. Brennan, Jr. – speaking in 1958.

But things do feel different this time. The revised Federal Rules of Civil Procedure kicked in nine months ago, and, ready or not, they are playing out at a federal courthouse near you. In his year-end report on the federal judiciary, the chief justice of the whole shebang, John Roberts, got behind the rules and their baseline of “just, speedy, and inexpensive determination of every action and proceeding,” calling on “judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” The NCSC recently issued a study, “The Landscape of Civil Litigation in the State Courts,” and a survey, “The State of the Courts” that fuels the urgency. And IAALS, brainchild and passion of former Colorado chief judge Rebecca Love Kourlis, has through its Rule One initiative been a persistent force for concrete steps toward cultural change in a system that takes too long and costs too much.

The sense that the courts are in danger of losing the faith of the people they exist to serve is palpable.

“We need a legal process that can fairly and promptly resolve disputes for all Americans,” says NCSC president Mary McQueen. “These recommendations, when implemented, will enhance public confidence in our system of civil justice.”

The “Call to Action” is a serious effort. In its own way, it is very much a product of our times – a customer-centric view of the courts in the same way that Amazon takes a customer-centric view of retail. “Citizens must be placed at the center of the system,” the report says. “Courts need to embrace new procedures and technologies.”

The framework developed by the CJIC is comprised of 13 specific recommendations (see below). They are based on procedural reforms across numerous state courts that have served as laboratories for changes in the system. At the heart of the reforms is a call for “right-sized” staffing for routine caseflow management, with judges delegating substantial responsibility to specially trained staff supported by state-of-the-art technology. This would free up judges to focus on those aspects of civil justice that require their special skills.

If that sounds familiar, it should. It echoes mountains of commentary about the disaggregation of legal work and the injection of technology, project management and alternative providers into tasks, such as document review, once handled by high-priced BigLaw associates.

The report also recommends adopting a “pathway approach” to caseflow management, which is a flexible system for assigning cases at filing based on the amount of court intervention needed. Finally, it calls for intense focus on high-volume calendars – the small-potatoes dockets mentioned above – to improve access for pro se litigants and cast a bright light on the mountains of uncontested cases clogging the arteries of our courts.

Both the NCSC and IAALS plan to work with the state courts to implement the recommendations. As with the federal rule revisions, however, it is uncertain how things will play out. IAALS’s Kourlis, who echoes Brennan’s comments on the difficulty and importance of change, is upbeat about the prospects.

“The civil justice system is mired in misperceptions and inefficiencies,” she says. “The recommendations for change that the Chief Justices just approved are grounded in broad experience and data, and they are innovative, forward-looking, and inspiring.”

Following are the 13 recommendations put forth in “Call to Action: Achieving Civil Justice for All,” endorsed last month by the Conference of Chief Justices. The full report can be found here

I. Courts must take responsibility for managing civil cases from time of filing to disposition.

II. Beginning at the time each civil case is filed, courts must match resources with the needs of the case.

III. Courts should use a mandatory pathway-assignment system to achieve right-sized case management.

IV. Courts should implement a Streamlined Pathway for cases that present uncomplicated facts and legal issues and require minimal judicial intervention but close court supervision.

V. Courts should implement a Complex Pathway system for cases that present multiple legal and factual issues, involve many parties, or otherwise are likely to require close court supervision.

VI. Courts should implement a General Pathway for cases whose characteristics do not justify assignment to either the Streamlined or Complex Pathway.

VII. Courts should develop civil case management teams consisting of a responsible judge supported by appropriately trained staff.

VIII. Courts must provide judges and court staff with training that specifically supports and empowers right-sized case management.

IX. Courts should establish judicial assignment criteria that are objective, transparent, and mindful of a judge’s experience in effective case management.

X. Courts must take full advantage of technology to implement right-sized case management and achieve useful litigant-court interaction.

XI. Courts must devote special attention to high-volume civil dockets that are typically composed of cases involving consumer debt, landlord-tenant, and other contact claims.

XII. Courts must manage uncontested cases to assure steady, timely progress toward resolution.

XIII. Courts must take all steps necessary to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services.

By: Veta T. Richardson, Association of Corporate Counsel and Caren Ulrich Stacy, OnRamp Fellowship

 

At the entry level, men and women join the legal profession at the same rates, yet by the time they reach leadership roles, less than 20 percent of partners are women. Corporate legal departments suffer the same disparity. This leaky pipeline is partially due to women’s choice to set aside their careers for child-rearing. As a recruiter, Caren Ulrich Stacyrecognized that a highly motivated talent pool was not being tapped and created OnRamp Fellowship – now joined by OnRamp In-House, an initiative the Association of Corporate Counsel (ACC) has joined with – to reintroduce women lawyers returning to the field after an absence. Here, Stacy and Veta T. Richardson of ACC discuss the evolution the program and the depth of the need to address the root causes. Their remarks have been edited for length and style.

MCC: What is the mission behind OnRamp Fellowship?

Stacy: OnRamp Fellowship is a re-entry or “returnship” platform that offers opportunities for women lawyers interested in returning to the workforce after taking time off from their legal jobs in order to raise a family or pursue other responsibilities. Women accepted into the program participate in year-long paid fellowships at law firms and now within corporate legal departments as OnRamp In-House Fellows. As part of the fellowship, OnRamp pairs returning women with advisors and career counselors and offers continuing legal education and other training to sharpen their legal and business skills.

MCC: What was it about this project, the OnRamp Fellowship, particularly partnering with Diversity Lab, that attracted the ACC Foundation? 

Richardson: The motivation was the desire to make a difference and help real people overcome real barriers. For the ACC Foundation, OnRamp In-House represents more than a project; it is an opportunity for us to enlist corporate law departments to help repair the “leaky pipeline” caused when high-performing women lawyers exit the legal profession. The partnership was a natural step for the ACC Foundation to advance diversity and inclusion goals by working with a great partner, like Caren Ulrich Stacy and her team at Diversity Lab. So the strength of the partner and the ability to be a bridge back to law for women who need help is the basis for our commitment.

MCC: Virtually all surveys of corporate law departments show them pulling work inside at an unprecedented rate. Does that make the OnRamp model more likely to succeed given that the demand may be shifting from outside counsel? 

Richardson: The shift among corporate counsel to bring more work in-house does present the possibility for increased hiring. In fact, 37 percent of corporate legal departments increased their in-house staff over the past year, according to the “ACC Chief Legal Officers (CLO) 2016 Survey.” We hope that these growing law departments will ensure that they are hiring diverse candidates by devoting more resources toward diversity and talent acquisition programs that provide pathways for re-entry platforms, such as OnRamp In-House.

Based on additional findings from the survey, only 4 percent of law departments are focused on attracting new talent and retaining good in-house lawyers in comparison with 5 percent last year. There is room for improvement here, especially as companies continue to insource work and build strong legal teams.

MCC: This decidedly downstream approach to address the “leaky pipeline” problem raises an obvious question: What’s going on upstream at the law firms? Are they simply unwilling to take appropriate steps to make it easier for high-performing women to temporarily exit the profession, often for childbearing and child-rearing? 

Stacy: I worked as head of recruiting for some of the world’s top law firms for 22 years and was disheartened by the fact that each time I presented a strong candidate who had a gap in her résumé, she lost out to a lateral hire who had not taken any time off. Not a week went by when a highly qualified woman wasn’t passed over because of this career break. That was the impetus behind my decision to start the OnRamp Fellowship – I saw that there was a huge pool of legal talent being ignored.

Law firms care about this issue, but many don’t know what to do to solve it. We now have 30 firms that participate, and most hire their OnRamp fellows after the program ends. In fact, 86 percent of the fellows who have completed the year-long program have transitioned into longer term roles with law firms. But I worry that without a program in place to call attention to the problem and facilitate a solution, firms would continue to pass over these highly qualified candidates in an overwhelming number of instances. That said, I do think law firms should devote more resources to programs that recruit and then retain female employees, as well as provide support for various types of leave and opportunities to re-enter the workforce.

MCC: The essence of the OnRamp model is to provide women who have left the profession for several years with the opportunity to demonstrate their value and, through training, to sharpen and broaden their skills. Is it fair that talented women are being asked to prove themselves all over again? 

Stacy: Regardless of gender, any individual entering a new job will have to prove himself or herself to the company. And as more companies implement measuring systems to evaluate success and employee performance, this will extend to tenured employees as well. Overall, there is an expectation that all employees, active and returning, will devote time and resources toward sharpening their skills and expanding their knowledge base to better themselves and help the company stay in front of potential pitfalls. The OnRamp Fellowship provides a platform so that women who have left the profession for several years have the opportunity to ease back and get up to speed on what they missed during their hiatus.

MCC: We recently ran an interview with a senior in-house lawyer at ConAgra who discussed the value of “authentic storytelling” for women navigating the often bumpy path to leadership in law. It sounds like your UN event with Gloria Santona provided some of that. Tell us about the event and the announcement of the corporate participants in OnRamp. What’s the value to them? 

Richardson: We were excited to formally launch OnRamp In-House at the ACC Foundation’s Global Women in Law event, which was held at the United Nations in New York in late June. The event honored three women leaders: Gloria Santona, executive vice president, general counsel and secretary for McDonald’s Corporation; Irina Bokova, director-general of UNESCO; and Charisse R. Lillie, fellow and vice president of community investment for Comcast Corporation and executive vice president of the Comcast Foundation. Sunny Hostin, senior legal correspondent and analyst for ABC News, moderated a discussion with the honorees regarding how they broke through traditional barriers to become leaders and role models. The event was also our opportunity to announce the five inaugural corporate legal departments participating in OnRamp In-House: 3M, Accenture, Amazon, Bank of Montreal, and Microsoft.

MCC: The Diversity Lab, with its focus on innovation and analytics, is an interesting partner. What’s it been like working with them? Do you anticipate other projects together? 

Richardson: Working with Diversity Lab to launch OnRamp In-House has been invigorating and a concrete example of how far women have come – one female CEO working with another to create opportunities for other women. However, Caren and I recognize that there is still a long way to go before women achieve parity in the workplace. So we have enlisted ACC allies. The ACC Foundation’s Women in the House (WITH) initiative was designed to foster the professional development of women in-house counsel. WITH members will assist the OnRamp In-House fellows by serving as mentors, and ACC chapters will open their educational events to invite OnRamp In-House fellows to participate. We intend to continue to build upon the shared synergies across ACC and Diversity Lab initiatives.

MCC: Define success for this initiative and for the ACC generally in advancing diversity in the profession. It’s been a very difficult road for law firms. As with so many things, are clients now taking the lead? 

Richardson: Actually, I think innovation is taking the lead and progressive clients and law firms are willing to try new approaches that work. The OnRamp Fellowship program is proven – it works, and OnRamp In-House takes this proven approach and expands it to corporate law departments. The result is increased opportunities for women who previously had limited options and support.

Stacy: We define success for this initiative from several perspectives. Success is helping women who want to return to the profession by providing an effective platform to do so. Success is giving legal employers the opportunity to work with talented returning women who will add tremendous value to their organization and their clients. From an overall perspective, success for OnRamp is directly linked to one important metric – increasing the representation of women in the pipeline who have the desire and the ability to eventually move into leadership roles within law firms and legal departments.

Veta T. Richardson, president and chief executive officer of the Association of Corporate Counsel, can be reached at richardson@acc.com. Caren Ulrich Stacy, founder and CEO of Diversity Lab and OnRamp Fellowship, can be reached at caren@diversitylab.com.

By: Matt Kivlin, ELM Solutions, A Wolters Kluwer Business

 

Last year at Legaltech New York I spoke to an in-house attorney about one of her worst days on the job. She was hard at work on litigation related to a compliance breach. The breach had occurred because the compliance staff mistakenly believed that a particular regulation did not apply to their business unit. There had been an internal investigation of the incident, but she was having difficulty verifying the steps the company had taken because the records were in disarray. Some of the investigation files were incorrectly moved into an unrelated archive, while other activities were undocumented altogether.

While trying to navigate the morass, she received a mass email from a colleague instructing everyone, incorrectly, that a certain regulation – yes, the very same one now making my friend’s life so difficult – was not applicable to the company. She feared that another breach could result and that she’d have to go through the process all over again.

Fortunately, the embattled attorney was able to quickly contact the right colleague and have a correction sent out. But she was understandably frustrated by the difficulties she’d encountered, particularly because she knew that better communication, coordination and internal knowledge sharing could have made it simpler for the company to solve their problems or even prevent them completely.

Prevent problems

It’s not at all unusual for corporate counsel to be asked to help with the fallout from missteps in the area of governance, risk and compliance (GRC). But when the legal department is brought into all steps of critical GRC processes, attorneys can focus on helping the company avoid problems rather than reacting to them.

Processes and technology should be designed to enable tight cooperation between GRC and legal staff and facilitate the essential communication link that exists between the two. With this infrastructure in place, companies are better equipped to mitigate risk, proactively address their rapidly changing business environments and achieve compliance.

There are many issues that organizations often encounter when legal’s role in GRC efforts is reactive or after the fact. We regularly see clients facing the following pitfalls, all of which can put an organization at greater risk:

  • Misunderstandings about regulatory coverage
  • Disorganized/incomplete investigations
  • Ineffective policies and training
  • Third-party incidents resulting from due diligence misses
  • Claims and litigation that could have been prevented
  • Strategic planning without adequate information or advice

[Illustration – Caption: ©2015 oceg.org. Wolters Kluwer ELM Solutions collaborated with the Open Compliance and Ethics Group (OCEG) on an illustration that demonstrates the importance of close cooperation between GRC and legal staff. To view the full infographic, please visit the Experts’ Corner at wkelmsolutions.com.]

Collaboration is critical

Staff who fulfill GRC functions, whether they are assessing and prioritizing risk, creating policies in response to a new regulation or handling an incident that has occurred, should include their legal counterparts who can advise on the effort. The attorney I met at Legaltech, for example, would have identified the regulation as applying to her company’s business, potentially heading off the breach as well as the subsequent litigation.

The examples below illustrate a few of the circumstances that call for collaboration between the GRC and legal functions.

  • Interpretation of and guidance on regulations. Legal service providers often need to be consulted for opinions and guidance on the applicability to the company of a new regulatory requirement or a change to an existing one. They are also called on to assess the implications of a specific regulation on business operations and/or the compliance requirements in a particular situation.
  • Risk assessment. The risk management team may solicit in-house legal staff to participate in risk assessments. For example, a risk manager may require the expertise of a regulatory law professional to help determine the impact of noncompliance related to a newly identified regulatory risk.
  • Obtaining policy reviews and approvals. Legal is naturally a key contributor in the review and approval of any draft policies and should also be included in consideration of any policy exception requests.
  • Third-party due diligence and contract development. When a company intends to bring on a new third-party supplier (or renew a contract with an existing one), an effective compliance team goes through a due diligence process to determine the risk level of the third party. The legal department may participate in approving the third-party relationship and will certainly be engaged in determining the specific compliance terms and conditions required for the contract.
  • Dealing with a compliance incident that becomes a litigation matter. Some compliance incidents result in litigation or the need for other legal involvement. When this is the case, the sooner the legal team knows about the incident, the better, and it is important for litigators to have easy access to any information gathered by investigators or other staff involved in handling the incident. It is equally important for members of the incident and compliance management teams to have a clear picture of the results of any legal action as well as the associated costs.

What are the right tools?

While proactive legal involvement in compliance, risk and audit is key to effective GRC strategy and favorable outcomes, it needs to be supported by technology that is built with close collaboration in mind. Integrated enterprise technology can provide a common platform for both GRC management and legal management, encompassing matter and spend solutions. By combining the tools used by GRC and legal staff on one platform, both teams are able to benefit from efficient shared workflows and access to common data and document repositories.

Perhaps the clearest illustration of how this type of integrated technology benefits companies is when a compliance incident becomes a legal matter. Using rules established in the common platform, the triage of a compliance incident can trigger the system to generate and send a notification to legal staff, providing them with an early warning of a potential new litigation matter. Any evidence gathered during the incident/loss investigation is stored in the common document management system – tied to the appropriate matter. Should litigation ensue, legal staff can access the investigation findings to prepare their case. As the matter progresses, the system provides analytics and reporting to GRC staff, returning data on outcomes, including judgments, damages and the legal costs of litigation.

All of this shared information remains connected to the initiating incident, providing a complete accounting of the full cost of compliance breaches for legal, compliance and senior management. Having the GRC and enterprise legal management systems on the same technology platform creates a closed loop between the functions by eliminating gaps in communication and facilitating information sharing and cost management for compliance incidents.

The complexity of managing compliance and legal efforts will not diminish in the foreseeable future. The good news, though, is that proactive legal involvement in GRC, supported by integrated enterprise technology, can help with the following:

  • Reducing inefficiencies, lack of visibility, and confusion
  • Controlling risk exposure and strengthening regulatory compliance
  • Providing meaningful input for assurance and strategic planning

By driving good communication, manageable workflows and controlled information access, good internal collaboration can even help ensure that my beleaguered attorney friend can accomplish her goals and avoid days like the one she suffered through last year.

Matt Kivlin leads the product management team responsible for identifying, prioritizing, validating, and incubating new growth markets for Wolters Kluwer ELM Solutions.

 You can reach the author at matt.kivlin@wolterskluwer.com with questions about the article.