In House - The FindLaw Corporate Counsel Blog

March 2013 Archives

SCOTUS Issues Another Pro-Business Class Action Ruling

Two years ago, the Supreme Court decided that 1.5 million Walmart employees couldn’t bring a class action discrimination suit against the retail chain because the plaintiffs’ interests were too varied.

In the Walmart v. Dukes opinion, Justice Antonin Scalia wrote, “Because respondents wish to sue about literally millions of employment decisions at once, they need some glue holding the alleged reasons for all those decisions together.”

The Court, in another Scalia-authored opinion, reached a similar conclusion this week in Comcast Corp et al v. Behrend.

After a Decade, How Much Do In-House Attorneys Make?

As we’ve learned from the annual ranking of the highest paid general counsel, going in-house can mean big money.

Last year, the highest paid lawyer in the U.S. was actually CBS General Counsel Louis Briskman. In 2011, Briskman’s cash compensation was $6.5 million, and his total take home pay was over $14.6 million, Above the Law reports. In fact, all of the top 10 highest paid GCs cleared the $3 million mark in total pay. If you’re dreaming of going in-house, these men and women will inspire you to think big.

But what about the experienced in-house attorneys who aren’t quite up to the seven-figure salary? What do they earn?

Nordstrom Butts Heads With FTC Over Social Media Ad Disclosures

Nordstrom’s “TweetUp” promotion is pretty standard fare, as far as stores’ social media campaigns go. When a store is set to open, they’ll have a preview day for bloggers, the Twitterati, Pinterizers, and others of that ilk. The social media elite who are invited are given gifts, including $50 gift cards, to write or tweet about the event.

That’s all kosher. Many companies do it, including McDonald’s ongoing “mom blogger” campaign. What Nordstrom neglected, however, was to tell the bloggers to provide the requisite disclaimers about gifts received, etc.

3 Ways to Prevent and Recover From Social Media Disasters

Remember Anthony Weiner? The former Congressman tweeted a picture of his eponymous member to his Twitter followers by accident while trying to send it to a woman he was courting over the Internet. What about the Kitchen Aid fiasco? One of their employees made a tasteless joke about President Obama’s late grandmother.

Weiner went from rising start to former Congressman. Kitchen Aid fired the employee and dealt with the backlash for weeks, according to Mashable. How can your company prevent a social media slip-up? And what do you do, to prevent lawsuits, if an errant tweet leads to trouble?

In the Middle: How Much Do In-House Attorneys Earn?

There's a theory that once you go in-house, you can never go back. There are enough attorneys who have made the switch between the two to suggest that theory isn't absolute, but it should still factor into a prospective in-house attorney's considerations before making the jump.

Will you be satisfied with your salary if you can't go back to a law firm? How will your in-house pay compare to that of your peers on the cusp of making partner?

We recently compared entry-level and early years' salaries between in-house counsel and traditional practitioners. Based on those numbers, going corporate looked like a good bet. Today, we're moving on to in-house counsel salaries during the fourth through ninth years of practice.

Monster Subject to Fewer Reporting Requirements as a 'Beverage'

Sometimes, a tiny change in perspective can make life easier within a legal department. Little distinctions, like whether a glass is half-full or half-empty, whether a product is a beverage or a diet supplement; those are the differences that can make or break you during bonus season.

So it looks like the lawyers for Monster Energy Drinks are earning whatever bonuses come their way this year.

The 'Double Irish' Tax Loophole: Can Your Company Exploit it?

"Double Irish with a Dutch Sandwich." Sounds like two Guinnesses and something made out of chicken, doesn't it? It's making us hungry.

It's not food and drink, however. It's a complicated corporate tax loophole, exploited by tech companies and others with intellectual property, pioneered by Apple, and used by many to save billions of dollars in taxes.

It all begins with the licensing of patents and IP to an Irish subsidiary. When products are sold in the U.S., taxes are reduced by paying royalties to that subsidiary. Under Irish law, if the subsidiary is managed by foreigners, profits skip along, Irish tax-free, usually to a Caribbean tax haven.

Contract Lawyers for In House Counsel? Sounds Like a Win-Win

Disrupting the industry. Reinventing the practice of law. Fixing the broken model. If those phrases have just caused a profuse amount of bile to rise in your esophagus, you are not alone. Clichés are bad enough, but when we've been talking about fixing the "broken" system since 2009 and that system remains the same, it really does become nauseating to hear again.

Imagine our thoughts when we heard that Paragon Legal could be the new model for corporate or in house counsel. Oh boy, a reinvention of the broken system!

Except, it actually does seem pretty well executed.

Has Your Company Received a National Security Letter?

Between 2003 and 2011, the U.S. government issued nearly 300,000 National Security Letters (NSLs), 97 percent of which came with nondisclosure orders, Wired reports.

If you work for a bank, telephone company, or Internet Service Provider, there's a good chance that your company has been on the receiving end of an NSL. Until last week, you probably never spoke of the NSL based on the nondiclosure order.

Should that policy change?

In-House Counsel Salaries: What Can You Expect in the First 3 Years?

Last year, Kent Zimmerman, a consultant for the Zeugheuser Group, told Bloomberg Law to expect more law firm layoffs and BigLaw dissolutions. It’s a scary prospect for attorneys. While no one expects a recent law grad to be able to find a job these days, we like to believe that the already-employed among us will stay employed.

If Zimmerman’s predictions are correct, there could be a lot of unemployed lawyers by the end of 2013. Right about now, making the switch to in-house counsel sounds pretty appealing.

We recently compared entry-level legal salaries between in-house counsel and traditional practitioners. Based on those numbers, going corporate looked like a good bet. Today, we’re moving on to in-house counsel salaries during the first three years of practice.

3 Reasons March Madness is a Losing Game for Businesses

College sports tournaments cost companies money, and March Madness is leading the way.

Between office pools, water cooler recaps, and hours spend secretly streaming games feeds, employers bear the brunt of workers’ college athletics obsession.

As corporate counsel, it might be a good idea to work with the human resources department to establish sports tournament guidelines for your company that reduce lost revenues and avoid illegal activity.

Here are three issues that should factor into your discussions.

3 Concerns When Picking Outside Counsel

You finally made it. You landed that cushy in-house gig for a hot Silicon Valley company. Your exuberance was soon tested, however, when your company was slammed with two IP infringement lawsuits and a sexual harassment claim within the first week.

You can't handle this yourself, nor should you. You need outside counsel with experience in these areas. The problem is, who do you choose?

How Much Do First-Year In House Jobs Pay?

An in-house gig is the promised land for plenty of lawyers. If you’re already reviewing documents and handling transactions all day long, why not do it without a billable requirement?

While most of us look at in-house job as the treat that follows years of toiling in a firm, some people skip straight into the corporate counsel’s office. But how does an entry level counsel position pay? Can a new lawyer actually afford to pay rent and student loans when starting at the bottom of the in-house food chain?

According to the InHouse Blog, in-house salaries are on the rise. Projected compensation for in house attorneys at any experience level is expected to increase by 3 percent in 2013.

5 Days to the AIA: The New 'Fast Track' System for Patents

This weekend, many provisions of the America Invents Act, passed on September 16, 2011, will finally be implemented. One of the biggest changes, however, has already been in place since the law's passing: the Track One Prioritized Examination ("fast track"). The short version of Track One is that you pay a bit more up front and end up with your patent faster, and according to some accounts, cheaper. Let's take a quick look at some things in-house folks should be aware of:

The Fast Track

The Track One expedited process is relatively simple: file a one-page application, skip the pre-filing research, pay an increased fee, and get your patent within twelve months. The fee is $4,800 for larger entities or $2,400 for entities with fewer than five hundred employees.

Should Your Company Change Its Drug Testing Policy?

Corporate drug testing is a billion-dollar business; many major companies require prospective employees to pass a drug test as a condition of employment.

In some industries, it’s a safety concern. You don’t want your delivery driver, air traffic controller, or surgeon to be stoned at work. In other industries, where employees clack away on keyboards all day long, drug testing seems pointless. Particularly in light of changing attitudes towards drugs like marijuana.

Times have changed, even if federal law still says that marijuana is illegal. Medical marijuana is now legal in 19 states and the District of Columbia. Recreational marijuana is legal in Washington and Colorado.

But employment practices don’t have to keep up with those changes.

Financial Institutions Prevail on Absent 'Plus Factors'

In-house attorneys at banks can breathe a collective sigh of relief this week after the Baltimore City Council and Mayor's Office lost an antitrust claim against some of the world's largest and best-known financial institutions.

Baltimore politicos filed a class action suit against household name banks including Citigroup, JPMorganChase, and Bank of America, alleging that the institutions violated the Sherman Act when they simultaneously stopped buying auction rate securities in 2008. The city's officials blame the banks for triggering the market collapse, the ABA reports.

Ten Days to the AIA: Three Things to Know

A sweeping set of changes is coming to the American patent law system in ten days. The America Invents Act, passed on September 16, 2011, brings significant changes to patent filing, patent disputes, and the definition of prior art.

Have you prepared your company? Here are three things you should know:

Be Specific in Your Rule 68 Offer of Judgment

Federal Rule of Civil Procedure (FRCP) 68 permits a party defending a claim to serve on an opposing party “an offer to allow judgment on specified terms, with the costs then accrued.” If the suit was brought under a statute that provides for an attorney fee award to the prevailing plaintiff, the relevant “costs” include attorney fees.

If the defendant wants the offer of judgment to include costs and fees, the offer must specifically state so.

Let’s look at two examples from the federal appellate courts that drive this point home.

'Materiality' Not Necessary in Fraud-on-the-Market Cases

To recover damages in a private securities-fraud action under §10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, a plaintiff must prove, among other things, reliance on a material misrepresentation or omission made by the defendant.

The Supreme Court has endorsed a "fraud-on-the-market" theory, which permits securities-fraud plaintiffs to invoke a rebuttable presumption of reliance on public, material misrepresentations regarding securities traded in an efficient market. The fraud-on-the-market theory facilitates the certification of securities-fraud class actions by permitting reliance to be proved on a classwide basis.

States v. Startups: When Laws and Innovation Clash, Who's to Blame?

Square is a pretty nifty product. It’s a simple quarter-sized device that plugs into your iPhone or other smartphone and allows you to swipe a credit card for payment. The small business, such as a food truck, can now accept credit cards with little to no effort, and Square gets a small percentage of the transaction.

Uber is another nifty product. It’s a smartphone app that uses your GPS to hail the nearest cab or car service. In New York City, getting a cab is as simple as standing on the street corner and waving. In most other major metropolitan areas, it can be much more difficult and involve much more waiting. Uber also uses the GPS to set rates, auto-pay the driver, and auto-tip the driver.

What do the two have in common? Headaches over state laws.

Businesses Weigh in on DOMA with Amicus Brief

If you want to get away from discussions of the Supreme Court's same sex marriage cases this month, you'll need to institute a total media blackout.

And you'll have to stop talking to other businesses.

This week, hundreds of American companies signed on to an amicus brief urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act (DOMA). From Goldman Sachs to Google, Nike to Twitter, Adobe to Zynga, numerous titans of American industry want the Court to overrule the law.