In House - The FindLaw Corporate Counsel Blog

February 2014 Archives

In 2014, new General Counsel were in place in 10% of large organizations, according to BTI Consulting Group. Circumstances may vary, but your organization may bring on a new general counsel as a result of the former GC retiring, as part of a merger/acquisition, or a law department shake up.

Whatever the reason, there's someone new in charge.

That got us thinking -- how do attorneys in the legal department deal with a new general counsel? Nothing could jolt a law department more than a new leader, especially when the former GC left a strong foot print. So, for those of you working with a new GC we see three options.

The Oscars are this weekend, and while people may forget who won what award, the adoring public will undoubtedly remember who and what they wore. I mean, the red carpet even has its own police force.

While the red carpet, the ensuing paparazzi chaos, and magazine coverage are entertaining, for attorneys working for large fashion companies, it's definitely not all fun and games. As Vera Wang told Vanity Fair, dressing a starlet for the Oscars is a "gamble of the highest order." There's much more to it than just a pretty dress or earrings.

Here are some legal issues to keep in mind as we watch the red carpet on Sunday...

Proposed Change to Fed. eDiscovery Rule 37(e): The Yay Case

Last week, we talked eDiscovery and the sanctions that make the process an absolute nightmare for companies and their in-house legal departments. The advisory committee is considering revising Rule 37(e) to make sanctions less prevalent, more predictable, and only available where there is willful or intentional misconduct and the requesting party suffered prejudice as a result or, the requesting party was deprived of an opportunity to present or defend its claims.

We gave you the text of the rule, as well as the case against it. Today, let's look a bit more at the case for the rule, and some proposed alterations by the Association of Corporate Counsel (ACC).

The Transformative Leadership Awards recognize and "honor general counsel and law firm partners who have demonstrated a commitment to advancing the empowerment of women in corporate law," and is presented by InsideCounsel Magazine. An annual tradition, peers nominate attorneys for the Transformative Leadership Awards for recognition at an industry dinner.

The Transformative Leadership Awards

The Transformative Leadership Awards are split into two categories: three Economic Empowerment Awards, and four Awards Named for Stellar Attorneys. The Economic Empowerment Awards each recognize a law firm, a female partner and a joint award goes to female general counsel/senior member of a law department and a female partner at a law firm. The four remaining awards acknowledge traits including vision, leadership, courage and commitment, just to name a few.

Is In-House Entertainment Law Right for You?

Are you uninspired by your corporate law job and have an insatiable attraction to seeming glamour of entertainment law? With the Oscars right around the corner, your interest in the field might be intensifying.

Though an in-house position at a Business and Legal Affairs department might sound like a dream job, the road to getting there is often arduous.

Here are five tips to consider before gunning for an in-house entertainment position:

Last summer, we posted about UpCounsel, a relatively new online service that matches up small companies with attorneys for short-term projects, creating a bit of a revolution in the way companies find affordable legal services. Business owners can post free job listings on the UpCounsel website, and attorneys who have been registered, and screened, are able to bid on the projects. Then, based on attorney profiles, ratings, rates, and reviews, business owners are able to select an attorney for pending projects.

Last week, UpCounsel announced that it has added a new feature to its list of offerings: Outside General Counsel. Responding to customer feedback seeking long-term relationships with attorneys, UpCounsel now is in the business of pairing companies with prospective outside general counsel, who "know their companies and [are] true legal advisors."

On January 22, 2014, Maxim Marketing sued ConAgra and Trader Joes' for breach of contract regarding one of our personal favorite salty/sweet snacks -- peanut butter-filled pretzels -- in Los Angeles Superior Court (case number BC533822), reports the Los Angeles Business Journal. How could something so delicious stir up so much controversy?

Easy -- it all comes down to money.

Proposed Change to Fed. eDiscovery Rule 37(e): The Nay Case

The present-day version of Federal Rule of Civil Procedure 37(e) contains a safe harbor for routine, good faith destruction of electronically stored information (ESI). "Whoops. We deleted it per our regularly-scheduled maintenance. Our bad."

Even with that safe harbor, however, companies find themselves adopting overbroad preservation measures to ensure that they will avoid sanctions, a situation exacerbated by inconsistent law across the states. In some cases, the potential penalties are so severe that companies settle just to avoid the possibility of sanctions.

Last year, the Advisory Committee recommended the replacement of Rule 37(e) with a new version, one that is intended to limit the circumstances in which sanctions can be ordered.

What's the proposed rule? And will it help?

A division of Working Mother Magazine, The National Association of Female Executives, recently published its 2014 results for the Top 50 Companies for Executive Women, reports Forbes.

Methodology

The methodology is simple: for-profit companies with over 1,000 employees and with at least two women on their board of directors are invited to complete an application consisting of over 200 questions on "female representation at all levels, but especially the corporate officer and profit-and-loss leadership ranks." In addition, the survey tracks "programs and policies that promote the advancement of women" and how many female employees actually participate. Finally, the questionnaire looks into the ways managers are trained to "help women advance."

3 Reasons In House Counsel Should Know WhatsApp With Facebook

Facebook struck again, this time dropping $19 billion ($16bn for the company and $3bn for the company's founders, per Wired) on WhatsApp, an insanely popular messaging app. For context the number is:

In short: it's a big, big number. And even if you didn't strike it rich in the deal, there are reasons you should be paying attention.

In the latest version of David v. Goliath, Kind, a small, but fast-growing company, is going up against Clif Bar, who has over 18% of the nutrition bar market as of 2012, reports Fortune. According to court papers filed on February 6, 2014, Kind is suing Clif for trademark infringement, à la trade dress violation, related to the new, very similar packaging of Clif's Mojo nutrition bars.

Trade Dress Similarities

Kind's packaging features a large clear band so consumers can see the product inside. Daniel Lubetzky, the company's founder stated, "Everything you see in our product is about transparency ... We were the first ones to [have a transparent wrapper] in our industry, and now we have a lot of people trying to copy our approach," reports Fortune.

Rent In House Counsel for a Day: À La Carte Legal Services

Have you ever considered offering your services as in-house counsel à la carte? It's a burgeoning realm of the legal industry that caters to bright-eyed startups on shoestring budgets.

One such company, Daily General Counsel, launched recently, taking a foray into the next stage of GC life: on-demand in-house lawyering.

How it works: the attorneys swoop in to companies and provide legal services on an as-needed basis, playing the role of an in-house attorney for a day, resolving as many issues as they can in eight hours for a flat fee of $1,500, The Boston Globe reports.

Patent Trolls Target ... White Castle?

Exhibit A of why patent reform is needed: White Castle.

The family-run, slider-slinging burger joint has apparently been targeted by not one, not two, but three different patent trolls in recent years. And no, the patents have nothing to do with steamed buns or circular-shaped chicken rings. (How do they do it?)

White Castle received demand letters regarding their digital menu boards, the use of QR barcodes on their packaging, and about putting a hyperlink in an email, reports Legal Newsline. Patent claims over menus, barcodes, and hyperlinks -- this is why we need patent reform.

This week, social media was abuzz with a new coffee shop on the scene -- Dumb Starbucks. Yes, you read that right -- Dumb Starbucks. As a Starbucks gold card member, I love my coffee, but even I thought the idea of a Dumb Starbucks was hilarious. But what about Starbucks? Were they able to have a laugh?

Starbucks is notorious for protecting its trademarks, though sometimes unsuccessfully. Just last year, the Second Circuit ruled against Starbucks when it sued a coffee producer for naming its blend "Mr. Charbucks." Then, last month Starbucks received negative publicity after sending a cease-and-desist letter to a small Missouri beer brewery to stop using the name "Frappicino" (not to be confused with Starbucks' Frappucinio) for one of its beers.

Lost Treasures of FindLaw: Sample Contracts From Big Companies

FindLaw has a lot of content. Millions of pages of content, to put things in perspective.

It's unsurprising then, that occasionally, we even surprise ourselves by stumbling across some very useful content. Today's discovery? We have a ton of sample contracts, and not just the blank forms you can find all over the Internet. These are the actual contracts from the biggest companies out there.

Employment compensation agreements. Stock options. Severance. All from companies like Apple, AT&T, Exxon Mobil, Microsoft, Coca-Cola, and many others.

Last Wednesday, February 5, marked the 20-Year Anniversary of the day that President Clinton signed the Family and Medical Leave Act ("FMLA") into law, reports Working Mother. With more than 100 million people helped during this time, we thought we would give you some tips to make sure that your company is meeting the standards set forth in the FMLA.

Do Your Research

If an employee requests time off pursuant to the FMLA, be sure to properly research whether the request properly falls within the FMLA before approving, or denying, such requests. In one district court case, the company (and attorneys') failure to properly "research the requirements of the FMLA" led to the award of back pay to the employee.

AOL CEO Tim Armstrong's 'Distressed Babies': 3 PR Lessons Learned

AOL Chief Executive Tim Armstrong is still reeling from his massive "distressed babies" public relations debacle. At a town hall meeting, Armstrong blamed two AOL employees' "distressed babies" and their pricey health care costs for the company's decision to cut employee retirement benefits, Reuters reports.

Deanna Fei, an accomplished writer and mother to one of the so-called "distressed babies," penned an incredibly moving article for Slate about how Armstrong's town hall comments has affected her family, including her husband, the AOL employee.

Here are three lessons in-house counsel should take away from this mess:

Last week we talked about the law department's love of all things survey, and suggested that the law department should survey itself to gauge employee satisfaction and productivity. Today, we'll discuss surveying your internal corporate clients to get an outsider's opinion on the legal department's effectiveness. As we did last week, we'll give you the who, what, when, why, and how of conducting a law department internal client survey.

What

A law department internal client survey polls clients within the corporation to gauge their opinion of working with the law department. The purpose of the survey would be to see if internal clients are satisfied with the level of service, and response time, of the law department.

Legal Process Outsourcing May or May Not Be Growing

Have you outsourced your document review, due diligence, compliance paperwork, or other repetitive tasks that make you want to slam your face through a plate glass window?

Depending on who you ask, legal process outsourcing (LPO) is either growing, or stagnating. A survey late last year claimed that LPO growth had slowed, and while LPO revenues exceeded $1 billion in 2012, that was far less than the $2.4 billion that had been expected.

Yesterday, a different survey was released, and it painted a slightly sunnier picture for LPO providers, with 80 percent of in-house counsel respondents saying that they expected the LPO industry to expand and improve its services over the next five years.

If there's one thing about lawyers that we've learned as bloggers at FindLaw, it's that lawyers like surveys. And, that makes perfect sense; lawyers are curious and inquisitive by nature. We've covered surveys regarding legal department operations managers, law department compensation and corporate board communications.

Now, we're here to tell you to conduct a survey of your own -- an internal legal department survey. Yes, you have enough on your plate; that's why we're going to make it easy as possible and give you the who, what, why, when, and how of conducting internal legal department surveys (just not in that order).

NLRB Announces Proposed New (Old) Unionization Voting Rules

Sorry, that's a lot of adjectives, but it'll all make sense in a second.

Yesterday, the National Labor Relations Board announced that it would issue proposed changes to Representation-Case Procedures, those used for petitioning and voting on unionization. The new rules are intended to simplify the procedures, postpone litigation until after the election, and generally speed up the process.

The new rules are also old rules. You see, the NLRB tried this once before, but the rules were tossed out in court due to a procedural gaffe.

One month down, eleven more to go. Have you begun to implement changes to meet your departmental goals for 2014? What? Haven't even made a list of goals yet? Stop.

If you are running around putting out fires you will never be able grow as a management professional and trusted team player in the legal department. Before you run off to that next meeting, take a look at some of the top trends for 2014 in legal department management, that Huron Legal put together. We've summarized and re-categorized the issue for brevity, so you can focus on areas that make sense for you, and your department.

5 Ways In-House Counsel Can Improve Vendor Cybersecurity

As the details of Target's massive data breach begin to emerge, the focus is beginning to shift to vendors. According to The Wall Street Journal, it seems the Target hackers breached the chain's security systems by using electronic credentials stolen from a vendor.

For in-house counsel, the immense breach highlights the need for companies to create a robust security system that extends to vendors and other interconnected business relations.

Here are five ways in-house counsel can improve their company's vendor cybersecurity:

As corporate counsel working in our increasingly border-free business world, you will no doubt at some point in your career have to deal with corporate counsel in other countries. Whether you all work for the same company and are spread across the globe, or you are working with attorneys from other companies, the rules of engagement remain the same.

To properly, and politely, interact with corporate counsel based in other countries, follow these four tips.