In House - The FindLaw Corporate Counsel Blog

April 2014 Archives

Betterize Your Vocabulary: 5 Annoying Phrases to Avoid

There are some phrases that just tend to set one's teeth on edge. They aren't actually evil, just pretentious, tired or unintentionally offensive. They insinuate themselves into your vocabulary without you even realizing it, and then burst forth to the annoyance of those around you.

Since you have to work with lawyers and non-lawyers in your company setting, you want to be particularly careful about how you express yourself. Here are five phrases that seem particularly common among lawyers:

FDA Finally Moves on E-Cigs With Minimal Regulation

If there was any fear of the Food and Drug Administration on the part of the e-cigarette industry, those companies are now breathing a massive sigh of relief, while pro-regulation consumer groups are muttering in frustration.

The "vaper" industry has grown into a multi-billion dollar market over the last few years in the absence of regulation, and over the last year, the roaring rumors of impending regulation by the FDA have intensified greatly, with some speculating that the devices could soon reach the same level of restrictions as traditional cigarettes.

Instead, the FDA's proposed regulations, published late last week, are but a mere whimper.

As in-house counsel you probably hear so much about corporate compliance that it may blend in and sound more like white noise. Well, next week is Corporate Compliance and Ethics Week, so we've decided to make a rallying cry for corporate law departments to get in on the action.

You have one week to get ready -- here are some tips for participating in Corporate Compliance and Ethics Week.

What Is Corporate Compliance and Ethics Week

The Society of Corporate Compliance and Ethics has recognized Corporate Compliance and Ethics Week since 2005, making this the 10th annual week of recognition. It's a week-long event, "which highlights the importance of ethics and compliance in the workplace."

Silicon Valley Anti-Poaching Antitrust Labor Lawsuit Settles

What did the rumors say? $9 billion? Try $324 million, a cheap price for Google, Apple, Intel, and Adobe, who probably would've spent that much on lawyers during the trial, which was only a few weeks away.

It smells like a nuisance settlement, which is extremely curious considering the now-public smoking gun emails between the companies' executives and the length of the conspiracy, which stretched on for years. The backroom agreements finally ended in 2010 when the Department of Justice intervened, but for years, the biggest employers in Silicon Valley conspired to depress wages. Now, they'll walk away for about $5,000 per head, assuming the settlement is approved by the court.

Attorneys working in-house face unique issues, and as such their management training and CLE courses should reflect that. Since CLE requirements are mandatory, why not take classes that will actually help you deal with the particular issues that are relevant to your practice?

There are some great events coming up in May, and we have a roundup of some of the ones that may relate best to in-house counsel. Mark your calendars, and start tallying up your CLE credits, and add management training to your belts.

Hiring Summer Associates: 3 Mistakes to Avoid

Summer is fast approaching, and that means summer associate interviews are well underway.

Are you planning to hire an intern? Here are three mistakes to avoid so that you and the associate can both have a productive experience:

Mistake No. 1: Not Being Ethical.

Don't hire a summer associate unless you know that you'll be extending an offer later if she meets expectations. This isn't necessarily a matter of professional ethics, but rather personal ethics. If you waste your intern's summer, you're dealing a blow to her career before she even begins it; that's not fair and it won't reflect well on your firm, as Business Insider notes. If the associate is to be unpaid (not all law is BigLaw, after all), be sure to follow the Department of Labor's guidelines for unpaid interns.

3 Things Inventors Wish Their Patent Counsel Would Do

Here's something to know when you are working with inventors: they don't want to be there. Your typical engineer-inventors don't have a huge incentive to do the patent paperwork. It's the company that stands to make the big profit. For the inventors, it's little more than documentation.

Inventors are focused on the core business of the company. As company attorneys, it's our job to serve them, not the other way around. So here are three ways we can do that job better:

You may have left the confines of a law firm but you are still a member of a team -- and this week is a big week for corporate teams. Wednesday is Administrative Professionals Day. You forgot? No problem, we've got some tips for your here (just whatever you do, don't delegate gift purchasing to your admin).

Now that your admin is covered, now you've got to deal with the kids. Yes, kids. Thursday is Take Our Daughters and Sons to Work Day, and in the spirit of nurturing our future leaders, you should participate.

Here We Go Again: NLRB Nixes Workplace Conduct Policy Using Sec. 7

Over the last few years, the National Labor Relations Board has continuously expanded Section 7's reach, a section which generally protects speech about working conditions, such as pay and hours. First, the NLRB stretched Section 7 to cover overly-broad social media policies, which often contain anti-disparagement language. And while "no badmouthing the boss or company on Twitter" may seem reasonable, the NLRB held that the broad language could discourage protected Section 7 speech.

In January, the NLRB struck again, but this time at a different topic: workplace gossip. Free speech may have no place in the workplace, but speech about working conditions does, and policies that broadly prohibit backbiting and gossip will be struck down on that accord. The trend continued this month, with the NLRB striking down an employee-authored policy, the Values and Standards of Behavior Policy at Hills and Dales General Hospital.

Your In-House Interview -- Prepare Deeply

In-house counsel is not your typical job. You're a lawyer, but you're not working at a law firm: you're at a company that's focused on something else. In a way, you'll be both an insider and an outsider.

If that is exactly the job you want, how will you bridge that gap and show the interviewer you're the right person for the position? In Johnny Cochran's words, "preparation, preparation, preparation." And you might get some insights about yourself too.

They say "diamonds are forever," but not so for general counsel. Last week, Tiffany announced that Patrick B. Dorsey, Tiffany's general counsel and secretary will retire, effective May 22, 2014.

That's not all, Princeton University is also losing its general counsel -- and the position is not yet filled. Looking for a new job in New Jersey anyone?

For the past 13 years, InsideCounsel has hosted SuperConference, an event boasting experts speaking on panels, exhibitors and sponsors from leading technology providers and law firms, and draws more than 450 attendees ranging from in-house counsel to general counsel.

This year, the 14th Annual InsideCounsel SuperConference will take place from May 12-14, 2014 and will be in Chicago. Here are some details about the event, and why you should consider attending.

We've been hearing a lot of security data breaches lately -- some would say too much. From the Target and Neiman Marcus debacle to last week's Heartbleed bug, we now know why cybersecurity is on the minds of general counsel not just in the U.S., but worldwide.

Based on a recent district court decision, the data breach itself may be the least of a company's problem. What may be worse is not only the media and consumer fallout, but the possibility of FTC enforcement actions, and private litigation.

Please pass the Advil. 

When Congress enacted the America Invents Act in 2011, the USPTO was charged with designating four satellite office locations, and they chose: Detroit, Denver, Silicon Valley and Dallas. The Detroit office was successfully opened in July 2012, the Denver office is hiring, and the Dallas office has been operating out of a temporary space since 2013.

What's going on with the Silicon Valley office?

The USPTO's Silicon Valley satellite office is operating out of a less central temporary office, and is only staffed with a few Patent Trial and Appeal Board judges, according to Corporate Counsel. What's the hold up?

A few weeks ago, the Supreme Court decided a case that clarifies the pleading requirements for a plaintiff who makes a claim for false advertising under the Lanham Act. As the guardians of your company's intellectual property, knowing the new standard is paramount. Here's a breakdown of the Supreme Court's decision so you can determine whether to pursue, or defend, any federal false advertising claims.

Background

Lexmark manufactures laser printers, and they are made to work only with Lexmark toner cartridges. An aftermarket has developed where third parties acquire, refurbish and resell Lexmark cartridges. To combat this, Lexmark developed a prebate program giving customers a discount up front, for the promise to return the cartridge to Lexmark, rather than a remanufacturer.

To ensure this, it created a microchip for the cartridges that would disable the cartridge once it was emptied. Static Control developed a microchip that mimicked Lexmark's; Lexmark distributed a letter to its customers saying that they were legally bound to return the cartridges to Lexmark, and sent a letter to remanufacturers saying it was illegal to sell refurbished cartridges, and that it was illegal to use Static Control's microchip.

Silicon Valley Non-Poaching Pact Could Cost Tech Giants Billions

Steve Jobs may have been a genius, but he was an idiot about discussing anti-competitive behaviors over email. His emails were one of the deciding factors in the Apple e-book lawsuit (Apple lost) and now, his words are haunting his friends in the tech industry in a different anticompetitive case: the non-poaching pact class action that first made headlines late last year.

In October, the all-knowing, all-seeing Judge Lucy Koh allowed the lawsuit to proceed, and now, six months later, the parties are entering into intense settlement negotiations, with figures like $9 billion being floated around (and scoffed at by the tech companies). Laugh now, pay later, because the eDiscovery evidence seems damning.

If you've listened to, or read the news in the last day or so, then you've probably heard about Heartbleed a/k/a the biggest security flaw in years. The flaw is so bad, that one NPR commentator stated that it was like leaving your car door open with the keys in the ignition. That doesn't mean someone will actually get in your car and drive away -- but the vulnerability is there.

On Tuesday, the United State Department of Homeland Security released a statement warning about the Heartbleed vulnerability, along with information and instructions on how to deal with the problem.

If you want to know the technical aspects of the bug, The Washington Post has a good explanation of the Heartbleed security flaw. As in-house counsel, here's what you need to know: if your company's website takes payment, or passwords, you have a problem. Leave the technical details of Heartbleed to IT and let's start putting out that fire.

Disney is very protective of its marks, understandably so, and now it's most iconic mark is getting some competition and Disney is not standing for it. In this game of mouse and mouse, who will win?

Mouse v. Mau5

The other mouse is the mark representing DJ Joel Zimmerman's stage name Deadmau5 (pronounced "dead mouse"). Last year Deadmau5 filed an application to trademark a black mouse with large round ears, white eyes and white smile. Zimmerman plans to use the logo on a variety of products, everything from food items like coffee, to toys, leather goods, paper goods, electronic equipment, BMX bikes and entertainment services, reports Rolling Stone. Let's take a look at what all the fuss is about.

Given the dramatic legal corporate landscape surrounding the economic downturn, it should come as no surprise that compliance officers are in demand. Not only that, but the salaries of attorneys who work in compliance are growing at some of the fastest rates in the legal industry, according to the Robert Half 2014 Salary Guide.

Another growing trend of compliance officers: A growing majority of people who hold that title are women. In fact, of all the members of the Society of Corporate Compliance and Ethics, almost 60 percent are women, according to Quartz. Is that a bad thing? Well, some view this as a troubling trend and are expressing fear that compliance officers may be the new human resources professionals.

Newegg, Geico Scalp Another Patent Troll in Ongoing Crusade

We like Newegg's style. When confronted with patent trolls in the past, the company has refused to settle, even when the cost of doing so would've been miniscule in comparison to fighting the case all the way through the Federal Circuit.

The company previously took down Soverain's "shopping cart" patent through litigation. This time, it's part of a coalition of companies, including Geico Insurance, that has taken on Macrosolve, a company that allegedly turned troll when other revenue channels collapsed. According to Newegg's Chief Legal Officer Lee Cheng, Macrosolve received more than $4 million in settlements before the coalition banded together and refused to pay even the miniscule amounts requested ($50,000 to $100,000) as a matter of principle.

Geico dealt the death blow, initiating an ex parte re-examination of the patent, which covered using questionnaires on a mobile app. The patent claims were rejected, and now Macrosolve is dismissing defendants, reports Ars Technica.

Did you hear the latest in corporate social media debacles? Cole Haan, purveyor of fine footwear, hosted a Pinterest contest that caught the attention of the Federal Trade Commission -- and not in a good way. Here's the low-down on what happened, and how to avoid making the same mistake that Cole Haan made:

The 'Wandering Sole' Contest

If you're not familiar with Pinterest, it's another form of social media where people essentially create online mood boards consisting of everything from recipes, to shoes, to home decor. Understandably, many brands' marketing departments have turned to Pinterest as a way to attract existing and new audiences.

Dangerous Game: Patent Troll Sues Celebrity Over Podcasting

This troll must have missed the memo about suing only those who can't defend themselves.

The basic patent troll business model is this: Get patents, sue small businesses that can't afford to pay for legal defense, and negotiate nuisance settlements. It's easy, it's effective, and if you get enough settlements, you can rake in a decent revenue stream without filing any lawsuits, even if your patent is junk.

The problem for Personal Audio is that they sued Adam Carolla, of "Loveline" and "The Man Show" fame. He's not only a celebrity, but he's a frank, outspoken, and willing crusader.

The New York Attorney General ("NYAG") originally filed a complaint against Fed Ex in December, and on Sunday, filed an amended complaint against the shipping giant. The controversy surrounds FedEx's alleged untaxed shipments of cigarettes, that according to the NYAG, results in a "'direct tax loss' of more than $10 million, reports InsideCounsel.

The Complaint

In the complaint, the NYAG alleges that FedEx shipped over 140 tons of contraband, untaxed cigarettes between 2005 and 2012. The complaint states nine claims for relief under federal, and state laws, including violations of: (1) trafficking in contraband cigarettes; (2) RICO; (3) conspiracy under RICO; (4) failure to label cigarettes; (5) unlawful of shipment of cigarettes; (7) public nuisance; and (8) violation of the assurance of compliance. In addition, the NYAG is seeking injunctive relief, the appointment of a compliance monitor, and nearly $76 million in damages and $163,435,000 in penalties.

If your company is on Facebook, and has a loyal following, it's quite possible that there are fan sites or Facebook fan pages on social media. According to Facebook's rules, fan sites are permitted so long as the brand's copyright is not infringed, doesn't "mislead others into thinking it is an official Page," and doesn't "speak in the voice of" the brand.

A Tale of Two Brands

In 2008, Coca-Cola learned that two of its fans created a Facebook fan page and had millions of "likes." Seeing this as an opportunity, Coke hired the two, giving them resources to build the page, and making their fan page the official fan page, reports Bloomberg.