In House - The FindLaw Corporate Counsel Blog

November 2017 Archives

There's risk involved in any and every form of data management. Even the tried and true paper hard copy is susceptible to loss, theft, damage, and that's not to mention deterioration over time. It's no surprise that companies have increasingly been going digital, and even going a little bit further and integrating cloud technologies.

When it comes to that last part, there are several risk factors that a corporate counsel or in house attorney would be wise to consider. You can read about a few below, along with potential solutions.

Uber Blew Tire With Data Breach Cover-Up

For all of its popularity with urbanites, Uber is losing its luster in the marketplace.

SoftBank is offering to buy the company for about $48 billion, but that is down 30 percent from the company's most recent valuation. What happened to the most popular ride-hailing service on the planet?

This happened: Uber tried to cover up a massive data breach affecting 57 million riders. For corporate counsel, it goes to show that paying for confidentiality is not always a good thing.

When to Offer a Severance?

Terminating an employee is rarely easy. Whether it is for cause, or just due to business needs, not only are there potential morale problems that can surface, a terminated employee can cause all sorts of legal headaches.

Offering a severance can really go a long way towards avoiding both a disgruntled former employee, as well as keeping morale high for those who remain. Generally, there's no legal requirement to provide one, unless it was contracted for, or state law requires it for layoffs. But knowing when to offer a non legally required severance requires careful consideration as giving away money is rarely a good business decision, and sometimes a severance can lead to negative PR.

A recent labor strike has come and gone and you were likely none the wiser. Even if you use the app Instacart, you may not have even known that on November 19 and 20, there was a worker strike.

Using a closed Facebook group, Instacart shoppers organized a strike of sorts. Basically, their idea was to sign on, get offered pickups, and just continually deny them. Like blocking the roadways, the strike was intended to cause a slight service disruption to the individuals just trying to utilize a convenient service.

Trump Administration Sues to Block Time Warner Merger

Did you see the photobomb behind the AT&T-Time Warner deal?

President Trump tweeted it earlier this year. The fake video shows him pouncing on a CNN-faced victim at a wrestling event.

Strangely, it's the backstory to the proposed merger and is more interesting than the news. The Department of Justice has filed a lawsuit to block the deal, and CNN is being dragged into the fight.

How to Reject Buyout Offers

Year-end sales don't just happen in retail businesses.

This year, at least, big business is also in the market. Broadcom wants to buy Qualcomm, and Hasbro is negotiating to get Mattel.

So far, the would-be sellers have rejected the offers. But lawyers are working through the holidays and talking about how to say "no" between the lines.

Given the massive worldwide market share in the personal care products sector, Johnson and Johnson is no stranger to legal battles. Over the past couple years, the company has been facing hundreds of claims that their talcum powders, or baby powders, contain cancer causing agents.

Recently, a California jury, hearing the evidence at the first trial over a woman claiming she contracted mesothelioma as a result of using talcum power, ruled in Johnson and Johnson's favor. The plaintiff claimed that the products contained asbestos, which is a known cancer causing agent known to cause mesothelioma. Commenting on the ruling, Johnson and Johnson welcomed the verdict and affirmatively stated that their talcum powders do not contain asbestos. The company further asserted that this claim of talc causing mesothelioma was nothing more than a novel claim borne out of the recent losses in the lawsuits claiming that talc causes ovarian cancer.

The going doesn't get much better than being an in-house lawyer. Regular hours, regular pay, respect from the proletariat, and best of all, no billable hour logs. As such, one of the easiest ways an in-house lawyer can make sure they don't get fired is to avoid conflicts.

One of the most common conflicts involves representing the company and its employees and officers in the same legal matter. Adverse interests may not be readily apparent at the outset, but as time continues, a conflict could arise that could render you no longer employable by your only client.

Tesla Board Member Vows Defamation Action

Every lawyer knows that defamation cases are hard to win -- especially if your client is a public figure.

You have to get over the First Amendment, New York Times v. Sullivan, and all those privileges you learned in law school. Even if you can prove actual malice, the ultimate question is damages.

"It's not about the money," some clients say. But let's face it, some lawsuits are just not worth it.

A good chunk of the Americans with Disabilities Act cases have nothing to do with tangible physical barriers. Often, it is simply a business's policies, practices, rules, or lack thereof, that leads to an ADA claim.

Many ADA claims can be easily avoided by general counsel or outside counsel reviewing a business's ADA policy compliance and ensuring proper employee training on those ADA policies. A recent lawsuit against a chain retailer involves an amputee that was left with no other option but to crawl out of a retail establishment due to an employee and manager's misunderstanding of store policy on use of the store's motorized wheelchair shopping carts.

Whether you represent a corporation, or private or public entity, chances are you'll need to get some board or council to approve any settlement offer or demand you make or receive. Typically, when you go to the board, you not only need to present the demand or offer, you also need to provide a recommendation.

Although the entity client may have provided an acceptable range at the outset, rarely will settlement negotiations actually be in that range. However, there are some entities that do have clear policies and a generous settlement budget, where a GC can act without board approval within a certain range, like the University of California.

Here are three tips to help you get your settlement recommendations approved by the board:

CNN Faces Repeat of Racial Discrimination Lawsuit

If at first you don't succeed, add more plaintiffs?

That's apparently part of the strategy in re-filing a class action against CNN for racial discrimination. Atlanta lawyer Daniel R. Meachum sued the broadcast company earlier this year, only to have a federal judge dismiss it.

Meachum says he has 30 more plaintiffs to add to the original 175. But the judge didn't say it was about the numbers.

Baseball Star's Plane Crash Hits an Industry

When baseball star Roy Halladay crashed his plane and died, it was a tragedy for people and an industry.

It shocked family and friends who knew the 40-year-old, former major league pitcher. It also troubled makers of the ICON A5; it was the third fatality in the new design.

Amateur video showed that Halladay was flying dangerously close to the water, and witnesses said he was showboating. Still, the manufacturer is reeling from the impact of a sport plane that was the darling of the light aircraft industry.

Being an in-house lawyer is not without its attendant risks and ethical obligations. Both new and experienced in-house counsel can make mistakes both as a lawyer and just in terms of the business they work for.

However, knowing about some of the more common mistakes can help you avoid them. To that end, below you'll find five of the most common flubs in-house lawyers can make.

This may be the Rolls-Royce of foreign bribery schemes, but only because it involves three former Rolls-Royce employees who pleaded guilty in a foreign bribery scheme. Interestingly, it was the UK company's U.S. subsidiary that was alleged to have bribed officials in Asia in order to secure a gas pipeline construction contract there.

Unfortunately for the U.S. based employees, their actions violated the Foreign Corrupt Practice Act which prohibits U.S. businesses from bribing foreign officials, or foreign government backed businesses for economic advantages.

Not surprisingly, the Trump administration nominee for the position of General Counsel of the National Labor Relations Board, Peter Robb, has recently been confirmed. Also not surprising, President Trump, who is heavily pro-business rather than pro-labor, nominated an attorney that is known to be anti-union, in addition to padding the board with conservative, pro-employer, board members.

For the first time in over a decade, Republicans have control of the NLRB, though the past decade has been mired by controversy held over from the Bush Administration. Although the NLRB was formed to help employees resolve disputes with their employers, the recent changes certainly shifts the focus from leveling the playing field for employees, to putting employers in a position of even greater power.

DOJ Looks to Limit Corporate Penalties

The U.S. Justice Department is streamlining prosecutions to avoid doubling-up on corporations accused of misconduct, according to reports.

"Repeated punishment for the same conduct has the potential to undermine the spirit of fair play and the rule of law," said Deputy Attorney General Rod Rosenstein.

If only individuals -- straddling charges from multiple agencies -- could get the same break. That would be news, too.

Broadcom Wants to Buy Qualcomm

Will Qualcomm accept Broadcom's offer to buy the mobile-phone chipmaker?

According to reports, the offer was a 28 percent premium over the stock's closing price. In a transaction valued at $130 billion, it seems like an offer Qualcomm can't refuse.

Of course, things change everyday -- especially in technology. But if the deal goes through, it would be the largest acquisition in tech history.

Legal Work Is an Inside Job Now

If you felt the ground shifting, it was not an earthquake. That was the playing field changing law practice.

According to a new report, more than half of the legal work at companies is being done in house. That's bad news for outside counsel.

On the other hand, that is good news for general counsel, legal operators, and others who are rolling with the changes.

When it comes to advertising, the celebrity endorsement can be one of the riskiest yet most profitable spends a private company makes on marketing. If your consumer base is known to follow a particular celebrity, or group of celebrities, getting an endorsement could result in a serious windfall (think Shark Tank effect).

Though the potential for profit is real when your company's product or service is put in front of a celebrity's fan base, the legal risks are also very real, and the potential to flop thanks to a "promoted" tag, or lots of other reasons, are not insignificant. That's not even considering the fact that celebrities are notoriously unreliable, and their drama could result in your company's reputation tanking.

AT&T/Time Warner Deal Could Still Face Suit From Trump Administration

In some things, we have no choice -- like the weather, aging, and cable companies.

At least, that is true most of the time. You can always move to a warmer climate.

When it comes to AT&T's proposed purchase of Time Warner, Inc., however, it looks like same old, same old. The government may sue to block it, but chances are high that AT&T will ultimately reign.

Are You Known as the In-House Jerk?

If someone said you were a born lawyer, it probably was not a compliment.

The general perception of lawyers is not that great. We're arrogant, aggressive jerks.

At least that's what he said. Attorney Stephen Williams said it's something that every in-house counsel has to strive to avoid. After all, lawyers affect culture.

How Is Airbnb Tied to the Manafort Scandal?

The big story this week is that Manafort, the president's former campaign manager, has been indicted through Mueller's investigation.

The money-laundering allegations against Manafort have also entangled his daughter, Jessica Manafort, and the family's Airbnb businesses. Only in Washington. And Russia. And now New York. How does Airbnb have anything to do with this?