CCBJ July-August 2020

Corporate Counsel Business Journal July  August 2020

VOLUME 28, NUMBER 4

Trusting Your Team and Taking Responsibility SPRINKLR GC DAN HALEY REFLECTS ON WHAT HE’S LEARNED ABOUT LEADERSHIP OVER THE YEARS INSIDE Is Now the Time for a Great Unbundling?

Key Decisions and Strategies in Pursuit of Insurance for Losses from COVID-19 Private Investment in U.S. Public Equity: Overview of Considerations, Mechanics and Strategies Innovative Techniques for Reducing Legal Spend in the Post-COVID-19 World

AT THE HEART OF BUSINESS® Uncommon value for clients who shape our everyday lives.

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JULY • AUGUST 2020

In This Issue

JULY  AUGUST 2020 VOLUME 28, NUMBER 4

Corporate Counsel Business Journal LAW BUSINESS MEDIA

Kristin Calve

CO-FOUNDER AND PUBLISHER

Kimberly Fine

AT THE TABLE . . . . . . . . . . . . . . . . . . . 2 Trusting Your Team While Taking Responsibility

Dan Haley

MANAGING DIRECTOR PROGRAMMING

FRONT . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rachel Dwyer

PULSE . . . . . . . . . . . . . . . . . . . . . . . . .13

Neil Signore

13 Key Decisions and Strategies in Pursuit of Insurance for Losses from COVID-19

GRAPHIC DESIGNER

SVP & MANAGING DIRECTOR OF EVENTS

Lainie Geary

DIRECTOR OF BUSINESS DEVELOPMENT

Amy Lemel

DIRECTOR OF BUSINESS DEVELOPMENT

Jennifer Coniglio VP FOR EVENTS & SPECIAL PROJECTS

Matthew Tortora

SENIOR DATABASE MANAGER

Rob Williams WRITER

Taylor Highbloom SOCIAL MEDIA

Omeda

FULFILLMENT MANAGEMENT

39 Dispute Resolution in the Wake of Lifting COVID-19 Restrictions 41 Antitrust Regulation in the Era of Big Data and COVID-19 Andrea Levine

45 Maritime Matters are at the Forefront of Alternative Dispute Resolution Judge John G. Ingram

Finley Harckham

16 In Some Court Cases, Tech Solutions Aren’t Enough Kandice Hull

20 Seeing From Both Sides of the Table Michael Asaro, Charles Connolly

25 Toward a More Expansive View of Mentoring Yesim Richardson, Lisa Claussen-Adams

Pat Hanelt

OFFICE ADMINISTRATOR

Brian Gregg

Eric P. Tuchmann

Dylan Shepard

EDITORIAL ASSISTANT

34 Negotiate Your Next Tech Contract Like a Pro

IDEAS . . . . . . . . . . . . . . . . . . . . . . . . . 29

OPS . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 51 Future-Proofing the Legal Field Ken Crutchfield

55 Innovative Techniques for Reducing Legal Spend in the Post-COVID-19 World Rob Williams

57 Getting Personal with Legal Innovation Brendan Miller

29 Assessing China’s M&A Activity in 2020 and Beyond Allen Shyu

33 Private Investment in U.S. Public Equity: Overview of Considerations, Mechanics and Strategies Neil Barlow

POSTMASTER: Please send address changes to Corporate Counsel Business Journal, P.O. Box 3248, Northbrook, IL 60062; by emailing ccbj@omeda.com; by visiting our online portal at ccbjournal. omeda.com/ccbj/r-login.do; or by calling 847-559-7559.

CORPORATE COUNSEL BUSINESS JOURNAL (ISSN: 1073-3000), March 2020, volume 28, number 2. Published bimonthly by Law Business Media, 104 Old Kings Hwy N, Darien, CT 06820.

Subscription price: $110 a year. Periodical postage paid at Darien, CT, and additional mailing offices.

The material in this publication contains general information, is not intended to provide legal advice and should not be relied on to govern action in particular circumstances. The sources of material contained in this publication are responsible for such material, and any views or opinions expressed are solely those of the source.

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Dan Haley At the Table

Trusting Your Team While Taking Responsibility  Dan Haley, general counsel and corporate secretary at Sprinklr, discusses the fortuitous nature of his career path, what he’s learned about leadership over the years, and why he thinks lawyers need to loosen up – even if only a little bit.

CCBJ: Sprinklr is a New York City–based software company that develops and provides enterprise software for customer experience management.

What led you to your current position as general counsel there?

Dan Haley: To be honest, it was a combination of a lack of direction, total career flexibility and good luck.

I have always been someone who doesn’t totally make a career plan, and I don’t give too much thought to the middle distance or the long-term. I’ve always been very open to new opportunities, and after spending the early part of my career in politics, I went to law school. I’d always had it in my head growing up that law school was something I’d like to do, and I was terrible at math, so that ruled out a whole bunch of other career paths. I did the law firm thing for five years, and then I got a very unexpected opportunity to join Governor Romney’s administration in Massachusetts, in the legal department. I made a bunch of great contacts, and that helped lay out the course of the rest of my career so far.

Those contacts led directly to me meeting some folks at Athenahealth, where I was very lucky to move from a government affairs role to general counsel in relatively short order. I had a wonderful career at Athenahealth, ultimately ending up as a chief legal and administrative officer. When the company flipped from public to private last year, it more or less turned over its entire leadership team, and I departed along 2

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with a number of my colleagues. I had the flexibility to be very picky about where I landed next. A contact introduced me to Sprinklr, and the company and its leadership really impressed me, so here I am.

Tell us about your own leadership style and who has influenced it.

I would that say I am relatively easygoing – and very team oriented. My approach is to hire talented people and then let them do their jobs. I believe very strongly that the way to succeed is to find the smartest, most talented people you possibly can, then let them make you and the entire team look good by staying out of their way – giving them the support necessary to do

NETWORK The participants in the CCBJ Network demonstrate, through their many contributions, their unwavering commitment to the advancement and success of corporate law departments. The engagement and support of these “partners of corporate counsel” assure we continue to develop and distribute the news and information this unique and sophisticated audience relies on to meet the evolving legal and business needs of their organizations.

Strategic Partners

“We make sure that the voice and face we project to the world is joyful and happy and passionate about our work.”

— DAN HALEY

their jobs, but not being a micromanager. That said, as a leader, I also think it’s very important to always be individually accountable: to take blame individually, but share credit across the team.

A combination of folks have influenced me, starting with my dad growing up. He ran a small company in my hometown of Holliston, Mass. Most executives like to think that they treat employees like family, but my dad’s company really was like a family. The people who worked for him – I really felt like they were an important part of my life growing up. I learned the human side of business from him.

I sometimes joke that I feel a bit like Forrest Gump, in the sense that I’ve been incredibly lucky to find myself in proximity to extraordinary leaders in the course of my career. I’ve already mentioned that I got to work for Governor Romney as his deputy legal counsel and ultimately deputy chief of staff. More recently, at Athena, I had the opportunity to work very closely with Jeff Immelt, the former CEO of General Electric, who was our lead outside director. Here at Sprinklr, our founder and CEO, Ragy Thomas, is a true visionary. He’s one of those tech entrepreneurs who can see around corners, into the future, and formulate a vision to build something truly extraordinary.

And our lead outside director is John Chambers, the iconic former CEO of Cisco.

These are all some of the most successful businesspeople in the world, and I have had the good fortune

Akin Gump Strauss Hauer & Feld LLP Barnes & Thornburg Clifford Chance Jones Day McGuireWoods LLP McNees Wallace & Nurick LLC National Association of Corporate Directors (NACD) Sills Cummis & Gross P.C. Weil, Gotshal & Manges LLP

Advisors American Arbitration Association Exterro FRONTEO FTI Consulting iDiscovery Solutions JAMS LexisNexis CounselLink NAM (National Arbitration and Mediation) OpenText™ Discovery Wolters Kluwer’s ELM Solutions Zapproved

Contributors AlixPartners LLP Fish & Richardson Anderson Kill IPro Tech AST Legal Suite Septeo Group Brainspace QDiscovery Burns & Levinson Stradling Yocca ContractWorks Carlson & Rauth Cornerstone Research Please help us improve and expand our services to corporate counsel by sharing your ideas with our publisher, Kristin Calve, at 844-889-8822 or kcalve@ccbjournal.com.

CORPORATE COUNSEL BUSINESS JOURNAL

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to work in close proximity to them. It’s helped me learn a ton about executive decision-making, as well as about listening to different perspectives when making those decisions – and being accountable for the results.

What qualities do you look for when hiring new people for your team?

I look for intelligence, obviously – subject-matter expertise – but also a sense of humor. I can’t work with people who take themselves too seriously.

Although aspects of the law are very serious, one of the things that my current CEO, Ragy, said to me early on was that Sprinklr is a company that exists to make our clients happy and to help them make their customers happier. He said, “I want you to make sure your team understands that your job representing us in the legal function is to make everyone you interact with happier.” I kind of laughed and said, “Well, that’s kind of tough to do sometimes as the lawyer.”

But he gave me an interesting example that really opened my eyes.

He asked me to think about the preflight announcement that you have to listen to every time you get on an airplane. That’s very serious information; it’s very dry and boring, and it used to be that flight attendants would get up and just drone through it. But then some years ago, Virgin Atlantic airline got the idea of making it funny, and they started doing skits and eventually videos with professional actors. Before you knew it, airlines all over the world were basically competing on who had the funniest preflight announcement, and that had the effect of making that information, which is 4

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“The way to succeed is to find the smartest, most talented people, then let them make you look good by staying out of their way.”

— DAN HALEY

a statutory requirement, more digestible. It made it so that people actually wanted to listen to it. They looked up and paid attention, instead of ignoring it.

So they made the conveyance of that message more effective by making it fun, by making it something that makes people smile. That struck me as a great way to think about the way lawyers approach their work, and now our team talks a lot about how we can do that: In contract negotiations, and even in adversarial situations, we make sure that the voice and face we project to the world is joyful and happy and passionate about our work.

What would you say is the best career advice you’ve ever received?

That’s easy, it’s the same advice that I now find myself giving over and over. When I started my first job after college, I was a staffer at the 1996 Republican National Convention in San Diego, and I found myself getting very frustrated with various things that were going on in the workplace, like why am I getting paid less than the person over there who does half as much as I do – that kind of thing. My boss sat me down and said, “Dan, worry about yourself.” What he meant by that was not “don’t worry about the team.” He meant don’t get distracted by other people’s situations. Worry about yourself instead, work hard and do a really

good job, and good things will come. Don’t worry about the people around you and what they may or may not be getting. You don’t know the details about what they’re dealing with or how people are assessing them. You don’t know what they’re actually contributing. All you can control is yourself – your work and how people perceive you.

I took that to heart because I really trusted him. So I buckled down, I worked hard, and a couple of months later I got a big raise and a bunch of recognition that was totally unexpected. A big part of my job, and one of the things I love about being an executive and a general counsel, is managing people, particularly managing younger attorneys and legal professionals.

That same kind of situation comes up fairly frequently, where someone is frustrated about something, some inequity that they perceive in the workplace. And I find myself recounting that conversation, which happened more than two decades ago now, and giving them the same message. So that’s easily the best career advice I’ve ever gotten.

What are some changes you’re hoping to see within the profession?

I think that lawyers, maybe by our nature – by the nature of the people the profession attracts – we tend to take ourselves rather seriously, and I think that is often to our detriment. There’s a reason people tell lawyer jokes. There’s a reason people laugh and say, “Who invited the lawyer?” when a lawyer walks into the room. I think that the more that lawyers, especially in corporate contexts, are able to view ourselves as strategic business owners rather than these rigid regulators or control functions, the better we are able to serve our stakeholders in our businesses. I was just talking about this the other day in the context of a negotiation. I wish that, as lawyers and as negotiators, we could find a way to start closer to the end point in negotiations, rather than always starting far apart and ending up, more times than not, where everyone knew we’d end up anyway, after a month of time, effort, angst and stress.  CORPORATE COUNSEL BUSINESS JOURNAL

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Front

Is Now the Time for the Great Unbundling?

We’ve mentioned Prof. William Henderson’s insightful

can be unbundled and whether that would trigger a wave

“Legal Evolution” blog before. This post (#172) from Dan

of disruption/innovation that always seems to be on the

Currell, former managing director of Advance Law and now

way but never quite arrives. Check out Currell’s chart

a senior advisor with the Office of Finance and Operations

and commentary: “Reading left to right,” he says, “these

with the U.S. Department of Education, shows why it’s such a valuable blog. “Will economically stressed clients turn at last to an alternative legal services industry hardened by 20 years of survival under harsh conditions?” Currell asks.

“If they do, it could finally usher in The Great Unbundling.”

The question on the table is whether certain legal activities

activities have essentially nothing in common except the underlying matter. What holds them together is the firm’s ability to insist on a tightly bundled offering.” His prediction: “[T]he unbundling may come but look for an extended period of erosion lasting through 2025.”

Can the following activities be unbundled?

TYPE OF LEGAL MATTER

ACTIVITY l

ACTIVITY ll

ACTIVITY lll

Litigation

document-based fact analysis

statutory and case-based legal research

persuasive brief-writing

Investigation

vendor (e.g., e-discovery) management

investigative interviews

presenting results to the board

Transaction

contract drafting

complex negotiations

strategic counseling

Trademark

global trademark filings and searches

passive-aggressive letter writing

motion practice

Privacy

data privacy technology expertise

data privacy legal expertise

data privacy counseling

CORPORATE COUNSEL BUSINESS JOURNAL

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The More Things Change . . .

Briefly Akin Gump advises Royalty Pharma in $2.5 billion Nasdaq IPO. Katherine Goldstein joins Akin Gump as a partner in New York.

Akin Gump joins list of firms to launch Law Firm Antiracism Alliance.

“Here we are again.” Uh-oh. Not exactly a promising start to Altman Weil’s annual “Law Firms in Transition” survey, which, as always, has plenty to say to corporate law departments. As fate would have it, the survey debuted in 2008 at a time when the nation was reeling from a deep recession and the legal industry was staring down an environment of “slow demand growth, extreme price sensitivity and intense competition.” It was a fork in the road for law firms, and many took the road most traveled and did . . . next to nothing. “This year’s survey highlights the persistent disconnect between what firm leaders agree they should have done during the intervening years and what they actually accomplished,” Altman says. So now, facing another fork in the road – pandemic-induced economic shellshock – “will law firms respond by rethinking their methods and structures to align with clients’ expectations?”

Altman asks. “History says that most will not.” The accompanying chart, one of many in the report, shows how persistent the disconnect is between what firm leaders know must happen and how unlikely it is that it will happen. “Here we are again.” Indeed.

Sheldon Eisenberger and Bryce Jones join Anderson Kill’s Litigation Practice as shareholders.

10 YEARS IN: Actual Change in Law Firms

Kurt Rhode joins Barnes & Thornburg as a partner in Chicago.

Q: In your opinion, over the last 10 years, how much have law firms actually changed compared to the amount of change that was needed?

0 = No change/woefully inadequate

Barnes & Thornburg expands with new Manhattan office.

10 = Full adaptation as needed

28.1%

Clifford Chance advises on Fidelis Insurance Holdings Limited’s $300 million notes offering.

21.9%

16.3%

Clifford Chance advises Chimera on $400 million secured loan.

13.1%

Cornerstone Research reviews new U.S. Vertical Merger Guidelines.

5%

Deloitte launches U.S. Legal Business Services.

Fish & Richardson teams up with former NASA astronauts for virtual space camp.

Kerry J. Held joins FTI as managing director.

FisherBroyles welcomes Gene M. Burd in Washington, D.C.

8

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5.6% 3.8%

3.8%

.6%

.6% 0

1

2

3

LOW (75.7%)

4

5

6

7

8

MEDIUM (22.5%)

Few firms have met the challenge of adapting as needed to the challenges being mandated by competitive forces.

9

1.3%

10

HIGH (1.9%)

Future Ready or Not, Here It Comes Wolters Kluwer’s “Future Ready Lawyer,” an independent survey conducted pre-COVID (January 2020), assesses the “future readiness and resilience” of law departments and law firms. The survey reveals that the top priorities of law departments are: legal cost reduction/control; improvement of legal operations and project management; and delivery of strategic value to their companies. See the accompanying chart for the changes legal departments expect in the next three years, including: greater use of tech to improve productivity (82%); more collaboration and transparency between inside and outside counsel (80%); and increased emphasis on innovation (76%). “Given the new financial pressures on businesses created by the crisis,” the report concludes, “there will be a brighter spotlight on legal professionals’ performance moving ahead. Corporate counsel and law firms alike will need to increase productivity and efficiency, while also ensuring they deliver the highest value and ROI. Those demands, which gained momentum following the global financial crisis of 2008, now need to be met with greater urgency.”

Expected Changes in Legal Departments

Karen Briggs joins FTI as senior managing director and head of forensic and litigation consulting for the Europe, Middle East and Africa region. iDiscovery Solutions announces membership of Brainspace Global Partner.

Ipro Tech, LLC announces the acquisition of NetGovern.

JAMS supports National Association for Community Mediation (NAFCM) with grant to provide nationwide access to virtual mediation.

Nate Brooks joins JAMS as senior vice president and CFO.

82%

80%

Greater use of technology to improve productivity

FTI and ForMotiv announce partnership.

Greater collaboration & transparency between firms & clients

76%

72%

71%

Increased emphasis on innovation

Greater use of alternative fee arrangements

Greater insourcing of legal work

69%

69%

68%

Greater use of contract staff

Greater use of third-party or outsourced resources

Greater use of alternative service providers

67%

59%

Greater use of non-legal staff to perform work

More self-service by clients

LexisNexis CounselLink releases their 2020 Enterprise Legal Management Trends Report.

LexisNexis launches Lexis Product Liability Navigator.

Simon Hems joins McGuireWoods in London as partner.

McGuireWoods’ Kristen Calleja to join Virginia Attorney General’s office.

Mason Mote joins McGuireWoods’ Global Real Estate Practice as partner in Houston.

McNees joins Law Firm Antiracism Alliance.

Citigroup and Bank of America join Morgan Stanley in disclosing GHG emissions from loans and investments.

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Wolters Kluwer launches TSoftPlus Paycheck Protection Program Forgiveness Module.

McNees announces attorney Denise Elliott’s election to the executive committee for the board of directors of Girls on the Run Lancaster/Lebanon.

Morae Global expands strategic advisory team with acquisition of Janders Dean.

Richard J. Fodera Esq. joins NAM in New York.

OpenText™ releases updated Webroot® DNS Protection filtering service.

Rapid Technology selects OpenText™ EMR-Link™ as its solution for electronic medical record integration and computerized order entry.

Thomson Reuters integrates Legal Tracker with HighQ. Daniel R.B. Nicholas joins Weil as tax partner in Washington, D.C. Wolters Kluwer launches alerts feature within its digital Tax Reporters Plus Suite on Cheetah™ for tax attorneys.

Jackson Lewis expands with the addition of Michael D. Thomas Delta Capital Partners welcomes a new board of advisors.

Morae Global and The Stephen James Partnership team up to provide e-discovery and document review solutions.

Submit your announcements to editor@ccbjournal.com

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Required Reading Too busy to read it all? Try these books, blogs, webcasts, websites and other info resources curated by CCBJ especially for corporate counsel and legal ops professionals.

WEBSITE: Harvard Law School Forum on Corporate Governance Co-sponsored by the Harvard Law School Program on Corporate Governance, the Program on Institutional Investors, and the Program on Law and Finance, the HLS Forum on Corporate Governance is the leading online resource on corporate governance.

Founded in 2006 by Prof. Lucian Bebchuk, the Forum’s posts are distributed daily through its website, Twitter, LinkedIn, Facebook and to 5,000 readers who subscribe to its daily email announcement of new posts. Since its launch, the Forum has published more than 6,000 posts by 5,000 contributors, including prominent academics, public officials, executives, legal and financial advisors, institutional investors, and other market participants. Reflecting its quality and impact, the Forum’s posts have been cited in more than 800 law review articles and regulatory materials. Leo Strine, the legendary former chief justice of the Delaware Supreme Court who is of counsel with Wachtell, said this about the Forum in the Harvard Law Bulletin: “[I]t is amazing to see the [Forum] become required reading among the intelligentsia, such as it is, of corporate governance.”

BLOG: DennisKennedy.Blog Dennis Kennedy’s blog – DennisKennedy.Blog – focuses on legal technology, technology law and beyond. A well-known legal tech and innovation advisor, law professor, infotech lawyer, speaker, author, and podcaster, Kennedy is well-equipped for the job.

Dennis, who retired as Vice President, Senior Counsel for Mastercard’s Digital Payments and Labs group in 2017, teaches a course on Entrepreneurial Lawyering at Michigan State University. In a recent post on his blog, “The Biggest Disconnect in the Legal Industry,” Dennis discusses the hard-to-bridge innovation gap between clients and their outside counsel, who tend to think clients are waiting for them to swoop in and save the day.

“Instead,” he writes, “clients want to be the heroes of their own innovation stories.

They want a guide with a plan to help them win the prize while avoiding disaster.

Think Yoda, not Superman.” Check out DennisKennedy.Blog. You won’t regret it.

Contributors Thanks to the law firms, technology companies, alternative legal service providers, management consultants and other supporters of corporate law departments who share their insights and expertise through the CCBJ network. Your parti­cipation is appreciated.

Michael Asaro is a partner with Akin Gump. He represents companies and individuals in highstakes, white collar regulatory investigations and litigation.

Asaro served for five years as a federal prosecutor and four years as an enforcement attorney at the Securities and Exchange Commission (SEC). Pg. 20

Neil Barlow is a legal consultant with Clifford Chance. He specializes in cross-border M&A, with a particular focus on private equity transactions. Barlow advises international and domestic private equity houses, financial sponsors and corporates on a wide range of matters. Pg. 33

Lisa Claussen-Adams is a senior talent advisor with Cornerstone Research. Ms. Claussen-Adams advises the talent strategy for the firm across the career life cycle, including recruiting, training, professional development, performance, and compensation. Pg. 25

Charles Connolly is a partner with Akin Gump. He represents companies and individuals in government and corporate investigations. Connolly also defends against allegations of violations of federal and state regulations related to financial crimes. Pg. 20

Ken Crutchfield is live president and general manager of Wolters Kluwer Legal & Regulatory U.S. He leads the Legal Markets Group and is responsible for setting the vision and strategic approach with a focus on developing leading digital products. His Group aims to provide legal professionals across a wide range of market with expert content and analysis and leading workflow solutions. Pg. 51

Brian Gregg is a member with McNees Wallace & Nurick. He chairs the McNees Food & Beverage Group and is the co-chair of the Intellectual Property Group. Gregg’s focus is on trademark and copyright protection, software and technology service contracts, franchising and a number of other related issues. Pg. 34

Dan Haley is first general counsel and corporate secretary with Sprinklr. In this role, Haley brings deep government and private sector experience to overseeing Sprinklr’s global legal functions. Previously, he worked for athenahealth, where he served as General Counsel and later Chief Legal and Administrative Officer. Pg. 2

Finley T. Harckham is a senior litigation shareholder in the New York office of Anderson Kill. He represents corporate policyholders in insurance coverage matters and has successfully litigated, arbitrated and settled hundreds of complex coverage claims. His areas of focus include property loss, business interruption, director and officer liability, construction, professional liability, cyber and general liability claims. Pg. 13

Kandice Hull is chair of the litigation group and leads the eminent domain practice with McNees Wallace & Nurick. Her practice focuses on representing clients in complex commercial litigation in business disputes. Hull has particular experience in real property litigation. Pg. 16

The Honorable John G. Ingram (Ret.) is a member of NAM’S (National Arbitration and Mediation) panel of neutrals and is available to arbitrate and mediate maritime matters throughout the United States. He is considered to be one of the nation’s foremost authorities in admiralty law and has a broad range of knowledge in a wide variety of maritime matter. Pg. 45

Andrea Levine is a managing director within the technology practice of FTI Consulting and is based in New York. Ms. Levine advises clients on the use of advanced analytics technology and methodologies to expedite fact-finding and case development for investigations and complex discovery matters. Pg. 41

Brendan Miller is the legal operations advisor with Barnes & Thornburg. In this position he leads their practice innovation team and works closely with the firm’s attorneys and other professionals, matter teams and client professionals to achieve greater value and excellence in its partnerships. Pg. 57

Yesim Richardson is the president of Cornerstone Research. She specializes in applying economic and financial analysis to complex litigation involving securities, financial institutions, valuation, and real estate.

Dr. Richardson has worked with clients in a variety of financial sectors as well as other industries, such as energy, telecommunications, high technology, and pharmaceuticals.

Pg. 25

Allen Shyu is a partner at Akin Gump’s Beijing office. Over the course of the last 20 years, he has focused on U.S. securities and equity capital markets, including IPOs, while also expanding his practice to include cross-border M&A deals, supporting Chinese enterprises in their acquisition of businesses in the U.S. and Europe. Pg. 29

Eric P. Tuchmann is general counsel and corporate secretary of the American Arbitration Association. As chief legal officer, Mr. Tuchmann is responsible for managing the legal affairs of the organization including litigation related matters involving the Association and its arbitrators, and drafting amicus curiae briefs submitted on behalf of the Association. Pg. 39

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JULY • AUGUST 2020

Pulse Key Decisions and Strategies in Pursuit of Insurance for Losses from COVID-19  Finley Harckham, senior litigation shareholder with Anderson Kill, discusses tips on how policyholders can successfully bring claims to their resolutions.

Many businesses and other entities have submitted insurance claims for business interruptions and extra expenses stemming from the disruption of their businesses by COVID-19. Whether these claims stem from the presence of the virus on the policyholder’s own property or the property of customers or suppliers, or result from government orders impairing access to insured locations or other properties, the vast majority of policyholders have received either flat-out denials of coverage or requests for very specific and sometimes voluminous information. Those demands come even though in all likelihood the insurance company intends to deny coverage based on the simple argument that COVID-19 is not property damage, or that viruses are excluded under the policy in question. The lengthy information

requests and the effort required to comply with them likely serve no purpose other than to allow the insurance company to assert that it investigated the claim.

Either situation, a blanket denial or an information request, can leave the policyholder wondering how, if at all, to pursue the claim. The following tips can help policyholders bring a claim to resolution as quickly as possible and with the greatest chance of success.

1. Obtain an Expert Evaluation of Your Coverage Pursuing coverage for COVID-19-related losses will likely be time-consuming and expensive. It is therefore fundamentally important for policyholders to obtain an expert evaluation of their coverage and the likelihood of prevailing.

Many policyholders have so far avoided this step by submitting very simple and general statements to their insurance companies that they have suffered loss from COVID-19. That can be a prudent first step, particularly CORPORATE COUNSEL BUSINESS JOURNAL

13

because the scope and extent of most losses is not yet known. The response to such a notice might be a denial of coverage or, perhaps more likely, a request for information supporting the claim. In either event, the policyholder is not left with a clear idea of whether the claim is worth pursuing.

the vast majority of claims. Nonetheless, if the insurance company has not denied coverage and is at least going through the motions of investigating a claim, cooperating with the investigation is generally a condition to coverage.

So, policyholders should provide all requested information that bears upon their claim.

There is no single correct answer for every claim.

Numerous policy forms, some with relevant manuscript provisions, have been issued, providing different coverages and containing different potentially relevant exclusions.

No one can tell most policyholders with confidence they are entitled to coverage for COVID losses, because the courts will have to decide a threshold issue of whether COVID-19 constitutes, or causes, property damage needed to trigger business interruption and extra expense coverage under most property policies.

While the insurance company is entitled to investigate the claim, the policyholder is entitled to a reasonably prompt determination of coverage. Policyholders should feel free to ask insurance companies the pointed questions that could quickly bring the claim investigation to a head. For example, “Do you concede that there are circumstances under which a COVID-19-related claim could be covered under my policy? If so, what are those circumstances?”

However, an experienced coverage counsel, broker or insurance advisor can help identify potentially applicable insurance grants in some policies, including:

3. Do Not Accept Reservations of Rights That Do Not Clearly Articulate the Possible Grounds for Coverage

• Damage to the policyholder’s own property and resulting business income loss.

• Extended business income loss, for loss from government orders.

• Loss from supply chain disruption or property damage to “attraction” or “leader” properties.

Counsel can also identify potential pitfalls – or advantageous policy provisions – that may be dispositive.

2. Cooperate with Insurance Company Requests for Information, but Demand Prompt Coverage Determinations Responding to detailed and seemingly irrelevant requests for information may seem like a waste of time, particularly since the insurance industry has signaled it will deny 14

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Insurance companies often issue purported reservations of rights that provide no clear indication of the basis for denying coverage.

These letters briefly recite the insurance company’s understanding of the facts relevant to the claim and draw the policyholder’s attention to various policy provisions, quoted one after another without any context or explanation of how they supposedly support a defense to coverage.

Finley T. Harckham is a senior litigation shareholder in the New York office of Anderson Kill. He represents corporate policyholders in insurance coverage matters and has successfully litigated, arbitrated and settled hundreds of complex coverage claims. His areas of focus include property loss, business interruption, directors and officers liability, construction, professional liability, cyber and general liability claims. Reach him at fharckham@andersonkill.com.

Then, the letters state that “for the foregoing reasons” – when in fact no reasons have been given – the insurance company reserves all of its rights to deny coverage.

If the insurance company reserves its rights, the policyholder should demand to know on what grounds. In many jurisdictions, insurance companies are required to state the specific grounds for reserving their rights, and a failure to do so may result in a waiver of coverage defenses.

Moreover, fully understanding the insurance company’s position is important for evaluating coverage and whether the claim should be pursued.

4. If the Claim Is Denied but May Be Worth Pursuing, the Policyholder Must Decide Where and When to Commence Legal Action If a claim is denied, the policyholder has a certain amount of time to commence a coverage action or arbitration, based either on state statutes of limitations or contractual limitations. Also, many policies require sworn proofs of loss submitted within a specified period of time. Fortunately, insurance companies will typically agree to toll statutes of limitation and the deadlines for sworn proofs of loss. Such agreements should be obtained in writing because failure to comply with time limitations can result in forfeiture of coverage.

Some policyholders will have no choice but to pursue their claims immediately and aggressively in court in order to recover funds necessary for their survival. Others might decide to put off their own suits while other policyholders incur the expense of obtaining court rulings on the key issues – e.g., whether the presence of COVID-19 is sufficient to satisfy the requirement of property damage needed to trigger coverage. Waiting may be a sound strategy, but policyholders with the luxury of time should still bear in mind the potential downsides of sitting on the sidelines while others make relevant laws.

First, insurance policies are interpreted under state law, which means that each state will interpret key policy provisions, even if they are standard in policies used throughout the country. It is not uncommon for multiple trial and appellate courts within a state to reach different conclusions on identical policy interpretation issues. So it may take several years before an issue is settled under the law of the state applicable to a particular insurance policy.

Second, some policies present better opportunities than others for policyholders to prevail on the key threshold coverage issues. For example, policies that provide some coverage for virus or communicable disease, or only partially exclude such causes of loss, give policyholders arguments not available under other policies to the effect that COVID-19 is property damage, because the policy itself acknowledges that viruses are not excluded in all instances.

Policyholders with better than typical policy language would be well served to try to move their claims quickly.

Third, most claims present unique facts that will not be resolved in other policyholders’ claims, such as whether the requirements of order of civil authority coverage have been met, including whether the virus was present within a specified distance of insured premises; and whether the order was entered because of the actual presence of the disease or simply as a prophylactic measure. These will be important issues for many policyholders, because the massive disruption of the economy is largely the result of government orders prohibiting or limiting access to premises.

Conclusion It is in the interests of most policyholders to take a proactive role in evaluating and pursuing their claims – and not let the insurance company dictate the claim adjustment process and timing. 

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In Some Court Cases, Tech Solutions Aren’t Enough

Kandice Hull, chair of the Litigation Group with McNees Wallace & Nurick, discusses how the criminal and civil court systems are coping with the “new normal” in the era of COVID-19 – and how she sees things playing out in the future.

CCBJ: While most of our readers practiced at traditional law firms before moving in-house, they were not necessarily litigators or in practices that required a high level of direct interaction with the judiciary. Could you provide us with a brief overview of what that type of practice looked like pre-COVID-19, and give us some insights into how the judiciary operates?

Kandice Hull: The litigation practice has been affected, I would say, in three ways. Traditionally, you had interaction with the clients, and that has been hampered, certainly.

Most cases, you would go out and meet with the client at their business to learn about their operations and what the particulars of the case were. Now, that may not be feasible or welcome. Client interactions in terms of gathering documents and preparing the case together have been impacted.

Under typical circumstances, there would be quite a bit of interaction with opposing counsel. You would have in-person depositions and things like that. And then third there were the court appearances. For a piece of business litigation, before you got to the trial, the court appearances could be relatively frequent, with arguments on motions as well as status conferences. Some federal courts required initial case management conferences. And those have all been placed on hold, or there’s been some alternative technology employed. Prior to the pandemic, at least twice a week, I’d be out of my office at a meeting somewhere, or at a deposition or mediation or an actual court appearance.

It went from where you were somewhere else about 40 percent of the time to always being in your home office, or only occasionally being able to access your business office.

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How would you say that law firms are adjusting, and what does pretrial discovery look like?

When the pandemic intensified in March and there were these shutdowns, I think initially people with litigation cases thought, “We can ride this out, if this is a two- to fourweek delay” – which at the time is all some people thought it was going to be – “we’ll just postpone everything and we’ll pick it back up again in 30 days.” There was a lot of resistance at first. Once it became clear that that wasn’t going to happen, people started looking for other solutions.

The rise of the videoconference has gotten a lot of attention, and certainly it’s been prevalent in the litigation world. It’s the way to interact with your clients, and in some cases with opposing counsel as well. With respect to pretrial discovery, the big issue there is depositions, where you normally met in person. The court reporting services that provide that type of service to larger law firms have really been on the ball in terms of providing options to the firm – just saying, “Hey, you can do this. We’re still up and operational. Go ahead with your deposition.” Once it became clear that waiting it out wasn’t going to work, people started to try various videoconferencing solutions and found out that they were effective in a lot of cases. There are still some concerns with the video deposition, including security issues and evaluating witness demeanor, but people are more and more willing to give it a try. People are experimenting with which kind of technology works best for them and which one they feel most comfortable with.

What are some of the adjustments and new technologies that we’re seeing implemented to keep courthouses safe for employees, lawyers, litigants and others who may have traditionally had to appear in court in person?

First, there are what I would call the non-technological adjustments. The courthouses are screening people, just as most businesses are, before they come in. But they’re

also changing their process for how they handle large court appearances. In a civil practice, in the past, you might have had a motions court provide a list of 10 or 20 motions to be heard in a day, and everyone would show up at 9 a.m. and wait until their motion was called. I’m not sure that practice is coming back anytime soon. The courts are looking to end those cattle call–type proceedings by giving everyone a specific time to show up instead – if you’re showing up at all, rather than doing it telephonically or by videoconference.

Criminal cases have been heavily impacted. Courts would often have criminal court days where many people would be in the courthouse at one time, but now they’ve started putting different people on different floors of the courthouse, so that they can be distanced and wait in a safe space until their case is called. They’re scheduling fewer cases for any one day, and scheduling more days with fewer

people. It’s a burden on the judiciary, having to operate in that way, doing all of those things to physically keep people apart when they have to show up.

In terms of technology, a lot of arguments and conferences are being handled by phone whenever possible. Some courts have set up videoconferencing. Some have not. But where it can be done by phone, where it’s a motion or argument by the lawyers, as opposed to something where the clients have to appear, it’s likely that the court is going to look to implement technology, whether it’s something as basic as a phone call or something more like a videoconference.

How are people on all sides adjusting to the new use of technology? Are you seeing any problems with people not having adequate access to technology or the internet?

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In most cases, I don’t think that jury trials have resumed.

That is something that everyone is still trying to figure out, much like what it’s going to look like when children return to school in the fall, if they do. We need to figure out how to keep people distant and safe and still allow this to happen.

There is talk of plexiglass dividers between the jurors, or keeping seats open between them in the jury box. That may work in some courtrooms, where there’s space to do that.

Some courtrooms are smaller than that, which is certainly a problem. And then there’s the question of what to do when a jury has to deliberate, and they have to be locked in a room, essentially, for hours together. That could be a difficult situation to overcome. Because you do wonder, is there the same discussion and free flow of ideas if they implement some technology so that they are not in the same room, and does that impact the kind of results that people think they are going to get from a jury trial?

Bench trials are occurring, particularly in injunctions and those types of emergency matters where a decision cannot wait. As I mentioned, in those cases, the court is mostly employing distancing practices to try to keep people safe – making sure everyone stays as far apart as possible, wearing masks, generally trying to follow the Centers for Disease Control guidelines about how to stay safe. I do think courts

There’s the question of what to do when a jury has to deliberate, locked in a room together for hours. appreciate when technology and the electronic presentation of evidence, rather than paper copies, makes that easier.

You can sit at your counsel table and project the documents onto a screen, rather than walking around and distributing paper to three or four different people.

However, I do think that there is actually a huge problem with the different levels of access to technology. And unfortunately, this pandemic is going to exacerbate what was already a problem in terms of access to justice between people with means and people without means. Our firm has done pro bono work. With some domestic violence victims, for example, you have people who don’t have access to something as basic as a cell phone, so they can’t participate remotely. Then they are forced to either come into the court and risk exposure to the coronavirus or have their case delayed in some way. This has highlighted a problem that already existed. The lawyers in most cases have the technology, but what happens when the clients do not?

That is something that the courts are really going to have to address if they continue to use these platforms, because you don’t want people to have different levels of quality of access to the courts because of their financial means.

How has alternative dispute resolution (ADR) adjusted?

ADR continues to function, and they have implemented remote arbitrations and mediations. They use the technology that allows breakout rooms in videoconferences. I would say that there are pluses and minuses to ADR done in this way. Because of the delays that are being faced in the court system, as well as the uncertainty surrounding what jury trials will look like, and even in some cases, bench trials,

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What’s been least successful? Well, I just mentioned

Unfortunately, this pandemic is going to exacerbate the problem of access to justice between people with means and people without them.

mediation. Also, I don’t think video depositions will replace

more cases are going to be pushed to ADR, where they think they can get some quicker resolution.

Is there anything that we missed that you’d like to add?

The problem, in my opinion, is that, particularly with mediation, it’s not as effective to do it via videoconference as opposed to in person. Part of what compels people to reach an agreement at a mediation is the intensity of the moment, that you’re there, you’ve devoted your day to this issue. You’ve got all of the facts before you, all of the people around you talking about it. That is your focus for that day. If you are doing mediation from home via video breakout, it’s pretty easy to work on some other project simultaneously, or even walk away and wash your dishes or something like that, and you lose that intensity level that exists when you’re there for in-person mediation. But like I said, more people will be trying ADR options regardless, because of the delays in the courtroom.

Which methods of adaptation that we’ve seen during the pandemic do you think have been the most successful and least successful? Do you think any are here to stay?

I think what is here to stay are the telephonic and videoconference oral arguments involving just the attorneys.

Those have gone pretty smoothly. Where there’s not a need to have the client present, not a lot is lost by not being there in person. It saves clients money too, because lawyers often have to travel to the courthouse, wait for their motion to be called, perhaps argue for 30 minutes and then travel back. That could end up being several hours of time. Whereas if you do it via phone or videoconference, it’s much more efficient. So I think that’s here to stay.

in-person depositions when the pandemic passes. I know a lot of litigators feel that they really gain something by looking at the witness face-to-face – that they can sense more about the testimony face to face.

Something that still needs to be addressed with these new technologies is the security aspect. Zoom has been in the news for some of the security problems it faced early on, which they’ve tried to address. But there’s still a question mark with a lot of these new technologies. If you are doing, for example, a deposition in a trade secrets case, and every document that you’re showing to the witness is potentially a trade secret, you want to be very sure that no one else can look at what’s going on in that videoconference and that it remains secure. I’m not sure if everybody has that comfort level just yet. Given all of the issues with cybersecurity and law firms, that is something that is going to have to be considered going forward. How do we protect confidential client information that may be stored on these videoconferencing platforms? I don’t see it as something that’s going to make the technology go away, but it’s an issue that people need to look at as we continue to move

Kandice Hull is chair of the litigation group and leads the eminent domain practice with McNees Wallace & Nurick. Her practice focuses on representing clients in complex commercial litigation in business disputes. Hull has particular experience in real property litigation. Reach her at khull@mcneeslaw.com.

forward with it.  CORPORATE COUNSEL BUSINESS JOURNAL

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Seeing From Both Sides of the Table

When clients of Akin’s global white collar and regulatory practice ask what the other side is thinking, former federal prosecutors Michael Asaro and Charles Connolly know the answer.

CCBJ: Please share your backgrounds and information about your respective practices.

Michael Asaro: I started my career at the SEC’s Division of Enforcement. Then I went to the DOJ, first in the Southern and then Eastern District in New York, as a prosecutor primarily focused on white collar matters. I came to Akin Gump about 13 years ago. My practice tends to be SEC, CFTC [Commodity Futures Trading Commission], and DOJ focused. I work closely with our investment funds clients, doing investigation defense and internal investigations, responding to subpoenas, bringing in witnesses for government interviews and testimony, and doing a fair amount of compliance consulting, even when there is no subpoena, to keep our clients from getting sideways with the SEC or other regulators. We have over a dozen partner-level, former government lawyers in different capacities, from the SEC to the DOJ, to the FCA [Financial Conduct Authority] in the UK. Our main clients are banks and hedge funds, and we do a lot of public company board representations, and individual representations of corporate executives as well.

Charles Connolly: Like Mike, I spent almost 11 years at the DOJ, first I spent five years as a prosecutor in the Eastern District of Virginia in the white collar, financial crimes, and public corruption unit. I then worked as a counselor and acting deputy chief of staff for U.S. Attorney General Michael Mukasey before returning to the Eastern District, where I ultimately served as Chief of the financial crimes and public corruption unit. In that role I supervised approximately a dozen AUSAs investigating and prosecuting complex financial crimes.

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I joined Akin Gump in 2013. In my role here, I represent both individuals and companies in criminal and regulatory matters, and conduct internal investigations. My focus is on complex financial frauds and corruption matters. We regularly coordinate and partner on investigations with our international trade group, which has a big focus on sanctions enforcement. In D.C., our group includes a strong Congressional investigations practice, which is composed of former DOJ and Congressional investigators.

How does your experience in public service inform your practice and how you work with government officials?

Connolly: It is critical to being a successful white collar partner in this space. Having spent a decade putting together complex financial crimes, from investigation, to charging, and ultimately for presentation to the jury, I understand the thinking of a prosecutor. Clients often want to know: “What is the other side thinking?” My experience allows me to say, “Here’s how I would have analyzed this.

Here are the steps they are taking. Here are the steps they will likely take next.” Understanding the process and what the prosecutor may be thinking, allows you to communicate that to your client and helps you evaluate strategy.

It also helps when you’re dealing with government officials.

They know that you appreciate what they’re doing and what they’re looking at, and it helps you communicate to them and identify issues that you know they’re thinking about, even if they haven’t articulated it. This allows you to address high-level concerns early on and raise issues you think the prosecutors may be sensitive to. Our prior government experience helps us build credibility with prosecutors, so when we’re making representations, officials take that seriously. That has served us well in a number of investigations over the past few years.

Asaro: Having been in that seat gives you a unique insight as to what is persuasive when you are advocating to the

There’s an art to dealing with the government before you’re in a courtroom, and it’s a very tricky form of advocacy.

– Micheal Asaro

government. Part of what we can do for clients is try to avoid them being charged, or at least come up with a resolution that minimizes the impact if the government does insist on going forward with charges, one that allows the client to move on with their life and business. For me personally, some of the best victories are when we saved individuals from criminal or significant civil charges. Once you’re on trial, even if you win, you lose to some degree.

People don’t get their lives, careers, and reputations back in the same way.

There’s an art to dealing with the government before you’re in a courtroom, and it’s a very tricky form of advocacy, since you are sitting across the table trying to persuade your adversary, who often has dug-in views. To be effective, it is extremely helpful to have been on the other side of the table, sat through many of those presentations, and been in the room with the team afterward and talked about what was persuasive and what wasn’t.

You’re not going to get special favors from former colleagues, nor would we ever ask, but credibility is key. As a group, we’re focused on strongly advocating for our clients but also making sure we maintain the reputation and credibility of our practice with regulators, because that’s to the benefit of all our clients going forward.

What has changed about fraud and financial crimes over the past 20 years?

Asaro: In the past 20 years, there have been a steady stream of major financial scandals, which have really changed the regulatory framework dramatically. In the late 1990s, when I started out at the SEC, the big cases of the day involved mobbed up boiler rooms, which were almost “street crime” white collar cases. Then, as we got into the 2000s, we saw a sea change with the accounting scandals of Enron and WorldCom, the dot-com bubble burst, and later the housing crisis. Each of these pushed the pendulum of more aggressive CORPORATE COUNSEL BUSINESS JOURNAL

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SEC, DOJ, CFTC, and foreign regulatory enforcement. In the past 10 years, as we were coming out of the financial crisis of the late 2000s, there’s been an ever increasingly aggressive practice of government enforcement, and the fines have gotten bigger. I remember seeing a $1 billion fine for the first time – that was a watershed moment – and now fines of hundreds of millions of dollars are par for the course.

There’s also a global nature to investigations, and dealing with multiple agencies across borders has become much more prevalent than ever before.

Connolly: As Mike said, we are seeing more situations where U.S.-based agencies are coordinating with law enforcement throughout the world, so that allows for information sharing and coordination with respect to the cases that are brought. The U.S. may take the lead in going after a company in some situations and allow law enforcement in other countries to focus on the foreign individuals involved.

In other situations, the coordination allows U.S. law enforcement to more quickly and efficiently bring cases that, 10 – 15 years ago, may have been much tougher to bring.

The other change is the use of data analytics. The SEC has long leveraged data analytics to bring insider trading cases. Similarly, for years, the DOJ health care strike forces have relied on data analytics to quickly identify potential targets on which to focus investigative resources. More recently, data analytics have been a driving force in the DOJ and CFTC’s spoofing enforcement focus. I expect the DOJ to increase its use of hard data as a way to more quickly distinguish what behavior is an outlier and therefore potentially criminal.

Has there been an increase in white collar prosecutions?

Connolly: My sense is that there has been some general slowdown over the past few years. Part of that is attributable to the conclusion of some of the large and complex inves22

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For a lot of GCs, there’s too much to know and too much to do. You have to have people you can trust and rely on to help figure out what you need to address.

– MICHAEL ASARO

tigations in the wake of the financial crisis. Those cases take a long time to ramp up. As they conclude, there’s a sense that the DOJ and other agencies catch their breath a bit.

It may also be due to the disruption of COVID-19. My experience has been that investigations that were in the early stages, where agencies were issuing subpoenas and gathering documents, continued pretty aggressively, as did investigations in the latter stages of settlement negotiations. But the fact-finding development of witness interviews slowed or were put off. Now, we are seeing agencies learn how to do those things remotely, and that’s ramping back up again.

In a typical life cycle of white collar enforcement, you tend to see an increase in enforcement after periods of economic distress, so I do think an increase in white collar matters will come out of the current economic distress the country is facing.

Asaro: Warren Buffet said at one point, “It’s only when the tide goes out that you discover who’s been swimming naked.” In terms of the COVID-19 crisis, the tide has gone out and the government is going to be looking to see who has their shorts on and who doesn’t. That’s what’s happened historically, and it’s going to happen again. We’re already starting to see investigative activity and new investigations get opened.

What are the priorities of law enforcement agencies?

Connolly: The FCPA and anti-corruption remain a priority.

Financial crimes, including money laundering and accounting fraud, are always going to be a priority for a variety of reasons, including that many different agencies can investigate and bring financial fraud cases, including the CFTC, the SEC, various DOJ components and U.S. attorney offices throughout the country, along with state regulators, such as the New York Department of Financial Services. Finally, we are seeing an increase in economic sanctions enforcement, an area in which we have a very deep bench.

Asaro: A reconfiguring of the priorities with the administration change, coming up on four years ago, resulted in a little bit of a pause for the agencies. We’re still seeing a lot of investigation, but it’s not the same fever pitch as the Obama administration, when, particularly with the SEC, it felt like almost everything was going to be an enforcement case. Lately, that agency has been more thoughtful in picking and choosing the cases it actually brings.

cyberintrusions and cyberthreats. We’ve been involved in some significant investigations in those areas as well.

What’s your advice to a general counsel who is new to a publicly traded company?

Connolly: You have to be comfortable with your team and that you have the support of senior management. It’s a difficult job, and in many ways, especially at a public company, it’s not a job that one can do alone. Focus on the team around you, including those who report up to you, whether in the compliance function or within the general counsel’s own structure. For a lot of GCs, there’s too much to know and too much to do. You have to have people you can trust and rely upon to help figure out what you need to address.

Asaro: Know your business. It is how you identify what your weak points are from a compliance perspective. When you start, even if you feel like there is already a good set

Two years ago a big chunk of our pie was SEC securities-type investigations, many of them with DOJ components. CFTC enforcement has always been a big piece as well and, in the past year, commodities-based investigations jointly between the CFTC and the DOJ. Also, Congressional involvement has been extremely active, and for our big institutional clients, many of those investigations are typically joint Congressional investigations with other enforcement agencies, like the DOJ, CFTC, or SEC. In terms of specific priorities, COVID-related scams are a focus at this moment – anybody leveraging off the crisis and fears related to the crisis to try to defraud people. Insider trading is continuing to be a focus. Market manipulation has kept us busy in the last year or two, particularly in the CFTC space. For cryptocurrency investigations, anything cyber related, we’ve got a group who are experts on responding to CORPORATE COUNSEL BUSINESS JOURNAL

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of controls place, do a top to bottom walk through of the compliance program to understand the biggest risks. Some questions I’d ask are: How are we addressing them from a compliance perspective? Do we have sufficient resources? Do we have the right team in terms of size and expertise? How are compliance and management working together to instill a strong compliance culture with the right “tone from the top”?

You’ve got to have a deep understanding of what your organization does and have good lines of communication and integration between legal and compliance and the business. Everything flows from there. Without that, you’re not going to be able to foster a good corporate culture from a compliance perspective.

Connolly: As a GC for a public company, it is critical to have confidence in your compliance function. Compliance can serve as the canary in the coal mine and highlight problems early on. They can help you prevent issues from becoming even bigger.

subpoena shows up. There are many things you need outside counsel for in your business, so try to consolidate and have relationships where outside counsel knows your organization and can advise you on what these forward-looking trends and risks are. We, as a firm, are in tune with trends because we’ve got many, many clients in many industries.

We’re constantly getting practical feedback from many sectors about what they’re facing.

Connolly: Outside counsel who you have a good relationship with can send someone over to help educate you and your team on a topic or how we handle a concern. We do a lot of front-end compliance of that nature.

Akin also has a general counsel boot camp for general counsels who haven’t had that experience before. It’s a program designed to help them not necessarily answer every question but at least know what questions to ask and where to look. 

Particularly if you’re going into a public company in an area that is not a subject matter where you have expertise, don’t be afraid to ask the outgoing GC, outside counsel, or people who have been there a long time “What was keeping you up at night?” “Where are the risk factors?” “Where are the weaknesses within the organization?”

Asaro: And be tuned in to the current trends. What are the regulators focusing on, and to what extent do you have regulator interaction with the regulators based on the type of organization you are? Even if you have a good sense of the risk today, what are the risks going to be tomorrow? Get in front of them. Know your key regulators and make sure you’ve got good relations with them, especially if you’re dealing with on a regular basis.

Lastly, have good partnerships with outside counsel, rather than just calling in different outside counsel when a 24

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Michael Asaro is a partner with Akin Gump. He represents companies and individuals in high-stakes, white collar regulatory investigations and litigation. Asaro served for five years as a federal prosecutor and four years as an enforcement attorney at the Securities and Exchange Commission (SEC). Reach him at masaro@akingump.com.

Charles Connolly is a partner with Akin Gump. He represents companies and individuals in government and corporate investigations. Connolly also defends against allegations of violations of federal and state regulations related to financial crimes. Reach him at cconnolly@akingump.com.

Toward a More Expansive View of Mentoring YESIM RICHARDSON & LISA CLAUSSEN-ADAMS CORNERSTONE RESEARCH

 Yesim Richardson, president of Cornerstone Research, and Lisa Claussen-Adams, the firm's senior talent advisor, explore the ins and outs of mentorship and break down the concept itself into four separate behaviors that allow for effective mentoring.

Mentoring has increasingly been recognized as a critical ingredient of success in many endeavors in individuals’ lives. In many instances, however, mentoring tends to be depicted as a relationship where a senior leader takes a junior professional under their wing and imparts the “formula” for success. Thus, mentoring programs often focus on pairing each junior employee with one senior person who is designated as their mentor.

Our firm’s mentor surveys and interviews indicate that while such pairings can lead to desired outcomes, investing in building and maintaining a more expansive view of mentoring is likely to be even more effective. Cultivating a shared understanding that each individual can be an effective mentor in their area(s) of comparative strength encourages long-term mentoring relationships that emerge and evolve organically, and enables an organization to make the most of its mentoring resources.

While there is widespread consensus that mentoring is critical to the long-term success of an organization, defining mentoring is more challenging than it seems at first glance.

When asked, each of our firm’s leaders defined it slightly differently, as a “process,” “form of leadership,” “opportunity,” “mindset,” “set of actions,” or “ability,” among other things. Realizing all of these responses are valid, we find it helpful to focus not on what mentoring is but rather on the behaviors that are involved in effective mentoring.

We organized our approach by segmenting mentoring into four distinct elements – feedback, opportunity creation, connections and counsel, and role modeling. We discuss

each of these in turn, including specific recommendations for both mentors and mentees from our mentor surveys and interviews.

Feedback Mentors play a critical role in recognizing positive contributions, offering specific coaching on work-product or delivery, and providing direct, clear, and actionable feedback to mentees. Assigned evaluator roles for performance review purposes can be the basis for mentoring relationships to take hold. However, our data indicate that the most effective mentor relationships are not based on an assigned evaluator role. Many of our survey participants indicated that working together on projects provided the best opportunity for feedback. To take advantage of that opportunity, a mentor should “give real-time feedback, discussing what is the best way to handle a given situation and why.”

Opportunity Creation In developing future leaders, it becomes increasingly important for mentors to proactively identify opportunities that not only enable the firm to serve its clients or customers in the best possible way but also align with mentees’ career plans and create “stretch roles” to accelerate their career development. It is valuable to “be explicit when you are providing an opportunity to an individual. For example, when you would like to staff an individual on a project that will help them develop expertise in a given area, don’t just ask them to work on the project – explain why this is an opportunity.” Mentees benefit greatly from a targeted approach to opportunity creation: “Think of providing specific opportunities to specific people … for example, staff individuals on repeat projects with the same clients so that they can develop client relationships.”

Mentors should not see their role as limited to personally offering opportunities to mentees but rather take a broader CORPORATE COUNSEL BUSINESS JOURNAL

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perspective. For example, they should “watch out for opportunities for their mentees, inform them of opportunities they may not be aware of (because mentors have a more firm-wide view than mentees), and make the connections they may need to take advantage of such opportunities.”

Mentees have to share this responsibility, in part by being specific about what opportunities they are interested in, such as opportunities involving a particular topic, a stretch role, or a particular client. This allows the request to have “the benefit of triggering a memory when an opportunity arises, rather than leaving it to chance for a mentor to make the connection.”

Effective opportunity creation can also take the form of the mentor sharing their network with the mentee, making introductions, and/or creating visibility for others who do not have exposure to the mentee. Mentors should “help others around the organization get to know their mentees, their strengths and their contributions.”

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Mentees should “ask their mentors for ideas and help in creating connections to other potential mentors.” In this context, the emphasis on the importance of femaleto-female mentoring represented the only discernable distinction in comments we received from female and male participants in our mentor surveys and interviews. As one female survey participant commented: “I need female mentors to ask about things such as how to assert myself while being genuine.”

Connections and Counsel Mentees often seek information about how to navigate the organization and career development in general, or a complicated situation in particular. Acting as a thought partner in providing career counsel that is both specific to the individual and actionable is critical to the development of future leaders: “Rooting for an individual and helping them with specific problems is great, but not sufficient.

Your mentees also need partnering to help them think through their career goals and how to achieve those goals.”

In addition, mentors should “remember that just telling mentees the variety of things they can do to advance in their careers is not sufficient. Mentees need help figuring out how to prioritize the various things they can do. Mentors should ask questions that identify areas where their mentees ‘don’t know what they don’t know.’ They should share what they can to demystify how things work, with a client or expert, within the firm, or within our industry.”

This involves “recognizing and sharing patterns mentees may not see. One of the benefits of experience is pattern recognition. Often, the things mentors take for granted due to experience are very illuminating when shared with mentees who have less experience.” As a corollary, mentees “should be specific in asking questions that mentors can react to, as opposed to broad questions like ‘what should I do with my career,’ which is hard to respond to in a meaningful way.”

Role Modeling Role modeling as a mentor is most effective when it goes beyond leading by example. In its most complete form, role modeling includes actively mentoring future mentors, rather than assuming that mentees will naturally invest time in mentoring others. Senior leaders can explicitly ask those in managerial roles to “talk to their team members who have management responsibilities about expectations and strategies for mentoring on teams.” Leaders can “create a culture of accountability for mentoring on teams by regularly asking about how team members are doing and how the team can be effective together in developing each other.”

In addition, one of the most powerful levers for effective mentoring – and one that can be used without much incremental investment of time – is providing opportunities for mentees to learn through observation or osmosis. A quick follow-through that makes the observation explicit is all that is required. For example, “after a client call or meeting, take a few minutes to explain why you handled things as you

did to enable your mentees to learn how to serve the client in the best way possible so that they can benefit from the wisdom you have developed through experience.”

In parallel, mentees should “identify the opportunities to learn through osmosis and recognize that as an opening.

When you observe something you want to emulate, ask the mentor how they thought about it, prepared, and learned how to become skilled at the behavior you observed. When you have gained insight from observing a behavior, acknowledge the value and describe why it was helpful. This will encourage mentors to be more explicit in the future.”

It is rare for any one mentor to be equally adept across the four elements discussed above. As one survey participant suggested, “The bottom line is that mentoring is not a one size fits all. We should all ‘mentor’ in a way that is natural and comfortable – and perhaps stretch a little beyond that.”

This suggests that a single mentor will rarely be able to fulfill a mentee’s needs across all four elements. The experience of another survey participant highlights the importance of cultivating a network of mentors with different experiences and styles who each excel at different elements of mentoring: "I’ve had multiple excellent mentors. For example, I learned a lot about the nature of our work from Alice. Being in the room and watching her interact with clients has been extremely helpful. Also, she thinks aloud and it was very helpful to learn how she thinks. But Alice is not a good business development mentor. She says “just go have lunches.”

She’s not helpful to me about how to navigate the firm, who I should be connected to, and how to most effectively connect with them. Bob is great at that. He tells me the specific things I can do. He thinks a lot in advance, then provides clear direction and targeted advice about next steps."

The recognition that different people excel at different elements of mentoring prevents viewing individuals as either categorically strong or categorically weak mentors. Instead, CORPORATE COUNSEL BUSINESS JOURNAL

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it allows an organization to make the most of the comparative strengths of each individual, expanding overall mentoring capacity and the pool of potential mentor relationships.

Segmenting mentoring elements into four discrete areas is not the only way to broaden the available set of connections. Our mentor surveys and interviews also highlight the importance of peer and “reverse” mentoring relationships. Connections among peers are critical to integrating new staff and creating a sense of shared affiliation with the firm, which supports retention. We see enormous value accruing to those who “initiate and maintain peer mentoring relationships; building trust-based relationships with colleagues who have similar experiences benefits their careers in the short and long term.”

“Reverse” mentoring refers to instances where someone more senior identifies a mentor who is less senior to them.

Senior leaders of our firm often identify reverse mentors as part of their mentor network and suggest that input from junior colleagues enables them to become better leaders.

Cultivating a well-established mentor-mentee relationship requires mutual awareness of the connection as a precursor to commitment by both parties. While our surveys show extensive mentor relationships identified by both mentors and mentees, the connections are not consistently named as such by both parties. We refer to instances where an individual identifies someone as a mentee and the mentee identifies the individual as a mentor as a “matched pair.” However, we also find a substantial incidence of “unmatched pairs,” suggesting that all too often, the connection between a mentor and mentee is left unstated. This may be in part because not every individual views mentoring in the broad terms described above.

Especially in those situations, both mentor and mentee would benefit greatly from a shared understanding of available mentoring opportunities.

The solution is simple, but often will not happen without 28

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being prompted. Mentors should tell mentees that they see them as a mentee, explain why, and share how they can act as a mentor, which may include things the mentor has already been doing on the mentee’s behalf, but did not naturally think to share. Similarly, mentees should explicitly tell mentors that they see them as a mentor, explain why, and indicate which specific elements of mentoring they would appreciate mentoring from them.

In sum, focusing on cultivating a network of mentors who play different roles based on natural strengths and expanding our view of who can be a mentor is likely to be much more effective in realizing our highest potential, for both developing people and building firms with strong mentoring cultures.

Note: The quotes used in this article have been redacted to preserve anonymity and edited for clarity. The views expressed in this article are solely those of the authors, who are responsible for the content, and do not necessarily represent the views of Cornerstone Research.

Lisa Claussen-Adams is a senior talent advisor with Cornerstone Research. Ms. Claussen-Adams advises the talent strategy for the firm across the career life cycle, including recruiting, training, professional development, performance, and compensation.

Reach her at lclaussen@ cornerstone.com.

Yesim Richardson is the president of Cornerstone Research. She specializes in applying economic and financial analysis to complex litigation involving securities, financial institutions, valuation, and real estate.

Dr. Richardson has worked with clients in a variety of financial sectors as well as other industries, such as energy, telecommunications, high technology, and pharmaceuticals.

Ideas Assessing China’s M&A Activity in 2020 and Beyond Allen Shyu, partner at Akin Gump in Beijing, has more than 20 years of experience in the cross-border M&A space. Here, he discusses the current state of Chinese M&A activity and how various world events, including the ongoing COVID-19 pandemic, are affecting these deals.

CCBJ: What is the current state of M&A activity in China and for Chinese-owned companies?

Allen Shyu: Deal values and volumes of China-related M&A deals declined by 14 percent in 2019. The drop in outbound M&A and domestic private equity deals were major factors in what was the most challenging year for deal values since 2013. The outbound M&A market continues to be strongly influenced by market uncertainties and political restrictions, such as the prolonged and unpredictable U.S.-China trade war and uncertainty surrounding the status of the U.S.China trade deal. There is no doubt that this will remain a

significant factor in the coming months and years, whether by impacting deal volumes, restricting market access, or by valuations being affected by tariffs. The uncertainty this breeds will be contagious, not just between the two countries but also for many other countries that are linked and indirectly affected.

In addition, the increased scrutiny from the U.S., specifically from the Committee on Foreign Investment in the United States, and from national security reviews in Europe, has been another key driver of the decline in outbound M&A from China.

However, Chinese companies are still looking to acquire technology, know-how, intellectual property, and brands from abroad – through smaller transactions – which resulted in something of a rebound in announced deal volume toward the end of 2019. In addition, outbound activity to countries involved in China’s Belt and Road Initiative developed especially well in that overall context. Chinese companies have increasingly invested in Southeast Asia, CORPORATE COUNSEL BUSINESS JOURNAL

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the Middle East, Europe, Africa and South America, following the Belt and Road Initiative.

and consumer and industrial sectors are expected to drive the growth of M&A in China in 2020.

While continuing to participate in the emerging markets, more Chinese companies have begun looking to invest in infrastructure and major projects in developed markets as well. The key market players are mainly Chinese state-owned contractors, but other players such as private companies, financial investors and funds are also becoming more active.

While trade tensions, geopolitical uncertainties and protectionist policies still loom in 2020, the COVID-19 outbreak has – and will continue to have – a significant impact on China’s economy.

China remained the second-largest recipient of foreign direct investment globally in 2019. China’s Ministry of Commerce data shows that foreign direct investment into China in 2019 topped $137 billion, a 5.8 percent year-on-year increase and the biggest rise since 2017. The Chinese national legislature passed the Foreign Investment Law in 2019, with the aim of creating a better business environment for overseas investors. The Chinese government has also passed new rules and reaffirmed its determination to open up more sectors, from automobiles to financial services to foreign investment.

In 2020, outbound transactions focused on strategic areas will continue to be the main driver of M&A activity in the region. The financial, TMT (technology, media and telecom), 30

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What industries are ripe for M&A activity, and which ones are slowing down?

Despite the overall decline, the M&A market is slightly more active today than it was in 2019, thanks to China’s new foreign investment policy that came into play in January 2020 and new rules to open up certain heavily regulated industries, such as the automobile and financial services sectors. This is particularly true for the industrial, consumer, high-tech and financial services sectors, and in relation to inbound deals.

The energy, retail and high-tech sectors have seen high-value M&A transactions recently, and we are still seeing Chinese internet giants competing for market share. However, the traditional industries are slowing down, including textiles and clothing, telecoms and value-added services, food and beverages, and the media and entertainment industries.

Inbound investment through M&A in China is expected to reach $1.5 trillion over the next 10 years. The Foreign Investment Law seeks to protect the rights of foreign investors and their intellectual property, and it clearly incentivizes them to invest in China. It also helps Chinese companies to move up the value chain. The evolving nature of China’s consumer economy and the desire for Chinese industry to continue to move up that value chain are two particularly important drivers of economic opportunity. These factors are expected to boost inbound M&A transactions in the near future.

What is the appetite for financing these deals? Who are the primary financial backers?

Both private and public M&A transactions are prevalent in China. In some cases, private M&A transactions may be used to raise a bridge loan before including the company in the structure of a listed company, thereby turning a private transaction into a public M&A transaction.

The major financing sources available for Chinese buyers include foreign banks, domestic commercial banks, A-share placements, domestic private equity co-investments, and support from regional governments and policy banks.

China’s outbound M&A was historically dominated by stateowned enterprises, with a focus on energy and resources. The recent wave of M&A has been characterized by a wider range of buyers, including companies with a broad sector focus, domestic private equity firms and A-share listed companies. Domestic private equity funds are actively pursuing larger international acquisition opportunities and are open to forming a consortium or partnering with state-owned enterprises and strategic parties in order to pursue larger overseas acquisitions. A-share listed companies have an increased appetite for outbound M&A in light of the supportive political and financing environment and the valuation premium that Chinese listed companies receive over their North American and European counterparts, which is conducive to conversations about value creation.

The COVID-19 epidemic undoubtedly increases the difficulty of crossborder M&A. Chinese buyers pursuing outbound M&A are increasingly able to utilize target-level, non-recourse financing, due to the enhanced size and quality of overseas assets being acquired. Some of China’s largest outbound acquisitions involved such target-level financing.

How is due diligence being conducted?

As an important part of cross-border M&A, due diligence allows the buyer to assess the value and risks of a project through a detailed investigation into the target company’s legal, fiscal, technical, operational and business situations.

In cross-border M&A, given the long distance between the buyer and the seller, the seller generally authorizes the buyer to first conduct a document review by giving the buyer access to its virtual database. However, as an ancient Chinese saying goes, “one cannot learn well by books.” The limitations of a virtual database can only be offset by onsite due diligence.

In a mining project, for instance, the verification of the original copy of a mining license, interviewing local government authorities, and communication with employees of the target company will provide a deeper and clearer understanding of the company’s actual operation, fieldwork management, safety precautions, environmental protection compliance, relationship with its employees, relationship with the labor union, relationship with local communities, and so on. Furthermore, in large-scale M&A transactions of listed companies, lawyers need to issue legal opinions, which requires them to complete onsite investigations in order to verify their due diligence results.

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For cross-border acquisitions in which contracts have been

Inbound investment through M&A in China is expected to reach $1.5 trillion over the next 10 years.

The COVID-19 pandemic makes it difficult for Chinese buyers to send teams to project-host countries. First, to date, 128 countries and regions have put restrictions on Chinese citizens’ entry, suspended visa appointments and imposed quarantine, etc. It will be very challenging for Chinese delegations to get the necessary access if project-host countries continue to implement such control measures.

Second, for example in mining projects, considering that mines are located in remote places with limited medical facilities, target companies may have concerns about the Chinese delegations’ ability to participate in site visits.

Third, target companies and local communities, especially local and indigenous communities, are particularly sensitive about the COVID-19 pandemic, and are very concerned about contagion, even where it is particularly low. So, Chinese companies are thinking about alternative solutions. For example, they may consider choosing local intermediaries to carry out due diligence, and interviews of management and key employees of the target company may be conducted by local teams onsite and by teams at home via videoconference.

Are you seeing any new risk management techniques being applied? If so, what do they look like?

If the outbreak continues to seriously impact on the ability of Chinese enterprises to complete the acquisition of target companies overseas, ultimately the value of target companies with close business associations with China may be affected by the pandemic. We may also see a number Chinese buyers looking to exit ongoing transactions.

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signed, where the outbreak is affecting the performance of Chinese buyers, acquirers must first analyze whether the outbreak constitutes force majeure, whether Chinese companies have the responsibility to give notice and withdraw, and then consider possible remedies and corresponding legal consequences. If the transaction documents do not contain material adverse effects or force majeure clauses, the Chinese company should be fully prepared and actively engage in reasonable consultations with the counterparty in order to find a solution to the impairment.

Cross-border M&A is a challenging business activity. Every cross-border M&A faces different culture, laws, business environments and complex potential risks. The COVID-19 epidemic undoubtedly increases the difficulty of crossborder M&A. China’s overseas mergers and acquisitions totaled $42.81 billion in the first three quarters of 2019, down 44.6 percent from the same period the year before, due to uncertainties including the trade war between China and the United States, geopolitical tensions and slowing economic growth. In the context of a slowdown in overseas investment by Chinese companies, the COVID-19 outbreak will have a further impact on cross-border investment

by Chinese companies. 

Allen Shyu is a partner at Akin Gump’s Beijing office. Over the course of the last 20 years, he has focused on U.S. securities and equity capital markets, including IPOs, while also expanding his practice to include cross-border M&A deals, supporting Chinese enterprises in their acquisition of businesses in the U.S. and Europe.

Reach him at placeholder@plh.com.

Private Investment in U.S. Public Equity: Overview of Considerations, Mechanics and Strategies NEIL BARLOW CLIFFORD CHANCE conventional financing sources may not be readily available.

Neil Barlow, legal consultant with Clifford Chance, provides an overview of considerations when executing a private investment in public equity (PIPE) transaction in the U.S.

A private investment in public equity (PIPE) transaction is a privately negotiated sale of a public issuer’s equity or equitylinked securities to an investor, under which an issuer typically files a resale registration statement with the SEC to enable the PIPE investor to resell the PIPE securities in the public markets, from time to time.

A PIPE allows a public company to raise alternative financing via a private placement of securities to an accredited investor.

This form of privately negotiated capital raise is often under-

This presentation provides an overview of the considerations, mechanics and strategies involved for a financial sponsor when executing a PIPE transaction in the United States. The presentation covers: •

The attractiveness of PIPEs in periods of economic volatility

•

Key value protections

•

Deal timing: structuring considerations

•

Governance rights

•

Resale registration rights

•

Issuer protections

•

Public disclosures

•

Key documents

•

Tear sheet of key issues and considerations and selected PIPEs

taken at a time when an issuer’s shares are undervalued or it encounters short-term liquidity issues, including when

Click here to download the full presentation.

Neil Barlow is a legal consultant with Clifford Chance. He specializes in cross-border M&A, with a particular focus on private equity transactions. Barlow advises international and domestic private equity houses, financial sponsors and corporates on a wide range of matters.

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Negotiate Your Next Tech Contract Like a Pro BRIAN GREGG McNEES WALLACE & NURICK to use the software/service. The buyer should also make

When it comes to outsourcing SaaS and other technology and data services, there are many laws, regulations and other details to consider to avoid buyer’s remorse and limit liability.

sure any formal definition of “affiliate” aligns with its corporate structure. A good practice is to negotiate the right for affiliates to use the software/service and include them as indemnified parties but not make them formal parties to the agreement. This should reduce the risk that these

As organizations increase their reliance on outsourced technology, in-house legal departments are faced with a deluge of contracts to negotiate. These agreements are dense, sometimes poorly written, and may be full of technical jargon unfamiliar to some attorneys. Deal-focused contract managers do not want to negotiate legal terms.

Junior attorneys may not have an adequate background, which should include a mix of intellectual property law, privacy/data security law, and commercial contract law to appreciate all of the issues implicated in a software license agreement, software as a service (SaaS) agreement, or other technology service. Out of frustration or lack of familiarity with the legal and technical issues, attorneys often pass on giving these documents the scrutiny they deserve.

Most vendor agreements are, not surprisingly, vendorfriendly; not addressing even just few key sections can leave an organization with buyer’s remorse, or worse, significant liability. In this article, we consider the contract terms from the perspective of the buyer. Following the recommendations below will produce an agreement that apportions the risks fairly between the parties.

affiliates could be held liable along with the buyer as a party to the contract. This reduces the exposure to the affiliates but permits them to utilize the software/service.

How is the data managed?

If the engagement involves sharing data, particularly sensitive or valuable data, the agreement must be clear about who owns the data, who owns data generated by the product (data based on data), who can “use” those data sets, and how they can be used. The buyer must ensure that it does not inadvertently give up ownership of its assets, and that it owns any necessary software/service output. Many agreements permit the vendor to own and use “aggregated and anonymized” data, meaning commingled data that is sanitized of its ability to identify a person or entity.

Some vendors monetize these data sets. Considerations for buyers include whether the buyer also monetizes its data and is effectively aiding a competitor. Also, buyers should evaluate the privacy law sophistication of the vendor. For example, under the European Union’s General Data

Who needs to use the technology?

Protection Regulation (GDPR), personal data only is truly

Most vendor contracts start from the position that only the specific contracting entity is permitted to use the software/service. Typical language excludes use or access by third parties. These restrictive terms must be revised if the buyer intends to permit its related corporate affiliates or outside service providers to use the software/service.

In such circumstances, the buyer should negotiate the right for its affiliates and any other third-party servicers

versibly prevent reidentification of the data subject. Under

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“anonymized” if it’s been permanently modified to irrethe California Consumer Privacy Act (CCPA), data can be “deidentified.” Neither concept is satisfied by merely deleting a field or two from the data set. If companies fail to anonymize/deidentify the data, it may remain subject to the GDPR, CCPA and other privacy laws, and sharing such data may expose the buyer to a claim. A final point on data: Vendor agreements rarely formally address the return of

the buyer’s data. Buyers should insist on terms that make it clear when and how they can get their data back if the agreement ends or is terminated, regardless of fault.

Confidential information Most agreements contemplate that the parties will share at least some proprietary information that should be held in confidence. For the vendor, that might be its pricing; for the buyer, that might be its network architecture, future business plans, customer lists, etc. Issues to look out for here include narrow definitions of what constitutes “confidential information,” such as requirements that information be literally marked as confidential and that any information communicated orally must be followed up with a written communication confirming its confidential nature. These definitions do not reflect how most organizations treat their data and such a definition undermines the intent of the terms. A better approach to defining confidential information is a reasonableness standard coupled with the usual description of what is not confidential information. Those exclusions usually include (a) information that becomes generally available to and known by the public; (b) information that the receiving party obtains on a nonconfidential basis from a third-party source, provided that such third-party is not prohibited from making the disclosure; (c) information that was known by or in the possession of the recipient prior to being disclosed; or (d) independently developed information. Anther common shortcoming of confidentiality clauses is not imposing a duty to notify the disclosing party if the receiving party learns of its unauthorized disclosure of confidential information.

Confidential information Most agreements contemplate that the parties will share at least some proprietary information that should be held in confidence. For the vendor, that might be its pricing; for the buyer, that might be its network architecture, future CORPORATE COUNSEL BUSINESS JOURNAL

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business plans, customer lists, etc. Issues to look out for here include narrow definitions of what constitutes “confidential information,” such as requirements that information be literally marked as confidential and that any information communicated orally must be followed up with a written communication confirming its

Buyers should insist on terms that make it clear when and how they can get their data back if the agreement ends or is terminated, regardless of fault.

confidential nature. These definitions do not reflect how most organizations treat their data and such a definition undermines the intent of the terms. A better approach to defining confidential information is a reasonableness standard coupled with the usual description of what is not confidential information. Those exclusions usually include (a) information that becomes generally available to and known by the public; (b) information that the receiving party obtains on a nonconfidential basis from a third-party source, provided that such third-party is not prohibited from making the disclosure; (c) information that was known by or in the possession of the recipient prior to being disclosed; or (d) independently developed information. Anther common shortcoming of confidentiality clauses is not imposing a duty to notify the disclosing party if the receiving party learns of its unauthorized disclosure of confidential information.

SLAs and credits With any SaaS or hosting service, the buyer wants some assurance that the product will be reliably available. Vendors often address this with a service-level agreement (SLA) in which the vendor promises some level of uptime (usually 99.9 percent), and if the vendor falls short of that target the buyer is sometimes entitled to a credit, often anywhere from 5 to 30 percent of the recurring service fee. It sounds nice in theory, but in practice the credit schemes are often difficult or impossible for buyers to take advantage of and the credit itself rarely approximates the harm caused by an unreliable service. Most SLAs require the buyer to identify the uptime shortfall, which requires the buyer to monitor 36

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the service. Most SLAs also require the buyer to request the credit shortly after the excess downtime. Credits of only a few percent of the recurring service fees rarely justify this effort. In addition to the credit scheme, buyers should negotiate a termination right if the promised uptime levels cannot be maintained in several consecutive months or during multiple months over a period of time, such as three months in any rolling 12-month period. The termination right gives the buyer a way to find a higher performing vendor instead of accepting poor performance for the term of the contract.

Where possible, the buyer should require the vendor to provide a report on downtime to reduce monitoring needs.

Warranties A buyer’s chief concern is usually that the software/service will meet its needs. That might mean that the software/service offers certain features that provide its value to the buyer, such as being able to interface with the buyer’s legacy technology.

Without these features, the software/service may be useless to the buyer. Many agreements do not contain any direct statement that binds the vendor to provide promised features. In fact, most agreements contain boilerplate terms that say the opposite – no warranty of merchantability or fitness for a particular purpose. Buyers should override these disclaimers with a clear performance warranty. A typical approach is to require that the software/service work in material conformance with its documentation. This may provide functionality assurance, but only if there is documentation (often there is not, or it only deals with installation) and the documentation includes ref-

erences to the features of importance to the buyer. A more

not start until formal acceptance, payments are structured

direct approach may be to refer to the description of features

to hold something back until formal acceptance and the

in the vendor’s proposal or, if not covered elsewhere, include

agreement can be terminated if the vendor cannot achieve

a schedule of critical features that the software/service must offer. Many unhappy buyers will claim that a vendor’s product is “broken” when the reality is that the product works as designed but does not do what the buyer desired. Additional specificity in the agreement can help prevent this scenario.

Acceptance and testing Another concept akin to the warranty issue discussed above is a testing/acceptance process to ensure that the software/ service works as promised once it is installed and configured.

The buyer should negotiate an adequate amount of time to test the software/service for functionality of any critical

formal acceptance. These concepts allow the buyer to retain some leverage after the agreement is signed.

Limit of liability The limitation of liability and indemnity are the two big risk-shifting terms in the agreement. Most vendorfocused agreements will effectively disclaim all damages except direct damages and will limit the vendor’s financial obligation to some function of the buyer’s fees. A cap of 12 months of fees paid is typical. This can leave the buyer stuck with liabilities that it assumed were taken on by the vendor, and the vendor with limited exposure. Buyers

features (again, that critical features list can make this

should consider negotiating a specific dollar cap related

process more objective) and for general operability before

to the value of the contract, as opposed to the uncertain “x

the software/service “goes live.” Ideally, the warranty will

months of fees paid” formula. The buyer should also push CORPORATE COUNSEL BUSINESS JOURNAL

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Most vendor agreements are, not surprisingly, vendor-friendly.

above, if indemnified claims are not excluded from the limitation of liability, the vendor’s obligations to defend may not align with the cost of the defense the buyer needs.

Terms via web link

for certain contractual breaches and obligations to be excluded from both the limitations of the types and the amounts of damages. Exclusions typically include breach of confidentiality, breach of data security obligations, indemnified claims, gross negligence, willful misconduct, and other deal-specific terms such as PCI DSS compliance. While less common than negotiating liability caps, it is important to address when damages are limited to direct damages because the outcome of some contractual breaches are foreseeable but are not direct damages. For example, some courts have found that certain damages associated with a data breach are “consequential damages.” Vendors have shielded themselves from liability under “standard” contract terms that limit exposure to direct damages and exclude any liability for damages categorized as consequential, special, etc.

Buyers must be aware of how newer concerns, like a data breach, might comport with contractual terms often viewed as standard.

Indemnity The other of the big risk-shifting clauses determines when one party must step in and defend the other against a third-party claim. Some vendor agreements will lack this clause entirely; others may limit indemnification to third-party claims alleging that the software/service infringes a third-party intellectual property right. That is a start. However, buyers should consider other situations where the vendor may contribute to or cause a third party to sue the buyer. These include breach of confidentiality, data breach, personal injury, property damage, and violation of laws such as data privacy laws. As discussed 38

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Many software/service agreements contain links to various vendor policies and sometimes entire additional sets of binding terms. Buyers should evaluate whether incorporating these terms, which the vendor unilaterally can change, is appropriate. For example, vendor terms around acceptable use of the service, or certain security protocols, might need to remain flexible so that the vendor can change them to keep pace with evolving laws and security best practices. Buyers need to resist the urge to insist that all such terms be added as formal exhibits and remain static for the life of the agreement, as this may not be practical. However, buyers should be wary of referenced terms that change the major risk-shifting terms of the negotiated document and should consider negotiating a termination right if these “flexible” terms are modified by the vendor in a way that the buyer cannot accept. With a termination right, the buyer retains at least some leverage.

This is by no means an exhaustive list of negotiable terms, but if the buyer considers each of the above issues it will negotiate a more balanced agreement and, in the process, will have thought through the vendor engagement in a more comprehensive manner. 

Brian Gregg is a member with McNees Wallace & Nurick. He chairs the McNees Food & Beverage Group and is the co-chair of the Intellectual Property Group. Gregg’s focus is on trademark and copyright protection, software and technology service contracts, franchising and a number of other related issues. Reach him at bgregg@mcneeslaw.com.

Dispute Resolution in the Wake of Lifting COVID-19 Restrictions

Eric P. Tuchmann, senior vice president and general counsel at the American Arbitration Association®-International Centre for Dispute Resolution® (AAA-ICDR) discusses how the AAA-ICDR has been handling their dispute-resolution cases during COVID-19 and what mediations and arbitration hearings could look like as states lift restrictions on sheltering in place and in-person dispute-resolution procedures become available.

CCBJ: As businesses commence reopening, is there a timetable for the AAA-ICDR to open its facilities?

Eric Tuchmann: The AAA-ICDR remained fully operational and never shut down since the beginning of the COVID-19 pandemic. However, for the safety of our employees, customers, arbitrators, and mediators, we shifted our case management to our virtual operations – an option that has been available to parties for years – and closed our physical offices.

Did the filing of cases continue?

Certainly – much happens with a case before it goes to the arbitration hearing stage. In fact, only about one-third of cases filed with the AAA-ICDR reach the hearing stage; nearly twothirds of disputes filed with us settle prior to the first hearing, many without accruing any arbitrator compensation.

And now?

Now, as cities and states have started a phased-in approach to reopening businesses, the AAA-ICDR has begun opening our case-management offices. Since these facilities reside in multiple locations around the country, the AAA-ICDR will be able to schedule in-person hearings in certain AAA-ICDR facilities depending on state and local guidelines as well as logistical considerations.

In addition, AAA-ICDR has created a database of alternative hearing locations in a number of locales, which can be made available to parties.

What will an in-person arbitration or mediation look like in this environment?

A dedicated team experienced in business continuity has spent weeks reimagining the entire arbitration or mediation experience – from entering the hearing facility to moving into the hearing room and proceeding through an actual hours-long hearing.

We’re committed to creating a comfortable, safe, and welcoming environment that safeguards the health of our employees, parties, attorneys, and panelists.

That translates into: • Limiting the total number of people who are allowed into the facility daily, • Limiting the number of cases in each hearing facility at one time, and • Limiting the number of people in one hearing room at a time.

In addition, we will: • Provide COVID-19 packets that include a bottle of hand sanitizer, sanitizing wipes for computers and surfaces, and an antimicrobial pen.

• Space out seating to allow for the required six feet of distance between people • Provide direction regarding where food and beverages can be obtained.

• Require the use of masks or face coverings (and provide them if necessary) • Set up hand-sanitizing and disinfectant stations throughout the hearing facilities.

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What about precautions with the offices and hearing facilities?

As each facility reopens, it will be cleaned thoroughly and disinfected using Environmental Protection Agency(EPA-) registered cleaning products. Common areas, such as waiting areas, break rooms, and cafes may be closed or limited to small numbers of individuals that can be present. All hearing rooms will be cleaned daily.

How do you see the reopening transpiring?

In the near future, at least, we envision that a number of hearings will take a hybrid approach – due to the limitations of the number of people in a room – where arbitrators, parties, representatives, and others will be present in person, while others participate remotely. Many of our hearing rooms have video conferencing technology installed.

We have been quite successful with our telephonic and video conferencing hearings for caseloads with smaller, less complex disputes, so those likely will continue and perhaps the use of virtual hearings even will increase. However, I don’t believe in the long run that virtual hearings will replace in-person ones for the large, complex cases.

Specifically, what uniform protocols will the AAA-ICDR observe with regard to requirements of personnel and attendees?

AAA-ICDR personnel will observe the Centers for Disease Control (CDC) recommendations, and we ask that all visitors to hearing facilities do so as well. These are: • Maintaining good social distance – about six feet, which is very important in preventing the spread of COVID-19.

• Washing hands often with soap and water for at least 20 seconds. If soap and water are not available, use a hand sanitizer that contains at least 60% alcohol.

• Covering mouth and nose with a cloth face covering when around others.

• Staying home if sick.

Where can additional information on this subject be found?

Please visit www.adr.org/ covid19, which provides the latest information on hearing facilities, online options, virtual hearings, and case filings. 

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Eric P. Tuchmann is general counsel and corporate secretary of the American Arbitration Association.

As chief legal officer, Mr. Tuchmann is responsible for managing the legal affairs of the organization including litigation related matters involving the Association and its arbitrators, and drafting amicus curiae briefs submitted on behalf of the Association.

Antitrust Regulation in the Era of Big Data and COVID-19

Andrea Levine, managing director with FTI Consulting, discusses various aspects of antitrust enforcement in 2020, from data collection in a cloud-based world to how companies are coping with the effects of the pandemic.

CCBJ: Tell us about your experience prior to joining FTI. Andrea Levine: I was an attorney at Simpson Thacher & Bartlett in New York City. I specialized in various antitrust matters, specifically merger enforcement and some cartel work. In merger reviews, if the FTC or DOJ undertakes a more fruitful investigation, they’ll issue what’s called a Second Request, asking for a large volume of information related to the merging parties and their industry. These cases – and my work on them – have always been at the forefront of e-discovery. These matters are both very data intensive and operate on a very quick timeline. So that’s how I came to know FTI: We would often engage them to help us comply with these requests, quickly and comprehensively.

COVID-19 has disrupted how companies and employees work. What do you think its downstream impact on investigations will be?

From my perspective, one of the biggest impacts of COVID-19 on businesses is the shift to a largely remote workforce. Approximately 60 percent of employees right now are working from home, and from a data and investigation perspective what we’re seeing is that a lot of these employees are looking to use various kinds of software, particularly collaboration and video software like Microsoft Teams or Zoom, to stay in touch with colleagues and clients and continue to share information – verbally, of course, but they’re also creating shared repositories for documents and data. And depending on a company’s mobile device policy,

we’re seeing a lot more employees using personal devices like smartphones or tablets to conduct business.

So data is being created through a variety of sources and at a greater extent than before. And because this was a pretty quick shift and companies weren’t planning to shift their workforce to home, there are a couple of things they may not have been prepared for. One, they don’t necessarily know all of the different applications that their employees are using because solutions are being created on an ad hoc basis, and two, how to preserve, collect and process all of that new information that’s being created. Specifically looking toward investigations, if the time comes that they have an internal complaint or there are government requests for information, the first step they’ll have to take is identifying all of the various ways in which data was created, and how all of that information is being stored, and then only then can they think about how to collect, review and produce that data.

Another aspect to consider is that when we think of data collection, currently – or in the very recent past – a lot of it is being done by IT departments themselves. A lot of that data, especially if it’s organized and maintained properly, can be pulled on the back end by IT, and that saves time and money in an investigation. But now, as people are creating data in new applications, and saving data locally on their computer or mobile devices, IT staff does not have access to this data and companies will need to perform remote data collections if an investigation arises before employees can return to work.

Relying on the employees themselves to properly collect all of the potentially relevant data creates additional complexities, because if you’re obligated to produce this data for a government investigation, or a litigation, you need to ensure that your collection is comprehensive and defensible. That’s not typically part of an employee’s day-to-day responsibilities, so you have to ensure knowledgeable people are overseeing collections and making sure data is being collected in the right CORPORATE COUNSEL BUSINESS JOURNAL

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Coming out of the economic shutdown, companies may feel pressure to make up for lost revenue, which can create situations that are ripe for misconduct. way. These changes in data creation and preservation also implicate privacy issues, and at least in the case of cartel investigations, across several jurisdictions with varying regulations. In the last several years, we’ve seen an increase in privacy regulations, most notably the General Data Protection Regulation (GDPR). To the extent that you are creating, collecting, or storing data globally, and potentially moving it across borders, you’ll potentially trigger these various regulations. You want to make sure that everything you’re doing around these emerging data sources does not run afoul of those regulations. As a company, at the forefront of your mind is not only knowing where your data is and how you can preserve and collect it but also how you’re protecting it and transferring it as needed.

What do you think the priorities and expectations will be from antitrust regulators conducting investigations?

We can expect that the agencies to request data from emerging data sources, particularly those that facilitate communications across companies as the DOJ is required to provide evidence of an illicit agreement in cartel cases.

We started to see that even before COVID-19 – people were shifting to working from home even before that – and the regulatory agencies, particularly the DOJ, demonstrated an interest in different data types. For example, last November, a former JP Morgan trader was convicted of conspiracy in a scheme to rig the global foreign currency exchange. And the basis of that conviction was in part drawn from text messages and online chat rooms. So 42

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that’s been a really big focus for the DOJ. We had already started to see that shift away from the typical email documents and into these other kinds of online communications.

As a company that works in this space, we’ve seen the same trend, of course. In the last two years, we’ve produced data from cloud-based collaboration software and mobile messaging apps in response to Second Requests.

In addition to prior cases, we’ve also seen the DOJ update their guidance to specifically address data issues and new data sources. One example is the DOJ Antitrust Primer for Federal Law Enforcement Personnel. Their internal guidance was updated in September 2018, and now it specifically mentions that evidence of illicit communication and cooperation among competitors could take the form of, and these are their words, “emails, text message, Facebook messages,

WhatsApp and encrypted messaging apps.” So they’re publicly articulating how broad their definition of relevant data is, as well as where they’re specifically looking to find evidence of these conspiracies.

This year, we’ve also seen revisions to the DOJ’s guidance on corporate compliance policies. The latest revision adds that in determining the effectiveness of a company’s antitrust compliance program, the DOJ will consider whether “compliance and control personnel have sufficient direct or indirect access to relevant sources of data” and whether any “impediments exist that limit access to relevant sources of data.” In order to determine whether a company is being proactive in rooting out misconduct, they want to see that the personnel running the audits are able to view all of the relevant data, and do so on a periodic basis, not just one snapshot in time. This suggests that difficulty around collecting from disparate data sources does not excuse companies from monitoring this data, let alone excuse companies from providing them in response to government inquiries.

One other thing I wanted to add is that while we are in the midst of a pandemic and an economic shutdown, these factors can actually trigger potential misconduct in the antitrust space. The reason being that there are some companies that are typically competitors but are now working together in joint ventures or other arrangements to address the pandemic. Naturally we think of that as pro-competitive, but it also opens doors for behind-the-scenes communications between competitors, and the possibility that they inadvertently or intentionally share competitively sensitive information. That’s something that regulators may be on the lookout for as more of these joint ventures arise.

The other aspect of this is that coming out of this economic shutdown, companies may feel pressure to make up for the revenue that’s been lost. Those pressures can create situations that are ripe for potential misconduct. So I think

“As data storage shifts to the cloud, cybersecurity threats become more real than they were before.” it’s important for companies to start taking their antitrust risks seriously right now, especially if they are part of a joint venture, or if their field employees are under pressure to make up for lost sales, lost business. Start thinking now about how you’re going to get in front of any misconduct, how you’re going to find it if there is any, and again, how to put compliance programs in place to make sure that you can do it effectively.

How can in-house legal teams prepare themselves?

The best thing they can do is make sure their companies get in front of these issues by implementing a comprehensive information governance policy. That goes beyond just having a policy on paper where you tell employees what records to preserve. You have to also take a look at all of the various sources of data, how that data communicates with each other, how it travels through the company.

Through that process, you can identify where the data is being created, where it is being stored, how easy it would be to preserve or collect, and whether it can be consolidated into central data systems. And, of course, how to access it for investigatory and litigation needs. Certain applications don’t work seamlessly with existing data collection and processing software so it’s important to think ahead to how you would address those issues.

Another aspect of information governance is how the data is organized. In information governance, we think about what data a company is legally required to store, what it makes sense to delete, what it needs to protect. But we CORPORATE COUNSEL BUSINESS JOURNAL

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also think about how data is organized by department, by project, by type of communication. This type of structure allows for more targeted data collection which saves time and costs associated with processing, hosting and reviewing data. Conversely, if the data is all mingled, you need to pull from all potentially relevant data sources significantly increasing the initial data volume.

Let’s talk about what role service providers can play in preparation and response.

Service providers have a level of expertise that companies themselves are not likely to have. They not only understand the complexities around new data sources but are also experts in how to tackle them to meet a particular company’s needs. There are considerations around retention needs versus the cost of storage, as well as balancing the need for data security with ease of collection. Service providers can walk a company through its options and recommend the policies and software that will work best. And as data storage migrates to the cloud, cybersecurity threats become a greater concern. It’s not only a matter of knowing where your data is and complying with preservation regulations but also ensuring that your company’s data does not get hacked or even misappropriated within the company. A service provider can determine where the security risks are by looking at your current data management system, where the risks are and present solutions to increase data security.

What other considerations should legal teams be thinking of as they continue to adapt to the current environment?

COVID-19 has significantly changed the way employees do business and many of these changes, working remotely, communicating on mobile devices, not being connected to a company network, sharing documents and messaging 44

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through cloud-based software, impede a company’s ability to readily track and access data in a systematic way. Moreover, these newer apps are seeing significant increases in use and their systems have not necessarily been tested, from a security perspective, in this way. I’m thinking of Zoom in particular, that has become the video conferencing software of choice for many organizations now conducting business virtually. That app has just exploded since the shelter in place orders started. This security concern is one of the best arguments, aside from e-discovery needs, for having an information governance policy in place: There is just so much personal data out there, personally identifiable data, personal health information, credit card information, Social Security numbers and the like. If a company is not proactive about protecting that information, it’s potentially out there for the taking.

And when I say protect, I’m anticipating that companies have done some level of work to protect their data, but as the location of this data changes, companies need to adapt to the new risks and put security additional measures in place.

In short, this major transformation in the workplace can create a number of headaches for in-house legal down the road, from lengthy and complicated document collections to data security breaches.

But with foresight and the right expertise, they can identify the issues now and avoid costly and time-consuming problems later. 

Andrea Levine is a managing director within the technology practice of FTI Consulting and is based in New York. Ms. Levine advises clients on the use of advanced analytics technology and methodologies to expedite fact-finding and case development for investigations and complex discovery matters. Reach her at andrea.levine@fticonsulting.com.

Maritime Matters are at the Forefront of Alternative Dispute Resolution

Judge John G. Ingram discusses his impressive career in maritime and admiralty law, and why he’s looking forward to bringing that expertise to alternative dispute resolution at NAM.

CCBJ: You are one of the very few judges in the nation who has been a proctor member of the Maritime Law Association of the United States. Please tell us about your 30-plus year career as an admiralty lawyer, including your education, training, license and shipboard experience.

Hon. John G. Ingram (Ret.): I graduated from the Maritime College in New York and shipped out as a third mate and second mate aboard U.S. flagged container ships, cargo ships and passenger liners. Following that, I attended St. John’s Law School in New York and worked part-time and summers shipping out on merchant ships and also acting as a port relief officer when ships docked in the Port of New York. After graduating from law school, I joined the preeminent admiralty law firm of Burlingham, Underwood, Wright, White & Lord. As a litigator, I represented ship owners and towing companies in all types of marine-related incidents, including oil spill cases, cargo claims, personal injuries and wrongful deaths of seafarers, passengers and longshore harbor workers. In addition, I represented owners in charter party disputes and served as an arbitrator in maritime matters, including a small boat salvage case. And I served in the U.S. Navy Reserve for 31 years, retiring as a captain.

In addition, after my term as a commissioner, I represented pilots in New Jersey who were involved in casualties such as groundings, collisions, and damages to barges and facilities. I was also involved in marine insurance coverage disputes. I was lead counsel in a case involving the sinking of a passenger liner with more than 600 passengers and crew, and I have represented a major cruise line in passenger injury and death claims. In 2003, I sat as the chairperson of a three-arbitrator panel in connection with the issue of runoff on a marine insurance policy.

I’ve taught admiralty law at New York Law School and St. John’s Law School. I’m currently an adjunct faculty member at the State University of New York Maritime College where I lecture in admiralty law.

I was also a pilot commissioner for the state of New York for six years. As a member of the commission, I regulated pilots, conducted investigations, and made findings into maritime casualties involving state-licensed pilots. I rendered decisions on the culpability of those involved and prescribed remedial measures as appropriate.

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Disputes dealing with the repair and building of ships are ripe for arbitration, particularly because of the technical aspects of these cases.

So in 34 years at the maritime bar, I’ve touched on just about everything in the admiralty world.

What drew you to NAM, and how will you bring your legal and practical experience to your new role as the arbitrator or mediator in maritime cases for the organization?

NAM is actually the only alternative dispute resolution (ADR) entity that I considered. I had spoken to some of my colleagues from the State Supreme Court in New York, and they strongly recommended NAM and consider them the top name in ADR. They’re not only known as a top ADR provider but also for their great customer service. They have case managers that handle all of the logistics for the hearings. In other words, NAM’s personnel do all of the scheduling and related matters, which makes it much easier for the arbitrator/mediator.

We don’t have to deal with the administrative details of setting up the arbitration/mediation time, the place, number of rooms, etc. I’ve visited their New York and Garden City offices and conference facilities and could see firsthand how the cases were being handled, and the services and amenities provided to counsel and their clients. I’m very impressed with the whole organization.

In addition, NAM has both a national and international presence, administrating cases throughout the United States, London, Monaco, France, Panama and the Philippines. I have a European Union passport. That’s something that could benefit our clients and the parties who retain NAM. I’m sure that if the parties wanted to have an arbitration in a different location other than where 46

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NAM has an office, the company and myself would accommodate the request. NAM has the ability to administrate cases in most major cities around the world.

NAM is designated as the administrator for arbitrations in many of the passenger ticket contracts used by various cruise lines throughout the industry, including Carnival and its affiliates, Norwegian Cruise Lines and Royal Caribbean. In addition, NAM is the designated administrator of seafarer arbitrations pursuant to Carnival’s Seafarer Employment Agreements.

How is it useful for a maritime arbitrator to come from the maritime bar?

The maritime bar in the United States consists of about 1,200 lawyers who belong to the Maritime Law Association of the United States. I was a proctor member of that organization until I went to the bench, and then I became a judicial member of the Maritime Law Association. Now I’m transitioning back to being a proctor member. In other words, the maritime bar is very small, and people know each other and speak the same language. So in maritime disputes, it is extremely helpful to have an arbitrator or mediator with a maritime background.

People think of maritime law as a specialty practice, and indeed it is, but it does encompass all types of legal issues.

For example, product liability to construction of ships, repairs of ship claims, personal injury and wrongful death, contractual issues and insurance matters that sometimes result in arbitration or mediation.

One of the benefits of arbitration and mediation is that the parties can expect an expedited hearing and a prompt decision/result. I recently read a U.S. Supreme Court case that dealt with an important issue in maritime law called safe berth warranty. The incident happened in 2004 on the Delaware River and involved the puncture of the ship’s hull

by the fluke of an anchor that was in the channel. The case involved a claim for more than $150 million dollars in damages. The case was pending in the Third Circuit, and there was a conflict in the applicable law between the Second and Fifth Circuits, It was argued in the U.S. Supreme Court in November 2019, and was finally decided in March 2020.

Ultimately, the Supreme Court decided the issue that a safe berth was a guarantee, not a promise to exercise due diligence to provide a safe berth. It took 16 years from the date of the incident to finally have it resolved by the Supreme Court.

Point being, cases such as these can be resolved in a more cost-effective, time efficient manner through ADR. Maritime matters often require considerable time to resolve in court, but how does NAM administer and manage these types of cases?

As I previously mentioned, NAM has case managers and a scheduling department that handles the full administration of the case. For example, the amount of time needed for the hearing, the location of the hearing, the dispute resolution agreements that the parties sign, etc. In the beginning of the case, the arbitrator and counsel will engage in a prehearing telephone conference call so that disputed issues can be identified and narrowed, a schedule can be set that may include discovery, briefing, motion practice and the time frame for the hearing, all in accordance with NAM’s rules of procedure, which are designed to move cases efficiently. The arbitrator as well as the case managers, continue to work with the parties and counsel to ensure that the deadlines are met and address any issues that may arise such as discovery disputes. Since the case manager and, in turn, the arbitrator, are easily accessible, disputed issues are often resolved with the scheduling of a phone call with the arbitrator, thus obviating the need for time-consuming motion practice in the court system. The arbitrator also has the ability to block out continuous days for a hearing, which will result in the case being concluded in a more efficient manner, unlike a case being heard

The parties like to go to arbitration because they’re going to get a prompt resolution by an arbitrator who’s familiar with the subject matter. in court, where the presiding judge may not be available to hear a case each day until its conclusion because of preset motion days, conference days, and other scheduled matters.

Since NAM has the technological ability to allow for witnesses to appear via videoconference, the undue delays that would typically occur in scheduling and coordinating parties are avoided. There is more flexibility with scheduling hearing dates and party appearances in a NAM arbitration than in a courthouse.

What types of maritime disputes are most suitable for arbitration or mediation?

Marine insurance coverage and claims disputes are ripe for arbitration. Also, contractual disputes of all kinds – ranging from a ship repair contract, for instance, to a contract to build a ship – are perfect for arbitration, particularly because of the technical aspects of these cases. Maritime injury and death claims are also very well suited for arbitration or mediation.

Salvage contracts are also ideal for arbitration and mediation.

Small boat salvage – it’s quite a field today, involving pleasure boats – and the fact that there are companies that do private salvage of pleasure boats, those types of cases are ripe for arbitration and mediation. The parties like to go to arbitration because they can get a prompt resolution by an arbitrator who is familiar with the subject matter. And, as I mentioned previously, passenger cruise ship claims for contractual disputes between passengers and the cruise ship companies are ideal for arbitration and mediation as CORPORATE COUNSEL BUSINESS JOURNAL

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are foreign crew claims for personal injury. Most non-U.S. seafarer employment contracts provide for arbitration for those type of personal injury claims.

through Zoom is HIPAA compliant, meaning it meets or exceeds the privacy and security specifications provided by the Health Insurance Portability and Accountability Act.

Let’s talk about NAM’s virtual hearings and the steps the organization has taken to provide security during a mediation or arbitration – and how this works with maritime disputes in particular.

The virtual hearings are set up on the computer or a mobile device. There are separate virtual “rooms” for the parties and the witnesses, all controlled by the neutral. Then there’s a joint room where the neutral and all of the participants can be present to see and hear the arguments of counsel and the testimony of witnesses. In mediations, the neutral has discussions with everybody, and then can separate the parties into different private rooms so their discussions cannot be heard by the other participants. If anyone enters that room, there’s a chime that goes off to alert people. The mediator can talk privately with one party and their counsel and the other side cannot hear what is being said. NAM has an incredible IT department and technical personnel on standby, just in case anyone needs assistance or has technical issues that need to be addressed.

I recently attended a continuing legal education program given by one of NAM’s prominent neutrals, who discussed NAM’s history of offering videoconferencing ability and how NAM was able to seamlessly transition to full-time virtual hearings once coronavirus shut everything down.

NAM has taken incredible steps to ensure that all of its hearings are totally secure, and it offers four video platforms – BlueJeans by Verizon, Skype, Webex by Cisco and Zoom – although the vast majority of clients select Zoom.

In fact, NAM’s customized videoconference technology 48

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members are not going to be able to be flown from all over

There are going to be issues regarding force majeure and contract claims, as well as a greater need for a virtual ADR Virtual ADR is particularly good for maritime matters, because in many cases we may be trying to get the testimony of a ship’s captain, who may be home on leave in Oslo, Norway, but he simply can go to a site, possibly even from his own home, and testify via Zoom. Virtual hearings are very common now and because maritime cases often involve various parties in different locations. Virtual ADR is an ideal way to bring parties together from anywhere in the world and conduct a mediation or arbitration.

What do you envision for arbitration and mediation in maritime disputes as we emerge from this pandemic?

The coronavirus has paralyzed courts. Until there is an effective vaccine, jury trials of civil and criminal cases will not be held. I just read an article about a federal judge who tried to conduct a jury trial in Arizona and had to use three separate courtrooms and have the courtrooms and restrooms cleaned between sessions. And there are real issues as to when jury trials will resume in New York and most other states. This has a great impact on the courts because in most federal courts, criminal trials take precedence over civil trials because of the right to a speedy trial and the fact that people’s liberties are being affected in many cases. So I anticipate more of a demand for mediation and arbitration across the board, including maritime matters, because the parties want a prompt resolution of their matters, instead of waiting for what could be years to get a trial date.

Also, there are going to be issues regarding force majeure and contract claims. as well as a greater need for a virtual ADR. Involved parties, such as ship passengers and crew

the world. There will be an increased reliance on videoconferencing for the hearings. Personally, I’m excited by it. It’s the future of ADR. I pray that we do get a vaccine and that the world returns to what we considered normal, but even when we do return, virtual ADR is still going to be part of our lives.

What are you most looking forward to about your new affiliation with NAM? I’m looking forward to resolving all types of maritime matters – using both mediation and arbitration. During mediation, the neutral puts aside the judge hat and works with the parties to bring them to a resolution – it’s all about working with the parties to get them to the number that’s going to resolve their matter. As an arbitrator, you are more like a judge, because you render a binding decision.

It’s a new challenge, a new chapter in my life, and I’m looking forward to it. I look forward to arbitrating and mediating with the foremost ADR company in the world, which is NAM. My life has been a maritime life. And now that I’m embarking on this new chapter, I look forward to using all of my maritime experience, both practical and legal, to resolve matters for parties who are involved

The Honorable John G. Ingram (Ret.) is a member of NAM’S (National Arbitration and Mediation) panel of neutrals and is available to arbitrate and mediate maritime matters throughout the United States. He is considered to be one of the nation’s foremost authorities in admiralty law and has a broad range of knowledge in a wide variety of maritime matter.

in maritime disputes.  CORPORATE COUNSEL BUSINESS JOURNAL

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Ops Future-Proofing the Legal Field  Ken Crutchfield, vice president and general manager of legal markets for Wolters Kluwer Legal & Regulatory U.S., discusses the results of the 2020 Wolters Kluwer Future Ready Lawyer Survey.

CCBJ: Please give us a brief overview of the 2020 Wolters Kluwer Future Ready Lawyer Survey. What was your goal in conducting this survey?

Ken Crutchfield: It was an independently conducted survey of 700 legal professionals across the United States and in nine European countries, and it was really done to assess the future readiness and resilience of the legal sector. The survey was conducted in January 2020, so it was pre-COVID, but the goal was to identify how well-prepared legal organizations are to drive and deliver higher performance in the future. It covered five areas: (1) top trends in readiness across the legal profession, (2) driving successful client

relationships, (3) changing legal departments, (4) changing law firms and (5) technology.

What were the key findings?

The two top-level findings were that technology is very important and that there are gaps – gaps in understanding, gaps in readiness, and gaps in terms of the ways that law firms and corporations look at the problems here. The survey was conducted before the crisis fully took hold, but it already revealed that legal professionals see technology as a key force in change in the profession, and it’s critical to improving relationships, performance and productivity.

The increasing importance of legal technology was the top trend for 76 percent of respondents across the U.S. and Europe – and that’s across law firms and corporate legal departments and business services firms.

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corporate legal departments and law firms, but also between them. The good news is that there is already work underway to close those gaps.

For law firms, the survey indicated that increasing client expectations create a sense of urgency. The survey found that many law firms are driven by client expectations. As 2020 began, we were already seeing an urgency to enhance services and capabilities. Client-focused firms recognize the importance of increasing productivity and efficiency and helping clients cope with the increased complexity.

They’re seeking approaches to foster innovation, strengthen areas of specialization and increased collaboration, all while ensuring greater cost efficiency, but there are still challenges as they navigate that transformation.

this understanding of what the problem is, but they’re not exactly able to resolve it yet Please talk specifically about the findings as they relate to client-firm relationships.

One thing that was very interesting is that what corporate legal departments and law firms view as important in the relationship and evaluating outside counsel are different. A law firm basically believes that price is the most important thing to their client. Second is understanding client needs, and third is specialization and using technology. Whereas corporate legal departments said that actually the ability to use technology to improve productivity, efficiency and collaboration and work processes was the most important,

What are the trends identified in the survey?

then specialization, and then understanding client needs

In terms of trends, less than one-third of the lawyers surveyed believe that their organization is very prepared to keep pace with the changes in the legal marketplace. So from a trending perspective, the perception of preparedness is relatively low. The difficulty of change management, and also leadership’s resistance to change, are really the biggest barriers to implementing change, both for corporate legal departments and law firms. Corporate legal departments rated that as being that the challenge 65 percent of the time, whereas at law firms it was a little lower at 53 percent.

seem to be looking at technology and productivity and

The increasing importance of legal technology was the top trend, at 76 percent, but only 28 percent of respondents indicated that their organization is actually prepared. So you see this kind of theme emerging, where legal professionals know what they need to do but they’re not exactly sure how to do it, or not completely prepared for it.

Meeting the changing client leadership expectations was reported as a trend with a high impact, but only 31 percent of the respondents said they’re ready. So again, there is 52

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and the ability to partner. So corporate legal departments outcomes more than just price.

What were the findings or trends related to corporate legal departments?

The top changes within legal departments we expect to see in the next three years are greater use of technology and improved productivity, greater collaboration and transparency, and an increased emphasis on innovation. That lines up as a important supporting factor for how you improve your productivity and how you adopt and use technology more. Innovation is really key.

The challenges for corporate legal departments today are reducing and controlling outside legal costs, managing the growing demands on the corporate legal department, and automating routine tasks and leveraging technology and work processes. 82 percent of corporate lawyers said that it’s important that the law firms they work with leverage

technology. 81 percent of corporate lawyers expect to ask the firms that they work with to describe the technology they use to be more productive in three years, and today 41 percent do that. So we’re going to see about double that in the next three years, as more and more corporate legal departments are going to be explicitly asking their outside counsel what technology they’re using.

What did the survey reveal about technological advancements?

We know that technology is going to be integral to the transformation of the legal field, and that was born out in the survey, that technology is the key driver of change. 82 percent of respondents predicted that greater use of technology will change how they deliver services, 63 percent

expect big data and predictive analytics to have a significant impact on the industry within three years, and 56 percent expect to increase spending on legal technology solutions over the next four years.

A couple of other points on that theme too are that organizational issues, including the lack of a technology strategy and leadership’s resistance to change and lack of change management processes, comprised the top category for resisting technology. So it seems to be less about the technology itself and more about how you adopt the technology and successfully apply it to a problem – that is where there’s a challenge right now.

The other point that is important to make here is that we classified firms as being technology leaders or not, and of the firms that are technology leaders, 62 percent of them

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creative in terms of how they work, what they can do externally, what they need to do in-house. And the same thing for outside counsel. They’re being asked to do more, particularly when there are all sorts of questions of precedent based upon the pandemic itself that are creating new sorts of issues, as well as the thousands of executive orders across the United States and beyond that have to be dealt with and addressed both in the near term and in the new normal.

Is there anything that you think we missed?

We recently co-sponsored a study with the Association of Corporate Counsel (ACC) called the 2020 Legal reported that their profitability increased over the prior year, whereas only 39 percent of firms that are transitioning

Operations Maturity Benchmarking Report as well, which took 15 discrete categories of maturity into account,

cost pressures that our corporate legal counterparts are

and two of the bottom quintile were change management and innovation management, which kind of speaks to the gap that we see in terms of the ability to know what to do versus how to get there in terms of the gaps that we were discussing. So that seems to corroborate, and it also ties back to the challenges with change management and leadership buy-in. I really think that’s because a lot of this is about people, process and technology. It’s not just a technology solution where you deploy someKen Crutchfield is the vice president thing and it magically and general manager of legal solves your problems. You markets for Wolters Kluwer Legal & Regulatory Legal & Regulatory U.S. have to think about how In his role he sets the vision and it affects people, realign strategic approach on developing digital products. Reach him at and manage the goals of Ken.Crutchfield@wolterskluwer.com. individuals, and actively

dealing with are very significant. So they’re having to be

manage that change. 

reported an increase in profitability. And of firms that are trailing in technology adoption, only 17 percent reported an increase in profitability. So that’s a pretty strong proof point that technology delivers results.

How do you think the pandemic will impact legal professionals in the long term?

The consensus here, in terms of reviewing afterward, talking with customers, etc., is that the pandemic is going to accelerate the trends that we’re seeing here. It’s going to put more pressure on. I think it was Plato that is attributed with saying “Necessity is the mother of invention,” and we’re in a very necessary world right now where we’ve got remote working environments. Corporations can’t go into the office, nor can law firms, nor can people meet with each other. So work is inherently being done digitally and remotely and through Zoom and Teams and other tech solutions. And the

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Innovative Techniques for Reducing Legal Spend in the Post-COVID-19 World ROB WILLIAMS McNEES WALLACE & NURICK The survey focused on three key areas that significantly

 Highlights from Exterro’s recent webcast about how legal departments are controlling budgets and minimizing spend – now and in the future.

impact legal spend: legal operations, e-discovery activities and data privacy processes.

When it comes to legal operations, the survey highlighted

The COVID-19 pandemic has caused broad shifts in the way people across all industries work, with far-reaching ramifications that will likely be felt for years to come. While the crisis remains ongoing in many parts of the country, it is important to consider – and begin to plan for – what the legal world will look like in the future, once the coronavirus is safely in the rearview mirror. With that in mind, leading e-discovery provider Exterro recently hosted a webcast entitled “Innovative Techniques for Reducing Legal Spend

the importance of having a comprehensive legal spend strategy. To that end, the survey also revealed that more and more companies continue to bring their legal work in-house, a trend that Connie Brenton said tends to makes companies more efficient and cost-effective overall: “Legal operations is relatively new, and it exists for the same reason that it exists across the company. To simplify the business, make processes more streamlined and stronger and provide more highly predictable results.

in the Post-COVID-19 World.”

The webcast panel consisted of Connie Brenton, senior director of legal operations at NetApp; David Yerich, director of e-discovery at UnitedHealth Group; and Tyler Thompson, associate at Bryan Cave LLP. It was hosted and moderated

by Mike Hamilton, senior managing director at Exterro.

It’s clear that whatever the ultimate outcome of the pandemic ends up being, it has already resulted in massive – sometimes catastrophic – losses for businesses across nearly all industries. As companies look to prevent more losses, now and in the future, it is imperative that in-house legal professionals think of innovative techniques to minimize legal spend. That’s why, several months ago, at the beginning of the COVID-19 crisis in March, the Blickstein Group, Corporate Counsel Business Journal and Exterro came together to create a survey that asked legal leaders across the country how their legal departments are controlling budgets and what techniques are most effective for reducing spend. The results of that survey helped frame the webcast discussion.

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Privacy and cybersecurity are also major concerns. For

Now’s the opportunity to go digital, because everybody has to go digital.

–CONNIE BRENTON

The reorganization of the industry and how legal services are delivered is a huge takeaway and continues to be a huge takeaway when I look at these benchmarking surveys.”

More specifically, the COVID-19 crisis presents an opportunity for companies to improve the digital aspects of their business. As Breton put it: “Now’s the opportunity to go digital, because everybody has to go digital. We didn’t bring our printers home. We were told on Friday, ‘OK, on Monday you’ll be working from home. You have to go digital.’ So that has opened the door for lots of opportunity.

But that also means you’re going to have to shift some of your funding to get different technology and redesign the processes. Because you can’t just overnight flip from hard copy to a digital solution and have it work.”

E-discovery is another important legal area where businesses are looking to save money, and once again, the key to minimizing spend is for the company to do more itself – especially large companies with the resources to do so. As David Yerich put it: “I realize there are many

most companies, compliance with new data privacy laws, like the California Consumer Privacy Act, is a top priority.

But not every company is there yet. Tyler Thompson was surprised to see that approximately 30 percent of survey respondents still didn’t see privacy as a top concern. “If you aren’t plugged into the discussion, you don’t realize how big of a deal this will be,” he said. “But it’s coming. It’s going to be a big driver of legal spend.” He also pointed out that if companies didn’t see this as a major concern before, COVID-19 will make it clear how important it is: “A lot of companies that now have employees working from home don’t have rigorous procedures around data security. We expect there to be a big increase in data breaches over the next six to 10 months.”

Whatever the particular issue happens to be – whether it’s legal ops, e-discovery, privacy and security, or anything else – it’s abundantly clear that the future will be defined by uncertainty. Brenton described our current situation and any potential post-COVID scenario as a VUCA world: volatile, uncertain, complex and ambiguous. “In that kind of world,” she said, “planning gets redesigned. At one point, we might have been designing [budgets] for three years to five years out. That’s no longer the case, because we don’t know what it’s going to look like next quarter.

organizations that can’t support that level of internal e-discovery operations, because they don’t have enough

As a general rule, we are all staying flexible and resilient and

litigation, or it’s the first time.” However, he said, when

making plans on a much shorter term than we have in the past."

possible, “Doing more yourself makes sense. It doesn’t mean you have to own the technology, but it does mean

The entire webcast, “Innovative Techniques for

you have to own the process. Understanding the process

Reducing Legal Spend in the Post-COVID-19 World,” can

is where I would begin.”

be seen here. 

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Getting Personal with Legal Innovation

me. It was a positive change that affected me personally.

 Brendan Miller, Legal Operations Advisor of Practice Innovation, an attorney and former Barnes & Thornburg partner, shares his thoughts on the importance of making innovation personal.

CCBJ: What should our general counsel and in-house counsel readers know and understand about the data their companies are producing and storing?

The continued maturation and investment in legal operations functions in corporate law departments and law firms provides a prime environment to positively influence and enable innovation within the practice of law and how legal services are delivered.

For example, I was not an early adopter of smartphones. As they came into the market, I was very comfortable with my cell phone, and I had built up adequate shorthand handwriting skills as used in the Personal Digital Assistants (PDAs) prominent at the time; for most anything else, I reasoned that my laptop met my needs. The thought of having to change all of my habits and “give up” all the features and functions I had adopted was not appealing. And, I just didn’t really think I wanted or needed my phone to be that “smart.”

Then, I actually tried a smartphone. And I was hooked.

So many personal and professional tasks were just made easier with the smartphone. Integrated web browsing, voice-to-text, a robust contacts system, notetaking, and an ever-expanding library of apps were literally at my fingertips to accomplish everything from ordering lunch to designing house improvements. A smartphone is still just a tool, though. I had autonomy to use it in whatever ways made best sense to manage and enhance my daily life.

What made the difference? What convinced me to jump on the smartphone train? It was personal. It made sense to

We’ve all heard that “all politics is local.” A similar lesson applies to legal innovation. Innovation, at its core, is about change. Lasting change – whether an individual habit or societal transformation – is necessarily, and can be intensely, personal; that is, it’s as local as you can get.

The topic of innovation itself is so broad. Defining innovation often ends up being a circular conversation. So often, innovation is in the eyes of the beholder – it is personal.

What may be innovative to me may not appear “innovative” to you because what I see as innovative enables me to positively change my status quo, my ecosphere, my circumstances. Your circumstances may be unique and may be affected by different innovations. Sometimes innovations are grand, moonshot ideas (e.g. to fundamentally transform the nature of how legal services are delivered); other times, innovations may be more targeted to improving narrow segments of the service delivery process (e.g. protocols for enhancing communication in a workflow relating to a particular legal matter).

The common thread through all is that innovation – change – only truly happens at the personal level, where we each make the decision to apply (or not) new ways to interact with people and utilize processes and tools/technology to accomplish envisioned goals.

So, how do we make innovation personal? Here are some things to consider:

People Always Come First The three commonly cited core elements of innovation are: people, process, and technology. These elements should be considered in the order just listed: people first. The most important stakeholders of any prospective legal innovation are the people affected. Process improvements CORPORATE COUNSEL BUSINESS JOURNAL

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must take into account the impact on the people involved and essential to success. Process and technology tools can enhance impact or outcomes, but only when applied to and with people. Technology tools are only as good as end users and the people affected by use of those tools.

Engage Stakeholders Early and Often When developing a new, innovative idea, it is important to involve key stakeholders from the outset. Define stakeholders broadly: prospective users, clients, project partners, communicators/marketing, resource providers, even prospective detractors, etc. The more these key stakeholders are engaged, the more likely they are to “see themselves” in the end process or product.

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Make it Real When trying to engage professional stakeholders regarding prospective innovation, make the idea tangible for them, not just theoretical. Give them real use cases that help them understand how the innovation can be applied in their daily work. The more the use cases are tailored to the particular individual or group, the better.

For lawyers and other legal professionals, does this change how they research or draft their briefs? Improve how they make a filing? Provide additional options for monitoring compliance obligations? Enhance how they review or draft a contract? Help them prepare for taking or defending a deposition? Make it easier for them to enter time in their diary/time tracking system? Enlist advocates within the particular practice area/department to champion the innovation with real examples.

fee arrangements be more viable with this innovation?

Making the best use of people, process, and technology to deliver legal services allows us, as a profession, to give our very best to our clients and business partners.

Will outcomes be more readily measurable? By explicitly helping colleagues and users to see the prospective value in an innovative process or product, we could provide them the encouragement and motivation – the “boost” – needed to reach escape velocity to overcome the weight of gravity pulling them back to their “old ways” of doing things.

When I made the transition last year to this new practice

Be Flexible Different people will adjust to change differently… and that is okay. (Remember how I was not an early smartphone adopter?) Some will adopt quickly while others will wait until the process/product is more widely in use. Don’t put all the burden on prospective users to figure out how to adopt the innovation into their practice or their professional workflow. Give them multiple, tangible ways to test the waters and start to incorporate the innovation into their work lives. Meet them where they are with flexible ideas for adoption they can implement. Wherever feasible, avoid making adoption an all or nothing proposition.

Provide a Boost When something new comes on the scene, many of us will have a tendency to cling to what we know. Our habits, our routines, the tools and processes we are most comfortable with all represent an inertia or gravity that holds us close to the things we already know. This dynamic is certainly present in the legal industry, which does not have a reputation for changing quickly. We need to demonstrate the value proposition to encourage adoption of innovations by new users. What’s in it for them? It is not enough to just tell users the new innovation will make them more efficient. Will this allow them to provide new or expanded service offerings to clients? Will beneficial alternative

innovation role, it was in large part because I’ve seen the potential for positive change in the legal industry. Making the best use of people, process, and technology to deliver legal services allows us, as a profession, to give our very best to our clients and business partners. The best legal tools and technology do not replace good lawyering; they enhance service delivery and enable good lawyers to deliver their best, in an ever-changing complex business culture.

Legal innovation is assuredly not always easy or quick. Not every effort will be a home run.

Some will miss the mark, but there are lessons to be learned regardless.

And, if we find ways to make innovation personal, the prospects for success – whether at small or great scale – demonstrably improve.

When it’s personal, there is greater buy-in and real opportunity for lasting positive impact for legal professionals and the

Brendan Miller is the legal operations advisor with Barnes & Thornburg. In this position he leads their practice innovation team and works closely with the firm’s attorneys and other professionals, matter teams and client professionals to achieve greater value and excellence in its partnerships. Reach him at brendan.miller@btlaw.com.

clients they serve.  CORPORATE COUNSEL BUSINESS JOURNAL

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