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Inside two litigators’ efforts to help steer the company toward a transparent, accountable culture in the face of public scrutiny P116

Nicole Bartow Director II, Litigation

Randall Haimovici Director, Litigation


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C ove r: G i l l i a n Fr y

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The consumer-electronics market as a whole has hit a plateau of late, due among other things to the maturity of the smartphone sector and the slow growth of the Internet of Things. However, between smart appliances, audio and video equipment, drones, fitness trackers, and the hundreds of other devices that come out every year, our hunger for high-tech gizmos and gadgets is unlikely to ever stop. Helping to carry the industry’s products to market are small armies of attorneys, tasked with everything from protection of products as intellectual property to the merging of well-known (and sometimes beloved) brands. Modern Counsel got the opportunity to speak to four in-house lawyers working to aid their companies in various consumer-electronics sectors, largely through unique approaches to collaboration . . .


Appear

Implement

DYSON P10

Jason L. Brown shares four leadership lessons learned from his involvement in community organizations LISC P15

Michael Levine’s legal work allows his organization to fund-raise for underserved communities

CAPITAL ONE P18

Polly Klane took a five-year break from professional work to live in South Korea, and she learned a lot

EBATES P31

Mia Chiu oversaw two recent deals to help her company continue to dominate the e-commerce industry

REALOGY HOLDINGS CORP. P28

Joan Pinaire’s on a mission to educate all her company’s employees about copyright law for real estate images

GATEGROUP P54

Kristy Balsanek is looking to make the business’s comprehensive training program engaging and dynamic

Ro g e r K i sby ( K l a n e)

Con te n t s

4


Lead

Evaluate

NETAPP P90

Elizabeth O’Callahan explains how her wide-ranging responsibilities help her keep a broad business outlook FIRSTENERGY P98

Leila Vespoli has helped steer the business through three mergers while taking on a variety of roles

ASURION P111

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Yanika Smith-Bartley has brought her passion for

Ha tc he r & Fe l l P hoto g ra p hy ( Smi t h- B a rt l ey) , Nat ha n L i n d s tro m (B ra nt ley)

diversity and inclusion everywhere she has worked

SEAONE HOLDINGS P154

Brian Brantley is helping protect his company’s radically new model for natural gas transportation

UBER P116

Nicole Bartow and Randall Haimovici are assisting with the company’s turn toward a new, transparent culture

SCHINDLER ELEVATOR CORPORATION P138

Tom Quinn explains a few of the measures he’s taken to minimize the risks unique to his company’s industry


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From the Editor The Careful Art of Course Correction Bad things happen. It’s just the way of the world, and there’s only so much anyone can do about it. How people distinguish themselves depends on what they do after bad things happen: how they pick themselves up, how they change their outlook, and how they move forward. The same is true for companies, and in this quarter’s issue of Modern Counsel, our cover story on Uber (p. 116) is a remarkable case study of a business pushing ahead in the face of adversity. If you’ll recall, a year and a half ago, the company was dealing with a lot of tough press related to former CEO Travis Kalanick, allegations of unchecked sexual harassment, and alleged misuse of its Greyball software. Nicole Bartow and Randall Haimovici, the coleaders of the company’s US litigation team, sat down with us to discuss how they rebuilt their team amid all the attention—and how they’re pushing ahead with that team as Uber makes moves toward a culture that emphasizes accountability and transparency. They’ve helped the company establish new internal reporting

7

protocols for employees with grievances, they worked to form centers for legal assistance to help

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immigrant drivers and their families in the wake of Trump’s travel ban and DACA decision, and more. It’s that kind of leadership and initiative that will help steer Uber’s reputation back in the right direction. Elsewhere in the issue, in our special feature section, “Protectors of Tech” (p. 58), we talk to four general counsel helping their companies navigate the changing landscape of consumer electronics through collaboration. One, Fred Owens of Harman (p. 60), a maker of high-end audio equipment, is finding new ways to work with outside counsel to better protect and manage the business’s more than 6,500 patents. Another, Scott Akamine of Incipio Group (p. 72), is working with colleagues to facilitate the expansion of the company into new areas of the mobile-device market through strategic acquisitions. Their work, and that of the other legal minds featured in this issue, will keep their companies pushing onward despite unforeseen obstacles or disruption in their respective industries. I hope you enjoy reading their stories.

GEOFF GEORGE, SENIOR EDITOR


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CAPITAL ONE 18

Polly Klane took a five-year break from professional work to live in South Korea, and she learned a lot


Appear beyond the work done in the office

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The stories and backstories that go

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Leadership Lessons from Outside the Office Jason L. Brown shares a few of the things he’s learned from his involvement in community organizations and applied to his work as general counsel at Dyson By Rand a l l C o l b u r n

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Jason L. Brown General Counsel of the Americas Dyson, Inc.


ason L. Brown’s a busy guy. In addition

J

to serving as general counsel of the Americas for Dyson, Inc., the Britishbased technology company most famous

Expertise Spotlight Dyson partner Kirkland & Ellis is one of the

for its innovative vacuum cleaners, Brown also lends his

world’s leading law firms, with more than

time to a number of different community organizations

2,000 lawyers practicing from 13 offices

and boards. It keeps him constantly moving, but he

in the United States, Europe, and Asia. Its

wouldn’t have it any other way. “The outlet of work

clients and experience cut across every

outside of work is critical, I think, for both your full

major industry and discipline. Clients

development and a balanced life,” he says. “You can pick

across the globe call upon Kirkland to

up and gain so much more to make you a better leader.”

handle their most important and complex

His numerous roles outside of Dyson include

corporate, litigation, intellectual property,

positions as a board member of Make-A-Wish Illinois, as

Kirkland’s principal goals are to

Charter Academy, and as a deacon at his church. He also

provide the highest-quality legal services

volunteers for Chicago’s Posse Foundation, a college-

available anywhere; to be an instrumental

access and youth leadership development program, and

part of each client’s success; and to

he has long served as a guiding force for ACC Chicago’s

recruit, retain, and advance the brightest

Diversity Summer Internship Program, which he helped

legal talent. The firm seeks long-term,

develop roughly fourteen years ago.

partnering relationships with clients in

His passion for the work stems from his ability to

order to provide the best total solution to

provide opportunities and help young women and men

the client’s legal needs. Kirkland stresses—

achieve their potential. “That’s what inspires me,” he says.

and clients rightfully expect—good results.

“That’s what gets me up and gets me inspired. Everything

To that end, the firm employs innovative,

I’m involved in touches on that in some way.”

pragmatic strategies and hard work

It also affects his work at Dyson, where he’s been able to integrate many of the lessons he’s learned through his charity work into his own leadership style. Here’s a look at a few of them. 1) UNDERSTAND EVERYONE IS DIFFERENT When Brown says this, he’s referring to not just a person’s racial or economic makeup nor their various beliefs; rather, he’s pointing to what that all amounts to

to ensure that its clients’ legal needs are met.

11 Mode rn Cou n s e l

a vice-chair and board member of Chicago’s Legal Prep

and restructuring matters.


within the individual. “I think it’s broader than just the issue of diversity,” he explains. “Everyone has a different background, a different story. Everyone's coming from a different perspective, and in each of the organizations for which I work, you have a goal—some are long-term goals, some are short-term goals, but you still have goals. It takes the collective coming together to achieve those goals.” Brown speaks of the “commonality” that brings disparate individuals together in pursuit of goals, and that commonality is something he searches for at Dyson as well. For him, it’s about finding the through line that connects all his team members. That doesn’t happen,

“The outlet of work outside of work is critical, I think, for both your full development and a balanced life. You can pick up and gain so much more to make you a better leader.”

however, unless he takes the time to really connect with

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“If you can find that common thread that really

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each member. drives people, you can be very successful,” he says. “I need to take account of each and every individual, to be purposeful in learning and understanding what everyone's story and background is.” Outside counsel that Brown works with have taken note of the effectiveness of his approach, too. “Jason

business, however, the challenge is convincing your

brings significant experience to every issue, yet he

team that it’s about more than compensation.

wants the views from all members of his team,” says

One of the ways Brown attempts to foster a culture of

Ross M. Weisman, a partner with Kirkland & Ellis LLP.

engagement at Dyson is by holding monthly meetings

“He values individuals with different backgrounds

that, each month, feature a different member of the

because he believes diversity, in all senses, provides the

team at the helm. “It’s more than just putting together

best results.”

an agenda,” he says. “They lead the meeting and, at the end, are responsible for what I call a ‘teachable moment,’

2) ENGAGE EVERYONE

where they teach everybody on the team something

A natural next step after developing an understanding

that is fundamentally important to them.”

of one’s team members is to learn how to engage them

It doesn’t have to be business related, either. Brown

in ways that make them feel like integral parts of an

says teachable moments have included tips on travel,

organization. That’s important in Brown’s charity work,

fitness, cooking, and other topics. “What I've found

where everyone involved wants to feel as if they’re

happens is that, when they're not the main person

making a difference, especially when they’re sacrificing

hosting, they're engaged because they want to see what

time with their own family in pursuit of a cause. In

everyone else is doing,” he says.


3) CELEBRATE THE SMALL STUFF Every Make-a-Wish Foundation board meeting, Brown

YEARS

explains, begins with a story about a wish that was recently

EMPLOYERS AND LAWYERS,

WORKING TOGETHER.

fulfilled. “We’ve got to talk about the money we’ve got to raise, the recruiting aspects, but we always start by hearing about a wish,” he says. “And that brings us all back to why we’re there. It’s good to have that perspective.” Brown has brought that concept of perspective to his team at Dyson by ensuring that both he and the team celebrate their small victories—not just birthdays and work anniversaries but also the incremental steps toward the company’s larger goals. “This way,” he says

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with a laugh, “we don’t get clouded in an overbearing sense of doom.” 4) HAVE A REALISTIC OUTLOOK When life’s inevitable storm clouds arrive, leaders need to ask themselves how such issues will impact the morale of their teams. They also need to know how best to spin life’s challenges in ways that are both authentic and positive. “If you're involved in charity work, especially if it's diversified, you see a lot of challenges,” Brown says, speaking of the ways in which leaders must make lemonade from lemons. “That, for me, has been a very powerful lesson that I continue to learn.” But, one can’t approach such challenges with a mask of positivity. Honesty plays an important part, too. “You have to share a realistic, authentic outlook with your team so that you can be that rock that they need

CHICAGO OFFICE 155 N. Wacker Drive Suite 4300 Chicago, IL 60606 312.558.1220

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you to be,” Brown says. “You take things in stride, but at the same time, you can take it in perspective. The sky isn’t always falling.” OGLETREE:

“Jason’s sophisticated, business-minded, innovative counsel at Dyson is amplified by his unparalleled leadership and legacy of service to diverse youth and the legal community. We congratulate Jason and his team on this well-deserved recognition.” —Gray I. Mateo-Harris, Senior Associate


A

“I don't know if you've ever read Siddhartha, by Hermann Hesse, but that concept of a leaf floating down the river of life, going where it’s supposed to go—I think I was always meant to be here.” So says Michael Levine of Local Initiatives Support Corporation (LISC), a nonprofit devoted to the revitalization of underserved areas through investment

Purpose-

and economic-development activities. Levine, who’s been with the organization for more than thirty years, describes it as being embedded in his identity. He grew up in a culture of social justice, after all. He recalls being in seventh grade and “walking back and forth in front of supermarkets,” boycotting grapes in support of the United Farm Workers. And when he wasn’t protesting, family that we were part of a bigger picture,” he says, “and that we had an obligation to help others.” When he went to law school, he intended to become a public-interest lawyer, but Levine says that community development “wasn’t really a field back then,” so he ended up trying litigation instead. “I was heavily influenced by To

Lawyer

Kill a Mockingbird,” he says with a laugh. He didn’t find that litigation was for him, so he moved into real estate law for a few years before a headhunter referred him to a law firm that represented LISC. After two years as outside counsel, Levine was brought into LISC as its general counsel. Now, more than three decades later, the company has grown from $5 million in investment per year to more than $1 billion, and Levine’s legal team has blossomed to encompass a dozen people, who do 80 percent of LISC’s legal work in-house. They’re able to do this—and

By Ra n d a l l C o l b u r n

contribute significantly to LISC’s funding goals while protecting its nonprofit status—despite the fact that

With a passion for social causes, Michael Levine is helping Local Initiatives Support Corporation with myriad legal issues, allowing it to raise money for underserved communities while preserving its nonprofit status

the organization operates on a decentralized structure, with thirty-one field offices across the country, each one working intimately with the community it serves. Maintaining close community ties is actually a core thrust for LISC. “The big difference between LISC and

15 Mode rn Cou n s e l

Driven

he was volunteering. “It was always thought of in our


organizations that do similar work is our emphasis on the this is through its network of nearly eighty Financial word local,” Levine says. “We’re on the ground. What we do

Opportunity Centers. At these centers, low- and

is work with people in underserved neighborhoods, both

moderate-income people can take advantage of

urban and rural, and ask them what they need to make the

credit-counseling services, basic job-skills training,

neighborhood a place they want to stay.”

and job-placement opportunities. “Neighborhood

After those conversations, which take the form of revitalization is a huge part of what we do,” Levine says, meetings, focus groups, and surveys, LISC partners with “but I think changing the economic prospects of families nonprofit and for-profit organizations—as well as schools is going to have the longest-lasting impact.” and local businesses—that are “sensitive to the needs of

LISC’s growth and ambition—recent developments

the neighborhood.” “This way,” Levine says, “we can

have included partnerships with ESPN, the NFL, and

fund the revitalization of neighborhoods in a way that’s Facebook—mean that Levine’s work is as complex as it consistent with local values and priorities.”

is satisfying. LISC’s decentralized structure, for example,

In addition to investing capital and providing pushes him to navigate the intricacies of different states’ technical assistance to help improve each community’s

laws and human resources protocols. And then there’s

infrastructure, LISC works to bolster and support the breadth of LISC’s services, which has Levine routinely the people within the communities. One way it does oscillating between issues of liability, insurance, finance,

Michael Levine, General Counsel, Local Initiatives Support Corporation

Ona j e S cott

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and many other arms of the law while still protecting the company’s tax-exempt status. One of Levine’s ongoing efforts, which has contributed a great deal to the company’s overall impact, is related to the Low Income Housing Tax Credit program introduced in the Tax Reform Act of 1986. “My role then was to help figure out how to create and structure a legal entity that would allow us to syndicate the credit and not endanger our fund-raising and charitable activities,” he says. Since solving that problem, Levine adds, the core of his job has entailed “creating arms of LISC that bring this huge amount of capital into underserved neighborhoods while still operating as a tax-exempt organization.” It’s an involved endeavor, but the work is worth it. “I feel like I’ve achieved why I went to law school—and also that I’ve honored the values of my family,” Levine says. “I will also say that I love the fact that I’m good at it. The job substance perspective but also from the knowledge that I’m utilizing my abilities.”

MICHAEL LEVINE

EVP and General Counsel at Local Initiatives Support Corporation (LISC), for his exceptional work in supporting the revitalization of struggling communities across the country to create neighborhoods where people can thrive.

That said, Levine does note that his personal investment can take an emotional toll. “There’s dark moments, when I see what's going on in our country and that people just don't understand or seem to care about how hard it is for most Americans to get through the day economically,” he says. “Part of the challenge of the job is to not lose hope.” That’s when he thinks of all the community groups he’s encountered through his work at LISC—the residents, businesses, and churches that have planted their feet in impoverished neighborhoods and remained determined to restore them. “All my job is, is to help them achieve their dreams,” Levine says. [Editor’s note: At press time, Michael Levine had retired from his role at LISC. He continues to work in community development via nonprofit board memberships, some volunteer work, and consulting.]

www.morganlewis.com © 2017 Morgan, Lewis & Bockius LLP

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gives me a tremendous feeling of accomplishment from a

We congratulate


An Enriching Diversion Capital One’s Polly Klane, who took five years off to live with her family in South Korea, explains the values of taking the career road less traveled By W il l G ra n t

everal years ago, Polly Klane got on a plane to South Korea at the time, had to embrace a change that would be allA p p e ar

18

S

with a one-year-old and no clear plans of continuing her encompassing. “I was uprooting my entire life,” she says, professional career. The current senior vice president

“and taking it to a far-away place that I’d never set foot

and chief counsel of governance, commercial bank, and

in until I got on a plane to go move there.”

enterprise services for Capital One was, at the time, preparing to join her husband in Asia—leaving the city where she had spent the past decade, as

LESSONS IN A NEW LANGUAGE

well as the bulk of her professional life.

Klane gave birth to her second child shortly after

It was an extraordinary risk, and one that perfectly encapsulates Klane’s

arriving in South Korea. “Raising a young family far

nontraditional career path. In taking the chance and approaching the new away from home, in an unfamiliar environment with challenge head-on, as she had done with other challenges before, Klane was

an unfamiliar culture and language, really requires

able to use the move to find new opportunities to keep her legal skills sharp, connecting with people quickly and really embracing and it also renewed her appreciation for Capital One’s embrace of diverse

and learning from the diverse perspectives and

experience, which helped lead to her eventual return to the company.

traditions of the people around you,” she says. Klane is, by nature, something of an introvert.

A LEAP OF FAITH

Networking had always been something she tended to

South Korea may have been unfamiliar to Klane when she decided to make

avoid, but the sheer necessity of personal interaction

the move, but challenging circumstances were not. Prior to her move to South helped her hone the skill in a way she might never have Korea, she had undertaken a demanding roll at Fannie Mae during the global

under more ordinary circumstances. Her connections

financial crisis of the late 2000s. “The experience helped me develop my ability

eventually provided her with opportunities to both

to problem solve in some high stakes and difficult circumstances,” Klane says. teach and consult during her time in South Korea. “A lot of confidence building can come from an experience like that.”

Also, Klane says, the unfamiliar culture taught her

But, when her husband received an exciting job offer in South Korea, she the value of remaining open to new possibilities. She and her family made the decision to move. Klane, who was a new mother spent a lot of time watching parents carry their young


children on their backs, for instance, which she had

path, but she says job seekers should still wear their

rarely seen in Western culture; she decided to try it broad experiences proudly. “Don’t hide the diversity and discovered it was better. That there might be more

of experience you’ve had; lean into it,” she says.

than one right way to look at or approach something,

“That isn’t everyone’s cup of tea, but you don’t need a

and that a different approach can lead to an even hundred jobs; you need one.” And the employer who better place, are concepts she has since carried into gives you that one, she says, will truly value what you her professional life. “It helps me to identify ideas and talent that might be amazing but not obvious, because

have to offer. Klane was excited to return to her former employer

its coming at you from a slightly different angle than for many reasons. “My story is really mostly about you would have expected,” she says.

how Capital One views talent,” Klane says. “I was really fortunate to find not only an employer willing

THE NONLINEAR PATH

to give me a chance to succeed after the time I spent

Klane admits that when one is reentering the job

in Korea raising my children, but also colleagues and

market, many prospective employers may not

bosses who were open to—and even welcomed—my

immediately understand the benefits of the nonlinear

unique background.”

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Ro g e r K i sby

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Polly Klane, SVP and Chief Counsel of Governance, Commercial Bank, and Enterprise Services, Capital One


Klane believes Capital One’s focus on diversity fosters a unique corporate environment where myriad Expertise Spotlight

perspectives are valued, not merely tolerated. Klane sees it as essential not only to her company’s culture but to

Capital One partner Debevoise & Plimpton’s

its success and the service it provides to its customers.

White Collar and Regulatory Defense Group

“What that focus comes back to,” she says, “is a real in-

provides seasoned counsel to clients facing

the-DNA desire to look outward and really try to meet

high-profile, complex challenges and crises. The

the world where it’s going instead of asking the world

group’s depth of experience and global reach

to come to you.”

enables it to counsel an international client base

Helen V. Cantwell, of Capital One partner Debevoise

on how to swiftly identify the root of any problem

& Plimpton LLP, agrees with this assessment and can

and effectively anticipate and respond to poten-

see how Capital One would value Klane’s road-less-

tial issues.

traveled approach. “No matter the path, career success ultimately depends on strong strategic thinking and

criminal prosecutions and civil enforcement ac-

legal judgment,” she says. “The Capital One culture

tions, securities-related litigation, conducting

embraces this.”

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internal investigations, negotiating complex glob-

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The team’s expertise includes defending against

al settlements, and facilitating cooperation with

PAYING IT FORWARD

government regulators. The team also routinely

As a veteran of the nontraditional path, Klane says,

counsels clients regarding preventive measures,

she often winds up mentoring those who eschew

compliance programs, and the collateral conse-

convention. Her advice is typically threefold: First, she

quences of criminal proceedings.

says, “if you decide or need to spend time away from

Respected by enforcement agencies, the

a traditional professional environment, don’t forget

group’s lawyers are renowned for their investi-

to nurture your existing professional community.”

gative skill, seasoned judgment, and consistently

Second, find some way to maintain your skill set and

clear and persuasive presentation of the facts.

stay professionally active—through volunteer work,

This makes the team a powerful advocate for

for example. Third, returning to work will probably

clients and leads to considerable success in mat-

be much harder than when you first entered the job

ters involving investigations by the SEC, the US

market out of college, so don’t go back unmotivated. ‘I

Department of Justice, the New York Attorney

think sometimes people aren’t truly ready and are a little

General, the UK Serious Fraud Office, and other

ambivalent,” Klane says. “That’s not a process to start

authorities around the world.

with ambivalence. Be completely ready.”

The group combines this unique understanding

The benefits of returning to work continue to mount

of the enforcement landscape with a deep ap-

for Klane, whose career overall makes a strong case for

preciation for client business issues. Debevoise’s

anyone considering the road less traveled. “I’ve been very

practice tailors its solutions, placing an empha-

fortunate here at Capital One,” she says. “I’ve had the

sis on flexibility and scaling to match the size of

opportunity to have a role that plays to my strengths and

any challenge.

includes diverse and interesting responsibilities.”


Congratulations to Polly Klane of Capital One for being featured in Modern Counsel Debevoise & Plimpton LLP is a premier law firm with marketleading practices, a global perspective and strong New York roots. We deliver effective solutions to our clients’ most important legal challenges, applying clear commercial judgment and a distinctively collaborative approach.

New York | Washington, D.C. | London | Paris | Frankfurt Moscow | Hong Kong | Shanghai | Tokyo


Comprehensive Compliance Kevin Gleason’s background in law and business, his implementation of new technologies, and his formation of a special committee have helped him inspire organization-wide ownership of regulatory processes at Voya By Step h a n i e Ze i l e n g a

I mp l e me n t

22

hen Kevin Gleason accepted his current

W

made him uniquely suited to succeed in compliance.

position as senior vice president and “Legal expertise is helpful in an environment where chief compliance officer with then ING

lots of new rules and regulations are being proposed

Investment Management in 2012, he and implemented,” he says, “but it’s also essential to swapped out more than his business card. After nearly understand the operational aspect of the business, how a decade as a lawyer at Northwestern Mutual, Gleason

trading is conducted, how production distribution

was shifting focus from law to compliance, uprooting

works, and how relationships are structured.” Gleason

from the Midwest to make a new home in Phoenix, believes his diverse work experience with four Fortune and entering the fast-paced environment of a firm with 500 diversified financial-services organizations has its eyes set on rapid growth as it prepared to separate

benefited him in this regard.

from its European parent and become an independent,

Chief among the challenges now facing Gleason

publicly traded company in the US. Then, only a year

as CCO are staying ahead of the evolving regulatory

after Gleason came aboard, ING US held its initial environment and helping his company remain public offering and rebranded itself as Voya Financial.

profitable in the current landscape, where passive

Prior to making his switch, Gleason had earned an

investing through indices and exchange-traded funds

MBA from the University of Chicago, and accepting has come to dominate sales. In order to address these the new job was just an extension of his simple, long- challenges, he and his team are seeking to be more held philosophy for moving ahead. “I believe you’ve

efficient and more customer friendly through the

got to make a plan, get educated, engage with industry use of technology and uniform internal compliance associations, and take a risk,” he says. His background practices.


23

a technology solution that automates oversight of subadvisers and service providers, centralizes

Kevin Gleason SVP, Voya Investment Management Chief Compliance Officer, Voya Family of Funds

compliance-policy and procedural changes, and manages the team’s workflow. This system will evolve into one that will maintain compliance risk assessments and help track regulatory changes. Compliance is inherently a complex endeavor, but the complexity has deepened as Voya has expanded internationally, adding more rules and regulations to the mix. The key, Gleason says, is to standardize processes wherever it makes sense, particularly repeatable actions performed across the business. This has been part of his work implementing technology,

He a th e r F l e cke ns te i n

enhancing compliance policies and procedures, and developing a mutual-fund compliance committee, which Gleason formed in 2015. The committee includes representatives from across Voya’s business units, including operations, legal, compliance, finance, and fund accounting, and it also contains individuals from

“My desire was to engage the businesspeople in making the regulatory model so that they felt they owned the compliance policies and procedures and thus had the responsibility for honoring them.”

Mode rn Cou n s e l

Recently, for instance, they have onboarded


the risk, audit, distribution, and technology divisions. Under Gleason’s leadership, the committee has overseen the enhancement of the entire compliance process. It’s updated the company’s risk matrix, developed acknowledgement and reporting forms, changed how the company conducts oversight and supervision of third parties, updated a due-diligence questionnaire, and changed the way compliance issues are reported to the board. The compliance committee also serves as an effective forum for escalating, addressing, and documenting compliance issues, and now, Gleason says, people are more comfortable picking up the phone and cluing the compliance team in on issues. “These changes help mitigate risk and represented a more effective way of communicating internally with the executive management team and I mp l e me n t

24

the board,” Gleason says. Gleason believes successful compliance starts with an organization’s culture. “Stewardship and service are core values at Voya, and when those are priorities,

Gleason finds that “these groups help keep me current

you’ll build long-lasting relationships,” he says. The

and plugged into industry issues.”

company’s recent accolades back his approach up: In

Overall, the overhaul of Voya’s compliance

2017, among other recognitions, it was included on operations couldn’t have been accomplished without Ethisphere Institute’s list of the World’s Most Ethical the company’s foundation of transparency and trust. Companies and on Pensions & Investments’ list of Best

Bringing together a broad group of business owners to

Places to Work in Money Management. And, it also

share their unique challenges and goals led to a greater

received a perfect score of 100 percent on the Human

understanding and appreciation of compliance’s role in

Rights Campaign’s 2018 Corporate Equality Index.

protecting the business and its clients. “When you’re

Gleason also believes that being engaged in industry

sharing information with people, they’re more likely

organizations, associations, and events has helped him

to share it with you,” Gleason says. “My desire was to

develop a network of compliance professionals whom

engage the businesspeople in making the regulatory

he can turn to and consult with on regulatory- and

model so that they felt they owned the compliance

compliance-related issues. Gleason is a board member

policies and procedures and thus had the responsibility

and secretary at the National Society of Compliance

for honoring them.”

Professionals and chairs its governance committee. He is also actively involved with the Investment Company Institute, the Securities Industry and Financial Markets Association, and the Mutual Fund Directors Forum.

DECHERT LLP:

“Kevin’s ability to sweat the details but also see the big picture has helped him win the confidence of management and the funds’ board.” —Jeffrey S. Puretz, Partner


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Four in-house counsel in consumer electronics discuss how they apply


59

the building blocks of collaboration to their work


60

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Harman’s Fred Owens has boosted the company’s communication with external legal partners to better manage its more than 6,500 patents for high-end stereo and audio equipment By David Levine

When you’re in charge of protecting

His engineering background undoubtedly had something to

more than 6,500 patent assets, you’re do with that. “I really like the passion that inventors bring to the going to need some help. For Fred table when talking about their new ideas,” he says. “It’s their baby, Owens, senior director of global

and it’s nice to see that passion about what they are creating and

intellectual property and patents for

its ability to improve society for the greater good.” He also was

Harman, the Novi, Michigan-based drawn to the science behind it. “I always liked science and math subsidiary of Samsung Electronics that makes connected car

as a kid,” he says. “I played football and ran track at the University

systems, high-end audio and visual products, and enterprise

of Wisconsin, so part of me always tends toward teams. So, with

automation solutions, much of that help comes in the form of

that tinkerer’s knowledge of how things work, those two things

outside counsel. Owens has made it a priority to foster greater are what you need for patent law.” It also helps to have a sense of collaboration between his in-house team and outside attorneys

discovery. “The exposure to new technology excites me,” he says.

to protect the assets of such well-known brands as Mark “In some areas of law, you work on the same thing every day. I like Levinson, JBL, Harman Kardon, Revel, AKG, Infinity, Logic 7, the constant variety of new technology.” and others.

When he joined Harman, it was a much smaller company. It

Owens joined Harman about five years ago. Originally an has since grown from about nine thousand employees to just engineer, he worked at Ford Motor Company for about ten

under thirty thousand, he says, thanks to about a dozen new

years, and along the way he became a Six Sigma Black Belt and acquisitions his team has been a critical part of during his time eventually earned a law degree from the University of Detroit there. That work helped lead to Samsung’s acquisition of Harman (now known as the University of Detroit Mercy). He thought in 2017 for $8 billion. he would focus on environmental law for Ford. “I got into the

Harman works in four distinct business areas. The first

emissions regulations side of the business,” he says. “But then I Owens calls the “connected car” space. “It’s about how people started investigating the IP aspects of it.”

interface with their cars, with their phones and apps, navigation,


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driving-assistance technology, and music,” he says. Harman's auto unit sells branded audio systems through several carmakers, including Toyota, Lexus, and BMW. About thirty million vehicles are equipped with Harman technology. “We are one of the largest suppliers of that technology in the world,” Owens says. Its second area, high-end sound technology, is overseen by the lifestyle audio division, known best for its Harman Kardon brand. The division also focuses on car audio and peripherals such as headphones, portable speakers, and state-of-the-art surround-sound system technology. Its third area is overseen by the professional unit, which makes audio equipment such as monitors, amplifiers, microphones, and mixing consoles for recording studios, cinemas, touring performers, and others. “We provide the sound, lighting, and controls for big arenas like Madison Square Garden and the Boston Convention Center—and for smaller businesses,” Owens says. “One of our brands is JBL Pro, and if you are at Walt Disney World, you will see JBL speakers all over the place.” The fourth business area is engineering services, including cloud-based software as service, which Harman provides to companies such as Amazon, Jaguar, and Microsoft. With such a diverse range of businesses within the company’s purview, Owens and his team have a large plate of IP assets to protect. “My task is to encourage innovation, so I want to support our businesses by capturing that innovation,” he says. To do that, upon his arrival at Harman, he helped implement a new global IP asset management system. “We needed to create relationships with outside counsel, to better interface with Harman and between themselves, all within our own system, which is pretty cool,” he says. “We wanted to create that community between ourselves, outside counsel, and our internal clients inside the business.” In the typical model, he says, an internal client asks for something, then the legal department hires outside counsel, sends a file, and helps bring it home at a reasonable cost. “In today’s world, the speed of change is such that it introduces a lot of complexity, and one problem with the old model is that I would tell the outside attorney what to do and he would try to do it,” Owens says. “We tried to make outside counsel more like

P r ote c to r s of Te ch


M o dern Co u ns el

Tra v i s G o o d i n

Senior Director of Global IP & Patents

Harman

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Harman’s Key Numbers

30,000

professionals worldwide

15,000 engineers

6,529

patents and patents pending

16+

luxury brands

80

percentage of luxury cars with Harman systems

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partners with us. We give them more access and the opportunity to work with our clients so that they are able, on their own, to understand and serve Harman best without having to be told what to do. They are empowered and understand our business enough to deliver quality patent applications and counseling without asking permission to do what’s best for Harman.” Harman’s outside counsel, including Martin J. Sultana, shareholder and cochair of the autonomous vehicle practice group for Brooks Kushman, appreciate the company’s efforts to keep them more closely involved. “Fred is a true team player, and we thoroughly enjoy being part of his team,” Sultana says. “Fred’s collaborative approach with outside counsel allows us to provide work product that is aligned with Harman’s business initiatives.” This new model helps keep Owens’s internal team of eleven lean. “With over 6,500 patents globally, eleven is too small a team to manage that many assets,” he says. He uses outside counsel mainly to file patent applications, and his internal team primarily focuses on understanding the business and leveraging Harman’s portfolio. “Maintaining a portfolio is very expensive,” Owens says. “Patents are not cheap; you can spend over $200,000 per patent family during its lifetime. So, you need to protect the assets that are most important to you and look for opportunities to trim less important ones away.” That

Expertise Spotlight Brooks Kushman P.C. is a leading intellectual

Brooks Kushman counts a number of Fortune 100

property (IP) and technology law firm with offices

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its clients. The firm is also recognized by leading

Harman nationally and internationally with respect

legal publications and ranking organizations,

to protection, enforcement, and monetization of IP,

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including patents, trademarks, copyrights, and trade

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secrets. The firm has more than ninety intellectual

Asset Management, Managing Intellectual Property,

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M o dern Co u ns el

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Blake Nickles details a few of the ways he’s enhanced the IP approach of electronics manufacturer Hubbell, which has devoted more resources to patent best practices as it’s grown and pushed into more industries

By Galeen Beebe

At the beginning of his career, Blake

“The more resources we have internally, the more we can

Nickles turned down an offer for an in-

handle internally,” Nickles says. “The business has certainly given

house position and instead went to work

us a lot more resources in the IP department, so we’re doing what

for a large general practice firm. “I didn’t

we can to return the most value back to the business.” Here’s a

want to get too focused on one topic,” he

look at just a few of the ways they’ve been able to do so.

says. “I wanted a broader experience in intellectual property.”

1) Innovating Together

The move ended up paying off, and now Nickles is using Semiannually, Nickles brings together a group of engineers, his breadth of experience to continue reimagining the IP marketers, and businesspeople from around Hubbell to function at Hubbell Incorporated, a diversified electronics brainstorm long-term ideas in meetings called innovation manufacturer, as senior patent counsel for the company. In

sessions. These sessions combine team members from two

recent years, Hubbell’s senior vice president and general or more business groups to allow for ideas to cross-pollinate counsel, An-Ping Hsieh, has devoted more resources to the IP throughout the organization. “We have a lot of smart people in group and brought more of the IP function in-house, allowing the company that are busy with day-to-day projects, and this Nickles and chief IP counsel George Macdonald to spearhead provides a temporary break so that they can think of long-term new initiatives with the goal of streamlining IP processes and maximizing both the short- and long-term success of the company’s products.

moon-shot ideas and see what sticks,” Nickles says. Innovation sessions have led to new IP filings, licensing opportunities, and product development. To streamline the filing


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process, Nickles often invites outside counsel to the sessions as well. “Having outside counsel present for these sessions gives them a much better feel for what the idea is and where we are trying to go as a business,” he says. “It also cuts out some of the red tape of invention disclosure filing and streamlines the interview process.” 2) Reaching Out to Clients Proactively

Nickles’s goal is to protect the company’s most valuable resources. To do this, he has to understand Hubbell’s product G re g K i ni r y/ Hu b b e l l L i gh ti n g, I n c .

lines, its competitive landscape, and the risk tolerance level of each of its business arms. “It’s not a one-size-fits-all approach,” he says. “Every situation is different, especially given our diverse landscape in the business, so we try to work closely with each [arm] to understand where their tolerance is.” Nickles also meets regularly with leaders from different business arms to find portfolio-management solutions that fit their legal and business requirements. “Whether it’s individual


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P r ote c to r s of Te ch

“The more resources we have internally, the more we can handle internally.”

We provide a full range of quality services that build and protect our clients’ global IP portfolios.

ad hoc product launches or coordinated efforts at trade shows, we want to make sure we’re in the loop and that we’re in the front of people’s minds whenever issues come up,” he says. “We’re not a department of no. We’re just trying to assess risk and find something that’s acceptable for the company and move forward from there.” 3) Streamlining Departmental Communication

Having effective communication within the legal department is

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as important as communicating with business leaders. The IP group relies heavily on such internal collaboration to anticipate


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and solve issues, and as Hubbell continues to expand and add new products, Nickles and his colleagues are defining new communication pathways to ensure effective teamwork within the entire legal department. “As our company has grown and as our general counsel has accordingly grown our legal department, we want to make sure we’re more collaborative than ever,” Nickles says. “[That means] understanding the internal communication within the legal department so that we can present one Hubbell legal solution to the clients.” Communication within the legal department is a twoway street: the vice presidents of legal work with their own

CUTTING-EDGE PRACTICE, TRADITIONAL VALUES

groups and communicate issues to the IP team, and the IP team communicates non-IP-specific issues to the relevant vice president of legal. “Just because it’s outside of the IP swim lane doesn’t mean we turn a blind eye,” Nickles says. “We just raise awareness and call in the right colleague to help.” 4) Strategizing for the Long Term

Without a long-term plan, patent costs can increase exponentially. Nickles is developing holistic portfolio-review strategies to make sure Hubbell controls its costs while protecting the right technologies. “We’re continually trying to refine it from an ad hoc, one-off decision-making process to a more coordinated, group-level review,” he says. Nickles’s approach to the patent portfolio of each of Hubbell’s business groups depends on each group’s industry landscape. The lighting industry, for instance, has undergone a significant transformation with the advancement of LEDs and control technology, so for Hubbell Lighting, Nickles files

We are problem solvers driven, purposeful legal strategists. We focus in on your concerns, and don’t waste time or money. We treat IP as integral to your business’ success, and strive to turn a challenge to advantage. Whether you need a quick response to an acute concern or a long-term plan to build your value proposition, we can help. Our modern, efficient business platform lets us customize our services to your business needs. Relationships matter to us; we keep you engaged at every stage. Our values are traditional, even while our practice is cutting-edge.

patents that are broad enough to simultaneously protect its new inventions and ensure a scope of protection over the next generation of products to come. But, his most valuable tools are the periodic reviews he completes with business leaders. “Technology evolves so fast that maybe something considered efficient today is no longer efficient tomorrow,” he says. “That’s why it’s so important to make sure we have an open line of communication.”

www.wissingmiller.com


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After quietly gaining traction for more than a decade, the Incipio Group has begun expanding in the world of mobile-device accessories, largely thanks to key deals and acquisitions facilitated by Scott Akamine

By Zach Baliva

With more than five hundred employees, Incase a 160,000-square-foot headquarters, seven Incipio’s first product was a protective case for Palm global offices, products in more than fifty Computing’s groundbreaking 1997 personal digital assistant, thousand stores, and a retail relationship

the PalmPilot. For the next decade, Incipio carved out a niche

with Apple, the Incipio Group may be one for itself as CEO Andy Fathollahi focused on making quality of the biggest companies you’ve never heard

mobile-device accessories in relative obscurity. Fathollahi’s

of. What started in a SoCal garage is now a powerhouse firm that

philosophy was simple: he wanted to appeal to the most

delivers the best mobile-device accessories to customers worldwide. consumers by providing simple protective cases and accessories Scott Akamine is Incipio’s general counsel and secretary, and in standard colors such as black and gray. since joining the company in 2015, he’s helped orchestrate several

Fast-forward to 2015, when rising star Scott Akamine was

important deals and acquisitions. Together they’ve transformed a looking for his next professional adventure after starting as a once unknown single company into the group it is today, a global corporate associate with Latham & Watkins and going in-house technology-solutions platform with a diverse portfolio of owned

with top client Allergan. At that point, Incipio was simply making

and licensed brands. Here, Akamine shares the details of three

new cases for every new cell phone. Akamine met with company

notable deals—and lessons learned from one that got away—that leaders but wasn’t easily impressed—until he heard their vision. have helped position the company for ongoing success in a fastpaced, consolidating, and competitive industry.

Fathollahi’s company had acquired a lifestyle brand, TAVIK, in 2012; a Bluetooth speaker company, Braven, in 2013; and an


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iPad keyboard case maker, ClamCase, in 2015. “Incipio was about to evolve,” Akamine says. “The market for tech accessories was consolidating, and things were at an inflection point. I could see a company on the verge of something special, and I wanted to be a part of enabling that.” Akamine joined Incipio in June 2015, when many innovative smaller companies were starting to sell to a few key major players such as Incipio. In many ways, it was the start of a competitive dash to snatch up as many targets as possible. Akamine went right to work courting a prized and respected company, Incase, which made premium accessories for Apple users. As a point of differentiation from Incipio, Incase had successful, focused branding strategies to build a loyal following. Incipio’s leaders knew they could onboard Incase and manufacture its products in existing Incipio facilities, pushing out new products through existing partnerships with big-box retailers and US wireless carriers. Incase’s private-equity owners made it clear they wanted a deal done quickly. Akamine received a term sheet and closed the deal just twenty-nine days later. He accomplished the task in part by partnering with his former employer, Latham & Watkins, as transactional counsel. The move allowed Akamine to use documents he was already familiar with while personally handling a lot of drafting and negotiation. “There was no gap between what was being negotiated and the advice I took to my CEO,” he says. The Incase deal brought Incipio new customers and a heritage of curating design solutions that address the lifestyles of those who create on the Apple platform. With Incase in hand, Incipio was well on its way to becoming the one-stop shop for wireless accessories. Goode Partners

In 2016, Incipio announced a minority equity investment from Goode Partners LLC. Akamine negotiated the deal. It fell on understand the ins and outs of the partnership. Fathollahi, who had bootstrapped the company for nearly twenty years without ever parting with equity, leaned on Akamine as he grappled with board-meeting structures and corporate governance.

Cl a yto n Ad d i s o n

him not only to set the terms on paper but to help his CEO


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The investment validated Incipio’s strategy, enabled future acquisitions, and accelerated Fathollahi’s growth plan. Skullcandy

Deals were signed and press releases went out, but after months of negotiations, Incipio’s deal to acquire Skullcandy ultimately evaporated in 2016. “We’re still disappointed that we didn’t get the deal done, but in the end, we are happy with our decision and believe that we executed our game plan correctly,” Akamine says. So, what happened? Simply put, Incipio was outbid by a private-equity company—twice. The other company’s final topping offer beat Incipio’s by nearly $20 million. “Skullcandy’s headphones and other products were a logical extension for us, and their gaming division was attractive, but we have to be disciplined,” Akamine explains. “Auction winners often fear overpaying, and our financial model could not justify the price.” Although Incipio walked away, the bidding war opened its leaders’ eyes to new possibilities. “We were trying to extract certain synergies,” Akamine says. “Losing the deal affirmed that we can expand into new areas and create products for items that are already in stores, on the shelves right next to our existing products.” Griffin Technology

Akamine pulled double duty during the Skullcandy negotiations to finalize a deal to acquire Griffin Technology. Griffin, known for innovations such as the iTrip FM transmitter, has reinforced Incipio’s product-development and manufacturing efforts and brought with it yet another loyal customer base. Because Griffin already had a complementary product set and worked with a list of familiar vendors, Akamine was able to

Baker McKenzie congratulates

Scott Akamine,

General Counsel at Incipio, on his continued success. It has been a pleasure serving as Incipio’s counsel.


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Congratulations to Scott Akamine on your recognition in Modern Counsel.

“Incipio was about to evolve. . . . I could see a company on the verge of something special.” handle many aspects of the due diligence process himself. This helped him and others use early-stage integration meetings to discuss strategies for maximizing the value of the new business. For Incipio, that’s been a long-held desire and a welcome change. “A good integration starts with a good diligence process,” Akamine says. He’s also been ramping up efforts to improve the process by giving leaders the tools and templates necessary to analyze material and create specific integration plans for their

Protecting and enforcing intellectual property rights for the world’s leading innovators. marshallip.com

own areas and new departments. Akamine’s done a lot for Incipio in his first few years, but as the company marches deeper into 2018, he’s most excited about its future. Incipio is pushing more volume, growing its portfolio of owned brands, partnering with strong licensed brands, and building the business with an eye on a future liquidity event. After nearly two decades in business, the company is starting to realize its full potential. MARSHALL, GERSTEIN & BORUN LLP:

“Scott is a fun and talented general counsel who can quickly move through dense material to focus on what counts. He understands the issues, even in esoteric areas of law, and thinks strategically for his business.” —Benjamin T. Horton, Partner and Chair of IP Litigation


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Shaun Moore shares a few of the different ways he has found to listen—and look for fresh perspectives—in AMD’s law department

Lori Fredrickson

Over the course of Shaun Moore’s

1) Keep an Open Door

seventeen years in the legal department

Whenever AMD’s law department brings in new hires, Moore

of AMD, a semiconductor company

makes it immediately clear that his people can come to him any

working at the forefront of computing

time, for any reason. “I want to create an open dialogue,” Moore

and graphics technology, he’s risen

says. “That helps prevent surprises.”

in the ranks from corporate counsel

Those aren’t just empty words, either. In addition to being

to corporate vice president of legal. In that time, he’s had

willing to sit down with team members to discuss any issues,

a chance to work on everything from procurement to real

Moore has worked with the leadership team to implement

estate development, including negotiating sales agreements

initiatives such as a department-wide retreat, with focused

for processors included in major products such as the Sony

time on soliciting direct feedback from his core team and the

PlayStation and the Microsoft Xbox and overseeing the legal

department as whole to learn about perceived challenges and

concerns of AMD’s campus in Austin, Texas. Through it all,

desired opportunities.

though, no matter what the task at hand, he’s made it a priority to have an open dialogue with his internal client.

Because of this, when the recent departure of a longtime paralegal led to an opening, another employee, who had worked

“When I go in to do a deal, the first thing I want to understand

in a very different role, felt comfortable speaking up to say she

is what it is that you want to accomplish from a business

was interested. “We hadn’t known she would have considered

perspective,” Moore says. “That’s allowed us to foster a partnership.”

this opportunity, but when we looked at it, it made sense,”

Today, as one of the team leaders for the legal department,

Moore says. It also created a domino effect. Another employee

he applies that same ethos to management. Here are five of his

asked to step into her old position—creating two new roles for

best practices in leadership.

two team members.


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2) Keep an Open Mind

Having an open-door policy is important, Moore says, but in order for it to work, you also have to keep an open mind. “The management approach is to always have a ready answer,” Moore says. “But I think we are obligated to look at new ideas seriously and consider them seriously.” To do this, he’s learned to tamp down natural defense mechanisms. “I want to make it clear that I won’t feel challenged by different perspectives on practices I’ve built,” Moore says. “I want to know if you think that something is inefficient, because that can create longer-term issues.” This has allowed him to step away from some of his own biases and really take a new look

B a r to n W i l d e r C us to m I m a ge s

at department issues from a new angle. And, it’s also made him comfortable going forward with changes. 3) Use Change as an Opportunity

Moore personally knows the career opportunities that can be found during times of change. When AMD acquired Torontobased graphics company ATI in 2006, he took on a role with the newly obtained business that helped him later step into his


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“I want to make it clear that I won’t feel challenged by different perspectives on practices I’ve built.”

current position. So, he encourages his team to do the same.

Moore’s department wasn’t working efficiently, an admin who

“When changes occur, they should be viewed as a chance to

had recently joined pointed out that a software solution from

grow,” Moore says. For example, Moore and the leadership Adobe would help facilitate electronic signatures across the team have used significant changes to the company’s structure,

department. Moore realized she was right, and that prompted

including consolidation of its sales and marketing departments,

him to push for widespread adoption of the solution. “That

to put department members in positions that allow them the suggestion led to what is today probably one of the more opportunity to grow their skill sets and advance their careers.

impactful process efficiencies we’ve put into place in some time,” Moore says.

4) Look for Fresh Perspectives

“I’ve found that you have about six months or so to bring fresh 5) Empower Team Members eyes to something before they default to a view of the ways things Always important is giving credit where credit’s due and have always been done,” Moore says. When he brings in a new allowing employees to take the helm and run with new ideas. hire, he makes it clear that he wants that person to look closely at This helps them feel empowered in their roles. The admin everything his department is doing, from how it interfaces with

who recommended the Adobe software, for instance, has

clients to areas where it might have process inefficiencies. “I want since been promoted. “From a management perspective,” folks to feel comfortable challenging the status quo,” Moore says. Moore says, “when clients are benefitted and a direct report One observation, while simple, ended up having a profound has gotten accolades that will move her forward, that’s a win long-term impact. When the contract-signature process used by

for me.”


salutes

Shaun Moore for his vision, creativity, and vigilance at the heart of one of the world’s leading businesses.

Century City • Los Angeles • Newport Beach • New York • San Francisco • Silicon Valley • Washington, DC Beijing • Brussels • Hong Kong • London • Seoul • Shanghai • Singapore • Tokyo omm.com


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ASURION 111

Yanika Smith-Bartley has brought her passion for diversity and inclusion everywhere she has worked


Lead

Mode rn Cou n s e l

A closer look at the leaders who take the reins on a daily basis

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Compliance through Compassion Le ad

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Teresa Y. Bernstein uses love, listening, and respect to mentor her team of lawyers and inspire an organizational understanding of compliance issues at ACON Investments By Steph a n i e Ze i l e n g a


Teresa Y. Bernstein, chief legal officer and chief beneficial to me or our constituents because it means compliance officer at ACON Investments, an they don’t learn how to approach a problem on their international, middle-market private-equity investment own and they’re not working to understand the root firm, has the word love scrawled across the top of her

of the issue,” Bernstein says. “This approach may be

office whiteboard. The word forms the root of how time consuming, but my team feels ownership over she manages her team of lawyers and approaches everything they do, and it gives them a sense of control compliance issues. To her, love means trust and over their day. I want them to feel motivated and respect; it means listening, being responsive, and always engaged, and that’s hard if you only see little pieces of a considering your audience’s viewpoints.

project but don’t understand the big picture.”

This philosophy rooted in love might seem surprising

The same values Bernstein instills in her team to help

in an industry that’s sometimes—perhaps unfairly—

them grow in their careers—listening and learning to

stereotyped as cutthroat, but it reflects Bernstein’s think through problems—she also embraces herself. unusual route to her current position. A literature

She especially relies on them when engaging with the

major, she landed a paralegal role after college, and broader ACON team, to get the company’s workforce to she quickly found her calling in corporate law. “I loved

understand and buy into compliance efforts. Something

how in a corporate transaction everyone wins, and to

as small as responding to an email can go a long way

get there, you have to understand the root of exactly

toward making someone feel heard and respected. “You

degree, she began moving into the private-equity world, sharpening her expertise in private-equity mergers and acquisitions, fund formation, and regulatory

Chief Legal Officer an d Chief Com p lian ce Officer

compliance along the way.

ACON Inves tm en ts

Now at ACON, Bernstein is determined to provide her team of lawyers with the same valuable mentoring she received as she built her own career. Topping the list of practices she’s hoping to pass on are slowing down, being thoughtful, and putting yourself in your counterpart’s shoes. “My previous boss was always telling me I had to listen, listen more, and listen again,” she says. Taking the time to truly listen can be difficult in ACON’s fast-paced environment, but Bernstein says it’s key to teaching her team to be proactive rather J ul i e Kub a l Ph oto gra p hy

Teresa Y. Bernstein

than reactive. It also helps the team members learn how to think through problems and arrive at the best solutions on their own. “It would be a much simpler and shorter conversation if I just told my team members exactly what to do, but in the long run, that’s not

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what people want,” she says. After earning her law

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have to acknowledge people’s requests and at least let them know when you’ll be able to give them an answer,” Bernstein says. “This lets people know you’re paying attention to them and taking their problem seriously. We depend on people to alert us to issues; they need to be comfortable voicing their concerns. If they think my team is going to be unresponsive or difficult, they’re not going to be motivated to seek our help.”

Kirkland & Ellis is proud to join in

In the regulatory space, rather than just telling people they can’t do things, Bernstein has trained her team to focus on its audience and help each person relate

recognizing our

to the issues at hand and understand the reasoning

friend and client

behind policies. “Whether we’re speaking to a business head or an accountant, we tailor our response to who

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Teresa Bernstein of ACON Investments

we’re speaking to and explain the regulation’s purpose, why it’s beneficial to comply, and how it affects them professionally and personally,” she says. “If you strip away the noise and legal considerations from a problem, the right thing to do is usually clear.” As ACON sharpens its focus on socially responsible investing, Bernstein’s work to helping people innately understand and feel invested in compliance is proving particularly beneficial. “We have businesses across the US and Latin America in a variety of industries, and in every one of those, our people are focused on making sure those companies do the right thing,” she says. “The ultimate belief is if you are operating within good guidelines, you’ll have stronger building blocks and will be building a stronger company.”

KIRKLAND & ELLIS: Kirkland & Ellis LLP 655 Fifteenth Street, N.W., Washington, D.C. 20005 +1 202 879 5000 | www.kirkland.com Attorney Advertising

“Teresa is incredibly smart and hard working. She is everything you want in a general counsel; she doesn’t just identify problems, but she also works to solve them.” —Bob Pommer, Partner


The

The transition from private practice to in-house legal work brings with it many changes. For Jaron Brown, one of the biggest was in his approach to mergers and acquisitions. By the time he became assistant general counsel at Novelis Inc., a manufacturer of rolled-aluminum

Perfect

products, he had eleven years of experience as a transactional lawyer. As an outside counsel, his role was clearly defined: he was brought in at a certain point in a transaction to negotiate the remaining open terms, draft the definitive agreements, and steer it toward a successful closing. When he went in-house, though, his focus changed from negotiating and drafting to strategic planning, execution, and integration. organized, well-lead football team, with the in-house legal department acting as the quarterback. “It’s our

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responsibility as inside counsel to keep everyone on the

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M&A

He compares a good M&A deal team to a well-

deal team mindful of the common goal and let them know what their roles are,” he says. Outside advisors, including accountants and external

Playbook

legal counsel, act as the wide receivers, running backs, and kickers—each with a specialty that contributes to reaching the goal. “We bring them in at the right time to make the right play—to make sure we are successful and do not commit a turnover,” Brown says. “This is all in an effort to reach our common goal of marching down the field and scoring a touchdown.” And, like the plays in a football game, the particulars of each M&A transaction vary depending on a number of factors. Here, Brown outlines the steps Novelis takes and the considerations it bears in mind when

By G a l e n B e e be

Jaron Brown shares the five steps of his football-inspired approach to transactional deals for rolled-aluminum products manufacturer Novelis Inc.

completing an acquisition. 1) PLAN THE TRANSACTION Brown plans every deal around the goal of supporting the business. During the planning phase, his legal department works with executives to determine the


best strategies to achieve the company’s aims. “We don’t

small aspect of their jobs. “One thing that outside

just want to say yes or no,” Brown says. “We want to give

lawyers don’t appreciate is that our executives have day

our executives value-creating options on how to move

jobs,” Brown says. “Their time is limited, so we want to

forward. We need to provide solutions and alternatives

use them in the most effective and efficient way to get

that could meet their objectives.”

the transaction completed.”

The legal team brainstorms both potential solutions and potential issues. For example, if Novelis is

4) EXECUTE THE DEAL

planning to acquire a manufacturing company whose Throughout the execution phase, Brown and his team operations might pose meaningful environmental hold consistent meetings to keep everyone moving risks, the legal team will identify the potential hazards toward the goal of signing and closing the deal. and lay out the steps needed to deal with them “Transaction lawyers, the way I was trained, we’re good adequately and permit the deal to move forward. “You

at project management,” Brown says. “We’re good at

prepare for everything you know,” Browns says. “The

looking at accomplishing a goal in a linear way and

biggest challenge is the unknown.”

identifying the specific steps that need to be taken in a specific order to get the deal done.” As the deal team completes its tasks, including

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Once the legal team has structured the deal, it organizes due diligence, the legal team might use the results of

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2) ORGANIZE A TEAM a deal team by choosing outside and in-house experts for each of the issues it has identified. If Novelis has to secure certain governmental approvals, for example,

Jaron Brown, Assistant General Counsel, Novelis Inc.

the deal team includes specialists in that field. For acquisitions that involve substantial intellectual property issues, the team includes intellectual property experts. And so on. 3) DEFINE THE ROLES To minimize overlap or miscommunication, each team member’s role and tasks are clearly defined based on the issues Brown’s team has found in the planning stage. In the case of potential environmental hazards at a manufacturing facility Novelis is considering acquiring, the environmental experts are tasked with performing assessments to determine, among other things, whether efficient remediation plan. Defining roles is particularly important for company executives, for whom M&A transactions are but one

S hi r l ey Di a z- B row n

soil is contaminated and to recommend an effective and


“We bring [in specialists such as outside counsel] at the right time to make the right play—to make sure we are successful and do not commit a turnover.”

Constangy, Brooks, Smith & Prophete congratulates Jaron Brown and Novelis for the well-deserved recognition by Modern Counsel.

its due-diligence findings to negotiate certain terms of the transaction in favor of Novelis in order to mitigate the risks discovered. For example, if Novelis’s environmental experts do find contaminated soil at a target facility, the legal team might mitigate the risk before closing or, if the cleanup is significant or will take a significant amount of time, reimburse Novelis for the cost of remediating the site after the closing. If the contamination is serious enough, Novelis might ask for a reduction in the purchase price or cancel the deal altogether. 5) INTEGRATE THE ACQUISITION After closing the deal, the legal team works with departments across the organization to integrate the acquired assets and employees. No matter how carefully the legal team prepares for an M&A transaction, plans often change throughout the process, and the impact of these changes can continue even after the deal is closed. Novelis’s executives might want to spend the first year after an acquisition expanding a newly acquired facility, but in the event of environmental contamination, they might instead spend the first year remediating the site. “It could have rippling affects for the transaction, depending on how significant it is,” Brown says.

A wider lens on workplace law

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by asking the seller to clean up the contamination

For additional information about labor and employment law services, please contact Don Prophete at 816.472.6400.


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In conversation with Elizabeth O’Callahan By G e off G e orge


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Elizabeth O’Callahan’s full title at NetApp is a mouthful: vice president of intellectual property, corporate and securities, corporate compliance, and employment. “I think my title is probably not tweetable at this stage,” she says, laughing. “I tend to shorten it to vice president of legal.” Her many duties help her maintain a broad perspective over NetApp’s work as a major resource and authority for businesses and organizations managing their data through hybrid cloud systems (i.e., systems involving both on-site data storage and cloud storage). The company’s clients include banks, government entities, and large and small corporations alike, who turn to NetApp for a variety of hardware and software solutions. “We’re trying to help customers manage and optimize their use of their data—which is now the most precious resource any enterprise has—across all the different environments,” O’Callahan says. Here, she discusses how she has cultivated her wide-ranging business outlook over the course of her career and explains exactly how she maintains it at NetApp.


You started as an associate with a private firm right out of college. How did you find your way to Silicon Valley? I started in business litigation at a small firm. I enjoyed it, but I have an execution-oriented personality, so I found litigation frustrating in terms of the length of time it took to get to a resolution. What I did enjoy was the fact that I was able to learn about businesses. We got to work with in-house counsel, and in-house roles weren’t something they really taught you about in law school. I decided to look at how I could be in a position to have such a job, and I thought, “Well, I don’t know anything about corporate law, so I should probably learn that.” I got a position as a

Elizabeth O’Callahan

corporate associate at a firm in Palo Alto that specialized in representing technology companies.

VP of Intellectual Property, Corporate & Securities, Corporate Compliance, and Employment

I was working with start-ups as their outside counsel, taking companies public, helping them buy companies, and helping them sell themselves.

NetApp

Your bachelor’s degree was in political science, so was it a steep learning curve jumping into technology? It was not something that came naturally, but I think we’ve all experienced an education in technology in the past twenty years. My experience was a little more intense, but in working with a lot of

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different clients and companies, you get immersed in it. You have to understand the products and the technology and how they fit into the greater picture—as well as who the customers are and what value the products bring to the customer. And I’m just interested in businesses and how they thrive. That interest probably helped you jump into in-house work, first for Xilinx and then NetApp. How quickly were you able to understand NetApp as a business once you got there? Xilinx had been a customer of NetApp, so I was somewhat familiar with its products. I understood how it fit into the overall IT infrastructure and ecosystem. The sales and marketing function was a lot more complex, with the number of partners we have around the world, so that’s taken some homework on my part to understand. One of the things I love about inhouse work is that you’re constantly learning and there’s constantly a new challenge coming. As NetApp has moved into the cloud and into providing new products and services, I’ve been constantly learning. Were there aspects of your work as outside counsel that helped prepare you for your role at NetApp? I worked initially with start-up companies, helping them with their venture funding and later larger transactions. If you’ve been through an IPO or an M&A transaction with a company, you understand how it operates, what the important parts of it are, where the risks are, and what to worry about. You also see management changes and how management and the board interact with one another and with their shareholders. Those are all things I still do today. I think the experience of being in-house is richer, and you have all the facts accessible to you and are able to apply the law and be a better corporate lawyer.


Honoring Beth O’Callahan Beth, you are a true leader in the tech sector, and we’re honored to work with you and NetApp.

Orrick is a global law firm focused on serving the Technology, Energy & Infrastructure, and Finance sectors. Top 10 for M&A globally, by volume – MergerMarket, 2017 AMERICAS | EUROPE | AFRICA | ASIA

orrick.com


How did you end up with the different responsibilities that make up your lengthy executive title? Getting Time to Give Back NetApp is deeply supportive of volunteerism, so much so that it offers forty hours of paid time off to each of its employees, every year, for volunteer efforts. Here’s where O’Callahan has directed some of her hours: The Law Foundation of Silicon Valley: O’Callahan supports this nonprofit legal-counseling center by offering her expertise pro bono.

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Second Harvest Food Bank: The organization operates in Santa Clara and San Mateo Counties, and O’Callahan and her team work with it to fight hunger in Silicon Valley. Rise Against Hunger: O’Callahan, along with all NetApp employees, is committed to packing one million meals this year, in partnership with this organization. Habitat for Humanity Greater San Francisco: O’Callahan and her team have also done work with this local chapter of the national housing organization. The chapter not only builds new homes but also helps revitalize neighborhoods

I’m a big believer that to deliver and maximize shareholder value, you must think about the broader picture. There are other responsibilities that the corporation has. It employs people. It serves its customers, and it lives in and serves its community. It has responsibility in terms of its innovation, its product quality, and its environmental impact. Having a broad scope is consistent with the idea that the corporation serves many masters, and it helps you develop a comprehensive strategy for approaching the law and the business. Are there aspects of your work that you’ve had to do more learning on the job for? Definitely intellectual property. The team I manage is composed of patent professionals and patent attorneys, and prior to this role, I had not been responsible for a patent portfolio or patent litigation. I’ve done litigation, and I’ve dealt with intellectual property issues as a corporate attorney in certain transactions, but I certainly never had to be this close to patents and understanding patents and how best to defend them. That’s been exciting and new and incredibly humbling. How much do others within your organization help you maintain that broad outlook? I’m incredibly fortunate to work with an amazing team of outstanding professionals. I certainly could not do it without them. And my management chain, from my boss to our CEO, is good at keeping the team informed about what the discussions are, what the strategy is, and where we’re going. NetApp is somewhat a relationship-based company. You have to have a good network and talk to your clients, friends, and associates in different parts of the business. I think that’s incredibly important.

throughout the area. ORRICK:

“What impresses me about Beth is that she is smart, efficient, and focused. She looks at problems holistically and analytically while never losing the human touch. That’s why working with her is such a pleasure.” —Ed Batts, Global Chair of M&A and Private Equity group


How to

Allam Taj, director and associate general counsel for Citigroup, breathes mergers and acquisitions. He’s been busy for a number of years negotiating proprietary transactions for Citi across North and South America, Europe, Asia, and Africa. His work has taken him to many countries, where he has helped

Make It

come up with novel structures under local law to effect the transactions. He also advises Citi Ventures on strategic, commercial, and legal issues related to innovative initiatives and partnerships that have the potential to transform the future of financial services. Citi is embracing new technologies and innovation, which makes this a particularly exciting time for the company. time, including a recent big one: Citi’s M&A legal team and specifically Taj, with his global M&A experience,

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were given a key role in developing a holistic, detailed

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in M&A

Taj has also worked on strategic projects from time to

divestiture strategy for Citi’s global businesses in its most recent resolution plan. The plan, required of all big banks by the federal government in the aftermath of the 2008 financial crisis, describes Citi’s strategy for rapid and orderly resolution in the event of the company’s financial distress or failure. The strategy for and related analysis of the plan were significant undertakings that required a deep understanding of the legal structure, operations, contractual relationships, and regulatory and legal landscape of each of Citi’s businesses that collectively operate in more than a hundred countries. Taj’s passion for M&A began during his time as an undergraduate, at Temple University, where he majored in finance and accounting. Then, in law school, at the University of Pennsylvania, he focused his studies on By Da vi d B a e z

corporate law while completing all three levels of the chartered financial analyst program. After graduating,

Allam Taj, who has led many complex, crossborder transactions for Citigroup, shares a few of his transactional principles and strategies

he first joined the law firm Skadden Arps, where he worked on a number of large-scale M&A transactions, and then he joined Citigroup as M&A counsel.


With his extensive experience, Taj has a great deal of

COMMUNICATE AND PARTNER EXTERNALLY

knowledge that would likely be helpful to any in-house

According to Taj, when negotiating any M&A deal, it’s

M&A lawyer embarking on a major transaction. Here,

crucial to establish a good rapport with the counsel

he shares a few key imperatives.

on the other side of the table. “That kind of goodwill goes a long way in negotiations because it leaves

BE A PARTNER TO THE BUSINESS

room for productive side discussions,” he says. “I’ve

Having worked on large-scale M&A deals both as an

worked on transactions where negotiations came to a

outside counsel and in-house for Citi, Taj has had

standstill due to impasses over critical issues. Because

the opportunity to see how different companies

of the relationship I had with counsel on the other side,

approach the internal M&A legal function. “In some

though, we were able to come up with solutions that

organizations, M&A legal is thought of as an execution

got the negotiations back on track. The business and

function that just takes care of the agreements,” he says.

bankers view this as a value add and appreciate having

“But an M&A counsel should have a bigger and more

this additional channel to resolve issues.”

important decision-making and advising role.” THINK AHEAD AND BE CREATIVE

ways to partner with Citi’s businesses and bankers

One of the things Taj enjoys most about M&A work is

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in order to add real value to their transactions. “If

that every deal gives him a chance to learn about a new

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Taj has been able to take on such a role by finding

a counsel positions herself as a solution-oriented,

business and meet new people. “Every deal requires you

commercially minded critical thinker, then others will

to roll up your sleeves and dive in to learn the business

come to the counsel for strategic advice and will seek

from the inside out,” he says.

her input in all key decisions,” Taj says.

And, because of the nuances of each transaction, there’s a lot of room for creativity and out-of-the-

STAY ORGANIZED AND TAKE OWNERSHIP

box thinking. “Eighty percent of a typical transaction

“You need to have a game plan for doing the work,”

generally centers on the same set of issues, but the

Taj says. “Everyone expects you, as internal M&A counsel, to be on top of the issues because the ultimate ownership for all legal decisions rests with you. Being

Allam Taj, Director and Associate General Counsel, Citigroup

organized makes it easier to manage the process and prevents issues from slipping through the cracks.” When Taj and his team worked on Citigroup’s resolution plan, for example, they came up with a complete all phases of the work, including development of sales structures, review of agreements, and analysis of local law, in a timely manner. “It was no small undertaking,” Taj says, “but the preparation paved a much smoother road for the project, which allowed us to deliver a quality work product.”

T i m ot hy Ka l d a s P hoto g ra p hy

comprehensive project plan that allowed them to


“M&A is like a game of chess. You always have to be thinking a few steps ahead and anticipating how the other side will respond.”

remaining 20 percent, which requires finding creative

Shearman & Sterling is proud to partner with Citi and congratulates Allam Taj on his continued success.

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solutions that achieve the deal objective and are acceptable to all parties, is where all the fun is,” Taj says. “That is often what makes or breaks a deal.” And, it’s important to continuously reassess the leverage dynamic and what the other party’s bottom line is with respect to any given issue. “M&A is like a game of chess,” Taj says. “You always have to be thinking a few steps ahead and anticipating how the other side will respond.” REMEMBER THAT ANYTHING CAN HAPPEN Ultimately, there’s plenty about a deal that can’t be predicted, but according to Taj, the best anyone can do is be prepared for all potential outcomes. “It’s important to expect the unexpected,” he says. “In any type of M&A transaction, something always happens at the eleventh hour that has the potential to jeopardize the deal. But, at the end of the day, there is a solution to almost every problem if you think hard enough, so think creatively, keep a cool head, and stay focused on getting to the finish line.”

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Leila Vespoli’s take-charge leadership style and business acumen have helped her steer FirstEnergy through three mergers—and her career through a variety of roles

By Ran d al l Co l b u rn

Portraits by Cass Dav is


In 2003, Leila Vespoli was only a few years into her role as a general counsel with FirstEnergy Corp. when the lights went out across the northwestern United States. The power outage was the world’s second-most widespread blackout in history. Roughly forty-five

Leila Vespoli, EVP of Corporate Strategy & Regulatory Affairs and Chief Legal Officer, FirstEnergy Corp.

million people in eight US states—as well as an estimated ten million in Ontario—were affected. Responsibility fell on the shoulders of Akron, Ohio-based FirstEnergy, and Vespoli was there for all of it. “It’s not something I’d like to repeat,” she says. “And it wasn’t the only thing on my plate; at that point in time, my plate was full.” Truly, it was a fraught time for the company, including several lawsuits, a restatement of earnings, an operationally challenged nuclear plant, an investigation by the Securities and Exchange Commission and the Nuclear Regulatory Commission, and a CEO that had recently passed away. The company needed its leaders more than ever, and Vespoli saw it all as an opportunity to solidify herself in her new role.

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“It sharpens your skills,” she says of the issues. “It sharpens your ability to think quickly and move quickly. You know that old expression, ‘That which doesn’t kill you makes you stronger’? From experience, I know that to be true.” Vespoli began her career at Ohio Edison, a subsidiary of FirstEnergy. Fresh out of law school, she served as an attorney until becoming senior counsel in 1995. A few years later, she transitioned into the role of associate general counsel, then she became general counsel in 2000, and she reached a position as senior vice president the following year. Vespoli’s ascent within the company didn’t stop there, either. As Ohio Edison merged with Centerior Energy to become FirstEnergy in 1997 and as FirstEnergy merged with GPU in 2001

of those associated with the general counsel in a merger,” she says,

and Allegheny Energy in 2011, Vespoli’s role evolved along with

“but I was also on the steering committee for the group that was

the company. Today, she serves as FirstEnergy’s chief legal officer

tasked to merge the two corporations together.”

and executive vice president of corporate strategy and regulatory

Her flexibility has been necessary, given that those mergers

affairs, but she has led a diverse array of departments, from have helped transform FirstEnergy from what Vespoli describes corporate to governmental affairs, P&L for competitive operations,

as a “mom-and-pop utility company” to a Fortune 200

communications, and more. Her role also entails providing advice company and one of the leading utilities in the country. Ohio and counsel to the board of directors at its meetings. With each merger, Vespoli says, she took on more and more

Edison had fewer than a million customers when she was first hired, but FirstEnergy has more than six million now, and it

responsibility. “Not only was I performing the typical legal functions has more than 15,000 employees working to pump out 17,000


ROETZEL

CONGRATULATES

AKRON

Roetzel is pleased to congratulate Leila L. Vespoli, Executive

C I N C I N N AT I

Vice President, Corporate Strategy, Regulatory Affairs, and

CLEVELAND COLUMBUS TO LED O CHICAGO

Chief Legal Officer, for her noteworthy accomplishments at FirstEnergy Corp. and her special recognition by Modern Counsel magazine on her contributions to the legal profession and her community. Roetzel is proud to serve as trusted counsel to FirstEnergy Corp.

F O RT M Y E R S NAPLES ORLANDO

FOCUSED ON WHAT MATTERS TO YOU RALAW.COM ROETZEL & ANDRESS, A LEGAL PROFESSIONAL ASSOCIATION


Calfee salutes the leadership and accomplishments of Leila Vespoli, Executive Vice President, Corporate Strategy, Regulatory Affairs, and Chief Legal Officer, FirstEnergy Corp. Congratulations on the well-deserved recognition by Modern Counsel.

Responsiveness. Relationships. Results.

WE ARE CALFEE. A LAW FIRM WITH ONE OBJECTIVE IN MIND: TO HELP YOU MAKE SOUND BUSINESS DECISIONS. Calfee, Halter & Griswold LLP is a full-service corporate law firm with more than 160 attorneys located throughout our Cleveland, Columbus, and Cincinnati, Ohio, and Washington, D.C. offices. As a founding member of Lex Mundi, we also offer international representation through a network of independent law firms with access to 21,000 attorneys located in more than 100 countries. We are strategic and comprehensive in counseling Fortune 500 companies, government agencies and municipalities, entrepreneurs and start-ups, and individuals – in all the areas that matter most to them and their success.

PRACTICE AREAS: Business Services | Business Transactions | Government Intellectual Property | Litigation | Corporate and Capital Markets Cleveland | Columbus | Cincinnati | Washington, D.C.

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megawatts of electricity across 24,500 miles of transmission lines and 273,000 miles of distribution lines. That expansion has

CONGRATULATIONS

brought FirstEnergy under greater regulation, an area in which Vespoli is currently immersed. She attributes her ability to pivot between various tasks and titles to her intimate knowledge of FirstEnergy’s business practices. “One thing anyone who interviews to be an attorney here will hear from me is that you have to be willing to wear a business hat,” she says. “By that, I mean you have to be willing to put in the time to be a business partner, to understand the business and where it’s going as well as what its needs are and how it operates. This way, when you provide legal advice, you can provide it within the context of the business. Ideally, you’ll get to know it so well that you’re actively providing business guidance as well.” “I can’t emphasize enough how impressive Leila is as a lawyer and a businessperson,” says Robert Blackham, chairman of Roetzel years. “She’s versatile, innovative, and forward thinking, and she manages her office with integrity and professionalism. She’s a true champion of the interests of FirstEnergy, and it’s been a privilege to be part of her team.” “Leila’s long career with FirstEnergy is more than a testament to her superior performance,” says Brent D. Ballard, managing partner of Calfee, Halter & Griswold LLP. “Her experience managing multiple corporate functions gives her exceptional insight into the business, making her a more valuable leader.” For Vespoli, it’s integral that any lawyer develop a keen sense of business acumen. The reason she’s been trusted with so many arms of FirstEnergy is that she understands the big picture of the company in ways that transcend its legal functions. “I’ve always practiced that over my career,” she says. “I think that’s what, over time, gave the then existing senior management the comfort that I could handle the additional roles and responsibilities they were giving me.” The challenges, she says, are in the coordination of those roles and responsibilities, especially now that FirstEnergy is moving into a more regulated environment. But Vespoli has spent her years

www.beneschlaw.com

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& Andress, which has been one of Vespoli’s business partners for

Our best wishes and sincere congratulations to our friend and colleague Leila Vespoli and the FirstEnergy legal team on this well-deserved recognition.


in leadership refining a management style that allows for open communication, collaboration, and delegation. This is a relief for A Time Line of Titles Leila Vespoli joined FirstEnergy as an attorney in 1984, when it was still known as Ohio Edison. Although she was just out of law school, she impressed the company enough that its first merger ignited her rapid rise through the ranks, resulting in a variety of different titles that track with Vespoli’s influence in the organization

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and the breadth of legal and business experience she’s been able to glean from the company. Here’s a look at her positions through the years. 1984: Attorney I-IV 1995: Senior Counsel 1997: Associate General Counsel 2000: VP and General Counsel 2001: SVP and General Counsel 2008: EVP and General Counsel 2014: EVP of Markets and Chief Legal Officer

her, given that during her early days as a general counsel, when her plate was piled high with sensitive issues, her leadership style was “fairly aggressive.” “We operated as a team, but there just wasn’t time for a lot of discussion and dialogue,” she says. “Back then, we didn’t have the luxury of time. Decisions had to be made. My style was an aggressive, take-charge style. As time has passed, I’ve been able to make my management style more to my personal liking. I get more involved with folks; I make sure everyone has a voice around the table. I’d like to say my style has matured.” Her tenure with FirstEnergy has also found her steering the company into the future in other ways. Vespoli now plays a key role in the company’s diversity and inclusion outreach program, an initiative that seeks to create and cultivate opportunities for people from a diverse range of backgrounds. Her coworkers, including Gretchan Sekulich, vice president of communications and branding, see Vespoli as a thought leader in the company. “She’s our highest-ranking female in the company,” Sekulich says, “and a great number of individuals here look up to her and admire what she’s accomplished in her career.” Vespoli is also focused on the future from an operational perspective. She’s currently working with state regulators as she and the rest of management plan a path forward—a path she says will entail work to incorporate some of the latest innovations in electric service. One thing’s for sure, however: her skills as a leader have been

2016: EVP of Corporate Strategy &

tested, and she is prepared for whatever challenges the future

Regulatory Affairs and Chief Legal Officer

might bring. BENESCH:

“Leila regularly and successfully handles a vast array of very complex legal and regulatory matters, more so than any lawyer with whom I work. Her intellect, judgment, problem solving skills, and work ethic are unsurpassed. She has built a great team to assist her.” —Joseph Castrodale, Partner


Proven

How do you raise $1.8 billion from investors in a little more than three months, as private-equity firm HGGC did recently during its third fund-raising? According to Kurt A. Krieger, the company’s general counsel and chief compliance officer, it has everything to do with how investors made out in the previous fund-raising.

Worth

“You have to have returns,” he says. “If your fund returns are below the 50th percentile, it’s hard to raise a successor fund. We call it survivor bias. If there aren’t good returns on a first fund, there is often no second fund. And you have to convince your investors that your returns are not random events. There has to be some differentiation, something you’ve been able to do, a clear strategy you can articulate.” That HGGC reached a third fund-raising, therefore, is no accident. The firm has enjoyed a steady upward trajectory with each fund-raising, going from $1.1 billion

1 05

to $1.3 billion to the recent $1.8 billion. The firm solidly

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occupies the middle-market—smaller firms might look to raise $100 million, while mega firms can reach $100 billion—and to get the returns on the money its investors put into it and retain their trust, it relies on a distinctive set of tried and true principles and practices that Krieger helps oversee. In his role, Krieger has a global view of HGGC’s fundraising process. He looks at securities filings and all the documentation required, but he’s also at the table, negotiating terms with investors or limited partners— terms he says tend to get much more favorable on the heels of success. “As the firm’s position in the marketplace improves, By Da vi d B a e z

Kurt A. Krieger helped private-equity firm HGGC make its third fund-raising the business’s most successful ever by relying on the trust-building investment practices it has maintained from the beginning

the arc improves,” he says. “The terms of our first fundraising were more favorable to the limited partners, the second achieved a greater balance, and we think the third gives the limited partners the protection they need but also gives us the flexibility we want.” When a private-equity firm such as HGGC raises funds, it asks large institutions to commit capital with


the understanding that the firm will go out and buy

pace. Once 70–80 percent of the money has been spent,

businesses with the money. The idea is to make those

the firm gets going on the successor fund so that there

businesses profitable, sell them, and get the investors are no gaps. their returns.

Krieger says that HGGC is somewhat unique in that

All those investors want to know what they’re it chooses to invest in businesses that are not necessarily getting into, of course, so HGGC gets inundated on their last legs but just need a problem solved. A with diligence questionnaires, some of which can recent example was a business in Montreal that HGGC go on for hundreds of pages. Krieger remembers one

acquired. It was owned by a father and son who were

questionnaire that was more than three hundred

coders. The company had developed a streamlined

pages, something that he chalks up to “the cost of

software solution for retailers to manage inventory and

doing business.”

distribution across various channels of distribution,

Once it raises funds, HGGC focuses on deploying the but it was unable to tap into the massive market for its capital with speed and efficiency. A fund generally has

product. HGGC found a German company trying to

a ten-year life: six years of investment and four years of tackle the same problem and brought them together to harvesting. Sometimes the investment goes at a quicker

stimulate international growth.

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Kurt A. Krieger General Counsel and Chief Compliance Officer

Na m e He re

HGGC


“We think of ourselves as old-school partnership investors. . . . We always try to work management, the founders, and sponsors into the deal so that they continue to have equity.”

Congratulations to

Kurt Krieger of HGGC on his accomplishments and much deserved recognition by Modern Counsel

1 07 Mode rn Cou n s e l

Working closely with the newly merged business’s management team, HGGC helped it build a formidable sales team, and it began to thrive. A bidding war between a couple of major strategic acquirers ensued, and the Montreal family cashed out. The father and son then used some of that money to invest in HGGC’s third fund. “We think of ourselves as old-school partnership investors,” Krieger says. “We never buy 100 percent; we always try to work management, the founders, and sponsors into the deal so that they continue to have equity. Before we close, we come to a shared vision of what the next steps are, so we know what we are going

“Wall Street-level firm in Omaha, Nebraska.” Chambers and Partners

to be selling when our investment ends. That drives who our investors should be—people that can add value to our investments.” KOLEY JESSEN:

“Kurt’s has a great ability to take complex situations, identify the material issues, and examine them from both parties’ perspective to arrive at a workable solution.” —Brian Harr, Shareholder

www.koleyjessen.com


Moving Up, Not Elsewhere In her more than twenty-one years with a single company, Compuware, general counsel Kiley LePage has enjoyed a broad array of professional experiences By Lo ri Fre d r i c ks o n

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10 8

t was a perfect match from the start:

I

Her company was already experiencing explosive

In 1996, Kiley LePage, a fresh graduate growth when she first joined. “Compuware is more from the University of Detroit’s Mercy

than a local legend here in Detroit,” LePage says. It

School of Law, was looking for a job. expanded at a rapid rate throughout the late 1990s, Compuware, a locally based software company, was

after being publicly traded and rocketing up in stock

looking for an investor-relations manager. The company

value. After just a few years of acquisitions and staffing

approached her, and she jumped at the opportunity. In

increases, its total number of employees had tripled.

the twenty-one years since, climbing to her current A year into LePage’s time there, it became clear that position as general counsel, she’s had a wealth of the legal department needed her help full time, so she opportunities to develop her career in one place as transitioned to a role within it and, eventually, took business has boomed.

over management of compliance and litigation.

“I was lucky enough to be afforded opportunities

Because the portfolios she managed touched every

for professional growth, including expanding

area of the company, the work was never dull. “There

responsibilities and continuing education, so I never felt

wasn’t a ton of repetition, I wasn’t reviewing the

stuck,” LePage says. “And that’s the goal, isn’t it? As you same contract day after day, and the work was always grow as a professional, you are—or should be—rewarded interesting” LePage says. She was also inspired by the with additional responsibilities.”

company’s culture and philosophy during that period.


“Compuware emphasizes collaboration always—and in all ways,” LePage says. “And that collaboration cuts out delays.” She has continued to rely on this philosophy as the company has evolved. In 2014, it was acquired by equity firm Thoma Bravo, and as its lawyers were split between divested entities, LePage stayed with Compuware,

1 09

Working closely with a smaller team, she has since been involved in every type of legal issue company-wide. Her rich, collaborative experience with the company

Kiley LePage, General Counsel, Compuware

was particularly vital in 2016 and 2017, when she helped Compuware close four acquisitions in a little more than four months. Working within that timetable, LePage says, was “an incredible achievement for the acquisition team and the company.” Outside resources were doubtful about the viability of the schedule the company had laid out, but LePage knew the end result was never in question. “My biggest advantage is my institutional knowledge,” she says. Having worked at the company for so many years, she rarely has to dig through archives for a particular file or explanation because she’s experienced them firsthand. If she can’t remember a specific detail from a matter, she likely knows someone who can. Her long-lasting relationships have also been an asset, particularly the one she has built with Compuware’s chief financial officer, Joe Aho, who started at the

“I was lucky enough to be afforded opportunities for professional growth, including expanding responsibilities and continuing education, so I never felt stuck.”

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ultimately moving into her role as general counsel.


The law firm of Dykema congratulates Kiley LePage, VP, General Counsel and Secretary of Compuware Corporation on being featured in this special issue of Modern Counsel.

same time as LePage and who continues to work with her on all deals and acquisitions. “We brainstorm, discuss, strategize, and share thoughts with each other throughout the day, every day, to make sure that the efforts of the finance and legal departments are aligned,” LePage says. In recent years, Compuware has transitioned

We are proud to work with Kiley, and celebrate her skills as an insightful business leader, an extraordinary legal talent and a trusted partner.

to become one of the few companies focused on mainframe technology, creating apps and tools that modernize and revitalize previously antiquated systems. The majority of its US employees are still located in one office in Detroit, and along with the CFO and other long-tenured colleagues, LePage habitually walks the

110

the rest of the workforce. She says the shared mind-

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floors to have direct and immediate conversations with set of the longer-standing employees helps inspire the recently hired ones. And, now that she’s risen through the ranks herself, she says, “I can directly and positively affect the company’s future because I have a seat at the table, a voice in the conversation, and that has made all the difference.” She mentions a recent experience with a colleague who came to her with a problem she wasn’t sure LePage could help her with. When LePage said, “Don’t be silly, there’s always something I can do,” both she and her colleague burst out laughing—because they both knew it was true. “I love solving problems, and I’m most professionally satisfied when I’ve had a positive

Exceptional Exceptional service. service. Dykema delivers. delivers. Dykema

impact, whether I’m negotiating a contract, a deal, or an acquisition or helping an individual employee,” LePage says. “I really enjoy—and do not take lightly—the ability to make a difference.” As her company continues to lead the way in mainframe technology, LePage is excited, as always, to continue

www.dykema.com www.dykema.com

to evolve there as counsel. Her goal now? She puts it simply: “To retire one day—from Compuware.”


The

From proven biases in early STEM education to a lack of women and people of color in coding, the tech industry has faced an uphill battle to improve diversity in its ranks. The ever-changing sector has perhaps the greatest need for such improvement, though, given its diverse and rapidly evolving consumer base. Yanika

Power to

Smith-Bartley, vice president and special counsel for diversity and inclusion (D&I) at Asurion, agrees. “Research shows that more diverse perspectives lead to more innovation,” she says. As an African-American woman who grew up in a predominantly Jewish suburb in Ohio, with friends of various backgrounds, Smith-Bartley gained an appreciation of the value of diversity early on. “And then that I’m African, Caucasian, Native American, and East Indian, I realized I am diversity,” she says. She carried that foundational ethos into her early career at Baker Donelson, where, in addition to her role representing clients on employment issues, she was instrumental in developing the firm’s D&I program, even serving as a trainer on the topic. When she transitioned to an in-house counsel role for Asurion in 2009, she was keen to incorporate that passion at her new office, too. In 2014, the rest of Asurion caught up to her vision. As a high-profile tech protection and support company, Asurion was facing some of the same challenges as others in the industry. “The majority of our tech employees were white, Asian, and Indian men, which is the typical demographic—but we don't want to be the typical company.” Smith-Bartley explains. “If we wanted to maintain our position as the standard-bearer for customer

By L i o r Ph i l l i p s

support for our clients, we had to ensure that we were gaining diverse perspectives at the table.”

Yanika Smith-Bartley has become a beacon shining a light on the benefits of diversity in the tech industry through a number of uplifting inclusion initiatives at Asurion

The company’s early efforts included those of a small group of women in leadership, who wanted to develop the careers of women throughout the organization and conduct town halls and panel discussions, including ones

111 Mode rn Cou n s e l

Empower

after recently completing my genetic testing, and learning


focused on diversity. But Smith-Bartley felt that education was only one key element of many that were needed. To further the company’s efforts, she set out to assess its current demographics, collecting data and identifying ways to clean up the statistics it had on hand. Then, she helped galvanize a grassroots effort to create employee resource groups (ERGs) to embrace its increasingly diverse employee population and advocate for underrepresented groups. Asurion established the group Pride for the LGBT community shortly thereafter, the small group of women leaders grew into an ERG that came to be known as WIN (the Women’s Initiative Network), and these were followed by Black Employees Supporting Talent and the Veterans Services Group, for veterans and those actively serving in the military. “Over the course of a year, we grew

112

employees opting in,” Bartley-Smith says. “We anticipate

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to four employee resource groups, with over a thousand reaching ten ERGs in 2018.” Smith-Bartley recognized that simply having ERGs was not enough; employees needed to understand the value of diversity and their roles in creating an inclusive environment at the company. So, in 2017, she led the creation of an internal D&I brand, dubbed “commUnity.” “We’re creating a culture of diversity and inclusion where you can bring your whole self to work and feel valued and respected for who you are,” Smith-Bartley explains.

Yanika Smith-Bartley

“We created the brand with an uppercase U to focus on

VP and Special Counsel for Diversity & Inclusion

you and to put unity in community.” Additionally, the

Asurion

company created consistent and cohesive logos and branding for the employee resource groups, to bring But that was just the beginning. In November, Smith-

This past November, Asurion hosted its first

Bartley was asked to lead the D&I charge in a formal

commUnity luncheon, which brought together

capacity after years of managing efforts off the side of

three hundred employees at Nashville’s Music City

her desk. She became the company’s first vice president

Center. ERG members networked and learned

of diversity and inclusion, and the opportunity will

about mitigating unconscious bias in the workplace,

allow her to tackle the industry’s broader issues head

and several received leadership awards for their

on. She’s already seeing doors open to discuss tough

contributions to driving the program.

topics that would not have been on the table several

Ha tc he r & Fe l l P hoto g ra p hy

them together while celebrating their individuality.


Littler congratulates

“We’re creating a culture of diversity and inclusion where you can bring your whole self to work and feel valued and respected for who you are.”

Nikki Smith-Bartley on her new role as Asurion’s Vice President and Special Counsel for Diversity & Inclusion and for her contributions to workplace diversity.

years ago. “Now, on a weekly basis, I get people reaching out to me, asking to get diversity and inclusion on the agenda for their meetings at their functions,” Smith-

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on Asurion’s employee culture and want to be a part of driving progress for their teams.”

inclusion is a priority throughout every step of each

3344 Peachtree Road NE Suite 1500 Atlanta, GA 30326 404.233.0330

employee’s journey, from talent engagement to

littler.com

The unification of Asurion’s HR and legal functions allows Smith-Bartley to ensure that diversity and

experience surveys. And, as the culture of inclusion has taken root, Asurion’s C-suite has bolstered progress with executive support and even pushed teams to “get comfortable with the uncomfortable topics.” “It was a clear evolution,” Smith-Bartley says. “We weren’t always comfortable saying the word diversity, but now, any time there's an opportunity, there are major conversations or presentations. Diversity is always on the agenda.” LITTLER MENDELSON:

“Nikki will bring her “whole self ” and a wealth of talent, passion and relevant legal experience to her new job as Asurion’s VP and Special Counsel for Diversity and Inclusion. Nikki’s wisdom, pragmatism, creativity and great people skills will serve her well in this new role.” —Leslie Dent, Shareholder

ABOUT LITTLER: Littler is the largest global employment and labor law practice, with more than 1,300 attorneys in over 75 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single-source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for 75 years. Littler Global is the collective trade name for an international legal practice, the practicing entities of which are separate and distinct professional firms. For more information visit littler.com.

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Bartley says. “People are seeing the effect of our work


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SEAONE HOLDINGS 154

Brian Brantley is helping protect his company’s radically new model for natural gas transportation


Evaluate

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What happens outside the office can change what happens inside it

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E L O C I N D W N A O H W O T B A R DA L L ’ S R A N OV I C I M I A H NEWGATION LITI M, A T E A C EO, NEW


LINK F F BY JE AITS BY TR P O R A N F RY I GILL

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W E N A D N A F O T SE TURAL CUL MS ARE N O R R OV I N G IMP R’S UBE LIC PUB NDING STA


spring of 2017, sleep starved and bleary eyed, Nicole Bartow, coleader of the US litigation team at Uber, was at her laptop, sifting through files for the discovery phase of an intellectual property suit that Google’s self-driving car spin-off, Waymo, had brought against Uber. The claim al-

1 18

Google engineer, stole proprietary files

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leged Anthony Levandowski, a former to create his own start-up, Otto. That company was then sold to Uber, where, months later, Levandowski became the head of Uber’s self-driving car division. Bartow would, nearly a year later, be excited for the case to go to trial, but back in the spring of 2017, when she answered a call from Randall Haimovici, Uber’s other coleader of the US litigation team, regarding a list of job applicants for several newly vacated positions, her head was swimming. Not only was she working around the clock on the Waymo matter, but the litigation team at Uber was dwindling. The team had shrunk from thirteen lawyers to just six in a matter of months, due, in part, Haimovici says, to the emotional toll of a spate of negative reports coming out in the press: the New York Times had raised red flags about an


RANDALL HAIMOVICI DIRECTOR, LITIGATION UBER

Uber-operated Greyball program alleged-

The people they found came mostly

ly intended to deceive law enforcement,

from California and New York firms, and

then CEO Travis Kalanick had fallen

a few came from Fortune 500 companies

under public scrutiny for overseeing a

such as HP. But, there was diversity to

combative workplace culture, and Susan

their backgrounds, reflecting the prior-

Fowler, a former employee, had published

ities of Salle Yoo, Uber’s general counsel

a lengthy blog post describing alleged in-

until 2017.

cidents of sexual harassment that were

The revamped litigation team—just

ignored by human resources. Morale was

twelve lawyers, four paralegals, and a

low, to say the least.

three-person e-discovery unit—is now

“Imagine February and March, when

handling a whopping 130 active cases.

lawyers in the department started to

Separate teams deal with employment

leave,” Haimovici says. “The workflow was

suits and insurance matters, and outside

dramatically increasing, and the challeng-

counsel are called in to assist with most

es the company was facing became very

cases, but the bulk of the work falls in

public. Nicole and I would get together

the lap of the litigation team that Bartow

and go through hundreds of resumes ma-

and Haimovici helped build. Among other matters, the team has

Their work helped turn the department

handled high-profile sexual harassment

back around, and now they’re prepared to

complaints, discussions regarding

handle even their toughest cases—and

wheelchair-accessibility requirements

they’ve also played a key role in helping

under the Americans with Disabilities Act,

families impacted by recent changes in US

and, recently, the legalities surrounding

immigration policy.

a widely publicized security breach,

NICOLE BARTOW DIRECTOR II, LITIGATION UBER

during which hackers reportedly stole the THE RIGHT PEOPLE FOR THE JOB

personal data of fifty-seven million Uber

When Bartow and Haimovici began look-

customers and drivers. Uber paid them to

ing for appropriate hires to restaff their

delete the stolen data and keep quiet.

team, they weren’t necessarily looking

In a triage-like atmosphere of

for tenure at a top law school or years at a

near-constant disruption and crisis

high-profile firm. “We were short-staffed

management, preserving morale is a

and couldn’t have any sharp elbows in the

major part of the job. “When you have

room,” Bartow says. “People incredibly

all these negative headlines that seem to

well qualified didn’t get offers; creden-

come at such a rapid pace, what we need

tials were important, but there was also

to do, on the litigation team, is be open

an emphasis on finding resilient people

and honest with each other,” Haimovici

who could support each other and work

says. “That means being very transpar-

well together.”

ent, on the one hand, and hitting the

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ny nights—late nights.”

119


local bar and having a glass of wine on the other.” Uber partner Boies Schiller Flexner (BSF) is a

Outside counsel appreciate the efforts

firm of internationally recognized trial lawyers,

toward transparency and inclusivity as

crisis managers, and strategic advisors known

well. “It’s a great pleasure to partner with

for creative, aggressive, and efficient pursuit of

Nicole and Randy,” Reed Smith attorney

success for clients. Over two decades, BSF has

John Bovich says. “They structure their

established a record of taking on and winning

matters so that in-house and outside

complex, groundbreaking, and cross-border

counsel all work on the same team and

matters under diverse circumstances and in

toward the same goals.

world’s most sophisticated companies. BSF’s

SIGNALING A SHIFT

litigators are recognized for prevailing when

CEO Dara Khosrowshahi says that for

the odds are longest and the stakes highest.

all the tough press Uber has endured,

The firm regularly goes to trial, and it prepares

there is a genuine cultural shift happen-

each case accordingly, from the start. BSF’s

ing within the company. Even before he

12 0

litigators have the experience, judgment,

took over as chief executive in August

Eval u ate

a broad range of industries for many of the

and vision to develop arguments that achieve

and Uber launched a company-wide

favorable outcomes, whether those arguments

effort to adopt the recommendations

are needed inside or outside of the courtroom.

made by Eric Holder, of Covington &

The firm builds deep relationships with its core

Burling, regarding Uber’s workplace

clients that allow it to represent them in any

culture and employee policies, the litiga-

matter, in any forum, anywhere in the world.

tion team had been overseeing measures

BSF regularly represents its clients as plaintiffs

to make the company more transparent

as well as defendants, often sharing the risk

and accountable.

of litigation through creative fee structure. BSF

For example, the team pushed Uber

brings the same skill to bear in its pro bono

to open an anonymous employee help

and public-impact litigation as it does in its

line, begun in March 2017, that provides

commercial work.

a method for any worker to report a grievance—from sexual harassment to workplace discrimination—and have that claim formally investigated. Additionally, online and in-person management training courses, led by Achia Swift, an Uber attorney, and Frances Frei, senior vice president of leadership and strategy, have focused on fair and appropriate treatment of employees and leadership and


We are proud to partner with Nicole Bartow, Randy Haimovici, and Uber’s Litigation Team.

BOIES SCHILLER FLEXNER LLP www.bsfllp.com


strategy concepts such as building trust

home Monday morning, without a suit-

and working with teams.

case, and was in Seattle by noon. Later

More recently, at an all-staff meeting in

that week, he found himself in Dallas.

San Francisco, Khosrowshahi introduced

Bartow covered Atlanta and Denver,

a new set of cultural norms and tenets

with other team members fanning out to

such as “We do the right thing.” They’re

Green Light Hubs across the country to

intended to strike a warmer tone than

oversee in-person counseling provided

the combative corporate mantras that

by hired attorneys from Gibson, Dunn &

reined under his predecessor, and they

Crutcher; Boies Schiller Flexner; Shook,

offer further evidence that the company

Hardy & Bacon; and Fragomen, Del Rey,

is changing.

Bernsen & Loewy. Many specialized in immigration law. The size, swiftness, and coordina-

122

Even before its transformation, Uber’s le-

tion of the operation were like nothing

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AID TO IMMIGRANTS gal team had always been quick to respond

Haimovici had ever seen. “It came out

to crises. Back in January 2017, for in-

of thin air,” he says. “We’re talking about

stance, when President Trump signed an

a 24-7 methodology to get people legal

executive order issuing a ban of travelers

advice online and by telephone—and mo-

from certain Muslim-majority countries,

bilizing people at Green Light Hubs. And

the company stepped in to provide legal

of course, in order to do that effectively,

counseling to its cadre of nonnative-born

we have to know, legally, how the travel

drivers working as independent contrac-

ban will affect these people.”

tors—as well as their siblings, parents, spouses, fiancées, and children.

In the frantic days following the ban, many unresolved legal questions loomed:

Within forty-eight hours of the ban,

whether out-of-country relatives would be

Kalanick had conceived the idea and

able return to the US and when, how long

committed $3 million to fund it. Deputy

travelers would be detained, whether they

general counsel Angela Padilla was re-

would be deported, how individuals’ VISA

sponsible for executing the plan, and she

statuses would be affected, etc. Haimovici

set out to mobilize in-house lawyers and

remembers seeing drivers and their families

outside counsel at brick-and-mortar driv-

arrive at Green Light Hubs grimly con-

er-support centers, known as Green Light

cerned and desperate for answers. “There

Hubs, in roughly a dozen cities.

was a lot of uncertainty,” he says. “People

Haimovici got his marching orders over the weekend. He left his San Francisco

were scared and wanted to know how to get their relatives back in the country.”


Mode rn Cou n s e l

Na m e He re

123


For a brief period, he says, Uber was recruiting the New York-based immiessentially operating a free legal clinic in

gration firm to prepare a slide deck for

cities across the country. Finding their le- the online Dreamer Resource Center, gal status in the United States suddenly covering the practical repercussions of in jeopardy, drivers and families turned to

the decision. The program, on a smaller

Uber as their most reliable source of in- scale, was still a success: at Green Light

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124

“THIS COMPANY HAS NO SHORTAGE OF INTERESTING AND CHALLENGING ISSUES, LEGAL AND OTHERWISE. . . . FUNDAMENTALLY, I LIKE THE CHAOS, LIKE A FIREFIGHTER WHO SEES A FIRE AND RUNS TOWARD IT TO TRY TO HELP.” –NICOLE BARTOW

formation. In total, the company offered

Hubs in seven cities, 100 people received

556 free consultations, reunited twenty-six

in-person counseling, and the Dreamer

families, and got sixty-eight people flown Resource Center has received more than home when the ban was lifted.

17,000 views.

Outside counsel were particularly impressed with Bartow and Haimovici’s WAYMO V. UBER grace under pressure. “Nicole and Randy Earlier this year, Bartow and her team had are not just exceptional attorneys; they

their sights set on Feb. 5, 2018, the start

are steady hands with excellent judgment date of the Waymo v. Uber trial. They had who ably guide their teams in-house and

already achieved numerous small victo-

out, no matter what comes their way,”

ries in the pretrial proceedings, including

Boies Schiller Flexner partner Karen Dunn Waymo’s dropping of all patent claims and says. “I am grateful for their leadership.”

a pivotal trade-secret claim and the exclu-

Nine months after the travel ban, in sion of a damages expert, pegged as a key September 2017, the Trump adminis- witness. Then, four days into the trial the tration formally announced the end of

parties reached a settlement, and the case

DACA (Deferred Action for Childhood

was dismissed.

Arrivals), a program that had protected

It’s yet another in a line of successes that

nearly 800,000 young undocumented im- Bartow and Haimovici have contributed to migrants brought to the United States. The

during Uber’s shift, but there’s plenty more

about-face regarding federal immigration

work waiting for them ahead. “This com-

policy gave Uber’s legal team the opportu- pany has no shortage of interesting and nity to come to its drivers’ aid again.

challenging issues, legal and otherwise,”

With the groundwork in place from

Bartow says. “We have great people, su-

the earlier clinics, Uber’s reassembled

per smart and strategic, and phenomenal

litigation team launched a new coun- outside lawyers. Fundamentally, I like the seling program. Once again, it turned to

chaos, like a firefighter who sees a fire and

Fragomen, Del Rey, Bernsen & Loewy, runs toward it to try to help.”


Uber partner Reed Smith’s mission is to drive the

markets. The firm’s strong relationships with its

progress of clients through partnership.

clients are a result of its ability to speak their

The firm is uniquely placed to achieve this. The

languages.

strong relationships its people build with clients help

Since 2001, Reed Smith has had a firm-wide

them develop a deep understanding of the outcomes

diversity and inclusion initiative. This is administered

they need to achieve. The firm’s internal structure

by a committee that includes individuals from the

means its people can focus entirely on those

firm’s Executive Committee and also lawyers and

outcomes. With teams that are culturally adept and

staff from all levels. This ensures that the core

collaborate across geographies, every piece of legal

business objective of inclusion is implemented

advice is tailored specifically for the job at hand.

throughout the organization.

Reed Smith works with leading international

The firm’s Women’s Initiative Network of Reed

businesses—from Fortune 100 corporations to

Smith is a growing global community of lawyers

emerging enterprises—across its key industry

dedicated to further enhancing the workplace

groups: energy and natural resources, entertainment

to develop, reward, engage, and attract female

125

and media, finance, life sciences and health,

lawyers more effectively. Women now account for

and shipping.

approximately 40 percent of all lawyers at the firm—

Mode rn Cou n s e l

The firm is not focused just on the now but on

and more than 21 percent of the total partnership.

the next as well. Its people are constantly thinking

Both of these numbers exceed the average for

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A Better Way to Bank How Helen Brown’s legal work helped Bank of the Ozarks become the first major publicly traded bank to merge its holding company into its bank By Zach B a l i va

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Does every bank need a holding company? That’s the question Bank of the Ozarks chairman, CEO, and founder George Gleason posed to corporate finance general counsel and corporate secretary Helen Brown in December 2016. Almost every bank has a holding company, but in some ways such organizations are anachronistic holdovers from the 1980s and 1990s. Then, banks interested in growing across state lines used holding companies to comply with certain federal banking restrictions. Today, however, bits of legislation such as the Dodd-Frank Act and the Basel III capital rules have reduced the need for bank holding companies. Although rules and regulations are still strict, it’s now easier for banks to expand into new territories. Simply put, banking laws have changed, but the widely accepted holding-company structure has remained largely in place. Why? That’s the question Gleason asked Brown to examine. And, when she discovered that Bank of the Ozarks ran all operations through its bank subsidiary, she developed a detailed roadmap outlining the process to merge its bank holding company into its bank. When Brown completed the process, on June 26, 2017, Bank of the Ozarks became the first publicly traded financial institution to shed its holding company, thereby reducing costs, improving efficiency, and eliminating duplicative regulatory administration. Here’s a step-by-step look at how she did it.


1) FIND OUT WHETHER IT’S POSSIBLE

Brown realized shedding the holding company would

Brown may have been the perfect person to answer her help the bank continue to achieve these goals, she started CEO’s question. She joined Bank of the Ozarks in 2013,

to examine state and federal laws to chart a path forward.

after more than a decade at Bass, Berry & Sims, where she had been an equity partner since 2011. She had

2) OUTLINE THE BENEFITS

spent most of her time at the Memphis firm handling Brown’s initial research phase uncovered several

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sophisticated transactions and helping public companies

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benefits associated with dropping the holding company.

raise capital. Now, Brown advises Bank of the Ozarks’ For example, the holding company was regulated board of directors on strategic matters, capital-raising

by the Federal Reserve Bank, but the bank itself, as a

initiatives, and corporate governance. The bank

nonmember state bank, was beholden to the FDIC

has completed fifteen mergers since 2010, six under and the Arkansas State Bank Department. “Bank of Brown’s leadership. When Gleason asked her if Bank of the Ozarks and its holding company were getting two the Ozarks could shed its holding company, she knew examinations, and that meant that our employees were the state and federal regulations, she knew the bank’s repeating a lot of activities,” Brown explains. “There are growth plan, and she knew the ins and outs of corporate small cost savings associated with the move, but the structure, and her immediate assumption was that the real value comes as we free up our employees’ time and answer would be no.

allow them to work on more value-added activities.”

But, the more she researched, the more motivation she found to press on. “We weren’t using our holding

3) BECOME A PART-TIME LOBBYIST

company, and we saw no reason to keep it,” she says. After realizing the change was both possible and “Doing so simply maintains a status quo, while a change

beneficial, Brown set out to get state banking

could bring more value to our shareholders.”

department officials and lawmakers’ approval. For

Bank of the Ozarks has grown from approximately

her bank’s plans to succeed, she needed to get eleven

$4.8 billion in assets in 2013 to nearly $21 billion today. statutes in Arkansas law changed. Luckily, it was That success has come as leaders and board members

February 2017, and state senators and representatives

have worked to minimize costs and maintain low-

were already in session. Brown and her team worked to

efficiency ratios in an era of growing regulation. When educate them on the benefits of her proposed changes.


Helen Brown, General Counsel of Corporate Finance and Corporate Secretary, Bank of the Ozarks

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13 0

“The changes were technical and not material

the board’s decision,” she says. “My role was to educate

or substantial in nature,” she says. “By changing them on the issues they should consider before voting on the state laws, we would help modernize a banking a proposal that would eliminate our holding company.” code that was outdated by several decades and

After the board approved the proposal, Brown’s legal

allow publicly traded banks to do what corporations

team immediately began drafting all the necessary

already found permissible.”

disclosure documents, regulatory applications, and

Most other states had similar language in their

other required paperwork for the merger and worked

laws, she explained, and if Arkansas laws remained

with Nasdaq to make sure the bank’s stock would trade

outdated, financial groups might be tempted to without interruption. Brown’s goal was to maintain relocate. Ultimately, the banking board and lawmakers speed, compliance, and transparency. While there was agreed. A set of bills approved in March 2017 amended

no precedent to follow, most of her team had been

an Arkansas business corporation act and the state

through several mergers and knew how to facilitate

banking code. The changes created a regulatory

the process.

atmosphere in which Bank of the Ozarks could legally merge its holding company into its bank subsidiary.

5) WATCH THE RESULTS

4) PREPARE THE BOARD

been monitoring the situation closely. Since June 2017,

With the victory in hand, Brown prepared her team to

at least one other publicly traded bank has announced

advise Bank of the Ozarks’ board. “This major change was

plans to accomplish the same feat—and its legal team

Ja n e t Wa r l i c k

With the merger complete, Brown and her peers have


Covington commends

Helen Brown of

Bank of the Ozarks for her innovative leadership and professional dedication.


“We weren’t using our holding company, and we saw no reason to keep it. Doing so simply maintains a status quo, while a change could bring more value to our shareholders.”

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13 2

has turned to Brown for some practicable advice. “We were the first publicly traded bank to eliminate our bank holding company, and I frequently get calls from lawyers and financial executives who want to discuss this issue,” she says. When Brown fields those calls, she shares her experience in leading Bank of the Ozarks through its transformation. The dust has since settled, and she’s seen some cost savings associated with stock-filing fees, and she’s heard from bank leaders who have been able to repurpose employees’ time. She also believes the Bank of the Ozarks’ structure now more closely aligns with its growth strategies.

KUTAK ROCK:

“As corporate counsel for Bank of the Ozarks, we have worked with Helen on many M&A and corporate finance projects. She has an excellent grasp of complex issues and, most importantly, she gets things done.” —H. Watt Gregory 111, Partner


You’ve Built It Now Share It American Builders Quarterly highlights leaders and projects on the cutting edge of today’s US building industry. For editorial consideration, contact info@americanbuildersquarterly.com


Bellwether Litigation Through her work on landmark tech cases, Google’s director of IP and litigation, Catherine Lacavera, is shaping not just a company but an entire industry By Matt A l d e r to n

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S

ilicon Valley looks nothing like the

work is pouring the foundation on which future tech

mining towns of yore. There are no

law will be built.

tumbleweeds, no saloon girls, no

“As a lawyer at a tech company, you’re sometimes

gunslingers, and no horses. Yet, the similarities are un-

pushing the law to catch up to technology,” says

deniable. Like the opportunistic towns that sprouted Lacavera, who joined Google in 2005 as a patent counsel. across Colorado, Nevada, and California in the nine- “In that way, you’re in a unique position to view the law teenth century, Silicon Valley is magnetic. It draws as enabling rather than blocking innovation.” people with dreams of striking it rich. They aren’t

Litigating new and emerging technology isn’t easy, but

mining for gold or silver, however; they’re mining

Lacavera is suited to the task. Originally from Canada,

for innovation.

she has an undergraduate degree in computer engineer-

Also like the Wild West, Silicon Valley is in some ing, an MBA, a law degree, and an honorary doctorate of respects a lawless place. Because it lives on the bleed-

law from the University of Toronto. That intersection—

ing edge, its products and services often precede the

between law, business, and science—gives her a unique

rules, regulations, and legal precedents that eventually vantage point from which to view Google’s opportunigovern them.

ties and risks. Along with her team of approximately 150

That makes Catherine Lacavera a sheriff of sorts. As corporate lawyers, she leverages that perspective on a director of IP and litigation at Google, she spends her

daily basis to argue cases that set, change, and maintain

days defending one of the world’s largest tech compa- technology’s future trajectory. Two standouts are Viacom nies from competitors and regulators who threaten its v. YouTube and Oracle v. Google, both of which represent creative freedom. Win or lose—she typically wins—her

significant legal victories for Google.


VIACOM V. YOUTUBE: UNLEASHING USER-

don’t want drunk drivers on the highway, either, but

GENERATED CONTENT

that doesn’t mean we shouldn’t have such a platform.”

It’s hard to imagine a world without cat videos, vloggers,

Seven years after it was filed, Google and Viacom

citizen journalists, and viral wedding proposals. Yet the

settled the lawsuit, making the world safe again for

online video platforms that so many people count on viral videos. “Defending the application of [the Digital for inspiration, news, and entertainment almost didn’t Millennium Copyright Act] to a platform like YouTube exist. That they do is thanks in large part to Google’s legal

is what permitted user-generated content platforms

team, which helped the company acquire internet video to continue to exist,” Lacavera says. “Otherwise, the pioneer YouTube in 2007. It subsequently became the

potential copyright liability of a class action of the

target of a lawsuit from media conglomerate Viacom.

copyright holders of the world would not make such

“About a month after we purchased YouTube,

platforms viable. Countless Silicon Valley startups”—

we were sued with a $1 billion lawsuit claiming that

including sites such as Facebook and Pinterest—“begin

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YouTube was built on the backs of content providers with the premise that they can take advantage of

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and was full of copyright-infringing content,” says Lacavera, who staged Google’s defense. Google asked the court to dismiss the suit, arguing that the “safe harbor” provisions of the Digital Millennium Copyright Act protected the company from copyright-infringement claims. “The Digital Millennium Copyright Act says that you are protected [from copyright-infringement claims] as long as you provide a service that responds quickly to notice and takedown,” Lacavera says. “If a content owner identifies their content, sends you the URL identifying where it is, and represents that they own the content—and you respond quickly by taking it down—you have the socalled ‘safe harbor.’” The public value of user-generated content, Google argued, outweighed the risks to individual copyright

S a m At ta l

holders. “If you want to create a platform like YouTube, you can’t be held liable for a few bad uses,” Lacavera says. “It would be like saying we need to shut down the highway because there are drunk drivers on it. We

Catherine Lacavera Director of IP & Litigation Google


Standing Up for Immigration When Catherine Lacavera, a Canadian, came to the US wanting to be a patent attorney, she applied to practice before the US Patent and Trademark Office (USPTO)

“As a lawyer at a tech company, you’re sometimes pushing the law to catch up to technology.”

but was denied because of her immigration status. She challenged the ruling, but the Federal Circuit Court of Appeals ruled in

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13 6

favor of the USPTO. She petitioned the

the safe harbor provided by the Digital Millennium

Supreme Court, but it declined to hear her

Copyright Act. It’s a starting point for tons of

arguments, which were threefold:

innovation on the web.”

1) USPTO, Lacavera argued, did not

ORACLE V. GOOGLE: WINNING THE ‘CELL

have the legal authority to manage her

PHONE WARS’

immigration status. It was the domain of

When Apple introduced the iPhone in 2007, it changed

US Citizenship and Immigration Services.

everything. As revolutionary as it was, though, it didn’t change things nearly enough for Google’s tastes, which

2 ) Regarding the rule’s constitutionality,

is why the company introduced its Android mobile

the Federal Circuit applied only a “rational

operating system that same year.

basis review” standard; Lacavera argued

Android gave consumers a compelling, open-source

it should have applied an “intermediate

alternative to the iPhone operating system. However,

scrutiny” or “strict scrutiny” standard.

it also sparked a grandiose legal battle between smartphone manufacturers over their intellectual

3) USPTO violated her rights to equal

property. “When industries are nascent, some

protection” under the due process clause

incumbents will use litigation to block innovation,”

of the Fifth Amendment.

Lacavera says. “When we entered the market with a new open-source operating system, it challenged the

Lacavera later got her USPTO registration

preexisting landscape of cell phones and smartphones.

with a green card. Then, in 2017, Google

All of a sudden, we found ourselves involved in a patent

was one of many companies to sign a brief

war over who owned the cell phone space.”

opposing President Trump’s travel ban. “I

From 2009 onward, tech companies such as Apple,

feel like this amicus brief was vindication for

Samsung, Microsoft, Nokia, Motorola, HTC, and

the rights of immigrants,” she says.

Huawie fired lawsuits at one another. Apple founder Steve Jobs went so far as to declare, “I will spend my


penny of Apple's $40 billion in the bank to . . . destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this.” For Google, one of the most significant legal challenges came not from Apple but from Oracle, which filed a lawsuit in 2010 claiming that Google had violated seven of its patents by using its Java programming language in Android. Google, meanwhile, argued that its use of Java APIs constituted “fair use” under US copyright law. “Java . . . was created so that you don’t have to reinvent the wheel,” Lacavera says. “There are libraries of code that programmers can draw on like building blocks, and they can write compatible code that runs across platforms because they’re using the same set of libraries.” When it released Java in 1995, Sun Microsystems acquired Sun in 2010, however, it decided Java was proprietary. “[Oracle CEO] Larry Ellison testified that Java is open and free for everyone but that its libraries are not,” Lacavera says. “To me, that’s like saying the language is free but the verbs are not. How do you communicate in a language where the verbs are paid?” Although a jury unanimously sided with Google in 2016, the case is still being decided on appeal. In the meantime, Google feels like the broader cell phone wars have come to a favorable conclusion. “We want

Catherine Lacavera on her recognition by Modern Counsel

peace and freedom to operate,” Lacavera says. “That was our primary objective across all the different litigants we faced. And from my perspective, our mission was accomplished. Android is here to stay.”

WHITE & CASE:

“Catherine Lacavera brings intelligence, energy, and force of will to the litigation challenges of one of the world’s most innovative companies. White & Case is a proud member of the team and celebrates Catherine’s achievements.” —Greg Spak, Partner

White & Case is a global law firm with longstanding presence in the markets that matter today.

whitecase.com

137 Mode rn Cou n s e l

made it free and open to everyone. When Oracle

White & Case congratulates

last dying breath if I need to, and I will spend every


Next Stop: Risk Management Tom Quinn is senior counsel, litigation at Schindler Elevator Corporation, where he’s employing a number of solutions to mitigate the risks unique to his industry By Rand a l l C o l b u r n

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I

n pop culture, elevators often serve as

Liability Advisory Council, on which he served as an

the settings of breathless action set

officer, that helped him land the opportunity to work

pieces. Wires snap, cars tip precariously, for Schindler. and heroes pry open the doors for daring

“It turned out Schindler Elevator had just created a

escapes that would, it’s safe to say, never happen in real

position that had my DNA all over it,” he says. “It was

life. Ask Tom Quinn, and he’ll tell you that in the rare focused primarily and exclusively on what they called instance something does go wrong with an elevator,

their tort litigation portfolio, how to manage it and how

your best bet is to stay put.

to do better at it.”

“It’s Elevator 101,” he says. “The safest place in an elevator is inside the elevator.”

The job offered Quinn autonomy, access to the C-suite, and the chance to practice his legal expertise at

It might be common sense, but elevator-related

a higher level. “I was going to get litigation in spades at

incidents—of a more minor variety—still occur. And,

this place,” he says. That said, one of Quinn’s main goals

as senior counsel, litigation for Schindler Elevator at Schindler, right from the start, was to do everything Corporation, Quinn sees most of them. In addition to in his power to keep the company out of court, or at handling litigation for his company, he’s helping it find new ways to manage the risks inherent in its industry.

least mitigate the process as much as possible. This is a big reason why he serves as a direct

Quinn arrived at Schindler fifteen years ago. Before supervisor of serious accident investigations. that, he had worked in product litigation, first with “Managing the investigation right from the get-go has AT&T and then Lucent Technologies. But, it was his been very helpful in trying to get a handle on cases involvement with an organization called the Product before they get into litigation,” he says.


Tom Quinn, Senior Counsel, Litigation, Schindler Elevator Corporation

139

To ny Da v i d Ph oto gra p hy

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Expertise Spotlight A key partner of Thomas Quinn and Schindler is the Aubert Law Firm, started in 1992 by Chris Aubert. The practice’s many lawyers pride themselves on being honest, respectful, trustworthy, fair, ethical, efficient, and practical. They have practiced together for many years, they care about their clients and each other, and they strive daily to get the best results for their clients. Their main practice areas are insurance, business, casualty, and corporation as well as general

140

States. From their relaxed and friendly office

Eval u ate

business consulting in the Southern United settings in Covington, Louisiana and Irving, Texas, they work diligently, aggressively, efficiently, practically, and successfully. They have proven themselves for more than 20 years in matters involving anywhere from two parties to tens of thousands. The Aubert Law Firm also has the highest

The escalators and elevators that Schindler designs are intricate pieces of machinery. Its field technicians are given detailed checklists to minimize potential risk during installation and maintenance.

ethics and skill ratings from the MartindaleBar Register of Preeminent Lawyers, and

He’s also working to mitigate risk in new, novel

has earned a place in AM Best’s directory of

ways. Doing so, however, has pushed him to gain an

Best’s Recommended Insurance Attorneys.

understanding of equipment that, taken together, is an

The firm has attorneys licensed in five states,

industry unto itself. “Elevators and escalators, it turns

a number of whom have argued before the

out, are very complicated pieces of machinery,” he says.

United States Supreme Court, and it has

As Schindler has continued to enhance its strategic

handled thousands of matters throughout

plan for how best to address risk and reduce risk

Louisiana, Texas, and Mississippi. It is the

exposure within the company, Quinn has noticed how

firm to look to when you need experience

the machines’ intricacies impact the work of Schindler’s

and want practical advice, and its lawyers

technicians. “We give our field mechanics a lot to

have been thankful for the opportunity to

do,” he says. “Maintaining these machines involves a

work alongside Quinn and Schindler.

whole bunch of tasks. We have checklist procedures

We l d o n B rewste r Ph oto g ra phy

Hubbell Law Directory (“AV”), is listed in the


both when we first install the equipment and then annually thereafter.” Considering these factors, Quinn played an important role in supporting the company’s efforts to identify key tasks from the checklists as being especially high priority for the company’s mechanics and engineers. Brushing out the elevator pits and maintaining an aesthetically pleasing unit is important, but there are plenty of tasks that require more attention. Highlighting them has helped ensure that pivotal tasks are prioritized when the elevators are revisited on an annual basis. “Do those first,” Quinn says. “That’s the thinking.” What Quinn is trying to prevent through such awareness efforts are the unique issues that affect elevator and escalator equipment. Among the most common is a mislevel, which is when an elevator stops in a position that’s not aligned with the floor at which problem—as well as the occasional door strike. Though

Congratulations on this prestigious recognition from Modern Counsel and for your achievements as Senior Counsel, Litigation for Schindler Elevator Corporation

many modern elevators have beams that detect human motion, thus dramatically reducing the possibility of a door striking a passenger, Quinn says it still happens, noting that modern users are sometimes too absorbed in their smartphones to know they’re in harm’s way. “If you wait long enough,” he says, “you can get hit.” There’s also the more serious issue of a passenger entering or falling into the hoistway, a “quaint

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nineteenth-century term,” Quinn says, for the shaft in which the elevator travels. Quinn explains that this principally happens when a passenger is forcing the doors open in a state of emergency, but to ensure that it remains rare, various safety mechanisms exist, and maintenance protocols need to be periodically reviewed

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and revised to address them. Quinn has also been working to prevent risk by pushing both Schindler’s vendors and its customers to embrace the modernization of equipment. For example, Quinn supports and often underscores the company’s

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1 41 Mode rn Cou n s e l

it’s stopping. Abrupt starts and stops can also be a

Thomas Quinn


SABATINI & ASSOCIATES LLC

KELLER, O’REILLY & WATSON PC AT T O R N E Y S AT L AW

practice of sending out proposals with modernization plans to its customer base. Outside counsel, including Chris Aubert, managing director of the Aubert Law Firm, have been impressed with Quinn’s efforts as well. “Defending and managing elevator and escalator cases is unique and far different from general casualty

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Congratulations

Congratulations Tom on your well-deserved recognition from all of us at Keller, O’Reilly & Watson

Tom Quinn on this well-deserved recognition of your dedication to Schindler Elevator Corp.

cases,” he says. “Intricate knowledge of the equipment, applicable codes, and law is vital for success. Tom and Schindler shine daily.” Quinn also works to both prepare for and hopefully avoid litigation by creating closed feedback loops that ensure a clean, traceable paper trail that demonstrates Schindler’s commitment to addressing the core issues at the heart of each complaint it receives. Should he have to enter litigation, however, Quinn remains confident. He has the full confidence of Schindler’s general counsel and appreciates working in a legal department and corporate culture that

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When deciding who to work with, you’re balancing experience, dependability, value, and track record. Of 100 lawyers, for any given task, 25 might be good enough. The question is: What differentiates those 25 lawyers? The answer is what The Aubert Law Firm provides every day….

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A High-Stakes Battle FanDuel’s Christian Genetski was a key player in saving the daily fantasy sports company from a group of state lawmakers across the country seeking to declare the industry an illegal form of gambling in 2015 By Pete r Fa b r i s

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144

I

n the fall of 2015, FanDuel received some

leagues and sponsors. Instead, about eight months into

bad news. Amid a deluge of negative

the job, he suddenly found himself thrust into a life-or-

news reports, attorneys general in a death struggle for the continued existence of the very number of states were moving to classify industry his company had helped develop. His actions fantasy sports as illegal gambling. Doing so risked

and those of his team are what brought FanDuel back

rendering FanDuel and its chief competitor, DraftKings, from the brink. who both focused specifically on daily fantasy sports, inoperable in a significant portion of the country.

The issue raised by a number of state attorneys general at the time was whether fantasy sports were different

At the time, FanDuel’s first in-house counsel, Christian from gambling and whether the industry ran afoul of Genetski, was less than a year into his job. He’d signed underlying state gambling laws. At the time, only one on as the company’s chief legal officer in January 2015, state had a law that specifically addressed fantasy sports. with the expectation that he would help the upstart In a six-month period, attorneys general, state watchdogs, technology-focused business grow by building a legal and

the US Congress, and the FBI all investigated the industry,

government affairs team to address legal and compliance with the real threat that fantasy sports could be shut issues, leading the company through a major financing down any day. This scrutiny put pressure on FanDuel’s round, and facilitating new partnerships with sports

relationships with both sports and financial institutions.


Fast Stats on Fantasy Sports

$7.22 billion amount the fantasy sports industry generates annually

59.3 million number of fantasy sports players in the US and Canada

29% portion of players who are women

68% portion of players who spend money on a

1 45

Christian Genetski

prize for the league loser, such as a toilet-

Chief Legal Officer

bowl trophy, a tattoo, or a T-shirt

Mode rn Cou n s e l

FanDuel

41 number of states in which FanDuel does The company and DraftKings decided to join forces and seek to turn the tide with a focused

business

state-by-state lobbying effort to save their industry,

$1 billion

resulting in long weeks of work during which there

amount spent by players on ancillary

was little time for anything else. “For a time, it felt

activities and goods, including draft

like a new existential threat to the business every

parties, Sunday pizza deliveries, and

week,” Genetski says. “The speed at which the issues

fantasy memorabilia

accelerated—and all the piling on—went far beyond what we’d anticipated.” He and his team’s multifaceted campaign to educate state legislators and regulators on the legality of their industry centered on the argument that fantasy sports contests are predominately games of skill. Players pay an entry fee to enter contests on FanDuel, and they select athletes for their teams based on how they expect them to perform during an upcoming game. In football,

Sources: The Fantasy Sports Trade Association and FanDuel.


for example, players scour performance statistics and draft athletes for their teams based on the data, then earn points based on criteria such as how many yards and scores their chosen athletes rack up. Players that

Develop. Manage. Execute.

excel at evaluating the ability of athletes and how they’ll match up with their opponents tend to succeed and win cash prizes. FanDuel and DraftKings also presented comprehensive studies, including a yearlong analysis by an MIT professor, that established the predominance of skill in such contests. In addition to establishing how fantasy sports should be construed under state law, Genetski, FanDuel, and DraftKings took an approach that many other tech industries had traditionally resisted: they welcomed,

146

regime for the industry to address consumer-protection

Eval u ate

and even pressed for, states to put in place a regulatory concerns. Leveraging support from two critical constituents—professional sports teams and fantasy sports’ passionate customer base—the companies mounted a convincing case as they aggressively lobbied state legislatures to declare fantasy sports legal and regulate them. In the summer of 2016, they notched a BUI L DI N G A ND R UNN I NG CAMPA I G NS

milestone victory when New York lawmakers passed a

SH AP I N G R E P U TATI O NS

nineteen states have now passed laws affirming the

N AVI GATI NG R EG U LATO RY E NVI RONM ENTS

bill to do just that. It was a turning point, and at least legality of fantasy sports. The landscape has stabilized in most other states as bills continue to work their way through the states’ capitols. When Genetski looks back on the ordeal, his most valuable observation is how critical people skills

We guide some of the

and relationships were. For the fight, he compiled a

world's most ambitious

small in-house legal team, engaged multiple outside

leaders, crafting campaigns

counsel with different areas of expertise, worked

that reach millions.

closely with FanDuel’s management team as well as lobbyists and public relations professionals, and even coordinated efforts with his counterparts at DraftKings.

www.tuskventures.com

Under severe pressure, with new crises cropping


Celebrating Christian Genetski up every week, maintaining good communication and cooperation among these groups was essential, Genetski says, adding that from time to time they were able to ease the tension with a little gallows humor. “The work was difficult, but the people I was working with were good, like-minded people and committed to seeing it through to a good end,” he says. “That was one of the most rewarding parts during what was a pretty dark experience on certain days.” Genetski also stresses how important it was to be as forthright and transparent as possible with company employees, business partners, investors, and vendors. It helped establish trust, which was critical as negative news reports piled up. “It’s interesting to reflect on how much of getting the job right turned more on maintaining credibility and keeping the faith of those “You do need to be a smart lawyer—and know how to choose talented lawyers as advocates, of course— but it is really important to be credible and genuine. We spent a lot of time with partners, explaining and

Your friends at Orrick

providing context for each development and our plan to address them, and we did so before things hit the papers whenever we could. That proactive communication made it easier for partners to give FanDuel the benefit of the doubt, and in the end it’s what helped Genetski and the company win the day. “We never lost important relationships in a meaningful way,” he says. “It was very galvanizing when a lot of people stood by us.”

ORRICK:

“Words cannot adequately express my admiration for Christian—as a lawyer, leader, problem solver, innovator, and friend. He is the unheralded savior of the daily fantasy sports industry and an inspiration for all who have the privilege to work with him.” —Jeremy Kudon, Partner

Orrick is a global law firm focused on serving the Technology, Energy & Infrastructure, and Finance sectors. Sports Practice Group of the Year – Law360, 2016 AMERICAS | EUROPE | AFRICA | ASIA

orrick.com

1 47 Mode rn Cou n s e l

depending on you than it did legal acumen,” he says.

Christian, you are a true leader and a friend, and it is a privilege to work with you and FanDuel.


Five Simple Ways to Stay Compliant in Financial Services Jodi Golinsky has worked in financial services for nearly fifteen years, and here she shares a few of the guidelines she follows to promote both compliance and growth at her latest company, FS Card By Arian n a Ste r n

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J

odi Golinsky’s interest in financial

venture-capital firm associated with FS Card’s seed-

services started at a young age. During

capital provider, Fenway Summer, LLC.

childhood, “both my parents were very

To excel in her role, Golinsky champions compliance

focused on teaching me about finances initiatives while balancing company growth and and how important it is to manage your finances,”

innovation. In her view, sound compliance leadership

Golinsky says. “I opened up a savings account at my

is a direct contributor to sustained growth and

local bank as soon as I was allowed to.”

innovation in the business. In her observation, there

Given her longstanding interest in financial are three primary compliance issues companies face services, perhaps it’s no surprise that Golinsky in the financial-services sector: searching for clarity worked with some of the biggest names in the sector, surrounding regulations, keeping eyes and ears trained including MasterCard and American Express. Today,

on a changing regulatory landscape, and ensuring a

she serves as general counsel and chief compliance level playing field for all organizations in the sector. officer for FS Card, which helps underserved

Over the years, she’s developed particular methods

consumers manage short-term cash-flow needs.

for managing these issues effectively, and in a

In addition to her work at FS Card, Golinsky offers

conversation with Modern Counsel, she shared five best

input on portfolio-company opportunities and practices other financial-services attorneys can follow business models for Fenway Summer Ventures, a to improve their chances for success.


1) PARTICIPATE IN DECISION-MAKING “Sometimes people view lawyers as silos away from the business itself, where attorneys go research things alone and then come back with answers to questions,” Golinsky says. She challenges that misconception by sharing her methods and thought processes with colleagues outside the legal department and having a seat at the table alongside her business partners whenever she can. Board meetings are just one occasion for such sharing and transparency. “When the board asks me direct questions about a recent ruling or regulatory development and how it impacts us, I answer the question head-on; I’m always incredibly honest and very transparent,” Golinsky says. She shares her knowledge without sugarcoating the facts. The regulatory landscape for unsecured credit cards

1 49

Jodi Golinsky

and regulations impacting the way in which credit can

General Counsel and Chief Compliance Officer

be offered. Golinsky keeps her board and her company

FS Card

apprised of all the latest changes, from court rulings to new regulations. The Consumer Financial Protection Bureau’s recent payday rule is an example. Within hours of the rule’s release, Golinsky had shared her viewpoint about the its likely impact. know they are being heard, so learning how to listen is 2) BE AN ACTION-ORIENTED LISTENER

a really important skill,” she says. Give and take is what

If legal issues were entirely black and white, then

makes for getting the best results for the business and

companies wouldn’t need in-house counsel, Golinsky

the legal team. “I think both are practiced here, at the

says. She and others on her legal team resolve

highest level—in our board meetings—and day to day,”

ambiguities by meeting with businesspeople from other

Golinsky adds.

departments and exhaustively raising all issues. In this way, the two sides learn from one another and approach 3) WEAVE IN OPPORTUNITIES FOR TRAINING issues from myriad angles.

“You can’t expect people to know certain things are

Golinsky also reports directly to FS Card’s CEO, okay or not okay if they’ve never been given the right and the two meet often. She always appreciates the

training to know the difference,” Golinsky says. “We

chance to hear another person’s point of view on the have a very robust compliance and training program challenges the company faces. “People like to talk and that I developed from the ground up.”

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is incredibly complex, with both federal and state laws


Golinsky’s legal team trains employees both during onboarding and on an ongoing basis. The ongoing lessons are more vital, Golinsky says, because the

CONGRATULATIONS We are proud to recognize Jodi Golinsky, General Counsel of our client FS Card.

engaged in their work. “We have lunch together every Wednesday as a company,” she says. “On those Wednesdays, I try to have my team do some form of compliance training.” The training covers not only the company’s existing compliance policies and procedures but also topics such as new regulations, best practices, and attorney-client privilege. In her experience, the businesspeople outside the legal department retain the information well. 4) MAKE YOURSELF AVAILABLE TO

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RESPOND QUICKLY

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K&L Gates LLP. Global legal counsel across five continents. Learn more at klgates.com.

information is most relevant when employees are fully

Attorneys should reply to communications promptly, Golinsky says, to send the message that their colleagues can rely on them. “I may not always have whatever answer you need, but I will always get back to you in well under twenty-four hours, even if it’s just to say, ‘I am looking at this and will get back to you soon,’” she says. “The same-day response is a standard I hold myself and my team to; it’s a standard that’s worked for me.” To be a trusted advisor and partner, you need to be available. 5) ELEVATE OTHERS When Golinsky sees her colleagues—inside or outside the legal team—doing excellent work, she doesn’t keep it to herself. Instead, she commends them and alerts their superiors and the company’s CEO to their successes. “I know that the people who work with me are helping me, helping our company, and making us look good every day,” Golinsky says. “I am grateful for that. I make sure that they know that because it matters.”


Protect

Nearly every modern business and nonprofit entity depends on the speed and efficiency that the internet provides. However, no matter how quickly companies and organizations may work, there’s another aspect that remains crucial to their operations: security. Few companies know more about the subject in the digital

(Servers)

realm than the quick-thinking crew at Cloudflare, a rapidly expanding San Francisco-based webperformance and security company used by more than seven million web properties (more than 35 percent of the overall market), including Nasdaq, Steve Madden, and OkCupid. At its core, Cloudflare serves as a facilitator of online and its hosting provider, acting as a reverse proxy. It’s frequently tasked with defending against distributed denial-of-service (DDoS) attacks—targeted boosts in

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traffic, meant to slow down or take sites completely

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and

content exchanges. It sits between a website’s visitors

offline—that threaten web pages on a daily basis. But, though these attacks can involve legal concerns, much

Serve

of general counsel Doug Kramer’s work, including helping to standardize Cloudflare’s processes, circles back to ensuring the company’s security services conform to its primary concern: maintaining the efficiency its customers depend on. “We defend against world-record-level DDoS attacks every day; we’re focused on making sure the internet runs safely and securely,” Kramer says. “But, you wouldn’t expect the same workers who are busy filling potholes on the road or building overpasses to drop their shovels and chase speeding or drunk drivers. If

By Aa ro n Ors i n i

you required them to do that, the road system would deteriorate quickly.”

General counsel Doug Kramer is helping growing web-performance company Cloudflare standardize its processes as it takes on the security challenges of today’s internet as efficiently as possible

Kramer’s words speak to a broader discussion happening all across the internet regarding net neutrality, privacy, and whether certain parties have any responsibility to manage the tone and content of online discourse. Because Cloudflare is hooked into so


many pockets of the web, the company often finds itself a keen ability to rapidly re-prioritize projects—a at the crossroads of these emerging ethical debates,

skill that continues to serve him in his current role.

but it remains focused on the task at hand: building

“This job feels like that job,” Kramer says. “We face

a better internet and maintaining efficiency, even as incredibly challenging, interesting, and impactful the company continues to experience periods of rapid issues on a daily basis.” growth. “We are going through a sort of adolescence,”

To deal with this constant influx of issues,

Kramer says. “But it’s not just the volume; we also have Cloudflare has championed a process of rapidly and to be more mature in our operations and systems.”

continually standardizing its internal procedures as

Fortunately for Cloudflare, Kramer has no shortage it grows. “People on our teams just know that when of experience with planning and executing on a grand a question comes up, there is a Cloudflare answer for scale. For nearly two years, he served as the White that situation,” Kramer says. “We’ve trained them and House Staff Secretary under President Obama, a role

updated their training, empowering them with wikis

in which he was responsible for preparing, tracking,

and other internal reference tools.”

and following up on all papers going to and from the

The approach has been working well for Kramer

president’s desk. Kramer was required to demonstrate

and his team, too, and with established processes in

Doug Kramer, General Counsel, Cloudflare

Da n i G ra nt

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NICHOLSON DE VOS WEBSTER & ELLIOTT LLP

“We defend against worldrecord-level DDoS attacks every day; we’re focused on making sure the internet runs safely and securely.”

NDWE is proud to recognize the accomplishments of Doug Kramer and Cloudflare. We are honored to partner with Cloudflare as

challenges, including Project Galileo, a program

they help build a

through which Cloudflare provides services, free of

better Internet.

charge, to politically and artistically important groups that need protection. “The overwhelming majority of what flows through the internet makes people’s lives better, granting them access to what they couldn’t otherwise find, but there is bad behavior as well,” Kramer explains. “We rely on our Project Galileo partners—such as the ACLU or Amnesty International—to help us identify groups that are important to protect because they are likely to come under attack.” The project continues to assist groups throughout the world and serves as a reminder that though Cloudflare isn’t tasked with policing the web, it is, like

NDWE is a boutique patent law firm based in Silicon Valley, representing innovators from small startups to multinational technology giants. We specialize in patent preparation, prosecution, portfolio management, and post-issuance proceedings.

any business, concerned with the ethos of the culture at large. And, given the innumerable challenges we are yet to encounter online, it’s inspiring to see Cloudflare step up and work in service of the common good. As Kramer puts it, “We are going to make sure that vulnerable voices stay up in the face of those who wish to bring them down.”

NICHOLSON DE VOS WEBSTER & ELLIOTT LLP 99 Almaden Blvd. Ste 710 San Jose, CA 95113 408-675-0441 • firm@ndwe.com

www.ndwe.com

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place, they have had more time to take on peripheral


A New Experiment in Energy Eval u ate

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Brian Brantley, general counsel for SeaOne Holdings, is playing an integral role in the company’s pursuit of a radically new model for natural gas transportation

By Davi d Levi n e


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Na t h a n L i nd st ro m

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Brian Brantley, SVP and General Counsel, SeaOne Holdings


“You don’t get an opportunity like this in our industry the marketing team, everyone. You can’t just sit in your very often.” Those are the words of Brian Brantley, who has lately

office. But for me, that’s a good thing.” Brantley joined SeaOne in 2016 and, as a

found himself in a special position. As general counsel, department of one, is responsible for all the company’s and the only in-house attorney, for SeaOne Holdings, legal concerns, from contracts and litigation to he’s been able to leverage his past experience to become

management of outside counsel. The most important

a key player in SeaOne’s overall business strategy. And task is making sure the company’s contracting strategy that strategy is nothing less than to disrupt the natural supports its overall business, finance, and regulatory

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gas transportation market.

objectives—because it is, in essence, trying to do

SeaOne has created a patented compressed gas something that’s never been done before. “We have a liquid (CGL) process that liquefies, transports, and very innovative group here,” Brantley says. “My role is delivers both natural gas and natural gas liquids in to support them and their efforts to push limits and a uniquely cost-effective way. “From a technology accomplish our goals.” standpoint, SeaOne is light-years ahead” of the other

He came to SeaOne after the successful sale of his

energy companies Brantley has worked for, he says. previous company. “I was looking for the next project, “Our system may become the new industry standard in and I got introduced to the CEO here,” he says. “He how gas is transported. The storage and transportation described the new system and the business opportunity. business is a pretty traditional place. You don’t usually

The patents were done, the permits were done, the

get the chance to innovate like this.”

groundwork was in place, but there was a lot to do

Certainly not in Brantley’s prior roles, including

to turn it into an up-and-running business. It was an

his time as an outside advisor in M&A and corporate

incredibly impressive group who had come up with

finance and his work as general counsel at an

a really innovative business model. It was a perfect

established public company that operated marine combination of being on the front end of something terminals and pipelines. “In-house is different than an

that was also very real, so it was an easy sell for me.”

outside advisor, and in-house at an early stage company

SeaOne’s propriety system is, simply, a more

is different than at a more mature business,” Brantley

efficient way to transport natural gas and natural

says. “At this stage, everything matters. You need to be gas liquids, Brantley says. Traditionally, maritime engaged in all aspects of the business to understand

transportation of natural gas has used liquefied natural

the objectives and what factors will drive success. This gas (LNG) technology. LNG requires extreme cryogenic means engaging with the engineers, the finance group,

temperatures of -260ºF and can only deliver natural


Stats on SeaOne’s Gulfport, MS, Facility

32 acres of land the facility will occupy in the Port of Gulfport

length, in years, of SeaOne’s lease on

“Our system may become the new industry standard in how gas is transported.”

the land

1.6 billion total capacity, in cubic feet per day, of compressed gas liquid production that SeaOne expects the facility to reach

2 number of neo-panamax CGI carriers that will be built for phase one of the project

$3 billion the capital cost of the first phase, including the vessels

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40


IT IS OUR PRIVILEGE TO WORK WITH INNOVATIVE LEADERS LIKE

BRIAN BRANTLEY AND SEAONE.

gas, not liquids. SeaOne instead uses natural gas and liquids together to create CGL, a process that requires a much more moderate -40ºF, and can deliver gas, liquids, or custom blends. “Ours doesn’t have to get nearly as cold,” Brantley says. “The impact of that is smaller, safer facilities that cost less to build. An equivalent LNG plant would require several hundred acres; ours is on about thirty-two. We also have the flexibility to deliver gas, liquids, or custom blends to our customers at a fraction of the cost—something impossible with LNG technology. There is nothing else like it out there, and we have the patents.” SeaOne is building its plant in Gulfport, Mississippi, and it will begin sending CGL to receiving terminals in Caribbean market locations by mid-2020 (see sidebar).

1 58

source US commodities for power generation and

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“Caribbean nations are looking for efficient ways to other uses,” Brantley says. “Our system allows them to access the US commodity markets directly and have

Butler Snow is honored to celebrate Brian for his accomplishments and proud of the partnership that we enjoy with him and his colleagues at SeaOne.

the products delivered at a significantly lower cost than anything else out there.” Along the way, Brantley’s job will continue to be to help take what the company is doing and “make it work in environments that aren’t always geared to innovation, be they regulatory regimes, capital markets, or just day-to-day contracting,” he says. “We have to accommodate what is traditional with what they have never seen before. That requires some creativity—and that is the fun part of the job.”

ButlerSnow.com

AL | CO | DC | GA | LA | MA | MS | NC | NM | NY | PA | TN | TX | VA LONDON

|

SINGAPORE

LAW ELEVATED

BUTLER SNOW:

“Butler Snow is honored to work with industry leaders such as SeaOne and its talented leadership, including Brian Brantley. We congratulate Brian and SeaOne on being recognized for their efforts to provide service to the Caribbean and Central American countries who struggle to meet their energy needs. Butler Snow is proud to represent energy clients such as SeaOne throughout the US on a variety of issues ranging from project development and large transactions to complex litigation and disputes.” —R. Wilson Montjoy II


Baptism by Fire When lawyer David Fallek joined Western Union, he immediately became embroiled in—and eventually won—a seizure-warrant case with profound constitutional implications By Da vi d B a e z

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I

n September 2006, a mere four days

For several years at that point, the Arizona Attorney

before David Fallek joined money-

General’s Office had been serving seizure warrants

transfer titan Western Union (WU) as related to certain individuals to try to stymie assistant general counsel of litigation

money laundering it believed was related to human

and investigations, the Arizona attorney general’s smuggling between Mexico and the US. WU had office presented the company with a seizure warrant

been cooperating, even changing its systems to make

for all transfers made from twenty-eight different

tracking the questionable transfers easier.

states to twenty-six agent locations in Sonora, Mexico.

But, as Fallek began his work, the company was

For Fallek, what had promised to be a relaxed first day grappling with a new warrant, which suddenly getting to know his new colleagues and arranging his included all transactions between the indicated states office became something altogether different.

and Sonora. Any and all transfers of $500 or more

“I was told, ‘Welcome to the company; now we need between the locations were to be seized, meaning to figure out what to do about this seizure warrant,’”

anyone who made such a transaction would find

Fallek recalls. “I thought it was a great opportunity.

it suspended and be given a phone number to call.

Most lawyers have a desire to work on constitutional Those who dialed the number would then find issues and never get a chance to do it. My first day, I was themselves being interrogated by Arizona law already dealing with three constitutional provisions.”

enforcement personnel.


By casting such a wide net, the attorney general was making it difficult for WU to do business and potentially harming its reputation as a reliable moneytransfer service. The company also believed that the warrants were unconstitutional. “We felt the attorney general didn’t have jurisdiction to affect money transfers that didn’t have a leg in Arizona,” Fallek says. “So, in response, we filed a motion to quash that seizure warrant. It was essentially like a constitutional law class. The arguments we raised touched on the due process clause of the Fourteenth Amendment, on the Fourth Amendment, as well as on

“Most lawyers have a desire to work on constitutional issues and never get a chance to do it. My first day, I was already dealing with three constitutional provisions.”

the Commerce Clause.” After keeping a line open with the attorney general’s office to see if an out-of-court resolution was possible,

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doing so, WU was inviting negative publicity. The

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WU eventually decided to go to court. However, by attorney general was keeping the seizure warrants

David Fallek, Assistant General Counsel of Litigation & Investigations, Western Union


out of the public eye so that smugglers would remain unaware they were being pursued and not switch their methods. Now, the details of the case were being brought to light, but the potential impact of staying silent was so great that the company felt it was worth it. In January 2007, the court quashed the warrant. It ruled that the attorney general did not have jurisdiction for the warrants under the due process clause and had not established probable cause. But, the case was far from over. In July 2008, the

Steptoe congratulates David Fallek

attorney general took the case to the Arizona Court

for his commitment

of Appeals, which ruled in his favor. The question for

to innovation

WU, at that point, was whether to accept the decision

and teamwork as

or keep fighting. That would mean bringing the case to the Arizona Supreme Court. “We thought about the implications and the chances

recognized in Modern Counsel.

we would succeed,” Fallek says. “In the end, we did go

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to the supreme court. We knew that if Arizona could do this, other states might get the same idea. Any border state could decide to do this, and that would have huge consequences to our company and the money-transfer business at large.” Fallek was fascinated with constitutional law in school and had clerked for a federal judge. He knew that at the state supreme court level, a judge would not only consider legal arguments but also think about the

BEIJING

larger implications of the decision—how it might affect

BRUSSELS

law enforcement’s ability to do its job, for example. He

CHICAGO

and a small team restructured the company’s arguments

LONDON

to address what they felt had been errors in the way the

LOS ANGELES

appeals court had ruled on the case. Finally, in 2009,

NEW YORK

the Arizona Supreme Court ruled in WU’s favor, stating

PHOENIX

that the blanket warrants were unconstitutional.

SAN FRANCISCO

It was a long fight to get to that ruling, but Fallek

WASHINGTON

says it was more than worth it. “The case was long and

www.steptoe.com

difficult,” he says, “but it ended the attorney general’s practice of seizing money transfers and confirmed the company’s commitment to consumers.”

ATTORNEY ADVERTISING


The Ins and Outs of IP Lora Teska offers five best practices that will help any IP professional take a product from the patent process to the market—and contribute better to business development By Kel l i La wre n ce

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16 2

self-described technology geek 1) FIND A PATENT FIELD THAT’S COMPELLING

A

who pursued an interest in forensic Though Teska admittedly enjoys learning about chemistry until discovering patent devices and products of all sorts, she found the law, Lora Teska has been passionately challenges of pharmaceutical IP uniquely engaging.

focused on intellectual property since the mid-1990s.

“Pharma patents are the only ones eligible for patent-

“People think everything that could be invented already

term extension,” she says, but she adds that it’s often

has been, and that’s just not true,” she says. “It’s amazing a “double-edged sword” to get patents filed as early how much more can be done. That’s what I still think is as possible when clinical trials don’t go according exciting about patent law.” Teska’s IP work has pushed her to become familiar

to plan. “There’s a real regulatory overlap that’s interesting.”

with all kinds of products, from bilge pumps to

Finding a stimulating patent field also made Teska

neonatal testing kits. More recently, drugs and medical

more invested in her company’s performance in that

devices were her focus while she served as IP counsel

field. During her time with AMAG from 2014 to 2017,

for AMAG Pharmaceuticals.

she helped oversee the company’s rapid development

Not long ago, she left the company, but her time there

and expanded its legal team at the same time. “They

and elsewhere has afforded her an acute awareness of IP had a merger with Lamar Health and increased their best practices and their impact on business development—

development activities through acquisition and

an awareness she’s ready to take wherever she goes next. licensing of new products,” she says. “That’s when we Here, she shares a few of the lessons she’s learned so far.

added four more attorneys and another paralegal.”


2) REMEMBER THAT REGULAR COMMUNICATION AMONG TEAM MEMBERS IS KEY Teska remembers being the IP representative on a team that also included staff from finance, tax, legal, HR, and a number of other business departments. She remembers regular meetings where businessdevelopment candidates were discussed in detail, whether Teska’s team was interested in the candidates’ technology or looking to acquire them completely. “As things heated up, we would get more involved in the due diligence activities,” she says. “Everyone would drill down in their specific functions to investigate

“You have to ask all the questions, completely understanding both how the technology works and how it’s going to be used.”

became involved in the business-development process.” 3) UNDERSTAND THE NUANCES OF WHAT YOU’RE WORKING WITH When doing due diligence for business development or an investigation, Teska emphasizes the need to be thorough. “You have to ask all the questions, completely understanding both how the technology works and how it’s going to be used,” she says. “You have to ask, ‘Will this be used exactly the same way each time? Or will anything be modified?’ If you’re going to change a dosage, for instance, then you need to know from a patent standpoint whether or not you’re going to be able to do that.” 4) KEEP A WATCHFUL EYE ON THE COMPETITION Teska was once doing IP for a company that had developed a blood-cleaning device designed to reduce pathogens. She and her team learned, though, that another company was doing something similar, and their guard went up.

Lora Teska

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and really flesh out the details. This is where I initially

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navigating the way Polsinelli salutes Lora Teska, Intellectual Property Counsel for AMAG Pharmaceuticals. We are honored to partner with Lora and AMAG Pharmaceuticals to provide straight forward, businessoriented legal advice.

Leaders stand out.

“We were very diligent in protecting all parts of the process—everything from the chemicals to the machine that essentially cleans the pathogens,” Teska says. “But, we were also trying to understand as much as possible about our competitor’s process, to make sure our IP would preclude them from being able to use our process.” Incidentally, neither company involved was able to secure FDA approval for its product, which leads to Teska’s final lesson. 5) COME TO TERMS WITH REGULATORY STRUGGLES According to Teska, the pharmaceutical industry’s primary defense of high drug costs is that so much time

16 4

the drugs to market in the first place. “As a consumer,

Eval u ate

and money is involved in the IP process—that is, getting I want to pay lower prices, too,” she says, “but as a member of the pharma industry, I understand where the justification comes from—for not only the ones that are successful but the millions that fail.” Being a part of the development process can be a harrowing experience. Though she’s no longer with AMAG, Teska is still eagerly awaiting the outcome of several of the company’s pending FDA applications. “You get so involved in the product,” she says. “You know its potential use and benefit for the patient, but the FDA can always come back with questions or want clarifications. From a legal standpoint, it’s out of your control.”

POLSINELLI:

polsinelli.com The choice of a lawyer is an important decision and should not be based solely upon advertisements.

“Polsinelli is grateful for the opportunity to work with Lora Teska and the entire AMAG team on intellectual property matters. Lora understands how patent exclusivity impacts the value of an acquisition. Her firm grasp of the law, in combination with her keen business acumen, allows her to provide practical solutions to complex issues. It is my honor and pleasure to be a part of Lora’s team.” —Kate Doty, Shareholder


Litigation

Anna Richo, executive vice president and general counsel of UCB, a Belgium-based biopharmaceutical company, believes good storytelling is an essential ingredient when arguing intellectual property cases in court. In fact, the larger story surrounding a drug—how it fulfills an unmet need, how it changes

through

patients’ lives—is at the heart of UCB’s patientcentered approach. UCB’s strategy focused on patient value can be visualized as a pyramid, Richo explains, with the patients themselves at the top and science and solutions forming the base. Patient insights inform the science, which is used to develop solutions for those patients. “When we initiate litigation, we align with that patientburden of the disease and the serious, unmet need our drug is fulfilling,” Richo says. She began developing her IP experience—and her knack for storytelling—during her years at Baxter Healthcare, where she was chief litigation counsel from 1994 to 1998 and vice president of law for the bioscience division from 1998 to 2003. While at Baxter, she became heavily involved in mass tort product-liability litigation in the biopharmaceutical sector, which required her to become knowledgeable about biology, technology, and medicine. One of her direct reports was the company’s chief patent counsel, so she also became knowledgeable about intellectual property and its legal lexicon—as well as theories for invalidating patents. In 2012, she transitioned into her current role at UCB and brought her skills with her.

By Ste p h a n i e Ze i l e n g a

Because IP cases are highly technical, many lawyers jump straight into the science and mechanism of

Anna Richo and biopharmaceutical company UCB’s success in intellectual property cases stems from defending true innovation with a strong focus on patients and their stories

action of the drug in question. Richo has learned to take a different tack, though, opting to place the patient at the heart of a compelling narrative. “I want to know what the invention is and why and how it’s important to society,” she says. “This was the approach

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Narration

value approach by telling a story which includes the


Anna Richo’s Best Practices for IP Litigators Whether she’s up against a mass tort or a challenge from a generic-drug maker, Anna Richo stays the course, focusing on the value her work can bring to patients. Here, she shares a few tips for others tackling IP litigation in the pharmaceutical sector. Make an honest assessment. Before moving forward with a suit, determine whether you have a bona fide innovation to protect. Anna Richo

Think like a patient. Don’t approach

EVP and General Counsel

litigation solely through a technical lens.

UCB

What value does the drug bring to patients? How does it change their lives? we took with mass tort cases. Juries want to hear the Tell a story with a beginning, middle, and

story; it’s a natural instinct. This same approach works

end. The story should bring alive the bur-

equally well in IP cases involving medicines that treat

den of the disease that your company’s

serious diseases. Everyone, a judge or jury, can relate

drug or therapy will help fight, how the

to these stories.”

drug or therapy in question meets unmet needs, and how it’s a true innovation.

Her approach has become the modus operandi for her entire team, which includes an outstanding in-house IP team and phenomenal outside counsel. “Through their deep understanding of our patientvalue strategy, our outside counsel are able to combine the science with the patient need and tell a story that highlights the innovation of the science leading to discovery of a solution to address the patient’s unmet need,” Richo explains. Victories in recent cases highlight the effectiveness of UCB’s approach. The first case was one UCB

Ja m ey St i l l i n gs

Eval u ate

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“When we initiate litigation, we align with [our] patient-value approach by telling a story which includes the burden of the disease.”

Covington commends

Anna Richo of

UCB for her innovative leadership and professional dedication.

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brought against more than a dozen generic-drug makers, who were seeking to invalidate the company’s patent for the antiepileptic drug Vimpat. The case, which UCB won in Delaware’s district court, is currently being appealed to the federal circuit. “The treatment for epilepsy is heterogenous, so it’s hard to find a single drug or solution,” Richo says. “When you have a true innovation, like we did in this case, you have to defend it.” Second, UCB recently defeated a generic challenge to a product called Neupro, which is a patch used to treat Parkinson’s disease. Although rotigotine, the patch’s active pharmaceutical ingredient, is off-patent, the delivery system is what Richo would call a true innovation, warranting defense. UCB won the case in Delaware’s district court.

www.cov.com


Trial & triumph

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“Juries want to hear the story; it’s a natural instinct.”

Although Richo’s job requires a delicate balancing act between serving the interests of patients and defending innovation—two goals that can sometimes appear

Congratulations to Anna Richo on her recognition by Modern Counsel

at odds—UCB’s patient-centric mission and her narrative approach to cases makes it a little easier. “When we litigate, our number one concern is whether we have true innovation—something that impacts patients in a meaningful

White & Case is a global law firm with longstanding presence in the markets that matter today.

way,” Richo says.

WHITE & CASE:

whitecase.com

“Being a former trial lawyer, Anna Richo is that unique GC; she drives the ultimate business objective but is wired to inform day-to-day strategy with equal grace and focus. White & Case is honored to celebrate Anna’s success.” —James Trainor, Partner


A Core

The Freeman Company may be the world’s largest provider of brand experiences, but the business’s roots are actually quite humble. Originally established as a solitary, family-owned party store in Iowa, it spent 2017 celebrating its ninetieth anniversary in grand fashion. Dawnn Repp has been

Focus

with the company for the past eighteen of those years, and during that time she has seen Freeman evolve in ways she never could’ve imagined. Repp was hired as Freeman’s very first in-house counsel, and she now serves as executive vice president and chief legal and administrative officer. She jokes that she remembers a time when the now-global company had to be reminded that Canada was in its around $850 million in revenue, with operations in the US and Canada,” she says. “Today, we are at $2.6

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billion and in thirteen countries.” Repp has spent

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on Culture

jurisdiction. “When I first started, the company was

much of her tenure contributing to the company’s vast expansion. And, in addition to assisting Freeman with acquisitions and forays into new territory, she has also helped draw new businesses and talent by serving as a leading advocate of the company’s focus on culture, diversity, and sustainability. Freeman’s good reputation goes back a long way, as evidenced by the fact that it wasn’t a company Repp had to familiarize herself with when signing on as inhouse counsel. She’d already heard of it because her father, an insurance broker, was a longtime provider for the company. Repp says people at Freeman today still remember that relationship. “[Freeman] was my dad’s largest and favorite client,” Repp says. “What I really By Will Grant

learned from my father growing up was that service to the customer was paramount—that you need to put

The Freeman Company’s Dawnn Repp is building on the business’s stellar reputation with a concentration on integrity, diversity, and sustainability

yourself in their shoes to truly be successful.” Repp took the lesson on empathy to heart and still calls upon it, approaching her role at Freeman as a business partner first and an attorney second.


Freeman Forward

Since joining Freeman, Repp has helped orchestrate a continued effort to redefine the company’s identity for

Forward, initially founded as Freeman

the modern era. “We have truly evolved from this idea

Women Development (FWD), has

that we were just a logistics company,” she says. “We’ve

continually sought advancement not

transformed into a design-thinking organization, where

only for women but for all leaders who

we are really focused on brand experiences.” That’s a

value diversity. Since its inception in 2011,

much broader category of business than Freeman was

the group has established twenty-two

focused on even a decade ago. Repp credits Freeman’s ease of expansion not only

1,700 members in total. The group has

to its ingenuity but also to its culture as a family-

achieved a high profile in a short period

owned company. “The people and companies that we

of time and aims to achieve Freeman’s

have acquired are very excited to join Freeman,” Repp

more overarching vision of a workforce

says. “Our culture speaks for itself in the marketplace.”

strengthened by diversity of experience.

Repp sees Freeman’s focus on integrity as integral to

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Here’s a look at what it has achieved and

its success going forward, and it’s more than simply

Eval u ate

volunteer-staffed chapters, boasting

hopes to achieve in the near future.

policy; it’s a state of mind. “If you have a question about whether or not something is right,” Repp says, “the

It provided leadership mentorship

answer is: ‘would you be embarrassed to tell a member

opportunities for eighty pairs of women

of the Freeman family about it?’”

and men last year.

Reputable company culture has come to mean many things for Repp, including an emphasis on

Local chapters provide opportunities

diversity, and she’s dedicated a great deal of time and

for employees from different parts of

energy to making Freeman a leader in the field. For

the company to interact and empower

example, along with three other women, she helped

each other.

found the Freeman Women Development program. Initially started in 2011 to promote female leaders,

It has a goal to put women in half of all

the group has since expanded its scope (and changed

leadership positions by 2025.

its name to Forward) to promote diversity and inclusion of all kinds. “The least-performing teams

The group aims to make Freeman a

are people that all think alike,” Repp says. “We have

creative and inspiring employment

to have diversity of background.”

destination that leads by empowering those who value diversity.

Repp’s focus tends to be forward looking. As part of a Freeman team tasked with examining sustainability, she and other company representatives recently traveled to Copenhagen, Denmark, to examine new ways to operate sustainably without increasing Freeman’s use


EVP and Chief Legal & Administrative Officer The Freeman Company

of resources. Repp says it’s an issue she’s passionate about, and she’s continually encouraged by Freeman’s

Congratulations to Dawnn and Freeman on a 90th Anniversary.

commitment to sustainability. As Repp and her team chart Freeman’s ongoing evolution, she believes its family focus on values and integrity will continue to guide its direction. After all, it’s worked for the past ninety years. “They started out decorating frat houses at the University of Iowa He nr i k Ol und

and became a global $2.6 billion company—all the while keeping the amazing culture intact,” Repp says. “I think the Freeman family has done pretty well for themselves.”

Local Firm. Global Reach. 77 Offices | 47 Countries 4600+ Lawyers Worldwide www.bakermckenzie.com

171 Mode rn Cou n s e l

Dawnn Repp

Baker McKenzie salutes Dawnn Repp, Executive Vice President and Chief Legal & Administrative Officer at The Freeman Company, for leading the company’s legal department and advising on its innovative strategy.


The Business of the First Amendment Eval u ate

172

In Stephanie Abrutyn’s career in media law, she’s worked to develop a deep understanding of not only the content she’s defending but also the operations of those who produce and distribute it


By G e off G e orge

173

learned more along the way about how exactly it’s

of the highest-profile defamation cases in recent

created and distributed.

history, after a segment on child labor aired on

“There have to be checks and balances, and a lot of

one of its shows, Real Sports with Bryant Gumbel. the people who threaten to sue the company I work for Mitre, a worldwide soccer brand, had brought the now over the content of our programming are trying lawsuit, claiming that the program’s footage of to control the public narrative about them or their children stitching Mitre soccer balls for pennies was

business,” she says. “That, I think, is dangerous. I think

“dramatized,” “fictitious,” and even a “hoax.”

we’re better off being in a world where different people

HBO’s legal team, including Stephanie Abrutyn, with different points of view can get them all out there.” senior vice president and chief counsel of litigation,

Her passion for such work began as an interest in

spent the next six and a half years working on the politics at a young age. She remembers watching the case, gathering evidence and depositions from the Watergate hearings with her father, and she went to children, from stringers in India, and others and college thinking a career in Washington, DC, might eventually going to court with Mitre in April 2015.

be for her. But, after spending two summers working

The following month, at the end of the seventeen-

on Capitol Hill, she headed to the University of

day trial, after just five hours of deliberation, the Pennsylvania Law School, no longer sure that politics jury returned a verdict in HBO’s favor. Mitre never

was where she wanted to be. While there, she discovered

appealed the case, either. It was a huge win for HBO, media law, and the idea of protecting the words and and it was particularly satisfying for Abrutyn, who’s

works of writers and artists immediately appealed to her.

spent her entire career standing in defense of creative

Fresh out of law school, Abrutyn joined Baker &

expression, both factual and fictitious—and who’s Hostetler, where she did work for variety of news

Mode rn Cou n s e l

In October 2008, HBO found itself pulled into one


outlets, including a few large ones such as the New York Times. Her job largely consisted of vetting stories prior to publication to make sure they weren’t legally actionable and handling litigation for any outlet that needed to go to court because of a story. “I loved the high concept of doing something that I felt was contributing to the world as a whole,” she says, “and I also just found the process fascinating, going through all the materials that the journalist gathered in advance of putting out a news story.”

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and in 1999 she moved over to the Tribune Company.

Eval u ate

In 1996, she took her skills in-house by joining ABC, As she continued to vet stories and litigate for the companies and the outlets they owned, though, she also began learning more about the actual business of media companies. For the Tribune Company properties she worked with, “I was the corporate lawyer, I was the advisor to senior management, I was the marketing lawyer, and I also did the newsroom advising and vetting as well as the litigation,” she says. “That gave me a real window on how the ability to publish intertwined with the business side of things.” Since 2005, when she joined HBO as a litigator, she has continued to develop her knowledge of the media business as her company has transformed from a linear cable channel into a major streaming service. “I’ve learned a lot about technology and technology licensing,” she says. “I’ve also learned fundamentally how the television business operates and the distribution side of it.” Today, she works with a team of twelve lawyers and support staff, which collaborates closely with a larger legal department consisting of marketing

Stephanie Abrutyn, SVP and Chief Counsel of Litigation, HBO


lawyers, programming lawyers, technology lawyers, transactional lawyers, and others. She also works with and directs outside counsel on how exactly to handle HBO’s cases, and she says they know she’s “not shy with her red pen.” While her own role has expanded significantly beyond media law into other aspects of HBO’s operations, much of her team’s work is still focused on the company’s content, protecting it from libel, invasion of privacy, and copyright infringement claims brought by other companies and individuals. One recent case, in which coal magnate Robert Murray filed a defamation suit against HBO and others after

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being named in a segment on the HBO show Last Week

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“I was the corporate lawyer, I was the advisor to senior management, I was the marketing lawyer, and I also did the newsroom advising and vetting as well as the litigation. That gave me a real window on how the ability to publish intertwined with the business side of things.”

Tonight with John Oliver, has made national headlines. Abrutyn is the lead in-house lawyer for the case, and she can’t say much about it while it’s still ongoing, but it’s clear that the work is representative of values she has always fought for and will continue to fight for. “As we said in our brief, repeatedly, Murray and Murray Energy have engaged in ‘punitive litigation designed to chill constitutionally protected speech’ with which they disagree,” she says, “Philosophically and constitutionally, I love the fact that at the end of the day I can be proud of the products that HBO has out there in the ether, of our programming, of our shows, of our service, and defending programs’ right to present things the way they think is appropriate is something I find extremely gratifying.” KELLEY DRYE & WARREN LLP:

“Stephanie’s intelligence and fearlessness come through in every matter on which we work. Her dedication to legal excellence and to advancing HBO’s innovative programming is admirable.” —Lee Brenner, Partner


People & Companies STEPHANIE ABRUTYN, P172

TERESA Y. BERNSTEIN, P84

CHRISTIAN GENETSKI, P144

SVP and Chief Counsel of Litigation HBO

Chief Legal Officer and Chief Compliance Officer ACON Investments

Chief Legal Officer FanDuel KEVIN GLEASON, P48

SCOTT AKAMINE, P72

General Counsel and Secretary The Incipio Group

SVP and General Counsel SeaOne Holdings

SVP, Voya Investment Management Chief Compliance Officer, Voya Family of Funds

HELEN BROWN, P128

JODI GOLINSKY, P148

General Counsel of Corporate Finance and Corporate Secretary Bank of the Ozarks

General Counsel and Chief Compliance Officer FS Card

JARON BROWN, P87

RANDALL HAIMOVICI, P116

Assistant General Counsel Novelis Inc.

Director, Litigation Uber

BRIAN BRANTLEY, P154

KRISTY BALSANEK, P54

General Counsel for North America gategroup

NICOLE BARTOW, P116

Director II, Litigation Uber

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PARTNER CONNECTION KAREN DUNN Partner Boies Schiller Flexner LLP 202.895.5235 kdunn@bsfllp.com Karen L. Dunn is a nationally known trial lawyer who combines litigation skill with a crisis management practice, solving her clients’ biggest problems both inside the courtroom and out. JOHN BOVICH Partner Reed Smith LLP 415.659.5926 jbovich@reedsmith.com

SARAH HILTY, P42 JASON L. BROWN, P10

General Counsel of the Americas Dyson, Inc. PARTNER CONNECTION ROSS M. WEISMAN, P.C. Partner Kirkland & Ellis LLP 312.862.2120 ross.weisman@kirkland.com Ross Weisman is a partner in the Intellectual Property Practice at Kirkland & Ellis and the head of Kirkland’s nationallyrecognized Advertising, Marketing and Promotions Practice.

John Bovich is a trial lawyer practicing in the areas of intellectual property, technology and commercial litigation.

STEVE BEAVER, P45

SVP, General Counsel, and Secretary Aspect Software

Deputy General Counsel, Corporate, and Assistant Secretary CH2M Hill

MIA CHIU, P31

General Counsel Ebates DAVID FALLEK, P159

Assistant General Counsel of Litigation & Investigations Western Union

POLLY KLANE, P18

SVP and Chief Counsel, Governance, Commercial Bank and Enterprise Services Capital One PARTNER CONNECTION HELEN V. CANTWELL Partner Debevoise & Plimpton LLP 212.909.6312 hcantwell@debevoise.com Helen Cantwell is a former state and federal prosecutor with extensive trial experience. Her practice focuses on white collar criminal defense, regulatory enforcement actions, and internal investigations.


PRESTON RAY, P35

ASHLEY KRAMER, P51

Senior Counsel, Litigation & Employment, and Assistant VP of Safety and Risk Comfort Systems USA DOUG KRAMER, P151

General Counsel Cloudflare KURT A. KRIEGER, P105

General Counsel and Chief Compliance Officer HGGC CATHERINE LACAVERA, P134

Director of IP & Litigation Google

General Counsel Compuware MICHAEL LEVINE, P15

General Counsel Local Initiatives Support Corporation SHAUN MOORE, P77

Corporate VP of Legal AMD

Senior Director of Global IP & Patents Harman PARTNER CONNECTION MARTIN J. SULTANA Shareholder, Co-Chair Autonomous Vehicle Practice Group Brooks Kushman 248.226.2873 msultana@brookskushman.com Martin is the Co-Chair of Brooks Kushman’s Autonomous Vehicle practice. He has extensive experience managing global patent portfolios for automotive OEMs and suppliers.

JOAN PINAIRE, P28

SVP of IP Law Realogy Holdings SARAH POWELL, P38

EVP, General Counsel, and Secretary Focus Brands

TOM QUINN, P138

Senior Counsel, Litigation Schindler Elevator Corporation

BLAKE NICKLES, P67

PARTNER CONNECTION

Senior Patent Counsel Hubbell Incorporated

CHRIS AUBERT Partner The Aubert Law Firm 817.488.3234 caubert@aubertlaw.com Chris concentrates his practice in products liability, general casualty, and business and commercial litigation, as well as business consulting and turnarounds.

ELIZABETH O’CALLAHAN, P90

VP of Intellectual Property, Corporate & Securities, Corporate Compliance, and Employment NetApp

Assistant General Counsel for Corporate Strategy Cummins DAWNN REPP, P169

EVP and Chief Legal & Administrative Officer The Freeman Company ANNA RICHO, P165

EVP and General Counsel UCB YANIKA SMITH-BARTLEY, P111

VP and Special Counsel for Diversity & Inclusion Asurion ALLAM TAJ, P95

Director and Associate General Counsel CitiGroup LORA TESKA, P162

IP Counsel AMAG Pharmaceuticals LEILA VESPOLI, P98

EVP of Corporate Strategy & Regulatory Affairs and Chief Legal Officer FirstEnergy Corp. SUE E. WEISKE, P24

VP and Associate General Counsel Charter Communications

177 Mo der n Co un sel

KILEY LEPAGE, P108

FRED OWENS, P60


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C a ss Da v i s

“You know that old expression, ‘That which doesn’t kill you makes you stronger’? From experience, I know that to be true.” —Leila Vespoli, FirstEnergy


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Modern Counsel #15  
Modern Counsel #15