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I’m excited to collaborate with every executive we profile in this magazine, but working with Tom Girardi, cofounder of the esteemed Girardi & Keese law firm, is the first time I’ve felt a little starstruck.
This is a litigator with decades of experience, who’s had a hand in some of the biggest corporate-malfeasance cases in legal history, including the record-setting $333 million settlement in Anderson et al. v. Pacific Gas and Electric, the 1993 case that served as the basis for the movie Erin Brockovich . And, if that weren’t enough, he’s also a bona fide TV personality, known for his appearances as the husband of Erika Jayne on The Real Housewives of Beverly Hills.
Despite all this, though, Girardi is incredibly down to earth, and he was generous enough to sit down for a lengthy chat (p.68). It was inspiring to hear about how he got into law in the first place, how he has managed to retain the same staff for so many years, and what in-house counsel might want to consider when seated across the negotiating table from him. His direct, Perry Mason–based philosophy focused on helping people and doing the right thing is noteworthy in the legal field, where often it seems the goal is instead to obfuscate and complicate matters.
Our feature section this issue highlights unconventional thinkers as well. Among others, Donna Peavler (p.54) shared the story of how she built her own law firm in part by becoming a leading expert on a niche area of employment law in her home state of Texas. Neven Rabadjija (p.62) explained how he’s kept Eversource Energy Company at the forefront of sweeping deregulation and technological change in its industry over the past three decades. And American Eagle Outfitters’ Erin McCurdy (p.46) spoke about how her international work on consumer privacy for the company has put it three years ahead of the competition.
I hope their efforts—and that of others in the issue—inspire your own efforts to innovate in the legal field.
Geoff George Senior Editor
Celebrating legal leaders and their latest departmental and corporate efforts and achievements, including transactions, expansions, negotiations, inclusion initiatives, and more
By Lori Fredrickson
At HCA Healthcare, Kristin Kenney combines her entrepreneurial experience and legal acumen to optimize ever-changing tech and data-compliance efforts across the company
KRISTIN KENNEY VENTURED INTO THE LEGAL WORLD AFTER a successful career as an entrepreneur and business manager. Today, she leverages that frontline business insight as the technology, privacy, and cybersecurity legal counsel for HCA Healthcare, a Fortune 100 company, working with every single division of the multibillion-dollar medical facility network. “Having a partnership with the business is about really being able to listen to what’s working and what’s not—and then figuring out how to fix it,” Kenney says. “That means listening to everyone—from the executives to the business operators who actually run the facilities and divisions—and understanding what their needs and frustrations are.”
Equipped with a JD in business and entrepreneurial law from the University of Missouri–Kansas City, Kenney previously worked with a variety of new and emerging-growth companies during her years as an associate attorney at Polsinelli, helping startups from the early stages of formation through their full growth cycle. She developed an interest in HCA’s work in particular when the healthcare provider—comprising 178 hospitals and 1,800 sites in 20 states and the United Kingdom—became one of her clients.
When HCA approached her in 2014 to join the team full-time, she jumped at the opportunity. “It was a new challenge,” she says. “HCA has an incredible team of technologists and security resources. It’s an organization that really does good in the world. What I enjoy most about in-house practice is the ability to build meaningful partnerships with my business teams, which helps me understand their goals and provide creative solutions from there.”
Part of building partnerships as in-house legal counsel requires fixing legal processes that aren’t working. Kenney’s initial project involved streamlining HCA’s information-security program, which had previously operated on a more-than-six-month negotiation timeline, at significant impact to the sales cycle, causing frustration among vendors and internal business owners. “As a healthcare company, ultimately we want to do what’s best for our patients,” Kenney explains. “And this was a pain point, because our diligence in IT security involved a significant time and often legal expense.”
To address this issue, Kenney worked with the business team to streamline the ISA template from its original forty pages into a mere ten-page document, and she developed playbooks and training programs. This resulted in a nearly 70 percent reduction in internal and external time spent on related processes, and it shortened the negotiation timeline to fifty days.
Kenney also streamlined all IT and IP contracting work at the facility and division level. After meeting with various stakeholders to understand their frustrations with the existing processes, she identified and lead the implementation of a solution. She developed a short rider that addressed high-risk concerns such as data ownership and security, representations and warranties, indemnity, limitation of liability, and regulatory issues. It empowered the business to move forward with no legal review if the rider was signed by the vendor without changes. If changes were required, Kenney implemented an abbreviated legal review focused solely on high-risk issues. This reduced the master-agreement review timeline from six months to two weeks and cut legal spending from an average of $30,000 per agreement to about $750. “This has been a huge improvement on how we handle risk related to field operations,” Kenney says. “It has enabled our hospital operators to continue providing the best patient care possible while ensuring that HCA’s risks are protected.”
More recently, Kenney has found herself working closely with business units across the company on a new challenge: compliance with the European Union’s (EU) General Data Protection Regulation (GDPR). “GDPR is really different from American privacy laws, and it’s also a major change from what the EU had in place to begin with,” Kenney says, adding that it was important to navigate the new rules both within the US and within HCA’s UK division. “That made it key to make sure that everyone was on the same page and working toward the same goal.”
Kenney worked with information protection, security, and a number of other departments to break down the company’s compliance needs. Together, they identified starting points and high-priority issues and determined how to tackle them all as a single project. The effort allowed the company to implement new policies and procedures in place in time to meet a tight deadline for compliance.
Kristin Kenney
Technology, Privacy & Cybersecurity Legal Counsel
Polsinelli’s technology clients inspire and motivate us to execute creative strategies that protect their unique ideas. Our attorneys analyze risks and fast-track the process to enforce clients’ rights so their visions for tomorrow can become a reality.
There’s light at the end of the tunnel.
“What I enjoy most . . . is the ability to build meaningful partnerships with my business teams, which helps me understand their goals and provide creative solutions.”
As a technology attorney for HCA, Kenney also oversees technology transactions, cybersecurity, privacy, and operations as the company’s needs evolve. She manages contract negotiation and serves as a point person for escalations while collaborating with strategic teams to ensure HCA’s data is closely safeguarded. Much of her work has been at the enterprise level, particularly her work on internal and external product development. And, she has also assisted with the development of an internal product, including the related policy and training, that helps identify and safeguard sensitive patient and company data.
Kenney’s achievements have come largely by lending an ear to all facets of the enterprise. “It’s important to understand your business team’s goals and frustrations to support them,” she says. “And it’s important to understand what a particular product does and how we’re planning to use it, which means that you really need to ask the right questions. Taking the time to do that helps ensure that you have a full picture of what’s happening and are providing solid counsel.”
A champion of both law and business, Kenney says she has loved learning about HCA by taking a comprehensive approach. “Working in-house gives you a different perspective of legal practice,” Kenney says. “Having a good relationship with your business team and building mutual trust enables you to have a great partnership.”
Polsinelli:
“As outside technology and privacy counsel for HCA, it is a real pleasure to work with Kristin. She understands operating in the difficult and fastpaced healthcare-technology industry, and Kristin is always clear and decisive in her decision-making.”
—Gregory Kratofil, Jr., Tech Transactions & Data Privacy Chair
Kimball Electronics’ chief compliance officer, John Kahle, embraces “doing the right thing” to meet regulations and stay within the law
By Valerie Menard
WITH SO MANY
, which are different from jurisdiction to jurisdiction, corporate compliance and its enforcement can present businesses and their legal teams with a tangled knot of challenges. John Kahle, though, vice president, general counsel, secretary, and chief compliance officer at Kimball Electronics, Inc., follows a simple philosophy to carry out his job: do the right thing.
“Compliance means keeping an eye on the big picture, with an emphasis on doing the right thing, period,” he says. “It means I can trust you when no one’s looking. At Kimball, we emphasize this as part of our corporate culture., “Do the right thing” is our motto.”
Kahle has arrived at this mind-set over the course of a career spent steadily acquiring more understanding of internal business practices. Growing up on
a farm in Indiana, he didn’t necessarily aspire to become an attorney, but he was a good student, and his teachers exposed him to more possibilities, like accounting and the law. The first in his family to attend college, he pursued a degree in accounting from Indiana University, graduating summa cum laude. He began his career as a certified public accountant but did not find accounting and tax to be his passion, so he returned to Indiana University to attend law school.
After graduating, he worked in private practice for a few years but found that it, too, lacked fulfillment. Hourly billing struck him as inefficient, and when he and his wife began planning a family, personal and professional reasons prompted him to consider a change. Luckily, serendipity stepped in.
Searching for a way to make a greater contribution as a lawyer, he came across a recruitment ad for Kimball International, an Indianabased company, for its first in-house legal counsel. He applied for the job and was hired in 1987 by Jim Thyen, Kimball’s CFO at the time and eventual CEO. Kimball Electronics was a division of Kimball International, and he joined Kimball Electronics when it was spun-off from Kimball International in November 2014.
“I didn’t like the nonproactive nature of private legal practice,” Kahle says. “The client would come in with a smoking gun and expect me to fix it. In the corporate world, you get involved earlier; it’s more preventive.”
To help Kimball navigate new regulations and tariffs in the electronics industry, Kahle instituted five key elements into its compliance model: leadership, risk assessment, standards, training, and oversight. “The responsibility for compliance is in the operations,” he says. “If we make mistakes in accounting, that doesn’t mean the compliance program is not good; it’s the responsibility of the finance group. When we organized our overall corporate compliance program, we made sure to look at who had authority and responsibility.”
He cites recent controversies, including at Wells Fargo, where sales pressures inspired employees to create fake bank and credit card accounts without their customers knowing, and at Volkswagen, where the company directed employees to install devices in vehicles with diesel-powered engines to deceive emissions testing, as examples that illustrate how even a robust corporate compliance program can fail. “I’m sure they had tons of compliance
John Kahle VP, General Counsel, Secretary, and Chief Compliance Officer
Kimball Electronics, Inc.
“Compliance means keeping an eye on the big picture, with an emphasis on doing the right thing, period.”
people, but they still cheated,” Kahle says. “That’s why the first part of compliance requires that you make people accountable.”
Kahle also a takes proactive approach to keep Kimball prepared for legal or regulatory shifts. Most recently, the current tariff wars with China found Kahle heading to the nation’s capital. “China has components that we can only get from there that are unique to our products, so we had to go to work quickly,” he says. “We testified against the tariffs. It didn’t stop them, but we wanted our customers to know that at least we didn’t stand by; we took action.”
During his tenure at Kimball, Kahle has enjoyed watching the compliance culture develop further and be applied in a variety of Kimball facilities around the globe. And, he has also enjoyed getting the chance to deal with so many different people in different areas of the ever-stimulating company.
“No society thrives without the application of intellectual property—creating something of value, designing, making a product,” Kahle says. “At its core, business is about invention, changing things. I find that fascinating.”
To John Kahle:
Whose works over the last 25 years have inspired us thru his example.
We can just say that we are thankful for having the privilege to have worked with such a great lawyer and businessman, and it’s an honor to be able to call him our friend.
Hoping the best is yet to come.
Bryan, Gonzalez Vargas & Gonzalez Baz
YOU COULD SAY KIERAN FALLON HAS A knack for being in the right place at the right time. His graduation from New York University School of Law in 1992 coincided with a period of explosive growth in the mutual fund industry— the net assets of mutual funds grew from $1.6 trillion in 1992 to $5.5 trillion in 1998, an average annual growth rate of 22.4 percent—creating considerable work for the banking and financial services group at Morrison & Foerster, where he was an associate. In 1995, he joined the US Federal Reserve Board. He focused initially on bank mergers and acquisitions, but in 1997, he was asked to work on the Gramm-Leach-Bliley Act.
“The act tore down the barriers of Glass-Steagall and opened the doors for banks, securities firms, and insurance companies to affiliate with each other,” Fallon explains. “I was given lots of opportunities by my supervisors, including participating in negotiations on Capitol Hill. I was even there at 2 a.m., when the committee reached the final compromise which facilitated passage of the bill.”
Fallon was also counsel to the Financial Stability Oversight Board, which oversaw the implementation of the Troubled Asset Relief Program (TARP), designed to address problems created by the subprime mortgage crisis, and on the Fed’s AIG team. In 2010, he worked on the Dodd-Frank Act. “It was an exciting time to be at the Federal Reserve,” he says.
By Bridgett Novak
The insight Kieran Fallon gained in his sixteen years at the US Federal Reserve is helping him boost PNC’s digital strategy by paying attention to a diverse set of stakeholders
His extensive expertise hasn’t gone unnoticed by those he’s worked with, either. “For many years, Kieran has been one of the most important players in the evolution of financialservices regulation,” says Richard K. Kim, a partner at Wachtell, Lipton, Rosen & Katz.
In 2011, a position opened up at banking giant PNC Financial Services Group: chief regulatory counsel. “It was a very good fit,” Fallon says. “PNC’s philosophy of being safe and sound and taking care of its customers had served them well throughout the crisis, so I had a great deal of respect for their management team. And my time at the Fed gave me intimate knowledge of the regulations they would be dealing with.”
Based in Pittsburgh, Pennsylvania, PNC has grown into a $380 billion industry leader over the course of its 166-year history. Its retail network comprises 2,400 branches and 9,000 ATMs across 19 states and the District of Columbia, and its asset-management products and retail and corporate banking services assist a variety of customers—from individuals and small businesses to corporations and government entities. Even with offices in Canada, China, Germany, and the United Kingdom, PNC remains attuned to its customers’ local communities, and Fallon helps facilitate that strategy. He was promoted to senior deputy general counsel responsible for regulatory, government affairs, and enterprise risk in 2013. In addition to those core responsibilities, he also focuses on improving PNC’s use of technology and expanding the company’s diversity and inclusion programs.
Fallon credits CEO Bill Demchak and general counsel Greg Jordan with leading PNC’s diversity charge. In 2014, the legal department created the Legal Diversity Inclusion Council to raise awareness within the company and to strengthen its recruiting efforts. “Between 2013 and 2018, we doubled the percentage of people of color in the legal department,” Fallon says. “And
Kieran Fallon Senior Deputy General Counsel, Regulatory, Government Affairs & Enterprise Risk PNC
our male-female gender ratio improved from roughly sixty-forty to fifty-fifty.”
PNC has empowered its outside counsel to follow suit. “There is significant underrepresentation of women and minorities in the higher ranks of law firms, which is not reflective of society,” Fallon says. “We want to do our part to help equalize that.” In 2015, PNC asked three of its largest outside firms to provide the race, gender, and sexual orientation of the people working on its cases. The company rolled the program out to its twentyfive largest firms in 2016 and to the top fifty in 2018. “We don’t have quotas, but we want them to take this seriously,” Fallon says. “It even plays a role when we assign new projects.”
The emphasis on diversity has also influenced PNC’s development of new products and services. “The way younger and culturally diverse customers interact with banks and make purchases is pushing us to think outside the box,” he says.
For instance, the company’s flagship checking product, Virtual Wallet, automatically links three accounts— Spend, Reserve (for short-term savings), and Growth (for longerterm savings)—drawing funds from the latter two accounts, as necessary, to cover expenses and avoid overdrafts. It also includes a digital calendar to track upcoming events such as paydays, automatic bill payments, and “Danger Days,” which appear in red and are dates when the customer’s checking account is in danger of being overdrawn.
Another easy-to-use digital program, called PNC Total Auto, allows customers to search for and locate cars for sale based on their specified criteria—and even obtain financing. PNC
also offers the Zelle mobile service, which allows real-time person-toperson payments using the recipient’s cell phone number. “I actually use Zelle myself to send rent money to my son, who is a senior at Georgetown University,” Fallon says.
PNC launched a national strategy in 2018, which Fallon describes as a combination of digital deposit accounts and a “branch-lite” physical presence. “Our research indicates that an increasing number of consumers are comfortable banking with an institution online, provided there is a physical branch within a reasonable driving distance.” As part of this strategy, PNC opened its first Retail Solutions Center, in Kansas City, Kansas, in October 2018, with another scheduled to open in Dallas, Texas, in the first half of 2019.
“This is all the result of us paying attention to a diversity of voices,” Fallon says. “Evidence demonstrates that diverse teams outperform nondiverse teams. In addition to being the right thing to do, it offers you a unique set of perspectives, helps you succeed, and distinguishes you from others. And it has helped us deliver products and services that meet the needs of our increasingly diverse customers.”
“There is significant underrepresentation of women and minorities in the higher ranks of law firms, which is not reflective of society. We want to do our part to help equalize that.”
WilmerHale:
“Kieran brings keen intelligence and judgment to the many legal challenges financial institutions must navigate. PNC has been well served by Kieran’s excellent counsel, and it is an honor to work with Kieran as outside counsel.”
—Reg Brown, Partner
How Aimie Killeen is cashing her prior in-house experience and working with a strong team to transform the global legal approach at Texas-based Cardtronics
By Joseph Kay
WHEN THE WORLD’S
LARGEST NONBANK
ATM operator, Cardtronics, bought DirectCash Payments (DC Payments) last year, it also validated the complex and confidential work achieved by Aimie Killeen. As the general counsel of the acquired ATM operator, based in Calgary, Canada, Killeen balanced normal operations, the company sale, and DCPayments’ acquisition of an Australian company. Thanks in part to these efforts, Cardtronics has emerged with an even stronger portfolio of 225,000 ATMs in North America, Europe, and Asia-Pacific—which Killeen now oversees with her dynamic global legal team.
Yet, during the acquisition, the Australian legal leader did not immediately know what her future looked like at the newly merged company. She was hesitant to move to the US, but the then CEO Steven Rathgaber suggested she could contribute from another loca-
tion. Killeen responded that for the right role—the general counsel role— she’d relocate. He made an offer, she consulted with her family, and she then headed to the Lone Star State to serve the billion-dollar company as its executive vice president, general counsel, and secretary in March 2017.
Soon after her arrival, Killeen realized the legal team was underresourced and over-reliant on outside counsel. She petitioned leadership to add lawyers and internalize some of that work. “There are some things we can do better in-house, having lawyers who really understand what makes the business tick,” Killeen says.
Killeen’s American team currently numbers four lawyers, three paralegals, and an executive assistant. Together, they’re exploring the possibility of adding more US-based lawyers in the near future as Cardtronics focuses on growing its domestic US business
“There are some things we can do better in-house, having lawyers who really understand what makes the business tick.”
Aimie Killeen EVP, General Counsel, and Secretary Cardtronics
while continuing its global expansion. For now, the department is working through the strategic shift that the new head count has empowered. With a more complete view of the business, the legal team can see past previous blind spots and better and more wholly support other business units.
As the department and its role have evolved, Killeen has specifically assessed the legal department’s relationships with outside counsel. She has reviewed the strategic, personal, and financial aspects of each of the partnerships, and her team has held meetings with those partners specifically to discuss their future.
During her first few months, Killeen even reviewed every invoice line by line. “When I'm paying for top-end advice, I don't like seeing things like ‘photocopying’ on my invoice,” she says. “My view is that it reflects that value you place on our relationship.” Outside partners would point out that those charges were in the terms of their contracts, but Killeen would respond that it might be time to craft a new contract.
It wasn’t an easy process—a tedious combination of close bookkeeping and breakup conversations—but the work was necessary and effective. Killeen’s team successfully refreshed its roster and discovered opportunities to save money, and the two objectives were often related. “Maybe it's only a dollar, but if I'm not getting the value—in advice—for that dollar, I don't want to keep paying it,” Killeen says, explaining that details in invoices reflect the health
of partnerships. “And, to be candid, I haven’t had any pushback from my external partners on this approach.”
Her team also relies on and prizes clarity of communication. That’s why Killeen does her best to be direct with leadership and other business units. Otherwise, there’s a risk of partners going rogue, acting and producing unforeseen consequences because of a failure to communicate first with legal counsel. Since business teams tend to see only their piece of the operation, leadership and legal have an opportunity and a responsibility to drive intelligence and education.
“I try to lay it all out on the table,” Killeen says. “We all have blind spots; maybe I know point A and point B, but in the middle, we don’t understand each other. If we can have that conversation, we can go on the journey together and produce a better outcome overall.”
Killeen also views internal leadership development and growth as a key part of her job and is actively working to train multiple candidates to eventually lead the department if they want that opportunity. In the context of a global operation, that means keeping the opportunity available to anybody with the ambition and drive to want it. The next general counsel for the company should come from within, she feels, meaning from any department or any location globally. “I see it as a very key part of my role,” she says. “Making sure that you know that you can have this job, if you want it.”
Ashurst LLP:
“We have worked with Aimie on antitrust, corporate and board matters, and finance. Aimie has strong technical skills, great boardroom judgment, and brings her valuable international experience to the table. More than anything, she is collaborative and is a pleasure for external advisors to work with.”
—Robert Ogilvy Watson, Partner
Weil salutes Aimie Killeen and appreciates the opportunity to work with Cardtronics and its exceptional legal team.
Alexandria Hien McCombs’s philosophy of leadership through service at Humana is informed by the many people who helped her and her family flee Saigon and achieve success in the US after the Vietnam War
By Will Grant
Alexandria Hien McCombs Assistant General Counsel Humana
ALEXANDRIA HIEN MCCOMBS , ASSISTANT general counsel for Humana, believes passionately in the idea of servant leadership, of serving others both in and outside her organization before she serves herself.
She chalks this selfless approach up partially to the influence of her husband, a sort of inspiration junkie, who McCombs says is “always looking at ways to lead a team effectively and to build up his team and inspire others.” However, she also mentions former US Deputy Secretary of State Richard Armitage, a man she has only met only once.
Armitage’s role in McCombs’s life traces all the way back to April 1975, when McCombs, then two years old, fled the fall of Saigon with her family at the end of the Vietnam War as part of Operation Frequent Wind, which Armitage helped lead. It was one of the largest humanitarian missions in US history, rescuing more than thirty thousand South Vietnamese refugees. Armitage’s willingness to put his life and career on the line for so many people he’d never even met has influenced McCombs’ approach to law, family, and all that comes between.
The rescue mission was a success for McCombs and her family, but that doesn’t mean the transition was easy. They boarded a ship whose capacity was designed to accommodate a few hundred passengers and ended up holding several thousand. Once they arrived in the US, they found their way to Lewisburg, Pennsylvania, where they were sponsored by two local churches. McCombs’ father, a former commander in the South Vietnamese Navy, worked three hourly jobs so that his children could focus on their studies.
The frigid winters were such an adjustment for the family that early on they became ill, McCombs so much that she was paralyzed and unable to walk for two months. An area pediatrician graciously treated her, even though her family spoke little English and could only repay his kindness with egg rolls made by her mother. McCombs was so inspired by the doctor that she wrote to the American Medical Association at the age of seven, asking how to become a pediatrician. She received an encouraging letter, along with information on how to make the dream a reality. However, her pursuit later pivoted to the field of health law when she realized the sight of blood wasn’t for her.
After graduating from law school, she worked at the firm of Haynes and Boone before taking in-house positions at a series of healthcare companies, including Baylor Scott & White Health, Pinnacle Partners In Medicine, Concentra, and, today, Humana. Along her professional journey, she had the opportunity to meet Armitage in Washington, DC. She asked him how he, back in 1975, at barely thirty years of age, had the courage to execute such a daring rescue attempt. “He said that it was never a question of whether he could do something but a question of when,” McCombs says. “I thought that was incredibly powerful. When we face any new challenge, we often limit ourselves—even before starting—by downplaying our own abilities. We try to talk ourselves out of doing something. What if we were to do the opposite, like Armitage?”
As one of twelve organization-wide employees serving on Humana’s CEO Advisory Council, McCombs says it’s this type of thinking that has propelled her and other members of the council
to have candid discussions with CEO Bruce Broussard. “We talk about ways to help the senior leadership team lead more effectively to support our strategy at Humana,” McCombs says. “Success is seeing the CEO embrace our ideas and making them part of the leader learning agenda for the company.”
One of the council’s approved actions involves what McCombs calls “an immersive experience for all leaders in the concept of field hours.” It’s a mandatory eight-hour learning requirement for leaders, to enhance their understanding of consumer needs and operational realities.
Through her successes at Humana and elsewhere, McCombs has also become the first Asian-American chair of the American Bar Association’s Health Law section, a position she holds with pride. “It’s really an incredible forum where we have the opportunity to influence health law policy and legislation in a positive and nonpartisan way,” McCombs says. “There are different constituents within the industry, but we’ve learned how to collaborate with leaders with sometimes conflicting interests and personalities. I feel honored to motivate them because we have a common objective of helping to improve health law and policy in America.”
McCombs says the significance of being the first Asian-American chair didn’t really hit her until she was approached by several younger Asian-American lawyers. “For younger lawyers who can see someone that looks like them, that helps open the door and preclude the self-limiting talk that Armitage certainly doesn’t have,” McCombs says. “For them, now it can just a question of when.”
Ulterra’s general counsel joined the company right before its acquisition by Blackstone and threw himself into the hard work necessary to learn the company’s ins and outs
By Clint Worthington
IN HIS FIRST WEEK AS GENERAL COUNSEL for drilling technology company Ulterra, in May 2018, Jaimes Sher was put right to work. “The minute I walk in,” Sher says, “they tell me, ‘We have an issue.’” He’d been brought in to test his years of intellectual property experience on an impending lawsuit, but on his very first day he found himself getting pulled away to deal with a company-wide cyberattack. Then, three days later, Sher was told that Ulterra was entering a sales process with Blackstone. So many changes all at once might’ve shaken another incoming executive, but instead Sher leaned into the shifts, relying on his IP expertise and can-do attitude while learning on his feet.
When Sher first began interviewing for the job at Ulterra, he was ready for a new challenge. He’d spent nine years at global tech firm Celanese, as chief intellectual property counsel and
associate general counsel, and the new position seemed like it would allow him to expand his responsibilities and skills. “It was a natural fit,” he says. “I have also had experience in compliance, regulatory, contract management, mergers and acquisition, things like that, so it made sense.”
To many companies, adding a new member to the senior executive team without direct experience in that role would be too risky. However, Ulterra was looking for a general counsel who would engage with the leadership team as more of a creative business partner than a legal hall monitor. “We didn’t need another person telling us we can’t do this or that,” explains Maria Mejia, Ulterra’s CFO and senior vice president. “We wanted a partner to understand our goals and help us find a way.” According to Mejia, empowering people is at the core of Ulterra’s culture. “When people take the opportunity and chal-
Jaimes Sher General Counsel Ulterra
“I’m an optimist, and I’m always excited by challenges.”
lenge to grow themselves,” she says, “they often bring new and different ideas and perspectives. Jaimes is definitely an example of that.”
With the company sale, pending litigation, and the day-to-day needs fueled by rapid international and domestic expansion (Ulterra is both the largest company in US market share and fastest growing in its market segment), Sher had to immediately hit the ground running as general counsel. This meant learning the ins and outs of the company—a process that takes most newly hired executives up to a year—in just two to three months. Diving right into the open and collaborative culture of the company’s management team, experts, and R&D personnel, Sher was able to get quick access to and experience with the business and technology of Ulterra. He found the expedited process invigorating, especially as someone stepping from a chemical background into more of a mechanical space: “I had to catch up pretty quickly,” he says.
While Sher had been part of companies that had purchased other companies, Ulterra offered him his first experience on the other side of a transaction. “It was a great opportunity to learn and see how the process worked from that end,” he says. Going through reams of corporate information, he managed to learn a great deal about Ulterra at a fast pace: company history, corporate structure, financials, key contracts, roles and responsibilities of every department, compliance programs, human resource processes, IP portfolios, and more.
“I’m an optimist, and I’m always excited by challenges,” says Sher, adding that he prefers the excitement and stimulation of thinking on his feet. With
that attitude, he helped the Ulterra team to complete a rapid and smooth transaction in the beginning of October of last year. With that phase of the acquisition complete, Sher and the Ulterra team are enthusiastic to forge ahead, extending the success of the company with even more-ambitious opportunities with their new partners at Blackstone. “Everyone is charged and looking forward to working with such a well-known and respected group of backers,” Sher says.
As for Sher himself, his aim is to refine and integrate Ulterra’s existing legal and business practices across the company. “Jaimes is already playing a big role in supporting Ulterra’s sustained growth strategies,” says Aron Deen, director of marketing and strategy. Among Ulterra’s major legal projects are implementing an IP excellence program, updating its contract-management approach, and rolling out new and improved compliance programs. In the long term, Sher’s objective is to create a world-class legal department for Ulterra that is a respected and trusted, strategic business partner both internally and externally.
One of Ulterra’s mantras is “Find a Way,” and Sher attributes much of the company’s success to the phrase. As general counsel, he feels his job is to follow that maxim to the letter and help his fellow executives find legal, ethical ways to do what they need to do. “I’m absolutely a business partner; the more they tell me, the more I can help them,” he says.
As Sher settles further into his position after completing his trial by fire, he’s ready to tackle the next set of surprise challenges to keep Ulterra positioned for success.
Roberts Mlotkowski Safran Cole and Calderon: “Jaimes has a wealth of knowledge and experience in technology and intellectual property law and has exceptional management skills. It is a pleasure working with him.”
—Peter Roberts, President
By Jacob Winchester
In 2015, Japan-based Tokio Marine Holdings set out to acquire HCC Insurance Holdings, a Houston-based specialty insurer with more than one hundred different product lines in aviation, event cancellation, medical stop loss, and more. The acquisition of HCC came at a premium—$7.5 billion—and Randy Rinicella was on the front lines of the contracting and negotiation process.
Now known as Tokio Marine HCC, the specialty insurance group has often used acquisitions—fiftyeight, so far—to build out its varied portfolio of specialty insurance products. Today, it’s undergoing another aggressive period of acquisitions. This new era of growth is being spearheaded once again by Rinicella, senior vice president, general counsel, and secretary, who’s applying decades of specialized legal expertise to seal deals.
Modern Counsel met with the legal leader to discuss his insights into the acquisition process, the Japanese business world, and the strategies that he and his team rely on.
Why do you think Tokio Marine had its eyes on HCC initially?
Prior to HCC, Tokio Marine Holdings also acquired Philadelphia Consolidated Holding Corporation, in 2008, and then Delphi Financial Group, in 2012, which has a large insurance subsidiary.
So, we were its third major North American acquisition in the span of seven years. I think that was part of a conscious strategy on Tokio Marine’s part. The objective was to become more of a global company than it already was and to generate 50 percent of its profits outside of Japan.
As you may know, over the next thirty-five to forty years, the Japanese population is expected to decrease dramatically due to aging. Tokio Marine used to primarily be a life insurance company, and if you’re a life insurance company, that’s not exactly the demographic you want. To its credit, I think Tokio Marine recognized this and embarked on an expansion program to diversify and increase its presence, specifically in North America.
That sounds like a wise strategy, considering the demographics. Tell me about integrating into the Japanese business world. How has that process been for you and your team?
It’s a very shrewd and strategy-oriented environment. What impresses me even more is that Japanese companies also execute rather well. Each of the three North American acquisitions were very high-performing companies. HCC is a specialty insurer with unique underwriting experience for niche markets.
For instance, we’re in the top five globally for directors and officers liability insurance, which is a very specialized type of underwriting that not many companies do because only so many underwriters have that level of expertise. So, what Tokio Marine specifically does is acquire high-performing companies, and it’s willing to pay a premium for them. True to form, the premium it paid for HCC was, I believe, 38 percent over the prior-day closing price.
It also retains management and doesn’t try to consolidate companies. As a result, we did not have any executive-management departures at the corporate or subsidiary level, because HCC is a decentralized company—sort of like a portfolio of specialty insur-
Randy Rinicella SVP, General Counsel, and Secretary Tokio Marine HCC
ance companies. Of course, there’s a lot of reporting and participation, but management is left intact.
What was the process during the initial acquisition?
It was a very smooth process. Right out of the gate, Tokio Marine offered a very compelling value. There weren’t any serious antitrust issues. There wasn’t a lot of overlap between the two companies’ existing businesses. It went quickly, and the negotiation of the agreements was straightforward. It was not a difficult deal from an execution standpoint.
What was your legal team’s involvement?
We had a large New York law firm representing us— Willkie Farr & Gallagher—that is very experienced in M&A. Its lead partner, Michael Groll, has several decades of experience just in insurance M&A. Of course, I was directly involved with Michael Groll in negotiating the terms of the agreement and moving it through the various regulatory processes.
Did the acquisition entail any unique regulatory processes?
When you have an insurance company that is being sold, besides the usual federal antitrust analysis, there are also state regulatory insurance approvals, because in the US, insurance is regulated by each state. So, depending on how many subsidiary insurance companies you have, you need to get approval from each state where an insurance company is domiciled. We had several companies domiciled in various states, so that approval process required attention. This situation demanded unique expertise that you don’t generally need in other types of business acquisitions.
How do you think your earlier career experience prepared you for your general counsel role?
Unlike a lot of lawyers, I have both litigation and transaction experience. And when I say transaction experience, I mean not just acquisition experience but acquisition finance experience, because I have done commercial banking work. I also have a significant litigation background, mainly from experience early in my career. At an insurance company, you have lots of litigation. We have approximately seventy-
“We’re not really a consolidator. We’re either adding onto an existing business or looking to add new lines of business.”
five lawyers across the company, and most of those lawyers are claims attorneys because we have so many lines of business.
Specifically, the ability to analyze and manage risk in litigation is something with which my background has really helped. I don’t have to rely as much on outside lawyers to help me manage the litigation. I have the experience to be more independent and form my own judgements about risk on cases.
For instance, we recently had a class-action case involving one of our business lines, which is something that is high-stakes litigation. We were able to get that dismissed before we even got to the classcertification stage, which was a big advantage. If I did
not have the kind of litigation background that I do, it would have been more difficult for me to manage the case and assess how to best handle it.
Because you’re able to foresee what’s going to happen in the litigation phase?
Well, you’re able to make a more reasoned judgement about what the risks are. In other words, just because you get involved in a class-action case, some lawyers might immediately become concerned and try to settle at any price. That’s not what I would do. I’m aiming to do better than that.
Under Tokio Marine, HCC seems to be going through a busy period of acquisitions. What are your strategies when approaching these acquisitions?
We’re seeing more deals and more from an international perspective. The key element I’m working on now is a focus on bolt-on acquisitions, where you already have an existing business and you’re looking to broaden the scope of your present business by acquiring a company that has a specific line of business or niche related to yours.
The second type of acquisition we’re focused on is adding brand-new lines of business, such as our 2015 acquisition of ProAg, a big crop insurance company. Since acquiring ProAg, we’ve added to our crop insurance business with a business called International Ag. That’s a good example of our bolt-on strategy. We’re not really a consolidator. We’re either adding on to an existing business or looking to add new specialty lines of business.
How about the future?
Specifically, we’re focused on acquiring companies where technology gives us a competitive advantage within our insurance operations. These might be acquisitions where technology provides more cost-efficient means of reaching prospective customers and selling them insurance products, or they might be predictive-analytics companies that will help us improve our underwriting decisions and results. The Qdos Contractor business is one such acquisition where we acquired a leading provider of insurance products and services to the growing UK independent-contractor and freelancer market via an online digital-delivery platform.
As head of legal, Reginald Rasch helps drive business forward at Rakuten USA, relying on his long-held goal to continually expand his expertise
By Joan Livingston
ONE OF THE PRINCIPLES FOR SUCCESS AT Rakuten, the Japanese internet giant, is “always improve, always advance.” That philosophy might also describe the career of Reginald Rasch, head of legal and general counsel for the company’s Americas headquarters, who has spent close to two decades gaining the experience and positioning himself for the role he holds today. And, now that he’s there, he’s helping his company improve and advance as well, largely through aggressive acquisition.
Rasch has viewed his career as an academic exercise—one in which he has constantly challenged himself to find “new and interesting things to learn.” He grew up in Queens, a product of New York City public schools, and he got turned on to reading when his mother signed him up for a monthly book club. “I think I connected going to law school with my interest in reading,” he says.
Later, at State University of New York at New Paltz, he found himself
in a circle of friends interested in law, and he attended off-campus events that encouraged students, particular people of color, to pursue a legal career. He was inspired by Thurgood Marshall, the first black Supreme Court justice. “I believed I could be successful, and I wanted to prove it to myself,” he says.
Rasch took a pragmatic approach after obtaining his JD from St. John’s University School of Law. He worked for a few different law firms, primarily focusing on M&A and securities, and for a time he kept finding new and interesting things to learn, particularly things about how to drive a business forward.
This eventually led him, in 2000, to LinkShare, a digital advertising and marketing pioneer. He was on the ground floor of the 200-person startup, working with its leadership as it prepared to go public. Months later, though, the dotcom bubble burst. “I went from riding high on how I would be part of taking the company public to
Reginald Rasch Head of Legal and General Counsel Rakuten USA
not being sure the gates would be open in the morning,” he says.
Rasch stuck with LinkShare, though, working on legal issues such as securing financing through licensing the company’s core technology, an experience he wouldn’t have had in a law firm. Then, in 2005, the company was sold to Rakuten for $425 million— the Japanese company’s first foray into the US market. While outside opportunities presented themselves, the strategic-minded Rasch decided to stay put. “There were tremendous opportunities for me to grow within the company,” he says.
Just two years later, he became general counsel for LinkShare (now Rakuten Marketing), Rakuten’s digital advertising business unit, and later still he transitioned from Rakuten Marketing to his current position as head of legal for Rakuten Americas. He has since helped Rakuten expand through acquisitions, taking the lead in or overseeing a majority of its deals, and it now has more than three thousand employees spread throughout the Americas region and abroad.
Before a business is acquired, foundational work is completed to determine whether it’s a good fit. Once initial discussion ends, Rasch steps in to focus on the purchase agreement, the employee-retention mechanism, and other items related to the acquisition. “We start to unify them across the organization,” he says.
Rasch also handles matters related to contract negotiations, privacy, data security, litigation, compliance, and intellectual property, and he’s often called upon during critical moments to provide guidance and support. He says he’s had so many responsibilities over the past eighteen years that it has been like having five or six jobs. “I’ve really enjoyed that,” he says. “It has been a nice ride. I went from being a contributor to being a leader.”
Rasch has also learned how to navigate the challenges of working within a company spanning twenty-nine countries that still operates with a system of shared values and policies. It has made English its primary language, which he says has helped standardize communication, but there are still big differences between US and Japanese business practices and regulations that he and his team must continue to square. How do they do that?
“With good old-fashioned time together,” he says.
Two or three times a year, Rasch travels to Japan, where he has developed relationships with his legal counterparts overseas. Likewise, he regularly spends time at Rakuten’s Americas region headquarters in San Mateo, California, and he attends an annual global legal summit where Rakuten lawyers from all over the globe gather to exchange ideas, present issues, and figure out how to work better together. Given that Rakuten is Japanese, certain rules and values reflect its culture, called Rakuten Shugi . Among them are requirements that employees maintain clean work environments and wear name badges, for example. There are also Asakai , weekly company-wide meetings that are livestreamed.
“These are the kinds of things we share with acquisition targets, that once you join the team, we focus on the sharing of general business information through Asakai and on clean desks,” Rasch says. “They sounds like fairly routine things, but these actions, as well as wearing our name badges, have a unifying effect and show that we are all part of the team.”
And, as part of that team, Rasch looks forward to continuing to find ways to improve and advance.
We congratulate Reginald Rasch, General Counsel – Head of Legal, on his outstanding accomplishments at Rakuten Marketing LLC
Our team of more than 80 innovative IP attorneys is privileged to partner with Reggie and Rakuten Marketing in protecting the company’s advanced integrated marketing solutions for data-driven digital marketers.
By Valerie Menard
Topgolf International’s general counsel, Eldridge Burns, credits his legal and risk teams with helping the company grow
“There is a great deal of trust among the members of my team and we rely on each other’s unique experiences and areas of expertise,” says Eldridge Burns (center), Topgolf Internationals’s general counsel. “We are all working toward the same goal.”
IN THE LEGAL FIELD, AS IN MANY OTHERS, SUCCESS IS IN large part determined by your experience and who you surround yourself with, through mentorships, hiring, team culture, and more. Eldridge Burns has experienced this again and again over the course of his twenty-five-year career, one in which he has made several big moves thanks to the inspiration, support, and wisdom of close colleagues—and one in which teamwork has become a central pillar of his business philosophy.“Teamwork is crucial, and culture is everything,” says Burns, today the general counsel for Topgolf Entertainment Group, a global sports entertainment company. “Your people need to complement and respect one another and work productively—often under periods of intense work or stress. There is a great deal of trust among the members of my team and we rely on each other’s unique experiences and areas of expertise. We are all working toward the same goal.”
The son of a US Air Force colonel, Burns first began developing his appreciation for teamwork while living in Germany and playing soccer as a child. His family eventually settled in San Antonio, Texas, and after high school he played soccer at Southern Methodist University (SMU) and majored in business. During his junior year, he took a business law class, and his professor, Walter Sutton, so impressed him that started seriously considering practicing law.
“I don’t know if he knew it, but his influence was a big reason I decided to go to law school,” Burns says. “It wasn’t something I knew I wanted to do until I met Professor Sutton. I liked the way he looked at things.”
After graduating from the University of Texas School of Law, Burns entered the professional world as an associate at Vinson & Elkins before moving in-house to Blockbuster as vice president and senior corporate counsel. While there, he kept in touch with numerous teammates and colleagues from SMU, one of whom hired him as chief legal officer and general counsel at Santander Consumer USA; then, later, he recommended Burns as Topgolf’s first general counsel.
Eldridge Burns General Counsel
Entertainment Group
“I chose corporate law because it allowed me to be involved in both the legal and business sides of the company,” Burns says. “As soon as I finished the interview with Topgolf, I thought, ‘I won’t to take no for an answer.’ The culture at Topgolf was so amazing and energizing.” Ben Garrett
As general counsel, Burns immediately set to work learning what he could from and about the company’s other legal and risk professionals. “There are typical challenges when growing a business,” he says. “Surrounding yourself with terrific people is the key to navigating a company through growth and its challenges. I was fortunate in that Topgolf already had plenty of good, smart, and experienced legal and risk professionals and that I wouldn’t have to make a lot of changes. One of the major plusses for me was that I was not the first lawyer at Topgolf.”
He’s referring specifically to Liz Bonesio, the company’s first in-house counsel, who, with her team, was essential to every single venue being opened. With fifty-two venues worldwide and counting in the Topgolf portfolio, including recent international locations, her work has been invaluable. As deputy general counsel, her role has expanded, allowing the legal group to remain lean while still providing excellent service to its business partners.
“One of the major plusses for me was that I was not the first lawyer at Topgolf.”
applauds Eldridge Burns and TopGolf.
Dentons is privileged to work with Eldridge and the rest of the TopGolf team as the sports and entertainment company continues its extraordinary growth and expansion both within and outside of the United States.
TopGolf’s rapid growth is a testament to the strong foundation provided by the TopGolf legal team headed by Eldridge and the Company’s embrace of innovation and an entrepreneurial spirit.
In a competitive environment of continuous and unpredictable change, Dentons takes no small amount of pride in helping TopGolf consistently hit the target.
Dentons. The world’s largest global elite law firm.*
“Liz already understood the culture,” Burns says. “This was also true for the risk group, led by Helen Irizarry, director of safety and risk management. In fact, they helped create the culture. Liz, Helen and I also had the same philosophy, so there was no need to make a bunch of changes. We are very engaged with the business aspect of the company and are reliable and responsive business partners. We have carried that forward as we and the company grow.”
Burns eventually convinced assistant general counsel Jason Clark to follow him from Santander and manage employment law issues and litigation. Within Burns’ team, no topic is off the table, and colleagues work together in a respectful and congenial atmosphere, in keeping with Topgolf’s culture of embracing ideas, open communication, and collaboration.
The company entertains more than seventeen million guests annually and has a worldwide fan base of nearly one hundred million. In addition to its venues, Topgolf continues to develop new ways to engage people through emerging brands such as Topgolf Swing Suite, Toptracer, Toptracer Range, and WGT. There’s also its original-content series, pop up social experiences such as Topgolf Crush, and numerous partnerships within the golf and entertainment industries.
All these achievements, as Burns sees it, go back to the company’s incredible workforce. “People love working here,” he says. “They work hard to keep the culture alive while making sure the company continues to grow and prosper—doing the right thing for guests, associates and investors. The people on my team embrace and embody this culture 100 percent.”
Dentons:
“We congratulate Eldridge Burns for this well-deserved recognition. Eldridge truly recognizes the value of teamwork and the extraordinary success that it can bring. His approach to productivity, through empowerment and inclusion, is a model for all entrepreneurial businesses.”
—Donald A. Hammett Jr., Dallas Managing Partner
Taking a microscope to unique niches, specialties, regions, and regulations in the legal field and the high-profile lawyers who confidently and expertly navigate them
Attorneys in the data-gathering, energy, employment, and privacy fields discuss everything from obscure laws they discovered to new business tactics they employed to keep up with or stay ahead of competitors
By Kelli Lawrance
keeps American Eagle on the leading edge when it comes to protecting consumer information
Erin McCurdy, Associate General Counsel, American Eagle Outfitters
ERIN MCCURDY SPENDS QUITE A BIT OF TIME on the phone these days. As the sole in-house privacy lawyer for billion-dollar clothing retailer American Eagle Outfitters, it comes with the territory. Many of her calls are with contemporaries—other lawyers, for the most part—who call with privacy-related questions. With privacy issues recently grabbing headlines, many companies are just beginning to understand the need for privacy professionals. “Lots of friends, in different worlds, want to understand how I’ve developed my privacy skill set and how can they do the same,” says McCurdy, who describes her conversations as “privacy 101s,” since her contacts are now being tasked with privacy issues she began dealing with years ago.
This is due, in large part, to matters of privacy long being a back-burner issue in the US. When McCurdy was involved in e-commerce and technology for Dick’s Sporting Goods—taking on a rewrite of the company’s privacy notice—high-profile breaches had yet to rise to the surface at the alarming rate they do today. (And things are only likely to get worse: the average cost of a data breach is expected to surpass $150 million by 2020, according to data from Juniper Research.)
When McCurdy made the move to American Eagle in 2015, her privacy focus expanded internationally. That’s when she realized that some of the best lessons in privacy and data security were already learned abroad. The European Union (EU) recognizes privacy as a fundamental right, and now that its General Data Protection Regulation (GDPR) is being enforced, matters of privacy are impacting the US—and the rest of the world—in new
ways. The California Consumer Privacy Law (CCPA), set to take effect in January 2020, is a first-of-its-kind application of privacy law in America and bears a strong resemblance to the GDPR.
Many companies in the US are scrambling to get up to speed with the required CCPA changes, according to McCurdy. “That law is a fundamental shift for many US companies that don’t have an EU presence,” she says. “If you haven’t gone through GDPR preparations, you’re right where American Eagle was three years ago.”
Today, American Eagle is standing quite tall when it comes to matters of consumer privacy among US-based companies— tall enough to be cited by a Gartner L2 report for having a privacy notice that is “best in class” among specialty retailers. It’s a notice—which McCurdy reworked in 2017—that is rooted in transparency and honesty; she compares it to the company’s Aerie Real campaign (which McCurdy says features “unretouched marketing photos promoting confidence and body positivity”), in terms of its intent.
“We want our customers to have confidence in us that extends past their initial purchase,” she says. “Ultimately, we’re giving our customers a choice of whether or not to trust us with their personal information. We’re telling them what we’re doing, and with all the other brands out there, they can choose to trust us with their data or they can choose not to shop with us. Their continued patronage supports this confidence—that we are using the data properly, sharing it properly, and protecting it properly.”
“If you haven’t gone through GDPR preparations, you’re right where American Eagle was three years ago.”
The concept of a nationally recognized privacy notice is especially gratifying, given that American Eagle has taken special efforts to grow its privacy team over the course of McCurdy’s tenure. Although the privacy team is a cross-functional effort, the core team now includes McCurdy, privacy analyst Natalie Roberson, program manager Melissa Kirwin, senior business intelligence developer Jenifer Trout Osborn, vice president of data technology Chris Stephens, and regional external privacy counsel.
Stephens has a particularly vital role as the face of an enterprise-wide data-governance effort that American Eagle kicked off in mid-2018. “The intent is to organize, improve, and harmonize our data and data processes,” McCurdy says of the program, a partnership with PricewaterhouseCoopers. “We have many silos of data in different pockets, and we are harmonizing them together into an integrated program that benefits the entire company.” McCurdy cites this effort and collaboration as key to adapting for American Eagle’s evolving efficiencies, corporate culture, and compliance goals.
In addition to dividing her time between privacy matters and the legal issues arising from the digital and corporate IT teams, McCurdy works to manage all of her business teams in person on a weekly basis—even the ones located away from her home office. For someone who embraces both the ever-changing world of privacy law and American Eagle’s desire to stay ahead of the curve, having a consistent presence and face-to-face time with her business partners is the only way to go.
“I enjoy working for a company that takes privacy and customer confidence seriously and one that supports its employees in pursuing these endeavors,” McCurdy says. “American Eagle is a great organization—one that is willing to adapt to change and one that values both its customers and employees.”
Holland & Knight LLP:
“Erin McCurdy easily navigates the legal opportunities and challenges facing American Eagle Outfitters, positioning the international retailer for success. Her deep knowledge of commercial law and privacy matters allows AEO to take advantage of digital trends while safeguarding it against high-tech threats. It is a pleasure working with her.” —Paul Bond, Partner
These are attributes that describe Erin McCurdy. Attributes Erin has demonstrated throughout her career. Attributes that have led her to go beyond providing in-house corporate legal counsel, to expanding her knowledge to include counsel on data/ privacy issues.
We wish you continued success. www.pwc.com
By Arianna Stern
At Greenheck Fan Corporation, Marco Espinoza goes beyond the status quo to refresh its talent strategy and evolution as an industry innovator
MARCO ESPINOZA IS REINVENTING SMALL-TOWN CORPORATE CULTURE and manufacturing along the eastern shore of Lake Wausau. That’s where, in the quaint city of Schofield, Wisconsin, a tiny sheet metal shop emerged in 1947 and has since transformed into a global producer of ventilation products. Today, the employee-owned Greenheck Fan Corporation is championing its legal leader as a cultural change-maker.
The general counsel at Greenheck since 2016, Espinoza has teamed up with human resources on a mission to evolve the company once again by energizing collaboration and innovation. Now, Greenheck is incorporating state-of-theart technologies into its manufacturing process and promoting diversity in the workforce more than ever before. Espinoza is an advocate for these efforts, helping to draw talent from local high schools and engineering experts from around the world.
Modern Counsel caught up with Espinoza to reveal the connections Greenheck is establishing between workplace amenities, immigration, artificial intelligence, and Midwestern hospitality.
How did you become aware that attracting talent was a challenge, and how did you decide that you wanted to play a role in resolving it?
The worker shortage is a universal issue in the US now. Talented workers are moving toward bigger cities, especially millennials. That’s why we try to give our employees an experience where the work you do can also be part of the life you live. We have progressive employer ideas and employee-focused programs. We have an on-site clinic. We have an on-site pharmacy. We have an on-site gym.
What steps have you taken to attract talented employees?
There was this great opportunity that I thought was being missed, and that was hiring immigrants. We have all these super-smart engineers coming from other countries to study in the US on F-1 visas. When our HR folks were going on recruiting trips to colleges and universities, they were coming to our table, but we weren’t considering them as viable candidates because of our limited understanding of the legal process. We thought, “Oh, they can’t work.” But they can.
It just took a little bit of understanding on my part— researching, getting to know some immigration attorneys, and asking them about the process. Since I learned about hiring immigrants, I’ve been able to help human resources make decisions. We’ve recruited some great candidates—and not only students.
What are the advantages of focusing on immigrants in that way?
Both my parents and my wife’s father immigrated to the US to be doctors when there was a shortage. We’re experiencing the same thing now in the engineering world and in tech.
Economically, it’s probably less burdensome on the company to recruit them through the immigration process rather than pay a third-party recruiter to do it. Then, you get their loyalty, you get their buy-in. Then, you create the corporate culture that fosters diversity and doesn’t just ignore it or put it on the sidelines.
“You create the corporate culture that fosters diversity and doesn't just ignore it or put it on the sidelines.”
What are the other features of Greenheck that make it a great place to work?
I think it’s the energy. It’s this sort of incalculable, “hard to notice unless you’re looking for it but also very pervasive” feeling you get when you’re here. Generally, Midwestern people are going to be pretty nice and welcoming. You get the impression when you’re visiting that people like working here.A big topic in manufacturing right now is artificial intelligence.
Is that part of life at Greenheck?
We have robotic welding, and I would love to see us use more advanced technology in manufacturing. The production manufacturing worker of the future is, by nature, going to be a person that’s comfortable with advanced technology. That’s the kind of worker of the future that we’re out there fighting for every day.
You talked about building a new campus in Tulsa, Oklahoma. What does that project entail for you?
I think the most interesting challenge is, “This is one petri dish, and the organism survived and thrived here because of these endemic conditions. What do we take and implant in Tulsa, Oklahoma, to be similarly successful?”
Oklahoma and Wisconsin are different. How do you engage a new culture of people into your corporate culture? We know we want to treat people well, pay people well, engage them in our company culture, and also learn from them.
You know, I think of a question I got last summer that I never thought I’d get in Wisconsin. In North Carolina, where we have a plant, they wanted to have a company picnic, and they said, “Marco, are you okay with us doing mini-bull riding? Because it’s a really big thing here in North Carolina.”
My first thought was, “Well, why don’t you just do a bouncy house?” But mini-bull riding is the big thing there, you know?
Ultimately, I said no. I just didn't think it was the greatest idea because the guy didn’t have insurance. But those are the kinds of interesting things you get involved in.
By Peter Fabris
How Texas attorney Donna Peavler set events in motion that would alter her career trajectory and the legal landscape
AN OFFHAND REMARK BY
LAWYER DONNA PEAVLER
unexpectedly transformed her professional life and led to a victory in a landmark Texas Supreme Court case.
“I can’t imagine why any company would not carry worker’s compensation,” attorney Donna Peavler said to a risk manager from the Kroger grocery store chain in 1998. Looking back, she describes her straightforward remark as naïve, yet also fortuitous, since it set her on the path to becoming one of the foremost experts in a singular niche of law.
Today the highlights of her tenure in the legal world include founding her own firm, collaborating with a federal magistrate judge to publish an article on how “nonsubscription” to workers compensation insurance is handled under federal jurisdiction, and successfully arguing a case in the Texas Supreme Court that changed the state’s nonsubscriber law.
Those successes stem from Peavler’s fateful statement as a young lawyer, which prompted an explanation from the Kroger risk manager about the advantages of opting out of workers compensation in Texas—the only US state that allows companies and employees to operate without it. In the 1990s and early 2000s, workers compensation premiums skyrocketed in the Texas, and that’s when many employers began opting out.
At the time, employers sought savings on the insurance premiums, along with other benefits such as the ability to send employees to specialized doctors who won’t see workers compensation patients, or to pay employees better lost-time benefits. Most nonsubscribers either self-fund or purchase their own no-fault work injury plans, but some carry no protection at all.
“The state wants employers to carry workers’ comp, so it penalizes nonsubscriber employers by stripping them of some of their common-law defenses,” Peavler explains. “For example, in most negligence cases, the defendant can argue that the plaintiff shared responsibility for the accident, and that the defendant’s liability should be reduced by the plaintiff’s share of fault. Nonsubscribers are prohibited from making that argument, and if they are found even 1 percent at fault, they are 100 percent responsible for all of the plaintiff’s damages.”
In the late 1990s, Peavler, who was working for a boutique litigation firm in Dallas, was getting good results on Kroger’s customer injury claims. So after the risk manager enlightened her about the benefits of nonsubscription, he offered her a chance to handle Kroger’s employee-injury claims. And so, her career path was set.
“I began researching nonsubscription, and I quickly learned it was a very specialized area of law with lots of quirky rules and
traps,” Peavler recalls. “I immersed myself in nonsubscriber industry groups, began writing articles on nonsubscription, and started speaking at conferences about nonsubscriber law, handling employee claims, and defending lawsuits.”
The move from Dallas to Tulsa marked her next career milestone with the establishment of her own practice—again, courtesy of Kroger. Peavler was working remotely for the supermarket client from eastern Oklahoma when she explained to a Kroger executive that she was billing at a much higher rate than she was getting back from her firm, with little tangible support from the firm’s headquarters. On her own she could bill Kroger at a lower rate yet make more money, so the Kroger executive suggested she break away from her firm. The Peavler Group was born.
Peavler continued to build her bona fides in nonsubscription law. The field includes advising nonsubscriber clients on how to reduce liability exposure, better handle claims, and improve safety, in addition to defending them when they are sued. For example, Peavler’s firm scrutinizes employee handbooks and training documents to remove language that could be inflammatory and used against the client in a trial. (“Accidents lead to the unnecessary human suffering of our employees,” is one such instance that appeared in a client’s handbook.)
Taking even simple steps such as posting warning labels to reinforce safety procedures covered in training programs can reduce legal risk, according to Peavler. Yet she admits that lawsuits are almost inevitable. Her most memorable case helped Texas employers better know what conduct might expose them to liability.
The case, Randy Austin v. Kroger Texas, LP, sprung from an accident in which a Kroger employee slipped while cleaning a restroom and severely injured his hip. “It raised a long-disputed question about whether an employer owed the same duties to protect an employee against dangerous property conditions as it did any other guest, or whether it owed additional duties by virtue of the employer/employee relationship,” Peavler says. The Supreme Court of Texas had not previously decided a case addressing this question.
Peavler’s firm and Kroger rallied employers and industry groups to encourage the state high court to take the case. The court did, and sided with Kroger. “It ruled that the duties are the same for guests and employees, which is a victory for all employers because it narrowed their potential exposure to lawsuits,” Peavler says.
The decision stands as her crowning legal achievement. It has been cited as authority more than 500 times by other
“I began researching nonsubscription, and I quickly learned it was a very specialized area of law with lots of quirky rules and traps.”
Today, her roster of prominent clients also includes Target, Bass Pro Shops, Domino’s Pizza, Hobby Lobby, and Macy’s—and Peavler is not stopping yet. While the naive remark she made early in her career proved to be a great stroke of luck, Peavler pursues opportunities to continue challenging that statement as a renowned expert in a unique aspect of Texas law.
PartnerSource:
“Donna’s effective court room advocacy has advanced the programs of many of our mutual, high profile clients. She approaches any legal issues impacting Texas injury benefit programs with compassion and an unrelenting technical prowess that has enabled the Texas injury benefit plan community grow with confidence and continue to achieve incredible outcomes for injured workers.”
—Jennifer D. Hurless, JD, President courts, parties in litigation, arbitrators, and academics, Peavler says.
By Peter Fabris
How Heather Gadkari has gained deep insight into Nielsen’s digital media measuring services and its overall business strategy
AS SEVERAL ICONIC BRANDS became roadkill on the route to the digital economy, a ninety-year-old market research company has found new opportunities for growth. Nielsen built its business on traditional broadcast media and could have been vulnerable to the rapid market changes. Instead, as internet outlets gained advertising dollars, the company developed services to enable total audience measurement—that is, measurement on any device—and now Nielsen’s deputy general counsel, Heather Gadkari, ensures the brand’s agility across a much wider spectrum of platforms on which to promote products and services.
“The whole advertising ecosystem is constantly evolving,” Gadkari says. “Nielsen had foresight in anticipating the changing landscape.” While Nielsen is best known for its TV ratings service, an essential tool to set advertising rates, today its services for marketers plying the internet and alternative video outlets have also become critical.
The company helped lead this evolution more than a decade ago, when it made two key acquisitions, NetRatings and BuzzMetrics, that propelled it into the internet data-measurement sector. It continues to hone services that measure advertising and content consumption across any medium, including overthe-top media services, websites, apps, linear television, and more. These services have kept the company relevant and are natural add-ons to its existing services, Gadkari says. Most importantly, Nielsen embeds its legal team within its development and commercial teams, encouraging dialogue, discussion, and collaboration regarding various risks and the enablement of new initiatives. The conversations aren’t often pleasant or easy, but they’ve allowed Gadkari to acquire in-depth knowledge of the company’s offerings and business strategy.
Today the global information, data, and measurement company spans more than one hundred countries and employs forty-four thousand people around the world. Based in New York City, the multibillion-dollar market-research firm oversees 90 percent of the world’s population to deliver valuable consumer information with the right tools, earning it a spot on Forbes’s list of most innovative companies.
Gadkari has had a unique path to success. She joined Nielsen’s team in 2007, after the company acquired her then employer, BuzzMetrics, and formed a new unit called Nielsen Online. The aim was to enhance Nielsen’s existing business with a digital audience strategy, obtaining comparable metrics to Nielsen’s core television metrics by analyzing what people do online and via mobile devices. BuzzMetrics was originally conceived to track consumer-generated media and product as well as discussions on internet message boards, Usenet groups, and online articles. When social media such as Twitter and Facebook took off as advertising and purchase-influencing sites, Nielsen Online gravitated to them.
“I have been involved with the product team across our product life cycle, from con-
cept to contract development to dealing with vendors to bringing products to market,” Gadkari says. “We have to get deep into the weeds with our teams. We have to understand how the products work and how our clients will use them to best provide legal support to our internal and external clients.”
For example, an advertiser might sign a contract to track a particular advertising campaign using multiple Nielsen services, including measuring what consumers buy online as well as what advertisements they see. Then, months later, the same company may want to engage Nielsen to measure a different campaign with a different mix of services.
“We built a contract structure that the client-services team could move with little legal touch,” Gadkari says. She explains that the document has a “check-the-box environment” that accounts for various ways marketers can use Nielsen’s services so that lawyers don’t have to rewrite contracts for common uses.
This partner-friendly, collaborative approach is critical to Nielsen’s current success. Gadkari mentions a remark from one company executive to another about whom to ask for in-
Heather Gadkari Deputy General Counsel Nielsen
“The whole advertising ecosystem is constantly evolving.”
vacy regulations and Nielsen’s policies. “We have to decide how we contractually put it on clients in a manner that enables compliance,” she adds. “It’s not a one-size-fits-all broad set of privacy obligations but a privacy-by-design approach that’s applicable to the product and makes sense for our clients.”
To write these contracts in a way that encompasses these issues is impossible without a thorough understanding of how the services work and collaboration with other Nielsen stakeholders, including its product teams and its legal leaders in the privacy field, according to Gadkari. Among other things, they must all understand what data is collected and how it is meant to be used. Gadkari cites this challenge as one of the intellectual pleasures of the job: gaining knowledge by being deeply involved with the development team’s work.
formation about one of the company’s services. “‘You can go to product or go to Heather,’” Gadkari recalls the executive saying. “That was an exciting moment for me.”
The internet allows marketers to learn a great deal about customers’ online habits, interests, and associations. For Gadkari, this environment makes for a great tool to precisely target demographic groups. The downside, though, is that some consumers perceive these tactics as intrusive, and if taken too far, they can create backlash. Nielsen has historically placed a high priority on preserving data privacy for the “Nielsen families” and individuals who have participated in various global Nielsen panels and provided representative demographics for the company’s broad research purposes.
Privacy laws, as well, demand compliance with regulations regarding certain types of internet market research. “When we are conducting measurement studies, we have to make sure that consumers are presented with appropriate privacy notices and opt-outs,” Gadkari says. Another part of the compliance puzzle centers on ensuring that clients adhere to pri-
Equipped with a bachelor’s degree in political science and sociology from the University of Washington as well as a master’s degree in public policy from New York University and a JD from New York Law School, Gadkari has cultivated an insightful legal career first at BuzzMetrics and now at Nielsen. Her savvy service and strong business sense is recognized by others in the company, which, for the legal leader, is a clear source of pride. However, her greatest education, she maintains, comes from her young children: three boys. She is reminded every day who has the better negotiation skills between them.
For Gadkari, Nielsen presents the best of both worlds: interesting legal work and a dynamic business that is integral to remaking the media landscape. Her passion is aiding the company’s efforts to ensure the Nielsen brand remains as timeless as it is insightful.
McGuireWoods LLP:
“McGuireWoods is very lucky to work with Heather. She is a smart, innovative, results-focused attorney who achieves sophisticated and creative solutions to legal and business issues.”
—Amy B. Manning, Partner, Antitrust, Trade and Commercial Litigation Department Chair
By Peter Fabris
Eversource Energy Service Company’s Neven Rabadjija has helped guide the utility through more than two decades of energy deregulation and innovation
WHEN NEVEN RABADJIJA WAS RECRUITED to join Boston Edison Company (now part of Eversource Energy Service Company), in 1990, the perception in the legal profession was that the electric utility industry was staid and provided uninteresting work for lawyers.
“My colleagues at Hale and Dorr [a Boston law firm] said ‘you are going to be bored there,’” Neven recalls.
They didn’t know that deregulation of the industry was about to unleash decades of dynamic activity, leaving plenty of challenging work for attorneys. Neven didn’t foresee the sweeping changes to come, either. He wanted to jump from private practice to the corporate world because a deep recession had practically halted Boston real estate development, which had composed the bulk of his work. He was also looking for a better work-life balance so that he could spend more time with his young daughters. So, he made the switch—and has never regretted it.
The move placed him at ground zero of a drastic transformation of an industry that had previously been considered so stable that its stocks were recommended to those who wanted nonvolatile, secure investment performance. In the twenty-five years since, as the sector has undergone profound change, Neven, now deputy general counsel for Eversource, has been intimately involved with major corporate mergers and divestitures, the dismantling of vertically integrated monopolies by the separation of power generation from transmission and distribution services, forays into new, unregulated lines of business, regulatory reform, and the emergence of distributed, renewable-energy generation. His work has been anything but boring.
The shift began in the early 1990s, when the Commonwealth of Massachusetts started to lay the groundwork to deregulate the electric power industry by allowing non-utility-owned generation. Boston Edison wanted to participate through an unregulated affiliate, so one of Neven’s earliest assignments was a complex deal that established a new, nonregulated company to construct and operate a new generating plant in Weymouth, Massachusetts. The project involved multiple contracts, leases, and financial arrangements for the construction and operation of the power plant. “Ultimately, the deal did not go through, but it laid the corporate and regulatory groundwork for nonregulated utility affiliates,” Neven says.
The restructuring process continued with the separation of generation from transmission and retail functions. Utilities could buy and resell power while other businesses focused on generation. Boston Edison thus had to divest its generation business through a complex auction process, and Neven was one of the leading transaction attorneys involved in the sale of multiple power plants across the state.
Neven was also Boston Edison’s lead corporate transactional attorney on another groundbreaking deal in the 1990s: the auc -
tion of the Pilgrim Nuclear Power Station, in Plymouth, Massachusetts. It was the first sale involving the transfer of an operating US nuclear power plant, and there was no contract template for such a deal, so novel issues such as liability for ultimate decommissioning and nuclear waste storage and disposal had to be negotiated with the buyer, the regulators, and other stakeholders.
As the Bay State underwent full-scale electric-utility deregulation in 1997, utilities and investors were concerned about losing market share to new, independent competitors. In response, many tried to diversify their businesses by adding new, unregulated services. Neven had a hand in deals involving a proposed network of electric-vehicle charging stations, a company for the purification of drinking water through ozonation, and various energy-efficiency projects, including one that created ice during off-peak hours at night to cool water for air-conditioning in the daytime. Work on these unusual deals broadened Neven’s skill set, but few of them panned out for his company. “Some of these initiatives, such as electric vehicle charging stations, were not ready for prime time in the nineties, but we sure are deploying them now,” Neven says.
A notable exception, a partnership with RCN to build a fiber-optic network using the utility’s network of poles and conduits in metro Boston, was a financial success. The venture created a competitor to Cablevision, the established local cable TV provider, which battled the partnership in court and on the regulatory front for several years. Neven’s work on the venture opened up a new world of telecommunications law for him, and his acquired knowledge of utility regulations from this and other ventures has paid dividends in subsequent years.
In the early 2000s, a wave of utility mergers occurred in New England. Boston Edison merged with Commonwealth Energy, an electric and natural gas utility, creating a new company called NSTAR. The deal was the first
“Some of these initiatives, such as electric vehicle charging stations, were not ready for prime time in the nineties, but we sure are deploying them now.”
corporate merger of Neven’s career, and he was heavily involved in due-diligence and transactional aspects of the deal. The work prepared him for a later merger in 2012 with Northeast Utilities, an electric and gas utility company based in Connecticut and New Hampshire, which created what is today Eversource Energy. For many utilities, deregulation has shifted how they charge customers for their services. For electric companies that have implemented so-called “revenue-decoupling mechanisms,”
revenue is no longer linked directly to the volume of power that they sell. Instead, regulators periodically review the utilities’ costs of providing service, in the context of a base-rate proceeding, to establish a revenue requirement to provide service. Based on that amount, rates are then calculated for various customer classes. Revenue decoupling thus serves as a mechanism between base-rate proceedings to adjust the level of revenues, independent of actual sales volumes per year. This approach is intended to remove the historical disincentive for utilities to promote energy efficiency, distributed and renewable generation, and other programs that would otherwise affect the utilities’ bottom lines. For utility attorneys, the rate-setting process requires a thorough understanding of regulatory policies so that they can present an accurate, persuasive case for an optimal rate structure.
Neven’s job also requires him to work with a number of external partners, and they’ve been impressed with his adaptability in the face of industry change. “Working with Neven over the last twenty-five years has been a privilege,” David S. Rosenzweig, a partner at Keegan Werlin LLP. “He is a highly skilled attorney and a demonstrated leader in navigating the ever-changing regulatory environment and challenges affecting his clients’ interests.”
Today, the dynamic, innovative utility industry bears little resemblance to the slow-moving, unadventurous one Neven joined many years ago. In recent years, he has been active in ventures and transactions involving renewable- and alternative-energy sources. Solar and wind power are ascendant and have prompted even more new regulatory issues, including how to construct and pay for transmission needed to support smaller, geographically dispersed power generators. The next frontier is offshore wind generation, which will bring yet more change to the way the utility industry operates. The changes have pushed Neven to keep learning, but he wouldn’t have it any other way.
Keegan Werlin has an experienced team of attorneys with unmatched expertise in dealing with a wide range of energy and regulatory issues. The firm has a thorough understanding of the technical, strategic, and financial issues emerging in the industry and is able to use its expertise to successfully, cost-effectively represent client interests. Members of the firm have extensive backgrounds in regulation and government, including two former chairmen of the Massachusetts Department of Public Utilities, a former commissioner, a former general counsel, a former chief of staff, and several former hearing officers. Other attorneys in the firm have worked as inhouse counsel for large utility companies and as staff for members of the Massachusetts legislature. The diversity and extent of experience among Keegan Werlin’s attorneys facilitates highquality service to a broad array of clients in the regulatory and energy fields.
Portraits of today’s top legal executives, the remarkable careers they have cultivated, and the management strategies and best practices they employ to succeed both individually and collaboratively
Famed plaintiff lawyer Tom Girardi discusses the legendary career he’s built defending the common man against corporate malfeasance
By Randall Colburn
You might know Tom Girardi as one of the lawyers who worked on the landmark 1993 Pacific Gas and Electric Company case, which served as the basis for the Oscar-winning 2000 film Erin Brockovich. Perhaps you know him as the husband of Erika Jayne, one of The Real Housewives of Beverly Hills, on Bravo. Or maybe you just know him as the prominent trial lawyer he is, one who has long represented everyday folks in cases against corporate juggernauts such as pharmaceutical giant Merck, the Los Angeles Dodgers, and each of Hollywood’s seven major movie studios.
As one of the heads of the venerable Girardi & Keese law firm, Girardi continues to practice law while also mentoring a stable of young lawyers. He was recently named Lawyer Of the Decade by the International Association of Top Professionals and has been Super Lawyers’ number one attorney in California for five years running.
In an interview with Modern Counsel, Girardi details what drew him to the courtroom, what he has learned from his mentors, the benefits of an entrenched staff, the impact of celebrity, and more.
Why did you gravitate toward work as a plaintiff lawyer? What is it you find most satisfying about that work?
I knew absolutely, positively, without a doubt that I wanted to be a trial lawyer in the sixth grade because on Saturday night, at seven o’clock, Perry Mason came on. Perry Mason was awesome. Here was this gentle person seeking to help people, doing the right thing, and getting great results. I don’t think anybody could watch that show as often as I did and not want to be a trial lawyer.
So you knew early on you wanted to go to law school? Totally. Maybe that’s because I was so bad at everything else, but I was born to do this. That’s all there is to it.
Did you have a mentor coming up in the legal world? Oh, for sure. When I was in law school, I found out there was a plaintiff lawyer by the name of David Harney, so I called him and asked if I could assist him. I didn't want to be paid, and I ended up carrying his files around and got to sit through a couple of trials and so forth. He was totally inspirational. Then, on the other side was John Costanzo, the greatest defense lawyer. He had all these major cases representing General Motors and so forth. These guys were fabulous lawyers, but they were also the nicest guys you ever met in your life. Today, there’s so much antagonism in the legal profession. They would be against each other, but, man, when court was out at five o’clock, they were having a little bit more than a glass of wine.
How would you say their influence still impacts your career?
Those two guys, being the two leading lawyers in Los Angeles on both sides, really taught me a lot. I mean, I would watch Harney and how he would hesitate as he asked questions, making sure the jury was listening to what he was doing. Both of them were so jury oriented. They knew how important it was for the jury—more than the judge or anybody else—to understand the case. You need to gauge these cases against the jury. When I look at my legal life, I think I truly only won one case. I had a case against Costanzo. It was
huge. It was a medical malpractice case, and he had offered $30,000. The jury came back with $1.2 million, and as they’re pulling the jury, he passes me a note that says, “Now, you idiot, will you take the $30,000?” [Laughs]
What lessons do you pass down to those you end up mentoring?
Being a good lawyer has nothing to do with knowing the case of Mapp v. Ohio. Really, it has to do with relationships, and so many lawyers have lost that idea of how important relationships are with your client, the judge, and the other side.
Would you say developing bonds that go beyond the courtroom has been a pattern in your career?
Yes, I think so. There are many very, very good lawyers, but they sometimes don’t communicate with the client as they should. As you get older, you begin to understand that taking information to the client is really important. Keeping good lines of communication open is important when you represent them, and next thing you know, they are calling because their neighbor just got into a terrible accident. Then the communication continues to build.
What informs your decision as to whether or not to take on a case?
Quite honestly, it doesn't matter how big the case is. It depends on if the person is right or not. If you’re right, I want to help you. So, even if it's not a huge case, I want to help anyway because, to many people, a $30,000 settlement means so much. Also, I have some young lawyers here that need the experience of trying those cases.
Numerous members of your team have been with you for more than thirty or forty years, How have you managed to hold onto so much talent?
Number one, we treat them with respect, but I think more importantly, they really believe in what we’re doing. They think it’s important that we represent the people we represent. I’m not sure they would have quite the same fervor if we were defending an insurance company.
The Los Angeles personal injury attorneys of Girardi | Keese have recovered more than $10 billion in verdicts and settlements.
Est. 1965
1126 Wilshire Boulevard
Los Angeles, CA 90017
P 213-262-6777 / 800-401-4530
F 213-481-1554
155 W. Hospitality Lane, Ste. 260 San Bernardino, CA 92408
P 909-381-1551 / F 909-381-2566
www.girardikeese.com
“I knew absolutely, positively, without a doubt that I wanted to be a trial lawyer.”
You’ve achieved a level of fame not just for your legal work but also for your association with the Real Housewives and Erin Brockovich . Are there particular challenges and benefits of having that kind of recognition in the legal world?
Well, those are two different stories. Erin Brockovich was really good because that gave people an awareness—maybe for the first time—of environmental issues that are taking place. It was made for regular people, not lawyers, though it ended up being a very positive thing for the legal profession. Lawyers still discuss it when working on environmental cases; it’s well known even to this day. Now, Housewives is a whole different can of worms. [Laughs] I've managed to stay off of it pretty good. Obviously, I would do anything to help Erika.
How would you advise general counsel in the corporate sector to approach their work so that they’re less likely to face you in a courtroom?
I think a common failure of general counsel is not resolving an issue earlier rather than later. If there’s a case for $100 and you think you’re responsible, you can settle that case for $75 early in the game. But, if you continue on, that same case will cost $300, with $500 of legal fees. Sometimes, what could have been a small matter can become something quite huge.
How long do you plan to keep practicing?
As long as I don't have to have a catheter. [Laughs] This is so much fun, and quite honestly, after all this time, I get the idea that I finally know how to do it.
Early in his career, Ted Prouty learned how alluring the siren call of the urgent can be, and he is committed to fighting its tyrannical reign in his position at Air Liquide
By Kathryn Kruse
AT THE BEGINNING OF HIS CAREER, FRESH out of law school, Ted Prouty thought real lawyers practiced in the courtroom, so he joined Baker Botts LLP as a litigator. After four years, though, “I found out I did not love the constant and, often, purposeless conflict inherent in litigation,” he says.
Such conflict did not agree with one of his core philosophies: “Do not forsake the important for the urgent.” Prouty understands that what is important is often not urgent, and what is urgent is often not important. He has since relied on this principle to guide his varied and challenging career, and it has afforded him much success, including at Air Liquide, where today he serves as associate general counsel–US cluster.
Prouty began making his way to the multinational company with a pivot in his career. Following a longtime interest in business (he studied finance as an undergrad) he shifted to a transactional practice while at Baker Botts. “I wanted to be where law and business intersect,” he says. He found that at that intersection, conflict has more of a purpose and “at the end of the day, both sides are working toward a common goal.”
His work led him to Air Liquide in April 2012, where today he primarily supports the company’s’s electronics and advanced materials businesses, which design, manufacture, and supply the gases and chemicals used in state-of-the-art technologies such as flat-panel displays, computers, and smartphones.
Excited to help the company build its corporate portfolio, Prouty is involved in all aspects of the business and helps reduce front-end risk. A true generalist operating in a lean department, he works on everything from large mergers and acquisitions to customer contracts and disputes. No day is like the one before, and “I am constantly dealing with new situations,” Prouty says.
What holds all his work together is a combined love of the law and problem-solving and figuring out how to use both to improve Air Liquide’s bottom line. “My goal is to always provide timely and practical business advice,” he says. “We are the ‘eyes wide
Ted Prouty Associate General Counsel–US Cluster Air Liquide
open’ department. It’s our job to translate general legal analysis into practical counsel that allows the business to make informed decisions about risks.”
Amid all these competing duties, he continues to fight the tyranny of the urgent. “The pace of the in-house legal world is a sprint,” he says, and with so many immediate things demanding the attention of himself and his team, he has to be careful not to ignore deeper and seemingly less pressing concerns that might have more of a transformational impact. Prouty explains that half the battle is identifying each activity and dealing with it accordingly. For example, while urgent and important tasks must be done immediately, urgent
“Do not forsake the important for the urgent.”
but unimportant tasks are ripe for delegation—and tasks that are neither must be eliminated.
Fundamental to Prouty’s success is his insistence on scheduling blocks of work time each week to address important issues that aren’t urgent. “It’s easy to confuse the urgent for the important,” he says, “but the distinction is critical. When I focus only on the urgent, I am perpetually reacting. Blocking out time each week allows me to turn my practice from a reactive one into a thoughtful and proactive one.”
For instance, he has recently used such time to research recent Texas case law relating to force majeure clauses, and he has used that to update Air Liquide’s form agreements. “A simple activity like this can have a substantial impact on the amount of risk the company is exposed to—and ultimately on its bottom line,” Prouty says. “But, if I’m not intentional with and fail to protect my time, the more urgent activities usually triumph.”
Even though he wound up moving on from it, Prouty understands that his time as a litigator remains invaluable to him in his role today. It taught him how to differentiate between matters that are actually important and those that are merely pressing, and it also showed him how a deal or contract can go wrong. Now, at the front end of a problem, he can look far down the line and see how it might all end up. It’s an ability that has turned his career from a successful but stressful one into one that he loves.
Blank Rome LLP:
“Ted is an extremely talented lawyer and business advisor who achieves exceptional results on behalf of Air Liquide. We are thrilled to support him, the Air Liquide team, and their business goals.”
—Larry “Buzz” Wood, Partner
By Arianna Stern
Michael Neuman has lent his legal insights to a number of growing companies over the years, and here, he explains why he thrives in such challenging, ever-changing environments
Michael Neuman
VP
of Legal Affairs and Corporate Counsel
Marquee Brands
LIKE A LOT OF YOUNG PEOPLE, MICHAEL Neuman took the first step of his career down a path that wasn’t exactly right for him. His first job out of law school was at a law firm specializing in litigation, but his heart wasn’t in it. “It was good experience, especially on the research and writing side, but I never felt like full-time litigation was my calling,” he says.
But, a year later, an acquaintance started a small bankruptcy-focused fund called TR Capital, and Neuman saw the opportunity to establish a career path more in line with his personality and interests. He became the company’s first hire and immediately recognized that bankruptcy and distressed debt were fast-paced and broadly relevant areas of law.
He has since spent time as an early hire at a number of growing companies, most recently Marquee Brands, a burgeoning brand-acquisition and licensing company where he’s now the vice president of legal affairs. Marquee’s current portfo -
lio of brands includes Bruno Magli, Ben Sherman, Body Glove, and, most recently, Dakine, which it added in a deal that closed in late 2018. Also, notably, in 2017, Marquee purchased BCBGMAXAZRIA out of bankruptcy court in NY, allowing Neuman to continue developing his expertise in that area. Here, Neuman breaks down a few of the exciting aspects he enjoys about working for smaller companies, with all the pressure and uncertainty they entail.
An All-Hands-On-Deck Culture Neuman appreciates that small companies tend to have decentralized reporting structures, without calcified roles, tedious protocols, or even daily routines. At TR Capital, Neuman had his hands in all sorts of projects, from helping businesspeople word their emails to revising and negotiating contracts.
“I was assisting in every role in the beginning, really,” he says. “I was buying the debt, working on the assign-
ment contracts, collections, employee matters, and working closely with bankruptcy attorneys. It was an allhands-on-deck mentality, which really appealed to me.”
As part of his multifaceted, collaborative role at TR Capital, Neuman tried to find ways to make business negotiations go through smoothly, rather than acting as the resident “no” person. He understood that his colleagues’ livelihoods were tied to their dealmaking, and he didn’t take his obligations to them and the company lightly. “I’m a big believer in rolling up my sleeves and finding a way,” he says.
These efforts were helped along by the collaborative and collegial work environment that took root at TR Capital. Neuman and his colleagues worked literally side by side at a large desk, most of them just a year or two out of college, and the vibrant deal-hungry energy sparked the nascent business in its early years.
“Everyone got along really well,” Neuman says. “I’m still friends with a number of people from there; we are still regularly in touch, even years later.”
Following a successful and educational stint at TR, Neuman accepted an offer from the CEO of a brand portfolio and licensing firm called Sequential Brands Group, joining as its fourth employee. Again, he jumped at the chance to help build a small company from scratch. He knew the firm’s small size would require him to deepen his knowledge of certain legal specializations, and he looked forward to the challenge.
“When I started at Sequential, it was my introduction to the world of trademarks, IP, licensing, and M&A,” Neuman says. “It was different, to con-
“There’s always something in the works, and that provides a certain rush and excitement.”
stantly be at the forefront of a brandnew M&A deal. There was always something in the works, and that provided a certain rush and excitement.”
A transformative learning opportunity came when Andy Tarshis joined the company as general counsel, about two years after Neuman started. Given the small size of the legal team, Neuman had every opportunity to work closely under Tarshis, a well-known and seasoned general counsel, who nurtured Neuman’s professional growth. Thanks to Tarshis, Neuman added new layers to his understanding of license drafting, public company agreements, and trademark portfolios, which he never could have done if he’d been stuck in a routine at a large firm. “Under Andy’s tutelage, I was really able to get to the next level,” Neuman says.
After about four years at Sequential, Neuman arrived at his current role, charged with setting up and managing Marquee’s legal department. He had seen meteoric growth at Sequential, working on sixteen brand acquisitions (including the Martha Stewart, Jessica Simpson, Justin Timberlake, And1, Avia, Gaim, and Spri brands), so he had much to offer Marquee, then still in its nascent stages.
The first years of any business are a delicate time, including in the field of brand licensing, where numerous complex license agreements must be executed in short order to fuel growth but also must be handled delicately and carefully, Neuman was able to put his years of training to the test to help Marquee succeed. He says that no matter whether your counterparty is large or small, more than half of any negotiation is the “people factor.” If you can connect on a human level, the deal is likely to succeed, even if there are thorny legal points to work through.
Neuman says that “having a smile on your face, empathetically trying to view the matter from the prism of your counterparty,” and working creatively to find a workable solution is often not just the way to get a deal signed but the first crucial interaction in what can become a long-term, mutually beneficial relationship. Neuman says such long-term thinking is critical, and he credits his prior experiences with helping him hone these skills.
“It’s funny to me that a lot of times it starts off almost adversarial, and then we sit down and we’re friends,” Neuman says. “Hopefully, it’s the jumping off point for a great future relationship.”
Smile Brands’ Victoria Harvey discusses how the company’s simple motto, “Smiles for Everyone,” inspires its cheerful culture, including in the area of compliance
SOMETIMES CAREER SUCCESS IS SIMPLY ABOUT FINDING the right fit.
Victoria Harvey spent ten years serving as outside counsel, working on employment and business litigation, but eventually she realized that contracted firms tended toward binary, black-and-white answers. Craving more strategic engagement with her clients, she started working in-house in 2007, and her experience wound up carrying her to her current role as senior vice president and chief legal officer for Smile Brands Inc (SBI). She’s happier there not only because her work is more complex and nuanced but because the company culture is, true to its name, incredibly positive.
By Joseph Kay
Smile Brands is one of the largest dental-support organizations in the US. It provides dental practices with business support services such as marketing, recruiting, and accounting, simplifying the strategic and daily aspects of running a dental practice. It’s also known as an exceptional workplace and was number twenty-five on Glassdoor’s 2019 Best Places to Work list.
“I think other companies can learn a lot from our culture. Everyone leaves their ego at the door. Everyone is approachable. There is so much genuine care for each other here.”
Active with the ACC
Victoria Harvey joined the Association for Corporate Counsel’s (ACC) SoCal chapter the week she took her first in-house position. It’s an “amazing collection of individuals” that has helped her broaden her knowledge base and develop new skills. In her time she has . . .
• Served on the ACC SoCal board of directors, and she’s the current cochair of the CLO Roundtables and Golf Tournament.
• Chaired the In-House Counsel Conference, held at Angel Stadium, in Anaheim, California, where she has pushed its approach toward interaction and away from talking-head presentations. “My goal is to stay away from reading case law,” she says. “As in-house attorneys, we’re very busy. We’re looking for intelligence that’s concrete and concise.” Presenters have covered best practices regarding sexual harassment investigations, government inspections, and more.
Harvey joined the company in 2014 on an interim basis. The people she worked with across the enterprise helped her decide to stay on as associate general counsel. “I truly enjoyed the people I was working with—my peers, other department heads, teammates, and associates,” she says.
In 2015, she was promoted to the CLO role. Reorganizations and layoffs had been wearing on the organization at that point, and in 2016, SBI went up for sale. The sale culminated with previous CEO Steven Bilt and CFO Bradley Schmidt returning to their leadership roles. They’ve since cultivated a renewal, and Harvey marvels at the transformation, noting that the office today is cheerful and familial beyond compare. “We tend to spend so much time with our work family, and it’s genuine,” she says.
Today, everyone in the office wears a rubber wristband featuring the company mission: “Smiles for Everyone.” “It’s not just about presenting a friendly face,” Harvey says. The saying actually inspires and informs decisions throughout the organization. It invites associates to reflect on how a choice serves the team, the community, and the organization. “It can look very simple; it’s concise and to the point,” Harvey says. “But, whenever we have a decision to make, that’s the thought process: how is this benefiting me, the patients, and the communities we serve and partner with? We’re looking at everything holistically.”
It’s one of Bilt’s many three-word maxims, which capture and drive the company’s culture: “Smiles for Everyone.” “Celebrate. Everyday. Miracles.” And, Harvey’s own, “Culture Drives Compliance.” Regarding the latter, Harvey says the clarity and visibility of the smiles-for-everyone approach makes compliance simpler. Her team has its own wristbands, and on the back of each is the phrase “In the Light of Day.” They serve as prizes for team members who point out issues or make an exemplary effort toward the company’s compliance goals. “We have people who want to do the right thing, and these things go hand in hand: whatever you do, do it in the light of day,” Harvey says. Her legal department is a true partner to the business in other ways, too. Its eight legal professionals don’t say no and instead aim to build consensus while covering everything from compliance to risk management to government affairs and more. When
she arrived, their eight desks were spread around the building, so one of her first acts was to bring the team together physically. Now, they’re closer than ever. Doors stay open, and ego rarely interferes with decision-making and growth.
“Our goal is to always find a solution,” Harvey says. “We have to look at common-sense solutions and get to yes. We have to understand the business and where everyone wants to go with it. How can we help the organization achieve that goal?”
Looking ahead, Smile is in a growth pattern, so Harvey’s looking to add to her team while continuing to hone the workplace culture that’s driven her business’s success in recent years. “I think other companies can learn a lot from our culture,” she says. “Everyone leaves their ego at the door. Everyone is approachable. There is so much genuine care for each other here.”
Senior Vice President, Chief Legal Officer, Smile Brands Inc. We are honored to work with Smile Brands, and we congratulate Victoria on being selected for a profile in Modern Counsel
With respect, your friends and colleagues at Manatt.
“Victoria
—Christine Reilly, Partner
Manatt, Phelps & Phillips, llp manatt.com
Jackie Bryk Welch discusses the big lessons she has learned in-house since joining the major food, beverage, and pet food company
By Bridgett Novak
JACKIE BRYK WELCH HAS ACHIEVED MANY of her career goals since graduating from law school in 2004. She has been an associate at regional and national law firms, has played influential roles in nationally recognized litigation, and now heads litigation at The J.M. Smucker Company. She credits her rise to “a simple recipe of hard work, perseverance, and old-fashioned luck.”
The hard work came early. As an associate at Flaherty Sensabaugh Bonasso in Charleston, West Virginia, Welch played a major role in a high-profile lawsuit: West Virginia University Board of Governors v. Rodriguez. WVU sued its former football coach Richard Rodriguez, seeking payment of his contract’s liquidated damages provision after he left to coach at the University of Michigan. Welch went to depositions, led discovery, authored motions, and participated in media interviews.
“The firm’s lead partners pushed and mentored me to be a full member of the team,” she says. “It was a great opportunity, especially that early in my career.” Coach Rodriguez was ordered to pay the full amount owed under his contract, and the case convinced Welch she had found her passion. “I love the advocacy role of litigation,” she says.
Good luck came three years later. While an associate at Tucker Ellis, in Cleveland, Welch was asked to sit in on a meeting with a potential new client, The J.M. Smucker Company, which was looking for a firm to handle its litigation needs. Welch hit it off with the team. A few months later, when The J.M. Smucker Company decided to create a litigation position in-house, the general counsel, Jeannette Knudsen, asked Welch to join the company. “The idea of putting all my time and energy into one client, especially an iconic one like
Smucker’s, attracted me right away,” she says.
Flash forward seven years and Welch remains the sole in-house litigator at the $7.4 billion food, beverage, and pet food manufacturer. Here, in her own words, she shares some valuable lessons she has learned along the way.
I look for outside counsel that understand Smucker’s business culture, needs, and goals. I want the lawyers we work with to think outside the box and come up with creative approaches. I am a proponent of novel ideas for handling disputes, especially in this litigious environment.
In-house counsel have the ability to influence law firms not only to meet business needs but also to shape the
profession. We can ask them to partner with our companies when it comes to fees. And, we can encourage them to engage and mentor newer attorneys. For example, I fully encourage the active involvement of associates as members of the team and not mere background workers. I realized these efforts made an impact when I learned that an associate who took an active role in several of our cases became partner largely due to her tremendous work for us.
No employee enjoys a call from the company litigator. I try to avoid being the bogeyman by getting to know people on a personal level before a matter arises that might require their assistance. I want people to see me first as someone who puts them at ease—and
then remember that I am a lawyer. I’m known for bringing humor into stressful situations. Laughter can defuse even the tensest situations.
In one instance, an employee was extremely nervous about her upcoming deposition. After discovering that we shared a love of ice cream, we moved our meeting from a conference room to a local ice cream shop. It helped her see me not just as a lawyer but rather as someone there to help her through a stressful process. She did a phenomenal job in the deposition the following day.
The J.M. Smucker Company was founded in 1897 and has completed a number of major acquisitions in the past several years, which ensures I never stop learning. For instance, some recent
Jackie Bryk Welch VP of Litigation
The J.M. Smucker Company
lawsuits involved facilities that had previously been operated by one of the acquired businesses. A member of my team, Kimberly Weese, recalled working on the deal a decade earlier. She went through all the agreements prior to the J.M. Smucker acquisition and discovered that the business had waived its liability for the facilities, so we bore no responsibility. You have to know what you don’t know and trust your team.
I’ve learned throughout my career that balance makes me a better lawyer. I believe in the value of hard work but also that stepping back helps me put my work in perspective and gain efficiency. It also ensures that I am present for my family. As such, I encourage outside counsel to unplug as much as possible when they go on vacation or have family events.
Mentoring is the best way to achieve success in this profession. I’ve been mentored by attorneys of different genders, races, ages, practices, and styles. This has helped me learn to adapt to any situation. Even now, I never turn down an opportunity to be mentored.
I also never refuse the request to mentor. In fact, I have mentored one young man since he decided to take the LSAT and continue to mentor him as he enters his third year of private practice. This can be a tough profession. I wish I’d taken advantage of a mentor while I was in law school to better prepare me for my career. Lawyers are generally taught to not ask for help, which is not a healthy approach. I think it’s important for those of us who have been there to help those who are just coming up.
“Off-the-wall” thinking powers the Vans brand, and Libby Stockstill carries it into the company’s legal department to handle key efforts and initiatives in innovative ways
By Arianna Stern
LIBBY STOCKSTILL
IS THE FIRST TO acknowledge that most people don’t think of lawyers as creative. However, at Vans, the global footwear and apparel brand, where she works as vice president and general counsel, she strives to disprove that notion every day. Stockstill brings creativity to everything she does, from working with other departments on key brand projects to problem-solving and mitigating legal and business risks. And, because of Vans’ boundarypushing company culture, Stockstill has the freedom to embrace her creative side and inspire others to do the same.
Since creativity is part of every single role at Vans, Stockstill gets constant inspiration from her colleagues to explore nontraditional ideas. Instead of asking whether a certain policy or plan is possible, she and her coworkers ask, “What would have to be true for X?”
Framing everything as within the realm of possibility shifts the perspective and fosters productive and open discussions and creative thinking.
“Sometimes, the ideas that you might have otherwise hesitated to bring up end up winning the day,” Stockstill says. As an example, she says, she might examine an issue or impasse that arises in a deal or transaction and use a combination of analytical and imaginative thinking to come up with a win-win solution, rather than accepting a more traditional compromise. She also spends a lot of time thinking about innovative ways to approach challenges and issues.
In bringing creativity to her legal efforts, Stockstill maximizes her effectiveness as a business partner, but she rejects the idea that an effective partnership means she has to be extraordi-
Libby Stockstill VP and General Counsel Vans
“Sometimes, the ideas that you might have otherwise hesitated to bring up end up winning the day.”
narily tolerant of risk. Instead, she says, it means “looking at risk and what we’re trying to achieve in context, assessing and prioritizing.”
In conversation with her colleagues, Stockstill identifies and talks about potential risks with an open mind so that they understand they also have a voice. “If I identify a potential issue, it doesn’t necessarily mean it’s a dealbreaker,” she says. “It just means it’s something we should think about, talk about, and understand.”
Her thoughtful approach helps her and her team earn the trust of colleagues across other functions, and a solid relationship with these groups means the legal team gets included in more discussions, which then adds to the legal team’s knowledge of the business and its strategic objectives and allows its members to make more beneficial suggestions. Every beneficial suggestion then helps to solidify the relationships with colleagues in Vans’s other business functions even further, creating what Stockstill calls a “virtuous cycle.”
While working actively to support the business side of Vans, Stockstill also inspires her subordinates—and colleagues in other departments—to think creatively. She often works cross-functionally because, as she says, her role “touches every aspect of the business.”
“I spend a lot of time trying to figure out how legal can best partner with the business to bring about the strategic objectives that we’re focused on,” Stockstill says.
Her diverse responsibilities push her to maintain working relationships with a lot of people, and she takes the opportunity to coax creative ideas out of all of them. The work often entails asking lots of questions. “As a brand
Vans
Courtesy of
centered on enabling creative expression, we are constantly challenging ourselves to think creatively and push the envelope,” Stockstill says. “To do my part in that, I try not to push a particular viewpoint at the outset of these discussions so that people feel free to explore and we learn in the process. Instead, I ask questions to spark creative thinking and to get the details and background needed to get to a solution.”
She also likes to organize brainstorming sessions. “I think the best ideas come from throwing something in the mix and iterating, so I like to provide a forum for that,” she says, adding that crossfunctional brainstorming is the most exciting kind because of the diversity of perspectives. “It’s a team effort, and we work best when we’re all contributing and learning from one another.”
Employed by a VF Corporation-owned brand, Stockstill also notes the invaluable benefit of being part of the VF legal team. It provides her with a broader network of legal thought leaders and mentors across VF and Vans’s sister brands, including the North Face and Timberland, and she partners with them to learn new, creative ways to approach initiatives and issues.
Stockstill identifies creativity as a personal value of hers and recalls that she was a daydreamer with a vivid imagination as a kid. Her path eventually led her to law school, where she found she could ignite and apply that energy in a different way. Though Stockstill’s creative thinking didn’t start at Vans, the company has helpfully challenged her to rely on it every day and cultivate it in others. Both the company’s business objectives and Stockstill herself have benefitted. “I’m constantly being inspired by my colleagues to think creatively, and that makes it very natural and almost an imperative,” she says. “We live it and breathe it.”
Vice President & General Counsel Vans
An exceptional lawyer A trusted and collaborative colleague A remarkable person Congratulations!
How AES’s flat hierarchy and Marc Michael’s expertise in international law enable the company to push for a brighter, more sustainable future worldwide
By Sarah Breeden
FOR SEVERAL DECADES, SCIENTISTS AND NEWSPAPER headlines have warned that global warming is the most threatening health and safety issue of our time. Some have claimed that it has already resulted in natural disasters such as more destructive hurricanes and more frequent wildfires. Because of perceived risks such as these, regulators around the world have attempted to address climate change by encouraging the development of renewable power sources. The AES Corporation is a global power company dedicated to meeting this challenge by accelerating a safer and greener energy future. It has power plants in fifteen different countries, with an increasing focus on renewables, but the global scope of its work comes with additional economic and legal challenges, which can include international disputes with counterparties and states.
Managing these disputes, at the helm of the company’s dispute resolution office, is chief counsel
of global dispute resolution Marc Michael. He has worked at AES for fourteen years and appreciates its mission to create a more sustainable energy future, which has even led to outside recognition. For the past five years, AES has been named a “World’s Most Ethical Company” by the Ethisphere Institute. “It’s a different kind of company,” Michael says. “It has always been trying to do the right thing in the energy sector.” Much of what makes AES different has to do with its flat hierarchy, where there are few middle-managers and greater accessibility to leadership. The structure enhances not only in-office collaboration but global interaction between the companies many workplaces and partners.
“AES is very open about who is doing what,” Michael says, noting that its flat hierarchy extends to the layouts of its physical office spaces. While not fully open, their glass walls allow employees to see who’s
Marc Michael Chief Counsel of Global Dispute Resolution AES
“Comparative law is fascinating. You have to operate in different jurisdictions, with different customs and laws.”
interacting with whom, and doors are almost always left open, including CEO Andrés Guski’s. The setup is designed to encourage employees to collaborate. “No one is really that far apart,” Michael says. “You’re on the same team and interacting all the time.”
Michael works with both an in-house team and lawyers from around the world to solve complex challenges related to the $33 billion in power assets that AES manages globally. He has tackled multiple investment-treaty claims against sovereign states, cross-border construction disputes, securities lawsuits, antitrust matters, US and foreign investigations, and novel questions of environmental law, among other issues. His interest in such high-stakes problems extends all the way back to his days as an undergraduate at the Catholic University of America. There, he studied constitutional law and landmark US cases. One of his professors conducted in-class debates, assigning students to take a side and argue for a position. Michael was hooked.
After earning his law degree, Michael landed his first job, at Winston & Strawn LLP, handling complex commercial disputes on energy and other matters. After several years working at the firm, Michael was approached by a friend with the opportunity to work at AES in an in-house counsel role.
Today, as chief counsel of global dispute resolution, Michael must maintain an international perspective that requires him to be proficient in the laws and customs of numerous countries. “Comparative law is fascinating,” he says. “You have to operate in different jurisdictions, with different customs and laws.”
Because legal teams in different parts of the world are operating under different cultural and legal structures, negotiations and disputes have additional layers of complexity. Success may depend on seeing things from the other side’s viewpoint. “You may think, ‘Why did our counterparty do that?’” Michael says. “They may be acting rationally for reasons I don’t yet realize.” What is often the case is that his counterparty are operating on a set of assumptions that reflects their own cultural experiences.
As an example, Michael explains how a large European construction company may be accustomed to developing state-funded projects. When its work goes over budget or past deadline, the burden may fall to
Bradley congratulates Marc Michael
On behalf of every member of Bradley’s Construction and Procurement Practice Group, it has been our great pleasure to work with Marc and his legal team for well over a decade. We congratulate Marc on this well-deserved recognition for his leadership and his many contributions to the success of AES.
bradley.com
taxpayers, and the project moves forward. A special project vehicle (SPV) with a fixed budget and non-recourse financing doesn’t have the same flexibility. “From the SPV point of view,” Michael says, “we can’t modify anything.” This can lead to conflicts that are usually dealt with in international arbitration and, more rarely, in court.
The high stakes and intricacy of international law is thrilling, and the thrill is what has kept Michael interested in his career.
“I can’t think of anything more exciting than a cross-border dispute with an international counterparty that is very well represented,” he says.
The rapidly changing energy market, which has seen multiple shifts in just the past decade alone, has also kept Michael engaged with his work. “All the major players want to go renewable and be less thermal,” he observes. Worldwide, there have been policy changes, new environmental regulations, and stricter controls on carbon-based emissions. In addition, renewable technologies have become more affordable and are still being developed. An example of this is AES’s battery-storage solution, originally developed in 2007, which has experienced continued innovations and price declines. Recently, AES launched one of the largest solar-plus-battery-storage projects in the world, allowing renewable energy to be deployed throughout the day and night. Moreover, as the market for
renewables has expanded, AES has had to compete harder with other companies for projects. When a project is developed, arbitration with a contract counterparty or host state is always a possibility. “The market for international dispute work has commoditized,” Michael says, noting that an RFP for legal services might be sent to firms across three or more continents. “Firms have to be much more creative in marketing themselves and winning bids.”
Down the road, Michael predicts continued technology improvements, but it’s harder for him to say what they will look like specifically. “No one would have foreseen what the battery market is now ten years ago,” he says. As climate change continues to be on the mind of global regulators, though, and as energy markets continue to evolve around the world, Michael will be prepared to steer AES’s dispute-resolution efforts.
Willliams & Connolly LLP: “Marc’s
—John McNichols, Partner
In conversation with Stacy Cozad
By Randall Colburn
“I’ve always loved airplanes,” says Stacy Cozad, who spent her youth going to DFW International Airport with her father, an aircraft rescue firefighter and police officer. “I’m still the person who watches airplanes fly overhead, marveling at the engineering and imagining the places those passengers are going.”
Today, she puts that wonder to use as senior vice president, general counsel, chief compliance officer, and corporate secretary of Spirit AeroSystems. There, engineers design and execute some of the world’s most elaborate aerostructures. And, before joining Spirit in 2016, she served as an associate general counsel at Southwest Airlines.
With each position, Cozad has had to dig into every corner of her industry while also refining her leadership style. New responsibilities call for new strategies, after all, and Cozad’s duties have run the gamut from contracts and compliance to acquisitions and enterprise risk management. “It brought new meaning and awareness for me of the phrase ‘drinking from a fire hose,’” she says of her expanding duties.
On the next page, Cozad speaks on her journey from Southwest to Spirit—as well as how the latter’s “new values journey” has helped her enhance her leadership approach.
It seems change has been a constant in your career.
I don’t know whether I chose the litigation route because I liked constant change and learning or whether instead I learned to like change and learning because I chose to be a litigator. Either way, critical to my ability to be effective in litigation was my ability to learn new things and actually enjoy it. I had no idea then that I was preparing myself for my in-house career and eventually a Fortune 500 general counsel role. I can’t tell you I have that all figured out yet, because I don’t. What I do know is that any good general counsel has to be adaptable, open to learning, and willing to listen to anyone who is gracious enough to share their experiences.
What all did you take on when you joined Spirit?
When I was hired as general counsel, Spirit’s then-CEO, Larry Lawson, also asked me to lead the compliance team, which was a new passion I was developing before I left Southwest. At the same time that I was learning how to be a general counsel and a member of an executive leadership team, I was also transitioning from a customer-service business to an aerospace and defense manufacturing business. Everything but the litigation and the regulatory environment was new. I took home stacks of binders every night as I learned about our business, our contracts with customers and suppliers, our unions, our global workforce, our governance, and our board. It was a near-vertical learning curve for quite a long time.
Your first big career transition was in shifting to in-house work at Southwest. What new duties and concerns did you realize you would need to focus on that weren’t part of your work in private practice?
As you would expect, most law firm litigators think like lawyers. When you work in-house, your focus has to shift from lawyer first to businessperson first. For some people, that’s an easy transition. For others, it may take longer. I was probably somewhere in the middle. What was an even bigger transition from law firm culture to working at a company like Southwest was the leadership side of the equation. I transitioned in-house at a time when even the best law firms were not spending much time developing lawyers as good leaders of people, focused on their employees’ personal growth and development.
How did you begin developing your own approach to leadership?
I learned a lot about leadership at Southwest, where there’s a strong people-first culture. It was a culture that really cultivated people’s individuality and creativity, even in the legal team, and everyone felt comfortable sharing their thoughts freely. I liked that, because I’m an outspoken person.
Has working at Spirit helped evolve your leadership style?
Yes, especially because we’re on a relatively new values journey. Our core values are collaboration, inspiration, and transparency, and this year we added “speak out,” which is about respectfully challenging thought to
Stacy Cozad SVP, General Counsel, Chief Compliance Officer, and Corporate Secretary Spirit AeroSystems
“Critical to my ability to be effective in litigation was my ability to learn new things and actually enjoy it.”
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achieve better results. Today, if I were to describe my current leadership philosophy, it might best be described as “speak out.”
What does “speak out” mean from a leadership perspective?
One of my favorite speakers and authors on leadership is Brene Brown, who’s all about authenticity, transparency, and vulnerability. Speaking out requires making yourself vulnerable. You’re putting your thoughts out there for people to criticize and pick apart. But, it’s only through sharing our thoughts and experiences that everyone learns together and builds a better airplane, a better business, and a better future. I’ve spent a lot of time helping my team to grow their ability to speak up in a way that is persuasive. One of the words you’ll hear me say with my team is “influence,” because the highest value I think a lawyer can have is his or her ability to influence a business decision in a way that helps the business achieve its goals. My team at Spirit regularly hears me say that my leadership of the team, including my commitment to their personal development, is the most important thing I do.
Legility, a leader in Legal Operations, is honored to work with trailblazers like Stacy Cozad. Since 2000, Legility has provided consulting, technology, managed solutions, and flexible legal talent engagement services to corporations and law firms.
Mark Hershey uses technology and a unified corporate culture to steer Armstrong World Industries ahead of the competition
By Clint Worthington
FOR MORE THAN ONE HUNDRED YEARS, Pennsylvania-based Armstrong World Industries (AWI) has cultivated its position as a global leader in the field of building products, including commercial and residential ceiling and wall solutions. To continue that success in the next century, legal leader Mark Hershey and the company’s legal department are building a culture around the motto “Navigating Risk with Confidence.” As the senior vice president, general counsel, and chief compliance officer, Hershey is working with his team to take steps to proactively ensure Armstrong’s operations remain adaptive and flexible.
When Hershey arrived at Armstrong in 2011, he already had nearly twenty years of experience in corporate law. After earning his JD at Villanova University, he launched his legal career
as a corporate associate at Philadelphia law firm Stradley Ronon Stevens & Young, LLP. He then spent six years as general counsel at IKON Office Solutions and later worked for Ricoh Americas, prior to joining Armstrong. The company allowed Hershey to expand his expertise into manufacturing and international operations, particularly emerging markets, while also focusing on corporate governance for a publicly traded company.
The motto “Navigating Risk with Confidence” emerged in response to a new reality at Armstrong, according to Hershey. After Armstrong Flooring was spun off in 2016 in a project Hershey helped lead, Armstrong World Industries refocused its mission and culture as a ceiling- and wall-solutions company. The new focus needed to be communicated and implemented across
the multibillion-dollar company. “In all of our customer interactions, both internal and external, we want to be easy to do business with,” Hershey says. “We want to add value for our customers and business partners in everything we do.” For Hershey and his team, their motto was born out of a desire to promote these ideas and create a simple rallying cry that would be easily understood and embraced.
“The motto means that we’re helping the organization identify, quantify, and mitigate risk in a thoughtful and informed manner so that our company may quickly realize or reject business opportunities,” Hershey explains.
While risk-taking is an essential key to business growth, Hershey adds that many companies—and their legal departments—may take too many steps to completely avoid or mitigate it. Noting the difference between in-house and private-firm counseling, he notes that it might be dangerous to play things too safe. “Taking smart risks can lead to great success,” Hershey says. As Armstrong’s legal leader, Hershey believes that effective risk management involves identifying when to “stay in port” and when to “set sail” in a balanced and timely way, resulting in the agility and flexibility Armstrong is striving for in its company culture.
Hershey credits one of his “terrific” paralegals, Amie Barndt, for coining the slogan and helping the legal team implement it. She designed and deployed several props and images displayed in the legal department’s common area and offices, including nautical-wheel fidget spinners for each team member. Of these accessories, Hershey’s favorite is a trio of shark images in different nautical settings, which he likes to refer to as a visual aid when helping the
organization understand and respond to legal issues.
Yet the “Navigating Risk with Confidence” approach is more than ornamental; Hershey’s team has instituted several practical measures to improve Armstrong’s adaptability today. Among these efforts have been the design of an M&A playbook for better integration of new acquisitions; the incorporation of the Serengeti e-billing platform to eliminate manual procedures for all law firms; the use of the Cobblestone contract-management platform to automate recordkeeping for the entire company; and the use of SharePoint tools and functionality for compliance training, policy management, and recordretention programs.
Among the team’s many current initiatives is a focus on enhancing
Mark Hershey SVP, General Counsel, and Chief Compliance Officer
Armstrong World Industries
intellectual property clearance processes to work faster and easier. This effort includes updating procedures for screening IP opportunities early in the project life cycle (before significant time and investment is deployed) and evaluating new technologies such as search-database tools. Being involved in each project early as a trusted partner helps Hershey’s team better understand each project’s risk, leading to better and faster decisionmaking in critical innovation and product-development matters.
Hershey believes navigating risk with confidence is strengthening Armstrong’s business moving forward, but he also attributes the company’s longevity to another principle: “Let the buyer have faith,” coined by founder Thomas Armstrong, in 1860. “It reflects a steadfast dedication to customers, through quality and service, which has permeated the culture of the company for over a century,” Hershey says. “And, even today, it keeps us focused on what is most important.”
As Armstrong continues to evolve and transform itself through public spinoffs, acquisitions, divestitures, and product innovation, Hershey has both confidence and faith that the company will thrive for another hundred years.
Stradley Ronon Stevens & Young, LLP:
“Mark is a very astute lawyer with great business instincts and is a highly effective leader. We, at Stradley Ronon, are proud to serve as trusted advisor to Mark and his Armstrong team.”
—Jeffrey Lutsky, Managing Partner
Stradley Ronon is proud to recognize the achievements of
Mark A. Hershey Senior Vice President, General Counsel & Chief Compliance Officer
AT THE AGE OF TWENTY-TWO, ROSIE LIPSCOMB went on a soul-stirring journey as a Peace Corps volunteer in Tanzania.
She spent the first six months learning to speak Swahili in Arusha, then she moved to her post in the quaint village of Maswa—twenty kilometers west of the Serengeti—to teach chemistry at an all-girls government boarding school. (She had earned her bachelor’s degree in the subject at Princeton University.)
Lipscomb lived in a house on campus that lacked running water, electricity, and basic sewage facilities. She was not prepared for the tough living conditions, but instead of being discouraged, she embraced the challenges, and they helped turn her into the indomitable negotiator she is today as senior competition counsel at Google.
“To survive in that environment, I learned the local language, got to know my neighbors, and tried to build genuine relationships with those around me,” Lipscomb says. “It really shaped who I am and taught me how to understand different cultures and people who grew up differently. No matter how diverse people’s backgrounds are, there’s always space to find common ground.”
By Abhinanda Datta
Rosie Lipscomb’s experiences abroad helped prepare her for a career in negotiating high-stakes legal matters for the tech giant
She returned to the US to teach physics in her home town of Laredo, Texas, then earned her master’s degree in international policy studies at Stanford University, which inspired her to pursue a JD at Columbia University. While at law school, Lipscomb honed her interest in international criminal justice and spent a summer working for the office of the prosecutor at the International Criminal Tribunal for Rwanda (ICTR). The ICTR’s lawyers were in charge of prosecuting the people accused of orchestrating the 1994 genocide in Rwanda that left, by
Rosie Lipscomb Senior Competition Counsel Google
some estimates, as many as one million people dead.
Lipscomb wrote about Rwanda’s truth and reconciliation commission, which was designed to help foster forgiveness between the country’s Hutu and Tutsi people at the local level. “In Rwanda, many of the perpetrators of the genocide were ordinary people,” Lipscomb says. “Imagine your nextdoor neighbor comes to your door and
kills your family. You’re left behind. How do you mend fences with that neighbor, help people forget, and rebuild a peaceful, productive society? This was the focus of much of the commission’s and my work.”
These formative experiences led Lipscomb to realize that she wanted her work to make a difference in the world, and this epiphany eventually brought her to Google seven years ago. “I wanted to work for a company that I believed was doing good and had people whose values were similar to mine,” she says. “ The people I’ve met here and the experiences I’ve had only confirm that I made the right decision.”
At Google, Lipscomb helps counsel the company on business issues, ensuring that its products and business arrangements comply with competition laws around the world. One of the biggest challenges Lipscomb faces is trying to explain how the company and its products work while also reminding people that it is an organization that is made up of human beings who are trying to do their best in a world where the law and the facts are constantly evolving.
Google tapped Lipscomb as the lead lawyer in a landmark settlement with Microsoft in which the companies agreed to end all ongoing regulatory actions against one another. Her experience helped her navigate the tricky relationship between the two companies. Today, she’s also Google’s lead lawyer regarding compliance with the European Commission’s recent Android decision that required changes to the company’s business model. While Lipscomb strongly disagrees with the commission’s decision, her background has enabled her to collaborate with the commission to understand its concerns and implement a compliant solution.
“A lot of it is about getting people on the other side to come to the table and talk, particularly people who may be skeptical of each other or who question each other’s intentions,” Lipscomb says. “You have to be open to finding a way of resolving the conflict. My work at the ICTR and my experience in the Peace Corps helped me be less skeptical of people and focus on what we have in common.”
Lipscomb also draws from her experiences in Africa to train Google’s future leaders. She takes her role as a manager very seriously, aiming to create an environment where her team feels fulfilled and empowered when they come to work. “Who your manager is and how they treat you has an outsize influence on your happiness and well-being,” Lipscomb says. “At every turn, I try to find opportunities for my direct reports to learn and grow, even if that means finding them opportunities outside of my immediate team.”
Committed to legal excellence for more than 70 years, Cleary Gottlieb is one of the world’s preeminent law firms: 1,300 lawyers in 16 major global financial centers worldwide dedicated to providing pragmatic and innovative solutions for our clients’ most complex business challenges. clearygottlieb.com
Building mutual trust is crucial, according to Lipscomb, who also believes in finding the best in people. She prioritizes her relationship with her team and the dynamic they have created. “It is essential to me that the colleagues that I work with trust that we’ve got a good working relationship,” Lipscomb says. “We try to meet each other halfway. It is really important to me that the team I work with give each other the benefit of the doubt and assume the best in one another.”
Clearly Gottlieb Steen & Hamilton LLP: “Rosie Lipscomb is everything a great lawyer should be—smart, dedicated, creative, and a joy to work with. A true team player, she brings passion, energy, and intelligence to everything she does. Cleary Gottlieb is delighted to celebrate her achievements.” —Nicholas Levy, Partner
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Intel’s Dan Vaughn and his legal team are helping lead the tech giant’s growthby-acquisition strategy with a thorough and refined set of vetting measures for each M&A deal
By Peter Fabris
might not be well known outside certain techindustry niches, but their acquisition by Intel could one day power significant growth for the Silicon Valley stalwart. Mobileye, a developer of technology for autonomous driving, and Movidius and Nervana Systems, both innovators in artificial intelligence, are helping advance Intel’s evolution from a PC company to a data-centric company, says Dan Vaughn, associate general counsel and M&A legal lead for the business.
The purchases are just some of the latest that Vaughn, with a track record in corporate finance and M&A law spanning more than two decades, has helped Intel negotiate over the past few years, maintaining its status as a global tech leader. He and his team approach the deals as “cocaptains” with business executives, and their involvement begins at the earliest
stages and runs through the closing of each acquisition. With at least nine acquisitions completed since Vaughn joined the company in May 2015, the legal team has had many opportunities to hone its approach to assessing the risks and benefits of these transactions. “We’ve been focused on developing repeatable processes for efficient execution of acquisitions,” Vaughn says. Here, he breaks down a few of the particulars of Intel’s M&A process and how exactly he and his team approach common concerns.
The M&A process today begins with a nondisclosure agreement between Intel and its acquisition target. While nondisclosure agreements for standard commercial partnerships—very common in the technology industry—are tightly focused on a specific
Intel has focused much of its community outreach on promoting increased employee diversity in the technology industry, through STEM programs for women and underrepresented minorities, through mentoring and scholarship programs in Northern California high schools, and by funding other diversity programs. Associate general counsel and M&A legal lead Dan Vaughn takes part in these efforts by:
• Staying active in organizations that further the careers of minority attorneys. “I share what has helped me be successful as a minority lawyer,” he says.
• Advising young minority lawyers, including offering a key piece of advice: “It’s important to find someone within your organization to mentor you. It’s almost impossible to succeed as an M&A lawyer without mentoring.”
product or service, M&A nondisclosures encompass almost every aspect of the target company. (Exemptions may be made for trade secrets such as proprietary computer code, though.)
Vaughn’s team also participates in drafting a term sheet: a document that captures the principles of the deal. During this step, Intel lawyers scrutinize and verify the value drivers of the transaction to help C-suite executives derive a fair value for the targeted company and give insight into the long-term potential of the deal. They identify risks and liabilities and help devise risk-mitigation strategies.
The impetus for acquiring a technology startup typically centers on IP. Intel’s lawyers therefore investigate a target company’s IP ownership claims with great scrutiny and care. Did all the inventors of the technology sign invention assignment agreements? Does the target company license some IP from a third party? “Our job is to see that the target company fully owns its IP,” Vaughn says. If it does not, Vaughn and his team must determine what implications that has for the deal. For example, invention assignment agreements might have to be negotiated after the transaction goes through.
If a target company did develop its own IP, Vaughn and his team then look into what the company has done to protect ownership of its innovations. Documentation of patents, licensing agreements, and employee and contractor confidentiality agreements must be vetted for any items that might imperil full IP ownership.
Regulations governing exports, antitrust standards, and employee protections are another major area for investigation. For example, some countries, including Israel, provide financial support to technology startups. If a target company has accepted funding from the Israeli government, there may be restrictions on whether its IP can be moved to a company outside of the country.
In the European Union, on the other hand, workers have extensive rights when a company based in that region is sold. Employees are entitled to a certain number of days of advance notice prior to a deal. They also have the right to be informed of their company’s plans for them, should the transaction be completed, and what their compensation range will be if they are retained. The employee-notification requirements might even mean it will take longer for a transaction to be completed. “An M&A lawyer must explain to businesspeople
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With more than five hundred M&A lawyers worldwide, the team advises leading public and private technology companies, private equity and financial sponsors, banks, and other institutions on complex, big-ticket buy- and sell-side matters and strategic alliances, providing in-depth expertise to clients as they scale. The team’s expertise includes first-chair, in-house experience, and its lawyers are sensitive to particular issues arising from domestic and cross-border technology M&A matters, including IP ownership, product-development challenges, opensource orthodoxy, code quality, privacy compliance, and IT systems integration matters. The team regularly advises on innovative hybrid transactions as clients enter new markets or product lines, offering commercial approaches and creative structures to address technical, operational, and integration issues, provide practical risk assessment, and develop mitigation strategies without sacrificing quality or adding risk.
these rights and how they impact the timing and costs of the deal,” Vaughn says.
Private, venture backed technology companies often have complex ownership structures. They may have multiple levels of preferred stock, common stock, and employee stock. During the due-diligence phase of an M&A deal, Intel’s lawyers unravel the implications of a target company’s ownership arrangement. For instance, holders of a certain class of preferred stock may have a liquidation preference, Vaughn explains. If those holders are entitled to claim the majority of the sale proceeds, there might be little left over for employees.
“It might be incumbent on us to properly incentivize employees,” Vaughn says. Intel may sweeten the deal for employees by raising the common-stock payout or providing a proportional amount of Intel stock so that they stay with the company after the acquisition. If the latter is the case, Intel might face a higher overall cost for the acquisition, and valuators in finance have to account for that.
The legal team’s work on most M&A deals takes between thirty and sixty days, Vaughn says. That’s an ambitious schedule, given all that has to be accomplished. In the fastpaced technology sector, though, rapid response is necessary, especially if a key acquisition is being looked at by multiple potential buyers.
“We work basically around the clock,” Vaughn says. For larger deals, outside counsel sometimes augment the work of Intel staff to help keep the process moving on a tight schedule, and they’re consistently impressed with the work of Vaughn and his team. “Intel deals demand that its lead embody the three P’s: pacesetting, proactive, and passionate,” says Bill Choe, a partner, the global head of tech M&A, and the cohead of the technology industry group at White & Case. “Each attribute is required for successful tech M&A, which is equal parts mentally intensive and time constrained. Dan has that triad nailed.”
Vaughn and his team’s intricate yet efficient approach has paid off for Intel, and the company remains a leader in the technology sector. As it continues to bolster its portfolio of companies, add new products, and enter new markets, heading into its second half century, Vaughn and his team will be prepared for each new deal.
A look at the logistical challenges, evolving regulations, industry shifts, and cultural concerns outside the office that lawyers must analyze and navigate to manage their impact inside the office
By
Michael Taylor is chair of Greenberg Traurig’s Occupational Safety and Health Practice Group. He’s one of the few attorneys who focus their legal practice exclusively on representing employers across the country regarding workplace safety and health matters. Much of Taylor’s practice consists of litigating cases against state or federal OSHA regulators, and he has a reputation as a worthy opponent in the courtroom.
Taylor began cultivating this impressive range of OSHA experience years ago, when he was appointed by President George W. Bush and served as the general counsel of the federal Occupational Safety and Health Review Commission (OSHRC). A few years later, he went into private practice, and he was eventually recognized by EHS Today as one of the “50 People Who Most Influenced Environmental, Health, and Safety in 2012–2013.”
In total, Taylor has spent seventeen years exclusively navigating OSHA law. Here, he speaks with Modern Counsel about his unique practice, including the perils associated with employers having to decide what to do when they receive state or federal OSHA citations, and he dispenses some advice to those looking to explore OSHA law themselves.
Why do employers come to you after state or federal OSHA regulators have issued citations to them?
Employers hire me to analyze the risks associated with accepting the citations as written. There is a very small window of time in which employers need to determine whether they want to accept the citations as written or contest the citations through administrative law litigation. This requires a careful analysis of the risks associated with accepting the citations as written. Even some of the most sophisticated companies often do not have the expertise in-house to make this determination. Because I have litigated thousands of state and federal OSHA cases in the last two decades, I am keenly aware of all the risks, and employers rely on my expertise to relay those risks so that they can make a good business decision internally as to whether to they should fight or flight.
When is it preferable to fight?
Employers challenge OSHA citations for many reasons. Employers challenge OSHA citations when abating an alleged hazard in the workplace will cost a significant amount of money in capital and labor and would bring very little safety value to boot. Employers also challenge OSHA citations when there has been a severe injury or fatality in the workplace, particularly when the injured party is not an employee of the company. This could be, for example, a contractor employee who suffered the severe injury or fatality in the workplace. A good plaintiff’s attorney will use the OSHA citations in the civil case to prove negligence. Employers also challenge OSHA citations because they do not want the citations on their record, which opens them up for more OSHA inspections in the future and could damage their ability to obtain and maintain clients and customers. Employers also challenge OSHA citations because they do not want the citations on their safety record. Sometimes an employer’s competitor will use the accepted citations to prevent them from obtaining and maintaining customers. This includes, for example, when an employer is required to submit its state and/or federal OSHA citation history along with its bid to obtain construction work.
Employers also challenge OSHA citations due to the proposed penalty. This is very new, however, because
the state and federal OSHA penalty structure was changed just a few years ago. Now, employers can get a proposed penalty in excess of $126,000 for a willful or repeat violation and a proposed penalty of $12,000 per day for failing to abate an accepted citation. This leads to another reason employers fight OSHA citations: to minimize the risk of receiving willful, repeat, or failure-to-abate citations, particularly when they are in an industry or location where state or federal OSHA regulators visit them frequently. In short, the devil is in the details when it comes to the impact of OSHA citations. That is why it is very important to analyze the wording of every citation.
So the damage that OSHA citations can cause really starts to add up over time?
Absolutely. There is also an OSHA program that employers certainly do not want to be part of in any fashion: the Severe Violator Enforcement Program. OSHA publishes a list on its website that contains the names of companies that it believes are severe workplace safety and health law violators. In my view, this is OSHA’s version of “Hotel California”: once you get in, you are not leaving. That is, unless you litigate the citations and get them withdrawn. It can be a financial disaster for a company to be on this list in so many ways.
Can you give an example of one of your clients being on this list?
I had a client in Houston who placed a bid for local construction work somewhere in the ballpark of $50 million. Shortly thereafter, the general contractor informed the client that it did not get the contract because the general contractor became aware that the client was on the Severe Violator Enforcement Program list. The client did not even know it was on the list. Simply put, OSHA can shame an employer publicly, and the financial consequences of that public shaming can be devastating to a company.
OSHA also has other ways to publicly shame employers, even before the employers have their day in court. I had a client in Fort Worth a few years ago, and federal OSHA conducted an inspection at the facility. My client had informed me that they thought the two OSHA compliance officers who conducted
the inspection were very nice people. That is, until OSHA issued thirty-three serious citations to my client and a press release saying my client did not care about the safety of their workers. My client started getting telephone calls from their customers as well as their lending institution, who provided operating capital to the company, asking what the press release was all about. The bank was even prepared to stop lending them money. I ended up getting twenty-five of the serious citations withdrawn and an apology for issuing the press release.
What was moving from governmental work to private practice like when you began to litigate these sorts of cases?
My very first private practice case involved a fatality
in Waltham, Massachusetts, and that case taught me how important it is to do a thorough factual investigation in anticipation of litigating these types of cases. That experience early in my career really shaped how I approach defending employers when faced with OSHA citations and penalties. I use that same approach today, whether it is a small matter or one involving high-profile litigation where many millions of dollars are on the line.
A few years ago, for example, I represented a Texas employer in response to a catastrophic event at a national gas well site. OSHA had issued citations to my client, and the attorney for the plaintiff in the civil case was going to use the OSHA citations to try to prove negligence to a jury in the civil trial. After extensive litigation, I persuaded OSHA to withdraw all the
“Because I have litigated thousands of state and federal OSHA cases in the last two decades, I am keenly aware of all the risks.”
same is true regarding what OSHA can and cannot do during an inspection.
Are there proactive steps companies can take to prevent OSHA citations?
More and more companies are doing self-assessment compliance audits so that they can figure out where their gaps are from a legal perspective and develop plans to fix those gaps. That has been a significant area of increase in my practice in the last five years. I work with safety and health experts to examine the current workplace programs and procedures that are being implemented, audit the employers, tell them where they are, and help them develop corrective action.
Are there any trends or shifts in OSHA enforcement that you have noticed recently?
As a whole, OSHA enforcement has not changed significantly over the last several years. There is still strong OSHA enforcement, regardless of the political party in office. The shifts tend to come about depending on the political party in office. A few years ago, for example, the Obama administration amended an OSHA regulation so that employers are now required to notify OSHA if they have a fatality in the workplace, hospitalization of an employee, or an employee who suffered an amputation. This has led to a significant amount of additional inspections each year that OSHA would not have otherwise done in the past. This, in my view, has been the biggest trend or shift in OSHA enforcement.
citations. I simply knew more facts than the other side, and I think that is what forced OSHA to cave as opposed to going to trial. At the time, I could tell you almost everything you need to know about a blowout preventer at an oil or natural gas well site.
What’s your working relationship like with clients facing a first-time citation versus the more risk-prone companies you work with?
Whether it is a small, midsize, or very large client, the risks are essentially the same when it comes to deciding whether to challenge the OSHA citations and penalties. Unless there is a fatality, explosion, severe injury, or catastrophic event that occurred, I tend to help the client behind the scenes, advising them on what they can and cannot do during an OSHA inspection. The
What advice do you have for a young lawyer who might be interested in pursuing OSHA law?
Workplace safety and health is a unique and interesting area of the law. There are not many attorneys who do what I do—exclusively practice workplace safety and health law on a national level involving a broad range of industries. Practicing in this area of the law is a wonderful opportunity for young lawyers to try to build and sustain a book of business. Even though I have been practicing in this area of the law exclusively for many years, I am constantly learning something new. One of my newer cases, for example, involves an industry in which I have never performed OSHA work in the past: animal hospitals. I can honestly say that my practice is always an adventure.
By Clint Worthington
General counsel Joe Blasko of James Hardie Industries credits the outsidethe-box thinking and hard work of his compliance team with the company’s ability to manage operations on three different continents
WITH OFFICES IN THE US, IRELAND, AND ITS FOUNDING country of Australia, building materials company James Hardie Industries has to navigate a wide swath of compliance concerns and regulations. That responsibility falls on the assured shoulders of general counsel and chief compliance officer Joe Blasko, whose approach to handling the various regional incompatibilities has involved building and maintaining a strong, qualified legal and compliance team that can handle any compatibility or operational issue that comes their way.
Blasko ascended to his current role by maintaining flexibility with his career goals. He initially studied international relations at Georgetown University and planned for a career in the foreign service before deciding instead to continue his education with a law degree at Case Western Reserve University. He thought he’d be going back to Washington, DC, after law school, to join a large global firm, but instead the Columbus, Ohio-based firm of Vorys, Sater, Seymour, and Pease made a strong impression on him, so Blasko traded the nation’s capital for his state capital.
“I had fantastic mentors and the culture was phenomenal,” Blasko says. While at Vorys, he supplemented his work in the environmental, energy, and public utilities practice group with work in toxic torts litigation, ultimately landing at Scotts Miracle-Gro before moving on to become general counsel at Liebert Corporation, then a large subsidiary of St. Louis-based, Emerson Electric Co. It was at Emerson that Blasko was able to reengage on the global stage, managing Liebert’s broad multinational legal group. He eventually made his way to James Hardie in 2011.
Blasko maintains his flexible approach today. “Never fight against the current of change,” he tells new lawyers that he mentors. “Always look forward and navigate your way through the current.”
Joe Blasko
General Counsel and Chief Compliance Officer
James Hardie Industries
There were times when Blasko thought his career path was set, but “as the legal landscape changed around me, I shifted and ultimately became a generalist,” he says, adding that if he hadn’t been as open to change, “I would not be where I am today.”
As general counsel for James Hardie, Blasko leads a team navigating through what he describes as the “Bermuda Triangle of corporate governance.” Though the company is today headquartered in Ireland, it keeps its primary listing on the Australian Stock Exchange while also listing on the New York Stock Exchange (NYSE) and maintaining a strong business presence in the US. Rules regarding frequency of reports, executive compensation, disclosure obligations, and more vary between countries. For instance, the ASX’s principle-based model mandates immediate, continuous disclosure obligations whereas the Securities and Exchange Commission (SEC) and NYSE are less prescriptive in terms of the timing for disclosures. But the SEC and NYSE are far more granular in terms of what actually needs to be disclosed. Even scheduling board meetings is more complicated because all of the company’s strategic decisions are made in Ireland and its board members are located in in six different countries on three continents. These concerns and more are foremost on Blasko’s mind when establishing the company’s various legal controls. “Even for what would be considered basic matters” such as the approval of company results, Blasko explains, “the coordination and juggling is not easy to do.”
To address all these complexities, Blasko has built and maintained a compliance team that can handle the challenges of each jurisdiction and manage them in an effective way. When he first arrived in 2011, he conducted a six-month assessment of the legal team to determine its strengths. “Our CEO provided me with the luxury of time to understand the business, which allowed for a better evaluation,” he says. “Ultimately, I didn’t come in to clean house,” but he did determine where there was a need for new personnel. This meant finding an Irish national to serve as the company’s corporate secretary, expanding the responsibilities for his team leader in Australia, and identifying a team leader for Europe, following the largest acquisition in the company’s 130-year history. “It’s important to be patient, evaluate input from others, and not rush into something,” Blasko says, outlining his leadership philosophy, but he adds that it’s also key to challenge the status quo rather than simply “doing something the same way it’s always been done.”
In order to streamline his team’s processes and
practices, Blasko worked to identify gaps, not just in the legal department but the business as a whole. “I firmly believed that we were handling the basics— the blocking and tackling—very well,” he says. “I am blessed in that I have some exceptionally talented lawyers that support our business. But, I found myself inquiring whether there were things we should be doing as a company that our team was best situated to handle.” In particular he saw opportunities to relocate the management of the company’s insurance program from Australia to the US and asked an individual with a production background, a strong interest, and good project-management skills to manage it. Likewise, he identified the need to establish a government-relations function, identifying the same former production manager as well as a former technical manager to manage this function from both a plant and market perspective, respectively.
“Since we’re domiciled in Ireland and primarily listed in Australia, we may not be as widely known as another US company of similar size,” Blasko says. “It just means that we must work that much harder to establish those relationships.”
Alongside strategic placement of the right people in the right places, Blasko has also focused on the professional development of his employees. The former technical manager now managing the government-relations function worked in R&D for ten years while he attended law school at night and obtained his JD. Blasko supported his transition to the legal department and notes that his R&D experience has made him invaluable when it comes to reviewing marketing literature, providing technical revisions, and serving as the company’s 30(b)(6) corporate representative in litigation matters.
The legal department is lean, but because of its members’ diverse skill sets and their desire to wear multiple hats and take on new challenges, it appears much larger than it is. Blasko recognizes that his team “hits well above its weight” and affectionately refers to it as a “team of misfit toys.” His value as a leader has been recognizing what each member brings to the table, no matter how unconventional. He’s proud of the way his group has evolved over time, how they rally together in support of each other and the business, and how he has identified people with
Our clients are the front-runners in their industries, and we’re right there with them, providing the advice and representation they need to stay on top. We're proud to see James Hardie recognized for its successes and innovative products that help people build durable, beautiful homes. We look forward to many years of continuing to build together and being there every step of the way.
PROUD TO PARTNER WITH JOE BLASKO & JAMES HARDIE
Arthur Cox congratulates our friend and client Joe Blasko of James Hardie on his achievement.
We commend Joe on his many accomplishments and outstanding leadership and wish him continued success.
Greenberg Traurig applauds the leadership and accomplishments of Joe Blasko, General Counsel and Chief Compliance Officer of James Hardie Industries. We are proud of our partnership with James Hardie Industries and we look forward to continuing our work with Joe and the company.
DLA Piper is proud to partner with Joe Blasko and our client James Hardie Industries plc. With lawyers throughout the Americas, Europe, the Middle East, Africa and Asia Pacific, we offer practical legal solutions to help world-class clients, like James Hardie, succeed.
Husch Blackwell joins Modern Counsel in recognizing the notable accomplishments of our client, Joe Blasko of James Hardie Industries.
skills that match the company’s needs. “We’re not in a heavily regulated industry,” he says, “so we’re always trying to balance a strong legal and regulatory skill set with being a responsive and nimble business partner.”
Though Blasko runs James Hardie’s legal and compliance department, he won’t accept all the credit for his team’s successes. The team puts together an annual report for the board each year and the first thing Blasko does is point to the names of the report’s authors in the right-hand corner of the cover.
“I’m standing on the shoulders of giants,” he says, “which elevates me in the eyes of the company, but it’s my team who deserve so much of the credit.”
Arthur Cox:
“Joe is an innovative leader with extensive industry knowledge. He has strategically built a strong international corporate governance capability within his team. It is always a pleasure to work with Joe and James Hardie”.
—Brian O’Gorman, Managing Partner
Husch Blackwell LLP:
“It’s a pleasure to work as an industry partner with Joe. He’s an innovative thinker, with an exceptional ability to build teams and streamline.”
—Joe Orlet, Partner
Greenberg Traurig, LLP:
“Greenberg Traurig is proud of its seamless collaboration with James Hardie Industries and Joe Blasko. We congratulate Joe on all of his achievements and look forward to working together in the coming years.”
—Peter G. Rush, Shareholder
Dzul Bakar’s wanderlust led him to be part of the management team that established one of the world’s leading offshore jack-up drilling companies, Shelf Drilling
By Abhinanda Datta
MORE THAN TWENTY YEARS AGO, IN THE early days of his career, as a litigation lawyer at a prestigious law firm in Malaysia, Dzul Bakar wished to travel and live in different parts the world. He’d obtained economics and law degrees from the University of Tasmania, in Australia, but he wanted to go further—to other parts of Asia, the Middle East, Europe, Africa, and the Americas. He also wanted to transition to in-house corporate work, and his twin goals led him straight into the international oil and gas industry.
“I'm passionate about business and switched from taking an engineering degree to completing a dual degrees in economics and law, and since then it's been a wonderful journey,” he says. “I think the legal profession gives you a lot of opportunities and a multitude of
career directions. And, the oil and gas business affords me the opportunity to see how a legal department works in managing multiple jurisdictions, being responsible for legal operations in various parts of the world.”
He started working in-house initially, for Exxon in Malaysia, before joining Schlumberger, an oilfield-services company, where he was posted to Singapore, Indonesia, and Houston—each time with increasing roles and responsibility. An opportunity then came up with offshore driller Transocean Ltd, and after an initial stint in their corporate office in Houston as one of its associate general counsel, Dzul relocated to Jakarta with a regional responsibility for Asia and Middle East. In 2012, he jumped at a chance to be part of the executive man-
“The oil and gas business affords me the opportunity to see how a legal department works in multiple jurisdictions.”
agement team for Shelf Drilling, Ltd., which was created through a spin-off of Transocean’s thirty-seven jack-up drilling rigs and its one swamp barge. Today, as Shelf Drilling’s vice president and general counsel, he helps oversee the business and its operations around the world, and his global perspective allows him to serve as a trusted legal adviser looking out for the company’s best interests.
“As a part of the executive leadership team, I am responsible for all aspects of legal governance and compliance, implementing Shelf Drilling’s strategic goals from a sound legal perspective,” Bakar says. He’s not limited to just managing risk, though; he’s also seen as a business partner, an active commercial player helping management arrive at strategic decisions.
Dzul
Bakar VP & General Counsel
Shelf Drilling
He sees his dual role as both a challenge and an opportunity. “You need to ensure that your skills go above and beyond just the legal skills,” he says. “From my previous experience, I have realized that the general counsel must become business oriented. In my previous firm, I was encouraged to take up management programs, and that has really helped my overall personal development.”
Bakar’s business-minded approach also helps him maintain efficiency and minimize the legal department’s impact on the bottom line. He makes sure that most of the legal work, where possible, gets managed in-house, thereby reducing the costs, and he reaches out to external counsel only when necessary. “It's about deciding among the various external service providers—those who are best positioned to handle our work in a cost effective and professional manner,” he says. “There are different professionals who provide varying levels of service, and we have close relationships with just a few outside law firms who understand our business and are cost effective in the process.”
Much of his in-house team’s recent work has revolved around Shelf Drilling’s rig acquisitions, financings and its public listing, in 2018. The listing was challenging because the company decided to complete it on the Oslo Stock Exchange on a “fast-track” basis in just a six-week time frame. By comparison, most companies take at least a couple of months to complete the process. “Six weeks is an aggressive timeline but we managed it,” Bakar says. “We became a public company in Norway in August of 2018 thanks to the outstanding efforts of our in-house team and our external counsel.”
Shelf Drilling now operates in Asia, India, West Africa, the Middle East, and the Mediterranean—all regions with core shallow-water markets. Working across such geographically and culturally varied markets has been an interesting and rewarding experience for Bakar and his team of diverse and multijurisdictionally qualified lawyers.
“We are a highly localized company,” he says. “Our main focus is to ensure that we have high local content in the various countries we operate in, so in many of these countries the business is entirely managed by local national employees. This helps us interact better with the local clients and customers while managing costs and expectations.”
Bakar has observed that effective teamwork is the most important aspect of managing processes and practices among such a diverse and far-flung workforce, so as a leader, he encourages his Dubai-based team members to collaborate with others as they refine and expand their own capabilities.
“I recognize that a good team leader needs to design, support, and balance the talent of the various individuals within the team so that they end up managing and growing themselves professionally,” he says. “I definitely encourage my multinational legal team to grow their legal and nonlegal skills and also encourage their own personal development.”
Through such efforts, they will be able to continue helping Shelf Drilling succeed around the world.
Shelf Drilling has a close working relationship with Brodies LLP’s dedicated oil and gas legal team. Brodies is Scotland’s largest law firm, with more than 650 talented individuals delivering services of the highest quality to Scottish, UK, and global organizations.
Its dedicated oil and gas team is the largest in Scotland with sixteen industry experts specializing in all legal aspects of the industry's activities, from startup and exploration to drilling and production to decommissioning. Each team member has in-house experience, which gives them an unrivalled depth of knowledge. This, combined with the capability to advise on offshore and onshore activity—in the UK and internationally—and the ability to provide expert advice to both upstream and service-sector clients, sets them apart from their competitors.
The team works to establish a close relationship with clients to fully understand their business objectives and provide advice with real commercial value. The team works as an extension of clients’ in-house teams, and it is relied upon to provide trusted strategic and legal advice.
Backed by the largest specialist legal resource in Scotland, Brodies’s oil and gas team can draw upon experts from the rest of the firm to offer advice in areas such as employment, real estate, litigation, corporate, and compliance, who also have relevant experience advising clients in the oil and gas sector.
BBVA CIB New York’s Fred Mauhs discusses his dogged, strategic approach and the keys to his longevity in the competitive world of international banking law
By Jacob Winchester
Frederic Mauhs General Counsel of Corporate & Investment Banking
BBVA New York
SLICKED WITH A DAY’S RAIN, THE CLIFF face seemed impossible to scale— at least, that is, to everyone except Frederic Mauhs.
“I’ve made it a goal to climb all forty-six peaks in the Adirondacks,” he says. “While climbing this specific peak, everyone I’d met was turning around, because the vertical face up ahead was wet. Of course, a vertical face is difficult to climb even when it’s dry, and they’d all collectively convinced me that I couldn't manage to do it either. But, I continued ahead because I wanted to see for myself just what the problem of the final ascent was.”
When he arrived at the face, Mauhs took time to ponder it and conjure a series of strategic handholds and footholds that might work in the particularly slippery conditions. “Suddenly a combination of moves appeared to me, and I thought, ‘Wow, I have to try this, if only out of respect for my confidence in the analysis,’” he recalls. “And in retrospect, it wasn’t hard at all. But the feeling of accomplishing a goal that others had convinced me was impossible was exhilarating. I was absolutely elated.”
As general counsel of corporate and investment banking for BBVA New York, Mauhs draws on the same love of challenges and finely calibrated sense of strategy to guide the bank and its legal team through the often complex environment of international finance law. “In the US, a GC is expected to step out of a strictly legal role for the institution, and I also serve on BBVA New York’s executive group, where I find myself spotting not just legal issues that arise but really any risk issue in areas not covered by the other members of the group,” Mauhs says.
Since BBVA is one of the largest banking groups in the world, with 8,000 branches in more than 30 countries, Mauhs’s role frequently entails bridging the gaps between a variety of cultures and just as many regulatory climates. Fortunately, the bank’s rigorous hiring practices help to lessen the challenge. “One thing our global legal function does exceptionally well is hire very impressive legal talent,” Mauhs says. “The head office retains a high degree of quality control in filling senior legal positions internationally, and that helps foster an atmosphere of mutual respect among affiliates. We in-house lawyers know that our colleagues are all top lawyers in their respective jurisdictions, and we know we can rely on their advice.”
Mauhs contributes to this culture by actively communicating to his business colleagues the talents of the affiliate legal staff as well as the importance of considering their opinions. “I believe it’s absolutely essential for us, as lawyers, to openly and vigorously defend the opinions of our foreign legal colleagues if they’re correct, no matter how unfortunate those opinions may be for a particular business transaction or proposal,” Mauhs says.
Given the international and global nature of BBVA, Mauhs says, he hones-in on trust as a core concept for successful outcomes. “I think the key to working with the European head office and the global general counsel is mutual trust, and you develop trust through mutual respect,” he says. “That includes respect for the legal culture and legal system of the other’s jurisdiction.”
Mauhs also feels that it’s important to ensure each member of his own legal team is on the same page. “Everyone
“As lawyers, we bring analysis to the table, and you’ve got to persevere in your structuring of difficult transactions or business propositions until you see that avenue which will bring your client’s goals to fruition.”
on the legal staff has to have the bigger picture—that is, all of BBVA’s legal and business interests—foremost in mind,” he says, “instead of focusing on simply their own internal clients. They must be willing to take co-ownership, with me, of the most important issues facing the institution.”
Before joining BBVA, Mauhs studied law in both the US and Germany and was later hired as general counsel for an international bank based in Germany. During that time, he says, he developed key aspects of his approach as GC, which ultimately contributed to his longevity in the banking industry. “I acquired early on a philosophy as far as how to approach the representation of a foreign corporation in a highly regulated U.S. legal environment, and one of the most important aspects to that approach has to be transparency,” Mauhs says. “Externally, you are obviously transparent with the bank’s regulators and clients, but then internal transparency is, I think, the most important ingredient to how you survive within a large organization like BBVA. It’s how you keep diverse corporate units on the same page and how you maintain trust.”
The other key aspect, he says, is simply perseverance. “One skill I try to model for more junior lawyers is perseverance in adverse conditions,” he says. “As lawyers, we bring structuring to the table, and you’ve got to persevere in your analysis of difficult transactions or business propositions until you see that avenue which will bring your goals to fruition. When you can structure a seemingly risky transaction to make it safe for the bank, and get management comfortable with it, it gives you a great feeling. That's something I hope all young banking lawyers get to experience in their careers.”
Corey Judson is helping Huda Beauty navigate the intellectual property complications of the social media world by focusing on continuous improvement
By Kathryn Kruse
Corey Judson Associate Lawyer
Huda Beauty
TRACKING THE VARIOUS PERMISSIONS, RIGHTS, AND protections related to intellectual property law can quickly get complicated, especially when working online. Corey Judson has come to understand this all too well in his work for Huda Beauty, a global leader in beauty-product manufacturing, founded in 2013, that has captured a major audience through social media platforms—while taking on the evolving IP concerns of such platforms.
Fortunately, Judson already knows the territory well. After completing law school with a concentration in IP law, complete with internships and a thesis in the specialty, he cut his legal teeth with Rouse, an IP boutique. Later, moving from Dubai to Saudi Arabia on secondment, he added IP portfolio management, licensing, data protection, and digital compliance to his expertise. Training in the US and working abroad, Judson says, really cemented for him “which parts of IP practice are consistent across the globe and which are unique to each country.” He brought his expertise to Huda Beauty in 2017.
Today, as an associate lawyer for the company, Judson is charged with filtering and translating advice to its other departments. He has to be comfortable advising from various nonlegal perspectives, and he has to know when a one-size-fits-all solution won’t work. “Since IP is not particularly intuitive, this skill is highly valued by companies,” he says.
Given his experience in global law, Judson arrived at Huda Beauty at the perfect time, too. “The company was really taking off, with zero geographical limits in mind,” Judson says, recalling his start at the company. He was the first staff member hired with any legal capacity, and he was quickly charged with building his department, an exciting task that pushed him to keep pace with the company’s explosive growth. Designing the legal arm involved—as Judson’s position still does—embodying founder Huda Kattan’s belief in kaizen, a Japanese word meaning “continuous improvement.”
“We are constantly devising new processes and operations to keep up with the company’s growth,” Judson explains. “This is particularly challenging for our legal department, as innovation is usually not the highest priority for legal departments in more traditional companies.”
Innovation around social media is a key part of Judson’s team’s work. As of press time, Huda Beauty’s Instagram had nearly thirty-three million followers and counting, a larger population than Texas, and the company intends to operate it in view of advertising rules and regulations, even though online platforms make it quite easy to skirt certain principles and laws. The effort is further complicated by the amount of user-generated content (UGC) that Huda Beauty interacts with and reposts through Instagram and other platforms.
“There is an added layer of difficulty when advising on social media issues since content is so quickly posted and reposted,” Judson says. “In certain cases, I’ve had to provide advice within minutes of content being posted—whereas the same legal review for similar out-of-home or print media would be afforded much more time.” In addition to monitoring its own activity, Huda Beauty has developed ways to take effective action against cosmetic counterfeiters who hide behind faux-branded social media accounts to disguise their black-market activity.
Judson knows that responding to social media concerns is par-for-the course at many companies these
days, and given his years of success in the field, he has a lot of advice for other in-house IP lawyers at companies working in the digital space. First, mastering knowledge of social media platforms is just as important as mastering the laws that govern corporate social media use. He also suggests assuming responsibility for reposted content, even content someone else created and originally uploaded—while at the same time avoiding reposting UGC that may violate others’ IP rights. Finally, he notes that online matters are almost never limited by geography. “In-house lawyers need to be equipped to tackle the same matters from many different regional perspectives,” he says.
Judson is concerned that many companies view the online marketplace as more lawless and unregulated. “IP lawyers should keep up to date on online laws,” he says. “This is no light task, as laws surrounding data protection and digital IP are increasingly being enacted and becoming more complex.”
In short, knowing IP law means continually learning IP law. At Huda Beauty, Judson is doing just this, applying ideas in a constantly emerging field to ensure his company’s growth and his own practice of kaizen.
“There is an added layer of difficulty when advising on social media issues since content is so quickly posted and reposted.”
Rouse:
“Corey’s early accomplishments at Rouse were supporting client needs in marketing and digital environments. It is exciting to see Corey now apply those talents to guide a global business at the forefront of working with consumers in the digital environment. Rouse congratulates Corey and Huda Beauty on their success.”
—Chad Dowle, Group Head of Media, Advertising and Digital Practice
Since the 1990s Teddy Chen has helped Silicon Valley companies such as Dell face the tough intellectual property questions of a rapidly changing tech industry
By Sarah Breeden
Courtesy of Theodore Chen
“We have developed strategies for protecting our IP . . . while enabling the business to move forward.”
WITH THE RISE OF FIRST PERSONAL COMPUTING, THEN THE internet, then high-speed Wi-Fi, then smartphones, Silicon Valley has undergone one evolution after another over the past three decades. Teddy Chen has been there to witness all of them—and to help companies navigate the legal complications that have come with them.
His interest in the tech field reaches all the way back to his college days studying computer systems engineering at Stanford, and his interest in law came shortly thereafter. When he graduated, in 1991, he wanted to enter a field where he could make a difference. As a person with a hearing impairment, he was inspired by the 1990 signing of the Americans with Disabilities Act, which prohibited discrimination on the basis of disability, and he entered law school with thoughts of becoming a civil rights attorney. He even later worked on a few pro bono cases, including one representing a disabled student who needed accommodations for the LSAT.
However, like many young attorneys fresh out of law school, Chen was saddled with student-loan debt. He joined a law firm in Silicon Valley with the goal of paying it off, and though the decision was largely pragmatic, it was also serendipitous. Chen quickly discovered an interest in patent law. “I was very interested in some of the legal issues posed by technology, such as artificial intelligence and the extent to which computer programs were protected by copyright,” he says. And, not only did he find the specialization interesting; his background in computer engineering gave him an edge.
Teddy Chen Senior Legal Director of IP Dell
The late 1990s was a prime moment to enter the tech world. The energy of Silicon Valley during the dot-com boom was “the equivalent of a modern-day gold rush,” Chen says. The Internet was young, and companies were desperate to recruit talent. Signing bonuses sometimes included BMW Z3s. Numerous stories circulated about entrepreneurs who got rich quickly when their companies went public. Chen’s education in computer engineering, combined with his law degree, made him an ideal hire for private Silicon Valley law firms, and shortly after joining one, the partners encouraged him to work in their patent practice.
“I don’t micromanage, but I do hold them responsible for getting the work done well.”
The technology sector has stabilized since the late 90s, but it continues to evolve at a thrilling pace. Chen notes that he hasn’t changed jobs many times over the years; his jobs have changed on him. After working in patent law for several years at the private firm, he was hired as associate general counsel for intellectual property law at Legato Systems. Legato was later acquired by EMC, which was then acquired by Dell after several more years. Today, as Dell’s senior legal director of IP, he and his team oversee patent portfolios and strategic IP transactions such as technology partner agreements, joint development, customer and vendor agreements, mergers and acquisitions, and cloud services.
Newer cloud and third-party ecosystems in particular have recently presented unique challenges for Dell. While they make sharing information easier, they also present a dilemma: how can Dell protect its IP on a technology that’s based on sharing resources?
According to Chen, some third-party ecosystems have attempted to impose restrictions on Dell’s ability to protect and enforce its IP rights. “We have developed strategies for protecting our IP in these situations while enabling the business to move forward,” he says. Other challenges have included guiding the business in launching cloud offerings, connecting on-premises products to the cloud, and developing a template to be used for the company’s cloud offerings. In addition to creating a more holistic approach to IP rights for cloud computing, Chen and his legal team have supported successful divestitures of for Dell. One recent divestiture was the sale of EMC’s Documentum division to Open Text for $1.62 billion, the negotiations of which were finalized after the merger of Dell and EMC. Documentum is an enterprise content-management platform that generates products such as mortgage-loan processing and electronic health records. Open Text is Canada’s largest software company, specializing in content management. Chen says the negotiation process was “protracted and at times fractious,” but he and his team reached an agreement that was beneficial to everyone while protecting Dell’s IP and freedom to operate its other businesses. “I’m proud of the job our team did,” Chen says.
For Chen, one of the pleasures of working at Dell is having a close-knit, collegial team that often socializes
outside the office. He often works as the most senior IP attorney, but he has a straightforward management style: he finds good people, gives them an assignment, and lets them do their work. “I’m not a kindergarten teacher, and I don’t micromanage, but I do hold them responsible for getting the work done well,” he says.
In addition to the collegial environment, Chen continues to relish the challenge of being an IP attorney in an evolving market. As Dell continues to navigate open-source, cloud-based technologies, he’s ready to face whatever new legal issues it might encounter— and any it might encounter in the future as more innovations inevitably appear on the horizon.
Chamberlain Hrdlicka:
“We routinely work with Teddy on intellectual property matters and appreciate his expertise and deep understanding of IP law, which is particularly important for the critical IP strategy work on which innovation-based companies rely.”
—Aly Dossa, Shareholder
Workman Nydegger:
“Teddy’s knowledge and skill in both technical and IP matters is outstanding. His insights and practical approach are essential to us in our role as outside IP counsel. We greatly value our relationship with Teddy.”
—Peter F. Malen Jr., Shareholder and Carl T. Reed, Shareholder
Van Pelt, Yi & James LLP:
“I’ve worked with Teddy for over fifteen years, and he’s impressed me time and again with his ability to identify his company’s most valuable innovations and obtain strong and sometimes groundbreaking patents to protect them.”
—William James, Partner
Foley Hoag LLP:
“Teddy’s broad experience with a variety of client situations, including disputes, transactions, prosecution, and day-to-day business inquiries, is quite unique. Add his practicality and I think you have a great lawyer who can adjust efficiently to his client’s needs. It’s been my pleasure, professionally and personally, to work with Teddy.”
—Chris Natkanski, Partner
Chamberlain Hrdlicka, we understand sophisticated legal needs of tech companies — from IP to Tax.
and nimble, we are ideally suited to efficiently handle your legal challenges and meet your business objectives.
As SUEZ expands its foothold in North America, Andrianne Payson is helping operations flow as smoothly behind the scenes as the water that serves the company’s fifty-eight million customers
By Roland Archer
AFTER BUILDING ITS REPUTATION AS A leader in sustainability in Europe, SUEZ is making a concerted effort to bring its skills and efforts to the US. With ninety thousand employees spread across five continents, the company has staked its name on water and waste-management solutions that enable both municipalities and industries to optimize resources. From urban areas to rural ones, it’s becoming increasingly likely that SUEZ is handling water-management responsibilities nearby.
It’s a big job that’s only getting bigger, and as more international and state borders are crossed, the company needs a strong legal team to ensure operations behind the scenes are as tightly run as they are in the field. That’s where Andrianne Payson comes
in. As senior vice president and general counsel of SUEZ in North America, she oversees in-house attorneys, support staff, and all legal activities related to the company’s water and recycling and recovery operations. This includes everything from contract review and negotiation to project development and corporate compliance. She is also secretary of SUEZ’s board of directors and the company’s ethics officer.
Prior to joining SUEZ, Payson was cochair for DLA Piper’s energy-power sector, where she represented various energy-industry clients in a variety of transactions in the US, Africa, and the Caribbean. She was also an auditor at PricewaterhouseCoopers, where she audited various investor-owned utilities in New York and Connecticut.
That kind of background makes her an invaluable asset to SUEZ as the company pushes throughout the US to improve water quality in various regions through acquisitions and various plant upgrades. In March 2018, SUEZ won a water-management contract for the City of Woonsocket, in Rhode Island, through which it will take part in designing, building, and operating the city’s new drinking-water facility. The project, part of a comprehensive plan to improve local water quality, will ensure continuity of service to the city during construction work on the existing plant, and once upgrades are complete, the company will operate and maintain the new plant for twenty years.
“This new water-treatment facility has been a long time coming for the
city,” said Woonsocket Mayor Lisa Baldelli-Hunt in a press release. “We are eager to break ground on a brand-new plant that will produce the highest quality of water that our customers expect.”
In October 2018, SUEZ announced the completion of a $12.7 million upgrade to the New Durham Booster Pumping Station, in northern New Jersey, which pushes as many as twenty-five million gallons of water each day uphill to customers in the higher elevations of Hudson and Bergen counties. Upgrades included increasing the number of booster pumps from four to six; replacing pipes to improve both operation and reliability at the plant; maximizing energy efficiency with a better configuration of pipes, new pumps, and electrical equipment; improving pressure-surge protection to help reduce the potential for main breaks; and adding new meters for increased water monitoring.
A month after announcing the New Jersey upgrades, SUEZ filed a joint application with the Idaho Public Utilities Commission to acquire the assets of the Eagle Water Company, which serve nearly twelve thousand people within the City of Eagle and various portions of Ada County in southwest Idaho. The acquisition expanded SUEZ’s Idaho operations, which currently serve 240,000 people in Boise and the surrounding area.
“The water-utility landscape continues to shift as small private and municipally owned utilities seek out larger investor-owned companies to acquire their operations,” said Eric Gernath, CEO of SUEZ North America, in a press release.
“The successful operation of and investment in critical infrastructure more than ever requires reliable and larger operators who can sustain systems well into the future. Although there is no intent to expand operations in Idaho beyond Eagle Water Company at this time, this acquisition is part of a national strategy to grow the company’s portfolio by targeting water utilities in close proximity to existing operations.”
It’s a national strategy that’s positioning SUEZ at the forefront of environmental sustainability and resource management, and it’s one that the company is intent on expanding throughout North America.
Cozen O’Connor congratulates Andrianne Payson on her recognition as a legal leader in the water and wastewater industry. The firm’s attorneys support SUEZ’s mission of providing high-quality utility services to customers in a sociallyresponsible manner. Cozen O’Connor—helping highly-regulated clients achieve business success.
Joe Blasko, P120
General Counsel and Chief Compliance Officer
James Hardie Industries
Eldridge Burns , P38
General Counsel
Topgolf Entertainment Group
Teddy Chen, P134
Senior Legal Director of IP
Dell
Stacy Cozad, P96
SVP, General Counsel, Chief Compliance Officer, and Corporate Secretary Spirit AeroSystems
Marco Espinoza, P50
General Counsel
Greenheck Fan Corporation
Kieran Fallon, P18
Senior Deputy General Counsel, Regulatory, Government Affairs & Enterprise Risk
PNC
Heather Gadkari, P59
Deputy General Counsel
Nielsen
Tom Girardi, P68 Partner
Girardi & Keese
Victoria Harvey, P82
SVP and Chief Legal Officer
Smile Brands Inc.
Mark Hershey, P101
SVP, General Counsel, and Chief Compliance Officer
Armstrong World Industries
Corey Judson, P131
Associate Lawyer
Huda Beauty
John Kahle, P15
VP, General Counsel, Secretary, and Chief Compliance Officer
Kimball Electronics, Inc.
Kristin Kenney, P10
Technology, Privacy & Cybersecurity
Legal Counsel
HCA Healthcare
Aimie Killeen, P21
EVP, General Counsel, and Secretary
Cardtronics
Rosie Lipscomb, P104
Senior Competition Counsel
Frederic Mauhs, P128
General Counsel of Corporate & Investment Banking
BBVA New York
Alexandria Hien McCombs, P24
Assistant General Counsel
Humana
Erin McCurdy, P46
Associate General Counsel
American Eagle Outfitters
Marc Michael, P92
Chief Counsel of Global Dispute
Resolution
The AES Corporation
Michael Neuman, P78
VP of Legal Affairs and Corporate Counsel
Marquee Brands
Andrianne Payson, P138
SVP and General Counsel
SUEZ
Donna Peavler, P54
Attorney The Peavler Group
Ted Prouty, P75
Associate General Counsel–US Cluster Air Liquide
Neven Rabadjija, P62 Deputy General Counsel Eversource Energy Service Company
David S. Rosenzweig Partner Keegan Werlin LLP 617.951.1400 drosen@keeganwerlin.com
A trusted advisor for over 30 years, Mr. Rosenzweig specializes in helping clients license and permit a wide array of electric and natural gas infrastructure.
Reginald Rasch, P35
Head of Legal and General Counsel Rakuten USA
Randy Rinicella. P30
SVP, General Counsel, and Secretary Tokio Marine HCC
Jaimes Sher, P27 General Counsel Ulterra
Libby Stockstill, P89 VP and General Counsel Vans
Michael Taylor, P114 Chair of the OSHA Practice Greenberg Traurig
Dan Vaughn, P108 Associate General Counsel and M&A Legal Lead Intel
William Choe Partner White & Case LLP
650.213.0302
wchoe@whitecase.com
Bill Choe is Head of the Global Tech M&A practice and represents technology companies, including Intel, in some of their most important M&A transactions.
For our cover feature highlighting Tom Girardi (see page 68), photographer Cass Davis focused the portrait session where so much of Girardi’s work takes place—at the offices of Girardi & Keese.
