Optimizing Outside Law Firm Engagement - January 11, 2018
- Have and follow a policy against discrimination and harassment.
- Conduct training on your policy.
- Under the ADA, engage in the interactive process.
- Be aware of benefits issues/complications when offering a separation agreement.
- Make sure your separation agreements are valid.
- Ensure good communication with respect to leave under the FMLA.
- Be careful when FMLA leave is over and an employee still needs medical leave.
- Don't punish employees by taking away wages owed.
- Make sure you have written commission agreements with your salespeople.
- Preserve computer hard drives when a problem employee leaves.
IP Licensing - January 30, 2018
- Licensing Intellectual Property generally refers to patents, trademarks, and copyrights.
- Licenses are contracts and interpreted as such.
- Carefully defining the duties and obligations of the licensor and the licensee is crucial.
- Pitfalls in standard clauses and definitions may be avoided by anticipating possible future legal issues before they arise.
- Specific and easily reviewable sales landmarks should be employed to ensure the obligation to pay license fees is unambiguous.
- Controls and restrictions in sublicensing in the context of subsidiaries and spin-offs should be explicitly provided in the license.
- Bankruptcy law may allow or prevent rejection of certain licenses post-petition.
- Anti-trust laws may be implicated in licensing agreements.
Arbitration v. Litigation: Pros and Cons of Both - February 6, 2018
- Arbitration has perceived advantages, but sometimes litigation is a better choice
- Reach agreement on confidentiality at the outset; arbitration proceedings are not confidential per se
- The choice of rules and procedures can significantly affect the cost and speed of arbitration proceedings
- Arbitration awards are far easier to enforce in foreign countries; a US judgment may not be recognized in the country where your counterparty resides
- Litigation is preferable for multi-party disputes, as it is difficult to consolidate or join parties in arbitration proceedings
- When considering arbitration, think about your counterparty (where are they located, where are the assets) and the nature of the transaction (where will performance be rendered, what types of disputes may arise, what is your potential exposure/liability).
Q: Can one review an arbitration organization's panel of neutrals before a dispute is submitted?
A: It depends on the organization. JAMS, for example, publishes the names of its panel: https://www.jamsadr.com/neutrals/search?name=&keyword=&location=&practice=arbitration&language. The AAA, on the other hand, does not. However, parties may acquire a list of arbitrators in advance for a fee (e.g., $750 for 5 names; $2000 for 15).
- Be prepared
- Look for warning signs
- Thoroughly investigate
- Preserve evidence
- Consider potential pitfalls and unintended consequences
- Determine the appropriate remedy for your organization
Medical Marijuana and Its Effect on the Workplace in the Commonwealth of Pennsylvania - February 27, 2018
Karen Baillie and Jonathan Skowron of Schnader Harrison Segal & Lewis LLP discussed advice and common pitfalls regarding the preservation and collection of electronically stored information (ESI). Topics addressed included:
a lawyer’s ethical duty to securely handle ESI;
- the dangers of ESI spoliation;
- tips for crafting and implementing effective litigation holds;
- recent amendments to the Federal Rules of Civil Procedure regarding ESI;
- the discoverability of employee social media and personal e-mails; and more.
Ms Baillie and Mr. Skowron also discussed recent case law from around the country and provided insight into how courts have been applying the relevant rules in order to offer practical guidance for managing an organization’s electronic data.
State of Employment and Labor Law - March 13, 2018
Recent Supreme Court IP Cases - April 5, 2018
Ethical Quandaries in Discovery - April 10, 2018
LEGAL HOLD ETHICS
Litigation hold notices not only must be issued in a timely manner, but also must be modernized and adapted to new technological advances.
Employees are not prohibited from participating in identifying and collecting relevant records, but counsel should be involved and have proper oversight into how the records are being collected (approved search terms and adequate QC).
REMOVAL OF ONLINE DATA
Removal of online data is permissible; however, that information must still be preserved.
A party has a duty to preserve all unique relevant information proportional to the needs of the case.
OBLIGATIONS IN JOINT DEFENSE SITUATIONS
Counsel must analyze all potential conflicts before adding new clients.
Workplace Violence: Employer Strategies for Preventing and Responding to Workplace Threats - April 19, 2018
MAP programs fail and brand value is harmed typically as a result of uncontrolled distribution coupled with the presence of unauthorized online gray market sellers.
To defeat this problem, companies must implement each of the these three phases of the comprehensive strategy:
Phase I: Achieving Effective Channel Control and Developing a Foundation for Enforcement Against Unauthorized Sellers;
Phase II: Stopping Gray Market Disruption Through Efficient and Effective Unauthorized Seller Enforcement; and
Phase III: Running a Lawful and Effective MAP Program that, by Virtue of Phases I and II, is Positioned for Success
In doing so, companies will be positioned for success in the e-commerce marketplace.
Contract Drafting - A Litigator's Wish List - May 22, 2018
- Avoid problematic contract terms by including examples, calculations, definitions, and specific provisions regarding how a contractual relationship ends.
- Consider dispute resolution options such as arbitration agreements, a forum selection clause, and liquidated damages provisions.
- Mitigate risk by including exculpatory provisions, limitations on liability, and indemnification language.
Deal with AI - June 5, 2018
- Understand the usefulness and the limitations of AI tools and robots—they don't think like a human.
- All algorithms show bias based on their training material, so transparency and accountability issues will arise.
- The legal implications of reductions in workforces due to increased use of AI within the workplace currently require the same planning as RIFs for other causes, but look for regulatory changes that may arise.
- Tort law is likely to evolve in areas of strict liability and defenses regarding AI products.
- AI may lead to interesting intellectual property issues due to creation of ideas and property without human intervention.
- Watch for development of personhood AI constructs that follow rights given to corporations.
Technology Tactics To Keep Ediscovery Costs in Check - June 13, 2018
Practical Applications of AI Technology in the Law - July 11, 2018
The Future of Artificial Intelligence and the Law - January 10, 2017
Expanding In-House Pro Bono Opportunities - February 2, 2017
Global Intellectual Property - Where Are We Now? - February 7, 2017
Significant Pay Equity Developments - February 23, 2017
Social Media - Use and Abuse By Businesses and Employees - March 7, 2017
Checklist for Employer Obtaining Consumer Reports and for Taking Adverse Action Based on a Consumer Report
1Q Value Challenge Roundtable: A Conversation with Susan Hackett, Legal Executive Leadership - March 16, 2017
Evaluation, Performance & Continuous Improvement
You Have Received a Subpoena - What Now? - April 4, 2017
Workplace Privacy and Cybersecurity - April 19, 2017
Communications Basecamp for In-House Lawyers: Where Mindful and Ethical Discussion Begins - April 25, 2017
US & International IP: Trademarks, Copyrights and Designs - May 16, 2017
The Promise and Peril of Legal Technology (2Q Value Challenge Group Roundtable) - May 18, 2017
EU General Data Protection Regulation Roundtable - Building a GDPR Compliance Program - May 23, 2017
Cyber Risks and Human Factors - May 24, 2017
- Effectively Addressing Cybersecurity Risks
- Think Outside the Breach: Six Legal Issues to Consider After Responding to a Cybersecurity Incident
Key takeaways about helping a client avoid an inadvertent waiver of privilege:
1. Avoid forwarding emails, memoranda or letters from outside counsel to non-lawyer consultants.
2. Be selective about:
a. which facts and theories you need to share with the consultant knowing that they might be discovered; and
b. the method of communication (email; phone call; face-to-face.)
3. Warn others to keep lawyer advice and writings within a clearly defined, limited group.
4. Consider whether an attorney should retain the consultant and, if done, be able to articulate clearly why the consultant's input is necessary for the attorney to deliver legal services.
5. For each communication, especially during a crisis, consider:
a. Is the purpose to seek or give legal advice?
b. Who is the lawyer?
c. Who is the client?
d. Is someone else present? If so, why?
e. Should the communication proceed with the current people present?
6. In "team meetings" consider using:
a. Agendas to control topics dealt with at all hands meetings;
b. Separate meetings with more limited attendees to discuss legal aspects of the project or case;
c. If necessary, ask third-party consultants to leave the room if the discussion turns to privileged information.
7. The preservation of privilege is not an end unto itself. It is a factor to be considered (an important one, but not the only one) as the client struggles to meet the challenge presented by the crisis du jour. It is at such times that we as counselors can add value by reminding a busy, perhaps overwhelmed, client about the foregoing principles.
Transgender Issues in the Workplace - September 26, 2017
- While the law on the basis of gender identity is in a state of flux, decisions based on sexual stereotyping are unlawful, and issues affecting transgender employees can raise privacy concerns.
- The number of transgender employees in the workplace is growing, so it is recommended that employers plan now for how they want to address issues relating to transgender employees and applicants.
- Planning includes reviewing policies and procedures which may affect transgender employees and training managers and professionals involved in hiring on how to respond to various requests raised by transgender employees.
The presentation provided attendees with the key components of an effective ethics program and tools to evaluate the effectiveness of existing ethics programs.
Key takeaways included:
- The methodology used to design and implement an effective ethics program, including the use of employee surveys, and understanding of business operations and interviews.
- The importance and components of an effective written Code of Business Ethics and its role in setting the "tone from the top."
- Identification of effective internal controls to monitor the effectiveness of an ethics program including internal auditing, use of a hotline, corporate compliance, disciplinary guidelines, and periodic assessment of the program.
- The importance of annual ethics training with a discussion about its purpose, appropriate scope, and how to ensure participation and completion.
Spotting & Identifying Antitrust and Other Unfair Competition Claims and Issues - October 10, 2017
- The purpose of antitrust law is to protect competition not competitors.
- Individuals in management, sales, distribution, and product development need to be mindful of antitrust issues.
- Antitrust law principally focuses on practices that will adversely affect market price, supply volume, or product quality.
- Conduct that has a clear effect of raising price or limiting supply will be automatically unlawful.
- Conduct that does not directly affect price or supply will be assessed for potential pro-competitive effects.
- Competitor communications should be avoided with respect to price, product features, delivery terms, and markets.
- Markets can also be affected by advertising practices, intellectual property, and interference with contracts.
- Corporate counsel draft and interpret contracts everyday and should be aware of how common clauses are interpreted, be careful to avoid common drafting pitfalls and establish internal best practices to ensure commercial agreements meet the needs of their business.
- Assignment clauses may be interpreted differently in different jurisdictions, so drafters should take care to be clear in the intended meaning.
- Specificity in drafting increases the likelihood that courts will interpret a commercial agreement in the manner intended by the parties.
- Common modifying terms such as "knowledge" and "materiality" may be interpreted more broadly or more narrowly than intended and drafters should consider defining or limiting these terms where appropriate.
- Counsel should periodically review their organization's standard form agreements to ensure the forms include applicable updates reflecting changes in law and change in the organization's business.
The program provided an overview of the legal and reputational risks associated with data breaches, an assessment of the current legal landscape, and offered best practices to minimize risks and mitigate potential breaches. Key takeaways included:
- While approximately 80% of businesses have experienced a cybersecurity incident since 2016, some companies have done a much better job than others in mitigating the resulting harm to their reputations and valuations and in minimizing their litigation risks.
- 48 states now have data security breach laws that require companies to notify individuals when personal information is lost or stolen.
- The FTC and several prominent states have recently become more active in regulating and investigating companies’ handling of consumer data.
- Courts have differed on what constitutes sufficient harm to permit a consumer whose data was exposed in a breach to bring a lawsuit.
- Companies can minimize their risks by closely managing vendors that have access to consumer data, regularly reviewing and assessing internal policies and procedures governing sensitive data, creating a dynamic data breach response plan, and following that breach response plan when an event occurs.
Reed Smith recently launched its free to use Breach RespondeRS App. The App was developed completely in-house and assists companies in evaluating a potential data loss incident by applying the breach notification laws of 48 U.S. states to the known facts of any new potential data loss incident. Nearly every state in the United States has a data security breach law, requiring notice when certain personal information is lost, stolen, or misused. However, the many laws differ in small but crucial respects, making it difficult to get to a bottom line. Breach RespondeRS is the first app of its kind and prompts companies to answer basic factual questions from which it provides an immediate response as to the likelihood that notification is required.
10 Things Non-IT Lawyers Should Know About IT Contracts - December 13, 2017
- You need to learn some basic terminology.
- License, Not Purchase.
- You need to understand license scope.
- You need to know where stuff will be.
- You may need to specify what product/service will do.
- You need to understand how product will be implemented.
- You need to establish performance warranties/standards.
- You need to understand how product will be maintained/supported.
- You need to understand data rights.
- You need to think about limitations of liability.
THE NUTS AND BOLTS OF TENDERING, INCLUDING TOOLS YOU CAN USE - JANUARY 12, 2016
CONTRACT MANAGEMENT - A HALF-DAY LEAN SIX SIGMA WORKSHOP, Facilitated by SeyfarthLean Consulting -FEBRUARY 29, 2016
CYBERSECURITY, DATA BREACHES AND THE RISE OF THE DARK WEB - APRIL 5, 2016
A CONVERSATION WITH SUSAN HACKETT: #IN-HOUSE COUNSEL - WHAT'S TRENDING IN LAW DEPARTMENTS AND IN-HOUSE PRACTICE - APRIL 8, 2016 (2Q Value Group Roundtable)
- Leading Practices in Law DepartmentMetrics: Company Best Practices
- Legal Depts by the Numbers - Dec 2015 cover story Hackett-Corporate Counsel
- Lexis CounselLink Improving-Value-Through-Analytics
- SeyfarthLean Consulting - Legal Ops Guide to KPIs copy
- ACC program on Metrics-That-Matter-2
- Top 10 Metrics That Your Legal Department Should Be Tracking - TR
- Hackett-LEL1 selected bibliography of value practices
COMPLIANCE OFFICERS ARE FROM VENUS, IN-HOUSE COUNSEL ARE FROM MARS: COMMUNICATION CHALLENGES IN LEGAL RISK MITIGATION - APRIL 19, 2016
HOW TO AVOID 20/20 HINDSIGHT IN A CONTRACT DISPUTE - JUNE 14, 2016
MANAGING DISPUTES FOR COMPANIES AND ORGANIZATIONS IN THE PUBLIC EYE - AUGUST 19, 2016
PRACTICING PREVENTIVE LAW: ELIMINATING LEGAL ISSUES BEFORE THEY ARISE - SEPTEMBER 14, 2016
CLARIFYING THE MURKY WATERS OF FMLA, FLSA, ADA, STE AND WC - OCTOBER 11, 2016
MERGERS & ACQUISITIONS - EXPANDING SUCCESSOR LIABILITY TRENDS IN ASSET DEALS - OCTOBER 25, 2016
CORPORATE RESPONSES TO INVESTIGATIVE REQUESTS BY THE FEDERAL GOVERNMENT - NOVEMBER 1, 2016
INSURANCE ISSUES IN CORPORATE TRANSACTIONS: ARE YOU COVERED? - DECEMBER 8, 2015
THE IMPACT OF TECHNOLOGY ON THE ATTORNEY-CLIENT RELATIONSHIP - NOVEMBER 17, 2015
PROTECTING YOUR BUSINESS IN THE DATA AGE: CYBERSECURITY, DATA BREACH PREVENTION AND RESPONSE, RELATED LITIGATION - OCTOBER 21, 2015
- Jones Day, Structuring Cross Border Investments For Treaty Protection
Jones Day Disclaimer - Any presentation by a Jones Day lawyer or employee should not be considered or construed as legal advice on any individual matter or circumstance. The contents of this document are intended for general information purposes only and may not be quoted or referred to in any other presentation, publication or proceeding without the prior written consent of Jones Day, which may be given or withheld at Jones Day's discretion. The distribution of this presentation or its content is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of Jones Day.
THE ETHYS AWARDS: 2015 EDITION - SEPTEMBER 29, 2015
VALUE CHALLENGE 3Q PROCESS IMPROVEMENT MEETING - SEPTEMBER 10, 2015
NAVIGATING U.S. AND CANADIAN INTERNATIONAL TRADE CONTROLS - SEPTEMBER 10, 2015
HOW TO RUN A MEETING AND FACILITATE A PANEL DISCUSSION - JUNE 26, 2015
ALTERNATIVE DISPUTE RESOLUTION (COSTS, ISSUES, ROLE OF THE EXPERT, ETC.) - JANUARY 6, 2015
CHANGES IN PATENT LAW BASED ON THE AMERICA INVENTS ACT - February 4, 2014
THE PERKS AND PERILS OF SOCIAL MEDIA IN THE WORKPLACE - February 18, 2014
ETHICAL ISSUES FOR IN-HOUSE COUNSEL - March 18, 2014
Corporate Counsel: Identifying the Client
E-Discovery and ESI: Recent Decisions and Best Practices
YOUR TENDER HAS BEEN DENIED, NOW WHAT? - April 1, 2014
CORPORATE FRAUD: UNDERSTANDING WHAT PUTS YOUR ORGANIZATION AT RISK AND HOW TO PREVENT IT - June 3, 2014
Fraud Risk Self Assessment Tool
Failure to Understand Executive Compensation Puts Companies
At Risk For Fraud
ACFE Fraud Prevention Checklist
DELETE YOUR DATE DEFENSIBLY: A "HOW TO" FOR LEGAL AND IT - September 16, 2014
Defensible Deletion: Solving The Data Crisis
Creating a Culture of Compliance
Records Management Checklist
To Hold and To Have: Issuing a Legal Hold Is Not Enough
CONTRACT LIFECYCLE MANAGMENT: MAXIMIZING FINANCIAL AND OPERATIONAL PERFORMANCE AND MINIMIZING RISK - September 30, 2014
LEAVE ME ALONE - HANDLING FMLA INTERMITTENT LEAVE ABUSE AND POST-FMLA ACCOMMODATIONS - October 7, 2014
When It Comes To A FMLA Notice - The Post Office May Not Deliver For You In The Third Circuit
SALE OF GOODS CONTRACTS - PREVENTING COMMON MISTAKES - October 14, 2014
ELECTRONIC DISCOVERY AND INVESTIGATION IN NONCOMPETE LITIGATION - November 4, 2014
Enforcement of Covenants Not To Compete In Pennsylvania When The Employer Terminates The Employment Relationship
OUTSOURCING 2014: NEGOTIATING OUTSOURCED CONTRACTS - November 11, 2014
RISK MANAGEMENT ALTERNATIVES - APRIL 3, 2012