A common complaint you will hear as in-house counsel is “Why does it take so long for you guys to review my contract?” (Second only to “Why are our contracts so long?”) The answer, as you know, is complicated. Legal is a limited resource, typically a small team that reviews hundreds and possibly thousands of contracts in any given year. While a lot of contracts are fairly routine, many involve complicated provisions or transactions with millions of dollars on the line. Sometimes you have to create a contract from scratch, meaning you do not have a form or something to easily model from. Frequently, things like litigation or large M&A deals take up substantial amounts of lawyer time — time that cannot be spent on contracts. Finally, legal will generally prioritize contracts based on the strategic objectives of the business. Deals that better support the strategy/objectives get more attention more quickly.
It’s hard to recall a more disconcerting feeling than getting a copy of a lawsuit filed against your company. If you have no experience with litigation, this can be a panic-inducing moment. And no matter how experienced you are handling litigation, your stomach will start to flutter as you read through the allegations.
I was a litigator in private practice and I definitely saw my share of litigation, big and small as in-house counsel. Over the course of that time, I developed a standard list of “things to do” when a lawsuit came across my desk. I did this because it’s easy to forget some basic things you need to do up-front to put yourself in the best position to defend the claim. Below are ten things to do when your company gets sued (I have added links to additional resources in key spots).
As in-house counsel, you already know that poorly drafted documents, especially emails, can hurt your company, e.g., M&A deals can get derailed or litigation extended. You can find examples every day of “bad” emails being read in court. Labels like “confidential,” “company private,” “restricted,” and “proprietary” will not protect documents from being obtained through proper legal process.
Document requests in litigation or government investigations are broad, typically calling for correspondence, hand-written notes, agreements, drafts, email (email back-up tapes), sent files, deleted emails, calendars, spreadsheets, documents on tablets and smartphones, graphs, expense reports, voice mail, meeting agenda, calendar entries, copies of media articles, etc. Consequently, it’s important that your business colleagues understand the importance of properly prepared documents and emails (and the potential harm from not doing so).
Below are ten things you can use in your daily dealings and conversations with the business to help limit problems that can arise from poorly prepared documents. I have included some links to other resources as well. A lot is focused on emails, but the rules apply to pretty much any written communication (including instant messages and recorded voicemails). Feel free to cut and paste these into your own check-list or email (or however you best can get the word out at your company).
As we head into the holiday season, this is the perfect time to give your anti-bribery program a health check. For those in the U.S., we tend to focus on the Foreign Corrupt Practices Act when thinking about anti-bribery laws. However, if you work for a company that operates globally, you know that many countries have anti-bribery laws and you need to be aware of those requirements as well. Enforcement of the FCPA/anti-bribery laws is not going away. In fact, in my opinion, it will get even more intense over the next few years. Given the level of fines and the reputational risk at stake, it’s important to ensure you are taking the right steps to give your employees the tools they need to stay on the right side of the line. At my prior company, we typically used the advent of the holiday season as the time to take a number of steps relating to FCPA/anti-bribery compliance. Below are ten things you can do now to help ensure compliance with anti-bribery laws. In key spots, I have included links to articles or websites with additional information you might find helpful.