Antitrust law and Big Tech is hot right now. BTS/Blackpink K-Pop hot. Here in the USA at least, where the Department of Justice is on the verge of suing Google for (alleged) competition law violations, the DOJ and the FTC are waist-deep into investigating Big Tech generally, and a panel of the House of Representatives just issued a report calling for the break-up of Big Tech. In Europe, regulators are looking at specific laws to dampen the influence of Big Tech by limiting certain tactics – and where Amazon is about to take its turn in the dock. Most of the behavior in question is what is known as single-firm conduct, i.e., companies acting alone but in ways that draw scrutiny from competition regulators and private litigants. I wrote about this a while back in a post titled “Sherman Act Section 2 – The Monopoly Man Cometh.” Clever title aside, it is a fairly detailed look into single-firm conduct and where problems typically arise. But, these investigations are also looking at Big Tech contracts and agreements. So, now is a good time to take a look at Section 1 of the Sherman Act, i.e., agreements between one or more parties that may violate antitrust law. As you will see, it can be just as murky and confusing as Section 2 (and that’s saying something). Unlike Section 2, however, it is typically easier to counsel the business on how to stay out of trouble when it comes to improper agreements vs. single-firm conduct. And, no matter where you practice, most of the concepts below apply as competition law globally is similar when it comes to this issue. This edition of “Ten Things” provides an overview of Section 1 and lays out some things you should be counseling your business colleagues on to help them avoid tripping up on anticompetitive agreements:
This may explain many things about my personality but I have always gone to work feeling like I could get fired any day and at any time. I am not sure why that is the case (and I am not particularly interested in lying on a couch and talking it out). I just accept that it’s how I am. The fear of getting fired has always driven me to find ways to not get fired. Ultimately, I settled on always trying to be the most valuable member of any legal team I was part of. I figured that the last person to get fired (short of bringing a handgun to the office and taking some potshots at the boss) is the most valuable person on the team, i.e., the “indispensable” MVP. And that mentality generally served me well over the past 30 years or so (though there is a fine line between making yourself valuable and being a sap – and Mrs. Ten Things thinks I may have drifted over the line on occasion). As I look around this never-ending pandemic, Covid-y world, I can imagine that many in-house lawyers may be feeling the same type of anxiety, especially if your company is not exactly thriving in the current economic climate. But, even if that is not the case, I have spent a good part of the past six months or so writing about how legal departments can show their value to the organization. How individual members of the department can do the same is a natural extension of that theme and a worthy goal. This edition of “Ten Things” sets out some ways you can work to make yourself “indispensable” to the legal team and the company:
I was recently interviewed by Mel Scott for her awesome the “Counsel” podcast. I had a lot of fun talking with her and we chatted a good bit offline before she hit “record.” Part of that discussion was about how the Ten Things blog got started. If you bought the first Ten Things book, you know the story from the introduction section. If you haven’t gotten around to shelling out your hard-earned dough (or better yet, expensing it to the company), the short story is that I was speaking at a legal event in late 2014 and afterward some young in-house lawyers came up to me and started asking me questions about things they should be doing to advance their careers. Never being one to shy away from handing out some pearls of wisdom, I mentioned several things that came to mind. All of which they proceeded to write down. Hmmm, I thought. If anyone should be writing this stuff down, it should be me! And that, my friends, is how it all started. What I don’t talk as much about is that many of the posts come from presentations I made to my various in-house teams, at off-sites, team meetings, small groups, etc. If there was a projector or a whiteboard, it was time to break things down!
Last week I was cleaning out a bunch of old files on my computer (because that’s how I roll). I had the television on in the background and one of my favorite movies was playing, Zombieland. If you have never seen it, please correct that oversight at your first opportunity. If you have seen it, you know that Jesse Eisenberg’s character, “Columbus,” has a list of rules that he relies on to survive the post-apocalyptic wasteland that is Zombieland. The rules are all tried and true common sense things that will help keep you safe. Just as Columbus was discussing the merits of “cardio” and the “double-tap,” I came across a document in my files from 2012 – my rules for surviving as an in-house lawyer. Wow! Coincidence? Fate? Divine inspiration? I’m not sure. But, it doesn’t matter – I had found my next blog post! I remember writing these “Rules” down one night and presenting them to my team at an off-site and looking through them brought back a lot of great memories of all of those fantastic people who I miss every day (some of whom even read this blog on occasion). Moreover, as I read through the rules I realized a) they are still 100% valid, b) you can see a lot of what became Ten Things posts in these rules, and c) if there is a zombie attack, these are pretty worthless (except maybe for “eat lunch” – if you’re a zombie).
Regardless, this edition of Ten Things will be a little different. I am simply going to republish my rules as written. No embellishment, no snarky commentary, no cut off at “10.” Just a list of rules all in-house counsel can take to heart to survive the apocalyptic wasteland that is the Covid-ridden, murder-hornet-ed, wildfired, election year hell we call 2020. Ready? Here we go: (more…)
Okay, let’s just admit it – 2020 has kind of sucked. Like an episode of [Not] Finding Bigfoot on Animal Planet (and, hopefully, ten seasons of not finding him will sate everyone’s Bigfoot lust). I read on Facebook that 2020 is proof that time-travel has been invented because someone keeps going back to February 2020 to try and “fix things” but only ends up making everything worse (“killer hornets” for crying out loud…). It’s also an election year here in the USA which means the stupid factor needle is buried deep in the red. Oh, the humanity. But, there is some good news I can share. It’s August. And August means it’s hot here in Texas. Crazy hot. August also means it’s time for my annual “Cool Tech” blog! Something I look forward to writing every year, i.e., my top ten list of cool technology I think all in-house lawyers should check out. This is the sixth edition and you can check out past editions here: 2015, 2016, 2017, 2018, and 2019. As always, I get nothing for listing these items. It’s just my opinion that these are worthy of your checking out. And with no further ado (or footage of Bigfoot), this edition of “Ten Things” sets out my “Cool Tech” picks for 2020:
I want to pivot away from the “value” discussions that have dominated the last several “Ten Things” posts to get back to some tactical, nuts and bolts problems facing in-house lawyers from the corporate governance-side of things. I have written about basic corporate governance as well as how to protect your board of directors, but one question I have gotten several times over the past few months is how to prepare proper board of directors meeting minutes. Preparing board meeting minutes is another one of those tasks that no one really teaches you how to do, you just kind of figure it out. Or, at least, that’s how I learned. My learning method was pretty simple, when I first stepped into the role of corporate secretary I looked at the minutes of the last year of board meetings prepared by my predecessor and kept what I liked and discarded what I didn’t like – guided mostly by common sense. I also found a few publications on proper board meeting minutes and read those (some of which are noted later in this post). That’s it. Over the years, I learned a lot about drafting board meeting minutes, mostly on what not to do because you could fill a file cabinet with all of the different advice on what to do when drafting minutes (and who needs another file cabinet full of crap?). Anyway, since you all asked so nicely, this edition of “Ten Things” discusses my thoughts on how to prepare proper board of directors minutes:
Greetings from hot, humid Dallas, Texas where I am “sweltering in place” as the COVID-19 pandemic continues to wear out its welcome. It’s so hot and icky here that apparently Satan – on a vacation visit – said, “Screw it, I’m heading back to Hell where it’s cooler!” Those may not actually be his exact words, but you get the point.
For those of you who have been along for the ride since late 2014, you know that we are coming up on six-years of “Ten Things.” Along with longevity, we’ve picked up almost 4,200 subscriber “followers” along with hundreds more who get the blog directly through other means. Many of the posts have been republished in legal newsletters, magazines, law school classroom materials, seminar materials, and other forums. As I’ve said many times in the past, that all just absolutely, positively blows my mind. A huge “thank you” to all the loyal readers out there, especially to those who pass along the blogs to friends, colleagues, and on LinkedIn!
As I was working on some new blog posts this past week, I realized that I have not posted an index to all the posts in over three-years. That’s a long time (and I am first to recognize that it can be clunky to try to work your way to past blogs that might be relevant to what you’re looking for – I guess you get what you pay for with a free WordPress site…). So, I decided to put the new blogs off to the side for a bit (don’t worry, they’ll be posted soon enough), and put together an updated index to all the posts, going back to November 2014. I was a little shocked to see that we’re up to number 119! That’s a big pile of …, well, a big pile of something. Hopefully, of things you want to read.
Anyway, just in case you needed something more to read while you’re working remotely, or maybe you’re a new follower and had no idea there were so many posts, this edition of “Ten Things” sets out – in chronological order – all of the “Ten Things You Need to Know as In-House Counsel” blogs, from the November 2014 introduction to last month’s post on improving your 1:1 meetings. Have fun (and don’t laugh too much at the early ones – I got better!):
In my last post, I dealt with the importance and effectiveness of 1:1 meetings from the viewpoint of the employee. As promised, I will now discuss 1:1 meetings from the viewpoint of the manager. The first thing you should do is go back and re-read the last post because pretty much everything on that list applies to the manager side of the equation as well, either in terms of understanding where your employee is coming from or common sense tactics that make for better 1:1 meetings regardless of which side of the table you sit. Second, if you have never had any training on how to conduct 1:1 employee meetings do not feel bad. You are not alone! Coming up through the ranks of in-house lawyers, my only experience with 1:1 meetings were the ones I attended as an employee. Some managers were really good at it and some were pretty bad. Since most companies don’t spend a lot of time training people (especially in-house lawyers) on how to manage people, when I became a manager and started holding my own 1:1 meetings the key, for me, was to mimic the things I thought prior managers did well and not do the things I thought sucked. Over time, and with a little research on the side, I like to think I developed a process for pretty effective 1:1 meetings (though if you worked for me in the past you may disagree!). Regardless, since it is my blog, I get to at least pretend those 1:1’s were awesome. And now it’s time to share that big bag of awesomeness with you. This edition of “Ten Things” shares my tips on how to host effective 1:1 meetings with your direct reports:
A few months back I took some swings at meetings in general, i.e. Escaping Meeting Hell. But, as I noted, not all meetings are “bad” and many are necessary, especially for in-house counsel. Of the meetings in-house counsel must attend, none should rank higher than your 1:1 meetings with your boss. You may think it is just more administrative bullshit you have to make time for during your already crowded week – and you would be somewhat correct. But, it is important administrative bullshit and the administrative part of being an in-house lawyer is just as critical as the substantive legal work. Not only is a one-on-one meeting a way to keep your manager informed of what is going on, it is also a key ingredient of the “soup” that is served up as part of career development and advancement. So, grab your spoon and get ready to dig in as this edition of “Ten Things” discusses what you can do to have more effective 1:1 meetings with your boss:
I remember back in law school making fun of our fellow students who had business degrees. We called it the “study of the obvious” and mocked them relentlessly. Of course, I had to run away and hide when they pushed back and asked what my major was – it’s hard to stand tall and claim “political science” as a worthier endeavor. Still, as always, it’s better to be the mocker than the mock-ee! Once I went in-house, however, I began to have a much greater and sincere appreciation for all those business majors. They were paying the bills! They also had a very analytical and numbers-oriented way of looking at things. Something that fit nicely with my approach as a lawyer. Regardless, the first time I heard someone in the business say, “we need to do a SWOT analysis on that,” I thought they were talking about S.W.A.T., a kick-ass police drama from the mid-1970s. Why we needed to do a special weapons and tactics review of a new product launch escaped me, but I was excited to see how they would pull it off. Sadly, no hippies or domestic terrorists needed a beating that warm and muggy afternoon in Texas. Instead, someone started creating a “SWOT” two-by-two box on the whiteboard. Damn (queue-up glorious choir music). I quickly saw the beauty in what they were doing. It was (and is) an elegantly simple way to look at a problem and think through the Strengths, Weaknesses, Opportunities, and Threats – SWOT. I knew immediately that I had to steal this SWOT box thing for the legal department as it could easily apply to many things we were doing there. While some of you likely have experience with SWOT analysis, I am betting that a lot of you have not. It’s a great tool that I used frequently as general counsel, mostly as a way to strategically look at the legal department as a whole and how best to plan to add value to the business. This edition of “Ten Things” takes you through how to use a SWOT analysis to analyze the legal department:
I have been looking back at the last four or five blog posts (e.g., strategic lawyer, showing value, dealing with a pandemic) and see that they are all pretty long. Really, really long. It’s as if someone dug up Grantland Rice, dumped him on the ground, and gave him a laptop. I think we all deserve a break. So, this week I am going to cut things back a bit and write about a question I have gotten from several readers, i.e., “what books do you recommend I read if I want to be a successful in-house lawyer?” I have already written about ten things in-house lawyers should read every day, but I haven’t really taken on the task of recommending books other than sporadically throughout various blog posts (like in my last “Ten Things” post on electronic signatures). I’ll start by telling you that there is a boatload of legal books you can read, including two I have written (with a third on the way in 2021). I’ll also tell you that reading legal-related books is okay but if you’re limiting yourself to that genre, then you are really missing out. Not missing out on legal issues; that’s something you should stay on top of to remain sharp on the law. Rather, you’re missing out on books that can make you a better overall in-house lawyer, i.e., one that acts and thinks strategically and one that becomes a valued advisor and not just a legal order taker – the legal department equivalent of manning the drive-through lane at McDonald’s. And, given most of us are still working from home sitting out the COVID-19 virus, you may have a little more time on your hands to read something other than work emails and law firm client alerts.
I decided to make this easy on myself and I am literally looking around my home office at the books on the shelves, staring at me, quieting murmuring “read me again, dummy.” Which means either I’m am losing my mind sheltering-in-place or my bookcases are haunted. Not sure which is better. Regardless, there are a number of books that have helped me become a better in-house lawyer. I think you would find anyone of them helpful. This edition of “Ten Things” picks out ten non-legal books that all in-house lawyers should read: