For the last several years, non-compete agreements have been under attack in the U.S. by regulators, legislators, and even the courts. For example, in October 2018, Massachusetts joined states like California, North Dakota, Montana, Idaho, Utah, and others by enacting a law regulating non-compete agreements, including providing for “garden leave” and making them inapplicable to “non-exempt” employees. Courts do not favor non-competes and will often look for any reason to limit them or invalidate them completely. But, love them or hate them, non-compete agreements are here to stay, and businesses continue to rely on them as one way to protect customer goodwill along with confidential and proprietary information. See, for example, the recent battle between Google’s Waymo unit and Uber over Anthony Levandowski and the theft of self-driving car technology and know-how. Still, it’s clear that the forces fighting against non-competes are stronger than ever. For example, there is legislation pending in Vermont to ban all non-compete agreements, and at the federal level to ban them for low-wage workers. Which is why it’s important for in-house counsel to take every step possible to ensure the non-compete agreements used by their companies have the best chance of surviving regulatory and judicial scrutiny. This edition of “Ten Things” discusses some tips on how to draft an enforceable non-compete agreement:
Hello everyone! Best wishes for the New Year to all of you. I am excited about 2019, especially when it comes to this blog – and I’ll have some news to share about me next month. I have a lot of (hopefully) interesting topics on my list for the coming 12 months. And I am working on volume two of “Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies” for the ABA. Look for it to come out later this year. As I have for the past several years, I like to begin the year thinking about what issues will be most important for in-house lawyers over the upcoming 12 months. As you can imagine, there is plenty out there that we all need to be concerned about. Still, I read a lot over the holidays and jotted down plenty of notes about the most interesting developments. Obviously, I have no monopoly on setting out what’s important. As my wife often tells our daughters, “Pay no attention to the man behind the curtain.” Still, I think the below is a helpful list of topics, some of which everyone will find applicable to their legal department. This edition of “Ten Things” sets out my 2019 list of essential issues for in-house counsel:
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Well, it’s near the end of 2018 and time for my annual list of the best legal blogs for in-house counsel. This is my fourth list, a tradition starting in 2015. In case you’re curious, here are my past lists for 2015, 2016, and 2017. I still highly recommend the legal blogs listed in those posts, but since I like to keep finding new blogs there will once again be no repeat “winners.” Before we get to it, I did want to take a moment to say thank you to all of you readers of this legal blog. I have been writing “Ten Things” for over four years and we are now at over 3,100 subscribers. I know I have said this before, but never in my wildest dreams did I think this blog would be that popular. And most of all, I really appreciate it when any of you take the time to drop me a note or post a comment! So, thanks for reading and for passing the blog along to others. Also, as always, I am tremendously impressed by the number of bloggers out there and the great content they generate (the ABA released its best blogs list for 2018 last week). If I can help shine a spotlight on the talented writers below, that’s pretty neat too. Alright, enough gabbing, let’s get to the blogs. Here are my choices for the ten best legal blogs for in-house lawyers for 2018:
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I’ve been around a while and I know from first-hand experience that there is little more disconcerting to an in-house lawyer than being contacted by the government when it starts investigating your company. It makes your stomach feel like The Hulk has reached down your throat to give your intestines a good squeeze. What happens in such an investigation, in large part, depends on what’s being investigated and on how you respond. You will know the seriousness of the circumstances fairly quickly, depending on what tools the government uses for its initial contact with your company. Regardless of how it starts, there are many things common to any company’s response to a government investigation. There are several initial questions to ask when a government investigation into your company is launched. This edition of “Ten Things” explores what to do when the government comes knocking on your door:
After “will I go to jail for that?” the most common question asked of in-house counsel typically involves commercial contracts and whether “it’s okay for us to sign this?” There are multiple parts to this seemingly simple ask, but the core of the question has to do with risk. More specifically, if we sign this contract are we taking on an unacceptable level of risk? Risk too is subject to multiple meanings. Are we talking about commercial risk, legal risk, financial risk, reputational risk, or what? Regarding the many facets of the question, it’s typically the in-house lawyer’s job to come up with the answer. Unfair or not, because lawyers are trained issue-spotters, the analysis of risk in commercial agreements and the process of minimizing that risk usually falls in the lap of the in-house legal department. Unfortunately, the process of spotting and analyzing risk is rarely black and white. It’s generally highly subjective and it’s not always right. Over the course of many years, I have learned about – or come up with – a number of ways to minimize risk in commercial agreements. This edition of “Ten Things” will walk you through some of the best ways to do so:
I know that artificial intelligence is the hot topic of the moment for in-house legal departments. And it should be. It promises tremendous cost savings and productivity enhancements for in-house lawyers. While everyone is very excited about the new kid in town, there is something brewing out there that is equally exciting but which rests on some pretty mundane financial principles: procurement. Or, more specifically, legal procurement. Now, before you go running into the hallway screaming that it will be a very, very cold day in hell before you let anyone from procurement get involved with your law firms, hear me out. There’s something here that’s worth exploring. This edition of “Ten Things” will provide a primer on the legal procurement process:
I am a little bit late with my “Cool Tech” post for 2018. Not surprisingly, I have found it much harder to write my blog on a regular basis once I became general counsel again. I’m not complaining though – I think being an in-house lawyer is the best legal job on the planet (other than Federal appeals court judge). If you’re attending the Annual ACC meeting in Austin, Texas in October be sure to check out my panel on contract risks on Monday, October 22 at 2:30 pm. Stop by for the session and afterward come up and say “hello!” Also, I just heard from the American Bar Association and they want to publish the second volume of my “Ten Things” book. That will come out sometime in 2019. And, when I publish this blog, I should have over 3,000 followers (which just blows my mind). Okay, enough digression, let’s get on with this edition of “Ten Things.” Long-time readers know that every summer I write about some of the “cool tech” I have come across and that I think in-house lawyers might find interesting too. You can catch up on the prior years here: 2015, 2016, and 2017. Everything I mentioned in these past posts is still worth reading. But, there is always more good stuff out there to talk about! And, as always, I receive nothing to mention the products in my blog. I just think in-house lawyers will find this tech interesting. Finally, I tend to skip big, expensive tech purchases as “Cool Tech” and look to discuss technology that is immediate, affordable, and useful. Here we go:
While in-house lawyers are always concerned about sexual harassment claims, the last year or so has provided a loud wake-up call regarding the highly negative impact of such claims on employees and on the company involved. While women can certainly engage in sexual harassment, the headlines over the last year – and recently with CBS CEO Les Moonves – are littered with deplorable accounts of men using their power to take advantage of female employees. These headlines follow a sea-change event where sexually-abused and harassed woman are refusing to suffer in silence. Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world. This is the #MeToo era.
While the news headlines tend to focus on the misdeeds of the rich and famous, for in-house lawyers the concern is local – but just as important. The #MeToo movement provides added urgency for in-house lawyers to make sure their company is doing the things necessary to prevent disaster and ensure a safe workplace for women and men. As usual, dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right. For many companies, it is easy to trace the devastating impact of a particularly damaging sexual harassment claim to two problems: failure to properly investigate and failure to take appropriate action. This edition of “Ten Things” discusses the key things you should be doing to both prevent sexual harassment from occurring and, if it does, properly investigating and resolving such claims:
I remember my first legal presentation to the full senior executive team very well. I had just started in and was using my hands to gesture on some point when I caught the coffee cup of the chief operating officer with my right hand and blew a geyser of coffee across her papers and across much of the table. Oh, God! I sat there paralyzed and wondered if I had a box handy to gather my personal effects for the walk to the parking garage that was certainly in store for me. The CEO looked at me, and then at the COO, and just started laughing. Then he said that it was “probably the best debut before the executive team” that he had ever seen. We got the table cleaned up and I somehow managed to get back on track and give my presentation, but I realized (and the General Counsel reinforced) that I was pretty lucky to have a forgiving CEO with a sense of humor. Not everyone is so lucky.
One of the most difficult things for in-house lawyers to do is present legal issues to senior management. The first problem is usually the lack of experience in presenting to the C-Suite or the Board of Directors. These opportunities are often rare. Second, flying coffee aside, it can be very intimidating. Executives have little time to spare and legal issues are generally not high on their list of favorite topics. You can feel their impatience. Third, it can be challenging to simplify complex legal issues or the decisions that need to be made. While it isn’t easy, every in-house lawyer needs to know how to effectively present before the senior executives of the company (including the Board of Directors). This edition of “Ten Things” sets out the lessons I have learned over a couple of decades of presenting legal issues to the C-Suite:
You’re sitting at your desk, slurping down a big mug of coffee, when the CEO stops by your door. “Guess what,” she says. “We’re going to do a joint venture with Mega Corp! I need you and your team to get right on it.” You say, “You’re [messing] with me, right? Joint ventures are where good business ideas go to die.” Well, you don’t say it, but you sure are thinking it because you know that most joint ventures never perform as expected, many severely underperform, and most terminate early because the parties cannot agree on some issue. Regardless, joint ventures are not going away – CEO’s just seem to love them. And when the business wants to move forward with a perfectly legal idea, in-house counsel fall in line and do their utmost to make the deal happen (and draft documents that help minimize problems down the road). While it is impossible to consider every possible problem that might arise over the course of the joint venture, you can set up a process that will allow the parties to minimize potential issues. How? By spending a lot of time upfront thinking about the key considerations of putting the venture together. This edition of “Ten Things” walks you through the basics of setting up a joint venture: