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:
One of the most frequent questions I get from in-house lawyers is how to deal with difficult bosses. I have been very fortunate because – while practicing law for almost 30 years – I can count on a couple of fingers the times I was stuck with a boss who was a real asshole. After talking with a lot of other lawyers (at firms and in-house) I realize how lucky I have been in my career. While rare, I definitely remember how miserable I was the few times I did draw the short straw. Practicing law is tough enough without having to dread coming into the office because of a boss that just makes your life miserable. Still, I survived and got through it. But it wasn’t always easy and some days it really took a toll. I think my revenge was getting to the General Counsel chair a few times and swearing a blood oath to myself that I would never, ever be a jerk boss – something I remind myself of every day. Unfortunately, the problem of crummy bosses in legal departments will never go away. They are out there and they always will be. So, if you want to be a successful in-house lawyer you’re going to need to learn how to deal with them whether they are legal department lawyers or executives in the company (lawyers have no monopoly on being buttheads). This edition of “Ten Things” will set out some of my tips on how to deal with troublesome bosses:
One goal set out in my sample legal department goals for 2015 was to increase efficiency (and reduce costs) in the legal department. One of the easiest ways to do this is through the use of technology. This can mean anything from apps for your smart phone to sophisticated software programs running on servers at your company. For some, using technology can be daunting and frustrating. For others, it is as easy as falling off of a log. But, to be a successful in-house lawyer or general counsel you need to embrace technology and make sure your team does as well. So, if you are afraid of technology, you need to get past that.
One issue with using technology is that the choices are almost endless and it can be difficult to distill things down into a useful list. This edition of “Ten Things” takes on the task of listing some key technology that can help you increase your own efficiency as well as the efficiency of your team or the department overall. I am going to assume you know how to use Microsoft Office products (free and pay) and Google products (free), so those tools — certainly very useful — are not included. That said, if someone asked me to list my ten key technology tools for an in-house lawyer, here they are:
As I mentioned in my last post (January 8), over the next few weeks I will dive deeper into some of the sample department “goals” I set out in that article. Today I will focus on this goal: “Build and retain extraordinary team with exceptional people.” I always put my “people goal” first because I truly believe that nothing gets done in legal unless you have top talent that is motivated and happy in their jobs. How do you keep and reward people so they stick around? The obvious answer is pay them well, have a good performance bonus program in place, and let them share in equity plans. The problem is, for many reasons, it usually is not fully in your control to make any of these three things happen. For purposes of this article, I am going to assume that you are doing what you can for your team around salary, bonuses and equity and, instead, focus on some low cost ways you can reward/recognize employees.
The beginning of any calendar year is always busy with key administrative tasks for an in-house legal department. My next several posts will deal with such items. One of the more daunting tasks (whether you are general counsel or not) is setting useful goals for the upcoming year. Legal departments do not always lend themselves to neatly setting goals like the business units, i.e., it can be difficult to measure “success” in legal vs. measuring profits and sales or setting key performance indicators (“KPI’s”). That said, setting goals for the department or yourself is important and a fresh opportunity to take stock of many things. I always approached yearly goal setting as, among other things, an opportunity to market the department (i.e., all the great stuff we were doing), get a deeper understanding of what was important to the business, and gather feedback on how the department could improve in the upcoming year. Meaning, don’t shirk the opportunity and think of goal setting as some type of pain-in-the-neck HR exercise you have to muddle through. Embrace the process as the more thought and effort you put into goal setting, the bigger the payoff. And, there will be a payoff for you and your team if done properly and with some enthusiasm.
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 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.
Whether you are new to the in-house department or a long-term veteran, the General Counsel or just a basic contract lawyer, there are a number of things that can help make you more successful in your career. I have distilled a lot of hard learned lessons into ten key tips. These are not exhaustive and there are always more, but these are the ten things I consistently taught to my teams over the years.