Author: Sterling Miller

Almost 25 years of in-house legal experience as General Counsel, Corporate Secretary, and Chief Compliance officer of Marketo, Inc., Sabre Corporation (NASDAQ: SABR) & Travelocity.com. Prior to going in-house, I was an associate at a large St. Louis-based law firm. I serve on several advisory boards and board of directors, have written six books, and consult with corporations and law firms. I am currently CEO and Senior Counsel for Hilgers Graben PLLC (Dallas office). I am available to in-house lawyers and corporate legal departments for CLEs, coaching, consulting, and speaking engagements.

Ten Things: Explaining Litigation to the Board and the CEO

One of the first topics covered by this blog was entitled “Your Company Has Just Been Sued:  Now What?” which dealt with the ten things you should do when a new lawsuit comes in the door.   Equally important is what you should be doing a year or more into the lawsuit.  In particular, how have you explained (and reported on) the litigation to your CEO and the Board of Directors?   In many cases, neither senior management nor the directors have much, if any, experience with litigation.  You can avoid a lot of frustration and second-guessing by taking the time up-front to explain the litigation process to them and providing regular updates thereafter.  As you will likely need sign-off from the CEO or Board regarding many decisions including settlement authority, alternative dispute resolution (e.g., mediation), budget, etc., the better informed they are about the litigation – and the litigation process generally – the easier time you will have getting what you need and avoiding second-guessing on key decisions.

This edition of Ten Things will set out key things you need to do in explaining and regularly updating your CEO (including senior management) and the Board of Directors about important litigation.  For purposes of this post, I will assume that the litigation is material to your company such that it warrants the attention of the CEO and the Board:  (more…)

Ten Things: Website User Agreements

You’re reading through some notes for your meeting with the CEO later today when you get an email from your head of litigation: the company has just been sued for $25 million in a class action in another state’s defendant “hellhole” over some products it sells on its website.  The email says “don’t worry, we should be in good shape because we have a strong user agreement that protects the company in a number of ways from lawsuits like these.”  You’re relieved to read this but then you start thinking —  you’ve never really read your company’s user agreement and you have literally no idea what it says, how it works, or, more importantly, whether is it enforceable.  If this describes you, you’re not alone but don’t worry.  This edition of “Ten Things” will discuss website user agreements and things you can do to understand them and make them as protective and bullet-proof as possible.

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Ten Things: Index of Posts (November 2014 to May 2015)

I retired from Sabre Corporation in November 2014 as General Counsel, Corporate Secretary, and Chief Compliance Officer. It was a great ride but it became clear to me that I was ready to give something new a try. Shortly after I left Sabre I was speaking at a legal conference in Dallas and was chatting with a couple of the attendees after my presentation. They asked me a pretty simple question: What do you need to do to become general counsel? I thought about for a minute and then listed off several things that I had done and thought were important on my way up the legal department ladder beginning some 20+ years ago as a first-level in-house attorney at American Airlines. As I answered the question, I had a thought: Maybe I should be writing some of this stuff down! And that was the beginning of this blog where basically I just try to write down lessons learned (hard ones and easy ones) over my 20 years as in-house counsel.

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Ten Things: Protecting Your Company’s Reputation and Brand

It’s a nice spring Friday morning.  You arrived at the office earlier than usual and are settling into your chair with a big cup of coffee.  You are expecting a slow day and want to catch up on some legal articles and other administrative items and then hopefully leave early to get a head start on a peaceful weekend.  Then the phone rings.  It’s the CEO and she is very upset.  Someone has posted very negative and untrue things about the company on a consumer complaint website and she wants you to do something about it.  Now.  Then your instant messenger box pops up.  It’s the head of HR and she’s asking you to call her immediately because an employee has just tweeted something “really stupid” on the company’s Twitter account and it’s about to blow up in the media and she needs your advice ASAP.  At the same time, you glance at your email and see “Urgent – someone’s illegally using our trademarks!” in the subject line of an email from Bart in marketing.  You put your coffee mug down, rub your face, and realize you are not going to be heading out early or catching up on any articles today.

While the early morning “perfect storm” scenario described above is unlikely to occur, things can go sideways very quickly when someone launches attacks on your company’s reputation and brand.  This is especially true in these days of 24/7 media and the “Wild West” of the Internet and social media.   One of the most important jobs in-house counsel has is to protect your company’s reputation and brand.  Why?  Because customers won’t buy from a company they don’t like, investors do not invest in companies that have bad reputations or cannot protect their brands, and employees do not want to work for a company they don’t feel good about.   If it’s bad enough, a hit to the brand or reputation can cost the company multi-millions of dollars.  This edition of Ten Things will discuss steps you can take now to prepare for and defend against attacks on your company’s brand and reputation.

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Ten Things: Data Privacy – The Essentials

As in-house counsel, you have probably been asked the following question by a panicked (or at least pretty stressed-out) CEO or CFO: “What are we doing about data privacy? Are we okay?”  You likely have a good answer, or at least the start of one.  Still, your answer may be as open-ended as the question and you can feel overwhelmed by the sheer amount of information on the topic.  I know that you want to read another article about data privacy about as much as you’d like to have a safe dropped on your head.  But, don’t stop reading.  This will not be an overly-detailed discussion about all of the nuances of the issue or a list of regulations and laws of multiple countries (though those discussions are valuable). This edition of “Ten Things” will set out the essential things you need to know about data privacy — key points that you can focus on as you work through or oversee data issues for your company.

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Ten Things: Trade Associations and Legal Risk

One of the most interesting questions you can get as in-house counsel is this: “Hey, I am going to a meeting with some competitors tomorrow, is there anything special I should do to make sure I don’t get in trouble?”  A question like this is like a good law school exam – there is almost too much to talk about!  As most in-house counsel know, meetings between competitors can be tricky stuff and fraught with risk, both for the company and the employee.  Improper agreements between competitors (e.g., price fixing, bid rigging, dividing territory or customers) can lead to costly litigation, investigations, fines, damages (trebled), and even handcuffs and jail.  The only 100% safe route is no communications with competitors ever.  A restriction like this, however, is unlikely to win the legal department any friends at the company and is unnecessary as there are a number of situations where conversations between competitors are needed and completely appropriate.  The key is making sure the employees at your company, from the CEO on down, have a basic understand of the rules of the road for interacting with competitors and know when to contact the legal department for guidance.

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Ten Things:  Partnering with HR (1 + 1 = 3)

One of the most important internal relationships for an in-house Legal Department is with the Human Resources team.  Much of the HR department’s day-to-day work directly involves legal issues and analysis.  Likewise, some of the nastiest and “headline-grabbing” litigation involves employees and their claims alleging mistreatment, discrimination, malfeasance, etc.  Regardless of whether there is any merit to such claims, these disputes tend to be very public and can negatively impact your company’s brand and reputation (along with economic consequences in the event the company pays a settlement or loses in court).  That’s why it is very important that Legal and HR closely cooperate and align on how to best protect the company from employment-related issues.  Working together, one plus one can add up to three.

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Ten Things: Trade Secrets and Protecting Your Company

How’s this for a nightmare scenario:  You get a call from the company’s Chief Operating Officer informing you that Ms. Smith is leaving the company to go to work for a competitor.  You’re told she has knowledge and copies of many confidential projects and strategies, including key marketing strategy presentations.   The COO wants to know what can be done to protect the company.  You tell him not to worry because Ms. Smith signed a confidentiality agreement when she joined the company and therefore everything will be fine.  A few days later you need to go back to the COO and tell him everything might not be fine regarding Ms. Smith and, in fact, according to outside counsel, the company has likely failed to do a number of things necessary to protect some of its trade secrets, meaning there may be little that can be done to stop Ms. Smith from divulging those items to her new employer – your competitor.

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Ten Things: Crisis Preparation 101

As in-house counsel you can sum up your priorities in two categories: “Maximize Value Creation” (e.g., M&A) and “Minimize Value Destruction” (e.g., defending “bet the company” litigation).  Pretty much all legal work you or the department do will fall under the above.  A “crisis” situation falls under potential value destruction and can come in many forms, including major litigation, data breach, government investigation or criminal indictment, environmental catastrophe, social media “meltdown”, product recalls, death of the CEO, campus intrusion, FCPA claims, just to name a few.  How you and the company respond to a crisis will go a long way to preventing or limiting damage to the company, including its reputation and brand.  In-house counsel should play a key role in the strategy and plans to manage these risks should they arise.  Ask yourself this question:  “If [pick a crisis] happened today, do I know the exact steps the company and I would take in the next 24 hours?”  If the answer is “no”, then it’s time to get cracking.

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Ten Things: How to Run a Government Affairs Campaign

If you are in-house counsel and are not paying attention to government officials and regulators (state, local, federal, international) you are making a big mistake.  A company acts at its peril (e.g., Google, Microsoft, etc.) if it underestimates the importance of being aware of what various government regulators are up to or thinking. Your company can be impacted dramatically (good or bad) by what happens through government action (or inaction).   Government action can come in many forms, e.g., taxation, new rules and regulations (business-specific or general), government sanctions, import-export controls, legal reform (tort law, patent law), merger control, data privacy/security, public company regulation, and dozens of other areas.  Recently, I have read articles on potential new action around patent reform, product regulation outside the United States, data privacy, Internet/net neutrality, Fair Labor Standards Act regulations, and potential new regulations of financial advisors.  Depending on your company’s business, some of these issues could have a direct impact on the bottom-line.  In short, some part of your company’s business is affected daily by government action (or inaction) either in or outside your home country  To be a truly effective in-house lawyer, you need to be on top of this important area.  Moreover, being attuned to positive and negative governmental developments is an area where you and the legal function can add great value to the company and show strategic vision.

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