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The Way We Were
The patent wars exploded. And kept exploding. The health care case turned out to be an Indiana Jones cliffhanger. (Too bad there were no cameras.) And financial reform chugged along like the slowest freight train stuck in Nebraska.
These were some of the big stories in 2012. The first two grabbed center stage when Apple Inc. won a billion-dollar verdict versus Samsung Electronics Co. Ltd., and the U.S. Supreme Court delivered a victory to Barack Obama that surprised nearly everyone.
They would have been big in any year, but their timing made them particularly important. The Apple win raised fresh questions about the patent system before the America Invents Act of 2011, the long-awaited patent reform legislation, had even been fully implemented. And Obama(care)'s win came three months before the presidential election.
Each had broad implicationsthe Apple verdict for the innumerable patent lawsuits that various smartphone makers face in the United States and abroad; and the high court decision because of its likely influence beyond health care and elections. As David Leitch, the general counsel of Ford Motor Company, noted: "The court articulated broad limitations on the commerce clause, the effect of which will be determined in future challenges to congressional action."
What else grabbed the attention of in-house lawyers? Leitch brought up the implementation of Dodd-Frank. "The regulatory burdens are still unknown," he wrote. One reason, observed Susan Blount, the GC of Prudential Financial Inc., is that after two years of rule-making, only about 30 percent of the rules contemplated by Dodd-Frank have been finalized. "Yet the impact on law and compliance in the financial services industry has already been substantial," she added.
Bribery was big again this year. Veta Richardson, the new CEO of the Association of Corporate Counsel, was another source we tapped for her take on the year's top stories. And Richardson said that she's heard lots of lawyersboth inside and outside the countrytalking about foreign corrupt practices. "It's a great example," she wrote, "of where the internationalization of business and law is intersecting with gatekeeper liability."
Blount cited two FCPA stories in particular that stood out. One was the cautionary tale of the year: the Wal-Mart bribery probe in Mexico. The allegations not only implicated a host of in-house lawyers, they "will inform the conduct of corporate internal investigations for years to come," Blount predicted. The other was the Morgan Stanley Chinese real estate case that landed an employee in prison, but left the company unpunished on the strength of its compliance program.
Our own website provided another window. CorpCounsel.com can't say what the year's most important stories were, but it can tell us what readers responded to. The most popular, as you can see from the box at the top of this article, was our GC compensation survey. Surprise, surprise: Lawyers are interested in how much their peers are paid. How interested? So interested that the eighth most popular story of 2012 was last year's GC comp surveyand that was because we posted a link to it from this year's results, and readers couldn't resist a click. Close behind was the story leading to the results of our "Best Legal Departments" awards.
Another popular subject, as always, was managing outside counsel. Our second-ranked story was about companies that have discovered service and savings in hiring small firms. Number five was our "Who Represents America's Biggest Companies" package, which had much more to say about these relationships, and about the much-maligned billable hour. ACC, of course, has led the assault on traditional fee arrangements, and it's interesting to note that Richardson's take aligns with ours. "There's still not yet been a cultural shift," she lamented, "by either the law firms or by the companies that hire them."
Our readers seem to enjoy variety. A little humor is usually welcome. Mix in a hint of scandalspoken by a general counseland we've got a hit (see number six). Readers don't generally come to us for political stories, and we don't publish very many, but when the GC of normally tight-lipped Koch Industries agreed to talk about politics and the controversial Keystone Pipeline project, that was worth covering. And readers agreed.
The more predictable winners were the stories that touched on the subject that seemed to take honors this year: intellectual property. The one that also managed to add a beautiful celebrity, and a question about favoritism at the Patent and Trademark Office, allowed Beyoncé to break into our vaunted top 10.
But where would beauty be without the beast? Or, in this case, the troll (see number 10). Kent Walker, Google's general counsel, dubbed his top story "the year of the patent troll." Though the picture he painted was bleak, Walker strained to add a pinch of optimism. "Calls for 'patent peace' increased," he wrote, "as companies sought to return to the business of innovating, not litigating."
He was more comfortable when he turned to the world of social media. He spied over 1 billion Facebook users, "over a million apps on Android and Apple and Amazon, and a flood of new cloud-based devices," and it was all very, very good.
Prudential's Blount, however, wasn't so sure about that. "Changing communication technologies," she noted, "have presented new challenges to in-house lawyers." Companies are adopting social media policies, she said, and are struggling to set standards that apply to work and home, and accommodate both different generations and conflicting expectations. "Courts have entered the fray," she added darkly.
You can almost see the storm clouds gathering. Or at least we can. It's safer to review the past than predict the future. But we'll go out on a limb and bet that social media will make it into our mix of top stories in 2013.