Former USPTO Director David Kappos kicks off SuperConference. All photographs by Andrew Westel.
The energy was high at this year’s SuperConference. As usual, the event—in its 13th year—featured inspiring keynote panels, informative breakout sessions and engaging discussions that provided law department leaders with valuable insight and new ideas.
Hundreds of attendees joined InsideCounsel at the Fairmont Hotel in Chicago on May 7 and 8 to attend the two-day educational and networking event. Each day boasted an agenda that included keynote panels, breakout sessions and networking events.
On the following pages, InsideCounsel shares highlights from the 2013 SuperConference. For all the inside information on SuperConference that we couldn’t fit into the magazine, you can find our online coverage, complete with daily reports from the show, here.
David Kappos, the former under secretary of commerce and former director of the U.S. Patent and Trademark Office (PTO), was the first to speak. Kappos, who is now a partner at Cravath, Swaine & Moore, discussed the America Invents Act (AIA) and how it is affecting companies of all types and sizes.
“It’s a huge change to our patent system,” Kappos said. “It puts the U.S. in a leadership position in terms of government agencies dealing with intellectual property. … We’re finally moving in the direction of being aligned globally with what is already a global commercial system.”
Kappos said the AIA, which shifted the U.S. patent system from a first-to-invent to a first-to-file system, is improving patent quality, timeliness and cost.
Gregory Gallopoulos, senior vice president, general counsel and corporate secretary of General Dynamics, delivered the second keynote address, focusing on how lawyers can balance their roles as company employees and objective, independent professionals.
“While [these roles] are always going to be in tension, I do not actually believe that they need to be mutually contradictory. They can be resolved,” Gallopoulos said.
The final keynote address came from J. Weili Cheng, senior vice president and deputy general counsel of The Ritz-Carlton Hotel Co. Cheng discussed tips for engaging in globalization and implementing risk-mitigation strategies to overcome legal challenges. Some of her guidelines include picking the right partners, focusing on relationships, maintaining communication and integrity, balancing global standards and local marketplace requirements, and planning for worst-case scenarios.
Social Media–Tackling Challenges
As in-house counsel continue to face myriad social media-related challenges, one SuperConference breakout session offered some valuable help.
Lathrop & Gage Partner David Vogel moderated “Searching for Social Media Evidence,” which featured panelists including Lathrop & Gage Partner David Bernard; Sara Kagay, associate general counsel of labor and employment at Brunswick Corp.; and John Kasher, vice president and chief legal officer at GN Hearing Care Corp.
According to Vogel, social media issues were at the center of 689 lawsuits in 2010 and 2011. And such litigation won’t subside anytime soon—particularly when it comes to action on the part of the National Labor Relations Board (NLRB), which has taken a tough stance on overly broad social media policies and continues to issue rulings related to employer actions.
Panelists discussed how they handle social media when it comes to hiring and firing at their companies.
“It’s difficult to control what a hiring manager will look at,” Kasher said. “It doesn’t work to tell our folks, ‘Don’t look at social media.’”
Kagay added that recruiters at her company frequently look at candidates’ LinkedIn profiles because they say the social media site is the “wave of the future” when it comes to hiring.
As for termination tied to social media, panelists urged in-house lawyers to err on the side of caution, given the NLRB’s aggressive attitude toward employers that punish employees for their social media postings.
“It’s typically been enough to tell employees, ‘It’s been brought to our attention that you have this blog or these postings,’” Kagay said. “They usually take them down or stop after that.”
Law Department Management–Conducting Change
For employees, change can set off a range of emotions. It can be exciting if a company’s moving forward, relieving if it’s fixing a problem, or scary if jobs are at stake. As leaders of their legal departments, general counsel are the ones responsible for executing these changes, and getting buy-in. That presents its own set of challenges, as discussed in the SuperConference panel “Embracing Change Within Your Legal Department.”
General counsel have a “laundry list of to-dos,” says Colleen Batcheler, executive vice president and general counsel at ConAgra Foods, which includes things like cutting costs and improving efficiency. Unfortunately, “many, if not most, significant change initiatives fail,” she says. According to Batcheler, this is because lawyers tend to “think of change as an event instead of a process.”
To combat that kind of thinking, Batcheler and her co-panelist Lee Cheng, chief legal officer and senior vice president at NewEgg.com, recommend following John P. Kotter’s eight-step process from “Leading Change: Why Transformation Efforts Fail”:
- Establish a sense of urgency
- Form a powerful guiding coalition
- Create a vision
- Communicate the vision
- Empower others to act on the vision
- Plan for and create short-term wins
- Consolidate improvements and produce more change
- Institutionalize new approaches
“Significant change is a long journey and fatigue can quickly set in,” Batcheler says. “Remember that not everyone else has this as their top priority. You have to remind them why it’s important.”
At the end of the panel, Batcheler and Cheng traded war stories about implementing changes in their own legal departments. Cheng described NewEgg’s struggle with building a document management program, dealing with costly consultants and a glitchy program. Eventually, after three years of toil, they abandoned the system.
“The takeaway from this case study is to be very honest when you try to implement change and acknowledge if there are errors,” Cheng says.
“The world is gray. It’s hard to understand.”
That’s how Philip Favro, discovery counsel at Symantec Corp., appropriately kicked off SuperConference 2013’s first ethics session on May 7. The discussion focused on several topics governing ethics in the legal profession.
Favro, the panel’s moderator, began the discussion with a focus on the Model Rules of Professional Conduct, which require in-house counsel to stay abreast of technology and ensure their clients keep up with any changes. “We need to know technology, how it’s used,” said panelist Kathleen Edmond, chief ethics officer for Best Buy. “But we also need to know how it’s misused and where it can go wrong.”
The panelists discussed several specific challenges to the Model Rules, such as Rule 1.6, which requires the preservation of confidentiality. Recent technology, such as email, text messaging and social media, has presented particular challenges for legal departments with regard to privilege. “[Privilege] is not new,” said Pat Gage, senior principal and deputy general counsel at Promontory Financial Group. “But the way we now deal with it is new.”
Favro and the panelists suggested that all companies do an analysis of their communications risk factors, such as how easy it is to disclose information to third parties or mistakenly send a message to the wrong recipient, among others. Gage pointed to Cc and “reply all” options in email, which open up myriad opportunities for privilege violations. “This didn’t happen back when you wrote things down on a piece of paper,” she added.
Short of disabling software functions to prevent these types of slipups or oversights, training employees about appropriate email usage is the only tried and true method for prevention, according to the speakers.
The panelists also discussed best practices for these digital age communications, such as creating effective social media policies and training employees on those policies. But Gage also warned about not crossing any lines. “If you’re writing a policy, be mindful of the [National Labor Relations Board] and the work they’ve been doing the past year,” she said.
The panelists agreed that the evolution of technology regularly keeps in-house counsel up at night.
“There will never be a bright line,” Edmond said. “As soon as you think you’ve got it, you don’t. It’s always changing.”
From left to right: Jeffrey Carr, Don Liu and Tom Sabatino
GC Panel–Inside Advice
Within a company, the general counsel sits at a crossroads, helping to advance business goals while still ensuring legal compliance. Given the unique nature of this job, who better to give law department leaders advice than their fellow GCs?
In “Top Challenges Fortune 500 General Counsel Face,” panelists Don Liu, senior vice president, general counsel and secretary of Xerox Corp.; Thomas Sabatino, executive vice president, general counsel and corporate secretary of Walgreens; and Jeffrey Carr, senior vice president, general counsel and secretary of FMC Technologies Inc. gave in-house counsel tips on building stronger legal departments and avoiding common pitfalls.
One of these pitfalls is buying into the idea that in-house lawyers can contribute legal expertise, but not business advice, to their companies. Instead, Liu says, GCs must be deeply knowledgeable about the business drivers at their organizations. “I’m amazed when a public company in-house lawyer isn’t intimately familiar with their K or their Q or their profits statement, which every shareholder presumably reads pretty carefully,” he said.
Both Liu and Carr schedule regular meetings to discuss quarterly earnings reports and other key metrics with their legal teams, and they advise GCs—even those who may not have the benefit of regular earnings reports—to analyze metrics including internal and external costs, and legal spend as a percentage of their company’s revenue.
Of course, giving solid legal advice is still a crucial part of every general counsel’s job, and Liu advises GCs to do so in clear, comprehensible language, rather than overwhelming nonlawyer colleagues with a flood of legalese.
But talking isn’t the only important communication skill that lawyers need, Sabatino cautions. Listening is just as important. “Lawyers want to show that they are smart. … But one of the skill sets that all good GCs have is the ability to listen, to synthetize information, to figure out what you don’t know, to ask questions and to then create a strategy around solving problems,” he said.