Law And More

Anheuser-Busch Caves to Nanny State

I didn't expect this one.  Anheuser-Busch caved to the 11 state attorneys general who contended that its alcoholic energy drinks were designed to attract minors. 

The two drinks -Tilt and Bud Extra - will be reformulated, reports Chris Amico in LEGAL NEWSLINE, so that the stimulants will be eliminated. Some big guns, such as California AG Jerry Brown, were involved in this pursuit of mashup drinks of alcohol and caffeine.

But I have a hunch that the state AGs can't take full credit for the reformulation.  There's been an epidemic of teen driving deaths.  Most researchers trace this back to the immaturity of the adolescents' brains and recommend increasing the driving age.  They don't finger drinking and driving as the core problem.

Save the Dow - Buy stock in Colt, Mossberg, Remington Arms, Smith & Wesson, Winchester

The U.S. Supreme Court has spoken.  We can continue to protect ourselves with firearms. The decision also confirms the reality that it's people who kill people.  Create a more equitable society [that's why Obama has become a phenom] and people will be less apt to kill people.

Meanwhile, we can help out the slumping DOW by rushing out and buying the stock of U.S. firearms manufacturers.

DOW PLUNGES! - What an opportunity for a paint party

Valspar, Benny Moore, and Sherwin-Williams - think out of the roller pan and a lot about a nice retro paint party.  Today the DOW hit a 2008 low.  It's before a long weekend but with enough lead time for folks to figure out how they will entertain themselves sans gasoline, sans money, sans job security.  So, in Judy Garland and Mickey Rooney spirit, why not organize a paint party - to save the Fourth of July.

The nimble creatures they need to be in this new economy, paint companies can put together co-op advertising with beer and snack corporations.  Yeah, for each gallon of Valspar at Lowe's you get a buck off a six pack and a free bag of Nachos.  That promotion can flood the Internet, including a fun skit posted on YouTube.

None of us want to go into our Father's Paint Companies.  We want cool brands that talk directly to our financial angst and close-to-home on a national holiday.

Paint's Tough Times - Bro, I can spare you some space

Both paint companies ensnared in the public nuisance litigation and those that are not are lowering their earnings forecasts.  The hit is coming, of course, from the housing slowdown. 

But, for those of you in marketing who are willing to think outside the roller pan, Bro, I can spare you all the space you want for product placement.  Virtual, that is. 

You can send me MGenova981@aol.com a bylined piece on anything paint, such as the new technology you're using, what's green or what looks more expensive than it is.  Also, I can interview you or one of your experts. 

If you know how to work social media, this could turn out as well as "Desperate Housewives" Bree, Susan and Katherine doing a painting party and the camera pans on your latex.

Controlled Distribution: The Sherwin-Williams Brand

When I mused if premium brands like Sherwin-Williams, Benjamin More, et al. might be sold in big box discount stores, a source wrote in:

"The Sherwin-Williams brand will never be sold through any channel other than its own stores.  That structure is called 'controlled distribution.'  It allows the Company to control the product quality, selling price, and the service that is attached to the brand.  These are the attributes which make the Sherwin-Williams brand what it is today.  Besides, the lion's share of the revenue comes from its own paint stores.  Moreover, to ever allow a big box discount chain to compete with its own stores with the same product line but at a discounted price would essentially destroy the stores - and eventually the brand."

Brand Rx - Necessary Losses, After Loss [e.g. Sonnenschein Layoffs]

In professional circles, it's fashionable to celebrate a kick in the butt, euphemistically called "adversity," as a great career enhancer. 

Thanks to that shock, setback, disappointment, total loss, we are supposed to gain unique access to insights that can catapult our career to a whole new level. Of course, warn gurus in the adversity industry like Jeffrey Sonnenfeld ["Firing Back: How Great Leaders Rebound After Career Disaster"], this isn't a sure thing.  We may be standing under that dumptruck in the sky, get covered with whatever, and learn nothing. As the May 16th, 2005 FORTUNE cover story "50 and Fired" chronicled, there are more of those than us who are determined to transform this pain, humiliation and hit to confidence into something really big.

That said, what should the 124 employees laid off at Sonnenschein Nath & Rosenthal be doing post-trauma to harness the power of adversity?  Or, much closer to home, how should I be processing the blow I received today?  Long story short: A lead-paint watcher had been in continual contact by email forever.  It was a mutually useful conversation.  I received tips on breaking news and insider information.  The watcher, I suspect, got to feel a part of a process few could understand or predict how it would end.  As we learn in sales, I mirrored the watcher's behavior.  Frequent emails were responded to.  Photos of the watcher's pets were admired.  Nothing wrong so far.

Then today it blew up.  Like those at Sonnenschein, the walking wounded cut loose from The Bear, and others thrown from their comfort zone, I have to deconstruct my part in this.  That's called Brand Rx.

Today the lead paint watcher informed me that the little presents I snail mailed his pets and the note congratulating a professional success he recently had were not perceived in a favorable light by his wife.  They're Gen Ys.  I'm an aging Baby Boomer.

Learning from trouble usually means what Judith Vorst called "necessary losses" in her book by that title. In this case I had to give up an illusion. That illusion is that gender is irrelevant.  It's 2008, I'm not spring chicken.  But to someone's wife I am a female and a threat.  Right away, you can anticipate how my branding has improved.  The Jane Genova Brand is going to be far more cautious with life situations embedded in gender.  Not that this loss can be accepted and I move. on.  Vorst also notes that loss is not vertical but circular.  We won't escape the loop - not for a while.  Pain is gain but still pain.

What might be the necessary losses of the former Sonnenschein and Wall Street crowd? My hunch is it's the sacrifice of ever trusting an institution - or ever getting comfortable in one.  Long ago management visionary Tom Peters told us that we were all on assignment.  There were no more jobs, no careers.  We had to see ourselves as players, figuring out our next move.  Not an easy reality to bite into, never mind digest.

The wonderful news: Once we exit that loop, we're usually fairly high functioning, actually at the top of our game, for a while.  After I happened to be standing under that dumptruck circa the turn of the century I gained a courage that few acquire post-50.  I made the transition, unusual for the Baby Boomer Gen, from print to digital, and from old-line corporate clients to startups.  I even could migrate from the conditioning to max income to being satisfied with enoughness.  It's been great.  And it will return to being great after I process another necessary loss.

Legally, companies don't have souls - But in the religion of capitalism, lead paint defendants are up for sainthood

The law being what it is, corporations can't have souls.  But that doesn't matter.  In the religion of capitalism, there are saints and sinners.  And on this day of recognizing heroic contributions, let's consider some of the saints we should be honoring. 

At the top of the list is Ford Motor Company.  With its $5 day, it created the beginnings of a middle class.  This invention would have the discretionary income to buy more than necessities. To maintain that level of income they would be adequately disciplined to conform to capitalism's rules.

But the much more recent possibilities for canonization are those companies that have protected the most fundamental part of capitalism: The legal system.  In 2000, it was global economic expert Hernando De Soto who theorized in his book "The Mystery of Capital" that capitalism has flourished in the west and not yet elsewhere because the west has a legal system which protects private property.  Note Communism didn't and that economic order didn't pan out too well. Extend De Soto's hypothesis and we get the importance of a stable legal system to economic growth.

In the 1970s, as James M. Wootton nailed it in his Washington Legal Foundation paper, we allowed our legal system to lose its way. In that paper "How We Lost Our Way: The Road to Civil Justice Reform," this attorney at Mayer, Brown, Rowe & Maw explains how civil law went from a mechanism to resolve disputes between private parties - e.g. all business - to a tool for achieving social ends.  That opened the door to transforming the legal system to a caricature of the forces fighting for whatever during the French Revolution.  Private property - hey, eventually that must belong to The People, right?

The tobacco companies, like the French royalty, caved.  The results weren't too hot for either of them.  But, the defendants in the lead paint public nuisance and even in the personal injury - think "Thomas" - lawsuits didn't and it doesn't look like they will. If anyone can push the U.S. legal system back on the right path it's this bold stance by companies like Sherwin-Williams, Atlantic Richfield, NL Industries and Millennium Holdings.

It's not hyperbolic to interpret this lead paint battle as one about America's legal system.  Anyone who doubts that should know that posts on this blog about the lead paint litigation are routinely translated into the languages of developing economies, ranging from those of Latin and South America to that of China.

In Cleveland, Ohio, as it evolves into a global medical research and treatment hub, there could be a monument in University Circle to St. Sherwin-Williams, Savior of Capitalism.

"It's not about the lead" - The CLEARCorps Meme

Everybody seems to love Sue Gunderson.  She's the Executive Director of CLEARCorps and she has no lead-paint agenda.  She won't hold any of us hostage with a diatribe about lead paint litigation or lead-safe v lead-free.

CLEARCorps, a nonprofit, was originally established to help reduce the hazards of lead paint for children.  "But it's not about the lead," Gunderson tells everyone - funding sources like the National Paint and Coatings Association [NPCA], federal and state agencies, regulators, landlords, healthcare providers, caregivers, ministers and anyone else who will listen.  What the "it" is is healthy homes.  And what healthy homes are about is a wholistic approach to how we all live. 

Gunderson's reputation intrigued me so I decided to interview her.  My school of communications believes in short takes so this exclusive interview is one of several on my two syndicated blogs, this one and the other one.

JG:  You have street cred and cred among CLEARCorps sponsors.  I was taken with that.  So here we are having a conversation not about lead for lead paint watchers. Thank you for taking the time for this exclusive interview.

SG:  Actually, I want to thank you , Jane, for this exposure.  Your blogs give CLEARCorps the chance to be out there - and yes, plead for funds.  We non-profits, just like political leaders, have to be constantly raising money.  And, just like businesspeople, we face unprecedented competition in obtaining donations.

JG:  That's what I've heard: There's increased competition for both corporate and individual donations.  So, let's hope we can touch some hearts.

What fascinated me about the "Sue Gunderson Brand" was that you transformed CLEARCorps, ahead of the curve, from a focus on lead paint to one on healthy homes. And, you're known as someone who gets there into the homes and rolls up your sleeves. 

SG:  Of course.  As for the mission part, it has to be about the people we help and what kind of help would really help them.  And, Jane, the worst place for a change agent is to be in the office.  It was by getting in homes with the people that I immediately saw that lead was a piece, and often a small piece, of what was making a family sick - and hopeless, therefore helpless.

JG:  When CLEARCorps uses the term "family," you mean a very broad understanding of a group, right.

SG:  Yes.  To us, a family is as small as a man and his cat or as large as four generations of blood and non-blood "relatives."  They're together to help them survive, and hopefully, thrive. 

JG:  So, what did you find in these homes?

SG:  Trouble.  All kinds of trouble.  In my book, that included and still includes:

• Lead paint, yes.  And not only on the walls but on toys bought at discount stores.  The problem of the lead paint that was on the walls and flakes off frequently happens because the landlord hasn't maintained that paint or hasn't fixed the leaky roof.  And those leaks cause the paint to deteriorate in the first place.  This reality isn't brought out in the litigation about lead paint.

• Cockroaches.  They are major triggers for allergies, especially the surge in childhood asthma.

• Those leaky rooms again.  Expect any health hazard from mold to dampness.

• Unsafe furnaces.  Everyone is in danger of dying from carbon monoxide poisoning or living without heat because of unaffordable heat bills.

• Abusive relationships.  That sucks out everyone's self-esteem, including that of the abuser.

• Ignorance.  That's why our number-one tool is education.  You see lots of opportunities for training and just information on our website.

• Isolation.  One skill we teach is negotiating the outside world, whether it be calling the electric utility or legal aid or the children's teachers.

JG:  After the "diagnosis" is made, what's the solution?

SG: CLEARCorps, just like the Salvation Army, is a grassroots, hands-on organization.  We personally extend ourselves into the lives of those who invite us in. No, we're not a mandated service. 

Here's what we know: Even the poorest or most abused mother cares about her children.  She will listen to what I or another team member might spot as trouble and how we recommend that trouble be eliminated. And she will pitch in right alongside us to make things better in the home. 

One mother got to the point at which she was the team leader.  She was the one calling this agency or that, the Public Utility Commission to report the electric company, the police to organize a town meeting, and the Board of Education to add crossing guards in the development where her children live.

JG:  S. this is analogous to: Teach someone to fish v giving them a fish and they eat for the rest of their lives?

SG:  Exactly.  But in order to earn the right to teach we first have to earn the trust of that whole community - the ministers, healthcare providers, landlords, teachers, police, EMTs, fire fighters, and the biggest gossips.

JG: How do you do that?

SG: Being there.

JG:  In a sense, you Sue Gunderson and CLEARCorps are like the Catholic Church and the settlement house that were in our immigrant neighborhoods.  There they were.  And there we were, new to America or First Gen Americans.  We knew we could go to them.  In there we in downtown Jersey City, New Jersey learned to find out how to navigate American society.  They were what is now called "The Third Place."  We had our homes and school or work.  Then we had those "The Third Places" where we felt safe to get what we needed - whether that was social skills, food, mentoring, or someone to walk us home in the dark.

SG: I never thought about CLEARCorps as that "The Third Place."  But that certainly is a great way to think about it.  I want to assume that those whose lives we touch feel "safe" to reach out and take what they need.

JG: As I said, I, just like the new WALL STREET JOURNAL, believe in short takes. So, I'm going to call this a wrap.  There will be more on CLEARCorps and the Sue Gunderson Brand.  But first, Gunderson will give you information where you can send your donation.  CLEARCorps is a 501CE Nonprofit.  That means your generous contribution is tax-deductible.

SG: Please send what you can to CLEARCorps USA, 1522 Albany Avenue, St. Paul, MN 55108.  Contact me, too.  You can reach me at Sue@Clearcorps.org or 651-603-8000.  And thank you, both you, Jane, for giving us this exposure and to anyone who helps CLEARCorps help families make their homes healthy.

Public Nuisance - Could Morph from Powerful Plaintiff Tool to Radioactive

Public nuisance had the potential to become one of the most powerful plaintiff tools.  Now, it could be on the way to becoming radioactive.  In their questions and comments, the four Justices of the Rhode Island Supreme Court challenged the way public nuisance had been applied to lead paint litigation in the state.  If that skepticism becomes part of their ruling, due this July, the concept could be not only toast but an anathema.

Public nuisance had been positioned and packaged as a brilliant way for society to right wrongs, especially those the legislature was too timid or too busy to deal with.  In California Attorney General Jerry Brown used it against auto emissions. That was tossed in both federal and state courts but no one counted it out.  In West Virginia, it was used in a BigPharma lawsuit that was settled.

Post-RI SC oral arguments, public nuisance stands out there as possibly the wrong way to try to right wrongs - and a way that the courts won't allow.  In the concept void that could be left by public nuisance there might be a legal approach geared to bring the law more in line with the values and lifestyle of a changing society.  But that approach might play better in the legislature than the judiciary branch.

BigLaw, et al. - Beware Black Swans

This Monday's article in THE AMERICAN LAWYER is titled "For Am Law 100 Firms, the Sky's the Limit." The author is Peter D. Shere, a business professor at the University of Calgary. 

No fool, Shere provides disclaimers for his rosy projections for growth of major law firms.  That done, he sticks to his faith in relying on the past for predictions about the future.  From that faith, Shere discloses what he found when, based on data from the past, he analyzed the growth trajectory of BigLaw.

Among Shere's predictions is: "U.S. corporate law firms of the future will we wealthier, larger and more international than were in the past."  Okay.  But what about Black Swans, those unexpected, probably unpredictable developments or events, which have game-changer impacts? 

Uncertainty expert Nassim Taleb who published a book on this subject "The Black Swan" has remained on the best-seller list for years.  That's because in these increasingly volatile times his concept makes plenty of sense. 

Think how the Internet derailed Microsoft and how that company can't seem to get traction in this new field.  In my profession I am still reeling from how the Black Swan PowerPoint changed the art of speechwriting into the craft of creating presentations through the technology of PowerPoint.  And the introduction of Green-Collar jobs could be the Black Swan which eliminates those white-collar/blue-collar class divides in the supposedly classless U.S.

Most shrewd industries, companies and even individuals have given up on long-term planning.  While it's intriguing to speculate about the future, the smart money isn't betting on it.  What Black Swans could be the game-changers in the business of law?  Where do we start?  Here are just some:

• Software could be developed to simulate all the possible strategies and tactics, both traditional and novel, for a certain kind of litigation, say, lead paint public nuisance.  The companies being sued for allegedly contributing to a public nuisance through the lead paint products they have not produced or marketed for many decades could simply use that software.  Then their in-house legal staff could go on from there.  The nuts-and-bolts legal filings and briefs could be outsourced to India.

• Alternate forms of dispute resolution could become mainstream, even for major kinds of litigation.

• The U.S. could so lose its economic-leadership status vs. other nations that the legislative branches nationally and in the states push through industrial-strength tort reform.

• No one wants to train to become attorneys any more.  That means no talent or even warm bodies to staff traditional type law firms.  This sort of thing happened in the nursing profession.

• Companies take the lion's share of legal work in-house.  Some General Counsels predict this will happen.  They have had it with the billable hour.  The revolution, they tell me, won't be announced.

Chances are actually slim that BigLaw as we know it will be anything like what it is in several years, even if there are no Black Swans but only predictable development. Some of those expected developments? 

• Associates' being fed up with the 80-hour week without a real shot at partnership.  Human resources research shows that Gen Y males want more of a life.

• Companies like Cisco just saying no to the billable hour.

• More defendants such as Sherwin-Williams which refuse to settle, discouraging those kinds of class-action lawsuits.

• Collective action among workers in the legal profession to scrap the current model of the traditional law firm.

So, what is BigLaw to do to keep profits healthy and growth possible?  I will be presenting a number of exclusive interviews on that on this blog.