Law And More

Reflections on Whistleblowing as Linda Tripp Reportedly Is on Deathbed

Whistleblowing is not necessarily an act of supreme courage, driven by a sense of what's right. 

It could represent strategic grenade-throwing as had been the case with conservative Linda Tripp. Now that she is reportedly on the death bed, overdue is a comprehensive review of all whistleblowing. 

To begin with, it shouldn't be positioned and packaged as an instinctive noble act, analogous to jumping in the path of a train to rescue a child who had fallen onto the tracks.

Instead, it's represents a complex decision with both anticipated and unexpected consequences. 

Some "of a certain age" will recall Sharron Watkins who was the internal whistleblower at Enron. She informed the head Ken Lay of the strange accounting. Along the way to being saluted as a hero she had to contract legal help, was isolated, had her job responsibilities reduced, and later hit walls in being hired for work post-Enron.

Had she known the full extent of the consequences she might have done what most did back then and still do: Keep quiet and look for another job. Since then, of course, laws have been passed to protect and even reward whistleblowers. That kicked off with Sarbanes-Oxley.

More recently has been the whistleblowing by Susan Fowler. It focused on alleged sexual misconduct and other inappropriate workplace behavior at her former employer Uber. She did that in a now-famous blog post. It's contended that the outing of what was allegedly going down at Uber brought down its head Travis Kalanick. 

Like myriad whistleblowers, Fowler has been saluted.

But, interestingly her book Whistleblower, published February 18, 2020, has not caught fire. On Amazon, at least today at 3:40 P.M. ET it ranks 41,839 in terms of hard copies and 60,413 in terms of Kindle. It only has 53 reader reviews. Essentially it is a memoir.

In contrast, Demi Moore's memoir "Inside Out," although published way back on September 24, 2019, ranks on Amazon at 1,751. It has 2401 reader reviews. 

Some things just don't hang right about whistleblowing. In reading Fowler's book I wondered if she had been naïve in what she expected in the workplace, how she handled it, and her decision to later blow the whistle after she had secured other employment.

Meanwhile, although it isn't fashionable to speak ill of the dead, when Tripp dies, many probably will. That trend started in 2018 when the family of Kathleen Dehmlow published a negative paid obituary. 

UPDATE:

Linda Tripp died today. The New York Post provides details.

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Feuds, Ranging from Farrow/Allen to Dershowitz/Boies: Refuge from Exhaustion of COVID-19

Cain and Able

Families of Romeo and Juliet

Jack O'Dwyer and the PRSA

Harry/Meghan and The Firm

And, the Farrow Clan and Woody Allen.

Feuds are a mainstay of civilization. In difficult times they are solid platforms for gossip. Nice distraction.

In this era of COVID-19, we need lots more of that. Less Netflix. Less following the news and emails from marketers about the pandemic. Less  losing trust in leadership (with the exception of Andrew Cuomo and where is Joe Biden). 

Along the way, feuds can provide lucrative work for those in public relations and law. Those sectors, just like most of professional services during the pandemic, need the business. The Ford mechanic in my residential complex is among the very few currently making a good living. (I have been saved by those taking out sponsored content on my three syndicated blogs.)

What is most titillating about feuds is this: Entities such as the New York Post take sides, with great passion. That's lots of fun. I had enjoyed supporting O'Dwyer against the PRSA. Most of us who drift into the loop have fairly boring lives. 

Usually both those sides claim they have the upper hand. 

But in the latest round between the Farrows and Allen, the latter might be winning. Not only did he get his memoir "Apropos of Nothing" published. Most know the story of how Hachette backed out and Arcade rode to the rescue. 

In addition, the book is doing well. On Amazon, it ranks a wonderful high: #529. Of the 66 reviews, 76% give it a 5. Only 4% give it a 1.

Most importantly, it allows Allen to raise questions about Saint Mia, supposedly Mother Earth and Global Do-Gooder.

That mirrors how Christopher Hitchens was able to raise questions about Mother Teresa. Many recall his iconoclastic book "The Missionary Position."

No, that didn't destroy Mother Teresa. But it performed enough brand deflation that when she died, around the same time as Princess Diana, the world didn't kick into universal mourning. Interestingly, when Hitchens himself died there was universal mourning.

In the U.S., Allen might be, to borrow that term from "John Wick 3," excommunicado.

 But his work is doing well enough in Europe.

He did extricate himself from Mia. Anyone from what might be a dysfunctional family system understands how difficult that is. I  broke away twice, only to go back, with great regrets. The bonds can be the jaws of spiritual death.

His marriage seems stable.

He can continue to do what he loves: Make films.

And, he made it to age 85. No self-destruction through the usual suspects.

The peril to the new front line of the Farrow faction - investigative reporter Ronan Farrow - is that the dynamics can become all-too-consuming.

The attention shifts from work per se to maintaining the feud.

The branding becomes cartoonish as it tends to do in so many human conflicts. Think about one-time superlawyers Alan Dershowitz and David Boies. They duke it out like out-of-shape former prize fighters. 

Sad, also.

Talented Ronan can wind up that way. 

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Law Firms - The Bad Politics of Layoffs

Man the Political Animal has replaced Economic Man.

At least in the corridors of power. And, much of the media and on Main Street.

Therefore, for law firms, layoffs are not a wise way to manage a 2008-like crisis. Especially if those reductions in force impact the Little Guy. The Little Guy can include both staff and junior lawyers. 

Essentially that was the message from the Law.com podcast focused on two issues:

1) Is the legal sector sliding into another steep downturn, much like or worse than that of The Great Recession?

2) If so, what might be the emerging best practices? Beware, the old ways could get law firms branded as The Enemy. 

The guests were Bill Brandt, founder of DSI, and Keith Wetmore of Major, Lindsay & Africa. 

The layoff issue is filled with complexity. 

On the one hand, the current situation of across-the-board remote work makes most of administrative staff not needed. In addition, as those following the business of law firms know, there had been lots of hiring of lawyers during the recovery. Overcapacity is a reality.

On the other hand, both government leaders and the media have made it their business to highlight the tragedy of workers who have lost their jobs because of the coronarvirus. The pain is beyond money. In America, we are our jobs. That's that.

On PBS, thought leaders have pointed out that in other nations such as Denmark the approach during this crisis was to do whatever was/is needed to keep businesses open and people employed.

In the U.S., businesses frequently had no choice but to shut down and let workers go. Post-crisis, it will take time for those businesses to rebuild. Anyone who has naively taken a break from a career gets it: Re-entry is tough, maybe impossible.

The alternates to layoffs are many. They range from requesting extensions of lines of credit to instituting furloughs. Through the latter, workers can collect government-funded unemployment compensation in the interim. That expense is not on the law firm. Then, when the timing is right, they can circle back to their jobs.

I would add that, once back on the job, they can be trained to perform the functions that the new normal demands. Both Brandt and Wetmore hammer that the legal sector will never return to what it had been before COVID-19. The scope of this assault on business-as-usual is driving law firms to rethink all their processes.

Interestingly, in The Atlantic, Ed Yong presents the post-pandemic world order. He envisions the overall shift to be so profound that babies born today will be entering a whole new chapter in the history of mankind.

Consequently, they should be labeled "Generation C." What the world is after the coronavirus is all they know. The analogy is  Generation Z, digital natives. They never experienced an analog culture. As a result, just about every institution had to change to accommodate their reality. Generation C's reality won't be that of Q1 2020.

Another recommendation from the podcast, also related to the politics of The Time of COVID-19, is that law firms should be creating and transmitting positive messages.

Yes, the thought leadership kind.

Yes, both internally and to other constituencies such as clients.

Yes, law firm leadership should be picking up the phone and contacting clients on a very human level. Let them discuss their anxieties. Old-fashioned hand-holding? Corny? Probably, but really needed right now. Old is new again. 

Law firm Paul Weiss has already gone beyond that. It has moved to the next step: taking action.

Paul Weiss' Chairman Brad Karp created the pro-bono initiative Coronavirus Relief Center. 

The shorthand way of describing that is a kind of UX design that guides the public through the maze of what's available to help them during COVID-19. The configuration simplifies and streamlines.

Anyone who has struggled to resolve a billing issue, for example, with an insurance company or hospital, understands the extreme frustration.

Here is how Karp describes the initiative in his own words. 

How will the law firm be structured and what will be its values in the future? 

First the dust has to settle before even the experts on the business of law can speculate about that. 

Meanwhile, the 19th century guideline for law firms to embrace is the meme from the novels of Charles Dickens. No matter what ordeals his characters had to endure in the Industrial Revolution what got them through was what he called "the milk of human kindness." That held off despair, no matter what.

Sheltered-in-place, law firm leaders might download Kindle versions of Dickens' novels like "David Copperfield."

During this unique kind of economic upheaval, brands, including those of law firms, need to soften. Not harden. Generation C will be living in a very different kind of capitalism than dominated before COVID-19. That is beginning to configure right now.

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In The Time of Coronavirus: Suicide in Manhattan

The underlying causes and even the tipping points for suicide remain enigmas.

There had been the cluster of middle-aged lawyers in Kentucky which continue to be a mystery. 

Celebrity designer Kate Spade's suicide continues to puzzle. 

But, still, people speculate when someone in the loop takes his or her own life.

In Manhattan, neighbors are putting out there that the 64-year-old man who jumped to his death Friday night could have be driven to despair by the self-isolation mandate. The area is an epicenter for COVID-19.

He had resided at the luxury Tribeca Park Apartments on Columbus Street. New York Post provides more details. 

One of the classic books on suicide "Night Falls Fast" by Kay Jamieson leaves many of the questions about suicide without answers. In recovery support groups, suicides are the norm. Other members who attempt to explain the deaths sound arrogant. We know so little about the series of decisions or even any impulsive reflex associated with ending one's life. 

UPDATE:

The jumper has been identified as brandname photographer Robert Herman. In his note he lamented not being able to enjoy life. Daily Mail provides more details. 

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Judge Orders Chelsea Manning Released from Jail - Were Federal Prosecutors "Overzealous?"

"U.S. District Judge Anthony Tranga ordered the release Thursday after ruling that there was no need to keep Ms. [Chelsea] Manning in jail to coerce testimony." - Washington Times, March 12, 2020.

The Judge indicated that he had discharged the grand jury. Therefore, there was no longer a reason for federal prosecutors to pursue this.

Meanwhile, Manning is in critical condition after a suicide attempt in jail. It was just a few days before she was to appear in front of Judge Tranga about this matter.

Her journey in life has been a complex one. Like Ed Snowden, she felt a crisis of conscience and turned over classified government documents to Wikileaks. For that she had been sentenced to 35 years in a military prison. U.S. President Obama commuted that after she had served seven years.

By then the male Bradley Manning she had been was a female. Many would assume that before that sexual transition, she must have been in plenty of emotional conflict. In America, it's tough to be different, in any way. In the best-seller memoir "Whistleblower," Susan Fowler chronicles her own pain of being different. Before it was cool, it was obvious that she was bisexual. Also, before it was cool. she was a nerd who loved learning for its own sake. She blew the whistle on Uber's culture of sexual misconduct in a blog post.

Manning's jailing to force her to testify against Wikileaks might go down in history as an example of overzeal by prosecutors. As The Atlantic argues, that kind of relentless pursuit of an individual might have caused tech genius Aaron Swartz to commit suicide.

Manning's supporters pray for her recovery. 

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"Martha Barabas v. Barnes & Noble College, et al." - The Pricey Matter of Digital Textbooks (which were supposed to reduce costs)

Many aspects of higher education in America have been labeled "broken." 

Now, the matter of textbooks, specifically digital ones, has been included in that category. The BigBeware in this issue, which has become a legal one, is to assess all contentions that the introduction of a new model will reduce costs.

As Yahoo reports, according to the plaintiffs in class action antitrust lawsuit "Martha Barbaras v. Barnes & Noble College, et al." publishers and on-campus bookstores collaborated in creating the Inclusive Access Model. That was to put instructional material (which used to be simply called "textbooks") in digital format. The initiative was positioned and packaged as a way to lower the cost of those kinds of materials. 

That isn't what is happening, plaintiffs argue. The lawsuit had been filed March 5, 2020 in U.S. District Court for the District of New Jersey.

Instead, claim the plaintiffs, that cluster of players represents a type of monopoly. The key publishers involved include Cengage, Pearson, and McGraw-Hill. Part of their focus is, it is contended, to eliminate the used book market. Students know how much buying a textbook used instead of new can save. The Inclusive Access Model renders that material obsolete. 

Their actions, indicate the plaintiffs, are in violation of the Sherman and Clayton antitrust acts. 

The College Board calculates that, on average, students spend more than $1,200 a year on books and other instructional material. As a result, some students are forced to wing it without purchasing what many have found to be necessary for learning. 

If this legal issue catches fire in the media and among those questioning the status quo in higher education, the defendants could be cast as really bad guys. According to Student Loan Hero, for 2020, the average student loan debt is $29,900. Over time, the interest on the loans will make that number balloon. 

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What a Seasoned Divorce Lawyer Could Have Told Woody Allen

For a while, Farrow Inc. was a fading brand.

The memory of the Battle Royal between founder Mia and former lover Woody Allen had faded. Anyway, didn't the court of law rule no sexual molestation had taken place. Inappropriate behavior? Maybe. Allen was denied custody of the three children, one biological, two adopted, he had fathered with Mia.

After that, there had been a blurb in the media now and then about Mia's good deeds.

Now and then Dylan piped up about the alleged molestation by Allen when she was seven years old.

Then a member of the next generation Ronan gained and grew fame as an investigative journalist. After not doing so hot on television, he had found his niche. Among those he exposed had been film producer Harvey Weinstein and Superlawyer David Boies.

is the most powerful institution in the world. Farrow Inc. knew had to manage it and it had Ronan in the front lines.

After Hachette announced that Allen's memoir "Apropos of Nothing" was being released in April, Farrow Inc. launched an attack. In addition to Dylan and Ronan had been employees at publisher Little, Brown. 

The claim was no fact-checking. Also, there had been no outreach to the alleged victim Dylan.

Hachette Book Group announced it would not release the memoir next month.

Allen Inc.'s real crime might have been underestimating how switching as his lover Mia's adopted daughter for her would have affected Mia. 

Any seasoned divorce lawyer might have advised not bailing out. Too costly to his career. And that it has been. 

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A Pox on Both Their Houses - The Feuding Farrows and The Allens

Controversy sells.

Big time.

Just look at how lucrative the entrepreneurial activities of Meghan and Harry are. That wouldn't have happened had they not triggered extreme controversy by breaking free of royal life.

Apparently, Dylan Farrow is clueless about the commercial power of a controversy.

Otherwise she wouldn't be out there decrying the publication of Woody Allen's book "Apropos of Nothing." What she doesn't get at all is that her latest rant will jack up book sales - probably almost exponentially.

Influential tabloid Daily Mail carries her latest vilification of the man whom she has been alleging for decades molested her as a child. Way back in June 1993, Judge Elliot Wilk ruled Allen not guilty of sexual misconduct of his adopted child Dylan. However, his behavior with Dylan had been inappropriate. Because of the latter Allen lost his bid to gain custody of three of his children.

Every so many years Dylan resurrects that contention. She is the front lines or Worker Bee on all that for the Farrow Family. But Ronan also has joined forces.

Specifically Dylan's outcry is against Hachette which will release Allen's book in April. That she positions and packages as a betrayal of her brother Ronan Farrow. Allen is Ronan's biological father.

Hachette also published Ronan's expose "Catch and Kill." That book essentially rehashed without too much information or insight the sexual misconduct of glam celebrities such as Harvey Weinstein and Matt Lauer. However, it continues to rank higher on Amazon. Those brisk book sales in themselves demonstrate the role of controversy in purchasing decisions. 

The Dylan-generated controversy, though, is an equal opportunity one.

It is the gift which also keeps giving to Mia, the matriarch of the Farrow brood. It props up her brandname, long after her best days as an actress are over. In reality she had been the scorned woman. Allen had dropped her to start a sexual romance with his adopted daughter Soon-Yi. Later he married her.

As William Shakespeare proved out in "Romeo and Juliet," family feuds are wonderful platforms for success. That drama of two families in an ancient conflict continues to be a commercial hit.

May the Allens and Farrows keep fueling their feud. A good time is being had by all - maybe including the players themselves. During 2020, it could provide wonderful theatre. 

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Charleston, South Carolina - Circling Back to Dylann Roof

Election 2020 has been framed as the most important in the history of America. 

The Charleston, South Carolina Dem Debate is the last before not only before the primary in that state but also before SuperTuesday.

That state is symbol of old-line white supremacy. That was brought up during the debate. 

In addition, it's no surprise that the Daily Mail has circled back to the June 2015 massacre at the Emanuel AME Church in Charleston. According to that news outlet's sources the murderer Dylann Roof had engaged in a hunger strike on death row. His lawyers, of course, are appealing that sentence.

Roof sent a letter to the Associated Press informing it that he stopped eating. That was to protest what he claims was bad treatment by the corrections staff. For example, he was not allowed access to the law library and copy documents. The hunger strike ended when those at that Terre Haute Federal Prison in Indiana attempted to insert an IV to supply nutrition. Roof was reported to have passed out when that happened.

The recently published book "Grace Will Lead Us Home" by Jennifer Hawes recounts the impact of that catastrophe on the Charleston community. The amazing part of the story is that many who lost loved ones forgave Roof. However, it seems that as yet he had not found his own inner peace. 

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Those NDAs - They Are Becoming More Inclusive and Michael Bloomberg Sees Nothing Wrong with Them

If you are an executive, working stiff, or even a freelancer, you probably have signed a Non-Disclosure Agreement (NDA).

And if that signing wasn't your first rodeo, you have noticed those contracts are becoming more inclusive.

A recent one I signed for ghostwriting a book banned me from whistleblowing. Standard now is that I can't disclose my association with the ghostwriting project or with the person whose name appears on the book. No, my name won't show up in the acknowledgements of those in the loop who pitched in.

We cave and sign because we have to pay our bills. And that's that.

Those on the other end - the power structure demanding our compliance - probably won't budge on this. At least, not for a long time. Last night in the Democrat debate, Elizabeth Warren attacked Michael Bloomberg for requiring NDAs in his business. He blew that off. Obviously, he doesn't perceive imposing that kind of compliance on employees as an issue requiring review. 

Admittedly, some kinds of NDAs are have-tos in organizations which have trade secrets. You are part of a team developing a new fintech app for property insurance. Hell, no, you better not disclose even the existence of such an initiative. 

Otherwise, everything else about the NDA clashes with the tenets of the Era of Transparency.

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