Law And More

Apollo Continues Pivot into Sustainability - Focus on Transition to Non-Fossil Sources of Energy and Game Theory

Recently, Apollo Global Management had announced it was creating the function of Chief Sustainability Officer.

The mission has been to review all investments in terms of its compliance with ESG criteria for Environment, Social and Governance principles. This Law and More article analyses the rewards and risks of that move.

On Friday, October 22nd, the financial giant expanded its reach and branding in sustainability. As it details in its press release it has bet big money on the energy transition to non-fossil sources. Here is the financialese:

"Apollo (NYSE: APO) today announced that funds managed by its affiliates (the “Apollo Funds”) have agreed to invest $824 million in a convertible equity portfolio financing agreement with NextEra Energy Partners, LP (NYSE: NEP) in a 2.5 GW renewable energy generation portfolio (the “Portfolio”). The Apollo Funds committed to the investment as part of the sale of 50% of the Portfolio from NextEra Energy Resources, LLC, a subsidiary of NextEra Energy, Inc. (NYSE: NEE) to NextEra Energy Partners."

That portfolio contains 13 utility-scale wind and solar assets. Of those, three facilitate battery storage. 

The transaction had been handled by law firms Allen & Overy and Paul Weiss. 

What does this mean?

Well. to begin with, it's a kind of what's called "virtue signaling." That is, the message is: We are on the right side of global values. Salvation for mankind entails the battery's replacing gasoline.

In addition, Apollo is leveraging its influence to confirm the importance of energy transition. That includes how investors should make their choices. Yes, investors, non-fossil fuels are the horse to bet on.

And, Apollo is positioning and packaging itself as being in the front lines of a business philosophy that goes by the umbrella term "ESG." Apollo publishes an annual report "The Apollo ESG Effect." Here you can read it. 

The stars are aligned that Apollo will impact the energy sector in a major way.

In the global corridors of influence what moves the dial on getting things done are the connections among the movers and shakers. Journalist Hedrick Smith explained those dynamics in his book "The Power Game."

It is interesting to note in Apollo's journey toward being the player in sustainability its long-time legal counsel has been law firm Paul Weiss. Yes, that firm oversaw this most recent transaction. 

The Paul Weiss Chairperson Brad Karp has been a first-mover in the law firm sector's embrace of ESG values. For example, it established the first ESG practice.

Also, on personal level, Karp has mobilized collective action throughout law firms to support causes associated with ESG values. They include push-back against suppression of voters' rights. Those initiatives reinforced Paul Weiss' presence for being a force field in social justice. That fits nicely where Apollo is heading. 

It also can be useful to observe that Apollo's actions may be based on a version of game theory. The genius John Nash brought the erudite discipline mainstream. Recently I have created material for a client on the implications of game theory for the crypto market. 

Essentially, game theory strategy is about optimizing outcomes through ensuring cooperation among those in the loop. That seems to be underlying how Apollo is going about sustainability. The self-interest of all the players is brilliantly locked in. 

Game theory is becoming an increasingly useful lens for assessing investing initiatives. Meanwhile, green is good. It's in the public interest. 

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Yesterday - The Chase After That, From "Mad Men" Kodak Carousel Pitch to Gen Z Fashion

The hunger for what was.

On "Mad Men," Don Draper captured that in his presentation for the Kodak carousel.

His specific pitch was the pain and confusion of transitioning from childhood to teenage years. So, there is the reaching back to the known. Here is that iconic pitch.

Now, in real life, reports Axios, Gen Z is experiencing that same pull force. TikTok is in sync with that. Yesterday's brandnames and fashions are, for example, back again. 

What youth most crave is the slower pace of a very different time.

Maybe they're onto something big. And they're not alone. In an interview with Bloomberg Law, it was the chairperson of elite law firm Paul Weiss Brad Karp who put it this way:

“'We have to push the brakes in today’s world to deal with the mental health and emotional stability of our community,' he said. 'It is probably the most important single issue I’ve grappled with during the pandemic.'”

The slow movement is, of course, not new. It originated in Italy in 1989. The meme is that faster isn't necessarily better.

One major way it has seeped into Americana had been through the embrace of eastern philosophy, especially Buddhism. Its central practice - meditation - slows down humans' "monkey mind" so that its workings can be observed. Those in that kind of trance get it: So, that's how I'm thinking and why I'm going wrong.

Every Thursday evening, the Tucson, Arizona Shambhala Buddhist Center provides a no-cost reading of text (often from the writings of American Buddhist nun Pema Chodron), a 20-minute meditation session, discussion, and another five minutes of meditation. Then there is a chant for the well-being of all sentient creatures.

Marketers are no slouches when it comes to leveraging trends into platforms for promotions. Expect plenty of yesterday to be featured during this holiday selling season. 

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Baby Boomer Partners - Yeah, You Started This Hustle-Culture Mess in Legal Sector

Our parents simply went to work. Some even were in white-collar jobs like accounting or middle management. Then they came home each evening and that was that. No bringing work home. Instead they turned on the evening news.

On the popular televsion series of the 1950s "Father Knows Best" employee in the insurance industry Jim Anderson was home for dinner every night. And he was "there." He listened to everyone's problems and shared their joys. 

Then we baby boomers came along.

Low-cost college education and the opportunities of the post-war economy unleashed in us intense ambition. Law school tuition was relative peanuts. There was a shot at making it big and we went for it.

Along the way The Career Advice industry emerged to guide our every move.

Yes, it's all political. Work is only a defensive move.

Here's how to comport yourself if you sense the boss will be fired.

Dress like those do in the position you're heading toward.

We were our work.

Parents, both males and females, weren't home for dinner. There was a struggle to hire and retain the best nannies. Remember on "A Million Little Things" how Katherine, when offered partnership, asked to be allowed to go home to have dinner with her son and then return to the office. No dice, the partners said. 

Single women without children like myself were what employers wanted. We could hop on a plane without notice to solve a problem in the plant in Canada or Mexico. 

And born was what LinkedIn News calls "The Hustle Culture."

Even though many of us currentlyy are beyond normal retirement age we are still our work. We can't shake that our professional identify is the primary one. If there is mandatory retirement age at the law firm, lateral to another one. 

Those of our colleagues forced to retire and who can't put a Work Next together usually wither. I have observed that when I visited former college acquaintance Kathleen Huebner in Oro Valley, Arizona. Although she had had a succesful career she opted to retire in one of those retirement communities. Mostly what I had heard was those gushing about their previous careers. There was no there in the present. 

Now, The Hustle Culture, which we made glam, is being vilified. It's been fingered for everything from burnout to an inability to connect on a deep level. It could also trigger The Massive Attrition among associates. They don't want part of what we made the right thing to do.

In my coaching those over-50 the focus is on simply easing up, even a little, on the compulsion to keep achieving. There is no expectation of being totally liberated from an ethos which anointed work as sacred. The irony is that those letting go even just a bit become more successful. Essentially they drop the story line of past whatever and immerse themselves in the now.

As for younger generations, they are a fragmented bunch.

Some Gen Zers have decided work will be just a part of their lives and on their terms. Those include operating remotely.

Then there are the strivers captured in "Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life." It's by former Yale Professor William Dersiewicz. That subculture within youth is trapped in a constant hustle. They fear making a mistake or getting a bad grade. Therefore, they freeze into cartoon characters chasing what they have been told are the rules for success.

The good news is that hustle can be tamed. The silver lining in the pandemic was that, with one's life on the line, there was reflection about how that life was being lived. What has resulted is a deep rethinking about work. Insider reports that recently in one month five million workers quit. They refused to do The Hustle.

Since you started The Hustle, you can be in the front lines for reducing its influence. The first step is to humanize how you work. Be kind to associates and staff. Find satisfaction in serving clients, not just in winning. And, forgive yourself if you didn't make it as big as you envisioned. Doing this is in the public interest. America seems on the verge of a collective emotional meltdown.

Intuitive guidance about your career. Drop your story line and open to extreme possibility. Sliding Scale Fees. Please make an appointment for a complimentary consultation at janegenova374@gmail.com.

Drinking Less Or Not Drinking At All - Leap Into Faith

"According to a Rand Corp. survey of 1,540 adults, the number of days in which Americans drank rose 14% during a month-long period in the spring of 2020, compared with the same period in 2019. In a February American Psychological Association poll of 3,013 adults, 23% reported drinking more to cope with stress during the pandemic." - anne Tergesen, "A Sober Curious Movement Builds Online, Targeting 'Gray Area' Drinking," in The Wall Street Journal, October 3, 2021.

Like any pleasurable activity, such as downing Doritos in front of the screen, drinking alcohol can become a habit tough to shake.

If determined, just as with those who were once chubby and now aren't, that can be done. But most will probably be stuck in euphoric recall of the satisfaction of the experience and head back into indulging in a bit of boozing. Or a lot more than that.

The danger, of course, is the habit can become a compulsion. Then, we're talking about a drinking problem. And research documents that lawyers, even Millennial ones, have a higher than average rate of problem drinking.

Some who recognize they're in that danger zone stop on their own. They realize at risk could be their earning capacity, family life, and health. 

On the Eastern European side of my family, which seems to have a gene for alcoholism, most members had that moment of clarity and stopped the disease DIY.

Others such as myself sought out a 12-step program. That was way back in 1981. There wasn't much else available. It was effective. But the approach is inefficient. Currently I would seek out something less time-consuming and less embedded with orthodoxies. 

Today, of course, as the WJD discusses, there are alternate treatment modalities. And a number of them are available online. 

This is strictly anecdotal. In consulting with experts in alcoholism and with being a sponsor of those starting out on their recovery journey this is often considered a key variable in success: belief in the process. The approach didn't matter all that much. What did was, well, blind faith. That's why it can be counterproductive to present a newbie with "evidence" of the flaws in a program. 

Maybe that's why so many sobering-up stories contain phrases like "getting religion" or "a spiritual experience."

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Lawyers, Did Your Angst/Depression Start with Chasing High Grades in High School?

Overall, it's a given that suicide is common among high-achievers. The example which haunts the legal sector has been that of Sidley Austin partner Gabe MacConaill in 2018.

Also, it's well-known that mental illness and substance abuse occur at a higher rate among lawyers than professionals in a number of other career paths.

Could this be traced back to how those who wound up practicing law got it in high school that they better achieve high grades? Otherwise their professional possibilities could be limited? 

Researchers at the University of Ottawa found a correlation between youth who strived for top grades in high school and anxiety and depression later in life.

Essentially that could be informally labeled "The Perfectionism Syndrome." Some recall that MacConaill's widow Joanna Litt published a commentary in Law.com. She attributed the suicide to her husband's maladaptive perfectionism. He couldn't do any aspect of his job not perfectly, be it mentoring summers or managing a major bankruptcy.

The Ottawa study conducted by Shari Endleman et al. has been published in the International Journal of Behavioral Development. Here is a copy of that research. And, here is a copy of the University's press release about the study.

The study strikes a nerve with just about anyone who had gotten caught up in chasing grades in high school and then in higher education. It's a game. Those determined to succeed in it know they have to discern the rules. The rules include, for example, being able to ferret out what the instructor "wants." Is it original thought or boilerplate? The consequences of not winning through those rules are severe. The academic transcript is there forever. Those "B" grades during the college sophomore slump have to be explained in the application to law school. The admission committee could buy that or not. 

So, what should lawyers do if they find that The Perfectionism Syndrome holds them emotionally and spiritually hostage? The pragmatic approach, unlike how MacConaill approached his career, is to assess when perfect performance is necessary and where it's not. Of course, in preparing legal documents things must be perfect. In other tasks such as supervising summers, maybe not. And does every interaction with a superior, a client, or a prospect have to be perfect? Usually it's possible to smooth over less-than-perfect connections.

It's not rocket science to recognize that a lawyer is a victim of The Perfectionism Syndrome. One junior associate I coached described the pickle she was in as "dancing as fast as I can and still not feeling that was enough." She came to learn to size up the rules of work games she was in. Then she could make decisions about which demanded perfect performance and which she simply could play less intensely. 

Here's an analogy. Those astute in game-playing in my doctoral studies figured out quickly that winning was about course grades, research, and relationships with professors. It was not about the quality of teaching, at least not years ago. So, they didn't strive to be perfect in teaching. Those who assumed they had to excel across the board had a very difficult time in the program and usually wound up not being able to land the kind of job they wanted.

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Colinford Mattis, Urooj Rahman Plead Guity to One Count

Their hearing will be October 7th. With their plea of one count of possessing or making a destructive device. they avoid a possible 45-year sentence. Instead the sentence could be up to 10 years. But that decision will be by U.S. District Judge Brian Cogan. Here are more details from Reuters Legal. 

The two are lawyers Colinford Mattis, suspended associate from Pryor Cashman, and Urooj Rahman, whose career has been in public interest. They have been ensnared in the fallout of being associated with a Molotov Cocktail after the death of George Floyd.

Some of those who had been activists, became worn out, and had errors of judgment have been sympathetic with the two lawyers. Their rage had been understanable. However, of course, the legal system can't allow their actions not be punished. Otherwise any group with a cause they believe is right could feel that they receive permission to also throw molotv cocktails.

Mattis' lawyer is Sabrina Shroff. Rahman's is Paul Shechtman from Bracewell. 

Many of us will be with the two in spirit in Judge Cogan's courtroom on October 7th.

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Law Firms - The Trauma of Return-to-Office

"You’ve got a different group of people coming back. And the firms that are going to be the most successful will understand that and manage their people well." - Jim Jones, a senior fellow at the Georgetown Law School on Ethics and the Legal Profession, quoted in Abovethelaw, September 23, 2021.

Jones posits that in the past 18 months those who had vacated the offices of law firms 18 months have gone through hell and anxiety. That has been traumatic. And that has changed them.

Therefore, Jones recommends that law firm leadership take this internal shift into account in welcoming back office-returners and helping them become acclimated. 

Less is more. PAN Communications found consumers are only paying attention to about 1/16^th of your content. So, together let's create the marketing communications that engage them. Fees customized for your unique budget. Complimentary consultation - janegenova374@gmail.com.

"Stilley v Braid" - Duty, Greed, and Big Law

"A Texas doctor [Alan Braid] who admitted he performed an abortion in violation of a new state law has been sued [by Oscar Stilley] in one of the first legal tests of the highly restrictive statute, which has already drawn a Justice Department challenge and action by the U.S. Supreme Court." - Catarina Saraiva, Bloomberg Law, September 21, 2021.

In an op-ed in The Washington Post, Dr. Braid positioned and packaged what Texas considers an illegal act as "a duty to this patient." He also went on record with his belief that "abortion is an essential part of healthcare." As lawyers are quite aware, Dr. Braid has put in play a test case about the constitutionality of SB 5, the most restrictive abortion law in America.

This embrace of not only what he views as his medical duty but also his legal one, of course, makes him a target. He can anticipate the worst, even attempts on his life. For some progressives, that makes him a hero in this time when America seems to have lost its way.

Meanwhile, a lot less noble seems to be the motivation of the plaintiff Oscar Stilley. He is a lawyer who had lost his license to practice. It is contended he opened this box primarily for the bounty. If there is a conviction he earns $10,000. Yes, old-line greed. 

In addition, though, the high-profile nature of this lawsuit could be a bridge to a new career path. To conservatives, he probably also is quite the hero. Just as they rewarded the late Linda Tripp for betraying friend Monica Lewinsky, he could find himself in a kind of catbird seat. Success has many strategies. Filing what could be a landmark lawsuit is one. However, that doesn't always pan out. In filing "Ellen Pao v Kleiner Perkins," the plaintiff essentially blew up her career. Stilley can wind up losing everything. 

Another key development in the aftermath of the passage of SB 8 is that some members of Big Law have made opposing this law a key social justice initiative. As Reuters Legal reports, they have committed to represent pro bono abortion providers. They are doing that even though, as Reuters Legal notes:

"These lawyers are determined that abortion providers will have top-quality legal representation, even if those who represent them can be held jointly and severally liable for the other side’s fees."

That is, if their client loses, they could be on the hook for the opposing counsel's fees. However, some Big Law's partners interpret that as unconstitutional and plan to take it on. 

Among those firms is Paul Weiss, chaired by Brad Karp. Paul Weiss partner Alexia Korberg will represent defendants. Like Dr. Braid, Korberg put her commitment to fighting SB 8 in an op-ed in The Washington Post. 

Here is an excerpt:

“These laws don’t just target constitutionally protected activity, whether accessing abortion care in Texas or living your life as a gay or trans person in Mississippi; they encourage harassment, discrimination and vigilantism  ...  They reward and protect it. And they ensure the mob’s targets live in fear of those around them.”

Yes, as in the world view of William Shakespeare, Korberg leverages the concept of "mob." Throughout his dramas, the bard of Avon hammered how fickle the human species is and how members of it can change on a dime. Mob rule seems to have overtaken much of conservatism in America. 

As with Dr. Braid, Korberg is also a target. She has allowed herself to enter almost a paranormal force field. In it behavior could be unpredictable. Anything can happen, including to her.

Less is more. PAN Communications found consumers are only paying attention to about 1/16^th of your content. So, together let's create the marketing communications that engage them. Fees customized for your unique budget. Complimentary consultation - janegenova374@gmail.com.

 

"Dwyer v. Allbirds" - Cautionary Tale about Legal/Reputational Risk Associated with Sustainability-Centric Marketing

The filing of  potential class action lawsuit "Patricia Dwyer v Allbirds" on July 13, 2021 should be cautionary tale about using sustainability-centric marketing. Here is a copy of the complaint.

Eco-friendly is turning out to be risky business.

Essentially the contention is that the eco-friendly phrases are misleading. More specifically, the lawsuit claims the much-touted life-cycle assessment tool doesn't measure carbon footprint impacts beyond the manufacturing process itself.

In addition, it hits on the high-profile matter of animal welfare. Allbirds features the sheep looped into the wool-gathering process as "happy sheep." The lawsuit alleges mistreatment ranging from beatings to slitting the throats of conscious sheep. 

A similar kind of lawsuit alleging misleading advertising has been filed against Canada Goose. It has put out there that its fur-gathering process and products are ethically sustainable. The lawsuit takes that on. 

Shade is also being thrown on Allbirds ESG posturing in terms of another of the ESG components - governance. Reuters Legal rates Allbirds' second-rate. Its founders Joey Zwillinger and Tim Brown hold super voting shares and only a portion of the board comes up for reelection each year.

Part of the problem in this sustainability space is that there is no formal definition of "green." These kinds of lawsuits can accelerate the push for such a standard definition in terms of the law and commercial fields such as advertising and manufacturing. 

As many know, Allbirds had been the darling in integrating ESG (Environmental Social Governance) principles into all aspects of how business is done. Its eco-friendly positioning and packaging attracted investors ranging from Fidelity to T. Rowe Price. And, as Dwyer has hammered, current consumers factor in business practices in their purchases. Allbirds has had a high rate - 53% - of repeat customers, reports CNBC. It plans to take on Nike and Adidas.

Allbirds quickly grew to a $1 billion startup. It approached its IPO as creating a new template for other businesses going public. It calls the model the Sustainability Public Equity Offering. That received plenty of media attention. At the time Allbirds was making all the right moves in what's called "virtue signaling."

Fashion Law provides highlights of Allbird's response to "Dwyer":

" ... asserting that Dwyer’s and putative class members’ claims are barred, in whole or in part, due to 'a lack of standing and failure to establish any cognizable injury,' and that Dwyer 'fails to and cannot prove money damages with any degree of certainty sufficient to permit recovery of damages,' Allbirds claims that its actions were 'authorized by the applicable law and thus, are not actionable,' and that Dwyer’s claims are barred because 'Allbirds was not under a legal duty to disclose the allegedly concealed facts.'" 

Marketers might understand - but not forgive - how Allbirds might have allegedly overstated its conformance to sustainability principles in terms of the environment, labor practices (including the entire supply chain process), and animal welfare.

But lawyers are probably scratching their heads. This kind of legal and reputational trouble probably could have been prevented.

Dating way back to April 2020 when Paul Weiss' Brad Karp launched a ESG practice, it was out there: How increasingly difficult it was becoming for business to identify, interpret, and mitigate the risks associated with the broad category of sustainability. This month research by the Rock Center for Corporate Governance at Stanford confirmed the extent of that risk. General Counsel admitted the function was struggling. 

In its ESG practice mission statement, Paul Weiss captures how wide-ranging the challenge is:

"Business leaders face greater pressure to increase their organizations’ resilience while simultaneously addressing social issues of importance to stakeholders. Our advisory practice helps companies navigate the legal, business and political ramifications of developing and implementing ESG initiatives. We advise on matters such as stakeholder engagement, corporate governance, crisis management, corporate social responsibility, sustainability, diversity and inclusion, ethics and compliance."

Just as "US v Elizabeth Holmes" might rein in the excesses of Silicon Valley, "Dwyer v. Allbirds" could trigger a rethinking of hyperbolic sustainability-centric marketing. 

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Jane Genova's Article on The Playbook for Flexibility, Pubiished in ST Magazine

I am thrilled to share with you my article on the playbook for flexibility in these peculiar times. It's published in the September 2021 edition of ST Magazine.