Law And More

Controversy - Former Googler Patrick Shyu Goes for Broke (and how social networks have made mean-spirited cool)

The promotional power of controversy is well-known. But, what is also a pragmatic reality is that it is a marketing/public relations tool which has to be carefully managed.

Recently, as Insider reports, former Googler Patrick Shyu has, well, gone for broke in leveraging his use of controversy to get, retain, and grow subscribers for his YouTube Tech Lead Show.

On Twitter, in posts which he had since deleted, he gushed about how he used to tell females interviewing for coding positions at Google to go home and have babies. Yes, he contends to have actually said that, in real time. In addition, he had tweeted, also since deleted, why women shouldn't code. 

Here is Shyu's LinkedIn site, on which he has 61,285 followers.

Whether there will be an escalation of subscribers to his subscription service or a flight out - only time will tell. In the current ethos of mean-spirited everything many might be attracted to Shyi's world view and his crass way of putting it out there. Social networks have elevated what is mean-spirited to the new cool. 

When toxic Gawker collapsed my kind cheered. We hoped that was the end of that. However, it taught well other promoters how to push the envelope on mean to succeed. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. 

Princeton and Joshua Katz - Focusing on the Tragedy of Job Loss, Since We Don't Know What Really Went Down

"Princeton Fed Me to the Cancel Culture Mob - The university claims it fired me for a long-past offense—for which I was already punished—but the truth should worry everyone."

That is what former Princeton tenured professor in classics Joshua Katz wrote in his opinion-editorial in The Wall Street Journal. 

Yesterday, The WSJ carried the story of his dismissal from Princeton. The article reported:

"Princeton University’s board of trustees voted Monday to fire longtime classics professor Joshua Katz, adopting the president’s recommendation and finding that the faculty member failed to cooperate fully in a sexual-misconduct investigation."

What Katz rails against is that misconduct incident - a consensual relationship with a 21-year-old student years ago - had already been dealt with. Back then he had been suspended without pay for a year. In the op-ed he refers to this second round of punishment for that "double jeopardy."

What Katz contends is that he is being penalized for controversial statements he has made regarding social and cultural issues. Some would classify the matter as one of free speech.

But given the complex dynamics of academic decision-making by the power structure, most of us really don't know what factors resulted in the termination. Of course, investigative reporters could dig and maybe they will. But the rest of us only have a They-Said and He-Said. 

Since we don't know it is probably wise in this era of extreme turmoil not to adopt this as a cause. Not in advocacy of Katz and not in advocacy of Princeton. 

Of course, it is sad for anyone to lose a job. Even if this were simply a reduction-in-force or a stealth layoff tragedy could stick to it. In America we are our professional identity. Katz has lost his.

In 1987, I was ever so gently laid off from a middle management corporate position. There was almost a year's severance, including health benefits. I went on to launch a successful executive communications boutique. However, the humiliation and hit to my confidence were sticky. To today I continue to play around in my head what I could have done differently.

Law and More has empathy for the blow of a job loss could be for Katz.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

Trump's Power - Everyone Is Measuring It

"President Trump and the MAGA movement are showing signs of moving in different directions. By no stretch of the imagination is Trump’s base deserting him. But nor are those voters willing to simply do his bidding." - Niall Stanage, The Hill, May 23, 2022

The focus has long shifted from the real or alleged perils presented by Donald Trump to how much power does he still have. The answer is two-fold:  (1) He still has more power than his critics anticipated and (2) He is losing the ability to unilaterally control the MAGA movement.

That leaves progressives in an urgent state of coming up with strategies to create their own kinds of power. In that the Democratic Party seems to have defaulted to New York City Mayor Eric Adams. As Politico reported, he is the new messaging machine. 

At the Democratic Congressional Committee he advocated applying his own motto: Get Stuff Done. Yes, take action. He also was bullish on storytelling. Part of that was forcing the GOP to come to terms with their own conflicting stories. Yes, they are for law and order but they back off from adequate funding of law enforcement. 

The buzz is that Adams could put himself out there for US President in 2024. What operates against that is the escalating troubles in his own city. Violence is the dominant ethos. In addition, COVID has returned. Meanwhile, remote work has sent the commercial real estate industry reeling. 

Trump has established almost a mystical force field for his points of view. Traditional politicos don't know how to neutralize it.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

The New York Times - When It Wasn't Winning It Was Almost Human

"Like a burning sun that never sets, the New York Times is forever there, forever reminding us of its presence, and forever neglecting to give adequate recognition to the rays of light emitted by lesser stars." - Jack Shafer, Politico, May 23, 2022

The New York Times was almost human when it wasn't winning. Remember that. Thought leaders were speculating that some foundation would take it over. At the time it wasn't getting the hang of digital and didn't seem really to understand that was a must-do. Meanwhile the rest of us were sweating about page views. Making a living depended on it. That's what we knew. 

That was then.

Now, as Shafer documents, that it's totally back it is again totally unlikable. Although I have paid subscriptions to a growing list of media outlets, I refuse to align myself with The New York Times.

The tone of The Times articles is one of ownership. Not accidentally readers get the feeling that this is the definitive word on topic X or topic Y. Maybe that's the game plan. Like the Roman Catholic Church, The New York Times seems to gaslight us that it is infallible. 

Most annonying, of course: Its long-termers like David Brooks verbalize as if they were sun gods. All the world is supposed to turn to those worlds with adulation. 

Maybe Shafer's observations, along with the growing number of nasty tweets, can break the spell. After all, Roman Catholism continues to lose global market share. At one time it had been one of the most powerful and during brands.

Connect with humber Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

Amber Heard and Other "Imperfect" Victims of Alleged Domestic Abuse - #MeToo In-Play

"#MeToo is over if we don't listen to 'imperfect' [alleged] victims like Amber Heard." - Martha Gill, The Guardian, May 22, 2022.

#MeToo had caught fire. We all know that.

The high-profile females who contended they have been "victims" of sexual misconduct were, well, not imperfect.

As they presented their complaints there was no "evidence" that they might have collaborated in what they alleged had happened to them. In addition, they were what we think of as "solid citizens." No, they didn't have to be Saints. Some who had become caught in the alleged sexual abuse by power brokers in media had been quite ambitious. Society remains ambivalent about that trait in females. 

So much for the victims who met the specs for the acceptable victim.

Then came along Amber Heard. Some fear her streaming presence could make #MeToo go poof. In a 2018 The Washington Post op-ed she contended she had been a survivor of domestic abuse. In that piece she didn't mention her former husband Johnny Depp by name.

Nevertheless, he filed a $50 million defamation lawsuit. The result is one of those Trials of the Century which will wrap this week. It's sucking up so much media oxygen. 

Well, Heard is not a solid citizen type. She is been labeled the "imperfect victim."

For example, she said she would donate all her divorce proceeds to charity. That didn't happen.

There is also a recording of her hitting Depp. 

In addition, the skilled lawyers representing Depp from Brown Rudnick are knocking the stuffing out of her on cross-examination as well as through objections. That's so much the situation the BR lawyer Camille Vasquez, although not a partner but an associate, has become a TikTok star.

However, what Gill and others are pushing back with is this: #MeToo was intended to give voice to imperfect victims. They didn't have to fit the traditional stereotype of the Good Girl. 

However movements are fragile. Remember the late 1960s and early 1970s Counterculture? That too caught fire. The severe recession of the mid 1970s essentially ended that Do Your Own Thing ethos. We got it that we had to do what The Man demanded. Some of us even felt that our Counterculture selves had represented excess. 

#MeToo also could be what a society leaves behind. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

No, Karine Jean-Pierre - You Don't Read from a Script

"The confidence simply is not there, nor is the conviction." - Joe Concha, The Hill, May 22, 2022.

That's one assessment (damning) of the early performance of White House Press Secretary Karine Jean-Pierre. Concha sums that up as "amateur."

For example, she reads from a set script. Verbatim. That eliminates any attempt to engage with the media in the usual back-and-forth that generates insight about and maybe even fresh movement related to government mindsets and positioning on issues. Yes, what is being create is a closed system. Pull down the drawbridge and fill the moat with alligators. 

Eventually the media could decide to ditch those White House briefings and dig elsewhere for information and nuances. A sign of the disenchantment with Jean-Pierre would be the once-unthinkable: No journalist or blogger shows up the White House press whatevers. Instead there will be an email: Just send us the script.

The analogy is this: The rigid rhetoric and convoluted legalese which Big Law frequently leverages in its official communications and even on the law firm websites. That shuts down  any opportunity for a conversation. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

Federal Antitrust Agencies Focus on Private Equity - Wall Street Law Firm Paul Weiss Connects the Dots, Spells Out Implications

“Crackdown on buyout deals coming, warns top US antitrust enforcer. [He] Jonathan Kanter fears hollowing out of American economy amid private acquisition spree.” –  Headline in Financial Times, May 18, 2022

Kanter is the Assistant Attorney General in charge of the Antitrust Division at the Department of Justice. His message captures the mindset among federal antitrust agencies.

For example, in a memo, Chairperson of the Federal Trade Commission Lina Khan hammered:

“The growing role of private equity and other investment vehicles invites us to examine how these business models may distort ordinary incentives in ways that strip productive capacity and may facilitate unfair methods of competition and consumer protection violations.”

Recently with the US Senate confirmation of Alvaro Bedoya, the FTC shifted to having a progressive majority of its members. That means it can be more aggressive in its scrutiny and enforcement.

Targeted are potential competitive issues in private equity deals. The key ones are:

• Roll ups.
• The involvement of private equity in divestiture remedies
• Enforcement of the law concerning interlocking directorates.

PAUL WEISS CONNECTS THE DOTS

Wall Street law firm Paul Weiss, chaired by Brad Karp, examines this focus on private equity dealmaking for antitrust issues. Here is that Client Memorandum.

ROLL UPs

The Paul Weiss analysis zeroes in on Kanter’s assessment of the roll up strategy as a “business model [that] is often very much at odds with [antitrust laws] and very much at odds with the competition we’re trying to protect.”

Therefore, Kanter indicates that a proposed deal will not be approached as a stand-alone. Instead it will be investigated in terms of the private equity firm itself.

Consequently, funds or their portfolio companies can expect broad-based questions in merger reviews about strategies. Paul Weiss posits that private equity roll ups will be addressed in the formation of future merger guidelines.

On January 17, 2022, the FTC and the DOJ issued a call for comments on those agencies’ merger guidelines. The question asked essentially is if the guidelines approach to private equity acquisitions is adequate.

ACQUISITIONS OF DIVESTITURE ASSETS

Historically, Kanter has been skeptical of divestitures as remedies in merger matters. In late January 2022, Paul Weiss had analyzed that stance. Here is that Client Memorandum.

More recently Kanter increased that concern. For example, he noted in a speech:

“divestitures may not fully preserve competition across all its dimensions in dynamic markets … [as for private equity investors] too often partial divestitures ship assets to buyers like private equity firms who are incapable or uninterested in using them to their full potential.”

Kanter added to that in that Financial Times interview:

“Very often settlement divestitures [involve] private equity firms [often] motivated by either reducing costs at a company, which will make it less competitive, or squeezing out value by concentrating [the] industry in a roll-up."

Therefore, the Paul Weiss takeaway is this: Those involved in deals where a private equity fund is part of a potential remedy should take Mr. Kanter’s assertions into account when advocating for the remedy.

INTERLOCKING DIRECTORATES

First, Paul Weiss presents the traditional way Section 8 of the Clayton Act played out. It prohibits a person from simultaneously serving on the board of two competing corporations unless the criteria for de minimis exceptions are met. When the DOJ became aware of potential Section 8 issue, frequently the matter was resolved by the director resigning from a board. In certain matters, the DOJ published a statement about it.

That was then.

In a speech last month, Kanter suggested Section 8 violations would be treated differently. Explicitly, he said:

“[the DOJ would] not hesitate to bring Section 8 cases to break up interlocking directorates.”

Later in the Financial Times he made it clear that there was going to be enforcement of Section 8.

Paul Weiss looks at this willingness of Kanter to litigate. Therefore Paul Weiss warns that Section 8 issues may be more difficult to resolve moving forward. The law firm speculates that the DOJ could now insist on a consent decree. That would require a court filing, a period for public comment, and eventual approval by a judge.

Consequently, concludes Paul Weiss, private equity funds should pay particular attention to possible Section 8 issues when structuring deals. Also they should periodically evaluate their portfolios for these issues as companies’ businesses change. Here is a scenario Paul Weiss presents: Companies that are not initially competitors may become competitors as product and service lines change.

FOR MORE CLARIFICATION

 On the Client Memorandum, Paul Weiss experts in these issues are listed, with their contact information. The law firm has a Private Equity Practice.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for professional services firms such as Paul Weiss.

 

The Purpose-Driven Corporation in Era of ESG: But, What Is the Purpose and What Are the "Right" ESG Values?

It's the buzzy phrase: the purpose-driven corporation. Recently, Forbes connected the dots on that and Environmental Social Governance (ESG) values. It indicated that leading with purpose is the key to ESG.

AMBIGUITY ABOUT PURPOSE OF CORPORATION, ESG VALUES

Unfortunately, there is no consensus about (1) what is the purpose of the corporation and (2) what is the right thing to think and to implement as behavior. ESG has fragmented into myriad mandates about corporate values and conduct.

IN-HOUSE LEGAL

Meanwhile, in-house legal has to guide the corporation and its individual departments through everything from daily decisions to governance. Simultaneously, as Wall Street law firm Paul Weiss hammered last January in Corporate Counsel, ESG itself has changed how in-house lawyers should approach and do law. 

THE 4-POINT GUIDE

How to do that? In that Cororate Counsel article, Paul Weiss Chairperson Brad Karp and the law firm's Chief Sustainability-ESG Officer David Curran provided a 4-point guide:

Reinvent Playbooks. The conventional ways are no longer adequate. That is primarily because ESG issues spill over to multiple corporate departments and lines of business. 

They recommend:

"Legal teams must be involved with HR, investor relations, finance, and business units to encounter ESG issues. Lawyers are in an ideal position to coordinate disparate parts of an organization and fill important gaps."

Ensure Department Membres Understand the Unique Aspects of ESG. Because there are so many gray areas in ESG, traditional methods of conducting legal business have become anachronistic. Those old approaches, of course, are: researching precedent and applying law. What is needed is the ability to have an interdisciplinary mindset and experience leveraging that. Among other competences in-house lawyers need, hammer Karp and Curran are to:

" ... make sure public disclosures align with ESG goals, structure board committees to oversee ESG risks and opportunities, and develop systems for monitoring and measuring ESG progress."

Validate ESG Data. So much depends on that, ranging from conformance to ESG metrics to the criteria required for Sustainable Investments. The growth of that investment niche depends on how that data is configured.

 Karp and Curran posit: "Lawyers can pressure test their data using many of the same models and compliance frameworks developed to ensure that companies are in compliance with anti-corruption laws."

Be Aware of ESG Risks in Mergers and Acquisitions and IPOs. Much of ESG is still new to lawyers. Therefore, it is all too easy for them to "not look" where the risks can be to corporations in this new era of ESG values. They could miss what might not have been a red flag in pre-ESG times. Essentially, so much has changed. 

They warn:

"All it takes is one weak link in a supply-chain agreement or a board member's past bad behavior - to break the chain and put the company's reputation at risk."

SHIFTING OUT OF ABSOLUTES

Obviously, just about everything associated with ESG is a work-in-progress. Absolutes have no place in that. Those range from the rhetoric to the scope of the in-house legal department.

Over the years Jane Genova has covered major corporations. Now and then she does freelance communications assignments for Paul Weiss and a number of other law firms, both defense and plaintiff. Connect with Jane at janegenova374@gmail.com.

Accounting, Trust/Corporate Formation, and Management Consulting - June 7th Deadline for Enforcement of Biden Administration Russian Sanctions

The deadline for all this is June 7th. And on the way to that date the nuances of the most recent sanctions agains Russia could change. The burden on keeping up-to-date on this is on those operating in professional services accounting, trust/corporate formation, and management consulting which are directly involved with or have a nexus to Russia.

As many already know: The latest ramp-up in sanctions targeting Russia by the Biden Administration has a two-fold objective. One is to prevent those in the loop from using certain US services to create the wealth to fund the Putin war machine. The other is to close loopholes in evading sanctions. 

BACKGROUND

In its Client Memorandum, Wall Street law firm Paul Weiss provides the background on these most recent sanctions about certain services, the details, implications, and the key takeaway. Its chairperson since 2008 is Brad Karp.

On May 8, 2022, the sanctions were imposed through a new determination under the Executive Order 14071, “Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression.” Here is the original E.O. 14071, issued April 6, 2022. The effective date for the implementation for the new sanctions is June 7, 2022.

Along with that, the Office of Foreign Assets Control (OFAC) issued another determination. That imposed sanctions against any person intending to operate or has been operating in Russia’s accounting, trust and corporate formation services, and management consulting sectors.

IMPLICATIONS

It is the business of Paul Weiss to connect the dots on government initiatives and identify the implications for both companies and individuals.

Paul Weiss highlights these:

US companies and other entities engaged in accounting, trust and corporate formation, or management consulting. Even if those services aren’t their core business, they should assess if the new sanctions affect them and understand the enforcement risks.

Non-US Companies. Those engaged in business with a nexus to the US also have to assess if the sanctions apply to them and calculate the enforcement risks.

Ongoing determinations. It is likely the OFAC will continue to add on determinations pertaining to what services will be prohibited to export to Russia under E.O. 14071.

Individuals. When it comes to evolving sanctions under E.O. 14071 to other kinds of services, it is anticipated that individuals will also have to conform. Those individuals include US persons and those who are not.

Restrictive export controls. Those apply to myriad forms of higher technology, including software.

THE NUMBER-ONE TAKEAWAY

What should be obvious is that for two and a half months US sanctions targeting Russia have been a work-in-progress. Over and over again in its analysis Paul Weiss hammers that because both the objectives and the content of those sanctions continue to evolve, business and individuals must monitor the actions government is taking. Paul Weiss’ mission is to keep the business community up-to-date on re-interpretations, extensions, and additions.

FOR FURTHER CLARIFICATION

The Paul Weiss sanctions update lists a number of experts within the firm who provide additional insight and guidance.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance communications assignments for professional services firms such a

Is Anna Delvey aka Anna Sorokin Having Fun With Us Again?

From the Ice detention center in Goshen, New York Anna Delvey aka Anna Sorokin announced the formation of her law firm, reports New York Magazine. It's called Delvey & Daughters PLLC. It will only accept the retainer payment in Dogecoin. 

Since Delvey has no legal training - except by omosis through her own trial at which she was convicted - she may be having fun with us. Yes, once again, she could be spinning together a fantasy world. 

Those of us in the creative professions understand fully the satisfaction Delvey might derive from creating her own universe. This one which most agree is "reality" can be painful in how boring and predictable it is. Yet, society pushes us to be in that rule-bound  box for our personal lives and what we do to bring in income. 

Perhaps Delvey simply decided she won't go near that box and she will accept the consequences. Also, there is the possibility that she will study for a law degree.

No matter how that might play out, she will continue to fascinate us.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.