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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Paul Hastings' Seth Zachary Reflects on Changing Law Firm Sector - Part of That Had Been Shinyung Oh's Email

On Reuters Legal, Paul Hastings Chair Seth Zachary chronicles how much the law-firm sector has changed. Essentially, it's mutated from a profession to a hard-nose business. 

But also during Zachary's 22-year tenure had been another kind of shift. That was that associates found their voice. At least a little bit. Before that they were essentially silent about everything. Fear of being blackballed shaped behavior. The law firm niche had been very old-line. 

In 2007, over at Sullivan & Cromwell, associate Aaron Charney sued over alleged discrimination about sexual orientation. But, if we buy into New York Magazine's take about what drove the lawsuit was disrespect by partners. There was a settlement. Charney went on to another good law firm job. 

At Paul Hastings in 2008, it was the email by fired Shinyung Oh which expanded that push back on total powerlessness. Not long after her miscarriage she was terminated. Before that allegedly she had been told she was in good shape in terms of her employment. She interpreted the firing as a stealth layoff, that is, the law firm was getting jittery about financials. 

So instead of ducking out of the law firm with her tail between her legs, she transmitted an email throughout Paul Hastings explaining how she interpreted what had gone down. Her mission was to liberate other associates who had been put through the same thing from the shame. 

Like most termintated or simply unhappy lawyers, Shinyung Oh had a rough time reinventing herself in another career. Currently, according to her LinkedIn profile, she is an Associate Marriage and Family Therapist in Solana Beach, California.

Today the associate voice is being expressed through doing a lateral. On Bloomberg Law, Roy Strom confirms that the expected attrition is happening.

In addition, anonymous leaking to media outlets such as Abovethelaw has become standard.

In his Reuters interview Zachery also notes that the organization is less top-down. Young talent is being nurtured. After all they are the future of a business which has to keep in sync with technology, clients demands, and extreme poaching. 

As law firms struggle to settle into the return to the office the voice of associates could be raised in unexpected ways. That is what to observe. 

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U.S. House Votes to Hold Steve Bannon in Criminal Contempt - The "Evil Genius" Atypical among Trump's Followers

The vote by the U.S. House was 229 to 202 to hold prominent Donald Trump ally Steve Bannon in criminal contempt. That was for not complying when subpoenaed to testify about the January 6th riot against the U.S. Government.

Liz Cheney had been among the GOP members of the House who voted for criminal contempt. She is carving up a brand identity about opposing what she perceives as the worst of conservatism.

Called an "evil genius," Bannon is one of the most interesting players to have surrounded Trump. He has an almost surreal sense of independence. So many of other followers seemed to be the typical sycophants who would do metaphorical backflips for proximity to power.

In his brisk-selling book "Disloyal," former Trump lawyer Michael Cohen admits how swept up he had been in the force field Trump had been able to conjure up.

The seduction of power can be greater than the lure to acquire lots of wealth.

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More Dirt Dished about Bill Gates - Did WSJ Hold Story Until After His Daughter's Wedding?

"More than a decade earlier [than 2019 expose of inappropriate behavior], Microsoft executives discovered emails between Mr. Gates and a midlevel female employee at the company while Mr. Gates was still an employee at Microsoft and chairman of the board, according to people familiar with the matter. In the messages, the then-married Mr. Gates was flirtatious and propositioned the female employee, the people said." - The Wall Street Journal

That WSJ story by Emily Glazer was published today as an exlusive. Therefore, it is to be assumed that the research had been "in the can" before today. And maybe even a draft of the article composed and passed along through approval channes before today,

So, some of us ordinary people are wonding this: Was it in deference to a powerful, wealthy man that the article was not published unitl the man's daughter had celebrated her wedding?

Yesterday, a day before the article, Bill Gates and his former wife Melinda Gates walked Jennifer Gates down the aisle. It ws one of those billionaire special events. You bet, more dirt about Papa Bear could have marred the aura.

Of course, this is just speculation by an Everywoman.

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Mayer Brown's China Crisis - Had Paul Weiss' Brad Karp Predicted This Sort of Development?

Mayer Brown faces a possible boycott from most or all of the organizations which had used or which might in the future use its legal services in China.

That crisis had been set in play by what could be interpreted as a political stance. That involved the existence of the "Pillar of Shame" monument.

As Bloomberg Law reports, Mayer Brown terminated Hong Kong University as a client. The client had wanted the statue pulled down. The law firm was responding to political nudges from Europe and the United States. Here is Law and More's analysis of that development.

In essence, it's not a stretch to posit that Mayer Brown got caught in a version of an ESG (Environmental Social Governance) conflict.

"Pillar of Shame" represented social values. That was the political playing field. In time case studies will deconstruct if Mayer Brown could have dodged that bullet. The current reality is that it didn't. There's no predicting the extent of the damage.

There are plenty of those kinds of disputes overwhelming the clients of Big Law. Coca-Cola is a classic example.

But now, as Paul Weiss Chairman Brad Karp had predicted, the clash of values has seeped into the decision-making and actual business of the law firm itself.

The gallows humor could be that law firms themselves need the guidance of an ESG practice. Had Mayer Brown been guided from the get-go on this from a sophisticated experienced ESG law practice there might not have been this global flashpoint - and the serious threat to a law firm's business.

In an interview with Bloomberg Law“ Karp had observed:

"ESG is going to affect every aspect of the law firm world, law firm operations, and the interaction with their clients going forward ... The law firm community hasn’t picked up on how profound that will be.”

Maybe now it has.

Actually, because progressive law firms have already adopted aggressive social justice positions and initiatives, they could be sitting ducks for being targeted for challenges ranging from bad press to boycotts. 

Karp also had been a visionary in picking up on how the ESG ethos could become the perfect storm for corporations. Paul Weiss created the first formal ESG practice. That was way back in April 2020.

Here is how it shaped that mission:

"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."

There is no predicting if ESG will be a game-changer in business values. Those include defining the purpose of a corporation. What is known now is that law firms themselves have to assume they are a direct part of that almost surreal force field.

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The Return to the Office Before the Reopening of the Office - Baker & Hostetler, et al.

That shift to power to associates really didn't happen, did it.

Increasingly, reports Reuters Legal, law firms are mandating associates back to the office.

The latest to make the announcement is Baker & Hostetler. Officially, the office will reopen January 4, 2022. But, there's also an encouragement to lawyers to be in the office, as of October 18, 2021, on Wednesdays and Thursdays.

That law firm made it explicit that it sort of expects lawyers to be in the office even before the official reopening. Other law firms have put in the memo only a nice welcoming to associates who "want" to be working in the office before the official reopening date.

If this talks and smells like a form of gaslighting, maybe it is. I vividly recall how Corporate America played with my head when I worked there full-time. 

Meanwhile, Kirkland & Ellis seems to be sending the "let them eat cake" message to returning to the office lawyers.

It announced that there will be free eats at the office for them. Breakfast, lunch, and snacks.

What most of us know about high-pressure deadline-oriented tasks is this: Forget about eating. That just can't be on our minds. Any way, eating makes us sleepy. 

What might have demonstrated authentic caring could have been folding into the paycheck an allowance for away-from-home meals. After all, they had been liberated from those expenses when operating remotely.

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The Great Firing & Suspected Leaks: Will This Shut Faucet Gush to Media and Other Reflections on Turbulent Times

What may have begun is The Great Firing associated with alleged leaking to the media.

Consequently, media outlets could find that the usual insider tipsters might go silent.

Legal tabloids like Abovethelaw in the U.S. and RollonFriday in the UK had developed their brand and business from leaks from internal sources. If those go kaput so could lots of their traffic.

Simultaneously, employers could establish more effective detection systems to identify leakers. 

At Netflix, the black pregnant leader of the trans resource group has been fired, reports The Verge. That's because of a supsicion of an unauthorized transmission of confidential data to Bloomberg. It had been allegedly related to how much Netflix paid for Dave Cahppelle's "The Closer" and the audience reach. The group had planned a walkout on October 20. Usually Netflix is a transparent player which encourages candid conversations. This development may be atypical. Or it could signal a shift in the culture.

Earlier, Ashley Gjovik, a former senior engineering program manager, was terminated in relation to Apple's antileak stance, reports 365NewsChannel. The specifics of this had been vague at the time of her termination.

But a week after that on September 15, a letter arrived fom law firm O'Melveny & Myers. Its spelled out details of intellectual property she had been accused of leaking.

However, she is in her final year of law school and asserts that the antileak employee policy as well as the strict employee handbook is illegal. Prior to her termination she had been outspoken in her criticisms of Apple. One beef had been about its association with alleged toxic chemicals.

Accusations about leaking, particularly data related with trade secrets, could be the legal tool employers leverage to tame activist employees.

Meanwhile, as the Rock Center for Coporate Governance at Stanford found in its research, that worker unrest is a major concern to the general counsel. Here is my article on such an issue published in O'Dwyer Public Relations. 

Both corporations, including its in-house legal department, and the employees are swept up in the chaos of changing values related to capitalism.

The Milton Friedman orthodoxy of the primacy of shareholder value is breaking down. There are growing demands for a broader focus. That is, there should be accountability for stakeholders ranging from employees to planet earth. Those frequently are summed up under the umbrella term "ESG,' that is, Environmental Social Governance.

Among the many understandings of “ESG” Investopedia’s is the most user-friendly. Essentially, it classifies ESG as a set of criteria for producing metrics on:

• The company's environmental imprint on planet earth.
• Its accountability for the needs of all stakeholders.
• The rules for operating the macro affairs of the corporation. That is, governance. (Be it WeWork or Theranos the alleged lack of proper govenance has become high profile.)

This confusion and its legal, political, stock price, branding, employee relations, and community implications have set in play a new kind of practice in large law firms. The shorthand title for it is "ESG."

The first in that niche had been Paul Weiss. That had been way back in April 2020. Its chairperson Brad Karp picked up on the perfect storm brewing. Here is how Paul Weiss had configured its ESG practice:

"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."

During an interview with Bloomberg Law, Karp added that ESG was not only impacting corporations. It was also going to be a force field in law firms. He noted: "'ESG is going to affect every aspect of the law firm world, law firm operations, and the interaction with their clients going forward,' Karp said. 'The law firm community hasn’t picked up on how profound that will be.'”

A sign of this upheaval about the purpose of a corporation, my recent article in ST Magazine on sustainabiity is receiving  considerable attention. 

Another aspect of employee unrest is striking.

In a very open manner - not through supposed stealth leaking - workers again are resorting to walkouts. Those, such as at Deere, are stragetically timed for the worst time for the employers. This is the season of harvest for Deere customers and they could be left out there without the parts their equipment needs.

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Big Law - Some Rashomon Moments

From the time of Jeremy Blackman's satiric blog "Anonymous Lawyer" to current best-seller "The Caesars Palace Coup" Big Law has been vilified. That's the way it has been.

The partners are depicted as feudal lords.

Law firms defending the likes of Harvey Weinstein become fodder in media such as The New Yorker. 

The up and out system which results in only about one out of 10 associates making it to partner is interpreted as a destroyer of souls. There is no type of Greek Chorus chanting: Hey, you knew the deal when you looped in. 

Netflix is having a 10-part series derived from the novel "Partner Track." Negative, of course. 

And media sites such as RollonFriday and Abovethelaw which accept insider leaking from law firms are on side of the angels.

But that dark lens for viewing large law firms is only one. And Big Law isn't doing such as hot job pushing back on it through pro bono assignments, social justice outreach, and public-interest op-eds in The New York Times and The National Law Journal.

What those firms haven't unleashed is The Rashomon Factor.

As the Japanese film "Rashomon" showcased, there are myriad perspectives for interpreting just about everything. In that movie about a murder and a rape, the takeaway is how differently a number of people experienced it.

More recently, the film about flawed justice  in the 14th century "The Last Duel" also uses the Rashomon style. What is claimed to have happened - a rape - and the background events are configured into a variety of scenes of the same events. The story, incidentally, is true. 

Big Law has the resources to conjure up its own engaging Rashomon moments.

Do a 24/7 TikTok video of what goes on in law firms. Sure, block the confidential. And let the world decide if that's so bad. Viewers could be enchanted by the analogue of Tom Brady-type strategic planning and actual plays.

Follow a summer from the law office, back to law school, and back to the law office. Pan in on the struggles. Public opinion can assess the values of that world. The interesting part could be the shaping of a legal mind and resistance. Are humans wired not to think like lawyers? Add on a public interest tutorial on how do just that: Think like a lawyer.

Humor also is back in marketing communications. It's always been a power tool in messaging. Some will recall how presidential candidate Ronald Reagan blew up the age issue with a quip about Walter Mondale's "youth and inexperience." Here is a clip of that game-changer in the campaign.

Perfect would be an action-figure comic book. Let the world become engaged in how a chairperson like Larry Sonsini at Wilson Sonsini protects startups or Brad Karp at Paul Weiss mobilizes thousands of lawyers from law firms throughout America to work free on behalf of the victims of COVID. It's not only a prosecutor such as Jack McCoy from "Law & Order" who fights the good fight. 

And, yes, contract with designers (hopefully on a pro bono basis) to create video games about the weapons defense lawyers carry into combat. Empower players to make genius moves. Selling those games can provide funding for scholarships to law school for diverse students. 

Marketing communications. It’s about results. Not quantity. Not clickbait. Not even influence. Together we will get those results. Clients range from American Express to industrial accounts. Fees customized for your unique budget. Complimentary consultation - janegenova374@gmail.com.

 

Politico, Under Alex Springer Ownership, Putting Up Paywall, Expanding - And Other Shifts in the Influence Game

Large law firms are not only inherently highly political. Those making partner have had to master the politics. 

They also usually officially or unofficially are engaged in lobbying. On its website, Squire Patton Boggs positions itself this way: Global Connections, Global Influence. 

Therefore, it should matter to them that Politico will be changing in two major ways.

The Wall Street Journal reports that after Alex Springer completes its $1 billion acquisition there will be a paywall and also expanded coverage. Regarding the latter, it will be increasing its manpower by 10%.

The paywall could be the tipping point cutting out some of the constituencies law firms have targeted for influence. They will have to research what the readership, post-paywall, consists of. 

And, more news provides an opportunity to expand their reach. They can pitch more content and opinion pieces. 

On the other hand, The Hill remains without a paywall. Getting material into it can be a powerful placement. What had resonated for months in the worst of times for America had been Dentons global head Joe Andrew's op-ed on how many low-income had no choice but to go into the workplace when COVID began. That was in April 2020.

Like everything else, the influence game keeps changing.

Big Law, especially those with Wall Street clients, has to rethink its dependence on establishment media, ranging from The New York Times and The Wall Street Journal. Instead it has to figure out the right tone and content for sites such as Reddit and TikTok. Most firms also don't know how to get attention on the professional social network LinkedIn. When they post they rarely engage readers. 

In addition, are the progressive players in Big Law preaching to the choir?

So much of their outreach is to like-minded progressives. Not enough bridges are being built with conservatives. Yet, that force field is growing in power and reach. They have their messaging down cold. Also, there's no counting out former U.S. President Donald Trump for 2024. The Harvard CAPS - Harris poll found that 58% of those surveyed would vote to return him to the White House. 

Yes, Big Law has funds to invest in advancing its and its clients' points of view. But there is so much money floating around. In itself the money is simply the price of entry. It has to do more than just put up the bucks. 

Of course, the midterm elections are already being written off as a disaster for progressives. But so also could be 2024 and beyond.

Yes, conservative messaging is winning out.  "Woke Inc.," which contends liberalism is destroying democracy, is a best-seller: 734 ranking on Amazon. Authored by successful entrepreneur and first-generation American Vivek Ramaswamy it argues persuasively against just about every manifestation of the current social justice movement.

Yet, as Bloomberg Law points out, many law firms are competing to pile on more and more social justice cred. Again, they might seek more common ground with those who support Ramaswamy's reform of not only politics but also business. As for the latter, he wants business to return to all-business and away from stakeholder capitalism or ESG.

Meanwhile, the very notion of what's in the public interest is in play. 

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The Federal Judges - Street Justice Is Looking Better and Better

"In response to Journal articles on judges’ recusal failures, lawmakers are proposing far-reaching changes. A bill being drafted by House Judiciary Chairman Jerrold Nadler (D., N.Y.) and Rep. Hank Johnson (D., Ga.), would require judges to report financial transactions, such as stock trades, within 90 days ... Judges would also have to post their financial disclosures in a searchable database, and there would be civil penalties for recusal violations. The committee plans a hearing this month ..." - The Wall Street Journal, October 15, 2021.

The dance goes on. 

First, when the WSJ broke the story that those federal judges presided over cases in which they had a financial interest, there was shame.

That hovered over the judges even though they made myriad moves to position and package themselves as plum unaware of that ownership and its implications for their rulings. We smirked. Also, we experienced our confidence in the U.S. legal system go poof. Street justice is making more and more sense. That's what I grew up with in pre-gentrified Jersey City, New Jersey. It worked. The rules were transparent. It would have been crazy not to comply. And comply we did.  

Those denials and justifications by judges are continuing. That's even though the exposes are deepening. More recently, it's been disclosed that there were judges actively involved in financial transactions about their investments when overseeing a court procedure. Of course, federal law prohibits that.

The next steps in the dance could be not only legislation. The alleged miscreants could be hauled before some Congressional subcommitee or several of them. That' means being hauled before the media. That's a version of the perp walk. 

Also, smart defense lawyers will be busy pushing to have the cases they ruled on retried.  

When we connect the dots on all this we wonder: How is America exceptional?

The corruption seesms as systematic as in any banana republic.

With COVID easing, humor is back. It's time for a cartoonish documentary on the U.S. judicial system. Looped into that should be the lawyers currently in Big Law who had clerked for those judges. 

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