Law And More

Employment Contracts - Non-Disclosure Clauses and Other Mandates Which Must Be Made Bullet-Proof

The negotiation part of Megyn Kelly's exit from NBC ended last Friday. The former Fox political commentator got her full $69 million, despite an early departure from her contract. 

But the negative consequences of its ill-fated hire will play out for probably much longer than the television network could have anticipated.

At the top of the list of the fall-out could be the influence, power, and very career of network head Andy Lack.

In the New York Post article about the payoff to Kelly, Lack is cited for poor judgment. Among his "sins" was hiring this abrasive personality for a soft newsmagazine in the evening (which had been pitted against hard-hitting "60 Minutes") and the folksy late-morning segment of "Today." Kelly couldn't engage an audience.

Another error in judgment was allowing Kelly's compensation to be public. Success in television broadcasting requires team work among talent. Once the $69 million number reached insiders, it became the night of the long knives. Kelly was frozen out. That was when she had no depth of understanding of softball television. 

Could Lack wind up the scapegoat? That probably depends on how much mischief Kelly could indirectly cause.

The negotiations took so long because of the battle over what Kelly could disclose about her ordeal at NBC. That means she has an agenda to push back. She is also determined for a comeback through her strength: political reporting. With the 2020 election on the horizon, she should be receiving job offers. Any success she produces in her Next will reflect poorly on how NBC managed this star. 

A third negative spinoff could be a hit to the collective confidence at NBC. It's not difficult to conclude that it hasn't yet healed from the allegations surrounding the forced-out Matt Lauer.

Meanwhile, ABC keeps hitting homeruns.

With David Muir as anchor, its evening news programming is number-one.

Muir has taken on the mantle of a comforting Walter Cronkite for these unusual times.

Aging "20/20" is keeping the juices flowing with blockbuster two-hour segments about real-life puzzles.

Among the winners had been the probing of why Colorado husband and father Chris Watts might have committed the triple murder of wife and children. A smart move, there was no definitive explanation. More recently, we were left to connect the dots if "Baretta" actor Robert Blake was guilty of murdering his wife Bonny Bakley. 

The bottom line on the Kelly mis-hire is that she is proving to be no one to mess with. She seems to combine a Machiavellian mindset with training as a lawyer. For a while, she had been an associate at BigLaw firm Jones Day. Any organization hiring her better create a bullet-proof contract for everything ranging from the mandate to be a team player to non-disclosure before, during, and after the hiring.

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Rajat Gupta - Indian-Americans Predicted a Comeback, At Least a Partial One

It was a different time.

Back then the nation could still be stunned.

Yes, it was before the iconoclastic dynamics of the campaign of Donald Trump and his even more disruptive U.S. presidency.

Former head of McKinsey (prior to the investigative reporting about it by The New York Times and The Wall Street Journal) Rajat Gupta was accused of insider trading.

That pertained to what he had picked up as a Goldman Sachs board member.

Most were stunned. Both here in the U.S. and around the world. 

Despite his denial of guilt, which continues today, he was convicted in 2012. Sentenced to two years in prison and then house arrest, he finally became a free man again in March 2016.

When I covered those developments for this blog, the Indian-Americans I spoke to predicted that Gupta could re-built his reputation and re-establish a career in India. There he was revered, both as a business leader and a philanthropist. 

And, as Kaverie Bamzai reports in the December 3, 2018 edition of The Print in India, that is what has happened. Business executives there as well as those associated with IIT Delhi have made it possible for him to network at a high level in India.

It is the publishing house in India - Juggernaut - which is producing his memoir. That is due to be out early this year. 

The question is: Will the American business community forgive him and allow him back in? So far, McKinsey will not re-instate his name in its alumni directory. 

The memoir, if it gains traction in the U.S., might create a second chance for him here. 

But, it's important to remember that America has its own rigid value system.

Unlike hedge fund guru, Steve Cohen, Gupta was personally convicted. Cohen was never even arrested, although a number of his employees went to prison for insider trading. Cohen is back in business (although his hedge fund Point72 is stumbling in this volatile economy).

See, in America, getting caught is a no-no. The late crime writer Dominick Dunne hammered that reality in his novels which thinly disguised real life misdeeds by the rich and powerful. 

In addition, it's a lot easier to find redemption if you admit you did wrong. Gupta continues to position and package himself as a victim of injustice. Watergate legal villain Chuck Colson mastered a roaring comeback as a spiritual leader because he embraced his sinfulness. 

Overall, the odds seem against Gupta for an American comeback. 

Out of the Box Communications = Unexpected Results

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John Roberts' Public-Relations Mandate: Preserve Respect for SCOTUS

Chief Justice of the U.S. Supreme Court John Roberts has been a busy guy - and not just with legal issues.

Since the appointment of Brett Kavanaugh to SCOTUS, Roberts has embraced the public relations mission of preserving respect for the highest court in the land.

His message has been: The Court is not partisan. It is neither Democrat nor Republican. So devoted is Roberts to the meme that some anticipate he has replaced the retired Anthony Kennedy as the swing vote.

Here is the latest on that campaign from Adam Liptak at The New York Times. As Liptak reports, Roberts has the track record on rulings to back up his contention of the Court's not being partisan.

So much has this been the situation that there are conservatives who are angry at Roberts. That disenchantment probably occurred when the Court didn't rule ObamaCare illegal. 

Kavanaugh can also prove a disappointment. Recently, he refrained from pushing back on payments to Planned Parenthood. That could have been the operation of an open legal mind. Or it could have been a Machiavellian move to position and package him as objective. Therefore, when he rules on bigger issues such as abortion he won't be perceived totally as alt-right.

As many recall, SCOTUS doesn't have to be the last legal word on a matter. In 2007, it tossed the Lilly Ledbetter pay discrimination age on the grounds that the complaint should have been filed within 180 days of employment. The immediate push-back was that it is unusual if not downright impossible for new employees to be aware of compensation discrimination within that timeframe.

By 2009, Congress enacted the Lilly Ledbetter Fair Pay Act. Yes, it overrode SCOTUS. With that as precedent, surely Congress is aware of how it can effectively gut the power and influence of SCOTUS. 

Roberts' instincts are right. The legitimacy of the U.S. Supreme Court is in play. If both the U.S. House and the U.S. Senate are controlled by progressives, they can make the highest court in the land be perceived as a kind of goofy toothless institution. 

Out of the Box Communications = Unexpected Results

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Public Nuisance as Legal Power Tool - Opioids, Lead Paint, Catholic Church

Sherwin-Williams shareholders, beware.

The concept of public nuisance has evolved into a power tool. And plaintiff lawyers as well as governmental units are using it to drill down justice (and money) from that former manufacturer/marketer of lead paint.

Another recent development in the leveraging of public nuisance is, reports Law.com, the Ohio U.S. District Judge Dan Polster's ruling that public nuisance, as well as RICO, can be used against opioid manufacturers and marketers.

It had been former OH Attorney General, now Governor, Mike DeWine who filed public nuisance lawsuits against Pharma. Since then those has been settled. Opioids has been a major problem in OH.

In addition, public nuisance has been used against the Roman Catholic Church. That can be the most effective weapon against that institution. 

Meanwhile, both the legal industry and the public relations business have to reconfigure their strategies to accommodate the growing popularity of public nuisance. Here is my recent article, published in Odwyerpr.com.

Litigation Communications

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Media Outlets - They Could Be Playing Dershowitz

Brand Dershowitz. That had been considered among the the most powerful in criminal law.

Now, some watchers of retired Harvard Law professor Alan Dershowitz are speculating that he has put his branding at risk through his public statements about legal matters in TrumpWorld.

Actually, after his Monday tweeting about Michael Flynn, there has been a movement beyond speculation to downright puzzlement: What the hell is Dershowitz doing to his legacy? He asserted that lying to the FBI is not a crime unless lying is material. 

There may be a very simple explanation. Dershowitz, at age 80, seems determined to remain prominent on the legal radar.

Therefore, he's vulnerable to every trick by media outlets to play him. The media business is a brutal game.

That's exactly when crisis czar Gene Grabowski hammers the importance of communications training. A partner at kglobal public affairs, Grabowski recently issued this manifesto Download CommunicationTrainingGeneGrabowski

Put bluntly, Dershowitz seems to be outfoxed by the Fox-like journalists and commentators. They give him a platform to pontificate. He falls for it, all the time.

The 1.5 minutes of air time or the headline in text are gnawing away at his legacy. The first line in his obituary could read: "After becoming the informal legal apologist for the Trump Administration, criminal law expert Alan Dershowitz became vilified - and ridiculed." 

As a communications coach for the over-50 in their careers I have noted that a major threat is this: becoming invisible. Unless they are aware of that they can undermine their image by compulsively chasing attention. Constituencies, ranging from the media to their enemies, frequently move in to take advantage of their neediness.

Out of the Box Communications = Unexpected Results

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CBS Paying Les Moonves' Legal Fees - The Crazy World of Executive Contracts

The Les Moonves legal narrative may have long legs.

Yes, CBS fired him for cause and denied him the $120 million severance he could have received.

But Moonves could challenge that board decision in confidential arbitration and attack CBS in a lawsuit for breach of contract. Meanwhile, CBS would be paying all the Moonves' legal fees to do that. Moonves' lawyer is Andrew Levander. 

That's how his executive contract was written.

CBS shareholders might be hopping mad about that since the corporation could have removed that contract provision when Moonves stepped down last September. Here are more details from James B. Stewart at The New York Times. 

The world of executive contracts can be downright crazy.

For instance, Stewart also notes that Goldman paid some of the legal fees of board member Rajat Gupta. That was despite the reality that he was on trial for illegally passing on information about that corporation. In 2012, Gupta was convicted of insider trading but acquitted on other counts. Therefore, it remains legally ambiguous if the government had proved its case. So, Goldman hasn't pushed to have what it ponied up for legal expenses reimbursed by Gupta. 

Moonves is maintaining that he is not guilty of sexual harassment. Taking action - both through arbitration and litigation - could be his strategy to support that assertion. 

Such moves would provide a platform for a comeback. The guy is 69. He could have a decade or two more of being professionally active. At age 88, Clint Eastwood has out there a new film "The Mule." Critics praise it and things are going well at the box office. In addition, near 90, media tycoon Rupert Murdoch is no slouch. 

Moonves is a player. It's in his self-interest to be Machiavellian in exploiting legalities for restoring his brand. Unlike England, America is the land of second chances.

Before his death from an accident, Roger Ailes was hatching a plan to launch a conservative cable network to challenge his former employer Fox. Had he lived, it could have panned out. 

Years before that, Ailes' personal public relations representative Bob Dilenschneider had been forced out of his top job at Hill & Knowlton. Soon after, Dilenschneider set up a public affairs boutique with offices in Manhattan and Chicago. The business continues to chug along, even though Dilenschneider's employees give him a rating of 1 out of a possible 5 on Glassdoor. 

The reality of American style capitalism is that success has many entrance ramps. As yet, Gupta hasn't taken one of them. 

In 2019, the business, entertainment, and legal media will be watching Moonves. He could provide the comeback story of that coming year.

Out of the Box Communications = Unexpected Results

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Paul Weiss - Totally White, 11/12s Male Partner Class of 2018

Talk about visually challenged.

Elite law firm Paul Weiss posted on LinkedIn (since deleted) a photo of the partner class of 2018.

The 12 new partners were all white. Only one among those white folks is a female. Here are more details from Law.com. 

No surprise, in this era of the push for diversity in the workplace, the internet pushed back. In particular in-house counsel warned that clients would increasingly require a diversity report before hiring a law firm. 

The head of Paul Weiss Brad Karp didn't hide. He did respond. He used the in buzzphrase of 2018: will do better.

Overall, the culture at Paul Weiss doesn't seem like a human disaster. Its rating on Glassdoor is about average for large law firms: 3.7, out of 5. 

In contrast, at the Cleveland, Ohio headquarters of elite Jones Day, the Glassdoor rating is 2.7, out of 5. That firm has what many describe as an oddball culture. The culture could blow up if the Trump Administration implodes. Jones Day has become the go-to law firm for Everything TrumpWorld. Among current clients and in chasing new business there could develop the phenomenon of guilt by association. 

Out of the Box Communications = Unexpected Results

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Those Two JDs from Yale Law School Whom We Can't Forgive

In Canada, Scotiabank Arena had lots of empty seats. They were vacant because, as Maureen Dowd points out, The Clintons have become irrelevant to Canadians. 

In America, in addition to becoming weary of that brainy duo from Yale Law School, we have decided not to forgive them their sins. We have waiting a long time willing to bestow on them redemption. But they simply haven't shown signs of having learned anything from the suffering that comes with sinning.

In contrast, there is Monica Lewinsky. Through myriad venues she has told us how suffering had changed her. Those psychic and external shifts are palpable.

She engages with her diverse audiences as a real human being who has been through the wringer. With self-forgiveness she confesses how she was culpable in the bizarre sexual encounter with The Big Creep (Bill Clinton). In turn, we forgive her. 

What is puzzling is why the two smart and manipulative Clintons can't conjure up images for themselves which would fit the times. Instead they cling to the personas which were power tools when they had influence. 

The influence has mostly faded. The movers and shakers are fresh faces such as Alexandria Ocasio-Cortez and rebrands such as Barack Obama. 

The influence will be a total wrap when the Drudge Report ceases any link to media coverage about that. We can cover that one year of that non-coverage with a flashing blue light.

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Jones Day - Possible Collateral Damage in Fall of Trump Administration

It was a tipping point: the Michael Cohen plea. 

The odds are greatly improved on the fall of the Trump Administration.

Of course, those sorts of shifts don't happen overnight. Baby boomers recall how slowly the process was which achieved the resignation of U.S. president Richard Nixon. 

But, as with Watergate, there will be plenty of collateral damage beyond the Trump Administration itself. 

One influence entity which could get whacked is elite law firm Jones Day.

Since its then-partner Don McGahn represented the Make America Great campaign, Jones Day's signature has evolved into the go-to firm for the Trump Administration.

That branding has served it well. As Joe Patrice points out in Abovethelaw.com, Jones Day has been aggressively promoting that contact. That's what "network marketing" is all about.

However, every professional, from power player to the wage slave whose boss gets fired, knows the brutal dynamics of guilt by association. 

Jones Day branding and actual business could be badly wounded if the current U.S. president steps down - or worse. The worse could include fighting back against allegations and being impeached and/or being convicted of a serious crime.

Not that Jones Day is entirely sitting pretty right now.

It not only lost the trial and all the appeals for client Sherwin-Williams in the California public nuisance lead paint class action lawsuit. Despite the insight available from continually hiring former U.S. Supreme Court clerks, Jones Day couldn't get that high court to review Sherwin-Williams' conviction. Now, as Forbes reports, predictably other municipalities are filing public nuisance class action lead paint lawsuits against Sherwin-Williams. It's possible lead paint could mutate into the next tobacco.

On Glassdoor, at its headquarters in Cleveland, Ohio, employees give it a 2.7 rating out of a possible 5. The overall beef is that management doesn't seem to care. 

At the Pittsburgh, Pennsylvania office, partner Laura Ellsworth ran unsuccessfully for governor. On the plus side, that got her name into the politics loop. On the negative, a loss is a loss.

America operates a binary game: You will or you lose. The white space in between doesn't tally.

Ellsworth's obituary could start with that loser of a campaign. Or, it she acquires political skills and the right contacts, the first sentence in the obituary could salute her accomplishments in elected or appointed office.

Takeaway: If the Trump Administration slides into ruin, the barbarians at the gate could go on the attack against Jones Day.

Other lawyers may be able to poach some of its business.

Law schools could boycott its recruiting outreach on campus.

And, who knows, after the heated exchange between SCOTUS chief justice John Roberts and Trump, clerks could be discouraged from being interviewed for full-time employment at Jones Day.

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Such a Different Time in American Culture - Currently, George H.W. Bush Wouldn't Be Electable or Marketable

George H.W. Bush represented the last of what might have been praiseworthy in WASP culture - that is the White Anglo-Saxon Protestant ethos.

WASPS, such as those living in upscale charming New England towns like Greenwich, Connecticut, were known for a code of conduct. That included good manners or decorum, devotion to establishment institutions including Ivy League schools, and public service. 

WASP influence had dominated until the counterculture of the late 1960s. It was then that other groups in America pushed for their values to be recognized. In English Departments in universities there began to be battles about including the works of non-WASP authors in the curriculum. Williams Shakespeare was a dead white man. 

Soon enough the WASP style began to be derided. For example, "preppy" was positioned and packaged as stodgy. WASP rhetoric, including in corporate, elicited smirks. As a ghostwriter/speechwriter, I was on the front lines of helping business executives become conversational - that is, non-WASPY.

Today, of course, the WASP ethos is downright vilified, at least in a growing number of circles. The most aggressive voices in our society have made old wealthy Protestant men the symbol of oppression. And wrong values.

No, you don't want your children growing up in the seemingly closed society of Greenwich, CT. They will never survive the rough and tumble of life in the 21st century. Locate your family life in the diverse (now-gentrifying) Jersey City, New Jersey. The kids will have to be alert about crime. That's good. You will train them how to hop on the PATH train to Manhattan. No eye contact. 

In short, to get anywhere, at least anywhere that's fun, you can't be known as having relatives who came over on the Mayflower.

Instead the cool is for one's background to reach back to steerage in a ship docking at Ellis Island or one operated by those in the slave trade. Those are feeder pools for slots that are game-changers.

A classic example is African-American Elie Mystal who heads editorial at Abovethelaw.com. He started out doing the WASP thing: Harvard undergraduate, Harvard Law School, white-shoe law firm. That either broke him and/or he had the strength to break free.

Right now, Mystal represents the new code for right values, at least among the young or those who pride themselves on thinking young. 

Meanwhile, English departments find it increasingly hard to market what they represent - or used to. To survive, they would be smart to reposition and repackage themselves as "Communications" or "Media." 

In fact, the WASP tradition of the more education the better in elite institutions is being questioned. Sure, the college bubble hasn't burst yet. Sure, there's stiff competition to be admitted to those prep schools in New England. After all, George H.W. Bush had attended Phillips Academy. 

But applications to M.B.A. programs are down. Harvard Business School? The emerging meme is to view it as the laboratory for creating ethical Frankensteins.

For the next few weeks many in the nation will come together to honor former president Bush. But many others will think: Good riddance, that's the end to a system that kept us down or in the shadow.

Attention is the currency of the 21^st century. Jane Genova helps you get it for products, services, points of view, causes, branding, careers after-50, and college admission.

In addition, this blog welcomes sponsored content.

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