Law And More

Shootout at Ok Corral - Will Biden Administration or Facebook Walk Away with Brand Intact?

During this weekend it was the Shootout at the OK Corral. And only time will tell who will walk away with the brand intact. Both parties can't pull that off, not in this conflict. Only one will have its brand left standing. 

One which came locked and loaded has been, reports The Wall Street Journal, the Biden Administration. It contended Facebook was issuing misleading information about COVID vaccinations. It set loose on the Sunday talk shows U.S. Surgeon General Vivek Murthy. He contended that social media companies were not doing enough to clear up vaccine misleading data. 

The other who also showed up with guns blazing are the front lines from Facebook. They fired rhetoric that the Biden Administration failed to reach its goal of 70% of at least one-dose vaccination by July 4th. Also it blasted government with the reality that Facebook has established pop-up vaccination sites in low-income neighborhoods.

This is big government getting bigger all the time, which conservatives hate, set against private industry, which conservatives love. Meanwhile, the midterm elections are coming. The results of those could tell a lot who is better positioned in this and other shootouts.

This conflict could get a more more intense as the Delta variant spreads. 

The return of COVID, just in another version, could accelerate any correction in the stock market. Also, it could take the head of steam off the recovery. All that will throw shade on the Biden Administration.

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Delta Variant - Law Firms and Grey Swans

"Covid cases are surging in almost every US state with seven in the South seeing infections DOUBLE in two weeks and outbreaks mostly hitting areas with low vaccine rates amid spread of Indian variant" - Kate Dennett, Daily Mail, July 13, 2021.

No, this development doesn't constitute the Black Swan phenomenon. That is, what was not predicable but had game-changing impacts.

Instead the play-out of the Delta variant is a Grey Swan. This is, what could have been predicted but wasn't considered probable.

The implications of this kind of Grey Swan could be huge. But, likely law firms have embraced a wait-and-see mindset.

Back to square-one could be the decision as to where the work will be done. Instead of the angst of fretting over the the political and cybersecurity impacts of yanking remote there could be a simple universal defaulting back to total telecommuting.

With the COVID vaccination rate relatively low and Joe Biden's "running out of ideas," the courts could be closed again or the schedule circumscribed. Again, the trial we are all waiting for - "U.S. v. Elizabeth Holmes" - could be put on hold. Holmes' baby, due in July, could be a toddler before there is jury selection.

Then there is the forecasting of law firm revenues. No, it might not be another surge in PPP in 2021. 

The recovery might be not only stalled. Those operating all those economic and business the moving parts might find they are having a lot more challenge with all that. The recovery could go into reverse. 

Meanwhile, we could bear witness again to the tragedies of severe widespread sickness and death.

Back in the first-go-round of COVID, Brad Karp, Paul Weiss chairperson, mobilized  thousands of lawyers from law firms throughout the U.S. pro bono to invent the online Corona Relief Center. It gives a unique kind of access to victims of COVID for information about help, where it is and how to get it. 

The Relief Center website says: These resources – like the public health crisis itself – are constantly evolving.

That's a good thing. Those resources are needed again. Three cheers for Paul Weiss and all the other law firms which pitched in on that initiative.

Now, law firms have to back off from focusing on their long game. The next few weeks or the next few months could consist of just feeling around to identify what is and how to manage just that.

Gray swans can unleash as much upheaval as Black Swans. There is a zen mantra: "Clear thinking, don't know."

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Tax Transparency Becomes Most Recent ESG Mission - The Triple Bottom Line Messes Directly with THE Bottom Line

"Corporate tax departments are facing an under-the-radar element of ESG-focused activist investing that’s gaining traction and would more directly affect bottom lines than the addition of women and minorities to corporate boards or publishing environmental impact reports." - Bloomberg Law, July 6, 2021.

This push for tax transparency, along with the end of "tax planning," could be the tipping point for corporations to push back on The Triple Bottom Line.

They might have "gone along" with myriad triple Bottom Line (People, Planet Earth, Profits) or ESG (Environmental Social Governance) demands of investors and activists. But how they pay (or not pay) their taxes is embedded in the way business operates in America. At this point, they could decide it's time to push-back and maybe not in a stealth manner. 

For example, corporations have to stop House Bill 1187 from gaining any support in the Senate. That is all about tax disclosure. 

In the court of public opinion they have to get out that old-line message about the positive impact corporations have on the American economy. That had been standard in the 1970s. Recall that mantra: What is good for General Motors is good for the nation. It took lawyer-activist Ralph Nader to document that General Motors wasn't even good for the safety of the nation when it went on the road with its cars. 

But the public relations part could be tough sledding. The Biden Administration's agenda includes having corporations pay their fair share of taxes. This ESG outreach reinforces that message. 

Of course, corporations could also be turning to their law firms' ESG practices to guide them about every aspect, from legal to the branding, of the tax-disclosure focus. This latest development could precipitate a genuine crisis. Think everything from protests to boycotts to social network mayhem. 

As the law firm ESG practices such as at Paul Weiss, chaired by Brad Karp, are structured they provide a kind of one-stop shopping for the new complexities created by this championing of the Triple Bottom Line.

The Paul Weiss approach positions and packages those realities this way:

"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."

In essence, what the ESG front lines on this want is for U.S. corporations to become more like European and Australian ones. Both business cultures embrace the notion that they should pay their fair share in taxes to support everything from the community to the national infrastructure.

On a broader basis, 130 nations have created a proposal for a multinational tax rate of 15%. Therefore, corporate resistance to tax transparency is also going up against international opinion. 

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Breaking Up BigTech - Thought Leadership on This and More in the "Contest of Ideas"

One national issue gets bipartisan support: breaking up BigTech.

According to an Axios poll, 57% of Democrats and 57% of Republicans support dividing BigTech corporations into smaller units. That represents a majority opinion. Meanwhile, the sustained top story in legal, business and general media is antitrust. 

Therefore, no surprise, the thought leadership pushback on breaking-up is kicking in.

An example is today's Bloomberg Opinion.

The argument begins with the recognition how much BigTech has shaped contemporary life. That ranges from social interaction to consumption.

That said, the essay moves on to the major implications which laws or litigation reducing the size or scope of a tech corporation would have on life as we have known it - and liked it.

They include:

• Undcutting the benefits of scale. Prices could increase for consumers.

 

• Little or no effect on worldwide competition issues in tech.

 

• Ignoring the business reality that the value of myriad mergers and acquistions is large. Since 2011, there have been about 60 worth at least $20 billion. The proposed Amazon acquisition of MGM - valued at $8.45 billion - in comparision is small potatoes. So, what's the current hyteria about?

 

• Of course, there are unintended victims. At the top of the list are the users who find that there is more control over every aspect of their relationship with social networks. 

Essentially, the break-up of BigTech is just one of the growing number of issues which are competing for attention and eventual resolution in the current "contest of ideas." 

That's exactly why some law firms are in the front lines of putting out there new ideas - beyond the conventional boundaries of practicing law. 

For example, Joe Andrew at Dentons has introduced outside funding for an advisory service. It's from private equity. Will that idea win over traditional firms which are presently self-funding? (Of course, that brings up litigation financing.)

At Paul Weiss, Brad Karp has created disruptive branding from social justice initiatives. The idea plays with the emerging role of non-business values in business. 

Larry Sonsini at Wilson Sonsini is demonstrating that sophisticated  in-person legal counsel for startups can be simulated through automation - and clients love it. That has created a fresh idea about how legalities in the startup space can be processed. 

Perhaps the last time there was such a bubbling up of ideas had been in the late 1960s. A war, The Pill, aflluence, music, recreational drugs, racial unrest and feminism were among the factors which brought the unthinkable to kitchen tables on Main Street and the corridors of power ranging from government to higher education.

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Innovation (especially Wilson Sonsini's) Is Sexy - ESG Is Extreme Frustration

Today, I posted on Wilson Sonsini's Neuron innovation. That's one big step in its mission to disrupt the legal startup space. Immediately, heavy traffic. 

A few hours before I had posted on ESG, specifically Harvard Business School Professor Rosabeth Moss Kanter's contention that employees should be among the central deciders. Traffic has been holiday-light.

As we say in communications: Innovation is sexy.

Innovation is the future, not being stuck in sad reflections about COVID and lessons learned.

Innovation is essential to figuring out the horses we should be betting on in our careers.

Innovation is even exciting in an old-fashioned gee-whiz way (we can still be awed).

In contrast, ESG has taken on too many moving parts. OMG. 

So many stakeholders have rushed onto the playing field. The Wall Street Journal details all that recent activity. BTW, the folks at the WSJ are calling that "Stakeholder Capitalism." 

Even thinking about Stakeholder Capitalism is frustrating. 

Recently, my posts about law firm ESG practices, such as Paul Weiss' engineerd by Brad Karp, only get sustained heavy traffic if I position and package them as innovation. Here is an example. Posted on June 18th, it still is clickbait.  You bet, put "Innovation" in the headline. And, the first paragraph.

Also, ESG is playing out as disenchanting as the late 1960s counterculture had been. So much liberation had been promised. Instead we found ourselves bullied by smelly long-haired guys seemingly eager for, well, you know ...

ESG seems to have mutated into an arena of competing interests, with sharp elbows and visions of class actions. 

That is reality. The implications, at least to pragmatists, are obvious. Those looking for attention - journalists, bloggers, law-firm public relations/marketing staff and more - should angle their material to fit perfectly in the innovation box. That might be, yes, ESG or antitrust or a win for the firm. For SEO purposes the term "innovation" has to be frontloaded. 

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EGS - Harvard Business School Professor Roseabeth Kanter Seems to Steer That into Even More Confusion (result could be more doomed to be "The Unforgiven")

"Companies that don’t give rank-and-file workers a central role in their environmental, social and governance (ESG) work are making a mistake. They risk alienating values-oriented employees who question company practices, and they miss a big opportunity for employee engagement at a time when attracting and retaining talent is imperative and difficult." Rosabeth Moss Kanter, The Wall Street Journal, June 30, 2021.

As both corporate leaders and the law firms which counsel them know: EGS, which has taken on the more recent title "Stakeholder Capitalism," has become increasingly confusing.

What are the priorities?

What are the consequences of putting resources there and there and not here and here?

And, then how does business address that fallout, which will probably play out in lawsuits which seek class action certification.

The approach advocated by Kanter may be too simplistic. A role for employess, yes. Central? How many central power centers can there be in sorting out this disruption? Of course, it's about power. It always is. This time the debate is positioned and packaged as "values."

On June 24, 2021, Alison Taylor detailed in The Wall Street Journal the growing conflicts among the groups of stakeholders which have been allowed into the "box." They range from environmental advocates to communities. Their new power is obvious, as became clear in the Exxon boardroom-seat coup.

So broad in scope is this issue of who decides and what is decided and based on what values that elite law firms such as Paul Weiss have established specialized practices.

It had been Paul Weiss Chairperson Brad Karp, 15 months ago, who anticipated those points of fissure. Paul Weiss' Sustainability & Environmental Social & Governance (ESG) Practice has as its 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."

That snippet - "ramifications of developing and implementing ESG initiatives" - is corporatese for indicating the seismic troubles rumbling beneath the surface of strategic thinking and implementation.

Kanter's recommendation, which can be interpreted as reductionistic, can be dangerous. What the court of public opinion and/or particular stakeholder interests had interpreted as a violation of the "right values" have often hardened into the new ESG category I label "The Unforgiven."

A classic example is Coca-Cola. It hasn't been able to shake off the conflicts among different groups of stakeholders precipitated by its social justice initiatives ranging from diversity to voting rights. On June 21st, The Thinking Conservative reported that Coca-Cola's shareholders belonging to the American Rights Project demanded the corporation walk back diversity initiatives they declare are illegal. 

Admittedly, be it in BigLaw or the Mom-Pop restaurant, rank and file workers have gained power - as well they should. Also, they should have more power. The timing for that is just right, as the Teamseters figured out. At their annual convention they passed the resolution to organize Amazon's drivers and employees in the warehouses and the distribution center.

However, employees, as well as vendors such as myself, represent only one type of stakeholder. 

For years I have championed Kanter's provocative thought leadership. Her book "Confidence" is right up there in useful career advice as is Dan Goleman's "Emotional Intelligence."

For instance, "Confidence" connects the dots on how belief in yourself and your approach leads to success. One reason? You are willing to invest the necessary resources to make that happen. In analyzing the wins of BigLaw attorneys I have noticed the unique role of seeming extreme self-confidence.

Stakeholder capitalism is too critical an issue in business to become a victim of any expert positing of an easy solution.

Its complexity is palpable. In fact, even conceptualization has become more difficult because of it. In composing articles on sustainability for third-party media I now agonize over each idea and even each word.

A week ago, after submitting the article, I got it that my angle was, well, reductionistic. I gave out a "stop the presses" and went back to the struggle to provide some real guidance to readers.

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Getting Back to the Office and Those Mirror Neurons

"Research suggests that remote workers tend to have worse career prospects than their in-office counterparts." - Shana Lebowitz, BusinessInsider, June 28, 2021.

That finding is no surprise. 

After all, there are the dynamics of what scientists call"mirror neurons." That is, when we are there in-person we humans influence each other, cell by cell.

The connection is a power grid.

The mirror neuron phenomenon explains why, from the get-go, career specialists hammer the importance of face-time in professional life: Get into the office early, stay late and find a reason to pop your head into the brass' corner office.

Therefore, it's in the self-interest of career strivers to get back into the office and invest lots of time there. 

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UK National Health Service Workers During COVID - The Politics of Suicide & Implications for Lawyers

"Citing a six-month study from the emergency care worker association Laura Hyde Foundation (LHF), the British newspaper  reported that 226 nurses, 79 paramedics and ambulance workers, and 17 medical students [of the UK National Health Service] attempted suicide in 2020." - Joseph Choi, The Hill, June 21, 2021.

From reports of those surviving their attempts, the situation seems political.

Many felt the system had left them without the proper resources and isolated.

Although this demands lots more research, it could be posited that suicide, attempted suicide and suicidal ideation might be triggered more by the external context and not so much by the intrapsychic dynamics. 

Some might recall that Law.com reported that 31% of Black lawyers indicated they had had suicidal ideation compared to 19% for white lawyers.

It would seem "crazy" to assume that almost one-third of Black lawyers were psychologically troubled enough to be considering killing themselves. It's more "sane" to wonder how much the environment they are forced to navigate has to do with their sense of losing control. 

That also again brings up the tragedy of late Sidley Austin partner Gabe MacConaill. Could his suicide have been prevented if the values of BigLaw had been configured differently?

His widow Joanna Litt published an article titled "BigLaw Killed My Husband." The ethos of BigLaw can be interpreted as being unforgiving of any weakness. In addition, so is much of the practice of law. Policy Research Associates is among the research organizations documenting  that lawyers tend to be more at risk for suicide that those in a number of other professionals. 

My evidence for the theory of the politics of suicide comes from my family. Four of those who went through the brunt of immigration to America and abusive work conditions took their own lives. In my generation we who had the advantages of being Americans, higher education and choice of work are still here on planet earth, at least for now. That is despite serious setbacks. 

Likely, the law-firm systems will not change. The industry is too successful. Therefore, more suicides can be anticipated. 

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A Shot at Immortality - Likely Even Aging Law Partners Won't Opt for That

A brilliant legal mind is a terrible thing to waste. It seems a tragedy that gets shut off when that brandname law partner dies. Should law firms fund development of a pill that would ensure immortality?

That initiative might not resonate.

Researchers at the University of Texas found that, overall, people don't want to live forever, reports the Daily Mail. When presented with that possibility, 45% said "no" and 29% indicated they were unsure. 

But the really interesting part of that study was that those who consider taking a magic pill ensuring immortality reject doing that in an old body. Young adults want to always be young adults. The middle-age want to be no further along the life cycle than middle age. 

Clearly, aging is not welcome in American society. This pushes back against all the platitudes about the gains which come with aging. Those supposedly range from wisdom to more contentment. About the latter, that usually comes from letting go of tormenting oneself with the supposed mistakes of the past. 

Can our society come to welcome aging? Doesn't look like that will play out, does it, even with the amazing accomplishments of some law partners. 

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Law Firm ESG Practices Like Paul Weiss' Are Helping the Good Times Roll

"Do well by doing good—or else. Earning the perception of good corporate citizenship, in the form of environmental, social and governance bona fides, is no longer optional for the modern executive." - Charley Grant,  The Wall Street Journal, June 4, 2021.

ESG practices in law firms are helping their clients pull off that tricky social justice activism imperative.

Paul Weiss, chaired by Brad Karp, warns in its customized Sustainability & Environmental, Social and Governance Advisory Practice, the territory is filled with legal, political and court of public opinion issues (aka landmines) such as:

" ... stakeholder engagement, corporate governance, crisis management, corporate social responsibility, sustainability, diversity and inclusion, ethics and compliance."

The law firm itself has made its own kinds of commitments to social justice initiatives. On Law.com, Karp observed that such involvement can come with a "cost."

But, as the WSJ hammers, journeying across that pioneering space is a must. In a a recent article for Odwyerpr.com, I label that phenonmenon in business, including the business of the bottom line, as a "grey swan." Derived from the Nassim Taleb concept of the "black swan," this denotes a development that could have been considered possible but not probable. Now it's hardened into a dominant trend.

Of course, this is not entirely new. Traditional forms of corporate social responsibility have been around for about 50 years. The outreach ranged from social issue marketing to employee voluntarism. In the Harvard Business Review article "We're Entering the Age of Corporate Social Justice," Lily Zheng explains that companies with such programs tended to be more profitable than those without them. 

However, the focus of her article is on how different the current social justice mandate is from traditional corporate social responsibility. Seismic events such as the murder of George Floyd have raised the bar on what is expected of business - both in its purpose and its accountability. The standard best practices no longer guarantee that, to paraprhase W.B Yeats' poem "The Second Coming," the centre will hold. Not for the nation, not for the community and not for the corporation and its investors. 

That purpose can no longer be the the one-dimensional business of business. It has to demonstrate caring for all the human touchpoints, be they employees or the livability on planet earth 200 years from now. And accountability is monitored and rewarded or punished daily in the media. 

However, like all trends, the ESG play-out could peak and wane, warns the WSJ. For example, real-life developments - especially other forms of grey swans - could turn attention elsewhere. Those could range from a reversal of fortune for the wealth/power class to a disruption in energy sources which undoes the economy. 

Meanwhile, law firms such as Paul Weiss take on the mantle of The Good Shephard. They protect their clients from what's out there in social justice management that could go very wrong. 

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