Law And More

The Law Firm in 2021: Jabs, Branding, and Being "Double-Humped"

The politics and the theatre of the vaccination issue have pivoted into a branding one.

For example, early adopters in announcing mandatory jabs have been positioned and packaged as heroes. Those range from chairpersons David Sanford at Sanford Heisler to Brad Karp at Paul Weiss. In a sense they have been "Profiles in Courage," as John F. Kennedy understood that term.

No surprise, the entire law-firm niche currently gets it how important in reputation management is the jab policy - along with the decisions about the return-to-the-office and when.

Chairperson at Akin Gump Kim Koopersmith receives lots of space in Bloomberg Law in the announcement: no access to the office until two weeks after being fully vaccinated. Also, circling back to the office has been rescheduled from September 13th to October 11th. That might be wishful thinking. 

Obviously, the legal sector is getting it that, just as with the Influenza pandemic, the world is going through a second round of COVID. That, just like how influenza circled back in 1918, could be more virulent than the first hit. Back in the early 20th century, chronicles Lawrence Wright in "The Plague Year: America in the Time of COVID," the phenomenon was called being "double-humped."

A double-humped law-firm industry could ride this out smoothly (despite all the announcements and backtracking) if it doesn't panic. Remote had been proved out. Evidence of that had been the windfall profits of 2020.

The rub, of course, could be possible pressure from clients such as Morgan Stanley by way of Chief Legal Office Eric Grossman. They could be impatient to have all lawyers on the account back in a formal office setting, very soon.  

A premature return to the office could involve tremendous risk. Even with the abundance of caution, COVID could spread through an office. The jabs don't guarantee much. As played out in Provincetown, MA, some of the fully vaccinated did contract the Delta variant. The most optimistic take on going through the ordeal of the jabs is that if contracting Delta, the experience probably won't be life-threatening. 

The outbreak of COVID in a law firm could derail that brilliantly engineered assembly line to get the nuts and bolts tasks done which implement partner strategy. Associates could wind up beig stuck at home, too sick to even do work remotely. Also, it's a brand issue. The law-firm leadership would be vilified for "allowing" the plague to take over the lives of the workforce.

Of course, there are no right answers.

In "The Plague Year," Wright notes:

"In 1918, Americans were facing the same confounding choices they would a century later."

With the brand in play, law-firm chairpersons are in a pickle they probably never anticipated. On this one, they have to think beyond business to old-fashioned ethics. In a sense, this is the ESG moment for the ethos of the legal sector. Forced could be a massive rethinking of culture. 

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Darkness Fell Upon the Land Today

Australia deploys helicopters and soldiers to keep people inside during lockdown...
'Mandates will backfire. People will resist even more'...
New mask guidelines create total confusion...
PFIZER and MODERNA raise price$ in EU...
Germany to offer 3rd shot...
Fauci And The New Doom...
More Workers on Edge About Return to Office... Back-To-School Anxiety...
Restaurants Fear Worst: 'Oh God, Is This It Again?'
White House frustrated with 'hyperbolic' and 'irresponsible' coverage...
REPORT: NYT editors banned lab-leak investigation...
APPLE removes dating app for unvaxxed...
Billionaires Segregate Selves On Luxury Private Islands...
Obama defies CDC inviting 500 guests to 60th bday party...

CUOMO TELLS BUSINESSES: REQUIRE VACCINES
CASES SURPASS LAST SUMMER'S PEAK
BIDEN DECLARED VICTORY 'TOO SOON'
GALLUP: OPTIMISM PLUMMETSDarkness fell upon the land today. By late afternoon the Dow Jones felt it. It fell, after the financial media starting out the day bullish.But there was a tiny bit of light. That had been created way back during the first round of a quite clever virus. It was and is the COVID Resource Center. That digital tool had been invented by the selfless non-paid labor of thousands of lawyers throughout all kinds of law firms. Who had mobilized that effort, sort of like we envision things got done on the battlefields of World War II, had been Brad Karp, chairperson of law firm Paul Weiss.Here's how Karp (should we think of him as "General Karp") tells the backstory:

"Millions of Americans, especially those who live paycheck to paycheck, are now threatened by the COVID-19 pandemic ... [and] the short- and long-term assistance and resources available to those in the need, the scope of the options and the steps needed to unlock them are bewildering.

"Paul, Weiss is offering this Coronavirus Relief Center as a clearinghouse of the most up-to-date information about available city, state, federal and nonprofit resources available to those contending with COVID-19 ... For each type of assistance, we offer an index of resources available, along with a description of the type of relief offered and a link to more details. We also offer a quick summary of eligibility requirements and information on how to access assistance.  

"We will continue to add information about resources as we become aware of them."

This mirrors the spirit of extreme caring that Joe Andrew, Dentons chairperson, let loose in his op-ed in The Hill. He mandated the world bear witness to the reality that some didn't have the option not to go in-person to the workplace. 

Let's hope that same caring ethos is embedded in workplace policies about return-to-the-office, vaccinations, and masks. That requires humility. There is overwhelming uncertainty. In one school of zen, there is the mantra: Clear thinking, don't know. Can American business, including law firms, surrender the posturing of all-knowing?

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"U.S. v. Elizabeth Holmes" - Prosecution's Case Could Be Wobbly

So, where's the evidence?

There might not be an overwhelming abundance of it unless the prosecution can have approved testimony from patients whose blood-test results were inaccurate. As The Wall Street Journal reports, the court has not ruled on admitting that.

The defense classifies such testimony as mere anecdotes. Meanwhile, the database containing millions of test results is inaccessible. When the prosecution received an encrypted copy they didn't have the passcode. The company has dismantled that database. 

So that's where things stand in "U.S. v. Holmes."

The elephant in the room for this high-profile criminal trial is that the prosecution may not have a strong enough case in terms of evidence. It might huff and puff in opening arguments about Elizabeth Holmes' alleged wrongdoing. But it might not be able to prove the contentions that:

• The technology could not produce accurate results
• Holmes knew that 
• She didn't disclose the facts because she was focused on getting funding for her startup Theranos.

It could play out that Holmes will be portrayed by the defense as an inept businesperson rather than a criminal intent on fraud. Sure, she might have over-promised in terms of results. However, she was following the typical Silicon Valley hyperbolic scripting.

Meanwhile, so many look so foolish.

The media went ga-ga over the young blonde with blue eyes who had dropped out of Stanford.

The white old men like Henry Kissinger constituted a passive board of directors.

Association with Theranos helped to deep-six David Boies' brand. 

Before it stepped back, Walgreens was quite enthusiastic.

Most foolish of all could look the U.S. Government if it loses this case. The legacy of all this could be that a clever babe outsmarted a whole lot of important and not-so-important people. 

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Antisemitism - Social Networks, Well, Useless in Defusing Hate

"84% of posts containing anti-Jewish hatred were not acted upon by social media companies. Facebook performed worst, failing to act on 89%, despite announcing new rules to tackle the problem."  This is a finding from the recent research by US/UK nonprofit Center for Countering Digital Hate (CCDH). Here is the CCDH report. 

The social networks which were essentially useless in defanging the hate are, in addition to Facebook, Twitter, Instagram, YouTube and TikTok. That covers the main territory.

Ironic. Remember when social networks were introduced. They were celebrated as forces for good in society. Everything from personal connection to sharing information/insight were to become more accessible. And, for free. 

Initially there were outbursts of gratitude for the new, user-friendly and no-cost platforms. Those who had been adopted located their biological brothers and sisters. All those cat antics were fresh kinds of entertainment. And just click on one of the online videos to find out how to fix your computer or motorcycle. 

Then, darkness fell fast.

Some of that was direct, as in hate speech.

More of it was indirect - that is, sins of omission. Moderators didn't remove antisemitic postings and ban the posters from the platform.

That leaves us with the question: What will put the brakes on the escalating antisemitism?

If not slowed down there could be "Another Squirrel Hill."

Back in 2018, there had been a fatal attack on the Jewish community in Squirrel Hill. 

I had lived in the Squirrel Hill section of Pittsburgh when it had been the model of an assimilated community. It had been a Jewish Ph.D. psychologist there assisting with a VA cancer ward who allowed me to interview the patients for my series of articles on Making Today Count. Those in my portfolio helped me pivot from freelance to a full-time media job at the University of Pittsburgh. 

That easy flow of diversity in Pittsburgh probably had contributed to the ability of Pittsburgh, unlike Younstown, Ohio, to retrofit its economy after the collapse of the steel industry. Currently Pittsburgh thrives with healthcare, education, and tech.

Obviously, that live-and-let-live ethos was then. Like every other urban area with a heavy concentration of Jewish people, Squirrel Hill remains a target. And for violence. 

So, it comes down to this: Can the influence of large law firms accomplish what social networks haven't? That could play out.

At Paul Weiss, the chairperson Brad Karp mobilized about 50 law firms in an initiative to oppose antisemitism. They range from Cravath to Skadden. Big  Guns in BigLaw.

Next to media, BigLaw is probably the most powerful institution in America. That always was. Now, that power is amped up almost exponentially as progressive law firms redefine their businesses to include social justice. Hate groups, including those against Jews, have no idea what they are in for. 

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Subscribing to WSJ - Trapped in Screens

Business media is a competitive business, right. 

Yet, The Wall Street Journal, which is struggling to be relevant to those of us with shifting attitudes, makes it quite non-user-friendly to subscribe.

That's unusual.

To cover the contents of an article in Insider this past weekend, I signed up for an introductory trial offer. Great. I was in fast.

That was without, unlike the WSJ this morning, having to move through screen after screen. They requested everything ranging from why I read the WSJ to myriad preferences for receiving additional information from Dow Jones and others.

Advice to the leadership at WSJ: Engage with subscribers. Make it easy for us to hop on the train and stay on the train.

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Activision Blizzard's Workers Did Walk Out - Bobby Kotick's Crisis Management Was Too Little, Too Late

The drama at video-game creator Activision Blizzard hasn't let up. 

There had been a chance it would. That was when the head guy Bobby Kotick did a mea culpa and announced he had contracted with law firm Wilmer Hale to investigate allegations about a "frat house" culture.

Before that, the California Department of Fair Employment and Housing had filed a lawsuit against the corporation for sexual misconduct and more. The more includes that only 20% of employees are female. Employees experienced Kotick's reponse to that lawsuit as tone-deaf. They threatened to walk out. 

Kotick had been struggling to prevent the employees from doing that yesterday. But walk they did.

The Guardian reports:

"Employees of Activision Blizzard, the video game company that produces World of Warcraft and Call of Duty, staged a walkout Wednesday morning to call for better working conditions ... Hundreds of workers gathered outside the company’s headquarters in Irvine, California, Wednesday morning while others, unable to attend in person, took part in a virtual protest."

Yes, that made a nice photo-op for the media.

Also, as Bloomberg reports, fans are threatening a boycott.

Meanwhile, the stock is still down. After the announcement of the lawsuit, it had plunged. Yesterday it had closed at 84.82. That was down from the 52-week high of 104.53.

So, what should other corporatons be pondering? They have to ask themselves:  Could we be the next Activision Blizzard? And what should we do about that?

The first stop should be, obviously, at your law firm. Cutural issues are pivoting into legal landmines. Activision Blizzard is the most recent example of that.

If your law firm is state-of-the-art as is Paul Weiss, it will have in-place a practice customized to help you navigate both internal and external crises as values keep shifting in business. The common moniker for that is ESG (Environmental Social and Governance). Essentially ESG focuses on what has been added to corporate responsibilty beyond the bottom line. That ranges from the well-being of employees to protection of the enviroment. 

Chaired by Brad Karp, Paul Weiss launched in April 2020 its ESG practice. Here is what it does: 

"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."

Note that its mission explicitly includes "crisis management."

The meme-in-waiting could be: Not being the next Activision Blizzard.

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Gawker - It's Back, It's (soft) Funny

Today in the early morning Gawker came back. It had disappeared (the first time) after reputation-protection lawyer Charles Harder won the $140 million nuclear verdict in "Hulk Hogan v. Gawker." Venture capitalist Peter Thiel helped finance that litigation. Yes, one version of litigation funding. 

Gawker's current editor-in-chief Leah Finnegan welcomes us (those in arrested adolescence) back. In his letter he asks us to have an open mind and open heart as we re-enter that dimension of what was once called "snark."  

Well, by the edition's first list of articles it seems that the fun is there but softened. None of that super-mean ethos of previous owner Nick Denton. 

Among the articles are:

Space: The Lamest Frontier

Pfizer Offers Free Boob Jobs

CDC More Like Can't Decide CanYou

Americans Said, Friendship Ended, According to a Survey

Yes, in this latest round of COVID, we want/need fun again. No more great gravitas contemplation of life and death. But leave out the brittle in the offbeat point of view. 

If Gawker maintains this tone and content it can build again an audience. Anyway one of its major targets - Fox News founder Roger Ailes - is dead. No temptation there to dish the dirt too aggressively.

Good luck, Leah.

Down memory lane: Gawker had launched the career of Ana Marie Cox. She had been its Wonkette. 

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Activision Blizzard - Beyond the Lawsuit, Threatened Walkout, $8 Billion Drop in Stock Price to Question of Prevention

Workplace culture, again.

And again there is the issue of a leader's being tone-deaf.

That's what Chief Executive Officer of Activision Blizzard Bobby Kotick admitted to being, reports Bloomberg Law. He did that to prevent a walkout of employees tomorrow. Here is his letter to constituents, including the employees.

That walkout was planned as a response to the corporation's perceived lack of an appropriate response to the filing of a discrimination lawsuit.

That complaint is "California Department of Fair Employment and Housing v. Activision Blizzard."

Here is a copy of the complaint.

And here is the press release on that filing from that Department.

Essentially, it is an allegation of an "Animal House" type workplace culture. The more up-to-date language for this, of course, is "frat-boy culture."

In addition, as is becoming increasingly standard, today Kotick contracted with law firm WilmerHale to conduct an internal review of the accusations in the lawsuit. Meanwhile also today, the stock lost 9% of its value, documents Insider. Since the filing of the lawsuit last Friday the market value of the video-gaming company has gone down almost $8 billion. Activision Blizzard is known for its popular video games such as "Overwatch," "Call of Duty," and "Candy Crush."

Some of those observing this rapid unraveling of a supposed cool video-game brandname as overdue. The alleged frat-boy antics were supposedly long embedded in the culture. 

The smart crisis management today by Kotick is a sign that the corporation can turn this around. Investors can probably expect the stock to begin rebounding.

Unlike equally tone-deaf Eric Grossman at Morgan Stanley and Jamie Dimon at JPMorgan Chase, Kotick fixed his initial blunders. Currently he is following the fundamentals of crisis management. Not only did he do his mea culpa. He also took the action of authorizing a respected law firm to do the kind of investigation which mainstream America found out existed during the allegations of sexual misconduct at Fox. Those actions send the right signals. 

However, the elephant in the room is this question: Could all this have been prevented? And, will investors begin to expect preventive measures. If they have not been taken, the CEO could be fired. Already, reports The Wall Street Journal, that is happening. It is more likely that CEOs will lose their positions for a failure in managing a social issue than a financial one.

If a corporation such as Activision Blizzard has on retainer a law firm or multiple law firms which have ESG practices (Environmental Social and Enviromental) couldn't there have been proactive guidance and actions taken? That is, those heading the ESG practices alert the client to the risks - legal, political, branding, stockprice, and customer relations - related to both values and actual behavior. Next, there are recommended initiatives. 

Do the current roles of lawyers, at least in ESG practices, include that of culture coach?

Some ESG practices such as the one created in April 2020 at Paul Weiss by Brad Karp are structured to cover that kind of territory.  Following is the mission statement. Note the language and tone are about guidance. 

"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 addition, law firms such as Jenner & Block which have practices specifically focused on toxic workplaces also can come to provide proactive guidance. The target market for that would be businesses blind to how they are operating right on the cultural third rail. 

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Obviously ...

The Great Of-Course: Law.com reports that the Delta variant and slow acceptance of vaccinations dominate law firm talk about return to the office. 

Reflection: Why is this a story? 

Is media becoming an anachronism? Will events and issues be simply streamed and then it's up to us to connect the dots? Not some editor or producer?

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Silicon Valley & NDAs - Yeah, Sure, That's All About Protecting Trade Secrets

What professional - full-time or consultant - hasn't signed the NDA - Non-Disclosure Agreement? They have become standard business practice. For instance, even before I begin talking with a prospect about an assignment, usually I have to sign the NDA.

Most of us just go along with this. In the lion's share of business transactions there's no fall-out from submitting to the process.

However, as Insider reports, that's not the typical situation in Silicon Valley. 

Essentially, employers contend the NDAs are about protecting the confidentiality of trade secrets. However, that's beginning to sound as hollow as Eric Grossman, chief legal officer at Morgan Stanley, stating that the return to the office by clients is necessary for the future of the legal profession.

Currently, the way most NDAs are structured there is plenty wrong with them. Those problems include:

• The language and the terms and conditions are over-broad. They can cover personal behavior off the job.

 

• The duration of the agreement can be lifelong. There is no end date.

 

• Typical is the non-disparagement clause. Of course, that is a form of silencing.

 

• There is ambiguity in what behavior is exactly prohibited. 

Is help on the way?

Of course. This is the era of employee activism. And it is hitting BigTech hard. For instance, Apple employees submitted a second petition about not returning to the office and being to do their work wherever.

In California, what could become law is the Silenced No More Act. It would restrict NDAs from including provisions about reporting harassment and discrimination.

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