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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Big Banking - AI Has Been Replacing Lawyers, Much More to Come

"Morgan Stanley figures it’s saved legal staffers 50,000 hours of work and $10 million in attorney fees by using robot Libor lawyers instead of only the human kind. Goldman Sachs Group Inc. says computer algorithms sped things up 'drastically.' These banks aren’t alone in adopting AI, and the revolution likely won’t stop with the Libor transition ..." - William Shaw, Yahoo Finance, October 22, 2021.

Before Big Banking embraced AI humans trained in law would have to manually focus on complexities such as floating rate options. That would be to make decisions about such things as new interest rates. Also they would be struggling to figure out if what they came up could also be applied to loans and swaps.

Of course, right now AI doesn't take care of everything. Ernst & Young estimates that each player in Big Banking still spends about $100 million a year on this sort of thing. And that isn't all. Next, after the decisions are made, at least by the banks, there is the haggling. 

However, the positive results from using AI is opening the door to further applications. Should lawyers be wary? Yes. A whole niche could be snatched away from their law firms. 

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"US v Elizabeth Holmes" - Communications Between Defendant and Lawyer David Boies a Keep

"Theranos founder Elizabeth Holmes has lost her latest bid to keep communications involving her and her company's former law firm, Boies Schiller Flexner, out of her upcoming fraud trial on the grounds that they are shielded by attorney-client privilege." - Reuters Legal, October 21, 2021.

This was expected. Earlier in motions presented by her legal team at Williams Connolly, Judge Edward Davila interpreted the communications as not privileged. That's because lawyer David Boies represented the startup Theranos, not Holmes herself.

What is in those communications could damage both Holmes and Boies. Despite so many warnings about how e-discovery picks up on email and texts, users tend to reveal too much. 

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"US v Elizabeth Holmes" - Will Her Language Do Her In?

Theranos' in-house lawyer Kate Beardsley, reports Daily Mail, had recommended to founder Elizabeth Holmes that the language used in investor relations could be potentially an overstate. For instance, Holmes had stated that "all tests" which are performed in a central lab could be done by Theranos' minlabs. The suggestion was to downsize that to "several." 

Also in court at the trial "US v Elizabeth Holmes," Daniel Edline, a former project director from 2011 to 2016, testified that the defendant had been warned that the technology wasn't panning out as planned - or promoted in PowerPoint slides to investors.

Essentially the language remained the same as it had been before the warning. Also, she did not disclose that Theranos was using non-company devices for some tests.  

The evidence could be interpreted that the defendant intentionally mislead investors.

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Law Firms - Of Course, You'll Need a Chief Metaverse Officer

The metaverse is already a reality. Here is Law and More's introduction to it.

Its platform is the videogame. And, as The Wall Street Journal reports, businesses focused on getting into the metaverse or expanding their reach will likely be acquiring videogame enterprises. Already Microsoft this year acquired Zendi Max Media for $7.5 billion. That means law firm's M&A practices will have to be geared up to handle these kinds of deals.

There are bound to be plenty of them, given the metaverse's potential for transforming how human beings work, shop, attend events, and socialize. It's the post-internet.

Of course, over at the FTC and Department of Justice the antitrust folks will be watching. They could even halt the deals for a review. Law firms will have to know exactly what they are doing in this relatively new category of business.

In addition, as Reed Smith's white paper "Reed Smith's Guide to the Metaverse Universe" details, the virtual realities introduce new legal complexities. Here is an excerpt:

"The metaverse will challenge these [traditional legal] 
principles and ask questions such as whether its
information landscape and virtual creations qualify for
legal protection and ownership at all; where content built
on underlying layers of third-party information falls within
existing notions of modified or derivative works; and how
exceptions to copyright protection such as quotation or
private copying may be applied."

What should be obvious is that eventually law firms will need a Chief Metaverse Officer. That could be a partner or an associate. Likely the latter is better since that age demographic is more comfortable with digital technology. They might have grown up with videogames.

Doing that right now will provide the law firm with the early-adopter advantage. Sure, because the metaverse is hot there will be the buzz and aura branding. Nice. But, being in the front of all this could also create a new form of value for that particular law firm. 

Example of that kind of edge had been Paul Weiss' April 2020 creation of its then-unique ESG (Environment Social Governance) practice. Yes, there were the usual benefits of being first in a market. In the process, though, the Paul Weiss Chairperson Brad Karp also picked up insight about how ESG would not only upend corporate clients. In addition, as with the Mayer Brown crisis in China, it would immerse law firms in their own pile-up of trouble. As came out in this Bloomberg Law interview, Karp has proven himself a visionary. 

Law firm leaders early in this game of creating the the function of Chief Metaverse Office could also be saluted as a visionary. And, in tech. It doesn't get better for branding than that. Also, notice how much attention Reed Smith has received through its metaverse white paper published last May.

Beyond facilitating how clients are served in what they need to do in the metaverse universe, the Chief Metaverse Officer can establish metaverses for the law firm itself.

It's the the superior way for collaboration. So much so that the leadership of the law firm could, like PwC, opt for working anywhere. 

Also, in this era of stiff competition for talent, there could be one of those virtual reality walled gardens custom-made for recruiting associates and poaching partners.

The law firm can treat them to complimentary virtual visits to museums and provide them with the funds to purchase Non-Fungible Assets (NFA). Within the garden there would be a challenging video game operating on IP law.

Since interaction is quite special in the metaverse, they can also meet up with avatars of the chairperson, partners, associates, and even clients. And, if there are an application for a job and an offer extended/extended, in that metaverse that new member of the law firm can be fitted for the proper attire for court. 

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Goldman Sachs' David Solomon Hammers Back-in-Office - But, Will Metaverse Make Him Seem Stuck in the Internet Era?

Like JPMorgan Chase's Jamie Dimon, Goldman Sachs' David Solomon pushes back-in-office. 

But that stance can bite Solomon in the brand.

The unique ability of the metaverse to empower intense interaction, collaboration, and analysis could make Solomon's take on how to work seem, well, so internet.

The metaverse essentially is post-internet. What goes on is in virtual reality. Sophisticated video games like FortNite already operate in a kind of metaverse.

The term "metaverse" means "beyond the universe." One leader in its development and commercialization is Facebook. In fact, it is reported Facebook will change its name next week as it gears up to shift its social networking business to be focused on the metaverse.

So, what is the metaverse? Actually the way we are struggling to understand it is as all over the place as the entity itself. Law firm Reed Smith, in its metaverse white paper, approaches that understanding this way:

"One way to describe it [the metaverse] is the increasing permeability of the borders between different digital environments and the physical world. ... the metaverse is a space where you can interact with virtual objects in real life with real-time information. It is likely that you have already seen this concept demonstrated in movies and on television
programs – for instance, Iron Man,1."

Here is Law and More's discussion of that white paper "Reed Smith's Guide to the Metaverse." It had been published last May. In addition to information it puts out there implications. And, the implications for where work will be done in the near future are huge.

No matter where workers are located geographically they can enter that force field together in real time dealing with data and whatever. This is no Zoom. The experience is qualitatively different. Actually it's the uniqueness of it which hooks players of video games. One source of addiction are the kinds of relationships with other players which are possible. Talk about human touchpoints

Given that shift into another mode of human experience there can be fresh approaches to problems. Those could make the ones created in-person in the formal office seem primitive.

So, Solomon, et al. could be operating in a pre-metaverse business mindset. They can seem out-of-touch. Those "they" could include law firm leaders who insist that the more in-person office time the better for the client - and the professional development of the associate. The superior way to serving the client and training the next generation of prominent lawyers could be in the metaverse.

That metaverse facilitates a distributed workforce operating anywhere. PwC might have had that in mind when it established such a policy.

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Gearing up for the Metaverse, Facebook Is Reported to Be Changing Its Name Next Week - Reed Smith Is Already in That Space

Facebook could be pulling the legal - and marketing - coup of all times.

With its metaverse concept, it could be escaping so many of the legal challenges associated with everything from social media to antitrust. That's primarily because the metaverse is post-internet. It could introduce the same kind of wild-west legal confusion the internet initially did. Facebook will be liberated again to move fast and break things before the legal system fully catches up to it. 

In marketing, Facebook could be establishing a whole new platform on which to sell hardware. To participate in the metaverse special virtual reality equipment could be required. Or strongly prommoted for enhancing the experience. Also, marketing in the metaverse will open whole new opportunities for Facebook's advertising units. Just think about D2A - that is, Direct-To-Avatar.

In conjunction with this shift, reports have it that Facebook will change its name next week. As yet, few, even high level executives in the corporation, know what that new name will be. Here is Verge on that.

According to Katie Canales at Insider, the "metaverse" is:

"... virtual space where humans — tethered to the physical world — can operate using virtual and augmented reality-powered avatars and exist in both places, losing touch on what's real and what's not." 

Obviously, that provides a wonderful exit from this life as we know it. That has been the meme of the sci-fi by Neal Stephenson's books. One can wonder: Could the metaverse as escape zone reduce substance abuse?

But what's important to lawyers is how lawyers define the metaverse. Reed Smith lawyers are among those doing the defining.

That law firm is an early adopter in the metaverse space. The analogue is this: Paul Weiss, chaired by Brad Karp, had been the visionary in the emerging value shift known as ESG (Environmental Social Governance). Paul Weiss formed the first ESG practice to guide its corporate clients through what was going to be a perfect storm. 

As Jenna Greene at Reuters Legal reports, the lawyers at Reed Smith collectively say:

“One way to describe it is the increasing permeability of the borders between different digital environments and the physical world ... Imagine stepping into a cyberworld: The metaverse is a space where you can interact with virtual objects in real life with real-time information.”

Last May, Reed Smith issued the 76-page white paper "Reed Smith Goes to the Metaverse." The authors for the Introduction are Gregor Pryor and Stephen Sessa. Then each section has several authors.

Here is a copy of that white paper.

It discusses issues such as:

Intellectual property

Artificial Intelligence

Data protection and privacy

Content Licensing

Ownership of the metaverse

Distributed ledger technology and non-fungible tokens

Bitcoin and other cryptocurrencies

Reputation and deepfakes

Managing antitrust and competition risk.

Yes, metaverse uses decentralized digital assets like blockchain which can be leveraged as payment for goods and services. And lots of goods and services will be sold in the metaverse. Only very differently than what's standard currently.

In the first paragraph of the white paper, Reed sets a tone of excitement and optimism:

" ... the metaverse offers human beings the opportunity to collaborate, transact, perform, argue, and create as has never been
seen before in history. It enables our alternative selves."

The paper also predicts the metaverse will change so much. That includes work, socializing, and how humans go about their daily lives.

What is of immediate interest to most professionals is how the metaverse provides unique ways to collaborate. For lawyers, who increasingly will be working at least part-time remotely, this could be a key tool. It could also persuade the law firm leadership to allow for a distributed workforce operating wherever

Already Facebook has rolled some of that out in Horizon Workrooms, explains Frame:

" ... Horizon Workrooms [is an] app that uses VR to bring colleagues together in a more immersive way than the grid of faces that Zoom has made the norm. Experienced through Facebook’s headset Oculus Quest, Workrooms uses features like spatial audio-and-hand tracking to give people a better sense of being in a real room together."

That, of course, is just the beginning.

In my field of marketing communications, this notion of collaboration can take the form of interacting in virtual reality with consumers. That can create fresh kinds of consumer experiences and touchpoints. An example of that would be introducing outdoor clothing. Consumers can float in virtual space simulated as rugged terrain and get a feel for that hunting jacket's special features. Simultaneously marketers could provide shoppers with the opportunity to play a virtual hunting game. 

As usual, Mark Zuckerberg is onto something huge and what will be, as Reed Smith confirms, a disruption. Where this will lead perhaps not even Zuckerberg knows.

Meanwhile, law firms' ESG practices such as that launched by Paul Weiss are addressing the shifts in social values set in play by ESG. Likely they will have to expand that focus to include the implications of the metaverse. Corporation might not know what hit them.

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"US v Elizabeth Holmes" Might Not Have Happened - Suppose Theranos Founder Had Accepted Failure?

Did a startup founder simply panic when discovering the technology wasn't panning out? And then she tried to buy it more time by doing what she thought she had to in order to raise the funds to keep trying? 

Is that the real story of Elizabeth Holmes? In The Wall Street Journal opinion section Andy Kessler conjures up that possible scenario. 

Like so many bright, talented, and driven human beings, Holmes might not have been able to accept that what she was attempting could fail. If she could have embraced that failure was an option the trial "US v Elizabeth Holmes" might not be happening. If convicted she faces up to 20 years in prison. 

The possible explanation Kessler puts out there for Holmes' mindset and behavior is ironic. After all, Silicon Valley is where failure is standard. Most startups fail. Venture capitalists understand that. Their game is to keep betting on all kinds of horses, hoping one will win. And possibly be the next Google.

Meanwhile, the trial is going on - almost in Rashomon fashion. That's the Japanese film which showcases how diferent people experience an event in very different ways. That same technique had been used more recently in the film "The Last Duel," a true story. 

The prosecution is presenting a criminal. The defense is laying the foundation for ways to assess the entrepreneur as anything but that. Williams and Connolly raises the possibility that she could have simply been an inexperienced businsswoman who had made lots of mistakes, a leader served badly by subordinates, or even someone not in her right mind.

But the court of public opinion likely is not on Holmes' side. Driven males are interesting. We forgive their transgressions. Bill Clinton remains a loveable rascal.  Hillary Clinton's ambition had been off-putting. It seemed so raw. So obvious. Not an attractive game. 

And, another week begins in "US v Theranos." 

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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.