Moving My Blogging

I've decided to consolidate my blogging at Single Speed Seattle - which I've now expanded beyond bikes to cover what I've tried to write about at Corporate Tool:  business hijinks, negotiation, legal silliness and office life.

Check out my latest post on tax policy there - as well as anything you might want to know about urban fixed gear bike commuting . . .

How Not to Be a Trademark Bully

I've posted before about the way that many companies overreact to parody, trademark infringement and other "threats" to their brands.  So I'm delighted to pass along this rare counter-example, courtesy of Popehat.

Proof that some companies can look at the big picture while still providing (appropriate) attention to IP issues.

The Foolishness of Corporate Prosecutions

I recently did an op-ed for USA Today, in which I argued that aggressive prosecution of corporate executives is not sound policy.  I was limited to 350 words, so I'm going to expand some on the thoughts here.

First of all, I don't think of this as a particularly controversial position.  I've worked in the corporate world, in companies large and small, for nearly 20 years.  I have a pretty good bead on the benefits and failings of corporate life (as often chronicled here).  But it certainly brought out the torch-and-pitchfork crowd in the commentariat.  You'd think I was advocating baby murder or slapping puppies.

MOST CORPORATE CRIME IS DIFFERENT.  Apart from the most brazen and rare examples (e.g., embezzlement, lying to regulators), corporate crime is not the same as crimes such as murder, or armed robbery or rape.  I'm not talking about outcomes, I'm talking about things like culpability (did someone have criminal intent) and even whether a crime was actually committed.  It's not remotely as black and white as a crime where you've got a body at the end of a smoking gun.


People sputter about "corporate criminals,", but the vast majority of the time they are dealing with an outcome they don't like and groping for a criminal sanction. They want someone to PAY. But there's no body, no abused victim, no missing jewel cache. Just an outcome that feels wrong. 


And it there's a chance it could be determined to BE wrong. There are thousands of federal statutes, applicable to business, that carry criminal sanctions. But these are almost never malum in se crimes, where any functioning member of society is expected to know right from wrong. To make matters worse, these malum prohibitum crimes are far more complex - and vague - than their counterparts in the non-business world. These aren't speed limits and DUI thresholds we're talking about. Which raises issue #2 . . .


ENFORCEMENT IS CAPRICIOUS.  It's not that corporate executives can't be expected to comply with the law. The issue is vagueness and how the rules are applied. As criminal defense lawyer (and hater of the term "white collar crime") Scott Greenfield points out, corporate execs under investigation will find themselves subject to the whims of prosecutors - who almost never have business experience - who will try to fit otherwise routine corporate action (or inaction, or ministerial sloppiness) into the rubric of criminal offenses:


There are cases where individual corporate executives make discrete decisions to engage in crime, usually a deliberate fraud or bribery.  But these cases are exceedingly rare. The reason the threat of prosecution doesn't work is because the executives aren't committing crimes at all, and certainly not in their own minds.  They are making business decisions which, when held under a microscope and viewed by a kid from Justice who can only see black and white, has no clue how businesses function and no history in an industry, scrutinizes their decisions as to whether they're the decisions she would make. If not, then it's a Crime!


NO DETERRENT EFFECT - OR NOT THE ONE WE WANT.  There's little surprise that capricious enforcement of vague crimes doesn't have a deterrent effect.  And if we want to get to the deterrent, if we prosecute so aggressively that corporate execs are hiding from their own shadows, where does that get us?  Do we want an American business culture where the Chief Compliance Officer reigns supreme, and the anal retentive obsessions of the grocery clerks takes precedence of moving fast, innovating and taking smart risks?

America has been the world's biggest, most successful economic engine for the last century.  Our standard of living has risen to heights unrivaled anywhere.  We continue to drive innovation for the rest of the planet.  Prosecute aggressively enough, and we risk shutting that off - even as the rest of the world is sprinting to catch us. Or as Greenfield put it:

And if you're wondering where American jobs went, or why prices are out of control, or why products no longer work, or why there is no cure for your child's disease, consider the implications of people screaming criminal enterprise at corporations that may be far from perfect, but also far from criminal.

Book Review: "A Lawyer's Guide to Getting a Corporate Legal Position In-House"

When David Parnell - co-founder of NY-based legal recruiting firm Edward, Anthony & Steele - asked me to review his new book, "A Lawyer's Guide to Getting a Corporate Legal Position In-House," I was intrigued.  I guessed it wouldn't endorse the method I used as a third-year lawyer to get my first in-house position back in 1996 - answering a "help wanted" ad in the legal newspaper - but I was curious to see if it would address some of the missteps I've seen wannabe in-house attorneys make since.

And it does.  Parnell's book is an excellent resource for attorneys with 2-7 years of experience looking to move in-house.  Here are some of the areas that stand out:

• A Candid Assessment of In-House Work.  Parnell's focus in on larger organizations, which is the likely landing spot in-house for more junior attorneys. And he doesn't sugar-coat the reality of the work:  There's no guarantee that the hours will be softer, and there's a strong likelihood that the entry-level work in a large legal department will be less interesting (and repetitive) than the varied deal flow at a law firm.  Parnell also takes pains to point out just how competitive it is to get in-house positions.
• A Tactical Approach.  When hiring for in-house counsel, I can't tell you how many poorly-thought-out, scattershot approaches I've seen by candidates. Parnell lays out a super-methodical approach to seeking in-house work, with a focus on identifying positions that haven't been posted yet.  He takes it down to a detailed, campaign level, complete with creating a "funnel" of 100 targets, sending tailored correspondence and scheduling emails and phone calls.  That kind of tactical focus and plain grunt work is necessary if you want to maximize your chances of landing an in-house job.  It's a ton of effort, but it's very, very effective - largely because so few candidates do it.
• A Detailed Interview Strategy.  Parnell recommends a lot of interview prep, to the point of writing answers to likely questions out.  This is sound advice, and too often observed in the breach.  Parnell also recommends doing background research on the potential employer.  This is a point that needs greater emphasis; I would expect anyone interviewing for a legal position to have an in-depth view of my business and its competitive space, and be able to ask intelligent questions about it.  Again, an area that is too often shined on by candidates.  The book also includes an excellent and highly-detailed section on negotiating compensation.

There are also a couple of areas that I would caution readers about:

• It's Not for All Attorneys.  Parnell's book is, as mentioned, focused on attorneys with about 2-7 years experience seeking jobs in large organizations.  This makes sense, as that's the deepest pool for junior attorneys to fish in.  However, if you have more experience, or are applying for jobs in smaller organizations, your approach will need to change a bit.  Those in such a position could still benefit greatly from Parnell's detailed "campaign" approach to contacting potential employers.  But it's important to go much deeper - to research each company you are approaching and send correspondence that directly addresses its needs and how you can help.  To do this properly, you probably need to go after a smaller pool than the 100 employers Parnell recommends for starting a campaign. And it's a lot of work.  But I guarantee you it's far, far more effective than mass-mailing a bunch of generic cover letters and resumes. 
• Interviewing Psychology.  Parnell is into linguistics and psychology, and he spends a fair bit of time in the book exploring the psychology of interviewing: first impressions, matching and mirroring, conforming, etc.  This is all important stuff to know, but I would go further than Parnell does in cautioning candidates about the dangers of artificially changing their personalities in interviews.  The people who need the most help in these areas are also the likeliest to screw up by actively trying to "not be themselves" in an interview.  I've seen this happen a number of times, and it's always a train wreck.  In-house employers tend to have very finely-tuned bullshit detectors.  Be prepared - be uber prepared.  But be yourself (or, at most, a somewhat-friendlier version of yourself).  Attempting a psychological makeover in an interview is far likelier to backfire than yield any real benefits.

And yes, the book is published by the ABA, so it's not much to look at.  And it costs $100 ($75 for ABA members).  But this is your career we're talking about here. There is a gold mine of information in the book for any biglaw associate with serious dreams of moving in-house.  It provides a tactical roadmap to maximize the chances of finding a position, and contains enough truth-telling about the corporate world that some readers will decide that staying in a firm is just fine.  And even those looking at smaller companies or specialized positions would benefit from Parnell's advice about running a job-acquisition campaign and how to prep for interviews and comp discussions.   

    

Domain Madness

There's a whole new set of Internet generic top level domains (TLDs) coming. Not content with .com, .org and the lightly-used .biz and .info (to say nothing of all the country-specific TLDs), ICANN has expanded the TLD universe to, well, just about anything.

.lol? Check. .law? Bingo. For the price of several minutes of prime time TV advertising, anyone can get a TLD for anything. And perusing the list of applications looks like nothing so much as a wireless spectrum auction - strategic bidders (like Google), acquisitive upstarts and a host of speculators.

Except that wireless spectrum supports a cash-flowing business model and is scarce. TLDs are neither; they have all the utility of vanity license plates. Specific domains are getting less important with the growth of the social web and improvements in search algorithms. Most sites won't feel compelled to buy up their domain on every TLD. For Google and its ilk, buying a bunch of TLDs be justified as marketing, or research, or whatever - it's pure option value. But for speculators? It seems the dream of domain riches dies hard.

More Thoughts on the GC Role

Two articles piqued my interest today:  The first, from the Economist, weighs in on the increased sway that GCs have in the world of Sarbanes-Oxley.  The second, from Corporate Counsel Magazine, features an interview with former GE GC Ben Heineman, Jr.  Several observations:

1. The theme of power shifting to the in-house legal leader, and the need for greater guidance and statesmanship from the GC feels very real to me.  However, in talking with colleagues, recruiters and others dealing with in-house positions, this hasn't set in everywhere.  I continue to see situations where the GC reports to the CFO, for example. 
2. Walking the line between being a partner to the business and its guardian is the trickiest part of the job, and the one where the GC can add the most value.  But it requires knowing the business inside and out, and being willing to take smart risks whenever they are outweighed by opportunity.  This is a two-handed benefit - it makes the GC the partner of the business, and it provides him or her the credibility to take a stand when a business initiative must be shut down or modified.
3. I'm with Heineman on compliance officers.  As I've pointed out before, I'd be nobody's choice for a compliance officer; I'm not nearly risk-adverse enough.  But the idea of having a compliance officer who DOESN'T report to the GC is a shockingly bad one.  Compliance is an important part of the legal work facing a company, but it's necessarily narrow.  And for too many of those handling the hammer of "compliance", every potential risk can look like a nail.  Far better, then, for the GC - the one executive in the company equipped to sort "compliance" from "bona fide risk worth taking" - to make the final call.

The Time I Unleashed Marc Randazza on the ABA

We were talking in the office the other day about memorable legal CLE panels, and how few and far between they are.  The standard is so low, so filled with lawyers wringing their hands and droning their way through word-dense powerpoint slides, that standing out should be relatively easy.

I've tried to do that in the presentations I give, living by the rule of never reading off of powerpoint slides and keeping things as lively as possible.  But the one presentation that lives in memory (and probably infamy, for some) is a  panel I put together a couple of years ago for the ABA's Business Law Section annual meeting.

The ABA Business Law Section is a big group, and it deals with many important legal issues.  But no one would confuse your average Business Law Section presentation with anything resembling entertainment.

So naturally, I put Marc Randazza on my panel (which was titled something like "Someone Online Hates You").  Randazza is a first amendment lawyer extraordinare.  He has dealt with many of the most interesting cases at the intersection of the First Amendment and the online world - a prickly professor's defamation lawsuit against Above the Law, Glenn Beck's futile UDRP case, and of course, the Righthaven beatdown.  Just to name a few.  

Despite being somewhat under the weather, Marc put on a helluva performance, getting off riffs, one-liners and anecdotes - a fair number of which were seriously off-color - that had the staid Business Law Section crowd howling in laughter.  He stole the show.  The best part came when I got the evaluations a few weeks later.  It was a binary response: From most, all 5's, raving about how Marc Randazza was the best presenter they'd ever seen at a legal event.  And from a few - and you know the tight-lipped type - comments along the lines of how offensive Marc Randazza was, and how they couldn't believe such foul-mouthed comments would be allowed at an ABA event.

As I've always maintained, if you're not pissing a few people off, you're doing something wrong.

I gotten to know Marc better since then; he's helped me out with a number of issues and is currently representing me in the Rakofsky v. the Internet debacle.  Besides being seriously funny, whip-smart and irreverent, he's a helluva decent guy.

A helluva decent guy with no tolerance for censorious thugs, of course.

Anyway, I need to find another opportunity to spring Marc Randazza on a group of unsuspecting lawyers.  Maybe the ABA Ethics 20/20 panel would like to hear Marc's perspective on how to regulate lawyer advertising . . .

The Empty Threats of Trademark Bullying

Two instructive examples of trademark bullying this week:

The first comes from, of all people, the organizers of the South By Southwest music festival. Lawyers for SXSW sent a cease and desist letter to the makers of "lastsx.sw", an app designed to help users track down bands they'd like to hear at the festival.  

The second comes from serial trademark abuser Louis Vuitton group, which via its lawyers snottily objected to the marketing materials prepared by an intellectual property group at the University of Pennsylvania law school for a symposium on "fashion law."  Here's the (rather cleverly-done) piece that produced so many wadded panties at LVG legal:

The reactions of each group to this bullying will tell you a little bit about what's really behind these threats.  The young tech guys behind the app caved; Penn Law School sent back a sharply-written reply to LVG that might be loosely translated as "get bent."

This difference comes not only from the fact that Penn Law School is a) amply able to defend itself and b) full-to-bursting with lawyers, but also from a little secret good lawyers know:  that the vast majority of the time, threats like this are nothing more than empty bluster.  The attorneys writing these frothing missives have no intention of making good on them.  

Or to put in the parlance of the home of SXSW - they're all hat and no cattle.  They just want to scare you, to intimidate you into agreeing to their demands.  In the case of lastsx.sw, mission accomplished.

Most good attorneys I know will rarely send threatening letters.  They reserve them only for cases where there IS a real issue, and they and their client fully intend to follow through with a lawsuit.  Or they'll just file the lawsuit and then make their demand.  Unfortunately, there are many attorneys out there who can't control their clients, or who value the billable opportunity more highly than the overall outcome to their client, or who have found that the return on their empty threats is good enough to justify the cost to their reputations.

In my business, I deal with bullying attempts like this on a near-daily basis.  I've been threatened with a lawsuit over 300 times in the last few years. I've had claims made that ignore the First Amendment or other laws. Claims that flat-out make laws up. Claims of butthurt masquerading as defamation.  And claims, like these two, that argue for outrageous extensions of copyright or trademark law. 

I've denied every single one of them. Every attorney who wanted a profile, client review or rating removed and threatened a lawsuit to get this result got the same answer: No. 

How many of them sued after getting this disappointing answer? Zero.

Some attorneys just can't help but try to throw their weight around. But that doesn't mean you need to take them seriously when you're operating within your rights.

The Permission Culture

Being the general counsel for the largest online rater and reviewer of lawyers, I get my share of heated correspondence from lawyers.  And one common question is why we didn't ask permission before posting an attorney's licensing details online.

It's a vexing question.  Not because the substance of the question is difficult to answer - rather, it's difficult to answer in a way that is not overly rude and/or condescending.  Why? Because it should be blindingly obvious that we don't need their permission.  

Asking for permission implies the conferring of a right not otherwise present.  Decorum also demands that it be limited to those areas where one plans on honoring the denial of permission.  As we have a clear First Amendment right to publish, and no intention of only publishing material for which consent has been granted, it would be both pointless and in bad form for us to ask for permission.  

I wonder, however - as I see the latest round of the NFL trying to prevent use of the term "Super Bowl"without permission (note: I did not obtain, nor ask for, permission to refer to the SUPER BOWL).  Super Bowl, Super Bowl, Super Bowl  . . .

Anyway, where was I?  Oh, yes - this NFL silliness (SUPER BOWL!!!), along with the consistent drumbeat I hear from lawyers over permission, raises the question of whether we lawyers have too strong of a bias for permission.  Just as lawyerly training can lead to a blinkered desire to mitigate every risk, regardless of cost or lost opportunity, does our reliance on case law and statute tend to immobilize us from taking action unless there is clear precedent saying "yes, really, it's OK?" To think that we can't do anything out of the ordinary without permission? My experience would say that it does.

This is a problem, because it leads to situations like the ridiculous demands for permission that I get, or the ludicrous position taken by the NFL and other trademark or copyright holders that even clear-cut cases of fair use are infringing without permission.

A culture of permission-only is a poorer culture all around.  And it's bad for lawyers and their clients, as asking for permission in cases where it's not required leads to confusion and missed opportunities.  Let's limit permission to its intended uses: when we're seeking a dispensation (by asking for a right), or granting one (by letting someone else decide whether we get to exercise a right we already have).