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.