Welcome back to Inside Track! A special thanks to my colleague Stephanie Forshee for filling in for me last week and for helping out this week.

In this edition, we've looked at what it means when GCs face the complex situation of discussing their boss' performance. Also, an in-house attorney from Amazon provides a look inside the company's pro bono program and we asked what, if anything, should be revealed when a company conducts an internal investigation into complaints of misconduct.

Before we get started, another announcement: It's with mixed emotions that I share some news. I'm moving on to another position soon, making this my last Inside Track. Thank you, readers, for tuning in and for providing valuable feedback. And don't worry, you'll still be getting this briefing in your Inbox every Wednesday.

Now, back to it…

What's happening –

NAVIGATING TRICKY SITUATIONS. Ex-American Airlines GC Gary Kennedyrecently spoke with my colleague Sue Reisinger about his time with the company, which included bankruptcy and the tragedy of 9/11. Kennedy, who recently published a book titled “Twelve Years of Turbulence,” spent roughly 10 years as GC. One piece of the interview that stood out to me was when Kennedy said he had to participate in AA's decision-making around the future of its CEO—the person who hired Kennedy. How does that work?

➤ Focusing in. Kennedy recalled to Sue that just “a few months into the job” he had to speak with the board about whether CEO Don Carty, who had recently offered Kennedy the GC spot, should resign. Carty faced criticism at the time because, as union members were agreeing to wage concessions, a number of execs, including Carty, were slated to earn hefty cash bonuses.

➤ Complicated situation. “The GC was really put in a very complicated situation and position, and not an easy one,” said Jason Winmill, managing partner at consulting firm Argopoint, who has no direct knowledge of what went on at American Airlines. He added that it would be “very awkward” to have to go over your boss' head to the board to discuss issues about his or her performance and career. That said, Winmill added that for the GC, it's a matter of keeping in mind that the obligation is to the company, as a whole, not the CEO.

➤ Good corporate governance. At the end of the day, this is an example of when “good corporate governance worked,” Winmill said, adding that the GC was right to discuss this issue with the board.

NO TAX, PLEASE. Tech lobbying groups that represent the likes of Google, Amazon and Facebook are pushing the U.S. Treasury Department to resist an expected EU tax proposal which would call for taxes on unsold goods or digital advertising revenue. A letter to Treasury, provided to me by CompTIA, and signed by that group along with the Internet Association and others, outlines the possible implications.

➤ Unworkable. “Digital commerce business activity is exceptionally broad and encompasses any economic activity involving the movement of digital information, services and products across borders,” the letter reads. “Given the pervasiveness of digital commerce in the broader economy, efforts to separate out or 'ring-fence' the digital economy for special tax regimes have proved unworkable.”

➤ Troubling precedent. The tech groups argue a proposal “would set a troubling precedent that could deeply harm the US and global business climate.” The letter notes: “These efforts are coupled with rising rhetoric targeting U.S. companies and clear statements of intent to raise revenue from U.S.-based firms.”

“In April 2003 we were literally in the offices of our outside counsel [Weil, Gotshal & Manges], loading the boxes of documents and getting ready to head to the courthouse to file [for bankruptcy].”

- Former American Airlines GC Gary Kennedy on how bankruptcy for the company was averted by just minutes because employees voted to grant concessions.

PRO BONO FOCUS. Amazon general counsel David Zapolsky leads a massive legal department – last year, he told me the number came in at more than 800 professionals – so you'd expect he has a long list of things to think about each day. As my colleague Stephanie recently learned, one of his focuses for the company's legal team is on pro bono work. In-house attorney Jennifer Brown spoke with Stephanie about Zapolsky's emphasis on volunteering and about what her pro bono work looks like. Here are some highlights.

➤ Measured in hours. Brown does pro bono work for the Innocence Project Northwest, a nonprofit that provides legal services for prisoners who hope to prove their innocence. For just one case, Brown said she dedicated more than 40 hours last year combing through court filings.

➤ And in applications. In total, Brown and other attorneys at Amazon have dedicated 237 volunteer hours to IPNW, Stephanie learned. The nonprofit posted on LinkedIn that 113 Amazon employees reviewed 43 pending applications from incarcerated individuals last year. “I felt really good that I was able to participate so thoroughly with this organization that's committed to people who have been wrongly imprisoned,” Brown told Stephanie.

➤ In-house focus. In 2014, Zapolsky formalized the company's pro bono program, which now includes advice to artists and assistance to those who may be eligible for DACA relief. Zapolsky previously told me that it's often hard for in-house attorneys to do pro bono work, so his strategy is to “provide as many different opportunities” as possible.

Question of the week –

Do you have a pressing question you'd like answered? If so, send it our way.

This week's question:

When a company is investigating one of its executives or associates for misconduct, how much and what types of information should be made public and what should be withheld?

The short and simple answer is that no information should be made public when a company is investigating one or more of its executives. The challenge, from a communications standpoint, is that reputations may be imperiled by the speculation that results when there's no information released. No matter; breaching the silence cannot be justified even to quell wildly unjustified rumors that may have begun to swirl.

Such peril must remain, at least for the present, a necessary evil. Far worse are the unintended consequences and inevitable mischiefs that would result if investigators, acting perhaps with good intentions, try to stave off the ravenous public hunger for information with partial disclosures of any sort.

As my friend Deborah Kelly, an employment and labor partner at Manatt, Phelps & Phillips, reminds us, contrary to what people might conclude from recent coverage of sexual harassment complaints, this gag rule is not designed principally to cover up on behalf of those accused. It is designed to protect complainants and witnesses who participate in investigations. In fact, employers have a legal obligation to protect confidentiality to the greatest extent possible when following up on complaints of unlawful conduct. This obligation binds equally when the person accused is high profile as well as in cases involving issues and people of interest mainly to a company's own shareholders and employees.

There is one way in which the art of public communications can be practiced to minimize both immediate and longer-term damage to the company brand. Companies can utilize a variety of strategies to persuade their stakeholders that the ongoing investigation is, in fact, both fair and thorough – that no one will be unjustly tarred and that, at the same time, no one is exempt from the ongoing investigatory process or immune to ultimate accountability for what the investigation uncovers. In other words, if you cannot reveal any of the substance of an investigation, you can at least affirm the integrity of the process.

- Richard Levick, chairman and CEO of public relations firm Levick. (Edited for clarity and length.)

Don't miss –

Tuesday, February 27. In less than a week, Microsoft will take center stage before the Supreme Court in a fight about whether it must hand over information to law enforcement that's stored in Ireland. In the lead up to this highly anticipated case, giants including IBM, Amazon and Apple have weighed in. If you haven't already, check out my colleague Ben Hancock's podcast in which he explores the potential implications of the case with Microsoft head of litigation David Howard. And stay tuned for coverage of the arguments.

Wednesday, February 28. Global Leaders in Law continues its roundtable series on “What to Do If Your CEO Resigns” in Milan. Sessions on this same topic are planned for Copenhagen on March 7 and Sao Paulo on March 13. Also on the schedule for GLL is a March 6 event on changing corporate culture in Berlin. GLL is an invitation-only membership group, offering GCs a global platform for in-person collaboration to exchange ideas, receive advice and guidance from peers. For more information, contact Meena Heath at [email protected].

Wednesday, March 7. The Association of Corporate Counsel is hosting a webinar that will consider how in-house counsel are dealing with international contracts, looking at everything from how to manage risk to when outside counsel is needed. Register here.

On the move –

Retiring amid scandal. In the wake of the Larry Nassar sexual abuse scandal, longtime Michigan State University general counsel Robert Noto has retired. In the announcement on Noto's retirement, the outgoing GC said it's been a privilege to build and lead the university's legal team, and he noted that deputy general counsel Kristine Zayko will step in as acting GC. Noto has come under fire recently, along with others in the university's legal department, for the way a sexual abuse complaint against Nassar, a former MSU sports doctor, was handled.

Troubled waters. Out west at Banc of California, Angelee Harris has been promoted to the general counsel spot, effective April 15. Harris replaces John Grosvenor, who will continue to serve as special counsel to the board of directors. As Sue points out, Harris' move marks the third change in the executive ranks since the SEC opened an investigation into the company in January of 2017.

Author and GC. Public health organization NSF International has found a new GC in Julie Timmer, who previously served as senior counsel for vehicle wheel supplier Maxion Wheels. Timmer has been in-house for more than a decade and is also an author with three novels to her name.

School's In. As of April 9, Traevena Byrd will step in as American University's general counsel, replacing acting GC Bethany Bridgham. Prior to joining American University, Byrd held a number of in-house roles at Ithaca College, ultimately assuming the associate general counsel role.