The GC's role in the digital revolution
Think GMOs. Think fracking. Think oil drilling in the Arctic Refuge.
October 31, 2013 at 08:00 PM
4 minute read
Think GMOs. Think fracking. Think oil drilling in the Arctic Refuge.
We're not just talking about the potential for complex class actions. We're talking about whole constellations of public opinion— opinion resolutely indifferent or hostile to corporate interests — in which litigation feeds off of and is fed by NGOs, plaintiffs' lawyers, and other adversaries who, in turn, compel adverse global regulation and legislation.
It's a new environment fired on all fronts by the digital revolution. The corporate fear goes beyond single cases or multi-district litigation. The fear is of a vicious circle in which businesses and entire industries lose control over their own destinies as adversaries effectively use an array of digital tools against them. In this changed environment, the role of GCs is, perforce, fundamentally changed as well. There's no longer an isolated skill set called “litigation management.” Every potentially litigious issue-driven controversy requires seamless internal collaboration: enterprise risk management, brand marketers, corporate communications, IR, etc.
For GCs, the new game represents an opportunity and a duty to affirm their place as C-suite players no longer confined as merely case managers. It's not necessarily about GCs going back to school to learn new tricks. Rather, the GC is already uniquely positioned to break down departmental silos, to take the lead to ensure coordinated deployment of all resources in this global warfare.
In war, basic training cannot happen right in the middle of Pickett's Charge, especially not today when narratives tailored for the Internet, as well as courts of law, must be deployed in a heartbeat. The interplay between the law and other departments should be planned, practiced, and implemented before major litigation—and pursued on an ongoing basis as issues change or antes get raised.
For starters, consider this blueprint for CLO leadership:
GCs cannot “manage litigation” absent close interface with enterprise risk management (ERM). All realistic threats must be anticipated; the GC must ensure that ERM monitors the digital space to assess those threats on a 24/7 basis. Who owns the risk terms — “recall,” “spill,” “corruption” — on the search engines? What conversations are percolating on blogs and social media?
GCs must communicate with the brand marketing team. What consumer perceptions could ignite controversy? The importance of the Internet is obvious here, as that's where tomorrow's claimants congregate today. No one knows more about these online product/service tribunals than brand managers.
Once gathered, such information requires the GCs' collaboration with the communications team to develop optimized digital content and determine the best venues – for example, what shows up first on Google. Yes, such marketing is a legal department concern as well, as this marketing should shrewdly encompass the key risk terms. At the same time, legal needs to be constantly updated on plaintiffs' firms, NGOs, regulators, etc. The GC needs complementary competitive intelligence from the perspectives of both the risk and communications departments. It takes two hands to look into a crystal ball.
The need for GCs to be in synch with the public affairs sector is obvious. Will new regulation create liability or will current litigation inspire new regulation? Which public officials are friendly? Which are implacable foes? Anything that public affairs says to the law department could be of equal concern to ERM, communications, etc.
Because GCs need to know what Wall Street is thinking, litigation risk cannot be comprehensively managed without input from investor relations. It's a digital play: what is being said on the investment networks where minority shareholders can now influence publicly traded companies the way institutional shareholders exclusively used to (i.e., Seeking Alpha, wikinvest, etc.)?
There's an immense multifaceted conversation going on out there and your adversaries control the narrative. You can either deal with it now as part of a fully integrated team, in the nascent stages of opposition, or you can wait until the full complement of the NGO-regulator-plaintiff firm axis is organized against you.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'Serious Disruptions'?: Federal Courts Brace for Government Shutdown Threat
3 minute readLegal Departments Gripe About Outside Counsel but Rarely Talk to Them
4 minute readGC With Deep GM Experience Takes Legal Reins of Power Management Giant
2 minute readPreparing for 2025: Anticipated Policy Changes Affecting U.S. Businesses Under the Trump Administration
Trending Stories
- 1Authenticating Electronic Signatures
- 2'Fulfilled Her Purpose on the Court': Presiding Judge M. Yvette Miller Is 'Ready for a New Challenge'
- 3Litigation Leaders: Greenspoon Marder’s Beth-Ann Krimsky on What Makes Her Team ‘Prepared, Compassionate and Wicked Smart’
- 4A Look Back at High-Profile Hires in Big Law From Federal Government
- 5Grabbing Market Share From Rivals, Law Firms Ramped Up Group Lateral Hires
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250