April 16, 2014

FOCUS...on the Greater New York Chapter

By in-house counsel, for in-house counsel.®
Chapter News
President's Message
By Reginald Rasch, ACC-GNY 2013/2014 President

In August of 2013, just prior to taking over as President of the Chapter, I chaired a meeting of the Board of ACC-GNY in which we outlined our programming agenda for 2014.  While I was confident that we had the organization, talent and enthusiasm necessary to accomplish our goals, I knew it would be a challenge to live up to the Chapter of the Year recognition we received from ACC in 2013 and the resulting increased expectations of our members.  I knew it would take dedication from the Board and a consistent focus on member concerns in order for us deliver on our obligations as Chapter leaders.

As we transition into spring, or rather, as we exit from what we can agree was a cold and miserable northeast winter, I am more than encouraged by our progress and believe we are meeting, and in some cases, exceeding those ambitious goals that we laid out back on that warm day in August. Here is a snapshot of some of the Chapter’s programming accomplishments thus far:

  • In January 2014, we kicked off the year with a fantastic and well attended lunch CLE at the Harvard Club hosted by Stroz Friedberg in which the panelists addressed challenges facing in-house counsel in data security, email retention and outside requests for data – topics virtually every in-house lawyer encounters no matter the industry or area of expertise.
  • With great enthusiasm, we reintroduced our Intellectual Property Practice Group with a new sponsor, Cowan, Liebowitz & Latman, P.C.  The Cowan team, including Kiernan Doyle, one of Cowan’s intellectual property litigation partners, worked closely with long time Board member and Intellectual Property Practice Group Chair, Vince Castiglione, to develop two outstanding intellectual property programs – the first covering the ins and outs of the new top-level domain names, and the second, a roundtable discussion dealing with intellectual property protection for new products.  Both events saw full registration, and in fact, the demand for the roundtable was so great that Cowan offered a second presentation in order to accommodate members closed out of the first.
  • The Chapter hosted a new member breakfast at the offices of MetLife in midtown, where Board members Brian Campbell of Dice Holdings, Inc., Simon Kyriakides of the American Arbitration Association and Pauline Arnakis of Universal Music Group, Inc. presented to new and current ACC-GNY members on the value of ACC membership and the resources available to members, including CLEs tailored to in-house counsel, written materials  on a wide variety of topics accessible from the ACC’s website, pro-bono resources and networking opportunities.
  • The Chapter’s long-time sponsor, Dentons, hosted its second advanced contract drafting seminar.  Dentons partner, Stafford Matthews, gave a lively and incredibly informative presentation on the creative uses of ambiguity in contracts.  Mr. Matthews presented to a capacity audience on the importance of precise drafting in agreements and the impact that language has on contract interpretation.  An experienced lawyer might consider a CLE presentation successful if he/she is able to leave the session with one or two “nuggets.”  Attendees of this CLE walked away with a veritable gold mine of useful drafting tips and tools, including a presentation packet rich with useful information. 
  • The Chapter hosted its third annual pro bono/community outreach social event at Astra, and as in the past, the quality of the CLE on the ethical representation of nonprofit organizations and the post CLE wine tasting reception did not disappoint.   During the event, the Chapter’s pro bono partners, Lawyers Alliance of New York and Pro Bono Partnership, each gave short presentations highlighting pro bono opportunities available to in-house counsel through their respective organizations.
  • The Chapter, together with its new digital technology practice group sponsor, Loeb & Loeb LLP, hosted a vodka tasting party to officially launch the Chapter’s new Digital, Technology, eCommerce and Privacy Practice Group.  The gathering took place at a beautiful conference venue in Loeb’s New York office.  Attendees mingled, sampled a variety of high end vodka brands, enjoyed hors d’oeuvres and listened to a short presentation from the Practice Group Chair, Pauline Arnakis and Co-Chair, Frank Clark of Infosys about the Practice Group’s 2014 programming agenda.  The crowd was enthusiastic, and this kick-off served to build momentum for the Practice Group’s first substantive program on behavioral advertising in April.  

The events described above are only a sampling of the many initiatives that the Chapter has undertaken since the beginning of the year.  In addition to the above, our newly created Diversity Group has assembled a highly credentialed group of lawyers to serve on its steering committee, and that group is working to develop timely and relevant diversity programming. The Chapter’s Women’s Group, which has experienced tremendous growth and high rates of participation over the past year, continues to put on top-notch programming designed to advance and support women within the profession  This past February, the Employment Law Practice Group, along with their sponsor, Ogletree Deakins, hosted a CLE dealing with disability discrimination and accommodation claims.  On the community outreach side, the Chapter sponsored a constitutional law debate with its community outreach partner, Legal Outreach.  High School students participating in the Legal Outreach debate program debated the controversial contraception mandate outlined in the Affordable Care Act, which is currently before the Supreme Court.  ACC-GNY members served as judges and had the pleasure of asking students tough questions and offering positive feedback at the conclusion of the program.  Last, but certainly not least, Navigant, one of the Chapter’s Platinum sponsors, hosted a breakfast roundtable discussion with Harvey Pitt, former SEC Chairman, where Mr. Pitt led a lively discussion concerning economic and regulatory trends impacting General Counsel.

The goals we set for the Chapter during our August 2013 planning session were indeed ambitious, and while I am pleased with our progress thus far, we still have work to do.  As we transition from the cold temperatures of winter into what we hope are the seasonably mild days of spring, we will continue to provide you with high quality and relevant educational presentations, networking and professional development resources and access to volunteer opportunities.  We hope these presentations, resources and opportunities will help you to accomplish your goals for the year.

Reginald Rasch 

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Board Nominations Open in May

Board nominations will open the early part of May for the 2014/2015 ACC-GNY Board of Directors.  Members will be notified via email the date the nominations are open and details about submitting applications.  Interviews will be held in late May and early June, and a slate will be proposed and voted upon at the ACC-GNY annual meeting in September 2014.

All proposed nominations should include:

  •  the candidate's full name and contact information

  • a resume, CV or other description of the candidate’s employment background; and

  • a description of the candidate’s ACC or ACC-GNY activities.

Watch your email for the announcement and further details.

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Upcoming Events
Data Marathon - Hot Topics for In-House Counsel
By Jordan Horvath, Vice President - Programs

After last year's highly successful Full-Day CLE event, the program committee recommended the addition of a half-day program to this year's chapter program calendar.  On May 7, this half-day event titled, "Data Marathon - Hot Topics for In-House Counsel," will be held at the Harmonie Club. 

This event will be everything you want to know about data management and more. In addition to offering a half-day opportunity to gather CLE credits, the event will offer varied sessions that address the challenges technology presents in business today.  A few of the hot topics to be discussed at the half-day CLE Data Marathon include:

  • What rights do you have to your employees' social media digital image?
  • Do you have rights to a customer list developed on your employee’s social media site after that employee leaves to work for a competitor?
  • What obstacles should you be aware of when transferring data in a multinational company?
  • The cloud has been a space saver when it comes to storing data, but is it really as secure as we think?
  • Do we know enough about cloud security to feel secure about attorney-client privilege?

Be sure to stay with us for the early evening reception in the rich historical surroundings of The Harmonie Club located in the heart of Midtown Manhattan.  Click here for more information.

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Volunteer Opportunity for ACC-GNY Members - PENCIL Fellows Program, April 30, 2014

ACC-GNY members have an opportunity to engage with students from the Pencil Fellows Program and together fuel the career advancement of over 100 students on April 30 at the offices of Dechert LLP. Through a unique, skills-based volunteering opportunity, ACC-GNY members can engage with students as they learn interviewing skills, while providing members’ companies the chance to meet future summer interns.

Pencil Fellows provides rising junior and seniors a year-long career training program followed by a six-week internship.  This program provides Fellows access to the skills necessary to build a future career, giving them the necessary leg up needed to combat the stagnant unemployment for those in their age group.  In order to ensure Pencil students are prepared for their internships, they are required to attend trainings facilitated by business professionals from our community.

As a volunteer at the Pencil Fellows Open House, you will have the chance to work with small groups of 6-7 students.  The focus will be on honing students’ interviewing skills, especially on how to apply skills acquired in school and in extracurricular activities to the workplace.  Pencil will provide volunteers with a facilitator guide to assist during the session. This guide will be distributed to volunteers at least two weeks before the event so there is plenty of time for review and preparation.  Click here for more information and to volunteer.
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Highlights of Recent Events
Stephen Gillers, Elihu Root Professor of Law, NYU
NYU Law Professor, Stephen Gillers, Headlines Ethics Marathon Event


Professor Stephen Gillers, the featured speaker at this CLE –rich event,   a nationally renowned Professor of Law at New York University, and an expert in ethics and the regulation of the legal profession, spoke at great length to a packed house at the Lighthouse Theater about the importance of truth in negotiation and dispute resolution. His presentation, described by attendees as “comprehensive” asked and answered what an attorney’s obligation is to the truth in negotiation or in a matter before a tribunal once it is learned that a client has, knowingly or not, made a false statement.  

Professor Gillers noted that in such a scenario, when the attorney comes to know of the falsity through a confidential communication, the NY Rules and the ABA Rules are substantially the same. From errors in draft agreements made by an attorney’s adversary to false statements made knowingly or not, the resounding message was that the attorney has an obligation to ensure no false statement of fact is knowingly represented even if that information was provided via confidential information.  The circumstances may even allow for the attorney to make use of a “noisy withdrawal exception.” This allows that an attorney “may reveal or use confidential information to the extent that the lawyer reasonably believes necessary” to withdraw previous information now believed to be false.

He also covered the scope of the no-contact rule and when a lawyer's knowledge of a former client's "playbook" is sufficient to warrant a finding of a successive conflict. In the latter scenario, Gillers cautioned, “Be careful not to have communications that if they come to discovery, you did not want discovered.” He added that it is important to define in which capacity you are acting--as in-house counsel, as a lawyer or a business person.  It will affect the claim to privilege.

This presentation served as a perfect segue to the global expedition of attorney-client privilege for in-house counsel lead by panelists Sara Altschul, General Counsel, PR Newswire, David Zaslowsky and Robert Lewis, both partners at platinum sponsor, Baker & McKenzie LLP.

While there may not be drastic differences from state to state in attorney-client privilege for in-house counsel, panelists strongly encouraged that attorneys doing business in multinational environments become familiar with how it plays out in other countries.

Some key highlights included:

  • Do not take for granted that the elements of the United States attorney-client privilege for in-house counsel equal those abroad. While in-house counsel attorney–client privilege is honored by the British, Dutch, Irish and Canadians, it is not recognized in certain other European nations, including the Netherlands, France and Austria.
  • “You must understand what country has dominant interest,” said David Zaslowsky. “If a U.S. lawyer is giving advice about U.S. law to another country, the U.S. has dominant interest in that scenario.”
  • Under the topic of “Practical Considerations for In-House Counsel” Sara Altschul noted how important it is to plan for protecting attorney-client communications across borders. “Try to understand the basic rules of the country you are dealing with,” she said. Outlining that the planning process included recognizing the issue, training in-house colleagues and clients on the appropriate ways to handle communications, including emails, text and instant messaging, Altschul offered that often it is worth investing in outside counsel as attorney-client privilege is honored most universally that way.

The musical reception that followed was the setting for purposeful networking and an opportunity for members to share their thoughts about the CLE session.  “I found this ethics session to be very substantive and well-attended,” said Thomas Bockhorst of Colonial Consulting, LLC. “It is like a renewing of vows--the things we should know but could use a refresher on. That’s why there is a packed house,” he noted.

Janice Rehman from MetLife was the raffle winner of the iPad Mini provided by Baker & McKenzie, LLP.

We are most grateful to our featured speaker, panelists, sponsors, members and the Lighthouse Theater for their contributions to making this a successful event.  Click here for more photos 

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IP Practice Group “Roaring into 2014” with Exciting Programs for GNY
By Vince Castiglione, Vice President - Practice Groups, IPPG Chair

The ACC GNY IP Practice Group is off to great start in 2014 with two well-attended (and sold out) programs, and planning is underway for what will be some of the best opportunities yet for Members to connect around IP. Our 2014 IPPG Sponsor, Cowan Liebowitz and Latman, has partnered with us to create valuable resources for any of our Members having IP as a piece of their practice.

In January, the firm presented an enlightening and practical analysis of “The Ins and Outs of the New Top Level Domains."  Joining CLL partners Jeffrey Epstein and Eric Shimanoff was Katherine Winningham, Sr. Counsel for the NYC Law Department (“Corp Counsel”). The new TLDs affect any company (or business, for that matter) that has commercial/consumer presence on the Web. Using experiences that Katherine spearheads for the NYC Law Department, we heard a candid assessment of the pitfalls inherent in the new system of TLDs and steps that practitioners could take to “navigate the shoals” and protect their company’s brand presence in online commerce.

In March, CLL Partner Bill Borchard and yours truly presented three years' worth of IP law school classes in a single hour: “IP Protection for New Products."  In that 60-minute period, we covered precise, business-specific takeaways for trade secret, utility and design patent, copyright, trade dress, and domains that can be used to protect your company’s new product offerings. We learned why design patent (but not copyright) can be applied to protect certain products in retail and how multiple forms of IP that are simultaneously pursued may be the best way to “build a fence” around your product launch and give it the best chance for success.

Look shortly for an exciting “Jazz and IP” event we are planning for May. Now that New York City is “thawing” from its winter freeze, come celebrate spring with us and enjoy some camaraderie amongst like-minded peers.

And, as always, we would love to hear from you on any topics that you want to see covered by the IPPG. We also invite you to get involved with IPPG. Like any of ACC-GNY’s practice and affinity groups, the IPPG is a great way to meet fellow in-house colleagues, share ideas and best practices, advance your career—and most importantly, make new friends with folks that, like you, have chosen to make in-house work the career path of choice.

All the best, Vince

Vincent Castiglione
VP, Practice Groups, ACC-GNY

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“Drink Well, Do Good: In-house Pro Bono Event with Wine Tasting” – A Road Map to Good Intentions


ACC-GNY President, Reginald Rasch; ACC President and CEO, Veta Richardson; and
David Brill, ACC-GNY Immediate Past President

ACC-GNY’s February 25th dual event “Drink Well, Do Good: In-house Pro Bono Event with Wine Tasting” was like a road paved with good intentions and great directions on how to get there.  With well over 120 members in attendance, the evening provided a wonderful setting, a night of recognition, the reward of great information with optimal networking and wine tasting opportunities.

ACC-GNY’s CLE offering titled “Nonprofits Need Pro Bono Too: What You Need to Know in Order to Ethically Represent a Nonprofit” was chock full with information designed to address possible ethical issues attorneys face when providing pro bono representation to nonprofit organizations.

Two of ACC- GNY’s highly respected pro bono partners, Maurice Segall, Director of NY and Fairfield, CT programs of Pro Bono Partnership and Elizabeth Guggenheimer, Deputy Director/Director of Institutional Advancement, Lawyer’s Alliance for New York, gave overviews of their respective organizations and in their presentations covered requirements for pro bono representation.

Segall explained that Pro Bono Partnership was unique as it focused on providing pro bono opportunities to in-house counsel. Guggenheimer, in turn, explained that Lawyer’s Alliance of New York worked with a higher percentage of law firm attorneys, but did have many name change, tax matters and bylaw review opportunities for in-house counsel pro bono representation.  Highlights of their presentation included the increase in the annual aspiration of lawyers to provide pro bono legal services from 20 hours to 50 hours. As of May 2013, New York State attorneys are required to report pro bono services and their voluntary contributions to legal service organizations.  Also of note was that anyone making application to the bar after January 1, 2015, will have to complete 50 hours of pro bono service before being admitted.

“CLE credits are pretty easy to come by when you work for a law firm. They have more resources.  In-house typically has fewer opportunities,” said ACC-GNY member Toby Lewis, Counsel at QBE North America, as to why he found event opportunities like this to be of considerable value.

Chapter President Reginald Rasch said that often people think this is just another “dry CLE, but there is a networking factor, an exchange of ideas. This is in-house centered, and something happens in this group dynamic.” Rasch also stated that ACC is going to dedicate a webpage to the most recent pro bono opportunities the two organizations have to offer. 

The evening was also a proud one for the chapter as Global ACC President and Chief Executive Officer, Veta Richardson, presented the award for “Chapter of the Year” to ACC-GNY’s President Reginald Rasch. Richardson noted that it is a coveted award amongst the chapters and “an award that cannot be bought, but one that is earned.” She noted that the Greater New York Chapter had excelled in increasing its membership, number of programs offered, its focus on diversity and its leadership showed a dedication to community.

Palmer Vineyards of Long Island did an excellent job supplying high quality wines for the event and everyone seemed to really enjoy the wine selection.  Astra New York, a café by day, was the ideal location for the professional networking and CLE event.  Located in midtown Manhattan's exclusive Decoration & Design building, the panoramic river view from Astra's large fourteenth floor terrace was a significant enhancement to the overall look and feel of the after-work social with a purpose.

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New Member Welcome Breakfast
By Brian Campbell, Member Engagement Chair

The New Member Welcome Breakfast was held on Tuesday, January 28, at MetLife.  This event, designed to introduce new members to ACC membership benefits, was well received by those who attended.   Attendees learned about the value of ACC membership and the resources available to members, including CLEs tailored to in-house counsel, written materials on a wide variety of topics accessible from the ACC’s website, pro-bono resources and networking opportunities.  The chapter plans to hold another new member event later this year.



ACC Member of the Year, Vince Castiglione, and ACC-GNY  Board Members Talk
with New Members about ACC Benefits and Resources


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Digital, Technology, eCommerce & Privacy Law Practice Group Kick-Off Event – Vodka Lovers Unite!
By Frank Clark, Co-Chair -Digital, Technology, eCommerce & Privacy Practice Group

 Large Crowd Attends Kick-Off Event for New Practice Group

On March 20, 2014, the ACC-GNY held a Kick-off event to launch its brand new Digital, Technology, eCommerce & Privacy Law Practice Group.  Loeb & Loeb, LLP is the Sponsor for the Practice Group’s programming in 2014 and hosted this vodka tasting event in its exquisite Park Avenue based offices.

After opening remarks by Pauline Arnakis (Chair) and Frank Clark (Co- Chair) about the Practice Group’s launch with Loeb & Loeb LLP as the 2014 Sponsor and our three collaborative CLE programs for 2014, David Schaefer (Deputy Chairman – Loeb & Loeb, LLP) and Ken Florin (Partner,  Co-Chair of the Advanced Media and Technology Group; Chair of the Digital and Social Media Group) greeted everyone and expressed their excitement for the creation of this Practice Group and stated that they were really looking forward to working with the ACC – GNY Chapter this year. 


Left to Right:  Pauline Arnakis, ACC-GNY Board Member and Chair of the Digital, Technology, eCommerce & Privacy Practice Group; David S. Schaefer, Deputy Chairman and Partner at Loeb & Loeb LLP; and Tia Gilford, Senior Counsel at Rakuten Marketing

Attendees were treated to a varied assortment of exotic vodkas that were introduced by David Hamburger (Director of Special Events at Acker, Merrall & Condit).  Some of the more notable vodka choices included: Zyr Vodka ( which is produced in Russia and based on the work of Dmitry Mendekeev, Russia’s famous son of science and creator of the Periodic Table of Elements); Fair Premium Vodka Organic (which is made from high quality quinoa grown in Bolivia, using a very special production process); Titos Handmade Vodka (which is produced in Austin, TX at Texas’ first and oldest legal distillery); Spud Potato Vodka (made from spud potatoes and distilled five times for an incredible taste experience); Square One Cucumber Vodka (which is crafted by combining the essence of organic cucumber with original certified American rye vodka) and Hangar 1 Citron (which is made from the “Buddha’s Hand," a fruit that is the great grandfather of the modern day lemon).

The event was well attended and a majority of the audience members conveyed their excitement regarding the launch of the new Practice Group, offered some insightful initial feedback and indicated a strong interest in attending the planned CLE events for this year.  We sincerely want to thank all of the attendees, and Loeb & Loeb LLP for their gracious hospitality.  For more information about the upcoming CLE’s for this Practice Group, please visit our accgny.com web page. To become a member of this Practice Group, please follow the instructions on this ACC-GNY web page: http://www.acc.com/chapters/gny/Member-Practice-Groups.cfm.

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Constitutional Law Debate

ACC-GNY Volunteer Judges and Legal Outreach Constitutional Law Debate Winners

The chapter once again participated in the Legal Outreach constitutional law debate program.  Volunteer judges from the chapter heard various high school sophomores in the Legal Outreach program present a prepared oral argument on the debate topic, "The Constitutionality of the Affordable Care Act's Contraceptive Mandate." The judges asked a Petitioner/Respondent pair a series of questions about their position and judged them on their oral advocacy skills and use of case law. After the debate, judges took part in the award ceremony and attended a reception at which they provided feedback to the debaters and mingled with fellow ACC members.  Volunteer judges from the chapter were thrilled to participate in this outreach opportunity.  Click here for more photos.

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Diversity Corner
ACC-GNY and National LGBT Bar Association Join Forces on Out & Proud Corporate Counsel Awards
By Pauline Arnakis, Co-Chair of ACC-GNY Diversity Group

On February 27, 2014, the National LGBT Bar Association (LGBT Bar) held its Out & Proud Corporate Counsel Award Reception at the Eventi Hotel in New York City to honor Fabio Silva, Vice President & General Counsel of Fab.com, Inc., with the Out & Proud Corporate Counsel Award.  The National LGBT Bar Association was pleased to have in attendance Kevin Buck, ACC National ’s Vice President & Chief Marketing Officer and Pauline Arnakis, an ACC-GNY Director who also serves as Co-Chair of the Diversity Group, both of whom were delighted to partake in the event. Also in attendance were members of the LGBT Bar Association of Greater New York, an affiliate of the LGBT Bar.

D’Arcy Kemnitz, Executive Director of the National LGBT Bar Association, opened the event with a welcome address to the attendees. Following a cocktail networking reception, D’Arcy introduced the 2013 recipient of the New York Out & Proud Corporate Counsel Award, Matthew Morningstar, Executive Director, Legal & Compliance at Morgan Stanley.  Matthew then introduced the 2014 honoree, Fabio Silva, whose legal background, both at law firms such as Crowell & Moring and Arnold & Porter, as well as in-house at companies such as Burberry and Fab.com, shows his deep commitment to implementation of diversity and inclusion measures and equal treatment of LGBT professionals. At Fab.com, an eCommerce start-up that is a main source for unique design products and serves a national platform for industrial designers, Mr. Silva is assisting in the shaping of a diversity policy. Fabio’s acceptance speech was both inspirational and humbling, as he spoke of all the work that remains ahead in furthering awareness and inclusion practices for LGBT individuals.

Out and Proud Corporate Counsel Award Reception, Left to Right:   2014 Award recipient Fabio Silva (Vice President & General Counsel of Fab.com, Inc.), D’Arcy Kemnitz (Executive Director of the National LGBT Bar Association), 2013 Award recipient Matthew Morningstar (Executive Director, Legal & Compliance at Morgan Stanley), and 2012 Award recipient Larry Chanen (SVP & AGC at JPMorgan Chase & Co.)

Left to Right:  Mike Weiss, Patrick MacMurray (SVP, GC & Corp. Secretary, Goto Capital Markets, Inc. and a Founder of the LGBT Bar Association of New York), and Karl Riehl (President of the LGBT Bar Association of New York)

The LGBT Bar’s upcoming events include similar Out & Proud Corporate Counsel Award receptions in other major cities such as Los Angeles, Toronto, San Francisco, Philadelphia, San Diego and London, and the hosting of its 2014 Lavender Law Conference, Career Fair & LGBT legal expo on August 21-23, 2014 in Sheraton New York Times Square. For more information, please contact info@lgbtbar.org.

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A Night of Judiciary Diversity Hosted by the Puerto Rican Bar Association (PRBA)
By Pauline Arnakis, Co-Chair of ACC-GNY Diversity Group

The judges from Left to Right are Hon. Analisa Torres, Hon. Diana L. Maldonado (MA), Hon. Nelson Roman, Hon. Julia Rodriguez, Hon. Raymond Rodriguez, Hon. Javier Vargas, PRBA President-Elect Carlos Perez-Hall (kneeling) and PRBA President Elba Galvan (in gray), Hon. Denise Dominguez, Hon. Armando Montano, Hon. Julio Rodriguez III.

On February 19, 2014, at the Southern District of New York, US District Court, Board Directors of the ACC-GNY supported the Puerto Rican Bar Association (PRBA) by joining the PRBA’s Annual Judiciary Night Celebration to honor newly elected and/or appointed New York Latino and Latina Judges.  The event was well attended by PRBA members and supporters who came out to celebrate the lives and achievements of some extraordinary Judges.

At the start of the celebration, PRBA members introduced each Judge for a special award.  Their accomplishments are a testament to their brilliance, perseverance, ambition and dedication to the legal profession through service as New York Judges.   Among the honorees was Judge Analisa Torres, who previously served as Judge of the NYC Criminal and Civil Courts, and was nominated by President Obama in November 2012 and confirmed in April 2013 by the Senate to serve as a United States District Judge.  Judge Nelson Roman worked as a police officer in New York City for seven years prior to receiving his JD, and from 1989 to 1995, he served as an Assistant District Attorney in both Brooklyn and Manhattan. He was also nominated to the bench of the United States District Court for the Southern District of New York by President Obama.  One of the best received Judges of the evening was Hon. Javier Vargas, who is a Housing Court Judge and is actively involved in the PRBA, Association of the Bar of the City of New York, the LGBT Bar Association of Greater New York, Hispanic National Bar Association, and the Straight and Gay Alliance of the Unified Court System. 

Following the awards ceremony, PRBA Board members along with the very charming and hospitable judges, welcomed all attendees to partake in the wonderful Puerto Rican food buffet and cocktail networking hour.  Judge Edgardo Ramos, United States District Court for the Southern District of New York, who was born in Ponce, Puerto Rico, earned an A.B. in 1982 from Yale University and a J.D. in 1987 from Harvard Law School and is an Obama appointee, graciously helped serve drinks.  Pauline Arnakis, an ACC-GNY Board member and  Co-Chair of the ACC-GNY Diversity Group, and  Simon Kyriakides and Kevin Clunis, ACC-GNY Board members were well received and happy to be a part of this spectacular annual PRBA celebration.  

After the event, the PRBA’s President Elba Galvan stated: "The success of the Puerto Rican Bar Association's Annual Judiciary Night Celebration can be attributed to the hard work of many long before the event planning even begins.  The Puerto Rican Bar Association encourages Latinos in their efforts to become lawyers and once they become lawyers, to consider becoming judges.  While the judicial candidates do the work, they are supported by organizations such as the PRBA, ACC-GNY, and so on.   Everyone benefits when the judiciary, along with all institutions that comprise American society, reflect its diversity.”

Left to Right:  Neysa Alsina (PRBA Director and ACC-GNY Diversity Group Steering Committee), Pauline Arnakis (ACC-GNY Director and Diversity Group Co-Chair), Simon Kyriakides (ACC-GNY Director and Membership Engagement Co-Chair), Kevin Clunis (ACC-GNY Director and Membership Co-Chair), Carlos Perez-Hall (PRBA President-Elect).

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Member Spotlight
The Wind Beneath My Wings: How Leveraging the ACC’s Resources Has Helped Me Soar as a Newly Minted In-House Counsel
By Toby D. Lewis, Jr., Counsel (Executive Compensation, Employee Benefits and Employment & Labor), QBE Americas, Inc.

As is often the case, after earning my J.D. and M.B.A. degrees from New York University, I began my career at a large international law firm. However, following a few years as an associate at Latham & Watkins LLP and Willkie, Farr & Gallagher LLP, I aspired to become an in-house counsel.  My career shift six months ago was prompted by my desire to build and maintain intimate working relationships with a smaller number of clients, advise on a broader range of matters and execute projects based on legal counsel that accounted for applicable business risks. While my tenure at both law firms provided me with a solid foundation in my primary practice areas of employee benefits, executive compensation and labor and employment, the Greater New York Chapter of the Association of Corporate Counsel (ACC) has been instrumental in facilitating my transition from a private practitioner to an in-house attorney.

Since joining the ACC, I have leveraged several of its resources, particularly as it relates to professional development and pro bono opportunities.  Although pro bono opportunities are generally plentiful at law firms, as an in-house counsel, it is sometimes difficult to source transactional-based pro bono matters that are appropriate in scope, within your subject-matter expertise and present a minimal risk to the company.  However, after participating in the ACC’s Drink Well, Do Good: In-House Pro Bono Event with Wine Tasting, as a member of my company’s pro bono committee, I anticipate integrating certain of the risk mitigation strategies and matter management processes that were presented at the event into my company’s current pro bono efforts.  I also envision partnering with the Lawyers Alliance of New York, a co-presenter at the event, on future pro bono projects.

In addition, the ACC offers frequent continuing legal education sessions (which are particularly beneficial to in-house attorneys at companies with small legal departments) that help me stay current on cutting edge topics in my field. For instance, I recently participated in an ACC program regarding new changes in executive compensation reporting guidelines for publicly traded companies as well as an ACC seminar discussing New York City’s new sick leave law.  The seminar was especially useful to me as I recently modified my company’s time away from work policies.

Moreover, the ACC provides an online community of in-house employment attorneys via its e-Group forum. I have found this forum to be a valuable means of discussing evolving areas of the law, sharing general practice area pointers and discussing recommendations for outside counsel.  The forum has also been a conduit to my meeting in-house employment and employee benefits attorneys from around the country.

Thus far, my experiences with the ACC have been incredibly rewarding! I look forward to continue being both a dedicated contributor to, and a benefactor of, the ACC.

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Feature Articles
Representing the Compensation Committee: Perils and Best Practices for the In-House Counsel
By Bonnie J. Roe Partner, Cohen & Gresser LLP

Executive compensation has always been a contentious issue, but now more than ever it is the focus of shareholder activism and discontent.  Say-on-pay voting has increased the sensitivity of many compensation committees to the way they will be viewed by shareholders and has launched many corporate efforts at shareholder engagement.  The regulatory environment is also shifting.  New regulations on pay ratio disclosure, pay-for-performance, claw-backs of incentive compensation and restrictions on hedging company stock, are finally expected to be promulgated over the next year or so as required under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Dealing with this hot area can be challenging to in-house counsel at both large and small companies.  As lawyers, they have the obligation to represent the board, and not senior management, but of course they are, at the same time, part of management, reporting in most cases directly or indirectly to the CEO.  In this apparently conflicted position they are not alone:  the same or similar conflicts may be felt by regular outside counsel, other outside service providers and indeed other members of management.

What should in-house counsel do in light of these challenges?  Here are some suggestions:

  • Encourage the compensation committee to evaluate its own need for legal and other advice, and to adequately assesses the independence of outside advisors;
  • Evaluate the needs of the compensation committee from your own perspective, in light of the practical concerns of which you are aware and the potential for outside scrutiny; and
  • Be candid with the board and management concerning any conflicts that may exist, involving yourself or other counsel.
In addition, the curse of living in interesting times, as far as compensation matters are concerned, is that in-house must keep abreast of trends in compensation in order to properly advise the compensation committee, or ask the right questions of outside advisers.

The Compensation Committee’s Authority and Responsibilities under Dodd-Frank

Section 10C of the Securities Exchange Act, adopted as part of Dodd-Frank, and the rules of the SEC, the New York Stock Exchange and NASDAQ adopted pursuant to these provisions, require a compensation committee to assess the independence of its legal advisors and permit the compensation committee to select and retain legal and other advisors at its own discretion.  If the committee chooses to engage outside counsel, it must consider a list of factors designed to assess the independence of such counsel, including:  

•    the provision of other services to the issuer by such counsel or firm,

•    fees received from the issuer as a percentage of total revenue of such counsel or firm,

•    the counsel’s or firm’s policies and procedures designed to prevent conflicts of interest, business or personal relationships of such counsel to any member of the compensation committee,

•    any stock of the issuer owned by such counsel, and

•    any business or personal relationship between such counsel and an executive officer of the issuer.  

The committee may, however, choose to employ outside counsel that is not independent of the company, so long as it makes the required assessment and thus presumably accepts the non-independence of the counsel.  In addition, under the instructions to Rule 10C-1(b)(4) and the rules of the NYSE and NASDAQ, in-house counsel may provide advice to the compensation committee without the compensation committee making an assessment of their independence.  In explaining the reasoning behind this exemption for in-house counsel, the SEC noted that in-house counsel might play a different role than outside lawyers and in any case are not independent from management.

If the compensation committee decides to hire its own counsel, the committee is responsible for the oversight of such counsel and has the authority to determine the reasonable fees to be paid to such counsel by the corporation.  By contrast, outside counsel hired by the general counsel or other members of management is overseen by management, who would make decisions as to the payment of legal fees.

The Responsibilities of In-House Counsel, and Potential Conflicts

Both in-house counsel and regular outside counsel have the same client as counsel hired by the compensation committee:  in each case, the client is the corporation, and not any particular constituent group within the corporation.  Because the board has ultimate oversight over the affairs of the corporation, both in-house and outside counsel in effect report, directly or indirectly, to the board.  

In the ordinary course, in-house counsel may take direction from the compensation committee and consider themselves to be providing essentially independent advice to the compensation committee.  In-house counsel may also consult with regular outside counsel with respect to the advice or assistance that they provide to the compensation committee and such outside counsel may also believe themselves to be providing essentially independent advice.  In many cases, this arrangement is both workable and practical, and the introduction of additional counsel to provide a layer of independent advice would only add expense and possible irritation.  

Problems arise, however, when members of management have specific interests that are distinct from the corporation—the classic case in point might be the CEO’s employment contract.  Most determinations of senior management compensation at least potentially present conflicts of interest. The challenge for in-house counsel in these situations is to identify the possible conflict and determine how to handle it under the specific circumstances.  For example, in-house counsel could suggest that the compensation committee select and retain independent counsel, for situations such as the CEO’s new employment contract, where the regular outside counsel might share the in-house counsel’s sense of loyalty to management, and specifically the CEO, rather than the board.  In other situations, it might be sufficient to ask regular outside counsel to take a more active role in dealing with the board on a specific issue, to provide a perspective somewhat removed from, but not altogether independent of, management.  In any case where outside counsel is engaged, the compensation committee would have to assess the independence of the outside counsel, if it had not done so previously.  

Where in-house counsel identifies a potential conflict, it would seem to be the best practice for them to share their concerns with members of the compensation committee and let the compensation committee decide in the first instance whether they wished to retain independent counsel.  Yet it would also seem appropriate to allow in-house counsel to recuse themselves in some instances, even if the compensation committee is willing to, in effect, waive the potential conflict.  It may also make sense for in-house counsel to discuss conflicts and independence concerns with management as well, to make sure management understands the issues and the duties of in-house counsel to represent the corporation and the board, as opposed to representing members of management.

Working with Independent Counsel

In-house counsel are in many ways well situated to assess the need for outside counsel in the boardroom, because they understand the intrapersonal dynamics affecting the board and other persons involved in compensation decisions, which will influence whether separate counsel needed.  In some situations, however, the decision to hire independent counsel may be made without the input of in-house counsel.  The compensation committee could decide on its own that it wanted to retain separate counsel, for reasons that it might not share with in-house counsel and that might not relate to any specifically identifiable conflict.  In other situations, the use of outside, independent counsel may be dictated by events, such as an acquisition or the threat of litigation from an activist investor, or just the complexity of the issues, which may require the hiring of outside counsel with specialized expertise.

If the compensation committee selects independent counsel, in-house counsel may still have a significant role on the matters in which independent counsel is involved, identifying issues, providing information and coordinating among management, the in-house legal staff and outside counsel.  In-house counsel still owes its primary duty to the corporation and the compensation committee in working on compensation matters; the selection of independent counsel for the compensation committee does not relieve them of that obligation. 

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Does America Need a National Rule on Preservation? And Should We Support the Proposed Fed. R. Civ. P. 37(e)?
By Robert D. Owen, Partner, Sutherland Asbill & Brennan LLP

     I join many others in commending the Advisory Committee on Civil Rules for proposing to reform Fed. R. Civ. P. 37(e) concerning preservation and sanctions.  The Committee’s goal is to end the wasteful and costly overpreservation that has become endemic in the last ten years.  They propose to empower companies to make reasonable, good faith decisions regarding preservation without worrying that a simple mistake could lead to embarrassing and case-ending sanctions.  This article is adapted from my written submission and testimony to the Committee, updated to reflect the revised proposed rules published on March 21.

I.   There Is an Urgent Need for Rule-Based Preservation Reform.

     Since the adoption of the Federal Rules of Civil Procedure in 1938, the biggest changes in American civil litigation have flowed from the digital revolution.  When the Federal Rules were adopted and for decades thereafter, full pretrial disclosure imposed a relatively modest burden in most cases, even for larger litigants in larger cases.  However, the explosion of electronic data volumes and sources in the last 20 years has transformed pretrial disclosure into a complex, expensive, and risky exercise for large organizations.  

     The exponential expansion of electronic data volumes and sources is old news.  But what is now routinely overlooked is how radically the evolving federal common law of preservation altered the American litigation landscape.  I refer, of course, to the pre-commencement duty to preserve.  Using the ancient prohibition against destroying obviously important tangible evidence as a stare decisis justification for their decisions, courts facing egregious conduct imposed a very different duty on all litigants ­- a new affirmative duty to preserve all discoverable material, including nontangible information in whatever form, as soon as they “reasonably anticipate” bringing or defending an action.  “Don’t destroy or lose a central piece of evidence” over time became “You must preserve everything discoverable.”  

II.    The Current Preservation Law Has Many Problems.

       The current common law on preservation is:

     A.    Inconsistent.  The current judge-made regimen produces different outcomes in different jurisdictions, leading to confusion and unfairness.  Companies operating nationally must adhere to the requirements of the most extreme cases.

     B.    Imprecise.  The law on preservation affords scant definitive guidance to potential litigants regarding (a) trigger, (b) scope, (c) manner of preservation, or (d) duration.  Companies seeking in good faith to avoid the shame, cost, and prejudice of a spoliation charge inevitably over-preserve.  Individual litigants are also increasingly subjected to litigation risk by the lack of clear guidance.

     C.    Unjustified.  The current system of affirmative preservation was created without empirical evidence of need, and what evidence exists suggests that spoliation, whether intentional or inadvertent, is not a rampant problem.

     D.    Radical.  The current preservation regimen has silently reversed the long-prevailing presumption that persons in possession of evidentiary material would not destroy it.  Despite the absence of empirical justification, our federal courts have reversed this presumption, and now require affirmative oversight and policing by lawyers and judges in all cases.

     E.    Unbalanced.  A putative plaintiff can impose a “reasonable anticipation of litigation” on a defendant by simply sending a preservation demand letter, but Rule 11(b)’s certification requirements – that he has a good faith basis for his allegations – do not apply to him until that day, if ever, that he files a formal complaint.

     F.    Expensive.  The hypothetical benefits of the current preservation regimen do not justify the very real costs and burdens.

     G.    Spurs Ancillary Litigation.  The new preservation regimen has spawned an area of dispute entirely ancillary to the merits.  

III.    Only a Clear, Tightly Written, National Rule Can Restore Uniformity and Fairness.

     The Committee has noted that a split in the Circuits exists on the most central issue presented by the current regimen, the so-called culpability factor.  

     The outlier negligence culpability standard of Residential Funding must be unambiguously supplanted by rule, because it forces parties who face litigation nationally to adopt wasteful, overbroad preservation practices.  

     If a party did not intentionally destroy evidentiary material, an adverse inference is inappropriate.  Why?  If the alleged spoliating party did not intend to lose or destroy evidence in order to keep it out of the hands of a litigation opponent, it is simply unfair to presume that the evidence was unfavorable to its case.  

     Negligence is an increasingly an unfair measure of culpability, because data volumes, sources, and complexity have exploded far beyond 2002 levels, when Residential Funding was decided.  Moreover, unforgiving, draconian responses to simple human error have never found a comfortable home in our due process-based system.  Our jails are not filled with people who merely made mistakes.  

     This is a complex and controversial area; the rule must be tightly and clearly written.  Lawyers and judges outside “the Sedona bubble” need a clearly written rule, and judges disinclined to change their views do too.

     Practitioners.  The Federal Rules of Civil Procedure are intended to provide clean, definitive answers to procedural questions.  The typical practitioner finds the rulebook, looks up the answer, and acts or rules accordingly.  The preservation rule should be as clear and unambiguous as possible, so those lawyers know what their and their clients’ preservation duties are and have a fair shot at making the right preservation decisions.

     Judges Outside the Sedona Bubble.  It is not only practitioners who need clear guidance; most judges do, too.  While there are over 670 district judges and over 500 magistrate judges, only a few dozen of those at most regularly attend and speak at conferences organized by Sedona, Georgetown, and EDI.  The rest of the bench needs clear guidance on this tricky – and consequential – topic.  The rule should be rewritten to provide it.

     Judges Disinclined To Follow the Committee.  Third, there are also judges whose personal views are out-of-step with the Committee and to ensure they adhere to the intended outcome of the rule-making process, tightly worded guidance is essential.  

IV.    Proposed Rule 37(e) Should Unambiguously Require a Showing of  Intentional, Bad Faith Destruction of Discoverable Material.

     The proposed Rule 37(e) is a powerful, good step in the right direction, and the proposed revisions released on March 21 (the “revised proposals”) have substantially improved the August 15, 2013 draft published for public comment.  The revised proposed Rule 37(e) would read, if adopted, as set forth in the margin. 1

     First, the original draft rule 37(e) would have forbade sanctions where a party’s actions were not “willful or in bad faith” but “willful” is an imprecise term that can encompass deliberate but entirely innocent actions.  I argued in my comment that the solution is to define “willful” as proposed by The Sedona Conference®: the alleged spoliating party acted with intent to deprive the opposing party of material evidence relevant to the claims and/or defenses to the matter prior to the imposition of sanctions and/or any curative measure that would be tantamount to a sanction.  Many others argued likewise, and the revised proposals have dropped “willful or in bad faith” altogether.  Proposed Rule 37(e)(3) would require “a finding that the party [that failed to preserve ESI] acted with the intent to deprive another party of the information’s use in the litigation” before a court could (A) presume the lost information was unfavorable to the party, (B) give a mandatory or permissive adverse inference instruction, or (C) dismiss the action or enter a default judgment.  

     Second, the proposed rule had an “irreparably deprived” exception in 37(e)(1)(B(ii) that would have allowed the court to order sanctions even in the absence of willful or bad faith destruction of data.  This too was controversial and I had recommended it be dropped or made applicable only to tangible things.  This provision was dropped from the revised proposals, and revised proposed Rule 37(e) was made applicable only to ESI.

V.    The Non-Exclusive List of Factors Contained in Proposed Rule 37(e)(2) Should Be Omitted.  

     I had argued that the factors listed in proposed Rule 37(e)(2) would dilute the rule’s intended focus on a requirement of bad faith, do not provide definitive answers, and omit – and thereby undervalue – equally significant considerations.

     The determination whether a party has “failed to preserve discoverable information that should have been preserved”2  is entrusted to the sound discretion of the district court.  To provide guidance to courts, the Committee has proposed to include a list of factors in Rule 37(e)(2).  Although they are well intentioned and the proposed Committee Note that accompanies them is well written, I believe the factors should be dropped from the rule, for several reasons.  

     First, for example, the second factor – “the reasonableness of the party’s efforts to preserve information” – risks substituting a determination of reasonableness for a determination of intent.  If a court can make a hindsight determination regarding the reasonableness of preservation efforts and conclude that unreasonable preservation efforts suggest an intent to destroy information on the part of the preserving party, how would this rule reassure preserving parties that reasonable preservation efforts will suffice to avoid sanctions?  Why would they not continue to over-preserve?

     Second, the factors are not tightly written and may lead to confusion and inconsistency among district courts (because such decisions are rarely appealed the inconsistencies will not likely be reconciled by higher courts).  For example, the fourth factor suggests that a court consider “the proportionality of the preservation efforts” to the litigation.  But what does this mean?  Nowhere in the rule or in any proposed Committee Note is there a flat statement that preservation efforts can be limited so as to be proportional to the anticipated or actual action.  Some courts may construe the factor as signaling that preservation can be so limited, while others may hold otherwise, concluding that the factor is non-exclusive, non-binding and only advisory.  If the Committee intends the former, it should say so expressly.

     Third, courts may give the listed factors undue weight and undervalue equally important considerations that are not listed.  Individual litigants who are inexperienced in litigation will certainly want to argue that their mistakes in making preservation decisions should be excused, but they would find no support anywhere in 37(e)(2).  

VI.    Conclusion

     The continuing collision of the Depression-era full pretrial disclosure approach and mammoth case data sets has created an unbalanced and unfair situation that is fraught with risk for large entities and which distorts civil litigation results.  The changes to the Federal Rules of Civil Procedure proposed by the Committee will not entirely rebalance the system, but they are a strong step in the right direction.

link to full submission of this article 


1Rule 37.  Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(e) FAILURE TO PRESERVE PROVIDE ELECTRONICALLY STORED INFORMATION. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A) the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D) whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.

2Proposed Rule 37(e)(1).  

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Data Marathon - Hot Topics for In-House Counsel
Volunteer Opportunity for ACC-GNY Members - PENCIL Fellows Program, April 30, 2014
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ACC-GNY and National LGBT Bar Association Join Forces on Out & Proud Corporate Counsel Awards
A Night of Judiciary Diversity Hosted by the Puerto Rican Bar Association (PRBA)
Member Spotlight
The Wind Beneath My Wings: How Leveraging the ACC’s Resources Has Helped Me Soar as a Newly Minted In-House Counsel
Feature Articles
Representing the Compensation Committee: Perils and Best Practices for the In-House Counsel
Does America Need a National Rule on Preservation? And Should We Support the Proposed Fed. R. Civ. P. 37(e)?
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