Category: Features

There can be few legal roles in the US of as much significance and substance as White House counsel. And when Beth Nolan jettisoned film school for law school, she had no idea that her eventual career, including serving as White House counsel for President Bill Clinton – the first female to ever take on that role – would be almost the stuff films are made of.

But the path to what could be termed the ultimate general counsel role was not an obvious progression for Nolan. Eschewing private practice thanks to an interest in public policy law, she found herself as a junior attorney with the US Department of Justice (DOJ), tasked with working on government ethics.

‘I was really disappointed when I was given that assignment if I’m honest,’ she recalls. ‘The Office of Legal Counsel is known for handling the weightiest questions of executive power and executive privilege and I felt like I was going to be advising whether somebody can accept the free gift of tickets to a tennis tournament.’

But Nolan’s initial reservations turned out to be unfounded, and her burgeoning passion for ethics would go on to shape the course of her career. After four years at the DOJ, Nolan began teaching at George Washington University, where she taught constitutional law, but wrote about government ethics and lawyering.

‘That’s the specialty that was eventually of interest to President Clinton in the White House when I first started as an associate. There were scores of constitutional scholars but there weren’t that many people who really knew government ethics, and so that changed the trajectory of my career and my life,’ she reflects.

APPLIED ETHICS

Of course, at the time, as a recently tenured associate professor at George Washington, Nolan still didn’t know that. After volunteering for the Clinton Presidential Transition team, she was offered a role running the government ethics programme at the White House.

‘My original four years in the Justice Department were during the Reagan administration. There had been eight years of President Reagan, followed by four years of President Bush. So there weren’t that many Democrats who had government experience in government ethics laws, particularly some of those that had come through from the Ethics in Government Act of 1978,’ explains Nolan.

‘I was somebody who was teaching it, writing about it and had prior government experience actually doing it. So I got called to the attention of the people in the White House, went to meet with them and was offered the job.’

Putting academia to the side, Nolan was given a leave of absence to return to government. And although she’d spent the past eight years focused on government ethics – the realities of her new position would set in almost immediately.

‘I think I had a misconception that I would still have time to think about theory. I had this image of myself as being tucked away in some basement of what’s now the Eisenhower Executive Office Building working in my office on difficult issues,’ she says.

‘Instead, it’s a rodeo ride. I remember having to slow down to take a breath. When I look back at it, I remember having to tell myself – as a friend advised me to – “Stop and take a picture in your mind.” I really tried to do that.’

Nolan spent two and a half years doing conflict of interest counselling and vetting non-judicial presidential nominees and appointments, before returning to teaching – anticipating spending the rest of her career in academia. But then the former ‘vetter’ found herself on the other side of the equation.

‘In the spring of 1996, I was asked if I wanted to return to the Justice Department as the nominee for assistant attorney general for the Office of Legal Counsel. Sometime in the start of President Clinton’s second term I was nominated, and I waited a year before I got a confirmation hearing,’ she explains.

‘I had my confirmation hearing, waited a year and still hadn’t had a vote on my confirmation hearing – it was caught up in politics. I of course respected the Senate and their prerogative, so I just waited and waited.’

But in another twist of fate, as one door closed, another door opened for Nolan. In the summer of 1999, she was invited to return to the White House, this time as White House counsel.

FOLLOWING MR SMITH

The White House counsel is the chief legal adviser to the president (in their official capacity) and the White House staff. A non-statutory position, unlike the statutory standing of the attorney general role, the White House counsel is there to advise as the President wishes, meaning that each Presidential incumbent can have a counsel who fulfils different roles, depending on their relationship.

‘But in a well functioning, modern White House, I’d say there are some things that you would expect the White House counsel to always do: to serve as a liaison to the Department of Justice; to coordinate legal issues with other departments and agencies in the executive branch; to help respond to congressional inquiries and investigations; and then to provide advice and counsel to help the White House staff stay fully within legal boundaries as they execute on their policy agenda,’ explains Nolan.

Like any general counsel role, this involves handling multiple constituencies – although, in this instance, those parties are Congress (both the House of Representatives and the Senate) and other executive agencies, all of which have interests that might be incompatible in any particular moment – in a mission-driven environment.

‘The mission of the White House may change a great deal depending on who the President is, but some of the mission has been pretty consistent over time too. Ultimately, it’s to do what is seen as being in the best interests of the American people or the nation.’

And of course, not many general counsel roles involve an interview with the President of the United States!

‘That moment does stick with me, particularly because the meeting was in the main floor of the State Rooms of the White House itself, not in the West Wing,’ Nolan recalls.

‘I think if people had seen me going through the halls of the West Wing to the Oval Office to meet with the President, there might have been speculation. So instead, it was in the White House itself – which is just majestic, and you have such a sense of history.’

That sense of history is significant, not just from the perspective of the long-standing history of the institution itself, but for those who came before Nolan and laid the foundations for her to be selected and assume the role of White House counsel.

‘I came in as a successor to Chuck Ruff, certainly not as his replacement, because no one could ever have replaced him. But I’d had the opportunity to work with him, as well as John Podesta, who was the chief of staff, and with Cheryl Mills and Bruce Lindsey, who were the deputy White House counsels. And, to be frank, if Cheryl Mills hadn’t already decided that she was going to leave government, she would have gotten the White House counsel position and I wouldn’t be talking to you about this at all,’ admits Nolan.

‘Funnily enough too, being nominated as the assistant attorney general for the Office of Legal Counsel and not receiving confirmation actually helped me significantly. Had I been confirmed, then it’s likely that this opportunity would never have arisen for me, but it also meant that, as a result of that process, I had already been thoroughly vetted.’

TAKING THE REINS

Despite coming in after the impeachment proceedings against President Clinton had concluded, Nolan entered into a highly charged political atmosphere, replete with investigations alongside the day-to-day role, itself stuffed with with plenty of variety to keep her busy.

‘I remember one day where there was an urgent national security matter that we had to attend to, followed by another urgent call about the implementation of the Easter Egg Roll! Sometimes it really was just like that,’ she says.

‘What I learned was that you have to really love and embrace every kind of real issue and question that arises during your role. I was very fortunate, as I had a really great staff of lawyers who did that – it wasn’t always just down to me or my personal obligation.’

The day-to-day workload also encompassed matters of executive privilege, questions about political activity, nominations and appointments, conflicts of interest, congressional investigations, independent counsel investigations, as well as the everyday business of running a government agency. But despite the absorbing nature of the role, Nolan retained a fangirl’s appreciation of government fostered by her days as a student – and teacher – of its apparatus.

‘I had the privilege of being there at the start of the administration and then at the very end – albeit in different roles. But the machinery of government transition never failed to awe me – that at 12 noon one person is President, and at 12:01 another one is, and almost the entire White House staff changes in that minute. To someone who loves and taught constitutional law and focused on government issues in my research, there was really no better opportunity to be a witness to the way our government works than those moments of transition,’ she says.

‘[At the end of an administration] you don’t leave things. It’s not like at the Justice Department, where one administration leaves and another comes in but there’s a vast group of civil servants who continue on – there, it’s only the top layer that changes and all the documents and records and files remain. In the White House, everything goes. It’s not tossed – it goes to the National Archives and then, in many cases, to the Presidential Libraries. But it’s not in the White House – you come into empty filing cabinets and computers that have nothing on them, and a staff who largely have no idea what they’re doing.’

That means that each new administration and its staff – and subsequently its counsel – have the opportunity to shape their own role and agenda, though, in large part, the role of the White House counsel in particular will, by its very nature, be one that is as reactionary as it is prescribed.

‘I think, in the 2000s, national security matters have played a much more prominent role. I certainly had to handle my share of national security matters, but that focus on terrorism in the 21st century, I think has certainly changed the White House counsel’s job,’ says Nolan.

‘During my time in the White House, we were dealing with multiple congressional investigations. This White House is just starting to face that now, whereas in the first two years they didn’t really have to deal with that at all. That’s going to shift the role for the current White House counsel. But, in large part, I think in any general counsel position there’s certain bread and butter things you have to do. Sometimes it’s going to be more bread and butter, other times it’s a lot more cake and jam!’

I BEG YOUR…

Another potentially significant aspect of the White House counsel role – albeit one that could potentially be handled differently by every White House – is the thorny issue (even to this day) of the presidential pardon. The US Constitution allows for the President to issue pardons, or official forgiveness, to felons convicted of a federal offence. President Clinton issued a large number of pardons on his last day in office, sparking controversy.

‘We certainly handled pardons at the end of the administration in a way that was different from the way they’d been handled before, because the President really wanted to be sure that he was able to exercise his pardon power, and the rate of pardon recommendations coming out of the Justice Department was very slow. Although we tried to get people alerted that we wanted a faster process early on, things just didn’t proceed that way. We ended up in the White House reviewing some pardon applications directly, still working as closely as we could with the Justice Department,’ Nolan explains.

‘We would review their recommendations, in some cases we disagreed with their recommendations, and we’d advise the President that in some cases we agreed. We’d give the President – and also the chief of staff was involved in some of these as well – our best advice about whether or not to grant a pardon. But ultimately, it’s the President’s power – I read my copy of the Constitution and I didn’t actually see the counsel to the President being given any authority in this.’

One pardon in particular that stoked the flames of controversy, causing a federal prosecutor to be appointed to investigate its legality, was Clinton’s pardon of Marc Rich. A financier and commodities trader indicted on charges of tax evasion and trading with Iran while the country was under embargo, Rich had fled the US.

‘I did testify about that after I left the White House – the President waived any privilege with respect to that pardon. I testified at the time that I did not recommend that you grant that pardon. I didn’t see anything improper about him granting the pardon, I just, as a matter of policy, didn’t think it was a good exercise of the authority. But, as I said, I had no doubt about the question of policy on who got to make that decision,’ says Nolan.

‘Congress and the US attorney all were interested enough to investigate the exercise of the pardon power – so it wasn’t treated as a hands-off issue completely. In fact, my very first day as counsel to the President, I was delivered a subpoena from Congress to testify about pardons that the President had granted before I even became counsel. So Congress has, in other times, not been shy about investigating or reviewing the exercise of the pardon power. I never felt tested as I didn’t see anything improper. I think that the President likely has the authority – Congress can complain about it – but it will be interesting to see if there are other limitations that get explored over time.’

WHITE HOUSE TO IN-HOUSE

After leaving the White House at the change of the administration, when President Clinton handed over the proverbial keys to President Bush, Nolan chose to tread a different path. Following a career spent working within the government apparatus, she pursued a brief tenure in private practice.

‘When I left the White House, I thought to myself that I really liked being a general counsel and knew that this type of role was a strong fit for me. But I also realised that while I’d had government jobs and academic jobs, I didn’t have any experience on the private side,’ says Nolan.

‘That’s why I chose to go into private practice, so I could get that exposure to a broad range of clients and legal issues, but perhaps most importantly, I needed to get some experience on the business side.’

Nolan would join Crowell & Moring as a partner, where she spent five years working in the firm’s white-collar and securities litigation practice – a period she credits with instilling the requisite broad-based knowledge to successfully assume a commercial in-house role.

‘Gaining that experience was really valuable for me, but I felt a strong desire to be a part of a team, not just an adviser to a team, but a member of the team with ownership of the matters on which I worked,’ she explains.

‘I also wanted a job where I felt aligned with the mission, so when the opportunity to return to George Washington University as general counsel arose, I knew it was one that resonated with me. I’d been a law professor there ten years earlier and it really hit the objectives that I was looking for. I think having served as a faculty member who had been through the tenure process only enhanced my ability and service as the general counsel.’

The opportunity to come back and serve as the chief legal adviser to the university that served as the springboard for her professional life ties the career of Nolan together with a bow that is almost too perfect – perhaps the final stop in a career which has truly come full circle.

A MOMENT OF REFLECTION

Looking back, Nolan exudes a sense of pride in being the first woman to serve as White House counsel, and in having played a role in felling a professional barrier for women. Since her appointment, two more women – Harriet Miers and Kathryn Ruemmier – have served.

‘But I think the feeling I had in the moment was mostly very personal. It was a mix of pride and excitement and sober awareness of the responsibility,’ she says.

‘And then I look forward, and what I look forward to is the day where there are no more firsts, and it’s not remarkable that a woman is appointed. I think we keep moving along that path. We’re not there yet, and I had that opportunity to be a first, but I’d love it if there were no more firsts.’

Now with the benefit of experience on her side, reflecting on a life in law which has spanned the pinnacles of government, academic, private practice and in-house functions, Nolan says that there’s no secret solution for success – but did offer some sage advice for the next generation:

‘I can only say what worked for me, and the important thing to consider is that what works for one person may not work for another. What worked for me is that I followed what interested me, I tried to know myself well enough to know exactly what that is,’ she says.

‘To add to that, I think one of the really important things is to figure out how you can be yourself at your job and, if that isn’t working, you have to focus on what needs to change. I’d say sometimes that’s the job, sometimes that’s you and sometimes that’s a combination. But use disappointment as a tool to learn and grow and, perhaps most importantly, don’t forget to enjoy the ride.’

Since we published our first GC Powerlist in the United States, the series has gone from strength to strength in countries ranging from Australia to Costa Rica, and South Africa to China. We have interviewed tens of thousands of general counsel, and highlighted some of the very best GCs and in-house teams around the world. And now, in early 2019, we find ourselves back with the United States. But for the biggest legal market, where do we go from here?

Simple answer: bigger. For the first time, we have expanded the GC Powerlist to include the leading 500 GCs, representing some of the largest global corporations, to tech-savvy start-ups and everything in between. And for the first time, we have also included the leading lights in legal operations, an area which is threatening to dominate the in-house conversation for the next decade.

The full GC Powerlist is available from 22 March 2019 at legal500.com/gcpowerlist, and features interviews and insight from the pre-eminent in-house leaders in the United States, including:

‘Last year, I had sole responsibility of negotiating with over 460 law firms on a comprehensive engagement agreement. This effort was the foundation of fundamental changes in how we engage and retain law firms,’ – Alan Bryan, Walmart.

‘The wider company has profited not only by the expert legal advice delivered in a non-judgemental, collegial way, but also by the sense of common purpose that results from a true partnership between in-house lawyers and their business clients,’ – James E Ballowe Jr, E*Trade.

‘The number one piece of advice I would give an aspiring in-house lawyer is to read and listen. I need to anticipate what’s coming so that business can be ahead of the curve,’ – Susan L Lees, Allstate.

‘I deeply believe that the legal function must be an integral part of the company, rather than viewed as standing in opposition to what the company is doing,’ – Rena Hozore Reiss, Marriott International.

The Legal 500’s GC Powerlist is sponsored by Linklaters, Basham and Yerra Solutions, and is supported by the International Bar Association and the Association of Corporate Counsel.

As a billion-dollar franchise and one of the most recognisable entertainment brands in the world, the chief legal officer of The Pokémon Company International may be one of the more coveted in-house roles on the market. For the past 11 years, Don McGowan has occupied that position and has taken the brand through a plethora of groundbreaking international deals across a broad range of industries. From spearheading the legal negotiations surrounding the launch of the hugely successful Pokémon GO mobile gaming app to playing an integral part in the licensing agreements of the upcoming live-action Pokémon film, McGowan has enjoyed a diverse portfolio not always typical of the general counsel.

But these feats are only the beginning for McGowan, who, unlike most GCs, can add ‘Hollywood movie producer’ to his already impressive résumé. Between juggling his legal duties as GC for The Pokémon Company International, he is also a producer for the highly anticipated Pokémon: Detective Pikachu movie set be released in May. A modern-day renaissance man, McGowan is redefining the traditional role of GCs, showing legal expertise can be just as useful in an office as on a Hollywood movie set.

Despite it all, McGowan still manages to find time to advocate for children’s rights as a board member for the National Center for Missing & Exploited Children and teach entertainment law at the University of Washington. Heading into an eventful 2019, McGowan is showing little sign of slowing down.

I Choose You

Before moving to the bright lights of Hollywood and becoming a gaming and entertainment law luminary, McGowan began his legal career as a litigator in Quebéc, Canada. In his journey toward the multi-dimensional position he now enjoys, McGowan admits he stumbled upon more than a few lucky breaks.

‘To a certain degree my career path has been like Forrest Gump,’ McGowan admits. ‘I’ve sort of fallen repeatedly into opportunities – and you know, I’m not so blind to the idea to say the harder I work the better luck I have, but certainly there has been a fair amount of luck.’

McGowan’s career trajectory has included a few once-in-a-lifetime opportunities. This good fortune paired with a strong work ethic has been fundamental to his sustained success.

‘You pick up the skills that life requires you to have,’ he says. ‘I got to Pokémon in August 2008. Prior to that I was the lead lawyer for Xbox games, but at the time we called it Microsoft Game Studios. So, I have worked in the gaming industry and the media industry for about 15 years. Prior to that I actually worked in security and cryptography at Microsoft.’

While at Microsoft Game Studios, McGowan worked on a range of video games, handling everything from franchising to advertising to compliance issues. He also negotiated one of the first video game-based movie deals for Halo, Xbox’s flagship gaming title. While that project didn’t eventually come to fruition, the experience put him at the forefront of gaming and entertainment law, so when McGowan heard of an opening on the in-house team at The Pokémon Company International, he knew his work experience would make him the perfect fit.

Gotta Catch ‘em All

The Pokémon portfolio covers games, movies, television shows, trading cards and a staggering amount of other merchandise across a multitude of mediums. In recent times, the most well-known Pokémon export has been the runaway success of Pokémon GO – a mobile game. Employing location-based augmented reality, the app allows users to capture, battle and train Pokémon in real-world locations, in conjunction with other real-life players. To date, Pokémon GO has been downloaded over 650 million times and has established itself as a global cultural phenomenon. The success the app would become took the world by surprise, including McGowan.

‘I promise you no one gets up in the morning thinking today is the day we launch a cultural phenomenon. You don’t get up in the morning to say: “Today the world changes”.’

McGowan might be accused of hyperbole, but it’s easy to make the case that he’s being realistic: users spent $75m on the app via the Google Play store in December 2018 alone, and a staggering $262m across the year. As of the start of 2019, the app had brought in a total of $2.2bn of revenue since launching in 2016.

McGowan was instrumental in coordinating the deal between The Pokémon Company International and Pokémon GO’s development company, Niantic. Niantic was a start-up spin-off of Google, and comprised of a team of people who played key roles in the development of Google Earth and Google Maps. Transforming this technology into a safe, fun gaming experience looked like a gigantic legal risk at the time.

‘I had people coming up to me saying, “I cannot believe you are going to do a game like this – good luck, man!” Not exactly the vote of confidence you’d hope for,’ says McGowan.

‘I don’t think it is a question of being risk averse, I think it is a question of being attuned to the risks, being cognitive of them, developing your product with them in mind and figuring out the way to address them. And I think that is something that any good legal department does.’

Putting Pikachu First

For as ambitious as the project was, Pokémon GO’s life to date has been a surprisingly smooth one.

‘We launched a worldwide geolocation game with no regulatory issues,’ he says flatly.

A large part of the regulatory success of Pokémon Go can be credited towards McGowan’s focus on brand preservation. This meant ensuring issues of data privacy and child protection were at the top of the list of potential legal concerns. Pokémon has existed for over 20 years and has developed a reputation as a globally trusted children’s brand, so this was a North Star of sorts when navigating potential legal risks. This approach was founded from the position that parents identify the Pokémon brand with products created with children’s safety in mind.

‘That is a really powerful responsibility for us to have and it is something that permeates the company’s DNA,’ says McGowan.

Most of the work in this area was undertaken by himself, but supported by a small team of eight people at the time.

‘My work in these areas was particularly important, because at that time Niantic had no legal staff and so, functionally, that meant all of the legal work on clearance and all the work on the game was done through me,’ he says.

‘There is a thing I do in every sort of meeting I am having with people to discuss a new idea or a new situation – I run through a list in my mind: what are the kids’ privacy issues, what’s the advertising issue etc, and at the end of it I look at my team and I say okay – last question: what have I forgotten to think about?’

The practicalities of the app are such that the cost of getting it wrong is high. The game encourages its users – many of whom are children – to roam their neighbourhoods and cities looking for Pokémon to catch. The fact that the app’s bread and butter are the location tracking adds another complexity to the ethical considerations that must be taken into account.

‘We are obviously looked to as people who have sort of leading expertise on privacy and children’s issues and we are happy to help, and we are happy to share,’ says McGowan.

Expanding from a legal team of eight to a legal team of 19 over the past three years, McGowan acknowledges that Pokémon GO has given The Pokémon Company International the opportunity to grow. With the 2019 release of the live action motion picture, further expansion brings its own host of legal hurdles.

Time to Evolve

It was a cold evening in January when filming began for the Detective Pikachu movie. McGowan was on set and watched as Ryan Reynolds came in to voice Pikachu. He says he knew from that moment on this movie could become a really big hit.

‘That was the moment that everything became real. This is actually happening, we’re making a movie! I never thought it would happen in a million years,’ he says.

‘But sitting there, as Ryan Reynolds – who didn’t even need to be there because he was doing a voiceover part which is shot from the booth – came in, in the middle of the global promotional tour for Deadpool 2, to shoot the scenes. That’s when everything we’d all worked for really crystallised and became real.’

It was through the relationships McGowan built within Legendary Entertainment and Pokémon International, that he was able to secure the once-in-a-lifetime opportunity to work as both in-house counsel and movie producer on the same project.

As a producer, McGowan was involved in everything from advising on casting, directing and script and, while cautious to maintain a separation of ‘church and state’, McGowan was able find the perfect blend between the two skills.

From a legal standpoint, McGowan and his team did almost everything from papering up the agreement to negotiating and ironing out details of the deal between American-owned Legendary Entertainment and his Japanese parent The Pokémon Company, with movie distribution rights going to Warner Bros. McGowan had the task of bringing companies operating in two different jurisdictions – with two different cultures – together.

‘A lot of what I describe in that movie project is, you know, you have two parallel lines and every now and then somebody has to pull them together and make them meet.’ In a lot of ways, McGowan says that was his legal team’s job. Along with putting together the paperwork, McGowan’s team had to also solve adaptation issues that arose from turning a video game into a movie.

‘Detective Pikachu launched as a video game, so we had the pre-existing video game we were working with and there were all the adaptation issues that go into that as well,’ he says.

‘There were a couple of things in the first trailer, where people quite rightly pointed out that music was a rework of something from the video game or a rework from the TV show. We have to make sure the rights were cleared on all of that stuff. There is the IP protection issue, there is the marketing campaign stuff and all sorts of things. There is stuff that you will never even think of. I rely heavily on the teams at Legendary and Warner.’

The day-to-day work of putting a movie deal together is very standard. McGowan describes it as ‘usual lawyer work, it’s the same work day-in-day-out, it’s the stuff that a lawyer does, just transferred onto something that’s got a little bigger canvas.’

His team is currently handling everything from marketing campaigns to the last-minute tasks required in the context of releasing a movie.

Back to Victory Road

After rubbing shoulders with Hollywood’s elite on the red carpet for the release of the much-anticipated Detective Pikachu movie, it will be back to business as usual. Aside from the major projects, there is a surplus of daily issues that McGowan and his team work on to keep the Pokémon franchise running.

One of the major legal issues is the vast number of knock-off products that look to capitalise upon the Pikachu brand – in particular, the swathes of online retailers selling counterfeit Pokémon products.

There is also the TV show, which runs in 196 countries, although most of those licence agreements are handled through the Japan office. Still, McGowan’s team deals with shows that air in the US and EMEA. Add to that the manufacturing deals for trading cards, product testing and safety, as well as the management of the direct-to-retail business, called Pokémon Centre, which is based in the United States – and it’s not hard to see why McGowan says he never sleeps.

‘We have so many things going on, this company has so many activities: to the video game guys – we are a video game company, to the toy people – we are a toy company, to the movie people – we are a movie company, there are not a lot of other companies that can say that. But for us here in legal, we’re all of that. And some more!’

To say that disruptive technologies will be a catalyst of great change – not just in the legal profession, but wider business – is redundant. While that may sound somewhat controversial, in Silicon Valley – the heart of technological innovation – it’s perhaps more accurately an understated perspective.

But how do the in-house legal departments working closest to the action – those employed by emerging, new-era tech companies – manage to stay ahead of the curve in a way that allows them to credibly advise on legal issues at the cutting edge? How do traditional law firms ensure they are keeping in lockstep with industries undergoing technology-inspired change?

Discussion point: Is there adequate regulatory infrastructure in place for AI and disruptive technology more generally?

Often, government regulation is reactive rather than proactive. This is nearly universally true when it comes to technology at the cutting edge. The implications of new, disruptive technology are unpredictable; only once it has been released into the market can the wider implications even begin to be understood, not just by the users, but oftentimes the creators.

This can put in-house legal teams and their external firms alike in a purgatory of sorts, where they must advise on legal positions that are likely to be made obsolete by inevitable regulation. Uber, and the effect it has had on the employee/contractor demarcation, is a good example of this.

With several high-profile technology revelations promised on the horizon (AI and blockchain in particular), do regulations exist into which they might fit? Or must legal advisers adopt a ‘wait and see’ attitude, knowing that future overzealous regulators might leave a company’s product dead in the water?

THE EXTERNAL PERSPECTIVE

Kathi Vidal, managing partner – Silicon Valley, Winston & Strawn: ‘I gave a talk a few months ago at Berkeley with people who had worked for the previous White House administration and they were concerned not only that we lack the infrastructure, but that we lack an infrastructure to build the infrastructure. The current power regime is all about deregulating as opposed to regulating, so we don’t really have adequate structures in place.

We have infrastructure around unpredictable technologies. In IP we tend to divide technology into predictable and unpredictable. Unpredictable is things like pharmaceuticals – and on that side you have the FDA – you know you have to get certain things approved. On the other hand, for the predictable sciences, we don’t have that.

With AI there is increasingly a merging of the two sides. With software entering into all sorts of “things”, you move away from those things being predictable. I wonder whether we need something like the FDA, where you have to get these algorithms approved or whether something needs to be done before they can go to market. I certainly think that the blurring of the lines between predictable and unpredictable technology is a big change.’

Basil Godellas, partner and co-chair, financial services practice, Winston & Strawn: ‘With distributed ledger technology in particular, there are interesting developments at the state level that could impact the practice of corporate law. In the United States, essentially we are seeing individual states looking at how to position themselves favourably with disruptive technology. About a year ago, Delaware and Wyoming both began exploring the use of distributed ledger technology for storing corporate records, but there’s a number of large players in the industry that already provide corporate franchise and similar services that could be impacted by this technology. Will there be a bit of a push back or will the technology be embraced?

Two key examples have been cited over the last six or eight months as problems or mistakes that distributed ledger technology could have avoided. In the case of Dole Foods, the company’s corporate records did not accurately reflect the total number of shares of its outstanding stock. The judge in that case made a statement to the effect that distributed ledger technology could have prevented this mistake. The other example involved the bankruptcy of a major company. In that case, someone made a mistake and terminated the financing statement securing a billion-dollar-plus loan right before the company went into bankruptcy. So there’s been a lot of talk about using smart contracts to prevent mistakes like this. These are just some examples of where state governments are looking to use blockchain technology, specifically to facilitate corporate record keeping and secured financings. ’

THE IN-HOUSE PERSPECTIVE

Bruce Byrd, chief legal officer, AT&T Communications: ‘When it comes to the question of whether we need new regulations, I should qualify any statement I make by pointing out I work in the second-most regulated industry in America after banking. Our lawyers don’t wake up in the morning thinking we need more regulations. On the other hand, you do wonder what direction some of this might go and whether it could be a wise decision to get ahead of it, or suggest that policymakers should do something. I spend a fair bit of my time talking to the intelligence community about the security of our network, and most of that focuses on big threats to its core elements.

There’s this little thing called IoT – the Internet of Things – too. Whereas I can name on one hand the primary manufacturers of big network gear, I can’t do that with the manufacturers of IoT devices. The standards are disaggregated or nascent, and the security protocols are more questionable than they are in our core network or radio access network. So it’s hard to know the direction to go, but I’ve thought about it less in terms of what recommendations we need (although we have made some recommendations to the White House about things needing to be considered in the IoT space, but those recommendations are not around needing more regulation), but rather emphasising that we need to take advantage of AI to address a problem. In other words, whatever regulation you may come up with will pale in effectiveness in comparison to AI capabilities that can do faster threat analytics, while proving to be more malleable and flexible. That is a tough thing for policymakers to get their heads around. The real challenge is education. They don’t quite get that it’s not going to work in the usual way – they will have to allow us to use a lot of this stuff before it’s perfected if we as a nation are going to take advantage of its benefits.’

Jordan Newmark, litigation and IP counsel, Miami International Holdings: ‘The regulatory framework we have in the US isn’t technology-focused, it is fear-of-disruption-of-the-general-marketplace-focused. The result is you have areas of the world that are way ahead of us in terms of implementing things. In Bermuda, for instance, their stock exchange rules have promulgated draft rules with respect to trading tokenised products that are way ahead of where the SEC is today. We can watch experiments happen in other countries around the world.’

Scott Weber, general counsel, Lumina Networks: ‘What’s interesting when it comes to trust is there has been a shift away from traditional sources of authority and credibility. I trust Google and AT&T far more than I do the government at this point, especially right now, because they move faster – and besides, corporate social responsibility is taking heart and hold in the economics; it’s in a business’s advantage to be a good citizen. It makes sense to be a good corporate citizen and make products that don’t hurt people and protect against these liabilities, with or without regulations. Of course we still need regulations, but they are always going to be three steps behind, and even then it will be a case of putting a sticking plaster over something very large. It will be interesting to see the ways in which corporations and government can work together.’

Kathleen Jason-Moreau, general counsel, Vim: ‘I just feel like I spend all my time chasing after the sales team. Bruce, you talk about AT&T being regulated, but I’m in healthcare – $1bn to get a product to market will be considered cheap. Often sales people come to the company from a different sector and they’re just not used to the way this market works. It’s so heavily regulated. It’s an education, and you don’t want to be the lawyer who is always saying no. I’m not comfortable just being a rubber stamper, but I also don’t want to be the person who stops the deals. The most successful sales executives don’t take a no from anyone – not from a customer and certainly not from a GC. We’ve just got to figure everything out; it creates all sorts of challenges because the law changes too quickly. I study every weekend. You never want to let the CEO down.’

Discussion point: Does disruptive technology change how you expect external advisers to act?

Increasingly, firms are marketing their services on the basis of value. This is particularly so when it comes to in-house clients, for whom tightening budgets have made value a priority. With in-house teams looking to technology to streamline processes, and as businesses from every sector embrace technological innovation, questions are being asked of external partners: are you using technology to deliver more efficient services to my team? Do your lawyers have the technical knowledge required to advise my business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘I had a client who invited their four top firms in and they explained what their goals were, so that the four law firms could align with that. It helped tremendously; the energy you get is great. Just to hear from the CTO about the open source issues, the cloud issues, what they’re struggling with – it energised me to think outside of the box and about which lawyers I could pull into the spectrum in terms of solving their problem. You can bring them all in at once, which is extremely empowering and makes me able to serve them better.’

THE IN-HOUSE PERSPECTIVE

Chris Ghazarian, general counsel, DreamHost: ‘I think you see a lot of firms playing catch up. You expect them to understand some of the tech behind it, but you also have firms who don’t understand that blockchain is not the same as distributed ledger, and vice versa. Last year, we had a case against the Department of Justice. Part of the reason we got into that was the automation around some of our subpoena compliance and warrant compliance. That led to discussions with GCs of big web hosting companies. It was interesting to hear about the way they incorporate these technologies into what they do in terms of legal compliance. Frankly, a lot of them don’t know what they’re talking about. Their external counsel may also not be fully aware of what’s going on, and then something bad happens. Then, and only then, they realise it is a big deal – after which, it’s often too late.’

Bruce Byrd: ‘My lawyers cover every specialty, and I expect them to be better versed than anyone we hire. So what I’m looking for in external counsel is a level of curiosity. I meet lawyers who aren’t curious about technology. Occasionally, I run into my own lawyers who joke with me about how they don’t understand tech. I don’t find it funny – if you don’t know the tech then that’s a problem. I’m not asking my lawyers to be technologists, that’s not our training, but they should know the essential elements of what we do. I have a lot of confidence in the firms we hire, but when it comes to individual lawyers, I’m seeing a slight laziness about the issue – that’s what annoys me. My outside firms need to understand this at least as well as I do. That’s my biggest challenge – making sure my outside firms are diving into the technology.’

Discussion point: What are the ethical and practical concerns with increasing reliance on AI and algorithms in business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘We, as a society, don’t trust technology. Autonomous vehicles should save 20,000 lives a year, but if one person dies that’s going to make people think it isn’t safe. Then there are questions of what happens if someone hacks the software. These are very serious issues which we are going to be dealing with all the time. With software entering into all sorts of applications, you move away from those things being predictable. I certainly think that the blurring of lines between predictable and unpredictable technology is a big change.’

THE IN-HOUSE PERSPECTIVE

Jordan Newmark: ‘It’s not so much the legal dollar liability, as much as the brand liability, that’s the issue. If you’re a financial services provider and you have a robo-adviser for which the algorithm is off in a particular way, and it recommends buying something that you should have shorted, for example, that may cause a loss of a certain dollar amount for your customers – but the bigger loss is likely to come from other customers fleeing or deciding not to invest any more money with you. I tend to think that the limitations of liability for using software probably will apply the same ways they traditionally have, but I think brand liability is what will take the biggest hit.’

Robert Shives, general counsel, Shinko Electric: ‘In my view, understanding the risk to retirement plans and savings is just as important. If the AI recommends something that ruins millions of people’s lives, it is a big problem. That is not just a brand problem. It is people who have lost their life savings.’

Mary Fuller, former head of legal and chief policy officer, The Kudelski Group: ‘It won’t be long before AI invents – there is already an AI popstar in Japan. I presume AI cannot get a copyright. Likewise, unless you’re human, you cannot become an inventor on a patent. That means a lot of the regulatory and IP frameworks will ultimately be deemed inadequate. I assume that as soon as there is a clear economic interest in companies being able to own the output of AI, the laws will change, but until then we have the question of what we do. There will be no incentive to develop something that is fundamentally not patentable.’

GC: Can you tell us a little about the rationale behind the International Arbitration Centre?

Owen Lawrence (OL): In the past, arbitration was always an alternative dispute resolution. You did it to be confidential or you went through the courts if you were happy with the press. Arbitration is now the default form of dispute resolution. And given how many disputes are international, certainly I see arbitration growing.

GC: What was your vision for the International Arbitration Centre?

OL: Our vision from the start was to build something for the client. Then we looked at what the lawyers needed in terms of the technology of the space, and we fitted all the operations in and around that.

We feel we’ve built the perfect ADR venue – from just minor things, like the clients (each party) have their own toilets, the arbitrators have their own toilets. The retiring room is soundproof – they can retire at lunchtime and not be bothered. They don’t have to go through the circus of the hearing room; we even have a private entrance for clients who require absolute privacy.

If a GC has made it to the court room, obviously something’s gone very wrong, they will be feeling uncomfortable, but also their MD, their CEO, whoever is called to give evidence will be very unhappy. So we’ve tried to make it as comfortable as possible for those people. They can come in, the shutters come down, they can come up in a private lift, not even my staff or I will know which clients are coming in. They can also watch the hearing from our luxurious breakout suites and enter the hearing room when needed.

I spent 20 years as a barristers’ clerk and spent a lot of time in Asia and the UAE. You’d walk into one of the big hotels and you’d see the names of the law firms in reception. And then you’d watch the client walk in, and you’d know who they were and who was instructing who. For me, it was just so uncomfortable and that was my real driver – creating somewhere where the client can relax and know that it is private. A place where they won’t bump into other lawyers.

GC: What is the market like for arbitration in London?

OL: London has a rich history of law – English law is often the default in many contracts. And location-wise, it’s a middle ground. East meets West. It’s a premier legal hub, now with premier facilities. We’re trying to create a supreme court for arbitration, somewhere that top-tier law firms expect to have their hearings and somewhere that lower law firms aspire to have their hearings.

When you talk to people and you say, ‘Oh, we’re creating a new arbitration centre,’ it doesn’t sound that exciting. But when you come in and you see what we’ve built and the level of detail we’ve gone into, people’s jaws drop, they’re like, ‘Wow, this is incredible.’ We have the location and we’ve gone for it, and I think a lot of people are quite pleased by that.

We are in the heart of legal London – you can touch the Royal Courts of Justice (RCJ) from where we are, we’ve got the Rolls building round the corner, and Fleet Street, Chancery Lane, the Inns of Court are central legal London. So when the venue came up it, it was the right time to move.

GC: Has the response from the market been positive?

OL: We’ve had 120 of the top lawyers in the UK around for a UK arbitration photo shoot, and everyone who has seen the venue has loved it. One or two silks haven’t quite liked the level of luxury we’ve gone to – I think they prefer the old kind of RCJ antique features. Nothing’s antique in our centre. Everything’s cutting edge, like the technology in the breakout suites. With any kind of web-based application you can put a presentation onto the walls. You can email any documents you want to the photocopier. So hopefully everyone, even tech-averse people, can use all of our systems.

GC: As you were developing your ideas, were you consulting with barristers and the arbitrators?

OL: We were. The arbitral world is a very cliquey, small pool of people and I have good relationships with a lot of those, so I did seek advice from some top arbitrators who gave us some really good tips. Equally, I’ve spent the last 20 years in arbitration rooms so I know what the clerks need, I know what the arbitrators need and I know what counsel need. We’ve added all that into to this one package, hopefully creating the perfect ADR environment!

GC: When do the doors open?

OL: The first hearing floor comes live on 25th February and then we’re on to the next floor. We’re also looking at our own members list. For example, when GCs come to 10-20 years before retirement, some of them will naturally look to the arbitration world. It’s a good profession to end your career on – you can pick and choose which hearings you accept, how many you take as chair, how many you take as wing. For those in the law-firm world, who have always had a marketing team and an accounts team and now all of a sudden find themselves out in the big wide world as arbitrators, we will be providing a template to step into in terms of website clerking services, fee negotiation and everything that kind of goes into running an arbitrator’s practice in due course. We also have a roof terrace, which lends itself quite nicely to drinks receptions!

GC: If you were to describe your vision as the different floors come online what would you like to achieve?

OL: I would simply say my business plan is global expansion. I don’t think London alone needs this; I see the need to expand into various countries in Asia as well. My worry is we will not be able to accommodate the demand and we will need more space here in London.

GC: What would be the thing that you’re most proud about throughout this whole process?

OL: I am genuinely super proud to be part of raising London’s game. It’s become our motto: London is a premier legal hub, now with premier facilities, and we have delivered that without a doubt. Take our staff, for example. We’ve not just looked at legal backgrounds, we’ve taken people from the Mandarin Oriental, for example, to offer that level of service and that kind of concierge mentality. We’ve partnered with high-end restaurants to provide great food options – we know that armies march on their stomachs and so do arbitration counsel! No stone has been left unturned in bringing this facility to market.

In its Global Gender Gap Report 2017, The World Economic Forum (WEF) states that female leadership stands at less than 50% in all industries, based on an analysis of LinkedIn membership in 12 sectors from more than 100 countries.

The WEF’s analysis also found that industry sectors with the highest representation of women in leadership positions tended to recruit more women leaders, hinting not only at the talismanic power of role models, but also the importance of leveraging professional prominence to create change.

The success stories of the Finnegan partners and their general counsel counterparts we spoke to are all the more remarkable, as many of these women are pioneers not only in business and law, but also science – a field notoriously underpopulated by women. They reflect on effectively navigating the traditionally male-led legal world as a trusted advisor, a leader – and as a woman.

The most successful leaders are, by definition, trailblazers. While a manager delivers a vision, a leader has to create that vision – setting goals, strategies and boundaries, but then stepping back and trusting team members to deliver. Through our conversations, successful leadership often emerged as a willingness to take ownership, the guts and judgement to make hard decisions, as well as the integrity to carry the can.

‘Sometimes it can be very difficult to be the one to make a hard call, but the leader’s job, among many, is to be the one who takes responsibility for the ultimate direction of the team, be brave enough to do it, and then brave enough to stick with it, even in the face of potential adversity,’ says Erika Arner, partner at Finnegan and president of the PTAB (Patent Trial and Appeal Board) Bar Association.

Nurture by nature?

The narrative surrounding successful leadership has been defined by the leaders themselves – which have been primarily men. As more women are gaining the opportunity to develop leadership skills and take leadership positions, old assumptions around what a leader should be are being tested, and opportunities to find new ways of leading are being embraced.

If a certain steely tenacity is inevitable among effective leaders, what often counters that quality is the capacity to nurture team members and provide support when the going gets tough. Interestingly, a few of our interviewees ascribed success in this area among female leaders to a sense of maternalism, but given the fact that all the women we spoke to believed that the challenges facing leaders remain the same regardless of gender, perhaps successful male leaders also benefit from this traditionally ‘female’ quality.

Elizabeth Ferrill, a partner in the firm’s DC office, spent five years in the US Air Force before becoming a lawyer, and her military training has played a formative role in her understanding of leadership.

‘The phrase we used to say was, “The leader eats last and sleeps last.” Which means that you take care of your people, and you make sure that they have everything that they need to be successful,’ she explains.

‘I think that that means you really have to be organised, and you have to make sure that you have the right type of support around you, to make sure that you can provide an organised vision to the people that work for you.’

Stubborn adherence to archetypical impressions of what a good leader looks like also runs counter to the idea that leadership must come from a place of authenticity – not only in order to engage others, but also in order to function effectively.

‘There was a woman who was in-house at a large corporation in Atlanta, which was a client of the firm. I got to meet her very early in my career, and she was a great champion for me. She worked in the telecommunications industry, which was very much male-dominated, and she had managed to be very successful, but she was true to herself at the same time – she didn’t try to become one of the guys,’ recalls Atlanta-based partner Virginia Carron.

‘That was eye-opening to me in many ways because, at the time, most of the women leaders that I saw had changed their style somewhat to fit in and to be effective in the positions they were in, but you could tell once you knew them outside of that role that it wasn’t really their authentic self. I felt like it gave me a great example to try to adopt that type of leadership myself.’

Adds DC-based partner Mareesa Frederick: ‘The key is not everyone can lead the same way – so I am careful not to adopt ways that are inconsistent with who I am as a person.’

The specifics of being a female leader in law

While the ability to navigate group dynamics is an important skill for leaders to learn and develop regardless of gender, there was a sense in our conversations that it may unfortunately be more likely to be tested if it is a female leading the room than a male. But, while navigating unconscious bias can be frustrating it may provide the opportunity to hone vital listening skills that may otherwise never be challenged.

‘I think sometimes for women you have to watch your audience a little bit in terms of if you come across a little bit too strong – sometimes that’s an issue for the audience, depending on who it is,’ says Susan Denigan, chief legal officer of Nestlé Purina PetCare North America.

‘You have to weigh who you’re talking to and listen to who you’re talking to in order to make sure your message is being delivered the way you want it to be delivered. You’re not a real leader if nobody’s listening.’

Leadership in a legal context is unique in its own right. Despite many universal characteristics of good leadership, success in the legal profession has additional components, courtesy of the exacting technical proficiency that lawyers must demonstrate. Those in-house must also marry that expertise with corporate savvy, and a further role as company conscience.

‘We’re often viewed as just trying to find the legal boundaries of things that we do. But we also, I think, can bring ethics to the conversation, to make sure we’re doing the right thing, and not just the legal thing,’ says Stacey Antar, general counsel for Ferring Pharmaceuticals.

But the legal profession – particularly within law firms, where most lawyers begin their careers – is also unusual in being less purposeful than other sectors in developing non-legal skills. The law is an arena where leaders progress through their technical prowess as much as their softer skills.

‘I grew up in a law firm, like a lot of people do – and you become a leader by default typically,’ says Kristin Westgard, deputy general counsel IP and litigation at Koch Industries.

‘You start growing in your responsibilities and then you’re supervising other people on a case as you move up. But you may not be given formal training on how to be a leader or how to effectively lead a team. Now that I’m in-house with a corporation, we’re part of other leadership training that we do throughout the organisation.’

Despite a relative absence of formal leadership training for law firm lawyers, there are, of course, other avenues that good leaders can and do take in order to develop their skills – such as reading books or attending classes to study the topic. But many of our leaders agreed that learning by doing can be a more effective means of acquiring the requisite skills, while still actively seeking out opportunities to grow.

‘It’s not an academic exercise. It’s not like learning how to do things in law school. It’s getting the opportunity to either lead a small team, or lead a part of a case or lead an organisation, or even a section of an organisation,’ says partner Dori Hines, who leads Finnegan’s electrical and computer technology practice group.

Role models

The leaders we spoke to all credit the role models, mentors and sponsors they have worked with over the course of their careers with moulding them into the leaders they are today, particularly (although not exclusively) fellow female leaders. And, they said, there is no need to leave meeting these inspirational individuals to chance if opportunity doesn’t throw them your way.

‘I think if you’re a woman and you don’t have anyone in your organisation to look up to, you can seek out female leaders in other organisations. For example, if you don’t have a woman leader in your company, you perhaps could join a community organisation that has female leadership,’ says Ferrill.

There are three types of luminary that our leaders cited – the role model, the mentor, and the champion. And while being a role model might simply be something thrust upon a person in the leadership spotlight, those in such a position can nevertheless be intentional about the influence they have on younger or less senior colleagues, particularly as a major barrier for budding female leaders in organisations is the lack of female leaders in place to aspire to and emulate.

‘I think one of the most important things that women leaders can do to foster others, is simply being in the room. I attended a conference recently and when I was picking out what I was going wear each day, I intentionally chose bright colours. I knew that when there were younger women in the room and they were looking around, they would see a sea of navy and black suits, and possibly not be able to tell how many women were there, but I wanted them to see there are other women here in the room,’ says Arner.

‘I try and make sure that, whenever I’m on a panel at a conference, there are other women on the panel so that other younger, aspiring leaders see themselves in those roles, and can envision it. In addition to giving them that view, I think it’s also important for women to be in the room, because we are often the ones who can raise our hand if there is some unconscious bias going on. I think being present is the most important thing we can do.’

Good mentors have played a similarly indispensable role in the professional lives of the women we spoke to, providing direct opportunities (occasionally a nudge) and guidance – without clipping the wings of the mentee.

‘Women need mentors. Good mentors help you figure out how to navigate tricky work issues, they empower you, and give you advice on how to grow professionally and personally,’ says Frederick.

But mentors have a broader impact than just the individual careers they support, and in addition to seeking out opportunities for personal growth, successful leaders often feel honour-bound to just as actively identify openings for influencing those lower down the chain, with knock-on effects throughout the organisation – and beyond.

‘Mentors also help to develop the pipeline to leadership within a firm. When younger attorneys have relationships with more senior attorneys at a firm, they feel valued and part of the community. This ultimately improves retention and results in more women attaining leadership roles,’ explains Frederick.

‘Mentorship and sponsorship does not happen just within an organisation – women attorneys should look for opportunities to mentor someone in law school, at another firm, or even a high school student. I recall helping out in a moot court competition for girls from a local high school. All the girls did a great job thinking up arguments and were really engaged in the competition. I made sure to let them each know how impressed I was with every single one of them. One of them asked me whether I thought she could be a lawyer one day. I said absolutely – the expression on her face showed that she was now considering a path that had perhaps never crossed her mind before. So even something as simple as offering words of encouragement to a young girl could lay the foundation for a budding young leader.’

There are also champions, those with more skin in the game, who stick their necks out to develop others in whom they have made a real investment, even to the point of pushing them to take opportunities they might not have thought to seek themselves.

The legal world is often unstructured in terms of one-to-one leadership development, largely leaving it up to individuals to take the initiative, either as mentees or mentors. This can have mixed consequences, because although an assigned relationship can fail if it feels artificial, an absence of such schemes could result in talent falling through the cracks.

‘I think that champions can be grown in a number of different ways inside a legal organisation or perhaps even just generally. I think that some of it can be structured, and it needs to be at some level, or it might go undone,’ says Carron.

‘On the other hand, it’s difficult to pair two women together or just a leader and a non-leader, or a younger person or less experienced person and say, “This is going to be your champion,” because so much of it has to do with the personal investment of time – and it’s always much easier to spend time and energy on somebody whose company you enjoy.’

Inviting others to meetings, providing hands-on experience – ‘I’m going to give you enough rope,’ Hines was told by a former partner – were all agreed to motivate team members and provide insight into life on the next rung up. But to ensure a truly level playing field, Carron and others contend that a certain amount of structure is necessary – whether that is through mentoring assignments or the process of development itself.

‘A lot of people relate to people who remind them of themselves, and I think it’s important to try and remember that you need to cast a wide net and give a lot of people opportunities,’ says Washington DC-based partner, Linda Wadler.

‘I’ve found that it’s not always the people who are the top performers at a junior level who end up being the leaders. Some people are late bloomers, some people plateau, and so I think it’s really important to give opportunities to people to take responsibility and step up to the next level as broadly as you can.’

All in the mind?

Although leadership is usually understood as a task, it is also a mindset. An essential skill in an effective leader is the ability to be reflective over the entire course of a career. A key component in any kind of success is the willingness (and capacity for self-forgiveness) to risk failure, but a leader could be doomed to repeat mistakes if they are unable to honestly reflect on and absorb the learnings from missteps – and then share them.

‘A lot of the women leaders that I’ve interviewed or spent time with, when asked who was the first person to tell you no, where did you get that first discouragement that you had to overcome, so many say, “It was from myself”,’ says Arner.

‘I think perhaps women, a little bit more than men, tend to have a bit of self-doubt that causes them, at least initially, to not raise their hand for an opportunity, or to not feel that they are ready for a job that they really are ready for. Getting out of your own way is one of the lessons that we learn as we age.’

‘I also think it’s because we’ve heard it so many times, although maybe not directly. I don’t remember anyone coming up to me saying, “You could never be a leader”,’ adds Carron.

‘It wasn’t like that. It was watching choices and opportunities come along and be largely given to males who I thought didn’t have superior skills to the ones I had.’

Is enough being done?

The input of others, particularly other women, is crucial to the progress being made across the legal profession, and this was an obligation keenly felt by the women we spoke to, who were all eager to extend a helping hand to those on the rungs below. But should the responsibility of elevating and empowering potential female leaders rest solely on the shoulders of other women? Of course not.

‘I think one really important thing is for more men to see developing the female talent in their organisations as not just the responsibility of other female leaders. We need every leader to recognise and encourage good talent, and we need to develop all the talent we have,’ says Antar.

Adds Hines: ‘Where I think additional work could be done is getting men more actively involved, engaged, and understanding of the benefits of having women in leadership roles, and that having women in leadership roles isn’t a zero-sum game. Having a woman leader doesn’t mean that it’s a loss for men.’

Although the challenges facing leaders are often the same no matter who is in the post, there are additional factors that pioneering women often find themselves taking into consideration when conducting themselves in their roles – particularly an awareness that they might be the first female leader the team had experienced.

‘I think when I first entered leadership positions, I second-guessed myself a lot. I needed to be able to be who I was and feel okay with that. I needed to be able to recognise that I wasn’t going to be accepted by everyone. And part of it was because of my gender, part of it was because I was a change,’ says Carron.

Achieving that parity in numbers with male counterparts is an ongoing journey for women in law, as well as outside, and there are complex factors still to address along the entire pipeline before that change will occur. But budding women leaders can be grateful to those who have stepped up, risen to the leadership challenge, and then, both by virtue of simply serving as a role model demonstrating the benefits of diverse leadership, and becoming an empowering figure by extending the hand to others, widened the horizon for women in law.

Reggie Davis knows what it takes to pull off a large-scale initial public offering (IPO). In 2011, he guided gaming giant Zynga from private to public in what was – at the time – the third-largest tech IPO in Silicon Valley history.

It was his work on that project which put him on the radar of electronic signature provider DocuSign, who since 2012 had made murmurs about an impending public offering. Hired as DocuSign’s chief legal, privacy and compliance officer in 2014, it would be four years before DocuSign saw the NASDAQ, when they rung the opening bell at the New York Stock Exchange and officially commenced trading last April.

Between the lessons learned from taking Zynga public, to the four years spent readying DocuSign for the same rigorous process, Davis’ perspective on how in-house counsel should approach a proposed IPO – and how such a feat is best executed – is one as unique as it is valuable.

The Zynga Chapter

Zynga was founded in 2007 and is the author of such social media timesinks as FarmVille and Zynga Poker. Zynga wasn’t your average games company: its integration in the (relatively) early phases of Facebook allowed it to hit the mainstream in a way few expected. Take FarmVille, for example, which was boasting 10,000,000 daily active users less than two months after launch.

By the time Zynga formally filed its intention to go public with the US Securities and Exchange Commission in 2011, it was profitable and still growing at a fast pace. It came as a surprise, then, that the IPO did not perform to expectations. When a company goes public, it is relying on a large jump in its stock price caused by the limited amounts of shares initially released to the public. No such jump happened. Zynga raised a billion dollars from the exercise, with shares priced at a modest $10 at the beginning of the day, and closed at a disappointing $9.75. For a tech company enjoying hype, growth and profit, Zynga falling flat was unusual.

As with any IPO, Zynga was beholden to the whims of the market. Zynga’s revenue was overwhelmingly tied to Facebook and its ability to sell virtual items for real currency to its userbase at a sustained rate. This made potential investors uneasy. For Davis, though, he’d successfully taken a company public with him as the general counsel.

Sign here

The next step in Davis’ career was a move to another San Francisco tech company with a lot of buzz behind it: electronic signature provider DocuSign.

‘The expectation of Keith Krach, who was our chairman of the board and CEO at the time, was: we want you to come in and help build our San Francisco centre (because we’d moved our corporate offices from Seattle down to San Francisco), we want to build a world-class San Francisco-centred legal team and we want to get this company ready to go public,’ says Davis.

‘That was basically my experience both at Zynga, before taking the company public, and prior to that, working for a lot of years at Yahoo!, where we’d just gone public when I arrived, but then still had a lot of growth after that. To really grow and develop and go from a small, Silicon Valley start-up to something that’s sustainable and people had a lot of trust and confidence in – that was the expectation.’

Arriving in 2014, Davis embarked on a four-year journey to once again transform a private technology company into a public one. And, unlike with Zynga, DocuSign’s IPO was considered a resounding success – not just in terms of the work of Davis and his legal team, but financially too. Posting an initial offering price of $29, the stock jumped 37% by the end of the first day, bringing the company to a valuation of over $6bn.

‘When I joined, to be honest, we weren’t in a great place to go public,’ Davis admits. ‘The trick is, when you have a small start-up that’s doing well, how do you continue to do business very well and not put too much process and procedure in place that slows down the business? At the same time, when a business is doing really well, how do you put in processes and procedures that can help accelerate the business and actually make it something that lasts? That’s a tricky balance to know, because as a lawyer, you can come in and demand that that a lot of things be done in order to make yourself publicly available and then be publicly traded – but then that’s not necessarily in the best interests of the business right out of the box. Assessing that was a lot of the work.’

General Public

The colossal task of taking a company public touches many different functions within the business: the finance team, the board, the chief executive and, of course, the legal team. While the general counsel is usually characterised as the guiding hand of the business, taking a business through an IPO – likely to be one of the most turbulent and testing times for a company, particularly one in it’s relative infancy – presents a host of new challenges.

‘In essence, you become a little bit of an air traffic controller. You spend a lot of time working with the finance teams, working with the PR teams, working with the business teams, working with the engineering teams, everybody really. Ultimately, you’re looking to get an understanding of what does the company actually do, then figuring out how to describe all of that in a legal document that gets filed with the government, and can be read and reviewed by all of the potential buyers of the company. There are legal requirements around that document, which makes the role of the legal team crucial,’ says Davis.

‘The reality is that during that period, you spend a lot of time in the drafting rooms with all of the folks drafting the different sections. You do multiple, multiple revisions of the document to make sure that everybody’s comfortable with it and then, depending on what kind of issues you get, you spend time talking to the folks at the Securities and Exchange Commission (SEC), you spend a lot of time around the strategy – essentially how you position information, you help the financial team and the CFO understand what are the key and core metrics that we’re going to now start measuring the company by.’

Going public necessitates a shift in priorities throughout the business. A private company may once have spent its life driven by a multifarious range of incentives and drives: fast growth, pervasive marketing and an insatiable desire to grow the customer base. Once brought into the public sphere, there are investors and shareholders to answer to – which invariably means success measured by new metrics. Chiefly, those are monetary. A broad, growing userbase and positive reputation will always be important but, once public, those things are expected to be translated into revenue and profit.

‘I think that clearly a strong finance team is key. I think we have a very strong finance team at DocuSign, but that wasn’t always the case. At the end of the day, I think having a strong business that’s predictable is the key, right? You’ve got to have a predictable business, because once you’re public, you’re setting guidance and expectations and you’ve got to have a very predictable revenue stream,’ explains Davis.

‘I think we were in peak growth mode, but I don’t know if we had the same level of predictability that you have over time, to measure. So that was clearly a gaining item for us to make the decision to go public – one, that we needed to have a strong business and two, that we had to be predictable from a finance perspective.’

Uniquely Tech

Much has been written about the wild west of Silicon Valley tech start-ups. Romantic visions of unbound entrepreneurship aside, the tech start-up is not your normal company. Facebook started in the dorm room of Mark Zuckerberg and to say that there is a lot of daylight between those humble beginnings and the corporate colossus we see today would be an understatement. One person becomes two, who then become ten, with the more rigid staples of big corporations being slowly patched on as the company grows. By the time an in-house counsel is added into the mix, the company can often be caught in a state of flux, further along than two programmers sitting in a basement, but not quite at full maturation. This is the setting in which a company will be taken public.

‘We saw the same thing at Zynga and we saw the same thing at Yahoo!. You see that a lot at start-up companies, the people that you have who initially are there when the company is being formed and proving its concept and proving its business, aren’t necessarily the same level of executives that you need to actually take it public. So there’s always going to be, at least in my experience, challenges around whether you have the right level of executive at the company at this point in time, to take you public.’

Davis says that his prior experience with Zynga made things easier this time around, in more ways than one.

‘Zynga was my first time being a general counsel, so I learned a lot in that regard. One of the first things that I figured out at Zynga going public is that we hadn’t done as much of the rigorous work around our equity, making sure that it was all ticked off – that everything we thought we’d tracked and we thought we’d issued was in fact when it landed,’ says Davis.

‘So one of the first things I did when I got to DocuSign was to have a complete audit of our equity and drove that process. Because we were a small little start-up, people were coming and going – you’d have people that were there a year or less and you’ve given them equity. Did you give them the right equity? Did you cancel it out if they left before a year and, if your equity vested, how much equity did you give out? Did you have good systems in place to track that carefully? It’s hard to do when you’re really small, at the level that you need to do it when you’re about to go public.’

An explosion of IPOs

DocuSign was just one of the latest in a continuing wave of technology start-ups finding maturity and going public. As the upstart disruptive companies began booming in the late 2000s, many are now big enough and well-run enough for those seeds to be harvested and the dividends to be paid. This might come as a surprise for those who last checked in on the market in 2016, when all was quiet on the IPO front.

Dropbox, Spotify, and Opera are among the many companies to go public in 2018. There would have been more, but political uncertainty in the United States caused many big names to push their IPO back and join the likes of Slack, Uber, Lyft and AirBnB in 2019. But 2019 has already seen its share of turmoil, with a persistent government shutdown threatening to stall the NASDAQ even further, together with the long-heralded recession many expect to hit within the next few years.

Aside from the bags of cash now lining the pockets of entrepreneurial idealists, this wave of IPOs has a secondary effect on the wider start-up ecosystem, particularly in Silicon Valley. The engineers and commercial heads lucky enough to enjoy a share of the wealth leave for new challenges, either joining early-stage tech companies or starting entirely new ones, kicking off new cycles of innovation and renewing the booming start-up and venture capitalist industries once more.

For those who stay with the company they’ve helped take public, the challenge for leadership is keeping everybody focused after the overwhelming excitement of ‘getting over the hump’ of an IPO.

‘We spent a lot of time trying not to build too much expectation with our employees. Saying to them, look: it’s kind of a one-day financing event – we need to come back tomorrow and work really hard and prove the trust and confidence that everybody has put in us in buying our stock. So I’m a big believer in: take advantage of and have a lot of fun on that day, but quickly get your teams focused on getting back to work. Because one of the concerns a lot of companies have is that your productivity goes down because everybody is just sitting there thinking about the stock price. Before you didn’t have one and now, after you go public, you’ve got a stock price and you can check it every minute of every day. And really trying to encourage people that’s not the most productive use of your time and that it’s actually not healthy to be looking at your stock all the time. Just put your head down and work hard. That’s always my message.’

These changing priorities and unexpected post-IPO staff turnover can make maintaining business continuity a challenge, especially when it comes to the post-IPO jungle into which a newly public corporation will emerge. This is even more so for the legal team, where intimate knowledge of the inner workings of the business and a general counsel’s familiarity with the competencies of their staff are both critical.

‘I’ve been really lucky in that regard. There are nine people at DocuSign who worked for me at Zynga, and of those nine, five of them worked with me at Yahoo!. So I’ve been quite lucky to have a core group of people that I’ve worked with at multiple companies that I trust, that I’ve brought over to be my core group, that we’ve been able to build and expand upon. So yeah, I did bring a lot from that experience. And also, just taking a company public, being a general counsel for a publicly traded company and what that brings, developing relationships with people at the SEC, the Federal Trade Commission and others, a lot of those skillsets helped and were transferable to DocuSign.’

Protesters outside your CEO’s home, your corporate brand tarnished in the courts by a test case, and your supply chains subjected to criticism on social media – all signs of a business on the receiving end of a corporate campaign.

Increasing in number, campaigns are organised by workers, NGOs, pressure groups or civil society groups. They focus on a company’s relationship with its stakeholders, asserting their demands while applying adverse reputational pressure. Campaigns are typically human rights, employment or environment-related, and are capable of turning public opinion against a business with alarming speed. Yet businesses can be slow to spot the risks inherent in their operating models or the signs of a corporate campaign, and therefore, tend to be slow to respond appropriately.

The new collective action?

According to Greenpeace, its 2018 campaign successfully organised concerned consumers to contact big tuna companies demanding higher standards and delivered ‘people powered progress on tuna’. The US grassroots ‘Fight for $15’ campaign, which targets low-wage workers across scores of worksites and multiple employers, is now global, and resulted in coordinated workplace strikes across different countries in October 2018.

Meanwhile, international trade union alliances are publicly reporting companies to the OECD for alleged breaches of human rights as part of union cross-border organising campaigns. The rise of mass employee walk-outs illustrates how individuals nursing grievances can crystallise into a new form of collective action through their digital interactions.

On first impressions, these campaigns are very different but they share many of the same tactics.

‘Campaigns typically use the internet and social media to organise and to give them cheap, fast and easy access to a company’s stakeholders around the world,’ says Tom Player, employment partner specialising in global corporate campaigns at Eversheds Sutherland.

‘This may be supplemented by physical protests and strikes typically aimed at maximising reputational and financial pressure. Campaigns will also harness soft and hard law where available.’

For Marc Meryon, head of industrial relations at Eversheds Sutherland, corporate campaigns are growing in labour disputes, supplementing or replacing union-organised action.

‘The global rise in peripheral and casual workers presents challenges to traditional union organising,’ he says.

‘Now we are seeing worker networks and new unions using social media to forge a common cause across disparate workers, politicians, the media and civil society, and using protests directed at employers with increasing success.’

Corporates risks – not just about brand value

The risk of damage to brand value, and to corporate reputation more broadly, is significant given that many corporate campaigns are directed at the media to maximise adverse publicity for the business involved. As protests go viral, media reports proliferate and stakeholder trust begins to ebb, campaigners know that values-led businesses will respond. Publicity is, therefore, a key tenet in their strategy.

Reputational degradation affects relationships, trust, goodwill and earnings. A mishandled corporate campaign can deepen the damage. Excellent communications plus strong governance, risk management and corporate preparedness are essential defensive tools against campaigns. As a result, amongst our clients we increasingly see the involvement of GCs and their legal departments to mitigate campaign risks.

However, even small enterprises operating completely away from the public gaze, and those businesses, big and small, less exposed to the power of social pressure can still be detrimentally affected by corporate campaigns. For example:

• Legal test cases brought by campaigners have changed the way the law applies more generally;
• Public support for single campaigns has led to broader legislative and regulatory changes;
• Brands concerned with protecting their supply chain reputation from human rights and environmental campaigns have demanded higher standards from their suppliers and business partners; and
• Campaigns have been used to resist restructuring or workforce casualisation, or to concede demands for better pay and conditions, either complementing strikes or in substitution for them.

Practical implications

No company wants to be on the wrong end of a corporate campaign and avoiding one in the first place is preferable in terms of time, cost and reputation. Whether organised by trade unions, NGOs or others, some campaigns could have been avoided had the business taken a more pro-active approach to risk management.

A key risk is supply chain management, and public opinion is increasingly intolerant of organisations apparently unwilling to take steps to prevent harm to workers and the environment in their supply chains. In the UK, France, California, Hong Kong, Australia and elsewhere, new corporate supply chain transparency obligations have added some legal ‘teeth’ and this trend is set to continue.

‘Recently, campaigners have sought, so far unsuccessfully, to use the California Transparency in Supply Chains Act to sue US firms for alleged labour abuses in overseas supply chains. Business must be prepared for litigation to be used as a campaigning tool in this way,’ says Scott McLaughlin, labour and employment litigator and partner at Eversheds Sutherland.

How should businesses prepare for a corporate campaign in the absence of an immediate threat? Prevention is better than a cure. As a minimum, assess and audit supply chain risks and the company’s approach to mitigating such risks; identify likely trigger points for campaigns; devise a mechanism to alert and to reassure stakeholders; ensure the availability of external resources – such as legal, security, public relations and IT – and have a plan for protecting the business’s reputation, premises and people.

Lessons learnt from previous corporate campaigns underline the need for one key senior executive to have responsibility for co-ordinating responses from across the company. Campaigns force companies to make key decisions under pressure; should they break ties with suppliers involved in alleged labour abuses; should they agree union recognition; should they defer restructuring and other change?

Such delicate decisions being taken under the spotlight of a campaign demonstrate the value of due diligence and planning now – in your own time and away from critical scrutiny.

Finally, the inevitable ethical risks and dilemmas involved highlight the importance of GCs and legal departments in helping to prepare for and respond to corporate campaigns, given their role as trusted advisers within a business.

Since the advent of the printing press in 1440, when Johannes Gutenberg’s invention for the first time allowed information to be disseminated at scale, mass communication has been an instrumental tool for human progress. The printing press laid the foundations for the plethora of forms of media we see today, but modern media and communications are in the midst of another seismic shift.

As printed materials give way to the use of digital distribution, traditional forms of multimedia are facing a similar challenge – with the dominance of so called ‘linear’ television and radio being challenged by new ‘over-the-top’ streaming services.

But it can’t be taken for granted that the proposed ‘new normal’ will be better, or that our existing institutions will be able to reorient themselves around a digital world. New regulatory paths will have to be carved out and new business models will need to be explored. The in-house teams of both new media business looking to hitch a wagon to this revolution, and traditional media companies holding fast against the tide of change, must find ways to match rapidly expanding expectations of efficiency and ease of access.

Cut the Cord

Typical understandings of mass multimedia are predicated on a sender-receiver model, where a broadcaster is able to beam a set of programming to individual receivers. The broadcast is transmitted on the basis that all receivers are uniform and undifferentiated. In turn, it also means that the offering is undifferentiated.

‘What linear does a poor job of, is that it serves the same content in the same way to everyone,’ says Sunjay Mathews, head of legal for North America at sport streaming service DAZN.

‘As a Yankees fan in New York, if I watch ESPN, I get the same shows that a Red Sox fan in Boston is seeing on the same channel. But with streaming, particularly as it continues to develop and evolve, we have the ability to serve very specific content and, more importantly, specific advertising, that speaks to consumers as individuals.’

In the past, this line between the broadcaster and receiver was clearly defined, in large part due to the different technological, infrastructural and financial requirements incumbent on each side. But the advent of the internet has shifted the landscape significantly. The popularity of YouTubers for example, individuals often armed with little more than a webcam and rudimentary video editing software, can outdraw Hollywood-produced blockbuster TV shows with blockbuster budgets.

‘I certainly think that streaming is the future, and that will only become clearer as the industry provides users the total experience they’re seeking,’ says Mathews.

‘The technology is changing so rapidly and evolving so quickly that right now, streaming platforms are able to provide personalised access. Viewership is a custom experience. I do think that what’s going to happen in the future is that we are going to see even more customisability and personalisation.’

But while there is admittedly still a way to go in terms of maturation of the platform, it hasn’t stopped a fundamental shift in demographics from beginning. Between 2012 and 2016, the amount of television watched by US audiences dropped by 19%, with younger generations accounting for the most severe drop: those aged 18-24 watched a full 39% less television over that period.

‘To use sports as an example, viewership has seen dips among the four major US sports in recent years, and a lot of that is demographics. But it’s not that younger people don’t like watching sports: they love sports just as much as previous generations did. It’s just that they might not want to watch a three-hour sporting event, but they are perfectly happy to watch three hours of highlights. Content delivery needs to be adjusted in a way that serves that audience because if you’re not serving the audience and shaping with them, then you’re going to get left behind,’ says Mathews.

The audiences – and the cash underpinning them – have flocked to new media. As of September 2018, YouTube had 1.9 billion logged-in users on a monthly basis; Netflix had over 148 million paying subscribers worldwide having long since become the world’s highest valued media company; Hulu generated $1bn in advertising revenue in 2017.

‘Product and advertising integration, where advertising truly becomes part of the experience to the degree you don’t even realise that you’re being served up an ad, is one of the next steps we’re likely to see with streaming technology,’ says Mathews.

‘There are going to be adverts specific to what it is that you want to see. If you think about it, you’re a brand and you want to speak to the people you can reach, not waste time trying to reach people that don’t care. Equally, if you deliver content, you don’t want to ruin the experience by serving an ad for 30 seconds which can get the message across in 5 seconds, or more frustratingly, serving up the same 30 second ad repeatedly during the course of the viewing experience. That speaks to the huge potential that exists in this space, which is still waiting to be realised.’

One Size Won’t Fit All

While the raw numbers when looked at as a whole will certainly be sending a shiver down the spine of executives from ‘old media’, not all corners of the industry are feeling the pressure equally. Some serving more targeted demographics are doing just fine. Take, for instance, the Spanish language market in the United States, whose habits remain relatively steady compared to the average, according to findings by US market research firm Parks Associates.

‘While pay-TV penetration has declined among US broadband households, adoption has remained steady among Spanish-bilingual households over the past few years,’ says Brett Sappington, senior director of research at Parks Associates’. Cord cutting does not have the same impact in Spanish-language households as it does for the larger broadband population. In fact, most of their recent pay-TV changes have been upgrades to more expensive services.’

That’s not to say that there is no space for the over-the-top model in the Latin American market: Hemisphere Media Group, the only publicly traded media company in the US that specifically targets the Hispanic and Latin populations, launched a Spanish-language digital subscription service, Pantaya, in 2017. But the primary focus at Hemisphere remains on its traditional offerings, with the over-the-top space seen as augmentative.

Similarly, National Public Radio – better known in the US as NPR – has found that rather than looking to replace its traditional offerings, which remain impressively popular and robust, building out a suite of ways to host and access content has negated the need for an overhaul in fundamental structure and strategy.

‘Radio still reaches 92% of all US adults every week. That’s more than any other platform, including television. And this isn’t just an audience of older Americans: broadcast radio reaches 93% of those aged 25-54 and 91% of those aged 18-34. Rather than witnessing the death of radio, we see an audience that wants to be able to access our content whenever they want it and wherever they are,’ says Jonathan Hart, chief legal officer at NPR.

‘So we meet our audience where the audience is. 103 million Americans access NPR content every month, across broadcast radio, podcasts and our digital properties. Our news magazines, Morning Edition and All Things Considered, are among the most listened-to radio programmes in the country. In the spring of 2018, Morning Edition had a weekly audience of 14.2 million listeners and All Things Considered had a weekly audience of 13.8 million listeners. Nearly 39 million users access npr.org each month and nearly 23 million people listen to our podcasts each month, making NPR far and away the most listened-to US podcast publisher.’

Adapted Media

As media companies begin to grapple with increasingly diverse portfolios, in-house teams are left with the challenge of providing advice on areas that may not have always been a part of the regular media landscape. Further, they’re required to advise on technology that hasn’t even been properly regulated yet.

‘My biggest challenge as NPR’s chief legal officer is keeping up with the relentless pace of innovation at NPR. Supporting innovation is a much heavier legal lift than supporting a mature business. We have to do both,’ says Hart.

‘Our mature broadcast business remains our key driver of reach and engagement. But, as I noted above, we are committed to meeting our audience where our audience is, whether they’re reading text or streaming audio or video on npr.org or a member station website, listening to podcasts, accessing content on one of our mobile apps, or listening to audio on a smart speaker. And we have to do all of it very well, despite the resource constraints that naturally come with being in non-commercial, public media.’

At DAZN, Mathews finds himself in a similar position, but looks towards the positives and opportunities provided by treading into the unknown.

‘In a traditional, linear space, the legal questions you are asked are the questions that have been asked for the last 40 years: TV has been around for a while and these regulations are now crystal clear and more importantly, there’s been a lot of litigation around it to further explain and identify how the grey areas are likely to be resolved,’ he says.

‘For me, here at DAZN, I can’t say the same because some of the regulations have not yet caught up, and for the ones that have, the court cases haven’t been raised, tried or settled yet because we’re so on the fringe. But to me, that’s how I provide my value.’

This new normal in media and entertainment law has put the spotlight too on the types of skills required to be successful in the industry. When looking to recruit and hire new team members, Hart says that what may have worked before, won’t be fit for purpose for long.

‘Familiarity with technology is now an essential skill for media lawyers. As a company that is determined to meet its audience where the audience is, we need lawyers who understand each of the distribution technologies we use and aren’t afraid to figure out the ones we’ll be adopting next,’ he says.

‘And because perfect digital copies of copyright-protected content can be made almost effortlessly and can be distributed worldwide almost instantaneously, familiarity with intellectual property law is essential.’

Piracy on the Airwaves

The obvious downside to the breaking of the sender-receiver barrier heralded by new media, as Hart says, is the ease by which broadcasts and streams can now be reproduced and shared illegally. The medium by which the content is being delivered is open enough to make reproducing the content easy. The doomsayers decrying the collapse of music industry profits have spilled over into video, and you don’t need to look far to read about anxious content producers fretting over whether or not their work will be profitable given there will always be free (and illegal) alternatives to enjoying the product.

‘Piracy is one of the biggest parts of my job. Sports rights are expensive. And you pay such a high premium for them, it’s disheartening that people are watching that content for free – especially if you have a good value proposition,’ says Mathews.

For platforms like DAZN, the focus is on individuals taking their paid-for sports feed and sharing it online for free via illegitimate websites. For other platforms, such as Hemisphere’s Pantaya and the likes of Netflix, it’s the possibility that the original video files will be uploaded to file sharing sites or other illicit peer-to-peer platforms.

While exact numbers are difficult to come by, consumer research firm Statista reported that TV and movie revenue lost to piracy increased from $6.7bn in 2010 to $31.8bn in 2017 and a projected $51.6bn by 2022. The figures dampen expectations that the accessibility of the likes of Netflix would take the wind from the sails of pirates around the world.

‘For us, there are ways you can combat piracy,’ says Mathews. ‘The first is knowing that you’re never going to eliminate it. No matter how good you are, no matter if you do everything right, there will always be somebody somewhere streaming your content illegally.’

This is a common and practical sentiment – multiple GCs interviewed for this feature used the same analogy: ‘You know the carnival game Whac-A-Mole? It’s like that,’ muses Hart.

‘There are also technology solutions rights holders can use; video can make use of content ID and third parties can identify where your content appears on sites like YouTube and Facebook and move to get them taken down immediately,’ continues Mathews.

‘The main issues I see with addressing piracy with legal action are firstly, how do you identify the target? And you can imagine with these streaming links, it’s often impossible to identify who it is. Secondly, you have the problem of even if you are able to identify the person, they may not even have the means to pay a penalty.’

‘My conclusion is that I see a shift in terms of the legal remedy being used by the rights holders. They focus increasingly on prevention rather than punishing those responsible. We can threaten them if they post a link to Twitter or Facebook, and tell them that we know that what they’re doing is illegal and more importantly, what they are doing is making consumers have to spend more – pointing out that we have a great value proposition, and it’s usable, but if you continue pirating, you are hurting your fellow consumer.’

‘The final point is, having a product that is so good and affordable, and the experience so seamless that there is no point in suffering through the lack of quality of an illegal stream. We need to have our quality be so crisp, and integrate so many options that watching illegally becomes a far inferior and not worthwhile experience. But as I said, it all comes back to the value proposition.’

‘If someone is okay squinting their eyes and watching a poor quality picture of, for example, the Premier League, with foreign-language commentators, then we are never going to acquire them as a subscriber. But if we give them a good value proposition that they can use to watch Chelsea or their preferred team, with great definition and great usability, then we have created a product that will combat piracy by itself.’

Another layer of difficulty in this area is that sometimes the piracy is being facilitated by competitors: those who hold rights to distribute content in other jurisdictions but haven’t taken care to stop those in the US and elsewhere from accessing them, for instance by ensuring their platform is region-locked – a practice known as geo-blocking. Alex Tolston, executive vice president and general counsel of Hemisphere Media Group, elaborates:

‘Let’s say Turkish product, they’re licencing all over the world. And while we demand that their co-licensees are geo-blocking the licensed content for their territories, we are constantly seeing broadcasters in Latin America who make the product available either on a catch-up basis or through one of their streaming platforms that are in violation of their geo-blocking restrictions, and they’re not putting in the protections that are needed to avoid infringing on other’s exclusive rights.’

‘As over-the-top platforms and other SVOD, AVOD, TVOD and other digital alternatives to linear become viable alternatives to traditional television viewing, licensor’s and licensee’s around the world are becoming more and more sophisticated on the segregation of rights being licensed. As this digital transition evolves, the protection of the IP that is being granted to licensee’s becomes more and more crucial. My hope is that the industry moves forward with a uniform preventative technology that is able to manage the distribution of worldwide rights that are being granted digitally from crossing the territorial boundaries; some inroads are being made with respect to piracy, but a uniform solution really don’t exist on the internet today to deal with the shifting landscape of rights management.’

Bundling up

Another factor is that the success of the over-the-top model may be everyone’s undoing. As competitors begin to replicate Netflix’s pioneering subscription model, rights holders have more choice as to where their content lands. The result is that instead of several giant troves of content, consumers will be forced to fracture their spend among many competing service providers. This may ultimately kill the benefits which drove the initial success of streaming platforms: convenience.

‘I have no idea what the future will hold but what I do think is right now there are a lot of people cutting cords are buying more subscriptions,’ says Mathews.

TDG Research, a US media market intelligence firm, reported in 2018 that all major television networks in the US will offer a direct-to-consumer streaming service by 2022.

‘These are early signs of an emerging media tribalism,’ says Mike Berkley, senior adviser at TDG and chief author of the report. ‘Major networks will increasingly reserve their best titles for their own direct-to-consumer services, which will help drive total network DTC subscriptions close to 50 million by 2022.’

Mathews, however, predicts that the market will do what it always has: adapt and thrive.

‘I do think at some point – I don’t know if it will be a collaboration – or more like a giant company such as Verizon or Amazon or Disney buying all these platforms and combining them, or if it is going to be one of those deals where you have one login that gives you access to all of them, so we can deliver the content. We could come up with a way that we auto-authenticate each other’s logins and do deals with each other.’

Taking up a career in law is a full-time undertaking – of that there can be no doubt. There’s just no substitute for the commitment, both personal and professional, to pursue the pinnacle of the legal track. You’re either in or you’re out.

Or are you?

In that respect, Ironclad general counsel Chris Young is certainly the exception to the rule. Taking up law as a backup option following the disappointment of a professional athletic career that didn’t quite materialise, Young would wax and wane between the worlds of lawmaker and legal practitioner throughout his 20s and 30s – the period of time during which most wide-eyed lawyers are busy cutting their teeth at the photocopier and tailing partners in the faint hope of recognition.

But taking the well-trod path was probably never going to be an option for Young – it just isn’t in his nature. Five minutes in his company is more than enough to demonstrate that to even the most prominent traditionalists from the legal industry.

‘My journey, it certainly isn’t the usual one – nor one that that I think too many people would be in any rush to emulate,’ says Young.

‘I’ve taken a lot of chances, a lot of risks and I’m fortunate enough to have come out on the right side. Some of that has been through good old-fashioned hard work, some has been through being in the right place at the right time. But I’m not too proud to admit that a lot of it has probably just been straight-up luck!’

HOOP DREAMS

Despite living a career (still in its relative infancy) that would be the envy of those pursuing either law or politics (or both), neither were even on the radar for Young as he entered his final year of high school.

‘Like many 18-year-olds, I was convinced that not only was I going to get a full-ride scholarship to a [National Collegiate Athletic Association] Division I school, but that I was probably going to play in the NBA one day. It wasn’t too long after my senior year of high school that I realised my dreams in that respect, unfortunately, were probably not going to come true,’ says Young.

‘Becoming a lawyer – honestly, it wasn’t exactly my first choice. It came about when my basketball dreams didn’t materialise in the way I thought they would.’

That his basketball dreams didn’t materialise wasn’t for lack of ability or opportunity; rather, Young was a victim of circumstance and poor timing – certainly the only time those final two words grace this narrative.

‘I had received a full-ride scholarship offer to go to the University of Denver and play basketball for coach Dick Peth,’ recalls Young.

‘I decided not to sign before my senior year started, because we had such a strong basketball team that I figured other offers would come in throughout the course of my senior year. Turns out, there was no stronger offer than the initial one I received from the University of Denver.’

‘Just as I was scheduled to fly out and sign my letter of intent and meet with Coach Peth, he called me to let me know that he was moving on to a different school. The head coach position was going to be assumed by another Division I coach from the south, who would be moving up and not only taking that position, but bringing his recruits with him. The upshot was, if I hadn’t signed by that point – which I had not – I no longer had a slot.’

Through no fault of his own, Young’s dreams of starring on the hardcourt had been squandered – forcing an audible of the highest significance at the most inopportune moment. But disappointment is all about how you deal with it. And Young had the right support networks in place to help him retain a level head and chart a new path.

‘I’ll never forget the conversation my father and I had one night after that. We stayed up until the sun came up, talking about what I was going to do, what my career was going to be if I didn’t play basketball. It was that night I decided I wanted to be a lawyer,’ he says.

‘What first piqued my interest in the law was the prospect of becoming a sports agent. I figured that if I couldn’t play basketball myself, maybe I could represent basketball players – help guide them financially, legally and otherwise – and potentially make a good living myself. It seemed like a dream job, I’d still be around sports, but as a lawyer. Not a bad consolation prize to being a player myself.’

KEEPING IT CIVIL

Adjusting at the last moment is rarely an easy task – let alone when the stakes are as high as deciding on a tertiary institution and, subsequently, a career. But Young would take it in his stride and, following a whirlwind tour of prospective colleges, opted to accept a place at San Diego State University.

‘When I got to college, my mind opened up much more than I could have imagined. I had a chance to take honours courses at the university and learn about things I hadn’t learned about before – I really got into the civil rights movement,’ says Young.

‘What fascinated me was not only the ability of a bunch of ordinary people to come together to do extraordinary things, but the role that the judicial system – and in particular lawyers – played in those civil rights battles. I became inspired by some of the lawyers who, throughout history, fought for and on behalf of people who didn’t have rights everyone else had and often didn’t have the voice to fight for themselves.’

Young credits his interest in civil rights, but perhaps more broadly his success during this period, to the strong mentorship he received from a number of figures who were willing to give him the benefit of their time and experience. But one in particular stands out – someone who continues to play an important role in his life to this day, nearly 20 years on.

‘For me at the time, it wasn’t just reading the literature or attending the classes that led me to be so passionate about civil rights and trying to affect change, it was actually a professor named Dr William Cheek,’ explains Young.

‘I had the privilege of taking his class when I was 20 years old. He was a white southerner from Virginia with a southern drawl. I walked in and I immediately thought, “I’m not sure this is going to work.” So I sit in the back of the class as I always did. Throughout the year I’d move up closer and closer to the front of a class based on how engaged I was with the subject matter. It only took me two weeks to sit in the front row of Dr Cheek’s class. And it only took two weeks or so after that to meet with him during office hours to get to know him.’

‘Dr Cheek is a well-renowned biographer and a historian who focuses on the civil war, reconstruction, and the Jim Crow and civil rights eras. Being with him and learning more and more about our country’s rich yet disturbing history is really what heightened my newfound passion for civil rights and considering how I might one day try to affect change after earning a law degree and becoming a practising lawyer.’

A TASTE OF GOVERMENT

As Young graduated from San Diego State with a Bachelor of Arts, with law school and the pursuit of civil rights both weighing heavily on his mind, he faced a crossroads of sorts. One, he admits, was rooted in fantasy as much as it was in reality.

‘At this time, I had this vision and this fantasy of one day working to bring people together. Bridging the divide in America, creating empathy, and doing all the magic that some of these giant legal minds and practitioners had done in this critical era of American history, the civil rights era,’ says Young.

‘I applied for law schools. I also applied to be a Senate Fellow in the California State Senate. The idea was that I always knew I had some interest in government, politics and policy.’

While a desire to pursue politics in some form was of clear interest for Young, instead, he would opt to return to Sacramento and put law school on hold – a decision in large part motivated by a desire to return home and help his family, in particular his mother, who was recently widowed following the loss of his father.

‘Instead of going straight to law school, I took a different track and before starting my fellowship in the Senate was presented with an opportunity to intern with a man named John Burton, who was a long-time, well-respected senator representing San Francisco. It was in his office that I responded to letters from prisoners who had complained that their parole date continued to get pushed, and they were being wrongfully denied their day in court, so to speak,’ says Young.

‘It became really important to me to learn about these issues, learn about the Prison Litigation Reform Act and to be responsive to the prisoners that were frustrated that they didn’t have a chance to prove they were worthy of a second chance.’

DREAMS FOR MY FATHER

In a period where Young was laying the foundations for his future professional life, it’s prudent to consider how his past – and, in particular, that of his parents – shaped the philosophies and beliefs that would characterise this time for him.

‘My father is black, he was from just outside of South Central Los Angeles – specifically a city called Watts. He ran away from home when he was 11 years old, joined a gang, and became a well-known gang leader over the years,’ explains Young.

‘He also spent most of his adolescence and early adult life in prison. In fact, the last time he served in prison, he served in Folsom Prison, which is near Sacramento. When he paroled from prison, he decided not to go back to Los Angeles, and instead stay in Sacramento.’

That decision would be a life-changing chance for Young’s father – much like the ones which have shaped Young’s own life – eventually leading to his father and his mother meeting, as well as the chance for his father to pursue higher education himself, going on to become a married school teacher with children – a far cry from the life he left behind.

‘Despite not having spent a single day in high school, my father taught himself how to read in prison and very much wanted to get a college degree. After completing his last stint in the penitentiary, he enrolled in the Educational Opportunity Program through Sacramento City College. He rented a small studio apartment in a house, a Victorian house in downtown Sacramento, referred to as the Pease Conservatory,’ says Young.

‘It was at this house where people taught music too. My father was in this little studio upstairs. The second and ground floors were people teaching music. My mother was a young piano teacher, with blonde hair and blue eyes. My father admired her from afar, but he was black, had been shot in the face, had scars all over, was beat up, and fresh out of state prison. He thought, in no world, in the early 1970s, when it was still illegal in certain places in the United States to even marry someone who wasn’t your race – particularly a white woman marrying a black man – that there was any chance in hell that they would actually link up. But they did and as soul mates enjoyed a long, beautiful marriage before my father died nearly 30 years later.’

SO, ARE YOU GOING TO HELP?

Fast forward a few years and Young would find himself facing opportunity once more. After accepting a scholarship to UC Berkeley to study law – slightly later than anticipated but not without the benefit of government experience – Young would find himself working as a litigator at Morrison & Foerster.

‘While there, I had the opportunity to join Tony West, another mentor of mine [and now general counsel at Uber], and a few others to participate in a conference call with Barack Obama. We were all early donors to his exploratory committee. On the call, Obama mentioned that he would make a decision over the holidays about whether to run for President,’ says Young.

‘Well, as we know, he did in fact decide to run and made his announcement speech in February 2007 in Springfield, Illinois. At the time, I flew out to attend his announcement speech with what’s now quite a star-studded line-up of folks: Kamala Harris, who’s herself running for President but was then district attorney of San Francisco; her brother-in-law, Tony West; now-mayor of San Francisco London Breed, before she’d ever run for office; and Ben Jealous who just ran for Governor of Maryland.’

‘This little group of us, we were all living very different lives at the time, but had the opportunity to go down to the basement of the Capitol with Obama’s close friends and family. We had the chance to meet with Barack and Michelle [Obama], exchange niceties and take pictures.’

It was at this brief gathering that Young, unbeknownst to him at the time, would leave an impression on the future President – although probably not for the reason he had hoped.

‘I had to take multiple pictures with Obama because the camera I was using kept failing to fire properly. He seemed to be getting a little annoyed with me, but I showed him what was happening and he was cool about it. From then on, he seemed to remember my name – even if it became a bit of a running joke,’ explains Young.

‘Two days later at a kick-off fundraiser in Chicago, I went up in an elevator together with both Barack and Michelle. The first thing he said to me was “Another picture?”. Every time I saw him from then on, I was always asked about whether I wanted a picture. Until one day he said to me, “So are we going to keep taking pictures or are you going to help me with this campaign?”’

YES, WE CAN!

While the offer from Obama was a tempting one, it wasn’t as straightforward a decision as it may have first appeared, particularly with the benefit of hindsight. Now secure in a role at Morrison & Foerster, with the prospect of clerking for a federal judge on the horizon, joining the campaign of a man then seen as having a remarkably outside shot at the presidency represented a major risk – personally, professionally and financially.

‘At this point, I hadn’t taken it too seriously. But when I gave it some thought, spoke with some of the folks at the firm, as well as the deferral district court judge I was supposed to clerk for that summer, I made up my mind,’ says Young.

‘Both the judge and a few partners at the firm really encouraged me to take a risk and go out to campaign with then Senator Obama. So I took a leave of absence from Morrison & Foerster and worked out an agreement with the judge to go back at a later date and I set off as Obama’s first hire based here in Northern California as his deputy finance director.’

While the backing of his legal contemporaries may have made the decision easier than first anticipated, Young believed in the message and timing of what Obama was campaigning on.

‘For me personally, Obama’s message resonated because what he talked about was something that I’d lived. Like him, I had a white mother and a black father – I could empathise with his situation, figuring out his identity as he grew up,’ explains Young.

‘I also appreciated the unique talent Obama had with his ability to stir the emotions of the masses and create empathy between groups that historically have been divided. In being white and being black, he could navigate between both worlds, so to speak. I also thought at the time, two years into George W. Bush’s second term, that what the country needed was unity. We needed someone who could bridge the divide and bring us together. That’s what originally attracted me to the campaign.’

Proudly recounting war stories from the campaign trail – and what represented a near two-year commitment in his life – Young can distil the personal takeaways to a single, most prominent lesson.

‘One of the biggest lessons I took from spending as much time as I did with Obama was his ability to keep his composure. He really always, always embodied that, it didn’t matter how stressful a situation would be, all the highs and lows of the campaign, he remained composed,’ says Young.

‘I’ve often looked back on the highs and lows he faced, how he dealt with them, then used those as inspiration as I navigate my own life – both personally and professionally.’

LAWYERING UP

In the years that followed the Obama campaign, Young would tread the line between both law and politics, working with Sacramento Mayor Kevin Johnson’s transition team in the immediate aftermath of his election and later his senior counsel and adviser, then as a political appointee in the US Department of Justice, before taking up a position at litigation powerhouse Keker & Van Nest [now Keker, Van Nest & Peters]. After spending four years there, he would depart to join a former colleague at the venture-backed upstart, OpenGov, an opportunity to combine his legal knowhow with his passion for politics.

‘While at OpenGov, I got a call out of nowhere from a partner at a well-known venture capital firm who asked if I had any interest in being the first lawyer at a company called GoFundMe. At the time, I was happy with my position. I hadn’t heard of GoFundMe – something I would later learn put me firmly in the minority of most Americans,’ Young explains.

‘I went in, I spoke with the folks, was impressed by the service and what the platform provides people all over the world and, of course, the team that they had assembled to take the company to the next level was incredibly impressive. I was fortunate enough to receive an offer, and I joined the company shortly after.’

At GoFundMe, Young had the opportunity to cut his teeth as an in-house counsel, while also shaping the direction of his department of one and helping to cultivate a culture that resonated with his own personal beliefs and philosophies, particularly in the area of diversity and inclusion.

‘What stood out was that GoFundMe understood that it had a very diverse userbase and so, on our executive team, there was a real premium placed on championing diversity both in terms of personnel and of perspective. For me personally, in the legal department, most of my work from a diversity and inclusion standpoint was carried out in the form of hiring diverse outside counsel, and hiring underrepresented minorities on my team. I’ve often believed that it’s good to talk about diversity, and raise the issue, and make sure it’s at the forefront of folks’ minds, but I found that even more important than talking about it is actually acting on it,’ says Young. ‘At GoFundMe, like many other companies, the legal department was viewed as a cost-centre and in-house lawyers are often expected to do more with less. Whereas I had worked at the US Department of Justice and at a private law firm where you have all the support you could possibly need, as in-house counsel I had to quickly figure out ways to build machines or to procure software that would help cut out a significant amount of the administrative work so that I could focus on the more strategic and impactful work that was expected of the company’s counsel.’

It was during this search for technological efficiency that Young would first come across Ironclad – then a small-time start-up, whose software was helping to change the face of contract management for in-house counsel.

AN IRONCLAD OPPORTUNITY

‘Ironclad’s focus was on contract management, including by automating various contract-related processes that turned out to be pain points for me. I implemented it relatively quickly. In fact, it was the first software I procured, ever, but also at GoFundMe,’ says Young.

‘In getting to know the organisation well, I realised very quickly that every company is a contracts company and every team is a contracts team. Whether it’s HR, sales, marketing, finance, G&A, you name it – contracts are everywhere. And for any in-house counsel, manually managing contracts and not knowing where they all are or what’s in them is going to keep him or her up at night. So, I watched this company with this incredible product address a need in the market that was absolutely glaring and, over the years, watched them continue to grow and evolve. Fast forward almost three years from the time that I met Jason [Boehmig, CEO], there was an opportunity to join the company as its general counsel, and I jumped at it.’

Now six months into his tenure at Ironclad, a company that, like any start-up – even one backed by venture capital powerhouses like Accel and Sequoia – once again represents both major risk and opportunity for Young, he remains upbeat and excited about what lies on the horizon for the upstart company – after all, for a legal software company, it’s hard to have a better recommendation than an avid user coming on to join as general counsel! Faced with the prospect of once more starting from scratch and having to reinvent himself, it again becomes a matter of first principles for Young.

‘For me, the North Star has always been an insistence on spending my professional time having a positive impact on people,’ says Young.

‘One of the lessons I’ve learned throughout my career is that you can’t forget what initially motivated you to get a law degree. Although I have not become a civil rights lawyer, I’ve never forgotten why I decided to go to law school. It’s to effect change. Change doesn’t have to be effected on the macro level, it can be effected on the micro level. It doesn’t have to be the entire United States or the world. It can be a community. It can be someone you mentor. It can be personal. It can be professional. It can be a combination of all those things. So long as I don’t lose sight of that, I’m up for whatever life may throw my way.’