About

Editor’s note: This interview was conducted prior to March 2020.

What are the most important transactions and litigations that you have been involved in during the last two years?

The most important transaction I have been involved in the last two years was the successful defeat of the second cannabis industry hostile takeover bid in Canada, and one of the few launched under the new hostile takeover bid rules in Canada. This hostile takeover bid was initiated while the company was in the midst of recovering from a short-seller attack.

With respect to litigation, the short-seller attack gave rise to cross-border class actions that I am in the midst of managing both proceedings. This requires significant strategic and tactical oversight to ensure that the proceedings run along similar timelines, in order to ensure that plaintiff’s counsel in any jurisdiction doesn’t gain the edge. Disclosure, discovery, privilege, experts and pleadings need to be reviewed to ensure a consistent and measured navigation through to dismissal of the action or to settlement with plaintiffs.

How do you feel in-house legal leaders can successfully introduce and implement a culture within a legal department?

By example. In-house legal leaders need to live, work and support their team members in a manner that reflects and manifests the culture they wish to foster in their legal departments. The smaller the group, the more important the culture and the more emphasis should be placed on engendering a culture of support, teamwork and competency.

How do you suggest in-house lawyers build strong relationships with business partners within their company?

The same traits that made you a success at business development in private practice are the same skills that will help you build strong business partnerships within the company. Each business unit is a client that will come to you for expertise and assistance. Be prompt, produce great work, be practical and be innovative. The business wants a solution, so if you identify risks or issues, when possible, you need to propose a solution.

What techniques do you use to provide commercially-focused advice to your company, and how do you communicate these to more junior lawyers in the team?

1. Understand the building blocks and the inputs into the products of your business.

2. Make yourself available to the business as a sounding board.

3. Centralise the innovation.

I spent at least three months understanding the building blocks of the business. First and foremost, I spent a significant amount of time in our production and cultivation facility, followed by sales and marketing, in order to understand what drives the strategy and innovation of the business. It is fundamental to understand the needs, the strengths and the weaknesses of each component of the business. Every junior lawyer that is part of our team equally visits our cultivation facilities. Understanding the building blocks and the inputs that go into your products and services helps inform your negotiations with suppliers, vendors, and customers. It is equally a cornerstone to the representations and warranties that you may negotiate on behalf of the company in any capital raises or M&A transactions.

With respect to junior lawyers, I try to lead by example. Associate and junior members of our team are included in commercial discussions and are equally asked to invest time in understanding the fundamental functions within the business. The objective is to have junior lawyers mature along with the needs of the business and to help them focus on commercially reasonable and practical solutions to get transactions and agreements over the line and keep the business momentum moving forward.

Focus on: Crisis management

Crisis is a loaded word. It can take many forms: Short-seller attack, hostile takeover bid, board changeover, departure of key employees, fire in a facility, [or] cross-boarder class actions. Crisis management is where in-house legal counsel can and must shine. When a crisis hits, the business looks to counsel to immediately assess the risk and formulate a reasoned response, setting the foundation for the crisis management game plan. Counsel are ultimately transformed into the quarterback of a game where the rules aren’t always apparent. How counsel rise to the occasion in these instances can be transformational for the business. Leadership, a cool head and the response in these moments, will set the stage for a quick recovery and return to stability by the company. In order for a business to excel, a crisis, whatever its form, must be perceived as a catalyst for transformation and an opportunity to push the business towards introspection, resulting in stronger corporate governance and potentially a refined strategic vision.

When a crisis hits, take stock of the situation and set your emotions aside. This is the moment where singular focus on the problem is required. Regardless of whether it is a public or private company, the counsel’s role is to bring together the management team, and where applicable, the board, to tackle the issue at hand. Counsel should approach each function with empathy towards the needs of each department in the moment of crisis, this is the first step to opening dialogue in the face of the collective instinct to be defensive. Counsel should be prepared to mediate between each business unit to identify a workable solution that may overcome the crisis while remaining compliant with law.

Once the solution is identified, expediency is key. When a crisis arises, the business is effectively on pause, management and employees are distracted, stakeholders are hesitant, customers are uncertain, and the media is watching. Swift corrective actions or special committee reviews should be established with narrow mandates that address the weakness that gave rise to the crisis. Effective counsel are there to guide the team through this process. Next, counsel should turn its mind to communication and disclosure. While counter intuitive, communication by the company is fundamental to fostering goodwill among regulators, vendors, customers, employees, the public and other stakeholders. A disciplined and controlled message that the situation is “under control” often provides assurances and can help dispel negative sentiment towards to the Company.

Finally, moving past the crisis will necessitate that the company be introspective. Questions about how and why the crisis arose should be answered. Gaps in corporate governance and operational weaknesses should be addressed, ultimately strengthening the company from the inside out. Simply said, crisis is an opportunity. The threat of crisis should be a reminder for Counsel to focus on establishing strong corporate governance practices and operational processes that unify the Company and support its strategic plan. There is no handbook. There is no checklist. And there is no right answer in the moment – the right answer only becomes apparent when you watch the replay. But in the moment, Counsel must be the compass through the storm, balancing the needs of the business, those of stakeholders and, first and foremost, compliance with the law.