In House

Amanda Haverstick

Revising Nondisclosure and Nondisparagement Clauses

By Amanda D. Haverstick |

Over the past several months, a broad array of executive branch agencies have all come down the same way against the same wording of employers' nondisclosure and nondisparagement provisions, whether found in severance and settlement agreements, confidentiality agreements with employees or contractors, or witness statements in internal investigations. What once was considered the industry gold standard for these clauses is now just the opposite. And the stakes are high. An employer's use of invalid language can lead to regulatory enforcement action, court litigation and potentially hefty fines and sanctions. The combined authority of the agencies making waves for employers in this area also is far-reaching. Virtually every employer is a potential target, whether public, private, union, nonunion, financial industry, federal contractor or otherwise. All employers should review the language of their confidentiality and nondisparagement clauses and reword them to accord with the new agency standards.

In E-Discovery, Delete the Firm Versus Vendor Mentality

By Bill Mariano and Clifford E. Nichols |

As law departments continue to focus on the bottom line, many are now taking a more hands-on approach to e-discovery. Their efforts range from bringing part or all of the work in-house to hiring and supervising the e-discovery vendors themselves. Not that long ago, outside counsel almost always handled the selection and engagement of these vendors.

In-House Litigators: Hire Outside Help, but Stay in Control

By Dan Currell and Aaron Kotok |

Earlier this year, advisory company CEB brought together 20 heads of litigation from large companies to discuss the latest research on effective litigation management. The conversations we had over the course of that day weren't a surprise to us; the challenges and frustrations of in-house litigators are pretty well known. But when we looked back over our notes, we saw a theme that did surprise us: Corporate litigation suffers from a lack of leadership. When litigation goes badly, it's because no one knows who’s in the driver’s seat.

Law Firms and GCs Finding Value in Alternative Billing

By Lisa Goldstein |

It's been over 20 years since corporate legal departments publicly asked for alternative fees when DuPont Legal began the trend with its convergence model. The former general counsel for DuPont and current partner at Ballard Spahr, Tom Sager, was the frontrunner in implementing alternative fee arrangements, or AFAs, and said "the impetus for this was a mass tort explosion confronting DuPont and with it the compelling need to drive efficiency, reduce costs and incentivize the firms for outstanding results." During his time at DuPont, Sager's team converted 70 percent of its matters at its high-water mark, he said. These were not discounted hourly rates; instead, the AFAs were either a flat fee or a flat fee with a holdback and contingency bonus. Over time, some companies followed DuPont's lead, but the real push for AFAs occurred after the 2008 financial crisis and recession. Since then, corporations have become increasingly more budget-conscious and have requested value-based billing.

Pa. Justices Clarify Meaning of 'Insured' in Liability Exclusion

By Christopher M. Brubaker |

In its recent decision in Mutual Benefit Insurance v. Politsopoulos, No. 60 MAP 2014, May 26, 2015, the Pennsylvania Supreme Court resolved a longstanding issue concerning the continued viability of the holding in Pennsylvania Manufacturers' Association Insurance v. Aetna Casualty and Surety Insurance, 426 Pa. 453 (1967), regarding the interpretation of the term "the insured" and the applicability of "separation of insureds" language to that analysis. The Politsopoulos case also serves as a good reminder of the importance of making certain when drafting agreements involving indemnification provisions and insurance requirements that the obligations are clearly spelled out. This makes it much easier to obtain insurance that is sufficient to satisfy the needs of the parties and is co-extensive with the indemnification requirements in the agreement.

An Update on Preservation of Electronically Stored Information

By Kate Campbell |

As e-discovery matures, it is typically no longer a surprise when outside counsel raises the issue of spoliation and the need to draft and issue a legal hold when a company gets sued. But what counsel may not always appreciate is that it is not just the filing of a complaint that can trigger the need to issue a legal hold—instead, it is whenever litigation is reasonably anticipated. So what does this mean in practice? And are there best practices in-house counsel can implement to ensure that potentially relevant evidence is preserved and to avoid the risk of spoliation claims down the road? This article aims to answer these questions.

The Business Case for Having a COO of the Legal Department

By Mike Haysley |

General counsel seem to intuitively grasp that the role of chief operating officer offers value for their legal departments. Yet, based on results of Legal affiliate Corporate Counsel's first "Law Department COO Survey," GCs also seem to have difficulty articulating or measuring that value, and even determining what the job's responsibilities should be.