In House

Three Ways to Trim Self-Inflicted Harm in Internal Probes

By Frank E. Emory Jr. and Ryan G. Rich |

When not conducted carefully, internal investigations can cause more harm than good. Deciding to investigate a suspected problem is only the first of several key determinations. The responsible executive must plan and execute the investigation deliberately to avoid self-inflicted harm. An organization can protect itself—while still conducting an investigation that is confidential, full and fair—only by carefully thinking about how best to uncover the alleged wrongdoing or compliance issues. Here are three rules for a company to keep in mind to minimize self-inflicted injury from an internal investigation.

Launching a Recoveries Unit Can Change a Law Department

By Wendy L. Rubas |

A successful recoveries unit is a game-changing program for a general counsel, turning the legal department from a cost center to a revenue-enhancing operation. Tired of feeling like a drain on the organization and dreading the budget updates, I recently sought to develop a new way to align my legal department’s work with the financial goals of the organization. The result exceeded my expectations. Here are some of the key lessons I learned along the way.

Protecting Your Company From Privacy Breaches Begins Now

By Calli Padilla and Jason Bonk |

There is no more important time than now—perhaps even yesterday—to understand the critical importance of implementing, enforcing and training on policies reflecting best practices to protect companies against the all too real threat of cyberhacking and privacy breaches. Technology has undoubtedly evolved faster than the law, and tech-savvy culprits—often appropriately labeled criminals—have made their presence felt across an array of industries. In-house counsel are often too busy, preoccupied and/or disinterested to recognize the impact of technology, but that must change in order to adequately safeguard businesses against potentially catastrophic consequences. For better and for worse, technology has become tremendously influential in this landscape.

What the Same-Sex Marriage Ruling Means for Employers

By Bennett Kaspar |

The U.S. Supreme Court in June ruled in a 5-4 decision that the equal protection guarantee provided by the 14th Amendment to opposite-sex marriages extends to same-sex marriages. The opinion in Obergefell v. Hodges, authored by Justice Anthony Kennedy, holds that "same-sex couples may exercise the fundamental right to marry in all states" and that there is "no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character."

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.