InsideCounsel's SuperConference 2012

Reports from the premier conference for the in-house bar

Photo by Andrew Westel

There was a palpable energy to this year’s SuperConference. The 12th annual event featured inspiring keynote panels, informative breakout sessions and engaging discussions that provided law department leaders with valuable insight and new ideas.

Hundreds of attendees flocked to the Radisson Blu Aqua Hotel in Chicago on April 23 and 24 to attend the two-day conference. Each day commenced with a keynote panel, followed by breakout sessions and networking events. This year’s breakout tracks included Ethics & Compliance, In-House Young Professionals, Law Department Management, Litigation Management, Professional Development and Substantive Issues.

On the following pages, InsideCounsel shares highlights from the 2012 SuperConference. For all the inside information on SuperConference that we couldn't squeeze into the magazine, you can find our online coverage, complete with photo slideshows and exclusive video interviews, here.

 

Keynote panel on "The Informant." Photo by Andrew Westel

Kicking Off

On day one, our keynote panel offered attendees an inside look at the story behind “The Informant,” a 2009 movie starring Matt Damon as Mark Whitacre—an executive at food processing company Archer Daniels Midland who worked with the Federal Bureau of Investigation in the ’90s to expose his company’s price-fixing activity. It was an honorable pursuit, except that he was embezzling the whole time.

“We had a wackadoodle for an informant,” said panelist James Mutchnik, who was in the Antitrust Division at the Department of Justice at the time.

Day two saw an equally entertaining and useful panel discussion among the general counsel of Go Daddy Operating Co., Nissan Motor Co. and Churchill Downs Inc. The three GCs discussed ways in which in-house counsel can help shape government policy. For example, GoDaddy’s Christine Jones successfully lobbied to get a law passed that allows Internet service providers to take down websites that sell unauthorized pharmaceuticals.

Afterward, four judges offered advice for e-discovery best practices in a roundtable discussion. They advised not to avoid electronically stored information, and to err on the side of too much preservation rather than too little.

“That which is not preserved is forever lost,” said James Francis, judge for the U.S. District Court for the Southern District of New York.


Ronald DeMoss, Rent-A-Center; Charles Harris, Mayer Brown. Photo by Andrew Westel

Considering Concepcion

Since last year’s landmark Supreme Court decision in AT&T Mobility v. Concepcion, companies have been looking more seriously at incorporating arbitration agreements in the employment context. At this year’s SuperConference, a panel of in-house and outside counsel got together to discuss best practices in using arbitration agreements.

The panelists—which including Ronald DeMoss, GC of Rent-ACenter Inc.; William Bedman, senior director of HR legal at Halliburton; and Marcia Goodman, partner at Mayer Brown—all agreed: Arbitration is an effective alternative to costly litigation.

“It’s faster, it’s cheaper, it’s less adversarial, and it’s final,” DeMoss said. “There are two very significant reasons to consider arbitration: the cost of litigation and avoiding the jury wild card.”

Over the years, various challenges have been made to arbitration provisions in employment agreements, and businesses began revising their provisions to accommodate, specifically to bar classwide arbitration.

In Concepcion, a couple sued AT&T over a tax they were charged on free cell phones. When AT&T moved to arbitrate, as the consumer contract mandated, a trial court denied the motion, and the 9th Circuit affirmed. The Supreme Court, however, said the arbitration clause was enforceable.

“Since Concepcion, there has been a pull and tug on how the case will be applied by the courts in the employment context,” Goodman said. “Employers should look at Concepcion and the decisions since Concepcion, and work with counsel to tweak their programs to address arguments being set forth.”

The panel went on to offer some practical considerations with regard to implementing arbitration provisions in employee agreements— emphasizing that that one size does not fit all.

Shannon Couffer, Walgreens; E. Alan Arnold, Delta Airlines. Photo by Andrew Westel

Social Scoop

The “Social Media Governance” breakout session at SuperConference offered insight into the social media policies at three different companies—Go Daddy Operating Co., Delta Air Lines, Inc. and Walgreen Co.—and provided general pointers for in-house counsel looking to craft a policy of their own.

Kimberly Cilke, deputy general counsel of GoDaddy, said her company’s employees are tech-savvy and interested in social media, and the legal department quickly realized that it needed to take advantage of the new medium. So it created a dedicated social media team, each member of which is trained on how to post on behalf of GoDaddy.

Delta’s approach, according to Assistant General Counsel E. Alan Arnold, relies heavily on interacting with customers. It uses social media to get real-time feedback from passengers on many of its flights and engages them to offer assistance.

Walgreens was stuck in traditional marketing at first, said Shannon Couffer, senior litigation and regulatory attorney. But the company broke out of its box and managed to launch a successful campaign through Foursquare, which offered free flu shots in exchange for check-ins at its stores.

Other advice the experts offered was to include a general disclaimer in social media policies that workers’ Section 7 rights are not infringed, and to consider separate policies for general use and for employees who are posting on behalf of the company.

Click here to watch a video interview with Frank Orzo of LT Online, who moderated the session, and has more helpful tips for managing social media.

Dawn Trimmel, McDonalds Corp.; Kristin Coleman, Brunswick Corp. Photo by Andrew Westel

Foiling Fraud

SuperConference attendees learned ways to spot and discourage corporate bribery and fraud during the breakout session titled “Top 10 Financial Shenanigans.”

Ron Schwartz, a partner at Deloitte Financial Advisory Services, moderated the panel, which featured Dawn Trimmel, internal audit director at McDonalds Corp., and Kristin Coleman, vice president, general counsel and corporate secretary of Brunswick Corp.

The panelists discussed common examples of corruption that companies frequently face on a global level, as well as ways that inhouse counsel and their auditing colleagues thwart such wrongdoing.

Much of the discussion focused on misappropriation of assets, which is the No. 1 fraud scheme that affects organizations, with the median loss for each scheme amounting to $135,000. Panelists emphasized that the more detached a company’s business unit is from the corporate office, and the more autocratic the leader is that guides that unit, the more likely it is to be involved in some type of illegal activity.

Trimmel said training is an effective way to discourage violations of corporate ethics and compliance policies, particularly in areas of the world where employee turnover is high, such as China.

“If the ethics policy isn’t communicated verbally, it just doesn’t sink in,” she said.

Coleman said that the most effective fraud-reporting tool at Brunswick is an anonymous hotline that employees can use to report suspicious activity. Half of all financial fraud allegations the company receives are substantiated, she said. Still, “training, policies and controls aren’t enough to damper the urge to steal,” Coleman said, so lawyers must routinely communicate with their companies’ third-party vendors, assess their business relationships and pinpoint the risks their companies face around the world.

Click here to watch an exclusive video interview with moderator Ron Schwartz about corporate fraud.

 

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