Think GMOs. Think fracking. Think oil drilling in the Arctic Refuge.
We're not just talking about the potential for complex class actions. We're talking about whole constellations of public opinion— opinion resolutely indifferent or hostile to corporate interests — in which litigation feeds off of and is fed by NGOs, plaintiffs’ lawyers, and other adversaries who, in turn, compel adverse global regulation and legislation.
It's a new environment fired on all fronts by the digital revolution. The corporate fear goes beyond single cases or multi-district litigation. The fear is of a vicious circle in which businesses and entire industries lose control over their own destinies as adversaries effectively use an array of digital tools against them. In this changed environment, the role of GCs is, perforce, fundamentally changed as well. There's no longer an isolated skill set called “litigation management.” Every potentially litigious issue-driven controversy requires seamless internal collaboration: enterprise risk management, brand marketers, corporate communications, IR, etc.
For GCs, the new game represents an opportunity and a duty to affirm their place as C-suite players no longer confined as merely case managers. It's not necessarily about GCs going back to school to learn new tricks. Rather, the GC is already uniquely positioned to break down departmental silos, to take the lead to ensure coordinated deployment of all resources in this global warfare.
In war, basic training cannot happen right in the middle of Pickett's Charge, especially not today when narratives tailored for the Internet, as well as courts of law, must be deployed in a heartbeat. The interplay between the law and other departments should be planned, practiced, and implemented before major litigation—and pursued on an ongoing basis as issues change or antes get raised.
For starters, consider this blueprint for CLO leadership:
GCs cannot “manage litigation” absent close interface with enterprise risk management (ERM). All realistic threats must be anticipated; the GC must ensure that ERM monitors the digital space to assess those threats on a 24/7 basis. Who owns the risk terms — “recall,” “spill,” “corruption” — on the search engines? What conversations are percolating on blogs and social media?
GCs must communicate with the brand marketing team. What consumer perceptions could ignite controversy? The importance of the Internet is obvious here, as that's where tomorrow's claimants congregate today. No one knows more about these online product/service tribunals than brand managers.
Once gathered, such information requires the GCs’ collaboration with the communications team to develop optimized digital content and determine the best venues – for example, what shows up first on Google. Yes, such marketing is a legal department concern as well, as this marketing should shrewdly encompass the key risk terms. At the same time, legal needs to be constantly updated on plaintiffs’ firms, NGOs, regulators, etc. The GC needs complementary competitive intelligence from the perspectives of both the risk and communications departments. It takes two hands to look into a crystal ball.
The need for GCs to be in synch with the public affairs sector is obvious. Will new regulation create liability or will current litigation inspire new regulation? Which public officials are friendly? Which are implacable foes? Anything that public affairs says to the law department could be of equal concern to ERM, communications, etc.
Because GCs need to know what Wall Street is thinking, litigation risk cannot be comprehensively managed without input from investor relations. It's a digital play: what is being said on the investment networks where minority shareholders can now influence publicly traded companies the way institutional shareholders exclusively used to (i.e., Seeking Alpha, wikinvest, etc.)?
There's an immense multifaceted conversation going on out there and your adversaries control the narrative. You can either deal with it now as part of a fully integrated team, in the nascent stages of opposition, or you can wait until the full complement of the NGO-regulator-plaintiff firm axis is organized against you.