Inside Track: NDA Lessons From Stormy Daniels | A Cold One With AB InBev's GC

Welcome back to our weekly briefing, Inside Track. I’m Law.com in-house reporter Stephanie Forshee. In our latest edition: How in-house lawyers can dazzle their future bosses with their tech skills, and what legal departments can learn about NDAs from the Stormy Daniels affair. Plus, Anheuser Busch InBev’s general counsel chatted with us about his favorite beer, complicated alcohol laws and data compliance. If you have tips or story ideas or other feedback, email me at sforshee@alm.com or find me on Twitter: @InOtherNewsNow.

What's Happening

Do you know how to code? Well, it might not hurt to learn if you’re looking to be an in-house IP lawyer, according to a recent story by my colleague Caroline Spiezio. I asked some recruiters what other technical skills in-house lawyers need, in case you want to take some notes. (You can use an old-fashioned pen and paper, I won’t tell.) ▶ Andrea Bricca, partner at Major Lindsey & Africa’s in-house practice group, said in the past two decades, she’s seen demand for IP attorneys with backgrounds in electrical engineering, chemistry and biological sciences. Today, she’s seeing a “new interest in an understanding of physics, especially as it relates to data and data analytics.” ▶ As the "internet of things" and connected technology companies grow, so does the need for lawyers. Michael Roche-Kelly, managing director of retained search with Special Counsel’s Parker + Lynch, said in the automotive field, for instance, lawyers with prior experience in the mechanical and electrical or computer science arts are desirable. ▶ According to Sarah Breen, national director of in-house search at Special Counsel’s Parker + Lynch, specialized technology skills gained outside of law school can be very valuable and help candidates with fewer years as lawyers compete with more senior attorneys for jobs.

Undisclosed affairs. You also might have heard about a convoluted news story involving porn star Stephanie Clifford, aka Stormy Daniels, and President Trump. This past week, a non-disclosure agreement she signed to cover up their alleged affair was released. Most legal departments surely aren't dealing with porn stars and presidents, but I asked Tom Spiggle, founder of Spiggle Law Firm, to share some broader advice for lawyers negotiating an NDA. ➤ Pay attention to venue and choice of law, he recommends. “Make sure that your contract has a venue provision so that any battle is fought on your turf,” he said. “And while you’re at it, make sure that you pick the law you would like to apply.” ➤ Watch the liquidated damages. Spiggle said that damages can be speculative in an NDA breach, so “it is a good idea to include a provision that assumes a certain level of damages in the event of a breach.” But he warned that many states “frown on heavy handed liquidated damages provisions and you run the risk of a court striking an entire NDA.” ➤ Have a PR plan. Spiggle acknowledged attorneys aren't PR experts, but explained they should know some. In the end, he said, "the most important trial might take place not in a court of law, but in the no-holds barred court of public opinion.”

Risky business. This week, Corporate Counsel also published my interview with John Blood, the general counsel for global brewer AB InBev. As the legal chief for more than 225 professionals across nine geographic “zones,” his stein runneth over. One part of his job that struck me as interesting is how he deals with the company’s data. In the interview, he talked about Project Lantern, an algorithm that spots risky transactions. “It was spurred by the SABMiller combination because we wanted to analyze all of these new countries coming into our system,” Blood told me. (P.S., that acquisition was worth $100 billion.) Blood says the algorithm shows his team: “Here are the contracts you should look at. Here are some red flags that we think people should analyze and take a further look at.” In the future, he says, it might give a more “prospective view.” If a payment request comes in, for instance, Project Lantern can tell AB InBev: “Hey, have someone look at this before this vendor gets paid, just to make sure this is a compliant transaction.”

VIP Access

Amazon GC David Zapolsky saw some Twitter love when he shared a pic of meeting the band at the Seattle e-tailer's all hands meeting last week.

Question of the week –

Do you have a pressing question you’d like answered? If so, send it my way. This week’s question: How can GCs help board members and other executives protect themselves from liability in the event of a shareholder class action tied to a data breach? In the wake of Yahoo’s massive security breaches and recently-announced settlement of pending securities litigation, general counsel must take proactive steps to limit exposure for their board members and senior executives. Quite simply, the best approach to protection from liability from a data breach is to take all necessary steps to avoid the breach in the first place. Obviously, this is much easier said than done. However, a general counsel’s first job with respect to a Board of Directors involves educating the Board. A Board must understand that it is responsible, at the highest level, for oversight of a company’s cyber risk. A Board, with assistance from the GC, should take steps to account for this responsibility, including the following: · Assess the company’s cybersecurity posture. · Self-evaluate and self-educate with respect to published standards such as the National Institute of Standards and Technology, or NIST. · Set and prioritize cyber initiatives, along with a completion timeline, and require regular feedback / updates on progress of these initiatives. · Examine external risk management, such as vendor contracts and cyber risk insurance. In addition, the GC can lead a discussion with the Board and senior executivesto answer key questions surrounding cyber risk, such as: Does the company treat cyber risk as an enterprise-wide risk, or simply an IT issue? Has the company identified its “crown jewels” and how are these key assets being protected? What standards are being used to structure a response to cyber risk? Are qualified individuals managing the company’s cyber risk? Have employees received adequate training to understand and avoid cyber risk? Are appropriate disclosure controls in place for proper notification should a cyber event occur? At the very least, even if a data breach cannot be avoided, the GC can point to the proactive steps that the Board has taken to address cyber risk – in an effort to lessen any resulting liability. Finally, the general counsel can also ensure that an appropriate Incident Response Plan (with a well-planned communication strategy) is in place should a breach occur. Having an appropriate plan in place should help a company avoid many of the mistakes that Yahoo made with respect to disclosure, timing and communication. Jeffrey M. Dennis, Managing Partner, Newmeyer & Dillion

Seeking Enforcement

Twitter GC Vijaya Gadde was one of the recipients of a cease and desist letter sent by True Pundit. The conservative website's legal counsel Harmeet Dhillon demanded Twitter stop designating all content shared by True Pundit as "sensitive."

Don't miss –

Tuesday, April 3. Global Leaders in Law will hold a roundtable in Tel Aviv titled “What Makes a Great Leader.” It will also hold a session on “Changing Corporate Counsel” in Shanghai on Wednesday, April 11. GLL is an invitation-only membership group, offering GCs a global platform for in-person collaboration to exchange ideas and receive advice and guidance from peers. For more information, contact Meena Heathat mheath@alm.com. Thursday-Sunday, March 15-18. The Hispanic National Bar Association will meet in San Francisco for its Corporate Counsel Conference. The theme is INNOVATEand the conference aims to get members “ahead of the curve,” according to the HNBA website. Wednesday-Friday, March 21-23. Good Lawyers to Great Lawyers, a retreat aimed at professional development will take place in Orlando. The ACC Foundation eventwill focus on education, networking and coaching. In-house lawyers from Petco, Abercrombie & Fitch, Wintrust Financial and Venture-Science will be present. Sunday-Tuesday, April 29-May 1. The In-House Counsel World Summit in Toronto is themed: Beyond Borders: Business and Law in the Global Village. The Canadian Corporate Counsel Association’s national conference "embodies the present and future of in-house counsel — both in Canada and abroad." Thursday, April 19. Corporate Counsel Forum Middle East is back. This year the Ritz-Carlton, Dubai will host a full day of peer to peer networking, discussions and interactive workshops on topics like competition law, leadership, cybersecurity, AI and fintech.

On the move –

Pharma to Pharma. The first GC for Portola Pharmaceuticals has been named. John Moriarty will be the GC and CLO for the San Francisco-based biotech. Most recently, he served as GC with Alexion Pharmaceuticals. Location, Location, Location. Seattle-based startup Glympse has welcomed Alan Koslow as general counsel. The former top lawyer at adtech company AudienceScience will help guide the company, which provides tech for users to consensually track others' locations. Moving Target. The former general counsel of Target who saw the company through some of its toughest days during the aftermath of its epic data breach has a new gig. Timothy Baer, longtime GC for the retailer, will serve as a senior advisor for investment advisory firm CamberView Partners. Even Sweeter. Starting April 1, Stefanie Straub will be the new general counsel for Mars, known for its yummy Snickers and Milky Ways. Straub previously served as VP and GC for Mars Wrigley Confectionery, but was promoted this week.