‘There is no reason why good cannot
triumph as often as evil. The triumph of
anything is a matter of organisation’

– Kurt Vonnegut, The Sirens of Titan

When looking for good in the world, corporate governance law is perhaps not the most obvious place to train your eye. However, there is a sizeable band of corporations – thousands, in fact – who have opted to start just there, using corporate governance as a springboard to the greater good.

Shareholder primacy, often cast as the villain in corporate scandals or blinkered business decisions, operates on the theory that the job of directors and management is to maximise return to the investor. In turn, corporate law is traditionally viewed as a contract between corporations and investors that the company will, in the balance of law, deliver the highest return.

‘But that’s really an assumption and not a fact of life,’ says Rick Alexander, corporate governance expert and former corporate attorney in the US corporate mecca, Delaware.

A benefit corporation is a corporate entity which includes certain positive impact requirements among its legally defined goals, allowing corporates to reject shareholder primacy in favour of a governance model that permits balancing the interests of other stakeholders – like workers, customers and communities. Maryland became the first state to specifically legislate for these kinds of corporations in 2010, and 30 others have since followed suit.

In the early 2010s, Alexander had been practising transactional law for 25 years and was responsible for maintaining Delaware’s corporate statute when he was approached by B Lab, a non-profit that operates a certification scheme for companies based on environmental and social responsibility.

‘They wanted us to adopt a benefit corporation statute in Delaware. And to be honest, we thought it was kind of cute, but not really serious. I was the chair of the council that worked on those issues and so our first reaction was pretty negative,’ he recalls.

‘But they pushed pretty hard and I ended up taking it on as a project to look more seriously at what they were talking about. As I looked into it, I became persuaded that traditional corporate law actually had a lot of assumptions built in that weren’t necessarily supported by any rational economic theory.’

Alexander’s change of heart and subsequent work was instrumental in Delaware’s introduction of public benefit corporation law in 2013. He even left the practice of law to become B Lab’s head of legal policy, promoting the concept of benefit corporations around the world.

Nowadays, B Lab and benefit corporations are still linked – in order to retain B Corp status (B Lab’s certification), companies must have a corporate structure that rejects shareholder primacy which, in the US, will often mean incorporating as a public benefit corporation. You don’t need to be a B Corp to be a public benefit corporation, although the two frequently go hand in hand – and are often confused.

Keeping your commitments

Among the roster of companies opting to incorporate as public benefit corporations, there are some big names. Global creative crowdfunding platform Kickstarter is one.

‘For Kickstarter, this was always the founders’ ethos,’ explains general counsel Christopher Mitchell. ‘They were not about, “Hey, let’s make our money on an IPO or sale of the company.” I like the fact that we are a very socially and politically active organisation. I think that goes hand in hand with being a public benefit corporation – being very aware of what is going on in the world, how it affects our community, how it affects your business and then what are the appropriate steps to dialogue about that and to get involved.’

When the legislation came along, the company felt that it was the perfect vehicle to crystallise Kickstarter’s commitments. Public benefit corporations must lock in a stated public benefit (or benefits) in their charter.

‘We are a for-profit entity, we operate like any normal business. However, it’s like having a double bottom line. What are you focused on, what does good look like, what does success look like, what are you working towards? As you’re making decisions as an organisation, what behaviour do you take, what actions do you take, what areas do you support? If you think about a lot of other organisations, their main focus is making money. Well, what if it wasn’t just that?’ says Mitchell.

‘What about if you said, “Well these other two or three things are important to us, and this is how we measure success”. Commitment to the environment and bringing creative projects to life are all part of that mandate. I think a lot of non-public benefit corporation organisations aspire to those things, but a lot of times those other goals become secondary to profit maximisation.’

Interestingly, Kickstarter’s shareholders unanimously backed the conversion to become a public benefit corporation. It could be that some investors believe they are looking at a generational shift of corporate values, and the public benefit corporation sits at a unique nexus.

‘It’s a paradox, but it can actually generate more value for your investors – your corporate structure communicates that you are a responsible partner and not bound by law to take advantage of every situation. I think right now we’re at a stage where individual companies are looking at adopting a benefit corporation structure as a competitive advantage, especially among the millennial workforce, or even the generation coming up behind the millennials, who are extremely interested in that sort of concept,’ says Alexander.

If public benefit corporations are aiming to inject virtue into corporate life, could this also trickle down into a better life for their in-house attorneys? Mitchell thinks so.

The North Star

‘I love it because it gives me another reference point. As counsel, you’re considering the law and the objectives of the business and you’re trying to organise those, but when you have these very clear stated commitments and rules, it just provides another reference point to help with the decision-making process. It prevents singular deviation on a project where someone might say, “Hey that’s fine but for this one we’ll just try this.” No, these are commitments, they’re set in stone,’ he explains.

‘It’s absolutely fantastic to have this North Star and this very clear statement driving alignment internally. It’s not just you’re the GC and you’re an outlier. You can point to the charter and say: “This is what we committed to be.”’

‘When it comes to a situation like dealing with a supplier who may not be performing but if we were to walk away, hundreds of their employees would lose their jobs, we look much further than the financial impact of the decision and often make what might seem like an unorthodox choice because it could cost us more in the end,’ adds Hilary Dessouky, general counsel of outdoor apparel company Patagonia, which incorporated as a benefit corporation in California in 2012.

‘At Patagonia, people and planet come first and that is a great foundation for decision making. It adds complexity because there are so many different factors to consider and that can be hard at the beginning. But it’s like a muscle that you have to exercise, and when you see the results, you want to keep working on it.’

Building muscle

For Laureate Education, becoming a public benefit corporation took a little heavy lifting for the incumbent GC’s predecessor. In 2015, the for-profit network of higher education institutions changed domicile from Maryland to take advantage of the shiny new Delaware law. Maryland had its own similar statute, but as the PBC structure had gained traction, model legislation was developed to address thorny issues of fiduciary duty and shareholder liability, and Delaware followed this trend – which appealed to Laureate when it decided to reincorporate.

‘I think any time you’re thinking about making a change in your legal status, the general counsel is critical. The GC has got to understand what’s required and has to be the one to take a hard look at the organisation and ask “Is it really in our best interests to do this, can we really be a public benefit corporation, what is that going to mean for us?” There are going to be legal requirements, the board of directors is going to have to understand what this means, they’re going to have to feel comfortable with it, they’re going to have to vote for it,’ says Victoria Silbey, CLO of Laureate since 2017.

The general counsel also has a vital role to play in drafting the public benefit purpose that the company is nailing to its mast.

‘It needs to be both specific enough to really talk about what you do but broad enough to last for a long time, as a company may change emphasis and strategy. You have to think about it as almost a legal contract, so it’s critical that the GC is part of the decision-making process around that purpose,’ she says.

The Laureate team eventually settled on ‘To produce a positive effect for society and for persons by offering diverse educational programmes, both on premises or campuses located in the communities we serve online’.

‘If we are acquiring or divesting a college or university somewhere on the globe, part of the questions that we ask ourselves is whether this will be good for students. Can we offer students more – better access, better educational opportunities, better outcomes, better ability to get jobs, to get salaries that can support them, for example. We are constantly evaluating those outcomes, doing studies to see how our graduates fare. We’d probably do that anyway, but being a PBC gives us the context in which to put these questions and to make these decisions,’ explains Silbey.

Investor reception

But is it really possible to balance profitability with a commitment to the greater public good?

CircleUp, a company that helps consumer product start-ups to raise equity, thinks so.

It applied machine-learning software to scoring like-for-like strength, reach, growth and intensity of consumer brands in June 2018, finding that 93% of B Corps (distinct from public benefit corporations, but connected by sustainable ethos) scored above the average. The software also reported a 49% growth in sales, three times more than the category cohort.

But not all attempts to marry a sustainability stamp and profitability have escaped a bruising, particularly in the public realm. After the board ousted the CEO of e-commerce platform Etsy in 2017 amid swirling reports of overspending and falling share price, the vocal champion of stakeholder culture and then B Corp released the following statement from its newly installed CEO, Josh Silverman:

‘Since 2012, Etsy has relied on third-party certification, known as B Corp, as one of the ways we demonstrate our public commitment to running a sustainable, socially responsible business. We are proud of our B Corp certification, and of our track record of improving our B Corp score after each impact assessment.

‘One of the requirements of B Corp certification for corporations incorporated in Delaware is that a company must change its corporate structure from a C Corporation to a benefit corporation. As we have said publicly over the past year, Etsy will not seek conversion to a benefit corporation by the December 2017 deadline because converting is a complicated, and untested process for existing public companies.’

Etsy declined to be interviewed for this piece, but B Corp’s Rick Alexander is reluctant to concede that its specific situation has any reflection on the reception of the PBC status among investors.

‘Part of our certification is that at the end of a grace period, if they wanted to keep the certification, they would have had to become a benefit corporation and that would have meant getting a two-thirds vote from their shareholders. At that time they were kind of in a struggle with their shareholders, they had some not-good performance, there were hedge funds in the stock and eventually there was a whole turnover of management. That was not a company that had a problem with being a PBC, it was a company that wasn’t in a position to get a two-thirds vote on anything, let alone PBC status,’ he explains.

Certainly the experience of Laureate Education, the first company already with public benefit corporation status to make an IPO, has been relatively smooth – though Silbey admits there was a little trepidation beforehand.

‘One of the concerns we had was that public markets would not be receptive – it was kind of unchartered territory. I don’t think that that’s turned out to be the case – I don’t think we have investors who aren’t investing or shareholders who aren’t shareholders because we are a PBC. But we really didn’t know at the time,’ she says.

‘We definitely had to explain it. It’s not that common in general and nobody was public beforehand, so when we filed our IPO doc and our 10-Ks since, we had to very carefully explain what it means and why it ties into our overall mission. We needed to be very clear and anticipate the questions that we might have: Does that mean that there’s not going to be good shareholder return, does that mean that you’ll put everybody else ahead of shareholders? We needed to think through what those questions might be and then to address them both in our written documentation and in other conversations with investors.’

Because public benefit corporations are obligated to make decisions that honour a specified social or environmental purpose, they can be held to account for not doing so. The Delaware statute has therefore built in protection for companies so that such lawsuits can only be brought by shareholders owning more than 2% of the company, and that no monetary damages can be obtained, only assurances that the company will improve.

‘For the most part what the statute does is eliminate risk. It makes it easier to operate in a way that’s socially and environmentally conscious, so we reduce the risk that anyone would ever sue you for that,’ says Alexander.

Adds Silbey: ‘If you are carefully considering the decisions you’re making in both the long term and short term, I think that the risk is manageable. We have thought about it and when we do governance training for our senior leaders and for our board members this is an area that we cover – and we get some thoughtful discussion about it.’

A moment of reflection

Having public benefit corporation status has reporting requirements, of course, although at once every two years in Delaware, these are not too onerous.

‘On one hand this is a statement to the public but also for ourselves, it’s a moment of reflection. How well did we actually do? It’s an important piece of feedback,’ says Mitchell.

Like Kickstarter, Laureate is also a B Corp, and B Lab’s granular auditing process provides a similar opportunity for introspection.

‘For the B Corp status, we were concerned that it might be too hard. To get audited on things like environmental footprint and supply chain issues was very new for us and we didn’t really know how we were going to do. We’re not making sneakers, so we’re not checking our supply chain more regularly,’ explains Silbey.

‘So this was a brand new horizon for us, but it’s been great, actually. Because it goes all the way down to a campus level review, we get really good insight into our institutions and how things are going and it helps us then make decisions when we engage vendors – it gives a framework to think about choices we’re making throughout our network of institutions.’

The reality is that a public benefit corporation status is unlikely to appeal to a company that has not placed an environmentally or socially conscious agenda at the heart of its offering, like Kickstarter, Laureate and Patagonia have. The jury is out, however, on how an ethical agenda might be protected in the event of a takeover, especially in the case of rolling back commitments – however legally.

‘In a hostile takeover there’s a limited amount that can actually be done, and I haven’t really thought through should we have a poison pill specifically related to PBC status,’ says Silbey.

‘But certainly with respect to a non-hostile transaction, our directors would try to weigh the different questions that we have as a PBC about commitment to students and communities and outcomes, so we would balance all of that with other fiduciary duties and shareholder considerations.’

A sustainable future

Public benefit corporation status is, fundamentally, optional. But what if it wasn’t?

Senator Elizabeth Warren, Democrat and 2020 Presidential hopeful, last year announced the Accountable Capitalism Act, which strikes at the same target as the public benefit corporation: shareholder primacy.

‘In the early 1980s, America’s biggest companies dedicated less than half of their profits to shareholders and reinvested the rest in the company. But over the last decade, big American companies have dedicated 93% of earnings to shareholders – redirecting trillions of dollars that could have gone to workers or long-term investments. The result is that booming corporate profits and rising worker productivity have not led to rising wages.’

A key plank of the Act calls for corporations with more than $1bn in annual revenue to obtain a federal charter as a ‘United States corporation’, obliging directors to consider the interests of all corporate stakeholders.

‘This approach is derived from the thriving benefit corporation model that 33 states and the District of Columbia have adopted and that companies like Patagonia, Danone North America, and Kickstarter have embraced with strong results’, stated Warren.

The road to legislation, like government, is a long one, and much is in the balance with this Bill. But, if a corporate governance trend is turning heads – and public opinion – there could be interesting times ahead for large companies.

All the more reason for the general counsel to ensure they are involved in any process of governance change or audit from an early stage – whether that’s becoming a public benefit corporation, B Corp, or a future permutation.

‘Sometimes at B Lab we’ll be dealing with a sustainability group in a company, and they’ll say “Let’s do all the other stuff and then we’ll do the legal” – because nobody wants to call the GC!’ says Alexander.

‘We encourage people to socialise the issue early and to make sure that there’s board-level discussions about certification and that the board understands the legal piece. The GC is going to be key in the boardroom’.

‘If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,’ – Eric Schmidt, CEO, Alphabet Inc.

The issue of data privacy has been an increasingly prevalent one for corporates and, subsequently, their general counsel in recent years. When the European Union’s General Data Protection Regulation entered into force in 2016 ahead of its 2018 implementation, businesses the world around were put on notice: the rights of the individual with respect to personal data – its collection, storage and use – were now subject to stringent protections designed to safeguard the end user against corporate interests.

But while the boundaries between business prerogatives and the right to privacy have grown increasingly clear, how companies – particularly those working in tech – handle requests for data from the government and law enforcement remains opaque, particularly with new – or, legally speaking, untested technology.

‘Uncertainty with technology is a real problem for civil liberties, because oftentimes what you’ll see is law enforcement trying to engage in a novel kind of search – or novel kind of information request – that’s never been done before,’ explains Esha Bhandari, staff attorney with American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project.

‘The lack of precedent apparent can be used to their advantage – almost an ask first and then see whether or not a court, or the subject of the request, pushes back. That creates a problem when you have the government or law enforcement pushing to try out new types of technology or search requests. The ambiguity in the law is used to their advantage because that particular fact pattern hasn’t explicitly arisen before.’

In such cases, the prerogative for protection of users often falls on the company faced with the request. In the first instance, advising on a matter like this will typically fall on the shoulders of the general counsel, who will be tasked with balancing the rights of the individual with those of the public at large – represented by those tasked with governing the general populous – as well as that of the business itself.

But in a world in which data and the broad-based learnings that can be derived from it become progressively more sophisticated and prominent, determining what constitutes the public’s best interest – particularly in the face of a distinct lack of judicial guidance – has become nebulous at best. When that decision falls on corporate institutions instead of an independent judiciary, weighing the costs of doing the right thing against corporate imperatives like shareholder primacy becomes even more difficult.

This very issue came to the fore in the wake of the election of President Donald Trump, when law enforcement served subpoenas on a deluge of digital companies in an effort to obtain information which could lead to the identification and arrest of those involved with protesting and causing unrest in the run up to his inauguration.

‘It really harkens back to the question of, “Are we really living in a place where America’s own government is going to be spying on political dissidents?”,’ posits Stephanie Lacambra, criminal defence staff attorney at the Electronic Frontier Foundation (EFF).

‘It shouldn’t really come as a surprise given the practice of spying on dissidents goes back through many decades, from the civil rights movement to the Black Panthers. But what’s different now is that these requests are using technology to achieve their goals. In the information age, spying takes a different colour.’

DISRUPTJ20

In 2016, following the election of Donald Trump, a group called DisruptJ20 began posting online to organise protests to disrupt his 20 January inauguration the following year – relatively mundane stuff in the murky and anonymous online world. But when the US Department of Justice demanded access to all of the information held on the group by their webhost, DreamHost, it became a point of moral principle for the Los Angeles-based company and its general counsel, Chris Ghazarian.

‘Originally, we received a subpoena from the DOJ in January demanding information about the owner of the DisruptJ20 website. We reviewed the subpoena and everything seemed normal, so we produced the information,’ explains Ghazarian.

‘Fast-forward to July and this time we’ve been served with a search warrant, again, the target being DisruptJ20. The warrant we were served with wanted all of the information that we had about the website, not just subscriber information, email address or email content, they wanted our entire database of what we held on DisruptJ20.

‘That amount of information would be huge – we have our own logs that we keep internally for our systems, which include things like HTTP logs and the IP addresses of our visitors. Those IP addresses were the central issue of our case.’

While DreamHost regularly receives orders for information from law enforcement, the scope and depth of the request was unusual – prompting a deeper look from Ghazarian and his team.

‘The first thing we did when we received the warrant was to look over it with our compliance analyst, who told me about the scope. We went over it together and agreed that it was a very overbroad warrant, which was seeking a tonne of data,’ he says.

‘We reached out to the US attorneys that were working the case to have a conversation, because the warrant was overbroad and turning over that amount of information was a ridiculous request. We do this often when we take in court orders or government requests: we spend a lot of time on them and that usually involves reaching out to the appropriate agency or firm or whoever it is if we feel that it’s overly broad. But in this case, when we reached out, they were silent.’

What followed a week later was a motion to compel from the superior court in Washington DC, a common tactic used in discovery proceedings to force a non-complying party to turn over the requested information when they have either refused or the response received is deemed insufficient.

‘That didn’t sit well with us because, historically, we’ve been staunch supporters of privacy. We’ve always taken a strong stance against overly broad requests or similar issues when they arise with law enforcement,’ says Ghazarian.

‘We’ve maintained a strong relationship with all of our law enforcement agencies in the US. We’ve had agents back and forth all the time, we talk to them frequently. Never before had we had an issue like this, where we’re facing a motion to compel and the other side isn’t willing to play ball. So we took a step back, looked at the case up and down and realised we had something very interesting on our hands.’

OVERSIGHT OR OVERREACH?

With an unusual case afoot and significant privacy issues in play, DreamHost prepared to take the unusual strategy of starting a blog to alert the public just what was going on – a move Ghazarian says he was comfortable with after confirming that there was no gag order associated with the warrant.

‘What was particularly unique about this case was that we were dealing with so many people who had innocently visited the website and were going to have their information turned over to the government,’ Ghazarian explains.

‘The government claims that they don’t do anything with the information they don’t use – essentially that any information they didn’t need to look at would be deleted. But in reality, everything is digital, so you can never truly confirm whether something’s been deleted or not. You couldn’t do that with paper in the past, and in the digital age it’s so much harder. When you’re sending a file over the internet, there’s no way you can be absolutely sure that something hasn’t been copied or screenshotted. There’s no real audit trail.’

‘If we were to turn over this information, we would basically be handing over the browsing habits and identities of tens of thousands of people. We had 1.3 million IP addresses associated with DisruptJ20 over the course of the time span in the warrant. But the individual logs tell you a lot more than just that: the amount of time you spend reading each page, the photos you looked at or other links you clicked on originating from that page – everything is recorded. So you’re handing over an entire logbook to the government and that’s disturbing. Very disturbing.’

Of particular concern with the warrant was the content of the site and its underlying purpose – to organise peaceful political protest – which brought to the fore First and Fourth Amendment issues and concerns about whether the request was constitutional.

‘Freedom of speech and freedom of association were really implicated by the breadth of the request that was made,’ says Bhandari.

‘The warrant was specifically requesting information about people who had visited a website discussing organising a protest that was oppositional to the administration. What happens to our rights for freedom of expression, freedom of speech and freedom of association when all of our communications can potentially be seen, stored and analysed by the government? ’

‘Freedom of association was one of the issues we really honed in on and the fact that this can potentially be a very interesting issue if the government is taking action that can suppress that freedom,’ adds Ghazarian.

‘If you found out that your browsing habits are turned over to the government because you visited a political website, then the next time you want to read about politics or visit a political website, you’re probably going to think twice about whether or not you want to click on it – particularly if you know that there’s a blacklist of all of your information going straight to government from a webhost or ISP (internet service provider).’

DREAMHOST v DOJ

Because of the seriousness of the issues raised in the warrant, as well as DreamHost’s commitment to protecting the privacy of its users, the decision was made to challenge the order in court. Ghazarian retained a Washington DC-licensed external counsel and together, they began putting together DreamHost’s defence.

‘We filed our first argument late on a Friday night. I can remember working until after midnight, drafting the argument, books open all over my office, whiteboards littered with nodes and sites – it was a real throwback, like going back to law school,’ says Ghazarian.

‘Then, after the weekend, we posted our first blog post live on Monday. It was a very short blog which explained the request that we had received and what we were doing to fight against it. I went to bed that night and had no idea what was about to hit me on Tuesday morning.’

After the blog went live on Monday, the media went into overdrive – with Ghazarian tasked with fronting up and representing DreamHost – truly thrusting the issue and case into the public consciousness.

‘I’d never had anything like this happen during my career. I was in shock. I passed the bar in 2015, had barely been practising for two years and then suddenly I’m being asked to get ready to appear live on television to be interviewed by Anderson Cooper on CNN! Nothing can prepare you for that,’ says Ghazarian.

‘That was the day that everything really went public. It was crazy, but putting our case in the public eye – despite the pressure that came along with it all – the amount of support we received showed that we were doing the right thing. We had no intention of making this a front-page story, we just wanted to show what was happening behind the scenes and the type of things we do for every single one of our customers and ever subpoena or request that we receive.’

The likes of the ACLU and EFF were quick to offer their support, with more than 100 organisations signing on to a joint public letter to then attorney general Jeff Sessions expressing concern over what they saw as an infringement on American values.

‘When we were involved in the case, we had a number of companies, senators and congressmen who were all lobbying for us directly to Jeff Sessions,’ says Ghazarian.

‘We also had a number of major tech companies publicly come out to back our decision to fight this order. We received a ridiculous amount of support, offers of donations, connections. I was getting calls left and right from so many people in politics and I’d hear the name and be like “Oh my god, I’ve heard this guy on the news so many times”, or you’d Google their names and find out a senator from some far-flung state would be offering their assistance.’

The outpouring of support and assistance, both publicly and behind closed doors, in addition to the wall-to-wall media coverage ignited significant public debate – mounting pressure on the DOJ to justify the legality of its actions specific to this case, as well as its overarching operating procedures. Facing a public relations nightmare and the prospect of a very public, potentially uphill battle in the courts, the DOJ retreated.

‘Two days before the hearing, there was breaking news on TV that the DOJ had pulled back their request for the information from DreamHost in terms of the IP addresses, and reissued their warrant with different language,’ says Ghazarian.

‘That was literally the biggest issue we were fighting for – the IP addresses. So now we’re in a position where the DOJ is publicly doubling back. They issued a public statement, with a corresponding filing, saying that they were never interested in finding out IP addresses or browsing habits of users and they would gladly not pursue those things.’

‘What was particularly interesting about that was that we had evidence on the record of us reaching out to them to explain the extent of their request, specifically the IP address issue – yet they claimed that they had no idea this information would be included. So, in our follow up filing, we pointed out that they knew this, included emails and other evidence to back that up. But the bottom line was, at this point, that was a huge win for us.’

IN YOUR DEFENCE

While pulling back the request for the IP addresses was indeed a significant win for DreamHost, at the time, they still remained involved in an active dispute with the DOJ over the remaining information requested in the warrant.

‘We filed a further response to the DOJ, alerting them to the fact that even though they had retracted the request for IP addresses, there were still a lot of other issues that needed to be talked about,’ says Ghazarian.

‘Our hearing was pushed back by two days at the request of the DOJ, so I flew out to Washington DC for our rescheduled hearing and our day in court. What first stood out – it was surreal really – was the sheer amount of press in attendance. Half of the room was dedicated just to the media and it was at capacity.’

Ruling on the case, Chief Judge Robert Morin of the Superior Court of Washington DC ruled that the DOJ’s request was a valid one and enforced its motion to compel – with some major changes and safeguards to limit the exposure of sensitive and private user information. Delivering his final order, Chief Judge Morin wrote:

‘Because of the potential breadth of the government’s review in this case, the warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the court has previously stated, while the government has the right to execute its warrant, it does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. Accordingly, the court deems it appropriate to incorporate procedural safeguards to comply with First Amendment and Fourth Amendment considerations, and to prevent the government from obtaining any identifying information of innocent persons to the website DisruptJ20.’

‘We were fine with this result – to be fair, most reasonable people understand that we weren’t fighting this warrant in order to prohibit the government from obtaining information from DreamHost. At the end of the day, this was a government-issued warrant and they wanted information regarding the case pending against the protestors. We deal with hundreds of these a year, but there’s a proper way to go about these requests,’ Ghazarian explains.

‘Our issue was that the DOJ was casting an ultra-wide net, and would have obtained a tonne of data that violated internet users’ privacy.We knew at the end of the day we would have to turn over some information – we didn’t want to play hardball with that aspect. We just wanted to cut down the legal request to what we thought was reasonable – not overbroad or overreaching.’

What was interesting about the ruling though, something which surprised Ghazarian, was that the final order to turn over information and how that would be carried out was to be negotiated between DreamHost and the DOJ. Rather than having to hand over the information there and then, the negotiation process went on over the following three months, with DreamHost and the DOJ both submitting a proposed order, after which the judge made a final ruling.

‘When that ruling came in, it was one of the happiest days of my legal career. I remember sitting there, going through the order line by line. We had requested a number of protective measures because of the sensitivity of the information requested,’ says Ghazarian.

‘For most of our arguments and requests, the judge had agreed. Anything that was private information – names, addresses, phone numbers, emails – had to be redacted. So we handed over heavily redacted documents to the DOJ, who were then required to identify what information from that production they wanted to use, then identify the agents who were working on the case and with the information, then appeal to the court and justify to the judge why they needed any of the information they were requesting. Then finally, if they wanted any of the information to be unredacted, they needed to show probable cause for it.’

PROTECTING THE FUTURE

The publicity that surrounded the case brought attention to the issues inherent with the DreamHost case, and the underlying constitutional considerations will likely have the most lasting impact. While the courts’ decision to restrict the ability of both the government and law enforcement to access private user data goes some way in terms of establishing judicial guidance moving forward, whether that will stand up to further checks and tests on the power of law enforcement with respect to data remains to be seen.

‘In terms of future precedent and impacting future issues that come up under these categories, our case helps set a great foundation,’ says Ghazarian.

‘In fact, shortly after our case, Facebook had their own issues with the DOJ over DisruptJ20 and they used some of our arguments that we filed in court in their own case.’

While the likes of major companies like Facebook or historically strong advocates for privacy rights like DreamHost have both the will and resources to contest orders that are seen to overreach, clearly that isn’t the case for all companies.

‘It’s certainly important for companies to take on some of these issues and offer to fight these requests, but it does take companies having the wherewithal to recognise requests that are problematic, then having the resources and will to be able to challenge it. This also means that smaller companies will often not have the ability to fight back. So we live in an asymmetrical world where we don’t quite know everything that the government is doing with regards to requests for data, because it’s guaranteed that there are a number of these requests that never see the light of day, because the company didn’t have the ability to fight back,’ explains Bhandari.

‘If DreamHost had not stood up for its users the way that it did, then this issue quite literally would have gone under the radar. All of this subscriber information would have been turned over to the government and the timeliness with which users would be notified would have been left to the discretion of the courts. Had the government asked for a gag order to prevent DreamHost from notifying users that their data had been compromised and provided to law enforcement, then there’s a good chance that the users would never have even found out.’

That raises the question of whether a legislative response is required to enshrine rights to digital privacy and protection. While California (see boxout) has taken steps to make the process of accessing data more transparent – in particular eliminating any discretion for companies dealing with requests from law enforcement and putting the onus in the hands of the judiciary; codifying requirements and tests to justify access; and spelling out clear requirements for notifying individuals when their data has been accessed – it remains the clear exception. Other states have moved to provide updated protections in their own jurisdictions, but in the absence of an update to federal legislation, which remains outdated and stagnant, the rights of the individual when it comes to their data will continue to fall to the conscience of corporates.

GC: Could you tell me a little bit about your path to Law?

Samantha Von Hoene (SVH): Before I went to law school, I was a teacher. I had originally studied engineering, and realised that I had a lot of ability to affect people’s lives as I taught science and math. I worked on that specifically for females; getting involved in STEM education fields is really important. From there I started working with foster youth, and, based on that work, I decided that I would have a larger platform to change the world if I went into Law. When I went to law school, I realised that education reform was something I wanted to do as a pro bono career, but that I wanted to focus on professional growth opportunities and ways to change other industries. So that’s why, in law school, I changed to study and learn corporate and business facing law. That’s also why I chose not to go the traditional law firm route – I really wanted to be involved with people, lives, and working with cross-functional teams, and so that’s why I ended up going in-house.

GC: How did you go from coming into Enjoy straight out of law school to becoming the general counsel?

SVH: That was a big step. While the original plan with Enjoy was for me to work under a GC, that plan quickly evolved into one where I would come in as solo counsel for the company. I took a chance on the small start-up (then only in San Francisco and New York) and more importantly, Enjoy trusted and took a chance on me as a very new lawyer. The company has grown substantially during my time here, now serving partners like AT&T, Google, Sonos, and British Telecoms and operating in more than 50 US Markets and the UK.

From my first days at Enjoy, I did enough of both the tactical and strategic work that they were really able to see the value of having someone who knows the business intimately to grow into that general counsel role, which is what I did. After a few years, I took over as general counsel, and then later transformed into chief legal officer, owning key areas of risk, including cybersecurity/infosec, compliance, trust and safety and legal, in October 2018.

GC: It must have been quite a reward after all the hard work?

SVH: It has been a really incredible journey. I remember how scary and risky it was to go through the entire bar study period in the US without knowing for sure what my job would be, but when I got that phone call from Enjoy, I knew I had such a good family of people there cheering for me. Many Enjoy employees had become friends of mine that knew me and my previous part-time work with the company, so when I got that phone call that said ‘Yep, we want you to come here and start,’ it was pretty awesome.

GC: You’ve taken quite a non-traditional route, to ignore the entire law firm side of it and come straight in-house as a corporate lawyer, rather than from private practice. How did the experience you had compare to that of your peers who might have gone the law firm route first?

SVH: Everyone in law school encourages you to do your five-to-six years at a law firm, to get your experience and then go in-house, because then you’ll be ‘ready’ to go in-house. For me, it was a little different. I immediately realised that I wanted to do something non-traditional; I had a purpose in that I wanted to help change an industry, I wanted to work with teams and to work with great people – I didn’t want to be in a windowless office all day stuck working on meaningless paperwork. So I was very purposeful about the opportunities I took when I was at law school, and those opportunities eventually led me to Enjoy.

When you get in-house, you actually realise pretty quickly that most experience you might have had as a lawyer in a law firm would very quickly evaporate, because in-house is very different. Your audience is predominately key business stakeholders, not firm partners. Business leaders don’t want to read a four-paragraph analysis on an intense legal issue. They want to hear yes or no, the risk associated with the yes and the risk associated with the no, and they want to figure out how their business is going to operate best given the risk analysis you’ve provided.

For me, it was the right choice to go in-house right away because of that experience, and also because of the relationships I’ve been able to build along the way. I think that if I had gone to a law firm immediately, I would have had a lot less exposure early on. Given my current situation, I’ve now had exposure to most large major telcos in the world, in addition to the biggest innovative companies around, getting to talk and liaise with them, to craft and negotiate potential deals with them, and build our internal structures to support such great companies. Its pretty incredible to see what a company like Enjoy can do when they’ve got a strategic visionary leader like Ron and people in place who want to grow to make it happen.

GC: Is there anything you feel you may have missed out on by not working at a law firm first?

SVH: When you choose one path you have by definition not chosen another path and, in my case, I had chosen not to go the law firm route. I think what you miss out on is the mentorship and the ability to have another lawyer right across the hall who can give you real-time advice on that very specific issue that you just worked on. I didn’t have that for a long time at Enjoy. I had to rely on my mentor network, I had to rely on other business-owners in the office saying, ‘Yeah, that’s a good idea’, or ‘No, I don’t know why we would do that’, and go with my gut a lot. So it made me stronger in that way. But yes, I think that at a law firm you gain a lot of mentorship opportunities really quickly.

But I would say that the same situation can happen in-house; the issue is that a lot of general counsels have not prioritised it. I am prioritizing it. I offer intern and extern programmes, so people can come in when they’re in law school and get three or four months under their belt with me and my team, so they can understand what it means to work in-house, what it means to work on cross-functional issues as a lawyer, and they can get that real critical balance of experience between legal analysis and business acumen. Once they have that, they’ll be invaluable to any business they want to go into. We’ve seen that time and time again with all my past interns. In order to continue this reach and opportunity for law students, I am helping other general counsels set up intern/ extern programs as well.

GC: What was the time period from when you first got the offer to getting the offer to become general counsel?

SVH: About a year and a half. I knew when they gave me the job offer that no one else was coming in. When they gave me the job offer, they said, ‘We think we’ll make it, we’ve got outside counsel, you’ve got plenty of help, you’ll make it work.’ And it was at that point that I said, ‘Ok, I already know you guys, I’m committed, I’m in, let’s see what happens!’

You come in, you start working and you realise, oh wow, trial by fire, I’ve got to learn this, every day is a new day, every hour is a new challenge – and you learn to swim by being thrown in the pool, essentially. You’ve got to sink or swim. Luckily, at Enjoy, we’ve got an amazing team to say, ‘We’re going to help you swim, we’re going to make you get there, don’t worry.’ But also there’s a lot of pressure when you’re up against the AT&Ts and the other large, major corporations of the world – they’ve got 20+ person legal teams and you’re a year into your role of lawyer and you’re trying to negotiate a big deal or argue some nuanced regulation with them. That’s hard. But I made it work, and once I did that, I was able to move forward with all the key business stakeholders at Enjoy to really help them to understand: this is what I do, this is how I do it, and this is the support I need from you. That’s when I really started to see some major traction, and the jump-start from my transition from sole legal counsel to general counsel to my current role as CLO.

GC: Was there a gap between them saying ‘We believe in you’ and then, on a personal level, you saying ‘I can actually do this’? A lot of the time, believing in yourself can be the difficult part.

SVH: Oh that’s the hardest part, 100%. You can win over the team relatively quickly – you can show them a few great examples of what you do and how you do it and everybody loves you. The hardest part is getting over, as Michelle Obama and others have put it, the imposter syndrome. ‘What am I doing, I’m not supposed to be here, this is not me.’ And that will forever be something that plagues any young lawyer, it will be forever something that plagues young female lawyers. But the truth is that once you prove it to yourself a few times, you start getting comfortable with ‘I can do this and I can do it well’. It doesn’t mean you’re perfect. I make mistakes all the time. But I have a good enough relationship with the people I work with every single day that when I make a mistake, they are my safety net, because they help me figure out what the next step is. It’s really uplifting to have that safety net when you’re young in your career, and making very large-scale moves up the ladder quickly.

GC: Can you tell me about your first time advising Ron Johnson – how was that?

SVH: You know, working closely with Ron, a retail legend, for many that is a terrifying moment because a lot of people have idolised him since his time at Apple, and for good reason. He is an amazing visionary who understands the retail business better than anyone most people have ever met in their lifetime. But I was not in the retail business before going to law school, so for me, I knew him from the outside, as someone who had great ideas and amazing insight. And when I started working with him closely I realised, ‘Oh my gosh, he gets it, and he’s setting a unique and innovative path for this whole company.’

It’s pretty amazing to be able to present and to work with Ron on a daily basis. He is incredibly strategic and also very tactical. He rolls up his sleeves and gets it done. Scary is not the right word. I think it’s empowering to work with someone like Ron. It keeps you professionally engaged, because you either need to continue growing or continue getting better or be on your way out. There’s no room for stagnation when you’re working at a company like Enjoy, or when you’re working for a boss like Ron Jonson. You need to constantly be evolving, constantly thinking about how you are going to approach the next business issue in a way that makes sense for all the risk that is fundamental to the issue, and you need to figure it out. And you’ve got to get it done, at the end of the day. There’s a little bit of scare tactic in there, but more than anything it’s the light of the fire that keeps us all going.

GC: These days, do you see yourself as a lawyer first or as a business person with legal training?

SVH: I’m probably a more of a business person with legal training at this point. I think that that’s a hard answer, because everyone who goes through three years of law school and the bar exam wants to tell you, ‘I’m a lawyer first and I wear my lawyer hat’. But the best in-house lawyers have a really firm and fundamental understanding of the business. So, for better or for worse, I think I am a business-minded lawyer who uses my legal hat but leads with my business strategy and what I perceive as the best path to take given the legal risk within the business.

A year ago, I feel like I would not have said that. But as your business grows, as you scale, when I think about the questions that Ron, our CEO, is asking me, what are the questions that our leadership team is faced with every day, it’s legal analysis and work that goes into those questions but it’s the business mindset that ultimately helps you to make the decision.

There can be few legal roles in the US of as much significance and substance as White House counsel. And when Beth Nolan jettisoned film school for law school, she had no idea that her eventual career, including serving as White House counsel for President Bill Clinton – the first female to ever take on that role – would be almost the stuff films are made of.

But the path to what could be termed the ultimate general counsel role was not an obvious progression for Nolan. Eschewing private practice thanks to an interest in public policy law, she found herself as a junior attorney with the US Department of Justice (DOJ), tasked with working on government ethics.

‘I was really disappointed when I was given that assignment if I’m honest,’ she recalls. ‘The Office of Legal Counsel is known for handling the weightiest questions of executive power and executive privilege and I felt like I was going to be advising whether somebody can accept the free gift of tickets to a tennis tournament.’

But Nolan’s initial reservations turned out to be unfounded, and her burgeoning passion for ethics would go on to shape the course of her career. After four years at the DOJ, Nolan began teaching at George Washington University, where she taught constitutional law, but wrote about government ethics and lawyering.

‘That’s the specialty that was eventually of interest to President Clinton in the White House when I first started as an associate. There were scores of constitutional scholars but there weren’t that many people who really knew government ethics, and so that changed the trajectory of my career and my life,’ she reflects.

APPLIED ETHICS

Of course, at the time, as a recently tenured associate professor at George Washington, Nolan still didn’t know that. After volunteering for the Clinton Presidential Transition team, she was offered a role running the government ethics programme at the White House.

‘My original four years in the Justice Department were during the Reagan administration. There had been eight years of President Reagan, followed by four years of President Bush. So there weren’t that many Democrats who had government experience in government ethics laws, particularly some of those that had come through from the Ethics in Government Act of 1978,’ explains Nolan.

‘I was somebody who was teaching it, writing about it and had prior government experience actually doing it. So I got called to the attention of the people in the White House, went to meet with them and was offered the job.’

Putting academia to the side, Nolan was given a leave of absence to return to government. And although she’d spent the past eight years focused on government ethics – the realities of her new position would set in almost immediately.

‘I think I had a misconception that I would still have time to think about theory. I had this image of myself as being tucked away in some basement of what’s now the Eisenhower Executive Office Building working in my office on difficult issues,’ she says.

‘Instead, it’s a rodeo ride. I remember having to slow down to take a breath. When I look back at it, I remember having to tell myself – as a friend advised me to – “Stop and take a picture in your mind.” I really tried to do that.’

Nolan spent two and a half years doing conflict of interest counselling and vetting non-judicial presidential nominees and appointments, before returning to teaching – anticipating spending the rest of her career in academia. But then the former ‘vetter’ found herself on the other side of the equation.

‘In the spring of 1996, I was asked if I wanted to return to the Justice Department as the nominee for assistant attorney general for the Office of Legal Counsel. Sometime in the start of President Clinton’s second term I was nominated, and I waited a year before I got a confirmation hearing,’ she explains.

‘I had my confirmation hearing, waited a year and still hadn’t had a vote on my confirmation hearing – it was caught up in politics. I of course respected the Senate and their prerogative, so I just waited and waited.’

But in another twist of fate, as one door closed, another door opened for Nolan. In the summer of 1999, she was invited to return to the White House, this time as White House counsel.

FOLLOWING MR SMITH

The White House counsel is the chief legal adviser to the president (in their official capacity) and the White House staff. A non-statutory position, unlike the statutory standing of the attorney general role, the White House counsel is there to advise as the President wishes, meaning that each Presidential incumbent can have a counsel who fulfils different roles, depending on their relationship.

‘But in a well functioning, modern White House, I’d say there are some things that you would expect the White House counsel to always do: to serve as a liaison to the Department of Justice; to coordinate legal issues with other departments and agencies in the executive branch; to help respond to congressional inquiries and investigations; and then to provide advice and counsel to help the White House staff stay fully within legal boundaries as they execute on their policy agenda,’ explains Nolan.

Like any general counsel role, this involves handling multiple constituencies – although, in this instance, those parties are Congress (both the House of Representatives and the Senate) and other executive agencies, all of which have interests that might be incompatible in any particular moment – in a mission-driven environment.

‘The mission of the White House may change a great deal depending on who the President is, but some of the mission has been pretty consistent over time too. Ultimately, it’s to do what is seen as being in the best interests of the American people or the nation.’

And of course, not many general counsel roles involve an interview with the President of the United States!

‘That moment does stick with me, particularly because the meeting was in the main floor of the State Rooms of the White House itself, not in the West Wing,’ Nolan recalls.

‘I think if people had seen me going through the halls of the West Wing to the Oval Office to meet with the President, there might have been speculation. So instead, it was in the White House itself – which is just majestic, and you have such a sense of history.’

That sense of history is significant, not just from the perspective of the long-standing history of the institution itself, but for those who came before Nolan and laid the foundations for her to be selected and assume the role of White House counsel.

‘I came in as a successor to Chuck Ruff, certainly not as his replacement, because no one could ever have replaced him. But I’d had the opportunity to work with him, as well as John Podesta, who was the chief of staff, and with Cheryl Mills and Bruce Lindsey, who were the deputy White House counsels. And, to be frank, if Cheryl Mills hadn’t already decided that she was going to leave government, she would have gotten the White House counsel position and I wouldn’t be talking to you about this at all,’ admits Nolan.

‘Funnily enough too, being nominated as the assistant attorney general for the Office of Legal Counsel and not receiving confirmation actually helped me significantly. Had I been confirmed, then it’s likely that this opportunity would never have arisen for me, but it also meant that, as a result of that process, I had already been thoroughly vetted.’

TAKING THE REINS

Despite coming in after the impeachment proceedings against President Clinton had concluded, Nolan entered into a highly charged political atmosphere, replete with investigations alongside the day-to-day role, itself stuffed with with plenty of variety to keep her busy.

‘I remember one day where there was an urgent national security matter that we had to attend to, followed by another urgent call about the implementation of the Easter Egg Roll! Sometimes it really was just like that,’ she says.

‘What I learned was that you have to really love and embrace every kind of real issue and question that arises during your role. I was very fortunate, as I had a really great staff of lawyers who did that – it wasn’t always just down to me or my personal obligation.’

The day-to-day workload also encompassed matters of executive privilege, questions about political activity, nominations and appointments, conflicts of interest, congressional investigations, independent counsel investigations, as well as the everyday business of running a government agency. But despite the absorbing nature of the role, Nolan retained a fangirl’s appreciation of government fostered by her days as a student – and teacher – of its apparatus.

‘I had the privilege of being there at the start of the administration and then at the very end – albeit in different roles. But the machinery of government transition never failed to awe me – that at 12 noon one person is President, and at 12:01 another one is, and almost the entire White House staff changes in that minute. To someone who loves and taught constitutional law and focused on government issues in my research, there was really no better opportunity to be a witness to the way our government works than those moments of transition,’ she says.

‘[At the end of an administration] you don’t leave things. It’s not like at the Justice Department, where one administration leaves and another comes in but there’s a vast group of civil servants who continue on – there, it’s only the top layer that changes and all the documents and records and files remain. In the White House, everything goes. It’s not tossed – it goes to the National Archives and then, in many cases, to the Presidential Libraries. But it’s not in the White House – you come into empty filing cabinets and computers that have nothing on them, and a staff who largely have no idea what they’re doing.’

That means that each new administration and its staff – and subsequently its counsel – have the opportunity to shape their own role and agenda, though, in large part, the role of the White House counsel in particular will, by its very nature, be one that is as reactionary as it is prescribed.

‘I think, in the 2000s, national security matters have played a much more prominent role. I certainly had to handle my share of national security matters, but that focus on terrorism in the 21st century, I think has certainly changed the White House counsel’s job,’ says Nolan.

‘During my time in the White House, we were dealing with multiple congressional investigations. This White House is just starting to face that now, whereas in the first two years they didn’t really have to deal with that at all. That’s going to shift the role for the current White House counsel. But, in large part, I think in any general counsel position there’s certain bread and butter things you have to do. Sometimes it’s going to be more bread and butter, other times it’s a lot more cake and jam!’

I BEG YOUR…

Another potentially significant aspect of the White House counsel role – albeit one that could potentially be handled differently by every White House – is the thorny issue (even to this day) of the presidential pardon. The US Constitution allows for the President to issue pardons, or official forgiveness, to felons convicted of a federal offence. President Clinton issued a large number of pardons on his last day in office, sparking controversy.

‘We certainly handled pardons at the end of the administration in a way that was different from the way they’d been handled before, because the President really wanted to be sure that he was able to exercise his pardon power, and the rate of pardon recommendations coming out of the Justice Department was very slow. Although we tried to get people alerted that we wanted a faster process early on, things just didn’t proceed that way. We ended up in the White House reviewing some pardon applications directly, still working as closely as we could with the Justice Department,’ Nolan explains.

‘We would review their recommendations, in some cases we disagreed with their recommendations, and we’d advise the President that in some cases we agreed. We’d give the President – and also the chief of staff was involved in some of these as well – our best advice about whether or not to grant a pardon. But ultimately, it’s the President’s power – I read my copy of the Constitution and I didn’t actually see the counsel to the President being given any authority in this.’

One pardon in particular that stoked the flames of controversy, causing a federal prosecutor to be appointed to investigate its legality, was Clinton’s pardon of Marc Rich. A financier and commodities trader indicted on charges of tax evasion and trading with Iran while the country was under embargo, Rich had fled the US.

‘I did testify about that after I left the White House – the President waived any privilege with respect to that pardon. I testified at the time that I did not recommend that you grant that pardon. I didn’t see anything improper about him granting the pardon, I just, as a matter of policy, didn’t think it was a good exercise of the authority. But, as I said, I had no doubt about the question of policy on who got to make that decision,’ says Nolan.

‘Congress and the US attorney all were interested enough to investigate the exercise of the pardon power – so it wasn’t treated as a hands-off issue completely. In fact, my very first day as counsel to the President, I was delivered a subpoena from Congress to testify about pardons that the President had granted before I even became counsel. So Congress has, in other times, not been shy about investigating or reviewing the exercise of the pardon power. I never felt tested as I didn’t see anything improper. I think that the President likely has the authority – Congress can complain about it – but it will be interesting to see if there are other limitations that get explored over time.’

WHITE HOUSE TO IN-HOUSE

After leaving the White House at the change of the administration, when President Clinton handed over the proverbial keys to President Bush, Nolan chose to tread a different path. Following a career spent working within the government apparatus, she pursued a brief tenure in private practice.

‘When I left the White House, I thought to myself that I really liked being a general counsel and knew that this type of role was a strong fit for me. But I also realised that while I’d had government jobs and academic jobs, I didn’t have any experience on the private side,’ says Nolan.

‘That’s why I chose to go into private practice, so I could get that exposure to a broad range of clients and legal issues, but perhaps most importantly, I needed to get some experience on the business side.’

Nolan would join Crowell & Moring as a partner, where she spent five years working in the firm’s white-collar and securities litigation practice – a period she credits with instilling the requisite broad-based knowledge to successfully assume a commercial in-house role.

‘Gaining that experience was really valuable for me, but I felt a strong desire to be a part of a team, not just an adviser to a team, but a member of the team with ownership of the matters on which I worked,’ she explains.

‘I also wanted a job where I felt aligned with the mission, so when the opportunity to return to George Washington University as general counsel arose, I knew it was one that resonated with me. I’d been a law professor there ten years earlier and it really hit the objectives that I was looking for. I think having served as a faculty member who had been through the tenure process only enhanced my ability and service as the general counsel.’

The opportunity to come back and serve as the chief legal adviser to the university that served as the springboard for her professional life ties the career of Nolan together with a bow that is almost too perfect – perhaps the final stop in a career which has truly come full circle.

A MOMENT OF REFLECTION

Looking back, Nolan exudes a sense of pride in being the first woman to serve as White House counsel, and in having played a role in felling a professional barrier for women. Since her appointment, two more women – Harriet Miers and Kathryn Ruemmier – have served.

‘But I think the feeling I had in the moment was mostly very personal. It was a mix of pride and excitement and sober awareness of the responsibility,’ she says.

‘And then I look forward, and what I look forward to is the day where there are no more firsts, and it’s not remarkable that a woman is appointed. I think we keep moving along that path. We’re not there yet, and I had that opportunity to be a first, but I’d love it if there were no more firsts.’

Now with the benefit of experience on her side, reflecting on a life in law which has spanned the pinnacles of government, academic, private practice and in-house functions, Nolan says that there’s no secret solution for success – but did offer some sage advice for the next generation:

‘I can only say what worked for me, and the important thing to consider is that what works for one person may not work for another. What worked for me is that I followed what interested me, I tried to know myself well enough to know exactly what that is,’ she says.

‘To add to that, I think one of the really important things is to figure out how you can be yourself at your job and, if that isn’t working, you have to focus on what needs to change. I’d say sometimes that’s the job, sometimes that’s you and sometimes that’s a combination. But use disappointment as a tool to learn and grow and, perhaps most importantly, don’t forget to enjoy the ride.’

Since we published our first GC Powerlist in the United States, the series has gone from strength to strength in countries ranging from Australia to Costa Rica, and South Africa to China. We have interviewed tens of thousands of general counsel, and highlighted some of the very best GCs and in-house teams around the world. And now, in early 2019, we find ourselves back with the United States. But for the biggest legal market, where do we go from here?

Simple answer: bigger. For the first time, we have expanded the GC Powerlist to include the leading 500 GCs, representing some of the largest global corporations, to tech-savvy start-ups and everything in between. And for the first time, we have also included the leading lights in legal operations, an area which is threatening to dominate the in-house conversation for the next decade.

The full GC Powerlist is available from 22 March 2019 at legal500.com/gcpowerlist, and features interviews and insight from the pre-eminent in-house leaders in the United States, including:

‘Last year, I had sole responsibility of negotiating with over 460 law firms on a comprehensive engagement agreement. This effort was the foundation of fundamental changes in how we engage and retain law firms,’ – Alan Bryan, Walmart.

‘The wider company has profited not only by the expert legal advice delivered in a non-judgemental, collegial way, but also by the sense of common purpose that results from a true partnership between in-house lawyers and their business clients,’ – James E Ballowe Jr, E*Trade.

‘The number one piece of advice I would give an aspiring in-house lawyer is to read and listen. I need to anticipate what’s coming so that business can be ahead of the curve,’ – Susan L Lees, Allstate.

‘I deeply believe that the legal function must be an integral part of the company, rather than viewed as standing in opposition to what the company is doing,’ – Rena Hozore Reiss, Marriott International.

The Legal 500’s GC Powerlist is sponsored by Linklaters, Basham and Yerra Solutions, and is supported by the International Bar Association and the Association of Corporate Counsel.

As a billion-dollar franchise and one of the most recognisable entertainment brands in the world, the chief legal officer of The Pokémon Company International may be one of the more coveted in-house roles on the market. For the past 11 years, Don McGowan has occupied that position and has taken the brand through a plethora of groundbreaking international deals across a broad range of industries. From spearheading the legal negotiations surrounding the launch of the hugely successful Pokémon GO mobile gaming app to playing an integral part in the licensing agreements of the upcoming live-action Pokémon film, McGowan has enjoyed a diverse portfolio not always typical of the general counsel.

But these feats are only the beginning for McGowan, who, unlike most GCs, can add ‘Hollywood movie producer’ to his already impressive résumé. Between juggling his legal duties as GC for The Pokémon Company International, he is also a producer for the highly anticipated Pokémon: Detective Pikachu movie set be released in May. A modern-day renaissance man, McGowan is redefining the traditional role of GCs, showing legal expertise can be just as useful in an office as on a Hollywood movie set.

Despite it all, McGowan still manages to find time to advocate for children’s rights as a board member for the National Center for Missing & Exploited Children and teach entertainment law at the University of Washington. Heading into an eventful 2019, McGowan is showing little sign of slowing down.

I Choose You

Before moving to the bright lights of Hollywood and becoming a gaming and entertainment law luminary, McGowan began his legal career as a litigator in Quebéc, Canada. In his journey toward the multi-dimensional position he now enjoys, McGowan admits he stumbled upon more than a few lucky breaks.

‘To a certain degree my career path has been like Forrest Gump,’ McGowan admits. ‘I’ve sort of fallen repeatedly into opportunities – and you know, I’m not so blind to the idea to say the harder I work the better luck I have, but certainly there has been a fair amount of luck.’

McGowan’s career trajectory has included a few once-in-a-lifetime opportunities. This good fortune paired with a strong work ethic has been fundamental to his sustained success.

‘You pick up the skills that life requires you to have,’ he says. ‘I got to Pokémon in August 2008. Prior to that I was the lead lawyer for Xbox games, but at the time we called it Microsoft Game Studios. So, I have worked in the gaming industry and the media industry for about 15 years. Prior to that I actually worked in security and cryptography at Microsoft.’

While at Microsoft Game Studios, McGowan worked on a range of video games, handling everything from franchising to advertising to compliance issues. He also negotiated one of the first video game-based movie deals for Halo, Xbox’s flagship gaming title. While that project didn’t eventually come to fruition, the experience put him at the forefront of gaming and entertainment law, so when McGowan heard of an opening on the in-house team at The Pokémon Company International, he knew his work experience would make him the perfect fit.

Gotta Catch ‘em All

The Pokémon portfolio covers games, movies, television shows, trading cards and a staggering amount of other merchandise across a multitude of mediums. In recent times, the most well-known Pokémon export has been the runaway success of Pokémon GO – a mobile game. Employing location-based augmented reality, the app allows users to capture, battle and train Pokémon in real-world locations, in conjunction with other real-life players. To date, Pokémon GO has been downloaded over 650 million times and has established itself as a global cultural phenomenon. The success the app would become took the world by surprise, including McGowan.

‘I promise you no one gets up in the morning thinking today is the day we launch a cultural phenomenon. You don’t get up in the morning to say: “Today the world changes”.’

McGowan might be accused of hyperbole, but it’s easy to make the case that he’s being realistic: users spent $75m on the app via the Google Play store in December 2018 alone, and a staggering $262m across the year. As of the start of 2019, the app had brought in a total of $2.2bn of revenue since launching in 2016.

McGowan was instrumental in coordinating the deal between The Pokémon Company International and Pokémon GO’s development company, Niantic. Niantic was a start-up spin-off of Google, and comprised of a team of people who played key roles in the development of Google Earth and Google Maps. Transforming this technology into a safe, fun gaming experience looked like a gigantic legal risk at the time.

‘I had people coming up to me saying, “I cannot believe you are going to do a game like this – good luck, man!” Not exactly the vote of confidence you’d hope for,’ says McGowan.

‘I don’t think it is a question of being risk averse, I think it is a question of being attuned to the risks, being cognitive of them, developing your product with them in mind and figuring out the way to address them. And I think that is something that any good legal department does.’

Putting Pikachu First

For as ambitious as the project was, Pokémon GO’s life to date has been a surprisingly smooth one.

‘We launched a worldwide geolocation game with no regulatory issues,’ he says flatly.

A large part of the regulatory success of Pokémon Go can be credited towards McGowan’s focus on brand preservation. This meant ensuring issues of data privacy and child protection were at the top of the list of potential legal concerns. Pokémon has existed for over 20 years and has developed a reputation as a globally trusted children’s brand, so this was a North Star of sorts when navigating potential legal risks. This approach was founded from the position that parents identify the Pokémon brand with products created with children’s safety in mind.

‘That is a really powerful responsibility for us to have and it is something that permeates the company’s DNA,’ says McGowan.

Most of the work in this area was undertaken by himself, but supported by a small team of eight people at the time.

‘My work in these areas was particularly important, because at that time Niantic had no legal staff and so, functionally, that meant all of the legal work on clearance and all the work on the game was done through me,’ he says.

‘There is a thing I do in every sort of meeting I am having with people to discuss a new idea or a new situation – I run through a list in my mind: what are the kids’ privacy issues, what’s the advertising issue etc, and at the end of it I look at my team and I say okay – last question: what have I forgotten to think about?’

The practicalities of the app are such that the cost of getting it wrong is high. The game encourages its users – many of whom are children – to roam their neighbourhoods and cities looking for Pokémon to catch. The fact that the app’s bread and butter are the location tracking adds another complexity to the ethical considerations that must be taken into account.

‘We are obviously looked to as people who have sort of leading expertise on privacy and children’s issues and we are happy to help, and we are happy to share,’ says McGowan.

Expanding from a legal team of eight to a legal team of 19 over the past three years, McGowan acknowledges that Pokémon GO has given The Pokémon Company International the opportunity to grow. With the 2019 release of the live action motion picture, further expansion brings its own host of legal hurdles.

Time to Evolve

It was a cold evening in January when filming began for the Detective Pikachu movie. McGowan was on set and watched as Ryan Reynolds came in to voice Pikachu. He says he knew from that moment on this movie could become a really big hit.

‘That was the moment that everything became real. This is actually happening, we’re making a movie! I never thought it would happen in a million years,’ he says.

‘But sitting there, as Ryan Reynolds – who didn’t even need to be there because he was doing a voiceover part which is shot from the booth – came in, in the middle of the global promotional tour for Deadpool 2, to shoot the scenes. That’s when everything we’d all worked for really crystallised and became real.’

It was through the relationships McGowan built within Legendary Entertainment and Pokémon International, that he was able to secure the once-in-a-lifetime opportunity to work as both in-house counsel and movie producer on the same project.

As a producer, McGowan was involved in everything from advising on casting, directing and script and, while cautious to maintain a separation of ‘church and state’, McGowan was able find the perfect blend between the two skills.

From a legal standpoint, McGowan and his team did almost everything from papering up the agreement to negotiating and ironing out details of the deal between American-owned Legendary Entertainment and his Japanese parent The Pokémon Company, with movie distribution rights going to Warner Bros. McGowan had the task of bringing companies operating in two different jurisdictions – with two different cultures – together.

‘A lot of what I describe in that movie project is, you know, you have two parallel lines and every now and then somebody has to pull them together and make them meet.’ In a lot of ways, McGowan says that was his legal team’s job. Along with putting together the paperwork, McGowan’s team had to also solve adaptation issues that arose from turning a video game into a movie.

‘Detective Pikachu launched as a video game, so we had the pre-existing video game we were working with and there were all the adaptation issues that go into that as well,’ he says.

‘There were a couple of things in the first trailer, where people quite rightly pointed out that music was a rework of something from the video game or a rework from the TV show. We have to make sure the rights were cleared on all of that stuff. There is the IP protection issue, there is the marketing campaign stuff and all sorts of things. There is stuff that you will never even think of. I rely heavily on the teams at Legendary and Warner.’

The day-to-day work of putting a movie deal together is very standard. McGowan describes it as ‘usual lawyer work, it’s the same work day-in-day-out, it’s the stuff that a lawyer does, just transferred onto something that’s got a little bigger canvas.’

His team is currently handling everything from marketing campaigns to the last-minute tasks required in the context of releasing a movie.

Back to Victory Road

After rubbing shoulders with Hollywood’s elite on the red carpet for the release of the much-anticipated Detective Pikachu movie, it will be back to business as usual. Aside from the major projects, there is a surplus of daily issues that McGowan and his team work on to keep the Pokémon franchise running.

One of the major legal issues is the vast number of knock-off products that look to capitalise upon the Pikachu brand – in particular, the swathes of online retailers selling counterfeit Pokémon products.

There is also the TV show, which runs in 196 countries, although most of those licence agreements are handled through the Japan office. Still, McGowan’s team deals with shows that air in the US and EMEA. Add to that the manufacturing deals for trading cards, product testing and safety, as well as the management of the direct-to-retail business, called Pokémon Centre, which is based in the United States – and it’s not hard to see why McGowan says he never sleeps.

‘We have so many things going on, this company has so many activities: to the video game guys – we are a video game company, to the toy people – we are a toy company, to the movie people – we are a movie company, there are not a lot of other companies that can say that. But for us here in legal, we’re all of that. And some more!’

To say that disruptive technologies will be a catalyst of great change – not just in the legal profession, but wider business – is redundant. While that may sound somewhat controversial, in Silicon Valley – the heart of technological innovation – it’s perhaps more accurately an understated perspective.

But how do the in-house legal departments working closest to the action – those employed by emerging, new-era tech companies – manage to stay ahead of the curve in a way that allows them to credibly advise on legal issues at the cutting edge? How do traditional law firms ensure they are keeping in lockstep with industries undergoing technology-inspired change?

Discussion point: Is there adequate regulatory infrastructure in place for AI and disruptive technology more generally?

Often, government regulation is reactive rather than proactive. This is nearly universally true when it comes to technology at the cutting edge. The implications of new, disruptive technology are unpredictable; only once it has been released into the market can the wider implications even begin to be understood, not just by the users, but oftentimes the creators.

This can put in-house legal teams and their external firms alike in a purgatory of sorts, where they must advise on legal positions that are likely to be made obsolete by inevitable regulation. Uber, and the effect it has had on the employee/contractor demarcation, is a good example of this.

With several high-profile technology revelations promised on the horizon (AI and blockchain in particular), do regulations exist into which they might fit? Or must legal advisers adopt a ‘wait and see’ attitude, knowing that future overzealous regulators might leave a company’s product dead in the water?

THE EXTERNAL PERSPECTIVE

Kathi Vidal, managing partner – Silicon Valley, Winston & Strawn: ‘I gave a talk a few months ago at Berkeley with people who had worked for the previous White House administration and they were concerned not only that we lack the infrastructure, but that we lack an infrastructure to build the infrastructure. The current power regime is all about deregulating as opposed to regulating, so we don’t really have adequate structures in place.

We have infrastructure around unpredictable technologies. In IP we tend to divide technology into predictable and unpredictable. Unpredictable is things like pharmaceuticals – and on that side you have the FDA – you know you have to get certain things approved. On the other hand, for the predictable sciences, we don’t have that.

With AI there is increasingly a merging of the two sides. With software entering into all sorts of “things”, you move away from those things being predictable. I wonder whether we need something like the FDA, where you have to get these algorithms approved or whether something needs to be done before they can go to market. I certainly think that the blurring of the lines between predictable and unpredictable technology is a big change.’

Basil Godellas, partner and co-chair, financial services practice, Winston & Strawn: ‘With distributed ledger technology in particular, there are interesting developments at the state level that could impact the practice of corporate law. In the United States, essentially we are seeing individual states looking at how to position themselves favourably with disruptive technology. About a year ago, Delaware and Wyoming both began exploring the use of distributed ledger technology for storing corporate records, but there’s a number of large players in the industry that already provide corporate franchise and similar services that could be impacted by this technology. Will there be a bit of a push back or will the technology be embraced?

Two key examples have been cited over the last six or eight months as problems or mistakes that distributed ledger technology could have avoided. In the case of Dole Foods, the company’s corporate records did not accurately reflect the total number of shares of its outstanding stock. The judge in that case made a statement to the effect that distributed ledger technology could have prevented this mistake. The other example involved the bankruptcy of a major company. In that case, someone made a mistake and terminated the financing statement securing a billion-dollar-plus loan right before the company went into bankruptcy. So there’s been a lot of talk about using smart contracts to prevent mistakes like this. These are just some examples of where state governments are looking to use blockchain technology, specifically to facilitate corporate record keeping and secured financings. ’

THE IN-HOUSE PERSPECTIVE

Bruce Byrd, chief legal officer, AT&T Communications: ‘When it comes to the question of whether we need new regulations, I should qualify any statement I make by pointing out I work in the second-most regulated industry in America after banking. Our lawyers don’t wake up in the morning thinking we need more regulations. On the other hand, you do wonder what direction some of this might go and whether it could be a wise decision to get ahead of it, or suggest that policymakers should do something. I spend a fair bit of my time talking to the intelligence community about the security of our network, and most of that focuses on big threats to its core elements.

There’s this little thing called IoT – the Internet of Things – too. Whereas I can name on one hand the primary manufacturers of big network gear, I can’t do that with the manufacturers of IoT devices. The standards are disaggregated or nascent, and the security protocols are more questionable than they are in our core network or radio access network. So it’s hard to know the direction to go, but I’ve thought about it less in terms of what recommendations we need (although we have made some recommendations to the White House about things needing to be considered in the IoT space, but those recommendations are not around needing more regulation), but rather emphasising that we need to take advantage of AI to address a problem. In other words, whatever regulation you may come up with will pale in effectiveness in comparison to AI capabilities that can do faster threat analytics, while proving to be more malleable and flexible. That is a tough thing for policymakers to get their heads around. The real challenge is education. They don’t quite get that it’s not going to work in the usual way – they will have to allow us to use a lot of this stuff before it’s perfected if we as a nation are going to take advantage of its benefits.’

Jordan Newmark, litigation and IP counsel, Miami International Holdings: ‘The regulatory framework we have in the US isn’t technology-focused, it is fear-of-disruption-of-the-general-marketplace-focused. The result is you have areas of the world that are way ahead of us in terms of implementing things. In Bermuda, for instance, their stock exchange rules have promulgated draft rules with respect to trading tokenised products that are way ahead of where the SEC is today. We can watch experiments happen in other countries around the world.’

Scott Weber, general counsel, Lumina Networks: ‘What’s interesting when it comes to trust is there has been a shift away from traditional sources of authority and credibility. I trust Google and AT&T far more than I do the government at this point, especially right now, because they move faster – and besides, corporate social responsibility is taking heart and hold in the economics; it’s in a business’s advantage to be a good citizen. It makes sense to be a good corporate citizen and make products that don’t hurt people and protect against these liabilities, with or without regulations. Of course we still need regulations, but they are always going to be three steps behind, and even then it will be a case of putting a sticking plaster over something very large. It will be interesting to see the ways in which corporations and government can work together.’

Kathleen Jason-Moreau, general counsel, Vim: ‘I just feel like I spend all my time chasing after the sales team. Bruce, you talk about AT&T being regulated, but I’m in healthcare – $1bn to get a product to market will be considered cheap. Often sales people come to the company from a different sector and they’re just not used to the way this market works. It’s so heavily regulated. It’s an education, and you don’t want to be the lawyer who is always saying no. I’m not comfortable just being a rubber stamper, but I also don’t want to be the person who stops the deals. The most successful sales executives don’t take a no from anyone – not from a customer and certainly not from a GC. We’ve just got to figure everything out; it creates all sorts of challenges because the law changes too quickly. I study every weekend. You never want to let the CEO down.’

Discussion point: Does disruptive technology change how you expect external advisers to act?

Increasingly, firms are marketing their services on the basis of value. This is particularly so when it comes to in-house clients, for whom tightening budgets have made value a priority. With in-house teams looking to technology to streamline processes, and as businesses from every sector embrace technological innovation, questions are being asked of external partners: are you using technology to deliver more efficient services to my team? Do your lawyers have the technical knowledge required to advise my business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘I had a client who invited their four top firms in and they explained what their goals were, so that the four law firms could align with that. It helped tremendously; the energy you get is great. Just to hear from the CTO about the open source issues, the cloud issues, what they’re struggling with – it energised me to think outside of the box and about which lawyers I could pull into the spectrum in terms of solving their problem. You can bring them all in at once, which is extremely empowering and makes me able to serve them better.’

THE IN-HOUSE PERSPECTIVE

Chris Ghazarian, general counsel, DreamHost: ‘I think you see a lot of firms playing catch up. You expect them to understand some of the tech behind it, but you also have firms who don’t understand that blockchain is not the same as distributed ledger, and vice versa. Last year, we had a case against the Department of Justice. Part of the reason we got into that was the automation around some of our subpoena compliance and warrant compliance. That led to discussions with GCs of big web hosting companies. It was interesting to hear about the way they incorporate these technologies into what they do in terms of legal compliance. Frankly, a lot of them don’t know what they’re talking about. Their external counsel may also not be fully aware of what’s going on, and then something bad happens. Then, and only then, they realise it is a big deal – after which, it’s often too late.’

Bruce Byrd: ‘My lawyers cover every specialty, and I expect them to be better versed than anyone we hire. So what I’m looking for in external counsel is a level of curiosity. I meet lawyers who aren’t curious about technology. Occasionally, I run into my own lawyers who joke with me about how they don’t understand tech. I don’t find it funny – if you don’t know the tech then that’s a problem. I’m not asking my lawyers to be technologists, that’s not our training, but they should know the essential elements of what we do. I have a lot of confidence in the firms we hire, but when it comes to individual lawyers, I’m seeing a slight laziness about the issue – that’s what annoys me. My outside firms need to understand this at least as well as I do. That’s my biggest challenge – making sure my outside firms are diving into the technology.’

Discussion point: What are the ethical and practical concerns with increasing reliance on AI and algorithms in business?

THE EXTERNAL PERSPECTIVE

Kathi Vidal: ‘We, as a society, don’t trust technology. Autonomous vehicles should save 20,000 lives a year, but if one person dies that’s going to make people think it isn’t safe. Then there are questions of what happens if someone hacks the software. These are very serious issues which we are going to be dealing with all the time. With software entering into all sorts of applications, you move away from those things being predictable. I certainly think that the blurring of lines between predictable and unpredictable technology is a big change.’

THE IN-HOUSE PERSPECTIVE

Jordan Newmark: ‘It’s not so much the legal dollar liability, as much as the brand liability, that’s the issue. If you’re a financial services provider and you have a robo-adviser for which the algorithm is off in a particular way, and it recommends buying something that you should have shorted, for example, that may cause a loss of a certain dollar amount for your customers – but the bigger loss is likely to come from other customers fleeing or deciding not to invest any more money with you. I tend to think that the limitations of liability for using software probably will apply the same ways they traditionally have, but I think brand liability is what will take the biggest hit.’

Robert Shives, general counsel, Shinko Electric: ‘In my view, understanding the risk to retirement plans and savings is just as important. If the AI recommends something that ruins millions of people’s lives, it is a big problem. That is not just a brand problem. It is people who have lost their life savings.’

Mary Fuller, former head of legal and chief policy officer, The Kudelski Group: ‘It won’t be long before AI invents – there is already an AI popstar in Japan. I presume AI cannot get a copyright. Likewise, unless you’re human, you cannot become an inventor on a patent. That means a lot of the regulatory and IP frameworks will ultimately be deemed inadequate. I assume that as soon as there is a clear economic interest in companies being able to own the output of AI, the laws will change, but until then we have the question of what we do. There will be no incentive to develop something that is fundamentally not patentable.’

I worked at law firms in Washington DC for almost a decade, where I was a transactional tax specialist, doing mostly cross-border work. I was at Skadden about 15 years ago, when I got a call about an in-house opportunity at Mars, Incorporated. I knew a little bit about Mars, but it was something of a mystery to me. But when I came to speak to them and learned of the international scope and pipeline, I was blown away.

Making the decision to go in-house, I was interested in getting the opportunity to pursue the breadth of subject matters (legal and non-legal) that working for a law firm doesn’t tend to offer. I think going in-house can be a terrific way to diversify your expertise and talents.

When I first joined, understanding the relevance of different legal issues to the wider business was one of the biggest challenges. When you’re in a law firm, by the time the work comes to you, someone in-house has identified the issues, considered the impact on the business, and consulted a lawyer at your law firm. By the time it hits your desk, it’s probably been through a number of filters.

A key part of being a successful in-house counsel is finding ways that you can work with the business to demonstrate your value. Since joining Mars, M&A activity has been a huge part of the business strategy, and I’ve had the good fortune to play a key role in those efforts.

Acquiring Wrigley’s was a huge deal, same with VCA – which led to a whole series of acquisitions in the pet health space. Then we’ve also invested in Kind, which is a health and wellness platform predominantly in the US, but increasing in Europe and elsewhere. On the other side, we also sold Mars Drinks to Lavazza last year – that was the sale of a heritage company, something that we created a number of decades ago and one that was really tough, emotionally, to divest. We’re really pleased to see it in the hands of Lavazza though.

When you think of these types of deals, there’s obviously a huge role for the bankers and finance to play, but there is also a huge role for lawyers. Ultimately, it’s the lawyers who are predominantly negotiating the terms and conditions, undertaking the due diligence, and writing up the agreements. When you work on deals like this, the kind of transformational change that M&A can bring, this is a huge opportunity for lawyers to step up and show to the rest of the business just how they can contribute.