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Taking it to the Mat

October 8, 2008 | Filed Under GC Liability 

Few corporate executives under federal indictment resist the temptation (and pressure) to settle. Fewer still take the case to trial and verdict.

Former McAfee GC Kent Roberts is one who did. And he won, with acquittal on two charges related to allegations of stock-options backdating. A third charge resulted in a mistrial, and prosecutors have decided against seeking a retrial.

Mr. Roberts was represented by a team from Cooley Godward that was led by Stephen Neal. SEC charges still linger, however.

Perhaps this outcome will result in fewer cases like this being pursued, particularly where there is no clear evidence of financial gain or intent to deceive.

That would be a hopeful sign for those tasked with preparing option documentation in an age of complex compensation systems and even more complex regulatory interpretations.

General Counsel Liability

February 18, 2008 | Filed Under GC Liability, Compliance 

The Fulton County Daily Report has an excellent summary of the state of GC liability. The list of those involved isn’t large in an absolute sense, but is growing.

According to Roscoe C. Howard Jr. of Troutman Sanders (and a former U.S. Attorney):

“There was a time, quite frankly, when you could be a director or officer and hide behind a corporate shield. Individuals weren’t held to any law enforcement accountability. Now, if you’re CFO, you’re going to jail. They’re going to turn to their GC and say, you need to keep me out of trouble.”

The challenge of course is that neither the GC nor the legal department can be looking over everyone’s shoulder all the time.

But that doesn’t always matter when the authorities come knocking…

The GC: Going Up? (or Down!)

October 4, 2007 | Filed Under GC Liability, GC as CEO Springboard 

It’s like living in an elevator.

Two recent articles in the ALM universe show the highs and lows of the GC life.

The first discusses whether the GC position could be a road to the top. Writer Katheryn Hayes Tucker quotes former executive recruiter Frederick W. Wackerle, who is not sold on the idea yet, but sees a glimmer of logic:

To be sure, Wackerle considers a law degree to be valuable, particularly when combined with an MBA. But he advises not spending a long time in a law firm or an in-house job on the way to the top. “Reporting to the CEO as general counsel for 20 years, it’s very unlikely that they would be a candidate for CEO succession,” he said, “unless they’re involved in working with strategy.”

This is the same attitude that the Wall Street Journal adopted earlier this year.

But just as the GC community starts to see more options for upward mobility, reality intrudes and reminds of the very serious nature of the position. The second article in question lists the GCs charged with civil or criminal wrongdoing. To be fair, the problems at nearly all these companies extended way beyond the GC.

Given the challenging matters dealt with by today’s GC, they get much more contact with CEOs, boards, and the investor community. Maybe that’s why boards are increasingly open to consider a lawyer for CEO.

Just as long as they pick carefully.

Gatekeepers at a Premium

February 22, 2007 | Filed Under GC Liability, Investigations 

Quick, what’s your employed lawyer’s policy deductible?

Susan Friedman of Marsh writes in the New York Law Journal about the increasing liability risks faced by GCs and other managing corporate counsel in their potential role as “gatekeeper.”

Of note, according to Ms. Marsh, are these issues:

In 2006 in-house attorneys were confronted with a myriad of potential exposures, many of which will continue through 2007 and beyond. The highlights of 2006 included: ยง307 of SOX, backdating stock options, new rules of federal civil procedure regarding electronically stored information, the McNulty Memorandum, Federal Rule of Evidence 502, liability to outside third parties, investigating boardroom leaks, and multi-jurisdictional practice and licensing.

The entire article is worth reading for GCs; it is also instructive for outside counsel who want to understand their clients’ situation better.

Even the footnotes are good (number 6 being a personal favorite).

Watch your step!

That last one is a doozy...