Law X.0

The #MeToo movement has made us more aware of pervasive sexual harassment, but harassment based on every protected characteristic—including race, religion, age, and national origin—is pervasive and persistent. Former EEOC Commissioner Chai Feldblum, now a director of workplace culture consulting at Morgan Lewis, says companies must take a more proactive approach to tackling cultural problems that lead to harassment and sap productivity. She explains that, for many years, employers thought that the way to stop harassment was to have a policy that says you can't harass people. But because harassment stems from deep-seated cultural forces, a policy alone isn't enough. It takes positive steps to foster a workplace culture that is safe, respectful, diverse and actively inclusive rather than merely not exclusive.

Cannabis is illegal under current federal law. But with attitudes—and state laws—changing, we could see federal legalization very soon. If that does happen, regulations will dictate how growers, makers, dispensers, and consumers comply with the resulting framework. What would those regulations look like? In this episode, Joanne Caceres, a senior managing associate at Dentons, explains that the federal government's current regulation of hemp already gives us a lot of information about the regulatory landscape that awaits cannabis. The U.S. Department of Agriculture and the Food and Drug Administration both regulate hemp, and both would likely be involved in regulating cannabis for consumption as well. Given the patchwork of rules currently in place, she advises industry participants and their lawyers to move carefully and think creatively about how to work within the law in every way possible.

Artificial intelligence tools are now thoroughly embedded in the practice of law. Lawyers are using these tools to search, sort, predict, and guide many traditional legal tasks. But there are complex concerns at work: lawyers need to keep on top of new technologies, protect client confidentiality, comply with ethical constraints, and at the end of the day, be confident in what the computer spits out. In this episode, law professor and legal tech expert Dan Linna argues that lawyers should think bigger about how we use these technologies in the profession. Where we are still focused on tools and process, he says, we should be looking ahead to outcomes and what systemic problems we can tackle if we embrace AI. He discusses the current snags, but points to a promising future where law students versed in the technology can focus on the quality and equality of legal product produced more efficiently with these tools.

Biotech firms have trouble getting reliable access to capital throughout the long, unpredictable development, testing, and approval process. While it’s in some ways a typical high risk, potentially high reward business, biotech can provide life-saving innovations when the success finally materializes.   J.W. Verret, GMU law school professor and member of the SEC’s investor advisory committee, has ideas to help biotech and other small-cap companies access the public and exempt markets more efficiently. Verret talks about why current securities regulations, like Reg A and Reg FD, hamper small-cap companies and hobble their search for liquidity. He discusses small changes, and better outreach from the SEC to small-cap firms, that could tip the scales and help match money with innovations that could improve lives.

A simple complaint against Facebook’s privacy practices, submitted to an Irish agency by an Austrian law student, has snowballed into a seven-year legal battle that continues to disrupt the global privacy landscape. The European Union’s highest court will soon issue a ruling that Bloomberg Law analyst Mark Smith says may have major implications for U.S. lawyers and businesses.   In this episode, Smith details the legal carve-outs Facebook has relied upon to justify the transfer of data from the EU to the U.S., and he discusses how those measures have fared under the scrutiny of the European court system. He also explains what’s at stake with the upcoming ruling, and how U.S. lawyers can prepare for the next chapter in this seemingly never-ending but fascinating story.

The #MeToo movement is changing how M&A deals are written. Statements designed to protect deal parties from liability for C-suite sexual harassment are showing up in mergers and acquisitions of every size and across many sectors of the market. This type of statement is known as a “#MeToo rep” or “Weinstein clause” and, according to Bloomberg Law legal analyst Grace Burnett, it is a “provision going viral.” In this episode, Burnett discusses the emergence of #MeToo Reps (short for “representations and warranties”) in M&A deals, shares what she found when she analyzed publicly available M&A agreements, and describes the specific elements that are becoming market standard in the wake of #MeToo.

Office housework might make an office run more efficiently, but it can hold back an employee’s career and lead to expensive lawsuits for employers. Dori Goldstein, employment law Legal Analyst, and Cindy-Ann Thomas, principal at Littler Mendelson, explain the problems with tasks like planning the office holiday party or scheduling a meeting, and why so many of those tasks fall to women. They discuss the changing legal risks surrounding office housework, and explain how to prevent it from sparking lawsuits and eroding retention.  Co-hosts Dori Goldstein and Meg McEvoy also share the results of an office experiment. In an effort to delegate office housework more fairly, three men were tasked with planning an office baby shower. Hear from the guests, the guest of honor, and one of the party planners.  Listen and subscribe to Law X.0 from your mobile device:  Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy  Guests: Cindy-Ann Thomas, Principal, EEO and Diversity Practice Group, Littler Mendelson Producer: RJ Jewell

Erich Spangenberg, CEO and co-founder of IPwe, is trying to give a technology-driven makeover to the $200 billion patent licensing and acquisition market. Spangenberg talks with Dori Goldstein and Meg McEvoy about leaving behind his patent troll past to create IPwe, a platform that connects transacting parties and provides AI-driven analytics on patent transactions. IPwe is aiming to bring in data from the world’s approximately 200 patent offices and create transparency around the pricing of patent licensing and sale transactions. Spangenberg discusses the opportunities for small and medium-size enterprises to tap into their patents’ value. Spangenberg also has some reassuring words for patent lawyers, who he thinks will remain an integral part of the system going forward.

In this third and final episode in a series on cryptocurrency, New York Department of Financial Services Superintendent Linda Lacewell discusses BitLicenses, which enable virtual currency projects, including those that touch the state’s mammoth banking sector. Initially unpopular among the Fintech and crypto communities, BitLicenses are lending legitimacy to virtual currency projects. 2019 was the busiest year yet, with eight crypto projects getting licensed by NYDFS. Lacewell discusses how her department is ramping up its cryptocurrency reviews, recent approval of stablecoin projects, and its win in litigation against the U.S. Comptroller of the Currency over cryptocurrency licensing. Listen and subscribe to Law X.0 from your mobile device:  Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy Guest: Superintendent Linda Lacewell, New York Department of Financial Services Producer: RJ Jewell

SEC Commissioner Hester Peirce, also known as “crypto-mom,” has strong views on how her agency can facilitate the growth of cryptocurrencies. The sole dissenting commissioner in the SEC’s denial of the Winkelvoss Bitcoin Exchange Traded product, Peirce thinks the agency needs to provide more guidance to the crypto-sphere. Peirce discusses potential adjustments to the SEC regulatory framework for crypto to allow projects to get up and running and let the market realize its potential. In 2020, the SEC will continue to focus its enforcement efforts on fraud in the crypto space, according to Peirce. She also sees promise for Regulation A offerings of cryptocurrency for companies that may not want to register with the SEC. Listen and subscribe to Law X.0 from your mobile device:  Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy Guest: Commissioner Hester Peirce, U.S. Securities and Exchange Commission Producer: RJ Jewell

Digital currencies have the potential to transform the financial industry, with wide-ranging implications for regulators and attorneys. This three-part series on cryptocurrency demystifies a rapidly changing field, the regulatory response, and what it all means for law practices.  In this episode, Bloomberg Law senior data analytics manager Tom Shen and senior legal analyst Robert Kim explain the mechanics of cryptocurrencies and how they intersect with regulators and traditional banking. Shen discusses how blockchain technologies are streamlining banking processes and explains why stablecoins aren’t necessarily stable. Federal and state agencies are turning their attention to the cryptosphere, according to Kim, but the U.S. regulatory system may be moving too slowly to avoid falling behind to China and other countries on crypto. Going forward, law firms and companies can expect more requests for compliance advice and defenses against enforcement in uncertain regulatory territory. Cryptocurrency Part 2 will feature SEC Commissioner Hester Peirce, also known as “crypto mom.” In Part 3, we’ll interview Linda Lacewell, Superintendent of the New York State Department of Financial Services about Bitlicenses for cryptocurrencies.  Listen and subscribe to Law X.0 from your mobile device:  Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy Guests: Robert Kim, senior legal analyst at Bloomberg Law; Tom Shen, senior data analytics manager at Bloomberg Law Producer: RJ Jewell

Businesses are increasingly turning to litigation finance to fund commercial lawsuits. The practice transfers risk to third parties and moves high legal fees off a company’s balance sheet. Charles Agee, founder and managing partner of Westfleet Advisors, discusses the maturing litigation finance industry. Agee estimates that more than half of Am Law 200 firms have had clients use commercial litigation finance. Standards are emerging across litigation finance contracts, according to Agee. For example, funders are always passive financiers who don’t get to control litigation strategy. But despite rising awareness of litigation funding, the industry lacks transparency and usage data. The industry is also not without its opponents—the U.S. Chamber of Commerce Institute for Legal Reform has called for mandatory disclosure of litigation funding arrangements. Litigation finance is increasingly a business development tool for law firms. Agee discusses how firms have an opportunity to educate clients on the benefits of using litigation finance and deploy it internally as a source of capital.

DOJ recently announced it is stepping up enforcement of FARA (the Foreign Agents Registration Act), breathing new life into this World War II-era law. FARA requires “agents” of a foreign principal to register – but Joe Moreno, former federal prosecutor and partner at Cadwalader, thinks the law is vague and is being applied too broadly. In one of the cases to come out of the Mueller investigation, former Skadden partner Greg Craig was acquitted of FARA charges over his representation of the Ukrainian government. The case is an example of DOJ’s increased focus on U.S.-foreign relationships and the challenges and deficiencies of this statute, according to Moreno. Despite the law’s shortcomings, FARA enforcement may be a key part of DOJ’s policy as it seeks to avoid another 2016 election scenario. Moreno thinks more clarity is needed on FARA’s reach and requirements. Moreno also has some advice for law firms and consultants who represent foreign entities for staying compliant with FARA. Listen and subscribe to Law X.0 from your mobile device:  Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy Guest: Joe Moreno, Partner, White Collar Defense and Investigations Group, Cadwalader Producer: RJ Jewell

Why should a lawyer who doesn’t represent health care or insurance companies be concerned about HIPAA? One of the largest health care data breaches, which compromised nearly 25 million individuals’ records, didn’t occur at a hospital or clinic – it was the result of a billing/collection company breach. Betsy Mountenay, analysis manager at Bloomberg Law who focuses on health care, interviews Iliana L. Peters, a shareholder and health law attorney at Polsinelli in Washington, DC. Peters is the former acting deputy director and senior advisor for HIPAA compliance and enforcement at the Department of Health and Human Services Office of Civil Rights. Mountenay and Peters discuss how non-health care entities can violate HIPAA if they’re in a business associate relationship. According to a Bloomberg Law analysis, 25% of data breaches reported since 2016 happened on a business associate’s watch. Congress is also starting to scrutinize the vendor selection process for health care companies. A wide variety of tech companies working with health care companies could be expected to have stronger HIPAA safeguards. At the same time, many medical-related apps providing services directly to consumers may not be covered under HIPAA.  Peters and Mountenay also discuss enforcement areas that HHS state agencies are focusing on. Listen and subscribe to Law X.0 from your mobile device: Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify Hosts: Dori Goldstein and Meg McEvoy, Guest Host: Betsy Mountenay  Guest: Iliana Peters, shareholder and health care attorney at Polsinelli  Producer: RJ Jewell

John E. Smith, former director of the Treasury Department’s Office of Foreign Assets Control (OFAC) and co-head of Morrison Foerster’s national security practice, discusses the current Iran sanctions and their impact on global business. Since the U.S. withdrew unilaterally from the Iran nuclear deal, it has become an outlier, as much of the rest of the world, including Europe, wants to continue to do business with Iran.   Smith discusses the risk of sanctions fatigue as economic penalties become a more common tool for the administration. Smith also addresses how OFAC, a relatively small department within Treasury, is working on implementing the administration’s sweeping sanctions regime.   In terms of the private sector, the Iran sanctions have had an outsized impact on financial services – banks are becoming increasingly conservative as OFAC has asserted its influence on global companies through their banking transactions.   Smith offers tips for attorneys counseling global companies and financial institutions in this sanctions-rich environment.   Listen and subscribe to Law X.0 from your mobile device: Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify   Hosts: Dori Goldstein and Meg McEvoy   Guest: John E. Smith, co-head of Morrison Foerster’s national security practice   Producer: RJ Jewell

Orrick has been named the Most Innovative North American Law Firm by Financial Times for the past three years. Three members of Orrick’s innovation team, Wendy Butler Curtis, Chief Innovation Officer, Kate Orr, Senior Innovation Counsel, and Daryl Shetterly, Director of Orrick Analytics, discuss how the firm has engineered and maintained an innovative culture.   The innovation team discusses concrete steps firms can take to optimize processes and get innovation into the DNA of an organization.  They also have some advice on what skills lawyers should acquire to succeed in a new type of law firm (and why the youngest lawyers might be the most innovative).   Shifts in the delivery of legal services and the transformation toward data-driven decision-making are having big impacts on legal practice. Hear Orrick’s approach to staying ahead of the curve in today’s legal landscape. Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy  Producers: RJ Jewell and Nicholas Anzalotta-Kynoch

Google and its subsidiary, YouTube, recently entered into a record $170 million settlement with the Federal Trade Commission and the New York Attorney General over allegations that YouTube unlawfully collected children’s personal information. It is the largest settlement ever under COPPA, the Children’s Online Privacy Protection Act, which prevents companies from using child-directed online services to collect data on children under 13 without parental consent. Kristin Cohen, Assistant Director of Privacy and Identity Protection at the FTC, breaks down the YouTube settlement and talks about its impacts on the greater business community. Critics of the settlement have pointed out that $170 million is just two days of Alphabet, Inc., Google’s parent company’s, profits. Cohen discusses the FTC’s view of the deterrent effect of the settlement and offers takeaways for companies that are creating content. Cohen also discusses the FTC’s COPPA rule review and its priorities going forward. Listen and subscribe to Law X.0 from your mobile device: Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify   Hosts: Dori Goldstein and Meg McEvoy Guest: Kristin Cohen, Assistant Director of Privacy and Identity Protection, Federal Trade Commission Producers: RJ Jewell and Nicholas Anzalotta-Kynoch

Maria T. Vullo, former superintendent of New York’s banking and insurance regulator, the New York Department of Financial Services, was responsible for drafting and implementing the state’s groundbreaking cybersecurity compliance regulation. The rule requires financial institutions to have cybersecurity compliance programs in place – with far-reaching implications for banks and institutions around the world.   Vullo weighs in on current federal efforts to strengthen Gramm-Leach-Bliley and has some advice for financial institutions and their counsel in an era of large-scale data breaches. Listen and subscribe to Law X.0 from your mobile device: Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy  Guests: Maria T. Vullo, CEO of Vullo Advisory Services Producer: RJ Jewell and Nicholas Anzalotta-Kynoch

The former president and founder of Institutional Shareholder Services, now one of the world’s largest investment advisory firms, discusses how companies like Wal-Mart can have a bigger impact on the environment than governments can. Minow, “corporate critic” and shareholder advocate, also highlights how executive compensation packages can be a harbinger for company performance and why Facebook’s corporate leadership structure is concerning. Minow also shares advice for corporate in-house counsel on shareholder relations and how to avoid a hostile takeover. Listen and subscribe to Law X.0 from your mobile device: Via Apple Podcasts | Via Stitcher | Via Overcast | Via Spotify  Hosts: Dori Goldstein and Meg McEvoy  Guests: Nell Minow, vice chair of ValueEdge Advisors  Producers: RJ Jewell and Nicholas Anzalotta-Kynoch

From the legal analyst team at Bloomberg Law, a new podcast exploring today’s challenging legal landscape. For more information: https://pro.bloomberglaw.com/law-xo-podcast/