The In-House Advisor

  • Mixing Business and Legal Advice Can Be Dangerous for In-House CounselFebruary 07, 2019

    Over the years, I have written a lot of blog posts on the attorney-client privilege, and they cover a wide variety of issues. One issue that comes up very frequently (whether in-house counsel realize it or not) is what happens when a communication with an attorney intertwines legal and business advice? As Marriott Vacations Worldwide found out last year, the answer is not always crystal clear and, more importantly, may create issues for in-house counsel and the client.

    As part of Marriott’s discovery responses in RCHFU v. Marriott Vacations Worldwide, the company objected to producing a strategic plan memorandum to the Corporate Growth Committee (the “CGC”) based on the attorney-client privilege. The plaintiff challenged Marriott’s objection, which left Marriott with the burden of proving that the CGC memorandum was privileged. In analyzing the issue, the Court began by recounting a few overarching principles:

    Business communications are not protected merely because they are directed to an attorney, and communications at meetings attended or directed by attorneys are not automatically privileged as a result of the attorney’s presence. The corporation must clearly demonstrate that the communication in question was made for the express purpose of securing legal not business

    Keep reading

  • A Quick “Yes” Can Create a Binding Contract, Even If There Has Not Been Agreement on All TermsJanuary 03, 2019

    As I discussed in a blog post several years ago, even an informal email can constitute acceptance of a contractual offer. Moreover, just a few months ago, Judge Timothy Hillman took this principle one step further by ruling, in Witt v. American Airlines, that an exchange of emails can form a binding settlement agreement, even if the parties have not agreed to all of the terms of that settlement.

    In 2014, Diane Witt sued American Airlines for injuries she claimed to have sustained while on a flight. After litigating that case for more than three years, the parties finally engaged in serious settlement discussions. Ultimately, American Airlines’ counsel sent the following email to Witt’s counsel:

    I have been informed $15,000 is firm (together with acceptable release) and that the settlement must happen promptly before more costs are incurred. This really needs to get done this week and certainly before any further hearing for the experts have to spend any more time preparing for deposition.

    Witt’s counsel eventually responded: “Thanks for getting back to me. Ms. Witt accepts the settlement offer of $15,000. Please send the proposed release when you can.”

    Less than one month later, however, Witt’s counsel … Keep reading

  • Careless Employee Reviews Are Not Only Useless, They’re HarmfulDecember 19, 2018

    While employee reviews have obvious benefits from a Human Resources standpoint, implementing a policy that ensures employee reviews are well-crafted and accurate today, can go a long way toward insulating the company from potential liability tomorrow. Courts have consistently held that discharged or transferred employees can use performance reviews to show that they were treated differently based upon their membership in a protected class. In such “disparate treatment” cases, a performance review may establish or contradict that: 1) the employee was qualified for a position; and 2) someone outside of the protected class with similar qualifications was treated more favorably.

    When deciding whether an employee was “similarly situated” to someone who may have been treated more favorably, a court will consider “whether a prudent person, looking objectively at the plaintiff and her comparator would think them roughly equivalent, and similarly qualified for the position.”

    Employee reviews may be used as a tool to create evidence of work experience, or lack thereof. For example, if Employee A completed six significant projects in 2018, but Protected Employee B, who held a similar position, only completed three significant projects, employee reviews documenting the work experience of Employees A and B may be … Keep reading

  • Tips From The Inside: Bill Gabovitch, General Counsel, Primark US Corp.November 29, 2018

    In this installment of The In-House Advisor, we interview Bill Gabovitch, General Counsel at Primark U.S. Corp. Primark is a fast-fashion retailer, based in Europe, with 350 stores in 10 countries. The company’s first U.S. store opened three years ago – in the former Filene’s space at Downtown Crossing, Boston – and it now operates nine stores in five Northeast states. Bill is a former associate general counsel at Staples, a former associate at two Boston law firms, and a graduate of Indiana University and the University of Pennsylvania School Of Law. He lives in Newton, MA, with his wife Lauren and their daughters Rebecca and Naomi.

    The In-House Advisor: What do you see as the main focus of your role as in-house counsel, and how do you see that role evolving over the next few years?

    Bill Gabovitch: Overall, the value that an in-house counsel brings to the table is in how much he or she helps the business achieve its objectives with the lowest reasonable risk. Sometimes that involves helping on a transaction or a strategy, or choosing the right way to deliver the company’s products or services to the market, after properly assessing for … Keep reading

  • Waiver of the Attorney-Client Privilege in Connection with Internal InvestigationsNovember 12, 2018

    While most parties and their counsel are vigilant in keeping their communications confidential, so as to avoid any chance that the attorney-client privilege can be invaded, there are some situations in which a party makes a tactical decision to waive that privilege. When this happens, courts generally agree that such a waiver will extend to all communications on the same “subject matter” as the disclosed communications. Having said that, however, there do not appear to be any general guidelines or bright-line tests to determine what is meant by the subject matter of a communication. Rather, such analyses are done on a case-by-case basis.

    While trying to determine what a court will define as the scope of the subject matter of a particular communication can be a bit like reading tea leaves, a related area that is even more fraught with peril is where a party decides to have counsel undertake an investigation and then publicizes some or all of a report generated from that investigation. Indeed, this is the exact, and unfortunate, position in which the Hamilton County (Tennessee) Board of Education found itself earlier this year.

    In 2015, three members of a high school basketball team located in … Keep reading

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