#MeToo Makes its Mark in M&A Deals

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