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b_150_0_16777215_00___images_stories_01-INHOUSE_2011_July_ih_roundtable1.jpgIn the first of four videos from the InHouse/Association of Corporate Counsel general counsel roundtable, moderated by editor Andi Balla and sponsored by Lerners LLP, our esteemed panellists discuss the hot topic of managing their law department’s legal spend.
Monday, 25 July 2011 09:18

Mitigating cloud computing risks

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Kelly Friedman says there are benefits to cloud computing, but you still get what you pay for.
Kelly Friedman says there are benefits to cloud computing, but you still get what you pay for.
Cloud computing is not without its risks, but it’s up to corporations to do due diligence before they hand over their data, says one lawyer who specializes in electronic discovery.
Molson Coors Canada has won this round in its battle with Labatt over beer sponsorship for the NHL. Photo: Molson Coors
Molson Coors Canada has won this round in its battle with Labatt over beer sponsorship for the NHL. Photo: Molson Coors
Following last week’s ruling in the sponsorship case between two breweries and the National Hockey League, one in-house counsel says she thinks companies will be more careful when entering sponsorship agreements.
After 20 years at the helm, Fred Krebs has retired from the Association of Corporate Counsel. Photo: Sandra Strangemore
After 20 years at the helm, Fred Krebs has retired from the Association of Corporate Counsel. Photo: Sandra Strangemore
As president of the Association of Corporate Counsel, Fred Krebs has travelled around the world, speaking to in-house counsel. He has found they face similar challenges everywhere.
Monday, 04 July 2011 14:19

Knowing a good risk

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b_150_0_16777215_00___images_stories_01-INHOUSE_2011_July_cheryl-foy.jpgWith this column, Canadian Lawyer InHouse welcomes Cheryl Foy, who will be writing a monthly online column about the issues facing in-house counsel across the country.
b_150_0_16777215_00___images_stories_01-INHOUSE_2011_June_nortelblue.jpgTORONTO — Valuable broadband and networking patents developed by bankrupt Nortel Networks go up for sale today, with tech giants like Google, Apple, and Intel heading the list of would-be buyers.
Is collective bargaining a constitutional right? If employers and labour lawyers were looking for a clear universal answer from the Supreme Court of Canada on the matter, they will have to wait some more. A recent case dealing with the matter still leaves the debate open, lawyers and legal scholars said at a Kingston, Ont., event last week.
The recent approval of new whistleblower bounty rules by the United States Securities and Exchange Commission has brought attention back to how the Dodd–Frank Wall Street Reform and Consumer Protection Act will affect Canadian companies.
The latest rules, approved by the SEC on May 25, give whistleblowers the chance for a windfall of 10 to 30 per cent of the funds regulators recover through original information that leads to the recovery of more than US$1 million.
Cross-border lawyers have warned Canadian companies for a while that the sweeping changes stemming from Dodd-Frank would affect them. That’s the case primarily for Canadian companies listed on U.S. exchanges, but other Canadian entities could feel it too if they do any U.S.-related business.
“Whistleblower risks are a new reality for U.S. public companies and Canadian companies regulated in any way by the SEC,” says John Keefe, a partner at Goodmans LLP. “It is important that Canadian corporate counsel understand these regulations and implement systems to respond to these new risks.”
Keefe adds Canadian companies should be aware the new regulations just enacted by the SEC to implement Dodd-Frank may increase their exposure to SEC investigations and prosecutions for securities fraud and anti-bribery violations.
The Association of Corporate Counsel clearly opposes the new bounty rules. The largest organization representing in-house counsel in the U.S. says it favours the use of internal reporting structures before information is passed directly to the SEC by potential whistleblowers. The new rules mean the internal reporting structures can be bypassed.
The ACC, which also has a presence in Canada with chapters in Ontario and Quebec, sent two letters to the SEC, noting its objections. They were part of the more than 1,500 comments the American securities regulator received before it passed the cash-for-whistleblowers new rule.
“The SEC’s bounty rule is a Pandora’s box that, when opened, is likely to create new and even unanticipated harms rather than promoting better reporting of potential problems,” says ACC general counsel Susan Hackett. “They are assuming that offering whistleblowers money to come forward will yield better results without imposing disproportionate costs for companies, shareholders and the very compliance programs that ACC members have spent decades building.”
Dodd-Frank is a huge piece of legislation that was meant to regulate the American banking system following the financial crisis by tackling systemic risk, reining in derivative products, improving consumer protection, and increasing public company disclosures.
Beyond the whistleblower payments, Dodd-Frank contains other regulations that can impact Canadian companies, say lawyers with American firm Paul Weiss, which has an extensive Canadian practice and recently opened a new office in Toronto.
“It is a massive piece of legislation and could have a huge impact on Canadian companies,” Andrew Foley, a partner at Paul Weiss, said at a recent Toronto seminar.
Among other things, Canadian extractive industries — oil, gas, and mining — face new requirements under miscellaneous disclosure provisions of Dodd-Frank. The act also increases the disclosure burden on Canadian companies in terms of reporting payments they make to non-U.S. governments.
Goodmans LLP partner John Keefe says it's important for Canadian counsel to be aware of new whistleblower regulations in the U.S.
Goodmans LLP partner John Keefe says it's important for Canadian counsel to be aware of new whistleblower regulations in the U.S.
The recent approval of new whistleblower bounty rules by the United States Securities and Exchange Commission has brought attention back to how the Dodd–Frank Wall Street Reform and Consumer Protection Act will affect Canadian companies.
Technology has opened up a wealth of information for lawyers conducting investigations through surveillance for use in court cases, but they need to make sure the collecting of such information is within the bounds of Canada’s privacy rules, experts at a Toronto seminar said last week.
Surveillance is treated like all types of evidence in court, said David Cherepacha, a partner at Davies Howe LLP, who was speaking at a seminar organized by his firm and the Association of Corporate Counsel. And even though gathering the information might violate Canada’s privacy legislation, the Personal Information Protection and Electronic Documents Act, it does not mean the evidence is not admissible in court, he added.
“Commencing a legal action implies consent under PIPEDA,” said Cherepacha.
Beyond traditional surveillance for which organizations or lawyers might hire professionals to obtain video evidence, the proliferation of social media like Facebook has added a whole new level. Ava Kanner, another partner at Davies Howe, told in-house lawyers in attendance several court decisions involving evidence taken from Facebook have weighed in trying to reach a balance between admitting evidence and protecting privacy.
While courts have ruled that the mere existence of a Facebook account is not enough to require its postings be produced in discovery, they have also ruled plaintiffs cannot have serious expectations of privacy when about 350 people are granted access to a private site, Kanner said in her presentation. She gave examples from one of her own cases that saw a Newmarket, Ont. man lose a court case involving a disability claim, when photos on Facebook showed he was involved in heavy physical activity with his family.
Beyond Facebook, getting information when a hard drive is involved, for example when an employer wants to access private of activity of an employer, is something courts have also looked at. “It’s not a certainty that you will get access,” said Kanner. “You have to convince a judge it is relevant and reasonable to privacy.”
Jodi L. Skeates, legal counsel with the Canadian Life and Health Insurance Association Inc., said organizations should craft defensive strategies that allow for corporate responsibility in the appropriate use of surveillance. She said surveillance is governed by a series of regulations, ranging from rules of evidence and civil procedure to employment contracts and privacy laws.
PIPEDA is key, but it doesn’t cover all aspects of surveillance, said Skeates. It  applies to organizations that collect, use, or disclose personal information in the course of commercial activities, she said, and also to the personal information about employees of organizations engaged in federal works, undertakings, or business.
Skeates said in-house lawyers should be careful to closely follow proposed regulatory reform in this area, adding the Privacy Commissioner of Canada has been very public in wanting order-making powers, penalties for non-compliance, and the ability to publish the names of the organizations under investigation.
‘Commencing a legal action implies consent under PIPEDA,’ says David Cherepacha. Photo: Andi Balla
‘Commencing a legal action implies consent under PIPEDA,’ says David Cherepacha. Photo: Andi Balla
Technology has opened up a wealth of information for lawyers conducting investigations through surveillance for use in court cases, but they need to make sure the collecting of such information is within the bounds of Canada’s privacy rules, experts at a Toronto seminar said last week.
Monday, 23 May 2011 13:48

InHouse holds annual GC roundtable

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Photographer Sandra Strangemore sets up the photo of participants at this year’s InHouse/ACC roundtable. Photo: Andi Balla
Photographer Sandra Strangemore sets up the photo of participants at this year’s InHouse/ACC roundtable. Photo: Andi Balla
Properly managing legal spending remains the top concern for leaders of Canadian legal departments, said panellists at a roundtable last week organized by Canadian Lawyer InHouse in co-operation with the Association of Corporate Counsel.
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