Understand Your Rights. Solve Your Legal Problems
Reggie Davis is a very busy person. From advocating LGBT rights to keeping on top of all the latest technological advancements, Lawyer Monthly cannot help but wonder how DocuSign’s General Counsel (GC) does it.
“I have a lot of smart people working for me, that really help me look good”, laughs Reggie.
“They keep me from making mistakes and I have a lot of trusted advisers where they guide me appropriately. I would definitely say hire people that are smarter than you, and trust them when they tell you what to do.”
We speak more with Reggie about his journey as GC at one of the most progressive companies that has pioneered the development of e-signature technology, and today offers the world’s #1 e-signature solution.
So, you have worked for very different companies, what was the biggest transition from Zynga to DocuSign?
There are a few things. In a way it was easy, as there are many people I work with at DocuSign that I previously worked with at Zynga and several of them I also worked with at Yahoo!. So, in essence, I work with a really good group of friends on the legal team that have been with me overtime, which makes it a lot of fun. Doing something completely different is always interesting to me; when I left working with a law firm and went to work with Yahoo!, which was then in the heyday of privacy and security, we were tackling all these new issues which was good fun. Following on from that, I went to Zynga which was also online; I saw a lot of the same faces and similar issues to help me figure things out there. Then DocuSign, which I would say is a calmer and more soothing, 'middle of the fairway' company, presents less controversy in terms of the challenges presented. All companies similar in a sense, in relation to their online presence, but they all present their own challenges.
DocuSign recently went public; how do you prepare for going from a private to a public company?
Maturity allows you to remain consistent with reporting and its governance
I think it is just bringing a level of maturity and consistency to the company; you go from being private, which still has its own host of regulations, to meeting all these heightened regulations when you become public. Even though prior to being public you still have regulatory requirements to meet, you now have to deal with public reporting cycles on an orderly basis, you have various listing requirements around Nasdaq [or other] that require you to make certain disclosures, and you are also subject to a higher degree of SEC (Security & Exchanges Commission) requirements.
So, I would say it is maturity; maturity allows you to remain consistent with reporting and its governance. Your investors are putting trust in you by buying your securities on an open market thus, you have to be quite disciplined and mature in how you approach and report out on your business. A lot this happens behind the scenes, lawyers work with the finance team to ensure the framework and infrastructure and operational rigour is in place in order to be a publicly traded company.
What took you by surprise when you first began working as GC at DocuSign?
The technology is actually much more sophisticated and profound than I thought it was going to be! I thought it was a simple e-signature company, where you are able to complete digital transactions and documents and contracts (etc.) online, by using a digital signature or an electronic signature. But there is actually quite a bit of complicated technology underneath it all!
We provide a certificate of completion (COC), so for every signature you sign via DocuSign, you get a complete record which shows when, where and how that document was transacted. So, basically when you use our software, your document becomes a smart contract and it can tell you, no matter where you are at later in time when you look at it, where it has been, who's touched it, how it has been signed, maintained and acted upon. All of this is done in a tamper-proof, encrypted ‘envelope’, so, as you can imagine, there is a lot of technology involved in this process. That was probably the biggest surprise when I first came to work as GC to DocuSign, to understand this process and to be in the position to explain that to others when they use our software.
What do you think is the best part of being General Counsel?
Definitely working with the people. I love the team that I work with, we have great people involved and I have been fortunate to become friends with them over the years. They are all very smart, dedicated and hard-working and I get to help them take on big goals and watch them work hard to achieve them, which is rewarding as much as it is fun.
On the other hand, what is your least favourite aspect?
Funnily enough, my least favourite aspect of being GC used to be all the things you have to sign. But at DocuSign everything is so easy, due to it all being digital! My least favourite was certainly all the paper work I had to deal with, and now that has largely gone, so I guess my least favourite aspect now is probably the traffic into the commute. San Francisco’s traffic is terrible, but I do loathe to complain to Londoners about the traffic, as I know the commutes can be worse!
Going digital is inevitable to an extent, but people are apprehensive about the authenticity and security of digitalisation. In your opinion, what is the best way to ensure clients their data is safe?
You are correct with saying that security is an issue and we are working hard towards ensuring security is tight.
Good question! When I first got to DocuSign, the first issue wasn't security, it was legality. When I first began working here, our main question was: 'is it legal if I sign this contract electronically and is it valid?'. As I spent a lot of time getting people and our customers comfortable on the legality of the signature, we decided to devise the ‘Trust Centre’ on our website. Here we talk about our security and what we publicly disclose, as well as the e-signature legality guide. This is a guide we created across 64 countries, where most of our business is conducted, which goes into the various laws regarding e-signatures of those respective countries for our customers, which has been a huge hit. With it being one of the most downloaded documents off our website, it has given people a lot of comfort when they see this summary of the laws.
You are correct with saying that security is an issue and we are working hard towards ensuring security is tight. We are complying with the Service Organisation Control (SOC) 1 & 2, Payment Card Industry Data Security Standard (PCI) and more recently, with Binding Corporate Rules (BCRs), or as I like to call it, GDPR on steroids.
These regulatory requirements have been embedded by the data protection authorities and as DocuSign is both a processor and controller of data, adhering to these requirements goes a long way to showing our customers that we take the software we sell, and the fact that our customers are selling / transacting some of their most important business using our software as a trusted brand, very seriously.
If a company can tell you all day long that they are committed to security, but if they are being audited by third parties and getting certifications and accreditations from such parties, then I think a customer can take a lot more comfort in the fact that the company has the right security measures in place.
I candidly think that the London market has been quite progressive in terms of its adoption of digital transformation.
As you are conquering the digital world, in what ways do you think the legal industry need to reform in order to progress?
I candidly think that the London market has been quite progressive in terms of its adoption of digital transformation. A while back, The London Law Society published a report speculating on digital signatures, stating that they expect e-signatures will accelerate the business sector and drive up compliance, so from my perspective the London market is quite progressive in its approach to digital transformation.
Generally, there are other areas where the legal industry lag behind; even though Courts are typically slow to react to changes, we are seeing an increase of electronic filing in the Courts and I think there is an understanding across the European market, Governments and regulatory regimes, that there needs to be a commitment to becoming digital. This also stands for law firms, as well as banks, financial institutions and others.
The younger generation won’t have the tolerance for scanning and faxing; so I think we are at the point now where as the next generations are more accepting towards digital transformation and expect things to be more digital, there will be more momentum towards progression in technology developments in law.
What are common misconceptions people have about digital processes, such as DocuSign?
People are often amazed to how much it accelerates their business. The age-old attitude remains true here: people overestimate technology in the short term and grossly underestimate it in the long term. Most people are surprised by how much their businesses can change, how fast things can move, and the amount of cost that can be reduced by going digital as opposed to paper.
When I have spent time with customers that began adopting us on a pretty regular basis, I have seen that it really does change the way that they do business. Over 50% of our customers have now seen their contracts completed in less than 15 minutes and 83% of them are seeing their contracts completed in less than 24 hours. The speed to completion of the contracting process is what people tend to really underestimate. For example, one of our customers are T-Mobile, and by using digital signatures, it has reduced their time to sell a phone by over an hour (on average). Once the document has been e-signed, a dozen things behind the scenes instantaneously occur, which quickens the speed, efficiency and reduces cost.
I think smart contracts, blockchain and AI are getting overhyped regarding their short term impact, but in the long term it is here to stay and will transform the way in which we interact
Are there any exciting developments in technology you are looking forward to embracing in your work?
Yes of course. It is a really interesting time to be a digital GC. Between the digital transformation that is going on with software companies like DocuSign and others out there, we are really focused on developing even further. There is going to be a lot talk on artificial intelligence; I know right now there is a lot of hope and hype around artificial intelligence (AI) and blockchain, but the reality is that behind the scenes there are a lot of smart people working on technological advances that don't seem to be getting a lot of attention, but will transform the way we are doing business.
I think smart contracts, blockchain and AI are getting overhyped regarding their short term impact, but in the long term it is here to stay and will transform the way in which we interact, especially in terms of everyday transactions. I do think it will change drastically at an accelerated pace over the next five or ten years, and the legal teams will have to keep up with that. Lawyers will not be doing themselves or their company just service if they do not become digital or technologically sophisticated; it is where the customers are going, and we need to keep up with them. It is an exciting time to be a GC.
From this, can you share ways you are developing yourself and your team, in order to ensure 2018 is the company’s best year yet?
We spend a lot of time together; I am really focused on the team's creative core, so there is a fundamental need to bond.
I am a huge advocate of giving back to the community that has given so much to us, so I widely support our lawyers doing pro bono work and helping those who are less fortunate.
That is more challenging than you may think at times, because we are growing quickly; when I first started there were only four or five of us on the legal team, and now my legal team consists of 72 people. The team consists of people from different professional backgrounds, from all over the globe, which makes it more challenging to integrate them into the team. I am a strong advocate of encouraging my team members to identify conferences to attend, work towards being subject experts and for them to speak at such events; spending time trying to ensure those near and far feel a part of the team is so important.
I also think pro-bono is important. I am a huge advocate of giving back to the community that has given so much to us, so I widely support our lawyers doing pro bono work and helping those who are less fortunate. I have partaken in many things myself, such as supporting the LGBT community; civil rights issues are just as important as usual day-to-day work, as we need to ensure the betterment of society, for our children and future generations. Positive support and celebrating individuality are also reflected into DocuSign: we celebrate is the whole employee - not just the worker – and this ties back into making sure everyone feels a part of the team. Honing in on this, on making sure we are a better team with broad interests inside and outside of work, enables us to be stronger and better than before.
Reggie Davis
General Counsel
www.docusign.co.uk
Reggie leads DocuSign’s award winning legal team in driving acceptance and adoption of digital signatures and transactions across business, industry, and the public sector.
Prior to joining DocuSign, Reggie served as general counsel and EVP at Zynga where he helped manage hypergrowth from 114 to 3,600 employees, successfully brokered 48 acquisitions that led to the expansion of 32 offices worldwide, and oversaw the third largest technology IPO in Silicon Valley history.
DocuSign has been on a mission to accelerate business and simplify life for companies and people around the world by providing electronic signature technology and digital transaction management services for facilitating electronic exchanges of contracts and signed documents.
LCA Studio Legale
LCA is an independent law firm born from the dream of a group of professionals with renowned experience and specialized in company legal assistance. Offices are in Italy, in Milan (headquarters), Genoa and Treviso (inside the venture incubator H-FARM), and in Dubai (United Arab Emirates) where it operates in International Partnership with IAA Law Firm.
The law firm has gained a strong expertise in civil, commercial and corporate, banking, finance and tax law, in real estate and construction law, in labour, immigration and transportation law, in competition and EU law, in intellectual property law, as well as in art law, in family law and in the protection of family assets.
The flexibility and specific strengths of a leaner structure, modelled on the best of what the Italian legal tradition has to offer, combined with the organisation and experiences of major international law firms, grants LCA a highly customised consultancy service tailored to each client, whether a start-up, a medium sized firm or a listed multinational company.
Litigation, Arbitration and ADR
LCA represents Italian and foreign clients in court proceedings and arbitrations, especially in the areas of corporate and commercial law. The approach taken by our lawyers aims at defining the best strategy to combine the effective protection of our clients’ rights with the need to efficiently resolve commercial disputes.
PREVENTING AND RESOLVING DISPUTES - In addition to leading the contentious juncture, LCA’s litigation team provides its support from the very early stages of commercial relations, as we are aware that preventing a dispute is the best and cheapest way to resolve it.
LITIGATION - LCA manages several court litigation proceedings before Italian and European Courts, with a particular focus on corporate and commercial law:
LCA’s eclectic team also supports businesses in a variety of labour, insurance, tax and IP disputes.
Moreover, thanks to the admission of some of the firm’s lawyers to foreign bars and to an international network of selected foreign law firms that share our fundamental values, LCA can manage proceedings before non-Italian courts, instructing and directing the local lawyers and ensuring that our clients can conveniently deal with just one law firm for all their needs.
LUCIANO CASTELLI
Luciano has over ten years of experience in business and litigation consulting, which he acquired assisting Italian and international companies, focusing on Civil and Business Law, always offering ‘tailored’ services based on his clients’ specific needs.
He has been involved in a number of important disputes at national level, and is often appointed as arbitrator, by colleagues and institutional organisations, including the President of the Court of Milan, the National and International Chamber of Arbitration of Milan, and the President of the Council of Chartered Accountants and Tax Experts of Milan.
From 2009 to 2016 he was an honorary fellow in Private Law at the Catholic University of Milan; from 2011 to 2014 he attended the University of Milan’s doctorate program on Civil Procedural Law, where he is currently honorary fellow in Civil Procedural Law.
He is the author of a number of publications in the field of Civil and Procedural Law, and, as of 2012, he collaborates with the Ipsoa Group - Wolters Kluwer in the updating of the ‘I Contratti’ databank, and in the editing of the Commentated Civil Code, written by Guido Alpa and Vincenzo Mariconda. He successfully completed a post-graduate specialisation course held at the University of Milan on Financial Markets Law in 2014, and the post-graduate specialisation course on Corporate Law in 2015. After passing the exam, in 2017 he was admitted to practice before the Higher Courts.
He is a member of the arbitration society ‘Associazione Italiana per l’Arbitrato’, and he is listed as the only Italian contact person in the area of Commercial Litigation and Dispute Resolution, by Global Law Expert, Leaders in Law, and Fiver Star Law.
Luciano Castelli | Email: luciano.castelli@lcalex.it | www.lcalex.it | p.iva 04385250966
Milano, 20121, via della Moscova n. 18: Tel. +39 02 7788751 | Fax +39 02 76018478
Hampshire is the home to one of the largest remaining tracts of unenclosed pasture land, where you will find soft sandy beaches, views to peek at the Isle of Wight, fossil hunting and King Henry VIII’s coastal fortress, Hurst Castle.
The Balmer Lawn Spa Hotel
In the heart of The New Forest in Hampshire lies the Balmer Lawn Hotel and Spa; hidden away enough for a tranquil break, but easy enough to locate. This space boasts British grandeur and not solely due to the fact that you get front seats to view the weekend cricket matches and woodland wildlife at play, because actually, The Balmer Lawn Hotel is enriched in British history, which makes it an even more glorious place to explore. With it being one of the significant landmarks in the centre of the New Forest National Park. Originally built in the mid 1800’s as a hunting lodge, it became an army hospital during the First World War, and during the Second World War as a base for troops to prepare for the D-Day landings before being turned into a hotel, which now gushes luxury entangled with comfort.
The centrepiece that welcomes you is the grand staircase, taking you up to your home for the night; showcasing views of the forest housing ponies and deer. The hotel spoils you with king size beds and a perfect mix of modern décor and English tradition, (furry family members also welcome!).
You can pamper yourself with an invigorating facial or soul changing massage, post a relaxing indoor, or (if the British weather allows it) outdoor swim.
Enjoy a mojito in the pool, a smooth whiskey by the fountain or a pint of Smokin’ Deer bitter from the hotels very own microbrewery, before savouring a fine meal at the Hotel’s 2AA Rosette Restaurant – Beresford’s. They take fine dining to the next level by making their own bread, butter, in-house smokery and butchery all complemented by local ingredients and trimmings from their own kitchen garden to tingle your taste buds.
But why come to this very spot in Hampshire?
Of course the last thing on your list of things to do when escaping to the serene English countryside is work. But hear me out: the fresh air and open space can do wonders for the mind.
Relax
Their Saltus Spa is blessed with a touch of heaven. An intimate setting providing one of the most relaxing treatments I have ever undergone. You can pamper yourself with an invigorating facial or soul changing massage, post a relaxing indoor, or (if the British weather allows it) outdoor swim. Want to feel like your weekend away has given your mind a month off from work? I would recommend you try one of their luxurious treatments.
Work?
Of course the last thing on your list of things to do when escaping to the serene English countryside is work. But hear me out: the fresh air and open space can do wonders for the mind. There are six meeting rooms of all shapes and sizes. Small and intimate for interviews and small meetings, then on to larger rooms for conferences and events. Unusually, each room has its own private garden/outdoor space – perfect for outdoor working. So whatever your group size, you can enjoy a company retreat that can be refreshing, as well as informative. With the suites being spacious and tastefully decorated, this could be the perfect escape from the mundane office for your team.
Balmer Lawn Hotel and Spa. The forest surrounds this 4* former hunting lodge, which happens to be a favourite haunt for the ponies and donkeys to gather. The hotel’s leisure facilities are superb. There are indoor and outdoor swimming pools, sauna, tennis and squash courts, gym and Saltus Spa (featuring Espa products) offers a comprehensive range of treatments and full day experiences. Evening meals are served in the AA 2 Rosette award-winning Beresford’s Restaurant. Each of the bedrooms are individually designed, most of which have views across the forest and some are designated dog friendly. There’s bike hire onsite and routes from the hotel. Rooms start at £189 dinner, bed and breakfast per night based on two people sharing. See website for special offers www.balmerlawnhotel.co.uk or call 01590 623 116.
The perfect setting for any Disney fairy tale: New Forest is home to flora and fauna which will make you feel far away from the city, or even the UK itself.
“Not only is the New Forest a perfect staycation destination, it’s an amazing location for endorphin busting outdoor activities for the body and mind among the famous 5000 ponies, who freely wander through forest villages and 193,000 acres of woods and ancient heathlands. Think relaxation, a great selection of activities and gorgeous thatched pubs to dine in with awesome beer gardens. The New Forest is also one of the most dog friendly destinations on the UK.”
If you’re not convinced at ‘dog-friendly’, then maybe the outdoor activities will convince you. It goes without saying that the New Forest Park can offer more than just a tranquil countryside walk.
The perfect setting for any Disney fairy tale: New Forest is home to flora and fauna which will make you feel far away from the city, or even the UK itself. Perfect for business team building weekends or a family staycation, you can test your abilities with fun activities, for those with various levels of adventure.
You can even paddle to the pub! Is there a better way to enjoy nature’s finest work? I think not.
First: pick your terrain.
With the Tidal Beaulieu River being the perfect location and setting, water lovers can try out canoeing (the big, sturdy, three seat Canadian type of canoe) or kayaking, and the braver can work their way up to sea kayaking. Paddle sports, whilst it is a workout for your arms, these activities are quite relaxing at heart. Paddle past ducks, go jellyfish spotting and feel truly at one with nature…you can even shake hands with the special moon jellyfish, as their sting does not affect humans! And who knows, you may make new (non-human and/or human) friends, as well as discover a new hobby.
Keeping it closer to home, however, land lovers can still unveil the adventure in them: New Forest Activities also involves archery, high and low ropes courses – perfect for team challenges, as well as Battle field LIVE (a pain free laser tag in the woods) and Archery Tag like paintball but with sponge tipped bows and arrows. Plus cycling and the rather more advanced VR experiences. Whether you are with friends, family or bringing your office away for a meeting and looking to mix in some down time, there really is something adventurous and new for everyone to try.
Need a strong drink after all this? You can even paddle to the pub! Is there a better way to enjoy nature’s finest work? I think not. And with expert instructors and friendly guides, not only are you assured that your kayak won’t sink, you can really soak in what the New Forest has to offer in a truly unique way.
Find out more at: www.newforestactivities.co.uk or call 01590 612377
Since forming, Darren W. Penn’s practice has exploded with a number of record setting case resolutions that will change the lives of his clients for the better. As a life-long Georgian, Darren began practicing law in 1994 as a trial lawyer for State Farm Insurance Companies, the largest auto, property, and casualty insurer in the world. He started out handling cases involving automobile wrecks, premises liability, intentional torts, fire claims, theft claims, homeowners claims, insurance bad faith, and coverage disputes.
This was just the start of his amazing journey into law. We speak with Darren on how he has progressed during his career, and why he ensures his clients are at the center of everything he does.
Your main goal is to make a difference in the lives of your clients; can you share ways in which you achieve this goal?
I have been extremely fortunate in having had the opportunity and privilege to represent incredible people in cases that have had a major impact on not only their lives, but the lives of others. Believe me, as a trial lawyer, actually making a difference in the lives of others is one of the highest honors. In one case, we represented a young lady injured due to a defect involving Ford transmissions. This defect had existed for over 20 years and the company did very little to investigate the problem and did much less to fix it. As a result of the hard work in the case, the NHTSA (National Highway Transportation Safety Administration) ended up opening an investigation into the defect and changes were ultimately made.
I am currently working with the NHTSA, the CPSC (Consumer Product Safety Commission), and the FDA (Food and Drug Administration) on ongoing cases in hopes of, at a minimum, ensuring that information related to the products at issue is available to the public on a wide scale. In a recent case, we represented an individual injured by an industrial machine when a part of the product broke off -- resulting in the loss of both of his eyes. The product was changed and a free trade was offered, but not officially recalled. We hope that the efforts put forth in that case may have contributed to a better understanding of some of the hazards involved with that kind of product and that the manufacturer does a better job of communicating issues with its products to its customers in the future. For our client, the result was such that he will be in a position to cover all of his medical care and living expenses in the future. The security of knowing that those expenses will be taken care of have gone a long way towards enhancing not only his recovery, but the ability to cope with his injuries.
We have also worked extremely hard in areas of serious public concern, such as the world sex slave trade and childhood sexual molestation that is so often covered up and hidden until civil statutes of limitation have expired. A few years ago, I met Emma Hetherington, the Director of the Marlon Wilbanks CEASE Clinic, which is operated through the University of Georgia School of Law. We have dedicated hours and resources towards assisting the clinic and other victims of abuse. We worked very hard on the “Hidden Predator Act” that was originally passed in 2015. And most recently, during the 2018 legislative session, our firm, along with many other incredible people trying to make a difference in the lives of others, worked tirelessly towards amending the Hidden Predator Act to expand its effectiveness in the State of Georgia. While we were unfortunately not able to make the necessary changes to this law, we will continue to pursue those efforts until those changes are made. We are dedicated to pursuing this for as long as it takes.
You are often creative in your approach towards cases; what do you do if you have hit a wall in terms of handling or overcoming the case for your client?
It is kind of funny that you would describe it as “hitting a wall.” In my practice, I really don't see it that way. The way I see it, is that if a wall is put up in front of your client, it is my job to figure out which way to turn to get by that barrier. It's sort of like being inside the maze and when you come to a wall, you have to find the alternative route for achieving success for your client. Sometimes that means literally creating the alternative route. Maybe go over the wall. Maybe you go under the wall. Other times that means simply determining which way is the best turn.
I can think of three examples of this in my practice. The first was a medical malpractice case tried by my former partner that ended up with a hung jury that was split 11-1 against our client. For the second trial, I joined the trial team and the jury returned a verdict in favor of our incredible client. That was one of those highly impactful moments of my career. A day I will never forget.
The second was a case involving the denial of a long-term disability insurance claim we tried and lost before a jury. We disagreed with a number of rulings in the case and were able to get those rulings overturned on appeal and a new trial granted. The granting of the new trial led to a favorable result for our deserving client.
The third case involved a tire service professional that jacked up a motor home without using jack stands and the vehicle fell off the jack onto our client’s husband. The trial court granted summary judgment against us. We appealed, the decision was reversed, and our client had her day in court.
As a trial lawyer, every decision I make is for the benefit of my clients. And my obligation to my clients from the very beginning is to achieve the most successful result for them that I can. This could mean the case ends in settlement or trial; it just depends on how the case develops, the decisions made by our opponents, and the best interests of our clients. At the end of the day, our ultimate goal is to achieve a result that makes a difference in the lives of our clients.
Can you expand more on how you have influenced critical changes in safety regulations and legislation?
I don't know if I can necessarily expand on specifics of critical changes that have been made. However, I know that the longer I practice and the more cases I am involved in, the sort of issues that really draw my interest are those that can have a greater impact not only for our clients, but for the greater good.
For example, we were recently involved in a case involving a defective product made by a Chinese manufacturer. Well, almost any product liability lawyer you will meet would tell you that pursuing a case against a Chinese manufacturer is fraught with all sorts of legal challenges. However, this particular case also involves a mass US internet retailer that is the bridge that brought these Chinese products to consumers here in the United States. One of the reasons we were interested in this case was the potential to shed some light on how blindly allowing a manufacturer to sell their products over the Internet with unfettered access to consumers and no requirements to meet basic consumer protection standards is not a good idea. This is a practice that needs to stop, as it has caused an enormous amount of harm to people all over the world. There is a reason why minimum safety standards exist in the US and foreign manufacturers should not be able to skirt those standards through the internet.
Moreover, is there anything you are currently advocating to change, for the betterment of the legal system and your clients?
Yes, protection of the civil justice system is unending. The reality is that our system, while not always perfect, is by far the best system in the world and has done more good for people than harm. Here at Penn Law, we are always advocating for any change that will enhance the civil justice system and our clients. As I noted, we are involved in the legislative process each and every year. We have dedicated time, effort and resources for all legislators for their benefit in reviewing language of bills to help ensure that what they are intending to do is accomplished in a way that does not harm citizens. And, we never hesitate to assist in passing legislation that we feel will benefit the citizens of Georgia. That is why we have worked so hard on legislation - like the Hidden Predator Act -, over the years. This is the kind of work that simply never ends. If one law is passed for the greater good, there are others that can be worked on as well.
You have tried well over a hundred bench and jury trials as lead counsel; do you remember your first case, and the ways in which it shaped the way you tackled your future cases?
Oh yes, of course I remember my first case as lead counsel! Actually, I remember the very first bench trial I had, as well as my very first jury trial. The bench trial was a magistrate court case in Gwinnett County, Georgia. The court session began at 8 pm. and there were about 25 cases on the calendar. I had one of the simplest cases a lawyer could have because I was defending an individual who had been sued for an auto wreck and the plaintiff was the owner of a company trying to get his company truck repaired. Well, the law in Georgia is that a corporation cannot be represented by an individual. They have to be represented by a lawyer and this plaintiff did not have a lawyer. It was an easy victory for my client: I walked out of the courthouse at 1 am.
My first jury trial was also a defense case where I defended an individual in an automobile wreck. It was a three day trial, and I was a complete nervous wreck. I tried the case against a lawyer with a lot of experience representing plaintiffs who had tried hundreds of cases over the years. Here I was, this super green, yet eager, young lawyer who did not have a clue on how to try a case. At the end of this trial, however, the old adage that “cases are won and lost not by how good lawyers are but how good the clients are” held true. My client won their case because the plaintiff was not so well-liked by the jury. I can assure you it did not have anything to do with my work as a trial lawyer in that case, even though I tried hard!
From IP to medical malpractice, you specialize in a variety of industries; which poses the most challenge for you?
With the kinds of complex cases that we handle, each and every one of them are challenging in their own way. Each case has its own challenges as well as its own positives. In my opinion, the best chance for success for your client is to literally become a "specialist" in the subject matter of whatever the case is about. So, for example, if the case involves product liability, you have to learn everything you can possibly learn about that product, the company, the way the company operates and manufactures its products, how those products have performed in the real world, and then everything you can possibly know about your client’s injuries, from a medical and a real-world perspective.
If the case is a medical malpractice case, the same is true except you are dealing with issues related to medical treatment of a patient, medical conditions, considerations of standard of care for professionals in like or similar circumstances, and what impact those issues had on your client, including all of the harm done. The same is true in each and every other kind of case you could name: trucking, auto, premises liability, business tort, commercial litigation, etc. It is my strong belief that your best chance of success for your client is really diving into each and every detail about the case and knowing those details better than your opponent. If you cannot master the details of every aspect of the case, your client will often be vulnerable. That is not where you want them to be.
On the other hand, which is your favorite area of law and why?
The answer to this is simple: my favorite area of the law is trial. There are few things in life that have as meaningful an impact on the human soul than going through the entire process from the investigation of a legal matter, the filing of a case, discovery, surviving dispositive motions, sometimes dealing with appeals, trial, and verdict and watching the reaction of your client when the jury’s verdict is read. After all that time, effort, blood, sweat and tears getting there, in just an instant, I have seen sheer joy, overwhelming relief, shock, overflowing gratitude, disappointment in tears of both joy and sadness. And, believe it or not, a lot of changes in this world are made in those very moments. Aside from falling in love, your wedding day, the birth of children, death of loved ones, and other world changing events, I am not aware of any more poignant moments in the lives of human beings. I, for one, am simply privileged to be able to be a small part of those moments sometimes.
How would you advise aspiring lawyers to climb to the top?
Of course, “climbing to the top” is certainly relative and it truly depends on one's definition of the top. For me, success as a trial lawyer is the same as success in just about anything we endeavor to do. When I talk to younger lawyers or lawyers possibly seeking to make changes in their careers, my message is basically the same. I truly believe that you must love what you do with all of your heart and soul if you really want to be successful at it. This is especially true as a trial lawyer for there are so many different ways to make a living in this world that are not nearly as stressful and difficult.
But, if you truly love what you do and care about each and every one of your clients, it will show and the results will take care of themselves. I have always found that if you keep your focus on the client, the chances of success are greater. Believe me, I didn't necessarily choose to be a trial lawyer but, rather, I think it sort of chose me. I am one of those fortunate ones who truly loves what I do day in and day out and tries to make a difference, however small, in any way that I can. For that, I am truly blessed.
Darren W. Penn
Attorney
Penn Law LLC
4200 Northside Parkway, NW
Building One, Suite 100
Atlanta GA 30327
(404) 961-7655
"My name is Darren W. Penn. I am the founder and owner of Penn Law LLC. We are a trial firm that handles a wide variety of tort and other complex civil litigation in state and federal courts across the United States. Our practice handles extensive product liability, trucking and auto collisions, wrongful death, medical malpractice, sexual abuse, child molestation, whistleblower, business tort, entertainment and even intellectual property cases. We have worked on mass tort and class action cases, however, I personally prefer representing clients on an individual basis or at least a smaller group basis. We have handled almost every type of legal case.
"I am a past President of the Georgia Trial Lawyers Association, a member of the Board and past Chair of the Georgia State Bar's General Practice and Trial Law Section, the past Chair of the Civil Justice PAC of Georgia where I still serve on the Board. I am currently a member of the Executive Committee of the Georgia Trial Lawyers Association and have been heavily involved in the legislative process over the years in an effort to ensure that Georgia's citizens have equal access to a strong civil justice system pursuant to the Seventh Amendment of our Constitution. I am a member of the “Verdicts Hall of Fame” and have received various awards for service and dedication to the civil justice system.
"Simply put, we are a trial firm, not a specialist firm. We handle so many different types of cases because we are a trial firm that focuses our efforts in making life a little more liveable for clients who have suffered grave and extreme losses. We think of ourselves as a full service trial firm because we are not simply “paper pushing” litigators. We’re equally adept inside the courtroom as outside."
The California Supreme Court limits de minimis off-the-clock work, expanding California employers’ duty to record time worked. Below, Kate Visosky and Christina Nordsten share what this means for employers in the respective state.
In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards.
The de minimis rule has been applied by the federal courts for more than 70 years. The doctrine excuses the payment of wages for small amounts of otherwise compensable time upon a showing that the time is administratively difficult to record. For example, courts have held that time spent by employees booting up their computers and shutting down and clocking out are de minimis and not compensable. See e.g. Chambers v. Sears Roebuck and Co., 428 Fed. Appx. 400 (5th Cir. 2011).
In Troester, the California Supreme Court stepped away from the de minimis approach holding that an “employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.” Troester, (2018) 5 Cal. 5th 829, 847. The plaintiff in Troester “had various duties related to closing the store after he clocked out” and that “on a daily basis, these closing tasks generally took [plaintiff] about 4-10 minutes.” Id. at *21. The Court said this time must be compensated.
Notably, while the Court declined to apply the de minimis standard under the facts of the case, it did not reject the doctrine completely. Indeed, it noted there could be instances involving tasks “so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.” Troester, 5 Cal. 5th at 848. Thus, the key notion to take away from this case is that off-the-clock work considered significant and regular must be compensated, while insignificant and irregular time could still be considered de minimis. As to the application of the rule, Justice Leondra Kruger wrote a separate concurring opinion offering some concrete examples for when the de minimis rule could apply:
Justice Kruger noted that requiring an employer to accurately record this type of time would be impractical and unreasonable.
What does this ruling mean for California employers?
Although the Troester decision limits the de minimis standard in California, it does not fully reject it. Realistically there will be situations where some work will be impossible to record. The Court made note of this. Therefore, while entities doing business in California can be confident that highly unusual and irregular time spent off-the-clock may not be found compensable, the Troester decision may still have an impact on their business. This is especially true for companies in the service industry such as retailers and restaurants who employ a large number of the hourly workers in our state. These companies may want to conduct a review of their policies, practices, and procedures that impact their employees’ timekeeping. Below are a few examples of what employers in California can do in light of Troester.
Although the Troester decision has limited the application of the de minimis doctrine in California, it remains to be seen how it will be applied to other cases moving forward. In the meantime, employers can limit their exposure by proactively reviewing and revising their policies and procedures in light of the decision.
Partner Kate Visosky and Associate Christina Nordsten are with Kelley Drye & Warren and specialize in defending companies in complex labor & employment litigation and class actions, high-stake disputes, discrimination, harassment and retaliation claims and agency charges. Visosky can be reached at kvisosky@kelleydrye.com, or 310-712-6199. Nordsten can be reached at cnordsten@kelleydrye.com or 310-712-6199.
Finding and Using Social Media Content in US Civil Litigation
Litigators have long known that electronic-mail messages are a fertile source of discovery because people often send their unguarded and candid thoughts by email. But social media posts can be a litigator’s nirvana or hell, depending on the circumstances, because many people reveal even more intimate information on this medium, sometimes in much greater volume. Social media posts can make your client’s case, or destroy it, depending on who you represent.
Litigators can seek discovery of social media content in two ways: (1) by “self-help,” or (2) by using formal discovery procedures. Both present potential pitfalls.
Self-help
A lawyer should also be cautious about pressuring a social media “friend” of the opposing party to provide access to the opposing party’s restricted content.
A litigator can look at the publicly-available social media profile of an opposing party or witness on Facebook or other social media sites with no legal complications, even if the party or witness is represented by counsel. Ethical problems can arise, however, when litigators seek to use other methods to obtain information posted on social media sites that is subject to restricted access only by “friends” or others designated by the account holder.
If the opposing party is represented by counsel, a lawyer (or the lawyer’s agent) should not communicate directly with the opposing party to request access to restricted content on a social media site. If that party is not represented by counsel, a May 2017 ethical guidance from the New York State Bar (which surveyed ethics opinions elsewhere) states that the lawyer may request access to the restricted portions but, must (a) use the lawyer’s full name and an accurate profile that does not mask the lawyer’s identity, and (b) respond truthfully if the opposing party makes inquiries about the nature of the lawyer’s interest. (See www.nysba.org/FEDSocialMediaGuidelines). Some states’ bar authorities have issued ethics opinions that require greater disclosures when counsel initially requests access to restricted portions of social media content from an unrepresented person.
If such unauthorized access to a person’s restricted content is obtained, that person could assert a common-law claim for invasion of privacy or misrepresentation.
A lawyer should also be cautious about pressuring a social media “friend” of the opposing party to provide access to the opposing party’s restricted content. One court has ruled that such “coerced” access violates the federal Stored Communications Act.
Lawyers and their staff should also not seek to obtain unauthorized access to a person’s private social media content through other means, especially through any sort of trickery. If such unauthorized access to a person’s restricted content is obtained, that person could assert a common-law claim for invasion of privacy or misrepresentation. Courts have held that a person’s privacy interest is not extinguished because he or she chose to share information with a limited number of persons (such as “friends” on Facebook) in a restricted portion of a social media site. Statutory claims for unauthorized access might also be asserted under the federal Computer Fraud and Abuse Act, the Stored Communications Act or one of many state statues that prohibit the online impersonation of another person to obtain a benefit or defraud. Finally, attorneys should not ask non-lawyer staff to engage in conduct that would ethically be forbidden to the attorney.
Formal Discovery
Many individuals feel that their restricted social media content is entitled to strict privacy, and are surprised to learn that there is no legal “privacy” privilege for such content.
Many courts have ruled that the federal Stored Communications Act bars social media providers (like Facebook) from responding to civil subpoenas for social media content. Those providers will vigorously resist civil subpoenas seeking their participants’ social media content. One workaround that has succeeded in some courts is to seek a court order requiring the opposing party to “consent” to the social media provider’s disclosure of that party’s social media content, followed by a “consensual” request sent to the social media provider. Otherwise, social media content is discoverable in civil litigation only from the persons who posted or received the information (which could include “friends” of the person posting the information).
Many individuals feel that their restricted social media content is entitled to strict privacy, and are surprised to learn that there is no legal “privacy” privilege for such content. There have been cases where individuals delete or modify their social media content to thwart discovery of what they believe is “private,” and have faced sanctions for spoliation of evidence. Attorneys should counsel their clients not to destroy content. In one case, heavy sanctions were leveled where an attorney told a client to “clean up” his Facebook page, and 16 photographs were then deleted.
Courts are particularly cautious about allowing expansive discovery of anything posted on social media that may have affected a party’s emotional state.
While there is no privacy “privilege” for social media content, many courts are reluctant to permit broad “fishing expeditions” through all of a person’s social media content and will grant motions to limit or disallow broad discovery requests. Some courts have gone so far as to require a party seeking to discover social media content to make a threshold showing based on other information that there is social media content that undermines the responding party’s position in the litigation. However, this position was recently rejected by New York State’s highest court (Forman v. Henkin, 30 N.Y.3d 656 (2018)).
Discovery is generally permitted of any social media content that sheds light on events that are material to a lawsuit (with a protective order where appropriate to protect a legitimate privacy interest against public disclosure). For example, if a plaintiff claims that an automobile accident occurred because of the defendant’s negligence, virtually anything that the plaintiff posts on social media about the details of the accident should be discoverable.
Photographs posted on a social media website can provide powerful evidence, since a “picture is worth a thousand words.”
Courts are particularly cautious about allowing expansive discovery of anything posted on social media that may have affected a party’s emotional state. Such discovery can be relevant and permitted where, for example, a plaintiff seeks damages for his or her emotional distress, or where emotional distress is pertinent to liability (as in a hostile work-environment discrimination claim). But even then, some courts will not permit discovery of social media content where the emotional-distress claims involve only “garden-variety” distress – namely where a plaintiff claims only hurt feelings or a sense of humiliation – and not more serious distress, such as Depression or Post-Traumatic Stress Disorder.
Photographs posted on a social media website can provide powerful evidence, since a “picture is worth a thousand words.” Courts have permitted discovery of photographs posted on social media sites where the photographs reflect physical capabilities inconsistent with a plaintiff’s claimed injury, or if they reveal the party’s emotional or mental condition in a case where that is relevant.
Some courts have ordered a party’s attorney to screen the client’s social media content for relevance and privilege, because of concern that the client will withhold content that he or she feels is private and personal. Only in a rare case will a court itself initially conduct an in-camera review of social media content. However, courts may conduct such reviews once a motion to compel production is filed.
New problems and issues will undoubtedly arise as social media sites and usage evolve. Litigators thus must keep abreast of the latest developments and case-law.
Once litigators obtain social media content, they must ensure that it can be authenticated for use at trial or in other proceedings. As explained in a recent state court decision, authentication can be a challenge since social media accounts can be falsified, hacked or created by an imposter. (See Commonwealth v. Vogel, 181 A.3d 1154 (Pa. Super. 2018).) For these reasons, social media content is not self-authenticating, and some other evidence is needed for it to be admissible. However, authenticating evidence can be circumstantial, and courts have ruled that the proponent of the evidence need only submit enough evidence (such as distinctive format or language of the posted content) for a “reasonable jury” to find the content to be authentic. Accordingly, a good litigator will be sure to take necessary discovery to prove the authenticity of any social media content that is obtained by self-help or through discovery, especially for the “bombshell” content that litigators all hope to find.
New problems and issues will undoubtedly arise as social media sites and usage evolve. Litigators thus must keep abreast of the latest developments and case-law.
Daniel I. Prywes
Partner
Morris, Manning & Martin, LLP
Mr. Prywes is a Litigation Partner in the Washington, D.C. office of the law firm of Morris, Manning & Martin, LLP. He frequently writes and lectures on social media issues that arise in litigation. Mr. Prywes routinely litigates disputes in a variety of legal areas, including contract and employment, antitrust, securities, whistleblower defense, intellectual property, non-compete restrictions, partnerships, government contracts, insurance and banking.
Private equity firm BC Partners acquired Nicole Fashion Group SpA – a European bridalwear company – via their subsiadary company Pronovias.
Founded in 1986 as one of the few truly pan-European buy-out investors, BC Partners has grown and evolved into a leader in buy-outs, principally investing in larger businesses in the region and selectively in North America through its established network of offices in London, Hamburg and New York. BC Partners continues to identify attractive investment opportunities by focusing on the best balance of risk and reward for its investors and is currently advising funds totalling over €17 billion.
Since inception, BC Partners has completed 102 acquisitions with a total enterprise value of €127 billion and has delivered superior returns through economic cycles, demonstrating discipline in bull markets and an ability to invest in attractive opportunities amidst turbulence and recession.
Interview with Fabio Marazzi at Marazzi & Associati
Please tell me about your involvement in the deal?
The firm has been acting on behalf of the client since some time and in this specific transaction myself, as Senior Managing Partner, in collaboration with my team: Partner Nicolo’ Ghibellini, IP and Data Privacy Expert; Silvano Mazzantini, Partner and expert in Public Issues, and Senior Associate Margherita Barletta. We all represented the client in each step of the negotiation.
My role, as Senior Managing Partner, was to manage the daily activity of my team, supervise them and attend any meetings with the other party, by always being physically next to my client.
What challenges arose? How did you navigate them?
As usual, when we have to act on a family owned company, the most intriguing issue is the wall preventing the family owned dimension and management progressing to a bigger scenario without any related legal issues.
Additionally, in this specific transaction, where we had to analyse, examine and negotiate more than one shareholders agreement and devise a sophisticated Management Incentive Plan, the Sellers also had to realise each benefit behind the transaction in a short time, as the negotiation itself started mid of May and closed on the last day of June.
London-based food start-up City Pantry announced it has closed a £4million Series A funding round, led by Octopus Investments with participation from existing investors and Newable Private Investing.
The funds will be used to continue the company’s triple-digit growth in London whilst also beginning expansion to new markets, targeting cities across the UK over the next 18 months.
The company, which was founded by Stuart Sunderland in 2013, is transforming the way employees eat by bringing food from exciting local caterers and restaurants direct to offices, covering events, meetings, and team meals.
It already serves over 20,000 meals every week to the employees of more than 500 companies, including Google, Amazon, PayPal, Slack, Spotify and Unilever. Customers use the City Pantry platform to choose from 300 of London’s most popular restaurants and caterers.
CloudOrigin was engaged by Octopus Investments to perform Technology and Operational Due Diligence – essentially looking at the “Who, What and How” of the IT capability at City Pantry - their people, process and technology at the heart of their online platform for B2B food delivery which serves over 20,000 meals a week to the employees of more than 500 companies at the time of review.
Interview with Richard Hall at CloudOrigin
What were some of the key challenges that you were faced with and how did you overcome them?
As ever, our challenge is to rapidly assess the maturity of the organisation, benchmark their progress against other comparable firms – both in B2B e-commerce and the broader technology sector globally – and translate our technical opinion and recommendations into pragmatic language and insights which best fits the investor’s deal process.
These will include both quantitative measures of software productivity and service delivery, and more qualitative comments on team structure and business processes, including key sales and digital marketing strategies.
For any Venture Capital or Private Equity investor, we must also consider not just the current viability of systems and operations, but how these will scale with the Management growth plan. We must then anticipate challenges and options, typically over a three to five-year period of expansion.
Thankfully, our team has many decades of Due Diligence experience and CloudOrigin has worked on hundreds of growth investments (with potential Enterprise Value totalling $20Billion USD) across the TMT sector in Europe, North and South America and Asia Pacific. We have built unique technology classification and benchmarking models to underpin our assessments, and can point to our concrete experience of the growing pains and strategies used by many of the most successful firms – from cutting edge start-ups with pioneering software or hardware technology such as FreeAgent, Senseye or Sky Futures to ‘unicorns’ such as Skyscanner or Ebury.
Moreover, how would you tackle the situation when the team you are working alongside are not as cooperative or well organised?
We find that building rapport with the target firm is normally straightforward, as our team has direct experience of running high growth technology firms and winning VC investment from prior roles. We have walked in their shoes. While we might have different expectations on our arrival, we know that no firm is perfect, and no matter how successful, they all are balancing future expansion, new market directions and current business demands. We also know technology choices evolve rapidly, and complex SaaS or e-commerce systems are far more organic than many people might think – they need constant pruning and attention as they increase in functionality and customers place new demands upon them.
Where a firm is less prepared for due diligence or the founding management team is inherently less experienced, we do not expect reams of documentation in advance and are always happy to whiteboard ideas, discuss growth plans and challenges and compare different perspectives from across the business – say marketing, finance and R&D – to reach a balanced report and actionable recommendations. Having performed hundreds of such assignments we have a very effective process to get to the heart of the matter with the least intrusion to the business.
CHRYSO, a world leader in manufacturing additives for concrete and cement as well as developing added-value and innovative solutions for the building industry (‘the Group’), announced that it has signed an agreement for the acquisition of certain assets of RUREDIL S.p.a., including the operating business divisions: concrete admixtures, cement additives, technical mortars, accessories for precast systems, fibres, products for decorative concrete and restoration, but excluding the Rurmec brand and the structural reinforcement business division. The consideration is not disclosed.
RUREDIL is an Italian company, established in the 1950s. It manufactures chemicals and structural reinforcement systems, and owns well-recognised brands in the construction industry such as Ruredil and Levocell.
The CHRYSO acquisition of RUREDIL’s operating business divisions will enable CHRYSO to further develop its offering of high-technological products for the building industry. It will strengthen its presence in the different market segments, from construction to repair, and widen its range of solutions. This new business will increase the product mix and service offer proposed to customers.
Trade unions are being consulted on the transaction. Its completion, expected over the summer, would be subject to satisfaction or waiver of customary conditions precedent.
Capital Croissance sold its majority stake BioBank to NewAlpha Verto Capital and its team. NewAlpha selects, finances and accompanies innovative entrepreneurial projects, primarily in asset management and other related sectors such as financial technologies or services for investment management firms.
Bionest supported BIOBank and Capital Croissance towards the deal by performing a vendor due diligence of BIOBank. The team was led by Alain Gilbert, co-founder of Bionest Partners, who has already supported numerous Life Sciences companies through similar processes and Maëlle Bruneau, Senior Consultant
