The Commercial Law Connection - NBA-CLS

Message from the Chair

Greetings Fellow NBA-CLS Members: Welcome! I hope everyone is ready for the NBA Commercial Law Sectionʼs 26th Annual Corporate Counsel Conference

at the St. Regis Monarch Beach Resort, Dana Point, California, February 21-23, 2013. For 26 years the Commercial Law Section has taken great pride in hosting the Conference at fabulous resorts and this year is no exception. The St. Regis is a grand resort and has rolled out the red carpet for our attendees. We are humbled and deeply grateful for the support that we have received throughout these 26 years from our sponsors and attendees and we know that this level of success would not be possible without their support and generosity. We Salute You!!!!

It is my distinct pleasure to announce that our prestigious “John Lewis, Jr. Corporation of the Year Award” will be presented to Microsoft. Microsoft has been a long-time supporter of the NBA-CLS and its initiatives and has demonstrated a genuine commitment to diversity, both internally and externally. Congratulations!!!

Dawn R. Tezino, Esq., Chair

C O N N E C T I N G P E O P L E , I D E A S A N D O P P O R T U N I T I E S

The CommercialLaw Connection

The National Bar AssociationCommercial Law Section

VOLUME 10 - ISSUE 1

Winter 2013

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INSIDE THIS ISSUE:

Message from the Chair 1

Facing Forward: The Outlook For Employee Health Care Coverage Under Health Care Reform 1

Food For Thought: Questions To Consider When Trying A Product Liability Case 2

The Commercial Law Section Co-Sponsors “GATEWAY TO SUCCESS: Navigating a Legal or Corporate Career in a Global Economy” 3

NBA-CLS Corporate 2013 Counsel Conference Sponsors 4

Member Spotlights 8

NBA-CLS Names Outstanding In-House and Outside Counsel of the Year 10

National Bar Association Upcoming Events 14

NBA-CLS 2012-2013Executive Committee 15

NBA-CLS Newsletter Editorial Board 16

Facing Forward: The Outlook For Employee Health Care Coverage Under Health Care Reform

By Josephine Nelson Harriott, Esq.*

I. INTRODUCTION

The passage of the Patient Protection and Affordable Care Act (“Affordable Care Act”) on March 23, 2010, marked an historic milestone for the health care payment system in the United States. Health care coverage in America is based on a complex system of public and private plans, including (1) individual health insurance, (2) employer-sponsored coverage for the working-aged and their families, (3) Medicare for the elderly and disabled, and (4) Medicaid for the indigent. The Affordable Care Act was structured to increase coverage in three of these four sectors by reducing barriers to individual insurance coverage, expanding employer-based coverage through various incentives and penalties, and expanding eligibility for Medicaid and other public programs. Given that most working-aged Americans are covered by employer-based health plans,1 employers may wonder how their group health care options are affected by the Supreme Courtʼs recent decision upholding the Affordable Care Act. II. THE STATUS OF HEALTH CARE REFORM

The health reform law made sweeping changes to the health care payment system and promised to dramatically reduce the number of uninsured Americans. The most controversial provision – the requirement that almost all individuals maintain health coverage – was upheld by the Court as a permissible exercise of Congressʼs constitutional power to tax. Under the “individual mandate,”

The National Bar Association Commercial Law Section

The Commercial Law ConnectionPAGE 2

Food For Thought: Questions To Consider When Trying A Product Liability Case

By Adrienne D. Gonzalez, Esq.*

Every trial offers a new lesson whether learned in the thrill of victory or the agony of defeat and, product liability trials are no different. And while certain lessons will directly depend on the facts of the case and the nature of the claims, below are a few important questions defense counsel should generally consider when preparing to try a product liability case.

Do You Have The Best Intelligence Available On Your Judge? The importance of having in-depth quality information on the judge cannot be overstated. Getting a read on the judge from a local lawyer that has appeared in front of them (in civil cases) — or can put you in touch with someone who has — is critical to preparing your presentation. It will impact everything from how you frame the issues to determining which personality types will likely mesh with — or more importantly irritate — your judge. One well known trial attorney I know makes it a point to go observe any judge in front of whom she will have to appear just so she can see for herself how the court handles issues, how they run their courtroom and interact with their clerks and the attorneys well before her first court appearance. While the jury will be the ultimate trier of fact, the judge will control the evidence and the jury will take their cues from the court. Therefore, your intel on the judge is as important to preparing your trial strategy as knowing the law and the facts of the case.

Should You Propose A Juror Questionnaire? There are few places where the phrase, “know your audience” has as much import as in jury trials. In addition to knowing your judge, itʼs crucial to have a good understanding of what your jury pool will look like so you can prepare accordingly. Depending on the jurisdiction and the facts of the particular case, the court may or may not allow the parties to use a juror questionnaire. Product defendants, be they large or small companies, remain rightly concerned that the emotional tug of the David v. Goliath scenario will hamper their ability to present a successful defense, particularly when the plaintiff has suffered

a catastrophic injury. And there are certainly those jurisdictions that are notoriously plaintiff friendly, e.g. the Philadelphia Court of Common Pleas. So depending on how the court conducts voir dire this may be the only chance defense counsel has to explore certain attitudes and beliefs of prospective jurors. Worst case scenario, the court rejects the request and your intelligence

will be limited to whatever information you are able to locate on the internet or during voir dire. Best case scenario, you are able to identify those jurors that may be willing to give your client a fair shake, or more importantly, those who might see the trial as their opportunity to “stick it to the man.”

Do You Need A Corporate Representative At Trial? Who Should It Be? Corporate defendants typically have to be concerned with whether or not plaintiffʼs counsel will be permitted to comment on the absence of a corporate representative. To preempt this, defendants will often file a motion in limine asking the court to prohibit such commentary. But there will still need to be a discussion with the client as to who would be the best person to be the “face” of the company in front of the jury. This decision will be impacted by many considerations: if it is a pharmaceutical drug case – you might want a scientist or a doctor engaged in research and development; if it involves machinery or automotives, you might want to have an engineer or another employee involved in the design of the companyʼs products. Another important consideration is whether the judge will allow plaintiffʼs counsel to call that corporate representative to the stand. After all, itʼs one thing to have someone who by virtue of their title and attendance will present a good face of the company. But whether that individual would present as a good witness for the company if compelled to testify is a different story entirely.

Do You Have A Good Handle On The Law? Trial is very much like sports, in that, “if you want to play the game, you



The Commercial Law Connection PAGE 3

The Commercial Law Section Co-Sponsors “GATEWAY TO SUCCESS:Navigating a Legal or Corporate Career in a Global Economy”

By Kenneth M. Battle, Esq.*

An Opportunity to Learn from Experts, Elders and Peers Alike

In October 2012, I had the distinct pleasure of traveling to Jackson, Mississippi to attend the The National Bar Associationʼs (NBA) Gateway to Success conference. This conference was rather unique, in that it was sponsored by the Commercial Law Section, Corporate Law Section, Small Business Law Section and Minority Partners in Majority Firms Division. The conference was held at Jackson State University, many of whose alumni are prominent members of the NBA. The university was a gracious and welcoming host, and the facilities were wonderful. During the conference I was introduced to the Magnolia Bar Association, an NBA Affiliate Chapter. I learned from my colleague and friend, Catherine Costict, NBA Deputy General Counsel, that her grandfather Carsie Hall was actually one of the founding members of the Magnolia Bar Association. It was indeed a pleasure to be exposed to such rich and interesting information.

During the course of the conference, I personally met General Counsel and Senior Counsel from various major corporations that traveled to Jackson to discuss career and business development opportunities. There were several opportunities to network and get further acquainted with these men and women. Needless to say, I attempted to take full advantage of those opportunities. I submit that the length of the conference and number of attendees made it extremely easy to attend, learn, and explore the possibility of working together in the future. It was a unique change to learn from experts, more experienced attorneys, and similarly situated peers. Much of the emphasis during the conference was on the development of new business for outside counsel, as well as broadening the career paths for in-house counsel. There was ample programming for both perspectives; however, given my private

practice and personal interests, I focused more on business development seminars.

One such seminar discussed Teaming Agreements between minority-owned and majority-owned law firms. The panelists provided a wealth of information and anecdotes based on their various experiences utilizing these arrangements. We

focused on implementation of the most successful methods for teaming agreements that would provide for a mutually beneficial outcome. Any attorney that has considered this approach, whether in a minority or majority-owned firm, would do well to contact the panelist for further discussion. We literally ran out of time, as we continued to discuss documentation that accompanies the agreements, the inner workings of the procedure for handling the agreements, as well as methods for keeping a relationship with the client during the course of the agreement. In short, the panelists shared their knowledge on choosing a firm to team up with, marketing strategies for securing the business, cases and matters best suited for this type of arrangement, and many of their own personal successes and failures. I literally learned many of the dos and donʼts from a candid and insightful panel.

Another seminar I attended involved strategies for increasing your book of business in a changing legal environment. This panel was broken down into two parts, with a combined group of two moderators and seven panelists from various major corporations. Universally, the panelists were straightforward and open about how to meet their legal needs, obtain their business, formulate a successful relationship with them after getting their business, and the steps necessary to keep their business. Ultimately, I learned several tips about methods for contacting them and staying on their proverbial radar. Notably,


Catherine Costict with a photo of the founders of the Magnolia Bar Association



National Bar Association Commercial Law Section2013 Corporate Counsel Conference Sponsors

PLATINUMBaker & McKenzie

Barnes & Thornburg LLPDeloitte Financial Advisory Services LLP

Gonzalez, Saggio & Harlan LLPHolland & Knight LLP

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.Wal-Mart Stores, Inc.

Weil, Gotshal & Manges LLP

GOLDAltria

Bowman and Brooke LLPEdwards Wildman Palmer LLP

Nixon Peabody LLP

SILVERAlston & Bird LLPBank of America

Fish & Richardson P.C.Foley & Lardner LLPJenner & Block LLP

BRONZEBeveridge & Diamond, P.C.ExxonMobil CorporationMercedes-Benz USA, LLC

Microsoft CorporationStarbucks Coffee Company

Kelley Drye & Warren LLPLeClairRyan

McGuire WoodsShipman & Goodwin LLPThe Coca-Cola Company

PARTNERAetna Inc.

Lackey Hershman, LLPMcDonald’s Corporation

BENEFACTORDarden

Taylor, Sylla & Agin, LLP



individuals who do not maintain the required amount of health coverage will be subject to a federal tax penalty.2 On another provision of the law that received less attention, the Supreme Court limited the impact of the Medicaid expansion by giving states the right to continue using current Medicaid eligibility standards without putting at risk their existing federal Medicaid funding. Neither the individual mandate nor the Medicaid expansion will take effect until 2014, and neither provision directly affects employer-sponsored group health plans. However, as central features in providing affordable coverage to all Americans, both may have a substantial influence on how businesses provide coverage to their employees.

The Affordable Care Actʼs reforms were designed to improve access to health coverage and protect consumers from practices that led to gaps in coverage or high out-of-pocket costs. Provisions to increase access to health care coverage -- such as guaranteed access to health coverage from private insurers, the elimination of medical underwriting, and elimination of coverage exclusions for pre-existing conditions3 -- will make comprehensive health care available to more Americans. By encouraging young, healthy adults to maintain health coverage through the individual mandate, policymakers sought to offset the higher health costs that are associated with covering sicker people. Without adding healthier adults to the insurance market, expanded coverage would lead to increased health care costs and ultimately to higher premiums. Since the Supreme Court has determined that the individual mandate is an acceptable tax on individuals who do not maintain minimum acceptable coverage, employers can expect less cost pressure resulting from increased access.

The Medicaid expansion provides access to the working poor by making coverage available to childless adults who are ineligible under current federal Medicaid program, while increasing minimum income eligibility from 100% to 133% of the federal poverty limit (“FPL”).4 The new rules will further expand coverage by measuring eligibility using modified adjusted gross income rather than gross income5 and allows states to use Medicaid dollars to pay for premiums, deductibles, and co-payments for individuals who are eligible for both Medicaid and an employerʼs health care plan.6 The federal medical assistance payment will fund 100% of the costs of expanded coverage from 2014 through 2016, and will phase down first to 95% in 2017 and then to 90% in 2020 and beyond.7 Also in 2014, the federal government will begin to decrease Medicaid payments to hospitals that provide a disproportionate share of uncompensated care (“disproportionate share hospital” or DSH” payments) by an aggregate of $500 million in 2014 to $4 billion in 2020.8

Prior to the Supreme Court decision, states that did not expand Medicaid coverage were potentially subject to the loss of all

their Medicaid funding – currently about 57% of Medicaid expenditures. But the Supreme Court declared unconstitutional the provision that imposed that threat of losing existing federal Medicaid funds. As a result, some governors have already indicated that their states will choose not to expand eligibility and others may follow – leaving many of the working poor without access to affordable coverage. In these states, the cost associated with uncompensated care will continue to be passed on to the other payers, including employer-sponsored group health care plans. This cost shifting may actually increase if the decision to opt out of Medicaid expansion results in high levels of uncompensated care while DSH payments for uncompensated care decrease.

III. EMPLOYER-PROVIDED HEALTH CARE COVERAGE

Choices available for providing health coverage to employees will become more complex as health care reform unfolds over

Facing Forward: Health Care Reform… continued from page 1

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the next few years. Group health coverage offers employees a number of advantages that are not available with individual health insurance policies, including employer-subsidized health care premiums, shared risk based on the health of the entire group or – for insurance in the small group market – the entire community, and relief from waiting periods and pre-existing condition exclusions. Employer contributions to the cost of health coverage are not included in an employeeʼs taxable salary, and most employees can make tax-free contributions toward their share of health premiums. Contributions to employee health care costs are tax-deductible to employers.

The landscape for group health coverage varies significantly between small business and large business, although there is no single federal definition of a small business. Independent businesses with less than 500 employees make up more than 99% of all employer firms, employ half of all private sector employees, and pay 44% of the private sector payroll.9 When it comes to health insurance in the small group market, the definition of “small” is significantly narrower. Currently, each state limits participation in the highly regulated small group market to businesses with 50 employees or less.10 Under the Affordable Care Act, small employer means an employer with 100 employees or less.11

The health reform law was front-loaded to provide immediate benefits to individuals that already have health insurance. These near-term reforms – including popular measures providing dependent coverage for adult children up to age 26, eliminating pre-existing condition exclusions for children, and limiting restrictions on annual dollar limits for benefits – began taking effect within months of the billʼs passage in March 2010. The more far-reaching changes – such as access-related reforms, the individual mandate, and Medicaid expansion discussed above – are not effective until January 2014, along with health insurance exchanges, employer coverage penalties, and other key market reforms. (Several near-term reforms do not apply to plans that have maintained coverage at the same levels that were in place when the Affordable Care Act passed, and will not apply until the terms of the plan are changed.12)

Though the individual mandate captured the attention of the public and the politicians, the Affordable Care Actʼs market reforms will more fundamentally change the way Americans receive health care coverage, including group health coverage. For small employers, in particular, the 2014 reforms will transform health care choices. The statute creates state-based health care exchanges for small businesses (SHOP exchanges) where insurers will compete for business, giving small employers the same buying power that large businesses enjoy. Qualified employees will enroll in coverage that offers the essential health benefits package13, while qualified employers

receive a single bill that aggregates premiums from the all of the plans in which their employees participate. Also in 2014, the tax credit for small employers who offer health coverage will be available only to those employers who offer coverage through an exchange.14

Many observers are concerned about the slow pace of the health care exchange development. Fewer than one out of three states has actually established an exchange or commenced a plan to operate an exchange in partnership with the federal government while about the same number have decided not to create an exchange or have taken no action at all.15 The Department of Health and Human Services (“HHS”) will implement and operate an exchange in each state that does not have an approved exchange plan in place by January 1, 2013.16

The 2014 market reforms will also affect group insurance policies purchased outside of an exchange in the small group market. These policies must meet the same requirements – for essential health benefits, the value of coverage, and limited cost sharing – that apply to coverage offered by qualified health plans through an exchange.17 These provisions, in addition to guaranteed issue and renewal and community rating, will have significant impact on the premium rates that small employers would otherwise pay for coverage.

For larger employers, the 2014 reforms offer different opportunities and challenges. Any business with more than 200 employees must automatically enroll all new employees in one of its group health plans and automatically continue coverage for current employees.18 Large employer group health plans are subject to the same cost-sharing limits that apply to small groups,19 but insurance plans in the large group market – and self-funded plans for all employers – are not required to offer essential benefits or meet actuarial value standards associated with the essential health benefits package. Large employers who do not offer coverage that meets minimum value standards are subject to shared responsibility penalties if employees receive advance tax credits or cost-sharing subsidies for coverage on an individual exchange.20 Small employers are not subject to the shared responsibility penalties. Coverage through an exchange will not be available to large employers until after 2017.

IV. UNCERTAINTIES LIE AHEAD

Though the Supreme Court answered the most fundamental questions about the constitutionality of the Affordable Care Act, the road to full implementation will not be smooth. HHS, the Internal Revenue Service and the Department of Labor face the formidable task of completing the rulemaking required to




create the regulatory structure for the reforms by 2014. And although the statute relies on states to continue their role as primary enforcers of federal regulation of the private health insurance market,21 it is unclear whether states that opt out of the Medicaid expansion and health insurance exchanges will be interested in monitoring compliance with the extensive market reforms. Meanwhile, health reform opponents in the United States House of Representatives have held at least 30 votes attempting to repeal or defund the statute.22 Each of these measures has died in the Senate – and in any event would have faced a veto by the President. Ultimately, the future of health care reform will largely depend upon the results of the

2012 election. ∗ Josephine Harriott is a Senior Associate in the Washington, DC office of Miller & Chevalier, Chartered. Ms Harriott s̓ practice focuses on health care reform implementation, employee benefits, litigation and internal investigations.1 Kaiser Family Foundation, The

Uninsured: A Primer (Oct. 2011) at http://www.kff.org/uninsured/upload/7451-07.pdf2 Affordable Care Act § 1501; Internal Revenue Code § 5000A.3 Provisions related to medical underwriting, community rating, guaranteed availability, coverage rescissions and renewability of coverage apply to insured coverage in the individual and small group markets, and not to self-funded plans. Public Health Service Act §§ 2701 – 2705, and 2712. Other access provisions apply to all group health plans and insurance coverage for individuals. Public Health Services Act §§ 2704, 2711, and 2714. 4 Affordable Care Act § 2001.5 Id. § 2002.6 Id. § 2003.7 Id. § 2001.8 Id. § 2551.9 Small Business Administration Frequently Asked Questions at http://web.sba.gov/faqs/faqIndexAll.cfm?areaid=2410 Kaiser Family Foundation, Small Group Health Insurance Market Guaranteed Issue, 2012, at http://www.statehealthfacts.org/comparetable.jsp?ind=350&cat=7. Some states include groups of one within the small group market definition.11 Affordable Care Act § 1304(b)(2). Until 2016, states have

the option of defining small employer as having between 1 and 50 employees.12 Id. § 1251. Under the Interim Final Regulations implementing this provision, these “grandfathered” plans will find it increasingly difficult to maintain benefits at the pre-2010 levels. See 45 C.F.R. § 147.140 et. seq.13 Affordable Care Act §§ 1301(a), 1302(a). The essential health benefits package that covers eleven general categories of health services that is equal to the typical employer-based plan. Cost sharing for 2014 is limited to the cost sharing for high deductible health plans (and is subsequently indexed to the rate or premium growth), and deductibles are limited to $2,000 for individual and $4,000 for family, also indexed. The specific benefits in the essential health benefits package will be determined by each state under guidelines established by HHS. Essential Health Benefits Bulletin (Dec. 16, 2011) at http://cciio.cms.gov/resources/files/Files2/12162011/essential_health_benefits_bulletin.pdf.14 Affordable Care Act § 1421; I.R.C. § 45R. Businesses with up to 25 employees and average annual wages below $50,000 that provide health insurance coverage, may qualify for a small business tax credit of up to 35% (up to 25% for non-profits) to offset the cost of employee insurance. 15 Kaiser, State Action Toward Creating Health Insurance Exchanges as of July 2, 2012 at http://statehealthfacts.kff.org/comparemaptable.jsp?ind=962&cat=17&sub=205&yr=1&typ=5. 16 Affordable Care Act § 1321(c).17 Affordable Care Act § 1201; Public Health Service Act § 2707.18 Affordable Care Act § 1511; Fair Labor Standards Act § 18A. HHS has delegated rulemaking for this provision to the Employee Benefits Security Administration within the Department of Labor. Compliance is not required until regulations are issued, which is expected to occur by 2014. FAQs About Affordable Care Act Implementation Part V and Mental Health Parity Implementation, Q3 at http://www.dol.gov/ebsa/faqs/faq-aca5.html.19 Affordable Care Act § 1201; Public Health Service Act § 2707. 20 Affordable Care Act § 1513; I.R.C. § 4980H.21 Public Health Service Act § 2723.22 National Public Radio, GOP To Make 31st Attempt To Repeal Obamacare Act (July 9, 2012) at http://www.npr.org/2012/07/09/156474493/gop-to-make-31st-attempt-to-

YOUR VOICEIf you have comments concerning the NBA-CLS newsletter, or if you are an NBA-CLS member who wants to submit an article for publication consideration, please contact Jean-Marie Sylla, Jr., Esq. at [email protected].



Josephine Nelson Harriott - Joining the Office of General Counsel at Howard University

In late February, Josephine Harriott will be joining the Office of General Counsel at Howard University. At Howard, she will be working on issues related to the Universityʼs health sciences programs. Currently as a Senior Associate at Miller & Chevalier Chartered, her practice focuses on health care reform implementation, employee benefits, litigation and internal

investigations. Prior to entering law school, Ms. Harriott was Vice President of Corporate Compliance and Privacy Officer for a national managed behavioral health care company, where she led implementation and monitoring of legal and regulatory mandates, including the HIPAA rules for privacy, electronic transaction rules, and the ERISA claims rules. She has managed client relations and operations for TRICARE, Medicaid, self-funded, and fully-insured health plans.

Ms. Harriott has extensive government contracting experience in the health care and manufacturing arenas, including managing the preparation of cost and technical proposals for government solicitations; negotiating and administering federal, commercial, and foreign government contracts; and pursuit and defense of bid protests.

Ms. Harriott received her J.D. at Howard University School of Law a B.S. from George Mason University. At Howard University School of Law, she was a captain of the Charles Hamilton Houston Moot Court Team and a student member of the Edward Coke Appellate Inn of Court. She was named Best Oralist at the 2006 George Washington University National Security Moot Court Competition.

Kamla Alexander - Joins NBA-CLS Executive Committee

The NBA-CLS Executive Committee welcomes Kamla Alexander, Senior Counsel, with The Coca-Cola Company in Atlanta, Georgia. In her role as Senior Counsel, Kamla manages and directs commercial legal matters for the Companyʼs bottling operations SE sales region, the Drug and Value customers under the National Retail Sales group, the

Commercial Leadership beverage category teams, and Planning and Revenue Growth Management. Kamla also manages legal

matters arising under the Companyʼs various beverage license agreements with cross-franchise brand owners (e.g., Dr Pepper, Monster, and Evian). Kamla is also member of the Companyʼs Legal Division Diversity Committee. Prior to joining the Company in May of 2006, Kamla was an associate with Troutman Sanders, LLP. Kamla received her Bachelor of Arts in English from Emory University and her J.D. from Duke University School of Law. Kamla is married to her law school sweetheart and they have one daughter, Marley.

Donise E. Brown - Joins NBA-CLS Executive Committee

Donise E. Brown is a Director-Corporate Counsel for Starbucks Coffee Company. As Director Corporate Counsel for the Companyʼs Legal & Corporate Affairs Department (L&CA), Donise is responsible for providing legal support for all of Starbucks real estate matters in the Mid-Atlantic, Florida, and Southeast Regions. In addition to providing legal

services for Starbucks, she serves on and is a past Co-Chair of the L&CA Diversity Committee which is responsible for, among other things, overseeing the surveying and review of its outside counsel annually to ensure that the firms retained by Starbucks reflect a commitment to diversity.

Prior to joining Starbucks Coffee Company, Donise served as Chief Counsel for Cell Siting and Land Use and Assistant Secretary for AT&T Wireless. In her role as Chief Counsel, she managed a national legal team that was responsible for supporting all of the leasing, land use and zoning of real property for the build out of the Companyʼs wireless network throughout the United States.

Donise has also worked as a Principal Attorney for Florida Power & Light Company; Corporate Counsel for The Greyhound Corporation; and as an associate for Winston & Strawn, LLP.

Donise frequently participates as a speaker and panelist on topics related to her practice area and on the subject of diversity. Some of her professional and community affiliations include the American Bar Association, National Bar Association-Commercial Law Section Executive Committee, Arizona Bar Association, Florida Bar Association, Corporate Counsel Women of Color, Minority Corporate Counsel Association, Association of Corporate Counsel- Florida Chapter, Delta Sigma Theta Sorority, Inc. and serving as the current President of the Ft. Lauderdale Chapter of Jack and Jill of America, Inc.

Donise is a graduate of Howard University School of Law. She received her Bachelor of Science and Bachelor of Arts degrees, cum laude, from Tuskegee University. She and her husband, Richard, have two children, Matthew and Hannah.



Chad Walker - Joins NBA-CLS Executive Committee

Chad Walker joins NBA-CLS Executive Committee. Mr. Walker is Senior Counsel in the Legal Department at McDonaldʼs Corporation, the worldʼs leading global foodservice retailer with more than 33,000 restaurants in 119 countries. Mr. Walker currently serves as Division Counsel for the West Division and is responsible for counseling divisional

and regional leadership on franchising, operations, strategic and overall system issues that impact McDonaldʼs restaurants located in the western states, including Hawaii. Prior to joining McDonaldʼs, Mr. Walker served as Deputy General Counsel for the State of Illinois Department of Central Management Services. Prior to his position in state government, Mr. Walker was a corporate/real estate attorney at the law firms of Arnstein & Lehr and, subsequently, Michael Best & Friedrich. He is a graduate of the University of Wisconsin-Madison Law School in Madison, Wisconsin.

Mr. Walker chairs the McDonaldʼs Legal Department Diversity Committee and works tirelessly on initiatives aimed at advancing diversity in the legal profession. He was a 2008 Leadership Greater Chicago Fellow and was chosen to represent McDonaldʼs as a 2012 Leadership Council on Legal Diversity Fellow.

Brian K. Telfair - Appointed City Attorney Recently, the City Council for Petersburg, Virginia appointed Executive Committee Member, Brian K. Telfair, City Attorney. In this position, Telfair serves as the Chief Legal Officer for the City advising its Council and supervising all legal matters regarding the City. The Cityʼs current budget exceeds $100M. For the previous four years, the City has used outside

counsel for the delivery of all of its legal services. As such, Telfair has been tasked with building a legal department from the ground up. His vision is to create a department that delivers exemplary legal services to the citizens of Petersburg.

A veteran of over 60 cases taken to verdict, Telfair previously served as Deputy City Attorney for Litigation and Public Safety for the City of Richmond, Virginia. He obtained his B.S. in Chemistry from Virginia State University, his M.Ed. from the University of Massachusetts - Amherst and J.D. from William & Mary.

LaTanya Langley - Moves to Guinness Ghana Breweries

Current NBA Commercial Law Section Executive Board Member, LaTanya Langley, Director and Senior Counsel at Diageo North America, has been appointed Acting General Counsel and Company Secretary for Guinness Ghana Breweries Limited located in Accra, Ghana. LaTanya has been with Diageo since June 2008 and is currently leading all legal aspects of commercial

strategy, route to market and catalyst brands at Diageo North America. LaTanya will join the GGBL Exec team with a wealth of experience in respect of providing corporate and commercial legal advice, drafting various types of supply, procurement and distributor contracts and ensuring adherence to Diageoʼs compliance agenda. Join us in wishing LaTanya success in her new appointment.

Sundria Ridgley - Promoted to Deputy General Counsel at Radio One

Sundria Ridgley, past Commercial Law Section Executive Board member, was recently promoted to Deputy General Counsel at Radio One. Sundria joined Radio One in January 2006 as Associate General Counsel, and during the last 7 years she has served as a tireless and effective advocate for the company. In addition to taking on additional duties as

a result of her new position, Sundriaʼs primary responsibilities within the legal department will continue to include oversight of litigation, employment, and intellectual property matters for the company. Sundria has more than 20 years experience as a practicing lawyer, having worked for several national law firms and major companies prior to joining Radio One. She is a Deanʼs List graduate of Georgetown University and Georgetown University Law Center. The Commercial Law Section congratulated Sundria on this well-deserved recognition and wishes her continued success.

Ted Woods - Moves to Parks IP Law, LLCFormer NBA Commercial Law Section Executive Board Member, Ted Wood has joined the newly-created DC office of Parks IP Law, LLC. Parks IP Law was founded in 2004 and upon inception, was immediately retained by its first multi-national corporate client. The firmʼs

current client base consists almost exclusively of Fortune and Global 500, pace-setting organizations. At Parks, Ted will continue



The Commercial Law Connection

NBA-CLS Names Outstanding In-House Counsel and Outside Counsel of the Year Awards

PAGE 10

Gateway to Success… continued from page 3

the panel reinforced the notion that attorneys need to know more about a potential client and their business BEFORE approaching them to ask for work. Additionally, while numerous corporations seek diversity in the provision of legal services, the bottom line is that you must be able to do the work and do it well. Your goal is to essentially make the corporate counsel that hired you look good to their internal supervisors. Lastly, we asked frank and personal questions of the panel, only to receive honest and direct responses. Ultimately, one thing I took away from this seminar is that many attorneys simply fail to follow up with corporate counsel after meeting and perhaps exchanging cards. The attorneys that follow up, stay in contact, and learn the business of a potential client are more likely to turn that potential into an actual client, and create a longstanding and prosperous relationship.

I would like to personally thank the conference committee for organizing such an important and necessary event. Many times the organizers do not get the credit they deserve, but thank you to Commerical Law Section Members Dawn Tezino, Sharon Bridges, Catherine Costict, Jean-Marie Sylla, Jr., Clarence Davis and Twanda Turner-Hawkins.

* Kenneth M. Battle is the Managing Partner of Battle Law Office, P.C., in Chicago, Illinois, specializing in civil litigation. He can be reached by telephone at (312) 288-8599 email at [email protected]

Johnine P. Barnes, Shareholder with Greenberg Traurig, receiving Outstanding Outside of the Year award.

Vanita Banks, Counsel with Allstate, receiving Outstanding In-House Counsel of the Year award.



A tip of the cap to you,Alston & Bird and Sutherland The Coca-Cola Company Legal Function is proud to announce that Alston & Bird LLP is the recipient of the 2012 Living the Values Award for its commitment to diversity.

We also salute Sutherland with a Programming Excellence Award for its innovative diversity programs.

Cheers!



all aspects of his current IP practice, including commercializing and monetizing IP, particularly in areas related to security and resiliency of the electric grid.

Monty Cooper - Appointed Chairman of Redevelopment Authority for Prince

George’s County, Maryland Prince Georgeʼs County (MD) County Executive Rushern Baker recently appointed Monty Cooper to serve as Chairman of the Redevelopment Authority (RA) for Prince Georgeʼs County. The RA is the countyʼs principal development and redevelopment

entity, and its focus is to develop mixed-income/mixed-use infrastructure in targeted communities and to develop affordable housing near the countyʼs transit centers. Since his time as chair, the RA has been active, including making available $250,000 in capital grants to community-based organizations implementing innovative projects to improve the infrastructure in targeted communities. The RA has also continued to refurbish and sell homes to qualified homebuyers in many of these areas.

Monty is also an attorney with Sedgwick LLP in its Washington, D.C. office. He practices in the areas of complex civil litigation, environmental litigation, and products liability defense. He serves as a member of a national coordinating defense counsel team for major clients in the oil and gas industry in multi-district litigation involving environmental and products liability claims. His civil litigation practice has included such diverse matters as a London-based arbitration of a contract dispute between international brokerage firms to the pro bono representation of children as a guardian ad litem in D.C. Superior Court. He has significant experience in all phases of litigation, including work with engineers and hydrogeologists in expert-witness preparation, and pre-trial preparation. He has also been active in the DC Bar, in particular its Energy, Environment, and Natural Resources Section.

Monty received his B.A. from Georgetown University and an M.P.P. and J.D. from the College of William and Mary. While in law school, he was an editor on the William and Mary Law Review and a Benjamin Rush Scholar. After law school, he served as a judicial clerk to the Hon. Patrick Michael Duffy of the U.S. District Court for the District of South Carolina.

Andrew S. Nunes - Joins NBA-CLS Executive Committee

Andrew S. Nunes was recently elected to the NBA Commercial Law Sectionʼs Executive Committee. Andrew is a partner in the Business Law Department of the Toronto office of Fasken Martineau DuMoulin LLP, a full service Canadian-based international law firm. His practice encompasses numerous aspects of corporate/commercial law, including mergers & acquisitions, reorganizations,

joint ventures, strategic alliances, financings, outsourcings and customer/supplier arrangements in a broad range of industries. Mr. Nunes acts for a wide range of clients from blue-chip corporations to leading-edge technology companies, including a number of U.S.-based organizations carrying on business in Canada and/or engaged in cross-border transactions.

Mr. Nunes focuses a part of his practice on information technology matters. In addition to buying and selling technology businesses and technology outsourcing, he regularly advises clients on a wide range of issues and agreements relating to the development, protection and exploitation of technology products and services and compliance with technology laws. Mr. Nunes is ranked among a select group of senior attorneys in the PLC Which Lawyer? International Rankings in the category of Technology Law for Canada.

Mr. Nunes is a frequent author and speaker on technology and commercial law topics, including contributions to a leading Canadian text on outsourcing. He is a prior member of the Ontario Bar Association (OBA) Council and past Chair of the OBA IT and E-Commerce Section. Mr. Nunes currently sits as a Director of the York Technology Alliance and pro-bono advisor to a number of faith-based not-for-profit organizations. He is also a long-standing member of the Canadian Association of Black Lawyers (CABL). In addition to being a CABL seminar speaker, Mr. Nunes is currently a member of the CABL Special Committee on Articling which authored submissions to the Law Society of Upper Canada in response to the OBA Articling Task Force Consultation Report. Mr. Nunes received his law degree from Osgoode Hall Law School and his Bachelor of Science Degree in Computer Science and Physics from York University in Toronto.

PAGE 12



Chair’s Message… continued from page 1Additionally, please join me in congratulating this yearʼs Cora T. Walker Award recipient, Paulette Brown, Edwards Wildman Palmer, LLP, Past President of the NBA and Past Conference Chair of the Commercial Law Section. Paulette is an accomplished lawyer who has demonstrated an unwavering commitment to diversity, this Section and to the NBA.

Finally, for the second year we will award the “Diversity Empowerment Scholarship Award” to deserving minority law students. This scholarship is significant to me and the NBA-CLS Executive Board because it is part of our mission as minority lawyers -- to make an investment in the future of our youth and empower minority law students to achieve their goals.

I would like to send a special thank you to all of the members of the NBA-CLS Executive Committee, our Conference Consultant, Patrice Wright-Lewis, the National Bar Association President, John Page, NBA President-Elect Patricia Rosier, my fellow members of the NBA Board of Governors and all of the NBA staff and volunteers who work tirelessly to make this Conference a success year after year.

I wish you all safe travels and I look forward to seeing you in sunny California!!!!

Food For Thought… continued from page 2

have to know the rules.” Each area of products liability has its own key legal issues on which defense counsel needs to have a firm handle. For example, every lawyer who handles pharmaceutical drug cases will tell you that we want to know the causation standard and whether the jurisdiction is one like New Jersey where FDA approval creates a presumption that the labeling is adequate as a matter of law. Regardless of the industry, every corporate defendant will also want to know whether punitive damages are in play and if so, plaintiffʼs burden of proof to recover them. Depending on the case, there will also be various legal issues that crop up during trial and here, once again, is where good local counsel can be worth their weight in gold.

Do You Know What Story You Are Going To Tell? : A jury has been selected and they have committed to rendering a verdict based on the evidence rather than sympathy. One of the crucial questions defense counsel must now ask themselves is what are three or four things they want the jury talking about while they are in deliberations? For plaintiffs, thatʼs usually an easier question to answer: 1) Plaintiff used defendantʼs product (the way normal people would use it); 2) Defendant failed to exercise reasonable care in the manufacture/design and/or labeling/instructions of the product; and 3) As a result of Defendantʼs failure either to make a safe product and/or provide adequate instructions or warnings, Plaintiff suffered a terrible injury (and needs to be compensated).

Defendants often have a more difficult task of articulating their three or four key points that are both easy for jurors to understand and repeat during deliberations. Depending

on the product and allegations, counsel may (or may not) have to explain its value and utility, walk through any safety testing and/or the precautions undertaken to protect against injury. Defendants will also have to persuade the jury that the instructions or warnings provided were adequate at the time of plaintiffʼs injury (because itʼs always easy to engage in Monday morning quarterbacking). Defense counsel may also have the difficult task of pointing the finger of responsibility at another cause (which can sometimes include the plaintiff themselves). Bottom line, is that a defendantʼs story will usually require a lot more thought, care and strategizing because it has to be more compelling than simply: “Plaintiffʼs injury is not our fault, therefore you shouldnʼt give them any money.”

Suffice it to say, there are entire CLE courses — taught by greater minds than mine — offering exhaustive lists of strategic considerations to be weighed when trying a products case. But I feel confident in suggesting that the above questions are worth considering — even if they are ultimately dismissed as not applicable to your particular situation — when you are getting ready for a product liability trial.

* Adrienne D. Gonzalez is an attorney in Kaye Scholer LLP s̓ Life Sciences Group in New York and is currently doing a one-year secondment at Pfizer, Inc.



UPCOMING EVENTS26th Annual NBA-CLS Corporate

Counsel ConferenceSt. Regis Monarch Beach Resort

Dana Point, CaliforniaFebruary 21-23, 2013

National Black Law Students Association (NBLSA)45th Annual Convention

The Westin Peachtree PlazaAtlanta, Georgia

March 6-10, 2013

Gertrude E. Rush Award DinnerSt. Regis Monarch Beach Resort

Dana Point, CaliforniaApril 5, 2013

Coalition of Bar Associations of Color (CBAC)Annual MeetingWashington, DC

May 2013

Women Lawyers ̓Division Annual Supreme CourtSwearing-In Ceremony

Washington, DCMay 28, 2013

NBAʼs International Affiliates MeetingParis, France and Brussels, Belgium

June 2013

NBA 88th Annual Convention & ExhibitsFountainebleau Hotel Miami Beach

Miami Beach, FloridaJuly 27-August 1, 2013

27th Annual NBA-CLS CorporateCounsel Conference

Barton Creek Resort and SpaAustin, Texas

February 20-22, 2014

6 | NATIONAL BAR ASSOCIATION MAGAZINE

The National Bar Association is ALREADY excited about its 88th

Annual Convention & Exhibits at the Fontainebleau Miami Beach Hotel in Miami, Florida. Held July 27-Aug. 1, 2013, the convention is sure to be the best yet!

One Of The Largest Conferences For African American Legal Professionals

�� EARN CONTINUING LEGAL EDUCATION (CLE) CREDIT

�� EXCLUSIVE NETWORKING OPPORTUNITIES WITH THE NATION’STOP AFRICAN AMERICAN LAWYERS & JUDGES

�� PARTICIPATE IN A CAREER FAIR WITH FORTUNE 500 COMPANIES

Hotel Reservation InformationFor your convenience, please feel free to take advantage of EXCLUSIVEhotel room rates and airline discounts as an attendee of the 88th Annual Convention & Exhibits:

The official convention meeting and hotel location will be the Fontainebleau Miami Beach Hotel, 4441 Collins Ave., Miami, FL 33140. The standard room rate is $179 + tax. To reserve your room, please call (305) 538-2000.

Airline InformationAmerican Airlines is the official airline for the convention. Registrants can access discounted airfare by calling 1-800-433-1790 and utilizing the authorization code: 3973BS.

Stay connected with us on Facebook (www.facebook.com/nation-albar) and Twitter (@nationalbar) for updates!

Visit www.nationalbar.org to register and for more information!

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JOIN US IN MIAMI

Save The Date!

27th Annual NBA-CLS CorporateCounsel Conference

Barton Creek Resort and Spa

AUSTIN, TEXASFebruary 20-22, 2014



NATIONAL BAR ASSOCIATIONCOMMERCIAL LAW SECTION

2012-2013EXECUTIVE COMMITTEE

PAGE 15

VICKIE E. TURNER Treasurer

San Diego, CA

GREGORY M. WESLEYSecretary

Milwaukee, WI

DAVID B. CADEImmediate Past Chair

Berkeley, MO

KIMBERLY R.PHILLIPS

Corporate LiaisonHouston, TX

KAROL CORBIN WALKERAdvisor

Newark, NJ

KAMLA ALEXANDERCorporate Liaison

Atlanta, GA

DONISE BROWNCorporate LiaisonCoral Gables, FL

ROGER M. GOODECorporate LiaisonBentonville, AR

DAMON P. HARTAdvisor

Boston, MA

HOLLY E. LOISEAUAdvisor

Washington, DC

LA TANYA LANGLEYCorporate Liaison

Norwalk, CT

ANDREW NUNESAdvisor

Toronto, Ontario M5H

DAWN TEZINO JONES Chair

Houston, TX

ROBERT R. SIMPSON Vice Chair

Hartford, CT

JEAN-MARIESYLLA, JR.

Newsletter LiaisonWashington, DC

BRIAN K. TELFAIRAdvisor

Richmond, VA

TAMIKA LANGLEY TREMAGLIO

AdvisorWashington, DC

STEVE TOLLIVERCorporate Liaison

Blue Bell, PA

KWAMINA T.WILLIFORD

AdvisorWashington, DC

CHAD WALKERCorporate Liaison

Oak Brook, IL

National Bar AssociationCommercial Law Section1225 11th Street, NWWashington, D.C. 20001

Non-ProfitU.S. Postage

PAIDPermit No. 7163

Washington, D.C.

NBA Commercial Law Section Newsletter

Editorial Board

Jean-Marie Sylla, Jr., Esq.Taylor, Sylla & Agin, LLP

Washington, DC

Monty Cooper, Esq.Sedgwick LLP

Washington, DC

NBA Commercial Law Section Design/Publisher

Jeanette ZakkeeZakkee and Associates

Atlanta, GA

The National Bar AssociationCommercial Law Section Newsletter

The Commercial Law ConnectionCONNECTING PEOPLE, IDEAS

AND OPPORTUNITIES

National Bar AssociationPhone: (202) 842-3900

Fax: (202) 289-6170Email: [email protected]

The Commercial Law Connection - NBA-CLS

Documents

Transcript of The Commercial Law Connection - NBA-CLS