to view the 2015 Annual Conference PDF of all Materials

Annual Conference April 30th & May 1st

Thursday, April 30th

8:00 8:45am Grand Libelle Foyer: Registration Continental Breakfast: Sponsored by Quarles & Brady LLP, Michael Best & Friedrich LLP, and Hansen Reynolds Dickinson Crueger LLC

8:45 9:00am Grand Libelle Ballroom BC Welcome: Matthew Koch, Deputy General Counsel, Direct Supply & President, Association of Corporate Counsel Wisconsin

9:00 9:50am Grand Libelle Ballroom A 1. Legal Considerations in IT Outsourcing Transactions: Offshoring, Nearshoring, Onshoring (Oh

My!) (David Hertel, Andrew Schlidt, Gary Ballesteros) Grand Libelle Ballroom BC 2. Know When to Hold EmLitigation Holds in the World of e-Discovery (Susan Allen, Jeffrey

Younger, Michael Baird) _________________________________________________________________________________________________________________________

9:50 10:00am BREAK GRAND LIBELLE FOYER Breaks Sponsored by Gonzalez Saggio & Harlan LLP and von Briesen & Roper SC

_________________________________________________________________________________________________________________________

10:00 10:50am Grand Libelle Ballroom A 3. Who Owns What and How Do You Protect It? (Adam Brookman, Brant Maurer) Grand Libelle Ballroom BC 4. Youre Covered for More than You Think: Understanding and Maximizing Your Insurance

Coverage (Jeff Bowen, Paul Junius) _________________________________________________________________________________________________________________________

10:50 11:00am BREAK GRAND LIBELLE FOYER _________________________________________________________________________________________________________________________

11:00 11:50am Grand Libelle Ballroom BC 5. Critical Legal Developments Impacting Business in 2015 and Beyond (Susan Schellinger, James

Braza, Steven Bartelt) Grand Libelle Ballroom A 6. Doing Business Abroad While Following the Rules at Home: Some Practical Advice for

International Trade Compliance (Eric Wilson, Kelsey Murphy, John Goodrich) _________________________________________________________________________________________________________________________

12:00 1:00pm Lunch Grand Libelle Ballroom DEF Sponsored by: Littler Mendelson PC and Whyte Hirschboeck Dudek SC

Annual Meeting, Association of Corporate Counsel Wisconsin Recognition of the 2015 ACC Wisconsin Pro Bono Fellowship Recipients Door Prizes Donated By Sponsors

_________________________________________________________________________________________________________________________

1:00 2:15pm Keynote Address Grand Libelle Ballroom DEF 7. Can You Put a Price on Knowledge (Ken Jennings)

For more information on Ken Jennings, please visit www.apbspeakers.com. _______________________________________________________________________________________________________________________

2:30 3:20pm Grand Libelle Ballroom A

8. The Remote Worker: Managing the Telecommuting, Flexible, and Road Warrior Employee (Jennifer Ciralsky, Laura Lindner, Ann Jordan)

Grand Libelle Ballroom BC 9. Beyond the Battle of the Forms: Advanced Topics in Commercial Terms (Richard Casper, David

Lucey, Thomas Doerr)

_________________________________________________________________________________________________________________________

3:20 3:30pm BREAK GRAND LIBELLE FOYER _________________________________________________________________________________________________________________________

3:30 4:20pm Grand Libelle Ballroom BC 10. Cybersecurity, Privacy, and Data Breaches: How In-House Counsel Can Tame the Risks (John

Barlament, Jennifer Rathburn, Dana Serrano) Grand Libelle Ballroom A 11. Strategic Management of Ill, Injured, and Disabled Workers: How to Develop a Consistent Strategy

for Workers Compensation, FMLA, and ADA Claims (John Murray, Daniel Pedriana, Angie Olson) _________________________________________________________________________________________________

4:20 4:30pm BREAK GRAND LIBELLE FOYER _________________________________________________________________________________________________________________________

4:30 5:20pm Grand Libelle Ballroom BC 12. The New Age of Protected Activity (Gregory Wesley, Warren Buliox, Sam Facey) Grand Libelle Ballroom A 13. What You Dont Know Can Hurt You Lessons Every Company Can Learn from the Current Food

and Beverage Litigation Crisis (Paul Benson, Ben Smyth) _________________________________________________________________________________________________________________________

5:30 7:30pm Social Event: Elkhart Lake Ballroom A, Lakeview Room, and Lakeview Patio Sponsored by: Foley & Lardner LLP, Perkins Coie LLP, and Godfrey & Kahn SC

_________________________________________________________________________________________________________________________

Friday, May 1st

8:00 9:30am Grand Libelle DEF Foyer: Hot Breakfast Buffet Sponsored by Reinhart Boerner Van Deuren SC, Buelow Vetter Buikema Olson & Vliet LLC, and Blake, Cassels & Graydon LLP Note: Programs start at 9am, but food will remain available until 9:30am.

_________________________________________________________________________________________________________________________

9:00 9:50am Grand Libelle Ballroom A 14. Important Considerations in Conducting Cross-Border Business or Transactions (Stefan Timms,

Rena Shadowitz, Jacqueline Ertl) Grand Libelle Ballroom BC 15. David v. Goliath: Negotiating Contracts When You Have Little or No Leverage (Linda Emery,

Pamela Stokke-Ceci, Renee Kuhs) _________________________________________________________________________________________________________________________


10:00 10:50am Grand Libelle Ballroom BC 16. A Litigators Wish List for the Contract Drafter: Because Its All About Us Avoiding Litigation (Nora

Gierke, Willem Noorlander, Robert Jones) Grand Libelle Ballroom A 17. Instead of Arbitration, Lets Just Flip a Coin (Krista Baisch, Hon. William Duffin, Emily Lawrence)

_________________________________________________________________________________________________________________________


11:00 11:50am Grand Libelle Ballroom BC 18. Litigating Non-Compete and Non-Solicitation Agreements Suing Former Employees: A View from the Trenches (Joel Aziere, Suzanne Glisch, Bruce Lindl) Grand Libelle Ballroom A 19. Preparing a Corporate Witness for a Deposition (or Other Litigation-Related Appearances (David Peterson, James Law, Mary Lee Ratzel)

The Osthoff Resort 101 Osthoff Avenue

Elkhart Lake, WI 53020 (800) 876-3399

THURSDAY APRIL 30, 2015

8:00 8:45 a.m. Registration and Continental Breakfast Sponsored by: Quarles & Brady LLP, Michael Best & Friedrich LLP, and Hanson Reynolds Dickinson Crueger LLC

8:45 a.m. Welcome: Matthew Koch, Deputy General Counsel, Direct Supply and President, Association of

Corporate Counsel Wisconsin

9:00 9:50 a.m. 1. Legal Considerations in IT Outsourcing Transactions: Offshoring, Nearshoring, Onshoring (Oh My!) Corporations increasingly are outsourcing internal functions in an effort to achieve significant cost savings and related benefits. According to Gartner, corporations engaged in over US$300 billion worth of ITO (information technology outsourcing) transactions in 2013 alone with the value of BPO (business process outsourcing) deals running a close second. While outsourcing offers many benefits, companies must be careful to manage the complex legal risks inherent in these deals. This presentation will provide an overview of outsourcing deals and key legal issues for in-house counsel to consider in managing the transaction including: due diligence; intellectual property rights; service level assurances; employee rebadging and related HR matters; data privacy & security; initial transition (cut over); disengagement (exit plan); step-in rights, benchmarking and more. Presented by: David C. Hertel, Shareholder, Whyte Hirschboeck Dudek, S.C.; Andrew J. Schlidt, Shareholder, Whyte Hirschboeck Dudek, S.C.; and Gary Ballesteros, Vice President of Law & General Counsel for Latin America, Rockwell Automation, Inc. 2. Know When to Hold Em...Litigation Holds in the World of e-Discovery The volume of data generated by private companies has been estimated to have grown by approximately 40% - 60% in the year 2013 alone. At the same time, a number of recent court cases have lowered the threshold for when a company is obligated to hold onto documents when threatened with litigation. The presentation will cover the importance of a litigation hold, what a good litigation hold policy includes, and the timing of the different stages of a hold. The presentation will provide practical suggestions on how to comply with discovery and litigation hold obligations while limiting disruptions to daily business as well as protecting the organizations interests. Presented by: Susan K. Allen, Partner, Stafford Rosenbaum LLP; Jeffrey W. Younger, Partner, Stafford Rosenbaum LLP; and Michael A. Baird, Corporate Counsel, Uline

9:50 10:00 a.m. BREAK IN EXHIBIT HALL

All Breaks and Refreshments Sponsored by: Gonzalez Saggio & Harlan LLP and von Briesen & Roper SC

10:00 10:50 a.m. 3. Who Owns What and How Do You Protect It? Your company wants to own whatever it creates and whatever its hired consultants and designers create. It sounds easy, but often is not so simple. You might think that anything an employee creates on company time is owned by the company, but thats not always the case. That designer that was hired to create a new logo may have rights to the artwork if youre not careful. And that software developer who designed your online ordering system thinks it is ok to design a similar system for your biggest competitor. Can you stop her? This session will explore practical topics from both an in-house and practitioner's perspective. It will offer examples for the both the experienced and non-IP corporate counsel to help advise their clients about how to make sure what you think you own is what you actually own. Presented by: Adam L. Brookman, Shareholder, Boyle Fredrickson, S.C.; and Brant T. Mauer, Patent & Corporate Counsel, S.C. Johnson & Son, Inc.

4. Youre Covered for More than You Think: Understanding and Maximizing Your Insurance Coverage All companies face significant risks, ranging from the accidental disclosure of confidential data or business disruption caused by a natural disaster to litigation filed by angry investors or employees. This program is designed to help you understand the different types of insurance that are available to protect you and your company against these and many other dangers. Some of the insurance already purchased by your company may cover a wider range of these risks than you think. This program will also address potential blind spots with respect to coverage that some companies have experienced, as well as recent developments in insurance law that may affect your business, your insurance coverage, or your companys decisions about purchasing insurance. Presented by: Jeff Bowen, Partner, Perkins Coie LLP; and Paul B. Junius, President, Risk Retention Services


11:00 11:50 a.m. 5. Critical Legal Developments Impacting Businesses in 2015 and Beyond Regardless of the size or nature of your business, you will benefit from this exploratory session relating to key factors you should know about the most recent court decisions, legislation, and other legal developments. In addition, panelists will identify and explore key topics the Wisconsin Supreme Court and legislature will address in 2015 that general counsel should be aware of. Join us for this high-level yet information-packed session addressing how each legal development is affecting your potential for risk in the coming year, along with direct perspectives on how one in-house counsel member plans to mitigate the exposure. Presented by: Susan G. Schellinger, Shareholder, Davis & Kuelthau, S.C.; James E. Braza, Shareholder, Davis & Kuelthau, S.C.; and Steven S. Bartelt, Director of Legal Affairs & Assistant Secretary, The Marcus Corporation 6. Doing Business Abroad While Following the Rules at Home: Some Practical Advice for International Trade Compliance Every company big and small has entered the global marketplace. The ease of doing business with a company halfway around the world, however, sometimes belies the difficulty of following U.S. laws that regulate imports and exports. Join this panel as they discuss selected hot topics that Wisconsin companies need to consider when doing business overseas. Presented by: Eric J. Wilson, Shareholder, Godfrey & Kahn, S.C.; Kelsey C. Murphy, Trade Compliance Counsel, Modine Manufacturing; and John Goodrich, Principal, J.D. Goodrich & Associates 12:00 1:00 p.m. Lunch & Annual Meeting Join us for Annual Meeting of ACC Wisconsin, Recognition of the 2015 ACC Wisconsin Pro Bono Fellowship Award Winners, and Door Prizes Awarded by our Sponsors.

Sponsored by: Littler Mendelson PC and Whyte Hirschboeck Dudek SC

1:00 2:15 p.m. Keynote Address by Ken Jennings 7. Can You Put a Price on Knowledge? Trivia whiz Ken Jennings has made a career as a keeper of facts; he holds the longest winning streak in history on the U.S. game show Jeopardy! In his entertaining keynote, Ken discusses the future of human knowledge in the Information Age and his encounter with IBM's Jeopardy!-playing supercomputer, Watson. He teaches audiences how to retain information, stay curious, and be lifelong learners, while telling some war stories from his Jeopardy! appearances.

For more information on Ken Jennings, please visit www.apbspeakers.com.

2:30 3:20 p.m. 8. The Remote Worker: Managing the Telecommuting, Flexible, and Road Warrior Employee Increasingly, our employees are no longer working within the walls of our workplaces; they are working from home, traveling from facility to facility or from client to client. They are not tied to a physical desk, and they may rarely report to a common office. And they want to work on their own schedule. So how do we manage them? How do we monitor their attendance, performance, and compliance with company policies and procedures? How do we control their access to critical company information? How and when do we regulate the extent to which our employees are plugged in to the workplace? And how do we ensure that we are meeting our compliance obligations, such as: providing them with safe working conditions, accurate compensation (Do we have to pay an employee for responding to an email while on vacation?), and expense reimbursement (Do we really have to cover the cost of their home internet service?). This program will help you answer those ever-evolving and challenging questions. Presented by: Jennifer L. Ciralsky, Shareholder, Littler Mendelson P.C.; Laura A. Lindner, Shareholder, Littler Mendelson P.C.; and Ann Jordan, Lead Counsel, Assurant Healthcare

9. Beyond the Battle of the Forms: Advanced Topics in Commercial Terms Can your standard forms and contracting processes be improved? If you think so, there will be something to interest you here. After providing a brief refresher on basic strategies for making purchases/sales, we will discuss a select group of subjects and the issues that should be considered in addressing them in standard-form commercial contracts. (Among them: indemnities, warranties, and sales of unusual goods such as used equipment and seconds). Presented by: Richard H. Casper, Partner, Foley & Lardner LLP; David M. Lucey, Partner, Foley & Lardner LLP; and Thomas L. Doerr, Jr., Associate General Counsel, The Manitowoc Company, Inc.

3:20 3:30 p.m. BREAK IN EXHIBIT HALL

3:30 4:20 p.m. 10. Cybersecurity, Privacy, and Data Breaches: How In-House Counsel Can Tame the Risks Security, privacy and data breach issues pose huge financial and reputational risks for many companies. Join us for an overview of the main legal requirements you need to know in this area, along with practical strategies to help mitigate the risks posed in this new frontier. We will discuss: * How to prepare for a data breach -- and respond after one occurs * Managing cybersecurity legal issues * Advising your executives and board of directors on these risks * Addressing related issues that can arise with mergers and acquisitions / due diligence * Emerging legal issues regarding big data * The latest on employee privacy issues Presented by: John L. Barlament, Partner, Quarles & Brady LLP; Jennifer L. Rathburn, Partner, Quarles & Brady LLP; and Dana Serrano, Vice President & General Counsel, Zywave 11. Strategic Management of Ill, Injured, and Disabled Workers: How to Develop a Consistent Strategy for Workers Compensation, FMLA, and ADA Claims In many organizations, the employees responsible for managing and administering work comp claims are not responsible for ADA and FMLA claims. Unfortunately, some of the decisions made in work comp proceedings can limit the defenses available in subsequent FMLA or ADA claims. Corporate counsel need to manage these claims strategically to control costs. This presentation will address how these three statutes overlap, the tension between work comp claims and FMLA/ADA claims, and steps corporate counsel can take to manage these concerns strategically so that organizations are not inadvertently painted into a corner on subsequent ADA/FMLA claims. Presented by: John E. Murray, Shareholder, Lindner & Marsack, S.C.; Daniel M. Pedriana, Shareholder, Lindner & Marsack, S.C.; and Angela J. Olson, North American Labor & Employment Counsel, Voith Holding, Inc.

4:20 4:30 p.m. BREAK IN EXHIBIT HALL

4:30 5:20 p.m. 12. The New Age of Protected Activity This CLE will examine how courts and national enforcement agencies like the National Labor Relations Board and the Equal Employment Opportunity Commission have defined and/or expanded in recent years the scope of what may be considered protected activity in employment settings. Can, for instance, comments critical of an employer which are made outside of working hours on social media or elsewhere constitute protected activity and, if so, to what extent? Can a secretly recorded conversation between management and an employee be construed as a protected activity? What if the recording was specifically prohibited by company policy but done in an effort by the employee to collect evidence of discrimination in the workplace? This presentation will provide a study on these and similar issues. Presented by: Gregory M. Wesley, Partner, Gonzalez Saggio & Harlan LLP; Warren E. Buliox, Partner, Gonzalez Saggio & Harlan LLP; and Sam Facey, Assistant General Counsel Chief Privacy Officer and Investigative Counsel, Rockwell Automation 13. What You Dont Know Can Hurt You Lessons Every Company Can Learn from the Current Food and Beverage Litigation Crisis This presentation will address how current trends in food and beverage cases are beginning to creep into litigation involving other businesses. The panelists will cover everything from the criminal prosecution of corporate executives, to lawsuits involving advertising and marketing claims about products and services, to the handling of disputes between corporations and their regulators. Presented by: Paul E. Benson, Partner, Michael Best & Friedrich LLP; and Ben Smyth, Corporate Counsel, Natures Way Brands

5:30 7:30 p.m. Social Event: Reception Join us for an evening of networking, complimentary cocktails and appetizers.

Sponsored by: Foley & Lardner LLP, Perkins Coie LLP, and Godfrey & Kahn SC

FRIDAY MAY 1, 2015

8:15 9:00 a.m. Hot Breakfast Buffet

Sponsored by: Reinhart Boerner Van Deuren SC, Buelow Vetter Buikema Olson & Vliet LLC, and Blake, Cassels & Graydon LLP 9:00 9:50 a.m. 14. Important Considerations in Conducting Cross-Border Business or Transactions In-house counsel working for a company in the United States face many hurdles when doing business, or planning on doing business, in a foreign jurisdiction. This presentation will provide an overview of some of the more important considerations and best practices in such situations, including:

working with and overseeing local outside counsel and local in-house counsel; cross-border securities implications of doing business in a foreign jurisdiction; dealing with language barriers, responsiveness, expectations, and preferred means of communication in foreign

jurisdictions;

employment law considerations in dealing with a local work force; and local compliance issues and dealing with foreign regulators.

Presented by: Stefan Timms, Partner, Blake, Cassels & Graydon LLP (Blakes); Rena Shadowitz, Associate General Counsel and Director, BMO Financial Group; and Jacqueline Ertl, Vice President and General Counsel Corporate Development, Johnson Controls, Inc.

15. David v. Goliath: Negotiating Contracts When You Have Little or No Leverage No matter how big or small your legal department or company, have you ever had a vendor or customer give you a contract that is non-negotiable? Have you ever had a vendor state they never change their form contract? The goal of this presentation is to inspire an interactive discussion regarding strategies for getting beyond NO when negotiating a deal between your client and an inflexible third party. Presented by: Linda C. Emery, Shareholder, von Briesen & Roper, S.C.; Pamela Stokke-Ceci, Assistant General Counsel, Badger Meter; and Rene Kuhs, Compliance Attorney, RC Insurance Services


10:00 10:50 a.m. 16. A Litigators Wish List for the Contract Drafter: Because its All about Us Avoiding Litigation Ever wonder what contracts would look like if litigators drafted them? Sends a chill down your spine, right? Trust us when we tell you we dont want your job. But, litigators have a unique perspective to offer, given that we often get a front row seat to see others (or lets face it, ourselves) pick apart your work. Let us use our powers for good . and offer our perspective to assist contract drafters in avoiding having their contracts and their clients end up at the heart of litigation. Or, at least if they are the subject of litigation, to build in better defenses to the attacks they might face. Presented by: Nora Gierke, Partner, Gierke Frank Noorlander LLC; Willem J. Noorlander, Partner, Gierke Frank Noorlander LLC; and Robert S. Jones, Corporate Counsel, Harley-Davidson Motor Company, LLC 17. Instead of Arbitration, Lets Just Flip a Coin There is a prevailing belief that arbitration is a more effective and efficient method of resolving a dispute than litigation. But, is this always the case? This presentation is a practical discussion exploring the unpredictability of arbitration and includes insight from a Federal Magistrate Judge and an experienced litigator on: (1) when arbitration is the right choice for an organization; (2) what claims are subject to arbitration; (3) what procedural protections exist in an arbitration; (4) the high likelihood of hidden and unexpected arbitration costs; and (5) the worst case scenarioan unfavorable final and binding arbitration decision. Presented by: Krista K. Baisch, Partner, Hansen Reynolds Dickinson Crueger LLC; Hon. William E. Duffin, Magistrate Judge for the Eastern District of Wisconsin; and Emily J. Lawrence, Senior Managing Attorney Litigation/Labor & Employment, CNH America LLC


11:00 11:50 a.m. 18. Litigating Non-Compete and Non-Solicitation Agreements - Suing Former Employees: A View from the Trenches Most employers are familiar with non-compete and non-solicitation agreements. But, what happens when your former employee violates the agreement? In many cases, a stern warning letter is sufficient to curb the breaching behavior. What if that is not enough? Some former employees have the ability to raid your company of valuable intellectual equity. This session will provide real world insight into what it takes to stop an all-out attack by a former employee, even when aided by his/her new employer, and how to enforce the provisions of the agreement. Presented by: Joel S. Aziere, President & Shareholder, Buelow Vetter Buikema Olson & Vliet, LLC; Suzanne M. Glisch, Associate, Buelow Vetter Buikema Olson & Vliet, LLC; and Bruce Lindl, retired, former General Counsel, ABB Robotics, Inc. 19. Preparing a Corporate Witness for a Deposition (or Other Litigation-Related Appearances) Is your CEO about to be deposed by opposing counsel? Does your HR Director have to make a court appearance to testify in trial? This session will provide you with tips and strategies for how to prepare your company's employees for a deposition and other court appearances, so that they will be in control and relaxed (or as relaxed as they can be!) on the witness stand. Presented by: David G. Peterson, Shareholder, Reinhart Boerner Van Deuren, S.C.; James N. Law, Attorney, Reinhart Boerner Van Deuren, S.C.; and Mary Lee Ratzel, General Counsel Chief Legal Officer, ProHealth Care, Inc.

11:50 12:00 p.m. Closing Remarks, Adjournment Photography & Head Shots by High Impact Creations LLC Sponsored by: Stafford Rosenbaum LLP, Lindner & Marsack, SC and Gierke Frank Noorlander LLC Cocktails at the Paddock Club Dinner & Wine Tasting at Vintage Elkhart Lake Sponsored by: Boyle Fredrickson SC & Davis & Kuelthau SC

Thank you to our Platinum Level Sponsors

Boyle Fredrickson S.C.

Davis & Kuelthau S.C.

Foley & Lardner LLP

Godfrey & Kahn S.C.

Littler Mendelson P.C.

Perkins Coie LLP

Whyte Hirschboeck Dudek S.C.

Thank you to our Gold Level Sponsors

Blake, Cassels & Grayson LLP (Blakes)

Buelow Vetter Buikema Olson & Vliet LLC

Gierke Frank Noorlander LLC

Gonzalez Saggio & Harlan LLP

Hansen Reynolds Dickinson Crueger LLC

Lindner & Marsack S.C.

Michael Best & Friedrich LLP

Quarles & Brady LLP

Reinhart Boerner Van Deuren S.C.

Stafford Rosenbaum LLP

von Briesen & Roper S.C.

Thank you to our Silver Level Sponsors ALFA International

LexisNexis

PS-Companies

Thomson Reuters

CLE to be applied for in Wisconsin & Illinois (please contact Carrie Booher to request assistance for

approval in other jurisdictions).

DAVID C. HERTELLabor & Employment

(414) 978-5303 / [email protected]

EXPERIENCE PROFILE David C. Hertel is a shareholder in the Milwaukee office of Whyte Hirschboeck Dudek S.C. and a memberof the firms Labor & Employment Team. He has more than 25 years of experience representingmanagement in all aspects of labor and employment law. In his practice he: Represents management in labor contract negotiations, unfair labor practice proceedings, labor

grievances and arbitrations, and responses to union organizational efforts.

Represents management in disability discrimination and failure to accommodate actions, and wrongfuldischarge actions, employment discrimination actions, sexual harassment actions, and wage and hourproceedings.

Represents businesses in various industries in complex safety and health cases before the U.S.Occupational Safety and Health Administration (OSHA) and federal courts.

Represents clients before the U.S. Department of Labor, U.S. Equal Employment OpportunityCommission, Wisconsin Department of Workforce Development, Wisconsin Employment RelationsCommission, Madison Equal Opportunities Commission, Office of Federal Contract CompliancePrograms and National Labor Relations Board, as well as in state and federal courts.

Represents clients in litigation involving covenants not to complete and confidential businessinformation.

Counsels management with respect to labor and employment issues arising in connection withreductions in workforces, acquisitions, expansions, sales, mergers, plant closings and relocations.

DAVID C. HERTEL Experience Profile

Counsels management on strategies for terminating the employment of employees so as to avoid

liability; prepares severance agreements and programs.

Counsels management regarding compliance with wage and hour laws and responding togovernmental audits.

Prepares employment agreements, confidentiality and non-compete agreements, consulting andindependent contractor agreements, together with other employment-related agreements.

Prepares, reviews and assesses employee handbooks and policy manuals.

Prepares affirmative action programs and represents management in audits of programs by federal,state and local governmental agencies.

Develops and conducts training sessions for supervisors and other managerial employees.

Develops effective and efficient procedures to comply with state and federal Family and Medical LeaveLaws, the Americans With Disabilities Act and Workers Compensation Laws.

PROFESSIONAL PROFILE Education

University of Wisconsin Law School, J.D. University of Wisconsin, B.S.

Admissions

State Bar of Wisconsin State Bar of Arizona U.S. District Court for the Eastern and Western Districts of Wisconsin U.S. Court of Appeals, Seventh Circuit

Professional Associations

American Bar Association State Bar of Wisconsin, Past Member of Board of Directors of Labor and Employment Law

Section

DAVID C. HERTEL Professional Associations

American Bar Association, Labor and Employment Section State Bar of Arizona, Labor and Employment Law Section President - Labor and Employment Relations Association - Wisconsin Chapter

Community Involvement

Board of Directors, Executive Committee, and Past President, Next Act Theatre Awards & Distinctions

Selected for inclusion in The Best Lawyers in America in Employment Law - Management, andLabor Law - Management (2013-2015), and Litigation - Labor & Employment (2012-2015)

Named to the Wisconsin Super Lawyers list in 2007 and 2008 Rated AV Preeminent by Martindale-Hubbell

Articles and Presentations

NLRBs Impact on Non-Union Employers, MRAs 2015 Employment Law Update: Federal &Wisconsin (February 20, 2015)

Recent Developments in the Law Regarding Background Checks and How to Avoid Common andCostly Mistakes Made During the Employment Verification (I-9) Process, co-presenter, FinancialHuman Resources Association (FHRA) (November 11, 2014)

Avoiding the Rocks: Terminations by Non-Union Employers That Now Violate the National LaborRelations Act, presenter, WHD Annual Human Resources Law Conference (October 23, 2014)

New OFCCP Regulations, Compliance Manual and Responding to Audits, MRAs 2014Employment Law Update (February 28, 2014)

Carrying Out Employment Terminations in Today's World, Financial Human ResourcesAssociation (FHRA) (November 12, 2013)

Illuminating the Best Techniques for Responding to OFCCP Audits of Affirmative, co-presenter,WHD Milwaukee Annual Human Resources Law Conference, October 9, 2013

Beyond the Law: Business Ethics and the HR Professional, West Central Wisconsin Society ofHuman Resource Management (SHRM) (June 14, 2013)

Ethics and the HR Professional, International Public Management Association For HumanResources (IPMA-HR Wisconsin Chapter) (May 31, 2013)

Exempt v. Non-Exempt: Avoiding Costly Mistakes!, MRAs 2013 Employment Law Update(February 15, 2013)

The Unemployment Compensation Hearing Process: Designing a Game Plan to Win, co-presenter, Financial Human Resources Association (FHRA) (November 13, 2012)

The Affordable Care Act: What Employers Need to Know Now, co-presenter, Whyte HirschboeckDudek S.C. Breakfast Seminar Series (October 2012)

DAVID C. HERTEL Articles and Presentations

Business Ethics for the Human Resources Professional, Society of Human ResourcesProfessionals (March 2012)

National Institute on Consumer Credit Management, Employment Law Lecturer, MarquetteUniversity College of Business Administration (2004-2012)

Privatization and the Primary Related Test: A Case for Clarification, co-author, 74 Marquette LawReview 451 (1991) - An analysis of collective bargaining obligations in connection with theprivatization of public services.

Independent Contractors and Employees: Easier Said Than Done, co-author, On Balance(January/February 2012)

Mr. Hertel has been selected by many trade associations, businesses and professionalorganizations to speak on labor and employment topics including, management/union relations,collective bargaining negotiations, wrongful discharge, workplace safety, drug testing,employment discrimination, sexual harassment in the workplace, FMLA, ADA, employeehandbooks, ethics for human resources professionals, and supervisory training.

ANDREW J. SCHLIDTTechnology Law

(414) 978-5515 / [email protected]

EXPERIENCE PROFILE Andy Schlidt is a shareholder in the Milwaukee office of Whyte Hirschboeck Dudek S.C. where he is co-chair of the firm's Corporate & Finance Practice Group and is leader of the Technology Law Team. He isa corporate lawyer with broad experience in commercial transactions, corporate governance, andregulatory compliance matters. Andy has served on the Firm's Board of Directors and leverages theFirm's 150+ legal professionals to achieve the business and strategic objectives of clients. As leader of the Firm's Technology Law team, Andy serves as National Technology Counsel tocompanies with operations across North America and abroad. In this capacity, Andy draws upon his priorindustry experience as a business process and technology consultant with the Chicago office ofAccenture. To further refine his knowledge of industry developments and outsourcing/technology deals,Andy completed a Masters of Industrial Technology degree through Purdue University. At Purdue heconducted a study of the technology risk management practices of legal counsel at Fortune 200companies. Andy is a member of the Science & Technology Section of the American Bar Association and theBusiness Law Section of the State Bar of Wisconsin, including Co-Chair of the State Bar IT Law and e-Commerce Committee. He was a founder of the Information Technology Association of Wisconsin(ITAWi) and has served as a member of the Telecommunications Committee for the Wisconsin PublicUtilities Institute. Andy is an annual contributor to the Electronic Contracting chapter of the State Bar bookon Contract Law in Wisconsin. Examples of Andys recent representations include the following industries: FINANCIAL SERVICES: Counseling an $18 billion Fortune 500 financial services company in

technology related legal issues including negotiation of licensing, services, and outsourcingagreements with vendors such as IBM, Oracle, Fiserv, United Healthcare, Standard & Poors, and USAData.

ANDREW J. SCHLIDT Experience Profile

HEALTHCARE: Advising in creation of a Regional Health Information Organization for centralizingelectronic medical health records in Wisconsin. Representation of health care organizations andinsurers in information technology legal matters, including acquisition of electronic medical recordssoftware systems, privacy and security of patient information, data back-up and business continuanceprograms, Stark and anti-kickback compliance.

SOFTWARE: Representing an international logistics software developer in the drafting andenforcement of master technology agreements, implementation agreements, maintenance andsupport agreements, reseller agreements, joint development agreements, and strategic allianceagreements. Negotiated deals with customers such as duPont, Sears, Target, and Pepperidge Farms.

TELECOMMUNICATIONS: Representing telecommunications companies (ILEC, CLEC, & VOIP) inregulatory matters involving the WI Public Service Commission and Federal CommunicationsCommission and negotiation / enforcement of complex commercial deals including: Network JointVentures; Interconnection Agreements; Pole Attachment Agreements; IRU Agreements; Co-locationAgreements; Wholesale Capacity Agreements; Fiber Leases; and ISP and VOIP service agreements.

MANUFACTURING: Advising a Fortune 500 manufacturing company in managing legal issues in a$400 million enterprise-wide ERP implementation of SAP and IBM software affecting all globaloperations. Managed legal issues related to licensing, intellectual property, maintenance & support,hosting, security, privacy and disaster recovery planning among others.

WIRELESS: Assisting NYSE and NASDAQ telecommunications utilities with the deployment ofwireless digital networks in Wisconsin including securing of government approvals, acquiring of publicand private land rights, and negotiating of lease / co-location agreements.

FIBER OPTICS: Representing a fiber optics construction company in the development of a fibercommunications network throughout the Midwest. Representing its affiliate in forming and growing abroadband communications company in deploying dark fiber and municipal Wi-Fi networks.

NEW VENTURES: Counseling start-up companies (including software development and othertechnology companies) in managing legal considerations associated with launching new enterprises.He serves as General Counsel to start-ups advising on issues such as corporate formation,management of intellectual property, contracting with business partners, venture financing, humanresources, corporate growth strategy, risk mitigation, and dispute resolution.

ANDREW J. SCHLIDT Experience Profile

RECORDS MANAGEMENT: Advising corporations in the development and maintenance of

appropriate records retention programs in light of recent amendments to the Federal Rules of CivilProcedure relating to discovery of electronic records in litigation.

PROFESSIONAL PROFILE Education

Marquette University Law School, J.D.; Marquette Law Review Purdue University, Masters of Industrial Technology (Honors) University of Notre Dame, B.A. Economics (Deans List)

Admissions

State Bar of Wisconsin Professional Associations

UW E-Business Consortium Advisory Board Member Wisconsin Telecommunications Association Federal Communications Bar Association Wisconsin Public Utilities Institute Telecommunications Committee American Bar Association Business Law Section and Science & Technology Sections State Bar of Wisconsin Business Law Section (Information Technology & E-Commerce

Committee) and Energy Telecom Section Community Involvement

Milwaukee County War Memorial, Inc. Vice Chairman, Board of Trustees Awards & Distinctions

Named a "Rising Star" on the Wisconsin Super Lawyers list (2006, 2007) Rated AV Preeminent by Martindale-Hubbell Milwaukee County War Memorial Service Award Notre Dame Club of Milwaukee Service Award

Articles and Presentations

Keep your eyes "OPENED" in INTERNATIONAL cloud computing, On Balance Magazine,January/February 2014

ANDREW J. SCHLIDT Articles and Presentations

Negotiating the Cloud: Tips for Avoiding a Legal Storm-Emerging Legal Lessons in CloudComputing, presenter, Wisconsin Chapter of the Association of Corporate Counsel (WISACCA) -An Introduction to Tax and Dispute Issues in the Cloud, Dec. 12, 2013

Insecurity in the Cloud?, 2013 Wisconsin Digital Government Summit, Dec. 5, 2013 Smart buildings: Who is fiddling with your roof?, IBMadison.com, Apr. 8, 2013 To stay in sync with the digital world, follow the data, IBMadison.com, Feb. 11, 2013 Business Continuity Planning: Conduct a Critical Vendor Review, IBMadison.com, Dec. 27, 2012 14th Annual Business Best Practices & Emerging Technologies Conference, Panelist: Privacy &

Security Issues in a Cloudy Environment, UW E-Business Consortium, Oct. 4, 2012 Cloud vs. Office? The Answer is Not as Clear-cut as You Might Think, IBMadison.com,

September 2012 Cloud Computing: Forecasting Turbulence for IT Operations, IBMadison.com, Aug. 30, 2012 Electronic Documentation of Business and Real Estate Transactions, State Bar of Wisconsin Real

Estate and Business Law Institute, June 10, 2011 Emerging Legal Issues in Cloud Computing Environments, Wisconsin Digital Government

Summit, Nov. 30, 2010 E-Commerce Legal Considerations, University of Wisconsin Executive MBA Program, Nov. 17,

2010 Best practices for the electronic workplace, BizTimes, Nov. 28, 2008 Best Practices in Crisis Management, Association of Corporate Counsel Conference for

Wisconsin Chapter, May 15, 2008 Emerging Legal Issues in Technology Transactions, University of Wisconsin-Milwaukee Center for

Technology Innovation, Jan. 12, 2007 Key Issues in Software, ERP and ASP System Contracting, participant in panel discussion, State

Bar Information Technology Inter-Professional Conference. Intelligent Buildings, spoke on the development of Intelligent Buildings through Broadband

Telecommunications and related I.T. Infrastructure at Shorecliff Communications BroadbandBuilding & Commerce Seminar.

Build-to-Suit and Purchase/Leaseback Tower Problems, spoke at a national telecommunicationsconference regarding contractual legal issues arising in the development of wireless networks. Mr.Schlidt's comments were published in the Sept. 15, 1998 edition of Wireless Review magazine.

1

Legal Considerations in IT Outsourcing Transactions

Presented at the ACC Wisconsins 10th annual chapter conference and meeting of members on April 30, 2015 by: David C. Hertel, Shareholder, Whyte Hirschboeck Dudek, S.C.; Andrew J. Schlidt, Shareholder, Whyte Hirschboeck Dudek, S.C.; and Gary Ballesteros, Vice President of Law & General Counsel for Latin America, Rockwell Automation, Inc.

Corporations increasingly are outsourcing internal functions in an effort to achieve significant cost savings and related benefits. According to Gartner, corporations engaged in over US$300 billion worth of ITO (information technology outsourcing) transactions in 2013 alone with the value of BPO (business process outsourcing) deals running a close second. While outsourcing offers many benefits, companies must be careful to manage the complex legal risks inherent in these deals. This presentation provides a general overview of outsourcing deals and key legal issues for in-house counsel to consider in managing the transaction.

A. General Overview of IT Outsourcing.

1. Why Companies Outsource IT Services.

There are multiple reasons why a company may seek to outsource IT services:

Cut costs and save money

Recognize better value

Improve levels of service

Use cutting edge technologies

Real time maintenance, support and updates to technologies

Utilize more talented resources / staff from global vendor (where talent is limited locally)

Transform fixed capital costs into flexible expenses

Benefit from volume pricing through major vendors

2

Move to standardize IT use across departments

Moores Law keep up with the pace of technological change

2. Typical IT Functions that are Outsourced.

Often companies will outsource the types of IT functions listed below. Each of these functions is often referred to as a tower when part of a larger package of outsourced services:

Data centers and hosting. An outsourced data center means the company has moved its equipment, software, connectivity and data for data storage to a third party vendor. Data center suppliers offer a suite of products and services ranging from the supply of physical facilities (such as secure rack space) to the supply of a service and management package.

Desktop. Outsourcing of desktop means to engagement of a third party vendor to provide the supply and maintenance of personal computers (PCs) such as desktops and laptops, and peripherals such as printers, keyboards and monitors. Also included within desktop services are personal digital assistants (PDAs), hand-held computers, smartphones and similar devices. Desktop service may also include software used to operate the foregoing devices. The desktop vendor typically maintains a catalogue of the various equipment, software and services from which the company and its users place orders. The desktop vendor may be required to updated/ upgrade the devices from time to time (i.e. a technology refresh).

Applications development. Outsourcing of applications development means a third party is engaged to create custom software for the company. While many companies engage vendors to develop software applications from time to time, the outsourcing of application development is different in that it envisions a continual stream of software development for multiple projects, not just a single development project.

Applications maintenance and support. Outsourcing of application maintenance and support means a third party is engaged to provide help desk support to users and to apply patches, fixes, upgrades and updates to software as available.

Voice and data networks. Outsourcing of voice and data networks means engaging a third party vendor to manage a companys fixed line telecommunications, mobile communications and data networks including the management of telecommunications agreements, reconciliation and validation of invoices and device refreshing among others.

Disaster recovery. Outsourcing of disaster recovery means engaging a third party to provide a temporary working environment when a disaster hits a customers standard working environment. Also sometimes referred to as business continuity

3

services, the disaster recovery (or business continuity) services are located at an offsite location using redundant networks and resources.

Managed services. Outsourcing of managed services means engaging a third party to handle day to day responsibilities management responsibilities for an IT function as a strategic method for improving operations and cutting expenses. In managed services there is a clear shift of administrative responsibility from the customer to the supplier. The concept of a managed service can be applied to portions or to the whole of a customers IT operations.

B. Customers Initial Steps in the Process.

1. Building the Business Case.

Prior to deciding to outsource any IT operations, the customer must analyze and assess the business case for outsourcing those functions. A business case analysis will typically include consideration of:

The customers objectives efficiency, improved operations, cost cutting

Inventorying of the functions and services to be outsourced

Creating the financial and the operation base cases for justifying the outsourcing transaction and for creating a baseline against which competing vendor proposals can be evaluated

Executive level appetite and support for outsourcing core functions

2. Customer Due Diligence on its Business.

If there appears to be an initial business case for considering outsourcing, further detailed due diligence by the customer of its own business operations is recommended. Customers preliminary due diligence should evaluate some or all of the following:

Objectives and whether outsourcing is the most appropriate way to meet those objectives

Top level/executive support within the organization for outsourcing

Review of services currently being provided

Current service delivery model and service levels

Number of users/internal customers and transaction volumes

Future requirements for the services

4

Number of employees or full-time equivalents used to provide the existing services (including contract staff), costs of those employees and whether they are engaged exclusively to provide those services

Third-party contracts needed to provide the services (software licenses, maintenance agreements, leases / supply contracts)

Assets needed to provide the services, including the value and condition of those assets, ownership rights

HR details regarding terms of employees and benefit plans

Details regarding the property locations and premises at which services are provided including lease information and any relevant property service contracts

Governmental regulatory and compliance matters such as the need for regulatory approvals or consents

Tax impacts associated with moving functions from the company to a third party provider.

3. Customer Due Diligence on Potential Suppliers (RFP).

Beyond evaluating its own business, the customer is advised to conduct due diligence on the potential suppliers and available services offered through the suppliers. Most often, an RFP is used as the vehicle for conducting this supplier due diligence. An RFP will typically seek to elicit the following information from a supplier:

Whether and how the supplier can meet the customers requirements.

Whether the delivery method will require a change to customers existing service delivery processes.

Supplier description of services that it offers to its general customer base.

Information about the suppliers organization, locations, employee skill sets, financial condition, global reach.

Whether the supplier uses subcontractors and which services are subcontracted.

Supplier prior experience in similar projects, its qualifications and track record.

Proprietary methods or techniques unique to supplier that it may use in providing the services.

Suppliers continuous improvement processes that it can deploy during the life of the contract.

5

Staffing plan for resources to be used by Supplier whether part-time, full-time, onshore, off-shore and how they will be used.

Information regarding resource turn-over and plans for limiting turnover on the customer project.

Pricing metrics, options and other detail regarding total project cost.

Any assumptions on which the supplier proposal is based.

Supplier response to customer standard master services agreement and any deviations from customer terms.

The customer should validate the suppliers RPF responses through various methods which may include site visits, reference checks with existing supplier customers, reviewing third party industry consultant reports, meetings between executive teams to dig into the supplier response in greater detail and to gauge whether the supplier verbal responses in a meeting match with the written responses in its proposal.

C. Suppliers Initial Steps in the Process

The supplier too will need to conduct its own due diligence to confirm that this is a project that it can complete operationally and financially. In completing its due diligence, the supplier will seek to:

Better understand in greater detail the business functions being outsourced.

Make a determination as to whether the supplier can meet the customers operational requirements.

Determine whether the service level assurances sought by the customer are reasonable and capable of being achieved at reasonable price points.

Confirm any assumptions that it made in its proposal to the customer.

Review all pertinent contracts, policies and related documentation related to the project. Often the customer will establish a data room (much like those used in M&A deals) and will populate the data room with background materials required for the vendor to evaluate the project. Use of a data room ensures that all suppliers will have access to the same information so that their proposals are based on the same metrics.

Meet with customers employees and other personnel who they believe may need to transfer over to supplier in order to maintain continuity of service and knowledge base.

Inventory another customer assets, intellectual property, information technology and third party arrangements that may be impacted by the outsourcing.

6

Supplier due diligence typically is conducted before a final selection is made by the customer. By following this approach, the customer is encouraging a small group of suppliers to gather the information that they need to make a final and best offer for the work.

D. Negotiating the Outsourcing Agreement.

1. Term Sheet. Where multiple suppliers are under consideration, the RFP process assists in narrowing the list to a final 2 or 3 for consideration. To further vet the finalists, a Term Sheet negotiation is often used to gain further commitment from each supplier as to deal terms. The Term Sheet confirms fundamental deal points around price and scope of the services. The Term Sheet is used to further document deal points around core provisions that will appear in the final Outsourcing Agreement.

2. Outsourcing Agreement. Once the Term Sheet is finalized and a finalist has been selected (or perhaps two finalists), the parties will turn to negotiating a final definitive Outsourcing Agreement. In almost all cases, the supplier is expecting that the customer will provide a form of Outsourcing Agreement. Given that these are highly customized transactions, it is to the customers benefit to provide its own form of Outsourcing Agreement instead of using the suppliers standard form. In fact, if a customer does not present an Outsourcing Agreement to the supplier, the supplier will conclude quickly that the customer has never engaged in an outsourcing project before and will use the customers inexperience against it in negotiating the deal points.

Following is a list of standard concepts that a customer should consider incorporating into an Outsourcing Agreement to be presented to a supplier. Keep in mind that these Agreements are highly customized to the transaction so all of these points may not be relevant. Conversely, this is not an exhaustive list but rather a representative sample of what is commonly found in these Agreements:

DUE DILIGENCE

Statement that the supplier has received all relevant due diligence materials to review in connection with negotiating the agreement, that supplier has had sufficient time to review them and that supplier shall not have a right to exit the agreement for any reasons that could have been discovered during due diligence.

TERM

Typically an initial term of 3 to 5 years with renewal options. The trend is toward shorter terms, especially in IT deals where the technology is rapidly changing the preferred method of delivery in 3-5 years could change significantly.

SERVICES DESCRIPTION

Scope of Services. General overview of the scope of services to be provided. Specific detail on each is typically found in the applicable statement of work.

7

Transition Services. Description of services that are necessary to accomplish the transition of service from the customer to the supplier.

Service Recipients / Local Countries. If the customer has global operations, a list of those locations and the customer recipients in those locations.

Disengagement Services. Description of services that are necessary at the end of the agreement to accomplish a migration of services back to customer internally or to a replacement third party provider.

Disaster Recovery Services. Statement that supplier is to provide disaster recovery / business continuity services as set forth in a statement of work or separate schedule and that a force majeure event will not relieve supplier of its obligation to provide disaster recovery.

Purchasing Agent Services. Description of whether supplier has the right to act as customers purchasing agent for any supplies, equipment or other services that are the responsibility of customer, but for which supplier may be able to obtain more favorable pricing given volume discounts and industry relationships of supplier.

No Minimum Services Commitment. Statement that the agreement is non-exclusive, it is not a requirements contract, that customer has the right to obtain similar services from others and that there is no minimum commitment of service volume promised by customer.

Continuous Improvement. Commitment by the supplier that services will evolved and be supplemented over time to keep pace with technological advancements and improvements in the methods of delivering the services and the changes in customers business.

REQUIRED CONSENTS

Allocation of responsibility for obtain third party consents (whether governmental or third party vendor) necessary for providing the services. For example, if the supplier is using certain software installed by customer at its site, approvals of the third party software provider may be needed.

LOCATIONS & ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES

Service Locations. List of supplier and customer locations from which services are to be provided by supplier.

Access to Customer Locations. Provisions related to circumstances under which supplier will be given access to various customer locations.

Access to Supplier Locations. Provisions related to circumstances under which customer will be given access to various supplier locations.

8

Modified Locations; Relocations. Terms governing changes to locations from which services are provided and allocation of costs depending upon which party initiates a relocation of a service facility.

Access to Customer Networks. Terms under which supplier will be given access to customer IT networks.

Software. Identification of customer software to which supplier requires access and terms related to access.

Equipment. Identification of customer equipment to which supplier requires access and terms related to access.

Third Party Contracts. List of third party contracts to which supplier requires access to provide services and terms related to access.

Additional Assets. List of additional customer assets to which supplier requires access to provided services and terms related to access.

Maintenance. Allocation of responsibility and costs for maintenance related to locations and assets identified above.

PERFORMANCE STANDARDS

Performance Standards; Service Levels. Detail regarding the specifications that the supplier must satisfy in providing the services. Often referred to as KPIs or key performance indicators. Significant time goes into preparing in negotiating these metrics based on guidance from the customer business teams as to their expectations for service quality.

Service Level Credits and Milestone Credits. Service level credits are a fixed dollar amount to be issued to customer as a credit if a the supplier fails to meet the required performance standards or service levels. Supplier will typically agree to pay these credits, however it will want the credits to be customers sole and exclusive remedy for failure to meet SLAs.

Problem Analysis. If the supplier fails to meet a critical KPI, then often the customer will require that the supplier investigate and report the cause of the problem and propose a resolution and subsequent cure. The purpose of the analysis is to ensure that there is not a repeat of the problem in the future.

Measurement and Monitoring; Performance Data. The supplier is to implement measurement and monitoring tools and metrics as well as standard reporting procedures in form acceptable to the customer to measure and report compliance with the SLAs.

9

Notice of Adverse Impact. Supplier is to notify customer immediately if it becomes aware of any circumstances that will prevent the supplier from meeting the SLAs and to notify customer of a proposed work around solution.

Benchmarking Reviews. Customer reserves the right to engage a third party to conduct an analysis of suppliers performance under the agreement and to benchmark the performance against the market performance of other suppliers in the industry. Benchmarking will look at both performance and cost of the services and provide a report as to whether the suppliers offerings are market or not. Based on the benchmarker report, customer might reserve the right to modify the scope of services or renegotiate pricing.

PROJECT PERSONNEL

Key Supplier Positions. Customer reserves the right to approve in advance those supplier personnel who are holding key positions as determined by customer. Often the list of key positions is agreed to in advance and set forth in a statement of work or an exhibit.

Replacement, Qualifications, and Retention of Supplier Personnel. Supplier is to commit to maintaining staffing on the project with minimal turnover and may not replace personnel in key positions without the prior approval of the customer. Customer reserves the right to request that supplier investigate the performance of any supplier personnel. Supplier is responsible for the investigation and determining whether its resource is suitable for continuing in the position and providing services to customer.

Relationship of the Parties. Supplier is an independent contractor and is responsible for its personnel including all compensation and benefits.

Indemnification. Supplier is to indemnify customer for any claims related to its personnel.

Performance of Services for Competitors. Supplier is to ensure that none of its personnel holding key positions will provide any services to a customer competitor during the term of the agreement.

Background Checks. Supplier is to conduct criminal background checks for all personnel assigned to the customer account and is to comply with all applicable law in conducting the checks and assigning personnel to customers account.

Conduct and Compliance. Supplier personnel are to comply with all applicable customer policies, rules and regulations regarding personal and professional conduct while providing services to customer.

10

Visas and Work Permits. Supplier is responsible at its sole cost for obtaining all necessary work visas or work permits and related documentation as required by law.

Co-Employer. Customer is not a co-employer, joint employer or in an employer-employee relationship with any of suppliers personnel.

Employee Removal for Substance Abuse. Supplier is to ensure that none of its personnel engage in drug, alcohol or other substance abuse while providing services to customer. Supplier is responsible for investigating any suspected abuse and removing the suspected person from the engagement pending completion of the investigation.

Personnel Transfer. Where the supplier is assuming services that were previously performed internally by customer, those internal customer employees may have a right under country specific laws to follow the work and continue to perform it as an employee of the supplier. Accordingly, the parties should evaluate this up front. The parties will often create a separate schedule detailing responsibilities for compliance with these laws, primarily the EU Council Directive 77/187/EEC (as amended by EU Council Directive 98/50/EC and EU Council Directive 2001/23/EC or otherwise from time to time), including without limitation the Transfer of Undertakings (Protection of Employment) Regulations 2006, which protects the rights of employees on a business transfer and which is broadly similar to EU Council Directive 77/187/EEC as amended, or such other country specific legal standards and applicable laws similar to the foregoing.

ADDITIONAL SUPPLIER RESPONSIBILITIES

Policies and Procedures Manual. Supplier is to deliver a complete draft of a policies and procedures manual detailing the methods, policies and procedures to be implemented by supplier in performing the services. This manual will be critical at exit when customer seeks to transition the services back internally or to an alternate provider.

Reports. Supplier is to provide periodic reports detailing its performance under the agreement based on reporting metrics to be agreed upon by the parties.

Governance. The parties are to implement a governance structure comprised of representatives of each party for managing the project, escalating concerns and resolving disputes as they arise.

Quality Assurance and Internal Controls. Supplier is to implement and maintain quality assurance and internal controls (financial, accounting, organizational, system design and access).

11

Audits. Customer retains the right to conduct audits of suppliers performance. These audits typically include financial audits, operational audits, and contract / records audits.

Subcontractors. Supplier may not use subcontractors without customers consent. Supplier is responsible for the performance of its subcontractors.

Savings Clause. If customer fails to perform any of its obligations under the agreement, supplier may not terminate except for the express events of termination provided in the termination provision. The purpose of the savings clause is to make sure the supplier does not suspend or terminate critical services except for a very good reason previously identified by the parties in the contract.

CHARGES; TAXES

Inclusive Charges. All charges set forth in the applicable statements of work are inclusive and no other charges or fees apply.

Taxes. Note: The section on taxes is complex and critical. Before finalizing the outsourcing agreement, it is critical that tax experts from both parties meet to identify the best means for minimizing tax exposure. This includes sales and use taxes, property taxes, service related taxes and recoverable taxes. Withholding may be required if the supplier is a foreign entity. Supplier should commit to take reasonable steps to minimize tax liability to the extent legally permissible.

INVOICING AND PAYMENT

Invoicing. Thought should be given to whether the customer will require one consolidated invoice or whether multiple invoices should be generated, one for each country in which services are provided. There may be tax implications in how and where the charges are invoiced. Supplier should be required to provide supporting documentation to substantiate each charge.

Disputed Charges. Customer should have the right to withhold payment on disputed charges. Supplier should be required to continue performance during the period of dispute so long as the parties are working in good faith through the governance and dispute mechanisms in the agreement to resolve the payment issue.

CONFIDENTIAL INFORMATION

Care should be given to craft a comprehensive confidentiality provisions. A standard NDA is likely insufficient given that the supplier is likely to have access to the customers most important and sensitive electronic information. Use of the confidential information should be limited to providing services to customer only (no using data, whether aggregated and de-identified or not, for purposes outside of the contract). Access should be limited to supplier personnel with a need to know for providing the services. The provision should contemplate destruction or return

12

of information at the end of the term. Supplier should be obligated to promptly advise of any unauthorized disclosure or use of the confidential information.

DATA SECURITY

The agreement should clearly state that Customer data will remain owned by customer and the supplier will implement appropriate data security safeguards to protect it. The provision should contemplate data retention, data destruction, litigation holds and the like. The provision should also mandate that supplier follow certain security standards (ISO / NIST) and undertake annual security audits of its data centers (SSAE 16 type II reports).

PERSONAL DATA

The agreement should contain a separate provision identifying additional requirements related to any personal data that supplier may have access to in providing the services. In particular, supplier is likely to have access to personal data of customers employees. The agreement should cover application of the European Union Privacy Directive to the extent personal data of EU residents is involved. The agreement should also consider whether health information will be accessed by the supplier such that HIPAA may govern.

OWNERSHIP OF INTELLECTUAL PROPERTY AND MATERIALS

Customer Materials. Statement that Customer maintains ownership of all of its materials that may be used in the provision of services.

Developed Materials. Statement that Customer owns all developed materials as work made for hire or, if not work made for hire, then supplier assigns all rights in the developed materials to customer.

Supplier Materials. Supplier maintains ownership of all pre-existing supplier materials but grants a broad license for customer to use the materials during the term.

Third Party Materials. To the extent that Supplier uses third party materials to provide the services, it must ensure that it has proper rights to the third party materials and that those use rights also extend to customer.

Rights Upon Disengagement. Customer may need the right to continue using supplier materials upon disengagement, so customer should attempt to obtain upfront an ongoing license to use the materials post termination. This is typically a heavily negotiated point as the supplier may not wish to grant this license, especially if customer engages a supplier competitor to provide future services.

REPRESENTATIONS AND WARRANTIES AND COVENANTS

General Standards. General statement that supplier will provide services with due care, skill and diligence in a workman like manner and in accordance with the specifications set forth in the agreement, that all deliverables will be free of defects

13

in workmanship and materials, that supplier will use adequate numbers of qualified individuals with suitable training and experience to provide the services.

Personnel. Statement that supplier personnel have the legal right to work in the country in which services are provided, that they are not prohibited by non-competes from working for customer, and that customer is not a co-employer or joint employer.

Non-Infringement. Supplier has the right to perform the services and provide the deliverables, possesses all necessary intellectual property rights to do so, has the right to convey title and grant the licenses required under the agreement, and that there are no pending allegations or claims against supplier for intellectual property infringement or misappropriation.

Authorization. The parties are duly incorporated, validly existing and have all corporate power and legal authority to enter in the deal.

Inducements. Supplier has not received commissions, payments, kickbacks, lavish or expensive entertainment or other inducements of more than minimal value in entering into the deal.

Harmful Code. The services and deliverables will not contain any harmful software code or other routines that would cause harm to customer.

Litigation. Supplier warrants that there is no pending action, claim, suit arbitration, proceeding or investigation of supplier that will interfere with or inhibit its ability to enter into the agreement or perform the services.

Disclaimer by Customer. Customer makes no representations or warranties about the its environment, its property or any other assets provided by customer to supplier in the performance of the services.

INSURANCE

Standard insurance coverage should be included, plus additional IT specific provisions such as Technology Errors and Omissions as well as CyberRisk (network security) coverage. While coverage amounts will vary depending on the size of the deal, it is not unusual to see coverage of $5M per claim and $10M in aggregate for both types of coverage. Anything less is typically inadequate. All reputable IT vendors will carry this coverage.

INDEMNITIES

Infringement Indemnity. Supplier indemnity for any allegations or claims of intellectual property infringement arising from services, software or equipment provided by supplier or used by supplier or customer in connection with the services.

14

Infringement Remedies. In addition to defense and indemnity, remedies should include (a) procuring the right for customer to use the infringing matter, (b) if not possible, then modifying the infringing material so that it is non-infringing, (c) if not possible, then reimbursing customer for the fees paid for the infringing material.

Suppliers General Indemnity. Obtain a general indemnity from supplier to cover breach of obligation under the agreement (supplier will seek to narrow this to particular sections of the agreement), personal injury, death, property damage (including intangible and data), violation of laws, employment related claims, gross negligence, willful misconduct or fraud.

LIABILITY

Limitation of Liability. While the supplier will insist on a limitation of liability provision (waiver of consequential damages and a direct damages cap), most suppliers will allow carve-outs to both the waiver and cap. These are extensively negotiated. The customer should seek to maximize carve-outs and increase the cap to a multiple of the contract value. To avoid future disputes over the distinction of direct damages vs. consequential damages, many contracts will provide a list of damages that the parties acknowledge will be treated as direct damages.

DISPUTE RESOLUTION

Informal Dispute Resolution. Most outsourcing agreements will contain an escalation process for informal dispute resolution among the parties. Often the dispute is sent to the governance committee established for escalation of major issues.

Continued Performance. The supplier is to continue performance under the agreement even during the course of a dispute and may not suspend or otherwise terminate services as leverage to resolve the dispute.

Step in Rights; Cooperation. Customer reserves the right to step in itself or through a third party provider and perform any elements of the services deemed to be critical by customer if an event of default occurs. Supplier is to reimburse customer for costs incurred by customer in stepping in to perform the services, typically subject a reimbursement cap.

TERMINATION

Agreement typically contains multiple termination rights including termination for cause, termination for convenience, termination upon supplier change of control, termination upon customer change of control, termination for supplier degraded financial condition, termination for supplier insolvency or bankruptcy. Typically the parties will negotiate upfront certain termination fees that may be due upon any early termination, especially in the context of termination for convenience.

Know When to Hold 'EmLitigation Holds in the World of e-DiscoveryPresented by:Susan Allen, Stafford Rosenbaum LLP Jeff Younger, Stafford Rosenbaum LLP Michael Baird, Uline Inc.

Michael Baird is a corporate attorney in the legal department at Uline, Inc., a North American distributor of shipping, packaging and industrial supplies and material handling products, headquartered in Pleasant Prairie, Wisconsin. Michael handles and advises on an array of corporate legal matters including contracts, real estate, intellectual property, and regulatory compliance. Before joining Uline, he was an attorney with a law firm in downtown Milwaukee where his practice focused on consumer and commercial banking, real estate, general business litigation, negotiations and transactions. He regularly advised business clients on risk management policies and procedures.

Mr. Baird graduated cum laude from Marquette University Law School.

Contact Michael: [email protected]

Jeff Younger is a partner in the Madison office of Stafford Rosenbaum LLP. Jeffs practice includes both transactional matters and commercial litigation. A significant portion of his practice focuses on employment and labor law (representing management), construction law and contract law. He has extensive experience in real estate transactions and leases, and in business organizational matters, including mergers and acquisitions, buy/sell agreements and non-compete agreements. He represents clients in the banking and accounting industries. He has served as lead counsel in civil and administrative trials and has acted as a private arbitrator.

Mr. Younger is a graduate of the University of Wisconsin Law School.

Contact Jeff: [email protected]

Susan Allen is a partner in the Milwaukee office of Stafford Rosenbaum LLP. Susan's practice focuses on litigation, including products liability defense, general commercial litigation and insurance coverage litigation. Susan has handled all aspects of complex litigation, representing businesses and insurers in both state and federal courts. Her experience includes defending auto manufacturers against products liability and warranty claims in Wisconsin and throughout the Midwest. Susan also practices in the area of municipal law. She defends municipalities and their insurers against liability claims, and advises municipal clients with ordinance and resolution drafting, and Open Records Law and Open Meetings Law issues.

Ms. Allen graduated cum laude from Marquette University Law School.

Contact Susan: [email protected]

Learn more at: www.staffordlaw.com and www.uline.com

kgetterRectangle

kgetterRectangle

kgetterRectangle

kgetterLine

kgetterLine

KNOW WHEN TO HOLD EM:LITIGATION HOLDS IN THE WORLD OF E-DISCOVERY

Presented by:Susan Allen, Stafford Rosenbaum

Jeff Younger, Stafford Rosenbaum Michael Baird, Uline

PPPPRERERERE----LLLLITIGATIONITIGATIONITIGATIONITIGATION

Drafting and Implementing a Document Retention PolicyWhat NOT to do:


Drafting and Implementing a Document Retention Policy

Document Retention Policy Schedule for the retention and destruction of company documents on a specific timetable, including electronically stored data.

When?

Yesterday Periodic Review of Policy and Internal Compliance

Who?

In-House Counsel IT Professionals Records Custodians HR Professionals All Employees

PRE-LITIGATION



Where?

Company-wide Potentially in Conjunction with Outside Vendors/Contractors All Devices and Platforms

What?

Should Address ALL Records, Including Electronically Stored Information (ES) Special attention to E-mail communications

Provide for Archiving and Destruction as Appropriate Search Terms Policy Should be Compliant with Other Applicable Statutes

FLSA Tax Laws Environmental Laws Other Regulations Depending on Business



How?

Written Policy Dissemination to and Training of All Employees Routine Enforcement

As to Everyone

Why?

Cost-Savings Easier Accessibility Avoid Spoliation Claims and Sanctions


Litigation Holds Double Duty

Internal Litigation Hold Policy

When?

Should be pre-existing to address what occurs with potential/actual litigation

When litigation is reasonable anticipated or at the commencement of litigation.

Policy should require notification of potential triggering events

Who? Any person likely to have relevant information should be contacted directly.

Should include provisions for employment changes

Each individual should sign to confirm receipt/compliance with litigation hold

IT Professionals are an imperative part of the team

In-house and Outside Counsel Role

Ongoing notifications and compliance checks


Litigation Holds Double Duty

Internal Litigation Hold Policy

What? Broad reach of discovery potentially relevant information ESI Suspend destruction in accordance with document retention policy

In particular auto-delete of emails Retention of back up tapes and suspension of overwriting Metadata Careful documenting of preservation efforts


Internal Litigation Holds

WHY? Spoliation/Sanctions

Safe Harbor

Fed. R. Civ. P. 37(e) and

Wis. Stat. 804.12(4m)

Admissibility of Helpful Evidence

Other Practical Benefits

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.


Internal Litigation Holds

Other Considerations? Forms of data (email, text messages and

social media)

Location of data

Volume of data

Outside vendors

Internal resources

Discoverability of litigation hold letters


External Litigation Holds

Counsels duty to put (potential) opposing party on notice of duty to retain relevant information.

Potential litigation/Claim stage

Additional assistance in potential spoliation argument

Be specific about ESI

LLLLITIGATIONITIGATIONITIGATIONITIGATION

e-Discovery IssuesFederal Rules

Rule 26(f) Discovery plan must include proposals regarding discovery anddisclosure of ESI, including the form(s) of disclosure

Rule 26(a)(1) Initial disclosures require disclosure of description and location of ESI Eastern District of Wisconsin Principles Relating to the Discovery of ESI and

Standing Order 2.01 Fed. R. Evid. 502(d) Claw back agreements

Wisconsin Statutes

Wis. Stat. 804.09(2)(b)2 Production of ESI in form in which it is ordinarily maintained or in a reasonably

useful form Need not produce ESI in more than one format

Wis. Stat. 804.01(5) Duty to supplement discovery responses


Document Retention Policy and Litigation Holds

Guide Document Searches and Production

Ongoing Considerations: Internal

Periodic notices and reminders

Periodic review of scope of litigation hold and individuals involved

Periodic compliance review and tracking

Generation of privileged communications and

Ongoing Considerations: External

Meet and Confer

Request for supplementation

Consideration of privilege logs


Document Retention Policy and Litigation Holds Guide Document Searches and Production

Considerations in Dealing with Document Disclosures

Collection Plan Internal v. outside vendor Search-term based collection

Claw Back Agreements (Fed. R. Evid. 502(d)) Review Tools

Attorney review Document management software Search term review Duplication of documents

Relationship Webs (internal or external) Discovery Regarding Documents

Depositions of custodians ESI, metadata or other IT experts


e-Discovery Issues Protective Orders

Proper definition and scope of Confidential Information

Dissemination to all experts or consultants for review and signature, including IT professionals and consultants used in searching and producing ESI

Confidential Information in depositions

Motions in Limine/Other Considerations

Use of search-terms as guide for motions in limine

Effect of discovery-related sanctions on jury or court trial

Foundation and admissibility of ESI

PPPPOSTOSTOSTOST----TTTTRIALRIALRIALRIAL

e-Discovery Issues Protective Orders

Return documents to opposing party

Finalize return or destruction of documents by experts

Litigation Hold/Document Retention

Release litigation hold

Post-trial evaluation

Implementation of changes based on good/bad litigation experiences

Re-instate normal procedures in accordance with document retention policy

Comprehensive Inventory on Electronically Stored Information Adapted from United States Department of Justice Questionnaire

on Electronically Stored Information

1. Current Infrastructure, Procedures and PoliciesA. Organizational chart for organizationB. Internal organizational chart for IT/IS departmentC. Written documentation retention and management policy

(1) Including period during which this version of the document retention policy was enforced

(2) Any documentation regarding efforts to enforce document retention policy and individual(s) responsible for doing so

D. Identification of any outside contractors/third-parties providing IT/IS services for the organization

E. Identify policies relating to employee use of business computers for personal use

F. Identify policies relating to employee use of personal computers for business use

G. Policies for capturing ESI from departing employees

2. Current Hardware and Computer SystemsA. Type of computers used (e.g., mainframe, work stations, desktops,

laptops, tablets, other portable devices) (1) Use of desktops, including where business information is

saved and backed up on the desktops, how desktops are connected to the network and whether desktops are used for telecommuting

(2) Use of laptops and tablets, including where business is accessed, saved or backed up on devices, how laptops and tablets are connected to the network and use for telecommuting

(3) Use of employees personal devices, how these devices are connected to the organizations network, where work-related ESI is saved or backed-up

(4) Use of handheld devices (e.g., smartphones), including how these devices are connected to your organizations network, whether they contain business-related emails, text messages or other ESI that is not stored on the business network

(5) Use of removable storage media (e.g., thumb drives, CDs, external hard drives)

B. Types and versions of operating systems, including dates of major changes or upgrades

C. Types, number and physical location of all servers used D. Any third-party storage locations containing ESI (e.g., external host

servers and cloud computing) E. Any legacy systems containing ESI that have not been migrated to

current systems

3. Methods of Communication and Other ApplicationsA. Email and Other Communications Programs

(1) All email programs, including version and an

to view the 2015 Annual Conference PDF of all Materials

Documents

Transcript of to view the 2015 Annual Conference PDF of all Materials