On day one, our keynote panel
offered attendees an inside
look at the story behind “The
Informant,” a 2009 movie starring Matt Damon as Mark
Whitacre—an executive at food
processing company Archer
Daniels Midland who worked
with the Federal Bureau of
Investigation in the ’90s to
expose his company’s price-fixing activity. It was an honorable
pursuit, except that he was
embezzling the whole time.
“We had a wackadoodle
for an informant,” said panelist james Mutchnik, who was
in the Antitrust Division at the
Keynote panel on “The Informant”
Christine Jones, gC of godaddy
Department of justice at the time.
Day two saw an equally entertaining and useful panel discussion among the
general counsel of Go Daddy Operating Co.,
nissan Motor Co. and Churchill Downs Inc. The
three GCs discussed ways in which in-house
counsel can help shape government policy. For
example, GoDaddy’s Christine jones successfully lobbied to get a law passed that allows
Internet service providers to take down websites that sell unauthorized pharmaceuticals.
Afterward, four judges offered advice
for e-discovery best practices in a round-table discussion. They advised not to avoid
electronically stored information, and to err
on the side of too much preservation rather
than too little.
“That which is not preserved is forever
lost,” said james Francis, judge for the u.S.
District Court for the Southern District of
ronald deMoss, rent-a-Center; Charles harris, Mayer brown
Since last year’s landmark Supreme Court decision in AT&T Mobility
v. Concepcion, companies have been looking more seriously at incorporating arbitration agreements in the employment context. At this
year’s SuperConference, a panel of in-house and outside counsel got
together to discuss best practices in using arbitration agreements.
The panelists—which including Ronald DeMoss, GC of Rent-A-Center Inc.; William Bedman, senior director of HR legal at Halliburton;
and Marcia Goodman, partner at Mayer Brown—all agreed: Arbitration
is an effective alternative to costly litigation.
“It’s faster, it’s cheaper, it’s less adversarial, and it’s final,” DeMoss
said. “There are two very significant reasons to consider arbitration: the
cost of litigation and avoiding the jury wild card.”
Over the years, various challenges have been made to arbitration pro-
visions in employment agreements, and businesses began revising their
provisions to accommodate, specifically to bar classwide arbitration.
In Concepcion, a couple sued AT&T over a tax they were charged
on free cell phones. When AT&T moved to arbitrate, as the consumer
contract mandated, a trial court denied the motion, and the 9th Circuit
affirmed. The Supreme Court, however, said the arbitration clause was
“Since Concepcion, there has been a pull and tug on how the case
will be applied by the courts in the employment context,” Goodman
said. “Employers should look at Concepcion and the decisions since
Concepcion, and work with counsel to tweak their programs to address
arguments being set forth.”
The panel went on to offer some practical considerations with regard
to implementing arbitration provisions in employee agreements—
emphasizing that that one size does not fit all.