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View 2018: Riding the winds of change

|Written By Jennifer Brown
View 2018: Riding the winds of change

Like so many general counsel these days, Nicola-Jane McNeill is managing in a climate of fast-paced growth and increasing demands from the business units she works with, while at the same time responding to the expectations of external stakeholders.

The business of parking is big and ever evolving and the legal team at Vancouver-based Impark is part of the effort to grow the company that faces cross-border challenges as it has a large presence in Canada and the United States — 200 cities in a country where the regulatory environment is more complex.

As we were putting this story together, McNeill’s position in the legal department changed when she was promoted to senior vice president and general counsel, which will have her taking an even larger role and closer look at the challenge of balancing risk with efficiencies.

Like McNeill, so many in-house counsel these days are often managing through growth of business, growth of regulatory challenge and even recovery, in the case of Grant Borbridge, senior vice president legal and general counsel at MEG Energy in Calgary.

After a three-year slump in the oil sector, there are finally signs of life and some stability in the oil and gas sector. This means while Borbridge was successful in keeping his legal team of eight together through the downturn, they now face the immediate demands of investors who have high expectations for growth.

In that three-year period, the sector also saw a growing tide of demand for greater transparency around environmental issues. With that has come increased regulatory requirements that will keep the MEG Energy legal department busy in the coming year.

Growth of regulatory issues also pose challenges to those in the insurance sector and Martha Binks, general counsel at Allstate Canada in Markham, Ont., is constantly evaluating the allocation of her resources for both demands of the company as it grows and as legislative and regulatory matters increase workloads. Her approach is to insert herself in the process from the early stage with the business units and the result is a more efficient overall outcome for the business.

In Montreal, David Felicissimo, general counsel of Valnet Inc., is juggling all the challenges of a fast-paced online collection of popular website brands that are content rich and therefore demanding in the realm of intellectual property issues as well as policies set out by the likes of Google, Facebook and YouTube. Operating in that realm means there is little time for the legal department to react to new policies from these online behemoths when they make changes that can often happen suddenly and without much warning.

Through all the change, a common theme with these senior in-house leaders is that while they are bringing more work into their departments with ever-increasingly specialized staff, they also rely heavily on their external partners for complicated work that they need specific expertise on. As several of them pointed out, working cross-border with outside counsel poses its own unique set of challenges, but there is an increased focus on fee arrangements becoming the norm, not the exception.

I hope you enjoy this, our fifth edition of the View, presented in conjunction with Fasken Martineau DuMoulin LLP. I think you will find that the common thread with these four general counsel is that they all maintain a big picture view of the risks and challenges of the business while at the same time having an “enabling” perspective day to day to make sure the legal teams are providing real value to the companies they support.

Photo: Angela Fama

Nicola-Jane McNeill
Senior vice president and general counsel

Impark

Size of legal department:
Three lawyers and four paralegals
First joined Impark in 1995

1. What are the business challenges that Impark and your legal team are tackling for 2018?

Impark has been on a brisk path of acquired growth since we were purchased in 2011 by the Ontario Teachers Pension Plan. Last year, we acquired Tennessee-based Republic Parking Systems, which was one of the largest parking operators in the United States and a specialist in the vertical markets servicing airports and municipalities. Next year will see more acquisitions in addition to targets for organic growth, and we will also be rolling out a new Enterprise Resource Planning information system that will challenge us with new processes.

While we will be taking a hard look at our workflow, we have also been green-lighted to staff up to meet the needs. So 2018 will be a banner year for managing change, but we also expect big dividends in the form of enhanced efficiencies, communication and cross-department collaboration.

One of the pleasures of being in the legal department is our line of sight into so many areas of the company, and we get to participate in this transformation project as a stakeholder as well as a facilitator. It will also have a unifying effect on company culture, which is something you can’t take for granted when you grow quickly.

It will pull together what used to be a lot of different threads of information and it’s going to be fabulous in terms of making sure everyone has the same information in front of them.

2. What are your top priorities for the business units you serve when it comes to regulatory and compliance matters?

Legal’s responsibilities in the compliance sphere are primarily about educating senior management and supporting the business units to increase awareness, assess risks and deliver an appropriate response. We operate in over 200 cities in the U.S., where the regulatory environment is far more challenging than in Canada because of the patchwork of federal and state jurisdiction. Privacy is a perfect example — in Canada, there is a fairly harmonious regime between the provinces and the federal government.

I share the privacy role with our chief information officer. He has the title, but we do the job together and get along very well and understand the risks very well. He looks at it from a data security standpoint with an IT lens, which is fabulous. I think we’re very fortunate to be set up that way.

That said, some compliance topics receive consistent treatment in the U.S. and Canadian law, and legal takes the lead on those. We are currently completing our annual anti-bribery and corruption training and are working to identify other areas where across-the-board (and border) education and policies would be effective.

It’s something every company that operates cross-border needs to be aware of — it’s treated on both sides of the border as a serious matter. It can creep up on you in ways you don’t really expect. We do it every year so everyone can have that “ah-ha” moment to say, for example, “I think we need to revisit that contract because I don’t think we can do this anymore because it may be looked at through this particular lens.” I don’t think any company can afford to ignore this.

3. Is cybersecurity a priority for the legal department? In what way?

We are fortunate to have sophisticated IT resources that share legal’s sensitivity to cyber-risks and how we use and handle our customers’ and employees’ personal information. There is an annual training and certification exercise that everyone is required to complete, recognizing that many breaches originate internally and quite innocently. IT has their own incident response plan, but a larger corporate response plan and tabletop exercise are waiting in the wings. We have added cyber coverage to our suite of insurance policies, and we are also proactive in managing that risk through our contracts with third parties. In addition, we have worked effectively to leverage our extensive knowledge about Payment Card Industry compliance with our property-owning clients to ensure they fully understand how meters and paystations need to be deployed and managed. That raises client confidence and pays forward into organic business growth.

With cyber-insurance coverage, we’re finding more and more companies have it and more clients are expecting it — those companies that we have operating agreements for parking lots. They could be institutional clients or an individual with a surface lot that wants to put parking on it as they are holding it as an investment. We process credit cards for payment, so we need to make sure all of that personal information and sensitive information is protected. With the high volume, we just have to make absolutely sure our clients understand what PCI compliance looks like and that they work with us to make sure the systems are compliant.

4. What is your philosophy to managing the in-house legal team?

For me, it boils down to maintaining a culture of encouragement in our department, which translates into exposing my team to interesting work, education and networking opportunities on the one hand and setting healthy boundaries on the other. We are a very collegial and service-oriented group and will readily go the extra mile to get something done, but sometimes the appropriate answer to a request is not an unqualified “yes.” Particularly in a season of change, we need to safeguard our internal resources for their highest and best use, and a department leader sometimes needs to “defend the base” accordingly.

We don’t have a U.S. lawyer on staff as yet, but I envision that will probably change. But even if we did, you still want the benefit of experienced M&A counsel. We’re not expected to be specialists that way. We are generalists who look to create efficiencies. We are certainly involved in the big acquisitions because we need to tell our firm how to run the diligence and what we want them to look for when they look at contracts.

5. How do you approach managing the work you do with external counsel?

We use external counsel on our day-to-day work sparingly and will be even more sparing next year as we take a closer look at balancing the risks with the efficiencies. For specialty advice or litigation matters, we have traditionally been happy with a fee arrangement. We prefer to retain counsel on an individual basis rather than have a relationship with national or regional firms, but that may change as we grow. By and large, we don’t have a one-firm mantra. We like to choose our counsel.

With respect to alternative fee arrangements, I think it’s something we need to pay more attention to, primarily with an eye to the U.S. because I think they are much more accepting of AFAs. It tends to not be as difficult a conversation there. It’s a bit untested for us and certainly something to keep in mind.

 

Photo: Robin Kuniski

Martha Binks
General counsel

Allstate Canada
Legal team is eight lawyers including Binks in the Toronto office and another two in Calgary. Many practise solely or partly litigation — insurance defence litigation.
Binks has been at Allstate 14 years.

1. What are your main challenges for 2018?

Resources are always a challenge. For us, it’s for two reasons — the company itself is growing and legislation and regulations are increasing and changing. That always requires resources to make sure things are implemented properly and it’s a cost. There’s always a desire to make sure it’s done properly and it’s an added cost to a service where we’d like to remain competitive so there’s always a lot of balancing going on.

Any time there is a change in the system, it requires a lot of work. It’s an area where it’s easier to get involved early. There are also new draft governance guidelines from the Office of the Superintendent of Financial Institutions. We have regulations coming from both sides — federally and provincially — and that’s the sort of thing where if I can insert myself into the process earlier on the legal implications end up being woven in more efficiently than if we’re brought in at the end of the process. That’s where we try to stay really well connected with the different business areas.

2. For the business units, are there specific issues with them that you are focused on for this year?

CASL is always top of mind, but when it first came out, we worked with the various business areas on it so they are very good with it. It’s an area where you want to follow the legislation because you don’t want to annoy customers.

The one area that is very interesting coming up is the potential sharing of information and heightened attention to be given to non-disclosure agreements. If you’re sharing any confidential information or just very basic information about customers — you have to be so mindful that they are legitimate to make sure the data stays secure.

There will be a continuing pressure from business partners around managing Big Data. That requires caution to ensure that privacy considerations are foremost. In addition, any matter where there is a consideration of Big Data being shared as part of the preliminary contract talks, heightened focus is required for the non-disclosure agreement before any information is shared. In addition to the traditional matters in the NDA, specific terms with respect to data ownership and a higher-level assessment of the entity and its solvency must be brought to the table. The value is in the data, and if the requisite provisions are not in the NDA, a company can compromise its value before a contract is signed.

3. How do you go about managing your own team?

We want to get as efficient as we can and there are some areas where we have become extremely efficient through experience —privacy is an area where we work with the other business areas and are able to get systems in place and people walking the same walk. We don’t just want to be adding cost, but if we need more resources, we will get them.

We have an outside firm that deals with all of our employment issues. We think it makes sense to keep those things at arms length. The HR department deals directly with them and we stay out of that loop.

As cost containment is always an issue, the continuing challenge is to determine the most efficient way to deliver resources. I have found, when charged with a task, that not only completing a task (reviewing a contract for sales or assessing the privacy implications of a process), the true value of in-house is considering the extent to which the issue is a one-off or something that should be imbedded in a process, such as developing template agreements for matters of frequent use or educating business partners on certain issues, so that lawyers are tasked with matters that truly add value.

Some of the other work we would do is advertising, privacy, board governance and contract review. We have two people very focused on CASL and everyone is very good on privacy. What I try to do is find out what the lawyers want to do, let them know what work is available and be very frank and tell them I want to invest in them but want to hear from them on where they want to go. I want to know what they want to do in their professional development.

4. What about cybersecurity as a focus for you in the year ahead?

It is completely top of mind. Step one is making sure your information and data is secure and that’s where we have the advantage of the parent company and its resources. Any company knows there’s a huge brand risk if there is a breach. So there is willingness to invest in the resources to make sure the data is secure. So we have a huge advantage there. The other thing is you need a good incident response plan and the trick is keeping pace with what’s the newest type of breach or thing that might happen. It ends up being quite cross-functional — nothing necessarily legal about cybersecurity except that it’s a big risk and lawyers like minimizing risk.

5. What about managing external counsel?

We did a couple of years ago go through a general RFP for firms that would be able to handle everything that wasn’t labour and employment and insurance defence — privacy, insurance regulation and corporate governance. It was a very structured process and I learned a lot from that in putting the different things the firms would be evaluated on and it was a strict process. Now, if we have a specific niche need, we will do an RFP for that — one of the areas that is developing is cybersecurity and lots of firms say they have that and doing an RFP lets you drill down. The U.S. has a lot of experience in the area and we’ve been able to learn from that.

I think we have a good relationship with the firms we deal with. I try to be very transparent in saying “I don’t want to spend a lot of money on this . . . or I have no budget so how can you help me do this efficiently?” The lawyers are tremendously responsive — they understand their areas and some areas don’t justify the cost. If there’s a new high-level contract that is very Canadian, we might get support from the U.S., but we will also have to retain a lawyer here who has a lot of experience in the area. We’ve on occasion hired a partner and asked that one of our in-house lawyers be the junior working on the file. They have been very open to that. We’ve been transparent in saying it will save us some money — it’s your expertise we need. We will learn through the process as well and that’s something that’s worked really well for us. We’re buying their expertise and paying them by the hour for it, but they have the opportunity to get familiar with one of those specialty contracts. When we thought of it, we weren’t sure how it would go over, but when we suggested it, they said why not.

 

Photo: Valnet Inc.

David Felicissimo
General counsel

Valnet Inc.

1. What business challenges face your company and legal team for 2018?

Our company is essentially a content creator/online publisher via its websites and YouTube Channels, which has grown 100 per cent year on year including in size (over 100 employees in less than five years) and reach (collectively over one billion monthly views). With this unprecedented growth comes many challenges. Some typically associated to growth [are]: employee matters; communication with various departments; understanding new business units; and some unique challenges such as IP issues related to our larger audience (copycat channels, licensing needs, etc). Also, we need to understand new initiatives and policies set forth by our partners such as Google, Facebook or YouTube.   

Case in point, in Q4, YouTube decided it would strictly monitor content related to kids, (reality shows featuring kids) on its channels (due to both pressure from advertisers and some media pressure) that meant almost overnight disabling thousands of channels. This at a time when we were developing two kids-related channels. On very short notice, we [the legal team] had to quickly understand YouTube’s new policies, audit all of our existing videos to determine which may be at risk of being demonetized by YouTube’s new initiatives and create internal guidelines for our video editors. Thankfully, YouTube’s actions had little bearing on our video division since we have a multitude of channels in different verticals, but it is an example of a change that can happen “overnight” and the need for a legal team that needs to constantly be at the forefront. 

[The year] 2018 will continue to be a major year for Valnet. At a time when online publishing businesses such as BuzzFeed are announcing job cuts and a delay of their Initial Public Offering, we are starting the year with 25 new hires and taking on additional office space after moving into 25,000 square feet merely one year ago.

When we began, we were strictly a web publishing company operating websites in various verticals. Three years later, we launched our video team and YouTube channels. Today, our channels are some of the most viewed on YouTube. The constant need to tweak and better our platform and keep up with consumer habits means a very changing landscape and a legal team that needs to keep up and understand the platforms.

2. What are your top priorities for the business units you serve when it comes to regulatory and compliance matters?

The majority of our audience and partners [digital advertising] are U.S. based. As such, we have very unique matters we deal with that are not atypical of other general counsel’s/legal departments in Canada. Our team’s top priority is protecting and managing our intellectual property matters. We publish upwards of 130 articles a day across our websites, which does not include news articles that number about 100, with thousands of freelance writers and 84 videos per day across all channels. In this context, IP matters are critical and we manage it all from creation to publication. With other teams such as our user acquisition team and ad operations, keeping up with the ever-changing regulatory policies/changes of Facebook [and] Google is equally critical.     

 3. Is cybersecurity a priority for your department? In what way?

Cybersecurity is not a priority, but it is important. We have had hacking attempts in the past, which we were able to deal with/avoid. Given our size and scale, we become a “rewarding target” for hackers looking to take down large sites. We continually monitor ways to better our security,  including response time and solutions. Internally, we took measures to better protect our own security and re-evaluate these measures twice a year.Thankfully, our team is made up of some of the most talented developers in Montreal who “keep us safe.”

4. What is your philosophy to managing the in-house legal team?

Many of our colleagues will tell you we are “firefighters” constantly putting out the proverbial fire. At times, an issue may not be purely a legal issue, but our “wisdom” instills a sense of comfort. As such, I realized that this leaves little room to develop the actual department. In response, we regularly think of ways to proactively deal with issues as they arise and processes to better manage them. 

Ultimately, I believe people want to be part of something and in our company the opportunity to do so is ripe. Rather than micro-manage, I aim to give the team more and more responsibilities to both feel part of the bigger picture and take work off my plate so I can add value on a higher level. The first step in doing this is understanding the business from A to Z. For that reason, all new hires will spend time in business unit meetings as a passive participant and follow up with any questions to the team lead. Further down the line, we will have a lunch and learn presentation to departments on various topics (intellectual property: copyrights) for an open discussion.

At the end of the day, if you only see things from a legal point of view, you won’t add much value when it comes time to finding solutions or even advising. The more our team understands our business and issues other departments face, the better they can advise and be part of the larger goal.

Lastly, our recent growth has meant more hires; but before doing so, we ask ourselves whether a new hire will take up more of our time or free it up. 

5. How do you approach managing the work you do with external counsel?

In Canada, we have worked with the same large national law firm for virtually all matters for close to 10 years. This is not by accident. We worked with four Canadian firms before them for short periods. At the end of the day, the service, response time and how well they know your business is critical to the relationship. In reaching out to our external counsel, I am completely confident in their proposals being straightforward, cost-effective and on point. 

Outside of Canada is a bit trickier. We recently created a subsidiary company, Valsoft Corporation, that acquires vertical market software companies in North America. Unlike Valnet, we have a decentralized approach and currently have four subsidiary offices we acquired. This means mandating and working with outside counsel in various states and Europe. I am very transparent in both my budget proposals and expectations. The deals are too small and scattered to really think get into RFP; however, fee arrangements are becoming the norm. Our company has enough of a reputation for firms to understand the size our company will become. Those looking for a long-term partnership know it is a unique opportunity to work with a growing player and possible leader in various verticals. This has worked out very well and we have cemented fantastic relationships with firms in Florida and New Hampshire.

 

Photo: Meg Energy

Grant Borbridge
Senior vice president legal & general counsel

MEG Energy
Size of department:
Seven lawyers
Time in the role: Five years

1. What business challenges face your company and legal team for 2018?

Our biggest current challenge is that following a full three years of low commodity prices that brought the industry to a halt, the oil and gas industry is finally seeing some price stability. However, this brings with it expectations from some stakeholders that they will see immediate growth and corresponding improved operating and financial performance by companies.

Given continuing commodity price uncertainty, the challenge is to manage that growth carefully to ensure industry participants implement a reasonable ramp-up and don’t get ahead of the commodity price-driven revenue.

There was a transition a few months ago where investors suddenly turned themselves to “What do you have for growth capital, what is your capital spending going to be in 2018 and what sort of meaningful growth can you provide?” 

The problem with that is in conventional drilling for oil and gas that’s something that can be done in a six- to eight-month turnaround, typically, but in more capital-intensive portions of the industry such as our oilsands project MEG is involved in, it isn’t that kind of turnaround. We’ve found some ways to provide some growth on a reasonably prompt basis, but that’s not a widespread opportunity.

Sometimes, it actually requires the construction of processing facilities and the turnaround is longer than just doing it within the current fiscal year. But that doesn’t keep those investors from wanting to see the growth and measuring companies against each other dependent upon who can provide growth the soonest.

A second significant challenge is managing increasing regulatory requirements for our industry, with seemingly all levels of government and also regulators of various stripes increasing their respective oversight of the industry. Not unjustifiably, there has been a need for improved regulation in some areas.

2. What are your top priorities for the business units you serve when it comes to regulatory and compliance matters?

Both as a company and as an industry, there is a drive toward being more open and transparent about the actual environmental impacts of our businesses, which in part is being fuelled by increased regulatory requirements and expanding disclosure demands.

It has become apparent that the industry as a whole has not done a very good job of explaining its business, the benefits it provides locally and nationally and the important technical advances that have been made in recent years that have greatly reduced and continue to reduce the environmental impact of the industry. As a result, the industry has become a lightning rod for the concerns voiced by those with unfavourable views of the industry.

To accomplish greater disclosure, however, requires material changes internal to the company. First, it requires a thorough collection, organization and assembly of data necessary to provide more fulsome disclosure. Some of that data may not have been publicly available in prior years and may require significant discussion to determine the advantages and risks of such disclosure, and then how to make the disclosure understandable for non-experts. Second, it requires a change in mindset to foster a willingness to talk not only about successes but, importantly, about the challenges facing the company and the industry. In some cases, that shift in mindset may only be achieved with strong encouragement from the board and/or senior management.  

3. Is cybersecurity a priority for your department?

Cybersecurity is a priority for the board of directors, company management and certainly for departments such as the finance and legal teams. However, oversight of the preventative strategy and issue response plans are not in the hands of any one department but are instead managed by a multi-disciplinary team.  

We don’t have the same exposure that other businesses would such as retailers in this area.

4. What is your philosophy to managing the in-house legal team?

I’m quite pleased to say we were able to keep our entire legal team intact over the downturn. We have a desire to hire a person, probably a five- or six-year call, this spring. We’re really pleased we were able to keep the entire team, and adding another person will take our department to eight lawyers and give us additional coverage in a particular area.

But it’s not just about keeping people during that tough time where there wasn’t as much career advancement or new titles or positions being handed out as easily. At those times, it’s also about trying to keep people in a mode they feel their career is advancing and growing and they as an individual are advancing. Only time will tell if we were successful in doing that. We tried to keep people busy with training and dividing duties up so everyone got some of the more advanced work to do. Everyone also had to do some of the less attractive work. There weren’t a lot of raises or bonuses — bonuses have been reduced massively and so there’s a lot of that that creates a bit of discontent, but for the most part I think people were happy to be employed and to be relatively busy. That was good.

When the industry gets busy, then opportunities arise, and if people believe the opportunities elsewhere are stronger, then some players in the industry will lose some people.

My philosophy to managing an in-house legal team is to trust individuals to manage themselves to the extent that doing so makes sense. MEG’s legal team is a group of driven professionals who want to not only do well but also be seen as doing well, which means they don’t need to be micro-managed. However, that intention must be balanced against a need to provide assistance and guidance where that is helpful, and for the GC to also be well informed regarding projects being performed and issues that may arise. In my view, this can most often be accomplished through information flow from team members to the GC, rather than close-quarter oversight.   

5. How do you approach managing the work you do with external counsel?

We haven’t done a lot of requests for proposals. We have three law firms we use on a regular basis for a fair amount of work. We tend to use no fewer than three firms so we can avoid any conflicts that may arise.

Recently, [we] went to market for bid on a specialized intellectual property matter and surprisingly had three national firms come back to us in generally the same price range. They had local people aligned for the matter as well as expertise in Toronto and Ottawa where there is a lot of IP expertise.

We have also had to use some U.S.-based firms for things such as external advice for independent board members, but it’s a situation where we pay the fee for the outside party. I think in those cases going forward we will be asking the firms involved to follow a more set-fee structure.