Category: Features

In its Global Gender Gap Report 2017, The World Economic Forum (WEF) states that female leadership stands at less than 50% in all industries, based on an analysis of LinkedIn membership in 12 sectors from more than 100 countries.

The WEF’s analysis also found that industry sectors with the highest representation of women in leadership positions tended to recruit more women leaders, hinting not only at the talismanic power of role models, but also the importance of leveraging professional prominence to create change.

The success stories of the Finnegan partners and their general counsel counterparts we spoke to are all the more remarkable, as many of these women are pioneers not only in business and law, but also science – a field notoriously underpopulated by women. They reflect on effectively navigating the traditionally male-led legal world as a trusted advisor, a leader – and as a woman.

The most successful leaders are, by definition, trailblazers. While a manager delivers a vision, a leader has to create that vision – setting goals, strategies and boundaries, but then stepping back and trusting team members to deliver. Through our conversations, successful leadership often emerged as a willingness to take ownership, the guts and judgement to make hard decisions, as well as the integrity to carry the can.

‘Sometimes it can be very difficult to be the one to make a hard call, but the leader’s job, among many, is to be the one who takes responsibility for the ultimate direction of the team, be brave enough to do it, and then brave enough to stick with it, even in the face of potential adversity,’ says Erika Arner, partner at Finnegan and president of the PTAB (Patent Trial and Appeal Board) Bar Association.

Nurture by nature?

The narrative surrounding successful leadership has been defined by the leaders themselves – which have been primarily men. As more women are gaining the opportunity to develop leadership skills and take leadership positions, old assumptions around what a leader should be are being tested, and opportunities to find new ways of leading are being embraced.

If a certain steely tenacity is inevitable among effective leaders, what often counters that quality is the capacity to nurture team members and provide support when the going gets tough. Interestingly, a few of our interviewees ascribed success in this area among female leaders to a sense of maternalism, but given the fact that all the women we spoke to believed that the challenges facing leaders remain the same regardless of gender, perhaps successful male leaders also benefit from this traditionally ‘female’ quality.

Elizabeth Ferrill, a partner in the firm’s DC office, spent five years in the US Air Force before becoming a lawyer, and her military training has played a formative role in her understanding of leadership.

‘The phrase we used to say was, “The leader eats last and sleeps last.” Which means that you take care of your people, and you make sure that they have everything that they need to be successful,’ she explains.

‘I think that that means you really have to be organised, and you have to make sure that you have the right type of support around you, to make sure that you can provide an organised vision to the people that work for you.’

Stubborn adherence to archetypical impressions of what a good leader looks like also runs counter to the idea that leadership must come from a place of authenticity – not only in order to engage others, but also in order to function effectively.

‘There was a woman who was in-house at a large corporation in Atlanta, which was a client of the firm. I got to meet her very early in my career, and she was a great champion for me. She worked in the telecommunications industry, which was very much male-dominated, and she had managed to be very successful, but she was true to herself at the same time – she didn’t try to become one of the guys,’ recalls Atlanta-based partner Virginia Carron.

‘That was eye-opening to me in many ways because, at the time, most of the women leaders that I saw had changed their style somewhat to fit in and to be effective in the positions they were in, but you could tell once you knew them outside of that role that it wasn’t really their authentic self. I felt like it gave me a great example to try to adopt that type of leadership myself.’

Adds DC-based partner Mareesa Frederick: ‘The key is not everyone can lead the same way – so I am careful not to adopt ways that are inconsistent with who I am as a person.’

The specifics of being a female leader in law

While the ability to navigate group dynamics is an important skill for leaders to learn and develop regardless of gender, there was a sense in our conversations that it may unfortunately be more likely to be tested if it is a female leading the room than a male. But, while navigating unconscious bias can be frustrating it may provide the opportunity to hone vital listening skills that may otherwise never be challenged.

‘I think sometimes for women you have to watch your audience a little bit in terms of if you come across a little bit too strong – sometimes that’s an issue for the audience, depending on who it is,’ says Susan Denigan, chief legal officer of Nestlé Purina PetCare North America.

‘You have to weigh who you’re talking to and listen to who you’re talking to in order to make sure your message is being delivered the way you want it to be delivered. You’re not a real leader if nobody’s listening.’

Leadership in a legal context is unique in its own right. Despite many universal characteristics of good leadership, success in the legal profession has additional components, courtesy of the exacting technical proficiency that lawyers must demonstrate. Those in-house must also marry that expertise with corporate savvy, and a further role as company conscience.

‘We’re often viewed as just trying to find the legal boundaries of things that we do. But we also, I think, can bring ethics to the conversation, to make sure we’re doing the right thing, and not just the legal thing,’ says Stacey Antar, general counsel for Ferring Pharmaceuticals.

But the legal profession – particularly within law firms, where most lawyers begin their careers – is also unusual in being less purposeful than other sectors in developing non-legal skills. The law is an arena where leaders progress through their technical prowess as much as their softer skills.

‘I grew up in a law firm, like a lot of people do – and you become a leader by default typically,’ says Kristin Westgard, deputy general counsel IP and litigation at Koch Industries.

‘You start growing in your responsibilities and then you’re supervising other people on a case as you move up. But you may not be given formal training on how to be a leader or how to effectively lead a team. Now that I’m in-house with a corporation, we’re part of other leadership training that we do throughout the organisation.’

Despite a relative absence of formal leadership training for law firm lawyers, there are, of course, other avenues that good leaders can and do take in order to develop their skills – such as reading books or attending classes to study the topic. But many of our leaders agreed that learning by doing can be a more effective means of acquiring the requisite skills, while still actively seeking out opportunities to grow.

‘It’s not an academic exercise. It’s not like learning how to do things in law school. It’s getting the opportunity to either lead a small team, or lead a part of a case or lead an organisation, or even a section of an organisation,’ says partner Dori Hines, who leads Finnegan’s electrical and computer technology practice group.

Role models

The leaders we spoke to all credit the role models, mentors and sponsors they have worked with over the course of their careers with moulding them into the leaders they are today, particularly (although not exclusively) fellow female leaders. And, they said, there is no need to leave meeting these inspirational individuals to chance if opportunity doesn’t throw them your way.

‘I think if you’re a woman and you don’t have anyone in your organisation to look up to, you can seek out female leaders in other organisations. For example, if you don’t have a woman leader in your company, you perhaps could join a community organisation that has female leadership,’ says Ferrill.

There are three types of luminary that our leaders cited – the role model, the mentor, and the champion. And while being a role model might simply be something thrust upon a person in the leadership spotlight, those in such a position can nevertheless be intentional about the influence they have on younger or less senior colleagues, particularly as a major barrier for budding female leaders in organisations is the lack of female leaders in place to aspire to and emulate.

‘I think one of the most important things that women leaders can do to foster others, is simply being in the room. I attended a conference recently and when I was picking out what I was going wear each day, I intentionally chose bright colours. I knew that when there were younger women in the room and they were looking around, they would see a sea of navy and black suits, and possibly not be able to tell how many women were there, but I wanted them to see there are other women here in the room,’ says Arner.

‘I try and make sure that, whenever I’m on a panel at a conference, there are other women on the panel so that other younger, aspiring leaders see themselves in those roles, and can envision it. In addition to giving them that view, I think it’s also important for women to be in the room, because we are often the ones who can raise our hand if there is some unconscious bias going on. I think being present is the most important thing we can do.’

Good mentors have played a similarly indispensable role in the professional lives of the women we spoke to, providing direct opportunities (occasionally a nudge) and guidance – without clipping the wings of the mentee.

‘Women need mentors. Good mentors help you figure out how to navigate tricky work issues, they empower you, and give you advice on how to grow professionally and personally,’ says Frederick.

But mentors have a broader impact than just the individual careers they support, and in addition to seeking out opportunities for personal growth, successful leaders often feel honour-bound to just as actively identify openings for influencing those lower down the chain, with knock-on effects throughout the organisation – and beyond.

‘Mentors also help to develop the pipeline to leadership within a firm. When younger attorneys have relationships with more senior attorneys at a firm, they feel valued and part of the community. This ultimately improves retention and results in more women attaining leadership roles,’ explains Frederick.

‘Mentorship and sponsorship does not happen just within an organisation – women attorneys should look for opportunities to mentor someone in law school, at another firm, or even a high school student. I recall helping out in a moot court competition for girls from a local high school. All the girls did a great job thinking up arguments and were really engaged in the competition. I made sure to let them each know how impressed I was with every single one of them. One of them asked me whether I thought she could be a lawyer one day. I said absolutely – the expression on her face showed that she was now considering a path that had perhaps never crossed her mind before. So even something as simple as offering words of encouragement to a young girl could lay the foundation for a budding young leader.’

There are also champions, those with more skin in the game, who stick their necks out to develop others in whom they have made a real investment, even to the point of pushing them to take opportunities they might not have thought to seek themselves.

The legal world is often unstructured in terms of one-to-one leadership development, largely leaving it up to individuals to take the initiative, either as mentees or mentors. This can have mixed consequences, because although an assigned relationship can fail if it feels artificial, an absence of such schemes could result in talent falling through the cracks.

‘I think that champions can be grown in a number of different ways inside a legal organisation or perhaps even just generally. I think that some of it can be structured, and it needs to be at some level, or it might go undone,’ says Carron.

‘On the other hand, it’s difficult to pair two women together or just a leader and a non-leader, or a younger person or less experienced person and say, “This is going to be your champion,” because so much of it has to do with the personal investment of time – and it’s always much easier to spend time and energy on somebody whose company you enjoy.’

Inviting others to meetings, providing hands-on experience – ‘I’m going to give you enough rope,’ Hines was told by a former partner – were all agreed to motivate team members and provide insight into life on the next rung up. But to ensure a truly level playing field, Carron and others contend that a certain amount of structure is necessary – whether that is through mentoring assignments or the process of development itself.

‘A lot of people relate to people who remind them of themselves, and I think it’s important to try and remember that you need to cast a wide net and give a lot of people opportunities,’ says Washington DC-based partner, Linda Wadler.

‘I’ve found that it’s not always the people who are the top performers at a junior level who end up being the leaders. Some people are late bloomers, some people plateau, and so I think it’s really important to give opportunities to people to take responsibility and step up to the next level as broadly as you can.’

All in the mind?

Although leadership is usually understood as a task, it is also a mindset. An essential skill in an effective leader is the ability to be reflective over the entire course of a career. A key component in any kind of success is the willingness (and capacity for self-forgiveness) to risk failure, but a leader could be doomed to repeat mistakes if they are unable to honestly reflect on and absorb the learnings from missteps – and then share them.

‘A lot of the women leaders that I’ve interviewed or spent time with, when asked who was the first person to tell you no, where did you get that first discouragement that you had to overcome, so many say, “It was from myself”,’ says Arner.

‘I think perhaps women, a little bit more than men, tend to have a bit of self-doubt that causes them, at least initially, to not raise their hand for an opportunity, or to not feel that they are ready for a job that they really are ready for. Getting out of your own way is one of the lessons that we learn as we age.’

‘I also think it’s because we’ve heard it so many times, although maybe not directly. I don’t remember anyone coming up to me saying, “You could never be a leader”,’ adds Carron.

‘It wasn’t like that. It was watching choices and opportunities come along and be largely given to males who I thought didn’t have superior skills to the ones I had.’

Is enough being done?

The input of others, particularly other women, is crucial to the progress being made across the legal profession, and this was an obligation keenly felt by the women we spoke to, who were all eager to extend a helping hand to those on the rungs below. But should the responsibility of elevating and empowering potential female leaders rest solely on the shoulders of other women? Of course not.

‘I think one really important thing is for more men to see developing the female talent in their organisations as not just the responsibility of other female leaders. We need every leader to recognise and encourage good talent, and we need to develop all the talent we have,’ says Antar.

Adds Hines: ‘Where I think additional work could be done is getting men more actively involved, engaged, and understanding of the benefits of having women in leadership roles, and that having women in leadership roles isn’t a zero-sum game. Having a woman leader doesn’t mean that it’s a loss for men.’

Although the challenges facing leaders are often the same no matter who is in the post, there are additional factors that pioneering women often find themselves taking into consideration when conducting themselves in their roles – particularly an awareness that they might be the first female leader the team had experienced.

‘I think when I first entered leadership positions, I second-guessed myself a lot. I needed to be able to be who I was and feel okay with that. I needed to be able to recognise that I wasn’t going to be accepted by everyone. And part of it was because of my gender, part of it was because I was a change,’ says Carron.

Achieving that parity in numbers with male counterparts is an ongoing journey for women in law, as well as outside, and there are complex factors still to address along the entire pipeline before that change will occur. But budding women leaders can be grateful to those who have stepped up, risen to the leadership challenge, and then, both by virtue of simply serving as a role model demonstrating the benefits of diverse leadership, and becoming an empowering figure by extending the hand to others, widened the horizon for women in law.

Reggie Davis knows what it takes to pull off a large-scale initial public offering (IPO). In 2011, he guided gaming giant Zynga from private to public in what was – at the time – the third-largest tech IPO in Silicon Valley history.

It was his work on that project which put him on the radar of electronic signature provider DocuSign, who since 2012 had made murmurs about an impending public offering. Hired as DocuSign’s chief legal, privacy and compliance officer in 2014, it would be four years before DocuSign saw the NASDAQ, when they rung the opening bell at the New York Stock Exchange and officially commenced trading last April.

Between the lessons learned from taking Zynga public, to the four years spent readying DocuSign for the same rigorous process, Davis’ perspective on how in-house counsel should approach a proposed IPO – and how such a feat is best executed – is one as unique as it is valuable.

The Zynga Chapter

Zynga was founded in 2007 and is the author of such social media timesinks as FarmVille and Zynga Poker. Zynga wasn’t your average games company: its integration in the (relatively) early phases of Facebook allowed it to hit the mainstream in a way few expected. Take FarmVille, for example, which was boasting 10,000,000 daily active users less than two months after launch.

By the time Zynga formally filed its intention to go public with the US Securities and Exchange Commission in 2011, it was profitable and still growing at a fast pace. It came as a surprise, then, that the IPO did not perform to expectations. When a company goes public, it is relying on a large jump in its stock price caused by the limited amounts of shares initially released to the public. No such jump happened. Zynga raised a billion dollars from the exercise, with shares priced at a modest $10 at the beginning of the day, and closed at a disappointing $9.75. For a tech company enjoying hype, growth and profit, Zynga falling flat was unusual.

As with any IPO, Zynga was beholden to the whims of the market. Zynga’s revenue was overwhelmingly tied to Facebook and its ability to sell virtual items for real currency to its userbase at a sustained rate. This made potential investors uneasy. For Davis, though, he’d successfully taken a company public with him as the general counsel.

Sign here

The next step in Davis’ career was a move to another San Francisco tech company with a lot of buzz behind it: electronic signature provider DocuSign.

‘The expectation of Keith Krach, who was our chairman of the board and CEO at the time, was: we want you to come in and help build our San Francisco centre (because we’d moved our corporate offices from Seattle down to San Francisco), we want to build a world-class San Francisco-centred legal team and we want to get this company ready to go public,’ says Davis.

‘That was basically my experience both at Zynga, before taking the company public, and prior to that, working for a lot of years at Yahoo!, where we’d just gone public when I arrived, but then still had a lot of growth after that. To really grow and develop and go from a small, Silicon Valley start-up to something that’s sustainable and people had a lot of trust and confidence in – that was the expectation.’

Arriving in 2014, Davis embarked on a four-year journey to once again transform a private technology company into a public one. And, unlike with Zynga, DocuSign’s IPO was considered a resounding success – not just in terms of the work of Davis and his legal team, but financially too. Posting an initial offering price of $29, the stock jumped 37% by the end of the first day, bringing the company to a valuation of over $6bn.

‘When I joined, to be honest, we weren’t in a great place to go public,’ Davis admits. ‘The trick is, when you have a small start-up that’s doing well, how do you continue to do business very well and not put too much process and procedure in place that slows down the business? At the same time, when a business is doing really well, how do you put in processes and procedures that can help accelerate the business and actually make it something that lasts? That’s a tricky balance to know, because as a lawyer, you can come in and demand that that a lot of things be done in order to make yourself publicly available and then be publicly traded – but then that’s not necessarily in the best interests of the business right out of the box. Assessing that was a lot of the work.’

General Public

The colossal task of taking a company public touches many different functions within the business: the finance team, the board, the chief executive and, of course, the legal team. While the general counsel is usually characterised as the guiding hand of the business, taking a business through an IPO – likely to be one of the most turbulent and testing times for a company, particularly one in it’s relative infancy – presents a host of new challenges.

‘In essence, you become a little bit of an air traffic controller. You spend a lot of time working with the finance teams, working with the PR teams, working with the business teams, working with the engineering teams, everybody really. Ultimately, you’re looking to get an understanding of what does the company actually do, then figuring out how to describe all of that in a legal document that gets filed with the government, and can be read and reviewed by all of the potential buyers of the company. There are legal requirements around that document, which makes the role of the legal team crucial,’ says Davis.

‘The reality is that during that period, you spend a lot of time in the drafting rooms with all of the folks drafting the different sections. You do multiple, multiple revisions of the document to make sure that everybody’s comfortable with it and then, depending on what kind of issues you get, you spend time talking to the folks at the Securities and Exchange Commission (SEC), you spend a lot of time around the strategy – essentially how you position information, you help the financial team and the CFO understand what are the key and core metrics that we’re going to now start measuring the company by.’

Going public necessitates a shift in priorities throughout the business. A private company may once have spent its life driven by a multifarious range of incentives and drives: fast growth, pervasive marketing and an insatiable desire to grow the customer base. Once brought into the public sphere, there are investors and shareholders to answer to – which invariably means success measured by new metrics. Chiefly, those are monetary. A broad, growing userbase and positive reputation will always be important but, once public, those things are expected to be translated into revenue and profit.

‘I think that clearly a strong finance team is key. I think we have a very strong finance team at DocuSign, but that wasn’t always the case. At the end of the day, I think having a strong business that’s predictable is the key, right? You’ve got to have a predictable business, because once you’re public, you’re setting guidance and expectations and you’ve got to have a very predictable revenue stream,’ explains Davis.

‘I think we were in peak growth mode, but I don’t know if we had the same level of predictability that you have over time, to measure. So that was clearly a gaining item for us to make the decision to go public – one, that we needed to have a strong business and two, that we had to be predictable from a finance perspective.’

Uniquely Tech

Much has been written about the wild west of Silicon Valley tech start-ups. Romantic visions of unbound entrepreneurship aside, the tech start-up is not your normal company. Facebook started in the dorm room of Mark Zuckerberg and to say that there is a lot of daylight between those humble beginnings and the corporate colossus we see today would be an understatement. One person becomes two, who then become ten, with the more rigid staples of big corporations being slowly patched on as the company grows. By the time an in-house counsel is added into the mix, the company can often be caught in a state of flux, further along than two programmers sitting in a basement, but not quite at full maturation. This is the setting in which a company will be taken public.

‘We saw the same thing at Zynga and we saw the same thing at Yahoo!. You see that a lot at start-up companies, the people that you have who initially are there when the company is being formed and proving its concept and proving its business, aren’t necessarily the same level of executives that you need to actually take it public. So there’s always going to be, at least in my experience, challenges around whether you have the right level of executive at the company at this point in time, to take you public.’

Davis says that his prior experience with Zynga made things easier this time around, in more ways than one.

‘Zynga was my first time being a general counsel, so I learned a lot in that regard. One of the first things that I figured out at Zynga going public is that we hadn’t done as much of the rigorous work around our equity, making sure that it was all ticked off – that everything we thought we’d tracked and we thought we’d issued was in fact when it landed,’ says Davis.

‘So one of the first things I did when I got to DocuSign was to have a complete audit of our equity and drove that process. Because we were a small little start-up, people were coming and going – you’d have people that were there a year or less and you’ve given them equity. Did you give them the right equity? Did you cancel it out if they left before a year and, if your equity vested, how much equity did you give out? Did you have good systems in place to track that carefully? It’s hard to do when you’re really small, at the level that you need to do it when you’re about to go public.’

An explosion of IPOs

DocuSign was just one of the latest in a continuing wave of technology start-ups finding maturity and going public. As the upstart disruptive companies began booming in the late 2000s, many are now big enough and well-run enough for those seeds to be harvested and the dividends to be paid. This might come as a surprise for those who last checked in on the market in 2016, when all was quiet on the IPO front.

Dropbox, Spotify, and Opera are among the many companies to go public in 2018. There would have been more, but political uncertainty in the United States caused many big names to push their IPO back and join the likes of Slack, Uber, Lyft and AirBnB in 2019. But 2019 has already seen its share of turmoil, with a persistent government shutdown threatening to stall the NASDAQ even further, together with the long-heralded recession many expect to hit within the next few years.

Aside from the bags of cash now lining the pockets of entrepreneurial idealists, this wave of IPOs has a secondary effect on the wider start-up ecosystem, particularly in Silicon Valley. The engineers and commercial heads lucky enough to enjoy a share of the wealth leave for new challenges, either joining early-stage tech companies or starting entirely new ones, kicking off new cycles of innovation and renewing the booming start-up and venture capitalist industries once more.

For those who stay with the company they’ve helped take public, the challenge for leadership is keeping everybody focused after the overwhelming excitement of ‘getting over the hump’ of an IPO.

‘We spent a lot of time trying not to build too much expectation with our employees. Saying to them, look: it’s kind of a one-day financing event – we need to come back tomorrow and work really hard and prove the trust and confidence that everybody has put in us in buying our stock. So I’m a big believer in: take advantage of and have a lot of fun on that day, but quickly get your teams focused on getting back to work. Because one of the concerns a lot of companies have is that your productivity goes down because everybody is just sitting there thinking about the stock price. Before you didn’t have one and now, after you go public, you’ve got a stock price and you can check it every minute of every day. And really trying to encourage people that’s not the most productive use of your time and that it’s actually not healthy to be looking at your stock all the time. Just put your head down and work hard. That’s always my message.’

These changing priorities and unexpected post-IPO staff turnover can make maintaining business continuity a challenge, especially when it comes to the post-IPO jungle into which a newly public corporation will emerge. This is even more so for the legal team, where intimate knowledge of the inner workings of the business and a general counsel’s familiarity with the competencies of their staff are both critical.

‘I’ve been really lucky in that regard. There are nine people at DocuSign who worked for me at Zynga, and of those nine, five of them worked with me at Yahoo!. So I’ve been quite lucky to have a core group of people that I’ve worked with at multiple companies that I trust, that I’ve brought over to be my core group, that we’ve been able to build and expand upon. So yeah, I did bring a lot from that experience. And also, just taking a company public, being a general counsel for a publicly traded company and what that brings, developing relationships with people at the SEC, the Federal Trade Commission and others, a lot of those skillsets helped and were transferable to DocuSign.’

Protesters outside your CEO’s home, your corporate brand tarnished in the courts by a test case, and your supply chains subjected to criticism on social media – all signs of a business on the receiving end of a corporate campaign.

Increasing in number, campaigns are organised by workers, NGOs, pressure groups or civil society groups. They focus on a company’s relationship with its stakeholders, asserting their demands while applying adverse reputational pressure. Campaigns are typically human rights, employment or environment-related, and are capable of turning public opinion against a business with alarming speed. Yet businesses can be slow to spot the risks inherent in their operating models or the signs of a corporate campaign, and therefore, tend to be slow to respond appropriately.

The new collective action?

According to Greenpeace, its 2018 campaign successfully organised concerned consumers to contact big tuna companies demanding higher standards and delivered ‘people powered progress on tuna’. The US grassroots ‘Fight for $15’ campaign, which targets low-wage workers across scores of worksites and multiple employers, is now global, and resulted in coordinated workplace strikes across different countries in October 2018.

Meanwhile, international trade union alliances are publicly reporting companies to the OECD for alleged breaches of human rights as part of union cross-border organising campaigns. The rise of mass employee walk-outs illustrates how individuals nursing grievances can crystallise into a new form of collective action through their digital interactions.

On first impressions, these campaigns are very different but they share many of the same tactics.

‘Campaigns typically use the internet and social media to organise and to give them cheap, fast and easy access to a company’s stakeholders around the world,’ says Tom Player, employment partner specialising in global corporate campaigns at Eversheds Sutherland.

‘This may be supplemented by physical protests and strikes typically aimed at maximising reputational and financial pressure. Campaigns will also harness soft and hard law where available.’

For Marc Meryon, head of industrial relations at Eversheds Sutherland, corporate campaigns are growing in labour disputes, supplementing or replacing union-organised action.

‘The global rise in peripheral and casual workers presents challenges to traditional union organising,’ he says.

‘Now we are seeing worker networks and new unions using social media to forge a common cause across disparate workers, politicians, the media and civil society, and using protests directed at employers with increasing success.’

Corporates risks – not just about brand value

The risk of damage to brand value, and to corporate reputation more broadly, is significant given that many corporate campaigns are directed at the media to maximise adverse publicity for the business involved. As protests go viral, media reports proliferate and stakeholder trust begins to ebb, campaigners know that values-led businesses will respond. Publicity is, therefore, a key tenet in their strategy.

Reputational degradation affects relationships, trust, goodwill and earnings. A mishandled corporate campaign can deepen the damage. Excellent communications plus strong governance, risk management and corporate preparedness are essential defensive tools against campaigns. As a result, amongst our clients we increasingly see the involvement of GCs and their legal departments to mitigate campaign risks.

However, even small enterprises operating completely away from the public gaze, and those businesses, big and small, less exposed to the power of social pressure can still be detrimentally affected by corporate campaigns. For example:

• Legal test cases brought by campaigners have changed the way the law applies more generally;
• Public support for single campaigns has led to broader legislative and regulatory changes;
• Brands concerned with protecting their supply chain reputation from human rights and environmental campaigns have demanded higher standards from their suppliers and business partners; and
• Campaigns have been used to resist restructuring or workforce casualisation, or to concede demands for better pay and conditions, either complementing strikes or in substitution for them.

Practical implications

No company wants to be on the wrong end of a corporate campaign and avoiding one in the first place is preferable in terms of time, cost and reputation. Whether organised by trade unions, NGOs or others, some campaigns could have been avoided had the business taken a more pro-active approach to risk management.

A key risk is supply chain management, and public opinion is increasingly intolerant of organisations apparently unwilling to take steps to prevent harm to workers and the environment in their supply chains. In the UK, France, California, Hong Kong, Australia and elsewhere, new corporate supply chain transparency obligations have added some legal ‘teeth’ and this trend is set to continue.

‘Recently, campaigners have sought, so far unsuccessfully, to use the California Transparency in Supply Chains Act to sue US firms for alleged labour abuses in overseas supply chains. Business must be prepared for litigation to be used as a campaigning tool in this way,’ says Scott McLaughlin, labour and employment litigator and partner at Eversheds Sutherland.

How should businesses prepare for a corporate campaign in the absence of an immediate threat? Prevention is better than a cure. As a minimum, assess and audit supply chain risks and the company’s approach to mitigating such risks; identify likely trigger points for campaigns; devise a mechanism to alert and to reassure stakeholders; ensure the availability of external resources – such as legal, security, public relations and IT – and have a plan for protecting the business’s reputation, premises and people.

Lessons learnt from previous corporate campaigns underline the need for one key senior executive to have responsibility for co-ordinating responses from across the company. Campaigns force companies to make key decisions under pressure; should they break ties with suppliers involved in alleged labour abuses; should they agree union recognition; should they defer restructuring and other change?

Such delicate decisions being taken under the spotlight of a campaign demonstrate the value of due diligence and planning now – in your own time and away from critical scrutiny.

Finally, the inevitable ethical risks and dilemmas involved highlight the importance of GCs and legal departments in helping to prepare for and respond to corporate campaigns, given their role as trusted advisers within a business.