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Fostering Free Enterprise In The Courtroom

New England In-House recently caught up with Andrew R. Grainger, the president of the New England Legal Foundation, a non-profit think tank devoted to fostering free enterprise. Founded in 1977, NELF devotes a considerable portion of time to furthering its goals in the courtroom, including filing amicus briefs in a wide range of business cases. Grainger spent a few moments discussing with Paul Boynton of New England In-House some of the major legal issues confronting in-house attorneys in New England.

Q. Explain how the New England Legal Foundation works with and assists in-house counsel?

A. The foundation acts as a resource in several respects. Our most visible support is in the form of amicus briefs in state and federal appellate courts. We also strategize and brainstorm cases, even if we’re not filing a brief. This is especially helpful to smaller or one-person law departments, or anyone with constrained resources. Because we are in continual contact with business lawyers throughout New England, we are often able to connect corporate counsel who are dealing with similar issues in different states, but may not be aware of it. NELF is also a primary networking facility for in-house counsel through our state advisory councils that meet quarterly throughout New England to compare cases and discuss emerging issues.

Q. What are some of the major trends and case law developments that New England in-house attorneys should be aware of nationally and regionally, and how is NELF addressing those issues?

A At the moment we have our eye on some recent developments as well as some that have been dominant in the past year. Five issues come to mind immediately.

Class actions continue to be a problem. They tend to tax corporate resources without necessarily compensating plaintiffs who have actually suffered harm. The most recent mutation of this phenomenon is the use of class action complaints in arbitration. NELF has just filed a brief on this issue with the U.S. Supreme Court in the Green Tree Financial case.

The use of confidentiality in settlement agreements is under attack throughout the country. What used to be commonly accepted boilerplate is now a hot topic, with a number of legislatures and courts acting to limit or eliminate such clauses. TheFirestone/Bridgestone tire defects and, even more dramatically, the Catholic Church scandal, has brought this to the front burner. NELF is presenting a breakfast debate on this topic at the Boston College Club on April 30. Our general counsel, Christine Hughes, is preparing a White Paper to be released with the breakfast event. This topic will challenge us to find the right balance between protecting the public and preserving individual rights to privacy and freedom of contract.

Corporate free speech is an issue that just won’t go away. The concept that commercial speech should receive diminished First Amendment protection is receiving constant review. We have just filed a brief with the U.S. Supreme Court in the Nike case, in which Nike was held to be potentially liable in California for asserting that critics were misrepresenting its overseas labor practices.

Asbestos liability continues to be a problem, and is now an issue for businesses that may have had little or nothing to do with the manufacture or sale of asbestos insulation. We are watching attempts to undermine existing settlements in this area. Additionally, there is a movement to extend liability to any party that conceivably may have used asbestos in construction, or owned buildings in which it was used long before anyone was aware of the health consequences.

And employment and labor relations are a dynamic area at the moment. The economic downturn and technological advance are both driving changes in the way people work, and in the legal nature of relationships formed with employers. Our website, www.nelfonline.org, covers our cases both by legal subject and geography. Issues such as confidentiality are covered under “news and events” and I’d encourage in-house counsel to visit us online from time to time.

Q. NELF’s board of directors is partly comprised of various in-house attorneys. What do they bring to the table in helping your group fulfill its mission?

A. NELF is fortunate to have a distinguished and committed board of directors. The board is a large portion of our intellectual capital, the remainder, of course, is provided by our excellent staff headed by Christine Hughes. The board provides a constant stream of ideas and issues, reviews cases proposed by the staff, selects topics and speakers for our annual CEO Forum and other events such as the breakfast meeting I mentioned. They provide financial support and development expertise and support the organization in more ways than I can count.

Q. Other than serving on the board of directors, how can in-house attorneys work with NELF on issues that concern them?

A. Pick up the phone or send us an e-mail. Our mission is to promote a balanced environment in which the market can provide the greatest good for the greatest number. If in-house attorneys are facing a problem that gives us an opportunity to argue from a broader context, we’d very much like to hear about it. We recognize that an unregulated market can run roughshod over environmental and social concerns, but we also believe that in many cases the private sector will produce greater social good than a regulatory body. The trick is finding the balance, and we are always looking for the issues that let us do that.

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