However, I do not believe that I wrote anything that the record would prove wrong. Risk-averse is a subjective qualitative measure – appropriately qualified with “what I heard” and also appropriately-disclosed subjectivity in the second paragraph of my highlights at http://blogs.doublepositive.com/2008/04/05/leadscon-highlights/

I think we both agree about shades of gray.

Indeed, issues are not behind us with VCLK and Adteractive, but precedents are. Precedents draw much harder lines, which always make things much easier to navigate. Fear not for the writer’s company – he knows which side he’s on and which way to turn at every step.

“Fearful Handcuffs” were merely a metaphor. I trust you are an extraordinary inside counsel – a luxury DoublePositive has never enjoyed. Even so, we’ve become experts at scoring business risks – without doing so, there are seldom rewards.

I will say this… as a lawyer whose mantra is “making the deal happen,” you are my hero. :-)

Sincerely

Sean P. Fenlon
Sales and Hyper-growth Oriented CEO

It’s interesting that this is what the commenter took away from the Legal and Compliance panel, and it’s what I often hear from “sales and hyper-growth oriented CEO’s.” Unfortunately, he’s right about the fact that there are few hard and fast rules. But I’m not sure where he came up with the idea that the lawyers on this panel were “extremely risk averse.”

I for one talked about the role of in-house counsel being to look at “business first, and legal second,” and that it’s up to us to present an overview of the risks associated with any deal, and then to help our staff to make the deals happen. We always keep in mind the risk, as to not do so is irresponsible, but “making the deal happen” despite risks is the mantra from which we start.

Linda Goodman of The Goodman Law Firm spoke extensively about the role of outside counsel in advising on risk, but that the reality is that it’s important for executives to make “business decisions” about the acceptable level of risk and compliance based upon their own analysis. A lawyer’s job is to educate the other executives, and then let them balance risk and reward.

In my opinion the CEO who doesn’t want to know of the risk and considers himself or herself “fearfully handcuff[ed in his or her] deal-making and innovation with over-burdensome legal fears” is making some grave mistakes. Profitable companies can disappear overnight if they have the attitude that knowing the risks “fearfully handcuffs” them. While I don’t want our CEO “fearfully handcuffed” I feel it would be irresponsible for him not to know the risks inherent in our business, as they develop and change on a day to day basis. I work closely with our CEO to be sure he knows the risks, and to come up with creative methodologies to minimize them, while still making the great majority of deals happen. At least in our company, it’s rare for counsel, inside or out, to outright kill a deal. And on the rare occasion that it does happen, I can assure you, history has shown us that it’s a very good thing for the longevity of the company.

Finally, for the writer to say we’re “coming off a time” when industry stalwarts have been hit, seems to put the legal issues facing our industry in the past tense, as if these issues are somehow behind us. The reality is, the Florida OAG now has a multi-million dollar trust fund in place and is continuing its aggressive investigations, which will ultimately lead to further prosecutions. And they aren’t the only dog in the fight. The FTC is aggressively pursuing companies in our industry, and is putting the cross hairs on data collection, storage and transfer security. Again, while these are things that might “fearfully handcuff” the writer if he knew about them, failure to know might prevent him from protecting his own company.

Just thought I had to set the record straight for those who weren’t in attendance. The lawyers on this panel were not a risk-averse bunch. Smart players in the industry who intend to be here for the long term would do well to heed the advice of the panel and pay close attention to developing industry legal trends.