Championing Free Enterprise Principles In New England And Beyond

Thursday, July 1, 2004 - 01:00

The Editor interviews Paul Dacier, Senior Vice President and General Counsel, EMC Corporation and Chairman of the New England Legal Foundation (NELF), Andrew Grainger, NELF's President, Lisa Lopez, Vice President and General Counsel, Haemonetics Corporation and Maureen Scannell Bateman, Special Senior Counsel, Bank of America.

Editor: What issues confronting the New England business community led to creating NELF and how has its mission evolved?

Grainger: Since its creation, NELF has tackled systemic problems affecting the business community. As an example, in its first case, NELF filed an amicus brief in Bank of Boston v. Bellotti, in which the U.S. Supreme Court determined that a corporation has a first amendment right to comment publicly on a ballot initiative.

Lopez: The free market issues that challenge us today have migrated from the ones that were on the forefront when I first joined the NELF board 15 years ago. In the past, emphasis was on property rights and tax issues. Today we deal more with technology driven questions, employment issues and the balance between privacy and the open exchange of information. The collective position of the business community is not as clear or monolithic as in the past. NELF promotes thoughtful, high-level discourse of the long-term legal issues challenging our business community, so that we can develop a consensus that benefits our employers and clients.

Bateman: Over the years, NELF has developed a highly regarded expertise in appellate briefing. In the past year, NELF was active in 30 cases pending before state and federal courts, including 6 cases before the U.S. Supreme Court. A few examples include McQueen v. South Carolina Coastal Comm'n, in which NELF argued against extensions of the public trust doctrine beyond traditional mean high tide boundaries on which property owners had relied, Bazzle v. Greentree Financial Services in which we successfully opposed the presumption that an arbitration agreement which was silent on the issue of class action arbitration would allow a class to be certified, and Nike v. Kasky in which we joined efforts to restrict or eliminate the doctrine of "commercial speech" which limits the rights of businesses to free speech under the First Amendment.

Editor: What are your goals, Paul, as NELF's chairperson?

Dacier:One of my goals is to maintain NELF's effective representation of our business community in the appellate arena. I'd also like to address the large group of untapped general counsel in New England who should read and hear more about NELF.

NELF's outreach to the broader business community has been extended through periodic white papers and articles in such legal trade publications as Massachusetts Lawyers Weekly, such business magazines as Boston Business Journal and such general circulation newspapers as the Boston Globe and Portland Press Herald.

This past year, NELF recently hosted two highly successful breakfast conferences on issues of (1) the attack on confidentiality clauses in settlements; and (2) the changing legal environment of the workplace in the 21st century. NELF's flagship event, the CEO Forum, focused on the role of securities analysts and their utility (or lack thereof) in the functioning of capital markets. Total attendance of senior managers and corporate counsel at these three events exceeded 500.

I'd like to see us continue, and even expand, our success in this area.

Editor: NELF continues to champion the Business Litigation Session in Massachusetts and elsewhere. Why do corporate counsel applaud the BLS?

Grainger: Before the BLS, there was a perceived flight by businesses from the Commonwealth court system for two reasons. First, judges at the time were required to be generalists - handling criminal, real estate and myriad other matters, as well as antitrust, unfair trade practice, employment and other business cases. Second, the time required from filing to disposition was taking longer than businesses could afford to resolve their disputes.

A study of corporate counsel and commercial litigators spearheaded by NELF confirmed the success of the BLS in reducing the expense and time of litigation. Over 88 percent of the respondents said that they were extremely satisfied with the BLS. Over 80 percent said that, as a result of the BLS, they could give more and better legal service to their clients.

Dacier: Companies are using the BLS for a full range of commercial, corporate governance, employment, high-tech, real estate, construction and other business disputes. Over 1,000 cases have been brought to the BLS in Massachusetts, of which 600 have been disposed of by motion or by trial. As well as being replicated in Rhode Island, the BLS concept is now being considered in Maine.

Editor: How is NELF positioning itself to promote free enterprise challenges in the future?

Lopez: We have been able to take a much more holistic approach to examining issues affecting the business community than in the past. Fostering a more deliberative role, we provide a venue for balancing competing interests. We are convinced that because our board is very diverse in terms of industry sector, geography, gender and background, we will continue to grow as a robust organization in serving the business community.

Bateman: I'd like to join Lisa, Paul and Andrew in encouraging corporate counsel interested in promoting free enterprise to join our efforts. They can learn more about our mission, activities and resources by visiting our website, or contacting anyone at NELF headquarters in Boston.