Rigoletto produced by Manitoba Opera

Victor Hugo + Verdi = Rigoletto.  What grandeur; what art!  @ManitobaOpera ‘s current playing production is worth seeing. 

womanizer + jester + curse = great opera.  This is a treatise, without benefit of feminist sensibilities, on fickleness (at one point the Duke says “Women are as fickle as feathers in the wind.”) and infidelity (the aforementioned Duke’s!).  Actually very enjoyable.  Not a spoiler alert – the ending has all the joy of a Shakespearean tragedy!

And btw, who is Gilda’s mother?

"Ai Weiwei: Never Sorry" - an acclaimed documentary

“Ai Weiwei: Never Sorry” (@AWWNeverSorry) is a great documentary: expansive and touching.  It captures the essence of this Chinese artist: as an intellectual, his art and his activism (political, social, human rights).  He appears to remain an optimist notwithstanding the repression and his personal persecution by the Chinese authorities.  This movie shows that Ai Weiwei really gets freedom of expression – even when in exercising it, especially with the Chinese police, he puts his own personal safety at risk.  He has clearly mastered the use of the Internet, particularly Twitter (see @aiww if you can read Chinese), and used it to great effect to further his causes – much to the chagrin of the Chinese government – but also to our amusement! One of his mottoes sums up his active use of the digiverse: "Never retreat. Retweet."

This piece is well worth seeing.  At the time of my writing this it is being shown at Cinematheque in Winnipeg.

Hermanos Restaurant and Wine Bar

This restaurant has long been a favourite of mine, and I have been remiss in not posting about it. 

I absolutely love the energy in this historic space.  It is themed on South American dishes, and it does not disappoint.  Over the years since it opened I have found the staff consistently friendly and providing of excellent service.  The menu offers a full range of South American dishes but I have to say my favourites are the tapas style entrees.  I have to admit too that I have a passion for the Heart of Palm & Tomato Salad for lunch, unless I’m in the mood for one of their fantastic steak sandwiches and a glass of wine, the choices for which are extensive. I particularly like the malbecs and carmeneres.  The Chivito, a Uruguayan sandwich, is another popular choice.   

I’ve been to this restaurant when they have allowed charities to use the lounge to host a function and when they have had great jazz playing in the background.  It is very versatile, and a good corporate citizen.  All in all it is a wonderful place, and I’m glad to see it doing so well.  I highly recommend it.

Corrientes Argentine Pizzeria

I had a wonderful lunch today at Corrientes, which has been open for about a month.   It is associated with Hermanos, another Winnipeg restaurant which is a favourite of mine.

   

The surroundings are comfortable and the staff friendly and attentive.  Our server was very knowledgeable about the menu, as well as offering options which were available to suit my preferences. 

A delightful menu including salads, pizzas, empanadas, desserts and a full selection of coffees.  Of course there was a good wine selection too.  I had the Corrientes Mixta Salad, without the hard boiled eggs; as well as the Corrientes Delugo Thin Crust Pizza.  All good, except my inconsistency to pay attention to cholesterol eating by avoiding the eggs, but having a pizza covered in lovely provolone. 

This restaurant is well worth the visit.

Slippery Business Conduct?

“No corporation can afford the reputational risk of marketing unsuitable product or engaging in slippery business conduct.  Values and culture speak to both of these perils.”  The G30 Report Toward Effective Governance of Financial Institutions, 2011 said this with respect to financial institutions, but I substituted “corporation” as I think it is a more universal statement.  One could also add “unsuitable services”.  We see so many lapses in business ethics and governance these days; I can’t help but think that they could be avoided by having a proper environment of values and culture.

Interior Photos from Canadian Museum for Human Rights

I went on a tour of the interior of the Canadian Museum for Human Rights today.  It's clear from the outside that it is an architectural marvel.  But inside it is absolutely amazing too.  So many different designs, geometric shapes and interesting materials including from Spain and Mongolia.  It is going to be so spectacular when it is done!

All of the following photos, except the last one, were shot from the fourth level inside the CMHR.

1.  This view, as with many of the others, appealed to me because of the various lines and overlapping levels - in short the geometry of the view.  I felt too that there was quite a flow of the individual components that made up this patterned view.  All of this scaffolding will be removed when construction is complete.  The brown steel in the lower left is the shaft for two elevators.  This steel will eventually be painted out to match the other in-sight interior steel.

2. This is the same angle as photo #1, but a little lower.  You get a better sense of the elevator shafts, and some of the view out the glass walls.  They are going to be glass elevators.   But still the most impressive for me was the geometry around the scaffolding.

3.  Here you can really see the scaffolding - but can also discern some of the CMHR's structural steel (hint:  note the heavier "lines").  So many lines and angles when I considered this as a two-dimensional plane.  It's just so busy, yet logical.  One can't help but marvel at the architecture and engineering that is going into this project!

4. Here's a nice clean view of the permanent, structural steel.  Unobstructed, crisp lines - and curves.  So much strength!

5. Another shot of the base structure, with some scaffolding on the left.  The glass is already in place on the outside of the building, but doesn't really obstruct the view of the city.  This support looks like a tree, but with some pretty strategic triangles for strength.

6.  A closer view of the scaffolding.  With the wood on it, it looks like separate planes suspended atop the atrium area.  The steel on the left is one of the elevators.

7.  Here's a look at the scaffolding as one tries to look out through the glass wall.  You can pick out the base steel structure.  It's going to be quite a sight once the scaffolding is removed.

8.  I took this exterior view standing at the NW corner of the CMHR.  If I remember correctly, from grade to top it will be about 36 stories.

10 Questions CEOs Should Ask GCs About the Legal Business Plan (#corpgov)

This is a very interesting  article. The outline of the 10 questions is:

1) Does the legal plan manage risk and maximize opportunity?

2) Does the legal plan reflect company input?

3) What is "must do" versus "nice to do" in the legal plan?

4) What's the ROI here?

5) Is our risk profile improved?

6) What's the value-add here?

7) Will efficiency improve?

8) Will quality improve?

9) Are there appropriate and adequate resources to execute the plan?

10) How will we know the plan is being executed and whether it is having a positive impact on the business?

Some of the questions are pretty tough, but that does not mean that we should not address them. From discussions with various GCs I think there is a lot of challenge particularly around questions 4 and 6. However, the article gives good examples. Others to consider might be: what is the impact of the registration of a trademark on future potential costs of enforcement not only with respect to trademarks but also with respect to cyber-squatters using that trademark in the URL? What is the potential saving from a good compliance, anti-fraud and anti-corruption program to future investigative costs, penalties and damage to reputation? I bet Wal-Mart could now put some figures around that one!

ACC Canada LinkedIn Group as at June 6, 2012

and just what is George trying to get at this time ...

There's a kind of hush,
all over the ...
...theatre ...
tonight.

The peeps are all settled; those for the bride upon her side, and those for the bride upon her side.

I guess they chose a theatre because they could not decide between a synagogue and Stonehenge.

And thankfully there are no Republicans or Harper Tories present.

"My Mother's Lesbian Jewish Wiccan Wedding".

A musical of great fun!  (on now at the Tom Hendry Warehouse Theatre)

Naked on the Stand?

Corporate Counsel has reported on the testimony of a retired Imperial Tobacco General Counsel in the class actions relating to addiction and lung disease being heard in Montreal court. The Corporate Counsel article can be read here or can be read below.  At issue is his part in decisions taken in the early 1990s to destroy company documents on the risks of smoking.  Susan Hackett (former General Counsel for the Association of Corporate Counsel) and I were interviewed on corporate governance principles surrounding records management and the legal ethics relating to document destruction while litigation is in course or reasonably expected.  I certainly agree that back in the 1990s records management as an area of corporate governance was not as mature as it is today but the ethical principles remain unchanged.

----

Corporate Counsel

Ex-Imperial Tobacco GC Questioned Over Destroying Health Documents

By Sue Reisinger

April 6, 2012

Over the course of three long days, Roger Ackman, Imperial Tobacco's general counsel from 1972 to 1999, sat in the hot seat where no GC ever wants to be—as a trial witness being grilled by a plaintiffs lawyer over destroying company documents.

Ackman was dragged into a suit against the tobacco industry in Superior Court in Montreal—against his protests and despite failed legal attempts to avoid it. But because the GC actually took part in decisions in the early 1990s to destroy company research reports on the risks of smoking, the Canadian court ruled he had to testify.

Ackman has insisted that neither he nor his former company did anything wrong in destroying the files or in selling tobacco, which is a legal product. If anyone is to blame, the company said, it would be the Canadian government for not regulating the sale of the product (and in fact the government has been added as a third party in the case).

As for the shredded documents, Ackman’s company has said they were only copies, and the original reports remain available at the parent company’s offices.

Plaintiffs lawyers nevertheless tried to paint the document destruction as a nefarious act, and on day three they directly questioned Ackman’s ethics. In response, Ackman testified that he wasn’t aware of any ethical rule prohibiting lawyers from helping to destroy company documents.

But in general, there is. George Bass, general counsel at Wawanesa Mutual Insurance Company in Winnipeg, Canada, said his country has guidelines saying if one is in the process of litigation, or expects to be, it is unethical to destroy documents that would be relevant.

“There’s been a lot done in corporate governance in recent years around records management,” Bass explained. “Certainly it is acceptable for corporations to dispose of documents when done in a systematic way” under a document retention policy.

When exactly Imperial instituted its document retention policy has been at issue in the trial. 

Susan Hackett, CEO of the consulting firm Legal Executive Leadership, agreed with Bass. “A red flag goes up if you have a litigation hold, and if the destruction is outside the norm of the company’s retention policy,” Hackett said.

But Hackett noted that Ackman’s conduct took place some 20 years ago. “And it’s not fair to hold him to today’s standards,” primarily instituted after the Enron Corp. scandal of 2001, she said.

Still, Ackman’s combative testimony has made him the center of north-of-the-border media attention during the $27 billion class action trial against the cigarette industry. It is the largest class action in Canada’s history.

The trial involves two separate class actions, both filed 13 years ago; one concerns addiction, and the other lung disease. The defendants are the Canadian operations of the world’s largest tobacco companies: Rothmans, Benson & Hedges Inc. (wholly owned by Philip Morris International); Imperial Tobacco Canada (wholly owned by British American Tobacco plc); and JTI-Macdonald Corp (wholly owned by Japan Tobacco Inc.).

A tobacco litigation blog called Eye on the Trials has closely followed the 13 days of the trial so far, and Ackman’s testimony in particular.

All three days of his testimony focused on the issue of document destruction. There was no testimony on Thursday while the court dealt with procedural matters.

Plaintiffs lawyer Gordon Kugler, a senior partner at Kugler Kandestin in Montreal, first called Ackman to testify on Monday. The blog colorfully painted the scene: “Finally, Mr. Ackman, 73, took the stand, his hair neatly combed, his suit reminiscent of Dustin Hoffman's in Death of a Salesman.”

When a defense attorney objected to a Kugler question, Justice Brian Riordan dismissed the objection, calling Ackman part of the “spirit and brain” of the company. At one point the judge also reminded Ackman that “witnesses were there to answer questions, not to ask them,” the blog states.

On Tuesday, Ackman again played lawyer and objected to the judge about certain questions he was being asked about the studies, saying he wasn’t a scientist. The defense team quickly echoed his concerns.

As part of his testimony, Ackman said he hired Montreal lawyer Simon Potter “to help him” with his handling of the research documents. Potter, of the law firm McCarthy Tétrault, is slated to testify in the trial, even though he is also the defense attorney for Rothmans, Benson & Hedges in the case.

Ackman testified that the parent company pressured Imperial to destroy the research documents, though he couldn’t recall why, according to the blog. He also couldn’t recall why lawyers instead of researchers decided which documents to destroy.

The documents have been subpoenaed in this case, and some have been posted to the plaintiffs’ website.

Economist article “A guardian and a guide – Chief legal officers have more power than even before”

Dr. Richard Leblanc started a discussion in the LinkedIn group “Boards & Advisors” about an article in the Economist by Schumpeter entitled “A guardian and a guide – Chief legal officers have more power than even before”.  The full Economist article can be read here.  The LinkedIn discussion to date is set out below.  I’ve also now started a discussion on this in the ACC Canada LinkedIn group.

I think Richard’s concluding comment is right on!  One of the elements is for the Chief Legal Officer (“CLO”) to be able to merge our legal advice with business considerations.  This does not mean advising of illegal courses of action because the business side wants to do something.  It means weighing various legal options that are available and advising as to what will support what the business is trying to accomplish.  The method of business execution is then chosen to comply.  It comes down to what amount of risk is acceptable to the corporation; the balancing act that is referred to in the article.  I like how the author refers to the balance of law and business, and also the balance between precedent (that we as lawyers are so steeped in!) and being visionary.  If external counsel says to me that his or her job is to protect the corporation against every eventuality (which they might do to explain why it is taking them so long to do something or why they are preparing a 40 page agreement when 8 pages will suffice), then I fire them on the spot.  The job for them, as for in-house counsel, is to advise as to the legal options and couch this within the risk appetite of the business. 

And by the way, I love the quote in the article from Norman Veasey and Christine Di Guglielmo’s new book, “Indispensable Counsel”, that a CLO must be a “courageous Renaissance person”.  Now that’s something to aspire to!

Paul Krugman's Article re American Legislative Exchange Council

Why haven’t we heard before of this extremism, and why hasn’t something been done about it?  The USA based American Legislative Exchange Council (ALEC) promotes a hard right agenda which is described by  Paul Krugman as “union-busting; undermining environmental protection; tax breaks for corporations and the wealthy; turning the provision of public services, from schools to prisons, over to for-profit corporations; privatizing government, in which corporations get their profits from taxpayer dollars; encouraging vigilante (in)justice; promoting bills that make it hard for the poor and ethnic minorities to vote; and promoting draconian immigration law“.  This sort of organization is so damaging to the roots of our society!  It is truly disconcerting to see the extent that ALEC is supported by large multinational corporations. You can read Paul Krugman's full editorial here.

Comment on Tim Banks’ “Board Minutes: Keep the Purposes Front and Centre”

In the third of his series on Board minutes, Tim Banks invites us to “Keep the Purposes Front and Centre”.  He identifies one of the purposes being the litigation perspective of ensuring that the minutes provide evidence of how directors fulfilled their duties.  I would add that one may have also to consider the perspective of satisfying regulators, depending on your industry.  He further postulates that the minutes need to be a record of the board’s decision-making process and provide compelling documentary evidence to support the application of the business judgment rule.  Mr. Banks then goes on to consider how the purposes affect the content.  He sets out a range of items which in his opinion should be recorded.  I think this should be tempered by not repeating what is contained in briefing materials the board has received, although the minutes should contain reference to those briefing materials so that they are in effect incorporated by reference into the minutes.  I agree that the minutes should not be a verbatim transcript.  He advises that they should be a “high-level summary of the matters discussed”.  My guide is that the minutes be a record of the material aspects of the  Board’s deliberations on material issues.  This article is definitely worth reading.

Comment on Tim Banks’ “Board Minutes: The “Front Page of the Newspaper” Test”

"Board Minutes: The "Front Page of the Newspaper" Test" at http://bit.ly/tyY7WL (and the full text is also set out below) is a continuation of Tim Banks’ series on writing Board minutes.  This is his second post, the first being a summary of what he intends to cover in his five substantive posts.

It is not a bad guideline to consider how the board minutes would look on the front page of a newspaper.  Mr. Banks is correct that there is a need to provide some level of detail, not only to provide evidence relevant to directors’ statutory duties, but also with respect to benchmarking their activity in consideration of the business judgment rule.  For those of us with financial institutions, and some other industries, we also have to consider what is required by our regulators.  When considering litigation it is very relevant to consider how the language of the minutes might be “twisted out of context”.  In addition, as Mr. Banks points out, regrettably in some circumstances where minutes are produced in litigation it is not just the portion thereof relevant to the suit that are disclosed, but it may also have to be the entire minutes of that meeting.

Full text of Tim Banks' post:

Board Minutes: The “Front Page of the Newspaper” Test
 Posted on Dec 7th, 2011 By Tim Banks

In an earlier post, I summarized five suggestions for writing board minutes for peace of mind. In this post, I will discuss one of those suggestions in greater detail: Using the “Front Page of the Newspaper Test”. But first, let’s set the legal scene.
The Legal Scene
The Canada Business Corporations Act (“CBCA”) and, with one exception, all other business corporation statutes in Canada, prescribe that corporations maintain board minutes as part of the corporation’s records.
Maintaining minutes of board meetings would be prudent even if they were not statutorily required. Failing to accurately record the board’s deliberations in appropriate detail may lead to adverse inferences regarding whether directors have fulfilled their duties. Nevertheless, there is a natural tension between providing sufficient detail to avoid any adverse inference being drawn against the directors and a lingering apprehension that an innocuous record might, with hindsight, be twisted out of context in litigation.
The “Front Page of the Newspaper” Test
It goes without saying that board minutes must be accurate. However, in considering the level of detail, the format of the minutes and the words chosen to describe the business of the meeting, the corporate secretary should consider how the board minutes would look on the front-page of the newspaper.
The primary audience of board minutes is normally the directors, subsequent directors appointed to the board, and third parties conducting minute book reviews in connection with major transactions.
In the ordinary course, shareholders and creditors do not have an automatic right to inspect board minutes. Neither the CBCA nor any other Canadian business corporation statute requires a company to provide access to board minutes to shareholders, creditors or non-officer or non-director stakeholders. British Columbia is perhaps unique in that the British Columbia Business Corporations Act provides that the articles of the corporation might allow shareholders or other persons a right of access to board minutes.
However, from a litigation perspective, the primary audience will be the adversary in the litigation and, most importantly, the trier of fact in any judicial or arbitral proceeding. If litigation is commenced, board minutes are difficult to protect from disclosure if the minutes contain information that is relevant to the dispute. Canadian courts, particularly in Ontario, may be reluctant to accede to claims of confidentiality. It is well-entrenched in Ontario, for example, that corporate minutes do not enjoy any special protection in litigation from production and discovery. Moreover, and perhaps most problematic, some judges have ruled that redaction (deletion) of portions of documents, including minutes, for relevance is not permitted. This may mean that the whole of the board minute must be produced even if only a portion of it is relevant to the dispute.
Even outside of the litigation context, there are situations where board minutes may become producible. For example, board minutes might become producible under a personal information access request under privacy legislation to the extent that the board minute contains information about the requester.
In future posts, I will discuss how, in very limited cases, it may be possible to protect privileged or highly confidential commercial information and strategies to limit what is produced.
However, in many cases it may be very difficult to protect the minutes from public disclosure. If entered into the court record, they will be there for every competitor or interested person to read and to copy. Therefore, the “front page of the newspaper” test is the most prudent starting point when drafting and editing board minutes.

Amazing Grace - a great movie!

Last evening I watched a great movie, Amazing Grace (2007) – available in DVD from Movie Village.  It is based on the true story of William Wilberforce, the British Member of Parliament, who led the battle to enact a statute to end the British slave trade, circa 1800.  The saga is one of perseverance set against a backdrop of a challenging personal health situation, and extreme political opposition. It took many years to get the job done but his tenacity is very inspiring.  Wonderful to see the triumph of human rights over economic interests!  I highly recommend watching this.  An intriguing side note is that part of Wilberforce’s inspiration came from his preacher, John Newton, a reformed slave ship captain, who wrote the hymn, Amazing Grace.  Interesting to consider too how this fits into the timeline of history of such events as the American Revolution, French Revolution and American Civil War.

Anton Chekhov's "Three Sisters"

Congrats to Theatre Projects Manitoba on presenting zone41 theatre’s “Three Sisters” by Anton Chekhov.  Bruce McManus’ adaption is true to Chekhov’s brilliant, probing and insightful drama.  Zone41’s performance is powerful and well-played.  Definitely a must see! For details from Theatre Projects Manitoba’s website click here.

The Local-Global Flip (Edge.org Conversations with Jaron Lanier)

The following is copied from EDGE.ORG - August 30, 2011  I found it interesting to say the least but admit that I struggle to wrap my mind around the concepts.  I commend it to your neurological digestion!!!

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THE THIRD CULTURE

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"If you aspire to use computer network power to become a global force through shaping the world instead of acting as a local player in an unfathomably large environment, when you make that global flip, you can no longer play the game of advantaging the design of the world to yourself and expect it to be sustainable. The great difficulty of becoming powerful and getting close to a computer network is: Can people learn to forego the temptations, the heroin-like rewards of being able to reform the world to your own advantage in order to instead make something sustainable?"



THE LOCAL-GLOBAL FLIP, OR, "THE LANIER EFFECT"

A Conversations with Jaron Lanier

Introduction by John Brockman

Permalink: http://edge.org/conversation/the-local-global-flip



[John Brockman:] We used to think that information is power and that the personal computer enabled lives. But, according to Jaron Lanier, things changed about ten years ago. He cites Apple, Google, and Walmart as some of the reasons. ... In a freewheeling hour-long conversation, Lanier touches on, and goes beyond the themes he launched in his influential 2006 Edge essay "Digital Maoism: The Hazards of the New Online Collectivism." What he terms "The Local-Global Flip" might be better expressed as "The Lanier Effect". Here's a sampling:



... "The Apple idea is that instead of the personal computer model where people own their own information, and everybody can be a creator as well as a consumer, we're moving towards this iPad, iPhone model where it's not as adequate for media creation as the real media creation tools, and even though you can become a seller over the network, you have to pass through Apple's gate to accept what you do, and your chances of doing well are very small, and it's not a person to person thing, it's a business through a hub, through Apple to others, and it doesn't create a middle class, it creates a new kind of upper class. ... Google has done something that might even be more destructive of the middle class, which is they've said, "Well, since Moore's law makes computation really cheap, let's just give away the computation, but keep the data." And that's a disaster.



... "If we enter into the kind of world that Google likes, the world that Google wants, it's a world where information is copied so much on the Internet that nobody knows where it came from anymore, so there can't be any rights of authorship. However, you need a big search engine to even figure out what it is or find it. They want a lot of chaos that they can have an ability to undo. ... when you have copying on a network, you throw out information because you lose the provenance, and then you need a search engine to figure it out again. That's part of why Google can exist. Ah, the perversity of it all just gets to me.



... "What Wal-Mart recognized is that information is power, and by using network information, you could consolidate extraordinary power, and so have information about what could be made where, when, what could be moved where, when, who would buy what, when for how much? By coalescing all of that, and reducing the unknowns, they were able to globalize their point of view so they were no longer a local player, but they essentially became their own market, and that's what information can do. The use of networks can turn you from a local player in a larger system into your own global system.



... "The reason this breaks is that there's a local-global flip that happens. When you start to use an information network to concentrate information and therefore power, you benefit from a first arrival effect, and from some other common network effects that make it very hard for other people to come and grab your position. And this gets a little detailed, but it was very hard for somebody else to copy Wal-Mart once Wal-Mart had gathered all the information, because once they have the whole world aligned by the information in their server, they created essentially an expense or a risk for anybody to jump out of that system. That was very hard. ... In a similar way, once you are a customer of Google's ad network, the moment that you stop bidding for your keyword, you're guaranteeing that your closest competitor will get it. It's no longer just, "Well, I don't know if I want this slot in the abstract, and who knows if a competitor or some entirely unrelated party will get it."

Instead, you have to hold on to your ground because suddenly every decision becomes strategic for you, and immediately. It creates a new kind of glue, or a new kind of stickiness.



... "It can become such a bizarre system. What you have now is a system in which the Internet user becomes the product that is being sold to others, and what the product is, is the ability to be manipulated. It's an anti-liberty system, and I know that the rhetoric around it is very contrary to that. ... What we have to do to create liberty in the future is to monetize more and more instead of monetize less and less, and in particular we have to monetize more and more of what ordinary people do, unless we want to make them into wards of the state. That's the stark choice we have in the long-term." ... MORE


JARON LANIER is a computer scientist, composer, and visual artist. He is the author of YOU ARE NOT A GADGET: A MANIFESTO.