43. Eric J. Dale - General Counsel, Board Advisor and Risk Manager

The role of legal counsel for organizations and boards varies wildly depending on the situation, but in all instances provides a valuable resource for companies at every stage of evolution.

In the episode, Eric Dale - who has served as a legal advisor in many capacities for a wide range of companies – discussed the important, often critical. Role that a company’s legal advisor can plan.

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Quotes

The General Counsel role, whether it's as inside or outside counsel, can add a tremendous amount of value as a company is making the transition from founder-owned and operated to  founder significantly owned and operated, but having third-party capital and new partners in the business.

Nielsen is New York Stock Exchange company and while I was there while it operated in about 106 countries, had approximately 47,000 employees and its peak enterprise value was approximately $28 billion.  My role included making sure that items that fell into my purview - legal, risk, compliance etc. to the extent they were worthy of getting on the board agenda, got on the board agenda.

 

I don't want your listeners to think that when a company is smaller, there is materially less formality. I would rather leave them with the idea that as companies get bigger, both the materiality of the issues, the magnitude of the issues, and often, although not always, the complexity of the issues are such that it just requires an additional layer of activity and oversight.

Board minutes like contracts will largely be reviewed with the benefit of hindsight, so no one is looking at them unless and until there's a problem. And once there's a problem, if they're inconsistent or if they provide fodder for misinterpretation or multiple interpretations, you run litigation risk. 

Big Ideas/Thoughts

As companies scale, generally the role of the board becomes more formal. I think that's actually a good word and a good concept to use. There is certainly regular communication with the board or individual board members between board meetings in all companies with which I've been involved. 

But when you're dealing with a large multinational company, there are just a significant number of, not only issues, but things to consider whether it's the global nature of the business, NASDAQ or New York Exchange rules, and a variety of other issues that can have a major impact.

For instance, one of the issues we were always focused on was antitrust. Nielsen was a very big player in the markets that it served. It was also a very transactionally oriented business, regularly buying and selling companies, and in doing that analysis there's always an antitrust or a competition analysis that had to be undertaken. The board cared deeply about that, and some of those issues, if not existential, could certainly be very material to the ongoing business and operations.  The formality in terms of making sure every "t" was crossed and "i" was dotted was critical to make sure that the board got the best advice that it could in order to make the decisions that it ultimately needed to be made.

Outside GC

My own view, and again, listeners need to think about this through the lens through which I'm speaking - I don't see a lot of downside to it having an attorney in the room who can call balls and strikes or make sure things stay within the appropriate lanes, and who can put minutes together that will reflect what minutes ought to reflect.

 

 

Bankwell Financial Group

When I got involved, it was a private $250 million bank, kind of a community bank. We've grown since I’ve served on the Board to about 10 or 11 times, or just under $3 billion now.

The banking business is a highly regulated, highly complex business. The fundamental business of taking in money at X and loaning money out at X plus it is not that complicated, but the machinations that go into that are very complicated.

For our bank there are two regulatory bodies. One is NASDAQ but in addition regulated businesses like banks are audited by their regulators very frequently, usually annually, sometimes every other year. There's always an audit of some sort going on in addition to the traditional financial audits, and there are things that regulators want to see and expect to see on which we are focused.

Going Public

It’s important to recognize that a public company will have at least three committees: governance, compensation, and audit, all of which require appropriate expertise.  For example, Audit requires a financial expert, so you want to make sure you have at least one financial expert.  That's a defined term within the SEC, but it's basically someone who has been a financial executive, like a CFO, or has overseen financial executives like a CEO or someone who comes out of the financial industry, such as an auditor or someone with that type of background.

 

Separate Risk Committee

As we think about taking on more risk in particular at our bank, that usually is a full-board conversation, not just a committee conversation.

Risk is a very broad topic in every business and certainly in banks, and so we think about that in the context of where technology would then sit.  There are a number of factors to consider in determining whether there should be a separate board risk committee.

For example, is technology a proactive thing or is it a risk thing, other than cybersecurity and privacy, etc.?  We have established a separate a Technology Committee but have left non-technology risk within the domain of the Audit Committee

Perhaps as our bank and other institutions scale, then it could make sense at some point in time to break risk out. Right now, we've examined that, we've considered it, and we've concluded that risk sitting within audit works for us, and we feel like we're managing it effectively.