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Highlights of the latest franchising cases from around the country.

Electronic evidence is now so prevalent, it's no surprise that most litigation requires its collection and review. But, how do you know that you've collected everything you intended to harvest? How do you verify that what is going out the door to opposing counsel is enough to satisfy their demand, but isn't overbroad and an invitation for fishing? On that point, zoom out for an even more macrocosmic view and ask yourself how you can manage your vendors to ensure consistent quality over the long term.<br>Ultimately, it's the responsibility of the client representative, either a member of the corporate law department or a member of outside counsel's case team, to ensure the quality of the collection and processing effort.

These are challenging times for those of us who represent and defend corporations in litigation. The recent criminal convictions of Enron's Ken Lay and Jeffrey Skilling only confirm what we have known for quite some time ' jurors are skeptical of, and even hostile toward, corporations and corporate executives. <br>But in order to formulate an effective defense strategy, it is important to understand why jurors hold these attitudes.

e-Commerce firms have aggressively marketed themselves as the new kids on the block. They eagerly discard old ways of doing business, confident that their way of doing business ' online ' is better. It's an e-commerce article of faith that everyone can work more efficiently if he or she would only eliminate outdated practices that don't take advantage of the conveniences available online.<br>But maybe some supposedly 'old' laws and ways of doing business have survived ' for decades and centuries ' for reasons other than that the Internet had not yet been invented. Sometimes, the tried and true is sufficient for what's needed. The old way may work more reliably, and perhaps even better than, the new path offered by e-commerce.

These days China is full of Silicon Valley wannabes, but Alibaba.com, headquartered in Hangzhou, is way ahead of the pack. In a headline-grabbing deal last August, the company acquired Yahoo Inc.'s China business (it now operates the Yahoo brand in China), plus a $1 billion investment from the venerable Internet company. Now a $4 billion privately held concern, Alibaba.com is best known for its business auction site (www.alibaba.com, which the company claims is the leading Web site for business-to-business trade in the world) and Taobao.com (www.taobao.com), a consumer auction site that's giving eBay.com a run for its money in China. (Alibaba.com is in English, Taobao.com is in Chinese.)

On April 12, 2006, the Federal Trade Commission ('FTC') published in the Federal Register (Business Opportunity Rule 71 Fed. Reg. 19054 (proposed April 12, 2006) (to be codified at 16 CFR Part 437)) a Notice of Proposed Rulemaking for the FTC's long-awaited business opportunity rule ('Bus Opp Rule'). The Bus Opp Rule will cover business opportunity sellers who now are covered by the FTC's franchise trade regulation rule ('Franchise Rule'), as well as sellers of certain business opportunities who are not now covered by the Franchise Rule. The FTC has long believed that the same regulation was not the best way to regulate both business opportunity sellers and franchisors. More specifically, the FTC has concluded that each group's special characteristics (such as history of consumer protection problems, sophistication of its target purchasers, required investment commitment, and complexity of business system) required a different regulatory approach. The Bus Opp Rule is designed to create a regulatory scheme to focus on the special characteristics of business opportunities. Until the Bus Opp Rule is promulgated, business opportunity sellers must continue to comply with the current and, if and when adopted, amended Franchise Rule.

Imagine fielding all those unsolicited calls and referring them to a professional whose full-time job involves learning your audience requirements and branding strategy, finding research or personally conducting ongoing market and competitor analysis, providing you with data-rich 'Point-of-View' (POV) assessments on how the possible media buys fit into your firm's priorities ' maintaining arm's-length but informed relationships with the myriad publications you might consider, but recommending only those publications that meet a sophisticated test of audience reach vs. cost. This professional then negotiates advantageous terms and specifics, such as date and page placement, and executes the details of the media plan, day-in and day-out. And who keeps the payments and discounts straight and sends you frequent updates for budget-tracking purposes.<br>That professional is a media planner/buyer. No stranger to corporate America, outside media planning and buying services are relatively new to law firm marketing, but their presence is increasing among the larger, more media-savvy firms. Just as the legal profession lagged in accepting and building marketing departments, it has been slow to appreciate the value of these media professionals. That's changing, however, as national and global law firms are recruiting more non-legal professionals to high-level positions; and that new blood is carrying over some well-known best practices found in other industries with longer track records in branding and advertising than law firm marketing.

As firms strive to differentiate themselves through marketing techniques and stave off mergers through network affiliations, they are gearing up alumni programs to net referrals and maintain positive relationships with former employees.

Confronted by increased competition and changes in the way expense conscious corporate clients procure legal services, law firms are responding by building capacity ' increasing their size through aggressive lateral hiring and acquisition. It is an appropriate response; driven by the market perception that in order to compete today for global corporate business, it is imperative that the modern law firm be large enough to handle both commoditized work as well as provide high end counsel, deep enough to handle any and all matters that a company may face, and streamlined enough to take advantage of technological and other economies of scale. But the myriad of market-based arguments that enable the creation of these large partnerships with hundreds of partners beg the question: 'Now that we've built the infrastructure, how do we truly distinguish ourselves in a manner that actually confirms these assumptions and secures the business?'

Practice management is gaining strength as a discipline in many mid-sized firms. Long adhered to in large firms as a way to interact most effectively with clients, produce the client's work in the most timely and cost-effective manner, and generate collegiality among lawyers, in mid-sized firms many managing partners have relegated the practice of law to individual partners, reluctant to impose their judgments on how individual client matters were being performed. This results from their belief that lawyer management should not have to follow up on partners responsible for performing client work or for managing substantive practice areas.