Government Contracts and the Cloud: The Data Security Challenge

Author: Michael L. Whitener
The Corporate Counselor (October 2010)

The Federal Government is rapidly migrating its IT services to the cloud. This migration not only will fundamentally reshape how the Government operates, but offers a huge opportunity for IT companies to market their cloud-based technology solutions to the world’s largest purchaser of information technology. If there’s a fly in the ointment, however, it’s concern about data security, which is all-important for Government applications. This article explores what data security measures the Government is demanding of its cloud services contractors, thus drawing a high-level road map for companies bidding to provide cloud infrastructure and services to Government agencies. A PDF reprint of this article is available for downloading here.

Avoiding FCPA Liability with a Robust Compliance Program

Authors: Michael L. Whitener and Robert N. Walton
The Corporate Counselor (May 2010)

The U.S. Government has clearly signaled its intention to investigate and prosecute violations of the Foreign Corrupt Practices Act (FCPA) with increasing vigor. Individual executives as well as corporations are being targeted. In this environment of heightened FCPA scrutiny, it is imperative that companies doing business overseas not only put in place a solid anti-corruption compliance program, but also ensure that all employees understand the scope of the FCPA and the heavy penalties for its violation. A PDF reprint of this article from The Corporate Counselor is available for downloading here.

Corporate Governance in the Middle East: A Changing Landscape

Authors: Robert N. Walton and Michael L. Whitener
Compliance Insider (May 2010)

Recent corporate scandals, as well as the global economic meltdown, have put a spotlight on corporate governance failures and the need for reform. In the Middle East and North Africa (MENA) region, regulatory bodies and corporations are joining a global movement toward making corporate workings more transparent and accountable. This movement is being driven not only by a desire to foster investor confidence, but also to improve corporate performance and stability. This article can be found on the Compliance Insider online newsletter, whose content is free with registration. You also can download a PDF reprint here.

Renegotiating IT Vendor Agreements in Light of Massachusetts Data Privacy Regulations

Author: John J. Smith
VistaLaw Views (Winter 2010)

Following up on our June 2009 issue regarding comprehensive data privacy law changes proposed in one U.S. state, this issue revisits those regulations, which are now scheduled to go into effect in March 2010. While limited to personal data of Massachusetts residents, wherever held, these broad new rules will likely have far-reaching implications regarding IT security practices as they become a regulatory model for other states. This issue provides an update on the Massachusetts "Standards," as they are known, and seeks to remind affected parties of the steps they should consider taking to bring their IT service contracts into compliance with the new rules. It is available for downloading here.

Corporate Governance: A Roadmap for the New General Counsel and Board Secretary

Authors: Robert N. Walton and Michael L. Whitener
VistaLaw Views (September 2009)

With corporate governance under ever-increasing scrutiny, the new general counsel and company secretary has little time to waste when it comes to ensuring that the company is following sound governance practices. This issue of VistaLaw Views offers a guide for getting started. It is available for downloading here.

Scrambling for Compliance in Data Privacy: Retooling Your Contracts

Author: John J. Smith
VistaLaw Views (June 2009)

Regulations relating to the protection of personal data are burgeoning. Evolving federal, state and private industry standards are becoming increasingly prescriptive, requiring e-commerce businesses handling sensitive “private” data to deploy very concrete information security programs. This article focuses on one aspect of such a program -- effective vendor contract management -- and suggests a number of practical steps to address the most problematic, risk laden situations and renegotiate arrangements as necessary. The article is available for downloading here.

Are Lawyers Doomed?

Authors: Michael L. Whitener & Robert N. Walton
VistaLaw Views (April 2009)

The commoditization of legal services and the IT revolution are transforming the legal profession. In his timely new book,
The End of Lawyers? Rethinking the Nature of Legal Services, lawyer and technologist Richard Susskind challenges lawyers to embrace a new legal playbook that focuses on value, efficiency and alignment of interests with their clients. He advocates for a fundamental and necessary change from the traditional law firm business model. Our discussion of Susskind's book and the new legal model is available for downloading here.

Drafting and Negotiating SaaS Agreements: Traps for the Unwary

Author: Michael L. Whitener
VistaLaw Views (March 2009)

As the Software as a Service (SaaS) industry grows by leaps and bounds, the principles of software contract drafting and negotiating have to change to keep pace with SaaS developments. Standard software license templates are not up to the job. This VistaLaw white paper addresses the most common pitfalls of SaaS agreements. The good news is that these pitfalls are avoidable with a bit of upfront awareness, clear and concise contracts and an understanding that SaaS transactions require a new approach. The white paper is available for downloading here.

Corporate Governance for New Directors: The Basics and Beyond

Authors: Michael L. Whitener, Robert N. Walton & Blake Redding

Aspatore Books (2008)

Written by three of VistaLaw’s founders, Corporate Governance for New Directors: The Basics and Beyond provides newly appointed directors with the tools needed to carry out their duties to the corporation with care and intelligence, while avoiding the many potential pitfalls. The focus is on the fundamentals that every director must know. But it goes beyond the basics in addressing issues relevant to global companies, the subtleties of the director’s relationships with management and shareholders, and what recent failures in corporate governance can teach the new director. Corporate Governance for New Directors is not only an essential primer for the new board member in a global company, but a useful refresher for the experienced director.

Corporate Governance for New Directors: The Basics and Beyond is available for purchase from Aspatore Books ( and through (

Creating Software Alliances

Author: Michael L. Whitener
Aspatore Books (2007)

Creating Software Alliances: A Detailed Look at Establishing Partnerships in the Software Industry, Structuring Agreements, and Managing Relationships provides a comprehensive and detailed examination of how a software agreement can be drafted to maximize profits for the software vendor. By analyzing the critical provisions of a typical alliance contract on a clause-by-clause basis, Creating Software Alliances provides a structure for a clear and comprehensive software alliance agreement, which will maximize cooperation and minimize conflict. It also addresses the art of managing software alliances, revenue recognition issues that often arise, and special considerations when software companies expand overseas. It is an important resource for every executive and professional interested in making software alliances work. Creating Software Alliances: A Detailed Look at Establishing Partnerships in the Software Industry, Structuring Agreements, and Managing Relationships is available for purchase from Aspatore Books ( and through (

The Long Arm of the Law or the Invasive Reach of the American Legal System (le Risque Hégémonique de la Réglementation Américaine sur les Marchés Internationaux)

Author: Blake Redding
Revue du Droit des Affaires Internationales/International Business Law Journal (Issue No. 5, March 2007)

The impact, often unexpected, of U.S. regulations on the economic life of non-U.S. enterprises can have repercussions far beyond what one would expect. Even though most executives of the thousands of enterprises that are potentially subject to these regulations are aware of the possible extent of U.S. sovereignty, they would commit a potentially fatal error by failing to take into account the risks arising out of both the reach of U.S. regulations as well as the jurisdiction of U.S. courts. “The long arm of the law,” which has become a pejorative phrase referring to jurisdictional overreach, might find its roots in romantic notions of a quest for justice, even if other more cynical explanations might be more appropriate. Regardless of the reason, multinational enterprises need to be vigilant and prepare themselves for real risks of the “long arm” reaching out and grabbing them.

A copy of the “The Long Arm of the Law” can be ordered through the International Business Law Journal’s website at

Software Distribution in China: Taming the Guardian Lions

Authors: Ji Shen and Michael L. Whitener
Upgrade Magazine (Aug-Sept 2006)

Selling software into the Chinese market is not for the faint-hearted. This article examines the five major challenges facing foreign software vendors in China and how to overcome them
Click here to download this article

Negotiating the Thicket of IP Clauses: Nine Key Issues for Negotiating Intellectual Property Clauses in Consultancy Contracts

Author: Michael L. Whitener
ACC Docket (May 2005)


A Comity of Errors - Europeans Discover Discovery

Author: Blake Redding
ACCA Docket (January 2000)