Simmer Down, Ahab: Be The In-House Counsel Ishmael That The Crew Needs You To Be

Can I get a show of hands for all my English majors out there? Now of that crew, how many of you read the unabridged version of Moby Dick all the way through? And I don’t mean you watched the miniseries with Patrick Stewart (but kudos to you if you did make it to the end of that hot mess; the movie version with Gregory Peck is vastly superior).

I read Moby Dick my sophomore year for an American authors seminar and here were my key takeaways:

1. In a cage match to the death, Ishmael would kick the ever-loving snot out of Nick Carraway from Gatsby;
2. The first line of Moby Dick (if you actually read the opening excerpts in order like you’re supposed to) is not “Call me, Ishmael.” Mind blown, yet? Keep reading.
3. Two words, friends: Chapter 95. Mind blown. You’re welcome.

Oh yeah, and the whole whale thing. There are a lot of interpretations of what that sperm whale symbolized, and like a lot of lazy-ass college students, I took the road most travelled and wrote my essay on Ahab’s inability to let go. Because at the time, in all my sage sophomoric glory, it was glaringly obvious to me that after a whale bites off one of your legs, you should probably leave the damn thing alone.

Of course, that was before I entered the treacherous waters of in-house life and found myself constantly surrounded by a spectrum of Ahabs, all single-minded and goal-obsessed to varying degrees.

For example, there’s the long-standing Sales VP, Stuart. Stu has never signed a deal without an MFN (most favored nation) clause in it and he’s fiercely proud of it to the point of bragging (so much bragging). Well, Stu and I got into over a contract where we frankly weren’t doing enough business to justify an MFN from a vendor who didn’t need us. Strategically, this vendor would have helped launch us in a previously unchartered channel with a whole bunch of upside and very little downside for us. But Stu flatly refused to go forward without an MFN.

I could write a novel that would dwarf the word count of Moby Dick on my general disdain of MFNs and the impracticality of trying to enforce them. So, I asked Stu why he needed it so badly. For this vendor. For this opportunity.

“For price protection, obviously,” he snapped.

Obviously.

Instead of cursing like a sailor, I politely directed him to the language where the vendor was required to treat us in terms of similarly situated customers buying like volumes and quantities of product. “This is a six-month trial agreement for a channel we may or may not be in next year for a customized, limited batch product made just for us. Who exactly would be in a similarly situated situation as ours?”

“That’s not what that means,” Stu sputtered. “It means I have price protection.”

Sigh. The reality of the situation is we wouldn’t waste breath over in Legal trying to enforce this provision, not for those low dollars. But I don’t want to see Stu turn purple in the face. So, I ask, “Could you say a little more about the price protection you’re worried about here?” Stu has previously told me he’s secured something akin to a 75 percent discount (which is probably about 60 percent since sales people exaggerate worse than fishermen) and I genuinely want to understand what he’s concerned about.

“It’s the principle of the situation,” Stu insists. Which is business speak for “I don’t have a good reason, but if I raise my voice like this, I’m hoping you’ll drop it.” Eventually, I do drop it, because it’s not my call, it’s Stu’s. And he walks from the deal, which leaves me to wonder how many other deals he’s walked away from over the years because of that infernal MFN clause.

Sadly, Stu’s not alone in his fixations. Chris in Procurement refuses to allow any kind of escalators for inflation or otherwise in his contracts … which means all of his contracts are a year or less and he spends stupid amounts of time (his and mine) having to renegotiate them all the time annually. Perry from Finance routinely crosses out the force majeure language from all of his contracts before I can get to them because “not everybody believes in acts of god because not everyone believes in god,” and Rob from Talent insists on adding non-compete language to everything … even when it’s a purchase order for company softball jerseys.

All of these peculiarities might seem a little funny (okay, the act of god thing gets me every time I have to talk an indignant Perry out of crossing it out), but they’re all mental entrenchments that my business people get stuck in and need to be coaxed out of.  Roadblocks like this cost time (yours, theirs). And they can ding credibility with vendors. Do you think there’s ever a scenario where Rob gets his non-compete language in a purchase order for an off-the-shelf item? No, he doesn’t. And yet he’ll dig in for days, firing shots over the bow in email after email, even after it’s been explained to him why he does not need a non-compete to buy branded gym gear.

Sometimes, I think these eccentricities stem from stubbornness and unwillingness to listen to silly things like reason and fact. Other times, like in the case of Stu, I think they arise from the fear of not wanting to leave familiar territory behind. Stu and Rob may not entirely understand the underlying meaning of the clauses they so desperately insist on, but they’ve convinced themselves of the safety and necessity of such provisions, regardless of the situation.

Ultimately, it falls on us to talk our partners out of these doomed courses of action, so they don’t end up like Ahab going down with the ship. And not that we are ever mad captains ourselves obsessed with perfect language and clauses, but we should all strive to be the-inhouse counsel Ishmael that our crew needs us to be.

Or if you can’t swing that, then at least be the Queequeg you want to see in the world.

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Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at [email protected] or follow her on Twitter @KayThrace.