Thursday, October 04, 2007

DuPont turns its legal department into a profit center

DuPont, the chemical maker, has turned its 195-person legal department from a drain on profits into a moneymaker.

The company's lawyers brought in $290 million in revenue last year, including a $92 million asbestos settlement with more than a dozen insurers.

The asbestos agreement in December 2006 resulted from a three-year-old DuPont program to find ways to generate revenue by filing lawsuits the company would not otherwise have initiated, or by seeking licenses from companies using its patents.

The legal department has brought in $630 million since 2004, according to Thomas Sager, assistant general counsel at DuPont.

"I felt we were oftentimes perceived as a cost center and a drag on earnings," Sager said during an interview at DuPont's headquarters in Wilmington, Delaware. The legal department's budget was about $230 million in 2006, he said.

Lawyers at International Business Machines and Qualcomm are also cracking down on patent violations to generate income. DuPont, the third-largest U.S. chemical company after Dow Chemical and Exxon Mobil Chemical, has gone a step further by letting its lawyers shift from filing paperwork to filling the company's coffers.

The department generated more than 1 percent of total revenue at the company last year.

DuPont lawyers are scouring files for potential contract claims or signs of anti-competitive behavior that may lead to antitrust damages.

Company lawyers, who are pressing their outside firms to work on a contingency-fee basis to keep costs for the new litigation program down, are also trying to bring in money by recovering debts DuPont had written off.

"It's big money," said Rees Morrison, a consultant at Hildebrandt International. "I don't know of other companies doing it."

DuPont has a committee of lawyers who are charged with identifying ways to recover money and calculate an expected return each year.

"We've asked them to serve as our eyes and ears and identify through whatever means - word of mouth, periodicals, trade press - opportunities where DuPont might advance a claim or where we believe our rights have been perhaps infringed," Sager said.

In 2004, DuPont's legal rainmakers brought in $108 million, Sager said, followed by $235 million in 2005. The high of $290 million last year was helped by the insurance settlement.

The settlement stemmed from a Texas lawsuit DuPont filed against the insurers for reimbursement of asbestos claims for plastic products and building materials dating from the early 1970s.

The push has come at a time when companies are faced with higher costs in their law departments. A survey published this month by Hildebrandt said U.S. corporate legal bills rose 6 percent last year.

Company lawyers often worry about hurting earnings, said Susan Hackett, senior vice president of the Association of Corporate Counsel, an organization in Washington for lawyers who practice in the legal departments of corporations and other private sector organizations. DuPont is in the middle of a three-year campaign to cut fixed costs by $1 billion.

"General counsel struggle regularly with quantifying the value they provide so they are seen as contributors rather than cost centers," Hackett said.

Still, Hackett said lawyers should not take too much credit for recouping money in lawsuits over products that other business units created.

"It's a difficult line they walk if they try to send a message that they are responsible for the underlying value of products and services," Hackett said.

Sager said most of DuPont's intellectual property cases were geared toward recovering money rather than defending the company's own patents. While declining to identify specific cases, he said DuPont typically had a docket of 15 to 20 active intellectual property cases and was a plaintiff in about three-quarters of those.

DuPont also recovered $5 million from four shipping companies over price-fixing claims.

The goal of DuPont's lawyers is to recover $100 million in 2007, less than they have recovered during the three-year program. The target is lower because it is less certain that they can find large recovery opportunities, Sager said.

"It's a function of the pipeline," he said.

The company has turned to focusing on debts that the company had written off and is trying to sell about $80 million in claims it is owed by Brazilian farmers for pesticides.

It will probably sell the claims to "any of the major institutions that play in Latin finance," said William O'Connor, a lawyer at the New York office of Crowell & Moring, who represents DuPont. He says he is also trying to sell DuPont's claims in bankrupt companies like auto part makers.

Since the early 1990s, DuPont cut its list of the law firms it hired to 42 from 450 to reduce costs.

DuPont is also altering its relationships with outside lawyers by requiring them to forgo traditional billing by the hour and handle cases for a share of any recovery.

"We want them to have some skin in the game," said Sager.

The firms that handled the insurance settlement last year, Kirkpatrick & Lockhart Preston Gates Ellis, based in Pittsburgh, and MehaffyWeber, based in Beaumont, Texas, reduced or waived their hourly rates and shared about $15 million of the settlement.

One company that wants to mimic DuPont's efforts is Hillenbrand Industries, a maker of coffins and hospital beds based in Batesville, Indiana.

Its general counsel, Patrick De Maynadier, and two other company lawyers visited Sager in April to learn about DuPont's recovery program. Hillenbrand is starting its own program and has hired two law firms to work on a partial contingency fee basis.

"We felt like we had a duty to find opportunities where we might be leaving money on the table," De Maynadier said.

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