Mitigating the media risks of public litigation

The threat of litigation mired in public exposure and media coverage is the kind of risk that keeps corporate lawyers up at night

For the enterprise, reputation is perhaps the most honest valuation of success. Market capitalization and annual revenue are subject to fluctuations in the market, but the respect, loyalty and brand recognition of a solid reputation are priceless. It is for that reason that the threat of litigation mired in public exposure and media coverage is the kind of risk that keeps corporate lawyers up at night.

There is, generally speaking, no better way to deflate a solid reputation than with a widely publicized lawsuit involving accidental death or injury. Regardless of how anecdotal, misreported or unfounded those reports may be, just having your company’s name attached to such an incident can quickly develop into a public relations nightmare with astronomical costs and timelines attached. Even more frustrating, efforts to rectify mistakes will seldom gain you the same level of exposure as the actual misdeed. It is for that reason that a media strategy is essential to mitigating the effects of a very public court battle.

What’s at stake?

Accidents happen, and when they do, it’s the responsibility of the company at fault to make matters right. However, media attention and a plaintiff’s bar seeking a lucrative payout can exacerbate the situation. With the media capitalizing on mistakes in order to create headlines, and the plaintiff’s bar on the lookout for a quick win, corporations need to be fully aware of their public stature following an incident, explains Vincent Galvin Jr., executive managing partner at product liability firm Bowman and Brooke.

“Depending on the nature of the accident, the nature of the recall, or the services enhancement campaign, the plaintiff’s bar looks at that as an opportunity to develop cases or create cases. What happens then is the plaintiff’s bar mobilizes,” Galvin says.

The team at Bowman and Brooke offers defense services in a number of mass tort areas. The firm’s team of attorneys has dealt not only with confusing laws surrounding product liability and injury cases, but also with the media frenzy that goes along with them.

“If you’re doing any kind of recall, or anything else that’s public, you need to anticipate that there is going to be publicity and it’s going to be negative publicity…. The plaintiffs’ bar now is so in synch and coordinated in getting media attention that it’s hard, even if you’re prepared to be able to address all the different streams of media that are coming at you,” adds Alana Bassin, co-managing partner at Bowman and Brooke.

Bassin was the lead defense lawyer on a case concerning alcohol prep pad manufacturer Triad Group. Following a recall of alcoholic prep pad products, which were allegedly contaminated with the bacteria bacillus cereus, a number of wrongful death suits cropped up. The lawsuits and the media circus surrounding the deaths resulted in recalls from other prep pad manufacturers, campaigns seeking additional plaintiffs and the eventual closing of Triad.

Galvin says this kind of reaction from the plaintiff’s bar is not uncommon. “If you do a recall or you do a safety enhancement campaign or something happens that could be a catalyst and the plaintiff bar seizes upon that, they will lobby regulatory bodies or Congress and that creates the potential for an investigation. They will solicit cases on the Internet and disparage the product to enhance the nature of the issue and then they recruit a large number of plaintiffs and rush to state or federal court to file their cases.”

And, according to Bassin, the way the messaging breaks does not stop at the plaintiff recruitment and filing level. “I think the media influence is significant and it will be significant all the way through trial; you do your best at trial to pick jury members who have not been influenced, but with modern media that’s nearly impossible,” she explains. “I feel the initial spin on guilt and fault plays a heavy role on public opinion and can ultimately impact perception at trial if you’re not able to exclude those who have been exposed to media.”

Obviously, knowing how to handle the media in the face of a highly publicized case can be the difference between a company’s continued success and the closing of its doors. So how does the legal department preserve the valuable reputation of the company while remaining responsive to the complexities of this type of litigation?

Getting out in front

The key to maintaining poise through a mass tort case or other difficult lawsuit is to develop and implement an ongoing campaign to foster good will towards your company, explains Gene Grabowski, vice president at public relations firm LEVICK and expert on crisis reputation management. “That way, when there is an attack or a lawsuit, the consumers, shareholders or even the news media look at it and say, ‘wait a minute this isn’t the company that I know…maybe I need to investigate further before attacking.’”

Having consistent messaging makes it more difficult for people to vilify the company at fault, and when the inevitable foot-in-mouth comment comes from a bad actor in the C-suite, that positive messaging can be used as evidence of a track record of excellence.

For businesses lacking ongoing communications plans related to potential bad news or recalls, the first step to mitigating issues is transparency. “If you need to have a service call or you need to have a recall, you need to do it; you can’t not do it because you see an issue coming,” Galvin says. “Realize that the result could be a plaintiff onslaught of investigations and litigation, and if you see that coming, you need to thoroughly understand what the issues are and the documentation needed to support your position.”

If time is not a factor, then making sure that the message is clear and the correct defense documentation is collected is helpful. But in many cases, the need to move quickly does not allow for this. Any information available before the company makes a statement will further crystalize public opinion and make it more difficult to mitigate reputational damage.

“You do want some sort of media team to respond to it, and the earlier you can get out any positive side to it the better off you are. And it’s this sort of David and Goliath theme where you just assume these big companies are Goliath, but when it comes to messaging, that’s not the case,” says Bassin.

What’s more, the sheer number of media streams makes it increasingly difficult to manage the message. While the disparate streams of information may be difficult to manage holistically, depending on the circumstances, they can become tools to manage the corporate image. “You have to maintain the ability to take measures that are bold,” adds Grabowski. “For example, if an apology is to be made, maybe the president or CEO needs to do a 90-second video on YouTube and the company homepage and send it out to the media…it’s imperative to get the word out on social media, where you don’t control the message like you did 20 years ago, but instead where you participate in the conversation.”

Regardless of the size of your organization, the proactive use of media to carry your company’s message is essential to reputation building and defense. That foundation becomes even more important when the gusty winds of mass tort litigation start to blow. If something goes wrong and a company becomes the focus of media scrutiny, there is little even the best general counsel can do to avoid the threat of litigation, but with a strong media presence, quick response time and a willingness to engage in the conversation, you’ll most certainly live to fight another day.

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