“And Now His Watch is Ended” - Darryl L. DePriest, Chief Counsel for Advocacy

Those who have read George R.R. Martin’s A Song of Ice and Fire, or followed its HBO adaption, Game of Thrones, will recognize the title of this farewell message as the customary finish to the eulogy for a fallen member of the Night’s Watch. For the uninitiated, in Mr. Martin’s fictional world, the Night’s Watch is a military order dedicated to holding the Wall, the immense fortification on the northern border of the Seven Kingdoms, which protects the lands south of the Wall from the dangers that lurk beyond it. Those who join the Night’s Watch take a vow that starts, “Night gathers, and now my watch begins.”

Like the Night’s Watch, Advocacy’s staff “holds the Wall” against regulations that have a disproportionate impact on small entities by monitoring compliance with the Regulatory Flexibility Act, and observes and studies how economic trends effect small entities.

Since my watch began 13 months ago, Advocacy has steadfastly performed its duties. Advocacy has issued comment letters, participated on SBREFA panels, conducted roundtables and outreach events in Washington, D.C. and throughout the country, attended Executive Order 12866 conferences, and published several economic studies and reports. Through these activities I met with small business owners and their representatives, and heard their views on how regulations affect small business.

Three events representing Advocacy’s past, present, and future stand out. Representing the past is the Advocacy Anniversary Symposium, which simultaneously commemorated the 40th anniversary of Advocacy’s creation, 35 years of the RFA, 20 years of SBREFA, and 15 years of Executive Order 13272. I consider the panel that featured five of the six former Chief Counsels: Frank Swain, Thomas Kerester, Jere W. Glover, Thomas M. Sullivan, and Winslow Sargeant, the day’s highlight. They discussed Advocacy’s foundations and its evolution as an independent agency addressing how federal and state policies affect small businesses and entrepreneurship.

The revamping of Advocacy’s publications, led by the Office of Economic Research and the Office of Public Affairs and Information, represents the present. The 2016 Small Business Profiles for the States and Territories included new data visualizations and graphics, were completely revised to be fully transparent and reproducible by public users, and can be updated between releases. In 2017, OER intends to roll out these new user interfaces, and make them web and mobile phone compatible as well.  In addition, OER is also working to make the Statistics of U.S. Businesses (SUSB) data more user-friendly for both regulatory agencies and small business stakeholders, and is completely revamping and updating the Small Business GDP report using the same principles regarding data, reproducibility, and transparency.

The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), signed by President Obama last February, represents the future. Under TFTEA, whenever the President notifies Congress of the intention to enter into international trade negotiations, the Chief Counsel must convene an Interagency Working Group (IWG); comprised of representatives from the Departments of Commerce, Agriculture, and the Office of Trade Representative, and conduct small business outreach in the manufacturing, services, and agriculture sectors to gather input on the trade agreement’s potential economic effects.  With this information, the IWG is to report to Congress on the most important priorities, opportunities, and challenges affecting these industry sectors, and provide (1) an analysis of the economic impact on various industries, (2) information on state-owned enterprises, (3) recommendations to create a level playing field for U.S. small businesses, and (4) information on federal regulations that should be modified in compliance with the potential trade agreement. Congress’ decision to make Advocacy a key player on international trade exemplifies Advocacy’s reputation as the independent agency within the federal government that speaks for small business.

All of Advocacy’s achievements during my watch were due to its amazing staff; to them I owe a special debt of gratitude. It has been a distinct pleasure to work alongside such an outstanding group of bright, dedicated, professional, and incredibly skilled individuals.

In closing, I thank President Obama for the confidence in my abilities he demonstrated by making this appointment. I thank my family for the sacrifices they made that allowed me to serve as Chief Counsel. Finally, I thank Advocacy’s extended family of stakeholders for their support of me and the Office. Advocacy deeply appreciates the help of its friends in small business organizations, trade associations, congressional offices, and executive branch agencies. I hope that the connections we made during this time live on. Night is gathering, but as for me, my watch is ended.

Why "No Comment" is No Good

An interesting and worthwhile read from Ben Rosen of Finsbury on why "No Comment" is no good:

The problem with "no comment" is that it really is a comment – sometimes the worst comment one can make. It may imply guilt where there is none. It can sound blasé or incompetent.
A narrative will take shape, with or without the newsmaker’s input, and by declining comment, the person at the center of the story may miss the opportunity to influence how the story is framed.
The media can be relentless. But whether a newsmaker is giving a friendly one-on-one interview or is surrounded by reporters shoving microphones in his or her face, a "no comment" response can be a damning answer to any question.
An interview on CNN Money with Sam’s Club CEO Rosalind Brewer showed the risks of a "no comment" answer and the danger it poses to even the most seasoned executives.
Towards the end of the interview, CNN correspondent Poppy Harlow asked Brewer, "Some think you would have been a great fit as the new CEO of Target. Did they come talk to you?"
"No comment," said Brewer, with a laugh.
Whether Brewer was nervous, caught off-guard, or bound by the sensitivities of a potential negotiation process, her dodging eclipsed the strong, convincing points she had made earlier in the interview.
For a person burrowed in the middle of a story, the best approach is to shape the narrative rather than allowing the narrative to shape you. And it is important to do it early.
There is a scramble by all parties to quickly collect information and present the story to the public. At this stage, prospects are better, if not best, for the unfolding narrative to be shaped closest to what the person at the heart of it desires.
Brewer had been speaking in detail about the actions that Sam’s Club took to alter its operational structure to cater to Millennials and changing consumer behavior. But the headline for her CNN Money interview became "Sam's Club CEO: 'No comment' on Target job."
The story could have solidified trust in Brewer’s leadership and progress toward the company’s business objectives. Instead, it might have raised questions among employees and investors about her commitment as Sam’s Club leader.
Interaction with the media is a constant challenge for spokespeople who have to find ways to answer what are at times incredibly difficult questions. It can be challenging to answer hostile, leading questions that seem to transform an interview or press conference into a courtroom confrontation.
Simply hoping that such questions won’t arise – or, worse, winging it if they do come up – can have disastrous results.
When a crisis happens to a firm or organization, whether true or perceived, the public demands accountability. There may be scathing op-eds in top-tier publications or a decrease in revenue for the firm. There may even be protests outside its doors.
So what is the "no comment" solution?
Craft a core-messages platform that anticipates the most likely and challenging questions. By prioritizing certain key points of information into a logical flow and weaving them into answers to reporters’ questions, it is possible to avoid a "no comment" response.
If one has effective core messages, repeated clearly and often, they have a greater likelihood of being picked up by reporters in news stories and broadcasts.
Brewer should have said, "It would be more appropriate to ask Target who they are interviewing. My focus is on Sam’s Club and ensuring that the company continues to grow and succeed by responding to the evolving needs of our customers."
That being said, the reporter might have been anticipating a rehearsed response; she likely had heard similar answers from polished CEOs. Still, the conversation might well have returned to Brewer’s earlier core messages, diffusing the situation.
While we know this "be prepared" solution is simple, you’d be surprised how often in a complicated situation – or when the camera is on – smart people forget.
There are, of course, times when it is not only appropriate, but also legally necessary to say "no comment." For example, during a potential or ongoing merger or acquisition, multiple securities laws could be violated by any official comment or acknowledgement that the process is taking place. It is common practice in such situations – and expected by seasoned M&A reporters who have to ask the question anyway – to provide a "no comment."
But "no comment" should not be used as a crutch. The media should not be viewed as an adversary looking to attack or bring a company to its knees. Rather, every interaction with the media is an opportunity to convey the firm’s messages and advance its business objectives. If the media isn’t provided the messages, they will infer or create them, sometimes with unpleasant results. Even worse, when the other side is talking and you are not, whose messages do you think will shape the story?
Don’t let your silence become the story. Use your narrative to write the story.

Unsolicited Public Relations Advice for Hillary Clinton

A friend, who knows that I was a Clinton delegate at the 2008 Democratic National Convention, asked me what public relations advice I would give the former Secretary of State concerning her emails.

I think that Mrs. Clinton's recent press conference, and her request that the State Department release all of the emails she submitted, were good steps in the right direction, but have failed to completely staunch the bleeding. Recognizing that some of her critics will never be satisfied, my advice at this point would be that she needs to go further. She should make her email server available, and allow an image to be made of the hard drive. She should do this in conjunction with a request that Secretary of State Kerry appoint an individual to direct a review of the hard drive for emails related to Mrs. Clinton's service as Secretary of State. In order of preference, these would be the individuals that Secretary Kerry should solicit: Former Senate Majority Leader George J. Mitchell, Former Secretary of Defense and CIA Director Leon Panetta, Former Secretary of Defense and CIA Director Robert Gates, and Former Secretary of State Madeleine Albright. If this were to happen, Mrs. Clinton could respond to further inquiries thusly: "My staff delivered 55,000 pages of emails to the Department of State. I asked that they err on the side of including anything that might be relevant, and I am confident that they did so. Recognizing that it is important that there be confidence in the process, I have made an image of the server hard drive available to Secretary of State Kerry, who has asked (Mitchell, Panetta, Albright, or Gates) to direct a review of the hard drive to double-check that all relevant emails have been provided to the State Department. At the end of this process, all of the emails related to my service as Secretary of State will be made available."

Aligning Legal Strategy With Public Positioning

Two recent examples of failures to align litigation strategy with public positioning demonstrate the ease with which a seemingly sound legal position can cause reputational harm.

The first example involves Saks Fifth Avenue, a company that has long taken pride in its support for its lesbian, gay, bisexual, and transgendered employees. Since 2001, the retailer has offered a full range of health benefits to same-sex couples, and it partners with LGBT rights advocacy groups to help it promote a culture of inclusion.

Saks’ reputation for inclusion suffered severe damage because of its legal response to a lawsuit filed by a transgender employee. A trans woman who had worked in a Houston Saks store filed a lawsuit in Texas federal court alleging violations of Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, religion, or sex. She claimed that although her managers knew about her gender identity, they pressured her to dress in a more masculine fashion and instructed her to use the men’s restroom. She also claimed that her coworkers refused to use feminine pronouns when referring to her and insulted her in front of customers. Her complaints about a hostile work environment, she alleged, got her demoted and eventually fired, even though she was a successful salesperson.

In response, Saks’ legal counsel filed a motion to have the case dismissed, arguing that Title VII does not protect transgendered individuals from employment discrimination, and therefore she had no case. The motion read in part that “[a] prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.”

While Saks’ may have had a sound legal position, as courts have come down on both sides of the question of whether transgendered individuals are protected by Title VII, the motion nevertheless was a self-inflicted wound to the company’s reputation for inclusion. A Bloomberg Business article on the filing captured the perception the motion generated: “Saks Claims It Has the Right to Discriminate Against Transgender Employees.” In 2014, Human Rights Campaign, which promotes civil rights for the LGBT community, had scored Saks 90 out of 100 on its Corporate Equality Index. As a result of the motion to dismiss, the organization announced that it was suspending Saks’ rating.

Although Saks initially stood by the motion to dismiss, eventually it relented and withdrew the motion, stating that it would fight the case on its merits.

The second example involves Cleveland, Ohio, and the city’s response to a civil rights case filed in federal court by the family of Tamir Rice, a 12-year-old boy who was fatally wounded by a Cleveland police officer who mistook the boy’s toy gun for a real one. In response to the lawsuit, the city asserted twenty defenses, one of which was that the boy died because of his own actions and not because of police department errors: “[Tamir’s] injuries, losses, and damages complained of, were directly and proximately caused by the failure of [Tamir] to exercise due care to avoid injury,” and that Tamir’s injuries “were directly and proximately caused by the acts of [Tamir], not [the City of Cleveland].”

A headline from a CBS News report captured the perception the filing generated: “Tamir Rice caused his own death, city of Cleveland argues in court doc.” As a result of the anger that grew over the filing, Cleveland Mayor Frank G. Johnson called a news conference to apologize for the filings “poor use of words,” further stating that: “We used words and phrased things in such a way that was very insensitive.”

In both examples the lawyers failed to appreciate how the legal defenses they were asserting would damage their clients’ public position. In cases like Saks’, where a company may be relying on local counsel for its defense, it falls upon the in-house counsel who supervise outside counsel to review all the pleadings to make sure that they are consistent with company policy and do not cause harm to the company’s reputation. In a case like Cleveland’s, which is being handled in-house, it falls upon the city’s chief counsel to make sure that the pleadings are sensitive to the larger issues that might be impacted.

Can The Internet Kill Your Lawsuit In One Day?

Yes, if you are a craft brewer with a large and vocal following. On Monday, January 12, 2015, Lagunitas Brewing Company filed a trademark infringement claim against Sierra Nevada Brewing Company over the alleged similarity between the lettering on Lagunitas' IPA and the labels of Sierra Nevada’s forthcoming Hop Hunter IPA.

The complaint alleged, in part, the following:

The unique “IPA” lettering used in the Lagunitas “IPA” Family of Trademarks has a distinctive serif font, distinctive kerning (or letter spacing), between the “P” and the “A”, slightly aged or weathered look, with uneven areas on each of the letters, and the elimination of any periods between the letters. These elements together are unique to the iconic design of the Lagunitas IPA.

According to the SF Gate, “The similarities are so great, Lagunitas argues, that the new Sierra Nevada beer will either harm Lagunitas’s brand or look like a collaboration. The company is seeking a temporary restraining order against the release of Hop Hunter, as well as financial compensation.”

As could be expected, Sierra Nevada strongly objected to the allegations:

The Complaint alleges that Sierra Nevada’s Hop Hunter IPA design will create confusion among consumers between the Lagunitas IPA and Sierra Nevada’s new Hop Hunter IPA, and we intend to vigorously dispute that any consumer could possibly confuse our Hop Hunter packaging with anything that Lagunitas has.

The Internet agreed with Sierra Nevada, and let Lagunitas know of its disagreement with the legal action. So one day later, Tuesday, January 13, 2015, Lagunitas announced that it was withdrawing the lawsuit. Lagunitas' founder and owner, Tony Magee, went into full damage control mode, sending out tweets about the decision to drop the lawsuit and granting interviews to media such as the Chicago Tribune and Paste Magazine. Magee used the following tweet as his mea culpa:

Today was in the hands of the ultimate court; The Court of Public Opinion and in it I got an answer to my Question; Our IPA’s TM has limits.

You Win Or You Die

Helping a client win in the court of public opinion requires that the legal issues be framed in a way that the public can easily relate to and understand.  Tried and true methods of getting the public on the client's side include casting the client as a victim of injustice, an underdog, or a David fighting against Goliath.  The lawyers representing two food truck operators who have sued the City of Chicago have produced a video that masterfully invokes these sentiments in a clever and creative way.  They have used imagery derived from the Emmy Award winning title sequence of HBO's Game of Thrones to frame the lawsuit as the Game of Food Trucks, a game (or lawsuit) that their clients must win to survive.

Chicago, like most major cities, has always had food trucks.  It is common to see them parked outside of construction sites, surrounded by workers buying a doughnut for breakfast or a sandwich for lunch.  In Chicago, the hours of operations of these catering trucks were limited, and they were prohibited from serving food prepared on the truck.  Therefore, the operators would prepare or buy the food at a brick-and-mortar facility, load the truck, and drive to a location where they would find customers.

A few years ago, entrepreneurs in Chicago began to operate gourmet food trucks, which had become popular in cities such as Los Angeles, Portland, Oregon, and Austin, Texas.  These trucks operated in the same way as the traditional catering trucks; the operators would prepare the food at a brick-and-mortar facility, load the truck, and drive to a location.  As they developed a following, they would use social media to alert their customers to the time and place where they would be located.  As their numbers grew, some of the entrepreneurs formed the Illinois Food Truck Association, and petitioned the City of Chicago to ease its restrictions to allow more hours of operation and the preparation of food on the trucks.

In July the Chicago City Council passed an ordinance that allowed food trucks to roam the streets from 5 a.m. to 2 a.m. and to serve food prepared on the truck.  However, the ordinance prohibited a food truck from parking within 200 feet of a restaurant, and required the trucks be outfitted with a G.P.S. device so that the truck movements and locations can be monitored.

The lawsuit challenging these restrictions was filed November 13, 2012.  Here is the video the lawyers produced that accompanied the filing of the suit:



Is something like this effective?  The lawyers from the Institute for Justice included a link to the video in their press release announcing the suit had been filed.  The local PBS outlet, WTTW, produces a program where a panel of journalists recap the week's news.  On the November 16, 2012 show, they begin a discussion of the food truck ordinance and the lawsuit at the 12:20 mark. Chicago Tonight: The Week in Review: 11/16 | Chicago Tonight | WTTW.   Judge the effectiveness for yourself.

Finally, in case you have not seen it, here is the title sequence from Game of Thrones:

Never Mind

Has U.S. District Court Judge Alsup gone from channeling Toto to channeling Emily Litella?  In my last two blog posts, "Pulling Back The Curtain," Part I and Part II, I wrote about the orders Judge Alsup had entered in the Oracle v. Google lawsuit, demanding the names of any "print or internet authors, journalists, commenters or bloggers" who had been compensated by the parties and written about the case.  Judge Alsup issued an order Tuesday, in which he denied Google's motion for judgment as a matter of law, or in the alternative for a new trial.  Judge Alsup used the order as an "opportunity" to notify the parties that he would "take no further action regarding the subject of payments by the litigants to commenters and journalists." Perhaps Judge Alsup was concerned that by demanding the information, he might have revealed that he closely followed how the case was covered in the media, and realized that a question could be raised asking whether he had been influenced by that coverage.  Therefore, he used the order to state further that he "reassures both sides that no commentary has in any way influenced the court's orders and ruling herein save and except for any treatise or article expressly cited in an order or ruling."  Thus, in the immortal words of Gilda Radner as Ms. Litella: "Never mind."