Thursday, March 12, 2015

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."

Friday, March 6, 2015

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.

Thursday, January 15, 2015

Can The Internet Kill Your Lawsuit In One Day?

Lagunitas Files Legal Action Against Sierra Nevada

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.

Monday, November 19, 2012

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:

Thursday, September 6, 2012

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."

Tuesday, September 4, 2012

Pulling Back The Curtain, Part II

Pulling Back The Curtain, Part I, can be found here.

In response to Judge Alsup's order, Google filed its supplemental disclosure on August 24.  It reiterated its previous statements and asserted that it did not pay any authors, journalists, commentators, or bloggers to report or comment on its trial against Oracle. However, it did disclose the names of twelve individuals and six organizations who commented on the case and had in the past received money from Google.

Of the twelve individuals on Google's list, the one who has drawn the most attention is Mark Lemley, a well-known professor at Stanford Law School.  Google revealed that Professor Lemley "serves as outside counsel" on "unrelated cases." One commenter was skeptical of the line Google was attempting to draw: "That's a pretty fine distinction: regardless of whether Google retained Lemley for the Oracle case or not, he's still Google's lawyer, and he's almost always quoted as a Stanford professor, not 'Google outside counsel.' "  Another noted that his research found that:
"Lemley was ... cited and quoted in at least three news items or articles related to the Google-Oracle litigation. ... his relationship to Google was not revealed in any of those stories.  As I quickly read those articles I found no explicit pro-Google bias. While it’s a bit of a gray area, as an attorney Lemley probably should have disclosed and explained his relationship to Google. He probably would still have been quoted. However his retention by Google isn’t mentioned."  
However, more than one commenter felt that the journalists who quoted Professor Lemley share the blame for not disclosing his relationship to Google:
"Professor Lemley is known as a controversial figure -- a legal professor whose profession is not patent law, but who has published journal papers attacking he current mire of patent law. And his page on [the] Durie Tungri [website] does mention he represented Google. So the SF Chronicle and Mercury News (Silicon Valley) should arguably have known what they were getting into when they Google searched (irony) his name."
In his August 20 order requiring Google to supplement its initial submission, Judge Alsup stated why he was requiring Oracle and Google to make the disclosure:
"Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways.  If a treatise author or blogger is paid by a litigant, should not that relationship be known?"
In the context of high stakes litigation, public relations is used to influence public opinion, not the judge or the judge's staff. Nevertheless, Judge Alsup has put the litigants that appear before him on notice that they may be required to reveal whether any authors, journalists, commenters, or bloggers who report or comment on his cases have received money from the party or its counsel.  It will be interesting to see whether other judges follow his lead.


Thursday, August 30, 2012

Pulling Back The Curtain, Part I

Has a federal district court judge found inspiration in Toto, Dorothy's dog in The Wizard of Oz?  While a great deal of attention has been paid to the patent infringement trial pitting Apple against Samsung, which resulted in a $1 billion jury verdict in Apple's favor at the end of last week, recent events in a case involving another patent infringement trial, this one featuring Oracle against Google, have caught the attention of the legal and public relations communities.

Oracle had sued Apple, alleging that elements of Apple's Android operating system contained misappropriated items from Oracle's Java code.  Early in May, 2012, the jury found that Apple had infringed Oracle's copyrighted program, but the jury deadlocked on whether Apple's infringement fell within the "fair use" doctrine.  The jury later found that Google had not infringed two Oracle patents.

On August 7, 2012, U.S. District Court Judge William Alsup, who had presided over the trial, issued an order requiring the attorneys on both sides to file a statement by August 17th "identifying all authors, journalists, commenters or bloggers who have reported or commented on any issues in this case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action."

Judge Alsup's order was procedurally and substantively unusual.  As to procedure, the order came two months after the trial had ended, and neither side had requested the issuance of such an order.  Judge Alsup issued the order on his own volition, saying that he was "concerned that the parties and/or counsel herein may have retained or paid print or internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in this case."  Judge Alsup justified the order by stating that it would be useful for the appellate court to know "whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel."

The substance of the order, that a judge wanted to know whether bloggers and others were being paid by the parties to comment on the case, caused both the legal and public relations communities to speculate on what led to its issuance.  One thought was that the disclosure in April by Florian Muller, a prominent blogger who had been critical of Google, of his financial ties to Oracle may have led Judge Alsup to wonder whether there were other undisclosed relationships between bloggers and the parties.  Another thought was that a July 27th San Jose Mercury News article had brought attention to the "vast shadow army of law firms, public relations specialists, trade organizations, pundits, think tanks and academics [that] has emerged to dominate the debate over Google," and the fact that "many of them are paid for their opinions."  The article began with a specific example:
"Scott Cleland hates Google for a living.  For the past five years, the McLean, Va.-based analyst has churned out an endless stream of anti-Google papers, memos, research, testimony -- even a book: 'Search & Destroy: Why You Can't Trust Google Inc.' While his views that Google is a dangerous monopolist once seemed like a fringe theory, it has now drawn the attention of antitrust and privacy regulators throughout the world.  'I feel less lonely,' Cleland said. 'I have a strong belief that the wheels of justice turn slowly, but they turn truly.'  But as Cleland's crusade has gained popularity it has also gained funding -- to a degree that he won't disclose -- from Google's competitors, including Microsoft. While he insists that his influential views remain his own, the financial connection begs the very real question of whether he is a hero or a paid corporate hit man -- and whether the debate he pushes is a legitimate intellectual discussion or a commercial enterprise."
Members of the legal community also questioned the scope of the order, whether Judge Alsup had the power to issue it, and whether it was constitutional.  See, for example, "Alsup Goes Fishing With Wide Net."  However, since neither Oracle or Google challenged the order, the issues of power and constitutionality were unlikely to be addressed.  Similarly, questions as to the scope of the order would have to wait until Judge Alsup reviewed the parties' submissions to see whether they had complied.

Getting favorable media for clients, or neutralizing unfavorable media, is a large part of the public relations raison d'etre. Within the public relations community however, Judge Alsup's order revealed differing attitudes as to the propriety of paying bloggers.  PRWeek interviewed representatives of several agencies, and the consensus seemed to be that it is an acceptable practice to pay bloggers as long as the compensation is disclosed.  However, as I blogged about in "Social Media and Astroturfing," this is no more than the law requires.  Payments to bloggers for favorable reviews are required to be disclosed by the Federal Trade Commission, and the FTC has brought enforcement actions against companies that failed to make the required disclosure.  Hill + Knowlton Strategies expressly forbids compensation to bloggers.   Steve Barrett, a PRWeek editor,  wondered whether, even with disclosure, paying bloggers is appropriate:
"Am I the only one who feels extremely uneasy and uncomfortable about this whole paying bloggers debate?  . . .  [i]f a brand or an agency is paying these bloggers to write about brands, that has gone way beyond PR's traditional territory of earned media into the paid media environment - or, as it is also known, advertising.  That's an area that is fraught with danger in my opinion."
When the August 17th deadline for compliance arrived, Oracle confirmed in its submission that it had a paid consulting relationship with Florian Mueller.  As for Google, it notified Judge Alsup that the scope of his order created a group too large to list, but it assured Judge Alsup that it had not compensated anyone "to report or comment on any issues in this case" or otherwise struck a "quid pro quo" arrangement for favorable coverage.  In response, Judge Alsup issued a new order expressing his dissatisfaction with Google's submission:
"in the court's view, Google has failed to comply with the August 7 order.  . . .  Google suggests that it has paid so many commenters that it will be impossible to list them all. Please simply do your best but the impossible is not required. Oracle managed to do it. Google can do it too by listing all commenters known by Google to have received payments as consultants, contractors, vendors, or employees."
Judge Alsup required Google to supplement its filing by August 24, directing it to "disclose those commenters that can be identified after a reasonably diligent search,"  with the following clarification of  his original order:
"Payments do not include advertising revenue received by commenters. Nor does it include experts disclosed under Rule 26.  . . .  As for organizations receiving money, they need not be listed unless one of its employees was a commenter. Gifts to universities can be ignored."

Google filed its supplemental disclosure on August 24th.  I'll discuss what was in it, and the reaction to it, on Tuesday, September 4th.  Have a good Labor Day Holiday.