A Full Court Press

Lawyers for Dallas Mavericks' owner Mark Cuban are trying to turn the Mavs win over the Miami Heat on the basketball court into wins in the court of public opinion and the court of law. This "full court press" is in response to a 2009 lawsuit by Hillwood Investment Properties, a company controlled by H. Ross Perot, Jr., son of the former presidential candidate, against Dallas Basketball Limited, the company controlled by Mr. Cuban that operates the Mavs. Hillwood is a minority owner of the Mavs, having retained a 5 percent share of the team after Mr. Perot sold Mr. Cuban a controlling interest in 2000 for $285 million. The suit seeks the appointment of a receiver to manage the team's affairs, claiming that Mr. Cuban's mismanagement has pushed the team to the brink of insolvency and that the Mavs are $200 million in debt.

Mr. Cuban's legal team, Thomas Melsheimer and H. Brett Johnson of Fish & Richardson, contend that winning the NBA championship amounts to a slam dunk in Mr. Cuban's favor and have filed a summary judgment motion seeking the dismissal of Hillwood's lawsuit. The four page motion, which you can read here, is dominated by a large color photograph showing the Mavs celebrating, Mr. Cuban being interviewed, and Dirk Nowitzki hoisting the championship trophy. The motion is also remarkable in that it cites no cases in support of its terse argument:

On June 11, 2011 the World Champion Dallas Mavericks defeated the Miami Heat to claim the franchise's first NBA championship. . . . Under Hillwood's ownership, the team was deemed the 'worst franchise' in all of professional sports. Under Cuban's stewardship the Mavericks have become one of the league's most successful teams and are now NBA champions. Accordingly, there can be no genuine question that Hillwood's claims of mismanagement lack merit and Hillwood's claims should be disposed of on summary judgment.

When asked by Deadspin.com to comment on the filing, Mr. Melsheimer offered the following embellishment:

You don't have that many cases when you're watching television and a game ends, and you think, 'wow this is really great for my lawsuit.' . . . It's a humorous twist, but it has legal force. It makes a serious point that allegations of mismanagement are ridiculous. A substantial part of our defense is that the Mavericks are successful, and what more obvious success for an NBA team than an NBA championship?

It is doubtful that the summary judgment motion will result in the dismissal of the lawsuit, but it has certainly garnered positive media attention for Mr. Cuban.

The SEC: Where Fun Goes To Die

The United States Securities and Exchange Commission, whose employees were exposed for watching and downloading pornography at their desks during the financial crisis, is now clamping down on all fun and games. The Commission sued two advertising executives who started the website "BuyaBeerCompany.com," hoping to raise $300 million to buy Pabst Brewing Co. The putative beer barons also created a Facebook page and Twitter feed to attract would be investors, promising them "a certificate of ownership as well as beer of a value equal to the amount invested," according to the SEC press release. The two men consented to the entry of an administrative cease and desist order, for the moment ending their dream of owning a brewery.

Would-be Beer Company Owners Busted by SEC

The Breaches of Madison County

In an earlier post, "Maintaining Privileges," I examined whether discussions with a litigation communications consultant are protected by the attorney-client and work-product privileges, and provided links to two articles that outline the steps that should be taken in order to maximize privilege claims. The Sunday, May 20, 2011 Chicago Tribune contains an article written by Ameet Sachdev, the Tribune's legal reporter, describing the fallout when a judge rejected assertions of privilege and ordered the production of a plan written by a litigation communications consultant. It is a cautionary tale that is well worth reading. "PR executive sets off firestorm with proposal to discredit Madison Count court system."

The backstory is as follows: In 2004 a lawsuit was filed in Madison County, Illinois by the Holiday Shores Sanitary District against Syngenta Crop Protection Inc., the maker of the weedkiller atrazine. The suit alleges that atrazine runs off farm fields into drinking water supplies that water providers such as Holiday Shores must then remediate. Holiday Shores sought to lead a class action on behalf of all Illinois water providers.

Madison County has the reputation of being a favorable venue for plaintiff class actions. For years the courts in Madison County were on the American Tort Reform Association's annual list of "judicial hellholes."

In the summer of 2005, Syngenta contacted Jayne Thompson & Associates ("JTA"), a public relations firm owned by the wife of former Illinois Governor James Thompson, seeking communications counsel concerning the litigation. In October JTA provided a 13-page proposal to Syngenta on how the firm could support the company during the litigation, including, in the third part of the proposal, a plan for a negative media campaign against the Madison County courts. The proposal became the subject of a discovery dispute, and after reviewing it in chambers, Madison County Circuit Judge William Mudge ordered Syngenta to produce the JTA proposal to the plaintiffs, ruling the proposal was not privileged because it had "nothing to do with trial strategy or the preparation of this case for trial ... but much to do with fostering a negative public perception of our judicial system." Judge Mudge characterized the JTA proposal as follows:

In a nutshell a major element of the October 2005 JTA proposal outlines a plan to tie the defense of this action into a negative public relations campaign that castigates the Madison County judicial system as a 'judicial hellhole' and a source of 'jackpot justice,' and, in part, to undertake efforts to enhance the public's perception of Syngenta and the herbicide it manufactures at the expense of the Madison County judicial system. ... Although the document utilizes the term 'litigation support' on a couple of occasions, the proposal actually outlines an aggressive public relations strategy to build upon or create a hostile attitude toward the Madison County judicial system.

You can read Judge Mudge's decision here.

Dominic Strauss-Kahn PRs Up

Earlier this week, Reuters reported that Dominic Strauss-Kahn's legal team is consulting with Washington, DC firm TD International for public relations advice. "Strauss-Kahn's team consults ex-CIA officers' firm." This event has lead to some unfortunate, though not surprising, speculation concerning how Mr. Strauss-Kahn's lawyers are planning to defend him. "DSK public relations strategy kicks into high gear."

Lance Plays Hardball

Update: On February 3, 2012, the United States Attorney's office in Los Angeles announced that it had closed the investigation into Lance Armstrong's alleged use of performance enhancing substances. Justice Department Puts Brakes on Lance Armstrong Investigation. The US Attorney for Los Angeles, Andre Birotte Jr., took the highly unusual step of issuing a press release announcing the investigation had been closed, saying the release "was warranted by numerous reports about the investigation in media outlets around the world."

In September 2010 I blogged that Lance Armstrong had added legal and communications consultant Mark "master of disaster" Fabiani to his team in order to try to limit the damage to Mr. Armstrong's reputation caused by the federal government's performance enhancing substance investigation. "Lance Armstrong Hires Litigation Communications Consultant." In the wake of a recent "60 Minutes" story wherein Tyler Hamilton, a former teammate, alleged that Mr. Armstrong used banned substances, you can see evidence of Mr. Fabiani's aggressive style of litigation communications at a new website, "Facts 4 Lance." For example, Mr. Fabiani posted the following statement in regards to Mr. Hamilton:

Tyler Hamilton is a confessed liar in search of a book deal – and he managed to dupe 60 Minutes, the CBS Evening News, and new anchor Scott Pelley. Most people, though, will see this for exactly what it is: More washed-up cyclists talking trash for cash.

In addition, Mr. Armstrong has supplemented his legal team by retaining Robert Luskin of the Washington, DC firm Patton Boggs. Among others, Mr. Luskin is known for having represented Karl Rove during the Valerie Plame investigation. "Patton Boggs' Luskin Takes On Armstrong Accusers."

Finally, with the goal of adding some balance to this post, here's an interview with Mr. Hamilton's lawyer explaining why his client agreed to appear on "60 Minutes." "Q&A: Cyclist Tyler Hamilton's Lawyer On Why His Client Came Clean."

Taco Bell's Victory Lap

In an earlier post, "Where's The Beef?", I discussed how Taco Bell started off slowly, but eventually developed an effective public relations response to a class-action lawsuit claiming that there was little beef in the restaurant's tacos. With the announcement earlier this week that the lawsuit had been voluntarily withdrawn, today Taco Bell really put the hammer down, demanding an apology in full page ads in the Chicago Tribune, Los Angeles Times, New York Times, USA Today and the Wall Street Journal. "Taco Bell demands apology after lawsuit withdrawn."

The dismissal of the lawsuit is a victory for Taco Bell, and the ad is very effective at conveying that point. However, I continue to have problems with Taco Bell's assertion, repeated in this ad, that "[W]e've ALWAYS used 100% USDA-inspected premium beef." First, the issue in the lawsuit was not so much what Taco Bell started with, but what ended up in the tacos. In this regard, Taco Bell itself asserted that its tacos contained 88 percent beef and 12 percent seasonings, spices, water and other ingredients. Second, the term "100% USDA-inspected" is largely meaningless because United States Department of Agriculture inspection of beef is mandatory. In fact, a USDA official has to be on-site whenever a meat processing plant is operating. Therefore all beef is USDA inspected, not just Taco Bell's. Third, the use of the term "premium beef" can also be misleading, because beef can also contain minor amounts of bone, blood vessels, cartilage and nerves, according to the USDA, and ground beef, in particular, is often made from the less-desirable parts of the steer.

Perhaps my quibbles will be seen as minor compared to the overall strength of Taco Bell's eventual response to this litigation. However, given the totality of its litigation and public relations victories, there was no need for it to take a chance and leave open the possibility of criticism.

National Be Kind To Lawyers Day

Today is National Be Kind To Lawyers Day. Please feel free to leave me a comment telling me how you will be observing the day.

Web: www.BeKindToLawyers.com.