With Clinton and Trump neck-and-neck in the polls, one winner is certain — the powerful plaintiffs’ bar. For the first time in history, the presidential nominees of both parties are champions of aggressive legal tactics and excessive litigation.
One candidate, Trump, views legal intimidation as an effective weapon to stymie personal and political criticism. The other, Clinton, is a former law firm partner whose perpetual campaign has long run on trial lawyer donations.
As the plaintiffs’ bar anticipates tightening its grip on the Oval Office, it is also renewing class-action assaults on business. Engorged by large winnings from tobacco settlements, litigants are spinning frivolous claims based on junk science into contingency-fee gold.
Take some recent cases from just one sector, food companies, as examples of a trial bar out of control.
PepsiCo’s Quaker Oats faces a class-action lawsuit alleging that an herbicide applied before harvesting renders its “100% Natural” claims deceptive. Never mind that only microscopic traces of herbicide can be detected in its oats, a mere 4 percent of levels allowed in cereal grains by the EPA. PepsiCo is forced to fight against product recalls and expensive restitutions.
Starbucks is fighting a class-action lawsuit for allegedly putting too much ice in its cold drinks. Most people would just ask for less ice, or post a complaint on Yelp. Plaintiffs’ lawyers want more than $5 million, which is a lot of iced lattes.
Or consider Subway, attacked because its famous foot-long sandwiches were as much as an inch short. In February, Subway settled for half-a-million dollars to plaintiffs’ attorneys. Its sandwiches are now measured like feet in a shoe store.
These frivolous lawsuits are expensive to counter and damaging to brand and equity value. Given the potential for a runaway jury, and lawyers’ ability to create vast plaintiff classes, the pressure to settle is enormous.
As we enter a renewed era of trial-lawyer onslaughts, all corporations, whether food, manufacturing or service firms, should take a page from the take-no-prisoners defense by one Fortune 500 — energy supermajor, ExxonMobil.
While the Virgin Islands has never been known as a laboratory of legal thought, its grandiose Attorney General Claude Walker tried to employ a novel application of anti-racketeering law to hold ExxonMobil accountable for funding climate science critiques. Additionally, New York’s liberal Attorney General Eric Schneiderman is expanding a coalition of blue-state AGs to make a case that the energy giant distorted science to single-handedly hide the possibility of global warming.
The common thread in all these issues is the application of granular logic to break down science — and in the Starbuck’s situation, common sense — portraying today’s corporations as street swindlers.
In late April, the oil and gas giant countersued, alleging that Walker and his private contingency-fee lawyers “are abusing the power of government.” This suit forced Walker to drop a subpoena for 40 years of documents. The company has defended itself with chutzpah in blogs and statements. And it is also spending digital resources to painstakingly document the record of research on climate change.
This is in contrast to many companies that, when hit by the trial bar, are flustered, displaying muted, flat-footed responses.
Like deer in headlights, corporate executives on vlogs issue bland statements about wholesomeness and integrity that carry little credibility with consumers. They should instead follow the Exxon example by enlisting credible researchers to expose the faulty logic and nonsense of plaintiffs’ lawyers and the digital assassins who make up their social media echo chamber.
Today’s plaintiffs’ lawyers rely on digital assassination tactics to intimidate companies. Their attacks are instantaneous, vivid, at work 24/7, and have global reach with eternal memory. Corporations must recognize that in this social media environment, even frivolous lawsuits can prevail, particularly in the court of public opinion where bland responses fall flat in digital or traditional media environments.
Public policy strategies — legal and communications — must be integrated to protect reputation, brand, management attraction and retention, as well as equity value. When attacked, effective and pointed responses must be mounted — especially on weekends or holidays — within the new “8-hour digital day*,” the time it takes for unwarranted charges to be absorbed into the public consciousness and go viral. Many corporate leaders — and their advisors — still do not understand this need for speed.
Ready teams must be in place today, trained and armed with effective new digital strategies, rehearsed for muscle memory, to unleash combined legal and communications defenses amplified by allied influencers on social media.
Those who are quick to learn and be aggressive in applying understandable science, images, videos and blogs will keep the confidence of consumers and maintain equity value. Even with trial lawyer bullies emboldened by a President Clinton or a President Trump, those who fight back will be less likely to be tomorrow’s victims.
Richard Torrenzano is chief executive of The Torrenzano Group, a New York strategic communications and high-stakes issues management firm. Mark Davis is a former White House speechwriter. Torrenzano and Davis are co-authors of "Digital Assassination: Protecting Your Reputation, Brands, or Business Against Online Attacks." Read more reports from Torrenzano and Davis — Click Here Now.
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