Stop the Presses

New York Governor Eliot Spitzer is facing a personal brand crisis of the highest degree. Even though he’s apologized to his constituents, he’s harmed himself in way that offers no immediate remedy. In an instant, he’s gone from being the people’s squeaky-clean crusader to ‘just another politician’ embroiled in an ugly political scandal. Right now, the facts are at odds with what was perceived to be his brand.

In his Sunday NYT op-ed, Spitzer admits, “We made mistakes.” Admitting and taking responsibility for those mistakes are a move in the right direction. They are the first of many small steps toward regaining the respect of the public, and stepping out of the harsh glare of the media spotlight. Sure, Republicans in the State Senate will do everything they can to keep this one alive, but now is the best time to look forward and re-build that precious commodity called reputation.

Spitzer’s next steps will be to look for or create opportunities to be conciliatory rather than argumentative. Spitzer must return his focus (and by proxy, the public and media focus) back to doing good things for the people of the state of New York. Now would be a good time to propose legislation that improves the lives of his constituents, most of whom are more interested in lower taxes and fewer potholes than the latest political ‘nonsense.’

I believe this story is one we’ll be hearing about for a while…

If the attorneys representing 70s new wave band The Rubinoos weren’t responsible for posting the now-removed Avril Lavigne v. The Rubinoos videos on YouTube, they should certainly thank whoever was.

Why? Because before the copyright infringement case has ever been heard by a jury or judge (in fact, the first court date isn’t until August 28) they’ve tried their case in the court of public opinion. And many would say The Rubinoos are in the lead. Before the video was removed from YouTube (due to a copyright claim by RCA Records) the 25-second video had been viewed more than 776,000 times and had garnered nearly 1900 comments from viewers.

By trying their case online before it ever hits the courtroom, The Rubinoos and their counsel are creating buzz. They’re conditioning the jury pool. And when their lawyers finally get to the litigation stage, they’ll certainly have the upper hand.

But YouTube isn’t just for the entertainment industry. When communicating your message, whether it is a case of copyright infringement, a product that doesn’t work like it should, or even a product that is potentially dangerous, don’t forget the power of images.

One video on YouTube–whether it be comparing two songs recorded 25 years apart or showing a laptop battery exploding–is infinitely more compelling than a press release describing the same situation.

To quote 70s rock icons Rush: “Show me, don’t tell me.”

The Tim Donaghy game-fixing/betting situation brings a dark cloud over the National Basketball Association and its commissioner David Stern during an extremely tumultuous time in professional sports.

I believe Stern should be applauded for the adept way he’s handled the issue. He identified the Donaghy situation as an isolated incident, launched an internal investigation and subsequently turned it over to the FBI. His increasingly robust leadership is exactly the kind of courage and integrity a Commission or CEO needs to express in times of crisis and uncertainty. Instead of judging, we should all give him time to make his next move, as he’s made all the right moves so far.

Some think Stern ’should have’ known. But even sports handicapper Jimmy Boyd admits that “If a guy were to space out a bunch of games over two seasons it’s not going to be easily detectable.”

That said, it now seems that the NBA and other professional sports will have to track and analyze their ref’s calls in the same way that Vegas keeps tabs on bettors. If the odds don’t add up, that’s the league’s cue to begin an investigation; otherwise, they’ll wake up to the same credibility nightmare professional cycling is facing.

One thing is for certain: This situation cannot happen again among referees. Even a player involved in gambling on NBA games, ala Pete Rose, will dampen the NBA’s brand. Commissioner Stern needs to continue to make the league’s ‘no tolerance’ stance very clear. I believe that he will.

Where money lies, corruption follows. As long as the Donaghy situation is the isolated incident Stern asserts it is, fans will forgive, players will play and the NBA should weather the credibility storm.

If you’re a lawyer interested in earning CLE credits and learning more about Class Actions, check into CLE International’s upcoming National Conference on Class Actions, happening October 22 and 23 in Miami, Florida.

I’ve attended many of CLE’s conferences and have always found them to be enlightening. This year, I’m delighted to announce that in addition to attending, I’ll be delivering the keynote presentation, “Communicating with the Media: What Every Lawyer Needs to Know.” There will also be sessions covering topics like managing the early stages of class action litigation; class action reform and the settlement process; and, the Class Action Fairness Act of 2005.

See you at the conference.

A professional athlete is, in essence, a one-man brand. And like celebrities and politicians, what a pro athlete says or does is likely to be fodder for the evening news. The media is extremely quick to respond with coverage when a pro athlete is in crisis–whether it be for charges of driving drunk, or more serious allegations.

For those who manage athletes, preparation for and a quick response to a crisis situation are both key. In preparing athletes for life in the media spotlight, keep in mind the need to:

• Approach public life like a public official: They’re a role model whether they like it or not. A person who runs for elected office understands that people are watching them, and that they’re under a higher level of public scrutiny–it comes with the territory. Pro athletes will benefit from thinking of their public life in the same way.
• Build a positive image early in the game: Promote community involvement and professional achievements to build a positive image in the press. Keep an eye on how the athlete’s image may impact current and potential sponsors, the community at large and the fan base.
• Take all media seriously, especially online media: Nineteen-year-old University of Georgia quarterback Matthew Stafford probably wasn’t thinking about future sponsorship deals when he posed for several photos showing him lifting a beer keg over his head. But when the photos made it online, I’m sure it crossed his mind. The Internet has a virtually infinite shelf life and the ability to travel at lighting-fast speed. Anything a high-profile athlete does online, from a supposedly private chat conversation to a ‘funny’ comment left on a message board can come back to haunt them. Interact accordingly.And while we’re talking about cyberspace, we would be remiss not to mention the blogosphere. Blogs are increasingly becoming powerful communications tools that often serve as ground zero for public opinion. Rumors that start out on blogs can potentially work their way toward fact in the mainstream media. Monitor all media, including blogs, for stories, photos and other content that could be harmful to the athlete’s brand.
• Create a plan: Sports management firms and the athletes they handle should be proactive and anticipate issues that may arise, then come up with a plan of action that includes their litigation and communication teams. The moment of crisis is not the time to have the lawyers telling you to say one thing and the public relations team suggesting a completely different approach–align these teams before you need them.
  
  
• Have 3rd party advocates waiting in the wings: In the time of crisis, an athlete needs a respected, credible person (who neither signs nor receives his paychecks) who could vouch for his/her character. If your athlete does charity work or volunteers within their community, people related to these organizations are prime candidates.

Athletes prove the point that the media can be interested in you regardless of your interest in it. Understanding this–and acting accordingly–is the first step in protecting their brand.

According to the latest reports, Whole Foods has hired special outside counsel and is conducting an internal investigation into CEO John Mackey’s online actions. Mackey has now apologized. It reads like a chapter right out of the crisis communications playbook.

For some shareholders and other key audiences, however, the outstanding question is whether this action comes too late in the game. Only time will tell.

Since my earlier post, the SEC has decided to take a closer look at Mackey’s online postings. In the post-Sarbanes Oxley world, transparency know no boundaries.

This month’s issue of Inside Counsel features the results of its recent general counsel survey where, among other questions, counsel was asked to rank the most important factors in hiring outside counsel (PDF; page 5).

Unsurprisingly, ‘quality of work’ and ‘responsiveness’ were both top-ranked, with ‘creative solutions’ and ‘billing rates’ not falling far behind. What was surprising to us, however, is how low ‘diversity program’ ranked in survey results. According to Inside Counsel, “Both in-house counsel and law firm lawyers agree that having a diversity program [is one of the] least important factors when general counsel pick a firm.”

From a communications standpoint, this kind of thinking is dangerously reactive. Consider this: Every year, media compiles a list (PDF) of the most and least diverse law firms. If your firm falls low or last on the list, diversity programs–and your communication about them–would quickly become a priority. Investing the time in diversity initiatives now isn’t just the right thing to do–it also ensures that you won’t be forced to dedicate hours in the future trying to explain to media, employees and clients why your company was low on the diversity list.

We love Whole Foods, with their glass cases filled with healthy gourmet fare and their produce aisle teeming with organic delights. And we like their CEO John Mackey, whose blog has always been one that other CEOs could learn a thing or two from. That’s why we feel so frustrated at recent news that Mackey ‘anonymously’ posted rants in Yahoo stock market discussion forums about his own company and others in his industry–including disparaging comments about Wild Oats Markets, a company Whole Foods has since tried to acquire.

From a communications perspective, three thoughts stand out in my mind:

1. The organic apple is bruised: Whole Foods has always enjoyed a reputation as a company that cares–a company that cares about your health, that cares about the environment, that cares about its workers. Their trust bank was high, but Mackey’s online shenanigans put the company in danger of going from a ‘company that cares’ to ‘just another company.’
2. A fake nose and glasses do make you look silly: Mackey would know better than to have done a television interview while trying to disguise his identity. Unfortunately, what he didn’t realize was that he would look just as silly (and would do serious harm to his company’s brand) by doing the equivalent of that in online forums.
3. The lawyers and the PR team must work together: How did this become public? The Mackey rants were exposed because the legal team appropriately and as required by law, put it into the filing to the FTC (link to filing here (PDF); mention at bottom of page 4). Despite the potential for an explosive public and regulatory reaction, it appears that the Whole Foods lawyers and PR people never developed a communications strategy to anticipate such a firestorm. They may never have even talked before it blew up. In this transparent age, attorneys must be sensitive to public relations issues and work hand-in-hand with the communications team before an issue goes public, in the best interest of their shared client. PR professionals should never practice law. Lawyers should not practice PR.

Certainly, Mackey may not have realized the power (and the staying power) of online communication when he started his posting campaign way back in 1999. Today’s CEOs should use the Internet–forums, message boards, the blogosphere–to communicate with their audiences. But they must do it with complete transparency, and they must honor it the same way they do traditional media. If you wouldn’t say it on CNBC with your name and title broadcast in a slick graphic at the bottom of the screen, by all means, do not say it online.

The U.S. Food and Drug Administration’s recent alert on farm-raised Chinese seafood is only one of the latest developments for an issue that has been brewing quietly for years now. You can expect to see many more news stories about Chinese food and consumer product imports like those about pet food and toothpaste. But U.S.-based food producers with an eye toward trade would be warned against loudly criticizing the products that have become so integral to our economy and our day-to-day lives.

The FDA–and Chinese government officials–are actively working to ensure food imported from China is safe. U.S. food companies should support them in their efforts, and let them do their job–tell your consumers how your company is cooperating with FDA efforts, but stop short of comparing Chinese and American food safety practices or pointing fingers. A hot-headed approach could ignite a national firestorm of protest against Chinese products; if that happens, we should expect that China would simply stop importing a variety of processed U.S. products.

Let the inspectors or pundits give the strong sound bites to media. The job of the U.S.-based food producer is to be part of the solution by cooperating with the FDA and telling consumers–on your web site and via other means–of your assistance.

For now, food and consumer product companies that depend on Chinese imports would be well-advised to steer the following course:

• Create and maintain a special web page to keep consumers up-to-date on you efforts to safeguard your products– especially your ingredients, which until now have been largely unnoticed.
• Monitor consumer blogs and examine your monitoring reports at least once a week to measure the levels of public concern over the Chinese import issue. Use that information to update your web site and all consumer correspondence.
• Consider developing alternative global sources for food ingredients and commodities. You don’t want to be caught flat-footed if access to Chinese products is blocked by U.S. regulators or the Chinese government.
• Reach out to key members of Congress and other FDA officials now to maintain an open line of communications about the issue and to avoid an overreaction on the part of lawmakers and regulators who are highly sensitive to consumer concerns.