Articles by Levick Experts

The tentacles of class action litigation have reached beyond American borders, much to the glee of trial attorneys and the dismay of corporations. In Canada, for example, class actions are increasingly a fact of life, a reality dramatized when Canadian pet food manufacturers took center stage in the ongoing pet food crisis.

Media, technology, and pharmaceutical corporations are also getting caught in the crosshairs, while plaintiffs’ law firms in Canada are learning how to recruit clients online with aggressive ads and postings.

Corporations affected by increased litigation in Canada include:

• Sony BMG is accused of selling music CDs encrypted with anti-pirating technologies that create dangerous privacy and security issues for consumers.
• Dell Computer has allegedly been selling defective computers susceptible to overheating and motherboard failure, often just after the standard one-year warranty expires.
• Bristol Myers Squibb is charged with failing to warn patients of the risks associated with the commonly prescribed antibiotic, Tequin. 

From the outset, plaintiffs’ lawyers have an underlying advantage: Because their clients are a mass group of ostensible victims, the damages seem all the more real. Class actions thus generate widespread perception that a whole human population is suffering at the hands of an indifferent entity, which just happens to be your company.

In response, Canadian businesses need multifaceted legal and communications strategies. At the very least, companies must learn how not to be seen as impersonal entities pitted against victimized population segments. To deflect the class action offense, and to establisha strong measure of public support, Canadians must learn what their neighbors to the south are already learning – that they need to be just as human, and just as worthy of sympathy and fair play, as the people suing them.

Toward that end:

• Show off your people – your employees and customers. Merck’s strategy in the Vioxx wars is a good example. In 2006, the company ran television commercials showcasing the human benefits of the work that its human employees were doing. There was no direct reference to Vioxx, only a generalized and effective message about the company itself.
• Attack the messenger – the plaintiffs’ lawyers, if appropriate, rather than the plaintiffs themselves. By targeting the fact that plaintiffs’ counsel stand to make millions while class members may see only a few dollars at day’s end, you seize on the public’s perennial distrust of lawyers, which may only be slightly less acute in Canada than in the U.S. Data gathered by DaimlerChrysler shows what a direct attack on trial lawyers can achieve: Presumption of corporate innocence rose from 27% to 45% when a lawsuit was publicly depicted as an “outrageous case of plaintiffs’ lawyers using a tragedy to collect legal fees.” 
• Talk about the future – what the company is doing to remedy the very problems that prompted the class action.

The best tactical practices that govern both the content and process of public communications during litigation take on ever greater urgency during class actions:

• Don’t speak though lawyers if it can be avoided. No matter how articulate they are, you’re sending the message that you need to be defended. Instead, select and train spokespeople who show the company’s human face.
• Use every milestone in the case – every motion, every ruling – as a possible pretext to reinforce your position.
• Win the war on the Web: Take advantage of blogs, both as opinion forums and repositories of information. Identify and develop contacts with the “high-authority blogs,” the ones deemed most credible in your particular industry. Create “dark sites” rife with your messages before the opposition files its lawsuit so that you’re ready to go live online the moment they do. Most journalists now get their story ideas from the web. If Canada follows the example of the U.S., the plaintiffs bar will far surpass the defense bar in controlling this essential real estate.

Daunting as they are from a communications standpoint, class actions do allow defendants one strategic advantage – time. In Canada, just as in the U.S., plaintiffs’ firms must recruit before they can file. While their solicitations unfortunately ensure widespread public visibility, the public notices also mean that you can begin planning a public response – and perhaps an offense -- well in advance.