Doing the right thing is always a good place to start, but it’s no guarantee against legal or public relations challenges.
As many manufacturing companies can attest, doing the right thing—by voluntarily recalling a product alleged to be defective, for example—often invites legal and PR challenges, as the plaintiffs’ bar seeks to exploit a manufacturer’s misstep to generate a rich payout.
This is what happened to Triad Group, a manufacturer of alcohol preparation pads and a client of Bowman and Brooke partner Alana Bassin. The company issued a recall of alcohol prep pad products, which were allegedly contaminated with the bacterium bacillus cereus. The result: lawsuits alleging injuries and deaths from using the prep pads.
“The plaintiffs’ bar now is so in synch and coordinated in getting media attention that it’s hard, even if you’re prepared, to be able to address all the different streams of media that are coming at you,” Bassin told Inside Counsel magazine in a January 2014 article.
In cases such as these, it’s important to have legal counsel experienced in crisis management—able to protect the company’s legal interests while also working with communications professionals to funnel accurate and up-to-date information to the media.
“If you’re doing any kind of recall, or anything else that’s public, you need to anticipate that there is going to be publicity and it’s going to be negative publicity,” Bassin says.
And publicity can lead to legal and business challenges on multiple fronts: in the media, in court, from regulatory agencies and—in the most high profile cases—from investigative and oversight committees of the U.S. Congress.
The good news, Bassin stresses, is that “by proactively engaging the media, you create opportunities to educate reporters about the complexities of a case. It’s the job of reporters to listen—and good, responsible reporters do. And when they hear and understand even a few complexities of a case—multiple causes contributing to an injury, multiple actors bearing responsibility for an injury—it’s harder for them to feel comfortable using a screaming headline or telling a story in terms of heroes and villains.”
In the alcohol prep pads case, there was widespread misunderstanding of the company’s products, the nature of the alleged contamination and the nature of the injuries alleged.
“First, Triad Group manufactured prep pads in both sterile and non-sterile varieties,” Bassin observes. “Second, bacillus cereus exists, essentially, everywhere in the environment. It is all around us. Third, a very limited quantity of bacillus cereus made its way into some of the company’s non-sterile pads. And, finally, most of the injuries alleged were not even related to bacillus cereus. The few that were related, were associated with improper use of the non-sterile version of the pads. There was never any evidence that bacillus cereus was ever in sterile pads. When we got these basic facts to reporters, some of them cancelled their stories. Others shifted their emphasis—or were at least more cautious about demonizing the manufacturer.”
Any manufacturer can be the victim of a manufacturing defect, and the damage from not engaging the media can often be greater than if legal counsel works with the media. “Bet-the-company litigation becomes far more manageable when a communications strategy goes hand in hand with legal strategy,” Bassin says.