Science and Law
9th July 2013

A Proactive Approach to Potential Corporate Legal Challenges

Baseless attacks on corporations and products are emerging more frequently and gaining traction rapidly. The explosion in media sources, including online news aggregators, social media and blogs, has drastically altered the nature of information consumption in our society.

A Proactive Approach to Potential Corporate Legal Challenges

This article was co-authored by Ted Dunkelberger and Giovanni Ciavarra, Ph.D. Mr. Dunkelberger provides expertise in litigation strategy and expert recruitment at ISS. Ted has consulted with corporations and defense counsel on mass tort and complex litigation for over 26 years. Mr. Dunkelberger has worked with individual clients and industry groups on some of the country’s largest and most prominent toxic tort and product liability litigations.

Baseless attacks on corporations and products are emerging more frequently and gaining traction rapidly. The explosion in media sources, including online news aggregators, social media and blogs, has drastically altered the nature of information consumption in our society. Aggressive competition in the information marketplace has bred a culture of drama and urgency that gives credence to speculative scientific discoveries.

In addition to the shift in information dissemination and acquisition, corporations are contending with increasingly sophisticated activist groups, which are leveraging technology to advance their causes. For example, consumers can use the “Buycott” App to trace a product’s ownership and join online campaigns to protest corporate policies. Corporations are also facing changing attitudes among government officials and volatility in state and federal legislation.

To help corporate legal departments anticipate and respond to challenges in today’s complex business and legal landscape, we discuss below four sources that are placing pressure on corporations: activist groups, government initiatives, litigation and junk science. While separate and independent, these sources frequently converge to influence corporate practices, often failing to take into account generally accepted scientific standards.

1. Activist Groups

Non-government organizations (NGOs) and activist scientists strive to promote and reinforce their narratives through public campaigns and the media. They often rely on questionable scientific data to flag a product as harmful while ignoring its benefits. Activist groups frequently enlist activist scientists to advance their causes (e.g.; Anthony Ingraffea with fracking, Stephanie Seneff with autism, Taylor Hayes with atrazine, and Frederick vom Saal with endocrine disruptors).

Activist groups usually target large organizations to increase the impact of their messages. They believe if they can spark change at the largest company, it will lead to change across the industry. According to a 2012 Holmes Report, Shell attracted the most attacks from activist groups in 2012, followed by Monsanto, Apple and Bank of America. Greenpeace and Yes Men led a campaign against Shell’s arctic drilling plans, which included a spoof website.

In the absence of a strong and effective response from the targeted organization, activist groups shape the debate and create the illusion of a serious and imminent threat to human health or the environment. For example, Kellogg’s Facebook page continues to be overrun by anti-GMO sentiments. Uncontested, activist attacks lay the foundation for regulatory, legislative and legal action.

However, a proactive and informed defense helps to diffuse the negative story in its infancy. Companies should monitor the activity of activist scientists, activist groups and plaintiff law firms through their websites and social networks, as well as aggregator sites such as SigWatch and SourceWatch.

2. Government Initiatives

Activist groups often influence government regulators and legislators, particularly if they successfully garner attention from the media and the public. It is important for companies to monitor the activity of government agencies charged with regulating products, including the FDA, FTC, EPA, and OSHA. Companies should also keep their eye on the DOJ and the SEC, as well as governmental educational organizations, such as the National Academy of Sciences (NAS). Companies should stay abreast of the administrative record as it evolves.

Be prepared to present quality scientific reports that expose the flaws in the speculative or questionable data submitted by NGOs.

3. Litigation

Plaintiff legal teams have adeptly tapped into new information resources, such as websites, Twitter, Facebook and LinkedIn groups. Combined with traditional media outlets, such as television and radio, social media is an effective tool for quickly reporting and sensationalizing scientific findings, recently filed lawsuits, and settlements. Publicly reported settlements are particularly damaging because activists use them to bolster their claims, which can instigate further lawsuits.

The abundance of media outlets has connected the world like never before, allowing information to travel worldwide at a rapid pace. Thus companies need to stay abreast of developments outside the U.S. For example, the atrazine ban in Europe is often used a preface when addressing a U.S. audience, as if to suggest, if Europe banned it, then it must be bad.

4. Junk Science

The media’s quest for compelling news often means poorly conducted scientific studies will receive coverage. Even if a study ignores generally accepted scientific methods and principles, it may garner national attention in the media, generate public interest, attract government scrutiny, and even spark litigation.

It is essential for companies to stay abreast of new scientific studies and counter misinformation and unsubstantiated claims with valid scientific data. For more information on this topic, download our e-book, The Litigator’s Guide to Combating Junk Science.

Don’t let junk science corrupt the facts in your case. Download our eBook, The Litigators Guide to Combating Junk Science – 2nd Edition. Simply fill out the form below.

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We also recommend reviewing the following examples of effective responses to junk science:

  • Energy in Depth refutes questionable hydraulic fracturing studies.

  • Saving the Oasis provides a meaningful scientific response to unsubstantiated scientific claims regarding atrazine.

The list of products and materials under attack continues to expand. A proactive and effective legal risk assessment will take into account the four sources of pressure discussed above. A successful response to challenges when they arise will rely on scientifically sound data and principles.

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