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5 Considerations for an In-house Litigator When Guiding a Social Media Campaign

Litigation Column
W hen his client Stormy Daniels was arrested earlier this summer, Michael Avenatti wasted no time. The same evening, he took to social media tweeting that his client, who alleges that US President Donald Trump gave her hush money for their 2006 affair, was set up and her arrest was politically motivated. The following morning, Avenatti went on cable news to further develop this theme, while simultaneously working with the prosecutors to convince them to drop the charges. His appearances on cable news acknowledged that the prosecutors were looking at the case again, commended their professionalism, and expressed hope that they would drop the charges. Later that day, the prosecutors indeed dropped all charges.

After hearing of this, we thought: Why can't a litigation team help a corporate client this way? The answer is that it can, but with great care. If you look around, you'll see corporations integrate litigation content in their corporate messaging. These efforts include messaging related to shaping public policy and customer opinion, with everything ranging from a CEO letter to television advertising. Consider these examples:

Lawful Access Litigation. In early 2016, the US government sought to compel Apple to build a back door to the iPhone after one was recovered during the investigation into an act of terrorism that took place in San Bernardino. While Apple opposed the request in court, its CEO published a letter that explained Apple's position in the case, assured customers that at "Apple we are deeply committed to safeguarding their data," and questioned whether the government was pursuing a course that was "underminin[g] the very freedoms and liberty our government is meant to protect."

In addition, Microsoft has been vocal about its lawful access case that is now before the US Supreme Court. Its head of litigation spoke about it on a Law360 podcast outlining the positions of Microsoft and the government. Microsoft's CEO devoted a chapter of his book Hit Refresh to the case and privacy generally. Microsoft hits the same points that Apple does when discussing the issue.

Privacy Litigation. Facebook is facing over 16 privacy and data misuse-related cases in the United States as of this past March.  There is also a crisis in customer confidence due to fallout from the Cambridge Analytica news. In response, Facebook has launched its "Here Together" campaign where it commits to doing better: "We had to deal with spam, clickbait, fake news, and data misuse. That's going to change. From now on, Facebook will do more to keep you safe and protect your privacy."

So, what should a tech-savvy in-house litigator consider when providing guidance for such a social media campaign? Here are five tips.

1. Anticipate various third-party reactions

There is no doubt that social media use involves inherent risks. In addition to calibrating the message to reach your opponent — as Avenatti effectively did in demanding the dismissal of the charges against his client — companies should carefully consider the potential impact of any social media messaging on judges, decision makers, customers, and other third-party stakeholders.

The court and other decision makers

Although Avenatti's ubiquitous public presence — consisting of approximately 200 television appearances and over 400 public tweets on the Stormy Daniels topic — has been generally seen as effective for his client, it has also gotten him into some trouble. For example, Judge Kimba Wood presiding over the Michael Cohen case recently instructed Avenatti, who was seeking to intervene in the case and get admitted pro hac vice in the Southern District of New York, to stop his "publicity tour" if he wanted to participate in the case. Judge Wood was concerned that Avenatti had opined on Cohen's guilt and made public certain documents that were not public and were potentially obtained unlawfully. Such acts could, in Judge Wood's opinion, potentially deprive Cohen of a fair trial in the future. As a result, Avenatti withdrew his request for pro hac vice admission.

Customers

In the Lawful Access Litigations, Apple and Microsoft oppose the government and refuse to help law-enforcement efforts. Their messaging explains that they are motivated by a desire to preserve customer privacy and safeguard customer data. This protects against a customer backlash from the positions they are taking.

2. Your social media statements can be used against you

US President Donald Trump's social media posts before the election were front and center in cases considering the constitutionality of his travel ban.1 If you use social media during litigation, you must plan for this as well and assume that your statements will be used against you.

Facebook likely considered this when developing the "Here Together" campaign. The ad is careful not to admit fault, referring to data misuse as something "We had to deal with." Although some have found this statement to be insincere because it is not a true apology,  it does strike a balance between creating a litigation admission and the positive messaging conveying a shift in corporate priorities.

3. Align the social media campaign with other corporate interests

Corporate social media campaigns that touch on litigation issues are often closely aligned with other corporate interests, such as developing public policy and favorable customer opinion. This approach is obvious in the multifaceted campaigns that Apple, Microsoft, and Facebook ran. Such an alignment ensures consistency with other corporate messaging, assists with achieving consensus for internal approval, and increases the overall benefit of the campaign to the company.

4. Choose your timing carefully

Another consideration is, of course, the timing of statements. Michael Avenatti's messaging to the prosecutors in his client's case was effective because it was immediate, issued the very day the charges were filed, and gave the prosecutors a chance to dismiss the charges before the case got going. Apple worked quickly to have its CEO letter published in the midst of its fast-moving dispute with the government. And Microsoft has been vocal during the appeal of its Lawful Access case. At the same time, to the extent public comments relate to pending litigation, companies should consider whether to delay any statements until after the case is finally resolved, so as not to prejudice themselves with any of the decisionmakers.

5. Evaluate and comply with applicable legal and ethical requirements

Before issuing any public statements, it is critically important that in-house lawyers, the communications team, and other employees vetting the statements fully think through any potential legal implications of these statements.

Abide by the ethical requirements

Depending on the jurisdiction you are in, there are a host of ethical constraints that apply to social media activities of in-house (and outside) counsel. These requirements are summarized here. Most relevant to this discussion, ethical rules typically prohibit lawyers who participate in a civil or criminal matter from making extrajudicial statements that lawyers know "or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in this matter."2
 

Consider regulatory requirements and impact on stock

In-house counsel at public companies should ensure that social media statements do not run afoul of securities and other laws and regulations that your particular company is subject to. Take the example of Tesla's CEO Elon Musk, who recently tweeted about taking the company private: "Am considering taking Tesla private at $420. Funding secured." In the wake of this statement, the SEC launched a formal investigation into whether Musk attempted to hurt short-sellers by his Tweet, and the company was sued in three separate lawsuits. Within one week after Musk's "going private" tweet, Tesla's stock price dropped by 14 percent. Musk's example highlights the importance of thinking about investors in addition to judges, decision makers, and customers.

Disclose only public information

Media campaigns should generally rely on information that is public. In-house counsel should review media statements for any information that s privileged, proprietary, confidential, or protected by non-disclosure obligations. If necessary, counsel can cover themselves by introducing the same information in their complaint, answer, or other court submissions.

Preserve social media posts and appearances

In-house counsel should also remember that, as part of their duty to preserve evidence related to pending or anticipated litigation, they must preserve their clients' postings, communications, and appearances on social media. Thus, remember to include those materials in document holds, and be careful not to instruct employees to clean up their social media postings or deactivate social media accounts.

NOTES
1 Washington v. Trump, 847 F.3d 1151, 1167-68 (9th Cir. Feb. 9, 2017), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017) and 858 F.3d 1168 (9th Cir. 2017), and cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017); Int'l Refugee Assistance Project v. Trump, 883 F.3d 233, 269 (4th Cir. Feb. 15, 2018), as amended (Feb. 28, 2018), cert. granted, judgment vacated, 138 S. Ct. 2710 (2018), and cert. granted, judgment vacated, 138 S. Ct. 2710 (2018).
2 See, e.g., N.Y. Rules of Prof. Conduct, R. 3.6, Trial Publicity.

About the Authors

Noah WebsterNoah Webster is general counsel and secretary for Zix. He writes regularly for the Litigation Column of ACCDocket.com.

Irina KashcheyevaIrina Kashcheyeva is a senior counsel at the law firm of Foley & Lardner LLP. She represents companies in the health care, financial services, technology, and other industries in various matters, focusing on consumer protection and privacy litigation and counseling, class action defense, and commercial/business torts litigation.


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