EDITION 10

WeeklySEpTEmbEr 28, 2012

Robert Hibbert on Food Labeling Lawsuits

GMOs & Junk Science: Apocalypse Soon If Not Now

Michael Lichtenstein on Bankruptcy

How tHe NFL was Forced iNto FourtH & LoNg

Jason maloni Originally Published on Levick Daily

How tHe

NFL was Forced iNto FourtH & LoNg

• ActionSportSphotogrAphy/ShutterStock.com

Weekly

As of this writing, ESPN’s Chris Mortensen

and John Clayton are reporting that the

NFL’s regular referees have ended their

lockout and will return to work tonight for

the Thursday night matchup between the

Cleveland Browns and Baltimore Ravens.

While Monday Night Football’s controver-

sial outcome was certainly a catalyst in

getting a deal done, there were a number

of other factors that robbed the league and

owners of significant leverage and forced

them into a compromised position at the

negotiating table.

With the regular refs making their much-an-

ticipated return to work (with a few new perks

in hand to boot), there’s no better time to play

Thursday morning quarterback and examine

some of the communications missteps that

allowed public opinion to so one-sidedly turn

against the league. Even with a number of

compelling talking points on its side, the NFL

was forced into fourth and long. Here’s how it

all went down:

1. tHe NFL Never assumed coNtroL oF tHe Narrative.

From the outset (preferably weeks before the

season started), the NFL needed to aggres-

sively educate fans, players, coaches, and the

media as to the key sticking points that forced

it to lock out the regular referees—nearly all

of which provided ample justification for the

league’s decision. Simply put, the NFL wanted

a slate of full-time referees who could devote

their professional lives to ensuring the highest-

quality officiating. The referees wanted to

keep their day jobs—and maintain retirement

benefits that simply don’t exist for part-time

employees in just about any other industry.

In the end, the NFL didn’t work hard enough

to communicate this point, which could have

painted the regular referees as the ones hold-

ing the game hostage for perks that fall outside

acceptable norms. As ironic as it may sound,

the league had a chance, early on, to make the

lockout about player safety rather than money.

Better trained and younger referees would

make for a safer NFL. Instead, the league

and owners were silent and they ceded the

safety message.

2. tHe League’s siLeNce was perceived as arrogaNce.

With its stance fully articulated and its view

of the heroes and villains established, the NFL

could have then prepared fans, players, and

coaches for the fact that games simply weren’t

going to run as smoothly with replacement

referees at the helm. Had the league taken this

seemingly counterintuitive step, it would have

been seen as prescient and in-touch when eas-

ily-anticipated issues related to player safety

and “the integrity of the game” did arise. In-

stead, the league was reticent to address the is-

sue and stubbornly insisted that the game and

its players would not suffer. It even praised

the replacements after a lackluster Week One

performance. This had the opposite effect

of making the NFL seem out-of-touch with

on-filed reality and reinforced an already-

dominant perception that the league believed

fans would keep coming back, no matter how

diluted its product and brand might become.

Ultimately, the NFL’s and silence and refusal

to recognize the issue was perceived as arro-

gance whispered—and that rubbed stakehold-

ers the wrong way.

3. sociaL media seNtimeNt overwHeLmed tHe NFL.

In the wake of Monday night’s debacle, the

Twitter-sphere erupted with criticism from

fans, players, and commentators who dubbed

the controversial call “The Inaccurate Recep-

tion,” a “Fail Mary,” and “Conduct Detrimen-

tal to the League.” All the while, the league’s

stance remained virtually absent from the

conversation. Without prior conditioning of its

marketplace with the steps outlined in points

one and two, there was simply no way for

the NFL to keep up with, or at least manage,

a social media deluge that affixed the blame

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squarely on the league’s shoulders. There was

no time to rally supportive and influential

third-parties and no chance to reverse an over-

whelmingly negative tide of sentiment. In the

age of social media, proactive and preventative

communications are the only way to ensure

a story doesn’t spin beyond an organization’s

control when trouble arises. The NFL didn’t do

the legwork up front. As such, it was caught-

flat footed at the moment of truth.

4. wHere were tHe owNers’ moderate, trusted voices?

Throughout the entire dispute, the league’s

key spokespeople were incendiary and con-

troversial figures such as Commissioner Roger

Godell and Dallas Cowboys owner Jerry Jones.

Where were the more widely-respected,

moderate voices of the Mara and Rooney

families? Where were the statements of soli-

darity among all 32 NFL owners? With all the

controversy that has dogged the NFL in recent

years, the messengers were as important as the

message in this latest public relations ordeal.

The faces of the NFL’s argument lacked the

credibility needed to sway public opinion. Ulti-

mately, the NFL paid a price for that decision.

5. tHe reguLar reFs Never Feared LosiNg tHeir jobs.

In many labor disputes, it is important that

management articulate that it won’t allow

labor to hold the organization over a barrel

forever—and referee lockout was no different.

Not once did the NFL articulate an acceptable

contingency plan in the event that a settle-

ment could not be reached and not once did it

communicate that a “Ronald-Reagan-air-traffic-

controllers” option was on the table. In the

end, that allowed the regular referees to simply

sit tight and watch as officiating mistake after

officiating mistake reached critical mass and

forced the NFL to meet at least some their most

important demands.

Some may think that the NFL lost its leverage

when the call heard round the world was made

on Monday night. The reality is that its position

was weakened long before the replacements

ever took the field. Because the NFL didn’t

communicate as aggressively as it could have, it

was fourth in long before it ever got the ball.

Jason Maloni is a Senior vice President at Levick and chair

of the firm’s Litigation Practice. He is also a contributing

author to Levick Daily.

“ Some may think that the NFL lost its leverage when the call heard round the world was made on Monday night. The reality is that its position was weakened long before the replacements ever took the field.”

L

Today on LEVICK Daily, we continue our examination of recent lawsuits filed against the food and

beverage industry with Robert Hibbert, a Partner in the Washington D.C. office of Morgan, Lewis &

Bockius. Aggressive consumer advocacy in the area of food labeling dictates a need for companies

to factor new levels of scrutiny into their marketing decisions, monitor precedent-setting decisions

in the cases that have already been filed, and perhaps even establish industry-wide guidelines that

buttress their compliance messaging.

robert HibbertoN Food LabeLiNg Lawsuits

richard S. Levick, Esq.Originally Published on Forbes.com

apocaLypse sooN iF Not Now

gmos & juNk scieNce:

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As the experts scrutinized the new study, they

found quite a bit to question. For example,

rats that ate more of the genetically modified

corn actually did not get as sick as those who

ate less of it. The researchers also chose rats

that have a tendency to develop tumors if their

diets are not controlled. They provided graphic

pictures of the afflicted rats which, as one

UK researcher noted, encourage the dubious

impression that such symptoms never occur in

control groups. Finally, there were only 20 rats

in the control group, too small a sample for

meaningful comparison.

One exasperated medical statistician pointed

out that the study included 18 exposed groups

compared to only two control groups. “The

potential for cherry-picking the nice positive

results here from a sea of boring null ones is

immense,” he blogged. NPR joined the skeptics:

“No one has found new toxic substances in

these crops. And the giant feeding experiment

that’s been going on for the past fifteen years

—hundreds of millions of Americans consum-

ing GMO ingredients—hasn’t produced evi-

dence of harm, either.”

Despite its methodological deficiencies and the

many critiques from diverse sources, the study

is already having impact. There are calls in

France and Austria for further investigation.

Stateside, the research is fueling California’s

Yes on Proposition 37 initiative to label

In some ways it’s remarkable that Rachel

Carson is still controversial, as we’ve been

reminded by this month’s 50th anniversary

of the publication of Silent Spring. A hero-

ine to many in the 1960s, including Presi-

dent John Kennedy, Carson is credited with

igniting, or at least profoundly influencing,

what we now think of as the modern envi-

ronmental movement.

Yet the book’s attack on DDT and other pesti-

cides still inspires vigorous counter-assault,

especially the compelling claim that the sub-

sequent ban led to deadly malaria epidemics

in Africa. Like many environmental crusaders

today, Carson was also accused of using what

we now call “junk science” to advance her

personal agenda.

A half-decade later, we now confront some

activists whose agendas seem all too clearly in-

terested; whose research studies should prove

an embarrassment to responsible environmen-

talists. If anything, the anniversary of Silent

Spring ought to occasion even closer scrutiny

of such “science” if only to better preserve the

legacy of what its author and those like her

did accomplish for the greater good. As some-

one who spent a career in the environmental

movement, I know that sound science only

serves the cause in the long run.

Such scrutiny is all the more exigent because,

if our latter-day guerilla environmentalists

achieve their goal on one particularly critical

front, the result will be well-nigh apocalyp-

tic. It would devastate the very environment

they’re forsworn to safeguard.

I refer to the wave of attacks on genetically

modified organisms (GMOs) and genetically

modified foods, and the crusade to halt the

production of disease-resistant crops essential

to support human life in the coming decades.

Consider that the world’s population could

double by 2050, according to the United Na-

tions Population Fund. Under present circum-

stances, that will create an untenable burden

on food production absent wider application of

GMO technology.

One recent assault on GMOs that has captured

international attention typifies the fight we’ve

got on our hands. This study, published on

September 19, purportedly shows that rats

who were fed genetically modified maize

sprayed with a weed-killer, or who drank wa-

ter with specific levels of that weed-killer, were

much likelier to develop tumors that block or-

gan function, and to die earlier than rodents in

a control group. (Both the corn and the weed-

killer are produced by Monsanto, perennially

at the epicenter of the ongoing

GM controversy.)

The study came as quite a surprise to

scientists. Reputable regulatory and health

agencies in the U.S. and EU that have looked

closely at GMOs found them safe, as have the

National Academy of Sciences and the British

Royal Academy.

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genetically modified food. Meanwhile, the re-

searchers themselves are playing fast and loose

with the media, or trying to.

Traditionally, scientific journals offer advance

notice to reporters so they can call indepen-

dent experts and review previous studies.

The authors of this study took a very different

approach. Yes, they sent out the findings early,

but only to reporters willing to sign confidenti-

ality agreements that precluded neutral expert

opinion until after the research was published.

(The reporters who agreed to this arrangement

fortunately re-filed their stories after the em-

bargo ended, adding in the expert commentary

for balance.) This blatant over-reaching by the

authors compromised the integrity of their

work as surely as any methodological oversight

or prevarication.

Bruce Chassy, professor emeritus of food sci-

ence at the University of Illinois, calls it “a

well-planned and cleverly orchestrated media

event…The purpose was not to produce new

scientific information but rather was to nega-

tively influence public opinion of GM crops.

“This makes a mockery of science,” adds Chassy.

Another current environmental study, also

from France, discloses the same disturbing

pattern in which a tendentious report wreaks

havoc on manufacturers (and farmers) even

though its scientific integrity is being effec-

tively questioned. This controversy is addition-

ally resonant on the 50th anniversary of Silent

Spring as the study targets pesticides; specifi-

cally, the neonicotinoid insecticides that

can allegedly cause wholesale honeybee

colony collapses.

Here too, the research flaws were powerfully

exposed. It now appears that the calculations,

based on erroneously low birth rates, do not

reflect the rate at which honeybee colonies

withstand the loss of individual members.

“When we repeated the previous calculation

with a realistic birth rate, the risk of colony col-

lapse under pesticide exposure disappeared,”

said Dr. James Cresswell of the University of

Exeter, who called for “sound evidence…so

governments can put together a proper plan

to protect [colonies] from any dangers that the

chemicals pose.”

That’s what the voice of reason sounds like

unencumbered by an agenda or premature

conclusions as to the actual impact of the insec-

ticides. Unfortunately, governments are rather

more inclined to be premature in their reac-

tions if sufficiently motivated. France, for one,

has already banned a neonicotinoid as if the

research published in April was unassailable.

When governments and public opinion turn

on potentially discredited research, producers

need to be commensurately more aggressive.

They need to switch the narrative altogether to

show that safe GM crops are an environmental

survival tool; that, conversely, junk science is

an environmental hazard.

From a communications standpoint, it’s an

ideal moment to make that case.

After all, we are still living though a historic

drought that has had a painfully obvious

impact on agriculture. Next year promises to

be worse as El Niño conditions are forecast

to develop in the Pacific Ocean, heating water

surfaces to such an extent that observers pre-

dict record-breaking temperatures in 2013.

A beleaguered public may well listen more

closely now than in the past to what GM food

producers have to say.

In this dialogue, it should be acknowledged

that simply adopting “better growing tech-

niques and soil maintenance” is useful but

hardly enough compared to the productive im-

pact of herbicides and the no-till farming they

enable – which, in turn, reduces erosion and,

because soil runoff is the single greatest pol-

lutant of our streams and waterways, likewise

acts as an effective anti-pollutant.

Here, perhaps, is the greatest irony in any

Silent Spring commemoration. The agricul-

tural industry that Carson and her followers

targeted as Enemy Number One is now one of

the most important and effective protectors of

our environment.

Richard S. Levick, esq., President and ceO of Levick,

represents countries and companies in the highest-stakes

global communications matters—from the Wall Street

crisis and the Gulf oil spill to Guantanamo Bay and the

catholic church.

L

“ ...we are still living though a historic drought that has had a painfully obvious impact on agriculture. Next year promises to be worse as el Niño conditions are forecast to develop in the Pacific Ocean, heating water surfaces to such an extent that observers predict record-breaking temperatures in 2013.

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tHe urgeNcyoF Now.

Michael Lichtenstein discusses reorganization and liquidation for businesses big and small,

referencing Penn Camera and American Airlines.

crisis

LitigatioNFiNaNciaL commuNicatioNs

corporate & reputatioNpubLic aFFairs

sigN up today

micHaeL LicHteNsteiNoN baNkruptcy