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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

PR Industry Insight: Leading food-borne illness plaintiffs’ litigator Bill Marler, of Marler Clark Tells All

My phone rings – I pick it up. I had a nice chat with the folks at Levick about the PR nightmare that companies get themselves into during a foodborne illness outbreak:

Attorney Bill Marler, of the Seattle-based firm Marler Clark, LLP, PS, is an accomplished personal injury lawyer and a major force affecting food safety policy in the United States and abroad. He and his partners have represented thousands of individuals in claims against food companies whose products have allegedly caused serious injury and death. During a career spanning three decades, Bill Marler has secured more than $300 million for his clients. He’s written for numerous legal publications and speaks on food safety issues around the world.

Here’s what he had to say about what class actions do to brands and how companies can best can move forward once they’re resolved. Key lessons from the other side…

Why is class action litigation so damaging to a corporate brand?

Bill Marler: First, let me say something about food-borne illness cases and class action litigation in general. In the last ten years, there have been very few class actions in the U.S. – I think you could count them on one hand – that have been brought in the context of food safety. It would seem that the two would go hand in hand, but the reality is that the injuries vary so much between individuals that it’s highly unlikely that a jury or court would ever certify a food-borne illness case as a class action.

That said, however, there are very few differences between the public communications dimensions of the food-borne illness cases I have litigated and your typical class action involving a corporate defendant. They are all high-profile. They all generate massive amounts of attention. And they all have a tremendous impact on public perceptions.

After a class action or other high-profile litigation has been resolved, do most companies do enough to reform the business practices that led to litigation in the first place?

Bill Marler: Some do, and some unfortunately do not. I was recently asked to pick the company that’s most interested in food safety today, and right off the bat I said Jack-In-The-Box. Somebody in the audience was surprised by my answer – presumably because Jack-In-The-Box is known for the first significant E. coli outbreak in the U.S. back in the 1990s – and asked me why. I responded by saying “Because I’ve only had to sue them once.”

Both during and after that litigation, Jack-In-The-Box embraced food safety in a way that a lot of companies who are repeat customers of mine never do. Jack-In-The-Box transformed its crisis into a leadership opportunity. Its VP in charge of food safety has been an open advocate of food safety and is always willing to share his time and expertise. The company has made people familiar with the safeguards it has implemented in its buying and preparation processes – to the point that those who pay attention are increasingly convinced that this corporate culture views safety as being as important, if not more important, than sales.

So, would it be fair to say that companies emerging from high-profile litigation actually have a greater opportunity to become leaders on the very issues that landed them in trouble in the first place?

Bill Marler: Absolutely. No question about it.

Please identify the most important audiences that a company emerging from high-profile litigation must engage to reinforce the perception that it is moving forward in a responsible manner.

Bill Marler: Clearly the consumer is the main target because you want to lure those folks back to a product they wanted before. If you employ a solid media message that shows contrition, demonstrates that you’ve learned from your mistakes, and drives home the point that you’re being transparent, you’re off to a good start.

Do you think it’s important to engage federal and state regulators as well?

Absolutely. Being regulated isn’t what most companies put on top of their Christmas list, but my view is that the relationship can be beneficial in two significant ways. First, if you ask for their input, they might give it to you and it might be useful in avoiding problems to begin with. Second, if you do solicit their advice and problems arise anyway, I’ve seen regulators go to bat for a company and say, “I was there. They’ve been trying. It must be a bad supplier.” In essence, you’ve cultivated a powerful ally by giving the regulators a stake in the effectiveness of your safety efforts.

If I were the Communications Director of a company emerging from high-profile litigation, what would be the three most important things for me to remember moving forward?

Bill Marler: I think that if a company hasn’t already identified the three most important things beforehand, it has probably already lost – because the plan needs to be implemented on Day One.

You need to be ready to show that you’re putting customers first and treating them with respect by apologizing for what happened, offering to help them through the crisis, and vowing that it will never happen again. Those same three messages need to be reiterated again and again throughout the whole process. In my experience, it’s the companies that take care of their customers by being compassionate and transparent that bounce back the fastest.

  • Good interview. I especially liked your observation about Jack-In-The-Box. Contrast their performance with ConAgra!
    I had dealings with Jack-In-The-Box in the years after their reinvention. Their interest in food safety was real – not just a marketing ploy.