The battles to shape public and others opinions related to litiagtion now include battles waged on the Internet using blogs, paid links and other teqchniques described by Richard Levick in his 2008 book on communcations strategies, as mentioned in a prior post of this blog on October 8. 2008. Now, there’s a new and concrete example of this battle, including a judicial ruling on a litigant (Chevron) which used a paid Google link to direct information to persons who turn to a Google search as the means to searcg the Internet for information about the Chevron litigation.
The example arises from Chevron’s ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in “mass tort” cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
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Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff’s NameDan Levine10-28-2008
A widely watched trial over Chevron’s Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors. While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. “This new advertising strategy was launched just after the jury pool learned the names of the parties,” wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff’s name produced Web pages friendly to Bowoto.
“Are they sponsored links?” Illston asked.
Mittelstaedt said he didn’t think so, and the judge indicated that that’s what concerned her. “To me, that’s as sure a thing as giving a statement to the press,” Illston said. When Mittelstaedt responded that Chevron was “way behind,” the judge cut him off. “Way behind in fighting the case in the press? We’re not going to fight the case in the press,” she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company’s operations in the country. The oil giant called Nigerian military forces, which shot multiple people. However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech — like product pricing — is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. “The interesting question is, when a company like Chevron — particularly in litigation — is being criticized, and it responds, how do you deal with that?” he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron’s ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.