Robert Hibbert on Food Labeling Lawsuits GMOs & Junk Science: Apocalypse Soon If Not Now Michael Lichtenstein on Bankruptcy http://levick.com/insights

1. EDITION 10
Weekly September 28, 2012
How the NFL
Was Forced into
Fourth & Long
Robert Hibbert on Food
Labeling Lawsuits
GMOs & Junk Science:
Apocalypse Soon
If Not Now
Michael Lichtenstein on
Bankruptcy

2. How the
NFL
Was Forced into
Fourth & Long
Jason Maloni
Originally Published on Levick Daily
• Action Sports Photography / Shutterstock.com

3. Weekly
As of this writing, ESPN’s Chris Mortensen With the regular refs making their much-an-
1. The NFL never assumed referees at the helm. Had the league taken this
and John Clayton are reporting that the ticipated return to work (with a few new perks
control of the narrative. seemingly counterintuitive step, it would have
NFL’s regular referees have ended their in hand to boot), there’s no better time to play been seen as prescient and in-touch when eas-
lockout and will return to work tonight for Thursday morning quarterback and examine From the outset (preferably weeks before the ily-anticipated issues related to player safety
the Thursday night matchup between the some of the communications missteps that season started), the NFL needed to aggres- and “the integrity of the game” did arise. In-
Cleveland Browns and Baltimore Ravens. allowed public opinion to so one-sidedly turn sively educate fans, players, coaches, and the stead, the league was reticent to address the is-
While Monday Night Football’s controver- against the league. Even with a number of media as to the key sticking points that forced sue and stubbornly insisted that the game and
sial outcome was certainly a catalyst in compelling talking points on its side, the NFL it to lock out the regular referees—nearly all its players would not suffer. It even praised
getting a deal done, there were a number was forced into fourth and long. Here’s how it of which provided ample justification for the the replacements after a lackluster Week One
of other factors that robbed the league and all went down: league’s decision. Simply put, the NFL wanted performance. This had the opposite effect
owners of significant leverage and forced a slate of full-time referees who could devote of making the NFL seem out-of-touch with
them into a compromised position at the their professional lives to ensuring the highest- on-filed reality and reinforced an already-
negotiating table. quality officiating. The referees wanted to dominant perception that the league believed
keep their day jobs—and maintain retirement fans would keep coming back, no matter how
benefits that simply don’t exist for part-time diluted its product and brand might become.
employees in just about any other industry. Ultimately, the NFL’s and silence and refusal
In the end, the NFL didn’t work hard enough to recognize the issue was perceived as arro-
to communicate this point, which could have gance whispered—and that rubbed stakehold-
painted the regular referees as the ones hold- ers the wrong way.
ing the game hostage for perks that fall outside
acceptable norms. As ironic as it may sound,
3. Social media sentiment
the league had a chance, early on, to make the
overwhelmed the NFL.
lockout about player safety rather than money.
Better trained and younger referees would In the wake of Monday night’s debacle, the
make for a safer NFL. Instead, the league Twitter-sphere erupted with criticism from
and owners were silent and they ceded the fans, players, and commentators who dubbed
safety message. the controversial call “The Inaccurate Recep-
tion,” a “Fail Mary,” and “Conduct Detrimen-
2. The league’s silence was tal to the League.” All the while, the league’s
perceived as arrogance. stance remained virtually absent from the
conversation. Without prior conditioning of its
With its stance fully articulated and its view marketplace with the steps outlined in points
of the heroes and villains established, the NFL one and two, there was simply no way for
could have then prepared fans, players, and the NFL to keep up with, or at least manage,
coaches for the fact that games simply weren’t a social media deluge that affixed the blame
going to run as smoothly with replacement

4. Weekly
“ 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.”
Robert Hibbert
on Food Labeling Lawsuits
squarely on the league’s shoulders. There was credibility needed to sway public opinion. Ulti-
no time to rally supportive and influential mately, the NFL paid a price for that decision.
third-parties and no chance to reverse an over-
whelmingly negative tide of sentiment. In the 5. The regular refs never
age of social media, proactive and preventative feared losing their jobs.
communications are the only way to ensure
a story doesn’t spin beyond an organization’s In many labor disputes, it is important that
control when trouble arises. The NFL didn’t do management articulate that it won’t allow
the legwork up front. As such, it was caught- labor to hold the organization over a barrel
flat footed at the moment of truth. forever—and referee lockout was no different.
Not once did the NFL articulate an acceptable
contingency plan in the event that a settle-
4. Where were the owners’ ment could not be reached and not once did it
moderate, trusted voices? Today on LEVICK Daily, we continue our examination of recent lawsuits filed against the food and
communicate that a “Ronald-Reagan-air-traffic-
Throughout the entire dispute, the league’s controllers” option was on the table. In the beverage industry with Robert Hibbert, a Partner in the Washington D.C. office of Morgan, Lewis &
key spokespeople were incendiary and con- end, that allowed the regular referees to simply Bockius. Aggressive consumer advocacy in the area of food labeling dictates a need for companies
troversial figures such as Commissioner Roger sit tight and watch as officiating mistake after to factor new levels of scrutiny into their marketing decisions, monitor precedent-setting decisions
Godell and Dallas Cowboys owner Jerry Jones. officiating mistake reached critical mass and in the cases that have already been filed, and perhaps even establish industry-wide guidelines that
Where were the more widely-respected, forced the NFL to meet at least some their most buttress their compliance messaging.
moderate voices of the Mara and Rooney important demands.
families? Where were the statements of soli-
Some may think that the NFL lost its leverage
darity among all 32 NFL owners? With all the
when the call heard round the world was made
controversy that has dogged the NFL in recent
on Monday night. The reality is that its position
years, the messengers were as important as the
was weakened long before the replacements
message in this latest public relations ordeal.
ever took the field. Because the NFL didn’t
The faces of the NFL’s argument lacked the
communicate as aggressively as it could have, it
was fourth in long before it ever got the ball. L
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.

5. GMOs & Junk
Science:If Not Now
Apocalypse Soon
Richard S. Levick, Esq.
Originally Published on Forbes.com

6. Weekly
In some ways it’s remarkable that Rachel front, the result will be well-nigh apocalyp- As the experts scrutinized the new study, they potential for cherry-picking the nice positive
Carson is still controversial, as we’ve been tic. It would devastate the very environment found quite a bit to question. For example, results here from a sea of boring null ones is
reminded by this month’s 50th anniversary they’re forsworn to safeguard. rats that ate more of the genetically modified immense,” he blogged. NPR joined the skeptics:
of the publication of Silent Spring. A hero- corn actually did not get as sick as those who “No one has found new toxic substances in
I refer to the wave of attacks on genetically
ine to many in the 1960s, including Presi- ate less of it. The researchers also chose rats these crops. And the giant feeding experiment
modified organisms (GMOs) and genetically
dent John Kennedy, Carson is credited with that have a tendency to develop tumors if their that’s been going on for the past fifteen years
modified foods, and the crusade to halt the
igniting, or at least profoundly influencing, diets are not controlled. They provided graphic —hundreds of millions of Americans consum-
production of disease-resistant crops essential
what we now think of as the modern envi- pictures of the afflicted rats which, as one ing GMO ingredients—hasn’t produced evi-
to support human life in the coming decades.
ronmental movement. UK researcher noted, encourage the dubious dence of harm, either.”
Consider that the world’s population could
impression that such symptoms never occur in
Yet the book’s attack on DDT and other pesti- double by 2050, according to the United Na- Despite its methodological deficiencies and the
control groups. Finally, there were only 20 rats
cides still inspires vigorous counter-assault, tions Population Fund. Under present circum- many critiques from diverse sources, the study
in the control group, too small a sample for
especially the compelling claim that the sub- stances, that will create an untenable burden is already having impact. There are calls in
meaningful comparison.
sequent ban led to deadly malaria epidemics on food production absent wider application of France and Austria for further investigation.
in Africa. Like many environmental crusaders GMO technology. One exasperated medical statistician pointed Stateside, the research is fueling California’s
today, Carson was also accused of using what out that the study included 18 exposed groups Yes on Proposition 37 initiative to label
One recent assault on GMOs that has captured
we now call “junk science” to advance her compared to only two control groups. “The
international attention typifies the fight we’ve
personal agenda.
got on our hands. This study, published on
A half-decade later, we now confront some September 19, purportedly shows that rats
activists whose agendas seem all too clearly in- who were fed genetically modified maize
terested; whose research studies should prove sprayed with a weed-killer, or who drank wa-
an embarrassment to responsible environmen- ter with specific levels of that weed-killer, were
talists. If anything, the anniversary of Silent much likelier to develop tumors that block or-
Spring ought to occasion even closer scrutiny gan function, and to die earlier than rodents in
of such “science” if only to better preserve the a control group. (Both the corn and the weed-
legacy of what its author and those like her killer are produced by Monsanto, perennially
did accomplish for the greater good. As some- at the epicenter of the ongoing
one who spent a career in the environmental GM controversy.)
movement, I know that sound science only
The study came as quite a surprise to
serves the cause in the long run.
scientists. Reputable regulatory and health
Such scrutiny is all the more exigent because, agencies in the U.S. and EU that have looked
if our latter-day guerilla environmentalists closely at GMOs found them safe, as have the
achieve their goal on one particularly critical National Academy of Sciences and the British
Royal Academy.

7. Weekly
“
Bruce Chassy, professor emeritus of food sci-
ence at the University of Illinois, calls it “a ...we are still living though a historic drought that
well-planned and cleverly orchestrated media
has had a painfully obvious impact on agriculture.
event…The purpose was not to produce new
scientific information but rather was to nega-
Next year promises to be worse as El Niño conditions
tively influence public opinion of GM crops. are forecast to develop in the Pacific Ocean, heating
“This makes a mockery of science,” adds Chassy. water surfaces to such an extent that observers predict
Another current environmental study, also
record-breaking temperatures in 2013.
from France, discloses the same disturbing
pattern in which a tendentious report wreaks
havoc on manufacturers (and farmers) even
conclusions as to the actual impact of the insec- A beleaguered public may well listen more
though its scientific integrity is being effec-
ticides. Unfortunately, governments are rather closely now than in the past to what GM food
tively questioned. This controversy is addition-
more inclined to be premature in their reac- producers have to say.
ally resonant on the 50th anniversary of Silent
genetically modified food. Meanwhile, the re- tions if sufficiently motivated. France, for one,
Spring as the study targets pesticides; specifi- In this dialogue, it should be acknowledged
searchers themselves are playing fast and loose has already banned a neonicotinoid as if the
cally, the neonicotinoid insecticides that that simply adopting “better growing tech-
with the media, or trying to. research published in April was unassailable.
can allegedly cause wholesale honeybee niques and soil maintenance” is useful but
Traditionally, scientific journals offer advance colony collapses. When governments and public opinion turn hardly enough compared to the productive im-
notice to reporters so they can call indepen- on potentially discredited research, producers pact of herbicides and the no-till farming they
Here too, the research flaws were powerfully
dent experts and review previous studies. need to be commensurately more aggressive. enable – which, in turn, reduces erosion and,
exposed. It now appears that the calculations,
The authors of this study took a very different They need to switch the narrative altogether to because soil runoff is the single greatest pol-
based on erroneously low birth rates, do not
approach. Yes, they sent out the findings early, show that safe GM crops are an environmental lutant of our streams and waterways, likewise
reflect the rate at which honeybee colonies
but only to reporters willing to sign confidenti- survival tool; that, conversely, junk science is acts as an effective anti-pollutant.
withstand the loss of individual members.
ality agreements that precluded neutral expert an environmental hazard.
“When we repeated the previous calculation Here, perhaps, is the greatest irony in any
opinion until after the research was published. with a realistic birth rate, the risk of colony col- From a communications standpoint, it’s an Silent Spring commemoration. The agricul-
(The reporters who agreed to this arrangement lapse under pesticide exposure disappeared,” ideal moment to make that case. tural industry that Carson and her followers
fortunately re-filed their stories after the em- said Dr. James Cresswell of the University of targeted as Enemy Number One is now one of
bargo ended, adding in the expert commentary After all, we are still living though a historic
Exeter, who called for “sound evidence…so the most important and effective protectors of
for balance.) This blatant over-reaching by the drought that has had a painfully obvious
governments can put together a proper plan our environment. L
authors compromised the integrity of their impact on agriculture. Next year promises to
to protect [colonies] from any dangers that the
be worse as El Niño conditions are forecast Richard S. Levick, Esq., President and CEO of LEVICK,
work as surely as any methodological oversight chemicals pose.” represents countries and companies in the highest-stakes
or prevarication. to develop in the Pacific Ocean, heating water
global communications matters—from the Wall Street
That’s what the voice of reason sounds like surfaces to such an extent that observers pre-
crisis and the Gulf oil spill to Guantanamo Bay and the
unencumbered by an agenda or premature dict record-breaking temperatures in 2013. Catholic Church.

8. Weekly
Michael Lichtenstein
on Bankruptcy
Michael Lichtenstein discusses reorganization and liquidation for businesses big and small,
referencing Penn Camera and American Airlines.
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