Litigation communications are governed by something akin to Newton’s Third Law of Motion: For every public action, expect a reaction. That may come from your adversary, the judge, the jury or the court of public opinion. Regardless, these actions and reactions can impact reputation.
As such, the laws of litigation-communications physics require a company to thoughtfully account for all relevant stakeholders at every significant inflection point in litigation, as each has the potential to shape the perceptions of a broad audience.
A recent skirmish involving Qualcomm, its much smaller adversary, the media and a federal judge in Florida illustrates what can happen when stakeholder communications aren’t handled with precision – and offers lessons for any organization engaged in litigation.
Case study: Qualcomm v. ParkerVision
The saga began back in 2011, when ParkerVision sued Qualcomm for allegedly infringing eight patents. Though a tense back and forth occurred in the intervening 14 years, the case didn’t generate much news until recently, when the trouble from a communications perspective really started.
ParkerVision launched a multi-channel digital campaign called “Against the Giants” to highlight details of its years-long battle against Qualcomm, framing it as “a David vs. Goliath tale of innovation, theft, and the fight for technology's future.” The campaign included a press release, a self-produced documentary and multiple news interviews. It gained traction on social media and across conservative media outlets, including a notable appearance on the Glenn Beck Podcast, which boasts nearly 9 million weekly listeners.
Qualcomm swiftly responded by seeking a gag order – one that captured further attention from the media and the public, putting both companies under the microscope.
Risk on both sides
ParkerVision’s campaign, with its appearance on Glenn Beck and One America News Network, seemed designed to garner support from the Trump Administration and the public, not to mention to irritate Qualcomm. However, in execution, the content was “distasteful,” in the words of the judge, and “littered with spin, half-truths, and outright lies,” per Qualcomm.
The judge denied Qualcomm’s request for a gag order, instead arriving at a strong First Amendment-based decision. However, he did call ParkerVision out in his order for “outlandish claims” and mischaracterizing a previous trial between the companies. This shows that while a federal judge’s acute priority may be whether a campaign will taint the jury pool, and that by extension the courts will give parties in litigation a lot of latitude to make strong statements, those statements are not without consequence. A public campaign that strays from the truth can damage credibility with the court.
Parties in litigation should be mindful that strong statements can and sometimes must make their way into communications, but they should not be lobbed without consideration for how all stakeholders involved may perceive them. In this case, because the judge was not the intended target audience of the campaign, it seems ParkerVision may have failed to examine how the contents of its campaign might alienate him, resulting in unnecessary reputational damage where it mattered most.
Qualcomm, for its part, appeared reactive and thin-skinned by running to the judge with a request to muzzle the campaign. Its stated goal was to stop “false and misleading statements” and “highly inflammatory pretrial publicity.” But its attempt to silence ParkerVision arguably demonstrated ParkerVision’s point, with Qualcomm appearing to try to bully a smaller adversary. Worse, the judge immediately rejected Qualcomm’s request for a temporary restraining order and preliminary injunction, giving ParkerVision permission to not only continue what they were doing, but additional ammunition and a brighter spotlight. A quick look back at the Glenn Beck show’s comments section reveals that attention from viewers was not positive toward Qualcomm.
In focusing only on appealing to the judge, quite the opposite of ParkerVision’s public carpet-bombing campaign, Qualcomm seemed to make the same mistake: under indexing on the ramifications its actions could have on reputation. This again highlights the importance of taking a holistic view of all stakeholders in each and every litigation action.
Lessons learned: the need for holistic communication
Litigation communications are about more than what you say – they're also about what your actions imply and what further reactions they invite. Every decision sends a signal to your audiences, and often, beyond your intended targets. A narrow focus on one stakeholder group can leave you exposed to unnecessary risks and unintended consequences.
With advisors focused on communications in your corner, you can control the narrative through every step. Even more, by aligning your communications strategy with your legal strategy, you can not only avoid reputational pitfalls but also seize the opportunity to shape perceptions, build trust and strengthen your organization’s position both inside and outside the courtroom.