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Exhibit J

Exhibit J

The raid on former President Trump’s Mar-a-Lago is providing a case study on savvy litigation communications—complete with photography for the multimedia age. 

The Justice Department is effectively using legal filings to make its case in the court of public opinion on the Trump documents fight, rather than press statements or social media. We think this is good practice in any legal fight, and here’s why: 

  • Making your public-facing argument as part of the filings gives it an official imprimatur instead of a battle by press release. 

  • Judges sometimes rebuke parties for trying to "win the case in the press," so it makes sense to make your arguments all part of the official record. 

  • Any good litigation comms strategy should be driven by the legal strategy. When your public-facing arguments are in the legal documents, there’s no room for daylight between them.

To be most effective, communications advisors should always be a part of weighing in on legal filings to make sure they paint the big picture and that the arguments are compelling to a broad audience, not only in legalese. 

As the New York Times reported, DOJ went out of its way to draft its filing in simple terms that tell a clear story. "Unfolding over 36 pages, it combined complicated legal arguments with an easy-to-read narrative." It even included a photograph of top-secret documents spread across Mar-a-Lago’s carpet for dramatic effect, an unusual attachment to a federal filing that immediately went viral.

One tip here as a time-pressed former reporter who covered the federal courts: Make sure your most compelling arguments are within the first two pages of your filing. You may not have a second chance to make a first impression. 

By the Numbers

Eastern Front

A brand new SEC rule means individual directors—rather than just the company—are more likely to become direct targets of a public activist campaign.

Effective September 1, a new SEC rule requires the use of a universal proxy card in public solicitations involving contested director elections allowing shareholders to "mix and match" nominees from the company’s and dissident’s slates of nominees.

So what does that mean?

Funds of any size and with no ownership threshold may easily and relatively inexpensively put forth board nominees.

Regardless of their value to the company, long tenured directors, older directors who have been retired for several years, academics and family members or connected directors will likely be the most vulnerable.

What should companies do to prepare?

  • Consider investor materials vital communications tools in support of directors, not just legal documents with limited messaging.

  • Ensure materials clearly communicate the skills and value the directors bring to the board in language the voting decision makers at governance oriented institutions can understand.

Many governance-oriented shareholders don’t have bandwidth to engage with every company. Consider alternative communication methods, including:

  • Video packages of directors posted to website.

  • Mid-year updates by directors on various ESG programs.

  • Making directors available at investor days.

Every company is different and needs to communicate their directors’ value in a way that’s natural and comfortable to them – a cookie cutter approach will not be effective.

When to act

Companies should take steps now to better communicate the benefit each board member brings. Once a company receives a nomination from a dissident, change in communication can only be viewed as reactive.

Biden's Old College Try

Americans are divided on the Biden administration’s recently announced student loan forgiveness plan—and on the federal government’s responsibility in general for the cost of higher education. 

Our Research and Insights team looked at recent polling on the issue and found: 

  • One-third of voters (31%) think President Biden’s plan to cancel $10,000-$20,000 of student loan debt is very unfair, 13% think it is somewhat unfair, 20% think it is somewhat fair and 28% think it is very fair.

  • 44% of Americans think the federal government has a responsibility to address student loan debt, while 38% think it does not and 18% are unsure.

  • 30% of Americans say they are very concerned student loan forgiveness will make inflation worse, while 28% say they are somewhat concerned, 23% say they are not so concerned, and 15% say they are not concerned at all.

    • 81% of Republicans indicate concern over inflation, while 57% of Democrats say they have little to no concern about it. 

  • Half of Americans (50%) strongly support the Biden administration developing a plan to lower the cost of higher education, while 26% somewhat support it, 5% somewhat oppose it and 9% strongly oppose it.

    • 86% of Democrats indicate support for lowering the cost, while 69% of Republicans do.

  • More than half of Americans (61%) blame colleges and universities a lot for the increase in student debt, while 18% blame them a little and 8% don’t blame them at all.

September 6, 2022
By Nedra Pickler and Irene Moskowitz
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