Jeff Jubelirer
Jeff Jubelirer ()

Compare, for a moment, the following two scenarios: The first client faces more than 80 lawsuits, federal and state investigations and a drop of $400 million in profit in its most recent quarter. The second client, sensing in advance a forthcoming media maelstrom, gets ahead of the fifth estate and breaks his news before it is leaked. It results in a few news stories in preselected media outlets whose content first and almost exclusively includes the client’s perspective about his sensitive disclosure.

I’m guessing you know who I am referring to in the above scenarios. Of course, we’ve all read and seen time and time again the stories about the massive data breach at Target. Most of you, but maybe not all, saw or read the news about Michael Sam coming out as gay in advance of the NFL combine, where his athletic and intellectual wares were set to be on display in advance of the league’s draft.

While it is unfair to compare Target to Sam on many levels (the biggest being that nothing happened to Sam), one area where it is fair to examine their strategies and public responses is the timing of their communications. Target initially held back when it first learned of the likely customer data breach; Sam purposely decided to tell the public that he was gay before more rumors emerged.

Was one strategy better? I would argue that Sam’s timing was much more successful. I will explain why by sharing a couple of important lessons lawyers can take from when and how Target and Sam and his advisers communicated their news.

First, and most importantly, it is critical to get out in front of your story, because if you don’t, someone else will. Target initially appeared to underestimate the extent of the data breach. The first time executives learned of the presence of malware in their point-of-sale system was reportedly after tech bloggers wrote about it. The company’s first communication to customers merely apologized for the inconvenience. We can assume that they either didn’t know the much bigger extent of the breach or were hoping for the best.

In subsequent communications, Target employed stronger language and acknowledged customers’ anxiety, but by not getting it right the first time, it became a proverbial uphill battle (and still remains so) to regain customers’ confidence.

Conversely, Sam and his brain trust made a deliberate decision to announce his news at a time of their choosing before any traditional news or sports outlets caught wind of it from another source at the NFL combine or elsewhere. As a result, they controlled which outlets they went to (they chose one TV outlet, ESPN; one newspaper outlet, The New York Times; and one online outlet, outsports.com), which reporters they approached and what specifically they wanted to say. Sam was able to tell his story in his words and on his terms and timetable.

For attorneys working on high-profile litigation of public interest, for example, you also may have a decision to make regarding if, when and how you will speak to any inquiring press. Simply not commenting on ongoing litigation may not be sufficient to keep hungry reporters at bay. While I fully understand that you cannot or would not publicly discuss litigation strategy, there should be some messages you can deliver that can benefit your organization or client’s reputation. Even simply remarking that you are confident that you will prevail on the merits of the case after the judge or jury renders its decision can leave your or your client’s customers feeling reassured. Additionally, unless there is a gag order, you cannot be sure that your opposing counsel isn’t preparing to speak with reporters on or off the record to set the tone for an article or broadcast story that is unfavorable to your client or organization.

Second, it is wise to work with a professional who has experience and expertise in the specific industry or public relations niche you are facing. I am not aware of whether Target employed any external public relations firms or professionals with specific expertise in data breach customer notification. They certainly maintain a large internal public relations staff, but I doubt that the company retains a full-time employee whose role primarily entails communications surrounding data breaches. They should have hired someone with this specific expertise and who had the ear of the CEO on a project basis.

On the other hand, Sam hired a professional with experience advising several high-profile individuals who came out publicly as gay. Not only did Sam benefit from Howard Bragman’s experience, but he also benefited from his media contacts who had previously done controlled “coming out” stories on his clients that were executed in a controlled manner and deemed successful.

While some attorneys have ample experience working the press and communicating effectively with their clients’ other public stakeholders, many loathe this responsibility or choose to ignore it. I have found through my experience working on several high-profile or crisis-oriented matters that the best recipe for keeping clients’ reputations intact or even enhanced is a strong litigator working alongside a communications strategist. 

Jeff Jubelirer is vice president of Bellevue Communications Group. He leads the development and execution of his clients’ strategic communications programs, including media relations, issue and crisis management and community relations. He also is an adjunct professor in crisis communication at Temple University.