Four Ways Plaintiffs’ Lawyers Leverage Google to Stir Food-Safety Fears Michael Volkov & Julie Grohovsky: Two Views on Whistleblowers, Dodd-Frank, & the False Claims Act Game-Changer: Qatar Plays Historic Role in Glencore’s Bid for Xstrata Fred Krebs on the Role of General Counsel www.levick.com/insights

1. EDITION 8
Weekly September 14, 2012
Four Ways Plaintiffs’ Lawyers
Leverage Google to Stir
Food-Safety Fears
Michael Volkov & Julie
Grohovsky: Two Views on
Whistleblowers, Dodd-Frank,
& the False Claims Act
Game-Changer: Qatar Plays
Historic Role in Glencore’s
Bid for Xstrata
Fred Krebs on the Role of
General Counsel

2. Four Ways Plaintiffs’ Lawyers
Leverage Google To Stir
Food-Safety
Fears Richard S. Levick, Esq.
Originally Published on Fastcompany.com
Despite the fact that America’s food safety ground beef, and a host of other kitchen table
infrastructure is the most efficient and ef- staples all experienced significant incidence of
fective in the world, the International Food contamination in the last five years. The result-
Information Council Foundation’s 2012 Food ing consumer anxiety got so bad in 2009 that
and Health Survey found that only 20 per- Americans actually put their food safety fears
cent of Americans are “very confident” in on par with worries about the War on Terror.
food supply safety. At the same time, one
That’s a compelling statistic—and it ought to
in six U.S. consumers has stopped buying a
make farmers and food manufacturers won-
particular food or beverage brand because
der if there’s something else that is contrib-
of safety concerns in the last twelve months.
uting to Americans’ fear of food. Even at the
Given the rash of high-profile food recalls 2010 height of salmonella, listeria, and E. coli
we’ve seen since 2007, the figure is under- outbreaks, the U.S. Centers for Disease Control
standable, even if it isn’t backed up by hard and Prevention released data showing that
facts. Spinach, tomatoes, peanuts, lettuce, only one in every 125 million meals served in
the U.S. had the potential to make a consumer

3. Weekly
fatally ill. Science supports a conclusion that
the food we eat every day is, indeed, safe. So 1. Plaintiffs control the keywords.
As of this writing, a Google search for
4. Plaintiffs geo-target. As mentioned
above, a Google search for “cantaloupe
related to their products (“tomato,” “spinach,”
”cantaloupe,” etc.), they don’t do the same for
why don’t Americans feel that way? lawsuit” returns one plaintiff-maintained link. terms such as “foodborne illness,” “recall,”
the term “cantaloupe outbreak” lists a law firm
At the same time, a Google search for “canta- “lawsuit,” or “outbreak”—and that enables the
The answer lies in the fact that statistics can’t as the top sponsored link. A search for “canta-
loupe lawsuit Kentucky” (one of the hardest hit plaintiffs’ bar and other adversarial voices to
compete with emotion when it comes to as- loupe lawsuit” returns six plaintiffs’ firm sites
states during the outbreak) returns two spon- dominate the conversation. At the moment an
suaging anxiety. Numbers don’t move people on the first page. Industry messaging on safety
sored links. That tells us that at least one firm instance of contamination is discovered, food
the way that human drama does—and there issues is nowhere to be found on the first page
is targeting its efforts to the geographic areas companies need to engage in Search Engine
are no more dramatic events in the food of either of these searches. Bottom line—on
where its messages will resonate most. Optimization (SEO) and Marketing (SEM)
industry than when a person dies after eating virtually every food outbreak issue, the plain-
campaigns that rank their response messages
something she believed was safe. tiff’s bar is masterfully controlling the dialogue
What all of this means is that the plaintiffs’ bar
at the top of the list when their risk terms are
on Google.
is operating in a virtual information vacuum
This facet of human nature explains a large queried. Even better, food manufacturers that
2. Plaintiffs dominate the blogo- when contamination strikes the food and bev-
part of the equation; but not all of it. There is do the same in peacetime not only eliminate
sphere. When users click those links erage industry. “Within the legal community,
another factor at play, and it manifests itself in the need to scramble when trouble arises; they
mentioned above, they are most often directed they are simply outworking and outsmarting
the efforts of those with skin in the food-fear create a compelling safety narrative that plain-
to blog posts that outline how the industry the other side when it comes to online com-
game. Food industry adversaries—the plain- tiffs will have to overcome.
failed to keep cantaloupe consumers safe. munication,” says Bob Hibbert, a partner at
tiffs’ bar chief among them—understand how
emotion impacts the marketplace. Even more
troubling for the food industry, they under-
While the posts provide plaintiffs with an im-
portant messaging venue, the blogs themselves
Morgan Lewis & Bockius who has worked on
number of high-profile food safety issues. “It’s
2. Address the blogosphere. Plaintiffs’
attorneys maintain blogs as a means to
clearly in the best interest of the food industry, provide a steady stream of optimized content
stand how to manipulate digital and social ensure high search rank for the posts because
and of the people who represent it, to mount a that keeps their messages front and center on
media strategies to ensure their emotional ap- they are sources of the frequently-updated
more effective response to this challenge.” search engines. They know that if they are ac-
peals ring out in the marketplace. content that attracts the Google spiders.
tive all the time, the Google spiders will elevate
3. Plaintiffs use online video. A Google Fortunately, leveling the playing field doesn’t
By way of example, when we look at the their sites when a food recall hits and it comes
Video search for “cantaloupe listeria require any great strategic leap. Food manu-
circumstances surrounding the recent salmo- time to troll for class action clients. By blogging
lawsuit” features two plaintiff-produced videos facturers need to understand that the same
nella outbreak that killed two people, sickened about all the ways they work to diminish the
in the top three results. Just like the blog posts tactics driving high levels of consumer anxiety
150, and originated at an Indiana cantaloupe possibility of contamination, food manufac-
mentioned above, these videos don’t paint the can be employed to diminish it as well. Specifi-
farm, we see just how effective their efforts turers can also create the salient, frequently-
industry as a responsible steward of public cally, food companies should:
are at controlling the flow of information on updated content that ranks on Google when
1.
health. And as Google increasingly emphasizes
food safety issues. In other words, we see just Own their risk terms and keywords. consumers seek information on food safety.
how good they’ve gotten at controlling search the spoken word over the written one, these
Plaintiffs’ keyword dominance exists
results on Google, the venue more people turn
to for information than any other (digital
videos further optimize plaintiffs’ messaging.
because food manufacturers don’t own the risk
terms that their consumers use to find infor-
3. Engage via video. Food manufacturers
that reach out to consumers with engag-
ing video content not only provide themselves
or otherwise). mation on the latest safety crises. While they
a leg up on the SEO front; they establish the
likely optimize their Web properties for terms
emotional connections needed to bridge the

4. safety perception gap. Articulating food safety where they are need most; it enables compa-
statistics such as those cited above merely tells nies to directly reach the very consumers most
people their food is safe. Video shows them why likely to change their buying and eating habits
they should consume with confidence. With as a result of a contamination incident.
video content that highlights safety procedures
Google is the portal by which consumers gain
and the men and women charged with carrying
or lose confidence in products and services.
them out, food manufacturers can powerfully
As such, it is too important a venue for food
articulate a commitment to safety that sticks
manufacturers to cede to their adversaries.
with their audience. By going a step further
At a time when more than half of Americans
with how-to videos that outline healthy food
are concerned about the foodborne illness,
preparation steps, they can themselves take on
the industry has a compelling safety story to
the identity of true consumer advocates.
share. With strategies that enhance Web opti-
3. Be where the fear is. When an
outbreak does occur, the companies at
mization, they can help ensure that a captive
audience is there to hear it. L
the center the problem—as well as those whose
Richard S. Levick, Esq., President and CEO of LEVICK,
brands may be tarnished by mere association— represents countries and companies in the highest-stakes
need to target their messages to affected popu- global communications matters—from the Wall Street
lations. Not only does geo-targeting streamline crisis and the Gulf oil spill to Guantanamo Bay and the
Catholic Church.
their optimization efforts by focusing resources

5. Weekly
Michael Volkov & Julie Grohovsky:
Two Views on Whistleblowers, Dodd-Frank, & the False Claims Act
Michael Volkov, a shareholder in LeClairRyan, discusses the tough whistleblower laws that were Julie Grohovsky, partner at Wu, Grohovsky & Whipple, discusses the importance of the False
passed as part of the Dodd-Frank financial reform package. Whistleblowers that meet certain cri- Claims Act for combating fraud and protecting American tax dollars. Ms. Grohovsky particularly
teria are now entitled to as much as 30 percent of all recoveries that result from their cooperation stresses the significant impact of whistleblowers and the rewards that motivate them on exposing
with the government. That’s a powerful incentiveand it dictates an urgent need for companies to fraud against the national treasury.
ensure that employees report problems internally, before turning to regulators.

6. Weekly
Game-
Changer:
Qatar Plays Historic Role in
Glencore’s Bid for Xstrata
Richard S. Levick, Esq.
Originally Published on Forbes.com
It is no doubt a matter of historical inter- Not just the wrangling over sale price, the
est when two companies like Glencore and story is further vivified by the power struggle
Xstrata engage in a high-profile yearlong over who will run the reconstituted entity. The
back-and-forth negotiation to create the fact that Glencore was originally founded by
world’s largest mining concern. If the deal Marc Rich in 1974 and that its IPO set records
gets done, the marketplace and shareholder last year in London certainly adds more spice
impact will be significant as it would to the stew.
create a global commodities giant that
All that said, the real historical significance of
can compete with the likes of Rio Tinto
this saga may have less to do with mining, or
and Vale. The merger, worth around
even with corporate takeovers in general, than
$36 billion, would be the year’s biggest
with a portentous next chapter in the history
corporate transaction.

7. Weekly
of sovereign wealth funds, and how these look for a third party. Knight Vinke is one of
massive investment entities must now position Xstrata’s 20 largest holders.
themselves in the global community.
But let’s back up for a minute. The spark that
Of course there’s been no dearth of blow-by- really set this fire was struck by Qatar Holding
blow media coverage of Glencore’s bid for LLC (QH), established in 2006 by Qatar Invest-
Xstrata, the world’s fourth-largest diversified ment Authority (QIA), the sovereign wealth
miner. Glencore, which already owns 34% of fund (SWF) that owns about 12 percent of
Xstrata, was rebuffed in June and a revised Xstrata. After QH rejected Glencore’s initial
offer, including a reported 27% premium, was offer in June, no less a personage than former
formally made on Monday, September 10. Ivan UK Prime Minister Tony Blair, a good friend
Glasenberg, Glencore’s chief executive, had of Qatari prime minister Sheikh Hamad bin
previously insisted that he would not budge Jassim, was recruited to keep both Glasenberg
from his original terms. Glencore now similarly and Ahmad Mohamed Al-Sayed, the managing
avers that it will not increase this current offer. director and chief executive of Qatar Holdings,
at the bargaining table.
Glencore’s options may still include a hostile
position that would only require a majority More than any other Xstrata shareholder, Qa- formation was likely inevitable once the sov- Xstrata board issues a statement expected on
rather than 75% shareholder approval, al- tar Holding seems to be the linchpin. Not sur- ereign wealth funds began to invest directly September 24.
though the company seems to have backed off prisingly, there was no small interest in how it in companies,” says Leonard Schneidman,
The kingmaker role underscores another po-
from that strategy. The revised offer calls for would respond to Glencore’s revised offer. In Managing Director of WTAS, a tax, valuation
tentially decisive point: that, as an SWF, QH is
Xstrata Chief Executive Mick Davis to stay at fact, not just the content, but the style of that and financial advisory firm. “They can no lon-
rich enough, and expansive enough, to take it
the helm for only six months, then be replaced response, reported on Tuesday, is significant. ger work solely behind the scenes or pursue
or leave it. In late August, Glasenberg assumed
by Glasenberg while Xstrata Chairman John First of all, it is the first statement of any sort their objectives via intermediary entities,”
the same position when he said that Xstrata
Bond would remain chairman. The market that QH has made in response to Glencore’s adds Schneidman, editor of Sovereign Wealth
was “not a must-do deal.” But Glasenberg
seems confident the deal will now go forward proposals. Heretofore, SWFs have typically Funds: A Legal, Tax and Economic Perspective
blinked on September 10. QH is not likely to.
as shares increased by 2.4% on Monday. Yet been cautious passive investors, a judicious (Practising Law Institute).
the leadership issue remains a question mark. strategy in the past considering the potential For companies and their boards, QH is thus
Further heightening its profile in this deal, QH
As of this writing, Davis is reportedly ready to in both the U.S. and Europe for intensified a new kind of activist investor, one that has
is holding back approval, saying that it will
quit and so is CFO Trevor Reid along with 20 regulatory interest in how the investment seemingly endless options and immeasurable
make its decision “in due course.” The SWF is
other senior executives. arms of foreign governments buy up leverage. It’s a dazzling prospect of what the
thus openly playing the role of what the me-
domestic properties. future may hold when we consider another
The institutional investors were fairly split in dia describes as “kingmaker” and it certainly
essential point: that no one in the investment
their response to the revised deal. Standard It is therefore something of a watershed seems content to play hard-to-get. Reportedly,
arena takes a longer-term view of things than
Life supports it, but Knight Vinke, an activ- moment when an SWF acts like an activist QH may not even weigh in until after the
ist shareholder, now wants Xstrata’s board to shareholder, which is precisely what Qatar did
when it rejected Glencore’s offer. “The trans-

8. Weekly
“ Power and prominence increase incrementally but
inexorably and, in an uncertain political climate, it
is wise to make the world as comfortable in your
presence as possible.”
Fred Krebs
on the Role of General Counsel
SWFs. If Qatar’s holdings in Xstrata suffer be- At the same time, the SWFs have already been
cause this deal falls through, Qatar can and will shrewd enough to characterize their invest-
ride it out. ment strategies as “opportunistic,” which is
precisely how the QIA describes its philosophy.
Yet Qatar’s precedent-setting role in the Glen-
An opportunistic strategy is an unpredictable
core bid suggests new challenges ahead for the
one, happily so in the sense that there’s no
SWFs as well. The 12th largest SWF in the world
carefully devised plan, no multifaceted conspir-
has just taken a step beyond quiet power, to the
acy to influence anyone’s foreign policy or buy
noisier public role of activist investor. No one
up the Eiffel Tower and ship it off to Doha.
in the U.S. or Europe is raising national security
concerns as a result. It is fair to say, however, Conversely, the SWFs can reinforce that assur-
that Qatar’s conspicuously aggressive role in ance by carefully communicating how and why
this deal presages additionally more aggressive they do pick their investment targets, focusing
Fred Krebs, Senior Advisor at Clearspire LLC and the Association of Corporate Counsel discusses
SWF positions in the future. too on the diverse benefits for everyone; when,
the current “golden age” for general counsel—an era in which their influence and impact on the
for instance, their money supports needed
At the very least, SWFs can revisit how they will business community has never been more significant. With this higher profile comes intensified
infrastructure projects. Xenophobic tensions
represent themselves in the years ahead if and scrutiny, even as new resource challenges demand that general counsel identify new ways to get
won’t go away in our lifetimes but it is always
when such positions do indeed become increas- the most out of their outside law firm relationships.
prudent to turn as many enemies as possible
ingly aggressive and public. Power and promi-
into stakeholders, no matter how untold the
nence increase incrementally but inexorably
wealth you currently enjoy. L
and, in an uncertain political climate, it is wise to
make the world as comfortable in your presence Financial Communications
as possible. To that end, these emergent power
brokers should remind everyone that they have
Richard S. Levick, Esq., President and CEO of LEVICK,
represents countries and companies in the highest-stakes Litigation
the same rights as any other investor. If Carl
global communications matters—from the Wall Street
crisis and the Gulf oil spill to Guantanamo Bay and the
Corporate & Reputation
Icahn can make or break a deal, so can they. Catholic Church. Public Affairs
Crisis
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9. THE URGENCY
OF NOW.