Risk Update

Technology, Advertising, Alleged Jury Influence & Ethics Rules

A fascinating scenario making news: “Did Defendants in Latest Roundup Trial ‘Geo-Fence’ Jurors?” —

  • “At the beginning of the third and latest trial over alleged toxic properties of Roundup, plaintiffs lawyers asked a judge to prevent Monsanto Co. from advertising that its weed killer was safe. Their motion for temporary injunction focused on a full-page ad in The Wall Street Journal on the first day of voir dire, but that wasn’t what alarmed them the most—in court, they brought up another, more cutting edge, marketing practice: geo-fencing.”

  • “Geo-fencing is a digital marketing tool that allows companies to send pop-up advertisements to cell phone apps within a designated geographical area—in this case, according to plaintiffs attorneys, the courthouse in Oakland, California, where the third Roundup trial is ongoing. At an April 4 hearing, plaintiffs’ attorneys told the judge that Monsanto’s advertising activities were akin to juror tampering and asked to prohibit geo-fencing within a quarter of a mile of the courthouse.”

  • “Although she acknowledged that geo-fencing ‘raises a number of issues,’ noting that ‘technology has taken us places probably we never thought it would go,’ Alameda County Superior Court Judge Winifred Smith denied the plaintiffs’ motion. ‘The court is not persuaded that the alleged geo-marketing is materially different from carrying signs outside a courthouse or carrying placards or wearing buttons inside a courtroom or that it requires a different judicial response,’ she wrote.”

  • “‘Some of the jurors who didn’t end up making it on the jury said they were getting pop-up ads touting the history and safety of Roundup,’ Brady said. ‘That’s when we became concerned about it. And we noticed it—a number of us who are not jurors to the case.'”

  • “The American Bar Association, in fact, came out with a formal ethics opinion last year that addressed attorneys talking about their cases online, like in blogs. ABA’s Model Code of Judicial Conduct also prohibits lawyers from influencing a jury.”