Here’s the best thing I ever learned from my favorite lawyer: When someone is threatening you with legal action, the most urgent thing to think about is not whether you can win the suit, but whether you can keep it from going to trial. Once you’re committed to going to court, the costs can be enormous. Worse, a litigious opponent with deep pockets can bleed you so badly that, win or lose, you come away damaged. If you can’t afford to fight, you probably can’t afford to win.
You’ve seen that principle recently in action. Think of the website Gawker, brought down by Hulk Hogan’s invasion of privacy lawsuit involving a sex tape featuring the wrestler/celeb. Could Gawker ultimately have prevailed on appeal? Sure. There’s a well-established pattern in libel and invasion suits: You lose at the jury trial, then get a reversal in appellate court. Gawker’s CEO, Nick Denton, couldn’t take that very reasonable bet and folded his cards. Hogan, financially backed by Paypal founder Peter Thiel, could afford to play a long game. Denton, threatened with losing his house, couldn’t.
It may sound like I’m saying that money trumps all, but the costs of litigation aren’t just financial, and sometimes the non-monetary kind can be important as well.
For example, let’s think of the lawsuit brought against Coca-Cola and the American Beverage Association this week by the health justice organization Praxis Project, with the backing of the Center for Science in the Public Interest (CSPI) and the Public Health Advocacy Institute. (All the material on the suit makes it look like CSPI, which has a history of suits like this, is the driving force here. For the sake of simplicity, I’m going to treat it as CSPI’s project in what follows.)
The suit, filed in United States Court for the Northern District of California, alleges that Coca-Cola has violated the state’s false advertising laws. Specifically, the complaint states, “Although Defendants have publicly pledged allegiance to objective scientific criteria, they have instead represented falsely that sugar-sweetened beverages are not scientifically linked to obesity, diabetes, and cardiovascular disease, and have waged an aggressive campaign of disinformation about the health consequences of consuming sugar-sweetened beverages. Defendants have undertaken these actions even though they know and have known that sugar-sweetened beverages are linked to serious medical conditions, including obesity, diabetes, and cardiovascular disease, when consumed regularly.”
CSPI and Praxis want Coca-Cola to publicly disclose its files on the health implications of sugar-sweetened beverages; fund a campaign to “educate consumers about the association between sugar-sweetened beverages consumption and obesity, diabetes, and cardiovascular disease”; refrain from any advertising that implies that sugar-sweetened beverages aren’t associated with obesity, diabetes, and cardiovascular disease; and halt all advertising that reaches significant numbers of children under the age of 12.
I’m no lawyer, but when I read through the complaint, the suit doesn’t look anything like a home run. True, CSPI has chosen an ideal venue for the case: The Northern District of California is renowned (and nicknamed “the Food Court”) for its friendliness to consumers and its willingness to entertain claims of false advertising, inflated health claims, and the like. And as the complaint points out, the court previously “found that the warning required on certain sugar-sweetened beverage advertisements in San Francisco—which reads, ‘WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay’—is ‘factual and accurate.’”
There’s also the fact that some of Coca-Cola’s behavior has been pretty outlandish. One ad, broadcast during the 2013 Super Bowl, seems to imply that laughing out loud for 75 seconds can burn the 139 calories in an eight-ounce Coke. (It can’t.)
But the case itself looks a bit skimpy. The evidence it cites is mostly for an association or link between sugar and disease. That’s not quite the same as clearly demonstrating causality. What we have already is good enough for me to change my diet, and probably good enough for you. But to win in court, CSPI needs to present a jury with evidence that there’s really no question, no area for substantive disagreement with the idea that sugar plays a unique role in causing diabetes and obesity. And the jury has to buy it, ignoring the experts that Coca-Cola would no doubt parade in front of them arguing the opposite. Would that work? I don’t know. Ask your Uncle Harry what he thinks about global climate change, for which the evidence base is far stronger than the evidence against sugar. If there’s one thing we’ve learned over the past few years, it’s that persuasive evidence doesn’t always persuade. Even the 75-second ad can be explained away: Coca-Cola just has to say, “You’re misrepresenting it. We meant that you could burn the calories with all the activities mentioned in the ad—walking the dog, dancing, and so forth—not just one of them. (Is that a believable claim? Check the ad for yourself.)
So why is CSPI risking its resources on the suit?
Well, let’s take my lawyer’s advice and flip it on its head: What he said was basically that you don’t have to lose in order to lose. But the converse is true, too: You don’t have to win in order to win.
A defendant like Coca-Cola has the tools to fend off most attacks in a court of law, but a suit like CSPI’s takes place just as much in the court of public opinion. The very fact of announcing the suit is a minor victory for CSPI. It’s hard to get a true but ongoing story like Coca-Cola’s advertising into the news. There’s no new hook to pull reporters in. The fact of the suit changes that. Outlets that would hesitate to publish the statement “Coca-Cola is a big fat liar pants” might feel differently about printing “CSPI has sued Coca-Cola for being a big fat liar pants.” Some people will believe that Coca-Cola is guilty merely because of the allegations in the suit (which corporations always answer too cautiously to be persuasive. Even more of the public will believe Coca-Cola is guilty if it settles).
And there are good reasons to settle. If Coca-Cola goes to court, it needs to go through discovery, which will give CSPI access to all sorts of internal documents it couldn’t otherwise see. No big corporation likes discovery. There’s always some dope (often a highly placed one) who sends out an e-mail saying, “I don’t care what the science says—tell them that sugar is good for them.” If that doesn’t kill you in court, it will be a PR disaster. Experience says that there’s always a smoking gun in there somewhere.
Which suggests that we’re about to see a familiar pattern: Coca-Cola will fight hard to get the suit thrown out before trial. The plaintiff organization, for example, says that it has standing to sue because it works in improving healthcare, and, if not for sugar-sweetened beverages, it would have more money to spend on other projects. Is that good enough? It’s the judge’s call. If the judge says the trial is on, look for a settlement.
And why not? Coca-Cola must know that the things CSPI is demanding are virtually inevitable. There’s not much to lose that wasn’t going to be lost one way or another. The soda is at a sensitive point. CSPI is giving it a hard nudge in the direction it’s already headed. No legislation, no trial, just a well-calculated application of … well, “blackmail” is too loaded a word for it, though the mechanism is basically identical. What could be wrong with that?
What if Coca-Cola is right, and that sugar is not a magic evil ingredient? It seems unlikely, but then again, it wasn’t so long ago that we were all confident that fat was killing us. The good thing about a trial is that it at least attempts to get at the underlying truth. (Will it succeed in this case? I for one doubt it.) The pressure game CSPI seems so good at gets results without the kind of clarification of the facts that we need in the long run.
Am I worried about it? Only a little. This case may get a bit of disinformation off the table, but let’s face it: If the idea that sugar is good for you is a lie, big companies aren’t the only ones telling it. Sugar has an inherent power, and speaks for itself, the same way it always has, promising to deliver just what your body needs and craves. Next time a Snickers bar starts calling your name, try this: Tell it, “Bub, I’ll see you in court.”
I’ll bet it laughs out loud for 75 seconds.