PRESS RELEASE FAUX PAS AND … “WHY THE TWO ORDERS COLONEL?”

A press release can be an incredibly useful tool. In the hands of a skilled professional, a press release can inform, educate and entertain an audience while setting the foundational tone to acquire that which is desired. But, in the hands of an amateur, when pressure is applied, when an entity is being closely scrutinized, a poorly designed press release can become a dangerous, costly mistake leading to liability and unwanted attention.

Nowhere is this more true than in the litigation arena. For persons, corporations, foundations and other entities experiencing federal court litigation for the first time, the grandness of the arena can be overwhelming. A judge appointed for life by Congress. The full trappings of the adversarial system. The most skilled litigators and law firms. Attorneys who prey upon mistakes, upon errors contained in press releases and other publicly released documents.

Late last Thursday night, litigation was filed against the National Eating Disorder Association (NEDA). The case sets forth complex causes of action set forth over forty-five (45) pages. Understanding of the complexity of the claims demands the greatest expertise, intelligence and courtroom acumen from even the most experienced of attorneys. And yet, at approximately 3:30 p.m. the next day, NEDA issued a press release about the lawsuit. This press release is set forth here:

https://www.facebook.com/NationalEatingDisordersAssociation

The desire to start to frame the issues and get ahead of the narrative is intuitive. But, it can also be a siren song leading to the inevitable destruction of that party. Especially if that party is being less than complete or transparent. In NEDA’s press release, it stated in part the following:

The plaintiffs in this case are represented by an attorney who has been active in the eating disorders community, Steven R. Dunn, so may be familiar to members of our community.”

For reasons known only to NEDA, it chose not to comment on the other law firm and attorney representing the plaintiffs in this case. That is, The Nichols Law Firm led by Justin P. Nichols based out of San Antonio. Mr. Nichols is a leading consumer, credit and plaintiff’s attorney and is listed as one of the top 20 family law attorneys in the San Antonio area. Mr. Nichols is also a champion advocate for the LBGTQ community. In January 2014, Mr. Nichols filed the first complaint under San Antonio’s then new, nondiscrimination ordinance claiming AT&T fired his client, Matthew Hileman, because of his gender identity. In fact, Mr. Nichols represented the first three people to utilize that amended non-discrimination ordinance. The ordinance added protections for sexual orientation and gender identity.

Mr. Nichol’s name is listed on the Complaint. At the time of the press release, NEDA had this information. As such, one is certainly justified in speculating why NEDA consciously chose to not comment on Mr. Nichols, his impeccable reputation and history of representing persons in marginalized communities.

Later in the Press Release, NEDA states, “We are deeply disappointed that at the very time the eating disorders community should be pulling together to meet these pressing needs, the plaintiffs in this lawsuit and Mr. Dunn have chosen to take an action that will create friction within the community and divert precious financial and personnel resources that should be devoted fully to those NEDA serves.

On October 28, 1980, then Governor Ronald Reagan in a presidential debate with then President Jimmy Carter uttered one of the most well-known and oft repeated phrases, “There you go again.”

Again, for reasons known only to NEDA, it chose to be less than transparent and forthright with regard to the above statement in the following manner:

  •  NEDA chose to not disclose that it had received extensive documentation of these claims as early as mid-August;
  • NEDA chose to not set forth the communications NEDA’s attorney had with plaintiffs’ attorneys on this matter;
  • NEDA chose to not disclose that NEDA’s interim CEO had a cordial conversation with Plaintiffs’ attorney regarding possible ways of moving forward;
  • NEDA chose to not disclose that it had received an extensive settlement brochure in September;
  • NEDA chose to not admit that Plaintiffs’ attorneys made good faith attempts to resolve this matter prior to litigation being filed;
  • NEDA chose to not list that NEDA has in place, directors and officers liability insurance and that its annual retention amount on the policy (amount not covered by insurance) is less than one percent (1%) of the monthly amount it pays in rent.

NEDA claims to desire greater transparency with the community. And yet, for an organization claiming it desires this greater transparency, one is justified in questioning why all of these facts and issues were not disclosed to the community in its Press Release.

Of even greater concern is the fact that NEDA’s lack of transparency pertains to not just these so called “meritless claims,” but its own failure to disclose that it utilized these “meritless claims” to fire two of its arguably most important employees, employees who at the very heart of these “meritless claims.”

A Few Good Men

The movie, “A Few Good Men” was released in 1992. Tom Cruise played a young military attorney, Lt. Daniel Kaffee, defending two marines accused of causing the death of another marine during an illegal, “Code Red” enforcement. The villain is Colonel Nathan Jessup, played brilliantly by Jack Nicholson. Nicholson concocts an elaborate web of lies, deceit, deflection and subterfuge in order to shield his own liability. Colonel Jessup epitomizes the very essence of “lack of transparency.”

Nicholson’s charade is finally exposed after a thorough investigation into all facts and a masterful cross examination conducted by Cruise as Lt. Kaffee. In short, the seminal part of their characters’ interaction was as follows:

Kaffee: A moment ago, you said that you ordered Lt. Kendrick to tell his men that Santiago wasn’t to be touched
Jessup: That’s right.
Kaffee: And Lt. Kendrick was clear on what you wanted?
Jessup: Crystal.
Kaffee: Any chance Lt. Kendrick ignored the order?
Jessup: Ignored the order?
Kaffee: Any chance he forgot about it?
Jessup: No.
Kaffee: Any chance Lt. Kendrick left your office and said, “the old man is wrong”?
Jessup: No.
Kaffee: When Lt. Kendrick spoke to the platoon and ordered them not to touch Santiago, any chance they ignored him?
Jessup: You ever served in an infantry unit, son?
Kaffee: No, sir.

Jessup: Ever served in a forward area?
Kaffee: No, sir.
Jessup: Ever put your life in another man’s hands and asked him to put his life in yours?
Kaffee: No, sir.
Jessup: We follow orders, son. We follow orders or people die. It’s that simple. Are we clear?
Kaffee: Yes, sir.
Jessup: Are we clear?!
Kaffee: Crystal. Colonel, I just have one more question … If you gave an order that Santiago was not to be touched, and your orders are always followed, then why would Santiago be in any danger
Jessup: Santiago was a substandard marine. He was being transferred…
Kaffee: That’s not what you said. You said he was being transferred because he was in grave danger.
Jessup: That’s correct.
Kaffee: You said he was in danger. I said “grave danger”? You said…
Jessup: I recall what I said.

Kaffee: I could have the court reporter read back to you…
Jessup: I know what I said! I don’t have to have it read back to me, like I’m…
Kaffee: Then why the two orders? Colonel?
Jessup: Sometimes men take matters into their own hands.
Kaffee: No, sir. You made it clear just a moment ago that your men never take matters into their own hands. Your men follow orders or people die. So Santiago shouldn’t have been in any danger at all, should he have, Colonel?

Which brings us back to NEDA’s press release. In material part, NEDA states, “We have reviewed these claims with our legal counsel and believe that they are without merit.”

We now know that in mid-August, I brought to the attention of Geoff Craddock, the Chairman of NEDA’s Board of Directors extensive information and documentation regarding alleged conduct and actions of certain NEDA’s officers. This information consisted of almost sixty (60) pages of documentation. Information and factual allegations which are incorporated into the lawsuit against NEDA, a lawsuit which NEDA believes is without merit.

And yet, approximately one month later, the week before Weight Stigma Awareness Week, NEDA fired its Chief Global and Strategic Officer, the person who receives the most credit for originating Weight Stigma Awareness Week in 2011. To date, NEDA has never publicly disclosed the reasons behind that decision. Then, approximately one month after that, NEDA parted company with its Chief Executive Officer. Again, without explanation.

To believe that the timing of the ending of NEDA’s association with its CEO and one of her most important officers is a mere coincidence and not related to the “meritless claims,” stretches the imagination beyond all belief. And so when we revisit NEDA’s Press Release and NEDA believing the claims in the lawsuit are without merit, we can’t help but ask,

“So Colonel Jessup, after you received documents and information from Plaintiffs’ attorneys, information which has been incorporated into this lawsuit, a lawsuit which you publicly claim is wholly without merit … why did you fire two of your most important employees within about sixty (60) days after receiving this information?”

“Colonel Jessup, besides receiving the information at the heart of these “meritless claims,” what other information did you receive that was so egregious, that you heartlessly fired one of the architects behind Weight Stigma Awareness Week just mere days before that week started in September?”

“Colonel Jessup, after receiving the documents and information, you could have stood up for, and supported your former officers. Instead, you fired them. Why?”

Eating disorders are believed to have the second highest mortality rate of all mental illnesses. Families entrust the lives of their beloved children to treatment professionals. Families seek credible, accurate evidence-based information from organizations involved in the eating disorder community. And if an organization refuses to be transparent with the community, if it issues inconsistent and illogical press releases, if it refuses to be accountable for past mistakes, why should the community continue to embrace that organization?

Families deserve better.

Treatment professionals deserve better.

Our children, our spouses, our parents who suffer from this disease deserve better.

Our dear, beloved fallen children taken by this insidious disease deserve better.

We deserve better.

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