News & Events

Targeted advertising to consumers is one of the most common methods companies use to sell their products and services and/or influence how consumers perceive company values. Consumers are shown ads based on their location, demographics, previous buying history, search engine history, or inferred interests. Many social media networks can easily find a consumer’s information and provide that information to companies who want to place strategic ads that consumers might engage with or be influenced by. These targeted advertisements may do more than just encourage a consumer to buy a product. Many companies that are currently involved in lawsuits also use targeted advertising. The question then becomes, can targeted advertising used by a company impact how a potential jury pool views the company’s values and products before trial?

In 2019, the Monsanto Company was involved in a high-stakes, highly publicized trial over its herbicide Roundup and its potential toxicity. Monsanto chose to run a series of targeted pop-up ads that highlighted Roundup’s safety studies using a digital marketing method called geofencing. Geofencing allows companies to send targeted advertisements to users’ smartphone apps within a specific geographic area. Plaintiffs in the case claimed that Monsanto’s advertisements were targeting potential jurors because the company was running the pop-up ads in Alameda County, California where the courthouse is located. The plaintiffs’ attorneys asked the judge to ban the use of targeted advertisements within a quarter mile of the courthouse to prevent the jury pool from being influenced. Monsanto’s attorneys fired back with proof that the plaintiffs had also engaged in targeted advertising across multiple media platforms that were disparaging to the Monsanto Company as well as its product Roundup. In the end, the judge ultimately agreed with the defense attorneys stating, “The court is not persuaded that the alleged geo-marketing is materially different from carrying signs outside the courthouse or carrying placards or wearing buttons inside a courtroom, or that it requires a different judicial response.” The judge decided that the targeted advertising did not present an actual threat of imminent prejudice to the plaintiffs’ right to a fair trial but did express that geofencing raises a number of concerns that could not have previously been predicted since the technology is continuing to rapidly evolve.

How far can attorneys and their clients go when using targeted advertising and geofencing capabilities when involved in a lawsuit? The line between freedom of speech and jury tampering is incredibly blurred at the moment.

Even though only a small number of courts have considered the issue of geofencing and the potential for jury tampering, some courts have disciplined attorneys for their use of technology, especially in cases in which attorney communications put the integrity of the jury trial in jeopardy. In a 2018 Amarillo Court of Appeals case in Texas, sanctions were upheld against an attorney for using a telephone survey (“push poll”) of Lubbock County residents weeks before a wrongful death jury trial. The trial judge sanctioned the lawyer over $177,000 after finding that many of the survey questions were designed to “influence or alter the opinion or attitude of the person being polled,” and that his conduct was specifically designed to influence the potential jury pool. The Court of Appeals agreed the practices negatively affected the rights of the parties to a fair and impartial jury; however, when taken to the Texas Supreme Court, the sanctions were overturned. This could allow lawyers and clients in future lawsuits to use similar targeted methods to influence a potential jury pool.  

In Florida, a personal injury lawyer ran a television ad in 2016 focused entirely on the legal rule prohibiting juries from learning a defendant has liability insurance. This common law rule in Florida is codified in the Federal Rules. The ad put forth that juries won’t find defendants at fault without knowing they have insurance to cover the cost of the losses caused by their fault. The ad asked television viewers to let others know that almost all drivers have insurance and the law prevents plaintiffs from telling juries. Being run by a consumer advocate, the ad fails to mention that juries knowing about insurance coverage could also be influenced the other way and find against a defendant, knowing they have insurance to cover the loss.

The idea that a targeted advertisement will instill in consumers and potential jurors a favorable perception of a company involved in a lawsuit is not new. Companies have used image campaigns for decades to try to keep their images protected from the negative potential of a serious lawsuit. Litigation “hotspots” have popped up over the years, which are areas of the country that companies will target with positive image campaigns. These litigation hotspots are typically areas near courthouses where a disproportionate number of specific types of lawsuits are brought.

While the right to an impartial jury is a fundamental feature of the U.S. justice system, the right to free speech plays a significant role in allowing attorneys and their clients to use targeted advertising before and during litigation. Jury tampering is a serious offense; however, thus far targeted advertising to consumers using geofencing and other methods has not been banned and will continue to thrive in a legal gray area.