10 Feb 2022

More ESG disputes set to create larger role for litigation PR, new research says

A report by Byfield Consultancy shows ESG disputes will take a larger share of future disputes

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Environmental, social and governance (ESG) disputes are set to dominate future disputes, opening the door for a broader role for litigation PR in managing them, according to a new report.

The Finding the Right Line: Litigation PR in an Evolving Ecosystem report by legal PR consultants Byfield Consultancy found that 30% of respondents viewed ESG as an area of note for future litigation — the most significant percentage of survey respondents to do so. The responses were based on the views of disputes stakeholders such as general counsel, litigation funders, law firm partners, leading counsel and PR advisors. 

ESG concerns are wide-ranging, spanning climate change, diversity and modern slavery, amongst other issues. The report notes litigation PR is becoming increasingly important in managing public and commercial perceptions, not least because ESG factors are increasingly being seen as a marker of good corporate citizenship.  

Public companies will require highly specialised PR strategies and advice when defending ESG claims, the report noted. It said the potential reputational fallout from ESG-related violations can be ‘game-changing’ for corporates, citing increased regulatory fines and operational restrictions, as well as impacting future investment and recruitment. 

One respondent said: “These are areas where there is going to be clickbait. Any company that has a public profile, [if] there is an ESG slant to that, it will complicate the PR piece of a dispute.” 

Gus Sellitto, managing director of Byfield Consultancy, said that with the increase of media interest, particularly in areas of conduct and ESG, companies and others involved in disputes will need to manage the narrative around these ‘clickbait’ issues. 

Other concerns ranged from collective actions (14%), data privacy (10%) and product liability risks, such as in medical and pharmaceutical disputes (9%).  

The report argued that collective actions were prominent thanks to class actions like the Merricks v Mastercard litigation. Such claims, the report said, had ‘greater potential to generate major media stories with far-reaching reputational impact and large financial damages.’

Sellitto agreed, saying: “With the rise of group actions, alongside increased media interest in disputes, the need for litigation PR has never been clearer.”  

Only 7% of respondents identified disputes arising from Brexit, or international trade concerns, while 30% of respondents did not single out any one particular matter.  

The majority of respondents (61%) from a list of 50 key stakeholders said they considered reputational impact when advising clients in a dispute, while 76% of respondents said that litigation PR was necessary for a client’s legal strategy in a dispute.  

The report also found that the use of external consultants, alongside internal PR resources, remained low, with only 8% of stakeholders always choosing to retain consultants when advising clients. Almost half (49%) said external PR consultants were sometimes involved, while 34% said such consultants were rarely involved. 

Sellitto agreed that while there is increasing recognition of litigation PR, “the number of those that always involve external PR practitioners in their strategies remains low.” He believes litigation PR will become more important as ESG increasingly takes centre stage and class actions become more prevalent in the UK.'

Regarding the type of dispute concerned, 40% of the respondents thought media coverage of a case caused parties to settle to avoid reputational fallout. 

The report itself suggested that a proper litigation PR strategy could have a profound impact on the outcome of a dispute, with evident collaboration between lawyers and PR advisers needed to coordinate when and how information is presented to the media and the courts.  

 

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