For half a century, when producers of television news magazines have come calling on businesses, businesses have almost always quaked in fear. CEOs have heart palpitations, their PR advisors grip their smartphones and try not to let their nerves show, and company lawyers usually begin sending letters in an attempt to kill the story before anyone even knows what the story will say.
60 Minutes is the granddaddy of the bunch, followed by a panoply of contenders, such as 20/20, 48 Hours, PrimeTime, and Dateline. To be sure, these programs have celebrated plenty of business heroes, from Amazon’s Jeff Bezos to sage billionaire investor Warren Buffett to Microsoft co-founder Bill Gates. They also have vindicated the falsely accused, such as the Duke University lacrosse players wrongly accused of rape and several of our clients, including the late Pattie Dunn, former chairman of Hewlett-Packard; Eugene Melnyk, founder and chairman of Biovail; and Dr. Patrick Soon-Shiong, founder and chairman of American Pharmaceutical Partners and Abraxis BioScience and, more recently, NantWorks.
Pattie Dunn was indicted, having been wrongly accused of “pretexting” and spying on her board (all charges were dropped, see chapter three). Melnyk and Soon-Shiong and their companies were attacked and accused of a whole host of horribles by short sellers (their charges also shown to be false; see chapter six). But despite these stories and others like them, TV news magazine shows are better known for exposing the dark underbelly of business and government. Wall Street rip-offs, defense contractor scams, auto company recalls, bad hospitals, con artists, CEOs guilty of misdeeds—these stories populate their rogues’ gallery on display.
Reporters have a well-worn saying, “Tough but fair,” and, while some might disagree, that pretty much has been my experience in dealing with the primetime news magazines.
Rarely ever can you hope for what some say is the impossible: to get these programs (or any major news organization, for that matter) to retreat from a story on your client and never put it online, in print, or on the air. We were able to achieve this feat for our client, a defense contractor that I’ll refer to by the pseudonym Training Sciences International, or TSI. The case involved a story set to air on one of this country’s major network news magazines—just weeks before the publicly traded company was set to be acquired for more than a billion dollars. But after the producers, their bosses, and their lawyers reviewed the case we put together demonstrating that the premises and facts of the planned piece were wrong, they killed the story—a rare occurrence, indeed.
But while I take great pride in the work we did in putting together evidence proving that the information the producers had assembled was wrong, the real credit goes to the professionals at that organization and the journalistic standards they upheld. It demonstrated that they were truly concerned about getting it right, as opposed to just getting it on the air.
Storytelling is the major stock-in-trade at my firm, not to mention story selling, but sometimes we have to play defense, and that can include correcting reporters’ errors by assembling a set of contradictory facts that demonstrate what the reporter has is wrong. (In fact, a line in my bio states, “Although many of his cases have dominated the headlines, perhaps even more telling are the cases which are never heard about—where Mr. Sitrick and his firm are brought in to keep their clients out of the press and off the web, a much more difficult task.”) Sometimes the case you build can be so convincing as to kill the story entirely, though this is rare. As you try to counter to demonstrate what the producer or reporter has is wrong, these three steps forward may help:
• Review the information the reporter has and determine what is accurate and what is not
• If inaccurate, find out what the correct information is
• Present the “facts” to the reporter in a manner that demonstrates what he or she has is false
This is how my firm came to be involved in a story that threatened to do horrible damage to a company, its shareholders, and its employees. The story the TV news magazine was doing was aimed at TSI and its training program for uniformed personnel in the Middle East. The story would have been scandalous, to be sure: more than a billion dollars in U.S. taxpayer funds spent over eight years to train more than a hundred thousand new members, only to end up with what the media came to characterize as a band of misfits and klutzes. Mismanagement of funds, expense account violations, billing for time not worked, allegations of incompetence, homophobia and racism, reports of drunken late-night parties, and turf battles between the State Department and the Department of Defense. These were just some of the allegations.
Sitrick And Company had already had been hired by TSI to handle various strategic communications tasks; no crisis had yet descended. Then TSI executives started hearing from sources in one country who warned them that a camera crew from a major television news magazine had been seen locally, there to shoot footage of U.S. installations, interview locals, and contact current and former employees about TSI’s training program. Worse, word was that the news magazine team had visited this country twice, meaning the investment of time and resources was high. This was a big story.
The More Time Invested, the Harder It Is to Kill a Story
The deeper a TV show gets into reporting a story, the more time and money it has invested in doing that story and the slimmer your chances of influencing it, let alone killing it. (This generally applies to print media, as well. Yet another reason to engage early, if at all possible.) By the time we got involved in the TSI case, the news magazine crew was already two months into it. We were getting to this situation late.
TSI’s chairman called me after learning that the news magazine program was drawing a bead on the company. His management was disinclined to talk to the producers, but this, I advised him, was a decision that should be made only after we knew what they intended to report.
Before you can decide whether to “take the stand” and sit down in front of cameras (or for an interview with a print reporter, for that matter), you should try to ascertain what the story is about, what information they have and where the information came from, and whether the sources they are using are credible. You should not agree to sit down for an interview until you know what the other side is looking for—otherwise you are walking down a long, dark alley with no idea of who or what might be lying in wait.
There are a few ways to do this. You can ask the reporter what he is working on and what he has. You can ask the reporter for a list of questions he wants to ask. You can sit down with the reporter entirely off the record. This means nothing said in the session can be discussed with anyone outside their news organization, nor can it be used on-air, online, or in print unless you allow it.
Generally, I do this in phases. I begin by calling the reporter. During that call, I ask what he is working on, how far along he is in the reporting process, and what is the source of his information, if he can tell me. Usually his sources are unnamed, and he refuses, of course, to disclose those names. Chatting with a reporter provides a spontaneity and give-and-take that neither side can get via email. Depending on the outcome of that chat, we may move forward with the interview or we may move to another level of fact-gathering.
In a situation like the one we were facing with this news magazine, the producer was unwilling to share any of the details of what he found in his reporting. Time was a particularly critical factor, given how far along the news organization was in its reporting, to say nothing of the pending acquisition. From what senior executives had heard from those contacted by the program’s producers, while they only had bits and pieces, they knew it was going to be bad.
TSI executives were wary of having even an off-the-record exchange with the program’s producers. I told them that I had worked with this show’s people many times before, and they always had kept their word. If they agreed it would be off-the-record and nothing could be used, that would be the case. The worst outcome is you find out what the producers have, and you can prepare for it, even if you decide against cooperating with them. But I knew that in most cases, once clients hear, off the record, what the story is about and what parts the producers are getting wrong, the clients feel compelled to correct it.
And trying to correct the story—before it airs or gets published—is almost always the most effective way to mitigate potential damage. You don’t win in boxing by taking punches but by throwing punches. Muhammed Ali beat George Forman with rope-a-dope, but if he didn’t hit back, in the end, he never would have won, right?
As soon as we heard about the news magazine’s foray into TSI territory, we got our client’s permission to engage with the show’s producers, asking them to tell us what they were doing and what information they had about our client. After sharing this information with our client and the lawyers, I called back the producer, saying that before TSI would consider the request to make the CEO available for an on-camera interview, we needed to have an off-the-record meeting so that my client could better understand the story and what allegations were being made.
This really isn’t all that uncommon a request in situations like this, but the producer said, flatly, “We don’t sit down for off-the-record meetings.”
“Of course you do,” I said.
Producer: “No we don’t.”
I told the producer I had held off-the-record briefings with other producers for his show various times in the past and named two producers senior to him, in case he wanted to consult them about it. He would not relent. He was young, aggressive, and on the rise at his program, and I had been assured he also was smart and hardworking. The call ended, and I was left to run the calculations: What to do?
This is where everything could have fallen apart. If you react harshly, if you get the lawyers involved (wrong move at this point), it could fall into a dark hole or the program could air before you get resolution. If you take it personally, get your back up and say fine, forget it, I won’t talk at all, that story runs on the network program anyway. It will be told by people other than you, likely the wrong people as far as you are concerned, and then, when you complain about inaccuracies and imbalance, the producers will say you had your chance to tell your side of the story and you chose not to.
And the producers would be right, though that still doesn’t excuse inaccuracies. But the damage is done.
“Do You Feel Lucky?”
Yet I have seen other PR people, when the pressure is on and crisis is descending, make this mistake. An offending story triggers a call from the company communications chief to the reporter’s boss, so the PR exec can berate the editor or senior producer and yell at him for failing on the job. This may make the PR handler feel better, it may even impress his boss, but now the PR person has made two new enemies, the reporter and the reporter’s boss, and most importantly, still hasn’t succeeded in correcting the record.
As I have said before, reporters will tell you this doesn’t affect their coverage of the story. And while I believe most reporters are professional enough to let the facts dictate what they write or what they say on the air, what about the things on the margin? What about tone of voice? Nuances, subtleties—they can make a huge difference in a story. Reporters are human beings and have feelings like the rest of us, and to ignore this is to risk offense. So the question for PR people who take this approach is, as Dirty Harry might say, “Do you feel lucky?”
In the TSI case, what was my real, immediate objective? It was to get the program’s producers to sit down with us off the record and share what they had so the client could decide whether to participate in the process. Berating a recalcitrant producer wouldn’t achieve this. (Not that I even considered doing that. That is never an approach I take, for a variety of reasons, including the one stated above.) Solution: find another way to accomplish your objective.
And so I placed a call to a top executive at that same program, who has worked with me on many stories over the years. (This executive, a twenty-year veteran of the network, is one of the smartest, toughest journalists I have ever worked with. Not for one moment would this veteran compromise journalistic integrity for our friendship, nor would I ever ask. We both know this.) Soon after, the meeting was set, with this senior executive sitting in and the producer meeting my client off the record.
The meeting took place at Sitrick And Company’s offices in New York, and in some ways it went as one might expect. The people on my side of the table—the TSI CEO, a lawyer, and a few others, listening intently as the producer uncloaked a list of serious allegations he had collected from unnamed former TSI employees and others. One good sign: several of the allegations dated four years, some as far back as ten years (we later discovered), related by disgruntled ex-employees who hadn’t worked for TSI in several years.
The producers offered to tape an interview right away, but we demurred. We wanted to make sure our answers were based on facts, and they had hit us with a tsunami of allegations, many of which went beyond the firsthand knowledge of anyone in the room. We needed time to research what they had told us to determine if it was true. Crafting an arsenal of accurate, well-researched answers requires time, effort, and attention. You can’t and shouldn’t do this job on the fly, especially during an interview, let alone an on-camera interview. It would be media suicide. You must be prepared, ready to answer every question.
That said, the TSI executives represented the company well, explaining they were the company’s new management and had put into place new policies and procedures. They said they would look into the allegations the producers had recited and would get back to them.
While gathering the facts and preparing a response, we were hit with a grenade. A month or so after our off-the-record meeting, a high-profile investigative website published an exposé excoriating our client. It is a litany of horrors: crooked uniformed men who supply ammunition to the Taliban, hundreds of millions of dollars in training invoices that were approved but poorly accounted for, and high attrition. Hundreds of thousands of locals had been trained since the program’s start several years earlier, but fewer than 20 percent were still serving. TSI wasn’t mentioned until the eighth paragraph but then was referenced repeatedly for the rest of the story.
The investigative story had landed without our ever having been aware it was in process, let alone that it was set for publication. In fact, the first we learned that anyone else was working on something about TSI was when we read the story. The story quoted several unnamed ex-TSI people saying horribly critical things that appeared to have happened just “yesterday” (figuratively, not literally). Never mind whether they had left the company long before or had been fired for cause or were suing the company and had an axe to grind, all of which would prove to be true about a meaningful number of the sources talking to the producers for the program.
The company later denied a multitude of assertions in the story, but it was too late. For journalists, the charges were so juicy that the same gaffe was repeated over and over, even though it no longer applied. The website story sparked a congressional investigation, and a few weeks later, after a hearing, it was ready for primetime: a network news anchor opened with a joke about billions of taxpayer dollars spent to instruct trainees to be lousy shots.
That was bad enough, but for us the implications were serious on another front. This just seemed to reinforce what some sources had told the producers for the TV news magazine. Adding to the complexity was the growing interest in the TSI story as President Obama pushed plans to accelerate a U.S. withdrawal that would remove most troops within the next year. TSI was one of the largest contractors in the Middle East, at a time when contractors provided roughly half of all the personnel deployed there, racking up huge spending but insulating the U.S. government from criticism that it was putting too many military lives at risk. By late 2010, for example, the United States had 145,000 troops in Iraq and Afghanistan—plus 187,000 contractors doing jobs that otherwise would have required more than doubling the deployment of troops.
Thousands Trained, Most of Them Illiterate
At TSI, dozens of contract employees had lost their lives working in support roles for U.S. troops in the Middle Eastern region. Against this backdrop, the police-training mission suddenly had moved to center stage. TSI, contracting with the federal government, had trained thousands of recruits, the overwhelming percentage of whom were illiterate, a not-inconsequential percentage testing positive for hashish, and most of them never having driven a car, sat in a classroom, or used a toothbrush or modern plumbing.
All of that controversy had put the TV news magazine in even hotter pursuit of the TSI story, so we had to re-engage with the producer. I needed to know more about what the show had. So I gave the producer a call and asked him to send me a list of questions by email so that I could show them to TSI brass and we could get started on researching the answers.
Producer: “We don’t send questions by email.” Pause. “Even if my show does, I don’t.” Again with this? To be sure, TV producers can be torn between two competing goals: they want good answers, and providing questions up front can ensure that, yet they want the drama, on camera, of spontaneity and surprise—the “gotcha” moments that are a trademark for some TV magazine programs.
I wasn’t going to argue with him, though. The purpose wasn’t to provoke him. I wanted to get as much information about the story from him as I could. And so I told him okay, fine, tell me the questions and I will write them down and run them by you, and I started scribbling furiously as he began rattling them off.
Later, someone on my staff pointed out that few CEOs of a firm our size would deign to sit down and take hand-scrawled notes over the phone from a reporter or producer. But you have to seize the moment and subjugate your ego, even when you think you are in the right. And most importantly, you need to get as much information as you can about what they want to say.
And so I wrote down all the questions from the producer, typed them up, and emailed the list right back to him, asking for any fixes he might spot before I forwarded them to my client. The producer responded in detail, and I forwarded the list to TSI executives. This went on for several weeks. To expedite, the producer would send me questions, I would get the answers from the client and then receive follow-ups or new questions and “facts” to check.
After seeing the first series of questions and how inaccurate the assumptions were on which they were based, I proposed we get a media lawyer involved, just in case things went awry. Companies usually wait until after the story runs, when the damage has been done, to hire a libel lawyer, or they have him start sending threatening letters in advance, even when there is nothing but assumptions about what might be in the story upon which to base the threats. I felt that bringing on an expert in this area ahead of time, to consult and advise, would allow us to move quickly if we needed to.
For the TSI case, I recommended Anthony Michael Glassman of Glassman, Browning, Saltsman & Jacobs in Beverly Hills. Tony and his partner, Rebecca Kaufman, and I had worked together on complex cases several times before.
A former federal prosecutor, Glassman has spent more than forty years advising clients on defamation, libel, privacy and First Amendment cases, sometimes suing and sometimes defending. He has argued in hundreds of trials, defending the tabloid Globe against suits brought by Clint Eastwood, Tom Selleck, and Rod Stewart, and defending Playboy from actions filed by Charlize Theron, Vanna White, and Daryl Hannah. He has defended Hugh Hefner and sued Larry Flynt, handling both cases successfully. And he and Rebecca successfully have sued print media and television news magazines, including one that defamed an African-American minister, another client of ours.
I always have worked well with lawyers, in part, I believe, because our approaches are so similar, based on deep-dive research, relentless fact-finding, and an ability to weave all of that into a good story. Despite some dramatic moments, much of what I do, and much of what my partners do, is painstaking, fiendishly focused on fine points and minuscule details, and technical to an extreme.
The facts matter, and the fine points of the facts can matter even more. It isn’t enough just to tell a reporter, “Did not!” You must prove it, provide convincing and overwhelming evidence to the contrary. In a court of law, you are presumed innocent. It is up to the plaintiffs or prosecutors to prove you are guilty beyond a reasonable doubt, but in the court of public opinion the reverse is true: you are guilty until proven innocent. It is up to you, the accused, to prove your innocence beyond a reasonable doubt.
For the next three months, a flood of so-called facts and allegations were revealed to us by the television news magazine’s producers, and we responded to nearly every one in writing with information proving, in virtually every instance, that their information was wrong.
We also were concerned that, even though we had evidence that the allegations were false, the airing of these scandalous charges would provoke national coverage and investigations by the Justice Department, State Department, and Defense Department, to say nothing of congressional hearings. It wouldn’t matter if months or years later the allegations were found to be untrue. The damage would be done. The livelihoods of thousands of hardworking people also were on the line.
A Declaration of Defense
Just weeks before the scheduled airing of the program came the culmination of the TSI case: our declaration of defense, delivered in a long, fact-packed letter to the senior producer who oversaw the television news program. It was signed by me and based on exhaustive research by a handful of my partners, client staff, and me. The letter ran nine pages and offered responses to eleven separate allegations and a list of four suggested independent sources.
My opening paragraph said that TSI “has significant concerns that much of the information you have obtained in your reporting is unsubstantiated, inaccurate, out-of-date, and/or biased and therefore, it has equal concerns that the story that you are working on will not be fair or accurate.” We pointed out that the program hadn’t identified, to us, any TSI worker, former or current, who had served in the company’s Mideast operations in the last three years; that it relied on two ex-employees who had left three years prior and cited events that occurred four or more years earlier; that one source had never worked in the Middle East and was fired for poor performance and was suing the company.
Doubling down, the letter continued:
How could these individuals . . . possibly provide accurate or reliable information about what is going on with. . . training in [one country] two years ago, last year or today? . . . The Company and I feel that these issues raise a major question: how can you or [your network] give any credence to what people say about [TSI’s] activities or performance in [the Mideast]—sensationalistic as it may be—if none of the people who are willing to go on camera . . . have served in or even been in [the country] within the last several years?
We further impugned the story’s anonymous sources in this footnote: “It is very easy to make false accusations and statements when you can hide under the cloak of anonymity and not be held responsible for what you say. Perhaps a current employee might have a reason to request anonymity, but not a former employee, unless he or she is not willing to stand behind what they say.”
We countered almost every charge cited by the news organization with a direct denial and a few paragraphs of proof of why the allegations were false. One of the most incendiary charges involved a disturbing incident that played out one drunken night at a TSI site “in country.” A white Southerner confronted a black Northerner who was upset at seeing a Confederate flag sticker in the local canteen. The black trainer was so rattled by the confrontation that he slept that night with his pistol at his side, according to his testimony in a lawsuit filed against TSI.
TSI had investigated the matter thoroughly—and had taken action swiftly and decisively. In our response, we pointed out the incident occurred years earlier and explained, “The Company investigated these allegations and took appropriate disciplinary action. Three employees were terminated, including the Regional Coordinator at the site. Five additional employees received written reprimands. It is important to note that this matter occurred four years ago and was promptly and appropriately addressed. No similar incidents have occurred to the Company’s knowledge . . . [Y] ou have not found any evidence of a recurrence or more recent allegations.”
In my closer, I invoked that first off-the-record meeting a few months earlier:
From our first meeting in February, for which [TSI’s] CEO, other members of the executive team, and I traveled to New York to provide you with background on the program, we have sought to provide you accurate substantive information to enable you to produce an objective and creditable story.
Given your reputation and my experience with your news organization, to say nothing of the reputation of the program, [TSI] and I have every expectation that you will thoroughly examine the accuracy of the assertions you are considering to ensure that you are reporting only accurate facts and unbiased views in this story. We are pleased to continue to help provide you with the information you need.
Later that evening I followed up with an email to the TSI story’s producer after learning that he was tracking allegations of possible time-sheet fraud yet hadn’t deigned to tell us about it. “This is not only inaccurate, but disturbing in that you never raised these issues with us,” I wrote.
The same day my letter went out, a second letter, more ominous in tone and written by Tony Glassman, our defamation lawyer, was delivered to a general counsel of the network. Glassman’s letter tracked most of the same points but added:
Taken as a whole, these allegations individually and collectively could well, expressly or by implication, falsely defame and disparage my client and cause enormous damage to its reputation.
Glassman warned that for this television news program to “give credence” to such questionable sources “would violate both journalistic and legal standards. As noted by the Supreme Court, even a public figure may prevail in a defamation action. . . .”
Five days later, Glassman followed up with a second letter, thirteen pages long and riddled with repeated explicit denials, complete with the facts backing them up, citations of libel case law, and excerpts from, as well as an attached copy of, the back-and-forth email traffic between the producer and me. And, near the very end, this:
In light of the record summarized above I trust that the network will not move forward with these demonstrably false and enormously defamatory and damaging charges. . . .I am confident that [your news organization] will continue to adhere to controlling journalistic and legal precedent and will be guided accordingly.
And then it was over, the story’s quiet demise coming suddenly and quickly, after so many months of painstaking research and debate. In a brief exchange by email with the producer a few days after our letters went out, he told me only that the story was being held for now, to be revisited the following TV season.
The story on TSI never aired. When TSI’s general counsel realized it was dead, he wrote me an email: “Mike, thank you. You saved the company . . . literally.”