“Have you or a loved one been hurt? You deserve compensation! Call now to get $$$!”
Everyone in America has seen some version of that TV ad. Usually, it comes with scary music, a dramatic voiceover, and some official-sounding language about a “medical alert” or a “drug alert.” But new ILR research shows that lawsuit advertising is a booming business for plaintiffs’ lawyers who want to increase their paydays.
Gaming the System: How Lawsuit Advertising Drives the Litigation Lifecycle examines the billion-dollar TV lawsuit advertising industry through five of the biggest mass tort litigations in recent history. The report shows how plaintiffs’ lawyers and lawsuit aggregators spent $400 million to target ads at critical turning points across these five mass torts.
Plaintiffs’ lawyers and lawsuit lead generators systematically target their advertising spend to align with major events in litigation, seemingly to maximize their payout, force companies to settle, and perhaps even influence juries. These ads often use deceptive, unscientific messaging that can have grave consequences for public health and the civil justice system.
The lawsuit ads in the study all follow a similar pattern. They are sparked by a “triggering event” such as a government investigation or the publication of a study suggesting a product may be harmful. The ads pick up when events suggest that litigation has a good chance of reaching trial.
Ads then surge heavily after early plaintiffs’ victories, when companies are under pressure to settle. Plaintiffs’ lawyers use the opportunity to boost the number of claims and get a larger share of the settlement.
The Roundup litigation is a great example of this trend. Plaintiffs’ lawyers paid for 281 Roundup ads right before a California jury rendered a $289 million verdict against Roundup maker Bayer-Monsanto in early August 2018. Firms then bought an additional 3,503 ad spots for the rest of August and spent $1.4 million on 7,113 spots in September. Monthly spending on Roundup ads reached a peak of $18.3 million in August 2019, when rumors began that Bayer was seeking an $8 billion settlement (those rumors were false).
As this research documents, the ads often cite large jury verdicts to sign up new plaintiffs. But the ads typically continue to run—and mislead consumers—even after those mammoth verdicts are knocked down or thrown out by judges.
Advertising plummets when a trial outcome or a new scientific finding appears to reduce the chance of winning at trial or forcing settlement. For example, lawsuit ads for the anti-nausea drug Zofran declined in 2015 after the FDA and other researchers found flaws in a study that linked the drug to birth defects.
Gaming the System also explores how some lawsuit advertising campaigns may have a harmful and misleading effect on juries. For example, when attorneys questioned potential jurors for a January 2020 Roundup trial, nearly every person said they had seen a lawsuit ad linking cancer to the product. Some even said they had thought the ads were news reports. Businesses go to trial at a disadvantage if the jury thinks the facts in dispute have already been decided in the plaintiffs’ favor.
And these ads aren’t just harmful because they can mislead consumers and jurors—they also pose a public health risk. The FDA has released data showing many instances when people, especially seniors, stop taking their prescription drugs after seeing a lawsuit ad. Some have experienced adverse health effects, and even died.
Legislators, regulators, and courts must move to protect consumers from these ads. Thankfully, there’s been some action. In 2019, the Federal Trade Commission sent letters to seven law firms and lawsuit lead generators, warning them that their ads might qualify as deceptive and misleading under the FTC Act, and saying they would take follow-up enforcement action if warranted. And in the last couple of years, Texas, Tennessee, and West Virginia put safeguards in place to curb false and misleading drug lawsuit ads.
More can and must be done by elected officials and government agencies. As ads for COVID-related lawsuits increase, it will become even more urgent to rein in these misleading practices.