Trial Lawyers Use Social Media to Troll for Lawsuits

Sometimes being in the baby poo business means you just can’t win.

If your disposable diapers take too much room in landfills, environmentalists boycott you. If you update old diapers, a handful of parents complain about the new. If a baby gets a diaper rash, trial lawyers target you.

Then they all come together in a perfect storm of consumer indignation and sue the disposable pants off you.

Parents have loved disposables since 1961, and market competition kept improvements like self-sticking tape, elastic waistbands, skin protectants and anti-microbial agents coming regularly. New fibers made diapers lighter, more absorbent and landfill-friendlier. Potty training? Disposable training pants.

As parents (figuratively) rejoiced in their disposables, they held no interest for trial lawyers — until Pampers introduced new “Dry Max” Cruisers.

Goods manufacturers anticipate complaints after any product change or improvement. When Pampers introduced new Cruisers in Fall 2008 with no accompanying marketing campaign, complaint levels remained static. But after converting its packaging and announcing the change in late 2009, objections flew immediately.

In late November, Twitter and Facebook pages were created by a mom complaining the new diapers weren’t as good as the old, and Pampers should have instituted a more vigorous campaign to announce the change. The “Bring back the old Cruisers” campaign was born.

The mom complained in the same vein until February 9, 2010 when she posted, “do you think pampers (sic) violated consumer rights when they switched diapers without fair advertising or marketing? Is (Pampers) guilty of this?”

Then on April 7, the first diaper rash reference magically appeared. Both sites eventually lurched into an aggressive discussion of serious rashes allegedly caused by the new Dry Max Cruisers. Facebook members were advised “not to talk about how much we like other Pampers products” and admonished to only upload photos through site administrators.

Despite the hysteria and 11,400 members, photos only show the diaper itself, a red spot on an adult leg supposedly caused by holding the diaper to it, and a cute baby thigh with the same minor irritation my own children had when a loose diaper rubbed their skin.

By May, rashes had been elevated to “chemical burns.” The longer the social media campaign went on, the more defective the diapers became.

Canadian and U.S. agencies began investigating complaints last spring, and in early September both the U.S. Consumer Product Safety Commission and Health Canada released results of extensive chemical and physical analyses. Neither agency found any link between the diapers and complaints, but scientific determinations that Cruisers do not cause more problems than other diapers proved no deterrent for trial lawyers.

Class action lawsuits no longer need demonstrable consumer injury to proceed. In cases where trials lawyers cannot find a single person harmed, they sue based on objections to marketing or advertising. They are always sniffing out new products to attack, and this social networking campaign against a new diaper design uncovered a new target.

Lawsuits against Pampers have already been filed. Cases of alleged marketing deception can draw profits, but accusations of chemical burns could be far more lucrative — and makes the timeline and trajectory of the social media effort even more curious.

The lawsuits request the usual damages and fees. With a win in one of the class action suits, the principals of thirteen different law firms could be buying new yachts. If so, consumers will know whom to thank for higher diaper prices.

It’s no surprise babies get diaper rash or that huge corporations defend themselves against accusations of consumer harm. But Pampers appeared blindsided by the level of negativity caused by the Twitter and Facebook campaigns, as social media provides a nearly infinite universe for cyberactivists to collect – and coordinate – grievances.

Pampers released statistics on frequency and severity of diaper rash, noting complaints were in “normal” ranges. But when it adhered to conventional complaint resolution, customers seemed to feel a lack of compassion, sensitivity and humility in its traditional response. For brands, social networking creates new personal relationships that could be described as virtual transactional intimacy. The days of faceless consumerism are over, but the days of anonymous forces behind social networking advocacy have just begun.

Have trial lawyers discovered that social media could create a sympathetic environment for a case? Were changes in the anti-Cruisers storyline the result of a plaintiff’s law firm stumbling onto the original complaint then tailoring it to a lawsuit-ready narrative? What precedent will this set for American consumer products?

These lawsuits could be the first where social media is accepted as “testimony” in court, thus determining its legal standing in case law. If so, it may explain the mysterious and ongoing modifications of this particular campaign while creating a new world of opportunity for the trial bar.