Wrapping Whimpers: Biegel vs. Dentsu

I’ve received several e-mails during the last few weeks asking if I was ever going to close the case study on Biegel vs. Dentsu after an attorney-infused circus side show ended in an anticlimactic settlement. What’s to write about? Everybody lost.

After months of double talk, with some participants pandering and dismissing blogs at the same time, the two parties tied to the case have agreed nothing happened and no one said anything. Um, you know, it’s almost like calling for a do over without the group hug.

"As a result of this settlement, those allegations and claims have been dismissed, including any potential counterclaims that have not been asserted by Dentsu. Both parties retract all public statements."

Steve Hall at Adrants offered the perfect summation in his first sentence: “Yawn.” Catherine Taylor, who writes adverganza, wondered about reversals and blanket retractions. And most, including me, said nothing at all since both parties have agreed not to disclose or discuss anything else.

However, one might wonder whether the unnamed “advertising company” described as a “discrimination re wrongful termination” case and listed on The Dwyer Law Firm’s Web site is coincidence or not. The amount, which would include attorney’s fees, costs and interest (according to the site) was $55,000.

Of course, if $55,000 was the undisclosed settlement amount, and I’m not saying it was, then the personal brand and credibility damage (despite blanket retraction) was obviously not worth it, which was my original point. Case closed.

Corresponding Attorneys: Andrew Dwyer

Corresponding by e-mail with Andrew Dwyer, the employment litigation specialist who owns The Dwyer Law Firm, L.C.C. and is representing Steve Biegel in the Biegel vs. Dentsu case, reminded me why some reporters become cynical over time.

Many journalists are privately bombarded with persuasive babble, coercion, and spin, based on little more than the erroneous notion: if the reporter writes what we want, they are intelligent; if they do not, they are “morons.”

Journalists are not really paid enough to put up with it, but they do.

For those who have been following the suit, a District Court judge recently rejected Dentsu's motion for a summary judgment in the case of Steve Biegel v. Dentsu Holdings. It really wasn’t enough for me to post about, but I added it as an update to previous posts, preferring to wait to see how things plod along before considering it a topic again.

The reason Dwyer contacted me yesterday was to retract a comment that I left on a MultiCultClassics post, which had less to do about Biegel and more to do with some anti-Japanese sentiments that were anonymously left on my blog and elsewhere. Specifically, Dwyer claimed that I had “endorsed” the author, HighJive, whom he has a very low opinion of; that I called his client, Biegel, intolerant against Japanese and a “racist;” and that I might even qualify where I was in agreement with the other author and where I was not.

All of this comes from an attorney who previously told me “none of the posts on any of the blogs will ever have any relevance, except perhaps to support our claims of retaliation by Dentsu.” For someone who had expressly stated his low opinion of blogs in general and dismissed them, there seems to be ample attention paid to them outside the public eye as well as any comments that might accompany them.

No matter. Some might also consider it admirable that Dwyer is obviously looking out for his client. And given that, I did add clarification to the comment.

Unfortunately, the clarification was not good enough. Dwyer wanted a complete retraction and/or removal of the aforementioned comment, which I am not inclined to do because I did not call Biegel intolerant of Japanese.

In lieu of this, I suggested highlighting some of the more interesting points, especially since Dwyer said he would “love” to post his e-mail to me on the MultiCultClassic blog, but the author allegedly only allows comments that fit his agenda. Dwyer rescinded the idea, objecting to anything except the publication of his entire e-mail, going so far to suggest that if I only published portions of it, he would never correspond with me again. In other words, Dwyer is only inclined to allow public discourse to take place when it fits his agenda.

Around and around we go.

Without some compelling reason, I have no intention of publishing his e-mails as this blog tends toward being an op-ed on communication and not Dwyer’s forum for retaliation against the opinions of others. Besides, it would likely be embarrassing for him if I did. Ironically, this is why many journalists probably would publish them, or portions of them, as they feel fit.

So what is the takeaway? If you don’t like "the circus" atmosphere surrounding a subject, then don't create that atmosphere by lending heavy-handed e-mails to it. In this case, Dwyer continually risks more than he hopes to gain by writing e-mails that aim at little more than persuading people to do his bidding behind the scenes.

While it has no bearing on what my opinion might be in terms of the ongoing Biegel vs. Dentsu case, it certainly has a bearing on my opinion of the value of Dwyer’s correspondence. While he closed his last e-mail saying he wouldn’t waste his time thinking I am any different than the HighJives of the world, I couldn’t help but think he wasted mine given he opened with a similar statement.

Don’t they know anything? I might care what Dwyer thinks, but I really don’t care what he thinks about me. Most journalists are the same way. Some bloggers are too. And if he thought more about his communication, he might have better served himself and, who knows, perhaps his client too.

Instead, he did neither. There is no retraction. His points are not heard. And, on the contrary, the comment in question is more prominent than ever. With results like these, one can only hope his effort doesn’t end up in the billable column.

Socking Steve Hall: Biegel’s Attorney

When Adrants posted a mud wrestling photo and colorful commentary related to the Steve Biegel vs. Dentsu lawsuit, it attracted some attention. Most notably from Biegel’s attorney, Andy Dwyer, who offered up his own sharp commentary in a comment. It was sharp enough to convince Steve Hall to strike through his post and proclaim himself an idiot.

“I find it incredible that Mr. Hall feels qualified to post on this case when (a) he has obviously never read any of the filings in the case, even though they are all publicly available on the internet, and (b) he has never bothered to speak to anyone involved on the side of the plaintiff, even though they can all easily be reached,” noted the Dwyer comment. “Mr. Hall erroneously relied on an article in another publication, and then bought their spin hook, line and sinker.”

However, given other comments were offered up from “Toyo Shigeta,” and “Denny Crane” and “Not Biegel’s Lawyer,” one never really knows if someone who comments is who they say they are. Right?

“Is there anyone in your industry who is willing to take the time to read the court file in this case before they publicly express an opinion? Or is that too much to ask? If folks in the blogosphere ever want their writings to rise above the level of graffiti, they are going to have to work a little harder at getting their facts straight before they post,” stated Dwyer.

Never mind that advertising folks read Adrants because it provides tabloid-style op-eds in contrast to more recognized advertising trade publications, one of which Dwyer claims erred in its reporting. Never mind that Adrants never attempted to establish itself as legitimate journalism that I am aware of.

Never mind, except I still took interest in exchange. Why? Because I had read the court file. And, although I mostly write on public observation, I wanted to find out if Dwyer made the comment. Maybe he'd even answer some questions I had about the case, I thought.

He did make the comment. However, he doesn't seem inclined to be interviewed about the case beyond the reasonably polite and extended commentary he e-mailed me, which says that he pretty much has “zero respect” for bloggers. According to Dwyer, he is not alone either.

“Interestingly, real journalists have written to me in response to my post on Adrants to applaud what I said, because they are tired of bloggers being compared to journalists,” he wrote.

Highlights From The Andy Dwyer E-mail

• He commented on Adrants because he says the statements made were “demonstrably false.” He said he was setting the record straight.
• He says that he and his client have refused to partake in the media battle, contrary to statements made by some bloggers (He says they have refused comment to some journalists, and he and his client has repeatedly denied interviews).
• He likens the anonymous comments to garbage, which “reduces blogs to little more than the walls of a bathroom, where any idiot can scrawl whatever illiterate nonsense pops into his head.”
• He finds it unlikely, “even if I gave the entire court file to a disinterested observer, he would not be able to understand it unless he had particular expertise in employment matters and/or the law.”

Dwyer raises some good points, and some not so good points. Obviously it is much too early in the case to call an outcome. But it is not so early to note that the media has shifted its angling from a Dentsu spectacle to Biegel’s credibility.

It is this shift in reporting, perhaps because Dwyer and Biegel are less accessible to the media, that makes it interesting. Perhaps if they were more accessible, the burden would still be on Dentsu.

Regardless, while Dwyer is right that the case is about the law, he is not so right in saying it isn’t about branding or communication. Sure, media coverage is not likely to impact the court’s decision, but the outcome of this case may have long-term consequences for Biegel and Dentsu.

And therein lies the rub. As much as professionals sometimes proclaim bloggers cannot understand their area of expertise, sometimes those who say so do not understand blogging or communication. Really, it’s not difficult.

Understanding Bloggers: Engagement 101

In a very broad sense, when it comes to cases like Biegel vs. Denstu, it is the media that sets the stage, leaving bloggers to pen op-eds based on the setting. Sometimes, the commentary reads not unlike radio talk shows, which do allow anonymous callers to chime in.

That understood, non-communication people hoping to engage bloggers, even to correct them, are best served by evaluating the individual blogger much like they would the radio talk show host.

You see, some bloggers lean toward journalism and some do not. Knowing where any particular blogger may reside on this invisible line dictates the engagement. And that can make all the difference.

For example, singling out Hall’s post made little sense to me because all it did was invite more of the same, not less of the same. Mostly, Adrants is an entertaining take on the advertising industry. And while correcting Hall may have been prudent, going beyond the correction to take a couple of extended swipes communicates something other than what was intended.

Sure, some may hold Dwyer’s opinion that even well-known blogs “inspire fear (e.g. the Drudge Report) are notorious for repeatedly stating things that are simply not true.” (Personally, I don’t think bloggers inspire fear. Fear has to exist in those who are fearful.) Yet, he is not so right in thinking that all bloggers do not investigate as diligently as journalists. It depends on the blogger.

Suffice to say, if there is anything to take away from all this (beyond attempting to understand a blogger before engaging them publicly), it might be to understand that social media didn’t create public commentary or opinion. That has always existed.

What social media did was extend that reach beyond e-mails and water coolers, making it more public, especially to those being discussed. Sometimes, it is a good thing. Sometimes, it is not such a good thing.

I think even Dwyer might agree with me here, given he closed by saying “none of the posts on any of the blogs will ever have any relevance, except perhaps to support our claims of retaliation by Dentsu.”

Ironically, this is precisely what used to be said about journalists before bloggers began sharing the spotlight (or lurking in the shadows, depending on where your head is at). For most people, the media’s credibility always seemed to be related to how closely aligned it was to the subject’s opinion. Go figure.

Parading Biegel: Creatively Naked

Lawsuits are odd things nowadays, sometimes serving as smear campaigns rather than the pursuit of justice for which they are intended. The case of Biegel vs. Denstu, as amended and made available by Ad Age, is one where it becomes very unclear which category it belongs.

Part of the reason is that the Biegel’s revisions further muddle events and allegations while placing even more aim on Toyo Shigeta, CEO of Dentsu Holdings USA as well as another senior executive at Dentsu. The new complaint even includes the web address of the now famous brothel (pictured) where it all went down.

Biegel’s revised complaint now reveals he wasn’t just motivated to stand up just because he was subjected to two years of repeated lewd and sexually harassing behavior, which included forcing him to engage prostitutes, view photographs of crotches, and get naked to “parade” in front of the accused at a Japanese bathhouse. No, Biegel was motivated because another employee was scheduled to take a business trip with Shigeta about two years later.

So Biegel confronted his employer on the presumption that this employee would also be subjected to the same humiliating and sexually degrading experience that Biegel had allegedly endured for years. This was also the time that Biegel chose to disclose that he ought to have reported the bathhouse incident (not necessarily the brothel incident) to human resources.

According to the suit, Shigeta’s attitude toward Biegel changed from positive to negative after that, with Shigeta virtually cutting off all communication between them. (Ya think?) And this is why Biegel now claims he was not only fired because of complaining about sexual harassment, but also because he is Jewish. Huh?

Is there a connection here or is this something out of pulp fiction? In any case, religious discrimination and defamation are added to the case. The latter is presumably because Dentsu denied the charges, which made Biegel look bad. Ho hum.

Meanwhile, Dentsu is standing firm in insisting that the allegations are patently false, and filed a motion to dismiss the complaint. Biegel, they say, ignored formal procedures for making grievances about sexual harassment by lodging claims more than a year after the alleged incidents took place.

Applying Ethics Against Harassment

While I can make no assumptions that any of this occurred or did not occur, I can share what might have occurred had Biegel applied ethics.

• Biegel could have warned Shigeta that he was offended immediately upon being taken to a brothel and took action to leave the brothel, especially after receiving “orders” to participate with prostitutes.

• Upon further insistence or threat, Biegel could have immediately told Shigeta that he would be reporting the incident to human resources.

• Upon further insistence or threat or inaction by human resources, Biegel could have filed a lawsuit.

Had any of this happened, there would have likely been no other occurrences either because Shigeta would have either understood the point or may have been terminated. But then again, there wouldn’t be $1 million lawsuit several years after the fact either.

As I wrote in post yesterday, fearlessness can serve people in business — being “forced” to parade naked in front of your boss would certainly qualify as the time to apply it.

Risking Credibility: Biegel vs. Dentsu

Brands are fragile things, like snowmen in spring. That’s what Julie Roehm learned with Wal-Mart, a case study we concluded back in August. And now it seems Steve Biegel, former creative director for Dentsu America, is about to learn the same thing.

Effie, Clio, and David Ogilvy Award-winning ad veteran Biegel filed a lawsuit against his former employer that has the advertising industry shaking its head, not its fist.

He alleges that Toyo Shigeta, CEO of Dentsu Holdings USA, took and shared upskirt shots of women (including Maria Sharapova; see Adrants), forced him to visit a Prague brothel, and required workers to have sex with prostitutes. Advertising Age has published the entire lawsuit online. It makes the Roehm scandal look rated G for gratuitous.

“If Steve Biegel had exhibited as much creativity and effort when he worked here as he has on manufacturing this frivolous complaint, the company would not have fired him,” Dentsu America CEO Tim Andree told Adweek.

Dentsu has also vowed to file a countersuit, primarily alleging libel because a lawsuit draft was sent to its clients. (If Biegel did send Dentsu clients drafts, he may be forced to prove every point true to avoid libel.)

As with most legal wrangling, some of the non-court communication hints at the truth. Did the events take place? Probably. Was Biegel horrified and sexually harassed? Only Biegel really knows, but his credibility is in question because based on the lawsuit and subsequent communication.

It seems all too likely that he was more horrified about losing his job than some of the events that seemed to have occurred as much as three years prior. It also doesn’t help that Biegel did not find the alibi or ally he thought he might with his friend Scott Weitz, a staffer with Driver Media who was present during the Prague brothel incident. According Adweek, Weitz said that Biegel never complained about Shigeta encouraging or forcing him to engage in such behavior and that Biegel went into a private room with a prostitute. (Eesh! To think that if Hostel came out one year earlier, all this may have been avoided.)

To be clear, sexual harassment in the workplace is wrong. However, advertising is probably not the right career path for those who shy away from an industry that claims “sex sells.” At least, it’s not really suited for someone who claims to be as horrified as Biegel now says he is (not that our industry requires bath houses or brothels, of course).

Still, what employees need to know, I suppose, is that just because your employer tells you to do something, it doesn’t mean you have to do it. Um, you can make your feelings known immediately, file a complaint while you’re still employed, or walk out the front door before you’re fired. Heck, I’ve even terminated an account or two after becoming uncomfortable with advances that persisted after warnings.

Just say NO!

But, then again, I’m not writing from a legal perspective (because I’m not an attorney). I’m writing from a communication perspective that suggests: it’s probably best not to be the freewheeling creative ad guy for years and then attempt to play bashful family man shortly after you are terminated.

The less than $1 million lawsuit and potential damage from a libel countersuit (not to mention potential personal brand and credibility erosion), is not worth it. Or, in other words, if Biegel really wanted to win this case as opposed to shooting for a settlement, he would have employed the most basic premise of crisis communication and “talked about it as soon as possible.” That would have been three years ago.

Still, this lawsuit comes at a bad time for Denstu. It just recently made a push toward taking a more visible foothold in the international marketplace. Although it is one of the largest advertising companies in the world, only eight percent of its revenue is generated outside Japan. (Japan is the second largest advertising market in the world.) Its clients have included Canon, Toyota, HarperCollins Publications, and Toshiba America, among others.

As a side note, Dentsu America’s mission statement is to “influence by telling the truth in new ways.” And how. Case study? I'm not sure yet.