Federal judge won't block targeted ads during Flint water suit

A federal judge overseeing litigation against Flint water consultants hired prior to the city's water crisis has rejected a request to bar one of the companies, Veolia North America, from targeting jurors with social media communication regarding the case.

U.S. District Court Judge Judith Levy acknowledged Jan. 22 that there was a concern by plaintiffs' lawyers that Veolia North America would target jurors with social media posts or advertisements about the case. But she declined to block the company from doing so, noting such an order may infringe on First Amendment rights and that, as of yet, she hadn't seen enough evidence to prove there was ever targeted advertising toward jurors, according to transcripts from a Monday hearing.

"I learned that they were not. That there isn't evidence to show that that happened," Levy said of allegations Veolia was targeting specific jurors with social media ads about the case.

"And certainly there was nothing attached to this motion from plaintiffs that would add to the body of knowledge about that."

Veolia celebrated the statement, arguing it cleared them of the "desperate attempt" to lay blame on the company after an initial bellwether trial against Veolia ended in a mistrial in 2022.

"VNA will continue to use our First Amendment right to share the truth about this tragedy and the government officials who lied about, hid from, and ignored the crisis for nearly a year and a half," the company said in a Wednesday statement.

Levy's Monday statement came after The Detroit News reported in September 2022 that Veolia ramped up a digital advertising campaign to push information on the company's innocence in late 2021 ahead of jury selection in a multimillion-dollar civil lawsuit over the firm's culpability in the Flint water crisis. Plaintiffs' attorneys raised concerns about whether the timing was meant to target the prospective jury pool or judge, but Veolia denied targeting any specific state or region.

A judge declared a mistrial in the bellwether case in August 2022 after jurors deadlocked on whether Veolia and Lockwood, Andrews & Newnam (LAN) carried some blame for Flint's water becoming tainted with lead in 2014-15.

Jury selection is underway in a separate but related class-action lawsuit brought by adults and property owners in Flint.

In preparation for the current trial, Levy was asked in November by plaintiffs' counsel to block Veolia North America or anyone acting on its behalf from "directing micro-focused social and digital media advertisement to potential jurors and empaneled jurors, including but no limited to a social media campaign addressing actions related to the Flint Water Crisis."

"Class plaintiffs request that the court prohibit VNA from social and digital media advertising as to its views of the case in the counties from which jurors are summoned in this judicial division until trial’s end," the request said. "The jury should reach its verdict based only on evidence and arguments made in court."

In a hearing on the motion last Monday, attorney Theodore Leopold said he was concerned the defendant would "micro-target" the six counties from which jurors will be pulled for the case.

"We're not seeking a broad brush total shutdown of their social media or anything of that sort, but in those particular areas, we are concerned about what is alleged at least from the earlier trial that they micro-targeted those particular areas in social media and other aspects," Leopold said. "And we would like to prevent that. We're just seeking a level playing field here."

Kelly Kramer, an attorney for Veolia North America, argued case law dictated that the type of gag order plaintiffs were requesting couldn't be granted "without finding that there is a serious and imminent threat to a fair trial." The allegations brought by plaintiffs don't meet that standard, Kramer said.

The only paid advertisement the company has, Kramer said, is a Google ad that's been running for several years all across North America and not concentrated to any region. The ads, the Veolia attorney argued, largely don't appear unless someone is researching the case, which jurors are instructed not to do.

The exposure to the ad in the six counties at issue is minor, Kramer added.

"I think the number is something like 600 clicks within the venire of the six counties all time, and only 83 during the bellwether trial," Kramer said.

Levy ultimately ruled that she'd seen no evidence of targeted juror advertisement. And prohibitions on the types of advertisements Veolia could engage in, Levy said, stepped crosswise with free speech rights.

"Imposing a gag order on general statements about the case or about the progress of the trial that specifically, if I understand it, are not coming from lawyers but are coming from the public relations people at VNA, I think would be an unconstitutional required restraint on speech," Levy said.

The judge asked the lawyers to keep her updated on any actions that could prejudice a jury and said she'd "keep an eye on that throughout the case." Levy also said she planned to remind jurors repeatedly not to research the case.

eleblanc@detroitnews.com