At the beginning of the third and latest trial over alleged toxic properties of Roundup, plaintiffs lawyers asked a judge to prevent Monsanto Co. from advertising that its weed killer was safe. Their motion for temporary injunction focused on a full-page ad in The Wall Street Journal on the first day of voir dire, but that wasn't what alarmed them the most—in court, they brought up another, more cutting edge, marketing practice: geo-fencing.

Geo-fencing is a digital marketing tool that allows companies to send pop-up advertisements to cell phone apps within a designated geographical area—in this case, according to plaintiffs attorneys, the courthouse in Oakland, California, where the third Roundup trial is ongoing. At an April 4 hearing, plaintiffs' attorneys told the judge that Monsanto's advertising activities were akin to juror tampering and asked to prohibit geo-fencing within a quarter of a mile of the courthouse.

“We just felt it was horribly unfair,” said Steven Brady, of Brady Law Group in San Rafael. “We felt that, coupled with The Wall Street Journal ad, touting the safety and science, 40 years of safety and science, of Roundup, which was the exact question this exact jury was being tasked with deciding in this case, in this courtroom, in this courthouse, that should be stopped.”

Although she acknowledged that geo-fencing “raises a number of issues,” noting that “technology has taken us places probably we never thought it would go,” Alameda County Superior Court Judge Winifred Smith denied the plaintiffs' motion.

“The court is not persuaded that the alleged geo-marketing is materially different from carrying signs outside a courthouse or carrying placards or wearing buttons inside a courtroom or that it requires a different judicial response,” she wrote.

But geo-fencing, or geo-marketing, is a new and growing technology. And law firms have been among the first to embrace it, with personal injury lawyers targeting the cell phones of patients in hospitals or pain clinics, said John Browning of Dallas-based Passman & Jones. He is the author of several books on social media and the law and an adjunct professor at Southern Methodist University's Dedman School of Law.

In 2017, Massachusetts Attorney General Maura Healey settled a case against a digital advertising firm that was using geo-fencing to target women entering abortion clinics.

But targeting jurors through geo-fencing? That's practically unheard of. 

“Targeting the population within a courthouse, which could conceivably include the entire jury pool during a pending trial, raises some other ethical concerns and other constitutional concerns,” Browning said. “When you are engaging in potential conduct that taints the jury pool, that's of great concern.”

Bayer AG, which now owns Monsanto, said in an emailed statement: “Bayer's communication and marketing activities do not have any impact on the conclusions of four decades of extensive science that support the safety of our products. Bayer's Roundup advertising is national in scope and the company is not running advertising that singles out the greater S.F./Oakland market or any part of it.”

Monsanto has a lot at stake. This month's trial, which began with opening statements March 28, is the third alleging Roundup caused non-Hodgkin's lymphoma. On Aug. 10, a jury in San Francisco Superior Court awarded $289 million to a man whose case went to trial due to his declining health. The verdict later was reduced to $78.5 million. On March 27, a federal jury in San Francisco awarded $80 million to a man whose case was the first among 800 lawsuits coordinated in multidistrict litigation.

The case in Alameda County Superior Court involves a married couple from California, Alva Pilliod and Alberta Pilliod, and is the first from among hundreds of lawsuits coordinated in state court to go to trial.

Yet it was during the very first Roundup trial, involving plaintiff Dewayne “Lee” Johnson in San Francisco Superior Court, that plaintiffs lawyers first learned of the geo-fencing.

“Some of the jurors who didn't end up making it on the jury said they were getting pop-up ads touting the history and safety of Roundup,” Brady said. “That's when we became concerned about it. And we noticed it—a number of us who are not jurors to the case.”

So, he filed this month's motion, suspecting it was happening again. Attached to the motion is a Jan. 14 response to interrogatories that Monsanto filed ahead of the second trial, which was in federal court. Plaintiffs' lawyers in that case had asked whether Monsanto had directed “Internet searches to news articles,” including paid listings on Reddit and Google, to “residents living in the San Francisco Bay area and, if so, why.”

Calling the request vague and duplicative, Monsanto admitted that it paid for sponsored content on Internet search results and engaged in digital advertising.

“In addition, Monsanto also has used digital advertising where the content shared news articles that Monsanto believed addressed widespread misinformation and confusion about the safety of its products, including as the result of extensive paid Internet advertising from plaintiffs' attorneys in this litigation,” wrote Monsanto attorney Joe Hollingsworth at Hollingsworth LLP in Washington, D.C. “These media purchases include a number of social media platforms and digital websites that include Google and Reddit, among others. San Francisco was included as a market because it is a market for the seasonal advertising campaign and to address widespread misinformation and confusion about the safety of its products.”

Monsanto never mentioned geo-fencing.

On April 3, Monsanto filed an opposition to the plaintiffs' motion for temporary injunction, calling the move a “gag order” that was “unconstitutional, unnecessary, and dripping with hypocrisy.” Hollingsworth partner Kirby Griffis laid out what he called an “onslaught of disparaging Roundup advertisements” in the San Francisco Bay Area that plaintiffs' attorneys had paid for on TV in the months leading up to the trial. In fact, Monsanto moved for a mistrial before opening statements after the jury pool witnessed 2,187 “anti-Roundup television and radio ads” from Dec. 1 to March 21, according to Monsanto's filing.

The plaintiffs' media purchases have only escalated, Griffis wrote. The Miller Firm, for example, ran a print ad in the San Francisco Chronicle just days before this month's trial.

Lawyer advertising brings up a key distinction in the ethical debate over geo-fencing: Whether it's Monsanto, or Monsanto's attorneys, who are targeting jurors.

“If defense lawyers are purposely targeting jurors with extrajudicial information and delivering that extrajudicial information in a targeted matter, that's an ethics problem,” said Dane Ciolino, a professor of legal ethics at Loyola University New Orleans College of Law. “These jurors are supposed to get all their information about the trial in the courtroom, rather than extrajudicially. If lawyers are involved in this, that would be a problem for the lawyers.”

The American Bar Association, in fact, came out with a formal ethics opinion last year that addressed attorneys talking about their cases online, like in blogs. ABA's Model Code of Judicial Conduct also prohibits lawyers from influencing a jury.

Brady insisted he's not targeting Monsanto's lawyers. For parties engaged in such advertising, judges often end up having to consider the broad protections of the First Amendment's right to free speech.

“If Monsanto wants to run ads, and run them disproportionately near the courthouse, then perhaps Monsanto has a First Amendment right to do that,” Ciolino said. “If it is going to impede the ability to have a fair and impartial trial, the judge might be able to put some restrictions on their ability to speak. Suppose Monsanto people wanted to sit in the back of the courthouse and put on their placards, 'Monsanto saves job.' The judge can keep them out of the courtroom.”

Judges also give instructions advising jurors to avoid reading about the case in the news, on the Internet or social media—an admonition that Smith has given the jury at each break and at the end of each day.

In the end, Smith appeared disinclined to infringe on the First Amendment, particularly given that there were more trials planned throughout the country over Roundup that would require the same order. She also found no evidence of juror targeting beyond the assertions of the plaintiffs' attorneys.

Brady said he hopes to find out more when the trial is over.

“We believe and hope and trust that if our jurors in the Pilliod case have these pop-up ads on their phones, they'll know who's paying for those ads, and they'll know it's not right,” Brady said.