2015 ANA Advertising Law & Public Policy Conference

Join us for a special pre-conference meeting of the ANA Legal Affairs Committee. Agenda topics will include programmatic buying, ad fraud, and EU data privacy regulations. To view the agenda and to register for the meeting, please visit the meeting page.

Meeting location:
Reed Smith LLP
1301 K Street, NW
Suite 1000 - East Tower
Washington, D.C. 20005

There will be a cocktail reception immediately following the ANA Legal Affairs Committee meeting.

PLEASE NOTE: The ANA Legal Affairs Committee pre-conference events are restricted to ANA members only, but the meeting is open to all ANA members.

A Unified Approach to Managing Talent and Rights

The Advertising Industry has managed to keep up with the rapid fire of constant change in a world defined by technology and maturing consumer behavior. Forward thinking creativity is essential as interests and innovations continue to compound. Advertisers are tasked with the incessant challenge of enticing customers in unique and compelling ways. New and imaginative efforts to reach wider audiences invite more digital methods to the company of traditional broadcast. Convergence is the stepping stone to an amicable union of these two worlds.

Courtney Allen, Director of Client Relations at Extreme Reach, will discuss the impact of Convergence on Talent and Rights, highlighting some of the industry’s biggest challenges and an overview of Extreme Reach products and solutions for tackling Talent and Rights Management.

Courtney Allen

Director of Client Relations Extreme Reach

OPENING REMARKS

Dan Jaffe

Group Executive Vice President, Government Relations ANA

THE FUTURE IN TEN MINUTES OR LESS

Join a panel of the top lawyers in the business in a whirlwind tour of what advertising law will be in ten years. What does the future hold for advertising counsel? Is the commercial dead and content king? Is privacy a myth? Is there anything that isn't an app? Hear from the seers about the changed world awaiting us all.

Felix Hofer

Founding Partner Hofer Lösch Torricelli

KEYNOTE ADDRESS

Terrell McSweeny

Commissioner Federal Trade Commission

Please choose to attend breakout session 1-A or 1-B.

THE BRAVE NEW WORLD AT THE FCC

The Federal Communications Commission (FCC) is in the midst of a potential major change regarding its regulatory mandate. Last year the House Energy & Commerce Committee announced its intention to rewrite the Communications Act to address the 21st century landscape. What will this mean to advertisers as Congress reevaluates the FCC’s role in regulating media content and other consumer-driven issues such as privacy? This effort coincides (and may collide) with one of the hottest policy debates at the FCC in recent years — network neutrality. The issue involves complicated technical issues of network management, but it also raises complex legal and political issues as well. Courts have twice struck down FCC efforts to impose neutrality regulations, and various proposals dealing with the issue have emanated from not just the FCC but the president as well. What is the likely outcome? What does this mean for the rest of us, including advertisers who depend on broadband networks to communicate with consumers?

Robert Corn-Revere

Partner Davis Wright Tremaine LLP

SAG-AFTRA AND THE JPC – FINDING COMMON GROUND

The commercials contract between SAG-AFTRA and the JPC is a $238 million agreement covering all aspects of commercial production. It was most recently renegotiated in 2013. This panel will provide a lively discussion of the nuts and bolts of the commercials contract and building a collaborative relationship between SAG-AFTRA and the industry, including the advertiser and union perspectives.

Stacy K. Marcus

Partner, Reed Smith LLP Counsel to the Joint Policy Committee on Broadcast Talent Union Relations

DATA SECURITY – WHAT’S NEXT?

Our panel will discuss the evolution of data breach and security litigation in the class action and enforcement arenas and identify new privacy litigation risks appearing on the horizon as a result of recent experiences with security breaches at Sony Pictures, major retailers, and leading financial institutions. In addition to federal agency responses, state legislatures are enacting a patchwork of laws and regulations that present compliance and litigation challenges for merchants in every field. You will gain valuable insights about the interplay between government agency enforcement and private class action litigation and alternative approaches to mitigate enforcement and litigation risks both before and after a data breach.

Joanna Bolton

Senior Counsel Dell Inc.

Advertising, Marketing and Other Perspectives on Doing Business in Asia

David Adelman, former U.S. Ambassador to Singapore and a Managing Director in the Hong Kong and Singapore offices of Goldman Sachs, just returned from Asia to join Reed Smith. Ambassador Adelman will update the American pivot to Asia and the challenges facing multinational corporations in the region, including advertising and media issues.

David Adelman

Partner Reed Smith LLP

SOCIAL MEDIA 2.0 - WHERE ARE WE NOW?

Social media raises key intellectual property issues, including trademark, copyright, and rights of privacy and publicity. Beyond that, there are numerous legal issues that come into play, including the rise of social media “war rooms” and the evolving role legal plays in reacting to issues raised in real-time surrounding social media and tentpole events (e.g., the Super Bowl and Grammys); what you must understand about legal versus practical risk and how to apply them in real time; and the difference between corporate communications versus advertising and how to get it right. Finally, does the First Amendment fully protect corporate social media speech and, if not, should it? This session will review the current status of the world of social media looking back at major campaigns and issues from the past year.

W. David Hubbard

Vice President & Deputy General Counsel - Marketing Verizon Communications

Please choose to attend breakout session 2-A or 2-B.

THE CURRENT AND FUTURE STATE OF ADVERTISING SELF-REGULATION

Advertising industry self-regulation has been lauded for its role in promoting truthfulness and accuracy in national advertising. How has the program weathered its 40-plus years of existence? What are its strengths and weaknesses? How can it better serve the industry and consumers? In August 2014, an American Bar Association section of antitrust law working group was formed to consider these issues and the response was immediate. The working group’s findings will be presented during this program and will include recommendations concerning National Advertising Division and National Advertising Review Board procedures and processes as well as measures intended to better promote competition while protecting consumers.

John E. Villafranco

Partner Kelley Drye & Warren LLP

HOW TO NEGOTIATE A CLIENT-AGENCY AGREEMENT (FROM BOTH A MARKETER AND AGENCY PERSPECTIVE)

This panel will host a discussion on the latest points of contention in the agency selection and contracting process. Get advertiser and agency perspectives and see where their interests align. The discussion will focus on key contractual provisions such as ownership of work product and intellectual property, ad claim legal responsibility, compensation and incentive compensation structures, patent infringement liability, trademark liability, and talent issues. We will examine the most-current compensation models and the costs/benefits to advertisers and agencies.

Joanne Davis

President Joanne Davis Consulting

THE PEOPLE ARE REVOLTING: ADVERTISING IN THE AGE OF REVIEW SITES

Review sites have become an integral part of our lives, providing a rich source of information about restaurants, consumer products, movies, doctors, and more. What can a company to do when it believes it has been unfairly reviewed by a consumer? How can a brand use positive consumer reviews in its advertising campaigns? This session will explore recent cases where dissatisfied businesses have challenged how review sites curate, aggregate, and present consumer reviews as well as how some of them advertise (allegedly falsely) the reliability of the reviews on their sites. We will also discuss practical strategies that you can pursue, short of litigation, when your company receives harsh treatment at the hands of a disgruntled consumer. In addition, we will examine whether reviews are sufficiently reliable to be used to substantiate advertising claims and the disclosure obligations that are imposed on a brand that uses positive reviews in advertising. Along the way, we will consider whether the Section 230 of the Communications Decency Act continues to successfully serve its policy objectives by insulating review sites from many liabilities arising from consumer misbehavior — or whether it is time to take a different approach.

Anna Marciano

Assistant General Counsel Heineken USA, Inc.

MEETING THE CHALLENGES OF PRODUCING COMMERCIALS OVERSEAS

Brand owners and agencies are increasingly looking to leverage the advantages of overseas advertising production, whether for an exotic location, new talent, or simply cost savings. With these benefits come a host of risks and the need to understand unfamiliar foreign laws and commercial practices. These include national restrictions on the export of intellectual property; different treatment regarding ownership of intellectual property, with no equivalent to “work for hire”; and special national requirements pertaining to advertising production. Additionally, they will encounter a plethora of rules related to cultural sensitivity, covering everything from works of art to ancient war dances; special taxes on American and “foreign” entertainers gracing foreign film sets; and a host of other issues peculiar to specific countries. With the help of this panel of advertising law experts from around the world, members of the Global Advertising Lawyers Alliance (GALA), you will feel confident in circumnavigating the world of global advertising production.

Moderator: Carlos Alberto Arroyo

Managing Partner Falconi Puig (GALA Ecuador)

(immediately following general session)

KEYNOTE ADDRESS

Michael O'Rielly

Commissioner Federal Communications Commission

WHAT THE NEW POLITICAL REALITY MEANS FOR ADVERTISERS

The new GOP-led Congress has arrived, promising to break the gridlock in Washington. House Ways and Means Chair Paul Ryan (R-WI) and Senate Finance Chair Orrin Hatch (R-UT) have placed comprehensive tax reform high on their agendas. Can a tax reform consensus be reached and how will this affect advertising tax deductibility? What does the new political reality mean for data security and privacy, patent trolls, piracy, food and beverage advertising, and advertising to children? Get an analysis of what all this means for the advertising industry.

Dan Jaffe (@ANAGovRel)

Group Executive Vice President, Government Relations ANA

Please choose to attend breakout session 3-A or 3-B.

LABORATORIES OF DEMOCRACY: STATE PRIVACY AND SECURITY INITIATIVES

Justice Brandeis's famous quote that states can “serve as a laboratory” still rings true, especially when it comes to regulation of online privacy and data security. In the past few years, issues such as data breach notification, location tracking, and the use or disclosure of student data for advertising purposes, not to mention the patchwork of inconsistent laws in other privacy areas, have loomed large. This session will focus on the considerable ongoing activity at the state level. Anyone who operates in this environment should attend. 

Jim Halpert

Partner DLA Piper

WHAT DO CONSUMERS THINK? USING ONLINE SURVEYS TO DEMONSTRATE IMPLIED CLAIMS

False advertising disputes are on the rise and surveys remain the evidentiary key to a court's determination of whether an advertising claim that may be literally true is impliedly false. Increasingly, surveys are conducted online, and when conducted well, they are an important tool for understanding consumer behavior and help parties prevail in advertising disputes. This session will explore the emerging trend of online survey use in false advertising litigation and in proceedings before the National Advertising Division (NAD). We will analyze key survey issues and potential legal pitfalls encountered when conducting online surveys, including design, validity, sampling, bias, and data collection. The session will examine when and how to conduct online surveys and present strategies for their effective use in advertising disputes.

David G. Mallen

Co-Chair, Advertising Disputes Loeb & Loeb LLP

KEYNOTE ADDRESS

Jim Hood

Attorney General, State of Mississippi President, National Association of Attorneys General (NAAG)

THE NATIVES ARE RESTLESS: LEGAL PERSPECTIVES ON NATIVE ADVERTISING

How has sponsored media complicated the landscape for commercial speech and advertising? How are the concepts of “materiality” and “deception” realized in the context of sponsored media? Do the traditional requirements of adequate disclosure affect “native advertising” differently from a First Amendment perspective because of the way in which media is increasingly funded? Learn the answers to these questions and more at this session which will provide the latest perspective on the tension between consumer protection enforcement and commercial speech in the age of sponsored media.

John P. Feldman

Partner Reed Smith LLP

Please choose to attend breakout session 4-A or 4-B.

MARKETING WITH NEW TECHNOLOGY: THE INTERSECTION OF ADVERTISING AND DATA COLLECTION

This session will examine how advertisers can tout the benefits of their X-ray vision into the minds and behavior of consumers in a manner that diminishes the likelihood of regulatory scrutiny or consumer backlash. Panelists will discuss how new technology enables targeted marketing, streamlined customer service, and real-time results. The conversation will also highlight privacy risks and discuss how they can lead to customer concerns and regulatory attention.

Matthew R. Mills

Associate Arent Fox LLP

LITIGATING DAMAGES CLAIMS IN LANHAM ACT FALSE ADVERTISING CASES

This session will explore the law governing the ability to obtain damages in Lanham Act false advertising cases. It will cover the various theories under which damages may be sought, how a plaintiff goes about proving damages, how a defendant may defend against damages claims, working with experts to prepare and defend against a damages case, and what the client's role is in working with outside counsel in proving or disproving a damages case.

Alexander Kaplan

Partner Proskauer Rose LLP

A DISCUSSION ON THE TRUSTWORTHY ACCOUNTABILITY GROUP (TAG)

A recent report by White Ops and ANA showed that advertisers will lose $6.3 billion to bots in 2015. Meanwhile, malware and online piracy remain significant issues. TAG, spearheaded by ANA, the American Association of Advertising Agencies (4A’s), and the Interactive Advertising Bureau (IAB), is the first accountability program specifically directed to create transparency in the business relationships and transactions that undergird the digital ad industry, while continuing to support the astonishing levels of innovation that have propelled digital advertising into the largest ad medium in the United States. The panelists will discuss the objectives of TAG, which include providing the advertising community with tools that promote brand safety through transparency and accountability, eliminate fraudulent traffic, combat malware, and fight the theft of digital content.

David E. Green

Vice President, Public Policy and Creative Content Protection NBCUniversal