2014 ANA Advertising Law & Public Policy Conference

AN INNOVATIVE APPROACH TO MASTERING TALENT AND RIGHTS MANAGEMENT

The world of Talent continues to grow increasingly complex.  In response to this constant evolution, Extreme Reach has countered with the creation of a unique and powerful Cloud based Platform. This integrated technology offers solutions across the entire life span of commercials - from concept to release - and includes talent & rights and traffic & delivery, keeping all the workflows in a single, simple environment.  Courtney Allen, Senior Talent and Platform Specialist at Extreme Reach, will present the key efficiencies of this revolutionary system and how it is on track to improve the way we manage Talent.

Courtney Allen

Senior Talent and Platform Specialist Extreme Reach

OPENING REMARKS

BACK TO THE FUTURE ON 600 PENNSYLVANIA AVENUE

The FTC has announced six concerns it will look at in 2014 and beyond as it focuses on consumer protection – mobile tracking in retail stores, predictive scoring, mobile payments, the Internet of Things, COPPA, and data security. To kick off this year's conference, we will cover them all in fast paced presentations from the best prognosticators in the business. It’s a whirlwind tour that will start the conference with what the future holds for anyone who frequents the halls of 600 Pennsylvania Avenue.

Genie Barton (Predictive Scoring)

VP & Dir., Online Behavioral Advertising Program & Mobile Mktg. Initiatives Council of Better Business Bureaus

KEYNOTE ADDRESS

Maureen Ohlhausen

Commissioner Federal Trade Commission

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

CROSSING THE DIGITAL DIVIDE

In 2013, the Joint Policy Committee (JPC), the advertising industry’s multi-employer bargaining unit that negotiates with SAG-AFTRA for the collective bargaining agreement covering actors in commercials, obtained unprecedented relief for digital productions that allow for significant creative executions without amassing excessive costs. This session, led by the JPC’s legal counsel, Stacy Marcus, will review in depth the new digital provisions, as well as discuss the real life application of these provisions through advertiser case studies. If you’re producing on the Web, on mobile, or on any other digital platform, this is a must attend session that will provide you with concrete ways to be creative and control costs.

Stacy Marcus

Partner Reed Smith LLP

IT'S ALL IN THE GAME: LEGAL CHALLENGES IN THE WORLD OF GAMING

Video games and marketing are more entwined than ever. Complex media integration, children’s issues, behavioral tracking, privacy, and many other challenges combine with game technology that changes continuously to make the gaming industry a legal regulatory frontier. The next generation of game technology has the capacity to record our viewing and play habits, read our body language including facial expressions, and track our physical movements throughout the day. This panel will discuss these issues as well as explore the effects of mobile computing dominance, the move from retail to digital distribution, streaming broadcast content, the new game console generation, and the increasingly difficult app marketplace. These industry experts with offer their perspectives and leave time for lively audience engagement.

S. Gregory Boyd

Partner & Chairman, Interactive Entertainment Group Frankfurt Kurnit Klein & Selz PC

UNDER ATTACK: A BATTLE PLAN FOR DEFENDING, COUNTERATTACKING IN AND SETTLING FALSE ADVERTISING CASES

In olden days, the Lanham Act was the preferred method for many consumer product companies to attack a competitor and force it to modify or stop an advertising campaign. Today, the NAD has become another popular and cost-effective way of achieving that same goal while avoiding the enormous potential financial expense and resource drain of litigation and electronic discovery. But what if the huge cost of federal court litigation becomes an anti-competitive weapon rather than something to be avoided or minimized? "Beat-down" Lanham Act litigation against smaller or less prosperous competitors is on the rise. This session will discuss how to assess the plaintiff’s real motives, the best defense strategies, whether or not to counter-sue, and how and when to settle advantageously.

Dolores DiBella

Associate Counsel, Intellectual Property National Football League

THE FTC APPROACHES 100

As the FTC approaches its 100th anniversary, there are three critical areas where the Commission needs to remember the lessons of the past as it moves into its next century. First, it has lost sight of the fact that any communication can be misunderstood by some consumers.  Its recent actions threaten to reduce advertisers’ ability to provide consumers with the truthful information that drives competitive markets. Second, it has moved away from the flexible advertising substantiation standard that requires advertisers to have a reasonable basis for claims before they are made. Third, in the crucial arena of privacy, the Commission needs to renew its focus on practices that are injurious to consumers, rather than regulating to avoid practices that some consumers might consider “creepy.” Regulation to prevent speculative harms is likely to produce real costs to the information economy.

Howard Beales

Professor of Strategic Management and Public Policy The George Washington University School of Business

SOCIAL ON MOBILE

Advertisers face unique issues in connection with their presence in social media. This session will explore how advertisers are dealing with issues in the mobile environment - including advertising in social media on mobile devices, making effective disclosures and disclaimers in a small space, dealing with privacy policies and terms and conditions, endorsement and testimonial issues, and unique intellectual property issues.

W. David Hubbard

Vice President & Deputy General Counsel, Marketing Verizon Communications

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

BEATING CONSUMER FRAUD AND FALSE ADVERTISING CLASS ACTIONS

Class actions are a plaintiffs’ bar evergreen. While defense counsel has their hands full defending what are more often than not entirely frivolous suits, courts continue to allow them to meander through a procedural morass that wastes time, energy, and money for what should have never been allowed in court. Have you had enough? This presentation will open the door to some new ideas with strategies that work to dismiss cases and leverage the facts to best defeat jurisdiction. We will also address practical strategies gleaned from recent case law for opposing class certification, as well as tips on how to bifurcate class and merits discovery and effectively elicit testimony from class representatives to defeat class certification - in short, how to beat class actions plaintiffs early and effectively

Ken Patel

Vice President & General Counsel The Procter & Gamble Company

ADVERTISING HEALTH

The health and wellness marketplace is booming. In 2014, it’s not only about food, pharma and dietary supplements — industries ranging from paints, mattresses, cosmetics and cleaning products are increasingly promoting healthier products and lifestyles. The legal landscape is changing, so this session will examine the latest issues surrounding the marketing of health and wellness to consumers, including regulatory and self-regulatory approaches to claim substantiation and “competent and reliable” scientific evidence. The session will also cover what  marketers need to know about the Health Insurance Portability and Accountability Act (HIPAA) and address one of the biggest development in advertising — the marketing of health care to consumers.

Jill Bollettieri

Assistant General Counsel General Mills, Inc.

WHAT'S NEXT ON NATIVE ADVERTISING?

Native advertising: no term in our industry has more buzz around it, particularly after the FTC's Blurred Lines workshop. But how are marketers really going native with brand integration - in nefarious ways akin to subliminal advertising or simple product placement‎? This panel will explore the issues beyond the "to disclose or not to disclose" questions and best practices to avoid enforcement.

Laura Brett

Staff Attorney National Advertising Division (NAD)

THE PERILOUS PATH TO GLOBAL REACH

In a digital world, commercial communication more than ever attempts to reach a global audience. Global strategies, however, face serious legal risks and hurdles. When marketers break out of the clutter with edgy copy, humor, and stunning visuals, they often ignore the complicated quilt of national and local regulations and sensitivities. They forget cultural clashes, traditional and religious implications and peculiar legal barriers. In this session, the Global Advertising Lawyers Alliance provides the answers to what you need to consider before giving a campaign the final “GO.”

Moderator: Felix Hofer

Founding Partner Hofer Lösch Torricelli (Italy)

STATE ATTORNEYS GENERAL BRIEFING: BREAKFAST CONVERSATION WITH J.B. VAN HOLLEN

State Attorneys General (AGs) increasingly are key national regulators in a wide variety of areas. Some believe that AGs match or even exceed the muscle of federal agencies such as the FTC, particularly when they act collectively on a “multi-state” basis. Beyond this, federal legislation increasingly provides for State AG enforcement of federal laws. Come hear about these and other issues in a breakfast conversation between Divonne Smoyer, Partner at Reed Smith LLP and the Attorney General of Wisconsin and current NAAG President, J.B. Van Hollen.

Divonne Smoyer

Partner Reed Smith LLP

ADVERTISING UNDER ATTACK

The advertising industry is confronting major difficulties in 2014. These include the most serious threat to the deductibility of advertising expenses in a generation as part of an ongoing effort to reform the federal tax code as well as in the privacy area, as the industry responds to consumer concerns over the security of their personal information in light of major data breaches. Meanwhile, there remain challenges in regard to food and beverage advertising to children, responding to the threats posed by "patent trolls," and dealing with the new domain name environment posed by ICANN’s TLD program. This session will provide an in-depth look at these issues and more. 

Dan Jaffe

Group Executive Vice President, Government Relations ANA

KEYNOTE ADDRESS

Reid Horwitz

Assistant Litigation Deputy, Office of Enforcement Consumer Financial Protection Bureau

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

THE GATHERING DATA SECURITY STORM: IS THE GOVERNMENT HELPING?

Major hacking attacks and data breaches are daily news, undermining consumer confidence even as we move to a cashless, digital economy. Retailers and manufacturers want to offer interconnected and personalized services across media, but they are in an arms race against worldwide criminals who seek to capitalize on this treasure trove of personal information. The FTC and CFPB are attempting to punish victims of such hack attacks in an effort to enforce reasonable standards of security, but are they helping or hindering the effort? This session will bring together experts to discuss the landscape.  

Bruce Byrd

Senior Vice President & Assistant General Counsel AT&T Services, Inc.

CLASS ACTIONS AND A COLLISION WITH THE NAD

This session will explore the developing interaction between litigation and self-regulation, with particular emphasis on the rise in consumer class actions and CLRA demand letters following the issuance of NAD decisions. John Villafranco will update a pivotal study he undertook last year that tells the story in real numbers. The session will also explore additional hypotheses explaining the rise in class actions targeting claims addressed in adverse NAD decisions - with perspectives from plaintiffs’ attorneys and the NAD - and propose revisions to the self-regulatory process intended to remedy the perceived problem.

John Villafranco

Partner Kelley Drye & Warren LLP

KEYNOTE ADDRESS

J.B. Van Hollen

Attorney General of Wisconsin President, National Association of Attorneys General

THE INTERNET OF THINGS: POSSIBILITIES AND PROBLEMS

The emerging market of connected devices – a/k/a the "Internet of Things" – encompasses a vast array of products and equipment used by consumers every day – from appliances that monitor activity in the home to wearable devices and even cars that navigate without human assistance. It is easy to imagine how interconnected devices might be used to collect data useful to advertisers and deliver marketing messages, but beware: this data can be fraught with privacy and security landmines. The FTC is actively examining these issues and has directed entities operating in this space to apply privacy-by-design principles and build security into these devices. The FCC’s new Chairman has hinted that his agency could take an expanded role, declaring the FCC to be the "public’s representative to the ongoing network revolution," stating that as networks evolve so should government oversight. The implications for advertisers are critical to understand if the industry hopes to leverage the "Internet of Things" to the fullest advantage, while staying firmly in compliance with regulatory norms.

Christin McMeley

Partner & Co-Chair, Privacy & Security Practice Davis Wright Tremaine LLP

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

WE'RE ALL BUZZING! SUBSTANTIATION IN THE TECH INDUSTRY

This session will provide an overview of the hotter topics in the technology industry. We will focus on some of the more daring claims made in the technology industry and provide insight on what is needed to substantiate these claims. We will discuss the challenges presented in advertising advanced technology - for example, what disclosures do we consider when a product employs technology that is not yet in existence? You also will hear an overview of the legal issues surrounding "green" claims in the technology industry.

Sarah Bruno

Partner Arent Fox LLP

ADVERTISING ALCHEMY

Like the medieval alchemist trying to turn lead into gold, advertisers and their ad agencies seek to derive commercial gain by creating intellectual property which, at its creation, has little intrinsic value. Once put to use, however, it can indeed turn lead into gold. Yet the members of this team often have separate interests that don’t always coincide. We will examine some of the economic drivers of the “business of IP,” who should own what, and how the balance of interests differ among these sometimes disparate players.

Steve Ennen

President Centris

WHEN WORLDS COLLIDE: OLD ETHICS AND SOCIAL MEDIA

Are you pleased when someone endorses you on LinkedIn? Anxious to tweet your latest victory? Or post on a Facebook discussion? You may want to temper your elation and crowing. Rules of ethics in social media are evolving and they're not as open and understanding as one might think. This session will explore what's allowed and prohibited on social media under the rules of professional conduct. It's murkier than you might "like."

Kathryn Barrett Park

Senior Counsel, Advertising and Brand Management General Electric Company