2019 ANA/BAA Marketing Law Conference

BREAKOUT 1A: BASICS OF PROMOTION, SWEEPSTAKES, CONTESTS AND GAMING

This session will provide an introduction to sweepstakes and skill contests, and the key terms you will need to best understand the rest of the conference. This session will also deal with the latest rules and updated platform specific requirements for these types of promotions.

Jason Mueller

Partner Sheppard Mullin Richter & Hampton LLP

BREAKOUT 1B: BASICS OF ADVERTISING: A BRAND NEW TAKE ON SUBSTANTIATION, DISCLOSURES & SOCIAL MEDIA

This session will cover important principles of advertising law, including prerequisites to prove your claims, the type of proof required, how to make disclosures, and application of these principles to social media. In addition, it will cover options for challenging competitors. Whether new or experienced to advertising, this session will give you down-to-earth information you need to put later sessions into context. This presentation will put a great new spin on important topics.

Gonzalo Mon

Partner Kelley Drye & Warren LLP

BREAKOUT 1C: ETHICS FOR LAWYERS

Jack P. Sahl

Professor University of Akron Law School

BREAKOUT 1D: CELEBRITY/TALENT

Sandra Leib

General Counsel DDB Chicago Inc.

BREAKOUT 1E: CALIFORNIA PROPOSITION 65: MADE IN USA & OTHER PACKAGING & LABELING CONUNDRUMS!

Brian Bloom

Partner Moritt Hock & Hamroff LLP

BREAKOUT 2A: GLOBAL PRIVACY: MANAGING TRACKING & OTHER CONSUMER PREFERENCES

Doron Goldstein

Partner Katten Muchin Rosenman LLP

BREAKOUT 2B: ONCE UPON A TIME IN HOLLYWOOD; MARKETING LAW ISSUES FOR ENTERTAINMENT COMPANIES

Anne DiGiovanni

Counsel, Marketing Hulu, LLC

BREAKOUT 2C: HOW TO NEGOTIATE AGENCY/CLIENT AGREEMENTS IN TODAY’S SENSITIVE ENVIRONMENT

Robert Driscoll

Partner Davis Wright Tremaine LLP

BREAKOUT 2D: THE FUTURE OF LIVE ENTERTAINMENT/EXPERIENTIAL MARKETING

Ushering live entertainment into a new era, panelists from leading entertainment companies offer their insights on how AI, VR and other technologies are shaping the future of immersive live entertainment and relevant legal considerations, with insights into Game of Thrones and other properties and campaigns.

Kesari Ruza

Senior Vice President, Legal Affairs Warner Media Entertainment

BREAKOUT 2E: THE RISE IN ADA ACCESSIBILITY PROBLEMS

This session will cover how the Americans with Disabilities Act is impacting businesses that interact with customers online and how companies can mitigate risk by creating inclusive web, mobile, and product experiences through digital accessibility testing.

Eric Feinberg

Chief Marketing Officer eSSENTIAL Accessibility Inc.

BREAKOUT 3A: PRICE & SALES ADVERTISING

Advertisers and retailers continue to face challenges regarding sale and price advertising and claim substantiation, and, particularly in the context of multiple platforms, new technologies and shifting markets. This session will cover recent enforcements and actions in the areas of sale and price advertising, and best practices for compliance and risk mitigation. It will also address hot topics such as automatic subscription billing, drip pricing, dynamic pricing, and international pricing.

Jason Howell

Partner Perkins Coie LLP

BREAKOUT 3B: UNANTICIPATED TRADEMARK COPYRIGHT AND IP PROBLEMS IN ADVERTISING

This session will provide an overview of IP issues arising in advertising and marketing campaigns. The panel will discuss key considerations and steps that should be taken from before work on the project begins through the launch and fallout of the advertisement/marketing campaign. 

John McCormick

Associate Fish & Richardson P.C.

BREAKOUT 3C: REGULATED INDUSTRIES: ALCOHOL

John Wilks

Partner DLA Piper LLP

BREAKOUT 3D: A MARKETER'S GUIDE TO CALIFORNIA PRIVACY LAWS

Morgan Woodbury

Head of Global Alliances OneTrust

BREAKOUT 3E: SPORTS MARKETING: LEAGUE PLAYER & TEAM ISSUES, AMBUSH MARKETING & MORALS CLAUSES

Nilesh (“Neal”) Patel

Member Frost Brown Todd LLC

Jake Zim

Senior Vice President, Virtual Reality Sony Pictures Entertainment, Inc.

BREAKOUT 4A: RIGHT OF PUBLICITY

Christopher Chase

Partner Frankfurt Kurnit Klein & Selz PC

BREAKOUT 4B: THIRD PARTY RIGHTS

Jason Gordon

Partner Reed Smith LLP

BREAKOUT 4C: PITFALLS AND PROBLEMS IN USER GENERATED CONTENT ACROSS MULTIPLE PLATFORMS

Anna B. Naydonov

Partner Finnegan, Henderson, Farabow, Garrett & Dunner LLP

BREAKOUT 4D: HANDLING THE AGGRESSIVE MARKETER

Lauren Aronson

Counsel Crowell & Moring LLP

BREAKOUT 4E: LICENSING AND DISTRIBUTION AGREEMENTS

Po Yi

Partner Manatt, Phelps & Phillips, LLP

BREAKOUT 5A: AI, AR & VR

Kenneth Rubenstein

Director, Legal Google

BREAKOUT 5B: AD TECH

James D. Taylor

Chair, Advanced Media and Technology; Co-Chair, Diversity Committee Loeb & Loeb LLP

BREAKOUT 5C: HOT ISSUES IN CANADIAN MARKETING, ADVERTISING AND PRIVACY

Jennifer McKenzie

Partner Bereskin & Parr LLP

BREAKOUT 5D: CRISIS MANAGEMENT: #METOO/DATA & OTHER AREAS

Phyllis Marcus

Partner Hunton Andrews Kurth LLP

BREAKOUT 5E: CROSS-DEVICE LINKING AND THE IOT

Lou Mastria

Executive Director Digital Advertising Alliance

BREAKOUT 6A: REAL TIME MARKETING: NEW & FORTHCOMING

Joseph Lewczak

Partner Davis & Gilbert LLP

BREAKOUT 6B: THE MAZE OF THE GAMBLING, GAMING, SPORTS BETTING & FANTASY SPORTS INTERSECTIONS

Barry M. Benjamin

Partner Kilpatrick Townsend & Stockton LLP

BREAKOUT 6C: WHAT YOUR MARKETING EXECUTIVES NEED TO KNOW TO MINIMIZE ADVERTISING CHALLENGES

Do you find yourself wishing your marketing executives had some background on advertising law so they better understand where you’re coming from when you give them legal advice? Or find yourself worrying about whether they are engaged in day-to-day business practices that could pose legal issues down the line? We present on the most commonly mistaken assumptions and internal practices that get those who design advertising and marketing claims into trouble with regulators, courts, and competitors. These include how communications with third-party PR or marketing firms can destroy privilege, issues around product testing and product reviews, and common pushback such as “but our competitors are doing it” or “the worst that can happen is we’ll have to change the advertising later.” The presentation will be styled so that attendees can bring it back to their companies to present to their business people. 

Jennifer Yang

Associate Proskauer Rose LLP

BREAKOUT 6D: THE CCPA DILEMMA

Alan Friel

Partner BakerHostetler

BREAKOUT 6E: TECHNOLOGY IN MARKETING: AVOIDING THE PITFALLS OF BIOMETRICS AND RELATED TECHNOLOGIES

Leading privacy and technology professionals discuss the rapidly changing technology landscape, including essential compliance considerations when using biometrics (facial scans, videos, fingerprints, voice recognition), AI, VR and AR, and integrated “smart” devices. The panel will dive deep into the technologies that are here today and likely coming tomorrow, and the legal issues that need to be considered when integrating these into your marketing campaigns.

Justine Gottshall

Partner InfoLawGroup LLP

BREAKOUT 7A: THE NEW 2019 SAG-AFTRA COMMERCIALS CONTRACTS AND WHAT IT MEANS FOR THE INDUSTRY

In what are being called landmark negotiations, this year several significant changes were made to the SAG-AFTRA Commercials Contracts, including a new bundled compensation structure. What do these changes mean for you and your company? How can you take advantage of the increased flexibility and simplicity? In this session, Stacy Marcus, chief negotiator for the Joint Policy Committee, will discuss key changes in the 2019 SAG-AFTRA Commercials Contracts.

Stacy K. Marcus

Partner Reed Smith LLP

BREAKOUT 7B: INFLUENCER AGREEMENTS & ENFORCEMENT & THE AGENCY’S SOCIAL DATA & ACTIVATION TECHNOLOGY

Caroline Selfridge

Chief Marketing Counsel Intel Corp.

BREAKOUT 7C: “NATURAL” ADVERTISING CLAIMS: LESSONS FROM DEVELOPMENTS IN CONSUMER CLASS ACTIONS

“Natural” advertising claims continue to be a target for the plaintiffs’ bar in consumer class actions challenging all types of goods. This breakout session will present an update on “natural” claim litigation in consumer class actions, with a focus on the ways in which courts and the plaintiffs’ bar treat “natural” claims on personal care products and food and beverages differently.

Eileen Patt

Partner Kramer Levin Naftalis & Frankel LLP

BREAKOUT 7D: DATA COLLECTION, USE & MARKETING: TARGETING/RETARGETING & BEHAVIORAL CONTROL

Meredith Halama

Partner Perkins Coie LLP

BREAKOUT 7E: CAUSE MARKETING

Learn the rules governing charitable sales promotions, donation-at-checkout, voting programs to allocate donations, text-to-give, social-media programs, and more. Practical compliance tips are included, along with information about the latest developments for use of online fundraising platforms like GoFundMe.com by companies and foundations.

Edward Chansky

Shareholder Greenberg Traurig, LLP

BREAKOUT 8A: ORIGINAL CONTENT IS KING

Consumers now more than ever have access to myriad content choices available from a diverse group of content providers. Learn about key issues in original content development and production from panelists across the industry.

Benjamin Mulcahy

Partner & Co-Chair National Advertising Team DLA Piper LLP

BREAKOUT 8B: CROSS-BORDER AND GLOBAL MARKETING CONCERNS

Balancing Risk and Innovation: From cannabis to tech to AI, industry innovation keeps driving legal risk. Hear how internal and external legal counsel tackle the emerging issues impacting cross-border and global business, and what you should look out for in 2020.

Kelly Harris

Partner Miller Thomson LLP

BREAKOUT 8C: PRIVACY FOR AMERICA: A BOLD NEW PARADIGM FOR A NATIONAL LAW

This session will discuss the changing expectations of consumers, businesses, and policymakers around data collection and use. Current legislation poses different risks for consumers, businesses, and the economy. We will discuss the U.S. regulatory environment for data privacy and Privacy for America’s bold new paradigm for a national law that would make personal data less vulnerable to breach or misuse and set forth clear, enforceable, and nationwide consumer privacy protections for the first time.

Michael Signorelli

Partner Venable LLP

BREAKOUT 8D: FOOD MARKETING CLAIMS

Mary Ann Wymore

Officer Greensfelder, Hemker & Gale, P.C.

BREAKOUT 8E: ANTITRUST ISSUES IN DIGITAL ADVERTISING

As advertisers rely on larger and larger data sets to effectively target their ads, digital advertising is disrupting and transforming the business of marketing. This transformation has sparked a lively public debate and drawn the attention of federal antitrust enforcers as the breadth and popularity of some online platforms has grown, redrawing the competitive lines between the varied online and traditional offline channels for advertising.

This panel of antitrust and advertising experts will explore these issues and provide guidance for both advertisers and their online partners. Topics will include:

• What role does data play in the online marketplace, especially what has been described as “big data,” in shaping the dynamics of today’s competition for digital advertising?
• What is the likely impact of “big data” on the future development of the digital advertising marketplace?
• How important will issues such as data access, platform interoperability, and data portability play as the market matures?
• What are the possible business practices and areas of interest that may attract the attention of federal antitrust enforcers as they learn more about the industry?
• Are there concerns about industry concentration and consolidation?
• Are there specific practices of competitive significance that are common to many, or perhaps unique to some?
• How might rising societal concerns about information privacy and data security affect both the competitive landscape, as well as the prospects for industry regulation that could have competitive consequences?
• What are the relevant guardrails for retailers, particularly with respect to pricing policies aimed at maintaining prices throughout the distribution chain?

This panel will also address the state of the law in the areas of resale price maintenance (RPM) and minimum advertised price guidelines (MAP):

• SCOTUS Leegin decision as a potential game changer and red flags for retailers
• States’ reaction to Leegin and implications for risk analysis
• Implication of state laws that impose per se antitrust liability for vertical price fixing on MAP guidelines, plus relevant considerations for retailers

Ryan Tisch

Partner Crowell & Moring LLP

BREAKFAST ROUNDTABLES WITH THE EXPERTS

1: CBD IN THE U.S.: FEDERAL & STATE PROBLEMS
Facilitators: Randal Shaheen, Partner, BakerHostetler & John P. Ferry, Associate, BakerHostetler

2: PRACTICAL ANSWERS FOR YOUR QUESTIONS ON SWEEPSTAKES
Facilitator: Larry Berney, General Counsel, Don Jagoda Associates, Inc. 

3: CONNECTED TOYS & OTHER CARU ISSUES
Facilitators: Dona Fraser, Director, Children’s Advertising Review Unit (CARU) & Kate O’Loughlin, Chief Operating Officer, North America, SuperAwesome

4: GETTING NONTRADITIONAL WITH TRADEMARKS: WHAT THEY ARE AND HOW TO ADVERTISE THEM
Facilitator: Nancy Ly, Associate, Fish & Richardson P.C.

5: CYBERSECURITY: MITIGATING THE INEVITABLE BREACH
Facilitator: Terese Arenth, Partner, Moritt Hock & Hamroff LLP

6: KNOWING IS HALF THE BATTLE: AN UPDATE ON SOCIAL MEDIA
Facilitator: Hannah Taylor, Partner, Frankfurt Kurnit Klein & Selz PC

7: SUMMARY OF STATE PRIVACY LAWS
Facilitators: Michelle Tyde, Counsel, Kilpatrick Townsend & Stockton LLP & Farah Cook, Counsel, Kilpatrick Townsend & Stockton LLP

8: OLYMPIC AND PARALYMPIC ATHLETES AND INTELLECTUAL PROPERTY; RULE 40, RULE 50 AND WATCH-OUTS FOR TOKYO 2020 AND BEYOND
Facilitator: Jessica Borowick, Associate, Manatt, Phelps & Phillip, LLP

9: THE LATEST ON NEGATIVE OPTION MARKETING: SUBSCRIPTION BILLING, AUTOMATIC RENEWAL AND FREE TRIAL PROGRAMS
Facilitator: Paavana Kumar, Associate, Davis & Gilbert LLP

10: 3 WAYS TO PROTECT YOURSELF AGAINST MULTI-MILLION DOLLAR COMPLIANCE FINES 
Facilitators: Stephen Robinson, General Counsel, Extreme Reach; Tim Hale, Chief Talent Officer, Extreme Reach, Dianne Richter, Vice President, Account Management and Talent, Extreme Reach & Gregory Hessinger, Partner, Mitchell Silberg & Knupp LLP

11: BEST PRACTICES FOR ONLINE CONSUMER PERCEPTION SURVEYS
Facilitator: Jacqueline Chorn, Senior Manager and Survey Expert, Applied Marketing Science, Inc.

12: THE FUTURE OF TEXT MARKETING 
Facilitator: Katherine Nye, Partner, Neal, Gerber & Eisenberg LLP

13: MADE IN USA “CLAIMS”
Facilitator: Katherine Townley, Associate, Kelley Drye & Warren LLP

14: CANNABIS ADVERTISING: WHAT THE ALCOHOL INDUSTRY TEACHES US
Facilitator: Jillian Petrera, Associate, Reed Smith LLP

WELCOME & INTRODUCTION OF CO-CHAIRS

Ed Kabak

Senior Vice President, Law ANA

OPENING REMARKS

Bob Liodice

CEO ANA

YEAR IN REVIEW, SWEEPSTAKES, CONTESTS, PRIVACY, DIGITAL & SOCIAL MEDIA

A master of the arts gives industry highlights of the year, and shares strategies/tactics and an insider’s look at how to deal with the key issues of the day.

Linda A. Goldstein

Co-Leader, Advertising, Marketing & Digital Media Practice BakerHostetler

TECHNOLOGY IN MARKETING AND ADVERTISING: THIS YEAR, IT’S PERSONAL

The increasing intersection of advertising, marketing, and technology continues to fuel new ways for companies to engage with consumers. Many consumers say they increasingly expect personalized interactions and content ­— but how do companies do that against the backdrop of game-changing new privacy laws that significantly expand what’s considered personal data? And how do legal practitioners stay on top of the latest technologies that marketers want to use to drive business results? This session will share real-world examples of key industry trends, challenges, opportunities, and things to come. 

Kenneth Florin

Chairman Loeb & Loeb LLP

THE UPSIDE-DOWN WORLD OF ADVERTISING & MARKETING LAW – WHERE THE PAST & FUTURE DISRUPT THE NOW

Stay tuned for the latest perspective from a master of the law on what’s going on in the advertising and marketing ecosphere. From advertising law, social and digital media, privacy and data, regulatory actions, and more, learn about the latest developments, key issues, and hot topics. You’ll leave this session with unique insights and real practical tips, plus be entertained and have fun.

Ronald Urbach

Chairman & Co-Chair, Advertising, Marketing & Promotions Practice Davis & Gilbert LLP

EMERGING TRENDS IN ADVERTISING LITIGATION

This session will address significant decisions over the past year in the Lanham Act and consumer fraud class action cases, as well as challenges before the National Advertising Division (NAD) and appeals before the National Advertising Review Board (NARB). Mr. Simon’s and Ms. Patt’s presentation will discuss emerging trends in advertising litigation that can be gleaned from these cases.

Norman C. Simon

Partner Kramer Levin Naftalis & Frankel LLP

SPEAKER

Noah Joshua Phillips

Commissioner FTC

SELLING DIRECTLY TO CONSUMERS: NAVIGATING THE COMPLEXITIES OF ACCEPTING PAYMENTS

As consumers now buy everything from shoes to groceries online, it is no surprise that future retail growth will come from more brands engaging in mobile and electronic commerce. This session will provide the tools to construct a legal framework around billing and payments in direct-to-consumer sales. Panelists will break down all the complexities of taking payments – often unchartered territory for many legal departments. We will cover contracting for merchant processing accounts, complying with the rules of major card brands, subscription billing, chargeback risk, data security obligations, privacy concerns, tax considerations, surcharging, third party vendor relationships, and major pitfalls to avoid.

Ellen Berge

Partner Venable LLP

ADVERTISING REVIEW OF THE YEAR’S BIGGEST CASES WITH THE REGULATORS

Marc Roth

Partner Davis Wright Tremaine LLP

BREAKOUT 9A: LOYALTY PROGRAMS

Melissa Landau Steinman

Partner Venable LLP

BREAKOUT 9B: STATE AND LOCAL AG ENFORCEMENT

Holly Melton

Partner Crowell & Moring LLP

BREAKOUT 9C: GLOBAL MARKETING WITH INFLUENCERS

What you need to know when you advertise outside the U.S. through influencers or directly. Hear from international experts about how influencers are being perceived and regulated differently around the world, and learn about common pitfalls to avoid when a U.S.-based company expands its advertising to run outside the U.S. 

Rebecca Pennington

Senior Counsel Snap Inc.

BREAKOUT 9D: AMBUSH MARKETING, THE OLYMPICS AND MAJOR SPORTS SPONSORSHIP DEALS

Margaret Esquenet

Partner Finnegan, Henderson, Farabow, Garrett & Dunner LLP

BREAKOUT 9E: ENDORSEMENT GUIDES & FTC CONTINUED ENFORCEMENT: A FIRESIDE CHAT WITH THE FTC

Laura Kim

Partner, Co-Chair of Advertising & Consumer Protection Practice Covington & Burling LLP

BREAKOUT 10A: HOT TOPICS IN CHILDREN’S ADVERTISING AND PRIVACY

From connected toys to child influencers, from social media to streaming services and AR/VR technology, this session will conduct a deep-dive into the hottest topics in children’s advertising and privacy. The panel will provide best practices and practical tips for ensuring that your child-directed apps, products, and marketing campaigns are in compliance with CARU, COPPA, and other laws.

Allison Fitzpatrick

Partner Davis & Gilbert LLP

BREAKOUT 10B: CROSS-BORDER: HOW TO LITIGATE AND ADVERTISE IN A GLOBAL DATA WORLD

This breakout session will address the shifting landscape of litigating advertising matters in the U.S. that involve the importation, review, and production of international data, with a focus on EU, Swiss, U.K., and South American privacy laws. We will also discuss how compliance with court orders is complicated when advertising crosses borders, and how to address issues that arise when advertising targeting specific jurisdictions leaks into others for which it may not comply with advertising laws.  

Samantha V. Ettari

Special Counsel, E-Discovery Counsel Kramer Levin Naftalis & Frankel LLP

BREAKOUT 10C: AUTOMATING MARKETING COMPLIANCE

Patricia Doyle

Senior Advertising and Marketing Compliance Manager Microsoft Corp.

BREAKOUT 10D: DATA BREACH

Emerging privacy law requires companies to enact reasonable security practices and procedures or face significant statutory penalties after a data breach. As marketing departments leverage numerous outside vendors to execute advertising campaigns, when your organization provides personal information and that vendor is compromised, your organization is responsible to the affected individual. This session will examine the advertising vendor ecosystem in light of these obligations. Attendees will come away understanding the proactive contractual clauses that should be in place to prepare for data breaches, strategies to perform diligence on vendors, and practical advice on conducting incident response should a vendor become compromised.

Cody Wamsley

CISSP, Cybersecurity and Privacy Attorney Dorsey & Whitney LLP

BREAKOUT 10E: HEALTH SAFETY CLAIMS & RISKS IN PHARMACIES, BEAUTY PRODUCTS & AUTOMOBILE LAW ISSUES

Betsy Golden Kellem

Counsel CVS Health/Aetna

INTRODUCTION

Ed Kabak

Senior Vice President, Law ANA

LEGISLATIVE YEAR IN REVIEW

Dan Jaffe

Group Executive Vice President, Government Relations ANA

THE ADVERTISING LAWYER AND THE TERRIBLE, HORRIBLE, NO GOOD, VERY BAD DAY

Everybody’s had that day. A series of posts that your high-profile influencer published over the weekend — and that have already been viewed 2,000,000 times — don’t include any disclosures. You received a claim that the music included in your big holiday spot is infringing (the same music that got a clean bill of health from your musicologist). The CMO is apoplectic about the lackluster result from a media campaign and needs to know her options by noon today. And, you just heard that an important vendor had a data breach potentially impacting millions of customers. Brian and Jeff are back to talk about another ten contract clauses every marketing lawyer can’t do without. The provisions that can turn a day, like the one described above, from an unmitigated disaster into a mitigated one. 

Jeffrey A. Greenbaum

Managing Partner Frankfurt Kurnit Klein & Selz PC

A VIEW FROM THE BENCH: FEDERAL JUDGES DISCUSS THEIR VIEWS OF ADVERTISING LITIGATION AND LITIGANTS

Lawrence I. Weinstein

Partner Proskauer Rose LLP

INFLUENCER MARKETING BEST PRACTICES: A PANEL OF EXPERTS

Hear different perspectives on compliance and influencer best practices. Panelists include blogger/influencers, leaders in the digital space, and of course the FTC perspective on required disclosures of material connections.

Jason Mueller

Partner Sheppard Mullin Richter & Hampton LLP