American Conference Institute’s 4th Advanced Forum on Resolving & Litigating Advertising Disputes

Federal Trade Commission and Deceptive Advertising Primer

In recent years, the Federal Trade Commission (FTC) has made a decided shift from education to enforcement. New and old advertising mediums are facing increased scrutiny. This session will provide an overview of the FTC’s structure and mission, summarize key regulatory guidelines, and address the available remedies and enforcement provisions available to the FTC.

• Introduction to the FTC
• Describing its creation—when and why was it created?
• Discussing the FTC’s mission
• Summarizing legislative revisions to the FTC’s authority over the years
• Outlining the FTC’s current structure and scope of authority
• Understanding the overlap between FTC and other governmental bodies’ authority (e.g., the Food and Drug Administration, the Department of Justice, and States’ Attorneys General)
• Outlining the stages of an FTC investigation and enforcement proceedings
• Summarizing key concepts relating to “deceptive advertising”
• Content, context, and materiality
• Unfair practices
• Express versus implied
• Claim substantiation
• Disclosures and disclaimers
• “Reasonable consumer” standard
• Identifying and summarizing key FTC guidelines governing, e.g.:
• Disclosures and disclaimers
• Endorsements and testimonials
• Claim substantiation
• Digital advertising
• Labeling
• “Green” products
• Discussing the remedies available to the FTC
• Cease and desist orders
• Corrective measures (advertisements, disclosures, etc.)
• Civil penalties
• Addressing the FTC’s post-remedial enforcement powers
• Monitoring compliance with remedial orders
• Examining the consequences for inaccurate financial disclosures—civil penalties and referral to the DOJ for criminal proceedings

9:00 am – 12:00 pm (Registration & Continental Breakfast begins at 8:30 am)

Networking Luncheon for Attendees of Workshops A and B

12:00 – 1:00 pm

Competitor Challenges 101—Introduction to Lanham Act, National Advertising Division, and Network Challenges

Aggrieved companies can seek relief from a competitor’s false or misleading advertisements in federal court via the Lanham Act, before the National Advertising Division of the Better Business Bureau (NAD), or by going to the network itself. Learn the basics of these proceedings in this exclusive session, including:

Lanham Act Litigation

• Background on the Lanham Act
• Discussing the basis of Lanham Act claims
• Standing and the Lexmark case
• Defining “false” or “misleading” advertisements
• Delineating “sales talk” or “puffery”
• Understanding the “commercial advertising” requirement
• Distinguishing between “establishment” and “nonestablishment” claims
• Marshalling evidentiary support for your claim or defense
• Supporting or challenging establishment claims
• Understanding the proper use of surveys
• Identifying available remedies

Practicing before the NAD

• Outlining the procedures for bringing and concluding an NAD challenge (e.g., pleading requirements, timeline for responses, stages of proceedings)
• Being mindful of the NAD’s authority
• NAD initiated investigations
• Referral of matters to other agencies when the competitor refuses to participate
• Identifying key differences between NAD and court resolutions

Filing a Competitive Challenge at the Network

• Providing an overview of the challenge process at the Network
• Highlighting unique procedural requirements
• Discussing the relationship between the approval and challenge processes
• Identifying differences between procedures at the NAD and the Network

Continental Breakfast

Co-Chairs Opening Remarks

The Best Offense is a Good Defense—Bolstering Compliance Programs and Substantiation Practices

• Discussing best practices for ensuring proper advertising in traditional media (i.e., print, radio, and television)
• Safeguarding against misuse of digital advertising mediums
• Examining the FTC guidelines—what is clear and where is there room for confusion or possible enforcement?
• Understanding the Digital Advertising Alliance’s selfregulatory framework regarding online behavioral advertising
• Highlighting and deriving lessons from disputes related to data security and online or mobile advertising
• Demystifying how to make proper disclosures and disclaimers while using space constrained mediums (e.g., Twitter)
• Discussing the proper use of endorsements and testimonials
• Establishing checks and balances to ensure employees engage in proper online conduct
• Balancing speed to market with proper claim substantiation
• Building an evidentiary stronghold to defend against attacks on your claims
• Determining when to conduct market research
• Developing consumer behavior and psychological evidence
• Administering a clinical study
• Tracking the benefits and detriments of internet surveys
• Using consumer perception data
• Avoiding practice pitfalls relating to environmental, green, and health benefit claims
• Determining the best protocols for consumer testing and identifying industries with established protocols
• Distilling lessons from recent advertising challenges and any revealed weaknesses in substantiation processes
• Best practices for policing misuse of a company brand or misleading statements about a product
• Working with market researchers and experts to debunk competitor’s claims

Morning Networking Refreshment Break

Living under FTC Oversight—Minimizing the Risk of Enforcement, Responding to Investigations, and Developing Advanced Techniques for Steeling Defenses to Potential Class Actions

• Discussing trends in FTC enforcement—what activities are being targeted as problematic?
• Identifying the problematic gray areas of pertinent FTC guidelines (digital media, disclosures, etc.)
• Supporting claims before the FTC
• How many studies are required for there to be substantiation?
• Comparing the FTC’s standard for substantiating scientific claims with that of the FDA
• Update on the status of POM Wonderful before the D.C. Circuit, and discussion on its First Amendment implications
• Analyzing recent enforcement actions by the FTC regarding disclosures
• What lessons can be gleaned?
• Under what circumstances is personal liability of corporate officers sought or obtained?
• Best practices for responding to FTC investigations
• Identifying the purpose and meaning of FTC letters and requests
• Informal letters
• Formal CIDs and subpoenas
• Ex parte TROs and subpoenas
• Minimizing costs
• Negotiating settlements with an eye toward potential class actions—are there clauses that can be added to deter follow-on claims?
• Discussing sample consent orders
• What claims give rise to enforcement?
• Which remedies are commonly ordered?
• Evaluating the effect of an FTC determination when used in subsequent litigation

Networking Luncheon

Navigating the Lanham Act Litigation Frontier— Determining When to Bring Claims; Fighting for an Injunction; Obtaining Proper Relief

• Evaluating threshold considerations
• Weighing the chances of success against potential public relations fallout
• Evaluating the effect of any delay in bringing a claim
• Planning out what evidence will be necessary to:
• Prove or defend against a claim of confusion or falsity
• Demonstrate financial harm or damages
• Determining where to file
• Obtaining a preliminary injunction
• What constitutes proof of irreparable harm?
• Survey of decisions in which relief has been granted
• Streamlining discovery to lower costs and the burden on counsel
• Demonstrating actual or likely damages
• Effectively arguing for powerful relief from the court
• Banning of the challenged and similar advertising, and countering mootness arguments
• Requiring corrective advertising
• Instituting product recalls
• Disgorging profits
• Obtaining compensation for lost profits
• Examining circumstances in which attorneys’ fees have been awarded
• Discussing the potential impact of the Supreme Court decision in POM Wonderful v. Coca-Cola
• Evaluating whether the scope of potential competitor litigants has been expanded and to what extent the decision impacts other industries
• Analyzing the intersection of FDA labeling requirements, Lanham Act litigation, and consumer class actions
• Avoiding post-Lanham litigation class actions

Open Floor Q&A with FTC and Lanham Act Litigation Professionals

In this unique session, attendees will have the opportunity to submit in advance or ask questions live pertaining to pressing practice issues in the FTC and Lanham Act litigation space. The speakers from the sessions above will draw on their extensive experience to provide real world solutions to the problems you encounter on the front lines of these complex legal arenas.

Afternoon Networking Refreshment Break

View from the Bench—Insights from Judicial Venues on Claim Substantiation; Class Certification, How to Interpret Scientific and Statistical Evidence; Assessing Damages; and More

Conference adjourns to Day 2

Continental Breakfast

Co-Chairs Opening Remarks

NAD Keynote

Ms. Fried will discuss standards for interpreting scientific evidence and trends in cases successfully resolved before the NAD.

State Enforcers Spotlight

Tasked with protecting consumers, state attorneys general or designated departments vigilantly review advertisements, offers, and customer outreach programs for elements of deception. The penalties for deceptive practices are steep. Hear from this distinguished panel as to what their enforcement priorities for 2015 and beyond will be.

Morning Networking Refreshment Break

Strategies for Maximizing Success at the NAD and in Subsequent Proceedings

The NAD is an attractive venue for bringing advertising disputes—it can be more cost effective than litigation, its results are largely confidential, and it is an industry vested decision making body. However, it is not without its own risks: your challenge could fail, the decision could spawn class actions, or your opponent may not abide by the decision. In this session, experienced NAD practitioners will share their techniques for effective advocacy, including providing guidance on:

• Solidly establishing your claim’s foundations
• Assessing what type of substantiation NAD will want
• Ensuring that your substantiation is a good fit for your claim
• Anticipating how much precedential value the NAD will give to prior decisions
• Navigating the appeals process
• Managing PR fallout should the challenge become public
• Utilizing expert witnesses and evidence effectively
• Developing strategies for deterring or preparing for followon class action litigation
• Leveraging an NAD decision in subsequent court proceedings should your opponent fail to abide by the decision

Networking Luncheon

In-House Perspective—Choosing a Forum for Disputes; Managing Litigation Costs; Techniques for Training or Monitoring Employees; and Adapting to the Specter of Class Action Litigation

• Determining where to bring an advertising dispute—arbitration, NAD, FTC, or federal court?
• Anticipating the effects and needs of bringing a dispute
• Budgeting for experts
• Preparing for counterclaims
• Steeling your company for the possibility of PR blowback
• Discussing what constitutes a “win”
• Safeguarding against claims of deceptive advertising
• Tips on educating employees on regulations and guidelines
• Establishing systems for monitoring employee’s online promotional activities
• Acknowledging the elephant in the room—private class actions
• Evaluating claims and defenses in light of what might be attractive to the plaintiffs bar
• Discussing the need to budget at the outset of a challenge or investigation based on the possibility of subsequent class action litigation
• Controlling costs during litigation
• Minimizing the burden of discovery
• Working effectively with experts
• Advising outside counsel on how better to support in-house counsel
• Top 5 issues that in-house counsel want their outside counsel to think about
• In-house pet peeves and concerns with outside counsel

Battle of the Experts—Deploying the Proper Scientific Methodology for Supporting or Challenging Claims

This exclusive panel of expert witnesses will examine the methodology behind properly formulated surveys, as well as explore effective strategies for presenting scientific evidence to the decision-maker and for attacking an opponent’s scientific evidence. The panel will describe the principles that support various types of surveys, and use real world examples to explain how these principles are executed and evaluated.

Afternoon Networking Refreshment Break

The Ghost in the Darkness—Advanced Techniques for Defending Against Class Action Litigation

• Dissecting the scope of deceptive advertising claims
• Identifying common issues ripe for litigation
• Evaluating the efficacy of claims based on the medium of advertising (label, tv/radio/print commercial, website, video on social media, etc.)
• Are there lessons to be learned and applied from the “all natural” litigation against the food industry?
• Exploring the issue of class certification
• Analyzing the effects of the recent Supreme Court decisions of Dukes v. Wal-Mart and Comcast Corp. v. Behrend
• Evaluating the impact of Carrera v. Bayer Corp. (3d Cir.)
• Debating the issues of standing (e.g., purchaser of single product suing on behalf of purchasers of “substantially similar” products)
• Observing performance levels of challenges to class certification—embracing effective arguments and discarding antiquated positions
• Conducting cost effective and strategic discovery
• Negotiating e-discovery schedules—the advantages of agreeing to search terms and limiting custodians
• Safeguarding trade secrets
• Being vigilant of privacy issues (e.g., where survey data from Lanham Act litigation is demanded)
• Knowing when to request court intervention
• Analyzing the efficacy of bifurcating discovery, and identifying jurisdictions where bifurcation is preferred
• Considering settlement related issues
• Noticing the class
• Anticipating the number of claims
• Identifying techniques for reducing fraudulent claims

Conference Concludes