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On June 27, 2013, the nation’s premier advertising law practice convened top government policy-makers, industry thought-leaders, and marketing law specialists from the most successful U.S. companies for an advanced seminar on key issues in advertising, privacy, and consumer protection law.

Hosted at the House of Sweden in Washington, D.C., the Advertising & Privacy Practice Group of Kelley Drye & Warren LLP looked ahead to priorities for the next Director of the FTC’s Bureau of Consumer Protection. This seminar addressed the most pressing issues affecting companies’ legal obligations and risk exposure. Top practitioners on both sides of enforcement presented new ideas and innovative thinking, and engaged in sophisticated dialogue with advertising, marketing, and privacy law professionals from leading U.S. corporations.

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Agenda Highlights

General Sessions:

Opening Remarks
Jodie Z. Bernstein will reflect on the practice of consumer protection law, after having practiced both inside and outside the government for many years.

Keynote

Charles Harwood, Acting Director of the FTC Bureau of Consumer Protection, will discuss priorities for the FTC.

Mobile + Big Data + Behavioral Targeting: What Rules Apply?
Maneesha Mithal, Associate Director of the FTC’s Division of Privacy and Identity Protection, and Jules Polonetsky, Director, Future of Privacy Forum, will explore the obligations that apply to participants who have access to, collect, or share consumer-based data generated in the mobile ecosystem. From app developers, platform providers, third-party advertising networks, and others – what are the requirements, what’s changing, and are there clear best practices to follow? Christopher M. Loeffler, will facilitate the discussion.

Battle of the Brands: Five Strategies for Challenging Competitors and Defending Ad Claims
When you’re convinced your competitor’s ad claims cannot be substantiated, what are your options? When challenged, what are your best defenses? John E. Villafranco will present the principal considerations for advertisers looking to protect or advance their market position, with emphasis on the most important cases of 2012-13.

Puffery: The Magic Dragon of Advertising Law
August Horvath will explore how new cases call into question old assumptions about safe harbors for sensory claims and the epistemology of puffing.

Survey Says… Ambiguity Is In The Eye Of The Beholder
Some courts have recently disregarded survey evidence in cases in which the court determined for itself that an advertising claim was clear on its face, notwithstanding survey evidence showing that an appreciable percentage of respondents had a mistaken impression of the claim. Discussion includes the factors that influence the courts’ analysis of survey evidence in this context and what it means for advertisers.

Celebrities Gone Bad: Avoiding Brand Damage and Limiting Costs When Commercial Talent Acts Out
Any company that uses celebrity endorsements can find itself in an unfortunate “Tiger Woods” moment. Use of celebrity and athlete talent in commercials also drives up production costs and budgets. Current trends will be discussed regarding the use of morals clauses in endorsement contracts, disgrace insurance, strategies for effective allocation of SAG/AFTRA payments, and other tools to protect the brand and help keep costs down.

Preventing Consumer Complaints and Chatter from Amplifying into the Roar of Litigation
Christie Grymes Thompson will examine how consumers’ use of media – from formal complaint databases to informal social media – can affect brands and trigger regulatory and legal actions. The panel, including Jason Levine, Chief Counsel to Commissioner Adler at the Consumer Product Safety Commission and Maria Votsch of Sprint, will share case studies of how consumer accusations can prompt actions from the FTC or State AGs, as well as consumer class actions – and what you can do about it.

Luncheon

Matt Silverman, Editorial Director of Mashable, will provide an entertaining look at big wins and epic fails in social media campaigns.

When Peril is at its Peak: Advertising, Privacy and Vulnerable Audiences
William C. MacLeod will moderate a discussion about the heightened risks and sensitivity of advertising to special groups, including children. C. Lee Peeler, President and CEO, Advertising Self Regulatory Council, Elaine D. Kolish, Vice President and Director, Children's Food and Beverage Advertising Initiative, and Ellen Blackler, VP Global Public Policy at The Walt Disney Company will share cautionary story tales.

#Ad #Spon #Samp: Avoiding Bumpy Social Media Roads You Don’t Want to #Follow
Moderated by Gonzalo E. Mon, this session will explore how advertising rules apply in social media and the key considerations when using customer endorsements and managing online promotions. Jill Samuels, Assistant General Counsel at AOL and Tom Chernaik, CEO of CMP.LY and co-chair of the WOMMA Members Ethics Advisory Panel, will discuss the risks and rewards of social media marketing. Mary Engle, Associate Director of the FTC Division of Advertising Practices, will discuss how advertisers can keep endorsement, testimonial, and other digital ads in compliance.

Concurrent Breakouts:

View from the Left Coast: Trends in California Consumer Class Action Litigation and What’s Next on the Horizon
Plaintiff’s attorney Donald Beshada will discuss selected issues in California advertising and consumer protection litigation.

A Second Helping of Class Actions: The Food and Consumer Health Product Industries Serve Up Lessons for All Advertisers
Food and consumer health products are increasingly the target of class action litigation over health advertising claims and package labeling. Sarah Roller will extract from these trends valuable insights for marketers across industries.

Taking Heat for the Conduct of Others: How Recent Developments in the Law of Third Party Liability Are Creating Big Headaches for Big Brands
John J. Heitmann and Lauri Mazzuchetti will address how recent changes to Do Not Call requirements, interpretations on third party liability, and the patchwork of evolving state requirements are causing big headaches for companies who telemarket – and those who don’t but have signature brands that are marketed by others.

What’s in a Claim? Top 10 Thorny Issues in Advertising Claim Substantiation
In this quick take, Dana B. Rosenfeld will count down ten common advertising claims that present tricky issues for marketers. This session will discuss use of “up to,” “risk free,” before and after consumer testimonials, natural and organic claims, among others, to help you stay out of the weeds. Satisfaction guaranteed.

General Session:

Closing Remarks
Lewis Rose will conclude the day by providing an outlook on advertising, privacy, and consumer protection risks and opportunities on the horizon for the latter half of 2013 and 2014.

Cocktail Reception


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Kelley Drye & Warren LLP Faculty

Jodie Z. Bernstein, Former Director, FTC Bureau of Consumer Protection

Alysa Z. Hutnik, Law360 Rising Privacy Star; Past Chair, ABA Antitrust Section, Privacy and Information Security Committee; Past Chair, ABA Section of Antitrust Law Consumer Protection Conference

John E. Villafranco, 2011 Best Lawyers D.C. Advertising Lawyer of the Year; Co-Editor of the ABA’s Consumer Protection Law Developments treatise; Past Chair, ABA Antitrust Section, Consumer Protection Committee; Past Chair, ABA Section of Antitrust Law Consumer Protection Conference

August Horvath, Co-Editor of the ABA’s Consumer Protection Law Developments treatise; ABA Antitrust Section, Council Member

Christie Grymes Thompson, Chair of Kelley Drye’s Advertising & Marketing and Consumer Product Safety Practices; Chair, ABA Antitrust Section, Consumer Protection Committee

William C. MacLeod, Former Director, FTC Bureau of Consumer Protection; 2013 Best Lawyers D.C. Advertising Lawyer of the Year; former Consumer Protection Officer, ABA Antitrust Section

Gonzalo E. Mon, 2012 Best Lawyers D.C. Advertising Lawyer of the Year

John J. Heitmann, Chair of Kelley Drye’s Communications Practice; Co-Chair, Federal Communications Bar Association Privacy and Data Security Committee

Lauri Mazzuchetti, New Jersey Super Lawyers’ Rising Star; lead counsel in several pending key TCPA/TSR cases

Sarah Roller, Chair of Kelley Drye’s Food and Drug Law Practice, Member of the Institute of Medicine of the National Academies (IOM) Food Forum

Dana B. Rosenfeld, Chair of Kelley Drye’s Privacy & Information Security Practice; Former Assistant Director, FTC Bureau of Consumer Protection

Lewis Rose, Kelley Drye DC Office Managing Partner; Former FTC Attorney Advisor