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2012 ANA Advertising Law & Public Policy Conference

This event is over.

As the digital revolution continues and marketers flock to find the Internet Nirvana, traditional media still thrives and presents its own set of issues. Without question, however, both digital and traditional media are undergoing dramatic changes. Risks are increasing and the quest to measure returns remains fleeting. To succeed, today's legal and regulatory executive must know the cutting edge issues and solutions. ANA's annual Advertising Law & Public Policy Conference is the conference that delivers that essential information. Attendees will hear from the important regulators that influence the legal and political climate for advertising and marketing. Additionally, our slate of speakers from top law firms and leading client side marketers will bring the latest insights on how to navigate the turbulent waters of our industry. Join us to hear the latest from Congress and the regulatory agencies, developments on self-regulation, an update on Internet domain names and your brands… and more.

Continuing Legal Education (CLE) credit will be provided.

Conference Program Co-Chairs:
Dan Jaffe
Group Executive Vice President, Government Relations
ANA

Doug Wood
Partner, Reed Smith LLP
ANA General Counsel

When
Begins:Wednesday, March 28, 2012 at 7:30am
Ends:Thursday, March 29, 2012 at 4:20pm
Where

Four Seasons Hotel
2800 Pennsylvania Ave NW
Washington, DC 20007

The ANA has negotiated a special room rate of $345/ night, the reservation cut-off date for the hotel is Tuesday, March 6, 2012, after which prevailing rates apply.

Please call (202) 342-0444 and mention the Association of National Advertisers when making the reservation.

Please visit Four Seasons Hotel Washington DC.

The closest airport to the hotel is Ronald Reagan Washington National Airport (DCA).

Agenda

Wednesday, March 28, 2012

7:30am

Breakfast sponsored by Davis & Gilbert

WELCOME
Ron Urbach
Chairman and Co-Chair, Advertising, Marketing and Promotions Practice
Davis & Gilbert, LLP

8:30am






































General Session

OPENING REMARKS

WHAT'S ON THE CUTTING EDGE IN WASHINGTON

2012 is shaping up to be a pivotal year in Washington, with an election that will have dramatic consequences for the legislative, regulatory and legal direction of the country.  This session will cover what to expect from Congress and the agencies before everyone enters campaign mode, including an update on the IWG guidelines to restrict food and beverage advertising to children, the changes to children’s privacy rules, the industry response to online piracy, and the controversial move by ICANN to open up the top level domain space.

Dan Jaffe
Group Executive Vice President, Government Relations
ANA
_____________________________________

THREE MINUTE DRILL
Join us for a panel of lawyers – in-house and out – where they only have three minutes to answer a blistering pace of questions. This session will start the conference off with a broad perspective of the many issues facing the industry today – from privacy to litigation to unions to regulation to the First Amendment – to just about every risk that keeps you awake at night.

Moderator:
Douglas J. Wood
Partner

Reed Smith LLP

Panelists:
Felix Hofer
Founding Partner
Hofer Lösch Torricelli

Candice Kersh
Partner
Frankfurt Kurnit Klein & Selz PC

Damaso Pardo
Partner
Perez Alati, Grondona, Benites, Arnsten & Martinez De Hoz

Amy R. Mudge
Partner
Venable LLP

Sarah Stuart
Associate General Counsel
Reebok International Ltd.
_____________________________________

Breakout Session I (choose one):

A.  A GLOBAL VIEW OF ONLINE BEHAVIORAL ADVERTISING
Behavioral advertising is a critical tool for marketers as advances in digital tracking have made targeted marketing more effective than ever before. However, it has also spawned a much needed self-regulatory regime to thwart off regulatory intrusions. Hear from those on the global forefront of OBA's cutting edge issues.

Moderator: 
Carla Michelotti
Executive Vice President and Chief Legal, Government, Corporate Affairs Officer
Leo Burnett Worldwide

Panelists: 
Genie Barton
Vice President and Director, Online Behavioral Advertising Program and Mobile Marketing Initiatives
Council of Better Business Bureaus (CBBB)

Amy Mushahwar
Associate
Reed Smith LLP

Mike Zaneis
Senior Vice President & General Counsel
Interactive Advertising Bureau (IAB)
_____________________________________

B.  TO BE OR NOT TO BE…A COMMERCIAL
The debate is underway and going to get a lot hotter before the current collective bargaining agreements with SAG and AFTRA expire in March 2013. While there will be many issues on the bargaining table, one of the most important will be whether the current definition of a commercial should be changed and whether more digital content will be captured as covered media. The advertising industry will most certainly resist such change as much as the unions will want it. That makes for a very volatile negotiation. Learn from the experts so you'll know if your production is on the cutting edge or the cutting room floor.

Stacy Marcus
Associate
Reed Smith LLP

Allan Linderman
President
The Linderman Media Group

_____________________________________

General Session (cont.)

THE INTERNET OF TOMORROW - TODAY

We all live in a world where IP based communications and transactions are growing at a pace few among us can comprehend. In barely twenty years, the Internet has changed our lives in more ways than any technology in history – and it's not slowing down. In this session, hear what the future holds. Esther Dyson, Internet visionary and the first Chair of ICANN and Sarah Deutsch, counsel at Verizon, will discuss the ICANN top level domain issue and the many opportunities and challenges that lie ahead for marketers in reaching their customers and in protecting their goodwill. The session will be interactive and take questions from the audience. While you might not comprehend it all, you'll hear it from those who do and who will leave you with lots to think about.

Moderator:
Juliana Gruenwald
Staff Writer
National Journal

Panelists:
Esther Dyson
Chairman, EDventure Holdings
Founding Chair, ICANN

Sarah Deutsch
Vice President and Associate General Counsel

Verizon Communications
_____________________________________

12:35pm Luncheon sponsored by Frankfurt Kurnit Klein & Selz PC

Rick Kurnit
Partner
Frankfurt Kurnit Klein & Selz PC

1:45pm



















































































General Session (cont.)

COMMERCIAL SPEECH AND THE NANNY STATE:  CAN THE GOVERNMENT CONTROL SPEECH FOR OUR OWN GOOD?
The U.S. Supreme Court and lower federal Courts are handling a number of cases of vital importance to advertisers. Last Term's decision in Sorrell v. IMS Health Inc. established that the First Amendment protects gathering data to craft commercial messages and government efforts to "tilt" the marketplace of ideas are subject to heightened scrutiny. The Court's decision in Brown v. Entertainment Merchants Assn. held that the First Amendment bars efforts to restrict marketing video games to minors. Lower courts are now wrestling with whether the FDA can require lurid graphic warnings on cigarette packages and in advertising. The outcome will determine not just whether tobacco companies can be compelled to vilify their own products, but the extent to which other products and services can be forced to carry the government's messages. Robert Corn-Revere of Davis Wright Tremaine LLP and Richard Samp of the Washington Legal Foundation, who have been helping fight these battles, will discuss the current state of the commercial speech doctrine.

Robert Corn-Revere
Partner
Davis Wright Tremaine LLP

Richard Samp
Chief Counsel
Washington Legal Foundation
_____________________________________

Breakout Session II (choose one):

A.  RULEMAKING WITHOUT RULES
Federal government agencies have relied increasingly on agency advisory memoranda, along with guidances and other instructions to parties subject to agency laws as a means of interpreting the statutes governing the agency or department. A recent example is the set of guiding principles issued by the Interagency Working Group (IWG) on food marketed to children, comprised of the FTC, USDA, FDA and CDC. Additionally, the FDA for a number of years has offered guidances to pharmaceutical companies on compliance with agency policy, particularly with regard to interpretation of the boundaries of direct-to-consumer advertising. The use of these informal statements of policy is being substituted for formal or informal rulemaking by agencies pursuant to the Administrative Procedure Act. This session will explore the questions raised about the ability of private parties to challenge these policy statements and statutory interpretations in the courts and the sanctions that may be applied to affected parties.

Jim Davidson
Chair, Public Policy Practice Committee and Managing Partner
Polsinelli Shughart PC

Mary Catherine Toker
Vice President, Government and Public Affairs

General Mills, Inc.
_____________________________________

B.  SURVEY SAYS:  WHO CARES?
The Third Circuit Court of Appeals recently held that a court may refuse to consider survey evidence of consumer deception where “the meaning of a factually accurate and facially unambiguous statement” is clear in light of the context in which it is presented, such that no reasonable consumer could be misled by the challenged advertisement. In so ruling, the court joined the Seventh Circuit as the only federal appellate courts to hold that survey evidence cannot be used to challenge unambiguous advertising claims. This panel will analyze the impact of this emerging trend in the appellate courts on Lanham Act challenges, and also address recent developments in traditional survey evidence used in the vast majority of false advertising litigation involving challenges to implied claims. The panel also will proffer a survey that really matters:  one canvassing significant developments in Lanham Act litigation and at the National Advertising Division (NAD) over the last year.

Norman C. Simon
Litigation Partner
Kramer Levin Naftalis & Frankel LLP

Paul Franz
Vice President and General Counsel, Global Commerce, Legal
The Procter & Gamble Company

_____________________________________

General Session (cont.)

THE FUTURE OF INTERNET GOVERNANCE
Controversy reigns over who, or what entities, if any, should oversee the Internet. This fact was made dramatically evident when Congress attempted to intervene in the thorny issue of Internet piracy with the Stop Online Piracy Act (SOPA) and its Senate sibling, the Protect IP Act (PIPA). These bills sought to establish new means to cut off sources of revenue to websites that traffic in infringing and counterfeit goods, and sought to make such sites harder to access. Important segments of the Internet community had a number of issues with the legislation, which they saw as potentially stifling innovation – and even a path to government censorship of online material. Some websites went dark in protest for 24 hours and others used their websites to draw attention to the issue.  Congress subsequently shelved the legislation at least temporarily in light of the public outcry. These types of issues surrounding who should carry out Internet governance are likely to proliferate. Two top experts on Internet governance issues will bring their differing perspectives to this critical ongoing debate. 

Sandra Aistars
Executive Director
Copyright Alliance

Markham Erickson
Executive Director, Open Internet Coalition
Founding Partner, Holch & Erickson LLP
_____________________________________

ADVERTISING CAMPAIGNS GONE GLOBAL
Advertisers, and their competitors, are increasingly launching advertising campaigns on a global basis, both in traditional and in online media. Representatives from the Global Advertising Lawyers Alliance from around the world will discuss the critical compliance issues that must be addressed to ensure a successful launch, the most common mistakes advertisers make when launching globally, and emerging hot button issues around the world. The panel will also address how to think to think about advertising challenges on a global basis, including choosing the best forum for an advertising challenge.

Moderator:
Jeffrey A. Greenbaum
Frankfurt Kurnit Klein & Selz PC
USA

Panelists:
Brinsley Dresden
Lewis Silkin LLP
United Kingdom

Jenny Pienaar
Adams & Adams
South Africa

Valdir Rocha
Verano Advogados
Brazil

Sharad Vadehra
Kan & Krishme
India

5:30pm Conference Adjourns


Thursday, March 29, 2012

7:30am

Breakfast sponsored by Extreme Reach, Inc.

WELCOME
Tim Hale
Chief Talent Officer
Extreme Reach, Inc.

8:35am

OPENING REMARKS

KEYNOTE ADDRESS

Randall R. Rader
Chief Circuit Judge

United States Court of Appeals for the Federal Circuit
_____________________________________

KEYNOTE ADDRESS

Julius Genachowski
Chairman

Federal Communications Commission
_____________________________________

Breakout Session III (choose one):

A.  ARE CLASS ACTIONS ENTERING AN ENLIGHTENED ERA? 
In the past four years, there has been an absolute sea of change in class action law. In the past, we heard about cautionary tales focusing on the risks in litigation -- liability, bad publicity, drain on the time of senior management, and more. But now, while all of these risks are still present, the law in the major battleground states may have turned decidedly in the defendant's favor. Hear what's on the cutting edge and how to obtain dismissals of spurious class action suits at an early stage. 

Lawrence Weinstein
Partner
Proskauer Rose LLP

Thomas E. Gilbertsen
Partner
Venable LLP
_____________________________________

B.  MANAGING MARKETING SERVICE AGREEMENTS AND RELATIONSHIPS IN THE DIGITAL WORLD
Master service agreements contain provisions that impose comprehensive liability on marketing service agencies. In the digital world, without an exclusive advertising agency responsible for all of your marketing, do these provisions really work or do they create a false sense of security on the part of advertisers? Are they fair?

This panel will discuss some of the more vexing problems that are implicated in the new digital world in which everyone is an advertiser. It will discuss the roles of procurement, compliance, marketing and in-house counsel in the agency-client relationship. It will explore social media and the issues that arise from its use. It will discuss processes and agreements that encourage an open dialogue with the legal department and policies that can truly reduce the risk of problems arising. Some of the specific topics will include social media policies, complying with endorsement guidelines, clearance issues, consumer generated content, substantiation, indemnifications and liability and “patent trolls,” and finally, best practices for working with your agencies and their counsel.

Candice Kersh
Partner
Frankfurt Kurnit Klein & Selz PC

Anna-Lisa Corrales
General Counsel and Secretary
Jaguar Land Rover North America, LLC

_____________________________________

General Session (cont.)

REGULATION GETTING CLINICAL

A number of FTC and NAAG investigations and accompanying class actions made headlines this past year. Two that offer excellent case studies involved marketing giants Dannon and Reebok, companies with stellar brand reputations. Yet each became the target of regulatory and class actions that were settled for over $20 million each. This session, presented by the lawyers – inside counsel and outside counsel – who were on the ground in those two cases will explain how the cases were settled and what those settlements mean for the entire marketing community, particularly with respect to clinical study testing standards that some say were unprecedented in FTC cases.  This is a session that provides an inside look at FTC cases with major bottom-line implications.

Nancy Dowling
General Counsel
The Dannon Company, Inc.

Randal M. Shaheen
Partner
Venable LLP

Sarah Stuart
Associate General Counsel
Reebok International Ltd.

Douglas J. Wood
Partner
Reed Smith LLP
_____________________________________

12:25pm Luncheon sponsored by Reed Smith
1:35pm General Session (cont.)

KEYNOTE ADDRESS

FTC Commissioner Julie Brill will discuss cutting edge issues on the frontiers of advertising and consumer protection. Her keynote will include a discussion about online behavioral advertising, including efforts by the advertising industry and others to develop a Do Not Track mechanism; unique challenges presented to advertisers and consumers in the mobile environment; innovations in consumer protection for children’s advertising; and self-regulatory and NGO efforts to improve online marketing innovation.

Julie Brill
Commissioner
Federal Trade Commission

_____________________________________

Breakout Session IV (choose one):

A.  CRIME AND PUNISHMENT UP CLOSE AND PERSONAL
While we all marvel at the new reality we cope with everyday, many have not noticed that the long arm of criminal law is increasingly reaching into marketers’ boardrooms and in-house counsel. As advertising and marketing counsel, you do need to worry about criminal law. This session provides a view of cutting edge problems and solutions that every consumer marketing practitioner needs to hear and heed.

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

James Williams
Attorney
General Motors Company
_____________________________________

B.  A GLOBAL VIEW ON PRIVACY
Privacy is now the topic du jour.  From this side of the Atlantic to the European Union, everyone is discussing privacy matters regarding the collection and use of data both locally and across borders by advertisers and others.  These discussions build on prior regimes and also seek to address innovative advances in data use in the 21st Century.  One such significant modern data use is online behavioral advertising, which is the subject of another panel.  Join our distinguished panel of professionals at the forefront of these issues as they discuss recent privacy developments, including the release of the Obama Administration’s “Consumer Data Privacy in a Networked World” privacy framework, the Federal Trade Commission’s upcoming privacy report, and the European Commission’s “General Data Protection Regulation” that seeks to replace the 1995 EU Data Protection Directive.
 
Stuart Ingis
Partner
Venable LLP

Peter A. Rabinowitz
Chief Privacy Counsel
American Express Company

Karen Zacharia
Chief Privacy Officer
Verizon Communications

_____________________________________

General Session (cont.)

PULLING IT ALL TOGETHER

This closing panel will pull it all together for attendees with a hypothetical that will encompass the numerous issues that individual sessions covered and then some - all with the aim of putting the panelists on the spot to tell you what they'd do to protect their clients and brands. 

Moderator:
Susan M. Richey
Professor of Law
University of New Hampshire School of Law

Panelists:
John Feldman
Partner
Reed Smith LLP

Jeffrey A. Greenbaum
Partner
Frankfurt Kurnit Klein & Selz PC

Randall M. Shaheen
Partner
Venable LLP

Lawrence I. Weinstein
Partner
Proskauer Rose LLP

Uri Weinstock
Partner
Weinstok Abogados

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

Başak Gürbüz
Associate
Mehmet Gün & Partners

Nancy Felsten
Partner
Davis Wright Tremaine LLP

4:20pm Conference Ends

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