BREAKOUT 1A: BASICS OF ADVERTISING LAW

This session will provide an introduction to key topics in advertising law that both lawyers and marketers should know. The panel will discuss things like how to determine what claims are conveyed in an ad, how to substantiate different types of claims, and how to make effective disclosures. For each topic, the panel will provide an overview of the key legal requirements, show examples of ads that were challenged, and leave you with tips to help you stay out of trouble.

Gonzalo Mon

Partner Kelley Drye & Warren LLP

BREAKOUT 1B

BREAKOUT 1C: THIRD-PARTY WIRETAPPING, VPPA, AND DEANONYMIZATION LITIGATION: A MOVING TARGET FOR BRANDS

While California has always been a hotbed of privacy-related litigation, in the past year, a group of creative Plaintiff’s counsel have spawned dozens of lawsuits related to website functionality related privacy claims.  The first wave focused on claims that certain “pixels” were placed within the source-code of websites that allowed companies to collect data related to users of their websites.  These were closely followed by a second wave, focusing on the use of chat functionality to similarly gather data about customers visiting a website.  The most recent wave combines these theories with an alleged “dark web” motive; i.e., the use of tools also present in the source code of websites to deanonymize a websites visitors.  The litigation is industry agnostic and efforts to defeat these cases at an early stage have been a mixed bag.  We will discuss some of the trends in these cases, the successful and unsuccessful defenses, and best practices to avoid being the next target.

Moderator: Jason Stiehl

Partner Crowell & Moring LLP

BREAKOUT 1D: ETHICS

Jessi Tamayo

Director of Externship and Lecturer University of Miami School of Law

BREAKOUT 2A: ACTIVATION THROUGH PRIZES: A MODERN LOOK AT THE LAW OF SWEEPSTAKES AND CONTESTS

There are few things as iconic to the promotion marketing area than the offer of prizes in connection with the sale of goods and services.  Drawing from decades of experience with prize promotion jurisprudence, this panel will focus on the ways prizes and awards are used today to drive sales, attention, and social capital for the benefit of brands.

John Feldman

Partner Reed Smith LLP

BREAKOUT 2B: FTC REMEDIES 2 YEARS AFTER AMG

Len Gordon

Partner Venable LLP

BREAKOUT 2C: HEY KIDS! THIS IS ADVERTISING! (…AND PRIVACY!)

From CARU to COPPA to Child Influencers, learn how to navigate the rapidly evolving children’s marketing landscape while staying above the law. This session will provide best practices when engaging with children on Roblox, in other online games, and on social media, while also discussing how the long-awaited updated FTC Endorsement Guides as well as shifting state and federal laws impact the future of children’s advertising and digital privacy as we know it.

Allison Fitzpatrick

Partner Davis+Gilbert LLP

BREAKOUT 2D: THE MOUSE IS IN THE HOUSE: A FIRESIDE TALK WITH DISNEY LAWYERS

Walt Disney is an iconic hospitality and entertainment brand.  Come to hear from two of Disney’s lawyers, who will talk about managing the marketing legal function of this complex enterprise, including working with challenging in-house clients and managing outside counsel in this competitive business environment.

Patricia Leonard

Deputy Chief Counsel Walt Disney Theme Parks

BREAKOUT 3A: BUILDING YOUR BRAND BY PROTECTING YOUR TRADEMARKS

Your company’s brand communicates its overall image, reputation, and emotional connection with consumers.  Companies invest enormous resources to create and expand their brand’s customer engagement. To protect this investment, it is critical to secure legal rights in specific brand assets, particularly trademarks, including product names, logos, colors, sounds, and trade dress (i.e., the look and feel of products, packaging, and retail spaces). This session will discuss how counsel can partner with marketing colleagues to strategically select, develop, use, document, and register trademark assets to build and protect the brand’s reputation and market share, and to fend off copycats and counterfeiters.

Lisa London

Of Counsel Finnegan, Henderson, Farabow, Garrett & Dunner LLP

BREAKOUT 3B: IS ALGORITHMIC BIAS AN UNFAIR TRADE PRACTICE?

In April, an interagency group including the FTC, CFPB, EEOC, and DOJ Civil Rights Division issued a statement announcing their intention to use their existing authority address discrimination and bias in automated systems. That statement is one of many recent signs that the FTC and CFPB (and state AGs) are looking to bring an enforcement action alleging that algorithmic bias is an unfair trade practice. This novel legal position has wide-ranging implications. Companies rely on algorithms not just to make credit, employment, and housing decisions that are covered by specific civil rights laws, but to make myriad other decisions about advertising, pricing, offers, and eligibility related to a range of goods and services – all of which could be subject to a disparate impact unfairness action. This panel will discuss the legal basis for this theory of liability and practical advice for how companies can protect themselves.

Frank Gorman

Partner WilmerHale

BREAKOUT 3C: FOOD MARKETING LAW

Mary Ann Wymore

Officer Greensfelder, Hemker & Gale, P.C.

BREAKOUT 3D: FTC AND NAD TACKLE NEXT GEN TECH

The FTC and the NAD have always been at the forefront of confronting the complex issues surrounding how to treat advertising involving emerging technologies. As technologies more quickly iterate, their missions have accelerated. Both bodies have been tasked with quickly analyzing and providing guidance on the marketing and advertising of technologically advanced products and services such as OLED and OTT in TV, and 5G and the evolution of home internet in telecom. At the same time, the use of technology such as AI in the advertising marketplace is a constant, and potentially pervasive, gamechanger. This panel will investigate how regulators confront such new technological developments and how practitioners and advertisers can navigate them

Bezalel Stern

Partner, Advertising, Marketing and Media Practice Manatt Manatt, Phelps & Phillips, LLP

BREAKOUT 4A: ADVERTISING CLAIM SUBSTANTIATION: CHALLENGING COMPETITOR CLAIMS AND SUBSTANTIATING YOUR OWN

Claim substantiation is a bedrock principle of advertising law, and clients constantly ask lawyers “what is enough substantiation?” Advertising lawyers also need to know how to analyze and test competitors’ claims when the business team asserts that they are false. This session will first discuss the basics of substantiating claims, from developing protocols, to conducting testing, to ensuring that the testing actually substantiates the claims the marketing team wants to make. We will then focus on how to analyze and test competitor claims (whether monadic or comparative), competitor products, and how to position a challenge of the competitor’s claims to support your business team. Points of discussion will include, for example, when and what level of substantiation is required? The session will also discuss topics such as defining key advertising terms relative to claims substantiation, such as “reasonable basis” and “competent and reliable evidence”; as well as how much substantiation is needed for different types of claims.

Barry Benjamin

Partner Kilpatrick Townsend & Stockton LLP

BREAKOUT 4B: CONNECTED DEVICES: ADVANCING FROM CONUNDRUM TO CONTROLS

With the complexity of tech partners involved in bringing ad-financed content to a bevy of consumer and business connected devices, there is no shortage of stakeholders to manage toward effective data stewardship including how we communicate transparency and extend and respond to control signals. We examine the industry conundrum of real-time, on-demand privacy notice and control in CTV and connected devices and opportunities to build trust with consumers. Leading stakeholders weigh in on pathways to enlightenment, across the many pathways of data flows, to find our way to better user privacy experiences.

Moderator: Rob Hartwell

Counsel Venable LLP

BREAKOUT 4C: ENDORSEMENTS AND CONSUMER REVIEWS – WHAT’S CHANGED, WHAT’S ON THE HORIZON, AND WHAT YOU SHOULD DO

The Federal Trade Commission has now updated its Endorsement Guides and their accompanying FAQs, and has also proposed a Rule on the Use of Consumer Reviews and Testimonials. What does this all mean in light of the Commission’s agenda and its track record of enforcement actions? This session will highlight what has changed, where the areas of focus for the Commission will likely be, and provide you with helpful, practical guidance on how businesses can future-proof themselves for compliance.

Jim Dudukovich

Counsel Bryan Cave Leighton Paisner LLP

BREAKOUT 4D: SHINING A LIGHT ON “DARK PATTERNS”

Jason Och

Principal and Practice Lead Applied Marketing Science, Inc. (AMS)

BREAKOUT 5A: THEY SAID THAT?! WHAT CAN WE DO ABOUT IT?

Joseph Lawlor

Partner Haynes and Boone, LLP

BREAKOUT 5B: THE IMPACT OF PRIVACY PROTECTIONS ON DIGITAL ADVERTISING

In the 1920s, retailer John Wanamaker famously remarked “Half of the money I spend on advertising is wasted; the trouble is I don’t know which half.” Today, advertisers can profile consumers, micro target ads, measure ROI with precision - even down to brick-and-mortar visits and purchases - and cap ad frequency. Regulators attack these advertising strategies as “surveillance capitalism”. This panel, including Julia Jacobson, Petrina McDaniel, and Shari Piré, Chief Legal Officer, Plume Design, Inc. will examine the tension between privacy and advertising efficiency. Topics include new obligations under the 12 state consumer privacy laws, children and older minors (including California’s Age Appropriate Design Act and state regulation of social media use by minors), AI in the advertising industry, expanded privacy protections for health data, and legal attacks on cookies, session replay and chatbots.

Julia Jacobson

Partner Squire Patton Boggs

BREAKOUT 5C: E-TAILERS & RETAILERS: HOT TOPICS AND RISK MITIGATION

This fast-paced session will cover hot and emerging topics for e-tailers and retailers, including the latest updates about AI, sustainability advertising, influencers, price and sale advertising, recurring subscription (auto-renewal) programs, and dark patterns, as well as best practices for compliance and risk mitigation.

Jason Howell

Co-Chair, Advertising, Marketing & Promotions Practice Perkins Coie LLP

BREAKOUT 5D: SPORTS MARKETING & COLLEGE ATHLETE NIL DEALS

This panel will discuss how college athletes have leveraged changes in state law to monetize their Name, Image, & Likeness and the unique structure that has developed in and around the NCAA when it comes to brands, agents, donors, and athlete compensation.

Dan Lust

Associate Moritt Hock & Hamroff LLP

OPENING REMARKS

AI UNVEILED: DECODING ITS IMPACTS ON ADVERTISING, PRIVACY, IP, AND ETHICAL CHALLENGES

With the advent of “large language models” such as GPT-3 and its successors, AI appears to have taken a quantum leap forward and is poised to reshape many industries in short order. The marketing and advertising industry is no exception — platforms powered by this technology will likely transform the landscape of content creation, audience targeting, campaign optimization, and detection of consumer preferences. This panel will outline the key issues associated with the use of such platforms, including the interplay (and tensions) with existing intellectual property and privacy laws. Legal advisers, marketers and suppliers will learn how to identify and navigate the risks and be provided with pragmatic solutions and contracting tips to help stay on top of developments in this space as it continues to evolve.

Melanie Howard

Deputy Chair, Advanced Media and Technology Loeb & Loeb LLP

SESSION 2

Ron Urbach

Partner/Co-Chair Davis+Gilbert LLP

ADVERTISERS UNDER ATTACK: HOW TO NAVIGATE AN EVOLVING PRIVACY LANDSCAPE

Privacy laws domestically and internationally are impacting the advertising industry. This presentation will address the state of privacy law and how the evolving legal landscape has significantly impacted the advertising industry.  Amidst these changes, there is increasing pressure on existing business models and practices.  The presentation will also address key best practices and specific options to help advertisers to adapt and evolve in light of new privacy legal regimes.

Lynn Parker Dupree

Partner Finnegan, Henderson, Farabow, Garrett & Dunner LLP

EVERYTHING, EVERYWHERE, ALL AT ONCE

Melissa Steinman

Partner Venable LLP

NAVIGATING ENCOUNTERS WITH THE FTC AND NAD IN 2023: DISCUSSING AD NAUSEAM THE TOP 10 SUCCESSFUL STRATEGIES AND THE TRAPS AND PITFALLS

This keynote, which will feature leaders from the FTC and the NAD, will focus on what every practitioner needs to know about FTC and NAD priorities and practice, and the latest developments, cases and rulemakings.

Amy Ralph Mudge

Leader, Advertising, Marketing, and Digital Media Practice BakerHostetler LLP

BREAKOUT 6A: TOP 10 TECHNOLOGY LAW ISSUES FOR ADVERTISING LAWYERS

Hannah Taylor

Partner, Co-Chair, Advertising, Marketing & Public Relations Group Frankfurt Kurnit Klein & Selz PC

BREAKOUT 6B: TOP 5 SUSTAINABILITY MARKETING TRENDS EVERY IN-HOUSE LAWYER NEEDS TO KNOW ABOUT

This panel will feature diverse perspectives from industry veterans and the National Advertising Division (NAD). Our panelists will examine regulatory and litigation trends in environmental marketing claims, disclosures and substantiation, as well as the impact of the FTC's ongoing Green Guides review.

Laura Kim

Partner, Chair, Advertising and Consumer Protection Practice Covington & Burling LLP

BREAKOUT 6C: 5 THINGS YOU CAN DO TODAY TO DIMINISH YOUR COMPANY’S CLASS ACTION LITIGATION RISK

Whether in the realm of false advertising or privacy, consumer class actions continue to be filed in ever-increasing numbers. And the vast majority of these cases are filed by the same core group of plaintiffs’ lawyers who often target the same brands over and over. Many brands have accepted this frustrating reality as a cost of doing business. But there are steps that brands can take to decrease their risk of being targeted and position cases for early dismissal or a beneficial resolution. For example, by staying on top of case trends where the plaintiffs’ bar is particularly active, brands can adapt their marketing strategy to make themselves less of a target. And knowing the plaintiffs’ bar and their goals and strategies, and responding aggressively (whether pre-suit or in the defense of a filed case), is essential to effectively getting rid of this case and avoiding the next one. This session covers these and other strategies to help you avoid your next encounter with the plaintiffs’ bar. 

Jeff Warshafsky

Senior Counsel Proskauer Rose LLP

BREAKOUT 6D: SPONSORSHIP AGREEMENTS/BRAND PARTNERSHIPS

Speaker TBA

Frost Brown Todd LLP

BREAKOUT 6E: HOW DO YOU DO, FELLOW KIDS: TWO GERIATRIC MILLENNIALS EXAMINE SUCCESSFUL GEN Z ADVERTISING

Memes, viral videos/audio clips, joining the conversation... How do you successfully drive a brand strategy that appeals to a younger audience while maintaining sight of foundational principles of advertising law? In this session, we’ll look at a successful brand marketing story (Slim Jim) and talk about strategies for mitigating risk while maintaining appeal to Gen Z across the platforms that matter.

Libby O'Neill

Partner Loeb & Loeb LLP

BREAKOUT 7A: LIONS AND TIGERS AND BEARS - OH MY!

Speaker TBD

SafeGuard Privacy

BREAKOUT 7B: HOT TOPICS IN ENVIRONMENTAL MARKETING AROUND THE WORLD

This panel from the Global Advertising Lawyers Alliance (GALA) will discuss how green marketing is catching the attention of regulators and self-regulators around the world. In this session, the panel will cover the latest rules, self-regulatory guidance, and cases on environmental marketing claims from a global perspective.

Moderator: Jeffery Greenbaum

Managing Partner Frankfurt Kurnit Klein & Selz PC (USA)

BREAKOUT 7C: NAVIGATING CALIFORNIA’S RETAIL LEGAL LANDSCAPE: GREENWASHING, WIRETAPPING AND BEYOND

A must-see for any retailers selling to consumers in California, this panel will provide a “from the trenches” look at the biggest legal issues emerging from California and spreading nationwide, including greenwashing/PFAS laws and litigation, public enforcement task forces, new developments in price advertising, wiretapping claims, and more. We’ll run through the risks – both current and those looming on the horizon – and arm you with the tools you need to survive in the ever-changing consumer battleground.

Stephanie Sheridan

Chair Benesch, Friedlander, Coplan & Aronoff, LLP

BREAKOUT 7D: SWIPING RIGHT WITH ANOTHER BRAND: PRACTICAL TIPS AND TRICKS FOR JOINT MARKETING ARRANGEMENTS

Kraig Baker

Partner Davis Wright Tremaine LLP

BREAKOUT 7E: STRATEGIES FOR MINIMIZING LITIGATION AND REGULATORY RISKS WHEN MAXIMIZING NEW AND EMERGING MARKETING TECHNOLOGIES, INCLUDING ADTECH AND AI

Technology continues to transform the advertising landscape as companies increasingly turn to AdTech and generative AI to support their business growth and marketing efforts. However, the growing use of these technologies has led to a watershed of class action litigation and regulatory scrutiny likely to shape how marketers can use these technologies in the future. Join us for an update on the hottest litigation and regulatory trends involving AdTech and AI, and learn practical and innovative strategies to share with your marketing clients to help reduce the current risks.

Linda Goldstein

Partner BakerHostetler LLP

BREAKOUT 8A: GEN AI: INTELLECTUAL PROPERTY DEEP DIVE FROM FIRST-CHAIR IP LITIGATORS

Whether you are considering IP litigation landscape of the future or negotiating a complex tech transaction, you need to understand the IP lay of the land when it comes to Gen AI. How may AI models be used and trained? What are the IP licensing pitfalls? Who owns AI-powered works? What will contributory liability look like in the age of AI-powered platforms and marketplaces? The session will do a deep dive into the IP issues every marketing lawyer should be aware of when it comes to using Gen AI tools. From protectability to key infringement risks to practical advice on negotiating deals and licenses, the session is meant to enhance your Gen AI toolbox.

Anna Naydonov

Partner White & Case LLP

BREAKOUT 8B: ASPIRATIONAL ESG ADVERTISING – HOW TO MEAN WHAT YOU SAY, AND SAY WHAT YOU MEAN

More and more companies are making a commitment to reduce their environmental impact, and understandably want to let consumers know about their efforts and goals. But as recent legal challenges and decisions illustrate, when it comes to ESG aspirational advertising, good intentions are not enough. This presentation explores the dos and don’ts of aspirational ESG advertising, with practical guidance on setting science-based targets with measurable metrics, and examples from companies that are doing it right.

Merrit Jones

Counsel Bryan Cave Leighton Paisner LLP

BREAKOUT 8C: ADVERTISING LITIGATION IN THE TELECOM & CONSUMER GOODS INDUSTRIES: FROM 5G TO 5X

This breakout will cover trends in advertising litigation gleaned from NAD, consumer class action and Lanham Act cases in the telecommunications and consumer goods categories in the last year, from claims of network speed and reliability, to quantified product performance claims. The panel will include insights from in-house lawyers at T-Mobile and P&G.

Norman C. Simon

Partner, Chair, Advertising Litigation Kramer Levin Naftalis & Frankel LLP

BREAKOUT 8D: ACCEPTING ADS FOR HIGHLY REGULATED INDUSTRIES: THE MEDIA COMPANY PERSPECTIVE

This panel will discuss key considerations for media companies when deciding whether to air ads for highly regulated industries, such as real money gaming, gambling, cryptocurrency, and CBD.

Ben Mulcahy

Partner DLA Piper

BREAKOUT 8E

OPENING REMARKS

HOW TO MOVE THE NEEDLE OF PRIVACY COMPLIANCE WITHOUT REALLY TRYING*

New privacy laws and regulations are overwhelming us, and of course, you have to try. We will help you make the most of your limited time and resources. What are the most significant compliance obligations you need to address? From children’s protection and enforcement of employment obligations to recent developments in sensitive and health data, we’ll walk through each, highlighting the greatest risks and recent enforcement insights.

Richy Glassberg

Co-Founder & CEO SafeGuard Privacy

"YOUR MAKE UP IS TERRIBLE”: WHAT DRAG QUEENS CAN TEACH ADVERTISING LAWYERS ABOUT IP PROTECTION

An advertising lawyer can learn a ton from drag queens about the law (not to mention life). In this session, we will use the sublime art of drag as our muse to explore IP protection and clearance issues arising from the production of advertising. Topics include protection for characters, choreography, fashion, make-up designs, jokes, tattoos, memes, and other artifacts; clearance issues for live musical performances; and fair use of the detritus of popular culture.

Brian Murphy

Partner Frankfurt Kurnit Klein & Selz PC

UN”AI”VOIDABLE: A LOOK AT INFLUENCER MARKETING BEYOND #AD

By now, everyone is familiar with the FTC’s general rules on influencer content.  While the session will provide an overview of the updated FTC Endorsement Guides, it will go beyond “#ad” to take a deeper dive into the cutting-edge issues relating to influencer marketing.  This practical and highly sophisticated discussion will cover AI implications, IP actions, emerging platforms, performance analytics, equality and transparency, and SAG-AFTRA considerations.

Jason Gordon

Partner Reed Smith LLP

LUNCHEON SPEAKER

Po Yi

Partner, Advertising, Marketing and Media Manatt, Phelps & Phillips, LLP

SESSION 9

SESSION 10

CLOSING REMARKS