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The Best Way to Involve Agency Related Entities on Client Business

28 Jan

dreamstime_s_137202250Four of the world’s largest agency holding companies account for over $47 billion of advertising spending. Each has dozens of agency brands, specialty service firms and media procurement, marketplace and or platform providers.

Part of the success of the agency holding companies in fueling organic revenue growth in recent years has been their ability to involve these specialists on their branded agencies client businesses.

The use of affiliates is certainly advantageous for the holding companies and can be beneficial for clients seeking to have a coordinated, comprehensive marketing communications program administered by a lead agency.

While there may be efficiencies that accrue to advertisers, unchecked there is an equal likelihood that they may be paying a premium for the use of agency related parties. Why? Because affiliate goods and services are often proffered without client knowledge or consent and may not have been competitively bid to determine value relative to marketplace alternatives. Further, affiliate remuneration is often blind to advertisers and can take the form of non-transparent, unauthorized mark-ups applied in addition to the fees and commissions paid to the lead agency.

Many client/ agency agreements have specific guidelines for agencies seeking to involve related parties (whether the guidelines are followed), others don’t even address this important area.

The best approach for agencies seeking to engage affiliate companies is “full disclosure.” This means notifying the advertiser in writing of the opportunity to deploy theses resources on their business, specifying the nature, scope and cost of the work or product to be accessed and being clear on how the affiliate(s) is to be compensated.

Unfortunately, in actual practice, advertisers often have no visibility into the involvement of agency related parties on their business. This is not an approach that we would advocate because it can fly in the face of an agency’s fiduciary responsibility to its clients. Further, when advertisers learn of some of these arrangements it can lead to an erosion of trust and or confidence in the agency’s intentions and their responsibility to provide unbiased advice that is in the best interest of its clients. As it has been said: “a single lie discovered is enough to create doubt in every truth expressed” and no agency should want to raise the specter of doubt with any client.

Sound contract language regarding the agency “supplier group,” the process for involving related parties, their obligations under the agreement and the attendant level of compensation can go a long way in mitigating these concerns. This creates the opportunity for a proverbial “win-win” situation where both advertiser and agency can truly benefit from this practice.

Advertisers: What is Your Line of Sight into Your Ad Agency’s Use of Affiliates?

23 Aug

Line of SightDo your client-agency agreements require your agency partners to disclose their use of related parties? To secure your permission prior to engaging affiliates? To document how those affiliates are compensated?

If so, then you are in a better position than many. At a minimum, testing for agency compliance to such contractual requirements is an option that you can pursue. If not, the level of work being channeled to related parties by your agency may surprise you.

In our contract compliance and financial management audit practice, it is not uncommon to see 5 to 7 different related parties engaged by an advertiser’s agency. Examples of services provided by affiliates include items such as barter, programmatic buying, direct response TV, event marketing, principal-based buying and ad serving. Yet, oftentimes these affiliates and the manner in which they are compensated are not known to the advertiser.

Why should an advertiser care? For one, if work is assigned to an agency affiliate without undergoing a competitive bid process, what assurance can the advertiser have they are not being charged above-market rates? Secondly, the added profitability by recommending certain affiliates, such as those engaging in the procurement and resale of media inventory through principal-based buys or barter, could adversely influence an agency’s recommendations to the advertiser. And to compound matters, if said affiliates are also applying non-disclosed mark-ups to the media inventory procured or services provided, how can an advertiser fairly assess whether the total fees the agency is generating from its business are commensurate to the services being delivered?

Thus, it is important to revisit contract language to ensure that the following controls are in place:

  • Principal-Agent language that requires the agency’s fiduciary responsibility is to the advertiser and that all decisions and actions are undertaken in a manner that maximizes benefits to the advertiser.
  • Require the agency to disclose any and all related parties that it intends to deploy on the advertiser’s behalf and to secure the client’s prior written approval. Requiring quarterly updates to this list would provide an added layer of protection.
  • For instances where principal-based buys, barter or other non-disclosed transactions are being considered, require a double opt-in process:
    • The first step would be a formal letter of notification from the agency to be signed by the advertiser granting permission.
    • Secondly, any purchase authorization form presented by the agency to the client for approval should reiterate the agency’s intent in this area.

With these agreement guardrails in place, advertisers can further protect their interests by periodically auditing the agency to validate compliance and verify the accuracy of charges made by and or for related party activities.

Ultimately, this approach will allow an advertiser to leverage the full breadth of its agency partner’s resource offerings in a very transparent manner, providing comfort that its agency’s practices are aligned with its expectations.

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