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Advertisers: What Does the Department of Justice Know That You Don’t?

19 Oct

FBI LogoIt has been two years since the Association of National Advertisers (ANA) published its blockbuster study on media transparency in the U.S. marketplace. Among the study’s findings were that the use of media rebates paid by publishers to agencies was “pervasive” and that there was a “fundamental disconnect” regarding client-agency relationships and the agencies assumed fiduciary obligation to act in an advertiser’s best interest.

Later that same year, December of 2016, the Department of Justice (DoJ) announced that it was conducting an investigation into the practice of “bid rigging” by agencies for TV and video production jobs. The bid rigging was allegedly being done to favor the agencies in-house production groups over independent production companies. This was done by urging outside production vendors to artificially inflate their bids, creating a reason and a paper trail for supporting the agency’s decision to award the production job to their in-house studio, which coincidentally bid a lower price for the work. At least four of the major ad agency holding companies were subpoenaed as part of this ongoing investigation.

One year after the release of the ANA media transparency study the ANA conducted research among its members that found:

  • 60% had taken “some” steps to address the study’s findings
  • 40% had not taken steps or weren’t sure if their companies had taken action
  • 50%+ of those that had taken steps indicated that had revised agency contract language
  • 20% of those that had taken steps had conducted audits of their agency partners

Given the $200 billion plus in estimated U.S. media spending (source: MAGNA, 2018) and the $5 billion U.S. commercial production market the aforementioned numbers are stunning in that more advertisers have not taken action to safeguard their advertising investment by implementing controls and oversight actions that mitigate risks and improve transparency.

It would appear as though the Department of Justice is taking these matters more seriously than many advertisers. The reason that the DoJ and FBI have undertaken probes of U.S. media buying and creative production bidding practices is quite simple… fraud, price fixing and bid rigging are prohibited under federal law.

The question is; “Why haven’t more advertisers, whose media and production dollars are at risk, been more proactive in constructively addressing these issues with their agency partners?”

The fact that the federal government has determined that it was necessary to launch two separate investigations into U.S. advertising industry practices is a clear signal that marketers should reinvigorate their oversight and compliance efforts. The stakes are high and the risks have not abated since the aforementioned practices first came to light.

If federal investigations into ad agency practices in these areas isn’t enough to spur advertisers to action, perhaps the words of Jon Mandel, former CEO of Mediacom in an interview with Mumbrella following his whistleblowing presentation regarding media agency “kickbacks” at an ANA conference in 2015 will provide the necessary incentive;

Clients need to stop suspending disbelief. The agency is supposed to be a professional providing you with proper advice not tarnished by their own profit. Marketers need to know the limits of that.

 

 

Life in a Post-GDPR World

28 May

GDPR LogoWhat can advertisers posit from the early market indicators in the wake of the May 25, 2018 enforcement of the European Union’s General Data Protection Regulation (GDPR)?

There are three takeaways that would seem to portend the near-term challenges for the ad industry:

  1. Consumers aren’t that interested in allowing companies to use their personally identifiable information to target them, contact them, monitor their online behavior or to profit from the sale of that information.
  2. The advertising industry as a whole was not prepared for the onset of the GDPR.
  3. Limitations on access to consumer data could greatly impair the efficacy of programmatic media.

The results of poll recently announced by TopLineComms found that 41% of those surveyed were “planning to opt out of current email subscriptions” with 82% indicating that they were “concerned about how companies use their data.” Many believe that the news surrounding the recent Cambridge Analytica scandal has helped to fuel consumer concerns about data privacy protection. Either way, consumers increasingly want their privacy protected and both marketers and publishers are going to have to find ways to deal with that concern and the growth in global regulatory actions in this area.

Adopted in April of 2016, the advertising industry had a two-year transition period too ready for the May 25, 2018 date, when the GDPR regulations would become enforceable. Unfortunately, too many companies proved to be lax in their preparations. According to a global study conducted by SAP Hybris, “49% of companies either have no plan for compliance or have not yet implemented one.” Readiness was made more complex because of different regulatory compliance burdens for data controllers and data processors and the role of third-party data processors. Gaining clarity among stakeholders as to who was responsible for what and how they were progressing on their compliance readiness proved challenging at best.

While early in the process, since GDPR went into effect, ad exchanges have seen dramatic drops in ad demand, with exchange volumes dropping up to 40%. According to digiday.com, “some U.S. publishers have halted all programmatic ads on their European sites.” In turn, this has led to a drop in publisher inventory in Europe. Of note, many within the industry are blaming Google for its lack of preparation and the company’s inability to vouch for whether or not its third-party exchange partners were compliant or not heading into May 25th. Unfortunately, Google did not notify advertisers of this issue until May 24th leaving them little “time to change media-buying tactics or inform clients.”

In addition, Google, Facebook and a couple of other internet portals have been hit with complaints and potential legal action by independent consumer advocacy groups over “forced consent,” claiming those entities threatened service cutoffs or restricted access if consumers did not consent to Google and Facebook’s privacy and data usage terms.

Near-term, organizations will have to focus on complying with GDPR. Looking ahead marketers, publishers and ad tech providers will need too ready for the likely expansion of privacy protection regulations to other countries and municipalities (e.g. California Consumer Privacy Act). After all, these new regulations are coming at a time when the importance of data and the value that it plays in an organization’s corporate strategy and marketing efforts has never been more critical. 

Perhaps most importantly, organizations will have to focus on developing sensible solutions to placate consumers that have legitimate concerns about how their personally identifiable information will be used. This is a necessary step if using first-party data to inform audience segmentation decisions, personalize consumer communications and monitor behavior is deemed a critical element in their marketing and content strategies.

Achieving these goals will require ongoing remediation efforts and will involve personnel from many disciplines within an organization. It is for this reason that many firms may turn to appointing a Data Protection “Tsar” to lead their efforts to embellish their consumer privacy protection policies, processes and compliance efforts. Not a bad move for companies that have the means to formalize this function.

In spite of the inauspicious start by many to comply with the GDPR regulations it is never too late to heed the old adage; “Proper preparation prevents poor performance.

 

 

 

 

AARM’s New Privacy Policy

28 May

Contract SigningYour Privacy is Important to Us

Marketers the world over are aware that on May 25th of this year the European Union implemented its new General Data Protection Regulation (GDPR) to enhance consumer privacy protection. As a result of these new regulations, Advertising Audit & Risk Management (AARM) has updated its Privacy Policy

AARM has and will remain committed to protecting your personal information. We believe that our updated policy further reinforces this pledge.

Our new Privacy Policy clearly articulates what information we collect from you, how that information is used and the steps that we take to safeguard your personal information. Please visit our website to review our new Privacy Policy and to gain an understanding of our practices in this important area. By visiting our website after May 25, 2018 you are indicating that you are in agreement with the terms of our updated Privacy Policy.

Best regards,

AARM | Advertising Audit & Risk Management

Lawsuits Expose the Seemly Underbelly of Programmatic Digital

25 Sep

fraudsterAt the rate things are progressing in digital media and programmatic trading, the tenuous relationships between advertisers, agencies, ad tech providers, exchanges and publishers are about to come unglued.

While many in the ad industry have had their doubts about programmatic digital, this sector has grown unabated for the last several years. According to eMarketer in 2014 advertisers invested 28.3% of their ad budget in digital media. Their projection is that this will grow to 44.9% in 2020, likely topping $100 billion in total spend. eMarketer estimates that 80% of U.S. digital display activity in 2017 will be transacted programmatically. 

Interestingly, since 2014 the industry has become much more attuned to the risks encountered by advertisers when it comes to optimizing (or should we say safeguarding) their digital media investment. Yet in spite of the findings regarding unsavory practices emanating from the ANA’s seminal 2016 study on “Media Transparency” advertisers continue to pour an increasing share of their advertising spend into this media channel.

However, not all advertisers are continuing to embrace digital media quite as readily as they once did. A handful of progressives, namely Procter & Gamble, have begun to rethink the share of wallet being allocated to digital media and programmatic trading. Marc Pritchard, P&G’s Chief Marketing Officer, has been very outspoken in summing up his company’s position quite succinctly; “The reality is that in 2017 the bloom came off the rose for digital media. We had substantial waste in a fraudulent media supply chain. As little as 25% of the money spent in digital media actually made it to consumers.”

Given Mr. Pritchard’s comments it has been quite intriguing to monitor the legal developments in two high profile lawsuits that have recently been filed.

In the first case, Uber is suing Fetch Media, its digital agency suggesting that it had “squandered” tens of millions of dollars to “purchase non-existent, non-viewable and/ or fraudulent advertising” on its behalf. Uber has further alleged that the agency “nurtured an environment of obfuscation and fraud for its own personal benefit” and that of its parent company, Dentsu Aegis Network. To be fair, Fetch Media has denied what it says are “unsubstantiated” claims by Uber which it claims is designed to draw attention away from their “failure to pay suppliers.”  Allegations include that the agency acted as agent for Uber in some markets and executed principal-based buys in others and that they earned and retained undisclosed rebates tied to Uber’s media spend.

The second case involves RhythmOne, a technology enabled media company and its partner dataxu, a programmatic buy-side platform/ applications provider. RhythmOne originally filed suit regarding $1.9 million worth of unpaid invoices. Dataxu filed a counterclaim alleging that RhythmOne “used a fake auction to consistently overcharge” them and suggested that RhythmOne also “procured inventory from other exchanges, and then marked it up,” both violations of their partnership agreement. As an aside, for the $1.9 million in payments that dataxu admittedly and intentionally withheld from RhythmOne, going back to January, 2017, it is likely that dataxu’s clients had been billed and remitted payment to them. Which raises questions as to how and when their clients will be made whole.

Of note, both of these lawsuits delve into a range of topical issues that pose risks to most programmatic digital advertisers:

  • Agencies executing principal-based buys, rather than acting as agent for the advertiser.
  • The retention of undisclosed rebates tied to an agency’s use of advertiser funds.
  • Non-transparent fees and mark-ups being tacked on to the actual cost of media inventory by multiple middlemen (i.e. agencies, DSPs, exchanges).

These are issues that advertisers should familiarize themselves with and address through the development of a comprehensive client/ agency contract. In addition, advertisers must vigilantly monitor supplier compliance with the terms of those agreements to insure full transparency and, importantly, accountability when it comes to the stewardship of their digital media investment.

As these two cases highlight it is dam difficult for an advertiser to accurately assess the value of digital inventory that is being proffered on their behalf by their agency and adtech partners. Beyond establishing what percentage of an advertiser’s digital dollar actually goes toward media inventory, these separate, but related legal actions demonstrate that it is not just a lack of transparency that advertisers must worry about, but a lack of ethics. When it comes to programmatic digital media the American artist, John Knoll, may have said it best;

“Any tool can be used for good or bad. It’s really the ethics of the artist using it.”

There are steps that advertisers can take to both safeguard and optimize their digital media investment. If you are interested in learning more, contact Cliff Campeau, Principal of AARM | Advertising Audit & Risk Management at ccampeau@aarmusa.com for a complimentary consultation.

It’s Only Money…

5 Jun

digital mediaThere was one particularly startling revelation that came from the ANA’s recent Agency Financial Management conference in San Diego. During the presentation of this year’s “Agency Compensation Trends” survey results it was noted that the ANA found that almost half of the members it surveyed had not reviewed the findings of the ANA’s 2016 Transparency study.

Think about that. If an organization did not review the Transparency study’s findings, that means that there must not have been any resulting internal dialog with or among marketing’s C-Suite peers, no direct interaction with their agency network partners, no review of existing Client/Agency contracts, no improvements in reporting and controls in which to illuminate how an advertiser’s funds are being managed.

This, in spite of the level of trade media coverage regarding transparency issues ranging from rebates, discounts and media arbitrage, to the Department of Justice investigation into potential ad agency bid rigging practices or the level of ad fraud, traffic sourcing or non-disclosed programmatic fees on both the demand and sell side of the ledger.

There is only one conclusion that can be drawn from this remarkable revelation…many marketers simply don’t care how their organization’s advertising investment is being allocated or safeguarded. Unfortunately, we regularly see the ramifications of this attitude of indifference in our contract compliance audit practice:

  • Client / Agency agreements that haven’t been reviewed or updated in years
  • Failure among clients to enact their contractual audit rights with key agency partners
  • Limited controls regarding an agency’s use and or disclosure of its use of affiliates
  • No requirement for agency partners to competitively bid third-party and affiliate vendors
  • Lack of communication to media sellers regarding ad viewability standards
  • Failure to assert an advertiser’s position on not paying for fraudulent and non-human traffic
  • No requirement for publishers to disclose the use of sourced-traffic
  • Incomplete instructions on buy authorizations to media vendors, minimizing or blocking restitution opportunities
  • Poorly constructed media post-buy reconciliation formats that lack comprehensive information and insights

Interestingly, there have been many positive developments from key industry associations such as the ANA, 4A’s, IAB and public assertions from leading marketers such as P&G and L’Oréal to further inform and motivate marketers on the topic of transparency accountability. Yet, given the materiality of an organization’s marketing spend and the publicized risks to the optimization of its advertising investment, many organizations have not yet taken action, tolerating the risks associated with the status quo. As the noted British playwright, W. Somerset Maugham once said:

Tolerance is another word for indifference.”

The failure to proactively embrace transparency accountability can pose perilous risks to an organization’s marketing budget which in turn directly impacts its company’s revenue. Many would rightly suggest needlessly.

In these instances, the fault for the increased level of attendant financial risk, fraud and working media inefficiencies lies squarely with those companies that have adopted an attitude of indifference toward these very real proven threats. One cannot blame an ad agency, production house, tech provider, publisher or media re-seller for taking advantage of the status quo and acting in manners that, while not in the best interest of the advertiser, are not expressly contractually prohibited.

The good news is that advertisers can address these issues head-on in a quick and efficient manner, mitigating the risks posed by transparency deficiencies. It all begins with a review of existing Client/Agency contracts and engaging one’s agency partners in dialog regarding the adoption of industry best practice contract language to facilitate an open, principal-agent relationship. The Association of National Advertisers (ANA) has a wealth of information on this topic and can also recommend external specialists to assist an advertiser with agency contract development and or compliance auditing.

Interested in safeguarding your marketing investment? Contact Cliff Campeau, Principal at AARM | Advertising Audit & Risk Management at ccampeau@aarmusa.com for a no-obligation consultation on this topic.

Is Your Contract Worth the Paper It’s Written On?

25 May

partnershipThe Association of National Advertisers (ANA) recently released its study on programmatic media. The study was conducted in conjunction with the Association of Canadian Advertisers (ACA), Ebiquity and AD/FIN.

While the study provided fascinating insights into programmatic media performance and costs at the transactional level, there was one particular item that stood out:

88% of the advertisers that were interested in and 75% of the advertisers that signed up to participate in the study could not or had to opt out.

Why was this? According to the study’s authors, “because of a myriad of legal, technical and process roadblocks put up by players in the ecosystem.” Long story short, those advertisers did not have contractual language providing them with clear data ownership or usage rights with their agency, trading desk and or ad tech partners.

The obvious question to be asked is, How can an advertiser’s programmatic media transactional data not belong to the advertiser? After all, it was their media investment that funded the buys. It was their agency partners who invested those funds on their behalf (or not). So, who could possibly own that data if not the advertiser?

What would you do if your agency partner denied your organization access to programmatic performance data that you had requested. Data that would shed light on your programmatic media performance and costs (i.e. third-party costs, agency fees, tech fees, data fees). It certainly seems short-sighted that an agency would deny their clients access to this data, both in the context of the ANA study and for providing transparency into how their programmatic investment is being stewarded to disclose what their true working media percentage is.

Sadly, this is but one example of Client/ Agency contract language omissions that create disclosure and accountability gaps, which can lead to legal and financial risks for advertisers. Other examples include:

  • No requirement for an Agency to disclose or competitively bid in-house production resources or affiliate companies.
  • Media arbitrage deals in which the Agency is marking-up media by an undisclosed amount on inventory that it owns stemming from principal-based buys it has made.
  • Agencies acting as principals, rather than agents, when investing the Client’s creative production funds. One example might be the Agency or its production studio filing for and retaining incentives offered by states and municipalities for shooting or post-production work completed in their geography.

Marketing spend is on the rise and is certainly considered a material expenditure, which can represent 12%+ of a marketer’s revenue base (source: 2015 CMO survey).

And yet too often, an advertiser’s contractual audit rights are not broad enough to ensure unmitigated access to the data files, records and reporting necessary to evaluate an agency’s compliance with the agreement and or their financial management performance. This can and should include:

  • An advertiser’s right to select an internal or external auditor of its choice (i.e. contract compliance, media performance, financial management).
  • The right to audit the agency and its related parties (i.e. holding company, affiliates, related entities, etc.).
  • Assertion of the advertiser’s right to limit or eliminate an agency’s non-transparent revenue (i.e. AVB’s, rebates, non-disclosed fees, mark-ups, float income).
  • The right to audit principal inventory and or mark-ups.

Contracts are also a great vehicle for communicating performance guidelines for items ranging from brand safety and viewability policies to fraud monitoring requirements and an advertiser’s policy on not paying for bot traffic, all of which are designed to safeguard an advertiser’s investment.

From our perspective, it makes sense for advertisers to engage in dialog with their agency partners to talk through contract terms and conditions, such as these, to secure their perspective and ultimately their buy-in. After all, the contract is a document that will govern most aspects of the Client/Agency relationship. Thus, open dialog that leads to a transparent relationship can form the basis for a trusting partnership that will last for many years to come.

As Stan Musial, the legendary baseball hall of fame member of the St. Louis Cardinals once said:

The first principle of contract negotiations is don’t remind them of what you did in the past – tell them what you’re going to do in the future.”

May You Live in Interesting Times

23 Dec

confuciousOften referred to as the “Chinese Curse” this popular saying derives from the English Politician Sir Austen Chamberlain in the early twentieth century. Used ironically, the phrase has been used to suggest a set of outcomes that are a little more ominous, “May you experience much disorder and trouble in your life.”

As we reflect on what has been a tumultuous 2016, those working in the marketing and advertising industry most certainly would agree that we are living in interesting times. Recent news suggests that the industry’s troubles will not abate much in the coming year. The year began with evidence suggesting that the level of digital ad fraud would eclipse $8.0 billion in 2016, this was followed by the blockbuster findings from the Association of National Advertisers (ANA) / K2 study on “Media Transparency” which rocked the global ad industry.  Sadly, the industry is winding down 2016 with a litany of additional actions and outcomes that pose serious threats to the level of trust, already shaken, between stakeholders in the $540 billion global advertising marketplace.

In the last two weeks, the industry heard once again from Facebook that it had made yet another audience reporting faux pas, its third of the year, which many in the ad agency community have been all too willing to forgive. Who could possibly be surprised with advertisers for being genuinely perplexed as to why the media agency community hasn’t more thoroughly scrutinized Facebook’s audience measurement reporting or pushed more aggressively for independent verification of those results.

Concurrently, halfway around the globe, Australia’s three largest magazine publishers (News Corp, Bauer Media and Pac Mags) decided to cease their participation in the Audited Media Association of Australia’s (AMAA) magazine circulation service leaving advertisers no other choice but to rely on these publishers’ self-reported “readership” numbers, rather than audited circulations figures.

In the United States, the federal government’s Department of Justice has subpoenaed agencies from four of the world’s largest holding companies; WPP, Omnicom, IPG and Publicis as part of its investigation into illegal bid-rigging for commercial production jobs. It is alleged that these agencies coerced and or rewarded independent production houses to submit inflated bids, ostensibly to manipulate the process in favor of agency in-house production resources. Many believe that the DOJ’s investigation will have a profound impact on both the estimated $5 billion production sector and potentially the rest of the business. Let’s not forget, the DOJ has not yet weighed in regarding agency practices identified in the ANA/ K2 study on media transparency.

Most recently, WhiteOps, a U.S. a cyber security firm providing ad viewability and fraud detection supporting the advertising industry, announced that it had uncovered a Russian led digital fraud effort that was literally stealing up to $5 million per day from advertisers. It was reported by the NY Times that the fraudsters impersonated more that “6,100 news and content publishers” while delivering up to 300 million fake ad views per day. How were they able to do this? By creating over one-half million bots that replicated the web surfing patterns of humans, starting and stopping videos and moving and clicking the cursor. 

If client organizations were experiencing a “crisis of trust” hangover following 2015, it certainly wasn’t remedied in 2016. Going into the New Year advertisers have every right to step back and ask, “Who can we trust?” Our agency partners? Ad tech vendors? Media Owners? Measurement Services? And who would blame advertisers for taking matters into their own hands and make a New Year Resolution to more directly deal with these issues. After all, it is their monetary inputs that fuel the entire industry and they certainly deserve better that what they’re getting right now. In the words of the iconic American actor, Clint Eastwood: Sometimes if you want to see a change for the better, you have to take things into your own hands.”

 

Big Data. Big Deal. You Bet.

5 Dec

digital trading deskThe evolution of media channels, ad targeting and the role of ad tech have significantly reshaped the media marketplace, allowing advertisers to select inventory and direct their messaging with an incredible level of precision. These developments have long been hoped for and yet, now that they are here, there is much that advertisers don’t understand about one important bi-product of the ad tech revolution… the disposition of the data gleaned from their investment at all levels of the media investment cycle.

In our contract compliance auditing practice, it is not uncommon that we find contract language gaps relating to issues such as:

  • Who owns the data?
  • Where is the data stored?
  • For how long?
  • How secure is the data?
  • Is the data kept separate from that of other advertisers?
  • Is your data being used to aid other advertisers?

These are important questions that heretofore have yet to be addressed by many advertisers within their agency agreements. “Big data” represents a potential treasure trove of information that can drive marketing strategy for advertisers by leveraging the insights gleaned from media transactional and customer behavioral data. That is, if and only if they are in receipt of the layers of data available to them and that they have the rights to use the data.

Rights to use their data? As odd as that may seem, data ownership is not automatically ceded to an advertiser. In spite of the fact that without an advertiser’s investment there would be no media buy and no corresponding data stream. Yet, many within the media chain have taken aggressive actions to claim that data as their own. Ad agencies, trading desks, publishers, demand side platforms (DSPs) and third party ad servers to name some of the entities that desire to own, or at a minimum, have unrestricted access to that data.

This jockeying for data ownership and access carries additional risks for advertisers in and around the topic of data privacy and security. Particularly as it relates to first-party data that may be utilized in the planning and placement of programmatic digital and addressable TV buys. Why? Because the unregulated, unsupervised use of an advertiser’s first-party data could be in violation of their users’ privacy rights.

Ownership and access rights to third-party data, which is often accessed on the advertiser’s behalf by its agency and or ad tech providers such as data management platform (DMP) and ad platform providers are generally clear and typically spelled out in licensing agreements between the various stakeholders. Then there is second-party data, which can best be described as information that users didn’t give you directly but was acquired through an advertiser’s relationship with another entity, such as an SEO platform or that was acquired via feedback from a behaviorally targeted digital display ad campaign. Advertisers must ensure that the use of and or sharing of second-party data is done in a privacy compliant manner to safeguard the interests of the user.

Complicated. Yes, and often little understood by those crafting client/agency agreements. It would certainly be appropriate for advertisers to revisit their agency agreements, with the goal of ensuring that their data ownership rights, privacy considerations and third-party access rights are clear and consistent in this emerging area. It is important to note that industry best practice templated language is still evolving and should not be relied on as an advertiser’s sole source for securing ownership/access rights and protections for agency agreements.

When it comes to advertiser data ownership, we share the beliefs of American businessman and politician Jim Oberweis, who stated:

“I am a strong believer that intellectual property rights need to be protected.”

Want to learn more about evolving your organization’s agency contract language? Contact Cliff Campeau, Principal at AARM | Advertising Audit & Risk Management at ccampeau@aarmusa.com.

Advertiser Audit Rights: Define & Exercise Them

2 Aug

dreamstime_xs_7828625There is a new trend developing within the marketing agency community when it comes to negotiating client contract language – and that is a fairly aggressive attempt to limit the advertiser (client) audit rights and scope. In other words, limiting what the agency is required to have available as “proof” and support for agency billings to the client and agency use of client funds.

At a time when there is much talk about the need for transparency and its role in helping to bolster trust and strengthen client-agency relationships, this trend is highly antithetical.

The most common examples of agencies trying to dictate and limit the client’s “Audit Rights” are:

  1. Limiting the window of time in which an advertiser can conduct the audit. For example, 12 months from date of service or invoice, as opposed to a 3 year window.
  2. Limiting access to agency financial data and or records, as opposed to full access to information that support agency billings, financial management and performance. This can include denying access to data such as employee time keeping records, agency overhead or holding company allocations to client, freelance records, prices paid for certain media and agency affiliate company costs.
  3. Limiting the amount of time the agency is required to retain data and records.
  4. Limiting the type of audit firm that an advertiser can engage to perform the testing – and or including language that seeks to secure agency approval of advertiser’s auditor selection.

In order to ensure full-transparency into the financial stewardship of funds by the agency and third-party vendors, experience suggests that advertisers must secure client-centric contractual audit terms and conditions. It is our belief that this is an advertiser’s unassailable right. After all, it is the advertiser who bears the risk of non-compliance and sub-standard performance when it comes to the investment and management of their marketing funds. And it is the advertiser who is providing the funding to the agent.

Contract language dealing with Audit Rights should grant advertisers the ability to establish the scope of the audit, deploy an audit team of its choice and to have unfettered access to information necessary to validate agency compliance and or performance (i.e. contract compliance, media performance, etc.). To ensure full transparency, advertiser Audit Rights should extend to the agency holding company and affiliates in any full-disclosure relationship.

As important as securing solid Audit Rights language, within a Client-Agency agreement, is the need for advertisers to exercise those rights on a regular basis. Whether through the deployment of internal audit personnel, engaging independent contract compliance or financial auditors or the use of a media performance audit firm, it is imperative that advertisers monitor and vet agency performance in these areas.

The frequency of such oversight actions can range from annual reviews to quarterly reconciliations to the implementation of continuous monitoring programs to assess the disposition and performance of advertiser funds, while under the control of their agency partners.

Sharing audit findings with both advertiser and agency is highly recommended so that both parties, if necessary, can adjust practices going forward. After all, the goal of an accountability program is to provide improved transparency, assurance, improved process, and stronger client-agency relationships. In the words of Thomas Huxley, the noted 19th century scientist:

“Learn what is true, in order to do what is right.”

If you would like to receive a complimentary review of your organization’s “Audit Rights” contract language please contact Cliff Campeau, Principal at Advertising Audit & Risk Management at ccampeau@aarmusa.com.

 

“Our Agency Contract has Expired…”

22 Jul

ExpiredThis along with feedback such as; “We can’t find a copy of the agreement,” “We don’t have an executed copy of the contract” and “Hadn’t seen that version before” are common responses from advertisers when asked for copies of their Client/ Agency agreements when undertaking an inaugural agency contract compliance audit.

While alarming at a certain level, perhaps no more concerning than the dated, evergreen and largely inadequate agency-centric contractual instruments that represent a majority of the agreements that many advertisers have entered into.

Concerning? To be sure. Perhaps these organizations aren’t familiar with the words of legendary investor, Warren Buffett, who once said:

Risk comes from not knowing what you’re doing.

In an industry grappling with issues such as fraud, transparency, relationship stability, trust and the fairness of agency compensation systems the risks posed by non-existent or inadequate contracts are significant and include, legal, financial and intellectual property exposure.

The reasons for this dilemma are many and common across many client organizations:

  1. No central contract repository within the organization
  2. Limited cross-functional agency relationship oversight
  3. No strategic supplier management system
  4. Contracts negotiated by one function, not shared with relationship owners
  5. No enterprise wide accountability initiative

By now, most are aware of the Association of National Advertisers (ANA) study on “Media Transparency” that was prepared in conjunction with K2 and released in June of this year. If there is one takeaway from the findings of that study, which all advertisers should pay heed to its the fact that a solid Client/ Agency contract is an advertisers best defense when it comes to protecting their advertising investment.

One side benefit of the ANA/ K2 study is that C-Suite members within many advertiser organizations are asking the questions; “How susceptible is our firm?” and “What level of control and transparency do we currently have when it comes to our marketing investment?”

Addressing these questions is an excellent place to begin, because it necessarily involves securing and reviewing current copies of the contractual agreements that are in place with each of the organization’s marketing vendors. Perhaps the next best place to turn is to engage either outside counsel or an independent agency contract compliance specialists, with deep knowledge of the marketing/ advertising industry and some of the advancements and best practices which are in place to safeguard an advertisers investment.

Once an updated agreement is put in place, the easiest way to manage these contracts, amendments and ongoing statement’s of work is to schedule (and contractually mandate) annual reviews of the agreement and all legal documents governing your agencies staffing plans and compensation.

For those seeking an added layer of protection, engaging an agency contract compliance specialist to monitor each agencies adherence to the terms and conditions of the agreements that govern these important relationships is an excellent idea.

Interested in assessing your organization’s legal and financial risks? Contact us for a complimentary agency contract risk assessment by emailing Cliff Campeau, Principal, Advertising Audit & Risk Management at ccampeau@aarmusa.com today.

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