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Mike Solomon

By Michael Solomon


Yesterday, the Association of National Advertisers (ANA) and its counsel, Reed Smith, issued a white paper on media transparency pertaining specifically to the recently-announced inquiry by the FBI into potentially fraudulent media buying practices in the industry. Entitled “Media Buying 2018 – Transparency At a Crossroads”, the document provides an overview of the history of the media transparency issue (particularly in the US), links to studies and advertiser resources which have been published thus far, and considerations for advertisers on how to proceed given the pending FBI investigation.

The writers are careful to point out that “At this point, no one has been accused or charged with any crimes and no one is accusing anyone of criminal behavior.  No one should assume anyone is guilty of any criminal infraction.  Nothing in this White Paper ascribes improper activities to any organization or individuals.”

However, as to the seriousness of the investigation itself, the document points out that “The FBI and Department of Justice typically do not commit resources unless they believe, at a threshold level, that potentially criminal activity has taken place.  The FBI has told Reed Smith this is a long-term, industry-wide investigation.”

Per the white paper, however, the FBI is only interested in hearing from advertisers once they have conducted their own meaningful, internal investigation.  “The FBI does not have the resources to investigate dozens or hudreds of potential financial fraud victims, each of which may present different facts and evidence,” the authors write.  “Meaningful cooperation means making an investment in conducting an internal investigation first.  If and when you uncover indications of fraud, supported by actual evidence, then the FBI wants to hear from you.  It is not expected that your evidence will establish proof beyond a reasonable doubt.  That is the job of the government,” the ANA/Reed Smith point out.

The document includes background on how advertisers might conduct a fraud investigation, which is “typically performed by outside counsel with subject matter expertise.”  The authors go on to point out that “All investigations and audits should be structured to maintain the attorney-client privilege.”

Potential benefits of cooperation in the investigation, as identified in the document, include monetary restitution to individual companies affected, knowledge of whether or not your company has been defrauded, and general benefit to the transparency of the overall advertising industry.

MMi advises clients to review the white paper and to consult with appropriate internal parties such as in-house counsel, internal audits, and marketing/media.  Outside experts (outside legal counsel, media audit firms, etc.) can also help advertisers understand the challenges and potential benefits of such an investigation.  Advertisers can also contact the ANA or Reed Smith directly with questions (contact information is provided in the document).


If you enjoyed this post, you might also like “Media Agencies and the Principal-Based Buying Conundrum“.

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