ANA Letter Suggests Members Cooperate With FBI's Criminal Investigation Into Media Buying Practices

Today the Association of National Advertisers (ANA) released a letter to its primary members this morning confirming that the FBI has reached out seeking assistance in its ongoing investigation into potentially illegal media buying practices within the ad industry. Public knowledge of the investigation followed a Sept. 27 Wall Street Journal report confirming that the federal government had begun issuing subpoenas, particularly to Havas. The FBI is currently conducting an investigation based, in part, on the findings of a 2016 study sponsored by the ANA and K2 Intelligence, which found that agency executives knew of "pervasive" use of kickbacks, rebates and other unethical practices. "Consistent with the Journal report, the FBI contacted our outside counsel, Reed Smith LLP, requesting the cooperation of the ANA and its membership in a criminal investigation into media buying practices underway by the FBI and the United States Attorney's Office for the Southern District of New York," read the letter from ANA CEO Bob Liodice. It went on to state that the firm has had "limited discussions with the FBI" and laid out a series of "points of interest" and next steps for interested parties. "The starting point is to identify those advertisers which believe they may have been defrauded," the letter read, stating that members who suspect they may have been victims of fraud should consider retaining their own counsel and either "cooperating with the FBI, or doing nothing." The letter also stated that Reed Smith itself would be available to represent such clients thanks to ANA practices that "ensure separate protection of the attorney/client privilege" for members. Finally, the note clarified that the ANA itself cannot assist the FBI except to share information regarding the case, just as it did with them and the media this morning, and will "not play a coordinating role," but that the FBI is aware of this outreach to members. Steven A. Miller, an attorney with Reed Smith, suggested that the FBI will look for evidence of mail or wire fraud and "possibly racketeering" as it conducts what he believes is "going to be a long term investigation." "That's not an accusation, but these are the statutes likely being focused on," he said. Adweek reached out to representatives from all the major holding company media agencies, each of whom declined to comment. Several other parties noted that none of these agencies, who are effectively the accused parties in the investigation, received the letter. "The letter was sent to ANA members—not agency holding companies or media companies," said an ANA spokesperson, who explained that only those organizations with top tier memberships, which are overwhelmingly major advertisers like P&G or Unilever, got the letter. It did not go to those in the Member Service Providers class, which includes agencies, law firms, tech companies, etc. The representative added that there would be "no substantive elaboration" on the letter itself due to the active nature of the investigation.