The Consumer Republic

Pay Or Play The spot "Kenya" seems destined to go down in history alongside "1984" as a landmark in Super Bowl advertising. Like the Apple ad, "Kenya" proved how powerful Super Bowl exposure can be. It almost didn't make it to the game. And after appearing before the annual assembly of global eyeballs, it was snatched back, never to air nationally again. Unfortunately, here the resemblance ends. If "1984" stoked the ambitions of hundreds of ad agencies, "Kenya," at the center of the first lawsuit charging an ad agency with malpractice, has instilled in the industry fear and trembling. Reading the suit filed in federal district court in Alabama by athletic footwear chain Just for Feet is instructive, a lesson in how dysfunctional an agency-client relationship can be under the cover of business as usual. It all begins with a client new to the mysterious art of branding, with an itch to make a splash. Pair it with a low-profile agency, Saatchi & Saatchi Business Communications in Rochester, N.Y., all too eager to comply. Factor in an isolated creative team which, JFF alleges, evolves the originally approved commercial concept beyond recognition and then presents it as a fait accompli. Throw in an expensive tune-in campaign and contest tie-in, which goes bust when the much-promoted ad airs in the wrong quarter. (JFF is suing Fox, too.) And then there's the spot itself: a black African hunted, drugged and then "shackled" in Nikes in front of 127 million people. It was like a scene out of The Producers - except it's just not funny. It's worth noting that the individual circumstances of this story are commonplace. The ad world is full of clients without focus, ambitious agencies, poor agency-client communication, hubristic creatives, tight deadlines, botched media buys and, yes, bad Super Bowl ads. What is special about "Kenya" is that all these elements came together to create a public-relations nightmare: excoriating reviews and editorials, outraged consumers, pissed-off contestants. When the bill for this fiasco came due, Harold Ruttenberg, JFF CEO, refused to pay. Saatchi & Saatchi sued for the money it was owed, whereupon JFF filed a countersuit for malpractice, claiming the company was like a patient who checks into the hospital for a nose job and awakens to discover the surgeon has instead removed a lung. Like so many lawsuits in a culture where the courts are routinely used as a rational means to achieve emotional ends, JFF's doesn't make a lot of business sense. Without it, "Kenya," gruesome as it was, would be on its way to becoming the answer to a Super Bowl ad trivia question. If Ruttenberg wanted to contain the damage to his company's image, he might have been smarter to pay the bill with a curse and move on, sadder but wiser, rather than give journalists a fresh opportunity to rehash the grim details. The ad business may presume the only happy conclusion to this suit is dismissal. (Saatchi's motion to dismiss was recently struck down.) Imagine, as I suspect many an ad exec already has, if Just for Feet were to win. Would that not open the door for other unhappy clients, unsatisfied with simply firing an agency, to salve their wounds in court? Though it's heresy to say so, a decision in favor of JFF may be the preferable outcome - if not for Saatchi, then for the industry. If the agency wins, the fallout will be much more subtle and widespread. What message would an agency victory send? That the buck stops with the client. This has always been true in the ad business. But somehow, it's different once it's spelled out in court. If the world were truly a just place, both sides would lose this suit. Just for Feet came to its agency looking for magic ("Something like that little Mexican dog," Ruttenberg told Ruth Shalit in Salon), which is to say, without a strategy - an invitation to disaster. The facts of the case may show, as the suit alleges, that JFF was indeed given the unappetizing choice of okaying "Kenya" or missing out on the Super Bowl. But it was a choice. If the company made the wrong one, it should take responsibility for it. Yet if it can be proven that the agency told a resistant JFF, "We know this will work," it overstepped the bounds of professionalism. No one "knows"; that's the mystery of advertising's alchemy. Agencies are obliged to offer their experience and judgment, not stand on their omniscience. Besides, in this case, the agency team was the only group who didn't know "Kenya" was offensive. Meanwhile, for everyone else in the agency business, "Kenya" offers a sobering lesson: A client may be inexperienced or have little understanding of how advertising works, but that's not necessarily why he hates the work. He might hate it simply because it stinks. ¡

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The Consumer Republic

Debra Goldman

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Debra Goldman