Can a company successfully sue an agency for making a commercial that really, really sucks? Stay tuned for a word from our courthouse.
Last fall, when Just for Feet CEO Harold Ruttenberg learned his company had nailed down a coveted time slot for a third-quarter Super Bowl ad, the sneaker mogul could hardly contain his jubilation. Though a public corporation with over $775 million in annual sales, ranked No. 6 in Fortune magazine’s recent list of “America’s Fastest Growing Companies,” Just for Feet had never before tried its hand at national brand advertising. “We specialize in selling shoes, not commercials,” Ruttenberg says. “We had never before created hoopla.” Now, here was a chance to burnish Just for Feet’s corporate reputation and brand image on a national scale. He says he couldn’t wait to tell viewers about the footwear chain’s friendly atmosphere, its neighborliness, its reputation for social responsibility. “We’re a family type of retailer that caters to a family atmosphere,” he says. “We’ve got shoes we sell. We’ve got a public that we love. It’s a very dynamic atmosphere we have in our stores. Here was an opportunity to tell our story to the largest audience in the world.”
The hoopla, as Ruttenberg would soon learn, didn’t come cheap. Four months later, by the time the spot was beamed out to an estimated 127 million households, Just for Feet had wagered almost $7 million on the game — $1.7 for the media buy, $3 million to hire an ad agency, Saatchi & Saatchi Business Communications of Rochester, N.Y., and an additional $2 million to take out newspaper ads in every market in which it did business, alerting shoppers and franchise owners to Just for Feet’s third-quarter Super Bowl triumph, and reminding them to keep their eyes peeled. Ruttenberg thought the expense was worth it. As he saw it, the ad would bring about a groundswell of public goodwill. “What we were looking to do was to start to build our brand,” he told me. “What we wanted was for people to see this and say, ‘Boy, that was terrific. Now we’re customers of yours. We want to shop with you.’”
Chuck McBride, creative director at Wieden, Kennedy and lead creative on the Nike account, remembers his reaction on the evening of Jan. 31, when he first saw the Just for Feet ad. “The minute I saw it, I immediately went ‘Oh, shit,’ and I went, ‘This can’t go on.’ I just couldn’t believe that they had done this.”
The ad opens with a shot of white men in a military Humvee tracking the footprints of a barefoot black Kenyan runner. The men drive ahead to offer the runner a cup of water laced with a knockout drug. The runner drinks the water, and immediately collapses to the ground, unconscious. While he is passed out, the white men force a pair of Nikes on his feet. When the runner awakens, he sees the sneakers and begins shouting and flailing. “No! No!” he cries. He then scrambles to his feet and runs away, still trying to shake the shoes from his feet.
Chuck McBride wasn’t the only person who hated the ad. “Appallingly insensitive,” declared Stuart Elliott in the New York Times. Writing in Advertising Age, Bob Garfield called the ad “neo-colonialist … culturally imperialist, and probably racist. Have these people lost their minds?” The Des Moines Register, expressing incredulity at the fact that “Just for Feet would spend millions of dollars to come up with something that makes Denny’s and Texaco look like abolitionists,” suggested a name change for the athletic footwear chain: “Just for Racists.” As punishment, the paper suggested in an editorial, “the ad agency who signed off on the commercial should be required to come up with a campaign that shows the worst about their own cultures. Then they should be drenched in a bucket of water, made to fall on their backs, and shackled.”
Harold Ruttenberg had a better idea. On March 15, 1999, Just for Feet sued Saatchi and Saatchi for $10 million, arguing the Super Bowl commercial was so bad it amounted to advertising malpractice. “Saatchi & Saatchi assured Just for Feet that the commercial Saatchi conceived and produced would be well received by the public,” reads the complaint, filed in federal district court in Birmingham, Ala. “Instead, as a direct consequence of Saatchi’s appallingly unacceptable and shockingly unprofessional performance, Just for Feet’s favorable reputation has come under attack, its reputation has suffered, and it has been subjected to the entirely unfounded and unintended public perception that it is a racist or racially insensitive company.” Far from glorifying the company’s role in advancing civilization and promoting social betterment, Just for Feet argues, the ad creates the impression that the footwear retailer is “racist, culturally insensitive and condescending, [and] promotes drugs.” This impression, the company states in its complaint, “is contrary to the deepest held principles of Just for Feet, which has always sought to promote racial harmony, finds racism abhorrent, and condemns drug use.”
Ruttenberg’s consternation is understandable. What’s less understandable is why he let the spot out the door in the first place, given his claim that he knew all along it was odious. “When [Saatchi] first came to Birmingham and showed it to us, we were flabbergasted,” he told me. “We were frankly kind of horrified. But Saatchi & Saatchi assured us this was the best thing they had ever done.” Ruttenberg says he tried hard to swallow his misgivings. “We didn’t want anything controversial,” he says. “We’re a family-oriented company. We make our stores a fun place to shop. What we wanted was a fun sort of ad. Something like that little Mexican dog [referring to a Taco Bell ad featuring a chihuahua]. That would have been fine.”
Ruttenberg is suing Saatchi & Saatchi because he says it badgered him into buying an ad he hated, an ad that ran against his will and over his objections, before a global audience of 127 million viewers. “We spent a fortune of money that’s not even in this lawsuit in preparation for this commercial,” he fumes. “We took out advertisements. We gave away more than $1 million of product. Then the ad runs. And you would would not believe the deluge of comments made about this company. I couldn’t sleep for a solid month. And it’s all because of these guys who said they knew everything.”
The bottom line, he says, is that “We said ‘no.’ They said ‘yes.’ They said they knew better. And we are prepared to swear that under oath.”
Recently, a judge struck down Saatchi’s motion for dismissal, and ordered the suit to go forward. (Just for Feet is also suing Fox, the network that carried the Super Bowl, for running the ad during the often less-viewed fourth quarter instead of the third. On the face of it, this action would seem to be a rerun of the old joke in which one old lady complains about how bad the food is, and her friend chimes in “Yes! And such small portions!” — except for the fact that Just for Feet had invested substantially in promotions geared to viewers watching the third quarter.) As the discovery process gets under way, with lawyers for the footwear chain drawing up witness lists and subpoenas, the lawsuit — which is apparently unprecedented — is being closely watched by advertising executives who say it has the potential to bring about a sea change in the industry. After all, according to its legal complaint, Just for Feet is suing Saatchi not only for exposing the company to charges of racism, but for creating an ad that was “muddled,” “confusing” and “criticized … by the media and the advertising industry.”
Words like these send chills up the spine of agency creatives, who have long been accustomed to cutting themselves a wide berth. “Here at Wieden, we have a saying called ‘The Freedom to Fail,’” says Chuck McBride of Wieden Kennedy. “You want to give everyone the freedom to fail. And I think that’s a good way to think about advertising. It’s hard to come up with something truly great unless it walks that precarious line of, ‘Oh no, is it really horrible?’ I would feel gun-shy if I knew that every time I did something really horrible, I’d end up in court.”
The Just for Feet lawyers respond that the Super Bowl ad was no run-of-the-mill clunker but a shocking political and cultural gaffe that triggered a corporate crisis. “We’re not just talking about a commercial that fell a little flat,” says Robert Trezinsky of the New York law firm Thatcher, Proffit & Wood, who along with the Birmingham firm of Sirote and Permutt is litigating the case for Just for Feet. “We’re talking about exposing a client to some very serious allegations. An agency has a duty to the client to consider these issues.”
Although no court has yet spelled out what constitutes malpractice in advertising, Trezinski says that the intensity of the wrath aroused by the “Kenya” ad makes it the perfect test case. “When you hire an advertising professional, you assume they will have the expertise to actually promote what you are advertising,” he says. “And when they come up with an ad that does not promote, but instead, shocks the conscience, then the standards of that profession have clearly been breached. And we’ll proceed to show that in court.”
Though no one from Saatchi would talk on the record, the essence of its defense can be gleaned from Saatchi’s response to Just for Feet’s complaint. The thrust of Saatchi’s defense appears to be that it can’t be sued for violating professional standards in a field that has none. “The imposition of a punitive damage award in the absence of explicit, particularized guidelines and standards is highly unfair,” Saatchi’s lawyers write. “An award made in the absence of such guidelines and standards may be grossly excessive, disproportionate, arbitrary, and irrational.”
Speaking on the condition of anonymity, a Saatchi & Saatchi employee denied any racist predilections, and insisted the ad had served its purpose. “What we were trying to say subliminally is: here is this athletic shoe retailer, who is either in your community now, or is coming to your community,” the employee says. “And at the core of these people is a passion for feet, a passion for getting the right shoes on the right feet. Even to the point where perhaps they might go too far.” Asked if it was wise to identify that passion with a pack of white commandos who hunt down and drug a barefoot black runner, the employee groaned. “All the way along the line, multi-racial casting was used,” he said. “One of the men in the Humvee is actually an African-American. And we also had a Hispanic woman … The problem is that when [the ad] goes by in 30 seconds, you don’t necessarily notice that there is an African-American.” What of the Hispanic woman? “The Hispanic woman, unfortunately, is exceedingly light-skinned. And it’s exceedingly difficult to tell she’s a woman.”
Of course, one might argue that, considering the hair-trigger racial semiotics involved, even having a multicultural posse hunting down a black man isn’t going to cut it. But the strange case of Just for Feet vs. Saatchi & Saatchi is more than a cautionary parable about identity politics. It also raises the question of what it means to commit advertising malpractice in a medium (and a culture) that increasingly prides itself on pushing the envelope, defying norms and, yes, shocking the conscience — and that often reserves its most glittering laurels for ads that deliver a gratuitous jolt to the viewer.
“We love cheeky humor that walks the fine line of good taste,” says Brian O’Neill, chairman and chief creative officer of Goldberg, Moser, O’Neill in San Francisco. “If it’s strong enough and smart enough and funny enough, there’s no question but that you go with it.” O’Neill was the creator of the recent ads for Kia Motors, in which beloved Uncle Carl, on his deathbed, shares with his teenage nephews a final wish: he wants his ashes to be strewn on top of a mountain, “so that I may join with eternity in a moment of quiet reflection.” Cut to the teens barrelling up the mountain in a Kia. The urn is strapped to the back seat, bouncing violently. Ashes are coming out. When they arrive at the mountaintop, the teens look at the urn, and see that it is empty. “Uncle Carl,” they giggle.
After the ad ran, O’Neill says, the agency braced for a backlash. “We thought we’d get some letters,” he says. “We thought some people might find it to be a little bit upsetting.” O’Neill was nonplussed when the only complaints came from an unexpected quarter. “We really got it from the environmentalists,” he says. “Apparently the kids knocked over too many bushes on the way up the hill.”
“Any time you hunt a human,” says Jim DiPiazza, “there’s going to be a problem.” I had called DiPiazza about the Just for Feet ad because it was DiPiazza, chief copywriter at Foote, Cone & Belding and lead creative on the MTV account, who came up with the new Blaxploitation-themed MTV ads, ads which are politically incorrect in the extreme. Yet DiPiazza says MTV has received no complaints. The network gets away with it, DiPiazza says, because “it’s obvious we’re having fun. And we treated the genre with a lot of respect. You can push the limits a little bit, as long as it’s done with good humor, and it’s coming from a smart place.”
In hindsight, DiPiazza says, it’s easy to see how Saatchi put its foot in its mouth. “You can imagine what happened,” he says. “Someone said, ‘Hey, I’ve got it. We track a Kenyan runner through the desert — and Just for Feet puts shoes on him!’ I mean, on that level, it sounds epic. Where it went from there,” DiPiazza says, “is where the badness happened.”
DiPiazza says he can think of only one successful example of an ad in which a human being is hunted. “It was an ad for Airwalk snow boots. It was these people, flying around in helicopters. And there was this Mutual-of-Omaha voiceover: ‘Today, we’re studying the migrating habits of the Alpine snowboarder.’ You see an aerial shot of a bunch of snowboarders. One of them’s fallen way behind. The men in the helicopter pull out a tranquilizer gun and shoot the stray. Then they land, and they say, ‘Here’s the problem. It’s his snow boots.’ So they put some Airwalk snow boots on him, give him a pat on the ass. And right away, he shoots off, and catches up with the rest of the pack. And they look at each other and say, ‘That’s a great day.’” DiPiazza is growing animated. “You know what?” he says. “You can hunt a person. It’s been done before. It’s funny. They treated it like a joke. The reaction to being shot by the tranquilizer gun was done really well. Saatchi & Saatchi just blew it. They made a mistake at every turn.”
The main problem, says DiPiazza, is that the ad failed to exude the requisite sense of postmodern knowingness. “You’re not sure if they’re being serious, or if they’re actually trying to be offensive, and having fun with it,” he says. “If you’re going to hunt a human, you’ve got to really chase the guy down. I mean, bring in helicopters and commandos, you know? When someone’s pushing the envelope, you need to know they know they’re pushing the envelope.”
There is near-universal agreement that for all its flaws, the “Kenya” ad would have attracted little notice had Just for Feet not opted to broadcast it during the Super Bowl, the most-watched television event in the nation, and lately a showcase for show-stopping creative work. “When you put an ad in the Super Bowl, you really are putting it in an environment where ads are judged from start to finish,” says Jimmy Siegel, executive creative director at BBDO Worldwide. “Everyone’s waiting for your ad to tank. Everyone’s waiting to rip it to shreds … I mean, this isn’t the NFL game of the week. You really are putting yourself out there and saying, ‘OK, look at us. What do you guys think?’”
Siegel, who produced the Visa Check Card spots that aired during the 1997 Super Bowl, says the cutthroat environment can put a premium on edginess. “There’s no glory in it,” says Siegel of doing Super Bowl ads. “You’re so under the microscope, it’s impossible to do things that seep into the culture. The feeling is that you’re just there to do ads that hit people on the chin.”
Holiday Inn certainly accomplished that in 1997, when it hired Fallon McElligot to produce a 30-second Super Bowl ad, the theme of which was supposed to be the hotel chain’s $1 billion renovation. To dramatize this message of rebirth and renewal, the agency produced a spot about a voluptuous transsexual, “Bob Johnson,” who surprises classmates at a 20-year college reunion. The ad was widely derided, and was eventually pulled after just one airing.
“It’s funny,” says Wieden Kennedy’s McBride. “At a certain point, both clients and agencies go mad when they try to do the Super Bowl. They just go into this frenzy, and lose all sense of judgment. Everyone wants to do the thing that gets talked about the next day. Talk about pressure.” McBride sighs. “In a way,” he says, “it’s good that this happened. It’s good that someone finally went too far. Maybe we all needed to be reminded that there are limits; that there are lines you shouldn’t cross. Especially these days.”
But if some were happy to see Saatchi’s overreaching creatives taken down a peg or two, others say the case will send exactly the wrong message. Provocateurs like Brian O’Neill fear clients will use Just for Feet’s comeuppance as an excuse for favoring timid, orthodox work. “We’re always saying to clients, ‘Hey, take a risk, make a leap of faith,’” he says. “The last thing we need is for clients to be wary of the good stuff … This is a lapse of responsibility on the part of an agency that will hurt all agencies in terms of how we’re perceived.” Saatchi’s miscue “gives breakthrough advertising a bad name,” agrees Lee Kovel of Kovel Fuller in Los Angeles. “It says to clients that risky advertising is a major liability, when the fact is that the liability is not the work itself. The liability is not approaching the partnership in the right way.”
In fact, in its legal complaint, Just for Feet makes clear that the company viewed itself not as a partner, but as a tremulous innocent, unsure about how to reach the public, and completely hypnotized by the expertise of Saatchi & Saatchi. In an unusual move, the company confesses to impotence in a central area of business performance: marketing. In this version, “Saatchi did not present the final version of the Kenya commercial to Just for Feet until shortly before the Super Bowl, at which time Just for Feet expressed [its] misgivings and dissatisfaction.” Saatchi, sticking by its guns, then “assured Just for Feet that the commercial would be well-received, based on Saatchi’s expertise and experience with national advertising and marketing.” In retrospect, the company’s confidence was misplaced. “Just for Feet never would have allowed Saatchi’s commercial to be broadcast if it had anticipated such a negative and unintended reaction, instead of the favorable reaction that it was assured of by Saatchi, the advertising and marketing expert in which Just for Feet placed its faith.”
Agency creatives roll their eyes at this sort of calculated naiveti. “They’re saying they’re these little country bumpkins from Birmingham,” says BBDO’s Siegel. “I mean, this is the fastest-growing athletic footwear company in the country. Presumably they have marketing experts, brand managers whose business it is to know what the company should be saying, what the message should be. You can’t just blame it all on Saatchi.” Others also have a hard time swallowing the concept of a litigious footwear tycoon who’s so conflict-averse he can’t say no in a meeting. “Clients kill work every day,” says Jill Schroeder, chairman of the Lodge. “They kill it when it’s in its conceptual stages. They kill it when it’s being produced. They kill it after it’s been produced and is already in the can. They just say they don’t want to run it. No other explanation given. For a client to say he’s so mesmerized by Saatchi that he lost control of his own decision-making process and conceded all decisions to Saatchi is ridiculous.”
Ruttenberg, for his part, admits he’s no country bumpkin, but points out that this was his company’s first foray into the amorphous terrain of “brand advertising.” “We had done newspaper inserts, saying, ‘Nikes on sale this week for $19.99,’” he says. “We had never done anything like this before in our life.” To make matters worse, Ruttenberg says, he was manipulated by Saatchi’s creative team, who demanded total freedom and autonomy, then turned into sniveling children when he had the temerity to criticize their work. “They came in and showed me the half-finished product. They said how much they liked it. I said it was unacceptable.” At that point, Ruttenberg says, the lead creative remarked that he was batting “0 for 1000,” and that he felt “crushed.” Ruttenberg barks a sad little laugh. “He feels crushed? It’s costing me millions of dollars and he feels crushed? I told him to get over it. ‘You’re crushed,’ I told him, ‘and we’re out of pocket.’” In the end, though, Ruttenberg knuckled under.
In his book “Creating the Corporate Soul,” posthumously published this year, Roland Marchand tells the story of the N.W. Ayer & Son Advertising Agency, image-maker for such august corporations as General Electric and AT&T. In the 1930s, Marchand writes, Ayer was frequently mocked for its pretentious and archaic language (“Down the sea of the centuries man sails the ship of his dreams …”), its dignified format and exalted headlines and its sage maxims (the agency’s own motto was “Keep Everlastingly At It”). “You will not find any smelly underwear, bad breath, skin eruptions, discolored teeth, violent coughing, streaming eyes or odoriferous armpits in Ayer copy and art,” wrote a former Ayer employee in 1933. Such ridicule, Marchand notes, did not unsettle Ayer. Did rivals mock N.W. Ayer & Son as too conservative? “Our answer to this,” replied Ayer Sr, “is that we have much to conserve … Great interests are entrusted to us.”
Just for Feet is no AT&T or GE; still, it’s hard not to be moved when Harold Ruttenberg extols the glories of his footwear empire — its half-court basketball hoops and its huge video screens, its reputation for neighborliness — and fumes, “These people had no right to put us at risk.” No one wants to crush the spirits of freewheeling copywriters, let alone rein in their freedom to fail. But among some creatives, the Just for Feet lawsuit has prompted a round of soul-searching about what it means to call oneself a professional, to insist that one’s products and decisions be accorded the respect due to professionals, without any of the consequences that normally accrue to that. “Does Saatchi have a responsibility for talking [Just for Feet] into an ad they weren’t comfortable with? My answer would be yeah,” says Jim DiPiazza. “If you tell someone that everything’s going to be OK, and then all hell breaks loose, then who knows, maybe you do have some liability.” Agrees Brian O’Neill: “My heart goes out to Just for Feet. If an agency goes into its bunker, in isolation creates what it thinks is breakthrough advertising, and then, at the last minute, ramrods it through the client, I think what you end up with is a hit-or-miss proposition. And a client has every right to feel victimized.”
The irony is that if the lawsuit goes forward, Just for Feet may suffer more than its footloose agency. “I have no fucking desire to pitch for Just for Feet,” says one executive at a New York agency. “God knows if we run a print ad that’s supposed to be a bleed, and it isn’t, they’ll turn around and sue us.” On the other hand, says the executive, “No one holds Saatchi too responsible. So they made a bad ad … They’ll still get asked to pitches. The attitude will be, ‘Let’s see what they have to say.’ If they come back with a bunch of men in white hoods burning down houses in an ad for Safeway, well, then you don’t give them the account.” Even if one of the men turns out to be a Hispanic woman.
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