Kent J. Schmidt

Transcript

Voiceover [00:00:03]

Welcome to another episode of the SharkCast on litigation risks management, where we explore why businesses are so frequently sued and how to mitigate and navigate the dangers lurking in these risky waters. Join us now as we welcome our host, Kent Schmidt, litigation partner at the law firm of Dorsey & Whitney.

Schmidt [00:00:25]

Welcome to another episode of SharkCast. You know, in talking about litigation risk, we refer a lot to one of the C’s, which is consumers. Consumer litigation risk is a major area for companies that are selling products and services to individuals who are gonna be using them for personal use, and there’s a lot of consumer class action litigation, a lot of activity by the Federal Trade Commission and state attorneys general and district attorneys, and so sometimes in addressing these issues, we overlook another area of potential exposure and legal risk, and that is self-regulatory organizations, SROs. I’ve invited my partner, Fara Sunderji, to be a guest on SharkCast today, to talk about SROs in general, but more specifically, one that is very active in this space of consumer deception, the National Advertising Division of the Better Business Bureau, NAD. So welcome, Fara. I’m very pleased that you’ve agreed to be a guest on SharkCast, and we’re anxious to hear what you have to say about the NAD.

Sunderji [00:01:41]

Great. I’m happy to be here.

Schmidt [00:01:43]

So let’s begin by understanding what the NAD is, a little bit of its history and also how self-regulatory organizations work.

Sunderji [00:01:54]

So, the NADs been around since the 1970s, and participation in an NAD proceeding is completely voluntary. You get served with a complaint of sorts, but you can say I don’t want to participate, and you don’t have to participate, and that’s why it’s voluntary.

Schmidt [00:02:10]

I’m sorry to interrupt. Is there membership in the NAD? Is it an organization that companies consider joining?

Sunderji [00:02:20]

So, you can be part of the Better Business Bureau, and if you have a membership and the Better Business Bureau, that entitles you to certain fee discounts with the NAD when you’re doing filing fees and such. But otherwise, any company in the United States can be pulled into an NAD proceeding, and you don’t need to be a member even to file a challenge.

Schmidt [00:02:43]

Alright. That’s helpful. You’ve also identified at the beginning, claims by consumers. The NAD can act pursuant to claims by consumers, but there’s also another C of litigation risk, which is claims by competitors. How is it that the NAD gets involved in claims by competitors?

Sunderji [00:03:05]

So competitors can bring challenges in the NAD. You make a submission to the NAD, you write up in a letter, really, what your complaint is, saying hey, we think this advertising is unfair for the following reasons. Whether we think it’s false or misleading, and we say great, you guys need to, as the advertiser, come back and show us why your advertising is not false or misleading or whatever the claim happens to be.

Schmidt [00:03:35]

Okay, so can you give us an example of what a typical claim by a competitor submitted to the NAD might look like, both in substance and form?

Sunderji [00:03:44]

So, in form they can be, like I said, just a letter, and they would point to a piece of national advertising. That is important, that the piece has to be national advertising and there’s different…

Schmidt [00:03:57]

So it can’t just be a car dealership that is advertising super low prices and not having enough of the product at that price.

Sunderji [00:04:07]

Exactly. There is a jurisdictional piece to this puzzle that the NAD has decided their jurisdiction is national advertising and hence the name, National Advertising Division, and they take on certain cases. They will interestingly, step away from their jurisdiction or say they don’t, no longer have jurisdiction if the parties get into a lawsuit during the case. I think there’s only been one or two of these situations, where some competitor filed a challenge, and we don’t know how far along it went because the proceedings are not public at all. But at some point, the advertiser filed a DJ action in federal court, and so it stopped the NAD proceeding.

Schmidt [00:04:49]

That’s interesting. So, at any time a party sort of has veto rights over this process because they could always file an action and essentially divest the NAD of jurisdiction.

Sunderji [00:05:00]

That’s correct, and also interesting to what, you know, your area of case law is sometimes, if a class action consumer case as filed. That also would remove jurisdiction in most cases from the NAD. I believe there’s one example, a number of years ago, where a case got filed and I, I don’t think it was a class action lawsuit, I think it was just a regular lawsuit. The federal judge decided to stay the case for the NAD to proceed with their decision. And because of the way that, you know, even administrative agencies, those decisions don’t, courts don’t have to take those completely. They just take them as guidance. Here, it’s even less because the NAD is not an administrative agency. Again, it’s a self-regulatory agency and participation is actually voluntary entirely. So, if some advertiser gets a complaint, they can actually say no, thank you. Don’t want to participate. And so, you might say what happens then? That might be crazy to just, if it’s self-regulation and I can just walk away from the regulation even if I’m doing something bad, how does this whole system work? Why does it even work? The interesting piece of the puzzle then is that there are, like you said before, advertisers who are members of this, and I think they sign on a little bit more to the whole system, but even if you’re not part of the club, if you say no, thank you, the NAD can take a strong look at the case and say great, we think your advertising is misleading, we think that it’s false, but we’re not deciding the case because you decided not to participate. But we’re gonna just knock on the door to our friends at the Federal Trade Commission and we’re gonna ask them to take this case. And it happens.

Schmidt [00:06:47]

Yeah, you may be going from the frying pan to the flame by not participating in the NAD, particularly if you have a defensible claim.

Sunderji [00:06:55]

Exactly. And, you know, while the NAD is voluntary, the FTC is absolutely not voluntary.

Schmidt [00:07:02]

There’s no opting-out of the FTC.

Sunderji [00:07:02]

Yeah. And, you know, when you get an NAD decision, the NAD decision say claim looks good, discontinue or modify the claim. That’s all that they say. They don’t have damages. There’s no injunctions, if you will. They just sort of say great, do this, if you feel like it. But if you don’t feel like it, we may report you to the FTC, and, you know, it’s a system, it’s everybody has to participate in the system for it to work really well. One industry that really has signed onto these NAD disputes is the telecommunications industry. They actually take up the largest percentage of the cases year after year, and they’re household names like T-Mobile and Verizon and Comcast, and so it’s all of your phone providers, your internet providers, cable providers, things like that, and they really use this dispute resolution process to essentially bat each other back and make sure that their competitors are staying in line. And while there are no counterclaims in an NAD case, you see cases that get decided in parallel because they have the challenger and the advertiser flipped, and you see that one party sort of making moves, the other party makes moves, and then the cases kind of get decided sometimes together or sometimes in succession.

Schmidt [00:08:33]

That’s very interesting that the telecommunications industry is very active in connection with the NAD. What types of companies, besides those in that industry, should be paying attention to what the NAD is doing, including guidance that comes out of NAD decisions?

Sunderji [00:08:50]

Sure. So last month the NAD had its annual conference, and as part of the annual conference, they usually have two staff attorneys come and do a presentation on sort of the year in review. And so, they have August to August, talk about some trends and sort of what they saw over the past 12 months. And so, what they’ve said, and it’s not shocking actually ‘cause it sort of seems consistent year over year, again, telecommunications is a big part of what they work on, but cosmetics companies, household products like diapers and cleaners, you see those cases a lot. Food and beverage cases, you do see those as well. Drugs and health aids, and then dietary supplements are also another major part of the NAD sort of wheelhouse and the types of industries they work with.

Schmidt [00:09:42]

That all makes sense because those are all the industries that are probably the largest targets for consumer class-actions. So, there’s some alignment on that. We’ve talked about complaints brought by competitors. How about complaints that are prompted just by a consumer that perhaps doesn’t want to bring a consumer class-action but believes they’ve been deceived by assertions that have been made by a product and are concerned about that and bring that to the NAD’s attention? How often does that happen?

Sunderji [00:10:14]

So I don’t actually think that happens very often. You know, if you’re a consumer and you feel aggrieved you can, of course, send in a complaint to the Federal Trade Commission, you can contact your Attorney General. I think that you can also contact the NAD, but the NAD also has its attorneys spend some time just looking at different kinds of advertising. They don’t tell us what areas they specifically look at, but sometimes you can sort of see some trends and things like that, and they do staff-initiated cases. And so there’s no challenger, per se, there’s just an advertiser and the staff, in a way, is the challenger, asking the advertiser for the substantiation needed to make the claims.

Schmidt [00:11:02]

And is this situation pretty much the same when the NAD is initiating a complaint? That is to say just as you indicated with competitors, you ignore that inquiry from the NAD at your peril because, if you don’t, they may refer it to the FTC.

Sunderji [00:11:18]

I think that’s absolutely correct. And while nobody at the NAD has ever said that they treat the cases that are initiated by the staff more seriously, one would assume that they wouldn’t pick loser cases. They almost certainly could pick cases, and they clearly have, picked cases where an advertiser has full substantiation for the claim that they made. It was just not known when they made the inquiry and, you know, it comes out fine. But not participating in an NAD inquiry probably has the same consequences, regardless of who brought the inquiry, whether it’s the NAD itself or whether it’s a competitor.

Schmidt [00:12:03]

Do we hear messages from the FTC on how it views matters referred by the NAD versus just their normal docket of consumer complaints?

Sunderji [00:12:14]

Yeah, we do hear those messages and that’s what’s, honestly, great about going to the NAD conferences year after year, is that they always have some folks from the FTC, a commissioner, a staff attorney, somebody like that, come and speak to the group. And they always say they have a lot of respect for the NAD, and they think that the NAD does great work, and they take seriously the cases that get referred. And on the back end, you can’t see how the sausage is made, if you will, because neither of those entities are gonna tell you anything about the decision-making process, and, of course, resources go into the decision-making process over at the FTC. But you can see that there are decisions that come out and investigations that come out of the FTC where they were referrals from the NAD.

Schmidt [00:13:07]

There’s a lot of guidance that can be gained from looking into the decisions of the NAD, isn’t there? And how do you go about digging into their library, or their, I guess it’s the equivalent of case law, to learn about what the NAD is doing and what decisions they’ve made?

Sunderji [00:13:26]

Yeah, the NAD has a database that you have to subscribe to. It’s like searching case law, just like you said. They have a set of decisions, and they categorize them by types of issues that they deal with, but I think it is such a valuable tool to have access to the database. I can’t tell you how many times I’ve been talking to a client on the phone, and they said out marketing people are thinking about making this claim, how do you think it’s gonna be viewed? Which way do you think it would go? And every once in a while, I say, actually I always say let’s check that NAD database. Let’s see if this type of claim has ever been reviewed. And every once in a while we actually find a case that has reviewed almost identical language, and it’s great to have that sort of instant feedback on a particular type of claim. You know, there are different types of claims, for example puffery claims, when you wanna look at using different types of words, boisterous, ultimate, best, superior.

Schmidt [00:14:28]

Number one. America’s favorite.

Sunderji [00:14:29]

Number one. Things that qualify it. You know, and sometimes you get a lot of really good guidance from the NAD cases that say if you wanna make a number one doctor-recommended claim in this particular instance, these people made this claim, and they only had this much data.

Schmidt [00:14:49]

Right.

Sunderji [00:14:50]

They did a survey of X number of doctors, and it was okay. You get a lot of good nuggets out of the NAD cases on survey evidence, telling you how big the universe has to be. Now it’s not the same type of evidence that’s necessarily gonna hold up in federal court, but it gives you guidance on what is going to work in the NAD.

Schmidt [00:15:14]

You know, you just drew the comparison between federal court and the NAD’s archives of decisions ‘cause I do the same thing with federal court decisions sometimes when client’s ask questions on a litigation risk assessment. One of the problems with federal court is so many of these cases are decided on a Motion to Dismiss. And so, they don’t get down to the analysis of expert opinions and consumer surveys and things of that nature once you whittle it down to the exact type of claim and perhaps the exact industry. So, I think you can find some helpful nuggets in the federal docket, but that additional step of looking at the NAD authorities or decisions is also a very, very valuable step.

Sunderji [00:16:01]

Yeah, and the thing that we miss out on oftentimes in the NAD docket, there’s no docket really. You don’t get to see the submissions of the parties, you only get to see the decision. And as a party to an NAD case, you are allowed to keep a fair amount of it confidential if you want to. And so sometimes the details that are missing make it hard to decipher the decision, whereas in federal court I see less and less of that, in my practice at least, that judges are very reluctant to keep most information under seal. Everything seems to come out these days. And so, I think another difference that sometimes we lose out on in the NAD is that you don’t have to have a consumer survey to say what the consumer takeaway message is. The NAD says it probably almost every other case and probably more than they release the decision for, that if there’s consumer evidence, they will look at it, consumer perception evidence, but if there’s no consumer perception evidence, the NAD is happy to step into the shoes of the consumer. They will weigh in on what is reasonable and what is not reasonable. I don’t think any federal judge is gonna list that on their resume as a thing that they’re gonna do in their worktime.

Schmidt [00:17:17]

Yeah. Well, just getting someone’s attention on the exact issue, and with some expertise is very, very important. On that note, who are the individuals behind all of this activity at the NAD? Are they primarily lawyers, are they marketing professionals, are they from various other industries? What’s sort of the typical profile of the decisionmakers at the NAD?

Sunderji [00:17:46]

So, the decisionmakers are all attorneys. Most of the NAD staff have been there for quite some time and are quite good at their jobs and they tend to stay. It seems like a good job to have. In a way you get to be a judge but you’re not really a judge. So, when you appeal an NAD decision, it goes to the NARB. And the NARB is a panel, I believe there’s like 30 or 50 people on the entire panel, but cases only go to about five members of the panel, and I think that panel includes some lawyers and also some industry folks, too. And they actually pull from the membership of the BBB in order to constitute these panels, and I believe the rule is you get some advertiser representation, some agency representation, and then some other representation on every panel in order for them to make those decisions. In the end, the law that decides these cases, if you will, is a little bit different than when you’re in federal court, but at the same time it does lean on federal law. So, if we take, I don’t know, an area of claims like green claims, when companies are making advertising claims that have to do with the environment. The NAD just relies on the green guides and, essentially, federal guidance that has come out from the Federal Trade Commission about what you can can’t do in the green space. But it all goes back to are your ads false or are they misleading, or are they both, are they neither? And that’s really what they are judging, and a lot of that is not based on case law, if you will, that could differ from circuit to circuit or state to state. A lot of it really is what is this ad saying in context, and it’s very fact specific.

Schmidt [00:19:45]

Yeah, well it’s interesting because in the consumer class-action space we deal with statutes that have those predicates, false or misleading, with the recognition that something could be literally true but still misleading, and there are a hundred formulations of those, depending on the statute, federal statute, state statute. Courts struggle with deciding these things, but in the end, it’s kind of one of those things that’s been said in another area of law. You sort of know it when you see it. And it seems that the NAD sort of cuts through all of those formulations and doctrines and decides, yeah, this is false or misleading, or it’s not.

Sunderji [00:20:24]

Yeah, and I think the NAD also spends a lot of time dealing with numbers and stats.

Schmidt [00:20:33]

In what respect? Like deception in a survey or marketing context?

Sunderji [00:20:38]

Yeah. Oftentimes when there are comparative claims on a performance issue, you know, our product is more absorbent than your product, something like that, you need data to support such a claim. And when you make such a claim, there’s always a study that you need to submit with that. And then oftentimes you see a study on other side, and you can work with statisticians and folks who develop surveys to make survey data come out in a different way, depending on how you test it. You know, I think that’s especially true and you really see it in the cases where the studies are actually based on consumer’s reactions to things. I think if you’re saying a paper towel or a diaper or something like that is more absorbent, the way to mess with the data is probably quite limited, but if you’re talking about a consumer, this product makes me feel refreshed, something like that, there’s gonna be a lot of mix in the data. Did you check the right study population? Did you test enough women? Did you test enough men? Did we get the age range right? There are a lot of really interesting NAD cases that have to do with diapers. How do you survey the users of diapers? ‘Cause they don’t talk.

Schmidt [00:21:56]

Well, it’s all very interesting because I’m always beating the drum of litigation avoidance and something that I think is common sense, most companies should understand this, be careful when you make any statement about your product, but when you start drawing comparisons between our product and your competitor, the competitor’s gonna sit up and take attention, and they’re gonna notice and be ready, because they’re not gonna like that, and you gotta have your studies ready because you can get into some trouble there.

Sunderji [00:22:26]

Yeah, I think we see a lot of the NAD cases are comparative advertising and, you know, we get a lot of inquiries from marketing folks on the client side saying this is really gonna move the needle. And it might.

Schmidt [00:22:40]

Oh

Sunderji [00:22:41]

But then the question…

Schmidt [00:22:42]

From a consumer standpoint.

Sunderji [00:22:43]

…is, is it worth moving the needle in that direction and, you know, how much litigation risk is it going to create, and what kind of backup do we have? Do we have all the data? And is our data good data? To say that we can make this claim that our product is better, faster, more whatever than the other folks’ products because, you know, you see this in the telecom industry, right? Everyone wants better internet speed. Are we all getting it? I have no idea. And the commercials would have you think that if you switched, you’ll get better speed, but I keep switching and I keep not getting better speed.

Schmidt [00:23:21]

Alright. A couple minutes ago you mentioned going to the recent conference that was held by the NAD, and FTC was there. What are some of the major takeaways from that conference in terms of new horizons, areas of regulation, areas that they’re gonna be focusing on that would be of relevance to our listeners?

Sunderji [00:23:39]

So, just like every other conference I think that I’ve been to in the last couple years, ones that I’ve listened and ones that I’ve spoken at, everybody’s just talking about AI all the time. And so, you know, it’s always interesting at the NAD conference, like I said before, because they generally invite folks from the FTC to come and talk, and when they talk, you listen because they are not voluntary. And so, they did talk, the FTC folks talked a lot about AI, and the panels also talked a lot about AI in different situations, and it sounds like, from the enforcement priorities of what the folks at the Federal Trade Commission said, is that they are looking into the use of AI in deception, and they’ve already had a number of cases this year where they’ve really done some good enforcement actions. They’ve done it in the telecommunications space actually in terms of robocalls. They’ve had some enforcement actions in using face recognition technology that was not being, you know, applied evenly across different races, and having a detrimental effect on certain folks who are getting accused of things when maybe they didn’t do anything based on the face recognition technology. They’ve also, what I thought was very interesting, is that the FTC spoke about different kinds of harm that can come from voice cloning technology. And they talked about it in sort of a context where you could get a voice clone technology call, a fake call, that is the voice of your mother, or your grandmother, asking for immediate money, or your kid, and how harmful those types of scams can be across large swaths of the population because if your daughter calls you and it’s her voice and it says I’m in trouble, I need you to wire some money right away, I mean, you’re definitely gonna think about doing it.

Schmidt [00:25:37]

Right.

Sunderji [00:25:38]

And if it’s a scam, what’s gonna happen? And so, they’re really focused on that type of technology, but at the same time in preventing scams and preventing consumer harm, but also trying not to stifle the technology. An example that somebody from the FTC used was voice cloning technology could be really useful for people who have lost their voices for medical reasons, for communicating, sometimes temporarily, but sometimes voice loss can be permanent in certain medical situations and having that ability to continue communicating verbally or maybe even for people who never were able to communicate verbally, maybe that’s a great option for them if that’s the path that they wanna choose. And so, we shouldn’t cut off the technology from really beneficial uses to consumers and to society, but we really have to be on alert for some of these scams that really, how would you know the difference if it’s a phone call between a loved one and a scam, you probably wouldn’t be able to figure it out.

Schmidt [00:26:44]

All great points. AI is, of course, the common denominator in a lot of litigation risk, and it continues to evolve. Anything else you took away from the recent NAD conference you went to?

Sunderji [00:27:00]

Yeah, we talked about customer reviews. Customer reviews have been a really hot area for the Federal Trade Commission for quite a number of years, and the NAD has also been dealing with them for quite a number of years. I think that’s all in recognition of the fact that when you buy something as a regular consumer, you look at the reviews. I look at the reviews on Amazon.

Schmidt [00:27:21]

Of course.

Sunderji [00:27:22]

Because I do so much work in this space I’m very skeptical and I think half of the reviews are fake and paid for, and I never know what to buy and I read too many reviews, and I get decision fatigue, but beyond that the Federal Trade Commission has been really working hard to prevent purchasing of reviews, fake reviews, they’ve been working hard to make sure that incentivized reviews have disclosure on them. In August of this year, the Federal Trade Commission did release a final rule concerning consumer reviews. And a lot of the parts of the law, I think, are common sense to companies that want to be on the up and up, that ask their lawyers questions, you know, on a daily basis, whether they be in-house or outside counsel, and they’re really targeted more at the bad actors. But there are some pieces of the new law that I think are very interesting that companies could be tripped up by it and not even really know that they’re doing it. There’s a lot of discussion, maybe not a lot of discussion, but there’s some discussion in the new law about review suppression, which is an area I think is very interesting. And I get questions from clients about this, are we allowed to, on our own website, make all the five star reviews push to the top? Are we allowed to sort them in this manner, so they look better? Can we choose which review is the highlighted review?

Schmidt [00:28:48]

Right.

Sunderji [00:28:49]

There’s lots of questions like that, and the Federal Trade Commission spent a lot of time developing these rules, you know, doing proposed rules, getting comments, doing research, doing surveys, and figuring out, you know, what is being communicated by all this. Because honestly, if you go to a website and you’re getting ready to purchase something and you look at it and all the reviews on the main page are all five star reviews, do you click on the know more button?

Schmidt [00:29:15]

That’s right. Yeah.

Sunderji [00:29:16]

I do, but I don’t know that most people spend a lot of time doing that.

Schmidt [00:29:20]

Depends on how big of a hurry you’re in, I suppose.

Sunderji [00:29:22]

Yeah. And if the reviews are sorted, that’s all you’re seeing.

Schmidt [00:29:26]

Right.

Sunderji [00:29:27]

And I think the Federal Trade Commission again, it’s really about consumer protection and you want to know what are the bad reviews out there? Are you going to have the same problems that those folks do? And then there’s other discussion in terms of the rule about can you suppress certain reviews. If somebody just goes on and says this product is trash even though I’ve never purchased it before ‘cause I hate this company and all the rest of their products are trash. Can we get rid of that review because it brings down the average?

Schmidt [00:29:55]

Sure.

Sunderji [00:29:55]

Those types of questions that are coming from very legitimate companies who want to follow the law, and they could get tripped up by this stuff, and so it’s important to kind of keep updated on how reviews are being, you know, sorted and suppressed and just displayed. I think that all of that stuff then factors in into another level that the NAD has dealt with a number of times. Can I advertise that I have 67,000 five star reviews? And are you able to actually say that all of those reviews are verifiable? If those reviews are only on your website but not on a third-party website, do we think that more people post favorable reviews on the company’s own website? Probably. And then did somebody get something in exchange for some of those reviews? A sweepstakes entry, a coupon, are they not completely neutral, selfless reviews that weren’t encouraged by anything? So, consumer reviews are, I think continue to be a very important area of consumer protection that I think that everybody is concerned about, and I think rightfully so.

Schmidt [00:31:03]

Well, it’s just interesting to me that as a consumer, comparative advertising and consumer reviews are two very significant ways that I’m moved to buy a product. If I look at two products and I’m trying to decide between the two and one has comparative advertisement and it does also have great consumer reviews, and so it’s interesting that as powerful as those tools are in the marketing world, they’re also, can really trip you up in litigation or FTC action or NAD investigation.

Sunderji [00:31:35]

And I think a third area that falls in all those categories, again, is also green advertising.

Schmidt [00:31:42]

Yes

Sunderji [00:31:43]

I think that people buy stuff, if they’re making a choice over two products and one says it’s better for the environment and it’s no different to me, or maybe it’s a little bit more money, I’m in. I want to help the planet.

Schmidt [00:31:55]

Yep.

Sunderji [00:31:56]

And I think that, you know, the NAD and the Federal Trade Commission are all really focused on those types of claims as well, although I believe somebody asked someone from the FTC when are the new green guides coming out and, of course, they didn’t tell us, so we’re all still waiting for those.

Schmidt [00:32:14]

Sure, long overdue.

Sunderji [00:32:15]

Yes.

Schmidt [00:32:16]

Well, that’s about all the time we have to talk about the NAD. At this point in our episode, we’d like to do what we call the Deeper Dive, and find out a little bit about you as a person when you’re not focused on all these interesting issues of advertising and the NAD. Can you tell us, Fara, if you weren’t a lawyer, what path do you think you would’ve chosen? Was there a runner-up in your career trajectory before you decided to become a lawyer, or do you really have no idea what you would be doing today if you weren’t a lawyer?

Sunderji [00:32:48]

Like any good lawyer, I’m gonna say it depends, and I feel like I have three answers to that question.

Schmidt [00:32:57]

That’s also like any good lawyer, as well.

Sunderji [00:32:59]

I sort of wanted to become a doctor, and I took all the pre-med courses, and then changed my mind, I don’t know. I just decided I couldn’t handle it. I also, at one point, really wanted to be an architect because I think architecture is really cool, but I am terrible at math. And so I don’t think that would’ve been a good career choice for me. And then I was also really interested in advertising so, I don’t know, maybe being an advertising lawyer ended up being where I was supposed to be.

Schmidt [00:33:28]

Well. that’s kind of an interesting thing about the legal profession is if you have some kind of secondary interest, whether it’s engineering for an IP lawyer or advertising for you or someone that’s interested in a particular sector or area of industry, you can cross-reference or I guess straddle that industry and the legal profession, and it allows you to sort of have one foot in that camp. Let me ask you about the future, not suggesting necessarily a career change, but it’s always interesting to find out about what people’s hobbies are. Most lawyers we have very, very little time to pursue hobbies, so the alternative question that I often ask guests is if you had a little more time over the next 10 or 15 years, and you don’t have a hobby you’re pursuing already, what interest would you like to be able to tackle and pursue?

Sunderji [00:34:24]

Sure. So before I had a child, I had hobbies.

Schmidt [00:34:29]

Sure.

Sunderji [00:34:30]

And now, I do not. But yeah, I really like taking pictures. I love to travel, and I love to bring my camera with me, and I love taking portraits of people out, you know, off the far-beaten path. It’s really interesting, it’s really gratifying, and it can, I think, when you take a camera with you places, in a way it’s like a key, and you get entry into certain places that are not on a traditional tourist path because you’re just trying to I think explore and learn and create art at the same time. And it’s a great way to travel. And I also, recently, I said I don’t have hobbies but maybe I do. I also, like everyone else, recently started playing pickleball. I was an avid tennis player for many, many years, and I stopped playing in part because my coach yelled at me too much and I couldn’t take all the yelling. And so, I recently have played pickleball a couple of times and it’s fun. It’s a little bit less, I think pressure than tennis for me, and so I’m hoping that it can be exercise and fun as opposed to just pressure.

Schmidt [00:35:43]

One more question, actually two questions in one. You mentioned travel, what incredible place have you been to that maybe is a little bit unusual, not perhaps a typical location, or what is sort of on your bucket list of a place you haven’t been to and you’re just looking forward to going when you can carve out some time?

Sunderji [00:36:03]

I’ve spent a little bit of time in Southeast Asia. I did a trip, and we did some of the bigger sights in Thailand, but we also went to Cambodia, we went to Laos, and we crossed the border into Myanmar for the day. You had to have them hold your passport at the border, which was a little nerve wracking, and come back and get it, but I’d love to go back and spend more time in that part of the world. The people were truly lovely, and it’s a place, at least when I went a couple of years ago, that wasn’t so cosmopolitanized and modernized with Western ways. I have spent a fair amount of time in London. Not recently, but as a kid I went a bunch of times ‘cause I had family, and I studied abroad there, and I went back for work after I started working between law school and college, and I noticed that when I went back at that time London felt like America. There were so many things that it, you know, had in common. There was, you know at that time, there started becoming Starbucks on every corner and things like that, and when I first started going to London you couldn’t find good coffee basically anywhere, and that was part of the charm of it, it was different and I think, you know, I do like social media to some extent and it’s helpful and it’s awesome you don’t have to lug around a travel guidebook to find good places, but the fact that no great restaurants are hidden anymore and things like that, you lose something of the adventure of travel. And I think when you go to some places in Southeast Asia and other sort of more far flung places, you still have a little bit of that.

Schmidt [00:37:47]

Yeah, that’s part of the magic of it.

Sunderji [00:37:50]

Yeah. You might not have a cell signal, and you might be wandering, and you, of course, need a guide, but it’s a little bit more magical than, you know, traveling just in an English-speaking country and knowing exactly where you’re going because everyone has been there before and they’ve told you where to go and you have it on your phone.

Schmidt [00:38:07]

Right, right. Well thank you so much for being a guest on SharkCast. I’ve enjoyed our conversation from start to finish, and I, as always, have learned a lot in the process including some of the nuances of the NAD. Can you give us one takeaway, before we close, about what clients should understand about the NAD?

Sunderji [00:38:29]

The NAD is a great resource for advertisers to check out the database, check different types of advertising to see how the NAD has decided if it is misleading, if it’s not misleading, and to look at certain points of data. The NAD has a really great discussion in many cases about survey size, about survey universes. I think that’s a very useful tool for advertisers.

Schmidt [00:38:55]

With that, I’d like to thank you again for being a guest on SharkCast, and thank our listeners for tuning in. As always, I’m indebted to the extraordinary team at Dorsey for making this podcast and episode possible. For more resources on this and other litigation risks, go to litigation risks.com where more information can be found, including a book on managing litigation risks written by yours truly. Until next time, my friends, this is yet another reminder that there are a lot of sharks swimming out there in the murky waters, so please swim safely.

Voiceover [00:39:30]

This podcast is not legal advice and does not establish an attorney-client relationship or create any duty of Dorsey & Whitney, LLP, or those appearing in this podcast to anyone. Although we try to assure that the content of this podcast is accurate, comprehensive, and reflects current legal developments, we do not warrant or guarantee those things. The opinions expressed in this podcast are the opinions of those appearing in the podcast only, and not those of Dorsey & Whitney. This podcast is considered attorney advertising under the applicable rules of certain states.