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Members of the PDMI’s Brand Response Council test their wit — and editorial skills — by coining their own phrases to describe 2020. Click here to see their thoughts from Results' December 2020 issue.

Cannella Media's Ron Steblea writes, "Our marketing principles and fundamentals are as similar today as they were six months ago, as they were five or 25 years ago, or even 125 years ago." Click here to read his column in the December 2020 issue of Results Magazine.

Adaptability and communication — both internally and externally — buoy performance marketers Shop LC and The Habit Burger Grill as they navigate the coronavirus. By Thomas Haire Click here to read this feature from the December 2020 issue of Results Magazine via our digital publication website or simply scroll down to continue reading here. From the middle of March forward, the Performance-Driven Marketing Institute (PDMI) has — like its members — had to shift many facets of its business and remain flexible as the roller-coaster news cycle has taken us on a wild ride. As the coronavirus crisis completely upended many businesses — and the summer’s social justice protests and the fall’s presidential election each added to the discord — we, like you, have strived to find stable ground for our current and prospective customers (members and targets, alike). The PDMI’s members provide a wide variety of perspectives on the current status of the performance and direct-to-consumer marketing world. It’s those varied voices that have helped us transition — in part — from two major in-person events that were scuttled by the pandemic to an ongoing series of virtual events that serve all in this diverse industry. During those events — our PDMI Virtual Summit in June, our PDMI West Virtual event in September, and our regularly scheduled Seasonal Seminar Series and Take 20 webinars — our goal is to share our members’ expertise, mixed together with important voices from outside the membership. In the spirit of that goal — and as part of this year-end package focused on learnings from 2020 and expectations for 2021 — we asked some of the experts who have spoken as part of the PDMI’s virtual education calendar to address a brief set of questions. A pair of leaders — Amit Agarwal, president of Austin, Texas-based Shop LC, and Burge Diemer, vice president of brand marketing for Yum! Brands’ The Habit Burger Grill — stepped up to share their feedback and their vision. Agarwal spoke at our PDMI Virtual Summit, while Diemer has been part of our Take 20 webinar series, created by the PDMI Brand Response Council. As 2020 comes to an end, what do you consider the two biggest moments for your business in reacting to and living with the coronavirus crisis? Amit Agarwal, Shop LC: The first would be our team’s ability to quickly react and prepare while our local government ordered businesses and staff to stay home. The second: our ability to anticipate the essential needs of our elderly customers and provide them with access to critical merchandise to support them through this pandemic. Burge Diemer, The Habit Burger Grill/Yum! Brands: As a fast-casual restaurant brand, our No. 1 priority has been to keep our employees and guests safe by implementing various safety measures. Consumers are looking for a contactless experience, so we leaned heavily into digital order channels, such as mobile app and third-party delivery. We rapidly launched a very successful curbside pick-up program to offer our guests the ability to order ahead via our mobile app and have the food delivered to their cars. With many shifting to a work-at-home environment, how were you challenged by managing your team from home? What solutions are working to motivate yourself and others? And what steps can you continue to take to avoid burnout in the new environment? Agarwal: Our biggest challenge was not shifting to a work-at-home environment, but more so staying connected in a way that was meaningful. Our IT team was able to quickly identify work-at-home needs for each employee and accommodate them with very little downtime — if any — to the business. We quickly assembled a COVID-19 task force to monitor the situation, keeping management and employees up-to-speed with local ordinances and recommended safety measures, and facilitating questions and concerns. We continue to have a weekly "all-hands" meeting to connect with as many employees as possible — typically 200-plus team members. We use this time to educate, inform, say "Hi" to each other, and have a little fun in the process. Diemer: Our team quickly adapted to virtual working, and the overall productivity has been great. In a dynamic, multi-generational work environment, there are varying levels of technology skills, so we had to train each other on how to use certain features. Communication and staying connected are key, so we have 30-minute virtual huddles to discuss our key priorities for the day and the week. We also remember to have fun by celebrating birthdays and having virtual happy hours to celebrate our successes, which keep everyone engaged and motivated. Looking ahead to 2021, how far out are you planning your marketing efforts? And how have the events of the past nine months changed future marketing planning within your company? Agarwal: We keep our marketing timelines fairly tight, operating three-to-six months out. This helps us stay nimble and helps avoid wasted costs that could be incurred with change of direction. The past nine months are a reminder to continue to think about how we do things. Especially with COVID, we are finding that our customers need empathy and — more than ever — just need someone to talk to. As we make our way out of COVID, we will continue to emphasize the customer experience throughout our entire customer journey. Diemer: We are still focusing on implementing our key strategies for growth and remaining laser-focused on ever-changing consumer needs. We have built in flexibility and contingencies to shift our marketing and promotions calendar. Which media outlets do you believe will be most effective in a multichannel, performance marketing campaign in 2021, and why? Agarwal: There are several outlets that are strong for Shop LC. However, we believe the most effective for the coming year will be: lower channel positions on traditional TV platforms, streaming, and social influencers. Diemer: Targeted social and digital media with relevant content will continue to be key vehicles to increase awareness and trial for our brand. How can marketers both safeguard their business’ success in these shifting times, while also taking the kind of calculated risks that often push them to a new level? Agarwal: If you don’t try, you will never know. I always encourage my team to A/B test where possible to seek to truly understand what worked and what didn’t. Likewise, we will continue building a culture of innovation and rewarding people for great ideas — even if they fail. Diemer: We have taken a fail-fast approach. When we introduce a new technology or order channel, it is all about testing, learning, and pivoting versus perfecting a product or service from the get-go. We rely heavily on our field operations and guests to provide us feedback for improvement. What is your one fearless prediction for the performance and direct-to-consumer marketing world in 2021? Agarwal: COVID-19 has forced all things digital to accelerate! The days of waiting in a checkout line on Black Friday may be over. The important thing is that you don’t sit still and wait for someone to figure it out for you. Keep thinking of ways to reinvent yourself and your company. If what you are doing today isn’t working, then what are you going to create that does work. For example: don’t make crayons when kids want keyboards. Figure out a way to develop a solution that solves both. Diemer: Consumers’ experiences with COVID-19 will redefine their behavior and the brands they engage with. The savvy marketers will continue to invest in building new technologies and analytics capabilities to engage with consumers one-to-one and serve relevant messages throughout the customer journey.

DISH Media's Dan Kelly and Sean Robertson ask, "How do you plan for the unknown?" Click here to read more from their column in the December 2020 issue of Results Magazine.

Leaders from PDMI member companies share their visionary expertise as the performance marketing industry heads into a new year. What are their fearless predictions for 2021? By Thomas Haire This is the cover story of Results Magazine's December 2020 issue. Click here to read this feature via our digital publication website or simply scroll down to continue reading here. Is anyone else ready to leave 2020 behind? Our longest and shortest year — time dragged and flew, seemingly bending with each twist to the year’s ridiculous storylines — provided one challenge after another. And that’s putting it kindly. We’ve all spent so much time this year looking back and wary of looking ahead — but we’re all still a little unsure of what next year holds in store. But look ahead we must. So, we at the PDMI thought: what better opportunity to break the chains of wariness — and look forward with anticipation rather than dread — than to hear and consider our members’ predictions for 2021. So, in late October, we reached out to all PDMI member companies asking one simple question: What’s your fearless prediction for 2021? During the following weeks, visionary leaders (we hope!) from 16 PDMI member companies took us up on the offer. With responses ranging from somber to celebratory and from amusing to enlightening, our members’ thoughts touch on nearly every facet of the performance marketing industry. Let’s hear from the PDMI membership about what they believe is not just possible but likely to happen during the next 12 months. Dieter Ammann, Fulfillment Express At Fulfillment Express, we have been experiencing phenomenal growth this year, because of the pandemic and Amazon. Because Amazon is at capacity in most of its fulfillment centers, it is making some of its sellers remove excess inventory. Sellers that previously were shipping container loads of merchandise into Amazon for FBA (Fulfillment by Amazon) are now forced to ship smaller quantities, more frequently — Hence, more business for us. This has also driven higher volumes of FBM (fulfillment by merchant) orders. I foresee the growth continuing through 2021, simply because Amazon has found its groove in dealing with the vast number of sellers and shortening their inventory storage. The pandemic has forced everyone to buy online, and those of us in the logistics business have benefitted greatly from that. People are much more comfortable ordering online, and I believe this will continue past next year. People are going to be slow going back to buying from brick-and-mortar stores, and the fallout for those retailers will continue to take its course, driving more people online. Al Diem and Matt Greenfield, Cannella Media A COVID-19 baby boom will spark the emergence of new direct-to-consumer (DTC) brands for home delivery of baby goods. Amazon will create brick-and-mortar "Baby Centers" to compete with Walmart and Target. In related news: family, friend, and coworker baby shower fatigue sets in, registries go away, and new parents are on their own. Large traditional brands will continue a steady migration to DR — and Cannella signs Coca-Cola for a new DTC campaign! Web attribution becomes as reliable as phone-based attribution. All the walled gardens release their data to external attribution partners and agencies. Chris Foster, Modern Postcard 2021 is the year of "cozy": soft products, advertising display, comfort products, home self-care, CBD, crafts, etc. This will be a growth space that cuts across industries but has the primary characteristic of customers showing an increased interest in cozy. You’re seeing retail stores have more soft fabrics, fabric block lettering, pillows, blankets, "calming" bath bombs, etc.; online searches for "crafting" are exploding; Netflix has imported more "Hallmark"-style movies into their lineup; CBD for anxiety and as a sleep aid is expanding and expected to double in four years. More themes, products, brands, and growth around people being cozy and safe are on the horizon for 2021. Anat Freed, Kingstar Media It seems nearly impossible to make a prediction for 2021 given the whirlwind of 2020, but one thing that we have confidence in is the ongoing surge of DTC brands moving more ad spend to traditional media like television. Seasoned advertisers understand that TV is an imperative part of their top-of-funnel marketing plans. However, I believe we are really just seeing the tip of the iceberg of DTC brands eating up a larger share of voice on TV. With consumers expected to spend the majority of their days at home during the winter and spring months due to COVID-19, it only makes sense to include TV in marketing efforts to maximize their reach. We are seeing some of the lowest CPMs in years and know that TV works best when telling the story of your brand to a large audience. This will, in turn, drive higher levels of web traffic, opportunities for digital retargeting, and help them remain competitive among the rest. Ed Glynn, Locke Lord The Supreme Court will reverse the Ninth Circuit’s decision in AMG Capital Management v. Federal Trade Commission (to be argued in the first part of 2021) thus eliminating the FTC’s ability to get consumer redress in an injunction action in federal court. The result will be a legislative struggle to amend the FTC Act to explicitly grant such power to the Commission and restore an enforcement tool the FTC has utilized since 1982. Joseph Gray, DRMetrix Based on DRMetrix’s prior studies, we’re feeling very optimistic about the performance-based television side of the industry in 2021. We anticipate historic levels of TV spending from traditional DTC advertisers that leverage consumer-response attribution in order to track their media efficiency ratios (MER) to the network and daypart level. These types of advertisers have been uniquely positioned to measure consumer sentiment during the COVID-19 crisis. The combination of higher viewership levels and lower media rates fueled 2020 industry growth like never before. Moving into the latter part of Q4, with the political season behind us, we expect to see a huge upswing continuing through Q1 of 2021, which may very well become another record-breaking year should traditional brand campaigns continue to hold back on television spend. Linda Goldstein, Amy Mudge, and Randal Shaheen, BakerHostetler With Joe Biden being sworn in as our next president, the FTC will shift to Democratic control. Our prediction is for an even more aggressive FTC — but with a twist. Even under the current Republican-controlled FTC, the Democratic commissioners have been calling for more aggressive enforcement against bigger, more established corporate advertisers as opposed to simply focusing on smaller players engaged in fraud. Larger, more established corporate advertisers offer deeper pockets and are often engaged in activity that impacts a wider segment of the population, so look for the FTC to become more aggressive when it comes to more traditional advertisers. Also, look for the FTC to demand even more significant monetary relief, whether in litigation or as part of a settlement. The Democrats’ criticism of a recent $5 billion privacy settlement as being too low is a good predictor of things to come. The twist is that while the FTC is looking for even bigger money cases, the Supreme Court will decide whether the FTC has the authority to obtain consumer restitution under Section 13(b) of the FTC Act. Even we aren’t bold enough to predict how the Supreme Court might rule — but we wouldn’t be surprised if the Supreme Court at least clips back the FTC’s authority in this area. If that happens, we predict a more aggressive push by the FTC to persuade Congress to come to its rescue by passing legislation directly expanding its ability to obtain penalties and other monetary relief. We also predict that 2021 may see increased regulation and scrutiny of social media practices and the big technology giants. Congress is already looking at increasing oversight of the major social media platforms, and the Biden administration is likely to be sympathetic to those efforts. One major shift could be the elimination of Section 230 of the Communications Decency Act, which currently provides ISPs with immunity for content posted on their sites. Marketers have also relied on this provision as a shield against actions resulting from third-party content posted by users of the site. The Biden administration has already indicated that it is supportive of those efforts. Activity in the Department of Justice’s recent antitrust action against Google may also signal major changes for the giant tech companies to come. Amit Khubani, Ontel Products Direct response should continue to be strong through 2021. Until we have a vaccine, or the unlikely natural herd immunity, the most vulnerable in society will remain cautious and likely stay home. This is generally our core customer, so DR results should benefit from the additional viewership in this demographic. Even though people are abandoning cable at alarming rates, our core customer likely will not. The larger marketers with retail presence will be the biggest beneficiary of increased TV viewership, as our distribution in "essential" retail has increased significantly with the added TV exposure. Strong TV, leading to great retail sales, will definitely help to keep the categories alive in the mass market. As long as the category lives on at retail, marketers will continue to spend on TV, call centers, web marketing, fulfillment, and logistics — which should help to maintain, or even grow, the industry for 2021. Fern Lee and Lori Zeller, THOR Associates THOR predicts in 2021, the industry will continue to morph to a more permanent work-at-home model, diminishing flex time, which has been regarded as an employee benefit. Flex time suited the needs of the employee (including working from home), offering a change in terms of start and finish times, job sharing, and working part time. Replacing this will be "agile working," which is business-driven, utilizing technology platforms. Employees will be given the leeway to work from anywhere provided business needs are met. Successful agility in the workplace may result in higher productivity and lower costs that will strengthen the P&L. This will only occur with marketing technology driving the exchange of information. That said, THOR predicts the following logistics and operational efficiencies in our industry: video conferencing will be a welcome addition to call center services and privacy regulations will redefine information capture; merchant processing will go through a governmental overhaul with changes to royalty payments and tax withholding; fulfillment will need organizational delivery construction as Amazon and e-commerce orders become habitual for personal and professional retail; and customer service will be a priority for marketing. Also, travel restrictions are changing the way business is conducted. The use of video telephony (Zoom, Team Meeting, Google, etc.) has provided solace that work gets accomplished without the need of a conference room meeting. Using these changes as an example, there will be a complete overhaul to company culture, resulting in weakness to the organizational structure — goals will change and KPIs (key performance indicators) will change. The past 10 years provided opportunities for boutique digital and traditional agencies. In 2021, these small businesses will see a wave of acquisitions, forming multi-industry services with a multi-national reach. The result will create larger parent companies with varied product offerings, allowing for a new and wider base of customers and redefining our industry at large. Marcelino Miyares, d2H Partners Our No. 1 prediction for 2021 is also our biggest challenge — from a Hispanic/multicultural perspective. The U.S. Census report will be released in the first few months of the year. It has not come without controversy regarding the accuracy and representation of undocumented immigrants, as well as other non-white racial and ethnic groups in general. The report will be confrontational — essentially documenting the emergence of a non-white majority in the United States. On the one hand, this should lay out an obvious and wide-eyed roadmap for growth for virtually any marketer in the U.S. But, on the other hand, I have counseled clients during the previous three decennial counts and very little seems to change in the apathetic attitude of most advertisers toward the Hispanic market. My prediction this time around is that our contributions to the economy, to innovation, and to essential coronavirus industries will finally be reflected in the growth of diversity marketing initiatives throughout our industry. Heather Molina, Red Door Interactive Marketers better stay agile. Why? Because we will continue to see marketing plans focus on the shorter stints (rather than longer three-six-12-month locked-in plans) as we continue to ride out this pandemic. Consumer behavior patterns in media consumption — and spending habits that developed in 2020 as a result of it (and everything else that has unfolded this year) — will continue to be unpredictable. So, 2021 will be about performance marketers truly showcasing their ability around agility with data and performance — and ready to activate more quickly to change things up based on what they are seeing. If marketers/planners can’t adapt quickly, they will be of no use to anyone. Andrea Pass, Andrea Pass Public Relations When it comes to public relations outreach related to the performance marketing industry, I see continued growth in securing press coverage in new media: podcasts, LinkedIn Live and Twitter broadcasts, and the increasing world of blogs and online media outlets. While traditional broadcast and print media covers the industry, earned media opportunities continue to decrease in these categories as pay-to-play interviews and coverage are on the upswing. Marketers and business service providers alike benefit from public relations outreach and recognize the value of increasing brand awareness, growing reputation, and driving sales with a PR component in marketing mixes. Today’s companies are looking for authenticity and use news coverage to do research leading to sales. Since the public continues to secure information from media, the performance-driven category will certainly get its share of press coverage in 2021. Kyle Patten, Univision Communications My prediction for 2021 will have most people saying "accelerated digital transformation of consumer habits" but I think it’s more awareness about privacy due to regulations and big tech. How that will play out will be interesting. Viewing habits will continue to migrate to different platforms: OTT/CTV, podcasting, social. Nielsen measurement just launched a new way of aligning CTV measurement and understanding and verifying an ad’s audience across smart TVs. The AVOD and SVOD spaces will continue to provide consumers with more content options, but the competition for eyeballs has never been higher. Patrick Raymond, Really Cool Ideas During what has been a perilous 2020 across the world, companies and professionals in the performance marketing business were given an incredible opportunity with a more engaged audience at home. This offered opportunity to focus directly on relationships with our audiences and/or customers, whatever the case may be. I’ve seen leaders in our businesses put into action planning that had been waiting idle or even create and implement brave new ideas and action plans in a month or two that normally would take a year or more to put in place — all while navigating the tough times we are living in. It’s been a real-time experiment on what happens when forced to think outside the box and fix what doesn’t work fast without relying on what was done before — and put into action the now while blueprinting the shape of the future. As we move into 2021, and hopefully start to emerge quickly from the pandemic mid-year, we will learn from everything we were doing both right and wrong before our planet’s most challenging year in generations, but also take the new innovations and ideas we all put into our respective businesses during this time. Those will garner more exponential growth that will surely domino across all businesses specializing in performance marketing. We have learned how nimble we can be, adjusting with our changing world in real time without putting too much red tape in the way, and this will undoubtedly continue in 2021 and beyond as we build and grow our businesses. A very happy 2021 to all! Greg Sarnow, Allegro Response The marriage of technology and people seamlessly working together will change the landscape of sales, customer service, and business process automation in the direct-to-consumer space like never before. This will help redefine performance, as the expectations of consumers and marketers alike dramatically increase. This will also create another round of acquisitions as the capital investments necessary to fulfill these new expectations will be significant. But, more importantly, marketers and vendors will scramble to catch up to the levels of service required to improve customer satisfaction, increase sales, and improve lifetime values. Branding will be influenced far more by technology than ever before. Shira Witelson, RSLT In November, Pfizer and Moderna provided some optimism. Vaccines might be ready for distribution in the coming months. If these prove to be efficient and the distribution progresses smoothly, then by the end of spring 2021, life might begin to return to some normalcy. Nevertheless, health concerns will not dissipate quickly, and customers will want to feel secure. Messaging will probably focus on safety compliance in order for major players to gain trust and make a comeback. Our prediction for 2021? Analytics departments will revamp how they measure loyalty and engagement. Reporting will adapt to include new key performance indicators. Monitoring customers’ levels of trust, brand adaptability indices, and industry interest scores, will all be included in weekly reports. Insights around brand agility and adaptability will become the norm.

By Theresa Weed Director of Sales, Advertising Direct response (DR) marketing is all about fast-tracking consumer engagement, and that means packaging your value proposition with an immediate call-to-action (CTA). Being a regular sponsor of the PDMI’s events during the past several years has enabled Yangaroo and our expert DR team to demonstrate our focused DR services onsite to a niche industry that has typically had little choice in ad distribution suppliers until now. If you're not a PDMI member - click here and check out all the awesome benefits for joining. From customization to short- and long-form delivery, Yangaroo has become a one-stop-shop for DR clients looking for a single solution to all their versioning and delivery needs. Many of our clients’ direct marketing campaigns require Yangaroo to first customize short-form and long-form content by adding in unique 800 numbers, URLs, voiceovers, calls-to-action, or captioning to a base master. Our knowledgeable in-house video team provides a quick turnaround, getting each spot versioned and approved before sending the media to broadcasters via our connected platform. Yangaroo’s Customized Bundle pricing makes this process even more straightforward by including customization and delivery to each station for one discounted rate. Let’s talk about those 30-minute infomercials. It wasn’t so long ago when it was nearly impossible to send anything longer than a two-minute spot electronically. Either TV stations weren’t set up to receive long-form content digitally into their short-form workflow, or physical tapes had to be made and shipped to broadcasters via FedEx or UPS, which was time-consuming and expensive. Happily, that has changed and — as more broadcasters updated their processes and came online for receiving long-form — we were right on board. We significantly expanded our network to easily include sending 15-minute, 30-minute, or 60-minute content directly into broadcast traffic operation centers — no tapes necessary! We have been able to witness, first-hand, the fantastic success of so many of our direct response clients and, in 2017, Yangaroo began working with a small, relatively unknown company that wanted to test its new skin product in a few U.S. markets. In just three short years, that product is now arguably one of the largest, well-known, successful DR brands that has exploded into nearly every market in the United States and Canada. Today, they — along with many other DR clients — continue to produce both short-form and long-form advertising content to expand their reach while bringing innovative products to the consumer. Yangaroo is proud to be a part of that journey and continues to watch how DR advertising aids in their consistent growth. Theresa Weed is director of sales, advertising for Yangaroo. She can be reached at (917) 913-8684 or via email at theresa.weed@yangaroo.com.

Tom Marsillo and Phil Estevez of Emerging Networks While the nation and the economy continue to flounder in the throes of the worst pandemic in a century, one media company has been experiencing record-breaking growth throughout the pandemic. Emerging Networks LLC has just recorded its 11th-consecutive quarter of double-digit revenue growth. Best of all, the exponential growth shows no signs of slowing in the future. How has the company managed to outperform the industry in a time of economic contraction and shrinking media budgets? Emerging Networks is America's largest multicultural television platform, representing the full spectrum of new and emerging markets in all their diversity. Emerging Networks is the only multicultural media platform serving the South Asian, Arabic, and Filipino markets — as well as numerous other emerging ethnic segments in the United States — with national and local commercial ad insertions and event marketing. Emerging Networks provides an efficient one-stop shop for clients and agencies looking to tap into the fastest growing and most affluent ethnic segments in the country. Here’s a brief overview of Emerging Networks’ success: Tom Marsillo, CEO, and Phillip Estevez, executive vice president, have more than half a century of multicultural sales and marketing experience between them, and they’ve held executive positions at numerous blue-chip media companies. Emerging Networks was their brainchild — an idea that had been fermenting for years — and in 2013, they finally launched it. It has been a runaway success since day one and has surpassed their own expectations. ‘We have always kept the emphasis on delivering results.’ At Emerging Networks, we have always kept the emphasis on delivering results, and during this pandemic our team really came together to make things happen. We always give credit where it's due — especially with our clients and agencies, who have really been there for us from the start. Expressing gratitude to them is important, especially in these surreal times where a lot of business decisions are not 100-percent rational or consistent. Far too many business decisions are being made subjectively rather than objectively. ‘Sitting on the sidelines and keeping your powder dry is tantamount to marketing malpractice.’ One of the biggest problems we continuously face is agencies not practicing what they preach when it comes to inclusion and diversity. People are often prone to the path of least resistance, meaning they ’ll go with whatever option requires the least amount of work or pushback. We are going through a scary and unprecedented time. Admittedly, taking risks can be intimidating — but taking smart, calculated risks can have big payoffs. By taking a smart, calculated risk, we mean considering the expected outcomes based on historical performance, determining the potential of success, and if the payoff is worth risking the investment. At Emerging Networks, we have always made it clear in any new business situation that the risks in working with us are virtually non-existent, since the initial investment levels are so minimal while the return on investment can be huge. In our experience, we’ve seen far too many agencies afraid to leave their comfort zones resulting in missed opportunities for their clients. Appearing principled in your efforts is a lot easier than adhering to strict principles. We have seen quite a bit of that during the pandemic. People are far more likely to sit on the sidelines, try to wait it out, and hope to return to normalcy — but they’ve already lost three quarters of a year — with no end in sight. Sitting on the sidelines and keeping your powder dry is tantamount to marketing malpractice. Agencies who support this strategy are not doing their clients any favors. More often than not, taking a small calculated risk is the only way to achieve greater success. ‘Doing nothing is actually losing money.’ In fact, we can point to numerous examples — in virtually every category — where doing nothing is actually losing money. The past six months have seen exponential growth in the DR industry and, frankly, opportunity for savvy marketers like we have never seen before. Unfortunately, many panic-stricken marketing directors have suffered decision-making-paralysis and have really missed the boat. Simply staying fact-based and data-driven has paid big dividends for Emerging Networks’ clients. Here are a few of examples of the dramatic success Emerging Networks’ clients have experienced: A lot of things jump out in these slides. First, there appears to be no single category that benefits most from investing with Emerging Networks. You could not find four more disparate categories than internet hosting, online trading, telemedicine, and not-for-profit — yet all have seen exceptional growth and have subsequently increased their investments accordingly. ‘This evidence is 100% performance-based.’ So, this begs the question: what’s the secret? “I wish I could tell you something deep and mysterious, but the secret is there is no secret,” Marsillo says, with a laugh. Simply staying the course, and in most cases increasing investment, has paid big dividends. Our viewer base has shown itself to be largely impervious to the effects of the pandemic. The growth we’ve experienced in the past few quarters is far greater evidence than any ratings book could ever deliver. Our evidence is 100-percent performance-based — not some numerological mythology — that is reflected in greater sales, not in CPMs. Emerging Networks’ top-rated platforms include Sony Entertainment Television, Willow Cricket, The Filipino Channel, Myx TV, the MBC Group, TV Asia, Diya TV, NDTV Networks, Aaj Tak, Jus Broadcasting, Sahara TV Networks, Soundview Broadcasting, Times of India, and the Asian Variety Show Network. Other new ethnic segments and networks will be announced in the upcoming months. Emerging Networks tends to work far more intimately and on a one-on-one basis with their networks than most sales reps. Our commitment to our advertisers’ success speaks for itself. We spend a lot of time analyzing results in order to optimize network performance. With a portfolio of 80 television networks, we have the flexibility to offer a variety of programming genres that deliver different demographics. Whenever we share our accomplishments in a medium like this, we must focus on recognizing the support of our networks, agencies, and client partners — without them, we would be nothing. We are enormously grateful to the companies that have given us this opportunity, and motivated that so many people are interested in hearing our message. We are genuinely excited about our company’s achievements thus far and look forward to sharing it with as many clients as we can. With so many companies struggling just to stay alive during the pandemic, we realize just how lucky we’ve been to experience such success during this time. It motivates us reach out and offer to provide support and guidance to any clients who seek it. A big part of our business is gathering information and insights into our consumer audiences — and it is information that we are happy to share. At unique time in our in our industry’s and our nation’s history, it is important to remember that we are all in this together and we need each other’s help and support more than ever. For more information on Emerging Networks: Tom Marsillo President tom@emergingnets.com (732) 492-8559 Phil Estevez EVP/Managing Partner phil@emergingnets.com (646) 460-2446

By Leonard L. Gordon, Mary M. Gardner, and Michael A. Munoz This fall, the U.S. Supreme Court is set to hear two consolidated cases that will have a far-reaching impact on the advertising and marketing industry. The issue before the court is whether the Federal Trade Commission (FTC) can obtain equitable monetary relief, such as disgorgement, under Section 13(b) of the FTC Act — and, if so, how that relief might be measured. Although, on its face, Section 13(b) only authorizes the FTC to seek a permanent injunction as a remedy to “unfair methods of competition” and “unfair or deceptive acts or practices,” until recently, courts have routinely held that the FTC’s authority to seek equitable monetary relief under Section 13(b) is implied in their authority to obtain injunctive relief. Recent challenges to the FTC’s authority — and subsequent shift in lower courts’ jurisprudence — have brought this issue to a head before the Supreme Court. In the first of the two cases, AMG Capital Management v. FTC, the Ninth Circuit determined that a court’s equitable powers to order monetary relief, including disgorgement, are implied within the phrase “injunctive relief.” Specifically, the Ninth Circuit relied on precedent that held “injunctive relief” invokes the court’s equity jurisdiction to deprive wrongdoers of their unjust gains. Notably, several members of the Ninth Circuit wrote a concurring opinion calling into question the prior decisions on which the majority relied to support its conclusion. The concurring judges specifically noted that such a broad reading of Section 13(b) is no longer tenable where it renders meaningless Congress’s express limitation on the FTC’s authority. In stark contrast, the Seventh Circuit — in FTC v. Credit Bureau Center — overturned past precedent in favor of examination and interpretation of the plain text of Section 13(b), as well as the overarching statutory scheme of the FTC Act. Based on this textual analysis, the Seventh Circuit determined that Section 13(b) only authorizes the FTC to obtain restraining orders and injunctions — not monetary relief. Furthermore, the Seventh Circuit noted that, because Congress provided for equitable monetary relief under Section 19 of the FTC Act, the absence of such relief from Section 13(b) demonstrates Congress’ intent that the FTC use other sections of the FTC Act to obtain monetary relief. Underlying these cases is a recent decision from the Supreme Court regarding the U.S. Securities and Exchange Commission’s (SEC) authority to recover equitable monetary relief. In Liu v. SEC, the statute at issue allowed the SEC to obtain “equitable forms of relief.” Liu argued that the disgorgement award that the SEC obtained was a penalty, and therefore did not constitute “equitable” relief permissible under the statute. Though the Supreme Court found this argument unpersuasive, it did hold that the SEC’s authority to obtain disgorgement is limited to a defendant’s net profits, i.e., gross profits gained from the defendant’s unlawful conduct minus legitimate business expenses. The court also held that disgorged funds must be returned to investors when feasible, rather than benefit the public at large. Finally, the court called into question the imposition of “joint-and-several liability” where it “could transform any equitable profits-focused remedy into a penalty.” Ultimately, the Court remanded to the Ninth Circuit to determine whether the defendants can be found liable for profits as “partners engaged in concerted wrongdoing.” Given the parallels between the SEC’s and the FTC’s authority, the Liu decision is already having an impact on FTC enforcement actions wherein the FTC typically seeks to hold defendants jointly and severally liable for the entirety of consumers’ losses from the alleged wrongful conduct, rather than for net profits defendants gained from allegedly illegal conduct. Indeed, Liu may have a particularly dramatic impact on intermediaries and other service providers involved in alleged wrongful conduct at the center of FTC litigation, such as payment processors, whose net profits from alleged unlawful conduct are typically dwarfed by the alleged total losses to consumers for which the FTC seeks to hold that defendant responsible. Because these cases will significantly impact the potential financial liability of those that may find themselves subject to FTC investigations and enforcement actions for “unfair or deceptive acts or practices,” it is worth monitoring the Supreme Court’s decision, expected before the end of the court’s term in late June 2021. The authors and others at Venable have considerable experience representing advertisers, payment processors, and merchants in FTC investigations and law enforcement actions, including matters litigating the FTC’s enforcement authority under Section 13(b) of the FTC Act and issues related to regulatory compliance, risk management, and other consumer protection concerns. For more information, visit Venable’s Advertising and Marketing practice at www.venable.com/adlaw.

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