A U.S. District Court judge in Seattle has certified a national class-action case against Papa John’s International that charges that the company illegally sent 500,000 text messages to consumers in early 2010. Under the federal Telephone Consumer Protection Act (TCPA) of 1991, which bars companies from sending text ads to consumers unless they’ve opted in, class action’s members, if successful in court, could be awarded $500 or more in damages per text, or more than $250 million in total. That would be one of the largest damages awards ever recovered under the TCPA, according to Donald Heyrich, an attorney representing members in the class action. The TCPA also provides for up to $1,500 in damages per violation if a jury determines that violations were willful or intentional. In various reports, Papa John’s’ SVP of legal affairs, Caroline Oyler, has stated that the company will appeal the class-action certification, “aggressively” defend against the suit, and move to have it dismissed. Papa John’s argues that it is not legally responsible for the texting, because it was not a corporate program, but was conducted by third-party vendor OnTime4U and a small number of franchisees. Five franchisees and OnTime4U are also defendants in the suit, first filed in 2010. When Papa John’s became aware of the texting a couple of years ago, it “communicated some concerns that we had” to the franchisees, Oyler told ABC News. But since franchisees are independent businesses, Papa John’s “can advise, but we can’t dictate how they run their businesses,” she said. In court documents, Papa John’s maintains that franchisees make their own local marketing decisions. The suit, however, alleges that Papa John’s “directed, encouraged, and authorized its franchisees to use OnTime4U‘s services.” The class-certification decision by U.S. District Court judge John C. Coughenour states that “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing relationship between the customers and the Papa John’s restaurants,” and that “there is no evidence on the record that any customer who received messages sent by OnTime4U gave consent” to be sent the text messages. The decision states that certain franchisees provided the text-marketing vendor with lists of telephone numbers of individuals who had purchased pizza from them, generated out of a proprietary Papa John’s “point of sale data entry system” that is downloaded onto registers in Papa John’s restaurants and tracks customer and order information. “OnTime4U removed landline numbers from the lists and sent text messages to the numbers associated with cell phones,” according to the document. The decision also cites a memorandum sent by Papa John’s in April 2010 to all of its corporate stores and franchisees stating that having investigated customer complaints about unsolicited text messages, its legal and digital marketing departments believed that the transactional business exception did not apply to messages sent by OnTime4U by exporting customer telephone numbers from its point of sale system, and that “the practice and process of sending unsolicited messages to mobile devices is most likely illegal.” Heyrich, in a statement made after the court’s certification ruling, asserted that "many customers complained to Papa John's that they wanted the text messages to stop, and yet thousands of spam text messages were sent week after week,” adding that “this should be a wakeup call to advertisers.” In August, Jiffy Lube’s largest U.S. franchisee agreed to pay $47 million in damages to settle a similar text-messaging class action, although it acknowledged no wrongdoing. In the same month, class actions were also filed against The Huffington Post (for allegedly illegal texting) and Dell, Inc. (for allegedly illegal phone calls to cell phones), according to a release from law firm Gilman Law LLP.
As more and more stores are shifting their Black Friday holiday kickoffs into Thanksgiving evening, as well as offering better deals online, the National Retail Federation is predicting that fewer people will flock to malls. But it’s likely they will spend more, and BDO is forecasting a 3.1% bump in Black Friday sales. The NRF says it expects some 147 million people to brave the Friday shopping crowds, down from 152 million last year. That includes 71 million who say they definitely plan to shop on Friday, and another 76 million who intend to venture into stores at some point over the weekend. And just as more stores are offering better deals online, consumers seem more motivated to keep up by using digital devices: 26.8% say they will check out retailers' Web sites, and 31.4% will use emails from stores to keep up with deals and promotions. Half say they will rely on advertising circulars, and 30.5% say they are counting on TV ads to keep them informed. Meanwhile, stores have high hopes for sales gains this year. BDO, which has been polling retail CMOs about their expectations for the holiday, now says these executives expect a 3.1% gain in Black Friday sales. Last year at this time, the CMOs expected a gain of just 1.6%, although actual sales came in at record pace. Other signs of CMO optimism? They expect Cyber Monday sales to jump 4.3% above last year’s results, when sales on that day hit $1.25 billion. And overall, this group expects to see lots of sale prices and promotions, with 66% predicting consumers will see more discounted prices over Black Friday weekend. And while 44% of the execs in its survey say they are devoting equal emphasis to their online and in store programs, trying to provide a more seamless brand experience, the majority tell BDO they will offer more deals in stores. Walmart, Target, Sears and Toys R Us have all said they will open on Thursday evening, despite growing complaints from associates.
Staten Island has a couple of tough situations. One is obvious and recent. The other is a complete lack of tourist revenue. In that regard, it is the forgotten borough. The good news is that pretty soon, the island will have a major tourist draw in the shape of a gigantic Ferris wheel along the lines of the London Eye, but bigger. The wheel will be a short walk from the ferry and will be accompanied by a retail mall. The only thing missing is a major sponsor, but not for lack of applicants. New York Wheel, LLC, which is behind the project, has had a short list since it started putting the program together, per David Taggart, the organization’s managing partner. He tells Marketing Daily that the timing of an announcement depends as much on the sponsor's timing. "We have lots of interest now, but the sponsor may decide to announce first." The organization, he says, is being selective in terms of naming rights: It has to be a national or global brand, with a family-friendly business. "We are talking to tech, auto, airline and finance sector brands, for example, that fit within our goals." And, he adds, it has to be a long-term commitment. "This is an icon that will be around for the long term and we want to marry that with [the sponsor/partner]." The 625-foot (about 60-stories) wheel, whose projected launch date is 2015, will be able to carry 1,440 people at a time in capsules that can each carry 40 people. One thing it won't carry is a big logo, per Taggart. Rather, opportunities for sponsorship assets include brand presence on the promenade leading up to the wheel, and on-grounds immersion experiences. "The engineers, architects, investors, and developers are very concerned about the wheel integrating physically with New York Harbor so we are not offering a billboard, but association with a first-class, unique destination -- an icon that will resonate locally and globally; and really, we don't think the right partner would be interested in a billboard-type presence." "There will be tremendous foot traffic at the wheel, so the sponsor gets the ability to get data from consumers, and brand immersions year-over-year," says Taggart, adding that other opportunties include "virtual traffic." "Individuals around the world will be exposed to the wheel [and the sponsoring brand] through social and traditional media. For the brand, those impressions are contextual." He adds that depending on who comes in, the sponsor may have specific assets in terms of co-branding on promotional materials. "Some are media entities in and of themselves so we will work with them on their branding." Richard Marin, president and CEO of New York Wheel, says there will be no problem getting tourists to Staten Island, as there are 55 million of them coming from around the world to New York and well over that from local traffic. "There are 10 million tourists who visit downtown and another 2 million who come on to Staten Island on the ferry," he said. "We are the third-largest attraction in New York." He added that there will, in fact, be opportunities for other brands to get involved. "That has to be figured out once we have an official sponsor."
After sinking to its lowest U.S. consumer satisfaction levels in two years during the first half of 2012, the imported beer sector has largely rebounded, according to YouGov BrandIndex. Imported beer has followed the same consumer perception pattern this year and last. Perception starts from its highest point in January, slides down for the first six months, and then climbs back up in the second half. But this year, the sector’s perception level sank lower than last, and still has some ground to make up to fully recover. One reason that importers improved may have been summer marketing campaigns, said YouGov spokesperson Drew Kerr. “Seasonality is very important for brands like these,” Kerr said. “We also think while beer drinkers may have rebounded with imported brands, they are still not quite smitten with how the brewing formulas have been tinkered with after industry consolidation.” Domestic beer brands remained relatively steady in consumer satisfaction the first six months of the year, but then eroded to their lowest levels since December 2010 through mid-August. This sector’s satisfaction levels have since risen modestly, and are still substantially below levels seen during the first half of the year. The domestic and imported beer brand sectors were measured with YouGov BrandIndex’s Satisfaction score, which asks respondents: "Are you a satisfied customer?" Results were filtered for respondents age 21 and over. YouGov BrandIndex measurement scores range from 100 to -100 and are compiled by subtracting negative feedback from positive. A zero score means equal positive and negative feedback. At the beginning of January 2012, the imported beer satisfaction score was 34, the highest it had been since the same month in 2011. The score declined and hit its bottom for the year on June 7 at 21. The year before, the sector’s satisfaction score skidded from 36 in January to 25 in early June. The current satisfaction score is 31. The domestic beer satisfaction score started at 15 on Jan. 2, the highest it had been since August 2008. It cooled down to the 11-12 score range for the next few months, and then swung up to an even higher 16 score on May 17. It was at this point that the satisfaction score gap between the two sectors had contracted to only 7 points, with the imported score at 21 and domestic at 14. Usually there is a 14- to-20-point gap on the average between the two sectors. Domestic beer’s satisfaction score dropped significantly from 14 on June 11th to 4 on July 13th, and now stands at 8. The current satisfaction score gap between the imported and domestic beer sectors is 23 points. YouGov BrandIndex interviews 5,000 people each weekday from a representative U.S. population sample, more than 1.2 million interviews per year. Respondents are drawn from an online panel of more than 1.5MM individuals. Margin of error is +/- 2%.
In time for the eco-centric Los Angeles Auto Show, market data firm Nielsen has come out with its finalists for best green marketers in the auto category. The firm says green advertising is actually moving the needle on purchase consideration, with consumers reporting 20% higher consideration levels versus 2011. In the lead for the top spot are Ford, Honda, Toyota, Chevrolet and Nissan, all finalists in the third annual ranking, the award for which will be presented at the Los Angeles show on Nov. 29. Auto manufacturers that ran any national TV ads with “green” themes between October 2011 and September 2012 were eligible for consideration, with the award based on how marketers raise awareness of their eco-friendly products and initiatives. Nielsen, whose study is based on a custom survey; response data from six million viewers of national television advertising; and social media “buzz, says green features in vehicles are having more appeal to consumers, with 76% of then saying high fuel efficiency is something a vehicle must have to be considered for purchase. Arguably those parameters have more to do with a buyer's pocketbook than his or her conscience. Toyota's Prius hybrid has traditionally led the segment, though it is part of a large Toyota recall. The brand has expanded over the past couple of years by adding a sub-compact variant, a plug-in, and a crossover version. Ford is preparing to roll out its own plug-in version of Fusion. General Motors, which says it is likely to sell 50,000 hybrids, plug-in electrics and eAssist mild hybrids this year just announced it will have up to 500,000 vehicles on the road with some form of electrification by 2017 with a focus on plug-in technology, including the Cadillac ELR and Chevrolet Spark EV, the latter debuting next week in Los Angeles. For its part, Ford says it has tripled to more than 200 the number of dealers certified to sell Ford plug-in electrified vehicles, the latest of which is the C-Max Energi plug-in hybrid (joining the C-Max hybrid). Ford says 900 of its dealers are now either certified or enrolled for certification. Initial plans were for about 350 certified dealers by early next year. The automaker reports that the number of new vehicle shoppers considering plug-in hybrids is at 25%. The automaker says that by early next year it will be the first automaker to sell three plug-in electrified vehicles. Nissan CEO Carlos Ghosn, speaking at the Wall Street Journal CEO Forum this week in Washington, D.C., said a strategy for alternative vehicles must be part of future product planning, partly because of transportation's dependence on oil.
It’s a good news/bad news situation for national brands. The explosive growth of private-label products is beginning to show some signs of slowing down. But they are not going away. According to the latest “Times & Trends Report” from SymphonyIRI, national brand marketers’ efforts over the past few years to combat the growth of private-label brands (spurred in part by consumer cost-cutting during a recession) have worked. “National brands haven’t just sat back on their labels,” Susan Viamari, editor of Times & Trends, tells Marketing Daily. “National brands took notice [and said], ‘We need to step up our game here.’ And they’ve worked really hard to realign their value proposition.” Although the report shows private-label products having above average and increasing share across 19 of the 100 largest CPG categories, their share is on the decline in 40 of those categories. (For the remaining 41 categories, private-label products are “up and coming,” but still have a below-average share.) With private-label growth slowing but continuing, national brands will likely have to drill down even further into consumer knowledge to really understand what motivates consumers in their respective categories, Viamari says. And they will have to be cautious not to undercut their brand promise with too much price-oriented promotion. “National brands need to be very cautious that whatever they do is going to support their brand equity and not undermine it,” Viamari says. “We talked about that when promotional activity was at a fever pitch.” At the same time, the private-label brands will have to start acting more like the national brands, cultivating their own selling proposition that may or may not move beyond mere price, she says. “I think private brands are traditional brands now, and they should be marketed as such,” Viamari says. “They’re not the alternatives and they’re not the 'me too's. They need to bring something different to the marketplace.” The upshot: both national and private-label brands will have to learn to get along. “National brands and private brands ultimately need to coexist and there’s a need and a hunger for both,” Viamari says. “It’s about working together in the marketplace for consumers.”
I got the call at around 7 p.m. on Friday, Nov. 2. Sandy had just left millions without power. It was my close friend, Fred Macri, director of digital strategy and operations at the New York Genome Center, who was stranded at a friend’s place in New York City. “Sam,” Fred said, “The marathon’s canceled. We want to rally all of the runners to clean up New York. We need to come up with a killer social strategy.” Also on the line was Dr. Andy Baldwin, former star of “The Bachelor,” a Navy doctor, triathlete, and humanitarian -- and an active social media figure with 36,476 Twitter followers to boot. Immediately, we began brainstorming. The start of #newmarathon First line of order: create a hashtag: #newmarathon. “New” because it was New York, and because it was now a decidedly different kind of marathon. Andy tweeted it out. Within minutes, he garnered 58 retweets. Good sign. Next, we needed a place online for people to go -- a home for the movement. So we decided to create a Tumblr site with three simple instructions: tweet, clean up Staten Island, and donate. Once we had our digital hub, Andy sent out another tweet. This time, he got 72 retweets -- not bad. The campaign was picking up momentum. But it was still far from being a “movement.” Here come the influencers Every step counted. Andy enlisted Josh Cox, one of the world’s most best-known marathon runners, in spreading the word. PowerBar and Poland Spring signed on. Competitor magazine, a popular publication for running enthusiasts, wrote an article highlighting our #newmarathon efforts. ESPN reposted the piece on their site. Piers Morgan displayed the #newmarathon tweet on CNN. Andy started receiving messages from people in Afghanistan and all across the world. The idea was spreading. The next day -- Saturday, Nov. 3 -- Fred, Andy, and hundreds of runners went into the trenches, working side by side with relief teams in Staten Island. #newmarathon continued to gain traction. Later that evening, Alyssa Milano tweeted the campaign to 2.3 million followers. Then Troy Polamalu, strong safety for the Pittsburgh Steelers and seven-time Pro Bowlers, shared #newmarathon with his 506,675 followers. Hundreds of others started tweeting about it. Two television stations in Florida and California interviewed Andy. As the clock approached midnight, our #newmarathon idea was quickly transitioning from an inspired spark of mission-driven creativity into a veritable real-time movement across New York City and beyond. When goodwill trends On Sunday, though -- the day our Tumblr site was encouraging everyone to pitch in -- the movement became real. Andy tweeted out a powerful photo, taken by Christina Wallace, of the marathon runners in full orange uniform, wearing their colors with pride, heading to board the Staten Island Ferry. He was met in-kind with hundreds of retweets. More and more people started to use the #newmarathon hashtag. They told people where help was needed most, and wrote inspiring words that still make me proud when I read them today, like: “#NewMarathon – the race that will never be forgotten.” Later that day, #newmarathon started trending in New York. What we can learn from #newmarathon The tremendous outpouring of goodwill from the running community that weekend was, to be sure, a (very big) group effort. Soon after the marathon was canceled, for example, the official New York Marathon began promoting the Race to Recover. #newmarathon, despite its thousands of tweets and hits on Tumblr, was not the only reason so many runners joined the relief effort. There’s no doubt, however, that #newmarathon played a meaningful role in creating a movement of marathoners across NYC to help clean up Sandy’s devastation. And there are several points that we can take away from the effort. To wit:
Lately we’ve heard a chorus of skepticism regarding the importance of viewability, and some say that there is no correlation between viewability and conversion rate. In reality, there are only three reasons why one could legitimately argue that viewability doesn't matter: