Just For Feet Sues Its Ad Agency for Malpractice

During the 1999 Super Bowl athletic-shoe retailer Just For Feet ran a commercial that showed a barefoot Kenyan runner fleeing from hunters in a Humvee,who capture and drug him. When he awakes, he finds a pair of running shoes on his feet. The ad was supposed to be part of a brand-building campaign for the retailer that would help move the company away from its "Where the 13th pair is free" positioning theme. However, rather than change the image of the company, the ad created a controversy that resulted in a lawsuit that could have drastically changed the relationships between advertisers and their agencies.

Following the Super Bowl, critics lashed out at the commercial for its racial insensi-tivity. As a result of the fallout and criticism surrounding the ad, Just For Feet filed a lawsuit against its agency, Saatchi & Saatchi Business Communications, asking for more than $10 million in damages for advertising malpractice. In its lawsuit Just For Feet claimed that the finished spot, called "Kenya," was entirely different from the concept the agency first presented. Moreover, the retailer's CEO claimed in news reports that he was forced into running the spot even though he personally disliked it.

According to the company, the original concept called for a Just For Feet team coming up to a runner whose shoelace had become untied. The team would tie the runner's shoelace and give him water and a towel, the company said. The commercial was one of two that Saatchi had been considering using until immediately before the Super Bowl. A second spot showed a geeky boy playing dodge ball in a school gymnasium when the Just For Feet team comes in and rescues the boy by giving him better shoes. Just For Feet preferred this spot, the lawsuit claims, but one network rejected it, saying it was "mean-spirited and promotes antisocial behavior."

As the Super Bowl approached, Saatchi presented the final "Kenya" spot to its client. Just For Feet said it "expressed strong misgivings and dissatisfaction over the spot," according to the lawsuit, but the agency "then reassured Just For Feet that the commercial would be well received based on Saatchi's expertise and experience with national advertising and marketing, and that having committed to advertise in the Super Bowl it was too late to develop and produce another commercial or to reshoot the dodge ball commercial." Since it had already spent $900,000 on production costs and $2 mil lion for the Super Bowl time slot, Just For Feet said it had no choice but to run the "Kenya" spot.

In addition to its concerns over the creative work, Just For Feet ran into another major problem. The company planned a sweepstakes promotion, the "Just For Feet Third Quarter Super Bowl Win a Hummer Contest." In the weeks leading up to the game, Just For Feet spent $800,000 on promotional teaser spots during the National Football League conference championship games. These spots told viewers to watch the third quarter of the Super Bowl and find out how many times the Just For Feet name was mentioned. Viewers who wanted to participate in the contest could telephone or go to the company's website to enter their answers. However,the spot ran in the fourth quarter of the big game, making the contest's correct answer zero. The website would not accept zero as the answer, so "customers were left with the mistaken impression that Just For Feet was attempting to trick or deceive them," according to the lawsuit. The Super Bowl spot was bought by Zenith media, which is a sibling of Saatchi & Saatchi.

The litigation actually began just as the controversy from the spot was settling down, when Saatchi sued Just For Feet in late February 1999 for failing to pay its $3 million media bill. On March 1, Just For Feet filed its own suit against Saatchi and Fox Broadcasting. The retailer charged Saatchi with breach of guaranty and warranty, misrepresentation, breach of contract,and "professional negligence and malpractice." In the lawsuit the retailer claimed that its favorable reputation had come under attack and that it had been subjected to the entirely unfounded and unintended public perception that it was a racist or racially insensitive company.

The lawsuit raised a troubling question for the advertising community as to whether ad agencies can be held liable for the ads they produce. In its legal papers Saatchi claimed advertising is a business that has no explicit guidelines and standards and therefore that it cannot have committed malpractice. The agency also noted that the "Kenya" spot was presented to the networks and was not rejected. Many advertising executives have argued that while Saatchi may have used bad judgment in developing the idea for the commercial and carrying it forward, Just For Feet was ultimately responsible because the company approved the spot and should have taken responsibility for it.

In January 2000 Just For Feet declared bankruptcy, and two months later its assets were purchased by

Footstar, one of the largest footwear retailers in the United States. Footstar now operates over 90 athletic-footwear superstores under the Just For Feet name. The company hired a new agency, which has developed a campaign to rebuild the image of the stores. However, the former owner of Just For Feet is still pursuing legal action against Saatchi & Saatchi. A ruling in his favor in the landmark case could yet create problems for advertising agencies and have a major impact on their creative limits, as they would have to be careful to avoid making ads that might result in their becoming involved in lawsuits. The outcome of this case could still be very important to the advertising industry.

Sources: Lisa van der Pool,"Just For Feet Makes TV Return," Adweek, Feb. 19,2001, p. 2; Alice Z.Cuneo,"Can an Agency Be Gu ilty of Malpractice?" Advertising Age, Jan.31,2000, pp. 24,25; "Bad Ad Breeds Worse Lawsuit," Advertising Age, June 28,1999, p. 30.

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