[Federal Register Volume 79, Number 231 (Tuesday, December 2, 2014)]
[Notices]
[Pages 71421-71423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28347]


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FEDERAL TRADE COMMISSION

[File No. 122 3252]


Deutsch LA, Inc.; Analysis of Proposed Consent Order To Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting deceptive acts or practices. The 
attached Analysis of Proposed Consent Order to Aid Public Comment 
describes both the allegations in the draft complaint and the terms of 
the consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before December 29, 2014.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/deutschlaconsent online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Deutsch LA, Inc.--
Consent Agreement; File No. 122 3252'' on your comment and file your 
comment online at https://ftcpublic.commentworks.com/ftc/deutschlaconsent by following the instructions on the web-based form. 
If you prefer to file your comment on paper, write ``Deutsch LA, Inc.--
Consent Agreement; File No. 122 3252'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-

[[Page 71422]]

5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Linda Badger, Western Region--San 
Francisco, (415-848-5151), 901 Market Street, Suite 570, San Francisco, 
CA 94103.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for November 25, 2014), on the World Wide Web, 
at http://www.ftc.gov/os/actions.shtm.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 29, 
2014. Write ``Deutsch LA, Inc.--Consent Agreement; File No. 122 3252'' 
on your comment. Your comment--including your name and your state--will 
be placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/deutschlaconsent by following the instructions on the web-based 
form. If this Notice appears at http://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you file your comment on paper, write ``Deutsch LA, Inc.--
Consent Agreement; File No. 122 3252'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before December 29, 2014. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing consent 
order from Deutsch LA, Inc., (``respondent''). The proposed consent 
order has been placed on the public record for thirty (30) days for 
receipt of comments by interested persons. Comments received during 
this period will become part of the public record. After thirty (30) 
days, the Commission will again review the agreement and the comments 
received, and will decide whether it should withdraw from the agreement 
and take appropriate action or make final the agreement's proposed 
order.
    Respondent is an advertising agency hired by Sony Computer 
Entertainment America LLC (``SCEA'') to develop an advertising campaign 
for the PlayStation Vita (``PS Vita''). The PS Vita is a game console 
that SCEA first offered for sale in the United States on February 22, 
2012. The PS Vita is part of SCEA's line of game consoles, including 
the PlayStation 3 video game console (``PS3''), which allows consumers 
to play video games on their television sets. Unlike the PS3, the PS 
Vita is a handheld, portable game console that allows consumers to play 
games away from their television sets. In addition to selling game 
consoles, SCEA is one of many game developers writing game titles for 
use on its PS3 and PS Vita game consoles. At the time the PS Vita was 
launched, ``MLB 12: The Show'' was a popular SCEA title for the PS3.
    According to the complaint, advertisements developed by respondent 
promoted two notable features of the PS Vita. First, respondent's 
advertisements represented that, with the ``cross platform gaming'' or 
``cross save'' feature of the PS Vita, consumers could begin playing a 
game on a PS3 console, save their progress at a specific point in the 
game, and then continue that game where they left off on the PS Vita. 
Second, respondent's advertisements represented that with the ``3G 
version'' the PS Vita, available for an extra $50 and monthly fees, 
consumers could access a 3G network to play games live with others 
(``multiplayer gaming''). The complaint alleges that advertisements 
respondent developed to promote these features were false or misleading 
and thus violate the FTC Act.
    The FTC's complaint alleges that respondent made false or 
misleading

[[Page 71423]]

claims about the cross save feature in advertisements it developed to 
promote the PS Vita. For example, the complaint alleges that 
respondent's advertisements represent that PS Vita users are able to 
pause any PS3 game they are playing on their PS3 consoles at a specific 
point in the game, and continue to play that game where they left off 
on the PS Vita. Contrary to this representation, this feature is 
available only for a limited number of PS3 game titles. Further, the 
pause and save feature described in the advertisements varies 
significantly by game. For example, with respect to the game depicted 
in the advertisement for this feature, ``MLB 12: The Show,'' consumers 
are able to pause and save the game to the PS Vita only after they have 
finished the entire baseball game (all nine innings) on the PS3. The 
complaint also alleges that with respect to this feature, respondent 
failed to disclose the material fact that, with games such as MLB 12: 
The Show, consumers would have to own two versions of the same game, 
one for the PS3 and one for the PS Vita, in order to use this feature.
    The complaint also addresses advertising claims made for features 
relating to the 3G version of the PS Vita. Specifically, the complaint 
alleges as false or misleading the representation that PS Vita users 
who own the 3G version are able to engage in live, multiplayer gaming 
through a 3G network. In fact, PS Vita users are restricted to 
asynchronous or ``turn-based'' multiplayer gaming with the 3G version 
of the PS Vita.
    Additionally, the FTC's complaint includes allegations that the 
respondent misled consumers through deceptive product endorsements. 
Specifically, respondent included the term ``#gamechanger'' in its 
advertisements for the PS Vita to direct consumers to online 
conversations about the PS Vita on Twitter. According to the complaint, 
approximately one month before SCEA offered the PS Vita for sale to the 
public, one of respondent's assistant account executives sent an email 
message to all of respondent's employees asking them to help with the 
advertising campaign by posting comments about the PlayStation Vita on 
Twitter, using the #gamechanger hashtag. According to the complaint, as 
a result of this email message, various Deutsch employees used their 
personal Twitter accounts to post positive comments about the PS Vita. 
According to the complaint, these tweets about the PS Vita were false 
and misleading because they were not independent comments reflecting 
the views of ordinary consumers who had used the PS Vita. The complaint 
also alleges that these comments were deceptive because respondent 
failed to disclose the material fact that employees of an advertising 
agency hired to promote the PS Vita wrote them.
    The proposed consent order contains provisions designed to prevent 
respondent from engaging in similar acts or practices in the future. 
Part I of the proposed order prohibits respondent from misrepresenting 
any material gaming feature or capability of any Handheld Game Console 
Product when used as a standalone device to play video games. Because 
respondent is an advertising agency, however, the proposed order states 
that it shall be a defense that respondent neither knew nor had reason 
to know that such feature or capability was misrepresented.
    Part II of the proposed order prohibits respondent from making any 
representation about the material capability of any Handheld or Home 
Game Console Product to interact with, or connect to, any other 
Handheld Game Console Product during gaming, unless at the time it is 
made, respondent possesses and relies upon competent and reliable 
evidence that substantiates the representation. Again, because 
respondent is an advertising agency, the proposed order states that it 
shall be a defense that respondent neither knew nor had reason to know 
that such capability was not substantiated by competent and reliable 
evidence.
    Part III of the proposed order prohibits respondent from making any 
representation about the material capability of any Handheld or Home 
Game Console Product to interact with, or connect to, any other 
Handheld or Home Game Console Product during gaming, unless it 
discloses, clearly and prominently, and in close proximity to the 
representation, that consumers must purchase two versions of the same 
video game, one for each console, if such is the case. Due to 
respondent's status as an advertising agency, the proposed order states 
that it shall be a defense that respondent neither knew nor had reason 
to know that consumers must purchase two versions of the same video 
game to use such capacity.
    Parts IV through VI of the proposed order address respondent's use 
of deceptive product endorsements. Part IV prohibits respondent from 
misrepresenting that an endorser of any Handheld Game Console Product, 
Home Game Console Product or Video Game Product, is an independent user 
or ordinary consumer of the product.
    Part V of the proposed order prohibits the respondent, in 
connection with the advertising of any Handheld Game Console Product, 
Home Game Console Product or Video Game Product, from making any 
representation about any endorser of such product, unless it discloses, 
clearly and prominently, a material connection, when one exists between 
such endorser and respondent or any other individual or entity 
manufacturing, advertising, labeling, promoting, offering for sale, 
selling or distributing such product. The proposed order defines 
``material connection'' as any relationship that materially affects the 
weight or credibility of any endorsement that would not be reasonably 
expected by consumers.
    Part VI of the proposed order requires respondent to take all 
reasonable steps to remove, within seven days of the service of the 
order, any previously posted product review or endorsement under its 
control that does not comply with Parts IV and V of the order.
    Part VII of the proposed order contains recordkeeping requirements 
for advertisements and substantiation relevant to representations 
covered by Parts I through VI of the order.
    Parts VIII through X of the proposed order require the company to: 
Deliver a copy of the order to certain personnel having managerial 
responsibilities with respect to the subject matter of the order; to 
notify the Commission of changes in corporate structure that might 
affect compliance obligations under the order; and to file compliance 
reports with the Commission.
    Part XI of the proposed order provides that the order will 
terminate after twenty (20) years, with certain exceptions.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the complaint or proposed order or to modify the 
proposed order's terms in any way.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the complaint or proposed order, or to modify the 
proposed order's terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-28347 Filed 12-1-14; 8:45 am]
BILLING CODE 6750-01-P