The legal skirmish in the US resulting from the loss of the dollars
125 million Mercedes-Benz business by an Interpublic-owned agency,
exposes what can be a wide gap between legality and reality in the ad
Without wishing to prejudge the outcome of Interpublic’s action against
the account man who ran the business for allegedly enticing it away, the
fact is that such cases are notoriously difficult to prove and rarely
produce a satisfactory result.
Marvin Sloves, the former co-chairman of Lowe & Partners/SMS in New
York, has denied helping the car manufacturer take its account out of
the agency and into another with which he had ’established a
relationship’. If the law is interpreted in its strictest sense, any
agency staffers who do anything to harm the interests of their employers
are in breach of contract.
The reality is rather different. There are probably many staffers
throughout the world doing exactly that every day. Indeed, were they to
abide by the letter of their contracts, it’s doubtful whether many of
the start-ups that have given the industry so much fresh impetus over
the years would ever have got off the launchpad. It would be naive
indeed to suppose that all the first, second and third wavers opened
their doors for business on the first day to eager clients queuing
For one agency to prove that an individual or a breakaway operation has
swiped an account is a nightmare. The line between whether a client was
solicited away or went of its own free will is a fine one. So much is
decided at meetings that nobody will admit ever took place. What’s more,
clients have a perfect right to go where they wish - as long as they
give adequate notice of terminating their existing contract.
All of which leaves the wronged agency with some hard choices. Suing an
individual may make it feel better, but why should it bother when the
chances of gaining adequate financial recompense are slim?
It could, of course, decide to go ahead to deter other employees who may
be tempted to try something similar. But going to court can be an
expensive warning shot.
Perhaps the most important lesson to be learned from all this is that
agencies must accept the free market for what it is - and that there is
an occasional price to be paid for its benefits.