World: The day Publicis had to pay TBWA 1.55m euros

French courts have fined Publicis again, this time for poaching staff from TBWA. Is the judgment fair, Mark Tungate asks.

TBWA is supposedly one of the nicest places to work in France; unless, of course, you get a better offer from Publicis Conseil. This is the crux of the latest legal row that has dragged Publicis into court and seen it hit, once again, with a hefty fine.

After being found guilty of systematically poaching staff from TBWA\France and its sister agency BDDP & Fils, Publicis Conseil has been forced to pay TBWA 1.55 million euros in compensation for what translates as "unfair competition" and a "large, selective and premeditated" hiring of talent from the agency.

It's difficult not to feel a twinge of sympathy for Publicis. Only last autumn, the group was forced to shell out 2.75 million euros to the film director Luc Besson and his production company, Gaumont. That time, the agency was found guilty of "parasitism", having created an advertising campaign that bore a marked similarity to Besson's film The Fifth Element.

If the evidence in that case was fairly black-and-white (the commercial featured the star of The Fifth Element, Milla Jovovich, in a costume and setting that were remarkably similar to the film), the grounds for this new case are open to rather more debate.

After the ruling, Nicolas Bordas, the president of TBWA\France, issued a terse statement saying that he was "pleased the law has been respected".

Nobody at Publicis will go on the record to discuss the case. Probably, this is because the agency is weighing up an appeal against the decision, and neither side wishes to jeopardise its case by turning a legal matter into a slanging match in the media.

Instead, Bordas goes to some pains to point out that TBWA was ranked at number 13 in a list of "the best places to work in France" in a survey published by the French magazine Le Journal Du Management last September.

It was number one in the media sector, beating employers including French state television and Carat.

Why, then, did no fewer than eight senior members of staff quit TBWA and BDDP & Fils for Publicis between autumn 2003 and summer 2004? TBWA claims that they were simply made offers they could not refuse. Indeed, it based its legal case on the fact that it was unable to hold on to the employees because it could not match their hefty new salaries. So far, TBWA's loss has been limited to staff, not clients. The agency also claimed that it would have lost even more members of staff (as many as 20 altogether) if it had not offered them significant pay rises. In short, TBWA's case hinged not so much on loss of talent - it goes without saying that the departing staffers were among the cream of the crop - but on the cost of replacing them and of fending off further approaches from Publicis.

In its defence, Publicis says it hired 40 people during the period concerned, so eight from one agency is a mere drop in the ocean. It adds that TBWA and BDDP & Fils have a total staff of 320.

The Publicis recruitment drive began at the end of 2003 with the arrival of Olivier Altmann, the former president of BDDP & Fils. Along with the Publicis president, Christophe Lambert, formerly of CLM/BBDO, Altmann was charged with heading a "dream team" of advertising talent that would transform Publicis Conseil from a large but unexciting agency into a bastion of creativity.

Publicis feels that the judgment undermines the entrepreneurial spirit of the agency world - where games of musical chairs are commonplace - as well as the right of individuals to have control over their own careers.

In January 2004, just after he had moved from BDDP & Fils to Publicis, Altmann said: "Publicis Conseil is seen as an agency that uses its connections and relationships to win business. But now it wants to re-establish a reputation for creativity. When Maurice Levy told me what he was trying to do, I realised I would be a fool to miss out."

BDDP & Fils has a reputation for nurturing some of France's best-known advertising talents, many of whom now head some of the country's biggest advertising agencies, among them Remi Babinet (BETC Euro RSCG), Eric Tong Cuong (Young & Rubicam) and, interestingly, Lambert.

Announcing the appeal, Lambert told the French press that he hoped the magistrates would come to a decision "based on the freedom of enterprise".

Francois Greffe, a lawyer specialising in advertising issues, is less certain. "Nine times out of ten, the appeal court backs the original judgment. New and decisive elements will be needed to modify the judgment at appeal," he warns.

The question, of course, is whether the original judgment was fair. Mercedes Erra, the president of Euro RSCG France, comments: "An agency is a culture and not simply a group of individuals. However, it could be very destabilising for an agency to lose a large number of staff.

"The message to retain from this judgment is that it is essential to respect the culture of an enterprise, especially in our business. On the other hand, one can't stop people going where they wish."

Publicis has already paid the fine, although TBWA cannot spend the money until any appeal is over. If Publicis wins, of course, it will get its cheque back. But commentators say it is far from certain that Publicis will go ahead with an appeal. "Look what happened when it appealed against the Besson decision - it ended up paying even more," one cautions. "I admire it for standing up for what it believes in, but it should be careful."

THE CHOSEN FEW - A selection who went to Publicis

Olivier Altmann, president (from BDDP & Fils)

Guilhem Arnal, copywriter (from BDDP & Fils)

Jorge Carreno, art director (from TBWA\Paris)

Emmanuel Ferry, account director (from TBWA\Paris)

Eric Helias, copywriter (from TBWA\Paris)

Robin de Lestrade, art director (from BDDP & Fils)

Laure Quilis, client director (from TBWA\Paris)

Marie Wallet, client director (from TBWA\Paris)


The top five French workplaces (advertising and media sector)


2. France Televisions

3. Carat

4. TF1

5. Havas Advertising

Study published in Le Journal Du Management, September 2004.