March 21, 2023

ESPN Quits Film Project on Concussions in N.F.L.

ESPN belatedly focused on the fact that it did not have editorial control of what appeared on “Frontline” long into a collaboration that has already resulted in nine joint television and online reports that have appeared on ESPN’s “Outside the Lines” program, on and on the “Frontline” Web site. Together they also created Concussion Watch, a database that tracks concussions and other head injuries in the N.F.L.

Chris LaPlaca, an ESPN spokesman, said, “In hindsight, we should have reached this conclusion much sooner.”

But Raney Aronson-Rath, the deputy executive producer of “Frontline,” said that ESPN executives had for more than a year understood the ground rules of the collaboration: “Frontline” would keep editorial control of what it televised or put on its Web sites, and ESPN would have control of everything it televised or posted on the Web.

“We were about to share a cut of our film with them,” Aronson-Rath said, “and we welcomed their input.” But ESPN would not continue with the venture with “Frontline,” which has won 15 Peabody Awards.

In a statement, ESPN said: “Because ESPN is neither producing nor exercising editorial control over the ‘Frontline’ documentaries, there will be no co-branding involving ESPN on the documentaries or their marketing materials. The use of ESPN’s marks could incorrectly imply that we have editorial control.”

ESPN added that it would still “cover the concussion story through our own reporting.”

LaPlaca said ESPN’s decision was not based on any concerns about hurting its contractual relationship with the N.F.L.

Last Sunday, “Outside the Lines” carried a critical report as part of its “Frontline” collaboration about Dr. Elliot Pellman, a former chairman of the league’s research committee on concussions whose qualifications for that position were questioned. He resigned in 2007.

Even with ESPN no longer identified as a collaborator on the “Frontline” films, they will retain a clear ESPN flavor because they are heavily based on the reporting of Steve Fainaru and Mark Fainaru-Wada, brothers and investigative reporters for ESPN. They are the authors of a book, “League of Denial: The NFL, Concussions and the Battle for Truth,” set to be published Oct. 8.

The documentaries will run on Oct. 8 and 15.

 “We’re obviously disappointed because the partnership has been a phenomenal one and we don’t totally understand what happened,” Fainaru-Wada said. Referring to ESPN, he added, “Nothing we’ve been told by anybody suggests that they’re backing off on the journalism.”

Aronson-Rath said that until last Friday, there had been no hint of trouble between “Frontline” and ESPN. She said that “Frontline” had worked “in lock step” with Vince Doria, ESPN’s senior vice president and director of news, and Dwayne Bray, senior coordinating producer in ESPN’s news-gathering unit.

But in conversations last Friday and Monday with Doria and Bray, she was first told that ESPN did not want its logo to be connected to the films.

“It didn’t appear that it was their decision,” she said.

Aronson-Rath said that the Fainaru brothers started working with “Frontline” before ESPN was asked to collaborate. “The response we got from them was terrific, and everyone was very excited,” she said.

The N.F.L. was not supportive of the documentary. Greg Aiello, a spokesman for the league, said it declined to make Commissioner Roger Goodell and other executives available for it. The league allowed the doctors who advise it on concussions to decide themselves if they wanted to take part.

 “Frontline” has interviewed several doctors who advise or have advised the league, but Aronson-Rath said three members of the N.F.L.’s head, neck and spine committee recently agreed to on-camera interviews before canceling them.

Ken Belson contributed reporting.

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Advertising: That Hawaiian Tropic Scent, No Bikini Required

Now Hawaiian Tropic is retiring its bikini contest, which has not been held in the United States since 2008 but has continued in Australia.

Ending the pageant underscores a shift that began when the personal care division of Energizer Holdings acquired Hawaiian Tropic in 2007.

Replacing the bikini contest is one that focuses above the neck, with a search for what the brand is calling the new face of Hawaiian Tropic. The contest, which will be held through the brand’s Facebook page, will ask contestants to fill out a character profile with the aim of, as marketing materials put it, finding the “woman who best embodies everything Hawaiian Tropic now stands for — beauty, confidence, style, enjoying the sun and keeping skin healthy.”

Facebook users will choose a winner who will get a vacation to Hawaii and be featured as a spokeswoman in an advertising campaign.

The contest will begin May 6, when advertising will be introduced on Web sites including Facebook, Pop Sugar and Just Jared. Online advertising for the contest, by Grey New York, part of WPP, asks, “Are you more than a pretty face? Prove it.”

Hawaiian Tropic, which declined to say how much the effort would cost, spent $6.1 million on advertising in 2012, according to the Kantar Media unit of WPP.

About 70 percent of Hawaiian Tropic users are women, and the company’s advertising is directed at women age 18 to 34.

“Bikini contests as a tactic just don’t resonate with our consumer and don’t fit with who the brand is now,” said Danielle Duncan, the brand manager for Hawaiian Tropic.

The familiar coconut scent of Hawaiian Tropic can have a “transportive property” when “you smell it and you feel like you’re at the beach,” Ms. Duncan said. The brand has in recent years promoted the scent and other sensory aspects along with sun protection.

Newer lines are named for qualities other than efficacy. Sheer Touch, introduced in 2011, is formulated to absorb quickly, and Silk Hydration, introduced in 2012, has additional moisturizers.

“We’re taking cues from skin care products and putting a lot of those beauty and skin care benefits into our products,” said Ms. Duncan, adding that newer hourglass-shaped packaging for the brand also is meant to evoke body lotions.

Moisturizer makers are taking cues from sun care products. Among women who use facial moisturizer, sun protection was the third most important purchasing factor, behind moisturizing and anti-aging properties, according to a survey by the NPD Group, a market research company.

Karen Grant, an NPD analyst, said that it made sense that as moisturizers and cosmetics increasingly emphasized sun protection, sun care products in turn would highlight their moisturizers.

“Hawaiian Tropic is seeing that they can’t keep touting the same benefit and that with more engaged and enlightened consumers, you have to keep moving,” Ms. Grant said. “They have to keep leveraging efficacy, but they can lead with different benefits at this point, too.”

A recent report on sun protection from Mintel echoed the sentiment.

“Added skin care benefits like antioxidants and anti-aging ingredients generate high reported interest among consumers, particularly women,” the report read. “As the lines between skin care and sun care continue to blur, it stands to reason that more sun care brands will offer skin care benefits in their products.”

As consumers increasingly heed warnings about skin cancer, imagery in Hawaiian Tropic advertising has shifted from showing deeply tanned sunbathers to showing no skin at all. Advertising uses only silhouettes of women, with the shapes filled with tropical imagery like palm trees, sun-dappled water and hibiscus flowers.

“We want you to project yourself into the silhouette,” said Fran Sheff-Mauer, a creative director at Grey who has worked on the brand since 2010. “Our point of difference is that we are about the whole woman, inside and out.”

A new print ad for Hawaiian Tropic Silk Hydration features the silhouette of a woman with a hibiscus flower in her flowing hair and a beach scene filling her form. “Protection you’ll love to put on,” says the headline for the ad, which appears in the May issues of magazines like Cosmopolitan, People and Us Weekly. The tagline reads, “The beauty of sun protection.”

Before the Hawaiian Tropic Zone in Times Square, which was owned by the Riese Organization, closed in 2010, it was sued by several women for sexual harassment or sexual assault. (“Tropic troubles grow,” declared a Daily News headline in 2009.) The licensing deal for the restaurant preceded Energizer’s acquisition of the brand, and the company said that now that Riese had closed the club, and another Hawaiian Tropic Zone it owned in Las Vegas, it would not license the name of the brand again.

The final Miss Hawaiian Tropic Australia/New Zealand crown was won by Ashiie Munro-Smith of Perth, Australia.

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DealBook: Many Regulators Put Their Attention on How JPMorgan Marketed Its Funds

Regulators are examining JPMorgan Chase’s sales tactics, after claims that the nation’s largest bank pushed its own mutual funds over competitors’ investments.

Authorities are responding to current and former JPMorgan financial advisers who said they had felt pressure to sell the bank’s products even when cheaper or better performing options were available.

Several brokers told The New York Times that they had been encouraged to favor JPMorgan funds, and they described a broader culture that emphasized sales over client needs. Also, in the marketing materials of one major offering, JPMorgan published hypothetical performance results, even though actual returns existed, according to internal bank documents reviewed by The Times. In each case, the actual gains were lower than the theoretical results.

Now, regulators, including the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the Manhattan district attorney and officials in New Jersey and Delaware, have opened inquiries into JPMorgan’s sales practices, according to several people briefed on the activities but not authorized to speak on the record. The S.E.C. and New Jersey’s Office of the Attorney General have scheduled several interviews related to the case, these people said.

The people cautioned that these inquiries, directed at the bank’s Chase Wealth Management division, are at an early stage. No one at JPMorgan has been accused of any wrongdoing.

While the bank declined to comment on regulatory matters, a spokeswoman, Melissa Shuffield, said that JPMorgan “doesn’t pressure brokers to sell its funds over any other product.”

“We stand behind the integrity of our investment process and fund selection and always place our clients’ interests first in every decision,” Ms. Shuffield said.

In the wake of the financial crisis, JPMorgan made an aggressive effort in this area, building up its mutual fund offerings and expanding its brokerage sales force. The strategy, which runs counter to the approach favored by much of the industry, proved successful. Even as small investors left the stock market in droves, JPMorgan collected billions of dollars, becoming one of the largest mutual fund managers in the country.

JPMorgan managed to attract assets, even though the performance of its funds has been just above average. Fifty-nine percent of its funds beat their peer group average for the three-year period ending on June 30 of this year, according to Morningstar, a fund researcher.

JPMorgan’s efforts have been lucrative. The bank collects a fee on every dollar that it manages.

Such financial incentives, industry experts say, can create potential conflicts. The worry is that banks will favor their own product for profit reasons rather than focusing on clients’ interests. It is one of the major reasons many of JPMorgan’s rivals have backed away from selling their own mutual funds.

JPMorgan defends its strategy, saying that customers want its funds and that it has “in-house expertise.”

One of the bank’s core offerings is the Chase Strategic Portfolio, which contains roughly six investment models. These investments, which contain funds created by JPMorgan and competitors, are intended to provide ordinary investors with diversified exposure to stocks and bonds. The bank heavily promotes the Chase Strategic Portfolio in its branches around the country.

The product comes with a double layer of fees. Besides the underlying cost for its mutual funds, JPMorgan also collects an overall management fee.

Investors pay as much as 1.6 percent of assets annually. The bank says the average fee is closer to 1.2 percent, adding that competitors charge as much as 2.75 percent for similar products.

Prospective clients do not have a true sense of the product’s returns. Marketing documents for the Chase Strategic Portfolio highlight theoretical returns, even though many of the models have actual three-year returns, which were lower.

The bank said individuals who invest in the product are provided with actual performance. JPMorgan further noted that models in the Chase Strategic Portfolio, after fees, had gained 11 percent to 19 percent a year on average since 2009, which the bank says is competitive.

JPMorgan says it follows industry standards in its marketing. The firm says its common practice is to wait until all the components of the portfolio have a three-year return before citing performance in marketing efforts. The bank is currently preparing to add the real returns to sales materials.

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Judge’s Ruling Complicates Enforcement for S.E.C.

Judge Jed S. Rakoff of the Federal District Court in Manhattan added another dimension to that quandary on Monday when he told the Securities and Exchange Commission that he could not determine whether a proposed $285 million penalty against Citigroup was adequate if he did not know what had really happened.

His opinion has undermined the S.E.C.’s longstanding policy of allowing companies to neither admit nor deny the commission’s charges in return for a multimillion-dollar fine and a promise not to do it again.

The commission has “been benefitting for a long time from this huge hammer that allows them to get settlements without having to prove their case,” said Adam C. Pritchard, a University of Michigan law professor. Judge Rakoff’s decision “eliminates that possibility for them.”

Securities law experts say there are ways that the S.E.C. might be able to strengthen its enforcement efforts and make Wall Street fearful of penalties that sting. Jill Gross, a law professor and director of the Investor Rights Clinic at Pace University, said that as a result of the judge’s decision, companies were now likely to have to admit some kind of fault in their settlements.

“It doesn’t need to be a full admission of all culpability,” Ms. Gross said, “but they are going to need some type of admission that something went awry.”

Goldman Sachs did so last year when it settled S.E.C. charges similar to the case against Citigroup that Judge Rakoff rejected. Both firms were charged with selling a mortgage bond investment without telling investors that the people assembling the portfolio were betting that it would drop in value.

In its S.E.C. settlement, Goldman acknowledged that its marketing materials “contained incomplete information,” and that it committed “a mistake” in leaving the full disclosures out of its marketing documents.

“We agree to settlements because they achieve for us largely everything that we could hope to get should we take the case to trial,” Robert Khuzami, the S.E.C.’s enforcement director, said in an interview this month. “I think the message is pretty clear. And the investors get their money much faster, because, as you know, lawsuits can take years.”

Mr. Khuzami said that the “neither admit nor deny” policy was used by the S.E.C. against companies other than Wall Street firms. In addition, he said, other governmental agencies often use the same formulation, and the courts had upheld its application.

The S.E.C. fashioned its “neither admit nor deny” policy in the 1970s, when Wall Street was far different. Most Wall Street firms were relatively small partnerships, meaning that any penalties essentially came out of the pockets of the people who ran them.

Now, however, most Wall Street brokerage houses and investment banks have been joined with publicly traded commercial banks, forming companies so large that penalties of hundreds of millions of dollars are merely “the cost of doing business,” in Judge Rakoff’s words.

The S.E.C. has said that stiffer penalties will provide a greater deterrent. This week, the agency asked Congress to raise the amounts that it can fine companies for securities law violations.

The agency says that it does not have the resources to take many cases to court. The commission said recently that it filed a record 735 enforcement cases in the year ended Sept. 30, producing $2.8 billion in penalties.

Some members of Congress do not buy that argument. “Government resources always will be limited,” said Senator Charles E. Grassley, an Iowa Republican. “That shouldn’t be an excuse.”

S.E.C. officials remain fearful of changing their longstanding policy, however. High-ranking officials at the agency monitored online public commentary after Judge Rakoff’s decision, one agency official said.

“We understand there is a greater public clamoring for accountability for those responsible for the credit crisis,” said the official, who spoke on the condition of anonymity because the Citigroup case was still before the court. “But there are costs with doing away with the policy, and we think they would be pretty significant.”

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