If the case sets a precedent, multi-national agencies in the United States could find themselves in court every time a client dislikes an ad campaign. It may even lead to cases in other countries.
Complaints about adverts are not new. However, the case of Just for Feet, an American chain of sports shoe shops, versus Saatchi's New York office shows that when an ad agency gets it wrong, it can really get it wrong. Just for Feet has seen its share price drop from $19 (pounds 11) to $6 (pounds 3.70), its sales fall and the $7m cost of its campaign go after one showing.
Unfortunately that showing was during the Superbowl when 175 million households watched an ad described as "Appallingly insensitive," by The New York Times and "neo-colonialist ... culturally imperialist, and probably racist" by the trade magazine Advertising Age. "Have these people lost their minds?" asked one commentator.
The ad, designed to show how far the shop will go to supply sports shoes, begins with a barefoot, black runner being tracked by white men in a military-style all-terrain vehicle. When the whites catch up with the runner they offer him a cup of water laced with a knockout drug. While the runner is unconscious, the whites force a pair of Nikes on his feet. When he awakens, he sees the sneakers and begins shouting: "No! No!", then scrambles to his feet and runs away, still trying to shake the shoes from his feet.
The ad was universally panned and the Des Moine Register said the company should be renamed "Just for Racists".
Harold Ruttenberg, Just for Feet's chief executive, claims that Saatchi creatives browbeat him into using the advert despite his declared misgivings: "What we wanted was a fun sort of advertisement," he said.
Saatchi refuses to comment on the case, but its legal response amounts to claiming it cannot be sued for low professional standards in an industry that has none: "The imposition of a punitive damage award in the absence of ... guidelines and standards is highly unfair," its lawyers write.
The agency is also likely to ask whether a chief executive is so weak he could be browbeaten into approving an ad he was paying for, but now claims to have truly disliked.
Agencies are worried that the US case will force them to create only safe, bland campaigns. "It's hard to come up with something truly great unless it walks that precarious line of, `Oh no, is it really horrible?'," says Chuck McBride, creative director at the agency Wieden, Kennedy, which handles the Nike account. "I would feel gun-shy if I knew that every time I did something really horrible, I'd end up in court."