Today, roughly six weeks since NAD rolled out its new "SWIFT" fast track process, NAD Director Laura Brett provided new information about the process during a webinar presentation, including the current caseload, staffing, appeals, and more. We've summarized some key takeaways below.
What does the current caseload look like? Brett stated that as of now, two challenges have been initiated under SWIFT, both of which NAD initially deemed appropriate for the fast track process. One has been resolved on consent of the parties and will be posted to NAD's online archive soon. The other is still in the early stages.
What if my challenge is rejected from the SWIFT process? If a challenge is rejected from the SWIFT process (either because NAD initially deems it is inappropriate, or decides so after a jurisdictional challenge from the advertiser), the challenger will have the opportunity to pursue their challenge on the regular NAD track. However, we learned today that if the challenger would like to add additional claims or issues to their challenge at that point, they'll need to work with NAD to close out the initial challenge and refile a new one under the regular track process.
Will appeals also be expedited? Appeals made from a SWIFT decision will follow a similarly expedited trajectory. Appeal decisions will be made within 20 days from the date the initial SWIFT decision is transmitted to the parties (note that both parties will receive the initial decision at the same time under SWIFT). Appeals will consist of a smaller 3 person panel and hearings will be held remotely.
What if the advertiser needs an extension? NAD will consider requests from advertisers for timing extensions, however any granted extensions will not delay the decision timeline (i.e. NAD will expedite things on their end). However, extensions will only be provided for extenuating circumstances.
How much detail will be included in SWIFT decisions? Will they have precedential value? Like recent regular NAD decisions, SWIFT decisions will not include party positions. However, they will lay out sufficient information about the claims challenged and the arguments for and against them. They will still be detailed enough to provide guidance and precedential value.
Will SWIFT decisions include an analysis of why the SWIFT process was or was not appropriate for the particular challenge? As of now, SWIFT decisions in cases that move forward through the process will include analysis as to why the case was appropriate for the SWIFT process. If the case is rejected from the SWIFT process, NAD may include a similar analysis of the jurisdictional history (including why it was not appropriate for SWIFT) if the case is transferred to the regular track or closed and refiled.
How will SWIFT be staffed? NAD intends for there to be a special SWIFT department within NAD, including a designated staff attorney responsible for determinations of appropriateness for SWIFT challenges, as well as SWIFT decisions.
What will press releases look like? Will they include advertiser statements? NAD anticipates that press releases will be bundled together for multiple SWIFT cases and released monthly. The advertiser may submit an advertiser's statement but it is optional. The case will be sent to both the advertiser and the challenger at the same time - prior to submission of the advertiser's statement - and the statement will be included in the press release if one is submitted.
Many thanks to Loeb & Loeb's David Mallen for hosting this informative session with Laura Brett!
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