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1 2 4 5 6 7 8 9 10 ii '12 13 14 15 16 17 18 19 20 21 22 23 24 25 230 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY but the lottery play is fairly widespread. And although there may have been some areas in which heavier emphasis may have been placed -- we also had to operate under a rather restrictive policy concerning who could be targeted and how they could be targeted and sort of the creative executions that could be done. And it also dealt with distribution and any other kind of marketing activity. Q. So there were restrictions on who the target market could be, or how they could be targeted? A. Both. Q. Both. What did the State of Florida base their decision to put restrictions into lottery advertising on, if you know? A. Well, I don't know the -- the source of the restrictions. I -- I assumed at the time that they were something that were associated with the statutes that were put into place in beginning the lottery. I don't -- I don't really know how they were generated; whether it was under legislation or the specific governor~ ~ don't .remember the specifics of how they came about, but there were definitely i0 restrictions. Which I don't remember

1 2 3 4 5 6 .7 8 9 10 II 12 13 14 15 16 17 19 20 21 22 23 24 25 231 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY all of them, but I could remember some of them. Q. Do you remember, for example, what target audience they were restricted from advertising to? A. Minorities. There was not supposed to be any particular emphasis to minorities and no one under the legal age of obtaining a lottery ticket. Q. There are different lottery games in Florida -- right? -- like scratch-off and Play Four, the regular weekly lottery, the regular weekly lottery? Are those marketed in different ways? A. Yes, there often are differences they can be marketed as compared to Lotto. Q. How long did your issue with the in how State Florida last? How long did you work with them? A. The actual, you know, payment was a very short period. I then, after that, obtained data and would occasionally provide them information concerning what the data showed me, as I also had data concerning the State of Colorado, and tried to provide both the lotteries with more.insight as to how advertising worked with that particular product. Q. And you received a fee for your consulting work on the iqt~ery issue for the State Florida? A. Yes. of of¸ A. WILLIAM ROBERTS, JR., & ASSOCIATES

1 "2 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 22 24 25 232 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY Q. How much did you receive, if you recall? A. I don't recall. It really wasn't -- certainly wouldn't be over a thousand dollars. Q. Did primary data on A. No. extensive array enough you receive funds to obtain the. the lottery issue? They provided me. of primary data to provide to me. Q. You also mentioned, They had an that they were kind while working with Southern Bell, you weren't sure who you were working with, but it was regarding Southern Bell, and the negative option that they advertised. A. Yes. Q. Can you explain that a little bit further? A. Yes. The state was -- the Attorney General was interested in a potential problem with the way that Southern Bell was operating in various parts of the state, and this concerned what we call a negative option. Meaning that they would say, "we are going to have the following policy unless you tell us that we should not do it." And as I remember, the policy had.to do with coverage for the telephone wiring within the home. They're responsible for the wiring going to the home, but

1 2 3 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RICHARD W. MIZERSKI, Ph.D. EX within the home they had, up until a provided service to that as part payment for telephone services. some point -- and I don't date was -- they had more than once, with pamphlet in there to 233 BY MS. COLEY certain point, of your -- of the However, they, at remember what the exact sent out at least once, perhaps a phone bill a leaflet or some describe that they were no longer going to be covering that free of charge and that there was going to be something in the area of charge of 50 cents, a dollar per month to cover that. If the household had any problem with that, they would have to contact Southern Bell and tell them they did not want to have that coverage. Q. And where did you come in regarding that issue? A. Well, whether it was fair, read it and understand the message. appropriateness of having something option. Were there any other suitable for Southern Bell to about that that consumers would have a Q. And what did you conclude, analysis? A. Well, as I remember it, say the Attorney General, although a did people The like a negative ways that would be more provide information clearer idea. based on your the -- I wouldn't I did talk to him A. WILLIAM ROBERTS, JR.. & ASSOCIATES

1 -2 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 234 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY about this issue -- the Attorney General wanted a blanket statement that a negative option would never be appropriate. I was -- I would not say that. I told him personally that I don't believe'that that would be true; that there certainly could be some things that would allow a negative option, in my mind -- MR. MCDERMOTT: Let me interject here. We've got Counsel for the State of F1~rida. It .absolutely makes no difference to me and to my client, but it seems to me that the witness may be talking about a confidential consultation that he had with the State of Florida in connection with potential regulatory or other litigation, and if Counsel for Florida's prepared to let that go forward, I really don't care, the but I have not had a chance to explore this witness and don't know to what extent other legitimate interests may be raised here that maybe getting our full attention. MR. YERRID: my adversary perceive inclined with are not Let me say this. I want to compliment for his professional approach to what I to be a potential problematic area. I was to believe that .I was here out of courtesy of defense counsel and have taken absolutely no role and mentioned nothing on the record with regard to

1 2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the substance point is well RICHARD W. of yesterday. I believe taken. I think it's not this particular proceeding, and I would, without consulting with the Attorney General, which would only delay the proceeding, suggest that specific 235 MIZERSKI, Ph.D. EX BY MS. COLEY Counsel's germane to discussions with the AG the AG or people at his inquiry and that that Southern Bell context personally or with staff of direction be precluded from simply be umbrellaed under the of the work that was being performed and you move ahead, because I don't want to compromise -- I don't know what negative options are involved today in the state, I don't know what negative options were involved then, and I feel very uncomfortable waiving what would be potentially an objection having really been dealt with this issue in a vacuum. I prefer not to deal with it at all. So if Counsel doesn't have any objection, I would ask Counsel for Mississippi and for the Defendants to respect a potential that a privilege or work product stance may be taken and move away from that area. MR. MCDERMOTT: That's certainly agreeable to the Defendants. MS. COLEY: I'll move .alqng. MR. YERRID: Thank you very much, Counsel; appreciated. it's most

1 2 4 6 7 8 9 i0 ii 12 ~3 14 15 16 17 18 19 20 21 24 RICHARD W. MIZERSKI, Ph.D. EX BY MS. BY MS. COLEY: Q. Doctor, do you think advertising restrictions are appropriate in circumstances? A. Yes. Q. For example, the certain 236 COLEY lottery issue where the State of Florida wanted to restrict targeting minorities, do you think that was appropriate? A. No. Q. Why not? A. I think that particular restriction was one that was more sort of a political issue than a marketing issue. It assumes that minorities are somehow more vulnerable, and I don't agree. Q. You said that you had served as a consultant to the State of Mississippi. Can you tell me about that? A. Yes, I can. This particular work had to do with statutes concerning restrictions on attorney that when the statutes were Yes. -- like somebody sued the State? advertising. Q. was challenged -- A. Q. state A. WILLIAM ROBERTS, JR., & ASSOCIATES

1 2 3 4 5 6 7 8 I0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 237 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY A. That is correct. Q. And said that it was unconstitutional? A. I don't remember all the specifics in Complaint, but that is what I thought. Q. And you were hired by the State of Mississippi to defend the restrictions on attorney advertising? A. That is correct. I was hired by the Attorney General. Well -- yes, I was, because I worked with the Assistant Attorney General. Q. And you reviewed the advertising restrictions that had been promulgated? A. Yes. These were almost exactly the same restrictions that were put in place in Florida. Q. And what conclusion did you reach? A. Well, it depended on -o on the restriction. Some restrictions I was able support, others I was not. to the Q. Can you give me an example of the advertising restrictions which you could not support? A. Well, the one that sticks out in my mind was one that prohibited two people talking or two voices used during a commercial. Q. And can you give m~ an example of an advertising restriction in that case which you A. WILLIAM ROBERTS, JR., & .........

1 2 .3 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RICHARD W. MIZERSKI, Ph.D. EX BY supported or had support for? A. I would have to take a look restrictions. There were -- there were MS. 238 COLEY at all of the quite a few, and I was asked to go through each one and -- and discuss them. I -- one I remember would be the use of celebrities. Q. It prohibited the use of celebrities? A. Yes. Use of celebrity spokes- -- celebrity endorsers. I don't remember if it included spokespersons as well. Q. Why did you support that particular restriction or think that one was okay? A. I don't recall all the specifics case. It had something to do wit~ how they used and the audience of the advertising. So I remember all the specifics. There were fairly elaborate sanctions, and I would probably have to review that a little bit more to give you a better idea. Q. Is there a difference between a celebrity endorsement and a celebrity spokesperson? A. Yes. Q. Can you e~in that to me? A. An endorsemen6 is when the individual says they used it and they suggest that they had some of the could be don't A. WILLIAM ROBERTS, JR., & ASSOCIATES

1 2 3 4 5 6 7 8 9 10 II 12 13 14 19 21 22 23 24 239 EX BY MS. COLEY RICHARD W. MIZERSKI, Ph.D. satisfaction with it and would suggest someone else uses it. A spokesperson is simply someone who is sort of either a voiceover or it could be an individual who just simply talks about the not suggest that they had used the person the NASCAR advertising but does it. Q. Would Camel race car in celebrity spokesperson or who drives a smoking Joe races be considered a celebrity endorser of Camel cigarettes? A. I don't think so, no. Q. Even though they're seen on television plastered in the logo? A. No, wouldn't be -- MR. MCDERMOTT: Object to the form of the question. You used inflammatory language, and I would call Counsel's attention to the fact that an endorser is somebody who used the product. Race car drivers drive race cars. MS. COLEY: I was just trying to get some clarification. Q. Doctor, we talked a little bit more about race cars yesterday, and.you said that you didn't think that, for example, ~he Marlboro car at Indy was an advertisement for Marlboro cigarettes. And I