Curmie Doesn’t Like Being Lied To

 

It would seem that prevarication has supplanted baseball as the national pastime.  Name a politician you’d trust to tell you the truth if a lie would be more convenient.  Curmie can’t, and if there’s one out there, it sure as hell isn’t one of the frontrunners in the next Presidential election.

Curmie has experienced two separate incidents over the past couple of weeks.  What they share is not simply that someone failed to provide a service they were obligated to provide, but that they lied about it and showed literally no remorse for having done so.

Incident #1: Although Curmie has retired from teaching, his university has a provision that emeritus faculty are entitled to an office if one is available, and one is.  Because I’m still doing some academic writing, I’m grateful for the workspace, the use of a computer, access to a printer and scanner, etc.  We’re now back in the building we occupied from the time I came here until the summer of 2020, when we were displaced to across campus while renovations and expansions were happening to our “home.”  (We were told we had to move out by the end of May 2020 or we couldn’t move back in the fall of 2021; we couldn’t move in at all until August of this year, and the building won’t really be ready for at least another few months.  But that’s a rant for another day.)

The problems are two-fold.  First, the new office is less than half as big as the one Curmie moved out of three years ago.  Second, it was designed by an idiot, or, more likely, a committee of idiots.  The desk, made of cheap but heavy material, is far too big for an office of that size.  There are permanently mounted cabinets above the desk, but no place for files.  Curmie could go on.  And on.  And on. The biggest annoyance is that the offices on my side of the hallway (the smaller ones, with windows offering a view of the convenience store across the street) got only a single bookcase.  Curmie seriously doubts that whoever decided that has ever as much as met a faculty member in the humanities, let alone listened to one.

Curmie was able to get a second bookcase, but they’re absurdly deep, so you can’t put a third one against the remaining space on the only available wall or you could never get past it to sit at that enormous L-shaped desk.  Despite donating over 1000 books to the new department library and taking a dozen boxes home since moving out of my former office, I still have far too many books to fit on the available shelves.  I’ll no doubt need to do another purge when I retire retire, but most of what remains are things I anticipate using in upcoming research projects, and many of these volumes aren’t in the university library.

The solution, obviously, was to buy another bookcase (the university sure as hell wouldn’t provide one) that will fit the available space.  So I did.  I found something on Amazon that met my purposes.  It would have been perfect instead of merely good if those stupid cabinets didn’t extend an inch or so past the desk, and I can’t move the desk (even if I had the strength) and still be able to open the door.  The new bookcase won’t solve the problem, but it will help.

It was to be delivered Friday the 1st.  At 10:37 that morning I got a message from Amazon that the USPS had tried unsuccessfully to deliver it.  This, of course, was a lie; they never bothered.  I was less than pleased.  Anyway, I found the tracking number and did a little investigating.  According to that information, the package was loaded onto a truck and was “out for delivery” at 6:20 a.m., but it wasn’t delivered because—get this—my mailbox was full!  This was both a lie and, of course, irrelevant even it were true.  Bookcases, even those requiring assembly, tend not to fit into mailboxes.

So Curmie called the USPS 800 number, and had a charming conversation with the robot voice.  Now, it became clear that the reason for non-delivery could have been that the package was “large.” Well, duh.  I was told I could pick up the package from the post office starting Saturday, or arrange to have it delivered that day.  I chose the latter, but, needless to say, the package didn’t show up on Saturday.

I’ll grant them Sunday and Monday (Labor Day).  Nothing Tuesday, either, of course, and the tracking now said the bookcase was being held at the post office.  (All the previous stuff about being loaded for delivery had conveniently vanished.)  In other words, it had been sitting in the back room there since Friday, and if they’d told me the truth I could have picked it up then and had the weekend to assemble it without disturbing my colleagues.  But apparently honesty is in short supply at the USPS.

So I went to the post office on Tuesday.  I asked why the tracking said it had been “out for delivery” early Friday morning but wasn’t delivered.  I was told that “No one was here that early.”  Then something about the timestamp being linked to when it got scanned in.  I decided not to bother to ask the obvious question of who scanned it in if there was no one there. 

Anyway, the woman who waited on me went into the back room and then re-appeared carrying the package.  It had “heavy” stickers on it in three or four places, but she managed it just fine.  In its unassembled state, the bookcase is about the size of a carry-on bag and weighs maybe 45 or 50 pounds.  I had no trouble getting it to my car or loading it into my trunk.  (I confess that I asked our tech director to borrow a hand truck to get it to my office since I couldn’t park anywhere near the elevator; he chose to carry it, instead.  This involved a trek of 50 yards or so and a set of stairs.)

OK, it’s hardly news that the USPS will avoid work whenever possible, and certainly the utterly false statements about “out for delivery” and the reason for non-delivery are all too typical.  But, Gentle Reader, as they say on the late-night infomercials, wait! There’s more!  Presumably they knew when they got the package from Amazon that they weren’t actually going to deliver it… or maybe it’s just the locals who decided that.  Either way, the USPS got paid to deliver the bookcase to me and failed to do so.

The only question is whether Amazon is responsible at all.  Other couriers are perfectly willing to deliver “heavy” packages (see below).  Why would Amazon choose the USPS?  Surely they’ve been around the block enough times to know that the postal service isn’t necessarily going to treat their (Amazon’s) customers right. 

Still, it’s easier to forgive a less than inspired business decision than outright prevarication.  But, alas, there’s not a lot an online customer can do to avoid the mendacious organization.  And it doesn’t help that it’s a government agency.

It’s not just those with ties to the government, though.  Private companies feel the need to get in on the act, too.  So let’s move on to Incident #2.

We’ve been in our current house a little over 22 years.  The garage door opener wasn’t new when we moved in.  A few days ago, the chain snapped.  So I went to the local Lowe’s, checked out the possibilities, came home and discussed the options with Beloved Spouse, and ordered a new opener online.  So far, so good. 

FedEx delivered it when they said they would, last Thursday.  (By the way, the box is essentially the same size and weight as that unassembled bookcase I mentioned last time, and FedEx delivered it, no problem.)  But whereas 20 years ago I would probably have done the installation myself, for a variety of reasons I decided to just have Lowe’s arrange for a professional installation.  That’s where the fun begins.

Lowe’s farms out this kind of job through Handy or their subsidiary Angi.  We’d had pretty good luck with Handy in the past; our experience with Angi was, shall we say, less pleasurable.  So we were apprehensive when it was Angi, not the parent company, that contacted me.

But I filled out the requested information, including that with a little notice I could be available at any time.  I was given three choices of when the work could be done, and chose late afternoon on Sunday.  The text messages urging me to be “excited” that the installation was soon to happen began on Friday.  Sorry, I come by my nom de plume honestly, and few curmudgeons get excited over garage door installations.  Relieved, perhaps.  Grateful, even.  Excited?  Nope.

So then came the message at 6:30 Sunday morning that “due to a last-minute issue with [my] pro,” they were going to re-schedule until Tuesday.  This led to more texts to get excited, and then another re-scheduling until Thursday.  Lather, rinse, repeat.  Well, not quite.  The 3:00 a.m. text that woke me up on Thursday declared that the installation was “cancelled unexpectedly.” 

“Cancelled,” as in “we’re washing our hands of this whole business”?  Really?  “Unexpectedly”?  So I called the local Lowe’s that morning.  Naturally, I got a robo-voice, but was able to get transferred to a different robo-voice, and then to someone in the installations department (I’m guessing she’s not located in my small town in East Texas, but I suppose she could be).

According to what she was seeing on her screen, the installation was still scheduled for 11 a.m. that day.  It was, in fact, never scheduled for 11 a.m.; the cancelled appointment was for 3 p.m.  I immediately had a flashback to the Firesign Theatre’s most famous line, “I Think We’re All Bozos on This Bus.”  Somebody—Angi? Lowe’s?—was screwing up.  Big time.

Anyway, the Lowe’s rep “reached out” to Handy, and ultimately put someone from there on the phone with me.  This woman’s accent was often incomprehensible, but I did get that the cancellation was because this was the third delay of the same project, and that’s what they always do.  She acted totally befuddled that I didn’t accept company policy as a divinely inspired reason for jerking a customer around.  And she did confirm my initial suspicions that there never was anyone assigned to do the job, so all that crap about “last-minute issues with [my] pro” was simply a lie.  Like the woman at the post office described in my last post, she at least purported not to understand why I objected to being lied to.

This is when the woman from Lowe’s went into high dudgeon: “We pay you to provide this service to our customers.  Are you telling me you’re unable to do that?”  Well, yes.  But the Lowe’s rep pulled back a little when it became clear that my refund was already underway.  That still left me with a garage door opener still sitting in its box, where it is somewhat less useful than when professionally installed.  The Lowe’s woman asked me if I wanted to speak to an Angi manager.  Yes.  Yes, I did. 

A manager called me back a couple of hours later.  She mouthed all the right platitudes about how sorry they were for the inconvenience, but (predictably) showed no remorse for having lied to a customer.  “My pro” never existed.  There are only two possible choices: either Angi knew there weren’t enough contractors in this area to meet the demand or they didn’t.

If the former, then not only were their excuses to me a lie, but they had also, in effect, lied to Lowe’s, and made that company guilty of false advertising.  If the latter, then Hanlon’s Razor kicks in, and they’re just morons.  I’d told them I could be available as needed.  The logical thing to do is to put a call out to their workers in this area and say that they had a customer who could be available at any time but would like the job completed as quickly as possible, then let the people actually doing the job pick a date and time.  Nope.  They decided on an arbitrary time and expected both me and prospective installers to accommodate.

That is, there was no one available Sunday at 4:00, Tuesday at 4:00, or Thursday at 3:00… but there very well might have been on Friday or Saturday or Monday or Wednesday, or at a different time on Sunday, Tuesday, or Thursday.  I claim no expertise on running a business, but I do have list of a few things not to do.  This kind of scheduling incompetence is Exhibit A.  No… wait… it’s Exhibit B.  Lying to customers is exhibit A.

The good news is that I was able to follow a different course, and the guy showed up at my door less than 24 hours after initial contact.  The better news is that Angi got nary a nickel from this transaction.

As has sometimes been the case in the past, this post began as a guest post—well, actually as two guest posts—on Ethics Alarms.  You can find them here and here.  There has been a little more editing than normal, but, Gentle Reader, you will certainly recognize the content.  Curmie apologizes for taking so long to get this version posted.

 

 

Wealth and Hubris Just Sort of Go Together

Contrary to the beliefs of some of Curmie’s more conservative acquaintances, he is not, in fact, a socialist (although he’s been accused of worse). His retirement nest egg is tied up in things like stocks and bonds and mutual funds (oh, my!), he believes in personal property, and he advocates for equal opportunity rather than equal outcomes.  

That doesn’t mean, however, that he’s a fan of malignant capitalism.  While the Venn diagram of the extremely rich and the legitimately praiseworthy doesn’t quite look like Little Orphan Annie’s eyes, it’s a hell of a long way from concentric circles. Curmie offers two examples from recent headlines. Both involve corporate entities, but one of those enterprises really boils down to a single person. Let’s start there. 

There do remain a few absolute truths in the world: water is wet, dry ice is cold, and Elon Musk is an asshole. We all know about his narcissism, his hypocrisy, and his unwillingness to take responsibility for the damage he routinely causes. He has demanded that Twitter engineers allow him to bypass the algorithm to make certain his tweets are seen by millions, and he was particularly incensed that Joe Biden’s Super Bowl tweet was seen by more people than his was. Just as a side note, Biden’s was actually kinda cute; Musk’s, now deleted, consisted of three American flags, “Go @Eagles!!!,” and three more flags. Boring is as boring does. 

Oh, and of course a couple weeks back he fired an engineer who had the audacity to tell him the truth instead of what he wanted to hear. Hanging out at the Super Bowl with Rupert Murdoch wasn’t going to do his independent-thinking and anti-media credentials a lot of good, either. Indeed, the difference between Musk and Murdoch is that the latter is at least honest about his belief in unfettered capitalism and his country-club neo-Fascism. 

But alas, Gentle Reader, it gets worse. In one of the most perverse tweets in history, Musk first brags that “Starlink [another of his companies] is the communication backbone of Ukraine, especially at the front lines, where almost all other Internet connectivity has been destroyed,” then tries to defend his unconscionable decision to restrict Ukraine’s ability to use the service to control drones because, get this, “we will not enable escalation of conflict that may lead to WW3.” 

This was in response to a tweet from former astronaut and Navy captain Scott Kelly, who wrote “Defense from a genocidal invasion is not an offensive capability. It’s survival. Innocent lives will be lost.” The rest of us would say “well, duh.” Musk, of course, prefers to spout inanities. Dude, you’re looking into the wrong end of the telescope again. Russia are the invaders, the aggressors, and, frankly, the evil ones. (Curmie saw that look, Gentle Reader: no, not the Russian people, the Russian government.) All Ukraine wants to do is to keep their country, and they’re looking for a way to do that. It’s not Zelenskyy who’s threatening WWIII; it’s the other guy. 

It’s unreasonable, of course, to believe that a wealthy buffoon like Musk would do the right thing, or that he’d refrain from butting in where he had no business (Ukraine’s outgoing ambassador to Germany told him that “F--- off is my very diplomatic reply to you”), but when he’d been (or pretended to be, back when it was more fashionable) a vocal supporter of Ukrainian sovereignty, it might not have been too much to ask that he not actively do the wrong thing. 

Many questions have now been answered, but one remains: who is Elon Musk’s most admired world leader in history—Vladimir Putin… or Neville Chamberlain? 

xxxxx 

The earlier mention of Musk’s Super Bowl tweet and his presence at the game ties in with the other manifestation of corporate arrogance run amok. Curmie refers, of course, to the National Football League. There’s this concept called a “Clean Zone” that the NFL has been pushing for years. This year, this nonsense forbade “temporary signage,” including “Banners (cloth or vinyl), Pennants, Flags, Window paintings, Posters/Flyers, Balloons” in an area of almost two square miles for five weeks, beginning four weeks before the Big Game (you can’t mention the Super Bowl by name, of course, and the NFL actually tried to trademark “Big Game,” too) and extending a week after the game. This latter provision doesn’t make any sense even if corporate greed is somehow a sufficient justification for the restrictions. 

As is often the case, a writer for FIRE provides really good snark: “Sorry parents, but the decorations for your kid’s birthday party will now need the approval of the NFL and the Arizona Super Bowl Host Committee.” Think that’s an exaggeration? Well, the food trucks in Houston in 2017 had the audacity of having the wrong brand of tire. They had to be painted over. Yes, really. This time, though, someone decided to do something about it… more on that in a moment. 

According to an article by Sam Borden and Sara Coello on the ESPN site (linked above), this abuse of wealth and power came as a response to a ploy by another corporate behemoth, Budweiser, in 1999. Apparently Bud was not an official sponsor, but found ways of getting messaging out in the area surrounding the stadium. Jim Steeg, the NFL’s chief goon special events head marketing dude for a long time, whines that “All of a sudden, there were inflatables or signs—they’d buy [parking] lots up and put up things advertising their brands, while your official guys were only getting what was inside the stadium. We had to do something.” 

No, you self-righteous prick, you didn’t. You could have accepted the fact that you can make whatever restrictions you want on properties you control, but neither you nor local city councils can deprive citizens of their first amendment rights just because you can acquire more lucre by doing so. Oh, but the NFL says Clean Zones aren’t just about money: they’re “an important tool in protecting public health, safety and welfare” according to a hosting document for the 2018 Super Bowl in Minneapolis. If you believe that, Gentle Reader, Curmie has an ocean-front property you might be interested in purchasing. It’s in Kansas, but you’re not biased against the Midwest, are you? 

Of course, this isn’t a new phenomenon, or a specifically American one. Curmie wrote about the utter stupidity that surrounded the London Olympics in 2012. The London organizing committee actually hired 286 “enforcement officers” who had no responsibilities other than to protect the interests of corporate sponsors, at the expense of Londoners and out-of-town spectators alike. Curmie is not an expert on British law, but it’s his understanding that there’s no equivalent to the US’s 1st amendment, so what happened there was unconscionable in ethical terms but probably legal. 

Not so, west of the Atlantic. It’s been clear for a long time that the NFL has no scruples and city governments have no spines. This is not news. But there’s a point at which someone has to say enough is enough. That person this year is a man named Bramley Paulin, a property-owner in the affected area. He got the Goldwater Institute involved, and filed suit. 

Quoting the ESPN article here: 

Judge [Brad] Astrowsky, the Phoenix judge, made his views clear: The original Clean Zone ordinance, which gave the NFL or host committee approval power over signage, was “totally antithetical to the principles of limited government” because the host committee is clearly “an entity interested in protecting NFL sponsors and the NFL” as opposed to serving the people of Phoenix.

Astrowsky declared the Clean Zone “unconstitutional,” which of course it has always been, but various other legal challenges have failed to gain traction. 

The city of Phoenix managed to drag out the process enough to all but make the situation moot, however. It wasn’t until the Wednesday before the Super Bowl before Paulin could install signs advertising a company called Max Guard. A few hours later, two men brought a ladder, cleared the fence into Paulin’s property, and removed the signs. They’re caught on tape, but as far as Curmie can ascertain, they’re still at large. 

Curmie, of course, is the embodiment of blissful naïveté, so he would never suggest that the NFL and/or city officials might be implicated in that theft. Were he of a cynical disposition, however, he might suggest that anyone confident of those organizations’ innocence might want to add to that Kansas property noted earlier with a similar one in Iowa. 

Rich people—absurdly rich people, at least—whether as individuals or gathered into an organization or corporation, really think their wealth ought to compensate for their lack of ethics. All it actually does, though, is to aggravate their moral failings.

Corporate Bullies: Diageo and Jaguar/Land Rover

One of the things Diageo and Jaguar have in common is that I like their products. Diageo is a huge international corporation which owns a great many brands in the alcoholic beverage business. If you’re a drinker at all, chances are that one of their products is your favorite beer (Guinness, Smithwick’s, Red Stripe) or Scotch (Johnnie Walker) or rum (Myers) or gin (Tanqueray) or tequila (Jose Cuervo) or… well, you get the idea.

Jaguar is the car I’ve always wanted. I won’t ever have one, but since I was a little kid, it was always my dream car—over Ferraris and Lamborghinis and whatever else. The red Jag driven by Inspector Morse always intrigued me more than James Bond’s Aston Martin or even the Batmobile.

The other thing the two corporations have in common is that both are portrayed as amoral bullies in stories I’ve run across in the last few days. Diageo first.

The BII (the apparently now-official title of what used to be the British Institute of Innkeeping), in association with Diageo, presented awards in various categories at a gala affair in Glasgow on May 6. The folks at BrewDog were alerted that they might fare well in the Bar Operator of the Year category. But when the award was announced, they didn’t win. I’ll let their man James (presumably, but not necessarily, co-founder James Watt) pick it up from there:

This disappointment was further compounded when one of the judges (seated at our table) told us in disbelief “this simply cannot be, the independent judging panel voted for BrewDog as clear winners of the award.”

Events took a further twist when the people who got given the award refused to accept it as it clearly had “BrewDog” engraved on the trophy as winners.

On Tuesday, 2 days after the award, I (James) took a phone call from Kenny Mitchell, Chairman of the BII in Scotland and Chairman of the Award Committee explaining the situation. To directly quote Kenny:

“We are all ashamed and embarrassed about what happened. The awards have to be an independent process and BrewDog were the clear winner.”

“Diageo (the main sponsor) approached us at the start of the meal and said under no circumstances could the award be given to BrewDog. They said if this happened they would pull their sponsorship from all future BII events and their representatives would not present any of the awards on the evening.”

OK, even if the Diageo reps had been sampling a little too much of the product, this is weird. I mean, why would anyone behave that way, especially since there’s no way this could do anything but hurt the reputation of the company? Are we really to believe that someone a huge corporation would send out as an official representative to an event like this has never heard of conflict of interest, appearance of impropriety, um… sanity? I figured it had to be a mistake, an over-reaction, a fit of pique by a losing operation. Apparently not: I followed the link to the BII site and found this:

Following widespread reports of an incident at the BII Scotland Awards on 6th of May in Glasgow, when a sponsor intervened in the awarding of the bar operator prize, Peter Thomas, chief executive of BII, has released the following statement:

“This is a regrettable and isolated mistake. I am pleased that my colleagues acted quickly to address this situation. We have never had this sort of issue before and will be ensuring that this never happens again.

“It is crucial that awards of this kind are entirely independent, transparent and above question. Therefore, we will be reviewing exactly what happened, and we will ensure that our usual rigour and high standards will operate in the future. The judging process must be clear, straightforward and understood by all concerned.”

Whoa!!! This really happened, then? Apparently so, as here’s the statement on the Diageo website, too:

Diageo has provided the following statement in response to communications from independent brewer, BrewDog, in relation to the British Institute of Innkeeping Scottish Awards on Sunday 6 May 2012.

A Diageo spokesperson: “There was a serious misjudgement by Diageo staff at the awards dinner on Sunday evening in relation to the Bar Operator of the Year Award, which does not reflect in any way Diageo’s corporate values and behaviour.

We would like to apologise unreservedly to BrewDog and to the British Institute of Innkeeping for this error of judgement and we will be contacting both organisations imminently to express our regret for this unfortunate incident.”

Wow. Notice, of course, that they didn’t say anything about, you know, giving the award to its rightful recipient, or that those responsible would be terminated, reprimanded, or even identified.

Brewdog’s James seems to think the regret was more for getting busted than for the crass power play. Whether or not we might wish he’d kept to the high road in rebuttal, we can but admire the verbal skill of his takedown of the pomposity of the multi-gazillion dollar/pound/euro Goliath:

As for Diageo, once you cut through the glam veneer of pseudo corporate responsibility this incident shows them to be a band of dishonest hammerheads and dumb ass corporate freaks. No soul and no morals, with the integrity of a rabid dog and the style of a wart hog.

Ah, c’mon, James, don’t hold back. Tell us what you really feel! The result, of course, has been a lot more publicity for BrewDog than winning the award without incident would ever have provided, and possibly a new brew to commemorate the foolishness of Diageo: Scandale and Fail Ale are among the front-runners for names.

I like it. I’d love to be able to promise James and his compatriots that I’ll boycott Diageo, but that just isn’t going to happen. I’m heading to Ireland in a month’s time, and they control about every “local” beer there is there—Guinness, Smithwick’s, Kilkenny, Harp… The best I can do is promise to buy a pint of BrewDog at my first opportunity, and to seek out craft beers in general. But I do that, anyway…

OK, on to Jaguar. This one is, apparently, a trademark infringement case. I guess. Here’s the deal. Siblings Nick and Teresa Letchford bought a couple of stores in London’s Shoreditch area in 2001, back when that part of town hadn’t yet transformed from depressed working class area to the hipster haven it is today. Partially because of lack of money, partially because they rather liked the idea, they left the signs advertising the previous establishments in place, so their “collective”—a gallery/bar/café—became known as “Dream Bags Jaguar Shoes.”

The main entrance to the space was into the old Jaguar Shoes building, so that’s what the place came to be called. The enterprise became successful, attracting an artsy clientele and drop-bys from such celebrities as Natalie Portman, Kirsten Dunst, Amy Winehouse, Paloma Faith, and Beyonce. Anyway, in 2009 the Letchfords decided to protect their investment by copyrighting “Jaguar Shoes,” in a document that specifically points out “none of the aforesaid services relating to sports, vehicles, automobiles or the automotive industry.” Jaguar/Land Rover nonetheless have their collective skivvies in a twist.

We’ve been through this before. Some of you may remember when the Pillsbury people went apoplectic that a tiny bakery in Salt Lake City would have the audacity to use a World War II theme and call itself “My Dough Girl.” They won, of course, not because they had a case, but because the owner of the bakery didn’t have the resources—time or money—to fight them.

Here’s what I wrote at the time:

When we get right down to it, Pillsbury/General Mills is pursuing this course of action not because they have to to protect their trademark, but because they can. No sentient being could possibly confuse Pillsbury with My Dough Girl. The people at General Mills know that as well as anyone. But they just can’t help themselves. To a certain personality type, strutting around bullying the little guy is a show of manliness. To me, it’s a pretty sure sign that someone is compensating for something. [Insert vulgar anatomical reference here.] ….

Pillsbury, … even if they “win,” won’t have eliminated a real threat to their trademark; they’ll simply have created a shit-storm of negative publicity. Certainly if I were a General Mills stockholder, I’d be pretty upset that management is wasting money on lawyers and generating bad press to eliminate a phantom threat rather than—hell, I don’t know—developing new products, or improving employees’ job satisfaction, or (best of all) increasing my dividends.

But at least Pillsbury and My Dough Girl were sort of in the same business. No, no one is going to confuse the two operations, but they do both provide baked goods.

Jaguar/Land Rover’s objections are even more specious, more arrogant, more inane than Pillsbury’s were: and that is a very high hurdle, indeed. British copyright law is no doubt different than its American cousin, but the basic principal is the same. As explained by Catherine Wolfe, president of the Institute of Trade Mark Attorneys, the “basic test” is whether people are “confused.” Uh, no. No, they’re not. If Jaguar Shoes were actually a shoe store, some of the dimmer bulbs might think the auto-maker was branching out in a what-can’t-you-buy-on-Amazon sort of way. But this is a funky bar called Jaguar Shoes. You go there because it’s trendy, because you’ve heard good things from your friends, because it looks like fun. You don’t go because it has the same name… sort of… as a car company.

And what if you did? What if you decided to go in because it has the word “Jaguar” in its name, the same way I decided to try O’Brien’s pub on my first trip to Dublin because it had the same name as a favorite former student? What of it? First off, those associations are going to happen whatever the name. But more importantly, what does the automobile manufacturer lose in the process? Are we to believe that someone is going to storm out of Jaguar Shoes exclaiming, “Their prices are too high, and they water their drinks. Just for that, I’m buying a Beamer!”? Or maybe it works the other way—“I just love this little café. But I do spend a lot of money here. I should shop around more, maybe get a Mercedes this time.”

I’m guessing that neither of these scenaria will ever come to fruition, except perhaps as performance art (hey, they’ve got a great venue for that!). Writing about the My Dough Girl case, I said of General Mills (parent company of Pillsbury), “We can but hope that someday they'll accidentally pick on someone who can fight back.” It appears that Jaguar/Land Rover may have done just that. There’s a tone of defiance on the Jaguar Shoes website, not to mention the fact that they have all those famous (and wealthy) clients, who might just wield a little more clout in the court of public opinion than some blogger in East Texas does. The multi-national car-maker might just have bitten off more than it can chew. ‘Tis a consummation devoutly to be wished.

Ultimately, both these stories are about quotidian douchebaggery by giant corporations for no reason other than that, like Pillsbury, they can. It would be nice to see some big company somewhere at least have a rational reason for acting like jerks, or to… say… fire some dimwit who makes them look bad. Don’t hold your breath.

Why This Blog Isn't Migrating to Wordpress

As virtually anyone who reads this blog with any regularity knows, I have become a consistent if not avid reader of Jack Marshall’s Ethics Alarms blog. We agree more often than not, argue sometimes, tweak each other’s commentary sometimes, and sometimes just allow the other to go off on a rant, figuring some battles aren’t worth fighting. In other words, we’ve become friends, even though we’ve never actually met (I hope to change that this summer).

Anyway, I have been a frequent commenter on his blog (and he on mine, although since he cranks out his original material at a prodigious rate—probably 10 times as often as I—I comment a lot more on his site than he on mine). A couple of days ago, I went to comment on something Jack had written. The comments section on Jack’s blog asks for your e-mail address, your name, and (optionally) your website. As a commenter there, I’ve been “Rick” at my hotmail account, with a link to this page for over a year. But now, the cookie brings up something else: because, ages ago, I set up a Gravitar account as the only way I could comment on something somewhere, and because Wordpress (which hosts Jack’s blog) is linked to Gravitar, and because the people who run those sites are amoral and/or incompetent, my e-mail account now automatically generates a link to my Wordpress identity. Not only that, I can’t change it!

I must sign in through my Wordpress account, which I have never used, and which I can’t delete (not sure if this link will work, but here it is. Trust me, it reads: “WordPress.com accounts cannot be deleted.” It graciously offers that I can delete my (entirely non-existent) blog, however. Asshats.

I know, I know—it’s pretty much a first-world problem not to be able to have readers of Jack’s blog click over to mine. But it’s a problem that ought not to exist, and indeed didn’t exist a week ago. Someone at Wordpress thinks this apparent new policy (there’s no statement from them that they’re doing this) is a good idea. Someone at Wordpress is wrong about that.

More to the point, there’s no reason for the change. I could understand (not like, but understand) a monetary motive, but given the fact that I’m not paying anything for either the Blogspot site I actually use or the Wordpress site I don’t, that reasoning doesn’t seem to work. If the idea is to attract more users to Wordpress, it’s a stupid strategy. I’m not thrilled with Blogspot, and had considered migrating to Wordpress. Needless to say, that ain’t gonna happen if the latter site is run by idiots, as it appears to be. And I’m now less inclined to comment on Jack’s posts (or those of a couple other Wordpress-hosted blogs I read at least occasionally), meaning less traffic on Wordpress sites: I’d presume that more traffic is good, but what do I know?

So I went to my Wordpress account, which until less than a week ago I didn’t even know I had, and changed the e-mail address associated with the account… to my (also) unused gmail address, which I had to add to do something with my work iPad. I figured this little stratagem might make sense: divert the stuff I don’t want to an account I don’t use. Nope. Didn’t work. I’m still unable to use my preferred e-mail to comment on Jack’s posts: important because that’s the address used to inform me of follow-up comments on that post. There’s something on the Wordpress site that suggests that this situation might change, because they’re fucking incompetent it takes time for changes to completely register. I can’t sign in to that account using my Hotmail account any more, but it might take a day and a half—so they say—for that address to become “available” again. Riiiiiiiiiight.

What we’re left with is a site more arrogant and less competent than Facebook, and that’s saying rather a lot. What I find most amusing about this whole situation, of course, is the fact that the blog I’m trying to access and comment on without interference from some officiously over-reaching site administrator’s unethical brainchild is… yeah, a site about ethics. I do enjoy irony. Usually, that is.

For the record, no, I am not going to stop posting comments on Jack’s site, even if I have to do so without allowing a reader to move over to this blog with a single click. And no, I don’t think Jack should stomp off in a huff and never post on Wordpress again because of their unconscionable assholitude. But I am a firm believer that karma returns, and there will be a serious come-uppance down the road for whatever knuckle-dragger came up with this scheme. In the meantime, I’ll just snarl a little when trying to post comments. Luckily, such behavior is well within my range.

UPDATE (3/25, 11:21 pm CDT): I just tried to post a comment on Ethics Alarms. It wouldn't let me post without signing in to my Wordpress account, which it insisted was linked to my hotmail address. Of course, I couldn’t actually sign in using that address, since I changed it on the site. So I signed in using my gmail address. I then posted my comment, which promptly vanished into the ether. It may have been sent for moderation (since it’s an address that’s new to the site, and Jack gets lots of spam comments); it may have been sucked into a vortex, never to return. We shall see.

Too Big to Succeed

Remember when we were told a couple of years ago about the banks that were “too big to fail”? Well, the Supreme Court ruled today, in effect, that the class-action sex discrimination suit filed by a million and a half women against Wal-Mart was, well, too big to succeed.

Or at least today’s ruling in Wal-Mart v. Dukes certainly seems to be based on that rather curious premise. True, there’s some legalistic mumbo-jumbo in there, and it appears that in strictly legal terms the women filed the wrong kind of claim (that was the unanimous decision of the court). But ultimately, the problem was that they couldn’t provide the “glue” (Justice Antonin Scalia’s word) that held every presumed member of the class together. In the majority opinion, then, the “[respondents’] wish to sue for millions of employment decisions at once” is at the crux of the problem. In other words, the suit was simply too big.

The key word was “commonality.” Here’s Justice Scalia for the majority:

Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.” This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”

OK, if I’m reading this correctly, what all this means is this: in order to file a class action suit, complainants must demonstrate that they suffered precisely the same injury from precisely the same source. The only way to demonstrate that would be to affirmatively prove a corporate culture whereby personnel decisions at individual stores, while presumably made locally, are in fact sufficiently influenced by a corporate culture that the decisions of a manager in California are in fact not independent of those made by a manager in New Jersey. That’s a very high hurdle, indeed, one which the majority (the usual suspects—Roberts, Scalia, Thomas and Alito—plus the occasionally free-thinking Kennedy) did not think had been met.

If that really is the standard, I’d have to agree with them. That is, if you really have to prove that the cashier who didn’t get a raise in Topeka and the model employee who was passed over for promotion in Ashtabula are victims of precisely the same decision-making process, I’m not sure you can get there. But, of course, here’s where there is dispute among the various justices. Justice Ruth Bader Ginsburg, writing for a minority which perhaps not-so-coincidentally included the other two women on the court (Kagan and Sotomayor), plus Breyer, argues that the very act of ceding authority to local managers is a consistent policy: “Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores.”

She also cites the precedent of Franks v. Bowman Transp. Co., in which “We recognized that the ‘qualification[s] and performance’ of individual class members might vary. ‘Generalizations concerning such individually applicable evidence,’ we cautioned, ‘cannot serve as a justification for the denial of [injunctive] relief to the entire class.’” For Ginsburg, the question isn’t whether common questions are the “glue” that joins all the complaints together, but rather whether such concerns “predominate” over individual matters.

For the majority, however, the fact that the corporation has a non-discrimination policy and procedures for filing discrimination complaints is sufficient to absolve Wal-Mart as a corporation from responsibility for the actions of dozens (hundreds? thousands?) of its managers, even if those individual actions were in fact discriminatory. Justice Scalia even snarkily observes that the women’s case has a mere 120 affidavits (“about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores”).

On this point, it seems to me that the good Justices could use a bracing jolt of the real world. Every corporation in the country has a non-discrimination policy; every one has an appeals procedure. These don’t exist because companies believe in equal opportunity; they exist because companies want to seem to believe in equal opportunity. They exist because their lawyers tell them—with cause, apparently—that some judge somewhere will be stupid enough to believe that a corporation’s public declarations have anything whatsoever to do with its actual day-to-day decision-making. If Mr. Scalia and his cronies got out more, they’d know that there are a million subtle and not-so-subtle ways of allowing all manner of discriminatory practices. Having a policy and enforcing it, in other words, are independent concepts.

Be it noted: the Court didn’t actually decide on the merits of the discrimination case, only on whether the women can legitimately be termed a class. The corporation’s official statement, then, that the decision “pulls the rug out from under the accusations made against Walmart over the last 10 years” is, like virtually everything else to come out of that company’s upper management, so much bullshit. There is no vindication of Wal-Mart’s actions here, only of their narrowly defined legal position.

There is, of course, plenty of evidence of discrimination: evidence in the form of anecdotal testimony, of statistics, of expert testimony about corporate culture. Indeed, Justice Ginsburg lays out the statistical case pretty well in her dissent:

Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” “[T]he higher one looks in the organization the lower the percentage of women.” The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”

The ramifications of the decision are considerable: proponents of both sides agree that the ruling is probably the most important consideration of the notion of class action in a decade or more. Business advocacy groups, or at least those who, like the national Chamber of Commerce, represent largely major corporations, are thrilled because today’s ruling makes it more difficult for complainants to join resources, or indeed to exact significant penalties from deep-pocketed defendants.

On the other side, of course, are those who, like Joseph M. Sellers, a lawyer for the plaintiffs, believe the majority “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.” Even more scathing—and no less accurate—is the critique of Marcia D. Greenberger, co-president of the National Women's Law Center, who said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

The women at the forefront of the case have vowed to fight on, and they may well succeed, either as individuals or as members of smaller, more homogeneous classes. But Wal-Mart is playing a divide-and-conquer game here, and will now be able to discount the most significant testimony against the corporation. They will, in other words, claim—just as Justice Scalia says they will—“to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store.” In other words, it just sort of worked out, corporation-wide, that men got more management opportunities, more raises, and all that stuff—and for a veritable cornucopia of different reasons. Coincidence is a wonderful thing, isn’t it?

As I’ve said here before, as in the case of the Westboro Baptist Church or the Silsbee High School cheerleader, what is legal is not necessarily what is just. That may be the women’s problem: they sought justice from a multinational monstrosity and from the Supreme Court. The former is unwilling, and the latter unable, to provide it.

A $5 a Day Minimum Wage is Asking a Little Much, Don't You Think?

It will come as no surprise to regular readers of this blog that I am a regular reader of Jack Marshall’s Ethics Alarms blog. An ongoing topic of conversation there is whether unethical behavior is worse if it’s (also) hypocritical: if, for example, a politician caught in a gay sex scandal is more culpable if he’s a virulently anti-gay rights advocate than if his public persona is more gay-friendly.

There are legitimate arguments on both sides, of course. Unethical and/or illegal behavior is precisely that, and at one level it matters not a bit who the perpetrator is. On the other hand, to the extent that the people involved in such cases are newsworthy precisely because they are perceived as role models or at least as leaders—politicians, influential corporate executives, religious luminaries, etc.—it does matter. It isn’t worthy of national attention if you or I get caught driving drunk; it is if the president of MADD does.

It is also probably true that we tend to hear more about hypocrisy from the right than from the left. There are a host of possible explanations for this phenomenon: that conservatives misbehave more in hypocritical ways, that the so-called liberal media skew the process, that transgressions from the right are more entertaining (often literally “sexier”)—not worse, necessarily—than the relatively speaking quotidian sins of hypocritical progressives. Moreover, even when there are legitimate concerns about the left—as, for example, with ACORN—the headline-grabbing allegations are often quickly and convincingly proved to have been utterly mendacious, damaging the credibility of the more substantive critiques.

But here’s an example, based on what we know so far, at least, of a story of outrageous conduct that is made all the more troublesome because it was perpetrated by the Obama administration. Many on the left were disturbed by the increased military presence in Afghanistan, but it shouldn’t have come as a surprise: candidate Obama said he thought the Iraq War was “stupid” (I agreed then, and agree now), but certainly didn’t discount the possibility of an escalation in Afghanistan. Progressives were also angry that Obama never really put a single-payer health care system on the table, didn’t fight for a public option, and allowed the Bush tax cuts on the rich to continue with little more than a whimper. But those were crises of strategy and of will, not (or at least not inherently) of intentionality.

This one is different. Democrats in general and the Obama administration in particular purport to be about a global community and (therefore) a non-interventionist foreign policy. They aren’t, Murdoch media screeching to the contrary notwithstanding, intentionally anti-business, but they do claim to support legitimate checks on corporate hegemony with respect to those companies’ relationships to the government, to the economy in general, and to their own employees.

According to a story briefly posted on The Nation’s website and then pulled down to be re-posted this week to coordinate with a simultaneous release by Haiti Liberté, it appears the Obama administration violated all these principles and behaved with Machiavellian amorality at the same time. As noted, the full article is no longer available (until Wednesday), but Ryan Chittum of the Columbia Journalism Review has posted a précis. (I’ll make sure there’s a link to the full article as soon as it’s available again.)

A little context: The Nation is certainly not without its political perspective, but it is different from a host of other publications from both sides of the political divide in two fundamental ways: first, it is remarkably up-front about its orientation—no “fair and balanced” bullshit from them—and second, whereas their reporting is clearly filtered through a progressive lens, they don’t simply make stuff up the way, say, Andrew Breitbart does. So, in the absence of evidence to the contrary, I’m going to believe that Chittum correctly interpreted the article, which in turn correctly interpreted the facts.

It seems that the Haitian government passed a law two years ago, raising their minimum wage to 61 cents an hour: less than $5 a day for an 8-hour work day. This does represent a huge increase from the previous 24 cents an hour, but remains obscenely low, a symbol of the oppression that country’s citizens have endured for generations.

But—and the mind boggles at the hubris—American corporations like Hanes and Levi Strauss were righteously indignant that their outsourced labor would cost them nearly 8.5% of what these All-American companies would have to pay US workers. That’s reprehensible of them, of course, but hardly surprising. Levi Strauss in particular loves to wrap itself in the flag and tout American values, so long as those values don’t include hiring Americans at a living wage rather than exploiting the misery and poverty of foreigners.

What’s really disturbing is what happened next: after the corporations decided they could see their way clear to, well, maybe 35 cents an hour, the US government (read: Obama and his minions) leaned on the Haitian authorities, and hey-presto, the Port-au-Prince government capitulated, apparently carving out a $3 a day (logically, 37.5 cents an hour, but possibly in fact the 35 cent figure the companies agreed to) exception for textile companies. But this meddling wasn’t enough for the US Embassy. Quoting Chittum here:

The Nation:

… A deputy chief of mission, David E. Lindwall, said the $5 per day minimum “did not take economic reality into account” but was a populist measure aimed at appealing to “the unemployed and underpaid masses.”

Well, hey. Imagine Haitians doing things for their “unemployed and underpaid masses” rather than rich Yankee corporations. The outrage! No wonder we have 9.1 percent unemployment and 16 percent underemployment here while the folks who sent the economy in the tank are back making millions.

Let’s do a little math. Haiti has about 25,000 garment workers. If you paid each of them $2 a day more, it would cost their employers $50,000 per working day, or about $12.5 million a year.

Zooming in on specific companies helps clarify this even more. As of last year Hanes had 3,200 Haitians making t-shirts for it. Paying each of them two bucks a day more would cost it about $1.6 million a year. Hanesbrands Incorporated made $211 million on $4.3 billion in sales last year, and presumably it would pass on at least some of its higher labor costs to consumers.

In case you were wondering, Levi Strauss, a privately owned corporation, scraped by with a mere $156.5 million profit on $4.4 billion in sales. I need hardly mention that the difference between paying every one of their Haitian workers an extra $2 a day could be offset by paying top executives more than they’re worth instead of an obscene amount more than they’re worth. Chittum points out that Hanes CEO Richard Noll “could pay for the raises for those 3,200 t-shirt makers with just one-sixth of the $10 million in salary and bonus he raked in last year.”

Of course, cynic that I am, I expect hubris, greed and amorality from corporate executives. To say that one of these clowns has no conscience is like saying it can get brisk in northern Minnesota in February. No, to me this story is about pompous morons like Lindwall and whatever equally ethically- and/or intellectually-challenged jackasses put him up to saying something positively Bachmannesque in its inanity.

One suspects this is a story without “legs.” Democrats don’t want to admit that their party’s leader is a tool of big corporations, same as the other guys. Republicans might see a short-term advantage to highlighting the Obama administration’s intervention in another country’s affairs, but they don’t want to risk losing their phony Obama-is-anti-business mantra.

Perhaps there’s more here than initially meets the eye, and I’d be happy to be proved wrong. But, at least until Wednesday, when the full Nation article is (re-)posted, I’m going to have to believe that the Obama administration has once again betrayed its presumed values. That’s not earth-shattering news, but it’s disappointing nonetheless. And it’s downright depressing that a President perceived as pro-worker even at the expense of business and non-interventionist even when American interests are at stake, chooses not to behave that way in private. Not even when the obvious right thing to do is also the easiest: in other words, nothing.

Fracking Frackers.

As a well-informed citizen, Gentle Reader, you are no doubt aware of the state of Texas’s budgetary crisis that’s going to cost, among other things, somewhere in the vicinity of 100,000 jobs in the public education sector so we can maintain a “favorable business climate,” or whatever new euphemism Governor Perry is using for “screw everybody but my fat-cat campaign contributors.”

The newest revelation about the true nature of the deficit suggests, unsurprisingly, that Big Energy is not only making obscene profits with little if any regard for trivial inconveniences like groundwater contamination bad enough to set tap water on fire, but they’re apparently gaming the system to avoid literally billions of dollars in taxes. Indeed, a report commissioned by the Texas Legislative Budget Board but oh-so-conveniently not published—the decision to publish or not is made by the “leadership” (Lieutenant Governor and Speaker of the House), not the staff—shows that there has been some pretty shady stuff going on. The result is that a tax of 7.5% of market value has, because of “deductions, exemptions, and rate reductions,” actually generated a yield of only between 1.1 and 1.9%, or somewhere in the vicinity of a quarter of what would otherwise have been owed.

The most significant part of this discrepancy was in a tax benefit accruing to “high-cost operations.” The original rationale for this incentive makes perfect sense: encouraging companies to drill in places they otherwise might not, thereby creating a win-win: the company hires more people, makes more money and can keep more of it; the state collects a lot of tax revenue, even at a reduced rate, when there may not have been a well at all otherwise.

Problem is (quoting from the report):

• High-cost natural gas well certifications are based on 30-year-old production definitions that rely on the type of gas produced and manner of production rather than the actual cost to drill. In fiscal year 2009 this resulted in the certification of a $24,000 gas well as a high-cost operation when the median drilling cost was $2.3 million….

• Since fiscal year 2004, the value of high-cost gas tax rate reductions has totaled $7.4 billion.

• During fiscal year 2010, the State Auditor’s Office documented multiple instances in which tax audit processes did not prevent taxpayers from claiming rate reductions in excess of statutory limits. The Comptroller of Public Accounts later reported 357 natural gas wells had exceeded maximum rate reduction caps.

• [High-cost gas tax rate reductions are projected to account for] state revenue losses of $7.9 billion through 2019, from just the wells drilled in 2009.

The exact ratio of how much of the lost revenue is the result of actual criminality as opposed to simple corruption of the political process is unclear. What is evident is that the natural gas industry, with the active collusion of the state government, is getting enough in tax breaks at the expense of the rest of us to make a serious dent in the deficit. Ultimately, it matters little how Halliburton (to pick one such corporation at something short of random) harvests its taxpayer rip-off: by breaking laws it knows won’t be enforced, or by buying politicians who will do its bidding and legalize that which should be criminal.

To say that I am not a geologist or a tax accountant is rather like saying that water is wet… or that fracking isn’t worth the risk, at least at current technology levels. But it doesn’t take a lot of discipline-specific expertise to figure out what to do: 1). review the current policy, making appropriate accommodation for actual entrepreneurship, but ensuring that multi-billion dollar corporations aren’t screwing the rest of us (again), 2). actually enforce whatever the revised law does decree (collecting what's already owed wouldn't be a bad idea, either), 3). remove the TLBB from partisan control so they can and will release reports like this one, which they claim is an “internal working document,” not even subject to the Open Records Act.

There are legitimate concerns, expressed for example by commenter “L Streets Resident” on the excellent blog post by Jim Schutze on the Dallas Observer site, that a too-precipitous change of policy might turn out not to be cost-effective, costing more in jobs than it would generate in revenue. Perhaps. And Schutze no doubt exaggerates the situation: $8 billion over several years is different from $8 billion right now. But the energy industry’s defenders can’t seem to wrap their head around the idea that, say, cutting a third of the state’s teaching jobs might also have some significant negative repercussions extending well past the immediate families of the laid-off educators themselves.

Frackers.

The Outrage Is There... But Where Is the Outlet?

In Theatre History class, I discuss the economic conditions of the 19th century which, I argue, structurally parallel the rise of the director in the theatre. I talk a lot about the anonymity of the new economy. Whereas there was a time when a customer who had a problem with Joe’s Widgets demanded to see Joe (and Joe made things right), the increasingly complex economies of the last century and a half have brought in the age of Amalgamated Widgetcorp, and a customer service problem gets routed to a phone bank in India.

This downside of a modern economy is never more evident than in the public’s inability to know how to protest against a company that has no retail presence when they do something remarkably obscene, like, say, when Transocean gives millions of dollars in bonuses to its executives in celebration of their safety record. You remember Transocean, right? The good folks who were right in there with BP in creating the disaster in the Gulf of Mexico, the one that killed eleven people and caused perhaps irrevocable harm to an entire ecosystem? The ones who effectively kidnapped survivors of the explosion, not allowing them to even call their loved ones to assure them of their continued existence, lest they might say something that would… uh… let the rest of us know the truth of what happened? The clever fellows who invoked an obscure 19th-century law to try to wriggle out of their responsibilities to those people, present and future, harmed by their malfeasance? The ones who, although really a US company, moved their incorporation first to the Cayman Islands and then to Switzerland to avoid taxes? Yeah, those guys.

Well, these paragons of virtue are now rewarding their upper management for their amorality, their callousness, indeed their criminality. Of course, it is true that the safety record for 2010 wasn’t really much worse than in previous years. There had, after all, been fatalities at Transocean facilities in 2002, 2003, and 2007. The Wall Street Journal reports that “[n]early three of every four incidents that triggered federal investigations into safety and other problems on deepwater drilling rigs in the Gulf of Mexico since 2008 have been on rigs operated by Transocean, according to an analysis of federal data.” This “despite during that time owning fewer than half the Gulf of Mexico rigs operating in more than 3,000 feet of water.”

In surveys conducted in 2008 and 2009 by Energy Point Research, says the WSJ, Transocean was rated last in job quality and second to last in overall satisfaction. Respondents to the survey are clients of the various drillrig corporations. 77 people were evacuated from the Deepwater Horizon rig itself in 2008.

At least in 2009 and 2010 Transocean had the sense not to reward (at least explicitly) the executives who, through incompetence, amorality, or simple charlatanism, were responsible for condoning if not abetting the company’s frankly rather dismal safety record. (One of the greatest ironies of recent times was the celebration of safety on the Deepwater Horizon on the very day of the Gulf disaster.)

But now, Transocean has, less than a year after the horrific events of last April 20, decided to create the Orwellian specter of rewarding safety performance that doesn’t exist. We have, after all, always been at war with Eurasia. (Is the linguistic similarity between Oceania and Transocean a coincidence? Enquiring minds want to know.) Perhaps, of course, by the corporation’s calculus, they did have “an exemplary statistical safety record as measured by our total recordable incident rate and total potential severity rate.” (Other than that, Mrs. Lincoln, did you enjoy the play?)

But here’s the point: even if the overall safety record of Transocean for the past year really has been exemplary by industry standards, it is still a remarkably arrogant and bone-headed move to remind the rest of us of what surely must rank as one of the biggest PR calamities in corporate history. And it doesn’t even matter if Transocean wasn’t really principally to blame for the events in the Gulf last spring: they’re linked to them in the public consciousness, so the bonuses to perceived perpetrators are a slap in the face to anyone who thinks that even multi-billion dollar corporations ought to be held responsible for their actions.

These bonuses, in other words, are as bad for the corporation’s reputation as they are hubristic and greedy. But, of course, a company like Transocean just doesn’t care. When Target, which made part of its reputation on being allied to more progressive causes than its chief competitor, Wal-Mart, contributed to the campaigns of virulently anti-gay candidates, it spawned a boycott. Now, the effect of the boycott was no doubt negligible in direct terms: the few hundred dollars in gross sales that this or that consumer spent elsewhere isn’t likely to bring a corporation the size of Target to its knees. But the boycott was well-publicized and ongoing. Corporations don’t like bad publicity. Target changed its practices.

Transocean, on the other hand, can’t be boycotted by an incensed public. Do I shift my business from the Chevron gas I usually get at the convenience store closest to my house to the Exxon gas at the convenience store closest to my office to avoid a product that has been pumped through a Transocean rig? Or are both OK? Or neither? No, the only people who can boycott Transocean are folks like the decision-makers at BP and Shell, not exactly exemplars of corporate ethics, themselves. And, of course, the outrage seen here and elsewhere won’t matter a whit to those who, like Transocean CEO Steven L. Newman, see no reason even to pretend to inhabit the moral and ethical universe of the rest of us.

It’s only a matter of time before this sorry excuse for a human being shows up as an expert commentator on Fox, CNN, or CNBC. If I might switch dystopian novels on you, dear reader, welcome to the Brave New World.

With Arrogance Comes Stupidity

We have been over-run lately with stories of corporate malfeasance. Bank bonuses to the very slimebags who made it necessary to rescue the industry to begin with are actually expected to go up by as much as 15% this year. Everyone’s least-favorite corporation (this week), BP, just got hit with the largest fine in OSHA history—over $50 million—not for their casual disregard for employee welfare on the Deepwater Horizon well where 11 men died, not for the 2005 Texas City refinery explosion that killed 15 and injured nearly 200, but because after the Texas City catastrophe they couldn’t be bothered to improve safety at the plant.

A Mine Safety and Health Administration official has pretty much stated that Massey Energy is once again lying about the causes of the disaster that killed 29 miners in West Virginia. Target and Best Buy have both come under fire for taking advantage of the outrageous Citizens United Supreme Court ruling and sending pots of money to MN Forward, an ostensibly pro-business group that oh-so-curiously seems to support almost exclusively Republicans, and virulently anti-gay ones, at that. Honestly, if I boycotted every company that richly deserves it, I’d have to become a hermit.

What all these stories have in common is the signature legacy of a generation of Reaganomics and the wrong kind of libertarianism: arrogance. BP and Massey don’t care about safety because even if they have to pay the occasional fine, it’s still—in their judgment—cost-effective to cut corners. BP made $14 billion in 2009; the huge—to us—fine imposed by OSHA works out to less than a fortnight’s profits: not income, profits. Target may think its pious proclamations or support for gay rights will immunize them against a boycott, but it’s more likely that they believe, probably correctly, that consumers really have no options: where are they going to take their business, Wal-Mart?

Besides, they’re all worth gazillions. Massey Energy, far and away the smallest of the corporations mentioned by name here, had a stockholder equity of over a billion dollars in 2009. And rich people just think differently than the rest of us: they think they’re entitled, they’re actually less likely to be generous, and they are often proud of what the rest of us would call character flaws (wonderful parody of this phenomenon here).

All of which brings us to the Pillsbury Douchebag Doughboy, who is throwing his pudgy weight around, issuing a cease-and-desist order to a small Salt Lake City cookie bakery called My Dough Girl: change your name or we’ll sue you. The case has been around for several months—there’s discussion on the my dough girl vs pillsbury corporation Facebook page (not to be confused with the store’s own Facebook page) from as early as May—but the case has really gone viral in the last couple of weeks, highlighted, perhaps by a great piece on Fox News’s Shepard Smith’s video blog on Wednesday, in which he asserts that “middle fingers are in order for this big company.” (What’s this guy doing on Fox instead of a real network?)

Poor General Mills (owners of Pillsbury). This corporation, with a mere $23.3 billion in market value, is threatened by a Utah bakery with an owner and a handful of part-time employees. “Unfortunately, we needed to protect our trademarks—and we did,” sniffs the corporate minion on Pillsbury’s own Facebook site. The MSM has dutifully fallen into line behind Goliath in this battle. Note the spin in ABC’s story:

Even though it may seem as if these massive corporations are frivolously bullying relatively insignificant competitors, all companies, large or small, have to protect their trademarks at every turn, lest they lose them, said James Rittinger, an intellectual property attorney with the New York City law firm of Satterlee Stephens Burke & Burke.

“Trademark law, unlike copyright law, where you can pick and choose who you want to sue, requires the trademark holder to police its mark,” Rittinger said. “Otherwise, the mark can become weakened—diluted, in trademark parlance—or even lost.”

Large companies are often criticized for picking on mom-and-pop shops, but really they have no choice, Rittinger said.

“If they do not take action, they severely jeopardize the strength of their valuable trademarks,” he said.

Added White Plains, N.Y.-based trademark attorney Thomas Wilentz, “Anyone starting a new business or coming out with a new product has to do an extensive trademark search…. You wouldn't buy a house without doing a title search.”

Notice anything missing there? Like the fact that General Mills doesn’t have a freaking case, for example? Or the fact that Mr. Rittinger and Mr. Wilentz are full of crap? Both assume facts not in evidence, to use what may or may not be actual legal terminology (but if it’s good enough for generations of TV lawyer shows, it’s good enough for me). Tami Cromar, the owner of My Dough Girl, did indeed do the appropriate searches, but no doubt determined that since no rational person would confuse her company with Pillsbury, she was on safe legal footing. And indeed she would be in a just universe. Does this look like a just universe to you?

I’m not a lawyer, but, as was once said of me in a different context by one of my favorite professors, I know something and I can read. I understand that copyright law and trademark law work differently, and that the owner of a trademark must actively protect that mark's exclusivity. This doesn’t mean, however that Pillsbury controls every variation on the word “dough.”

A blog called The IPKat concentrates on copyrights, trademarks, patents, and similar issues. True, it’s headquartered on the other side of the Atlantic, but they seem to know whereof they speak. One of their most interesting observations really cuts to the heart of the matter: “in common American nomenclature, the Doughboy is only ever referred to with the ‘Pillsbury’ precursor.” That is, there’s some question about whether Dough Creatures of any gender are actually covered by the trademark.

IPKat continues:

Further it seems impossible to envisage a scenario where a consumer gets in their car to drive to the grocery store to pick up a can of Pillsbury croissants, drives past My Dough Girl in Salt Lake City, gets confused, stops and purchases their products instead. Economically speaking, as well, if you are in the market for a Pillsbury Doughboy product it is highly unlikely you will be stopping at a gourmet cookie shop instead.

Since, according to a Harvard Law website, “the standard [for trademark infringement] is ‘likelihood of confusion,’” IPKat’s delightfully snarky scenario would seem to apply. The Harvard site also lists the kinds of factors generally employed in such cases: “(1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.” I’m not sure what is meant by “the strength of the mark,” but apart from “the proximity of the goods,” there doesn’t seem to be much of a case here.

The “marks” bear literally nothing in common. My Dough Girl may have a punning name, but Ms. Cromar says that the name actually derives from a term for World War II era pin-up girls. The cookies themselves are named for the pin-ups—Virginia, Trudy, Penelope—and the store’s logo, prominently displayed on their website, bears as much resemblance to the Pillsbury Doughboy as a picture of a cake would. There is precisely zero evidence of actual confusion, I’m guessing relatively few people order their Poppin’ Fresh products on the web or by phone or by dropping by the plant, and even the Pillsbury people don’t seem to want to try to make the case that Ms. Cromar has any intent to deceive the population. In other words, Pillsbury has no case. None. Zero. Nada. Zilch. They’d have as good a complaint against Homer Simpson for saying “Doh.”

But they’ll get their way, because it’s easier and cheaper for Ms. Cromar to capitulate than to fight against a corporation willing to waste tens if not hundreds of thousands of dollars pursuing frivolous lawsuits. General Mills and their goons know that, of course. We can but hope that someday they'll accidentally pick on someone who can fight back. And, indeed, Ms. Cromar already has a history of losing in court when she has the better case. Friday she posted this on My Dough Girl’s Facebook page:

I am a cyclist, another passion of mine. A few years ago I was hit by a car, the driver admitted to making a wrong turn and was cited. I spent 18 months recovering, his lawyers were fantastic! They won, the lawyers took all the money, I was left with medical bills, a broken heart, a broken bike, and a broken spirit.

[I’m taking on faith that she’s better at baking than at punctuation, but you get the idea.]

No one can blame her that she has apparently decided not to fight, even though the estimated costs of the rebranding run into the tens of thousands of dollars. [EDIT: according to a post by an admin at the my dough girl vs pillsbury corporation Facebook page, a settlement has been signed.] It’s a lot easier to urge others to stand up to The Man than it is to do so oneself. Not everyone can be Nelson Mandela or Václav Havel, or even Shirley Sherrod (who, it will be remembered, did in fact resign her position before coming out swinging after someone else demonstrated that she wasn’t the racist that Andrew Breitbart and the whores at Fox News portrayed her as being).

When we get right down to it, Pillsbury/General Mills is pursuing this course of action not because they have to to protect their trademark, but because they can. No sentient being could possibly confuse Pillsbury with My Dough Girl. The people at General Mills know that as well as anyone. But they just can’t help themselves. To a certain personality type, strutting around bullying the little guy is a show of manliness. To me, it’s a pretty sure sign that someone is compensating for something. [Insert vulgar anatomical reference here.]

What separates what Pillsbury is doing in this case from what other arrogant corporate Leviathans have done recently, however, is significant: there is literally no rationale for their actions. In all those other cases mentioned above, it’s possible to at least see the thinking: if we cut these safety corners, we’ll improve our bottom line; if we give ridiculous bonuses to our executives, they won’t be tempted to move to a different firm; if we throw money at political candidates, we might get a friend in high places. The rest of us might find those reasons unethical, but at least we understand them. Pillsbury, however, even if they “win,” won’t have eliminated a real threat to their trademark; they’ll simply have created a shit-storm of negative publicity. Certainly if I were a General Mills stockholder, I’d be pretty upset that management is wasting money on lawyers and generating bad press to eliminate a phantom threat rather than—hell, I don’t know—developing new products, or improving employees’ job satisfaction, or (best of all) increasing my dividends.

Boycotts seldom work. People have short attention spans, and before long they’ll start missing those crescent rolls. I doubt that I account for $20 a year worth of profit for General Mills. If I brought every one of my Facebook friends with me, and they all contributed that same amount to General Mills’s profit margin, and we all kept up the boycott for a full year, we’d cost the corporation about 6 ½ minutes’ worth of profit. On the other hand, sometimes you just do things to make yourself feel good. We’re getting low on cereal. The next box won’t be Wheaties or Cheerios.