Thursday, June 13, 2013
Posted by Jeff Lipshaw (cross-posted at PrawfsBlawg)
Well, I say yes. There's more money potential in narcotics than anything else we're looking at. Now if we don't get into it, somebody else will. Maybe one of the Five Families, maybe all of them. Now with the money they earn, they can buy more police and political power; then they come after us. Now we have the unions, we have the gambling; an' they're the best things to have. But narcotics is a thing of the future. An' if we don't get a piece of that action, we risk everything we have -- I mean not now, but ah ten years from now.There are many of us who believe that The Godfather is an inexhaustible source of appropriate metaphor, and this morning I apply it to a telephone marketing scheme from what you would think was an otherwise reputable company. And with a certain humility given the number of decisions like this in which I was involved in my corporate career (one only hopes for the better - i.e. "there but for the grace of God go I"), I'm prepared to pass judgment on this one below the break.
When I got to Michigan, the phone showed a bunch of missed calls from something called "Sears Protection." I erased all the missed calls. But I kept getting a recorded message at exactly the same time of day from "Sears Protection," and as soon as I saw it on the caller id, I hung up on it without listening. Finally, after several days of this, I decided to listen to the message so that if there were a live person I could scream at him, her, or it. The first words, coming from a resonant male voice clearly hopped up on amphetamines (think the guy who does the ESPN Sports Center intros - "THIS IS SPORTS CENTER"), were something like "if you are a senior citizen, you need to be listening to this" and I am pretty the rest was some kind of home security system with an "I've fallen and I can't get up" fillip to it.
I listened through to the end, declined to press 1 to get more details, and the message finished with a nerdy voice telling me that if I didn't want any more of these calls to press another number (whatever it was). So I did, but I thought it was a really obnoxious marketing campaign, and even more obnoxious that to get off the call list, you had to listen to the message. I also thought we had put our number on the FTC's "do not call" registry, but I didn't feel like investing all that much effort at the time.
But the calls kept coming at the same time every day, but with the new feature that when I picked up the phone there was complete silence.
Well, this morning another silent call came in. It interpreted me in mid-flow of my writing what will no doubt be a unreadable and unread law review article, and hell hath no fury like a prima donna author interrupted.
This time I looked up the website of the Michigan Consumer Protection people, got to the national no-call registry, made sure we were registered, and learned that you could file a complaint, even if you are not registered, if it's a recorded call. Which I did.
Then I decide to call Sears, which wasn't quite so easy. There's no number listed on the Sears website for complaints, so I looked up the corporate headquarters number, and called there. And I have to say that the operator promptly transferred me to somebody when I asked for the "complaint department." I also have to say that the person who took my call handled it in what seemed like a serious way. She confirmed that indeed the number was a Sears marketing department, and took down a lot of information about it, including that I thought the entire idea of the campaign was obnoxious (i.e., directing a campaign to seniors in that cataclysmic, apocalytic tone), and that I had already filed a complaint with the FTC. She promised to take my number off the call list, but I told her that I wanted Sears to reconsider just how obnoxious the entire effort was.
Again, I had absolutely no complaint with how the complaint woman handled the complaint. It was kind of funny when she asked me at the end whether, just based on my dealing with her, whether I'd continue to be a Sears customer, to which I replied, "you were fine, but we'll see how it goes."
In my experience, these kinds of misguided business decisions don't always (although they can) come from some evil or corrupt CEO who makes too much money. Rather, they get made by lots of ordinary Jills and Joes who are just trying to do their jobs. I supposed this falls fairly low on the evil scale, but nevertheless there's a kind of banality or self-deception to it.
I always viewed it as part of my brief to question the sense of a business decision, even when I was simply asked whether what was proposed was legal. So often people do think they are doing the right thing, and are responding to principles like "be profitable" or "make money for the company" or even "make as much money as you can for the company" that are, in my mind, completely unobjectionable if applied with good judgment. To paraphrase a joke I didn't originate, I would have asked about the sense of a GE employee seeking to buy Brazil just because Jack Welch wanted a cup of coffee, even if buying Brazil was wholly legal.
To bring this back to Tom Hagen and Virgil Sollozzo, one of the toughest calls to make is the one in which there's a legal but fishy market opportunity, and if you don't grab it, somebody else will. I don't have a neat answer, because I think one person's legitimate opportunity could look like another person's scam, at least at the margins, and I don't claim to have always made the right call when I was involved.
But it seems to me our job, whether lawyers or business executives in that position, is to be at least self-aware enough to bring the issue of banal marketing stupidity into the open.