Last year, I picked the top five Super Bowl commercials, but this year I found only one worthy of posting: the eTrade babies ...

This year's ad continues to claim that eTrade gets "a thousand new accounts a day."

Seriously? People are still opening eTrade accounts?

Anyway, if you want to see more eTrade babies, check out the eTrade site.

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Yesterday I received a call from a reporter doing a story on trends in corporate governance. When reporters call, I react with some ambivalence. I don't mind helping reporters to understand the stories that they are pursuing, but I have no special desire to be quoted (or misquoted) in a news or magazine story. And the interviews inevitably take way more time than the final product implies. In short, I can think of many other ways that I would prefer to spend my time.

All of these thoughts passed through my mind when I read about Peter Shankman's service, "Help A Reporter Out." Of course, I signed up because I enjoy playing with new internet services, but this looks like a service that I may ditch rather quickly. So here's a little poll for our high-flying readership ...

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From Seth Godin: "Make big promises; overdeliver."

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Just in time for March Madness, Sneaker Wars has just come out, recounting the modest origins of the now-multinational multi-billion-dollar sports shoe industry.  I just happened to catch the book review in this morning's WSJ.   The story begins with the Dassler brothers' little Bavarian shoe factory, started during the thick of WWII.  Fraternal rivalry caused the brothers Adi and Rudi to part company in the late 1940s, when Rudi walked across the river to the other side of town--the medieval town of Herzogenaurach--to set up a competing factory.  Adi Dassler's shoe became, of course, Adidas.  Rudi developed the Puma brand.  Together, the rivaling brothers and their rival brands came to dominate the world sports shoe industry for decades.  Adi and Rudi pioneered what are today's standard marketing strategies for sporting goods and other consumer goods, giving away free shoes to athletes and later paying stars to wear the logo.   

It's a treat for me to read about the history of Adidas.  Anyone who played grade-school basketball in the 70s remembers the dominant basketball shoes--Converse All-Stars and the Adidas Superstar, with the latter gradually overtaking the former both in the pros and in the school yard.  According to Wikipedia, three quarters of all NBA players in the mid-70s were wearing the Superstar.  I remember well getting my first pair.  They were navy felt with white stripes (I know, I know . . . but remember, this was the 70s).  I was a mediocre basketball player at best, but at least the shoes looked cool.

The sports shoe industry took a big jolt in the mid-80s, when Phil Knight signed Michael Jordon for Nike and launched the Air Jordan, which became the best-selling basketball shoe ever.  Nike has dominated the U.S. market ever since, though Adidas and Puma appear to be making comebacks.  You can read about Adidas' recent comeback efforts with its signing of David Beckham in the Prologue to Sneaker Wars.

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I didn't watch the game, but the ads are available here. The top five, in my humble opinion, below the fold ...

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Here. Some of the Best ...

Well, that was fun, but are you more likely to buy the products after seeing these commercials? I'm not.

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I just purchased a new mobile phone. The last time I did this, I asked for advice from readers, and I read consumer reviews. While the honeymoon was promising, the marriage was a failure. I ended up disliking my Samsung SCH-i730 so much that I have completely abandoned the idea of having a PDA bundled with my phone.

This time, I didn't seek any advice or read any reviews before stepping into the Verizon store and purchasing an LG VX8350. The expert reviews are mixed, but it looks like it could be just the ticket for me. It's small. The keys are easy to press. And it's primarily a phone.

Which brings me to the topic of this post. Would user reviews have helped me with this choice? Adina Wise explores the value of user reviews on Salon as she labors over the purchase of tissue:

In a 2007 Customer Engagement Survey conducted by the global marketing research firm ACNielsen, online consumer opinions represented the third-most-trusted form of advertising, after word-of-mouth opinions and newspaper ads. (Magazines, television and radio all landed lower spots, proving today's tough reality for high-budget ad types.) Another market research firm, E-consultancy, asked online retailers about the effects of adding customer-generated reviews and ratings. Seventy-seven percent said site traffic increased, and 42 percent reported a rise in the amount of money spent. So people aren't just gravitating toward pages with ratings, they're also spending more when they get there. I may be sucked in by customer reviews, but I am clearly not the only one.

Adina frets about the credibility of anonymous reviewers, but for me the bigger issue is the noise-to-information ratio. Look at some of the consumer reviews for my new phone. Some people like it, some don't, which is exactly what I would expect with a relatively inexpensive phone like this one. johnny5z2 is very disappointed in the phone, but then you find out he is all in a lather because the phone is too light ("when you try open the phone it slides right out of your hand") and doesn't have many "display theme" options -- "Hmmm, I'm pretty sure a majority of people like having it their way, well with this phone you either have it all black and white with certain symbols in color or you have all the colors of the rainbow spread in all the seperate menus." Let's just say that johnny and I are not interested in the same features.

In most circumstances, when making a big purchase, I read user reviews, but I have come to treat them like student evaluations. I ignore isolated complaints like johnny's and look for patterns.

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It's not a 30-minute guarantee, exactly, but Domino's wants us to remember the golden days. The problem with the old guarantee was a legal one: Domino's was worried about being held liable for accidents caused by its or its franchisees' delivery people.

Of course, the franchising context raises an interesting issue of agency law because franchisors generally are not vicariously liable for the acts of their franchisee's employees, even though franchisors exert substantial control over their franchisees. I once taught a case on Domino's in Business Organizations called Parker v. Domino's Pizza, Inc., 629 So.2d 1026 (Fla. App. 1993). The case arose from an automobile accident in which the franchisee's delivery person was accused of "operat[ing] a vehicle in a reckless, negligent and careless manner, causing it to strike another vehicle." The plaintiff's were pedestrians who were struck by a third vehicle that hit them while they were helping the victims of the initial accident. The key issue in the case was whether Domino's should be vicariously liable under agency law, and this issue turned on the level of control exercised by Domino's.

The court read the franchise agreement and operating manual, and found control provisions all over the place:

The manual which Domino's provides to its franchisees is a veritable bible for overseeing a Domino's operation. It contains prescriptions for every conceivable facet of the business: from the elements of preparing the perfect pizza to maintaining accurate books; from advertising and promotional ideas to routing and delivery guidelines; from order-taking instructions to oven-tending rules; from organization to sanitation.

Obviously, most franchise guidelines have nothing to do with a delivery accident (and the law here is muddy enough that it's not clear whether that matters!). The court also mentions the 30-minute delivery policy, though more in passing than as a crucial fact. In any event, the court concluded, "The manual literally leaves nothing to chance," and this leads to "the self-evident conclusion that it was error to determine as a matter of law that Domino's does not retain the right to control the means to be used by its franchisee to accomplish the required tasks."

Well, it doesn't seem so self-evident to me, but that sort of reasoning was enough for Domino's. According to the W$J, "After abandoning the guarantee in the wake of the St. Louis lawsuit, Domino's began playing up the taste and quality of the pizzas themselves."

Hmm. The taste and quality of Domino's pizzas?

No wonder they are going back to the 30-minute delivery policy.

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Recently, much time and attention has been given to advertisements of unhealthy food for children during children's programming; so much that some food manufacturers have volunteered to stop advertising certain foods during certain programs to forestall blanket legislation.  I myself have never been worried about sugary sweet advertising to kids.  If my child sees a twinkie commercial, that will only inspire her to eat a twinkie if there are some in our pantry.  As far as I can tell, she can neither drive to the store nor order in twinkies.  As long as I control the pantry, whether (and how often) she eats twinkies is up to me.  Sure, a commercial may prompt her to ask, nag, beg or whine for twinkies, but that's what makes me the mom -- the ability to withstand nagging, begging and whining.

However, there is another set of advertising that I'm beginning to think is far worse than twinkie advertising:  loan advertising.  Some cable channel that my kids watch for children's programming carries quite a bit of ads for mortgage lending, debt consolidation and management, and stores that tout financing of products.  I had not paid any attention to this until the other day when our daughter asked "When you buy a couch, why do you have to keep paying each month?"

Her debt-averse parents took this as a teachable moment to explain to her that if she paid cash for the couch, then she wouldn't have to keep paying each month.  I actually sounded like my grandma:  "And if you can't afford to pay cash, then you should save your money until you can."  We tried to show her mathematically the difference between paying $1000 once or $90 a month for two years.  I'm not sure how much sank in, but at least now the door is open to similar conversations. 

Obviously, my 8-year old won't be taking out a mortgage or buying on time any time soon, but what messages is she receiving?  Trying to view these commercials from her viewpoint, I think she could take away the following lessons:  (1) financing ordinary consumer purchases is customary for average buyers; (2) one should not wait to reward oneself with fun purchases when you could take that product home today and pay later; (3) many people (portrayed by attractive actors in nice clothes in nice living rooms) get into debt that they cannot repay, this is OK and there is an easy way out; and (4) having bad credit is not an obstacle that one should worry about or try to avoid.  I'm sure there are more.

I'm not calling for regulation by any means, but I do want to consciously counteract these messages with some personal finance "flashcarding" of my own.  We wonder why in ten years her cohorts will go away to college, sign up for private student loans at high rates of interest because the financial aid person tells them the process will be quicker and require less paperwork, fill out credit card applications they find in the bag the bookstore clerk places their textbooks in and then put everyday consumer expenses on those credit cards.  My daughter learned the food pyramid in kindergarten and knows what foods are healthy and what are not.  As far as I can tell, we need to make an effort to teach her about the time value of money, the (white and black) magic of compound interest, and the virtues of deferred gratification.

Aside:  As I was typing this, I remembered those old American Express commercials where someone would talk about the evils of "revolving debt."  I remember Jerry Seinfeld riffing on still paying for that lunch two years ago.  But now that American Express has cards that are revolving credit cards, we don't see those commercials anymore!

D

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Like other law professor moms that I know, I have spent untold hours and energy creating a crazy quilt of day camps for my kids to attend so that I can continue to work when school is not in session.  In the back of my mind I keep wondering how old the kids have to be before they can go to sleep-away camp.  I went to church camp starting at 12, but it only lasted a week.  I'm looking into religions that host much longer sleep-away camps.

Anyway, according to this Sunday's NYT, sleep-away camp may not give me the huge blocks of uninterrupted work time I'm looking for.  Apparently, I will spend an hour each day babysitting my kids' Webkinz!  (I have blogged about Webkinz before.)  While the kids are at camp, someone has to feed and take care of the Webkinz, which will include earning Kinz cash each day to keep them healthy and happy.  Great.  Now I'll have to find a camp for our five Webkinz (Felipe Bananas, Herramiento "Harry" Rana, Coco, Alex, and one that I don't even know it's name)!

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In the mid- to late-1990s, I become a tech-media junkie: WIRED, Red Herring, Business 2.0, Industry Standard, etc. Several years ago, I switched to blogs for my tech news. Forbes now tells us that advertisers are doing the same:

Silicon Valley is booming again. But if you work in tech media, there's blood on the floor. Take  Red Herring. It hung onto its offices after getting the eviction notice earlier this month. But gossip site Valleywag is breaking story after story not just on its beat--but about its woes. Meanwhile, bigger publications are hurting too: ... Business 2.0 saw ad pages drop 21.8% through March from the same period a year ago;  PC Magazine's editor in chief walked out the door after ad pages fell 38.8% over the same period; and one-time online powerhouse CNET is reporting growing losses even as the companies it covers flourish. It may be happening in tech first, but there's no reason the same thing won't happen, eventually, in every media niche.

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This week, the WSJ newsstand price goes up to $1.50.  Today, the NYT "suggested" newsstand price rises to $1.25.  We talked about whether this would happen before (and at what intervals), and now it has.  These rate hikes were announced in June, with the WSJ announcing its price increase a week ahead of the NYT announcement.  Of course, it's interesting to think about why the NYT chose not to go to $1.50.

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Traveling last week, I read several magazines.  (As a rebellion against law firm practice, I never work on planes, which was required in order to bill airtime.  Instead, I read magazines.)  I noticed the same ad for Secret antiperspirant several times.  What struck me was the slogan:  "Strong Like a Woman."

Of course, anyone who watched TV in the 70's remembers the slogan "Strong enough for a man, but made for a woman."  The commercial usually involved a man trying to snatch his wife's Secret, and the wife snatching it back, like the poor Trix rabbit who doesn't understand that "Trix are for kids."  I actually used to feel sorry for the guy and wondered why he couldn't use Secret deodorant.  Anyway, I suppose the ads were a way to sell a product to women without acknowledging that women might need the product -- we know that women don't really sweat, only men sweat, but you might buy this flowery-smelling product just in case.

Now, the advertising is more upfront, acknowledging that women are not only strong, but they also sweat.  "Some of us don't perspire.  Or Glisten.  We Sweat" is an homage to the old saying that "horses sweat, men perspire, women glow."  The magazine ad pictures a very attractive woman divulging her secret that she sweats "like a pig."  I also noticed that the woman, who could be in her 30s, is noticeably displaying her ringless left hand and seems to be traveling somewhere warm by herself.  Very different from the housewife wranging her deodorant from her husband!

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I haven't linked to Seth for awhile, but I enjoy his uncommon good sense.

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Recently I have noticed that many of the music radio stations to which I listen appear to engage in a lot of product placement.  By that I mean various radio personalities appear to spend a lot of time discussing how much they enjoy a particular product or service such as a weight-loss center or a breakfast food.  Because they talk about the product or service in the context of their routine dialogue, it takes me a while to catch on to the fact that they might be engaging in some form of advertising.  In that regard, these product "discussions" seem potentially deceptive, and hence problematic.  And I wondered if they were a form of stealth advertising.

I recall that last year the FTC expressed concern about the dangers of stealth advertising, which is marketing that fails to clearly disclose the relationship between the marketer and the consumer, such as when a celebrity secretly gets paid to wear certain products.  In addition, Ellen Goodman has written an article in the Texas Law Review about stealth marketing and the potential harms posed by advertisers who pass off promotional messages as editorial content.  Goodman points out that such advertising is harmful not only because it is deceptive, but also because it harms robust public discourse by creating skepticism regarding the authentity of media communications, and potentially creating the impression that all communications are promotional in nature.  I am not certain if the radio personalities to whom I listen are getting paid for their seeming promotions--that is there is no disclosure after their, in some cases lengthy, conversations about a given product.  But of course that uncertainty is the problem. I will admit that my uncertainty has caused me to become much more skeptical about all of the conversations occuring on the radio--but maybe that just means these personalities need to get back to playing music. . .

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