IP, business stories of Tupperware bankruptcy minimize female marketing pioneer, dangers of plastics

Brownie Wise on Business Week in 1954
via America Comes Alive; © fair use

The Tupperware bankruptcy has been much in the news, though the coverage has underplayed "the rest of the story" in regard to women in business and product liability.

Headlines about the bankruptcy of Tupperware suggest various takeaways for business and law. Most stories highlight the inevitable expiry of novelty in business, with the corollary imperative to innovate (Atlantic, Sept. 20). Legal angles complement coverage with intellectual property lessons on the limited life of patents (Slate) and the problem of genericization in trademark (N.Y. Times). The history and nostalgia of Tupperware is a consistent theme (Atlantic, Apr. 12).

Less often told is the story of women in business. The CBS Evening News Saturday night credited Tupperware founder Earl Tupper with having come up with the Tupperware party as a sales strategy. That's not accurate, except in a "buck stops here" sense. The role of the remarkable Brownie Wise is less often told (mentioned: Atlantic, N.Y. Times). Rachel's Vintage & Retro has the more nuanced inside story. The National Women's History Museum and Smithsonian have more. Wise, from Buford, Georgia, graced the cover of Business Week in 1954 (pictured, via America Comes Alive). PBS recounted:

While Earl Tupper hated the limelight, Brownie Wise loved it. With Tupper's blessing, the company's public relations staff promoted Wise extensively. Female executives were rare, and the strategy worked. As the company grew, Wise was on talk shows, quoted by newspapers, and pictured on the cover of numerous magazines (she was the first woman to make the cover of Business Week). But when the press suggested Wise was responsible for Tupperware's success, and that she could be equally successful selling any product, Earl Tupper grew jealous. Over time, Wise became increasingly high-handed, and she was less patient with Tupper's micro-management and unpredictable temper. In 1958, Earl Tupper unceremoniously and abruptly fired her, booting her from the multi-million dollar company she had helped build; she held no company stock and was given just one year's salary.

Journalist Bob Kealing published a book about Wise if you want to go all in. Life of the Party (2016) followed up Kealing's Tupperware, Unsealed (2008). The Takeaway at WNYC interviewed Kealing in 2016.

With regard to women in business, by the way, CBS Sunday Morning just featured GM CEO Mary Barra, who appears to be going strong in the role ten years on. I remember when Jon Stewart on The Daily Show made fun of GM's ham-fisted introduction of a first female CEO ("a car gal, an auto dame, a jalopy broad"). It seemed that Barra was practically set up to fail amid GM's embarrassing ignition-switch recall.

Phillip Pessar via Flickr CC BY 2.0

Further in the vein of product liability, another angle on Tupperware that gets little play lies at the intersection of tort law and environmental protection. Stories of Tupperware tend to hail Tupper's inventiveness in converting DuPont's wartime development of polyethylene to post-war market ubiquity. But in the last decade, revelations of risky chemical seepage from microwaved containers did untold damage to a business built on plastic food storage.

BPA is just one chemical contaminant from plastics. Its use in manufactured products has spawned EU regulation and American litigation over baby bottles and activewear, as well as consumer protection litigation over "BPA-free" green-washing. Tupperware stopped using BPA in 2010 and developed a purportedly microwave-safe line of products under the brand name "Tupperwave" (not to be confused with Australian musician Dean Terry). But the safety of any plastic in the microwave remains uncertain. And microwave ovens notwithstanding, there's plenty of justified public concern over microplastic waste in the environment, animals, and people. 

So maybe Tupperware was always destined for only finite fame. Or maybe it will reinvent itself like Teflon, another DuPont invention that seems likely to survive an accountability assault.

FTC finally notices abuse of customers, shady business practices by car rental industry

In an omnibus resolution late last week, the Federal Trade Commission (FTC) green-lighted investigation of the car rental industry.

Earlier this year, I wrote about the "new lows" of our car rental oligopoly in the United States, including my own experiences with the misleading Hertz "loyalty" program and the manipulation of pickup and drop-off times to draw overage fees.

The resolution broadly compels investigation "[t]o determine whether any persons, partnerships, corporations, or others have engaged or are engaging in deceptive or unfair acts or practices in or affecting commerce in the advertising, marketing, promotion, sale, tracking, or distribution of rental cars."

For context, Frankfurt Kurnit's Jeff Greenbaum wrote in Advertising Law Updates that commissioners ordered similar investigations in July 2021 into "areas such as COVID-19, healthcare, and technology platforms," and in September 2021 into services targeting veterans and children, "algorithmic and biometric bias, deceptive and manipulative conduct online, repair restrictions, and abuse of intellectual property."

The FTC didn't detail the buzz in its bonnet, but they likely heard lawmakers in the spring frowning on Hertz's misreporting of stolen cars. Senator Richard Blumenthal (D-Conn.) wrote Hertz a nasty-gram in March. Forty-seven customers filed suit for false arrest in July, CNN reported (via ABC 7 L.A.), and they're not the only ones.

I documented my rental return this summer in Thunder Bay, Ontario.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

I've started taking the advice of The Points Guy's Summer Hull to take pictures and videos of my rental cars when I pick them up and when I return them. One Mile at a Time advises the same. 

But I'm doubting the utility of it. I'm not sure you can see scratches or dents in the images, especially in dark garages. And, as Hull herself reported, she was called out for alleged damage to the roof, which she had not climbed up to photograph. I wonder whether I should crawl under the car to photograph the undercarriage.

Lately rental companies have presented me with an up-sell option for tire and window insurance, threatening that they're not covered even if a buy the CDW. And don't get me started on involuntary "upgrades" to fuel-inefficient trucks. Even the sedan pictured here, which I rented this summer in Thunder Bay, Ontario, was what I got when I reserved an SUV to tackle unpaved roads.

Meanwhile, my budding occupation as car portraitist is eating into my travel time and my hard drive space.

It seems to me that when customers start having systematically to video-record their interactions with industry to protect themselves against fraud, the problem might be with the industry and not with the customer.

Oh, FTC ... 🤙

Documentary film critically examines 'Deflategate,' exposes science-for-hire industry, Big Sport marketing machine

At UMass Law School, from left to right: yours truly, sporting a Brady kit gifted by my Torts students, night class of 2018; author, commentator, and comedian Jerry Thornton, former NFL employee Scott Miller; Lemon Martini producer and UMass Law alumna Ami Clifford; and Julie Marron, acclaimed director of Happygram and Four Games in Fall.

The UMass Law School community had a special treat of an event last week: an invitation-only, friends-and-family pre-screening of the director’s cut of the forthcoming documentary, Four Games in Fall, from director Julie Marron and Lemon Martini Productions.  See the film’s home page and trailer here, or the trailer below.  The film is in essence a documentary about “Deflategate,” the 2015 scandal in the National Football League in which New England Patriots Quarterback Tom Brady was accused of orchestrating the under-inflation of footballs to rig games in his favor in the Patriots charge to Superbowl victory.

UMass Law alumna Ami Clifford is a producer of Four Games in Fall, putting her legal education to creative use making—as the tagline for Lemon Martini puts it—“social justice documentaries with a twist.”  Marron is an acclaimed Massachusetts director fresh off the roaring success of her 2015 documentary about mammograms and breast cancer, Happygram.  For a Q&A after the screening, Marron and Clifford were joined by documentary interviewees: Scott Miller, a New Yorker and former NFL employee; Jerry Thornton, WEEI radio personality and author of From Darkness to Dynasty: The First 40 Years of the New England Patriots; and Andrew E. Wilson, a marketing and management professor at St. Mary’s College of California.

Four Games in Fall did not disappoint.  Marron and Clifford explained in the Q&A that neither one of them had more than a passing interest in the NFL and the Patriots when they set out to make the documentary.  But they were attracted to exactly that aspect of the Deflategate scandal: that so many people without a vested interest in Patriots football, with nothing to gain by sticking their necks out, seemed to be taking an interest in the case.  Roughly as Clifford said it, when a lot of very smart people in the sciences, with at best ordinary interest in American football, started looking at the Deflategate case and the penalties exacted against Brady, and saying “something smells here,” she and Marron started paying attention.  They had no agenda, but Four Games in Fall definitely raises red flags—or, I guess, throws yellow ones—on what seems to be NFL commissioner Roger Goodell’s hell-bent persecution of star-athlete and national celebrity Brady and football’s Superbowl-winningest team.

Therein lies the subtle brilliance of Four Games in Fall, which takes full advantage of the documentary format not only to examine Deflategate on its facts and merits, but to place the affair in a critical context from social, commercial, scientific, and legal perspectives.  Reminiscent of Morgan Spurlock’s classic Super Size Me, Four Games features Professor Wilson to explain marketing phenomena such as “anchoring” and “confirmation bias.”  Those concepts help to explain why the conventional wisdom about what actually happened in Deflategate runs so contrary to the facts.  Following the dollar, Marron furthermore examines the enormous market power of the NFL, which amplifies its messaging and suppresses contrary views from the audience and the players’ union.  In this vein, the film brings in the NFL’s reluctant engagement with the mounting evidence of CTE injury and critically exposes the "science for hire" industry.  Meanwhile, science--the real stuff--reveals the startling imprecision behind NFL rules such as ball-inflation standards.  Those standards are so faulty as not to account for on-field temperature in a sport played in late autumn and early winter.

Against this backdrop, Brady’s case winds through the courts, where yet another story unfolds: the un-level playing field of pervasive arbitration agreements, affecting even NFL players, and the Second Circuit’s judicial-typical capitulation to boilerplate contract at the arguable expense of fundamental fairness.  Brady dropped his case before trying to press on to the U.S. Supreme Court, disappointing many observers, including, at that time, he confessed, Thornton.   But the film and the panelists explained a number of reasons why it made no sense to continue.  Brady’s mother was diagnosed with cancer, which did not bolster the QB’s will to litigate.  Yet just as importantly, Brady’s legal team must have realized that its case, implicating NFL players and their union in opposition to the enormous power of the NFL, was sui generis.  It did not make for the kind of broad-implication inquiry that the Supreme Court would likely want to see before exercising discretionary review.  In truth, the many NFL players who are not stars do face physical hardships out of proportion to their remuneration and job security, just like an average factory Joe.  At the same time, NFL players are not Willy Loman, and the NFL is not--quite--E Corp.

Nevertheless, Deflategate, informed by Four Games in Fall, leaves a bad taste in the mouth.  We do, as Americans, seek to identify personally with our sporting heroes, however aspirational the comparison.  Tom Brady’s retiring temperament (supermodel spouse notwithstanding) and boyish charm have the feel of an underdog American David who took on the NFL corporate Goliath and lost.  Whether one agrees or not with the physical and social scientists who populate the frames of Four Games in Fall, it’s hard to conclude on the legal end that Brady and the Patriots got a fair shake.  And with so many of us worker bees—tied up in arbitration contracts we did not meaningfully agree to and don’t really want, beholden to the disproportionate and opaque oligopolistic power of mammoth corporations for just about everything we do, including our employment and especially lately our healthcare—Brady’s loss unexpectedly hits home with all the punch of a 300-pound offensive tackle.

Our hero should have vanquished Goliath and failed.  If Tom Brady can’t beat the monster, what hope is there for the rest of us?

Four Games in Fall is setting off soon for the festival circuit and will come to consumers through one media channel or another shortly thereafter.  See it.  You don’t have to be a fan of American football; I’m not.  This film is about so much more.

 Four Games in Fall trailer.