Sunday, October 22, 2017

Sunday Reading: Grab Bag

Casper's ads are really cute. As it turns out, their business and litigation strategy may be less cute. Funnily enough, when I searched for this image using a search term starting with"Casper" the first Google sponsored link was to a competitor with a caption about not overpaying, which probably says something about how fierce the competition is in the mattress space.

Today's Sunday reading centers on two completely unrelated articles. I wanted to be able to gather my thoughts more about both things, and share them in their own posts later, but as I started my draft entries, I realized that I may not be able to get my thoughts ready for sharing, even after several weeks, and I thought these articles were too interesting not to share sooner. (This happens with so many things that I want to bring into these Sunday reading posts, the half-written drafts languish for months and never make it to being published because I find the topics too serious, and I never quite refine my thoughts enough.) Maybe I'll revisit some of these ideas later, maybe not. 

Prenuptial Agreements

The first article is this New York Times "Modern Love" piece on the author's experience with a prenuptial agreement. Spoiler alert, I found this article perplexing, and sad, and just plain bizarre all around. First of all, how can two adults with a small child be so laissez-faire about an important economic arrangement affecting both their lives? As the "Modern Love" series usually involves thoughtful, often rather sweet and unusual takes on various topics, I found this piece rather... retrograde. It very much sounds like that stereotype of prenups, that they're used by the higher-earning, more financially sophisticated (usually male, in a heterosexual marriage) spouse to browbeat the other into an unfavorable deal, while the less financially powerful spouse throws up their hands and signs out of frustration, without a full understanding of the terms. Why would the author write this about themselves, and about the person they love? Neither comes off well here.

As background, even as a teen with absolutely no experience with either serious romantic relationships or the relevant law, I had a rather precocious (or maybe just cold) perception of prenuptial agreements as being generally a good idea. My college friends were completely aghast to learn this, even if some of them were also the children of difficult divorces. Since then, I've learned a bit more about the law, and well, most of the landmark prenup cases in, say, a family law textbook, do involve that stereotype of harsh deals in favor of the higher-earning spouse. Yet the general takeaway from that unit in my wonderful, but more philosophical than practical, family law class was that there's something valuable and good about negotiating a (hopefully fair and reasonable) deal between two people, represented by independent counsel, in a time when they love each other, are happy, and are seeing each other in the best light. That's probably the best time to negotiate a fair and reasonable plan for the "what if."

If nothing else, the contested divorce procedures in any state can be a Kafkaesque nightmare, to the point where, I know from personal experience in my pro bono work, it could take a bevy of biglaw attorneys almost a hundred hours each to figure out how to do just the last steps right, so sidestepping that process by relying on a pre-drafted contract certainly has some value of its own, if only in attorneys' fees avoided.

That's actually the conclusion of the "Modern Love" piece, that they were both better off for having gone through this process to settle their longstanding arguments about money, but that comes out only in a rather confused and not clearly written last two paragraphs. And only after the author sneaks in what I see as a pretty nasty potshot about how her now-husband:
“I’m so sorry,” Matt said, eyes down. “This was an awful thing I did to you, to us. And for all the fights we’ve had about money, this was a huge waste of it.”
“But there was no other way,” I said. “If I fought you on it, everything would have imploded.”
“I know,” he said.
So he felt awful about putting her through this experience that she found very painful (though being forced to go through a recounting of one's personal finance situation shouldn't be painful at 42, when one has a child to care for, but that's another story), but pushes for and gets his agreement anyway, and she gets to paint him as this bad guy in the New York Times? I just found this all so confusing and uncomfortable!

Online Mattress Review Wars

Then there was this article about the strange, kind of scary (if you write reviews on a blog) story about just what that trendy startup-y mattress company Casper did to a major mattress review website for more positively reviewing another company's mattresses. Spoiler alert, and this is all paraphrasing from the article, Casper brought out the big guns with a federal lawsuit, something that could cost at least $1 million/year to fully defend (and take at least two years, if not longer, to fully litigate), and eventually the former owners sold the site to an entity... that borrowed money from Casper, and the content about Casper was edited.

One major takeaway, though hardly the point: to the extent that you, like me, have a monetized blog, we all got into the wrong business, as it seems that mattress reviews, even for a smaller, less well-known site, are a million-dollar business. To my knowledge, nobody discloses anywhere near enough information for anyone to actually know what top bloggers in the American fashion and lifestyle space make, outside of College Prepster's disclosure on r/blogsnark  (in a very nice and thoughtful AMA) that she was at over $400,000 but under $1 million a year. I would assume that the more international/jetsetting fashion powerhouse bloggers, think a Gary Pepper Girl, Chiara Ferragni, or Song of Style, make significantly more than that, but who knows, it's all just guesswork. Though that's just me wondering about nosy things.

That's not to say, in the seeming David vs. Goliath, mattress review website versus Casper, battle that the David was entirely in the right. As we all might suspect from the monetized fashion blog context, particularly where sponsorships, or money in exchange for posts, are an issue, the financial conflicts of interest issues might... prevent a review from being entirely honest, or at least entirely what it would look like if money wasn't a concern. And those mattress review websites were making a lot of money, including through affiliate relationships. Casper eventually decided affiliate relationships weren't good enough:
In July 2015–a month after the $55 million investment–Krim revived his email chain with Mattress Nerd’s Mitcham, informing him that while Casper had “decided to sunset” its affiliate relationships, it nevertheless would be interested in exploring “economic relationships beyond the affiliate program structure.”
“Nothing would make us happier than to pay you a ton of money,” Krim elaborated in his next email, “but we need to do it in a context of being accretive to Casper. Currently you actively endorse a competing product on our review page. What can we do not to have you endorse another product as superior to ours? I am certain we can be a better partner to you than Leesa.”
I don't know if fashion marketing is ever as "serious business" as mattress marketing seems to be, but I suppose that's one obvious reason why the FTC may be getting serious about online influencer sponsorship disclosures, that the arrangements may be such that a fair review is impossible, it's actually just advertising, but in the blog review-type space that's not always clear to readers, and it should be clear. 

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