Some notes on what seems to be out there, and what some of us have sampled....

What Jonathan Swift would say about Merrill Lynch were Swift still around...

Actually this week I've browsed through an old text - "The Digression on Madness" from Jonathan Swift's A Tale of a Tub (1704, revised 1710).  In undergraduate school this was what I looked at in my senior thesis, and then again in my masters work.  In the "Digression" one will find a discussion implying that the world can be divided into "fools" or "knaves" - the only two options.  It's quite funny, and nasty.  And very cynical.

Anyway I've been trying to work out what that "knave-fool" business was all about on and off since 1968 and seem to have come back to it again.  Semiotics didn't explain it.  I tried that.  But I'm certainly getting more cynical, by the hour.  Swift only implies a third alternative - there are fools, and there are knaves, and then there can be total cynics who trust no claim about anything, ever.  That is Swift's usual attitude about all of life, the implied view of the persona writing any of the tracts.

Of course one cannot be happy in a state where one trusts no one about anything.  The alternative?  "This is the sublime and refined point of Felicity, called, the possession of being well-deceived; the serene and peaceful state of being a fool among knaves."

All this cynicism on my part came about when a friend forwarded me an article about the Blodget decision - this was the decision in a class action lawsuit alleging fraud against Merrill Lynch and Henry Blodget.  The judge in the case, Milton Pollack, senior district judge, U.S. District Court, Southern District of New York, dismissed the case.  Lots of folks lost money in the "dot-com" bubble.  The judge reminded the plaintiffs that the market was composed of "willing buyers and willing sellers" and that - in the case of market mania - values are driven by the greater fool theory.  Each buyer would get in with the hope that some greater fool would take him out at a higher price in the future.  The judge could not find any evidence that the defendants caused the losses of the plaintiffs even if this Blodget fellow at Merrill Lynch was recommending these stock when he knew they were tanking.  Since the plaintiffs were not Merrill clients, there was no customer relationship and, obviously, no fiduciary duty. Thus there was no intent to defraud.  Judge Pollack called the contention that Wall Street had manipulated the market to create the bubble a "semantic invention."

The folks at the Wall Street Journal were quite happy about this - "We long for a return to the time when there was no implied insurance against stupidity."  And it seems those days are returning.

How would Swift describe Blodget then?  Perhaps as "a man ever in haste, a great hatcher and breeder of business, and excellent at the famous art of whispering nothing; a huge idolator of monosyllables and procrastination, so ready to give his word to everybody, that he never keeps it; one that has forgot the common meaning of words, but an admirable retainer of the sound; extremely subject to the looseness, for his occasions are perpetually calling him away."  Yep, Swift was pretty good at nailing such folks.

Anyway, my friend who sent along the article argued that this was a welcome return a sense of "personal responsibility" - where one didn't sue businesses willy-nilly and expect redress.  One took responsibility for one's decisions.

I suggested that the issue of whether one ever should seek redress is the larger issue.

I myself was the victim of a fraud, which I explained.  But as I said, I made a decision, and it turned out to be the wrong one.  Of course there is fraud and misrepresentation, which can be legally and practically defined.  In my case there was clear misrepresentation (flat-out lies), but any sensible person would have seen the misrepresentation, and I sensed it, but that I signed on and forked over well over six thousand dollars is my responsibility.  They lied only a little, and shaded the truth massively, and I was "in a bad place" psychologically.  But that my "radar" wasn't working is my problem.  They didn't put a gun to my head.  They didn't force me to do anything.  I made a choice.  I should have known better.

I later found out the Better Business Bureau had these folks on a watch list, and that their founder had spent some years in jail for offering to sell luxury cars on contingency, and indeed was selling them, but them keeping the money and disappearing - the count was nineteen Rolls Royce sedans before they caught him.  But I should have done the research up front.  Who is to blame?  Their claims were false, but I was dumb.

In the case of Enron or WorldCom or Global Crossing, if the officers of the company in question produce false books saying everything is going swimmingly, and additionally assure the employees their stock in the company is safe - well, perhaps that is a tad different.  If you, as an employee, hold on to your stock, and buy even more, you are being defrauded.  As is the public who believe the lies and hold or buy.  But I have seen the argument made that even there that the fault is with the employees who wanted to believe the best when, as employees, they should have know the management was flat out lying about the business because, well, they too worked there.  They might have had reasonable suspicions, after all, that the accounting was fraudulent.  And the general public is just as greedy, and gambling when they should have known better than to believe certified accounting statements.  Such absurd naïveté. 

I don't agree, but I've read that argument.

It comes down to trust, and the rule is, in the matter of goods and services - commerce of any sort - trust no one.  Ever.  Period. 

As far as whether there is a case where the legal system should be used to seek redress when someone flat out lies to you, feeds you absolutely false data and causes you great loss - there may be such a case when even a skeptical, reasonable person had no way of knowing he or she was being fed complete bullshit - and when there was little or no way to find out the truth.  But even there, should this be the question?  Yes, these were lies and deceptions and false claims.  But why couldn't any reasonable person see that and walk away?  What's wrong with YOU as an informed consumer that you didn't see that?

Watch ten minutes of advertisements on television.  Believe any of that?  Capitalism is a game where the seller is going to screw you out of all the money he or she can, giving you a little as possible in return.  As a consumer your job is to decide whether to part with a few dollars for what you think might be the ten percent of the value of what is being claimed, knowing that ninety percent of the stated "value, benefits and features" has been hyped to the moon for the rubes who will believe anything, because they want a good deal.  Hey, there ain't no free lunch. 

Yes.  No one is going to rescue you.  Your job in life is to be informed, and to know a lie when you see one. 

Yes, there are laws about lying -- fraud statutes and the like - and I guess they're useful.  Being informed and skeptical is better than any law.

Well, after that rant my friend, who owns his own company, said he does not work that way.  He needs satisfied customers who will return. 

So here's a modification. 

Many businesses do not ever seek repeat customers simply because the market is so large.  There are many businesses that rely on one-time sales to folks they consider pathetic fools - one thinks immediately of all those half-hour infomercials on television for products that are pretty much crap.  When the "Bass-o-Matic" and the Ginzu knives arrive and turn out to be useless junk it doesn't matter to the seller one way or the other.  There are millions of more marks out there. 

There are, on the other hand, businesses which rely or repeat buyers, and there quality and service do matter. 

So I see two kinds of businesses here.  And yes, the one should not be confused with the other.  They are very different.

But I still claim one simply expects to be hustled, and one should always assume offers of goods and services are not at all not be what they claim. 

But then what does one do about fraud?

The only instance, one might claim, where one might seek redress should be in cases of clear fraud where there is no possibility one could have otherwise known the truth - but even then the decision to proceed with the transaction is the buyer's decision. 

Is it not best, then, logically, to assume, at all times, some kind of partial or total fraud.  And then life can have, now and then, pleasant surprises.  Or not.

This begs the question of whether the government should "go after" sellers who make blatantly false claims and flat-out lie.  I'm not sure about that.  If consumers assume, at all times, that they are being lied to and as a consequence exercise real skepticism, there would be no need to have any regulations hobbling any businesses as they go about what they go about.

But my friend and I have thrown ideas back and forth on this for years. 

My friend worships personal responsibility.  And in the world of fools and knaves, I exercise such responsibility by always assuming the worst of anyone at all who is offering to sell me anything at all. 

Whether there should ever be a lawsuit ever filed again against any business anywhere for fraud or anything else, whether there should be any laws at all regulating any kind of business - I'll leave that to the political theorists who think about such things.  Let the free-market capitalists duke it out with the liberal guys who would regulate business and, in the eyes of some, ruin our economy.  I can only do what I can do.  I shall do my best to emulate Jonathan Swift.

Oh, Canada!