The Allegations and the Torrent of Passionate Comments

After having read the claims made by Internet Brands for myself, the best that I can conclude is that (a) many of the fiery opinions contained in the flurry of comments are misplaced and factually and legally incorrect, and (b) Internet Brands considers Xenforo, which hasn’t even been released yet, a serious potential player in the forum and community software market. There isn’t much information available as to the allegations in the lawsuit against Kier, Mike and Ashley, all former employees of Jelsoft – the original company that created the “beloved” vBulletin software. Many forum owners are outraged that Internet Brands (the subject of at least one controversy) would actually “stoop so low” so as to sue these good people who brought them the software that made their magic possible. From my perspective, it is impossible yet to tell whether Internet Brands has been wronged by well paid former employees and is vigorously attempting to rightfully protect its property or whether the lawsuit is a frivolous claim by a big corporation with deep pockets designed to unfairly thwart the efforts of a new competitor in the marketplace that leaves an especially bitter taste in its mouth.

Contracts & Business Torts: Severance & Non-Compete Agreements

While this case is filed in the UK, the legal issues and how they are handled are usually similar in substance. In situations where a valuable employee has parted ways with an employer, severance agreements are commonplace. An employee may be paid a relatively generous and non-required sum of money in return for signing an agreement not to compete with the former employer, amongst other items that may be contained therein. In the US, non-compete agreements are generally enforceable but the courts are loathe to restrain any working person from finding meaningful employment using the skill he or she has cultivated any longer than is absolutely necessary. As a result, most of these agreements are typically enforced no more than a maximum of one year’s time and only within what would be considered a reasonable geographic area. It is not uncommon for large corporations to present employees with harsh, stringent agreements (such as a 2 to 3 year period of non-competition) with a “savings” clause – a stipulation that, should a court find that the agreement is unenforceable for that extended period of time, the court will not invalidate the agreement but use the longest period of time which the non-compete agreement could be held valid and enforceable.

I noticed an interesting fact. Wikipedia tells me that Kier and Mike left Jelsoft on June 19, 2009. Just about a year later and perhaps coincidentally, the xenforo.com domain was registered (June 4, 2010.) The first post I’ve located on the Xenforo website is July 28, 2010, just after the one year period of departure and perhaps work may have commenced on Xenforo the day after the anniversary of their departure. I have no idea whether or not any non-compete agreement exists nor its terms. But there is one very interesting statement made by Internet Brands which makes me wonder whether any kind of severance and non-compete agreement exists or applies at all that could legally prevent the Xenforo team from developing a rival forum software.

“the former owners of Jelsoft not only paid Kier and Mike well during their employment, Kier was paid a handsome bonus when Internet Brands bought the business, although no such payment was required.”

Apparently this statement does not refer to a severance payment or non-compete agreement. Might this entire dispute center around Internet Brands not being happy that, after paying a handsome salary to employees and an additional bonus after the purchase of Jelsoft, the employees left the company and decided to compete against the old employer? Impossible to say for sure at this point but certainly an interesting thought.

Copyright Infringement and Breach of Contract Claims

The second useful statement contained in the vBulletin post alleges that Kier and Mike “refactored” the vBulletin code and created Xenforo. Essentially, Internet Brands seems to imply that Xenforo contains at least some intellectual property that is still owned by the former employer and has been reworked into something completely different but still a product of the vBulletin process – that the new Xenforo software is somehow derivative of vBulletin and “an expression of the prior work.” This is a rather vague and generic statement not specific in nature and doesn’t specify whether the prior work is actual code or other work product that may be covered under copyright law and/or an employment agreement. I’m guessing that more details will be forthcoming or may already be contained in the equivalent of the “complaint” in the Court of England and Wales, although it remains to be seen whether any of them are truly substantive.

The law governing the unauthorized copying of code is little different than the copying of text crafted by an employee commissioned and owned by an employer. I’m not sure that the crux of the disagreement centers around using specific code owned by Internet Brands even though Internet Brands claims the code was “refactored” into something else. It is possible that Internet Brands is claiming that the founders of Xenforo used work product created during their employ that was ultimately discarded by Internet Brands and never made its way into the vBulletin product. Looking at Xenforo with the naked eye, it certainly looks, feels and acts very differently than vBulletin of any version. Perhaps Internet Brands is referring to the overall design, architecture, look and feel of the Xenforo software or other forum design which may have been unused – and the former employees decided to make a go with it on their own. An employer’s decision not to use work performed and provided by an employee doesn’t automatically make that work the property of the employee. But until I know more, I’m not quite sure who may own these “ideas”, whether they have been sufficiently reduced to tangible form such as within a document or even whether they even have the ability to qualify as intellectual property for which one can register an exclusive right of ownership.  But this is all pure speculation and no specificity has yet been provided.

Preliminary Injunctions

Interestingly enough, Internet Brands “requested that Kier, Mike and Ashley refrain from selling the software while the issues, inclusive of our infringement claims, are heard in the courts.”  Apparently they did not seek that the court prevent (or “enjoin”) Xenforo from selling its software today – the first day of the Xenforo pre-sale. Perhaps not coincidentally, the lawsuit was filed yesterday. At least in the US, a plaintiff with a strong case and potentially significant damages can seek an emergency protective measure which temporarily prevents the defendant from starting or continuing to perform the activity that is the subject of the lawsuit until after a hearing may be held. In order to successfully obtain such a “preliminary injunction”, a plaintiff must show the court that this emergency measure is (i) absolutely necessary as allowing the defendant to continue with its plans would cause “irreparable harm” for which simple money damages would not be sufficient, and (ii) that it has a strong case and is likely to succeed on the merits of its case. I’m sure there is a similar procedure in the UK but I’m not sure whether Internet Brands’ decision not to proceed with such a strategy is based upon (a) legal issues specific to UK law, (b) the fact that money damages might be sufficient and it would fail one of the two prongs of the test to qualify for a preliminary injunction, or (c) its case against Xenforo isn’t very strong.

Conclusion: Wait and See

At this point I think it’s useless to try to make ironclad conclusions about who is right and who is the true villain. All we do know is that Internet Brands alleges there is at least a sufficient basis upon which to make a claim that a reasonable dispute exists. Soon we’ll see whether there is actually any meat on those bones when we are able to see the substance – or lack of substance – of the claim filed by Internet Brands against Xenforo. Until then, I’m going to spend most of my time continuing to enhance TheLaw.com’s law forums and manage the exciting news happening here – the release of a very cool iPhone app and Android app — a ~7,500 word law dictionary and comprehensive legal guide and mobile gateway to TheLaw.com. This is the best way to keep my mind off a lawsuit and remaining productive - happy foruming everyone!

I read numerous blog comments from people who were outraged to see attorney Stuart V. Goldberg sharing an “honest recollection” of his obviously confidential discussion with Lindsay Lohan. Why Goldberg needed to explain to People magazine why he couldn’t accept Lohan as a client went unexplained. His comments regarding Lohan – while not being her attorney of record – were as follows:

“I found her not fully forewarned of the consequence of her actions.”

“I’m concerned that she’s not disciplined or tehtered enough to the reality of adult consequences.”

“She doesn’t seem to have the awareness of what’s going to befall her.”

Goldberg needed “100 percent loyalty and zero tolerance for dishonesty… they didn’t seem to understand the urgency and gravity of the situation.”

From my observation, I am guessing this slick talking criminal lawyer orchestrated the entire event to mislead the public’s perception. On day one, Goldberg appears to decline Lohan as a client because she’s so spoiled and deluded that she’s just not worth the effort. He’s the hero and she’s the spoiled (but helpless) child. On day two, Goldberg has a change of heart and, after reflection, takes her case. What changed his mind?

Reading the ostensibly candid betrayal again, I realize that Goldberg’s comments to People Magazine were likely planned. How else to explain this sudden article – did Goldberg fall out of bed and into the editor’s office? Is it also coincidence that his same words will undoubtedly be used for her defense? Lohan is a “lost child” and so far removed from reality that shei simply unable to understand and appreciate the consequences of her actions.

The manipulation of the press has always been an uneasy issue to manage. But what is problematic to me is when the public is led to believe that it’s the lawyer who can decide whether to disclose the contents of a seemingly confidential legal consultation. If this was all planned, perhaps this goes beyond “zealous representation of the client.”

The Players

For those of you who are new to the vBulletin fiasco, here’s a short summary. In July 2007, the company that developed vBulletin (Jelsoft) was sold to Internet Brands, a scavenger and operator of community websites (yes, this means they are both developer and in competition with its customers.) After years of paying $30 to receive all the updates to my vBulletin 3 software, Internet Brands raised the price of the software and the annual maintenance fees for product updates to $40 in 2008. The following year in 2009,Internet Brands suddenly ceased offering customers the ability to purchase the annual updates to their vBulletin 3 software so it could pre-sell vBulletin 4 licenses instead for $130-210. In 2010, vBulletin Solutions plans to sell the same “maintenance pack” for $50 that I should have been able to buy for $40 last year and $30 the year earlier.

The Shut Out

I’m sure you’re thinking right now you’ve misread. One day the company simply stopped offering a customer who owned, e.g. version 3.6.2 the ability to download later versions of the product? Yes, that’s exactly what happened. Your choice was to either pay $130 or more during the October 2009 “presale” to buy vBulletin 4 (not out for months) and receive all vBulletin 3 updates or sit tight with your current version and watch forever from the sidelines. Why was this done? The only reason I can surmise is that Internet Brands wanted to make big numbers that quarter. vBulletin 3 owners would likely have opted to renew their right to receive vBulletin 3 product updates and pass on the vBulletin 4 upgrade, waiting to see what the raw product might become later. Ironically, right after the presale was pumped in press releases which reported “record sales”, the GM and chief presale promoter left the company to retire to build his dream house in Central America. You’re probably thinking what I’m thinking.

We spent the $130 to receive the updates to The Law Forums as well as a few other licenses but not the rest, hedging our losses. Despite our upgrading to vBulletin 4, it’s almost 10 months later since the dreaded pre-sale and many forums, including our own, have not been upgraded. We’ve refrained from doing so due to the reports of numerous bugs, interface and performance issues.

Unfortunately the price for a vBulletin 3 to vBulletin 4 upgrade is so high, it makes our vBulletin 3 licenses worthless as an upgrade option – even if vBulletin 4 is ever worth using. Quandary – Internet Brands will not be able to shake cash from vBulletin 3 license holders. How can they shake money from the tree?

The Tale

While numerous customers are irate that they haven’t heard much of anything concerned the next update to their vBulletin 4.0.4 software, Internet Brands was glad to announce the “Annual Maintenance Crap Pack” this past week. For the bargain price of $50, Internet Brands will sell all vBulletin customers who didn’t upgrade to vBulletin 4, all of the maintenance releases. In fact, they are giving certain customers a $20 discount as a way of appreciating their “valued support.”

So let me get this straight – the yearly product updates that I bought for $30 in 2007, which Internet Brands raised to $40 in 2008, and refused to sell me in 2009… is being offered to customers for $50 in 2010?  Now here is the kicker – if you bought a vBulletin 3 license for $180 in late August or September 2009, you found out that you had to pay $130 more to upgrade to vBulletin 4 just one month later! I don’t recall “courtesy upgrades” being given to those purchasers. Now since those last few purchasers of vBulletin 3 will no longer being able to download the updates to their software one year later, rather than giving just them these dozen product fixes gratis to “valued” customers, Internet Brands is charging them only $30! I apologize – giving them a $20 discount off the MSRP of $50 in return for their valued support.

When I read all of this, my jaw dropped. What made me even more shocked was witnessing the Stockholm Syndrome in the vBulletin Forums (closed to non-customers), where several budget customers were thanking Internet Brands for giving them this opportunity. Remarkable.

The Sting

I have a dilemma. Originally TheLaw.com was planning on using the vBulletin 4 platform, along with several other products, as part of our long term strategy. This was not because we wanted to do so, but switching to other forum software meant significant transitional costs in time, money and the unknown of reindexing and redirecting internal links on our site. As of right now it appears it will take a significant time for Internet Brands to fix what is wrong with vBulletin 4 while stabilizing the core product, which includes the potential overhaul of the forum templating and style system. Even if some of the technical problems are solved, it will take major time investment to customize my forums to the point where they return to being user friendly (the search interface, in particular, is a disaster in vBulletin 4) – only to have to do it again in version 4.1. If only the company would share its short and long term plans for the vBulletin product, which it does not.

But I have other concerns. How many fees am I going to have to pay in the future to Internet Brands? The past 3 years have been punishing and refusing me the ability to upgrade my software – without any prior notice or opportunity – reeks of a similar odor as consumer fraud. I have one other very significant concern and have personal experience with this issue – Internet Brands is now in competition with me and every site that runs vBulletin software. I cannot find examples of its own websites which have been converted to the new vBulletin 4 product. Why not? They certainly have the resources and far more “know how” than any of its customers whom they expected to upgrade. Are the customers being used as beta testers (guinea pigs) before converting their own sites? There is always the issue of Internet Brands having a competitive advantage, having inside knowledge of their own software and any future developments. It’s disconcerting, to say the least.

At this point I’ve begun experimenting with Invision Power Systems’ InvisionBoard. Wow! The interface, ease of use and overall direction are miles ahead of where vBulletin 4 is at this point. There has been some learning curve but  I’m going to launch one site shortly using IPB. I have been toying with the idea of converting The Law Forums to this great product. My main limitation? The extremely difficult migration of all user data and statistics from vBulletin and its corresponding plugins. This includes some unique searching and indexing functionality that make The Law Forums one of the best resources online to find law that pertains to your state and jurisdiction. There is also the issue of forum links which will now be forever changed. But we’ll have to see what sacrifices can be made since it is preferable to being held hostage and being forced to enjoy the experience. Time to get my Internet Brands Vuvezela and watch the World Cup Final.

The device that you see on the right hand side “depicts a response device according to an embodiment of the present invention having a limited keypad” – just like a mobile telephone. The patent continues to describe in general details regarding an “electronic response device other than a computer” but which also has a CPU – arguably the very definition of a “computer” device. This device and a general system is described and outlines what anyone would be required generally in order to set up a remote response wireless voting system. Considering that wireless technologies (such as the widespread use of paging) already existed at the time, it seems that this “idea” isn’t altogether innovative. I’m not quite sure why Lyda and his attorney limited themselves to suing American Idol – they should have sued everyone who uses a mobile phone or any device that doesn’t use the “world wide web” for purposes of having real time voting.

United States patent law is a difficult field of law to grasp and understanding how some patents are approved and others are not approved is no less challenging. Under federal law (with regard to a “utility patent”), any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”  From my understanding, to qualify for a patent, an invention must be “useful,” “novel,” and “nonobvious.” In addition to having a useful purpose, the requirement of being “novel” means that the invention was not:

The patent must also not be “obvious.” I’m not quite sure what this should mean, considering how many patents seem extremely obvious to me although they might not be obvious to my pets and five year old nephew. Since there is precipitation that falls from the sky periodically, a system of wiping the windshield of a car using a mechanical wiping device would seem an obvious need. Since the rain falls with different intensity, the frequency of the wiping mechanism would have to increase or slow down as well. There are several famous patents that have been filed with regard to both windshield wipers and the frequency those wipers wipe your windows. Most famous in the Internet industry was Amazon.com’s “One Click Patent” – which seems to me the reason you’d want to use a database that stores customer information. It is possible that I may have been able to file for at least several dozen patents but the ideas themselves seemed far too obvious to me, yet they exist as patents at the USPTO.

There are several ongoing lawsuits regarding could computing inventions amongst other uses of technology that promise to make much of what we use every day more expensive due to licensing fees. It is said that necessity is the mother of invention. If so,  it makes me wonder whether it is necessity that should be granted a monopoly for “inventions” for a period of 20 years.

Like Apple, Palm seems to believe that convincing users that wired connections are “old” and that wireless is “modern” and the only way to go. As such, there is better but limited connectivity of the Palm and your desktop device. The cool “Touchstone” which charges the phone and is actually plugged into the USB port (optionally into the wall) does little more than do just that – charge the device. It is not capable of mounting the phone as a hard drive, which requires a Pre owner to connect the device using another standard USB cable. The utility of this is beyond my comprehension but we can get past that inefficiency for the moment. I’ll explain later how this all ties into the sync of your phone with your PC – or rather the lack of it and the supposed need to do so.

Palms next bit of market circulates around the magic “cloud” which everything backs up – or perhaps not quite everything as most users are led to believe. Other than a “Palm profile” which you create, any other data stored on the phone is apparently not backed up. Give that wired sync is now considered “passe”, this leaves the Palm Pre without an adequate full backup and restore method. In contrast, the wireless “always connected” iPhone backs up the entire phone via iTunes’ connection to your dekstop via a wire. Syncing individual applications with your desktop applications is a time consuming mess (each one must be performed individually after pairing the two via WiFi) but at least you can restore a phone with all the data you had at the time of the loss, damage or corruption of the phone or its data. For those of you in a legal practice, I wonder how many of you will be thrilled to find out that it appears to be difficult or impossible to perform full local backups of your data. With regard to the data that can be backed up on the Palm Pre, it may be stored to a “cloud” of servers that belong to a third party, to which you may not even be in privity of contract and stored in an entirely different country.

Another issue that concerned me was synchronization on the Palm Pre and WebOs. There still aren’t many applications available for the Palm but, since Palm has apparently removed “hotsync” or the automatic synchronization of the phone with the desktop, it’s uncertain what must be done to synchronize all the third party applications you may buy for the iPhone and have counterparts you’d use on your desktop and netbook. At this late stage in the game, it appears that many third party developers are not being enticed by the Palm bounty being offered to create applications.  It’s difficult to tell what may be required of a developer to bring an application to market other than standalone games.

I’d like to point out that the Palm Pixi and the Pre Plus with WebOS represent some great, exciting innovations. But given the speed and growth of the marketplace, I’m wondering how Palm will weather the storm of competition. Apparently the API still doesn’t even allow developers to create microphone aided applications such as voice dialing, which for many of my fellow attorneys is critical in using your valuable time while commuting to and from the office. The inability to provide local backup and synchronization is, to me, a huge gaffe by Palm. Perhaps they were too consumed with addressing the iPhone market by investing more time in solving how the phone may sync with iTunes. As such, this puts the Pre into the “gaming consumer” category more than it does the “professional consumer” category which is a market the Palm Treos served well for a long time.

At this point Verizon Wireless seems to be placing bets on its future with Google’s Android based phones. The Droid campaign was ubiquitous and sales of the phone and others have been at an astounding pace. The Droid is supposedly topped by the Nexus One, an ultra powerful Android phone with hardware specifications that far outpace the more modest but easier to use Palm Pre Plus with WebOS. With almost 20,000 applications and a large variety of hardware, it’s difficult to ignore choosing an Android phone as an alternative. Whether or not you like Apple’s walled garden iPhone, it too will apparently be available at some point on CDMA networks. The question I’d ask if considering whether to invest in the Palm WebOS and its shrinking market share (approximately 3% or less) is whether Palm will continue to exist in 2011. Will it’s technology will be purchased by another company and eventually merged into another platform?

I’d enjoy hearing other opinions and suggestions on how the Palm Pre and Palm Pixi can conquer what seems to be a rather huge hole in its offering to business and legal professionals.

Amusing is finding another registration of iPad just two weeks ago by a company called “IP Application Development LLC” as well. It looks like Apple will need to oppose that filing as well (unless this curious company registering the mark in several other countries is a front for The White Giant.) So was it sheer hubris that led Apple to release the latest iProduct without concern for trademark law or was it an oversight of counsel that had been partying too often in the valley? Apple actually does have a fine team of attorneys in Cupertino, some of which I have the pleasure of friendship.

This newsworthy item begs me to ask the following question. After tearing my ACL playing football several years ago in Central Park (while making a darn fine interception), I registered the domain iKnee.com. I’m also the proud owner of iKoto.com and iSlime.com (don’t ask, I must have imbibed too much sake when that occurred.) This begs the question as to whether I will need to surrender said domains should Apple come calling as it runs out of words to use for its growing product line?

While we’re in a jocular mood, I was amused to discover that other companies registering iPad as a trademark included a bra manufacturer. It seems that humor has cropped up on all fronts regarding the product, purporting that the iPad can solve a whole host of female problems. Joking aside, from a utilitarian standpoint I’m not sure what the iPad is supposed to do and the void it fills for up to $1,000. Perhaps Apple wants to be the “first in the game” but this is an expensive way to go to accomplish something I cannot identify. It has no USB adapter and it has no camera. It doesn’t feature flash for web browsing and, from my understanding, 3G and WiFi will only be available in upcoming models. There aren’t storage expansion options via SD cards either. Perhaps it buys extra coolness for $500 (plus all the necessary extras.)

The Good:

• Almost serious crash free experience, even 64 bit operation – rarely ever do I require a reboot
• Eye candy, yet easy to use
• Control panel finally more organized and driver loading of most hardware is virtually painless, an enourmous feat with so many variations
• Did I say how smoothly it runs for the most part, even with 32 bit applications?

The Bad

• Not too much – I thought there would be a longer list
• Windows Ultimate is too costly an upgrade over Professional and provides a marginal difference
• Some older hardware does not have drivers that enable it to work properly (especially HP and Okidata) – not entirely Microsoft’s fault

The Ugly:

• When Microsoft misses, it’s by light years and not just miles
• Internet Explorer continues to crash at will, even on clean installs (thankfully there is Mozilla)
• The search function has actually been made worse, if that’s posssible – there is no way to easily understand how it’s supposed to work and drill down to find a document (thankfully there are many alternatives like 2 Bright Sparks)

From my experience, if you’re thinking about upgrading your PC or considering a Mac, I’d highly recommend Windows 7. If you’re already running XP or Vista successfully, there really isn’t much incentive to make major changes. If you’re not quite satisfied with some inherent limitations or stability, I can attest that even 2-3 year old equipment will shine brightly on Windows 7 and it’s easy to work with and troubleshoot. If you need a cute looking computer, don’t buy a Mac – just ask me for some great alternatives that you can customize to your personal taste!

Data Playing Poker on Star Trek

At a Christie’s auction, Moustakis won bids for approximately $25,000 for items that allegedly appeared on Star Trek, The Next Generation – a poker table and Star Trek uniform and poker visor allegedly worn by actor Brent Spiner, who plays the character “Data” on the show. (Also sold were a six and a half foot model of the Starship Enterprise for over a half million dollars and another uniform and pants allegedly worn by Spiner/Data sold for almost $10,000.) Moustakis claims that after having a conversation with Spiner at a convention, he discovered that the items were never actually worn on the show. Further investigations lead Moustakis to believe the items were fake, although it is unknown to me what led him to that conclusion.

The bottom line? The judge ruled that Christie’s warranties and limitations of liability insulated the auction house. I’m not sure I was altogether satisfied with the explanation although there are many facts here that we don’t know about this sensational case. It is alleged (and which may have been introduced into evidence) that Christie’s had posted incorrect information that was revised in a handout provide to live bidders – in addition to a correction made before the auction. Despite  this disclaimer, the plaintiff apparently claimed that Christie’s had knowledge of numerous duplicate items that Paramount (studio creating Star Trek) was warehousing and which never appeared on the show. Moustakis apparently discovered several identical items available on eBay for less than half the price he paid, as well as differentiation the poker table on the show from the one he had bought.

Certainly I can understand the disappointment of the bidder but several million dollars worth of damages?

2009 NY Slip Op 09543

Decided on December 22, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2009

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

1847 117179/07

[*1]Ted Moustakis, Plaintiff-Appellant,

v

Christie’s, Inc., et al., Defendants-Respondents.

Jeffrey Benjamin, P.C., Forest Hills (Jeffrey Benjamin of counsel), for appellant.

Levine Sullivan Koch & Schulz, L.L.P., New York (Nicole A. Auerbach of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 7, 2008, which granted defendants’ motion to dismiss the complaint to the extent of dismissing all causes of action related to one of the items purchased by plaintiff, as well as the claims for fraud, negligent misrepresentation and violation of the General Business Law relating to all items, and the demands for punitive damages, unanimously affirmed, without costs.

This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff’s contention that defendant Christie’s had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that “all property is sold as is’ without any representation or warranty of any kind by Christie’s or the seller.” UCC 2-316(3)(a) recognizes that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is’ . . . which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

The allegations of fraud and negligent misrepresentation are virtually identical to those upon which the causes of action for breach of contract and breach of warranty rest, and are thus duplicative, inasmuch as there is no pleading of the breach of a duty separate and apart from the contractual obligation owed to plaintiff. In that regard, it is axiomatic that “a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

Nor does plaintiff have a viable cause of action against these defendants under General Business Law § 349 or § 350. A party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large (Canario v Gunn, 300 AD2d 332 [*2][2002]). Finally, the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally, so as to warrant the imposition of punitive damages (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2009

After a short time of getting to know you over a couple of weeks, he tells you he is on a business trip and he has sent a package with a gift to you. He wants to show you how much he cares. He sends you the tracking number to make sure you receive it. You go to the web site and look up the tracking number… and you can see a package is en route to you, including valuable contents. Strange… but this man seems educated, professional, exactly what you seemed to have been seeking. Unfortunately it seems that the package is held up in Malaysia! You are sent a correspondence by the Malaysian branch of this express mail company that states that they require customs to be paid before the package can continue its path en route to you. You aren’t quite sure what to do… but he calls you and tells you that he is on a business trip, perhaps to the Bahamas or some other remote island. He apologizes for not having access to money and that hopefully you can pay for it – after all, the gift seems to be worth much more than just a few thousand dollars. As you can see, there is a diamond necklace or other valuable item and customs will be a pricey proposition! The company may contact you again about the package they can’t hold for you for too long! The email may appear as follows:

Globelink Security and Courier Malaysia.

4KM, Jalan Mukah-Oya, P.O Box 205
96400 Mukah Sarawak
Malaysia .

website: www.globelinkon.com

Email: feriana_globelink@hotmail.com

Malaysia Tel: +60-126-406-471.

October 10TH, 2008

ORDER NUMBER: GSC/ WFD /2008 (MALAYSIA).
TRACKING NUMBER: 27831241001

Attn:
With reference to the delivery of your package. I wish to bring to your
notice that your package has been placed on hold by the Malaysian customs
for some reasons which happened to violates the shipping policies. As the
goods arrived Malaysia custom check point, the Malaysian custom detected
that currency were included in your parcel. Thereby,certain commission
must be paid as customs duty via us which is for the immediate clearance
of your package .For the main time reference of tracking on the ” status”
of your package is pending , this is in accordance to the mode of
operations in the Courier sector for financial delivery .
We have already taken order number for this package from the custom.

You are required to follow all instructions giving to you to facilitate the
release of your package. To do this, you are required to pay the required
charges listed below for the immediate release of your package. Upon
confirmation of payment, your package will be delivered to your designated
address above under few hours .  PAYMENT DETAILS.

You can make the payment through WESTERN UNION MONEY TRANSFER

or MONEY GRAM TRANSFER

ORIENT EXPRESS COURIER SERVICES
MIDDLES TOWN, SW436,
London, United Kingdom
Tel: +447031742633

The web site “tracking number” results might look like this:

CONSIGNMENT

ITEM NAME: PERSONAL VALUABLES
NO OF ITEMS :THREE (3) ITEMS
PARCEL COLOR: GRAYISH COLOR

DETAILS
VALUED PERSONAL/FAMILY TREASURES, ONE(1)DIAMOND RING, THREE(3)PAIRS OF SHOE(WOMENS), A SET OF APPLE LAPTOP WITH COMPLETE ACCESSORIES,

EVALUATION AND INDEMNITY: 100+1% INDEMNITY AND REIMBURSEMENT/REFUND/REPLACEMENT AND TOTAL RECOVERY AGREEEMENT.
ESTIMATED INDEMINITY VALUE:20,000 GBP

BILLING INFORMATION
INSURANCE : 00 USD
CUSTOMS AND EXERCISE DUTIES : 00 USD
SERVICE AND DELIVERY CHARGES : 00 USD
GRAND TOTAL : 00 USD

NOTE
ALL CHARGES, PAYMENTS AND DUTIES HAS BEEN PAID BY SENDER. RECIEVER IS STRICTLY ADVICED TO ADHERE TO THE GENERAL POLICY, DELIVERY AGREEMENT, AND TERMS AND CONDITIONS OF AIR EXPRESS COURIER SERVICES ASIA, RECIEVER IS ADVICED TO MEET WITH OUR DELIVERY AND COURIER OFFICER OR REPRESENTATIVES FOR INTERNATIONAL DELIVERY AT OUR STIPULATED AND CONDUCIVE PLACE WITH A TRUE OR CERTIFED COPY THEIR INTERNATIONAL PASSPORT OR ANY ACCEPTABLE IDENTIFICATION INSTRUMENT IE; BIRTH CERTIFICATES, NATIONAL IDENTIFICATION CARD, AND OR INTERNATIONAL DRIVING LICENSE.

CONTACT PERSON
MS.CORSY ANDERSON
CONTACT NUMBER: +44-703-174-2633
EMAIL:enquiry@orientexpress.com

WEBSITE:www.orientexpress.ueuo.com

PARCEL AND CONSIGMENT MOVEMENT INFORMATION AND STATUS.
PARCEL POSTED FROM: UK–NETHERLAND–MALAYSIA–PHILIPPINES–FINAL DESTINATION.

CURRENT STATUS :  Parcel Arrived And With-held In Malaysia
Discrepancy Detected(currency violation)code CVX/297/TY7
UK, DELIVERY CODE IPPG/54 DST

Orient Express Courier Services is a privately owned and well registered company of a good standing in United Kingdom with global affiliates and delivery. All our clients are guaranteed the best first class and world standard services. We dispatch our services and duties abiding by all the rules, and laws of all the territories and countries where we operate both international and local. For further enquiries please contact us.

I hope that this information would be sufficient for your purposes.

As you have already probably guessed, don’t send any money. This is a scam which seems to be originating in Malaysia but using a VOIP or “call me” number in the United Kingdom. Once such scam is this company is also operated by this phony shipping company:

http://orientexpress.ueuo.com

Obviously this “Orient Express” is a fraud but look how many women are being scammed by simply using different URLs to pull them up:

http://orientexpress.ueuo.com/AE900027538213741E.html
http://orientexpress.ueuo.com/AE9000275382142E.html
http://orientexpress.ueuo.com/AE9000275382143E.html

Note the contact number:+44-703-174-263

What is a Malaysian branch of a shipping company using a British / UK phone number?

The man who may have befriended you may say that he is originally from the UK – but the phone number probably uses this same prefix:
+44-703
+44-70

Note that all of these phone numbers are VOIP based – this stands for “Voice Over Internet Protocol” if you aren’t familiar with the acronym. This means that the telephone number isn’t your standard “land line” that is installed by a phone company in the UK. It is a phone number that is forwarded to another phone number, land line, cell phone or voice mailbox. The person using this number may not actually live in the UK but the calls to this number is a “follow me” number – it will forward to a phone anywhere in the world the account holder wants. So let’s say, for example, that I live in Malaysia. I can set up a VOIP phone account in the UK to get a 44 (70) number. After getting this UK-based phone number I can set it to forward directly to a nubmer in Malaysia. For those who don’t know about these follow-me VOIP services, you would never suspect that your con man lives outside of the UK.

Here is a rather amusing and interesting note – the company domain address is a subdomain, not a full domain. If you send inquiries, they will go to the domain name, which is a racing company: http://orientexpress.com/

General Rules when using Romance, Love,  and Dating Sites and avoiding scams:

1. Don’t be embarrassed to ask personal questions of a man who is trying to woo you that require verifiable answers. Doing so is not impolite and they will be taken aback only if they have something (or someone, like a wife) to hid. If this person is employed, simply ask the name of the company. Additionally, ask yourself this question – why is a man in another country so interested in meeting you? While I can understand how great you are, how are the two of you supposed to see each other and have a relationship? What’s the plan?
2. Check this person’s email address – do they have a Facebook or other social networking account? If so, is it populated with other friends and seem legitimate?
3. Check the phone number you’re given and do a lookup in a search engine. Check the country code and prefix. If there is some evidence that the number is a VOIP /follow me phone number, then you should question where the caller is truly from! Does his number ever show up on your caller ID and, if not, is it private?
4. Always check out the full domain of any business purported to be real – no legitimate company would use a subdomain of a full domain.
   http://orientexpress.ueuo.com/ – subdomain with a bad web site
   http://www.ueuo.com/ – it’s a free hosting web site!
5. If any official notification to you seems to contain a reasonably high number of words spelled incorrectly, chances are the company is not legitimate.
6. The ULTIMATE hint that you might be a potential victim of a scam – if you are ever told to send cash via services such as MoneyGram, Western Union or any other “instant money” transfer – DO NOT DO SO! The use of these services with someone with whom you are not sure is bona fide will almost always results in a scam. Once your money is sent it’s gone – it’s not like a credit card transfer that can be reversed.
7. Anyone who sends you gifts early in a relationship is suspect, doubly so if they send a parcel that requires you to send money to get your parcel! These scams typically involve you sending money for some reason, e.g. they send a check to you (usually endorsed) that has more cash than necessary and you should send cash back for the difference, etc.

Good luck finding love and romance and be careful!

I’m hoping there is more to this story than appears to be written and reported by the Canadian Broadcasting Company. Most of the articles I’ve read seem to be harping on the angle, that using Facebook to terminate medical benefits is wrongful. Nathalie Blanchard reportedly told CBC that her doctor advised her to have fun as a way to forget her problems, including nights out at a local bar and short getaways to sunny destinations. She complains that Manulife told her that her Facebook photos are evidence that she’s no longer depressed and she has hired an attorney to explore next steps. Blanchard’s lawyer, Tom Lavin, stated “I don’t think for judging a mental state that Facebook is a very good tool.”

I’m trying to understand how and why these extended benefits could have been justified in the first place. Thanks to the unchecked, massive theft responsible for the downfall in economies worldwide, numerous people are suffering from serious clinical depression. What is preventing all of them from receiving a year and a half vacation sick leave on an insurance company such as Ms. Blanchard? I thought that only Americans had such a “Constitutional Right” to happiness, not Canadians.

Blanchard’s lawyer requested a new psychiatric evaluation of his client and thinks Manulife’s investigation was inappropriate. Blanchard estimates that the Facebook debacle has cost her thousands of dollars in benefits. So how much has her debacle cost policy holders in the form of the rising price of health insurance premiums? Am I missing something here?