Brabus Ventures Corporation v. Volodymyr Zablotskyy

Real Estate Radio USA

There has been such an uproar lately in the blogging community that I felt compelled to take a look. Rather than get involved in all of the hype, anger and hysteria surrounding the now pending case.

I thought it prudent to look past all of the shouting, finger pointing, accusations, and innuendo surrounding this matter and go straight to the lawsuit.All of the blog war fodder leading up to the lawsuit is typical blogosphere inanity involving individuals who should have thought better before taking fingers to keyboards. Many of us have been involved in online disagreements and as I have heard many times before, “having an argument over the Internet is like competing in the Special Olympics.Whether you win or lose… your still a ____” … well you fill in the blank. Let’s just say you’re still special.

So, that leads us to that place where no one hopes to end up. That place where there is likely to be no winner and only losers and enriched attorneys. The courtroom.

If you have not taken a good look at the actual lawsuit that was filed, you may want to BEFORE weighing in. As I read many a post surrounding this I wondered how so much furor could be caused BEFORE a lawsuit was filed. I also wondered why? Why would so many people take the time and effort to speak out publicly about something they did not have any idea about.

Now, looking at what was written and what the lawsuit is actually about I find it hard to understand why so many would put themselves in harm way. As a group, Realtors are collectively some of the most liability fearing freaks on the planet.

“Don’t say this..it’s illegal..don’t do this ..it’s illegal“..I hear it all of the time. Just last week someone gave me their opinion as to how I can structure an MLS listing telling prospective buyers to use my title company. I read and hear so often about not discussing commission splits aloud and how the Realtor board gods may descend and wreak havoc for such statements. I have even heard many about this one or that one practicing law without a license for advising another as to contract clauses.

Yet, despite this fear of the obvious, many have chosen to become Johnny Cochran wannabe’s and have jumped behind a legal imbroglio without having any idea of what they were talking about. Amazing.

Why is it that those who blog feel they are beyond reproach and that there interpretation of the Free Speech doctrine protects them? Oh yeah..I forgot..more Johnny Cochran wannabe legal analysis.

For all of the inanity that takes place in the re.net by those who continue to rely upon the belief that they are protected by Free Speech covenants, let me ask you a question. How’s that working out right now for Vlad? At this point, whether he is on the favorable end of adjudication or not, it’s going to be a costly and time consuming experience.

I have heard one blogger say that they doubt that “it will ever see the inside of a courtroom”. So! Ever ride in a New York City taxi coming from LaGuardia into Manhattan at rush hour? What may look on paper as a short and painless ride, can end up costing you a small fortune. Even if this case never goes to court, if the Plaintiff is any kind of guy like many say he is, then this could go on for a year or more and all the while the meter keeps running.

There’s a fund being put in place to help Vlad with his legal expenses. It’s going to have to be successful…real successful!

So if you have not had a chance to review the lawsuit, well, here is what the Plaintiff in the lawsuit, Brabus Ventures Corporation is alleging:

1. Plaintiff in this case is a California corporation qualified to do business in the State of California.

2. Plaintiff is suing the Defendant for damages in excess of $25,000.00

3. Plaintiff claims jurisdiction is in the State of California

4. Plaintiff alleges “loss of earning capacity” and “damage to business reputation”

5. The Plaintiff is seeking punitive and compensatory damages

6. Plaintiff claims that Defendant intentionally and wilfully caused damage to the Plaintiff by the following acts or omissions of acts:

a. Plaintiff claims that the Defendant published on his website statements that identified the Plaintiff as the person(s) responsible for an anonymous posting on the Internet declaring the Defendant as a child molester

b. Plaintiff asserts that the Defendant had absolutely no proof or reasonable information that the Plaintiff was responsible for said post identifying the Defendant as a child molester

c. Plaintiff states that the Defendant’s actions in naming the Plaintiff as the offending party responsible for posting the “child molester post” were intentional and with the intention of causing the Plaintiff direct financial harm and was knowingly false

d. Plaintiff states that the Defendant’s action caused those who read the post to think negatively of the Plaintiff

e. Plaintiff states that the Defendant’s accusation of the Plaintiff as the person(s) responsible for the “child molester” post is false

f. Plaintiff states that the The Defendant’s published accusation of the Plaintiff is libelous “on its face”.

g. Plaintiff states that the Defendant exposed the Plaintiff to “ridicule, hatred, disdain and contempt” as it accuses the Plaintiff for taking retribution against a former business associate to cast a negative image to influence present and future customers.

7. As a result of this, the Plaintiff alleges that this action by the Defendant has caused ill-will and damage to the brand and business of the Plaintiff.

8. The lawsuit alleges that the Defendant acted with malice aforethought and accordingly pursuant to California Civil Code 3294, they are entitled to an award of damages if they prevail.

Now that being the case, none of us were involved in the business dealings by and between the Defendant and the Plaintiff. Despite what many of us may think has led to this point, and despite what many of us may think as to who posted the “child molester” post, it does not matter.

Like some others, I have read the offending post and I did not see anywhere that the Defendant directly pointed the finger directly at the Plaintiff therein accusing the Plaintiff of writing or posting the “child molester post”. The Plaintiff obviously asserts this but in their complaint, the evidence thereof, named Exhibit “A”, is not attached and as such there can seemingly be no definitive evidence that the Defendant did as the Plaintiff alleges.

Since that is what the lawsuit alleges as the reason for bringing the lawsuit, and is only what the lawsuit alleges, they are going to have to prove that the Defendant actually did unequivocally state that they wrote the offending post, or convince the judge or jury through a preponderance of the proffered evidence that the Defendant has indeed tarnished their business image by the inference that the Plaintiff wrote the “child molester post”.

Where is this Exhibit “A”? Was it intentionally left out? Does the Defendant have a copy? Was the post really there and then later scrubbed? I’d like to see the Exhibit “A”…anyone have a copy?

Another problem with the loose lips in the re.net is that all of the conjecture surrounding this case, all of the trademark infringements, all of the many, many blog postings calling the Plaintiff “e-jerks” and such, could actually work to SUPPORT the Plaintiff’s case. Free Speech does not cover or protect defamation.

I understand that many of those in the real estate blogosphere are rushing to the Defendant’s aid and many of you have the right intentions as to what you believe you are doing, but your actions may well end up being detrimental to the Defendant’s cause and it could make the case quite easy for the Plaintiff if this mythical Exhibit “A” says what they say it does.

While the truth is the absolute defense for a libelous action, many in the blogosphere are looking at the “David v. Goliath” aspect of this matter and not looking at what is before the Court.

I am not a fan of eperks, After seeing all of this I doubt I would ever do business with them. I don’t need the hassle and don’t want to end up in a lawsuit with a maniacal CEO. In fact before this began, I had never even heard of e-perks. However, now, without ever seeing anything about them, I must admit I am prejudiced because what I have read and heard by many of you in the re.net.

 Uh Oh….isn’t that exactly what the Plaintiff alleges? That people who don’t even know them are now prejudiced by the witch-hunt that enveloped the blogosphere the last couple of weeks or so?

I understand everyone means well, but we are not attorney’s. (unless of course, you are) Widgets and blog postings and all the uproar is fine…but it’s not the way to handle this kind of thing. Without truly knowing what you are talking about it can only serve to make matters worse.

If you want to help the Defendant, someone needs to find out who wrote that post. With all of the technologically inclined people in the real estate blogosphere and with all of the people that they know and have in their sphere of influence are you telling me somebody somewhere can’t find out where the EXACT origin of that post came from? Are we not technologically capable of doing an “IP forensic” on that seriously offending post?

I am sure if someone intimated that they wanted to kill the President or blow up the White House” the guys in black suits and shades would be on you pretty quick. So we all know the technology is there. So who killed J.R.? Who wrote the “child molester post”.

It seems that unless the Defendant can prove that the Plaintiff wrote it, he is going to have quite the problem. That is not to say that the Plaintiff will prevail. I am not saying that and I am not a lawyer nor do I have the proverbial “crystal ball”. however if..and I do mean if the smoking gun is out there and is the document labeled “Exhibit “A” it will be quite damning and be irrefutable evidence against the Defendant. Let’s just say that if Exhibit “A” is what the Plaintiff says it is that it ain’t looking good for the Defendant.

On the other hand, if there is no smoking gun and the Plaintiff is going to try and make a case based upon inference, then it may not be as dark of a day for the Defendant. In any event, it’s still going to be a lot of time and money defending the suit.

So, as I have yet to meet the Defendant and as there is a movement to support him as the little guy doing battle against the big bad Ben guy who seems from what some say is quite the tyrant (uh-oh..sorry Vlad…another bad thing I think about the Plaintiff based upon what somebody else wrote), what I can offer to Vlad in support is quite simple.

Vlad, get a really good attorney, do what he says, and only what he says, and hope to God that your “friends” have not made it worse for you. Also in support of Vlad, if you in the re.net truly want to support him..STOP WRITING DISPARAGING THINGS ABOUT THE PLAINTIFF!!

You are giving the other side the type of information it needs. Some of you may also end up on the other end of subpoena’s and depositions. I am sure that I can hear the bravado already. Save it for someone who will listen. No one WANTS to be involved in a lawsuit. Aren’t you supposed to be selling real estate? What in the Sam Hill are you doing?

You guys want to help Vlad? Well right now you have basically two ways to help.

1. Give to his legal defense fund. What are friends for. Besides you may have unwittingly helped the Plaintiff so it’s the least you can do.

or

2. Find out by using your sources just who wrote that silly “child molester post”.

Oh, well there is one third way you can help…leave it alone. stop talking about it, stop writing about it and let the lawyers do their jobs.

There’s a buyer out there looking for a home. Go sell one of your listings and if you need your legal fix tonight, watch Law and Order!

Vlad, I wish you well!. I am sorry that you are involved in this mess and if there is any reason to file a counter-claim I would do it right away and turn the tables on your nemesis. We would love to have you on our show and if your attorney allows it I’d love to speak with you directly to get the facts as to what is going on.

There are a ton of people behind you. I don’t know if they can be of any help to you in such a cross-complaint but if they can I bet they would testify on your behalf in a heartbeat.

Good Luck and look on the bright side. Your blog is getting tons of traffic and we’ll all be waiting for the e-book!

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9 Comments

  • Andy Beard says:

    Would a reasonable person believe there was a conenction between “John” who used and email address for S Jaffar in Vlad’s comments, threatened Vlad, and then proceeded to create multiple attacks on Vlad such as those on Yahoo.

    Exhibit A is out there, and linked to from many of the posts that can be found on the net, including on Vlad’s blog

    http://www.scribd.com/doc/3271851/Barabus-vs-Zablotskyy

    That is where you might have attributed some of your post as well.

    One of the best defenses for bloggers when they are writing something that is an opinion, is that they link to the things they are discussing, so that readers can also read other opinons on the topic.
    They also have comments, where people can express their opinon for and against.

    What would you do on your own blog if you had 10s of comments using different names, but all coming from the same IP address?

    Whilst I welcome coverage, I am not sure you have researched the history of this case enough, especially without providing links to further research.

    To your readers, I suggest they Google for ePerks, but don’t look at the negative commentary, just look at the comments on forums that originated last year, especially the second page on Topix.com (Belmont CA comments) or the comments on Yesterdaystruck.com which I highlighted in my own posts.

    On another matter, if you had taken the trouble to link out, other bloggers might have linked to you, and you might have qualified for Mary’s free blog offer.

    Rest assured Vlad does have legal advice, but extracting personally identifiable information from a major internet corporation like Yahoo without a court order, and even with one, isn’t a minor undertaking.
    The alternative is to gather evidence from other sources

    Real Estate agents across the country who have had any contact with ePerks should search their email, and check all comments on their blog for any reference to the following IP addresses

    76.206.0.160
    76.206.0.161
    76.206.0.162
    76.206.0.163
    76.206.0.164
    76.206.0.165
    76.206.0.166
    76.206.0.167

  • Andy thanks for your comment. I did not link out yet becasue I want to verify the authenticity of the document on scribd. It is missing certain headers on the document that should be there.

    I am not inferring or implying that anyposted a doctored document. I am just reserving comment until such time as I can verify that the document is indeed authentic. That is what I would consider reasonable.

    I would have thought that others would have done so as well. It’s not that difficult to obtain a certified copy of the filing from the courthouse, which is what we will be attempting to do.

    My research as most others who are looking into this, is somewhat stifled until the FACTS of the case can be verified and ascertained.

    I am not going to speak to that which is posted on forums and blogs.

    I am only looking to find out about the lawsuit..not engage in the eperks slamming dilemma. I PURPOSELY did not link out until such data can be obtained.

    If you have a copy of the official certified copy of the lawsuit please, by all means, provide it as soon as possible.

    I am happy Vlad has competent legal advice. he is going to need it so it seems. I hope this does not turn into something that is vicious solely for the point of being vicious. That would indeed be unfair.

    Personally I don’t know nor care to know anything about IP spoofing, IP ranges and the such. It’s not my field of focus nor interest.

    I will leave that analysis to those in that line of work. It would be silly and useless for me to opine about IP addresses. It simply is not my field so I can’t even begin to address your comments in that regard.

    You seem to have a good handle on it and I hope you make sure that Vlad’s attorney has all of the requisite information to wage a capable and hopefully victorious defense.

    As for Mary’s blog offer…she had a form on her website which we filled out per her request so we’re covered there. But thanks!

  • Andy Beard says:

    The document on Scribd is about as official as I think Vlad would like to see widely published.

    The history of it..

    Vlad asked me if I knew a way to publish a PDF on the web, I suggested Scribd

    He first of all uploaded a private version but the pages were out of order – I saw that version.

    He then compiled a cleaner version which does have information missing, his home address. He has been through enough without having those details also widely disseminated.

    On the same day I did check to see if an official version was already listed and it wasn’t.

    If you check now you can find all documentation online
    The case number is VG08390958 and is case sensitive
    Here is the search form
    http://apps.alameda.courts.ca.gov/fortecgi/fortecgi.exe?ServiceName=DomainWebService&TemplateName=index.html

    A lot of the facts available to Vlad’s legal team have come to them due to the coverage – whilst you can search the web with Google, that doesn’t search databases for IP addresses, and certainly can’t access email accounts.

  • I’m with Andy- there is some pretty strong evidence that the defamatory things said about Vlad did come from an ip or ip block from ePerks.

    http://brokerscience.com/re-web/eperks-re-web-2/eperks-ip-address-link/

    The more bloggers that speak out against this – the more information about other things ePerks has done will come out and be useful to Vlad in court. There is nothing wrong with speaking out against ePerks and re-publishing information about the situation. As long as the stuff we say is not slanderous, we are fine. So, I do not agree with this post at all and do not feel as though it supports Vlad.

  • Hey mary..and I guess Andy as well,

    I understand your willingness to take up the torch here, but when you use the word “evidence” that is quite strong.

    Mary wrote the following..”There is nothing wrong with speaking out against ePerks and re-publishing information about the situation”..well I have to disagree.

    I have no reason to speak out against e-perks. They have done nothing to me or my business and I don’t know anything about them.

    You don’t feel it supports vlad..well I’m sorry. I don’t have enough CONCRETE and valid information to make a judgment nor do I have the time to do so beyond looking at Official documents as presented in a Court of Law. That is defined as truly being evidence.

    As for those who do not agree with this post…well there’s not much to disagree with. Most of the info was taken from the lawsuit info supplied. It did not contain enough information beyond that to go much further.

    My support of vlad is to say I wish him well. No one wants anybody picked on and if there is anything I can do to help him prevail then I will.

    I respect the people in his corner (Mary, Andy, Greg,and the others) and I know that they have Vlad’s back in this and have spent the time necessary to continue his fight.

    Like I said, I would be more than willing to interview him onair to have him detail his account of this debacle.

  • Sean Purcell says:

    Barry,

    My old friend, how are you?

    You said:
    > On the other hand, if there is no smoking gun and the Plaintiff is going to try and make a case based upon inference, then it may not be as dark of a day for the Defendant. In any event, it’s still going to be a lot of time and money defending the suit. (emphasis mine)

    Isn’t that the point? I get the very strong impression that so many are coming to Vlad’s defense because they recognize a strong-arm tactic – so prevalent in our litigious society – that could happen to them. The “smoking gun” may not exist (probably not?), but how will Vlad (or any of us) know if he can not financially stand up to a much larger and more well-financed nemesis.

    I am quite sure I do not have to explain to you the concept “right by might” but I will say this: “There but for the grace God go I…”

  • Hey Sean,

    You wrote ..”I get the very strong impression that so many are coming to Vlad’s defense “…really??

    As of yesterday I believe the amount received by bloodhound was about $1,800 bucks. On 3 major blogs as of yesterday (Rss Pieces, Agent Genius, BHB) there were about 40 collective comments…I know you and I have butt heads in the past on statistics, but I think we can agree that in the true largeness of that which is the blogosphere, we can hardly say that is “many”.

    I don’t want to see anyone harmed maliciously. It is mean spirited and bad form.

    I absolutely no ill will towards Vlad whatsoever, however when faced with a cease and desist letter the proper course of action would be to …well, cease and desist until you have conferred with an attorney as to their advice on your position.

    I said yesterday on our show, I don’t seek legal advice from other bloggers. That’s why I retain attorneys. I don’t truly feel that Vlad has “clean hands” in this matter.

    Before everyone reaches for the pitchfork understand what the right course of action is in matters such as this.

    If you choose to engage in a fight, then you had better be prepared when the fight is brought to you. On or about February 13, 2008 vlad Was issued the C&D. On February 19th he should have been in his attorney’s office and I think it’s safe to say that his attorney would have told him then what he has told him now. Be Quiet and let me handle this. Why all of the other bloggers were contacted and why subsequent posts went up and were altered absent competent legal counsel is absurd.

    Would Vlad’s compliance with the ceast and desist prevented this lawsuit? I don’t know. But I can most assuredly say that the non-compliance thereof was the proverbial calling of the bluff.

    Now that the bluff was called, the inevitability of those actions results. Does it make e-perks right? Not at all saying that. Does it make the Ben guy less of a tyrant? Don’t know him to pass judgment? Does it make Vlad wrong for doing what he did? Doesn’t matter.

    What does matter is that real estate agents and bloggers need to understand that which they are doing and get away from the bravado of some loosely interpreted Free Speech doctrine and realize they are in business and to run their operations as busineses.

    One of the first precepts to adhere to is go set up your BUSINESS correctly and take legal advice from attorneys…not bloggers (unless of course they are attorneys).

    It’s by no means a popular stance, but it should be. Instead of being reactive be proactive and limit (you can’t eliminate) but rather limit your liability as much as possible.

    It is a shame that it has gotten this far, and in fact it has actually gotten out of hand, but I don’t believe denigrating e-perks further enhances Vlad’s position.

    i don’t believe people want to rally behind that. Instead, with all of the visibility, Vlad should be making statements and come on our show and explain his position…But Wait!! He can’t!

    Why? Because now his attorney is telling him to keep his mouth shut. Imagine where Vlad would be if he had made that simple call to an attorney when he got the C&D instead of talking to other bloggers.

    Like I said in my article that was denounced by some as not supporting Vlad.

    Vlad, I wish you well!. I am sorry that you are involved in this mess and if there is any reason to file a counter-claim I would do it right away and turn the tables on your nemesis.

    We would love to have you on our show and if your attorney allows it I’d love to speak with you directly to get the facts as to what is going on.

  • […] there have been a number of problems and gossip in the RE.net. We have seen Vlad get sued by E-Perks. In this case a ton of bloggers and Social Media ‘friends’ came out of the woodwork to […]

  • […] there have been a number of problems and gossip in the RE.net. We have seen Vlad get sued by E-Perks. In this case a ton of bloggers and Social Media ‘friends’ came out of the woodwork to […]