Tyler Waitt, former owner of Model Mayhem, files lawsuit against Internet Brands

I have just been informed that Donald Waitt, Tyler Waitt (former owners of Model Mayhem), and others filed a lawsuit against Internet Brands (NasdaqGS: INET) on April 22, 2010 in the California Central District court.

Update 1

Documents specific to this case has just been leaked to me. Stay tuned for very detailed information to follow after I get a chance to analyze it. For now, I can tell you that the amount of the suit is for $500,000 and the complaints are as follows:

  1. Breach of Contract
  2. Breach of the implied covenant of good faith and fair dealings
  3. Conversion
  4. Fraud and deceit
  5. Fraudulent inducement
  6. Accounting

Here are the original pdf documents. If you don’t want to down load them, they are viewable at the end of this post.

I thought this was kind of amusing. Model Mayhem has in the past used the TOS and rules in very creative ways to remove members they didn’t want around. But it’s almost been a month since Tyler sued Internet Brands and his account is still active. There used to be a rule that if you threaten to sue the site, you will be removed immediately. It’s a good thing they just went ahead and filed the lawsuit instead of just threatening. Now which MOD is going to remove Tyler?

Update 3 : Summary of complaint

After reviewing the complaint, here are some thoughts based on a laymen’s reading of the complaint.

  • May 13, 2008, Tyler and IB entered into an agreement to sell the assets of Model Mayhem  to Internet Brands. The agreement called for the sale of Modelmayhem.com and all related assets such as rights, domains, subdomains, and trademarks.
  • It’s unclear to me if there was a lump sum payment at the time of sale. I have to assume there was a sizable upfront payment. This complaint specifically addresses deferred payments as a bonus. The deferred agreement called for a payment of $800,000 if the average monthly pageviews for 2009 are at least 350 million. If the average of 350 million was not achieved but a minimum of 225 million pageview was achieved, a fraction of the $800,000 would be paid based on a type of prorated calculation.
  • Additionally, 10% of all net website membership dues in excess of $250,000 would also be paid. In other words, Internet Brands gets the first quarter million. After that, it’s split 90/10 with 10% going to Tyler and Donald.
  • It is claimed that both parties agreed to use Google Analytics pageviews as the tracking reports to determine payment.
  • 2009 pageview payment was due on February 15, 2010 and IB did not pay even after repeatedly promising to pay.
  • On November 10, 2009, Internet Brands provided a report showing Model Mayhem had averaged about 290 million pageviews.
  • After Donald Waitt and Tyler Waitt retained counsel, IB started to dispute the pageview numbers provided by Google Analytics.
  • On March 19, 2010, Internet Brands claimed they were not informed of a criminal investigation involving Model Mayhem when it was sold on May 13, 2008. If anyone has verifiable information about this criminal case they want to share, send me the information using the contact form.
  • Plaintiffs are claiming treble actual damage plus attorneys fees based on California Penal Code 496(c).
  • On March 19, 2010, Internet Brands claimed in writing that 65% of the website pageviews from 2009 as reported by Google Analytics were invalid. Internet Brands also claimed tens of millions of pageviews per month were not real pageviews.
  • On March 22, 2010, Internet Brands claimed in writing that 75% of the website pageviews from 2009 as reported by Google Analytics were not real pageviews.
  • Internet Brands further claimed their own research was only able to identify 246 million pageviews per month.
  • But plaintiffs claim Internet Brands’ representatives provided a sworn declaration on March 29, 2010 that Model Mayhem’s monthly average pageview were 290 million.
  • Plaintiffs further claim Internet Brands had no intention of making the deferred payments at the time of sale.
  • The smartass

    Can you please link a pdf of the Court papers?

    • patyuen

      Putting it up now. I had to take a look at it to make sure it’s authentic and it appears to be authentic. Anonymous sources claim these papers were lost in a bar in Redwood City disguised as older generation court papers.

      • BAHAHAHAHAHAHAH, does IB have secret police who can raid peoples’ homes like Apple?

  • The smartass

    Can you please link a pdf of the Court papers?

    • patyuen

      Putting it up now. I had to take a look at it to make sure it’s authentic and it appears to be authentic. Anonymous sources claim these papers were lost in a bar in Redwood City disguised as older generation court papers.

      • BAHAHAHAHAHAHAH, does IB have secret police who can raid peoples’ homes like Apple?

  • the gist of it

    Internet Brands is not fulfilling the bonus payments. Payments were supposed to be made if average monthly pageviews were over 225 million in 2009. According to the lawsuit, Google Analytics reported 290 million average monthly pageviews. Internet Brands claims that Model Mayhem only received 76 million average monthly pageviews. They claim that 73% of the pageviews don’t count because they are filed under “(other)” in Google Analytics. Which can quickly be proved bogus from Google itself. http://www.google.com/support/googleanalytics/bin/answer.py?hl=en&answer=72297

    • Wait, wouldn’t that mean the mods weren’t being truthful when they brag about the ever-increasing number of page views & how that’s responsible for the site’s awful performance?
      But they’d NEVER lie!

    • Se the Pro

      Bonus? No, more like bulk. It would seem likely that the vast majority of payment was variable, deferred and contingent.

      But also notice the hint at Internet Brands’s side and likely countersuit: misrepresentation. What is this about a criminal case against a model mayhem member? And how would that impact Internet Brands?

      There is a whole other side to this.

      • I would VERY much like to know the details of this criminal case. It’s public record that at least one guy is sitting in jail now for rapes he committed against people he solicited on MM, and another (along with his wife/daughter) is in federal custody on charges of production of child pornography and pimping. That’s not to mention documentable cases of people recruiting for/offering prostitution & escort services that MM has ignored, or a case I know of where members were recruiting for “sex slaves” and approached at least one underage member but were allowed to remain. Oh, or the 18 y/o who I personally documented to them as offering to forge releases to do adult performances before her 18th birthday, her profile was suspended until she was 18 then restored. And then there’s one member who’s on her second profile who’s been repeatedly “brigged” for things like soliciting software illegally & such. SO many possibilities.

        • Whoops, that should have said “Oh, or the SEVENTEEN y/o who I personally documented to them as offering to forge releases to do adult performances before her 18th birthday, her profile was suspended until she was 18 then restored.”

        • patyuen

          It’s unlikely any of those would fall under a criminal case unless it’s in some backward State. Even Craiglist was immune from any criminal liability in the infamous Craigslist killer case. I can definitely see someone trying their luck with a civil case especially considering how Model Mayhem has for years failed to act in a way that would give them safe harbor.

          • Well the 17 y/o who offered to do releases falsely & the couple recruiting sex slaves who approached an underage member were both in Florida (which’s how I know about them), and I could be way off base here but I’m guessing that if it got reported elsewhere, documented instances of illegality involving a minor, under current legal conditions, might bring some kind of action. But that’s simply speculation.

  • the gist of it

    Internet Brands is not fulfilling the bonus payments. Payments were supposed to be made if average monthly pageviews were over 225 million in 2009. According to the lawsuit, Google Analytics reported 290 million average monthly pageviews. Internet Brands claims that Model Mayhem only received 76 million average monthly pageviews. They claim that 73% of the pageviews don’t count because they are filed under “(other)” in Google Analytics. Which can quickly be proved bogus from Google itself. http://www.google.com/support/googleanalytics/bin/answer.py?hl=en&answer=72297

    • Wait, wouldn’t that mean the mods weren’t being truthful when they brag about the ever-increasing number of page views & how that’s responsible for the site’s awful performance?
      But they’d NEVER lie!

    • Se the Pro

      Bonus? No, more like bulk. It would seem likely that the vast majority of payment was variable, deferred and contingent.

      But also notice the hint at Internet Brands’s side and likely countersuit: misrepresentation. What is this about a criminal case against a model mayhem member? And how would that impact Internet Brands?

      There is a whole other side to this.

      • I would VERY much like to know the details of this criminal case. It’s public record that at least one guy is sitting in jail now for rapes he committed against people he solicited on MM, and another (along with his wife/daughter) is in federal custody on charges of production of child pornography and pimping. That’s not to mention documentable cases of people recruiting for/offering prostitution & escort services that MM has ignored, or a case I know of where members were recruiting for “sex slaves” and approached at least one underage member but were allowed to remain. Oh, or the 18 y/o who I personally documented to them as offering to forge releases to do adult performances before her 18th birthday, her profile was suspended until she was 18 then restored. And then there’s one member who’s on her second profile who’s been repeatedly “brigged” for things like soliciting software illegally & such. SO many possibilities.

        • Whoops, that should have said “Oh, or the SEVENTEEN y/o who I personally documented to them as offering to forge releases to do adult performances before her 18th birthday, her profile was suspended until she was 18 then restored.”

        • patyuen

          It’s unlikely any of those would fall under a criminal case unless it’s in some backward State. Even Craiglist was immune from any criminal liability in the infamous Craigslist killer case. I can definitely see someone trying their luck with a civil case especially considering how Model Mayhem has for years failed to act in a way that would give them safe harbor.

          • Well the 17 y/o who offered to do releases falsely & the couple recruiting sex slaves who approached an underage member were both in Florida (which’s how I know about them), and I could be way off base here but I’m guessing that if it got reported elsewhere, documented instances of illegality involving a minor, under current legal conditions, might bring some kind of action. But that’s simply speculation.

  • This is genius, go Tyler

    I hope he sticks it to IB. Haaaaaaate the corporate takeover. SO much better when Ty was around.

    • Se the Pro

      It’s not Tyler. He is simply along for the ride. The real owner of MM was his father, Don.

      • Yep. Don was ALWAYS the money & business sense behind it.
        For those of us who know the back story of how MM was founded (basically a pissing match between Don & Brett), I’d say we’re all picturing Brett form OMP having a hearty laugh right about now.

      • This is genius, go Tyler

        Yeah, but still. Tyler was better at people management. IB just lets the mods have free reign now over the day to day management, esp. in the forums. Tyler at least weighed in on occassion.

        • I was publicly nominated BY several moderators to BE a moderator once. A few mods who had deep personal issues with me and some of their associates raised HELL about it. I got a personal note from Tyler apologizing, and saying he & his family liked the idea of having me as a mod, but the mods really handled the day to day on the site (even back then) and he had to go with their decision. Word I heard from a lot of people was that he was really disinterested in running it, it was more of a hobby & he didn’t want to put in that much work (again, rumor & speculation) so he pretty much let the mods have their way so they’d do all the work for free.

          Amusing side note, in that same conversation (and I can support what I am saying) Tyler offered me the position of head of the then-nonexistent Gatekeeper program in lieu of the mod job. I was in the middle of a CAM at the time that was pretty nasty, and I mentioned what Tyler had said to a couple of mods who were saying I was no good to the site. They accused me of lying, so I sent them screen shots of Tyler’s message. Boy, did THAT CAM go away in a hurry LOL.

          Ah the good ol’ days.

  • This is genius, go Tyler

    I hope he sticks it to IB. Haaaaaaate the corporate takeover. SO much better when Ty was around.

    • Se the Pro

      It’s not Tyler. He is simply along for the ride. The real owner of MM was his father, Don.

      • Yep. Don was ALWAYS the money & business sense behind it.
        For those of us who know the back story of how MM was founded (basically a pissing match between Don & Brett), I’d say we’re all picturing Brett form OMP having a hearty laugh right about now.

      • This is genius, go Tyler

        Yeah, but still. Tyler was better at people management. IB just lets the mods have free reign now over the day to day management, esp. in the forums. Tyler at least weighed in on occassion.

        • I was publicly nominated BY several moderators to BE a moderator once. A few mods who had deep personal issues with me and some of their associates raised HELL about it. I got a personal note from Tyler apologizing, and saying he & his family liked the idea of having me as a mod, but the mods really handled the day to day on the site (even back then) and he had to go with their decision. Word I heard from a lot of people was that he was really disinterested in running it, it was more of a hobby & he didn’t want to put in that much work (again, rumor & speculation) so he pretty much let the mods have their way so they’d do all the work for free.

          Amusing side note, in that same conversation (and I can support what I am saying) Tyler offered me the position of head of the then-nonexistent Gatekeeper program in lieu of the mod job. I was in the middle of a CAM at the time that was pretty nasty, and I mentioned what Tyler had said to a couple of mods who were saying I was no good to the site. They accused me of lying, so I sent them screen shots of Tyler’s message. Boy, did THAT CAM go away in a hurry LOL.

          Ah the good ol’ days.

  • Roger

    Isn’t “page views” related to site up time and usability? That is, if the users’ access to the site sucks, or it’s unavailable, the page views go down and the money to the Waitts goes down. One has to wonder about the concept of “incentives” given this arrangement.

    • patyuen

      Yes pageviews are tied directly to site uptime but MM has not been down for more than 2 days straight. They get about 11 million pageviews per day so even if you take 22 million pageviews out, it’s still relatively small compared to 300+ million pageviews per month, every month. If you’re suggesting that IB has an incentive to limit pageviews to avoid this payout, I think that would hurt them in the pocketbook much more than Tyler and Donald. Pageviews are tied directly to ad revenue and that’s not something you want to limit.

      • Roger

        “If you’re suggesting that IB has an incentive to limit pageviews to avoid this payout, I think that would hurt them in the pocketbook much more than Tyler and Donald. Pageviews are tied directly to ad revenue and that’s not something you want to limit.”

        I’m not suggesting something quite that stark. Rather, that their incentives to grow and improve the site during 2009 were limited by the effect that such growth at that time would have on their liability to the Waitts. Delaying improvements until 2010 would be to some degree in their best interests.

        Also, if $800,000 is a large percentage of their ad revenues, then “hurting ad revenues” isn’t all that much of a problem if those revenues just get sent back out the door in the form of payments based on page views. Only if ad revenues are very substantially greater than $800,000 per year would the disincentive not be significant. Any estimates?

        • patyuen

          That’s exactly right. The incentive to increase pageviews is directly tied to how much IB makes in ad revenues. My guess is that ad revenues far exceeds the $800,000 per year for 2009. But I also understand a lot has changed since 2008 and some are reporting that ad spending is down more than 70% in many sectors. And since the Waitts payout agreement is tied to pageviews and not ad revenue, I would say they made a good deal considering ad revenues have probably declined on a payment per view basis.

          Most people think Google Adsense only pay when viewers click on the ads. While that is true for the vast majority of Adsense publishers, those sites with the pageviews Model Mayhem gets is most certainly on a payment per 1000 impression model. Model Mayhem gets paid just for serving the ads. What’s interesting is that even though Internet Brands has consistently claim huge increases in membership and new accounts, the pageviews have remained fairly leveled over 2009. In fact, it’s declined a bit in the last few months. That seems to imply that lots more people are signing up but not using the site. So perhaps many of them are sockpuppet accounts or casual users signing up for the hell of it. There’s got to be a limit to the number of people interested in modeling and modeling photography. As popular as Model Mayhem is, it is not a general purpose social networking site like Myspace or Facebook. 400,000 active members may be the peak and now they are signing up the fringe members.

      • Roger

        It’s more than just site down time that’s at issue. When the site is slowed down substantially, or major elements of functionality don’t work, users use it less (or less successfully) resulting in a lower page view count. If a page load takes five times longer than it should on a well-tuned site, there will be fewer of them, even though the site is “up”.

        On the issues of “page views” that aren’t real, as IB seems to be claiming, I wonder if a 502 error counts as a page view?

        • patyuen

          I agree slow site performance hurts pageviews. Casual web viewers are extremely impatient and anything beyond a few seconds will result in a high bounce rate. If you look at stat for MM, you see bounce rates go up as pageviews go down. Those are indicators of poor site performance or lots of 502/504 errors.

          I believe all relevant site meters recognize error pages and do not count those. Another commenter referred to Google Analytics counting of ‘other’ pageviews.

          http://www.google.com/support/googleanalytics/bin/answer.py?hl=en&answer=72297

          This appears to be part of IB’s defense as to why they believe some pageviews are invalid. According to Google’s own explanation, ‘other’ is not a count of invalid pageviews but rather perfectly valid pageviews that simply don’t have unique ids.

          Keep in mind there are also ways to manipulate pageviews in code. For example, each portfolio image view on Model Mayhem currently serves a new pageview and subsequently new ad views. If they change the code to serve images as an AJAX popup or a slideshow, each image may not necessarily return a new pageview.

  • Roger

    Isn’t “page views” related to site up time and usability? That is, if the users’ access to the site sucks, or it’s unavailable, the page views go down and the money to the Waitts goes down. One has to wonder about the concept of “incentives” given this arrangement.

    • patyuen

      Yes pageviews are tied directly to site uptime but MM has not been down for more than 2 days straight. They get about 11 million pageviews per day so even if you take 22 million pageviews out, it’s still relatively small compared to 300+ million pageviews per month, every month. If you’re suggesting that IB has an incentive to limit pageviews to avoid this payout, I think that would hurt them in the pocketbook much more than Tyler and Donald. Pageviews are tied directly to ad revenue and that’s not something you want to limit.

      • Roger

        “If you’re suggesting that IB has an incentive to limit pageviews to avoid this payout, I think that would hurt them in the pocketbook much more than Tyler and Donald. Pageviews are tied directly to ad revenue and that’s not something you want to limit.”

        I’m not suggesting something quite that stark. Rather, that their incentives to grow and improve the site during 2009 were limited by the effect that such growth at that time would have on their liability to the Waitts. Delaying improvements until 2010 would be to some degree in their best interests.

        Also, if $800,000 is a large percentage of their ad revenues, then “hurting ad revenues” isn’t all that much of a problem if those revenues just get sent back out the door in the form of payments based on page views. Only if ad revenues are very substantially greater than $800,000 per year would the disincentive not be significant. Any estimates?

        • patyuen

          That’s exactly right. The incentive to increase pageviews is directly tied to how much IB makes in ad revenues. My guess is that ad revenues far exceeds the $800,000 per year for 2009. But I also understand a lot has changed since 2008 and some are reporting that ad spending is down more than 70% in many sectors. And since the Waitts payout agreement is tied to pageviews and not ad revenue, I would say they made a good deal considering ad revenues have probably declined on a payment per view basis.

          Most people think Google Adsense only pay when viewers click on the ads. While that is true for the vast majority of Adsense publishers, those sites with the pageviews Model Mayhem gets is most certainly on a payment per 1000 impression model. Model Mayhem gets paid just for serving the ads. What’s interesting is that even though Internet Brands has consistently claim huge increases in membership and new accounts, the pageviews have remained fairly leveled over 2009. In fact, it’s declined a bit in the last few months. That seems to imply that lots more people are signing up but not using the site. So perhaps many of them are sockpuppet accounts or casual users signing up for the hell of it. There’s got to be a limit to the number of people interested in modeling and modeling photography. As popular as Model Mayhem is, it is not a general purpose social networking site like Myspace or Facebook. 400,000 active members may be the peak and now they are signing up the fringe members.

      • Roger

        It’s more than just site down time that’s at issue. When the site is slowed down substantially, or major elements of functionality don’t work, users use it less (or less successfully) resulting in a lower page view count. If a page load takes five times longer than it should on a well-tuned site, there will be fewer of them, even though the site is “up”.

        On the issues of “page views” that aren’t real, as IB seems to be claiming, I wonder if a 502 error counts as a page view?

        • patyuen

          I agree slow site performance hurts pageviews. Casual web viewers are extremely impatient and anything beyond a few seconds will result in a high bounce rate. If you look at stat for MM, you see bounce rates go up as pageviews go down. Those are indicators of poor site performance or lots of 502/504 errors.

          I believe all relevant site meters recognize error pages and do not count those. Another commenter referred to Google Analytics counting of ‘other’ pageviews.

          http://www.google.com/support/googleanalytics/bin/answer.py?hl=en&answer=72297

          This appears to be part of IB’s defense as to why they believe some pageviews are invalid. According to Google’s own explanation, ‘other’ is not a count of invalid pageviews but rather perfectly valid pageviews that simply don’t have unique ids.

          Keep in mind there are also ways to manipulate pageviews in code. For example, each portfolio image view on Model Mayhem currently serves a new pageview and subsequently new ad views. If they change the code to serve images as an AJAX popup or a slideshow, each image may not necessarily return a new pageview.

  • Dannielle

    Oh that is just freaking hilarious. I will watch this with interest and amusement!

  • Dannielle

    Oh that is just freaking hilarious. I will watch this with interest and amusement!

  • JC Photo

    I think the point that IBrands is making is that Tyler and Co. have been gaming the traffic (which can be done through scripts, and hiring people) to game the statistics.

    A $800,000 bonus is a lot of incentive to manipulate the system….

    • patyuen

      Gaming 75% or 173 million page views a month? And IB was clueless to these 173 million page views for well over a year? If only IB was a large publicly traded company who owned dozens of websites, they would have the resources to detect such tactics.

  • JC Photo

    I think the point that IBrands is making is that Tyler and Co. have been gaming the traffic (which can be done through scripts, and hiring people) to game the statistics.

    A $800,000 bonus is a lot of incentive to manipulate the system….

    • patyuen

      Gaming 75% or 173 million page views a month? And IB was clueless to these 173 million page views for well over a year? If only IB was a large publicly traded company who owned dozens of websites, they would have the resources to detect such tactics.

  • Miguel’s Tampon

    LOL – loving this. I had my Model Mayhem acccount shut down a month ago by their secret kangaroo court of failed old broken down ‘glamour’ photographers who in reality are nothing more than the ‘GWC’s everybody puts down on that site. I was told there were multiple model complaints against me of a very serious nature. Which is a hoot because I’ve shot a grand total of 5 models booked directly off Model Mayhem and 4 of them are friends of mine. Which left one model, who just happens to be a frequent poster on MM’s forum who’s spread her legs for half the failed GWC’s on MM. I paid the
    horse faced bitch $750. Whatever. They didn’t have the balls or decency to even let me know what this weirdo masquerading as a model was accusing me of, so we’re not even talking about a ‘he said,she said’ case her because they don’t even want to know the ‘he said’ part of it. The last laugh is on the model and her shitty Playboy photographer boyfriend – because I have almost 3,000 unedited explicit images that are about to be distributed on every free porn website on the Internet and will be debuted right on MM’s forum. I now have 5 new Model Mayhem accounts that I am using, well I use one of them but the other 4 are live and waiting.

    I shoot a lot of models who are on Model Mayhem and I know all about what goes on direct from them – the paid sex biz going on through MM. I know of portfolios on MM with nude girls under 18 with no 2257.

    What dopes Tyler and his dad are – it sounds to me like they got a very modest amount of money for one of the Internet’s top social networking websites, in terms of traffic anyway. We all know what Facebook and MySpace are worth – not saying Model Mayhem is worth anywhere near those sites but with an $800K deferred bonus payment it’s pretty easy to deduce that they didn’t get a huge amount up front. Internet Brands is in way over their heads, there are hundreds of sites with their traffic that never have technical issues that users are touched by. They will never figure out how to monetize that site. Look at the ads, they should be selling that advertising directly to the big boys – they have hundred of thousands of eyeballs in the prime demographic advertisers covet yet all you see on that site is Google ads for shitty dating sites and mom and pop operators selling retouching DVD’s and online courses.

    Good luck Don and Tyler!

  • Miguel’s Tampon

    LOL – loving this. I had my Model Mayhem acccount shut down a month ago by their secret kangaroo court of failed old broken down ‘glamour’ photographers who in reality are nothing more than the ‘GWC’s everybody puts down on that site. I was told there were multiple model complaints against me of a very serious nature. Which is a hoot because I’ve shot a grand total of 5 models booked directly off Model Mayhem and 4 of them are friends of mine. Which left one model, who just happens to be a frequent poster on MM’s forum who’s spread her legs for half the failed GWC’s on MM. I paid the
    horse faced bitch $750. Whatever. They didn’t have the balls or decency to even let me know what this weirdo masquerading as a model was accusing me of, so we’re not even talking about a ‘he said,she said’ case her because they don’t even want to know the ‘he said’ part of it. The last laugh is on the model and her shitty Playboy photographer boyfriend – because I have almost 3,000 unedited explicit images that are about to be distributed on every free porn website on the Internet and will be debuted right on MM’s forum. I now have 5 new Model Mayhem accounts that I am using, well I use one of them but the other 4 are live and waiting.

    I shoot a lot of models who are on Model Mayhem and I know all about what goes on direct from them – the paid sex biz going on through MM. I know of portfolios on MM with nude girls under 18 with no 2257.

    What dopes Tyler and his dad are – it sounds to me like they got a very modest amount of money for one of the Internet’s top social networking websites, in terms of traffic anyway. We all know what Facebook and MySpace are worth – not saying Model Mayhem is worth anywhere near those sites but with an $800K deferred bonus payment it’s pretty easy to deduce that they didn’t get a huge amount up front. Internet Brands is in way over their heads, there are hundreds of sites with their traffic that never have technical issues that users are touched by. They will never figure out how to monetize that site. Look at the ads, they should be selling that advertising directly to the big boys – they have hundred of thousands of eyeballs in the prime demographic advertisers covet yet all you see on that site is Google ads for shitty dating sites and mom and pop operators selling retouching DVD’s and online courses.

    Good luck Don and Tyler!

  • Anonymous

    Rule 12 is a motion to dismiss. Sub(b)(6) is a motion to dismiss for “failure to state a cause of action.” This is what used to be called a “demurrer.” It essentially argues that EVEN IF you assume all the facts of the Complaint are true, there is no basis for relief.

    Rule 9 is a pleading motion, alleging failure to plead material elements of the cause of action set forth.

    Seems a decent chance that the Rule 9(b) motion might be granted with respect to the Fraud claim. Since the dispute arose after the execution of the contract, Plaintiffs would have to demonstrate that Defendants entered into the contract and enticed Plaintiffs to do so, knowing, in advance, that they never intended to pay the deferred compensation due.

    These kinds of motions are fairly typical and generally serve to frame the issues before the Court. Elimination of the “throw-in” claims and nailing down the issues to the barest allegations serves everyone’s best interest.

    This does not mean that Plaintiffs’ case is weak.

    To the contrary, it seems fairly obvious that if both sides agreed to have page-counts tallied by Google Analytics (without any further description of the calculation method OR any reference to the method(s) utilized by Google on a certain date) it would seem that Google Analytics controls and IB should be paying.

    Very hard to truly evaulate the claims without reviewing the actual contract for sale, but that’s as good as I can give you right now.

    -Esq.

  • Anonymous

    Rule 12 is a motion to dismiss. Sub(b)(6) is a motion to dismiss for “failure to state a cause of action.” This is what used to be called a “demurrer.” It essentially argues that EVEN IF you assume all the facts of the Complaint are true, there is no basis for relief.

    Rule 9 is a pleading motion, alleging failure to plead material elements of the cause of action set forth.

    Seems a decent chance that the Rule 9(b) motion might be granted with respect to the Fraud claim. Since the dispute arose after the execution of the contract, Plaintiffs would have to demonstrate that Defendants entered into the contract and enticed Plaintiffs to do so, knowing, in advance, that they never intended to pay the deferred compensation due.

    These kinds of motions are fairly typical and generally serve to frame the issues before the Court. Elimination of the “throw-in” claims and nailing down the issues to the barest allegations serves everyone’s best interest.

    This does not mean that Plaintiffs’ case is weak.

    To the contrary, it seems fairly obvious that if both sides agreed to have page-counts tallied by Google Analytics (without any further description of the calculation method OR any reference to the method(s) utilized by Google on a certain date) it would seem that Google Analytics controls and IB should be paying.

    Very hard to truly evaulate the claims without reviewing the actual contract for sale, but that’s as good as I can give you right now.

    -Esq.

  • jb

    Re: Interesting side note 5/29/2010
    Thanks for posting about the mess on Dave’s Garden! Removing Dave and Trish from the very site they created was the last straw–they virtually erased them from the entire site so as not to have any record of their contributions and the good people they are! Now there is only Miguel/Michael’s words–and they show his character extremely well–NOT! By this, you have developed a new sympathic audience. No longer are you alone in the unprofessional, devious and unfair pratices regarding IB.

    What does your post have to do with your case? I’d say a LOT! It shows attitude and mind set of the horrid company IB.
    Good luck in your suit, we will be watching 🙂

    • patyuen

      Here are my comments regarding the Dave’s Garden issue. First I only posted it as an interesting side note to Tyler’s lawsuit. Sure it involves IB but IB is a huge company with many internet assets and I’m sure at any one point, they are in some kind litigation with someone regarding something.

      From what I can tell, it sounds like IB is right on this one and Dave pretty much said so early on. All he wanted was proof of the assignment and in fact, Dave had shut down Cubits.org in anticipation of such proof. I suspect it’s fairly standard to make such an assignment when you sell a company.

      Now where it went to hell was when Michael made that post. I think it was done with good intentions but it could have probably been worded better and perhaps he should have cleared it with the legal department before accusing Dave of putting in back doors in a public forum.

      So Dave reads it and gets pissy and throws a tantrum and says “Fuck you IB. I’m bringing cubits.org back up.” Ok, he didn’t really say that but I’m being dramatic. But Michael’s statement has no bearing on the original non-compete agreement assignment. It does not change the facts of the case. I mean I know why Dave did it because he got pissed and now he wants to rumble.

      As for all this talk of libel and defamation suits, I think talk is cheap. Unless it can be shown that Michael knowingly lied and was malicious when he made that post, it can easily be defended as a reasonable statement of known facts at the time, even if those facts turn out to be wrong.

      As for purging Dave and Trish’s accounts and history, I’m not sure if that was purposely done or if it was just a consequence of removing his account based on limitation of the code. I can tell you that if it was my site and you were redirecting traffic to another competing site, I would do whatever it takes to stop you too. Sorry, that’s just a dick move and I think Dave knows that.

      I’m just not in the “IB is an evil empire” camp.

      * I have never met Dave or Trish and the extent of my knowledge regarding this matter is just what I read last night in the cubits.org thread. I can’t even read the Davesgarden forum threads as it is subscription only. If any members want to save it to a pdf file, you are more than welcomed to post the link here.

      Use this: http://www.primopdf.com/online.aspx

      Edit: A security oversight on Davesgarden.com has allowed me or anyone else to view the subscription only threads. Here are the relevant threads related to this matter in pdf.

      Thread 1, thread 2, thread 3, thread 4.

  • jb

    Re: Interesting side note 5/29/2010
    Thanks for posting about the mess on Dave’s Garden! Removing Dave and Trish from the very site they created was the last straw–they virtually erased them from the entire site so as not to have any record of their contributions and the good people they are! Now there is only Miguel/Michael’s words–and they show his character extremely well–NOT! By this, you have developed a new sympathic audience. No longer are you alone in the unprofessional, devious and unfair pratices regarding IB.

    What does your post have to do with your case? I’d say a LOT! It shows attitude and mind set of the horrid company IB.
    Good luck in your suit, we will be watching 🙂

    • patyuen

      Here are my comments regarding the Dave’s Garden issue. First I only posted it as an interesting side note to Tyler’s lawsuit. Sure it involves IB but IB is a huge company with many internet assets and I’m sure at any one point, they are in some kind litigation with someone regarding something.

      From what I can tell, it sounds like IB is right on this one and Dave pretty much said so early on. All he wanted was proof of the assignment and in fact, Dave had shut down Cubits.org in anticipation of such proof. I suspect it’s fairly standard to make such an assignment when you sell a company.

      Now where it went to hell was when Michael made that post. I think it was done with good intentions but it could have probably been worded better and perhaps he should have cleared it with the legal department before accusing Dave of putting in back doors in a public forum.

      So Dave reads it and gets pissy and throws a tantrum and says “Fuck you IB. I’m bringing cubits.org back up.” Ok, he didn’t really say that but I’m being dramatic. But Michael’s statement has no bearing on the original non-compete agreement assignment. It does not change the facts of the case. I mean I know why Dave did it because he got pissed and now he wants to rumble.

      As for all this talk of libel and defamation suits, I think talk is cheap. Unless it can be shown that Michael knowingly lied and was malicious when he made that post, it can easily be defended as a reasonable statement of known facts at the time, even if those facts turn out to be wrong.

      As for purging Dave and Trish’s accounts and history, I’m not sure if that was purposely done or if it was just a consequence of removing his account based on limitation of the code. I can tell you that if it was my site and you were redirecting traffic to another competing site, I would do whatever it takes to stop you too. Sorry, that’s just a dick move and I think Dave knows that.

      I’m just not in the “IB is an evil empire” camp.

      * I have never met Dave or Trish and the extent of my knowledge regarding this matter is just what I read last night in the cubits.org thread. I can’t even read the Davesgarden forum threads as it is subscription only. If any members want to save it to a pdf file, you are more than welcomed to post the link here.

      Use this: http://www.primopdf.com/online.aspx

      Edit: A security oversight on Davesgarden.com has allowed me or anyone else to view the subscription only threads. Here are the relevant threads related to this matter in pdf.

      Thread 1, thread 2, thread 3, thread 4.

  • GW

    Yes, thanks for posting about Dave’s Garden. Internet Brands stinks to high heavens. The world’s watching IB.

  • GW

    Yes, thanks for posting about Dave’s Garden. Internet Brands stinks to high heavens. The world’s watching IB.