eBay Seller -$19,250 – eBay Buyer -$1.44 – eBay 0

eBay Seller -$19,250 – eBay Buyer -$1.44 – eBay 0
8 September 2015

Case No.: 13CIV0351 13CIV0352
Court of Common Pleas, Medina County, Ohio

The Plaintiff’s conduct consisted of allegations or other factual contentions that had no evidentiary support or, if specifically so identified, were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Again, Mr. Rudy had no objective evidence suggesting the statements of fact made by the Defendants were not true. Furthermore, the Plaintiff misrepresented the matter in the pleadings and to the court.
Magistrate James R. Leaver, August 31 2015, Court of Common Pleas, Ohio

Ars Technica posted the article “eBay seller who sued over negative feedback dinged $19K in legal fees” “Judge didn’t find Med Express founder’s testimony credible” on September 3 2015.  The article began with:

“When Med Express sued Amy Nicholls for giving negative feedback on eBay, she didn’t back down and remove the feedback. Instead, she lawyered up”

As can be seen in the Court document, and the Ars Technica article, things did not go well with “Med Express founder Richard Radey” and his attorney.

Beginning with this statement in the first paragraph of the “Magistrate’s Decision”:

“On July 6, 2015, counsel for the Plaintiff filed a motion to withdraw from the representation of the Plaintiff citing irreconcilable differences with the client.”

The action that started the legal snowball moving?

  • Plaintiff: “Med Express pain the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nicolls with $1.44 postage due.”
  • Plaintiff: “Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay’s website”


Okay kids. This is where it gets complicated.
Amy Pond, Doctor Who, Time (2011)

Indeed.  The Court record, as signed by Magistrate James R. Leaver, states:

  • “Med Express initiated a second lawsuit against Defendants Dennis Rogan and Ebay, INC.”
  • “WHEREFORE, Plaintiff Med Express Inc. demands judgement against Defendants Dennis Rogan and Ebay, Inc.”

Leading to, as signed by Magistrate James R. Leaver:

  • “On March 28, 2013, the Court denied the motions for a temporary restraining order in both cases.”
  • “On April 18, 2013, the complaints in both cases were voluntarily dismissed.”
  • “Ebay never filed an answer in either case.”

Which lead to more Court action, as signed by Magistrate James R. Leaver:

  • “Counsel further prompted Mr. Rady by asking, “So as you sit here today, you remember those ratings were from Ms. Nicholls–is that right?” “Mr. Rady testified “Yes”, and again stated all categories were rated 1’s.”
  • “On November 7, 2014, Counsel for the Defendants took the deposition of Rebakah Long, an Ebay representative, in Draper, Utah.  Ms. Long’s testimony revealed that Mr. Rady’s prior testimony regarding seeing the Defendants rate him with all 1’s on Ebay’s detailed seller ratings page was false.  She testified detailed seller ratings are anonymous and the seller cannot view the ratings.  Furthermore, the ratings left by Defendants Rogan and Nicholls were not all 1’s.”
  • “The deposition of Ms. Long shows that Mr. Rady’s testimony was false.”

Ars Technica noted:

  • “Following the second trial, Radey’s original lawyer James Amodio agreed to pay part of the attorney’s fees, and Public Citizen dropped him from their motion for sanctions.”
  • “Radey had two different lawyers during the sanctions proceedings, and the second lawyer stopped representing him in July 2015.”

Moving along to the sanctions portion, “The matter proceeded to oral evidentiary hearing before the undersigned Magistrate on April 2, 2015”:

  • “Mr. Radey also testified again.  His testimony varied from the first hearing in that he attempted to clarify his prior trial testimony” … “This time he testified he must jumped to the conclusion Nicholls and Rogan rated him with all 1’s (as opposed to his prior testimony that he basically watched it happen almost live).  Mr. Rady also testified he called Ebay years ago and Ebay gave him the idea to file suit against Ebay and buyers leaving negative feedback.  The negative feedback could be removed by court order.  The testimony wasn’t credible.”  Magistrate James R. Leaver

A few tidbits from Magistrate James R. Leaver’s Conclusion of Law:

  • “4.  Opinion speech is protected speech that is never actionable as defamation.  When determining whether a statement is fact or opinion, a court is to consider the specific language used, whether the statement is verifiable, the general context of the statement, and context in which the statement appeared.  An objective “ordinary reader” test is to be applied to determine whether a statement is a false statement of fact.  The court must determine whether a reasonable reader would view the words to be language that normally conveys information of a factual nature or opinion.  If the language is factual in nature, a truthful statement cannot be defamation because an element of defamation is a false defamatory statement.”
  • “5.  The feedback generated by Nicholls and Rogan is part opinion and part statement of fact.”
  • “6.  An argument could be made the narrative statements left by Defendants Nicholls and Rogan were intended to be statement of facts even though they appear in a forum designed to elicit opinions.  Nevertheless, these statement could not have been the basis of a defamation action because the statements are undeniable true and Mr. Rady had no objective reason whatsoever to question their veracity when he caused the complaints to be filed.”
  • “7.  The Plaintiff’s complaints had no merit, legally or factually, when they were filed.”
  • “8.  R.C 2323.51(A)(2) defines frivolous conduct …”
  • “9.  A violation of any one of the above sections is frivolous conduct.  The Plaintiff has violated all four sections.”
  • “13.  The Magistrate finds the Plaintiff’s complaint and motions set forth factual contentions that the Plaintiff knew or should have known were not warranted by the evidence.”
  • “14.  R.C. 2323.51 allows a party adversely affected by frivolous conduct to recover an award of court costs, reasonable attorney fees, and other reasonable expenses incurred in connection with the civil action.”
  • “22.  The Magistrate finds the Defendants are entitled to an award of attorney fees in the amount of $16,446.00 (total hours of 164.46 x 1/2 x $200.00) plus expenses of $2,804.00,, for a total award of $19,250.00 against Med Express, Inc.”

There was one bright spot, for the Plaintiff’s lawyers James Amodio and Richard Cardenas:

  • “Defendants withdrew their motion for sanctions as to Attorney James Amodio only.”
  • “The Defendants’ motion for a default award of sanctions is denied.”


“What is the moral?
Must be a moral.
Here is the moral, wrong or right: Morals tomorrow!
Comedy, comedy, comedy, comedy,
Comedy, comedy, comedy, comedy tonight!”
A Funny Thing Happened on the Way to the Forum (1966) 

The moral?  Well, don’t sue eBay INC.

According to the court document, Amy Nichols never did get the $1.44 refund.


“Section 11, Article I of the Ohio Constitution provides in relevant part: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”
Magistrate James R. Leaver, 2015

“Take it easy, lad. Everybody’s entitled to an opinion.”
Montgomery Scott, The Trouble With Tribbles, 1967


Ebay, PayPal, Hewlett-Packard – Breaking Up Is Hard.

Ebay, PayPal, Hewlett-Packard – Breaking Up Is Hard.
8 October 2014

Breaking Up Is Hard To Do
Neil Sedaka, Howard Greenfield, 1962

Convention wisdom about the 2015 split of eBay INC, says the separate parts will be quickly sold off.  Might not happen quickly.

In The Wall Street Journal article, “Dealpolitik: EBay, PayPal Takeover Talk May Be Premature”, Ronald Barusch makes this interesting point.

eBay probably has massive gains on its PayPal shares that would trigger huge taxes if the deal didn’t qualify as a tax-free spin-off.

For up to two years after the spin-off, an acquisition of either PayPal or eBay (regardless of which company is spun off) could destroy the tax-free status of the deal and trigger an enormous corporate tax. In spin-offs, the agreements usually make the company that’s taken over bear the risk of that tax.

Such an agreement operates as a kind of poison pill of its own: Anyone trying to take over one of the companies would indirectly be responsible for that big tax bill”

The short version being:

The bottom line is that those expecting a quick deal following the spin-off may be jumping the gun.

Of course with eBay INC CEO John Donahoe leading the separation plans, there is no guarantee that a monetarily smart long-term plan will be made.  I.E. shareholders could be stuck with a huge tax bill, while John Donahoe skates.

“A monkey could drive this train.”
Margaret “Meg” Whitman, during her tenure as eBay INC CEO.

Monkey sees, monkey does.
Alexander Boot and Shoe Company, 1892

On the heals of John Donahoe splitting eBay INC, Margaret “Meg” Whitman is leading the charge to split Hewlett-Packard.  However not into “Hewlett” and “Packard.”

Hewlett-Packard to split into two public companies, lay off 5,000
October 6, 2014
Supantha Mukherjee and Edward Chan

“Hewlett-Packard Co said it would split into two listed companies, separating its computer and printer businesses from its faster-growing corporate hardware and services” … “HP said its shareholders would own a stake in both businesses through a tax-free transaction next year.” … “Whitman, who will be CEO of HP Enterprise, the business that will sell computer servers and networking gear and data storage to businesses.

Perhaps the ‘monkey see, monkey do’ reference is not entirely fair.

Meg Whitman is planning “a tax-free transaction” and will be CEO of one of the split companies.  John Donahoe has not mentioned “tax-free” and will not be CEO of either the new eBay or PayPal.


  • 2 January 2014 to 8 October 2014, Hewlett-Packard stock has surged, $27.98 to $35.92.
  • 2 January 2014 to 8 October 2014, eBay INC remains stagnant, $53.94 to $54.51.

Meanwhile, at the close of market. 8 October 2014:

  • Alibaba – $88.30
  • Amazon – $322.70
  • American Express – $87.41
  • MasterCard – $74.06
  • Visa – $212.36

I didn’t think eBay was right for me.
John Donahoe, 17 June 2013



Addendum 9 October 2014

No one here has received anything directly from eBay INC, about their separation into “eBay” and “PayPal”.

Whereas days after the public announcement, Hewlett-Packard sent this Today:

20141009 HP

We’re no fan of Meg Whitman, but Hewlett-Packard does keep it’s customers informed.

eBay INC, ‘not so much.’


No sequel for you.
Jack Slater, Last Action Hero (1993)


Musing Bytes 5 – Laniakea, Kokaku Kidotai, and PayPal

Musing Bytes 5 – Laniakea, Kokaku Kidotai, and PayPal
30 September 2014

“Deep in the fundamental heart of mind and Universe there is a reason.”
Life, the Universe and Everything, 1982, Douglas Adams

Elizabeth Gibney’s Nature.com article “Earth’s new address: ‘Solar System, Milky Way, Laniakea'” started small.

The supercluster of galaxies that includes the Milky Way is 100 times bigger in volume and mass than previously thought, a team of astronomers says. They have mapped the enormous region and given it the name Laniakea — Hawaiian for ‘immeasurable heaven’.

Based on “Tully, R. B., Courtois, H., Hoffman, Y & Pomarède, D. Nature 513, 71–73 (2014).

The topic added dimensions to the question, ‘Is it bigger than a breadbox?’.  Yes, very much bigger.

The super-cluster spans some 520 million light-years in diameter.

Laniakea Photo from Nature.com
View Nature.com video at http://www.youtube.com/embed/rENyyRwxpHo

However The Universe is, Large.  Depending on your concept of “observable universe“, The Universe is approximately “92 billion light-years” in diameter, but Earth based observations have only viewed up to 13.8 billion light-years “in every direction”.

Still Laniakea is big.  Bigger than anything a human would encounter in the day to day world.  There are no hardware stores stocking 500 million to 1 billion light-year tape measures.

And yet Laniakea looks familiar.


“Well, it’s just that the way the Major’s been looking at us lately is kinda scary.”
Tachikoma, Ghost in the Shell

Motoko KusanagiGhost in the Shell, Masamune Shirow
(c) Production I.G., Bandai Entertainment, Madman Entertainment, Manga entertainment

The conceptual view of Laniakea is reminiscent of Major Motoko Kusanagi’s face, during one of her classic falling scenes.

Motoko GITS Ghost in the Shell, Masamune Shirow
(c) Production I.G., Bandai Entertainment, Madman Entertainment, Manga entertainment

Ghost in the Shell, or Kokaku Kidotai, was first written and illustrated in May 1989 by Masamune Shirow.  Making 2014 it’s 25th Anniversary year.

Getting back to to the topic of known space.  The Universe is expanding, not contracting.  An appropriate time sequence would be the Major rising, not falling.  The galaxies have the flow and appearance of water on a woman’s head, as she breaks the surface of a pool of water.

Taking all this to a philosophical conclusion.  Suppose the Laniakea formation was our three dimensional view of “Laniakea”, a mathematically higher dimensional being, entering our Universe and peeking.

The Goddess could use a hair cut.  Guess where?


“We and our board believe the best way to drive long-term shareholder value is to keep eBay and PayPal together, to capitalize on the opportunities”
John Donaohe, eBay INC CEO, January 2014

The news of eBay INC separating into two entities, PayPal and eBay, circulated quickly today.

EBay Inc. (EBAY) is spinning off its PayPal division, throwing the business into direct competition with Apple Inc. (AAPL) and Google Inc. as consumers step up the use of smartphones and computers to pay for goods and services.

Activist shareholder Carl Icahn had pushed for a split earlier this year

eBay and PayPal are going their separate ways. Today eBay announced that its fast-growing PayPal division would be spun off as a new company in 2015.

While many had anticipated this for years, it took the actions of Carl Icahn to spark the separation.

John Donahoe, eBay INC CEO, will handle the separation, and then step down as CEO.

It is likely the announcement of the split was timed to give eBay INC a last minute boost, before the 3rd Quarter expired.

Our guess is John Donahoe and company are angling to sell the de-clawed and devalued version of eBay INC., soon after the separation.


“Donahoe was the wrong man for the job”
David Steiner, EcommerceBytes, 30 September 2014

In a rare show of public disdain, David Steiner of Ecommercebytes.com, started his article “How Will John Donahoe’s Tenure at eBay Be Remembered?” with:

In baseball, there’s a saying after a team has a bad season: You can’t fire the team, you fire the manager. 

John Donahoe’s team at eBay has had a bad season, with growth that didn’t keep pace with its competitors, a public confrontation with investor Carl Icahn, security breaches, site outages,.. you could say that eBay has had a very bad season.

And ended with:

The Donahoe Era was a disaster for small sellers.

Our take on John Donahoe stepping down as eBay INC CEO, and hiding in one or both of the new PayPal and eBay Boards?

There’s something wrong here, there can be no denying
One of us is changing, or maybe we’ve stopped trying

And it’s too late, baby, now it’s too late
Though we really did try to make it
Something inside has died and I can’t hide

And I just can’t fake it
It’s Too Late, 1971, Carol King & Toni Stern

Grab your own business domain and setup shop online.

Before it is too late.


“The thing that’s always worried me about being one of the few is the way we keep on getting fewer.”
Flight Officer David Campbell (Sir Richard Burton), The Longest Day (1962)


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