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ePerks v Vlad: Strategies to Avoid a Viral World War

Published by Joseph Ferrara (2) June 16th, 2008 in Legal. Comments

War does not determine who is right– only who is left. ~Bertrand Russell

The firestorm that has erupted in the real estate net over the ePerks lawsuit against a blogger is spilling over to other blogs, including marketing and foreign blogs. If it hits the major tech blogs, the case could go viral (global). What effect that would have on the company and its brands is anyone’s guess. But many might guess: Not good, if most folks don’t side with you.

I want to share a true story about the potential reach and effect of blogging as citizen journalism.

I had read an article in The New York Times about the demolition of the Bell Labs facility in Holmdel, NJ. I wrote a post why the lab should be saved as a part of tech history. The response was non-existent. It was not until Engadget picked up the story that things began to happen. The news of Bell Labs planned extinction traveled around the world resulting in a worldwide reaction in support of Bell Labs. To make a long story short– the company decided not only to keep the building but to make it the centerpiece of the redevelopment project. They also decided to create a library of Bell Labs artifacts. The reason the redevelopment company CEO gave for the change of heart (I spoke to him)– the response from the Engadget blog post. (the company has since backed out of the contract). I was amazed.

Blogging, as citizen journalism, can rival other media in global reach and have a profound influence and effect. It cannot be overlooked and must be considered when deciding whether to sue.

Alternatives to a Lawsuit: The Court of Google

As an attorney, I believe there is a time and place for a lawsuit. Each case must be examined to see if that is the best way to go, the best for the client’s interest. For one thing, a lawsuit is expensive and unpredictable (judges & juries are human and can be swayed as much by a nice suit as a treatise). For another, you might win and still not collect a dime. And there are other risks, especially if you have an online business.

When deciding whether to sue where there will be repercussions to your online brand, you ought to ask: Will most folks (that matter) side with us in the court of online public opinion? If the answer you sense is “No”– you should not sue, in my opinion. Google ranked bad press, via search engine traffic to negative posts, can be devastating, even if you win in the real life world of lawyers and judges. For one thing, lawyers and judges may not be your target market— but the folks that stood against you online might be. For another, some of these online folks know how to SEO their content and can rule Google’s first 10 pages for a long time, while your lawyerly defense may be on page 30 (where few will ever see it). The Court of Google is the online equivalent of the court of public opinion. If you depend on online business, that is the court where you must win.

How I Would Have Advised ePerks: Tested Solutions

Let me begin by saying I am not suggesting that ePerks present attorney did not advise similarly. Perhaps he did, perhaps he didn’t– I have no way of knowing — and it is privileged information between attorney and client. And the client makes the final call.

The Gibbonsesque Solution: Bend it Like David

Whirling Dervish

If I were ePerks counsel, I would have suggested doing battle directly on the blog posts, mano y mano, so as to keep the fighting localized and spinnable. Zillow has employed David G in this way to do blog battle against dissenters, spread goodzill and spin the issues like a whirling dervish. In this way, online opinion becomes fragmented, with many buying the company line. Without a spin master, the local battle can spill over into several battles and ultimately into war, as others join the fight against a perceived common enemy. Eventually, the web fronts become too many to defend, even for a chap like Gibbons. Before you know it, you have a virtual world war on your hands.

And what’s next? Well, mainstream media news loves covering wars (and lawsuits) of all kinds– with the stories running over and over. Now the shitake really hits the fan— mainstream media news is a tsunami compared to the Mavericks-like blogger waves you have to surf. Does a client want this? Is it in their best interest? Will the brand survive the flood?

The Glenn Kelman Sorry Solution: It’s Hard to Kick a Kneeling Man

Another alternative, and the one I would have strongly recommended, would have been a private & public apology “for the misunderstanding/mistake /overreaction” with a “what can we do to make it right” offer. This Sorry Solution has been honed to a science by Redfin’s Glenn Kelman. His masterly mea culpas have deflected more deadly bullets than Kevlar. If anyone can bend over like a man it’s Glenn. Making peace by verbal surrender has several positive effects. It shows you have a heart and can admit when you are wrong. It might also result in the blogger posting that he has forgiven you. Soon everyone joins in the forgiveness and gets back to work. What’s great about the sorry solution, as Glenn has proven, it’s reusable.

In closing, I think it’s rarely too late to say you’re sorry and end the story, and get back to selling more stuff. Make money, not war.

Just this bloke’s opinion.

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  • I am actually surprised it hasn't spread further among affiliate marketing blogs, as Vlad has a huge amount of friends in Affiliate Marketing.

    The US legal system instills a significant amount of fear (some would call it common sense) over speaking out, even as far as things like social media voting.

    I suppose some of the reluctance is certainly due to this being connected to real estate - realtors are a service industry that the general public doesn't care for very much, along with lawyers

    One of the problems for ePerks is how much clearing up they have to do, if those IP addresses are connected to them.

    If they had taken the "kneel and pray" option a few months ago, owned up to a marketing mistake, and had the owners directly addressing the concerns (even if an uphill battle), they would have garnered a lot more respect rather than ridicule.

    One thing that is clear to me as an outsider from a real estate perspective, there was a lot of negative sentiment building well before Vlad even first contemplated putting fingers to keyboard, Vlad's blog just became the outlet for negativity in his comment area.

    Will this go virally internationally? I believe there is more chance of international than national.
  • Andy

    You are right about the general public perception of the real estate and legal industries but I think the case is newsworthy. I expect it would have gotten better coverage in free speech circles, like the mainstream press. Perhaps not enough telephone calls were placed. (Folks in the press still use the telly)

    Even with the vented negativity, they would have done better with a PR spin master like Zillow's David G (the strong arm approach does not work with everyone-- I sensed that from Vlad's reaction to the C&D; letter). IMO, Zillow has had much more negative publicity than ePerks, yet it has weathered the storm in large part because of folks like David G & Drew Meyers. A lesson to be learned for any company coming into the space. Get a web savvy PR person & set them up with a bunch of Google alerts to run down.

    Do you think the Sorry Solution could work now? It would save Vlad substantial legal fees and possibly stem the flow before it has a chance to gain momentum and reach the channels of mass media. They would also save themselves from the (good) chance the case is booted on procedural grounds or lost outright via a motion for summary judgment or trial.

    IMO the case is a weak one, despite the sensational pedophile post-- if anything, I believe juries will sympathize with the person accused of such a crime, not a big company (as a trial lawyer, I studied jury psychology). I never would have advised them to sue for damages (how can they collect?). If the client was intent on suing, I would have advised suing for a retraction and removal of the post-- makes more sense to me and can be more easily spun as a protective act-- suing for money but leaving the post there, with no retraction, sends the wrong message, I think. Anyway, that's the way I would have practiced law in this case. The client and atty obviously thought differently. And who is to say I am right and they are wrong. That revelation will come to all of us later.

    IMO, the case could go national in several ways---the wire services could pick it up, big city news media (LA, NY), someone could post a clever YouTube video, any major influencer or top tier tech blog might cover it. I think what did help ePerks was leaving out the money damages figure-- I would have done it that way too-- news media love throwing out big numbers-- Blogger Sued for $25 Million sounds a lot better than Blogger Sued for Whatever the Court Gives Them.

    Anyway, I am curious to see how this plays out. I do wish ePerks would back off and try to repair their image on that gesture than drag a case that somewhere along the line runs the risk of what would leave no survivors.

    Thanks for the thoughtful comment Andy.
  • Hi Joe,

    I get a real kick out of being called a spin-doctor. The truth is that if I had a PR background I would probably suck at what I do. Customer service is more relevant experience than PR when it comes to social media marketing. Treating bloggers the way you do journalists is a mistake. A blog post is typically a first-person account of your product or company and so a conversation with a blogger is more likely to be a customer service interaction than a PR opportunity.

    For comment marketing to work you have to directly address the blogger's issues and that brings you straight back to the court of public opinion. Don't waste your time with comments if you know that a reasonable man would not stand by you. If you know you are wrong, all the comments in the world won't save you (unless your apologizing.) As I said at a recent conference on biz-blogging; if you have an evil business model don't bother starting a blog. Blogging only works when you are honest, transparent and creating real value for your customers. The only appropriate response when you've screwed up is to apologize and correct your mistake.

    This ePerks case is a real mess at this stage. I'm not close enough to the details but from what little I've read I would doubt that comment marketing could have helped. It's really surprising that what started with a simple paid blogging engagement could end so badly.
  • Hi David

    I think your work in the area of customer relations/pr/spin doctoring is unrivaled. Gibbonsesque should go down in the Google record as defining excellence in the field.
  • Anything I can do to help spread the word even further?

    I have a real thing about powerfull bullies. Let's just say they upset me somewhat. Therefore once I see said bullying something inside me demands I pour effort into addressing it.
  • @Lord Matt You could contact the mainstream media to see if they deem it newsworthy. But, sometimes publicity causes the parties to dig in deeper. When the glare of the media spotlight is turned off, the parties often reach a settlement. In this case, who knows.
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