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Industry Experts: Friend or Foe? Why We Need To Know

Industry events provide us with an opportunity to gain knowledge about our industry as well as networking opportunities. Not only do we (hopefully) learn more about affiliate marketing, such events also provide press, public relations and marketing opportunities for affiliate marketing itself. Enter stage left Davis & Gilbert LLP, a New York based law firm specializing in marketing communications law. One of their practice groups is New Media, which focuses on all that encompasses Internet Law. Davis & Gilbert are expert speakers at not only Affiliate Marketing events, but also online advertising/marketing events in general. There are after all, as most of us know, numerous legal issues involved with Internet Marketing and Advertising. Gary Kibel  is an associate of Davis & Gilbert specializing in this area. He has been visible in the Affiliate Marketing Industry as an expert speaker. Indeed his accomplishments are quite impressive and he has no doubt been a resource through his speaking engagements to online marketers. Some of his accomplishments include:

That is just a sampling of Kibel’s accomplishments and interaction within the online marketing. It is rather impressive and such a resource for those of us concerned with many of the legal and fraud issues facing us in affiliate marketing and online advertising. However there is one thing that is missing from that list of accomplishments for Davis & Gilbert as well as for Kibel. Enter stage right DirectRevenue. The much beloved by consumers adware company. Davis & Gilbert are also outside legal counsel for DirectRevenue. The adware company that tracks user’s online surfing, utilizes behavioral and contextual tactics to deliver pop up ads, at times uses Merchant’s trademarks to trigger ad delivery, provides a platform for popping ads on competitor’s web sites and pops PPCSE results through their software. In a nutshell, DirectRevenue engages in many of the activities which were the topics in the above list of Kibel’s accomplishments. In the class action lawsuit filed by Shawn Collins (not to be confused with Shawn Collins of AffiliateSummit) on behalf of consumers against DirectRevenue, it’s Davis & Gilbert’s name on the press release regarding the settlement of the case  as well as their name on a motion of a protective order by DirectRevenue in the case. Back in 2004, their name also appears on documents in the Avenue Media lawsuit against DirectRevenue. And then there’s the recently filed suit by NY Attorney General Elliot Spitzer against DirectRevenue…… Enter center stage Patrick Jordan. Jordan now works with Sunbelt as a Senior Spyware Research Analyst, but is probably best known in the anti-spyware/adware field as webhelper of the WebHelper4U web site. Much of what is known about the tactics utilized by DirectRevenue’s software can be attributed to Jordan’s research over the years. Not so surprising, DirectRevenue evidently wasn’t too pleased with the information being posted by Jordan on his web site, although at that time his true identity wasn’t known. So it seems that DirectRevenue made it a point to find out who this webhelper person really was and hired a private investigator to find out. That is not a totally earth shattering revelation in and of itself. It’s not so uncommon for businesses to hire private investigators to find out information on others related to their business. And it’s certainly not an unheard of event for those who do research on adware/spyware. I have personally had a private investigator knock on my front door that was hired by an adware company. And I’m not alone. Re-entering on center stage, Gary Kibel. However, what is really disconcerting for me (even more so than the already established connections between Davis & Gilbert with DirectRevenue) is Kibel being involved in the Jordan business. In the mass of documents coming out of the Spitzer suit against DirectRevenue, is an email dated May 31, 2005 from Gary Kibel to Joshua Abram (then CEO of DirectRevenue) from Gary’s email address at Davis & Gilbert. This email states:

Subject:  RE: Security Firm They gave me a preliminary oral report on welhelper4u.com on Friday which they will follow up with a written report this week. Briefly, the person, Patrick Jordan, is located in Florida. The address in the WHOIS is a Mailbox, Etc. location, but they have obtained his true home address. He may be a tech person working for Jackson Hewitt (the tax company). He is about 50 years old. Once we get all the information together, perhaps a letter to his true home address showing that we know more about him will have some results. As soon as I get the written report, I will share it with you. Thanks, -gary

Now if this email had said they were going to send a C&D to the Whois address for the webhelper4u web site or something along those lines, then I would have to lean towards appropriate legal avenues being pursued, regardless if I agreed with the business practices of DirectRevenue. Although IANAL, it would seem that the information on Jordan’s site would need to have been deficient in its factual content for DirectRevenue to have an appropriate legal avenue to go down. It’s the “a letter to his true home address showing that we know more about him will have some results” part that for me makes it appear to be more of throwing out the idea of intimidation tactics rather than true legal recourse. The letter apparently never happened. For me, it’s the fact that the email ever even happened. I’m not naive that these types of things happen or that they are considered. I did have that PI knock on my own front door. BUT and this is a big but in my opinion, in this particular instance the idea was put forth by someone who is considered an expert in our industry. Not only that, this is a person who was has spoken extensively within our industry on topics that on the surface seem geared toward fraud protection, protecting oneself in the online advertising legal arena and the such. There has been an increasing amount of talk over the last few years about Merchant’s needing to know who they are actually doing business with to protect their own business model and insulate themselves against questionable practices engaged in by some affiliates. It would seem that the same might hold true for our industry experts and speakers. Especially when our industry is being increasingly looked at from outside parties because of those very same questionable practices. Is it good for our industry to have someone whom has a high profile from lecturing on topics which could viewed as best practice issues being connected with all the DirectRevenue dirty laundry? Maybe Kibel can recommend a good security firm so we can run thorough checks before speakers are engaged..

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