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Archive for September, 2007

The Odysseus Medal competition — Voting for the People’s Choice Award is open

This was a great week. It wasn’t easy getting to a short list of twenty nominees, and I think it’s going to be particularly tough to pick an ultimate winner. I can’t imagine it will be any easier for you to vote for the People’s Choice Award.

What gets a weblog entry onto this list? Good writing, serious content — and especially both. There’s always room for something light-hearted if it’s very well written, but if you’re taking on a matter of true moment, I’m pretty forgiving about the niceties. My admitted bias is toward a deeper understanding of this thing we’re doing, real estate in the twenty-first century.

Vote for the People’s Choice Award here. You can use the voting interface to see each nominated post, so comparison is easy.

Voting runs through to 12 Noon PDT/MST Monday. I’ll announce the winners of this week’s awards soon thereafter.

Here is this week’s short-list of Odysseus Medal nominees:

< ?PHP $entries = array ( "Dan Melson -- Sellers pays commissions Why the Real Estate Buyers Agent’s Commission is Paid by the Seller”,
“Brian Brady — Advertising to Ashley
Advertising to Ashley“,
“Jonathan Dalton — Real estate 2.0 Real Estate 2.0 and the Phoenix Real Estate Consumer“,
“Dustin Luther — Make an impact 7 Ways to Make an Impact“,
“Jay Thompson — Aaron Anglin Tragedy Begets Triumph: Why I Love this Community“,
“Jay Thompson — Refrigerator service How to Save $94 on Refrigerator Service“,
“Joel Burslem — ActiveRain/Move Tried to Buy ActiveRain“,
“Michael Wurzer — Standards and monopolies Good Standards Break Monopolies, Not Make Them“,
“Daniel Rothamel — Facebook Why Your Answer to, “Are You on Facebook?” Will Determine the Fate of Your Business in 10 Years or Sooner“,
“Jim Watkins — Down market? Down Sales Market? Think Outside the Box“,
“Bill Leider — Opportunity costs Internet Marketing And Opportunity Cost – Connecting The Dots“,
“Steve Leung — Hidden factors Hidden Factors When Calculating a Home’s Value“,
“Jillayne Schlicke — Deceptive advertising Deceptive Radio Advertising in Mortgage Lending“,
“Patrick Kapowich — Realtor licensing Inside the Santa Clara County Association of Realtors’ Convention. Buyer beware? No. It’s Licensees Beware.“,
“Jeff Brown — Double-edged sword Double-Edged Sword — OR — Planning & Discipline — What Does Your Retirement Look Like?“,
“Dan Green — Data is granular Why Real Estate Data Is Granular And Not Mosaic, Or One More Reason To Stop Reading Real Estate Headlines“,
“Brian Brady — Cleaning up lending Realtors Hold the Power to Clean Up Lending“,
“Kelly Roark — Agent 2.0 Agent 2.0: not-so-clever play on ‘Web 2.0’ or the future of real estate marketing?“,
“Brian Wilson — Redfin [Redfin] “I coulda been a contender…”“,
“Morgan Brown — Stalling on foreclosures Are Lenders Deliberately Stalling on Foreclosures?

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    Deadline for next week’s competition is Sunday at 12 Noon PDT/MST. You can nominate your own weblog entry or any post you admire here.

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  • The Odysseus Medal competition — The long list

    We had a lot of news this week, some tragic, some comical. All of it and then some is represented here. This is “the long list” — the total list of nominees that made the cut to be considered for the short list, the nominees available for voting for The People’s Choice Award.

    What gets cut from this list? Posts that are too short, too stoopid, too much local or too much other people’s work. Even so, making this list of entries is an achievement, as you’ll see as you read them. There are some very serious minds out there, and it’s a delight to be able to showcase them.

    For Aaron Anglin, may he rest in peace, the Ave Maria:

    Ave Maria, gratia plena,
    Dominus tecum,
    benedicta tu in mulieribus,
    et benedictus fructus ventris tui Iesus.
    Sancta Maria mater Dei,
    ora pro nobis peccatoribus, nunc, et in hora mortis nostrae.

    And for all the ActiveRainers who may yet find themselves left out in the cold, here is a link to Roger Miller singing The Ballad of Waterhole #3 (The Code of the West).

    With that, the long list:

    < ?PHP $AltEntries = array ( "Dan Melson -- Sellers pays commissions Why the Real Estate Buyers Agent’s Commission is Paid by the Seller”,
    “Brian Brady — Debunking Guttentag
    Debunking Guttentag“,
    “Dan Green — Fed Funds Rate How Setting The Fed Funds Rate Is Like Shooting Free Throws With Your Eyes Closed“,
    “Kelly Roark — Agent 2.0 Agent 2.0: not-so-clever play on ‘Web 2.0’ or the future of real estate marketing?“,
    “Brian Wilson — Redfin [Redfin] “I coulda been a contender…”“,
    “Erik Hersman — RealUmbrella Creating the Ultimate Real Estate Disintermediator“,
    “Jillayne Schlicke — Deceptive advertising Deceptive Radio Advertising in Mortgage Lending“,
    “Ron Ares — Rent vs buy Addressing the Rent vs. Buy Conundrum“,
    “Patrick Kapowich — Realtor licensing Inside the Santa Clara County Association of Realtors’ Convention. Buyer beware? No. It’s Licensees Beware.“,
    “Jeff Brown — Double-edged sword Double-Edged Sword — OR — Planning & Discipline — What Does Your Retirement Look Like?“,
    “Dan Green — Visa credit scoring How Visa USA Tried To Scare Us All Into Using Its Credit Scoring Web Site“,
    “Morgan Brown — Housing glut Housing Glut, Lennar Revenue off 44%, Other Goodies“,
    “Dustin Luther — Make an impact 7 Ways to Make an Impact“,
    “Morgan Brown — Mortgage fraud When people get desperate, all bets are off.“,
    “Dan Green — Data is granular Why Real Estate Data Is Granular And Not Mosaic, Or One More Reason To Stop Reading Real Estate Headlines“,
    “Dan Melson — NegAm loans Trying to Rehabilitate the Negative Amortization Loan – NOT!“,
    “Jonathan Dalton — Sgt. Hulka Sergeant Hulka and the Phoenix Real Estate Agent“,
    “Daniel Rothamel — Facebook Why Your Answer to, “Are You on Facebook?” Will Determine the Fate of Your Business in 10 Years or Sooner“,
    “Brian Brady — Jumping off a cliff Small Steps Today Prevent Jumping Off A Cliff Tomorrow“,
    “Jim Watkins — Down market? Down Sales Market? Think Outside the Box“,
    “Jeff Brown — Little things Real Estate Investors — The Little Things Count — Big Time“,
    “Doug Quance — How low? Ask The Broker: How Much Below The List Price Should We Offer?“,
    “Bill Leider — Opportunity costs Internet Marketing And Opportunity Cost – Connecting The Dots“,
    “Jonathan Dalton — Princess will come Someday My Princess Will Come…“,
    “Larry Cragun — Foxtons A Darling Of Discount Real Estate Rides Into The Sunset“,
    “Steve Leung — Hidden factors Hidden Factors When Calculating a Home’s Value“,
    “Michael Wurzer — Standards and monopolies Good Standards Break Monopolies, Not Make Them“,
    “Greg Kilwein — Wireless MLS Wireless Usage On The Rise“,
    “Kevin Boer — Reaping the fruits Reaping The Fruits Of Others’ Labor? Or Adding Value To It?“,
    “Jonathan Dalton — Real estate 2.0 Real Estate 2.0 and the Phoenix Real Estate Consumer“,
    “Joel Burslem — ActiveRain/Move Tried to Buy ActiveRain“,
    “Trevor Curran — Old is the new new Everything That Was OLD is NEW again.“,
    “Teri Lussier — Huber Heights 2.0 My life online and how you too, can create a Huber Heights 2.0“,
    “Kevin Boer — Foxtons/AR/Move Today’s Real Estate Gossip: Does A Microsoft; Foxtons Does A Countrywide“,
    “Morgan Brown — FHA bailout A Bail Out is Still a Bail Out by Any Other Name“,
    “Russell Shaw — Foxtons Foxtons Almost Gone – About to Become a Footnote in Real Estate History“,
    “Brian Brady — Using AR for profit v. The Duplicity at“,
    “Brian Brady — AR wuz robbed Active Rain Wuz Robbed“,
    “Brian Brady — Advertising to Ashley Advertising to Ashley“,
    “Brian Brady — NAR and lending Can the NAR Improve a Buyer’s Financing Experience?

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  • Get your Odysseus Medal nominations in now for change is nigh

    Jay Thompson fingered this comment from someone named Brandon writing at TechCrunch:

    If “the good guys” succeed in “fixing the most screwed up industry in America”, their business model will collapse. Redfin’s success depends SOLELY on the real estate industry STAYING the most screwed up industry in America.

    Without a co-broker fee of 2-3% to the buyer broker, Redfin will not have anything to refund to their buyers. Using the example on the Redfin home page, if the home is for sale by owner or listed with Redfin for $3000-$4000 flat fee, they have no way to refund the buyer the $10,000 they’re using in their “typical” example.

    Go lookup Bloodhound Blog if you want really insightful info on the real estate industry (including how screwed up parts of it really are) and how Redfin’s model falls down. An no, I am not affiliated with Bloodhound in any way – just a loyal reader.

    Ah, well, we have a lot of interesting ideas for changes in the real estate industry, but I can’t imagine that any of them will be implemented in the next couple of days. Even so, get your Odysseus Medal nominations in now. Deadline is today at 12 Noon PDT/MST. If you know of something worthy of recognition, your own work or someone else’s, nominate it now while it’s on your mind — and before the entire universe is upended.

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    Foxtons Almost Gone – About to Become a Footnote in Real Estate History

    Some of the “we do nothing for less crowd” got very good at marketing themselves to the broad public. They did this at a time when the average busboy or cab driver could have easily listed and sold a house. A few short years ago it was uncertain if the market disruption “full service at a much lower price” companies (yes really, service that is just beyond belief) had gotten a meaningful toehold and were here to stay.

    That question is being answered again and again on a daily basis. Foxtons announcement that they were filing bankruptcy is one of my favorites. I don’t like them and I am quite delighted they have failed utterly. It isn’t often that I take delight in any company failing but for them (and anyone like them) I make an exception. They did everything they could to ruin the lives of others.

    I want to be very clear on this, I am NOT “against discounters”. I was giving a talk the other day to a group of Realtors and mentioned Foxtons having already closed one office completely and now it looked like they were going to be gone for good. One member of the audience immediately said something about ZIP Realty. Totally different situation. Just totally different. Yes, I inadvertently started a fire (that may never go out) when I wrote this post, but I have nothing against ZIP, and neither does the public. Further, any competing agents who have lost business to them lost it fair and square. ZIP has a website that the public LOVES. Really. We’ve had several potential clients mention to us how much they liked the ZIP Realty site. We have had numerous cross sales with ZIP agents and have had nothing but completely professional people on the other side of any transaction we have ever had with them.

    What then is the difference I am protesting here? Why would I have nothing against Help-U-Sell, Assist 2 Sell , ZIP Realty and find Foxtons to be so despicable that I am delighted they are shutting their doors in the United States? Simple, Foxtons did not play fair. Foxtons originally offered no commission for a co-broke but had their listings in MLS. They were then charging a total of 2% commission. After a dust up they raised their prices to 3% and paid a 1% co-broke. This in markets where a competitive co-broke commission was 3%. So far, so good. Then when the other brokers and agents in the areas they operated in tried only paying them 1% when they brought a buyer to the table on a co-broke listing, Foxtons cried, “No fair”! This is clearly “unethical” to single us out. We will go to NAR and the government to get this terrible practice to stop at once!

    It was OK for them to do it to others. That was really just fine. But it must not be done to them. No, that is just not right. It is OK if we take money out of the pockets of hard working people who are just trying to feed their families. Hell, they are just salespeople, what difference does it make? They don’t really deserve the money anyway. Please understand, they weren’t taking the money away from “rich people”. One can’t take money away from “rich people” Rich people aren’t the ones that suffer. Working parents (who are Realtors) who probably make about the same amount of money per year as a bricklayer, that is who they were pushing around. Rich people and rich companies don’t get pushed around.

    They won’t be the last of the “polished weasel companies” to shut their doors. I’m glad about that too. Here are the only tears that need to ever be shed for them:

    crying smiley

    15 comments v. The Duplicity at

    In an effort to placate angry users, Active Rain announces that the content is owned by the author; not the network. This isolates the membership roster as the only valuable asset in the failed sales to

    The platform is not proprietary, the content was never owned (and couldn’t legally be “sold”), and the points scheme is not unique; and Yahoo!Answers use similar systems. So…The membership roster seems to be the $33 million asset.

    Six hundred bucks a name. Wow! So it was just a membership play, huh? I’m not buying that. I think the content clarification announcement is kind of like closing the barn door after the horse ran away. I think Active Rain fully intended to profit off of my words but I don’t care.

    Today, Jon Washburn defines the future after he got caught with his hand in the cookie jar. His pandering to the members neglects to recognize the members’ need for the network. He should have said, “Hey! I did it for the money!”  Could have profited off the 50,000 users? Certainly, most of the content would have stayed. Here’s why: The members’ motives for blogging on Active Rain were in line with the owners of the network’s motivation- Money.

    Now, as a raving fan of the network, I’m prone to blurt the childish socialist mantra, “It’s MY community!” like any other happy Active Rainer. However, deep in the bowels of my conscience, the truth persists like a nagging mother.

    You and I used Active Rain. We did it for the money. We did it for the allure of our names on the top of the search engines, for the leads that were sent our way, for the networking opportunities that materialized, and for the warm happy, fuzzy feeling that we got when we engaged in an activity that felt like marketing. You used Active Rain and I used Active Rain and that is perfectly fine.

    What isn’t fine, is that Active Rainers are pissed that the boys wanted to set up their grandchildren with’s largesse.

    Everybody knew that the network was not making money. One look around and you could see that there was no revenue generator. Even an unlicensed loan originator could do the math and understand that the oxygen was getting scarce in the biosphere that is Active Rain.

    Cum finis est licitus, etiam media sunt licita. The ends justify the means. If Active Rain were sold to tomorrow, I’d most likely be out on the street; I’m no Realtor. would sell the rights to write articles to Countrywide or some other big mortgage company with deeper pockets than mine. I’m one the the top five mortgage contributors to the Network but I’m still not bitter.

    I asked these nagging questions back in November of 2006. It was clear to me then what is materializing to Active Rainers today- Matt Heaton and Jon Washburn want to get rich off of my intellectual property. They may sell the network to, they may syndicate blog feeds to, they may syndicate my content to Countrywide or Wells Fargo. I’m cool with that. Let’s just be honest and admit that to each other.

    I got’s mine, they’re just tryin’ to gets their’s – Good luck in the monetization, boys.

    Oh, while I did it for the money, I have met a lot of nice people along the way.
    < ?PHP include("ActiveRainMoveSaga.php"); ?>


    You can view or download mirrored copies of ActiveRain’s complaint and Move, Inc.’s response at BloodhoundBlog

    The PDF files of ActiveRain’s complaint against Move, Inc., and Move’s response, both attested to be linked from ActiveRain, are no longer there. (See comment below from Jonathan Washburn; the disappearance was apparently inadvertent.)

    I am fairly reliably paranoid about crap like this, so I took copies of the two files while they were still available.

    Here is ActiveRain’s petition of complaint.

    And here is Move, Inc.’s response to that petition.

    As someone pointed out the other day, these documents are public records in the State of California, available for inspection by anyone in the jurisdiction where they were filed.

    On the other hand, these particular scanned PDF representations of those documents are presumably the work product of ActiveRain.

    Whether the added labor of scanning the documents and rendering them as PDF files grants ActiveRain (or anyone) copyright protection is a colorable argument.

    However: I will happily remove them upon receipt of a Cease and Desist Order from either party’s attorneys, replacing the documents with a scanned copy of that Cease and Desist Order.

    Welcome to the wide-open world of weblogging…
    < ?PHP include("ActiveRainMoveSaga.php"); ?>

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    The voices of bitter experience: ActiveRain’s petition against Move, Inc., is a heart-breaking sob story with no legal merit

    I’ve read ActiveRain’s lawsuit against Move, Inc., twice now. I had thought that I might parse the document, to show its fundamental weaknesses, but this isn’t necessary. It’s so weak that we can knock the whole thing down in a few paragraphs.

    The gist of the document is an extended sob story of how ActiveRain wuz done wrong. This might seem meaningful in a newspaper story or a dinner party anecdote, but it don’t mean squat to a judge. In a courtroom, every story is a sob story. Everyone, it turns out, is ‘left in a maimed and disadvantaged position’ — doomed to a grubby, grungy, loveless life in a wheelchair, begging for quarters down at the bus station.

    Here’s a summary of the thing. People so much want to judge issues of fact by their emotions, but this is a fair — if comical — run down of the actual facts, take them for what you will.

    Notable omissions

    AR petitioned for a jury trial, but their best possible outcome would be either a bench ruling or a directed verdict. Legal pleadings are written for judges, not casual readers, newspaper reporters or dinner party conversants. In fact, many lawsuit petitions take this form, just enough to get to court with the case to come later. But if AR really had a slam dunk case against Move, I would expect to see some evidence of it. The attorneys do, however, try to hold Move accountable for violations of a Washington State statute in paragraphs 67 through 74. I think the actual purpose of this is well-poisoning, to make a number of smarmy assertions about the behavior of past Move, Inc., executives.*

    The complaint itself

    This is the essence of the complaint:

    • Upon verbal overtures from Move, ActiveRain agreed to sell all its assets to Move
    • Move and ActiveRain executed a Non-Disclosure Agreement, in consideration for which AR revealed confidential business information so that Move could do its due diligence on the acquisition
    • Subsequently, Move provided AR with a Letter of Intent to purchase the company, specifying the price and detailing other terms and conditions
    • The NDA and the Letter of Intent are the only acquisition documents cited in the complaint
    • ActiveRain voluntarily supplied Move with every bit of information Move sought from it
    • Move’s requests for information were spaced over a fairly significant span of time
    • As a part of the acquisition process — it is unclear if these terms were made in writing — Move apparently asked AR to curtail its development and investment activities, to not compete directly against Move, and to not seek other potential suitors
    • ActiveRain complied with all of these requests voluntarily
    • In response to or at least subsequent to ActiveRain’s disclosures, Move, Inc., cancelled the planned acquisition
    • ActiveRain claims first that Move never actually intended to acquire it, that it sought the disclosure items in order to unfairly compete against AR, and that Move is now deploying AR’s confidential information in its own multi-user blogging platform
    • ActiveRain seeks injunctive and compensatory relief, the latter in the amount of $33 million

    What’s wrong with this picture?

    • A verbal agreement isn’t worth the paper its printed on
    • A non-disclosure agreement is the next best thing to toilet paper
    • A Letter of Intent is not a purchase contract
    • By its own admission, AR was flying by the seat of its pants, possibly revealing confidential business information in advance of any written agreements, relying for its protection on documents that must be very brief and vague, and releasing greater and more detailed quantities of information without any additional contingencies or written assurances
    • My surmise is that once AR coughed up the true facts about its user base, detailed in paragraphs 26 and 27 of the complaint, some drunk at Move accidentally fell on his calculator and discovered that Move was about to spend $30 million to buy an empty store
    • There is no evidence — nor does AR cite any — that Move is using AR’s confidential information in its business
    • The specific claim that Move’s multi-user blogging platform is based on ActiveRain technology is patently false; Move is using WordPress Multi-User, which it has been using at various sites in its network for more than a year
    • Ultimately, the ActiveRain lament is this: Even thought Move swore it really loved us, it really wanted to marry an heiress; when it found out we’re just the girl next door, it dumped us

    I am not a lawyer, but I don’t see anything actionable in ActiveRain’s petition. It acted with a girl-next-doors’s naivete, to be sure, but this is not Move, Inc.’s fault. If Move is making some nefarious use of AR’s confidential information, there is no obvious evidence of it, nor does AR cite any evidence of it, nor is there any indication that, if Move were using that information, that it would be doing so in violation of either the NDA or the Letter of intent.

    What really happened in that ActiveRain believed in the idea of negotiation as portrayed in the movies, as opposed the idea of negotiation mandated by the Statute of Frauds. The owners of ActiveRain cast themselves in the starring roles in a morality play about the foolhardiness of verbal contracts. My guess is they didn’t read ahead to the third act of that drama.

    A better way

    We’re Realtors. We write contracts every day. We write contracts because we know that the memory is faulty even when people have the best of intentions. We write contracts because, even though everyone loves each other now, the love might not last through the home inspection. We write contracts so that we won’t have to write sob stories to judges who have heard it all before a hundred times. We write contracts because we have brains, a business asset apparently unavailable at ActiveRain HQ.

    So: If we were representing ActiveRain in a potential acquisition by Move, Inc., what might we do?

    • How about a real purchase contract for one thing, specifying everything down to the last tittle and jot?
    • I like a non-refundable earnest deposit of, say, 10% in a circumstance like this; it’s understood that, if the acquisition were not to go through, AR would be shop-worn; it deserves to be compensated for taking that risk
    • The DNA of an NDA is maybe three chromosomes, total; what AR needed was a detailed non-compete agreement: You want to dance with us, you agree to hang up your dancing shoes for three years; this would have brought the acquisition price down, but the chances for a successful buy-out would have soared
    • The amount of data to be disclosed should have been specified in detail, with no voluntary exceptions on AR’s part
    • The closing date should have been fixed at a date certain, with the deal canceling and AR retaining the earnest deposit if Move had not performed by that date

    This is not hard, which is why I think ActiveRain’s best lawsuit is against whomever advised them on the acquisition process. I’m sure people reading this can come up with other, better terms — and just think what a professional Mergers and Acquisitions attorney might draft.

    Would Move, Inc., agree to all of these terms? Maybe not. But, at a minimum, ActiveRain could have done a great deal more to protect its interests and future marketability. And, even better, it might have discovered early in the process that it was bargaining with corporate sleazoids, people not to be trusted under any circumstances.

    (Question for the house: Who doesn’t know that Move, Inc., is run by pond scum?)

    So: Was ActiveRain actively trying to cheat the cheaters? I don’t believe it. I think they were just wide-eyed and stupid.

    I don’t think their legal petition has any merit, but I do think the NAR should pay them a ton of money to star in its commercials. Like this:

    HEATON: I’m Matt Heaton

    WASHBURN: And I’m Jonathan Washburn

    HEATON: We’re the voices of bitter experience

    WASHBURN: Reminding you



    HEATON: Without representation

    WASHBURN: You could lose a lot more than your house…

    As always, nothing would please me more than to be wrong about this. But I don’t think I am…

    *I edited my original text in this section to pull the teeth from specious straw-man arguments in the comments below.
    < ?PHP include("ActiveRainMoveSaga.php"); ?>

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    27 comments v. Where’s Caleb?

    Caleb Mardini was one of the founders of Active Rain. He played a significant role in the expansion of the network, offering weblogging tips and serving as one of the “community cops”. I’ve always been a Caleb fan because he was a sales guy; he sold real estate and originated loans before his tenure with Active Rain. He was the pivotal link between the tekkie-type owners and sales-type users.

    Here’s Caleb swelling with pride about the sales profession:

    Sales people should be celebrated. There are bad sales people I know. But they don’t represent what I did when selling. They shouldn’t be able to ruin the profession for me, or any other honest hard working professional out there. There are a whole lot of sales people who are making a difference in this world. They are doing a lot to assist people making important and life impacting decisions. In my recent past I took great pride in telling people I was a sales person. Sales is terrific and it makes the world go around. I have to say that as a sales person I took great pride telling people that I was in sales

    How does a founding partner quit, in the midst of an obvious windfall, a mere week after he represented the Network in Louisiana?

    Is Jon pulling a Michael Corleone ? Did Caleb throw in the towel because he recognized a no win situation?

    If the former supposition is true, that a pretty crappy thing to do. If it’s the latter, then this trial is over before it got started.

    Greg Swann raised the stakes by pointing out that Active Rain has thrown this lawsuit into the court of public opinion. Elevating its membership to advocates is risky. Public support and misplaced outrage has divided the community. Members are questioning whether the commitment they’ve made to the network was really worth it.

    I’ve pointed out that Dustin’s existence at compromises its claim of innocence; Caleb’s sudden departure from Active Rain equally undermines the court of public opinion’s confidence in the veracity of the Network’s claim.

    One thing is certain; this lawsuit is no longer a private matter. That privacy was usurped when the line was drawn in the sand in front of the stakeholders.

    The matter can be cleared up with the stroke of a key.
    < ?PHP include("ActiveRainMoveSaga.php"); ?>


    If you don’t want to get trampled . . .

    …do not come between the NAR and Hillary Clinton’s scheme to give every newborn child a $5,000 savings account:

    Democratic presidential candidate Hillary Rodham Clinton said Friday that every child born in the United States should get a $5,000 “baby bond” from the government to help pay for future costs of college or buying a home.

    Clinton, her party’s front-runner in the 2008 race, made the suggestion during a forum hosted by the Congressional Black Caucus.

    “I like the idea of giving every baby born in America a $5,000 account that will grow over time, so that when that young person turns 18 if they have finished high school they will be able to access it to go to college or maybe they will be able to make that downpayment on their first home,” she said.

    The magic words are “downpayment on their first home.” There is no liberty the NAR won’t trample to juice the housing market. The obvious fact that the people taxed to provide these “baby bonds” will buy fewer and smaller homes — and will have substantially smaller portfolios to invest in commercial real estate — will not dawn on the dolts.

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    Looking for a bargain-priced home? If you don’t Flinch!, the seller will

    This is my column this week from the Arizona Republic (permanent link):

    Looking for a bargain-priced home? If you don’t Flinch!, the seller will

    Let’s talk a little bit about buying strategies. Last week’s rate adjustments by the Federal Reserve Bank may have scared up a few buyers. I’m taking a lot of calls from Canada, and investors seem to be trying to time the bottom of the market.

    Here’s a simple idea: If you were to buy a newer three bedroom, two bath stucco-and-tile suburban tract home for $160,000, putting 20% down, it would be cash-flow positive at $850 a month rent. That includes everything, mortgage, HOA, taxes, maintenance, vacancy — everything. The positive cash-flow would net out to about $5 a month after taxes, but the point is that the Phoenix real estate market is back to the point where a rental home is self-amortizing. If home values go up in the future, so much the better, but the home will pay for itself either way.

    Here’s a better idea, one that has been making me crazy for more than a year. The name of this game is Flinch!

    Normally, when buyers are looking for a home, they’re looking for that one unrepeatable masterpiece, the only home they could even consider buying.

    What if, instead of looking for one ideal home, they resolved to look for three — or five — that might fill the bill? Now they’ve got bargaining power.

    The game works like this: Make multiple low-ball offers on all the houses that might work for you, with all of those offers being subject to your final approval. Make it plain to all of your sellers that the first one to salute goes under contract, and the others go home empty handed.

    This is exactly what sellers were doing to buyers two years ago, with multiple counter offers. By now there are at least eleven homes for sale for every qualified buyer. It’s time buyers exercised their incredible negotiating power.

    What happens if it doesn’t work? Try again in a different neighborhood. Or try same neighborhood six weeks from now. Here’s the trick to winning at Flinch!: If you don’t Flinch!, sooner or later someone else will.

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    An open letter to the owners of ActiveRain: Show us the contracts

    Messrs. Heaton and Washburn, owners of ActiveRain,

    My take on your having released your lawsuit against Move, Inc., and their response is that you know with a high degree of confidence that you cannot prevail in court. I read your original lawsuit as an attempt to extract something from Move, Inc., even though there is no chance they will proceed with the planned acquisition of ActiveRain. When that initial foray failed, my thinking is that you released your petition and their response because you hope to pressure Move, Inc., in the court of public opinion.

    All that’s as may be. Those two documents don’t interest me nearly as much as whatever acquisition agreements were executed between ActiveRain and Move, Inc. Those documents will detail specifically what information you had agreed to disclose, and what Move, Inc., had pledged to do — and not do — in its turn.

    Attorney’s briefs are full of bluster and bravado, but, in fact, it is these acquisition agreements that will be dispositive in any formal hearing of your allegations.

    Ergo, I ask that you release those documents for public scrutiny. When we have had an opportunity to determine what was actually agreed to, in writing, we can better judge the validity of your complaints.

    I know that your knee jerk response will be to insist that those documents are too vital to your court case to be disclosed. But, if that were true, the corollary proposition would be that the documents you have made public — your initial petition and Move, Inc.’s response — are not vital to your court case — are not actually of any importance at all. This I am completely prepared to believe.

    In fact, it’s one or the other. Keeping one’s private business to oneself is everyone’s right, but partial transparency is necessarily deception. If your goal is to proclaim to the world that you have been badly used, you must show us the violated terms of the contracts by which you were so cruelly violated.

    If you will not do this, I will regard your having released your petition and Move, Inc.’s response as nothing but a publicity stunt, a pantomime of transparency.

    As much as I might be disgusted by defending the likes of Move, Inc., my frank opinion is that you got caught with your hands in the cookie jar and now you are desperately striving to cling to a few crumbs. If I’m wrong, prove it. Put up or shut up.

    Greg Swann
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    13 comments v. The Nagging Question

    I can’t seem to get this out of my head. Call it the Dustin effect.

    If Dustin was hired by as the Director of Interactive Marketing, and was teaching Realtors how to blog way back in early 2007, why are the Active Rain boys surprised that was developing a blog platform? What made them think that wouldn’t proceed with that product if they didn’t purchase Active Rain?

    and yet…

    Dustin was openly critical of Active Rain when he first joined (December, 2006) . Why would make an offer for Active Rain when its Director of Interactive Marketing had little good to say about the platform?
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    Active Rain Wuz Robbed

    There are so many ways to play the puns here.  Who Moved my Rain?  Move before you get Rained Upon.  It’s Rainin’ Moves.  All pretty goofy.

    In the interest of full disclosure, I’m biased but so is Greg Swann.  Greg calls Active Rain stoopid technology, I call it useful,  Again, my interest in Active Rain’s success is financial; I write to and market to the Realtor channel.

    Move’s shuck and jive play for Active Rain is indefensible.  If Move were a home buyer, they would be entitled to material information in the interest of full disclosure.  Real estate agents call this the inspection or contingency period.  In the corporate finance/M&A world, it is referred to as the due diligence period.  Move had every right to reverse it’s offer to purchase Active Rain if it discovered something during the due diligence period.

    Here’s where Move screwed up; they started a competing business while fleecing the boys of their member roster and competitive points system plan.  That is referred to in the lawsuit as the “confidential information”.  They placed contingencies upon the purchase:  Active Rain was instructed to cease all merger and acquisition opportunities, revenue opportunities, and financing plans.  Those very actions, combined with a simultaneous push to present a competing product, suggest that Move perceived  Active Rain as a competitive threat.  It used the carrot of its deep pockets as a tool to paralyze the industry leader while developing a competing product.

    Are the boys at Active Rain insane to think that the platform is worth $33 million?  I think so but I’m no investment banker (and I clearly have no experience in valuations of tech start-ups).  The figure, however, was set by the perpetrator of this scheme.  Move played the old Nigerian e-mail scam on Active Rain.  Naivete doesn’t make the victim any less injured nor does it make the scam artist any less culpable.  That means you can’t say “What are they stupid to think we’d pay them that much? ” as your defense.

    A jury trial will be a nightmare for Move, especially if that jury is in California.  Twelve reasonably hard-working men and women will listen to a complaint from three ambitious and bright young men.  The defendants, clad in Bond Street suits, will scoff at the amount of the complaint and enjoy a cigar in the back room, chuckling over the fleecing.  A jury of Californians will listen to a parade of Realtors and originators as witnesses, braving the falling market while embracing a new technology.  Make no mistake about it, these Active Rain users are cultish in their loyalty to the Network.  I know because I’m one of them.

    …and Move will be seen as a red-handed thief.  A red-handed thief who, when caught, tries to explain his innocence by claiming that the diamond he stole was really a piece of glass.

    Active Rain gets $8 million.  We’ll never know because the settlement will be sealed.
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    ActiveRain discovers that the Code of Web 2.0 is the Code of the West: Do unto others before them others do it unto you

    The Code of the West ain’t some words on a page
    You just naturally know it when you come of age
    You eat when you’re hungry, you drink when you’re dry
    You look every man in the eye

    In the nineteenth century, rogue investors like Jay Gould and Big Jim Fisk would buy up parcels of land parallel to a successful railroad. They would lay some track and invite reporters in, regaling them with tales of the new railroad they planned to build in direct competition with the going concern. The owners of the competing railroad would panic, racing to put together a buy-out package that would get the rogues to sell out — at many multiples of their initial outlay. Did they ever intend to build anything? No one ever put them to the test.

    It’s the Code of the West when the boys talk of women
    The Code of the West what you know you don’t tell
    The Code of the West a man soaps his own saddle
    Brands his own cattle and some of his neighbor’s as well

    A century later on Wall Street, greenmailers like T. Boone Pickens would put together minor stakes in bloated corporations, then announce with great fanfare their intention to incite a proxy battle, thus to sell the company off piecemeal. The bloated boards of directors of the bloated corporations would race off to find a white knight investor, who would buy out the rogue investors at a handsome profit.

    If you’re buildin’ fences then I ain’t for hire
    You get me for nothin’ and I’ll bring the wire
    You patch up my windows, I’ll plumb up your doors
    If you scratch my back I’ll scratch yours

    In the world of Web 2.0, we have a similar scam, only by now the entrenched interest has the game figured out.

    Let’s say you and two college buddies have built a Web 2.0 “platform” — which is to say something stoopid, goofy and — at least temporarily — viral and sticky.

    Why did you do this? To build a business? To set an example? To leave a legacy in the world of hi-tech commerce?


    You built it to sell it to Google for a huge profit.

    You build the “platform.” You have a secret beta that is the world’s worst-kept secret. You launch to huge fanfare from TechCrunch, which exists solely to gush about stoopid, goofy start-ups.

    People flock to your “platform” by the thousands, trading one of their many throwaway email addresses for your free service, which is actually worth quite a bit less than the asking price.

    But, so what? You have millions of users overnight. Or millions of registrants, anyway. Your file servers would melt to slag if your “users” actually used your “platform.”

    But, so what? Stoopid, goofy, viral and sticky is the perfect Google-food. Or so you think.

    And, sure enough, here comes the offer. Twelve million bucks split three ways is a lot of sports cars for pimple-faced nerds.

    But here’s an interesting question: What happens if you turn down the deal? Not enough money, or, god help you, you want to leave that legacy in the world of hi-tech commerce. What happens then?

    Here’s what: Google releases the clone of your “platform” that it has been reverse-engineering since it first got word of your start-up. Not only are you not worth $12 million to Google, you aren’t worth a wooden nickel anywhere.

    It’s the Code of the West you must honor your neighbor
    The Code of the West to your own self be true
    The Code of the West you must do unto others
    Do unto others before them others do it unto you

    Tip your hat to the bloody stain on the pavement that used to be ActiveRain.

    This is news, and you can read the just-the-facts of the story here (sorry, it’s slipped behind the Inman irrelevance paywall). This is the Cliff’s Notes: ActiveRain entered into a buyout agreement with Move, Inc., the corporation that essentially owns the National Association of Realtors and every milkable teat on that vast cash-cow. The deal was that ActiveRain would sell its multi-user blogging platform, along with all the bloggers and all their accumulated content. For this, Move, Inc., was to pay $30 million, a sum to which we will return. In the course of its due diligence, Move, Inc., discovered that it was overpaying for the asset (ya think?), and backed out. ActiveRain is suing Move, Inc., for $33 million, claiming that facts it disclosed as a part of the due diligence were used by Move, Inc., in the process of building its competing multi-user blogging platform.

    In other words, ActiveRain got Googled by the second definition of that word, the one that didn’t make the dictionaries.

    Here’s the funny part: Who besides Move, Inc., doesn’t know that ActiveRain is a joke? They have almost 50,000 members. It says so right there at the top of the page. Of those, perhaps 5,000 show up as often as once a month. Maybe a thousand are active as frequently as once a week. The day-to-day traffic on the site — the actual content-generating user base — is maybe 500 people.

    Do you suppose someone at Move, Inc., a notoriously stoopid company, might actually be able to divide $30,000,000 by 500 users? Is anyone — even Google — stoopid enough to pay $60,000 a user?

    There’s more. Move, Inc., probably wanted a consumer-focused blogging platform, which ActiveRain is not and will never be. They have since built their own weblogging platform at, but this is so inept that the owners of ActiveRain cannot plausibly complain that they were ripped off — or even reverse-engineered. As ugly as ActiveRain might be, visually, the system actually works, both technologically and as a sticky Web 2.0 platform. Neither of these things is true of Move, Inc.’s latest exercise in incompetence.

    Active Rain has made its original complaint and Move, Inc.’s response available on-line (you can find those two files mirrored here), which tells us that it knows its legal case has no merit. Lawyers make outsized pleas about fairness when the law is against them. Surely any disclosures ActiveRain made to Move, Inc., were made pursuant to the terms of a strictly-detailed contract, and ActiveRain’s owners know full well that they were trying to sell a very tiny pig and a very big poke. My take: They are shrieking that they wuz robbed first because they got caught, and second because, having been caught, they can’t hope to snooker some other sucker.

    Who’d a thunk that Move, Inc., could be smart enough to avoid getting hustled for a change? But: ActiveRain has been well and truly Googled in the most painfully public possible way.
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    Updated information on the Anglin children

    Jay Thompson has an update on the state of the Anglin children, along with a link to Aaron Anglin’s obituary in the Austin American-Statesman. Jay has set up a guest book so that you can express your condolences to the family.

    The obituary includes this important information:

    A trust fund has been set up for the children:
    Guaranty Bank, Acct# 3805908914
    Checks payable to James Johnson (grandfather)
    ITF Eleanor & Mackenzie Anglin

    We each of us are doing what we can, and I expect we’ve gone a long way toward covering Aaron’s burial expenses and the children’s hospital costs. But: That’s a band-aid. The real costs of raising children are huge and ever-accelerating.

    I know there are big-money vendors reading this site. Your tax advisors can instruct you on what you need to do to expense a donation to a trust fund — or an annuity — as good will or whatever.

    If we can put the arm on a few hundred people for a few hundred dollars each, that’s a good thing. But if someone can step up to put a few hundred dollars a month in the kitty for the next 18 or 20 years, that would be quite a bit better.

    The fact is, these children are going to grow up without a father. I wish that were a rare circumstance, but it’s not. But here is a case we know about of children losing their patrimony, and a particularly brutal loss of patrimony at that.

    We’re all doing what we can, but if you can do more than the rest of us, that would be a wonderful thing.

    PS: Don’t be shy about emailing this post or a letter of your own to vendors with whom you have a working relationship. The secret to getting money is to ask for it.


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