Sunday, March 02, 2008

Napalm! (Updated 3/31/2013)

So this showed up in my mail the other day.

Click on the image to read the original, or continue below for a line-by-line explanation. But the short version is that this is a letter to try and stop this site from talking about McKenzie Scott/ITS/etc.

The entire letter is filled with so many things that make me react strongly that i'm not sure where to start. But before i go line by line through it, let me note 2 overall things. The first is that this effort to intimidate someone who is critical of ITS et al seems to be in-line with the way this company does business.

Rather than provide a quality product, they prey on people's fears not only to get customers to sign up, but also to silence criticism. The second item of note is that they must have gone to some length to find my real name AND home address. To me that's pretty invasive - they could have left a note on my blog, but instead thought it would make more of a point that they could enter the privacy of my home (with a registered letter and then a saturday delivery to my home address...)

Now, this letter is clearly meant to scare me off and while there hasn't been a suit filled yet, they are clearly threatening it. In the event of a lawsuit, then it seems to me that they would be open to charges of malicious prosecution and frivolous pleadings (i.e. big counter lawsuits for attorneys fees, costs, treble damages, etc.) However, even in this letter they assert that i am in violation of "applicable law." Feels like harassment to me...

The whole reason i wrote these posts is that through my experience i realized how much this company takes advantage of people in a vulnerable situation and i wanted to help others who were in a similar situation be fully armed with the facts so that they could make the best decision possible. So, if having a knowledgeable and educated target audience is a problem for ITS's business model, that's just too bad.

With that said, here's a paragraph-by-paragraph commentary.


"This law firm represents ITS Corporations and its affiliates, a.k,a. McKenzie/Scott Partners, Inc. and America’s Job Network, Inc. ITS provides career transition resources to Fortune 1000 companies and senior level executives throughout the world. As its business practice relies largely on its reputation, ITS strives to maintain positive client relations and provide excellent customer service."
No need to comment on this - users comments on this blog speak to how well they do at meeting the reputation that they "strive" for.

"While you are welcome to conclude that ITS is not the right fit for you, your use of an internet blog,, to unfairly disparage ITS is unacceptable and in violation of applicable law."
Nice of them to allow me to draw my own opinions. However, since what i write about is also true, i think that makes what i write "fair" (rather than "unfair.") Disparaging perhaps, but since it's true, i guess that shows that Mr. Honhart and presumably his client agree that the behavior and series of events that i describe are an indictment of McKenzie Scott, ITS and their related companies. In short, any negative impression that someone would get from these events is the fault of the company who perpetrated them, not the person who describes that activity.

Kinda like a Nixon blaming newspapers for reporting on Watergate rather than realizing that it was his actions that were the root issue.

And then the contention that i'm in violation of "applicable law" - not sure what law they're referring to since it's all true, which is generally a pretty solid defense. Seems like this is one of those lawyer phrases that gets thrown in to say "in case you're violating the law, then your violating the law..." Nevertheless, it's clearly meant to be threatening.


"Assuming you are who you say you are, you have never been a client of ITS or any of its affiliates, and ITS has never taken money from you or entered into a contractual relationship with you."
Not sure whether to laugh or be offended by the audacity of this paragraph. On this blog i don't "claim" to be anyone. Rather, someone (ITS? the lawyers?) had to do some digging to find me - so, what they should have said is "assuming that you're who we think you are..."

But they are correct in this aspect - i never signed a contract with McKenzie Scott (which i clearly mention in my posts). If i had, then i'm sure they'd be complained about how i was violating something in the contract i signed. And while it's true that they never took any of my money, it certainly wasn't for lack of trying. (As outlined in my posts), there were many attempts by phone and email on the part of McKenzie Scott to get me to become a client, to pay them money and to sign their contracts. And i would imagine that they have records (like a CRM system, email system, etc.) that make them well aware of this situation.

So, to say the least, this statement is disengenious.


"Rather than communicate with ITS about your experience and decision not to work with ITS, you have chosen to post defamatory and inflammatory statements about ITS, and encouraged and assisted others to do the same, revealing private and confidential information, trade secrets, copyrighted information, and actively and aggressively interfering with the business relations ITS enjoys with its clients and potential clients in the process."
The opening of this sentence implies something that is at odds with their previous implication - namely that i had an offer from them to "work together..." Looks like they just realized in this paragraph that we did have a relationship.

The use of the word "defamatory" is pretty accusatory (and legally significant coming from a lawyer?) From the legal stand point, it's hard to see how it can be defamation if it's true. And again, this seems like an admission that the firms behavior is objectionable since they feel like an open depiction of their activities puts them in a bad light.

To top it off, the links i point to were on the internet - so it's hard to see how the McKenzie Scott and ITS would feel like they were private, confidential, and trade-secrets.

As for copyright - i'm quite sure that what i did falls under "fair use." (Note: a lot of the links are now broken, so maybe that means that they realize that having these things available on the internet takes a bit of the wind out of their sails...)

Now, instead of picking apart every word in the last half of this paragraph (i especially like the use of the word "enjoys"), let me just say this. The near unanimous feedback from people i have interacted with on this blog and in other venues is that this whole thing is a scam of the worst sorts. It feeds on people's fears and insecurities. And while i admire the companies literature and soft-sell approach (in the way that many people admire a good con-artist), at the end the day, they are preying on people who are already in a vulnerable situation. This is reprehensible and all anyone has to do is look through comments on this blog to see that this is a universal perspective.

I wrote these posts precisely because i wanted to arm other people with better information so they could make an informed decision about what to do. So if the conveyance of this information has caused some people to avoid wasting money on McKenzie Scott and ITS, well then i think that's a good thing. And if this causes the company a loss of business, then perhaps they should spend their time and energy on making a better product (or getting out of the market since people can get equivelent services for 1/10th the price) rather than lawyering up.


"ITS has received reports from some of its satisfied clients, who report that they have attempted to post their own success stories and positive experiences about ITS on your blog, only to have you refuse to post those comments. Instead, you post nothing but negative comments about ITS from almost exclusively anonymous sources and conceal their identities under a cloak of secrecy."
I can't directly refute the first sentence, because i have no idea what they may or may not have been told by other people. However, i can report that while there have been a few comments that i have refused for a variety of reasons (see this post for more on this topic) - there has NEVER been a comment left talking of a fully positive experience. To me that's pretty incredible - look at all those negatives and no positives.

For the record, i think the closest to a positive comment - which i did publish - was "I do believe they may offer some great services but my guess is that it is mainly overpriced as a whole." So, the reason why all these comments are negative is a reflection of the company, not my editing! duh!

"As it is, your agenda-driven conduct appears to have more in common with one of ITS’ competitors than that of an individual who chose to not use a certain service. It is our opinion that competitors are now using this forum with your help to unfairly attack our firm and interfere with our operations. There is ample evidence that credible organizations that run search engines and blogs do not support sites that are not fair and balanced. They include Google, whose software you use, and Yahoo."
Aside from the ad homenem attacks and (wrong) assumptions as to my motives, I assume this is another set of threats. I would imagine that variants of frivolous pleading counter-suits would be an appropriate response to any attempt to influence google and yahoo in a retalitory manner.


"We are investigating whether you are in violation of the Federal Communications Decency Act. The CDA does not protect a website operator, like yourself, who is an "information content provider," defined as a person who is responsible, even in part, for the creation or development of the content of a website."
Laughing out loud on this.

First of all, i sure hope you hire a law firm that actually knows about this act rather than a real-estate law firm. Because if you did, they'd tell you that this act actually protects those publishing material (as long as it's not porn). Again, the way this is written is very misleading to make it seem like a threat. This law is actually about making sure that companies like "google" or "yahoo" won't be held responsible for what those who use their services do. On the question of whether the actual author is responsible - it's neutral and leaves all existing laws intact. So again, the truth is a pretty good defense.

And note: endangered species and greenhouse admissions are also on the list of things that CA doesn't protect. So maybe the lawyers should investigate those question as well...

And for Mr. Honhart's benefit, here's some information on that act that might help his get his head straight while you're "investigating" if it's applicable to this situation: wikipedia or wikipedia. And just in case, here's the full text of the actual law.


"On behalf of ITS, please consider this a request, to immediately remove from http://randomnconvergence.blogspot,com/ all references to ITS and any of its affiliates and cease and desist from further posting this material on your blog or any other website. We also request that you provide us with the real names and addresses – physical and/or Internet – of the individuals who have posted on your website so that we may similarly advise them to cease and desist."

Yeah right. On behalf of all the poor folks that you bilked out of money, consider this a request to refund any and all funds to all your previous clients and desist from preying on anyone else ever again. Also, stop harrassing me with empty threats from your lawyers. In short: pound sand.

As a final note, here are the lawyers in question: Fisher, Sweetbaum, Levin & Sands -

Interesting that ITS would hire a bunch of real estate lawyers. Here's a map from the offices of ITS (or at least where ITS has as their mailing address) to their lawyers. Seems like a long way to go to get lawyers who aren't quite in the line of business that your looking for.

And here's the lawyer who sent letter

Again, this kind of thing doesn't really seem to be his expertise. I'm guessing ITS got a good deal on him.

Also interesting that all of the old links for the ITS companies don't work anymore... Anyone who has current links for anything that's broken, feel free to leave them in the comments and i'll update the posts. (Update: looks like is the right site for them now...)

Update: One of the comments left on this page generated an update to this post.
Update: If you've been a customer of ITS/McKenzie Scott, see this post.
Update: See latest legal actions.

Saturday, March 01, 2008

A question of credibility (Updated 3/25/08)

Over time many readers have left comments on this blog and for the most part i'm inclined to publish any comments that are germane to the posts here. With that said, there are a variety of reasons that i sometimes don't post comments - there are people who leave the same comment multiple times or leave inappropriate comments. In addition, i sometimes read a comment and come to the conclusion that the author is not genuinely who they say they are or are in some other way trying to interfere with what i hope is genuine feedback from other readers. These post are a very small percentage, but my fear is that if i start letting these kind of comments through, they will proliferate and readers will get an unrealistic view of things.
As an example, many months ago someone left a comment saying something like "hey dan, i remember trying to tell you about how great McKenzie Scott was - what happened? why didn't you follow up." Whether this was really Brian (or whatever his name really was) or some jokster or someone else trying to stir up trouble, i'll never know. But, i certainly felt that the commenter was neither genuine providing any help to readers of this blog.
Another time there was a comment that said something like "you guys are all jerks. ITS is great." Hmmm... wonder who left that?
I'm happy to say that the vast majority of readers who leave comments are civil and seem to be genuinely interested in the topics on this blog. For the others, the trolls out there, go find something else to do.
(more to come on this topic...)

Update: Looks like they're sending in the lawyers. That's one way to deal with an image problem (cheaper than providing a good product i suppose...) See this post for the latest.

Update 2: Here's another comment that i didn't publish (at least as a comment) - from Anonymous. The main reason is that it really doesn't contribute to the article that it was attached to (it was one layman's interpretation of the law). But in addition to all that, it was (as i understand it) pretty off base - something i thought worthy of comment.

Having been a journalist for years, I can tell you that the best defense against defamation charges is, indeed, truth, EXCEPT when the intent is to cause harm (malice).

If you are NOT posting EVERY positive comment about this firm that you have received, you are, indeed, liable. That will prove an unbalanced story which will substantiate their claim.

Plus, any connections you have to any of their competitors will be daylighted during a suit as well, in which case you stand to lose a lot.

Note to self: will be interesting to see if this gets posted...
Breaking it down...
Having been a journalist for years, I can tell you that the best defense against defamation charges is
The first obvious comment: you're a journalist, not a lawyer. And while journalists are no doubt worried about libel, i'm sure they consult a lawyer for the finer points. So, i could listen to what you say, or what multiple lawyers (and every law book & article that I've ever read) say...
...the best defense against defamation charges is, indeed, truth, EXCEPT when the intent is to cause harm (malice)
Not so. Even with malice intended, the truth is (virtually) an absolute defense in the United States. (So maybe there's an issue if this gets into a British court.) In the event that fails, I'd expect that the "public interest" defense applies to everything written here with regard to these companies. The closest i could get any legal authority to conjecture is that there might be some arcane state law that under some bizarre set of circumstances where something was perhaps technically true it was used in a way that was grossly and deliberately misleading might allow a libel case to proceed. But even so, i can't find any case examples (any LAWYERS out there got better info for those of us who are curious?)
"If you are NOT posting EVERY positive comment about this firm that you have received, you are, indeed, liable."
Oh yeah sure. I'd love to see case law on this! Being generous, I'll assume that the author's employers were simply litigaphobic (that should be a word) and gave some sort of bizarre guidance to their staff. Besides the obvious use of legal sources who call BS on this, these kind of statements also fail the basic smell-test - if this were true, you could be sued simply for not publishing a comment on a blog. Or more obviously, a newspaper could be sued for not publishing every single letter-to-the-editor.
That will prove an unbalanced story which will substantiate their claim.
Ah yes - the First Amendment's guarantee of a free press is all about making sure that the press writes every story with "balance" on every topic they address. The fact that this is written by a self proclaimed journalist is even scarier. I'd feel a lot better about the state of journalism if it's practitioners were less focused on reporting everything as a balance between two equal points of view ("some people think shit is bad to eat, but others disagree - today will look at both sides") and more focused on reporting the truth! ("shit tastes like... SHIT!")
"Plus, any connections you have to any of their competitors will be daylighted during a suit as well, in which case you stand to lose a lot."
Not that this is relevant at all, but i certainly have no connection with any of these scam artists. On the other hand, if there are good recruiters, placement firms, resume writers, etc. out there, i am happy to help them out!
Note to self: will be interesting to see if this gets posted...

Well, perhaps not posted in the way you expected, so i hope I didn't disappoint you...