eBay Wins Craigslist Lawsuit? Not So Fast

by: Ebay No More

Thank heavens Ebay didn't disappoint me. Nothing Ebay does is well planned. So Ebay's attorneys failing to adequately prepare for the trial is no different than any other dept at Ebay. Some things never change.

by: goldilocks

I suspect the lack of preparation on eBay's part was entirely due to hubris - they figured they couldn't lose.  Hah!

I will be looking forward to following the California action - has there been a date set for it yet?  I'll be hoping that Jim and Craig nail this giant to the wall so clearly that no amount of PR Dept spew can hide it!

by: Rick29

Interest what the judge had said about one party operating in good faith.

Can eBay,inc. say the same, when it comes to their changes to the USER AGREEMENT and various policies.

Sadly, the answer is no.

Just one blatant example is the BUYER PROTECTION POLICY on the eBay.com sight.

Completely contradicts what eBay,inc. says in the liability section, RE: that they do not take part in the transaction process.

If refunding a buyer their funds, on a transaction, and then extracting it from the seller's (forced by eBay) reimbursement method on file, is not BLATANTLY taking part in the transction, I do not what is.

Forced maximum shipping amounts, the ACCEPTED PAYMENTS POLICY, the DSR program (saying that everything is just buyers' opinion, but then eBay uses these ''opinions'' as factual statistics in evaluating the seller, who is the one actually paying to use their system), and on and on....

I have already opened two small claims court cases against eBay,inc. One, account mismanagement, and the other involving PayPal CA Ltd and the bad faith policy change to section 11.5. of the UA (RE: buyer re-directing mail.)

(Side note: Do sellers, using PayPal, realize that PayPal does not require buyer to confirm that the mailing address they have on file is accurate and they will lose an INR case if it is shown to be an inaccurate and/or not an up-to-date mailing address. Interesting, no?)

Any other affected eBay sellers, who feel that eBay,inc. has unjustly penalized them, should see if they have an avenue open to have the wrong made right.

Either eBay,inc. complies or the court system will force them to do so. The longer they drag it out, the longer it will cost them, financially and in the wonderful world of cyberspace (which they cannot control, much to their chagrin, as they can with their discussions boards).

If one has to, take the matter up in federal courts. I may doing the same in the near future.

It is the only thing this companies understands.

One last thing, in conjunction with this post....

Notice how eBay,inc. is desparately trying to move away from having emails sent by their users that require them to respond (hence you have it in writing) and how emails you do receive do not allow you to send a reply.

by: eileen whelpley

Excellent article: Kudos for being perhaps one of the only reporters that read the actual ruling!

by: Rick30

To clarfify the SIDE NOTE in my above post...

Seller will lose an INR claim, even if buyer's mailing address is proven to be inaccurate or not up-to-date.

Still interesting, no?

by: My Own Website Not Quite Paying My Bills Yet

Thank you Ina for setting the record straight. The "Ebay wins Against Craigslist" headline is a phony as the "Lowest Ebay Fees" headline.

by: nora

I knew when I read that "victorious" headline it was not true and complete. I remember the judge saying if he made a ruling that neither side would be happy.

So again the first reports we get by these news organizations are half truths and misleading, probably put out by eBay spin department and not verified before reporting to the public.

Looking forward to the second part where Craigslist sues eBay.

It would be great if eBay had to shut down their US Classifieds or Craigslist get a big stake in eBays Classified.

Thank you Ina.

by: Mary

Now eBay is winning everything-they won in Paris and now vs Craigslist. When are eBay sellers going to win against eBay-Those fees are going up the roof!

by: o.c.d.collectibles

Except Craig Newmark was accused of illegally giving Craigslist dollars to the Democrats, and Meg Whitman must have dug that one out to smear him good so he wouldn't keep dragging her back into court and making HER look bad. You know, California voters are evaluating her right now!! HA!!

by: Rick31

To Mary's post above....

Just because you do not see many documented cases of legal actions (win or lose) against eBay,inc., that have actually gone in front of a judge/jury, does not mean that eBay,inc does not have legal problems.

Like most companies, I assume their lawyers are smart enough to know when to ''cave in'' so as to not have any evidence heard in a court of law that may result in other users following the plaintiff's lead.

Especially if they know it is very damaging and cannot be explained away.

This, after exhausting all possibilities of intentional delays and/or a case not being dismissed on a techicality.

Companies, such as eBay,inc., actually have people who do risk accessment and resulting ''payoffs'', that are accounted for, sometimes several years in advance.

If the number crunchers calculated incorrectly, then you see drastic fee increases.

This may be one of the reasons for the massive fee increase earlier this year.

The problem, as I see it, for eBay,inc. is that clause in the liability section of the UA...

We (eBay,inc.) do not take place in the transaction process...

With Donohoe at the helm, that is all they have been doing.

Basically taking more and more control of a seller's listing to the point that a buyer does not know what part is controlled by the seller and what part is controlled by eBay,inc.

Yet, eBay,inc. has the audacity to place a ''SELLER ASSUMES ALL RESPONSIBILITY FOR THIS LISTING'' line in every listing.

They even snuck it into the current UA site literature (that's all it really is) that they state is in place as of this past September 7th.

I have already sent eBay,inc. a registered letter stating that I am not responsible for any information that eBay,inc places in my listings that I cannot edit of approve of, below submitting the item into the system.

Any actions they take will result in a law suit filed in federal court, not small claims.

This is where I believe it will bite eBay,inc. hard in the years to come.

More and more sellers will realize that eBay,inc. is blatantly ignoring their own UA and instituting bad faith policy changes.

It is these policy changes that eBay,inc. knows will fall apart in court if one has the fortitude to see things through and not be intimidated by them.

I might be completely off-base with this opinion, but sellers, that have put in a vast amount of time and money in running a business on eBay,inc.'s site, have to get tough with this company or they will continue their blatant bad faith policy changes.

eBay,inc. cannot do what they want with their site, when they want to, as I see many people post.

They have to prove that the addition(s)/change(s) are justified or else reimburse the user, as they have changed the dynamics of the agreement between both parties.

This applies to any entity that charges for their services.

It is as simple as that.

by: Philip Cohen

It is my understanding that notwithstanding consumer protection laws to the contrary (and criminal activities such as their effective aiding and abetting of wire fraud on buyers), eBay can put whatever conditions they like on the use of their market place site; users in turn have the option to cease using the site and, indeed, a great many users have chosen that option and, as a consequence, eBay is continuing on its Donahoe-ride down the toilet.

Even the Chief Headless Turkey himself recognizes that eBay has serious problems—he has been “dribble” selling his personal eBay stockholding every month since April. What does that tell you? The house of cards is on the point of collapsing, and the eBafia Don has reached the point where he can no longer manipulate the figures to keep kidding the dopey market analysts that eBay is “turning around”. These turkeys are in fact so giddy from all that turning around, and around, and around, that they don’t have the faintest idea what direction they are going.

No amount of fee-free listing periods can compensate for the apparent hemorrhaging of FVF revenues which are now being propped up by many unscrupulous professional sellers ultimately buying their own items, an activity that they cannot sustain for any length of time.

Donahoe: “Sometimes you just have to let go of your successful past.”

eBay/PayPal/Donahoe: Dead Men Walking.

by: buck efay

My latest hundred free listings with GMV of about $5K have so far yielded about $200 in sales, with all items set to free shipping. 3 years ago this would be about $2500 in bids already, and 60% STR with multiple bidders, this year, about 10% STR, 5% GMV realized, 2 items only with more than 1 bidder. Disgusting. Had I paid listing fees, this would have eaten the $200. Ebay is thru for sellers of collectibles.

by: Doesn't Matter

Fist time I have been here in a long while. Same old complaints, same old story. Why bother posting? All that matters to most of us is having a doable AUCTION SITE. As in A-U-C-T-I-0-N, Not buy it now, not a store, not best offer. Not some go no-where site like the usual promotion everwhere you look. Look at those sites...where are the Lionel trains? Collector watches? Classic cars? Vintage Electronics? All I see is JUNK for inflated prices. Yahoo was the closest thing to eBay. And that is history. A big name has to bring back the original concept of ebay. If not, everything is for NIL. Having a useable auction site is all that matters. Say it the way it is already.

by: Rick32

To Philip Cohen's psot above...

RE: ''eBay can put whatever conditions they want on the use of their market place site''.

Not so, in my opinion.

A User Agreement works both ways.

Back in 2008, eBay wanted (and did start) to count neutral feedbacks as negatives, when calculating a seller's percentage.

They had to backtrack as many sellers (some large accounts) were threatening to sue them (if they had not yet already started the process).

If eBay thought their UA was ironclad, they did not have to back off, yet they did.

That same summer, eBay changed the policy of uploads from third party vendors.

It lasted all of one day. Again, many large accounts were affected.

On this one, eBay had no less than a senior legal counsel employee post on the announcement boards that that policy was being shelved for the foreseeable future.

Shows the severity of the situation for eBay,inc.

eBay.inc thinks that they have to only worry about satisfying their large account holders.

It is up to the the smaller accounts to show them that this thought process is in error.

I have spent a lot of time, effort and expense to build up a business on their site.

All based on good faith.

What eBay has done, since 2008, is pretty much been in bad faith.

If they want me, or anyone else, to just stop their account with no compensation, they are sadly mistaken.

This is not like just switching phone companies.

Ebay,inc. expects sellers to be working in good faith with buyers or else they will be penalized.

Again, the reverse is true, except seller will have to go outside of eBay,inc. to have a wrong made right.

Internet commerce is still in its infancy, when compared to the more established way of doing commerce.

A lot of things still have to be worked out as pertaining to accountability and liability.

Companies like eBay,inc. will only try to delay as long as possible, whether with lobbyist trying to stop legislative changes or settling out of court before a given situation can come back and haunt them.

Well, I believe that's enough for tonight.

Nite all.

by: Philip Cohen

@Ric32,

The Australian Competition & Consumer Commission (ACCC) in Australia stopped eBay from here mandating the use of PayPal exclusively. Do you have a competition agency in the US that will do that for you?

We also have some new consumer laws in Australia which deal with practices, by powerful commercial entities such as eBay, that are found by the courts to be “unfair” practices. Unfortunately, these laws only protect consumers of goods and services for “personal consumption”; they do not protect consumers who are “businesses”; regretfully, such consumers are presumed to be smart enough to protect themselves; in other words if, as a “business”, you don’t like the contract (UA) that eBay offers you, or alters, your only recourse is to refuse the contract and go elsewhere (as many have done). I would be surprised if the competition/consumer protection laws in the US are any better than those in AU.

eBay offers its user a User Agreement. Notwithstanding any breach therein of statutory competition or consumer laws, as a business entity you either accept it or you don’t.

If eBay, has backed down from any action that they had planned to take I would question whether the reason for the backdown was a fear of legal action. If eBay had any fear of the law they would not be so blatantly (and criminally) aiding and abetting rampant shill bidding “wire fraud” on their buying consumers. …

by: Rick33

To Philip Cohen...

I am based in Canada, not the USA.

The fact that eBay could not mandate PayPal only, goes to show that a vendor can not do any carte blanche changes they want to impose on the users of their system.

The basis of any business arrangement is that all parties are working in good faith.

That is basic law.

One party strays away from it, then it is settled in a court of law, not by government agencies, if all parties cannot come to a mutual solution.

Courts around the world are full of cases of one party going after anther party for bad faith business dealings.

eBay,inc. (or any other internet venue) is not miraculously excluded because they say so.

Look at the User Agreement on the eBay.com (US site) and eBay.ca (CDN site).

In the liability section they both state that eBay does not take part in a transaction.

This is the basic good faith clause that eBay must adhere to, as they keep it in the UA (if they try and remove it, will the fat ever hit the fire, in my opinion).

Like I have said in other posts, let eBay explain to a court of law, not a government agency, the good faith basis of....

....Having a ridiculously low maximum S&H charge, in some categories, on the eBay.com site, no matter where you are shipping from, or the weight/value of item.

....The Accepted Payments Policy, which favors one set of sellers over another set (re: who can and cannot say they accept paper payments. I see that eBay in Australia allows all sellers to state it, last time I looked).
I will not get into what eBay,inc. has done, in electronic payment options, to Canadian-based sellers. Another bone of contention to say the least.

....Removal of optional insurance, and actually lying, in their Seller Update, about the basis for this change (and now, low and behold, eBay.com is looking to make money selling optional insurance to their consumer base, the sellers. The same ones they decided cannot offer optional insurance to their consumer base, the buyers).

....Refunding buyer's payment of a transaction and then recovering the cost from the seller (on eBay.com).

....The just-implemented Item Description definition of NEW as being ''unopened and undamaged''.

How can any seller honestly gaurentee and unopened item is undamaged? It is sheer utter nonsense. And eBay puts in the line that sellers are responsible for ALL content in a listing.

I have sent them a registered letter (signature required, as value may exceed US$250, as eBay likes srecommending to sellers) stating this is unacceptable and I will have to put in a disclaimer, in those affected listings, that it is eBay generating that line in the listing, not me, and to disregard it.

If eBay,inc. looks to take sanction against my account, then they will have to answer in a court of law.

If this causes confusion with my buyer(s), then eBay will have to answer for that also.

It is that simple.

Time for supper.

by: Philip Cohen

@Ric33,

I wish you the best of luck in your journey through the courts in pursuit of eBay.

Unfortunately, it requires more than luck and simply an argument of "unfairness" to win a case of contract law between two commercial entities, in a court of law, regardless of in which country you reside.

It's really not that simple.

by: RIck34

To Philip Cohen...

You sound too much like an eBay email in your last post (that is, before eBay disengaged the email option from their CONTACT US page in early June).

Completely misrepresenting what I have been saying in my posts and yet saying nothing.

If you find the comparison offending, I apologize. However....

Where in any of my posts did I say I need luck and have just an arguement of unfairness?

If you are equating ''bad faith'' to ''unfairness'', I have to completely disagree with you.

If that is your opinion, fine, you are entitled to it.

Just do not try and spin my postings to your way of thinking and assumptions.

As for pursuing eBay.inc, I'm staying right here in my home town. It's a quick trip to the downtown court building.

All expenses to paid by eBay,inc., who, so far, are saying they want to stay in their home park in California.

One would think they would want to take the short route and put an end to this court action, by having a ruling in their favor as quickly as possible.

I would have to pay for their expenses and they could point a finger and say, ''Bad little doggy''.

Instead, they want to take the long route.

Even their contestation to my application deliberately has one line illegible.

The court clerk had to request a refiling by eBay,inc.

And if you could see the registered letter that they sent me about the contestation, you would scratch your head over the content of one sentence.

I can go on and on, but not today.

Time to hit the sack.

by: Philip Cohen

My layman’s understanding of contract law is that there is no protection in the English-based common law of contract for simple “unfairness” (or “bad faith”) in agreements between “commercial” entities; if you are trading commercially, you either accept the terms of eBay’s UA or you go elsewhere. I doubt that there is even any relief to be had for behaviour by eBay that could possibly be considered to be “unconscionable”, because you are not forced to accept the terms of eBay’s UA, you always have the option to walk away (as many eBay users have done) …

Even in the most civilized of countries, consumer protection laws usually only protect, from the actions of unscrupulous commercial entities such as eBay, “non-commercial” consumers, that is, consumers who contract for goods or services for their “personal consumption”. Such laws don’t usually offer any protection for “commercial” entities. Rightly or wrongly, commercial entities are presumed to be capable of protecting themselves; if you don’t like the terms offered, you don’t enter into the agreement with the other party or, if at any time the UA is altered in a way that you don’t like, you are not contractually bound to continue dealing with the other party.

Now, of course, we would all agree that eBay presents the classic case of a demonstrable need for small commercial entities to be given some form of statutory protection from powerful, unscrupulous and unconscionable entities such as eBay obviously is. Regardless, it would still be up to the courts to develop case law as to what behaviour was indeed “unfair” (or in “bad faith”) or met whatever terms such law may use.

Unfortunately, notwithstanding the provisions of the various fraud acts that possibly could be applied to eBay’s unscrupulous activities, I don’t think that we have any such protection for “commercial” consumers, yet. With any luck maybe the most obnoxious behaviour of entities such as eBay (and PayPal, in the area of payments processing) will eventually bring about some statutory protections.

If you want to attack eBay for being the totally unscrupulous, disingenuous entity that it so obviously is, do it on the basis of their criminal activities: the demonstrable and quite deliberate aiding and abetting of the rampant shill bidding “wire fraud” that is being perpetrated on unsuspecting buyers by a great many unscrupulous professional sellers.

In the words of the eBafia Don: “Sometimes you just have to let go of your successful past.”

by: Rick35

Again, while are certainly entitled to it, your entire post is just your opinion on matters.

In my opinion, eBay,inc. is in breach of their own User Agreement.

Plain and simple.

To say that the party charging for their sevices can do so and not be liable in any civil court matter, flies in the face of common sense (no cracks about common sense and the law please).
Why would anyone agree to a UA and pay for services from a vendor that is allowed to break their own UA at any time they feel they want to and suffer no consequences for such actions.

Or even mismanage a user's account and feel no consequences.

Remember, this is a venue that the seller is not just paying for the use of the system, but has put in time and money into running a business on the system.

A UA runs both ways, not one, as many people (apparently yourself included) are led to believe.

This is not like changing phone services.

Just walking away is not an option in my book, given my time and effort.

As I have posted before, eBay, more and more, is making it difficult for users to even contact them.

You think this is not done on purpose.

eBay does not want users potentially using what they say on the phone, or more importantly, what is said in an email exchange, to be used in a court of law.

In my case, this is what I have on them, and it is for that reason it looks like eBay,inc. will want me to come to spend some time in California, instead of eBay enjoying the the pleasures of Montreal (until they have to show face in court of course).

Until people start challenging these companies (how many have, and eBay settled out of court before any evidence was put on the public record?), we will never know how the court will proceed on such issues.

Time will tell and I, for one, will be patient to see when said time is up for for eBay.