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KROGER WINS ARBITRATION LAWSUIT - JUDGMENT AND SANCTIONS ORDERED AGAINST IBN AND THEIR COUNSEL TODD J. HARLOW

An award and judgment in the amount of $35,652.91 plus interest has been given to Kroger in their lawsuit against IBN and In-Touch Media.

 

Documentation in regard to the IBN vs Kroger lawsuit has finally been made public. Two documents were released this month including; a "Magistrate's Decision" with an Order Confirming Arbitration Award," and the complete "Motion and Application for Order Confirming Arbitration Award."

 

THE ARBITRATION / LAWSUIT

The Motion states that "IBN filed an arbitration demand against Kroger on December 30, 2013 and filed its formal statement of claims on May 6, 2014." (See the full document here.) On November 21, 2014, Kroger "filed its formal response to IBN's state of claims, denying liability and asserting counterclaims for breach of contract and a declaration that the Agreement was terminated with no additional obligations due from Kroger to IBN."

 

THE DECISION

"On June 18, 2015, the Arbitrator ruled in Kroger's favor. As set forth in the Arbitrator's written decision, the Arbitrator denied all of IBN's claims against Kroger and ordered that IBN take nothing. The Arbitrator further ruled that IBN was obligated to pay the following: $20,000 in sanctions and reimburse Kroger for $15,652.91 in expenses, for a total award against IBN in the amount of $35,652.91." The Arbitrator also entered sanctions against IBN's counsel, Todd J. Harlow of Cowles and Thompson in Dallas, Texas, for violating Ohio Rules of Professional Conduct as well as general standards of conduct.

 

"The AAA and arbitrator fees, compensation, costs and expenses are accordingly almost entirely to be borne by IBN, in the interest of fairness and justice, because IBN failed decisively to prove it's claims..."

 

SANCTIONS

Kroger's motion for sanctions was made against both IBN for willful failure of document production and document and testimony falsification, and against IBN's counsel, Todd J. Harlow (of Cowles and Thompson in Dallas, Texas), for violating "the Ohio Rules of Professional Conduct 3.3(a)(3) and 3.4(b) as well as general standards of conduct."

 

Failure to Produce

"Numerous documents that should have been produced were not produced, by the conscious decisions of IBN (almost certainly acting through Brazell.)"

 

Document Falsification

"Two of the falsified documents are discussed above, the claimed emails of April 15 and May 8, 2013. Their falsification and the IBN testimony concerning them warrant sanctions against IBN, especially since the May 8 email went to a core factual issue in the arbitration."

 

Testimony Falsification

"Finally, there was the granting of access to the Basecamp project in which Marbois' analysis of the Sony hardware appeared and the misstatement of when that access was given to try to use against Kroger.

 

Access was given to Thompson on January 23, 2015. Harlow then sent a message to Kroger's counsel on February 10, 2015, that there was documentation that Thompson had had access since January 23, 2013. His message included a Basecamp page showing that access bad been granted to Thompson by 'Rob B" on "Jan 23" without a year.

 

IBN itself conducted an investigation led by Jonathan House, including communication with Basecamp's staff. This showed that the access on January 23, 2015, was granted using Brazell's identification and password. While Brazell denied that he (or his wife Oksana) had gone on to Basecamp that day, much less granted the access, no alternative explanation was provided to the obvious one, that Brazell (or his wife) had granted the access. Especially viewed in light of the rest of IBN's misconduct, discussed above, it must be concluded that Robert or Oksana Brazell, or another representative of IBN committed this misconduct as well.

 

The more difficult question is how Harlow came to send his February 10, 2015 message with the Basecamp access log excerpt. Whoever granted the access to Thompson very likely knew that the Basecamp log would appear as it did, showing only the month and day and not the year that access was given, since the event occurred in the current year. The perpetrator presumably did not anticipate that Thompson would receive the fully dated Basecamp email invitation notification to him through spam filters and pay attention to it.

 

The dating format in the Basecamp  access log allowed Harlow to support his untrue statement in the email as to Thompson's access in 2013. He testified that he himself accessed the Basecamp site and either had the page containing the excerpt printed out at his direction or did so himself. He testified that in the format in which the website pages appeared, he did not understand that the absence of a year in the entry meant that it had been made in the current year. He said that he believed at the time that the email was accurate, though he conceded in his testimony that it was not, but claimed that he had simply been "sloppy."

 

It continues, "But even assuming that Harlow acted entirely on his own initiative, stumbled on the "Jan 23" entry only by coincidence and independently conceived the opportunity to assert a helpful litigation position from it, however improbable all of that may be, his testimony that he did not understand that the entry referred to 2015 rather than to 2013 stretches credibility past its limits."

 

Further down on page 16 it says, "Harlow may or may not have testified so as to try to shield his clients. But having chosen to take sole responsibility for the February 10, 2015 email, and his claim of ignorance of the significance of the "Jan 23" entry not being credible, he must bear the consequences. He violated Ohio Rule of Professional Conduct 3.3(a)(3) and 3.4(b), as well as general standards of conduct. A sanction is accordingly imposed on him."

Forbes says a CEO should above all protect investor share value

Robert V. Brazell tops our list of small business CEOs that fails time and again to provide returns, while living high off investor's money. Now mired in legal and financial trouble, the truth about Rob Brazell is finally reaching the market where potential investors can make better and more informed decisions before putting their money at risk.

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