Auction Blocks

Panties were missing.

Many pairs of panties. Lacy panties, colourful panties, plain cotton panties, thongs - and not clearance ones, either. They were being stolen by the armful from Victoria's Secret stores in the Boston area, with losses in the thousands of dollars.

Simultaneously, an unusually large number of new Victoria's Secret panties were appearing in eBay auctions. In volume.

The company knew this because Paul Jones, CSO of Victoria's Secret parent company Limited Brands, has a small team of investigators who monitor online auctions. On any given day, they crawl through tens of thousands of listings for merchandise from Victoria's Secret, Limited and Express stores. One investigator, Joe Hajdu, had a hunch that the upswell in eBay panty auctions was no coincidence.

Posing as "Joyce", owner of a small store, Hajdu bid on and won 65 pairs of panties offered by a seller who called herself Inesteva. The picture of her merchandise had caught his eye. "They were almost displayed like we have them displayed in the stores," Hajdu says. "It was like someone had taken their arm and just swiped a whole table right into a bag."

When the package arrived, Hajdu was not surprised to find a return address in Andover, Massachusetts, not far from where the panty thefts had occurred. Using his alias, Hajdu won a couple more of Inesteva's auctions. Soon, she asked him what else he wanted. It was the lead he needed. He requested a particular kind of Victoria's Secret panty from the company's "Pink" collection, featuring an embroidered dog on the front.

That was when the investigation swung into high gear. A regional loss prevention manager marked hundreds of pairs of dog-embroidered panties with ultraviolet ink, writing the store code on each price tag. The very night that 180 pairs of panties were stolen from a store in Marlboro, Massachusetts, Inesteva e-mailed "Joyce". "I have 185 pairs of panties," Hajdu recalls Inesteva writing. She attached a picture of the panties, some of which were embroidered with dogs, and asked, "Would you like to buy them?"

Cue the Dragnet theme song. The Andover police department put the eBay seller, a 30-year-old named Jennifer Stevanovich, under surveillance. Police officers then watched the mother of three, who was technically unemployed, unload boxes from her new Mercedes-Benz SUV and carry them into the post office. This time, when Hajdu opened a box of panties postmarked from Andover, more than 20 pairs had ultraviolet ink markings from the Marlboro store, evidence enough to arrest Stevanovich for receiving stolen goods.

The sting seemed like a moment of glory for the good guys. When police searched Stevanovich's apartment, they seized $US28,000 worth of new apparel from Victoria's Secret, Express, Gap, Abercrombie & Fitch and other retailers, along with $US15,000 in cash and a device that removes product security tags. (At press time, Stevanovich was out on $US15,000 bail and faced, if convicted, up to five years in prison for receiving stolen property, according to Lt James Hashem of the Andover Police Department.)

But for Limited Brands, the panty raid was a mixed victory. Only one person was arrested in what investigators believe must have been a much larger criminal operation. And the company had dismaying new evidence that the resources it devotes every week to searching online auction sites for stolen and counterfeit goods are not optional. They have become a permanent cost of doing business.

"Criminals are just like water," says King Rogers, former vice president for asset protection at Target and now CEO of an eponymous loss prevention consultancy. "They seek the path of least resistance." Right now, say Rogers and other loss prevention experts, online auctions sites such as eBay - largely unregulated, wildly popular and next to impossible to control - are providing that path.

EBay, for its part, insists that it is not a retailer but a marketplace - "the world's online marketplace" - and as such is not responsible for the products offered on its site. So far, the courts have agreed. That puts companies like Limited Brands in the awkward and expensive position of serving as the world's online cops. If they don't, right now, no one else will.

A New Kind of Marketplace

Today, eBay markets itself as a vast and utopian community, where buyers meet sellers, and the laws of supply and demand rule. The strategy has worked. According to Nielsen/NetRatings, eBay has 49 million unique visitors per month, 50 times as many as its largest competitor, uBid. In the first quarter of 2005, eBay's members traded $US10.6 billion of merchandise.

The vast majority of eBay sellers are law-abiding citizens. But eBay's success has also attracted a customer base that the California-based company does not as readily acknowledge: criminals. Many are the online equivalent of pickpockets, who describe products inaccurately, drive up prices with illegal shill bidding or fail to deliver merchandise. Far more dangerous to corporate America, however, are criminal sellers whose products do arrive as promised. These are the sellers who rely on good customer feedback - eBay's primary mechanism for protecting both buyers and sellers from fraud - to grease the wheels of illegal activity.

A constant dribble of news reports illustrates how. Wiley Publishing sues a college student for selling copyrighted material. A Maryland woman finds an iPod on eBay with the same inscription as one that was just stolen from her home. Officials in Florida bust an orchid thief who's been auctioning off flowers he allegedly stole from state parks. Two Americans are arrested for selling pirated DVDs in China.

The problem gets worse. Experts see alarming evidence that these sellers are often organized retail crime rings, unloading huge quantities of counterfeit, stolen and grey-market goods. Oftentimes, the activities on auction sites serve as the public-facing portion of a much larger operation.

Shoplifting only begins to describe what these crime rings do. Loss prevention experts say that groups of three to six professional "boosters" can rob a store of $US5000 worth of apparel in one fell swoop. They'll pile merchandise into bags with special foil lining that thwarts store alarms, or one of them will "accidentally" set off the alarms to distract security, while the others walk brazenly out the doors with bags of merchandise. The boosters then pass the stolen goods on to the fence. The fence lists the items at sites such as eBay and Yahoo Auctions, posting large lots of similar goods, all labelled "NWT", for "new with tags". Once the seller finds a willing buyer - often a wholesaler or small-business owner - he typically offers to sell goods outside of the auction space, as Stevanovich allegedly did.

"We're careful about not encouraging people to go out and steal" when they're under investigation, says John Talamo, Limited Brands' vice president of loss prevention, who directs the company's organized retail crime division. "But once our investigator starts to buy things, the person will contact us and say, 'Hey, I can get a lot more of this', or 'I can get you what you want'.

"The Internet kind of transforms shoplifting from a petty theft into a lucrative business," Talamo says.

Uncertain Legal Terrain

Fake Coach handbags for sale on Canal Street in New York; fake Coach handbags for sale on eBay. Are online auctions really any different from criminal activity that has been happening all along? Yes and no.

Much of the criminal activity that used to take place at flea markets has simply moved online. The difference is that flea markets and another typical fencing operation - pawn shops - are regulated by a patchwork of state laws. In those venues, sellers might be required to show receipts for merchandise, or to register and fill out paperwork before selling certain goods. Online, the same rules don't apply.

"The auction sites, in my opinion, are a marketing ploy for the organized retail crime organizations, just like the flea market booths were before the Internet took over," Rogers says. "It's simply a situation of criminal displacement."

EBay and others contend that they merely provide a trading platform for buyers and sellers, and are not responsible for any illegal transactions that may occur. "We never take possession of goods," says Hani Durzy, a spokesman for eBay. "We never touch them; we never see them. Therefore, of the 50 million listings on eBay [on an average day], we cannot confirm the origin of anything." [the CSO of eBay in Australia, Alastair MacGibbon, declined our offer to be interviewed for this story.]

So far, the argument has worked. The online auction companies have managed to avoid regulation either of themselves or of the growing number of third-party brokers who specialize in selling items on their platform.

Three cases in particular stand out. In 2000, a judge in San Francisco dismissed a lawsuit filed by an attorney named Randall Stoner over bootlegged music sold on the site. The judge ruled that eBay was shielded by the Communications Decency Act, which protects Internet service providers from liability for potentially illegal conduct by their customers. Then, in 2001, a documentary film producer named Robert Hendrickson sued eBay for pirated DVDs being sold on the site. This time, a California judge ruled that eBay was covered by a safe harbour clause in the Digital Millenium Copyright Act. (The safe harbour protects online service providers from copyright liability, provided they block access to infringing material when they receive proper notification from the copyright holder.) Finally, in 2002, yet another judge in California threw out a case filed by five eBay users who had purchased phoney autographed sports memorabilia. The judge ruled that eBay was not a "dealer" that needed to follow California's Autographed Sports Memorabilia statute.

Right now, the auction company faces the attorneys for two more formidable opponents. In Germany, high-end wristwatch manufacturer Rolex sued eBay for copyright infringement. The case was originally decided in favour of eBay, but an attorney for Rolex says that an appeals court recently reversed the trial court's decision and sent the case back for further proceedings. In the United States, the upscale jeweller Tiffany has filed a lawsuit charging that eBay is facilitating and participating in the sales of products that violate Tiffany's federally registered trademarks. (Tiffany declined to comment for this story, citing the active lawsuit.)

In a complaint filed in the US District Court in New York, Tiffany's attorneys offer a rare glimpse into the scope of the eBay problem. During one five-month period, two Tiffany employees devoted "substantial portions of their time" to getting eBay to shut down 19,000 auctions of counterfeit Tiffany merchandise. That's 126 auctions a day. In another effort, the company randomly purchased 186 pieces of "Tiffany" jewellery for sale at eBay and found that only 5 percent of the items "advertised and sold as being genuine Tiffany jewellery were, in fact, genuine".

EBay declined to comment on the specifics of the case. Durzy says only that the claims are without merit and that the company is "disappointed to see that Tiffany felt that it had to resort to this".

"Their theory is that they're not like a seller, they're like a classified ad," says Brian Brokate, a partner with Gibney, Anthony & Flaherty, a New York City law firm that serves as Rolex's general counsel. "But they take a percentage of the sale price, so that to me says they are participating in the sale."

Brokate doesn't seem terribly optimistic that the courts will agree with him, though. "Everybody is watching the Tiffany case to see what happens," he says. "We're hoping for a good result, obviously. My primary concern is that no bad law comes out of it - that some court doesn't say, this is what eBay is, and this is what eBay's responsibilities are, and one of them is not to monitor for counterfeits.

Working with the System

Limited Brands and a coalition of other large retailers have taken a different tack. About a year and a half ago, under the auspices of the Retail Industry Leaders Association, companies including Limited, The Home Depot, Lowe's, Wal-Mart, Gap and Target approached eBay to open talks about reducing illegal activity on the site.

"They're pretty good at dealing with law enforcement, but that doesn't help if you're a retailer," says Limited Brands' Jones (whose full title is CSO and senior vice president of loss prevention and global security). He recalls the first meeting with eBay: "We said, Look, if you start working with us, and you start coming to the table with solutions", then retailers won't be forced to take legal action. "But right now," the retailers told eBay, "you're part of the problem."

The most pressing issue at the time was gift cards. Organized retail crime rings were returning stolen merchandise for store credit, and then selling the credit online. For criminals, selling store credit provides much higher profit margins than selling the merchandise itself. Hajdu, the Limited investigator, paid 25 cents in the dollar for the allegedly stolen panties that he purchased from Stevanovich. Recently, an eBay buyer paid $US375.99 for a $US449.99 Victoria's Secret gift card - 84 cents in the dollar.

Richard Hollinger, a University of Florida professor who conducts the annual National Retail Security Survey, posits a scenario such as this: "Imagine a woman manager standing there in Victoria's Secret, when this guy comes in with 50 pairs of panties in different sizes," Hollinger says. "What does she say? 'Do you not like the colour, Sir? Did they not fit?' And he has no receipt. It's bad enough to be ripped off, but the ultimate insult is to use your own profits to buy the stolen merchandise back."

The group of retailers scored its first victory when eBay put a $US500 cap on any gift card offered for sale at the site, and barred any single seller from offering more than $US500 worth of gift cards in one week. (This also helped with another common scam: the sale of gift cards purchased with stolen credit cards.)

One day in June, CSO found more than $US11,000 worth of Macy's gift cards being offered by one seller alone. (The seller was later shut down. EBay's Durzy says the company has a group of people who monitor auctions for banned items, but that "there's always going to be a lag time".) So the program isn't perfect. But it's a vast improvement, Jones says. "We still see times where eBay misses stuff, but the problem is about half of what it used to be. Although they've taken longer than we like, we're really starting to see some payback with the partnership with eBay."

Brand owners can report sales of banned products, such as high-dollar gift cards, using a standard listing violation form available to anyone on the site. They also can report counterfeit and pirated goods through an eBay program known as VeRO, for verified rights owner. Companies say that eBay has streamlined the VeRO process and become adept at shutting down reported auctions that involve counterfeit goods or items that are not allowed on the site.

At World Wrestling Entertainment, Stacy Papachristos, an associate counsel for intellectual property, takes a typical approach. Papachristos identifies hundreds of copyright infringements on eBay every week - often a recording of a pay-per-view event that WWE has not yet released on video, or a T-shirt that she knows is not authorized because it shows a WWE performer wearing someone else's logo.

"[EBay is] making it easy for us to shut down the auctions," says Papachristos. She opens the infringing auction in her Web browser and clicks a button that says "report", smacking down the auction by the next day. "They don't ask us any questions. If for some reason I happen to shut down [an auction] that's legitimate, the person can file an appeal, which hasn't happened."

Papachristos also sends a cease-and-desist letter to the eBay seller, threatening legal action if the person does not stop selling counterfeit goods and reimburse WWE for past sales. (EBay's privacy policy states that it releases seller names and addresses, as well as other personal information, to VeRO participants; a subpoena is required for more detailed information, including Social Security number, financial information and the IP address of the seller's computer.) She won't say how much money she gets in a typical month, but she indicates that it makes the two days a week she spends on the project worth the company's while.

"It's kind of like what the music industry is doing [to crack down on pirated music], but we haven't filed any lawsuits," she says. "We haven't yet, anyway."

A Sprouting Industry

Limited Brands' CSO scoffs a bit when he hears about WWE's fledgling program. As a collector who has spent about $US20,000 buying professional wrestling memorabilia on eBay, Jones has a pretty good idea of the number and nature of illicit WWE goods showing up on the auction site. "Their trademark is so violated now," he says. "I think they're just scratching the surface."

The fact is, a company can devote as many resources as it wishes to patrolling online auction sites. An entire industry has sprouted around them. Companies such as Brandimensions, Cyveillance, ICG and MarkMonitor gather intelligence about where stolen, diverted and counterfeit goods are appearing online, including on auction sites. GenuOne even sells a piece of software called GenuNet Auctions that was specifically created to monitor and shut down illegitimate auctions.

Other less specialized software tools can be used as well. Rogers says that companies can build databases of current and past sellers, then run software against the databases to look for non-obvious relationships between sellers - perhaps to track down someone who has opened up shop under a new name. Infoglide has a product along these lines. Another is Analyst's Notebook from i2 (an investigative analysis company in Springfield, Virginia, not to be confused with the Dallas-based supply chain management company).

An easier option is for brand owners to hire a specialized law firm. In addition to working for Rolex, Brokate says that his firm currently patrols the Internet for 20 other clients, and serves two or three lawsuits each month for copyright infringement involving eBay. At deKieffer & Horgan in Washington, DC, another set of attorneys keep a vast database of people who have engaged in trafficking stolen and diverted goods in the past. They look for matches among people who are currently selling suspicious goods that carry their clients' brands.

For businessmen such as David Saenz, vice president of worldwide security for Levi Strauss, it's a more cost-effective way to deal with the problem. "It's a lot of time spent looking at a large volume of data, and really, the actionable data is quite small," says Saenz, who relies on outside parties - such as deKieffer & Horgan's Don deKieffer - to notify him of perhaps five problematic sellers each month. The service helps him track down grey-market sellers who are breaking their retail sales agreements with Levi Strauss and serving as wholesalers, something that neither law enforcement nor eBay would ever be able to determine.

"Rather than having a large staff spending time looking at this, it makes more sense from an economy-of-scale standpoint to outsource," Saenz says. "Then we're looking at it with a rifle shot as opposed to a shotgun approach."

More Left to Do

Companies would like eBay to do more to help, of course. EBay regularly shuts down sellers who are reported for either multiple or egregious instances of copyright infringement. (Although the company is often reported to have a "three strikes you're out" policy for ousting sellers that offer counterfeit goods, Durzy says the policy is not that formal.) But reviews are mixed on how well the company keeps those users from returning to the site under a new seller name.

Durzy declined to comment on eBay's processes for keeping "previously suspended users" from opening new accounts, citing concerns that it would help those persons circumvent the policies. It's a valid concern: One Web site sells an e-book called eBay Again, which promises to help the reader "get past the harsh and unforgiving eBay suspension".

Some companies would like to see stricter controls around the volume of goods that a single seller can offer - similar to the $US500 limit on gift cards. Others want eBay to shut down auctions of products they believe have been stolen, without the need to involve law enforcement. The most optimistic ones even want eBay to employ a large staff of people who are trained to identify counterfeit merchandise, and who would spend their days - as the brand owners do now - taking down problematic auctions, or even blocking them before they are posted in the first place. There are also spot solutions that might help certain brand owners patrol the site, such as requiring sellers to list a serial number on Rolex watches.

Durzy says that eBay already employs a team of people who monitor the site for banned items. He also says a fraud investigation team does nothing but work with law enforcement on suspicious activities, and that that's the way it should be. "The logical and very common sense threshold is that if you feel something is stolen from you and you see it on eBay, go to law enforcement, and please tell them to contact us," he says. Otherwise, he asks, how could eBay know that the product had really been stolen?

Besides, further stepping up the efforts would not be cheap, and right now, the company has little incentive to do so. The people who eBay really wants to please are its customers, and many buyers simply don't care if they end up with stolen or counterfeit goods. "It's just like people buy the knockoff on the sidewalk, and they know they aren't getting a real Kate Spade handbag, but they don't appreciate the harm that that does," says Susan Grant, director of the National Consumers League Internet Fraud Watch.

Sellers are already complaining about abuses of the VeRO program. One Colorado-based seller named Karen Dudnikov, who sells quilts and other items made with properly licensed, trademarked fabrics, says she has had to take legal action to convince 17 rights-holders who "VeRO'd" her auctions to retract their takedowns. Her Web site, www.tabberone. com, now serves as an unofficial clearinghouse for eBay sellers who have had problems with VeRO.

Going forward, Limited Brands' Jones acknowledges that eBay faces a difficult balancing act. "EBay has to walk a fine line between treating a customer and a seller both with privacy and respect," he says, and with putting a stop to illegal activity. Whatever eBay does or does not do, the company has created a new marketplace, and someone has to police it.

For now, at least, the burden falls on companies, the best experts on their own products. It seems safe to say that people such as Hajdu will continue to spend their days immersed in a job that's both a dream and a nightmare: surfing the Internet and buying merchandise on online auction sites, and dealing with a constant and overwhelming onslaught of goods that might - or might not - be hurting their employers' profits and brand name.

Hajdu notes, somewhat jokingly, that he has great job security. "As the Internet grows, I think there's going to be a continual need for people to go out and police certain Web sites, whether it's on eBay or another site. It's the same old crimes that have been around for centuries. The Internet has just opened up a worldwide customer base."

SIDEBAR: Selling Points

Name-brand retailers who trawl eBay for their wares are likely to find thousands of auctions at any given moment. Experts know how to narrow the search to the most suspicious activity. Here are some of the things they look for:

$ Merchandise listed as NWT, or "new with tags"
$ Prices below wholesale
$ Large lots (50 or more of one kind of item, in various sizes)
$ Multiple items offered by one seller
$ Goods from the company's latest product line
$ Items that are not yet available in stores
$ Products match the description of goods recently stolen in quantity
$ Sellers whose postcodes are in the same area as recent thefts
$ Gift cards, especially in large amounts and from various retailers
$ Short auctions (the seller may be trying to evade detection)
$ Sellers who require money orders rather than easily traced PayPal


FA$T FACT
On one day in the past three months, there were 24 gift cards from Victoria's Secret for sale on eBay, eight of which were for more than $US100 each, and one of which was for $US449.99

FA$T FACT
An eBay seller was shut down in June for offering more than $US11,000 worth of Macy's gift cards on a single day

FA$T FACT
In a lawsuit filed against eBay, Tiffany reports that of 186 randomly purchased pieces of "Tiffany" jewellery for sale at eBay, only 5% of the items were genuine

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