2,000 Miles to the Promised Land

All factual statements presented here are correct according to my recollection of events. I do not believe anyone — employee, Board member, contractor, or investor — was complicit in Ben Trafford’s crimes. Some names have been elided at the request of their owners.

new beginnings

Like every good story, this one begins with a woman. I met her in college, and after I graduated I found a job nearby so that I could stay near her for two years until she graduated. We were to be married soon after.

When your life’s going great, you tend to think that for once, things are going to work out. It’s when your life falls apart and you’re holding the cracked and broken pieces of something that was once great that you realize that things did, in fact, work out… this is just how they worked out.

After spending a couple of months in a black funk, I snapped out of it. I realized there was nothing holding me in Iowa anymore — and, come to think of it, why the hell was I in Iowa again? I started looking for other jobs, anything to get out of the dead–end job I’d held at MCI–WorldCom for two years. I found short–term employment with a Midwest telco, but that ended, too (not a minute too soon). A week before Thanksgiving, I was looking for work again.

A friend of mine, Mary, heard that I was on the market. She told me about a business in California in which she and her husband were investors, and said they needed a few really good engineers. I sent an email off to Exemplary Technologies, along with a resumé and a code sample. Exemplary Technologies — through the CEO, Ben Trafford — offered me a job within two weeks. I was deeply concerned about working for a start–up, but Ben assured me that everything was cool. They had ten million in the bank from some Malaysian investors, they were fully funded for eighteen months of operations, and if an act of God were to wipe out the VC funding, Ben promised to fund the business out of his own pocket. He talked about his history with Commerce One and the millions of stock options he had from it. All in all, it sounded pretty darn good.

So good, in fact, that I called Mary up afterwards to ask her if this was for–real. It’s not every day that a software engineer out in the cornfields gets the chance to work on a well–funded startup with lots of potential. I figured to follow the maxim of “if it’s too good to be true, it probably isn’t.”

Mary and her husband, Mike, had invested heavily in Ben’s company. They shared many of my concerns, but told me Ben was on the level. With that endorsement, I called Ben back and told him that I’d love to take the job. We negotiated a salary and a healthy relocation allowance, which he promised would be in my account by Christmas. I was to show up for work on January 4, 2000 — a Tuesday.

Christmas came and went without a dime in my account.

Ben had all sorts of excuses for the delay — the check was at the accountant’s, he mistranscribed a digit in my checking account number, whatever. By the time December 31 rolled around I was torn between a desire to honor the spirit of the agreement and undertake the move, even though I hadn’t seen a dime, and the desire to tell Ben that I wasn’t moving an inch until I saw the money.

In the end, I decided to honor the spirit of the agreement.

I’ve spent the last few years wondering whether that was a mistake, or the wisest thing I’ve done.

murphy’s golden rule

I called Ben a few times from the road, each time demanding to know where my seven grand of relocation money was. I couldn’t understand what the problem was; after all, if the company had ten million bucks in the bank, as Ben loudly promised every time I called him, then why the hell couldn’t Ben just write a personal check to me for seven grand and let the company pay him back in their own sweet time? There I was, hurtling across the Bonneville Salt Flats at a hundred and twenty miles an hour, and Ben was yanking my chain. I got pretty angry with him and told him, in no uncertain terms, that when I walked in the front door I didn’t want to hear anyone say “hello” or “how are you” — I wanted to hear someone say “here’s your money, Mr. Hansen” and press a cashier’s check in my hand.

I wasn’t kidding, and made Ben aware that I wasn’t kidding. Ben promised, up and down and left and right, that when I got into the office nobody would even say hello to me until I had my money.

When I got to San Francisco I had less than three hundred dollars to my name. Parking my car in the parkade underneath Embarcadero Four in the San Francisco Financial District took up twenty bucks of my meager life savings. I took the elevator up to the twenty–fourth floor and found a door labeled “Astound!ng Technologies” where I expected Exemplary Technologies to be.

This is odd, thought I. What the hell is going on here?

I opened the door and stepped in. Dolores K— (who later became Dolores G—) was sitting behind the secretarial desk, and looked over towards me as if I was a total surprise to her. Given that I looked like hell from two thousand miles of travel and hadn’t shaved in three days, I can’t really say I blame her.

“Hello,” she said. “Can I help you with something?”

“Yeah,” I said. “I’m Rob Hansen.”

She gave a vague nod of incomprehension. “And…”

“You’re supposed to say, ‘here’s your money, Mr. Hansen’.”

A shocked look crossed Dolores’ face, one that I’d see many more times in the months to come. It was the oh, God, what has Ben done this time? expression. “I think you’d better talk to Ben—”

“Yeah, I think I’d better, too. Where is he?”

Dolores pointed off towards one of the back offices and off I stormed.

Three people were in the back room, whom I’d later come to know as Deb Hooker, “Disco” Dan Rosen and Ben Trafford. Disco was a Brown University student, here over his Christmas break to do some contracting. “Which one of you’s Ben?” I asked. I didn’t even bother saying “hello”.

Ben rose. He was a thin fellow with a perpetually hungry look to him, with a hairline that was prematurely receding. He was far younger than I was expecting — not much older than I was. “You’re Rob?” he asked.

I struggled to restrain my anger. “You’re supposed to say, ‘here’s your money, Mr. Hansen’.”

Ben blinked and looked confused. “What, you mean you haven’t — all right, I’ll get to the bottom of — did you talk to Dolores?”

“Dolores?”

“Secretary out front. She was supposed to have your check—”

“She told me to talk to you about it.”

“Oh, god dammit,” Ben muttered with emphasis. “I’m sorry, they were supposed to drop off the cashier’s check with Dolores this morning. I’ll give a call and see what’s going on with — right — you haven’t met Dan and Deb. Deb Hooker is our Vice–President of Engineering, and Dan’s our…”

“Young genius in residence,” Disco joked. That was par for the course with Dan — he was dead certain that he was the best there was, period. I’d met a lot of people with Young Genius Disease, but in Dan’s defense, he proved to actually be a genius, which is far more than most people with YGD can claim.

Me, I suffer from Young Genius Disease, but I’m not a young genius. Sucks to be me.

“Right,” I said, “I’m Rob.”

“Cool. What are you doing for us?”

“Right now, wondering where my relocation check is.” Ben made some apologetic noise and left for the front office, muttering something about how you couldn’t even trust an accountant nowadays. “But once we get that straightened out, I’m going to be doing whatever engineering gets dropped in my lap, I guess. I still don’t know exactly what I’m supposed to be doing here, myself.”

“We’ll get it straightened out,” Deb interjected. “I’m Deb, like Ben said, welcome to the team, see if you can make sense of the whiteboard.”

The back office was where most of our engineering work would be hammered out in days and months to come. It had two desks which nominally belonged to Ben and Linda James, but which really belonged to whoever could get there first. Deb was occupying Linda’s desk, and once Ben left for the front office, Disco took over Ben’s seat. Along the wall beside Ben’s desk was a whiteboard which occupied almost the entire wall. At the time, it was covered in UML sketches, outlines of Java classes, specifications and data transformations. I didn’t understand much of it, but as is often the case, I didn’t need to. Leon Tabak, my CompSci professor at Cornell and a sort of mentor to me, once gave me a very philosophical piece of advice: “be careful,” he said, “not to lose the substance for grasping at the shadow.” In English, that roughly means that the implementation of an idea is not the idea itself. If the idea is sound, then an implementation can be created; but if the idea is unsound, no implementation will succeed. Hence, never worry about implementation until you have a good grasp on the idea.

The whiteboard indicated that their minimum target market was a Palm III handheld. The basic idea was to create electronic books targeted at a Palm III, written in Java, using a prototype implementation of a Palm JVM.

The idea was no good.

First, I had serious doubts that a full JVM could run on a Palm III. The JVM is memory–intensive, and the Palm III is memory–scarce. Could we realistically expect to have enough room to store an ebook, a Java virtual machine, and ebook reader software, within the very limited storage space of a Palm III?

Second, even if we had enough room, did we have enough logic? The Palm III was not known for having a hefty processor, and Java was enough to bring even desktop machines to their knees.

Third, even assuming we could make it fit, people still wanted to use their Palm IIIs to write memoranda, keep track of schedules and appointments, phone numbers, and so on. Even if we had enough room to do it, we wouldn’t have enough room to do it and permit users to continue using their Palms normally.

“Java won’t do,” I said as I looked over the whiteboard. Disco looked at me as if I’d just insulted his family honor and Deb remained silent. I took the silent responses as a “go on”, so I walked up to the whiteboard and made some notes in brown marker. Every other color had been used so far, and I wanted my notes to stand out some. I wrote out the problems that I saw with the design, and my own recommendations for solutions. Namely...

Use C on the Palm platform to conserve memory and logic,
Require at least a Palm V in order to give us more memory and logic

Deb voiced her opinion at this point. “I think we can do it,” she said. “It’ll be hard, but if we squeeze it until it bleeds, we can do it.”

Disco chimed in at this point, too, basically telling me that for someone who’d been in the office all of ten minutes, I sure didn’t know anything. I didn’t take any umbrage at it, though, and I don’t think Dan meant any offense by it either — the design was mostly Disco’s, so he was going to defend his design vigorously. Most people don’t understand how much ego there is in engineering; but when you toil and sweat and bleed for a design, the last thing in the world you want is for someone to come in, look at your design for ten minutes, and say “nope, won’t work”.

This is how progress is made in engineering. If engineers are arguing heatedly, that’s a sign the engineering pit is healthy.

I’d just finished writing “If anyone’s got any solutions, talk to Rob” in brown ink on the whiteboard when Ben returned.

“Rob,” he said, “God, man, I’m so sorry about this. The check’s down at the accountant’s—” Deb arched an eyebrow, but didn’t comment. “— Linda has the check, Deb,” Ben explained before going on. “But we’ve talked to the guy over at the Pierre Suites, and everything’s ready for you to move in. Just ring Cliff and tell him I sent you over and — hey, what—” Ben stopped in midsentence. He looked at the marks I’d made on the whiteboard and asked, incredulously, “What the fuck is this about?!”

“He’s got some concerns about the Palm III,” Deb answered.

“No. No, no, no,” Ben said repeatedly, shaking his head. “Disco’s already figured it out—”

“Disco’s wrong,” I said. “Ask Deb.”

“Deb?”

Deb waited about three seconds before answering, as if she had to choose her words carefully. “He’s got some good points,” she finally said, “but it’s doable. These are things we need to think about, though—”

“No. No, we don’t need to think about these things, Deb, we’re committed to the—”

“We have to think about them so we can solve them, Ben. They’re solvable. We’re committed to the Palm III.”

“So we’re still go, then?”

“Yeah.”

“Then we don’t need these up here,” Ben said as he picked up the eraser. A few strokes later and my comments were totally erased. “Okay, Rob? You just go on to the Pierre and get yourself settled in some. I’ll see you tomorrow morning. Oh, by the way, are you a white or a red guy?”

“White or red?”

“Wine.”

“Depends on the course.”

“Pasta?”

“Red. Cabernet sauvignon, maybe a pinot noir…”

Ben looked a little crestfallen. “Oh,” he said. “Well, Cliff’s got you a basket of organic pasta and whatnot, and wanted to know what kind of wine to go with it — I told him white, a Riesling, but—”

Ben tried very hard to give himself an air of sophistication. I found out later that he came from a poor family and had no higher education to speak of. That may be the reason for his attempts at appearing sophisticated, but at the time I didn’t know any of this. All I thought was, what kind of moron orders a Riesling for pasta?

Ben looked over at me, at Deb and Disco, then left the office again. This time he was muttering something about having to track down a check.

“What was all that about?” I asked Deb, as soon as Ben was out of earshot. “That ‘we’re committed’ thing?”

“Our investors want us to target the Palm III,” she answered. “So that’s why we’re targeting the Palm III.”

“But we can’t — look, I know you say we can, but I don’t think we can do it. I don’t think it’s realistic.”

“Doesn’t matter.”

I sighed, closed my eyes for a moment, and tried to make sense of things. “Deb, how can it not matter if it’s unrealistic?”

“The investors want the Palm III,” Deb replied. “If the investors want nut–flavored chocolate on top of it, then it’s our job to give the investors nut–flavored chocolate. Murphy’s Golden Rule, Rob. Those with the gold make the rules. Look, go on, get out of here, get to your place and try to relax some. See you tomorrow morning.”

the cliffs of sanity

If you’re ever in the San Francisco area and need a place to stay for a week, check out the Pierre Suites, at the intersection of Pine and Powell Streets on Nob Hill. The building manager is a fellow named Clifton Romig, but everyone just calls him ‘Cliff’. Tall guy with thinning hair and thinner glasses, who’s one of the most decent human beings I met in San Francisco.

Cliff pointed me to the Crocker Garage on California Street as a good place to park my car for a month or so, “until you get out of here and into an apartment somewhere”. He gave me the name of a fellow who worked there and told me to make sure I mentioned Cliff’s name. When I got to the Crocker Garage, it had a sign out announcing it was full up. But once I mentioned Cliff’s name to the right person, lo and behold, they were able to find a parking space for me.

One month of parking, cash in advance, cost me about two hundred and forty dollars.

I had two hundred and seventy dollars in my wallet.

I returned to my corporate housing at the Pierre and ordered an extra–large pepperoni. I’d been driving all that day and I had no desire to walk the two blocks to Uncle Vito’s, despite the fact that Cliff told me no better pizza existed than Uncle Vito’s.

(As usual, by the way, Cliff was right.)

The corporate housing was nice, if claustrophobically small. One room, equipped with a Murphy bed, a couple of tables and chairs, an antique wooden dresser and a small television set. There was an attached kitchen and bathroom, but all in all, it was about the same size as an efficiency apartment. It was a nice place to stay for the first week or so, but after the first month I began to go mad being hemmed in by those four walls.

That miniature place wound up being my home for the next six months.

the morning after

I woke up at six–thirty, ready for a hard day’s work as a software engineer in a Silicon Valley start–up. I was at One Embarcadero by eight o’clock, and spent the last of my cash getting breakfast at a McDonald’s just around the block. I tried the door of Astound!ng Technologies at just past eight and discovered…

… locked.

Dolores was the next person to arrive at the office, somewhere around nine–thirty. She was surprised to see someone else there so early, and asked how long I’d been waiting. I lied and said only about five minutes — I didn’t want to get people talking about me, as in “Rob’s that fruit who came in at eight in the morning.” Back home in Iowa, it was commonplace to show up at the office at eight and knock off at five — but in California, I’d soon learn, nobody in a start–up even bothered to be out of bed by eight. Work hours were much different, as I’d soon learn.

“By the way, Dolores,” I asked, “there any word from the accountant about my check?”

Dolores gave me a look which was one part trepidation and one part incredulousness. “No,” she said. “You’re supposed to have one?”

“What, you mean Ben didn’t tell you?”

“No,” she said. “All financial stuff goes through him. Or else Jack or Linda.”

“Linda, right, that’s who he said had the check — but yeah. I was supposed to have seven grand in relocation expenses. I’ve got about three bucks in my pocket right now, and — well, you just can’t live on that, you know?”

“What exactly did Ben tell you?”

“Which time?”

Dolores didn’t ask me what I meant; apparently, she knew about Ben’s track record on getting things done. In hindsight, I should’ve realized that if Ben had done the same thing to her, then I should get out of there really damn quick — but, as is usual, I was slow on the uptake. “Pick.”

“First it was that he didn’t get to the bank in time. Then it was that he got some account numbers mixed up. Then it was delayed at the accountant’s. Now the check’s been cut, it’s down at the accountant’s, I’ve got three bucks in my pocket and trolley fare is two… I need that check, you know?”

Dolores gave a mute nod. The door to the front office opened and a pale young woman with extremely short hair stepped in. Dolores greeted her as “Jen”, but I didn’t say anything — I was still talking to Dolores, and a little agitated over what I perceived to be some spectacular mismanagement. “If I don’t get that check in my hands by the end of the business day,” I said, “I’m going to go down and visit that accountant with fire and sword and salt the motherfucker’s fields.” I shook my head. “Fuck it,” I said, “I’m just going to go get some work done and try not to think about it.”

I headed into the back room and got a network connection with my email server back home. The only news was bad news; my cousin Katherine emailed me to tell me that an elderly and much–loved family member died — my Aunt Dianne’s father. Now, it wasn’t any surprise, really — I knew that he’d been in poor health for a long time — but I still felt like I needed to be back home, with family, trying to be there for my cousins for the death of their grandfather. My family’s always been close–knit, and… it just didn’t feel right that I couldn’t be there.

Katherine mentioned that Don’s family had specified a charity in lieu of a memorial fund. She and I both felt that it would be appropriate for us to pitch in and donate to the fund — after all, they’re Katherine’s cousins, too. We agreed that Katherine, my brother and I should all pitch in $100 so as to make the donation more than a token. Unfortunately, I was dead broke, and I didn’t even ask my brother if he had cash — with three kids, his finances are always a lot tighter than he’d like. So I told Katherine to go ahead and pitch in $300 in our three names, and I’d pay her back the $200 as soon as my paycheck came in.

I wasn’t able to pay her back until September.

Katherine and I bounced emails back and forth that morning as I tried to get some research done on the subject of digital rights management. Around noon, we finally got things settled and I was about to turn myself back fully to work, with only the occasional thought of my own mortality, when Ben finally got into the office.

The first thing Ben did was shut the door and, for lack of a better term, lay down the law.

Of course, it’s hard to lay down the law when the other guy is holding all the cards. I was still owed seven grand; I had just relocated two thousand miles; I was on the razor’s edge of walking away from it all and I didn’t give a damn what happened. Ben either didn’t see this, didn’t realize it, or didn’t care — while he was very good at manipulating people, he was occasionally blind to even the spectacularly obvious.

The first issue of contention was that I had no right to come into a new job, study a whiteboard for ten minutes, and then criticize some other engineer’s work without even understanding it. (Somehow, I managed to refrain from laconically quipping that Disco didn’t understand it, either — he lost the substance for grasping so eagerly at shadow.) I nodded, gave some bullshit answer about how “well, I’ll see about making amends with Disco, then” — some answer which, while true, didn’t mean very much — and all was well.

Ben finally agreed that, in theory, we might have some problems with Palm III performance, memory and logic. But he was absolutely certain, beyond any shadow of a doubt, that it was just a matter of “getting the right people to move it from theory into practice”.

I thought for a moment about reminding Ben that if it doesn’t work in theory, it can’t work in practice. I decided against it when I realized that would just make the conversation go on even longer and more tediously than it already was.

The next issue was that somehow Jen wound up thinking that I was going to go Columbine in the office. Namely, it’d been reported that I was making threats against the people who were responsible for my check’s delay. “No,” I said, “I didn’t threaten anyone. I said I’d visit upon them with fire and sword, and salt their field.”

Ben just looked at me blankly.

“It’s a classical reference,” I said. “You know. Ignie ferroque, ‘fire and sword’. It’s a way people described the Roman Legions coming to town.” Ben made a chuckle and was about to say something like “yeah, I was just blanking” — or at least, that’s what it appeared to me like — when I interrupted with “Hi, I’m a liberal–arts major, would you like fries with that?”

Ben turned suspicious for a moment. “You said your degree was in CompSci…”

“It is. Well, Cornell and I have a disagreement over one foreign language credit, [1] but… yeah, I do. Bachelor of Arts, Computer Science. Liberal–arts degree.”

“Oh. Weird.”

“Yeah.”

“But you still need to apologize to Jen or else you’re fired.”

At this point, my only thought was what the fuck? I’d heard of hypersensitive office politics, but that was the first time I was ever expected to apologize to someone for using a classical reference.

“Fine.”

“I don’t expect we’ll have to talk about this again.”

I didn’t answer. Every answer I wanted to give him started with “you’re an asshole, you owe me seven grand, pay the fuck up”, after all. I just stood and walked out of the back office, into the front office. Jen — whom I’d never before met — was sitting at Dolores’ desk while Dolores was away on a coffee break. I didn’t apologize to Jen; I just explained the classical reference, she laughed and was a little sheepish about taking it as seriously as she did, we both had a good laugh, all was well. No apology was offered, and no apology was required. Problem solved.

Jen also told me why Dolores had been giving me such weird looks when I’d been asking about the delays in getting me my check. People had been paid part of their back pay in December, but money was tight all over. The way Jen was talking, I didn’t think there was seven thousand dollars to be had in the company.

(I’d later find out I was right. There wasn’t. Nor was there when Ben made me the job offer.)

I stepped out of the office for a while to think long and hard about some things. I’m a Midwesterner by nature; deep in my soul, I’m always going to be an Iowa farm boy. Like Marlon Brando says in the movie The Freshman, “Every word I say is, by definition, a promise.” That’s the sort of man my father is; those are the sorts of men my uncles are; that’s the sort of man my brother is.

Mike and Mary Jones had invested basically their whole life savings in this firm. Now that I was here, in Silicon Valley, with a ground–floor view of the place, I could see it was horribly mismanaged, spectacularly short on real funds, housed in borrowed office space.

But I gave Mike and Mary my word that I’d work at the firm, try and make it a success. Try and give them a return on their investment.

On December 31, I moved out to San Francisco without seeing a dime of relocation funds because I wanted to honor the spirit of the employment agreement. Since Ben had made it abundantly clear that he didn’t give a tinker’s dam about the spirit of the agreement, I didn’t feel obligated to adhere to it, either — Yomu, the company, was grossly in default of contract.

But Mike and Mary hadn’t lied to me. They told me the truth, as best they knew it. Maybe they didn’t look into it as deeply as they should’ve, or maybe they knew something I didn’t, or… it didn’t matter.

I realized that I needed to get the hell out of Dodge. The company was a fraud.

I walked back into the office and had a conference with Ben. I told him that, given the company’s shaky financial situation, maybe it’d be better if I worked part–time at Yomu and found a contracting job to put cash in my pocket. Ben immediately shot this idea down. “We’re ramping up Engineering right now,” he said. “We need everyone focused one hundred percent on Yomu business, and nothing else. If you want to look for outside work, fine, but we’ll take that as termination of the employment agreement.”

I wasn’t so dense as to miss the implication. “Which means my housing goes away, too, right?”

“Right.”

I had three dollars to my name.

Ben pulled out a handful of twenties and underhanded them to me. “Look, it’s a hundred bucks. It’s not much, but it’ll tide you until we get you your check, right?”

“Yeah,” I said. “Thanks.” I left the back office.

I walked out of the back office in a state of absolute shock. I’d just become a twenty–first century sharecropper. I couldn’t find outside work without winding up homeless — and I couldn’t leave the state because three bucks of gas money won’t get you past Walnut Creek — and I couldn’t get paid because there was no money to pay anyone with.

If there had been, Ben would have paid me with a payroll check — not with cash out of his own pocket. There’s an accounting trail for payroll checks; there’s withholding taxes paid; there’s accountability.

If there wasn’t even enough payroll for a $100 check, then there wasn’t any payroll at all.

As I left the office that day, I couldn’t get a line from the movie Real Genius out of my head. Play the Val Kilmer audio track: “If you think that by threatening me, you can get me to be your slave… well, that’s where you’re right.”

It was funny when it was happening to Val.

The next day was my twenty–fifth birthday.

Shortly after this, I started telling myself that I was sticking around out of loyalty to Mike and Mary. When you wake up and find yourself in a Kafka story, self–delusion is as sane a coping mechanism as any.

the next week

I spent a lot of nights at the office. We didn’t have enough office space (or equipment) for everyone to work at the office comfortably, so if you wanted to get stuff done, you had two choices: either tell somebody else to do it, or else come in early in the morning or late at night when there was hardly anyone else around.

I spent a week doing research on digital–rights management solutions. drm technology basically exists to provide the people who own intellectual property (copyrighted books, computer programs, artwork, etc.) a means to assert their rights even after the work has been released electronically. drm is a very narrow tightrope; while it’s important that copyright be respected and some mechanism in place to enforce it, it’s equally important to remember that the buyer has rights, too. First Sale and Fair Use are well–entrenched in the law.

When I wasn’t doing research, I was prototyping systems — taking the latest research I could find and creating quick one–offs to test concepts. This is a perilous way to create software, but it’s fast. It’s perilous because (to quote Professor Tabak again) you run the risk of losing the substance for grasping at the shadow. Writing security software is a demanding task and utterly intolerant of even the slightest failing. Doing rapid prototyping and development means that you’ll make something that works in pretty short order, but you’ll spend years discovering subtle errors and damning flaws. It’s not enough that security software work ninety–nine percent of the time. All it takes is for one person to figure out how to tweak that one percent, and that one person will tell other people. At that point, the genie’s out of the bottle and he’ll never go back in.

Every drm system has an irreversibility problem. Once the system is broken, you can’t assert the author’s rights any more. There’s nothing wrong with entering game–over states… but there is something wrong with entering game–over states when you’re down by three.

I spent many a sleepless night slaving over the problem. After a week, I had the germ of an idea. It wasn’t revolutionary so much as it was evolutionary; it wouldn’t change the world, but it was a darn sight better than what our competition was offering for drm.

One late night I told Ben about cortana, the name I’d given to the system I’d conceived. Cortana was the legendary sword of Ogier the Dane, and is the Danish equivalent to Durandal or Excalibur. If we could somehow make sure that cortana was never reverse–engineered, we could have a good claim at having the best DRM system on the market. “Of course,” I remarked, “nobody can claim their system can’t be reverse–engineered. Fool’s errand. If it can be engineered, it can be reverse–engineered.”

The next day, I was told to start looking into ways to make it impossible to reverse–engineer. Again, there was the mantra “the investors want it”. I began to wonder who these investors were — after all, investors implies we have money, right?

Or was Ben making outrageous promises to potential investors in order to get them to put money into us…?

When the light bulb went on over my head, it almost blinded me. The investors didn’t want Palm IIIs, or Java, or irreversibly–engineered software. How could they? Investors aren’t engineers; they’re people with too much money on their hands. Instead, Ben was telling potential investors what they wanted to hear, and was then telling us that we had to do it — regardless of whether or not it was possible.

It all made sense. We weren’t focusing on the Palm III because it was possible. We were focusing on the Palm III because Ben thought people would be willing to invest in something that could run on something as commonplace as a Palm III. We were focusing on Java because Ben thought people would be more willing to invest in a hot technology like Java, rather than a tried and true technology like C or C++.

I began to have a feeling of creeping, impending doom. Ben had no vision for the company; all he wanted to do was get investor money in the door, and that’s why we were married to the impossible idea of running an ebook reader in Java on a Palm III.

the next month

Many Friday–morning pep rallies later, all of us were ready to tell Ben to shut up and kiss off every time he tried to tell us there was light at the end of the tunnel. I didn’t know a single person who was satisfied with the leadership Ben provided; most of us were constantly on the brink of mutiny. Ben kept us on board with combinations of pep talks, appeals to vanity, Mafia–style pressure and force of personality. Some people believed in him just because Ben was a very believable fellow. Some people didn’t believe in him, but as long as Ben stroked their egos in public and told everyone how indispensable they were, they’d stay. Some people disbelieved everything about him, but believed in the vision of the company. Some people stayed because they had too much invested financially to leave. I stayed because I couldn’t go home and I couldn’t quit.

Somewhere along the line, I’d heard some very interesting stories about what had happened with the “millions of VC funding”. Some people said that it was a technical matter involving intricacies of Malaysian banking; some people said it was more a matter of Malaysian money–laundering; and some people said it was more a matter of a Malaysian heroin cartel.

Personally, I believe the Malaysian heroin cartel story. I don’t have any proof whatsoever, but given all the things I’d already believed up to that point without any proof whatsoever, why not believe the Malaysian heroin cartel story?

(In the spirit of full disclosure, it appears there was never any Malaysian funding in the first place. Jack Robinson, one of our directors, had an unrelated business venture which had a line of funding from some businesses in Malaysia; it appears Ben was spinning yet another lie by telling us all that Jack’s Malaysian investors were going to be investing in us.)

It also turned out that when Ben hired me, there was no funding in the bank. According to Jack Robinson, there were signed letters of intent, but a letter of intent isn’t the same as a contract — and those investors backed out. So when Ben was promising me that there were tens of millions in VC funds in the bank, he was lying through his teeth. As were, apparently, his claim to have a personal wealth in the millions — as Jen (who I later found out was his wife) told me, they were having troubles getting the company to agree on exactly how many shares Ben owned.

There was no doubt, though, that Ben had the shares. There was unambiguous proof that he’d been offered millions of dollars in options for less than a hundred dollars of strike price. Nobody thought, even in their most paranoid delusions, that Ben was on the brink of bankruptcy.

As for me, I was on the brink of bankruptcy.

By the end of the month, the company was on the brink of mad–eyed mutiny. Ben suddenly discovered there were funds left in an account that he thought had been closed a long time ago, and wrote a large number of substantial checks. Mine was $500, and was one of the smaller ones. The checks were hand–delivered by him late January 31, just before he was due to go out of town on a fundraising trip. I used the last of my petty cash to buy a bottle of Jack Daniels, and spent that night happily drunk in my shoebox of corporate housing, rejoicing in the fact that in the morning I’d be able to cash my check and be able to afford real food instead of prepackaged kibble.

The next morning I was awakened by the ringing of the phone. Given the size of my hangover I was seriously tempted to throw the phone across the room. I figured it might be important, though, so I answered it. Linda James, a member of the Board of Directors, was on the line.

“Rob.” Her voice was still as a lake at three o’clock on a windless day.

“Yeah.” I tried to sit up in bed but failed; the room was spinning too quickly. “Whozzis?”

“It’s Linda. — Are you all right?”

“Hangover.”

“Ah.” There was about three seconds of pause. “Did Ben come by last night?”

“God bless the fucker, he did. Gonna grab some aspirin and head down to the bank before—”

“Rob. Listen.”

I suddenly felt very, very sick. I couldn’t tell if it was the tone of Linda’s voice or my hangover. Probably both, but more of the former.

“Rob, it’s very important… it’s very important, Rob… that you don’t cash that check.”

“Jesus. What the fuck do you mean, Linda?”

“People will get in trouble if you cash it, Rob. A lot of trouble. Do you follow me?”

It took a while for my brain to figure it out. “Jesus Christ,” I almost wailed, “the fucker kited the checks, didn’t he? There’s no cash in the accounts — the fucker kited the checks!”

“I didn’t say any of that, Rob.”

“Yeah. You’d like my father, Linda, he talks your language. The language of carefully not saying shit.”

“My congratulations on being so fluent.”

I did some quick mental math to get an estimate of the total worth of all those bad checks. My number had four zeroes trailing it. “That’s … that’s larceny by false promise, err, something like that, innit? And… that much. Jesus, Ben committed a fucking felony?”

“If he wrote any checks that totaled up to that, yes. It would be.”

“Up to?”

“Whatever the limit is for felonious conduct on bad checks.”

“And as a corporate officer, you’d be legally obligated to report it, right?”

“Yes. If he wrote any checks that totaled up to that.”

“So why the fuck shouldn’t I cash it? Jesus. What, you think the motherfucker doesn’t deserve it?”

“Rob. Don’t. Just … it was just a dream, Rob. It never happened. We’re dealing with Ben, but it’s really important that nothing happened. Are we on the same page here?”

“Yeah,” I said. “I guess we’re … I guess.”

“Good. Try and relax. Jack will be stopping by soon with some cash to help you through. Whatever you do, don’t talk to Ben about this.”

“Okay.”

“Okay. I’ve got lots of other people to call, Rob. You hang in there, okay?”

“I’ll try. See you, Linda.”

Once Linda hung up the phone, I finally followed through on my first impulse. I ripped the phone jack out of the wall as the phone sailed across the room.

the ides of march… february, at least.

Cost of a replacement jack: $3.00 on sale at Circuit City.

Cost of a screwdriver: $4.00 on sale at Circuit City.

Afternoon spent fixing the phone: … far less than priceless.

On Valentine’s Day I had to call my parents and tell them what was happening. I was still living in corporate housing on Nob Hill, much to Cliff’s surprise. At six weeks, I was one of the longest–dwelling tenants he’d ever had. I called Mom and Dad from that claustrophobically–small room (really, it was nice for the first month, but after that…), and Dad answered. It was just about the most humiliating experience of my life to have to tell Dad all that was wrong with the firm. Not because Dad is a bad guy about these things — but because he’s too decent a guy about these things. When you’re living in the gutter, a river of shit flowing around you, sometimes the last thing you want is for someone to remind you that you’re a human being.

It doesn’t feel better when you deaden yourself to things. It doesn’t feel at all, and in some ways that’s the best thing to feel.

Mom and Dad helped me out with some of my financial woes — a lot more than I felt comfortable with. I still don’t know how to talk to them about it, because it’s something I don’t know how to talk about, and I can’t shake the feeling that something needs to be said just the same.

February came and went and Ben finally put a check in my hand for $1,000 on February 29. I watched Linda draft the check — after the Night That Never Happened, the Board took away Ben’s fiduciary powers — so I trusted that there was actually something in the account this time. Still, I had that check cashed within ten minutes of it being placed in my hands. That was the largest lump sum I ever received from Yomu.

Engineering had a division–wide meeting over at Jeff Hunter’s place. Jeff was another Young Genius who lived down in the Castro District. The Web design team was there, Software was there, everyone except System Administration (which was all of one person, a Southerner named Trea Kines). Over a spot of English tea, complete with madeleines and biscuits, Deb told us the bad news.

Recently, Ben had a very angry debate with the Board of Directors. The Board had put a lot of their own personal resources into the company and some were on the brink of losing their homes. One of them, Jack Robinson, was painfully close to having his family thrown out into the street. So the Board sat down with Ben and demanded that he get his problems with Commerce One straightened away right now, and wouldn’t take no for an answer.

Ben originally refused. Jack nearly lost it and was at the point of becoming physically violent, which was something I (almost) couldn’t imagine. Jack is one of the kindest, most generous, even–tempered people I’ve met; but I could easily imagine how even Mother Theresa could be tempted to slap Ben around some.

When confronted with threats of physical violence, Ben capitulated.

He presented the Board of Directors with his stock certificates. The Board found an employee who knew the ins and outs of the stock market fairly well, and put Scott on the task of tracking down those shares and making Commerce One own up to them.

The only problem was… those stock sequence numbers were never issued.

Commerce One used an entirely different numbering scheme.

Ben forged the stock certificates.

Ben had used these forged certificates in the past to secure loans.

We were now all in a world of shit beyond comprehension.

The fbi and sec were probably aware of Ben’s crimes. Nobody really knew for certain, but it was a pretty good speculation — and even if they weren’t, it was only a matter of time. Our Engineering meeting quickly turned into a bizarre strategy session, some way for Engineering to try and come together and still manage to do productive work even as everything fell down around our ears.

The next day I spoke with Jack and Linda. They both told me that the fbi had been notified and that they were going to be arresting Ben soon. The Board had met secretly and voted Ben out — I wondered briefly at the legality of this, but dismissed it by way of extenuating circumstances. I was told to watch Ben like a hawk and to have very dark suspicions about any actions he might be undertaking in the next few days. After all, it was possible Ben knew that the fbi had been tipped off and it was thought he might try to flee to Canada.

Just as Jack wrapped up his speech about flight risks, Ben walked up to Jack and I as we stood there outside One Embarcadero. He had his usual smile on, which by this point struck me as more of an ingratiating leer that I’d like to wipe off his face with a chainsaw than anything else. My hand was inside my jacket pocket and it hurt; I realized I was clenching my fist so tightly I was cutting my fingers on my keys.

Somehow, I managed to smile at Ben. We chatted for a while and Ben asked me what had me so stressed out. I told him that I was just having some concerns about the future of the company. Ben cuffed me on the shoulder and told me to hang in there — “things’ll get better soon.”

After Ben left, Jack said darkly, “He has no idea how soon.”

When I pulled my hand out of my jacket pocket, my fingers were bleeding.

The next day, Ben told me that I needed to give him a copy of all the code which Engineering had produced. Since I was the Lord High Fixer of cvs (well, the backup Lord High Fixer of cvs — I kept a mirror of our cvs repository, but Deb kept the main one), I was the right person to ask, right?

“No problem,” I said. “Just do a cvs checkout and everything’s cool…”

“… but I don’t have a cvs account on your box.”

“… right, do it from Deb’s…”

“… Just copy it over to a Zip or something, okay?”

“Sure.”

That afternoon I downloaded the Mozilla source code, changed the names of some of the files, deleted a couple of bits here and there. I left it at the office for Ben and told him to call me if he had troubles. By the time he figured it out, I was hoping, the fbi would already be knocking. And if not, then I’d just tell him — “whoops, gave you the wrong disk, sorry”.

By the time I got back home, the phone was ringing. It was Dolores, telling me about an urgent Engineering meeting scheduled for Saturday. “Deb wants Engineering to meet at the office tomorrow,” Dolores told me. “Something about the fx–pal contract?”

“Okay,” I said, “sure. What time?”

“Noon.”

“I’ll be there.”

I was at the office at eleven forty–five on Saturday morning, but nobody else was there. I waited until twelve–thirty, but nobody showed.

When I got back to my apartment at twelve forty–five, someone had broken into it. Nothing was missing, but the room wasn’t the same way I left it. It wasn’t the maid, because the wastebasket hadn’t been emptied. So who the hell would break into my apartment and not steal anything…?

The CVS repository.

There are some days in my life that I’m very glad I’m such a paranoid. That was one of them. My own natural paranoia meant that I kept the cvs repository on an encrypted loopback filesystem; since Ben didn’t have the passphrases to unlock the encrypted filesystem, the cvs repository was safe.

That didn’t mean I was safe, though, since the sonufabitch had broken into my room!

(In fairness to Ben, I have to admit I have no proof that he was the one who broke in. But there were no signs of forced entry, and the only people with keys were myself, Cliff, Housekeeping and Ben. It was corporate housing, after all, with one key held by the corporation. Ben is, was, the most likely suspect. But there’s no proof.)

I debated calling the cops, but decided against it. If Ben really was the one who did the b&e, then it wasn’t even a crime — if the corporation is paying the lease, then it’s not b&e for a corporate officer to enter, even without permission. If I called the cops, all it’d do would tip off Ben to the fact that I didn’t trust him worth a damn and suspected him of criminal malfeasance — and maybe I’d be safer if I didn’t let him know that I noticed.

First things first. I called Cliff and asked if Housekeeping had been by my room. No, Cliff assured me, Housekeeping hadn’t — did the room need cleaning?

I told Cliff not to worry about it and hung up. The next thing I did was go to a very safe stash that I’d found earlier — in the interests of not confessing to any felonies myself, I won’t say where — and pick up a very small bag I’d stored there months prior. I’m an Iowa farm boy at heart, and one thing most farm boys have in common is…

… firearms.

I had a Remington pump–action shotgun and a Colt .45 in different (safe) storage places. The Colt was closer to the Pierre, so I went and got it out of storage. I was walking along Pine Street with an (unloaded) weapon in my satchel on the way back to the Pierre, and all I could think was dear God, please don’t let me see any cops. San Francisco is not a city well–known for its friendliness to gun owners.

Once I got back to my room, I pondered exactly how many laws I was probably breaking at that moment. I was certain the management of the Pierre Suites would kick me out in a heartbeat if they knew I was keeping a pistol in my room. I was certain that I’d probably broken some law in transporting my pistol to my apartment. And I was certain that Dianne Feinstein would sorely disapprove of the Black Talons I was loading into the magazine.

I gave Deb a call and told her about the breakin at my place. “Man,” she muttered. “Days like this I’m glad I have a Glock.”

“Seventeen?”

“The nine mil, yeah.”

“Well, keep it handy.”

“I will. — Hey, are you safe?”

“First Church of the Forty–Five, Deb. First Church of the Forty–Five.”

“You’ve got a fucking artillery piece in your apartment? Christ. Remind me to never piss off farmboys.”

After talking to Deb I decided I needed a long, hot shower. Something, anything, to help me unwind and relax. Maybe I was blowing things way out of proportion. Maybe I was wrong. Maybe Ben hadn’t broken in. Maybe it was… something, anything else. Could’ve been, right?

I enjoyed that shower an awful lot. Would’ve enjoyed it more if I could have ignored the Colt that was sitting on the sink’s soap tray, just within arm’s reach.

While I was toweling myself dry, I heard a key in the lock. I grabbed the Colt and bolted for the door, pressing my body against it to keep it shut. I made sure my finger was on the trigger guard before I thumbed off the safety. “Hello,” I said. “Sorry, but I just got out of the shower…”

I swear that about five years passed before I heard an answer. “Oh,” a woman’s voice said. “I’m sorry, Mr. Romig, he said that your room needed cleaning…”

“No,” I said, “everything’s fine.”

“Do you want me to come back later, sir?”

“No,” I repeated. “Everything’s fine. Don’t need to … don’t need to come back.” The maid left the hallway. I thumbed the safety back on and ran back into the bathroom.

I spent the next fifteen minutes throwing up.

the fbi

The following Monday, the fbi came to arrest Ben. Ben made a full confession to the fbi there at the office, and shortly afterwards decided to address the troops. We were all there gathered in the conference room when Ben joined us, pale and shaking. He confessed to us what he’d done, and tried to put a good spin on it — that he did it all for us, in the end.

At the end, nobody said a word. The silence was visibly bothering Ben; at one point, he was begging, pleading with us to just say something to him. Say that he was an asshole, say that he ought to kill himself and get it over with, say anything, anything.

There had to have been thirty people staring at him, and none of us said a word.

Silence is often the most damning of all statements.

aftermath

The company survived for a few months after that, under the leadership of a new ceo named Daniel Burns. We never really had a chance to survive, thanks to the awful debts which Ben had left the company saddled with. I stuck around until the very end because, with Ben gone, I felt that maybe we could actually pull it off. We didn’t, and I wound up being the last engineer to leave the company.

When Yomu closed its doors, I was owed over $46,000 in back wages.

Ben confessed to stock fraud before a court and was sentenced to six months in prison — not Club Fed — and six months of supervised release. He was hit with a $30,000 fine and ordered to make restitution. (I’m not one of the people to whom he must make restitution.) You can find the case as US v Trafford, coming out of the Northern District of California, out of Judge Saundra Brown Armstrong’s courtroom. Mark Zanides was the Assistant United States Attorney prosecuting; Ben was represented by a fellow named Safire.

As near as anyone can tell, Ben really was eligible for tens of millions in stock options. Ben claims that he sent his check to Commerce One in time for the stock disbursement; Commerce One claims they never received anything from Ben. Given that Ben can’t produce bank records showing a canceled check, nor can he show postal records proving that he sent it, most people think that Ben simply never bothered to do the paperwork. It makes no sense to me — how can someone be so lazy as to miss the chance to turn $100 into tens of millions? — but that’s the best we can come up with.

Yomu didn’t fail. It couldn’t fail, because it was never given a chance to succeed. Ben failed Yomu, and Yomu wound up paying the price for Ben’s crimes. We had some extremely sharp people on staff — even if I do characterize a lot of them as suffering from Young Genius Disease — and if any crew in the world could have pulled it off, it would’ve been us.

I’d go into business with any of them again in a heartbeat.

ben trafford’s statement to the court

This statement is in regards to my recollection of events that led up to, included, and followed my commission of a federal offense under 18usc513. I knowingly forged a stock certificate in the hopes of gaining a loan to fund my company, Exemplary Technologies. This forgery was used to secure a $225,000 loan from Jack Robinson. While that loan transaction was never completed, it nevertheless remains that I made the forgery, expecting that I would be able to repay Jack Robinson once my Commerce One stock certificate was issued. [1]

In January of 1999, I formed a company called “Exemplary Technologies”. I formed this company with two partners: Steven Strain and Jon Noring. Mr. Strain soon parted ways with us, following his own idea of a document conversion company. Jon and I worked together during my final months at Commerce One, and eventually, I quit Commerce One in late March. In May I returned to Canada, hoping to get a work visa to come back and work for Exemplary Technologies. Unfortunately, I was turned down for a TN–1 visa, and proceeded to set in works the process of getting another type of visa (an O–1). [2]

During this time, I completed the necessary paperwork to obtain the stock owed to me by Commerce One. [3] I was informed by Melanie Wadman of Commerce One that paperwork delays were keeping me from receiving my stock in a timely fashion. Having heard similar stories from friends still employed there, I assumed that my stock would arrive eventually, and focused on Exemplary. [4]

In the meantime, Jon came into contact with several investors, including the Astounding Group, represented by Jack Robinson and David Yurth. The Astounding Group promised us ten million dollars in investment, which they claimed would come through in August. So I returned to the United States in August, [5] in the hopes that I could close the funding and get my visa. Around this time, expecting the financing, Exemplary hired the first few employees. We also obtained a $50,000 investment from Mary Jones, a friend of mine. [6]

In September of 1999, it became increasingly evident that Astounding was not going to come through with the funding. Jack Robinson and Linda James joined Exemplary’s board of directors, with the pledge that they would help us come through with our funding. We continued to hire until we reached about 10 staff members, and halted hiring in October to stabilize the company and minimize our debt. Near the end of September, I called the staff together and asked them if they wanted to close down the company, since we had no idea when we’d receive funding, and nobody was drawing a salary. They urged me to continue. [7]

In October of 1999, I purchased a plane ticket to fly my wife, Jennifer Trafford, from Toronto to San Francisco. [8] My account had insufficient funds to cover the cost of the plane ticket, so I borrowed $1700 from an employee of Exemplary, Scott Hinz, to cover my wife’s plane ticket. In return, I made the remark that if nothing else, I could pay him back from Commerce One stock, which I expected to be able to be sold in December, when the restrictions on it were expected to be lifted. [9] I made it clear to Mr. Hinz that I did not have my certificate as yet.

Later in October, after several potential investors failed to come through, Linda James offered to lend Exemplary $30,000 based on my forthcoming stock. This loan was made to Astounding.com (another company of Jack Robinson’s) and Exemplary Technologies, to cover costs of business. Linda was shown the copies of paperwork I had from Commerce One detailing my options. [10] The $30,000 from Ms. James went into Astounding’s bank account, and Ms. James wrote the checks out to the employees.

In November of 1999, we started to hire up again, [11] at the urging of a potential investor (BG Media of New York City). The idea was that we wouldn’t receive funding until we had more than a business plan and a good team to show people. We needed to build product. BG Media declined to invest in us later that month, and instead funded one of our competitors.

Our debts mounted. Employees who had been surviving on a quarter to a sixth of their expected salaries were running out of money, and everyone banded together, lending each other what money they had. At this time, I encouraged the staff to seek contract jobs, to tide them over until we got funded. Most employees did not choose to go this route. [12]

In December of 1999, the situation became dire. Everyone was stretched to their limit. During the last few days of November, Jack Robinson informed me that he could get a loan for a few hundred thousand dollars from his friend and business associate, Robert Grant. He proposed to use his house as collateral for the loan. Mr. Grant informed him that the money could be turned around in as little as a week. With employees losing their cars, unable to pay rent, unable to pay for daycare, I readily agreed to this plan.

I told the employees that we would have money within a week. That turned into three weeks. In the middle of the third week, Mr. Grant expressed his concerns to Jack Robinson about getting the money back if the company folded. Jack Robinson countered by mentioning that his house is worth over a million dollars, and besides, Ben Trafford has Commerce One stock he’ll be able to sell by January.[13]

Mr. Grant promptly changed the terms of the loan agreement. Originally, he had intended to lend Jack Robinson $200,000. Jack Robinson would then have to pay back $325,000 by the end of January, or forfeit his house. Mr. Grant realized this was usurious, and rearranged the loan. In the new agreement, he would lend Jack $200,000, charge my company $100,000 for “consulting”, and then get $225,000 back from Jack Robinson at the end of January. This loan to Jack Robinson would depend on yet another agreement between myself and Jack Robinson for the $225,000, secured by my Commerce One stock. [14]

When Jack Robinson informed me of this new situation, I panicked. With employees literally coming to me in tears, I couldn’t stomach the idea of failing to secure the loan. So, within an hour, I had forged a stock certificate alleging to be the Commerce One certificate I was owed, [15] which would cover the loan to Jack Robinson. I faxed the forgery to Jack Robinson’s home office, and then filed it away. Jack Robinson was unaware that it was a forgery until April of 2000. [16]

The loan between Mr. Grant and Mr. Robinson went through soon after. The money was funneled to Jack Robinson’s personal bank account. Jack Robinson and I considered the loan documents between us to be a mere formality to secure Mr. Grant’s loan. [17] Jack Robinson then wrote checks out to the employees, as well as myself, and also spent about $90,000 of the funds on his own debts. Of these funds, I received approximately $10,000.

We hired some more employees in late December, always expecting funding to come through from a variety of interested sources. In January, we merged Exemplary Technologies with the Astounding Group to become Yomu. The company continued to move forward, eventually finding a fairly steady stream of investment in Richard Morrey, a private investor. [18] His monies saw us through from February to my arrest in April, and beyond to May.

In mid–February of 2000, I finally approached Commerce One directly about the issue of my stock issuance. [19] I was then informed that they had no intention of providing my stock. [20] I immediately began seeking other means to repay Mr. Robinson, including talking with various of my friends who have done well in the computer industry. I began to make arrangements with Mr. Doe, [21] a friend and former co–worker, to repay Mr. Robinson. However, Mr. Doe wanted me to hold off on accepting his money until we heard more from investors.

Finally, in April, I was arrested after being reported to the FBI. I resigned any connection with Yomu, [22] and offered any stock I had in the company back to the company. [23] I also turned over all rights to any intellectual property that had to do with the company. [24] This was of my own volition, and was not instigated by any threats of legal action by Yomu.

Soon after my arrest, I sat down with Yomu’s CEO, Daniel Burns, and proceeded to fill him in on everything he needed to know to run the company. I had been the company’s sole external contact to various businesses and investors. I turned over all relations to Mr. Burns, and severed my connections with Yomu.

During the following months, I completed arrangements to borrow $225,000 from Mr. Doe, to repay Jack Robinson and Linda James. They were repaid in September of 2000.

My only hope for the future is that I will be allowed to serve my time in the community, working off my debt to Mr. Doe, and continuing my career. In the past year, I’ve seen my dream vanish, [25] I’ve been apart from my wife for eight months, been cheated by a company who I gave my best for, and been under virtual house arrest, unable to work. I had never committed a criminal act before, and never intend to again. All I have left to me is my wife, and my technical reputation. Should I go to prison, I fear that I might lose both. I can’t imagine life beyond that.

my statement to the court

This letter was drafted at the request of the Assistant United States Attorney who was representing the government in US v Trafford. At sentencing, Ben originally denied every claim in my letter, but soon abandoned his attempt at denial.

Dear Mr. Zanides:

I am writing to you in reference of US v Trafford, which you are currently prosecuting in Judge Armstrong’s court. This letter covers my involvement with Exemplary Technologies and Yomu as an employee; how Mr. Trafford’s duplicity and deceit directly affected me; and certain other details which I believe are pertinent to Mr. Trafford’s sentencing.

Before I begin, I feel it is important to say that I am not attempting to pass judgment on Mr. Trafford’s current character. I haven’t spoken to him in almost a year. I’ve changed in the last year, hopefully for the better, and I must acknowledge the possibility that Mr. Trafford is similarly a better man today than he was a year ago.

However, he is not being sentenced for what he is doing today, but for what he did a year ago — so I feel I must speak clearly and candidly about my experiences with him. First, I will detail the circumstances which led me to Exemplary Technologies and Mr. Trafford’s fraudulent conduct during that time; second, I will cover Mr. Trafford’s tyrannical attempts at keeping me at Exemplary/Yomu in what amounted essentially to high–tech sharecropping; and third, I must in the interests of honesty offer information which may mitigate Mr. Trafford’s offense.

The circumstances leading to my involvement with Exemplary Technologies

A week before Thanksgiving, 1999, my employment with McLeodUSA (an Iowa–based telecommunications firm) was abruptly and unexpectedly terminated. Iowa is not a Mecca for engineers, and after a few weeks of fruitless job searching I expanded my search to California. This led to my sending a resume to Mr. Trafford at the solicitation of an Exemplary investor (Ms. Mary Jones). Mr. Trafford interviewed me via telephone for roughly an hour, then made me a job offer of seventy–five thousand dollars a year salary, plus a seven thousand dollar relocation allowance and options on 5,000 shares of stock.

I asked several specific questions about Exemplary’s financing. Mr. Trafford assured me that the company was in good financial health; he repeatedly asserted that in his estimation the company was about six months away from an initial public offering; and informed me that the company had signed contracts from investors promising funding for eighteen months. I pressed him about how much “wiggle room” were in these contracts, and Mr. Trafford assured me that even if an act of God were to wipe out all of the promised funding, he would finance the company out of his own pocket using his stock from Commerce One.

Had I been truthfully informed that no signed contracts existed, nor was the company anywhere near an initial public offering, nor was the company in good financial health, nor did Mr. Trafford possess any stock in Commerce One, there is no doubt in my mind I would have passed on Mr. Trafford’s offer of employment.

Regrettably, I can give no evidence of Mr. Trafford’s claims save for logic. What sane, rational man would move two thousand miles away from his nearest family, away from all of his friends, to pursue a high–risk and unfunded business venture?

I gave verbal acceptance of the job offer that day. Mr. Trafford sent me an acceptance letter and other related paperwork via Federal Express, arriving on December 19, 1999. The paperwork was faxed back that same day. Mr. Trafford called me to give confirmation of receipt, and told me that my relocation monies would be in my bank account by Christmas. We agreed that I would be expected to show up for work on January 4, 2000.

Despite the fact that no relocation monies were in my account by New Year’s, I decided to undertake the cross–country move regardless. It was important to me that I make a good–faith effort at upholding my end of the deal, and I trusted Mr. Trafford to make every good–faith effort to uphold his end of the deal.

I now believe Mr. Trafford negotiated with me falsely and in bad faith, and that he knowingly and willfully lied to me regarding his company’s finances in order to secure my technical expertise for his company. It is beyond question, in my mind, that Mr. Trafford’s claim that “[l]etters will follow from former employees of Yomu … confirming that I did not offer them Commerce One stock or the proceeds from such” (ref: Trafford’s statement of January 2, 2001, as provided to me by your office) is a misrepresentation of the truth. While some employees undoubtedly received no such assurances, it would appear that Mr. Trafford wishes to imply that no assurances were ever made, which is simply untrue.

A brief discourse on technology: also, the suasion which Mr. Trafford applied to keep my services

Mr. Trafford also states that he encouraged employees to find outside work. I believe this is a similar misrepresentation, wherein by showing that one or two employees were so encouraged Mr. Trafford seeks to persuade the Court that all employees were so encouraged.

By the end of January it was painfully clear that Exemplary/Yomu was not a legitimate business venture. Legitimate ventures pay their employees with payroll checks, not with bold promises and the occasional slipping of a few twenties. I approached Mr. Trafford about seeking outside employment until such time as Exemplary/Yomu was on solid financial ground. Mr. Trafford was not at all receptive to that idea.

In the first month of my employment at Exemplary/Yomu, I had architected a digital–rights management (DRM) system which I named CORTANA. DRM is a name given to technologies which facilitate trade in intellectual properties over the Internet; CORTANA is a specific DRM technology of my own creation.

CORTANA showed enough promise that several potential investors expressed interest in licensing it from Exemplary/Yomu. If I were to have left the company, I would have possessed the rights to CORTANA due to Exemplary/Yomu being in default of the employment agreement. Thus, CORTANA would no longer be available to Exemplary/Yomu as a bargaining chip in funding negotiations. It is for this reason, I believe, that Mr. Trafford exerted suasion, both subtle and overt, in order to ensure I would not leave the company for any length of time.

When I first arrived in San Francisco I had no housing, nor any money with which to secure a lease on housing. Thus, Exemplary/Yomu paid for corporate housing. When I approached Mr. Trafford about seeking short–term outside employment, while still remaining available to Exemplary/Yomu for consulting as needed, Mr. Trafford made blunt reference to the company taking that as termination of employment, and would no longer feel obligated to make payment on the corporate housing.

I felt then, as I do today, that Mr. Trafford was engaging in twenty–first century sharecropping. My choices were stark: either continue working for Exemplary/Yomu and be penniless, or seek contracting jobs and be both penniless and homeless. This sort of leverage is particularly effective against a young man who’s two thousand miles from his family, and has been in California for too short a time to have developed any network of friends.

Information of a potentially mitigating nature

Despite Mr. Trafford’s constant lies during his tenure as Exemplary/Yomu’s CEO, I cannot believe that his goals were simultaneously short–term and venal. To the best of my knowledge, his standard of living was little better than my own during my six months of employment. His ultimate long–term goal was to become fabulously wealthy, but that’s hardly unusual in the Valley.

While I firmly believe Mr. Trafford was utterly incompetent for the position of CEO, even by the most permissive of standards, I believe he worked very hard. Were it not for my quaint beliefs that honesty and integrity are essential components of doing one’s best, I’d say he did his best.

After his arrest by the FBI, Mr. Trafford went to some lengths to find employment for Yomu personnel. At one point, Mr. Trafford attempted to recruit me for a job at a place which had recently extended him a job offer. He assured me that the job was mine if I wanted it; all I had to do was say yes. I was brusque with him to the point of rudeness, I fear, but it did appear at that time — and even today — that he was making that offer in good faith. It was only my past history with Mr. Trafford’s apparently good faith offers that caused me to decline.

My beliefs on appropriate sentencing

While Mr. Trafford’s offense was not so obvious as holding up a liquor store, his crime did result in great violence. Many employees (myself included) had to borrow money just to survive; many (again, myself included) wound up straining some of our most important human relationships to the very breaking point — and often beyond. Some of Exemplary/Yomu’s employees had children; those children went without medical insurance, without routine doctor’s visits, without any safety net besides that provided by the State. Many of us incurred financial burdens which we are still struggling to get out from under. This is social violence on a large scale. It’s far more subtle than a bank robbery, but no less damaging to the community.

Mr. Trafford clearly sees this period in his life as a tragedy, and himself cast in the role of Macbeth. It is easy to understand why he thinks this; but even were his perception to be correct, Macbeth still chose to murder Duncan — and Mr. Trafford still chose to lie, deceive and inveigle for his own ends, regardless of the consequences for investors and employees.

A few weeks ago I told my father that I’d consider justice to be well–served would that Mr. Trafford receive eighteen months prison time. It was a fortunate thing on my part to discover a few days later that Federal sentencing guidelines are roughly in that range. I encourage the Court to impose a sentence in accordance with United States sentencing guidelines.

In the final analysis, Mr. Trafford is a confessed common criminal. The sentencing guidelines are meant exactly for those sorts of criminals — common ones.

deb hooker’s statement to the court

Thanks to Deb for permission to reprint it here. Like my own statement above, Ben did not contest the accuracy of this statement in court.

I am writing this letter in regards to the case against Mr. Ben Trafford, to relate my experiences with him and the patterns of behavior I witnessed during my time working for Exemplary Technologies and then Yomu.

I was first introduced to Mr. Trafford by a friend in November of 1999 and had several casual conversations with him about his business and the possibility of my working for him. I told him at that time that I didn’t think that he could afford to pay the sort of salary I would need to cover my own expenses, since I was supporting both a household in Denver and my new residence in San Mateo. He reassured me multiple times that he had several funding possibilities that would make my employment feasible and that as a backup he had a substantial sum of equity in a company that had recently gone public and would provide several million dollars of backup in case of financial problems. At the time he was not clear as to the makeup of this equity, the identity of the company or other such details, and I did not press him for details at that time. I did tell him to get back to me when he had gotten enough funding to be able to pay me, and we could talk more thoroughly and perhaps arrange a formal interview at that time. I was in a stable position working for Visa International and while the work was far less interesting to me than Mr. Trafford’s proposed ideas, it was a substantial and regular paycheck.

In mid December 1999, Mr. Trafford again contacted me and said he was now in a position to talk more seriously, though he did specifically say that he could only guarantee my salary for one year. I arranged a formal interview with him at his office in San Francisco, which went very well. He again assured me that funding was stable and that his personal funds were on the line to guarantee any failure to secure appropriate funding to continue operation, and asked me to come back for a more formal interview with several senior members of his staff. No mention of Exemplary’s funding status was made at the second interview to my recollection. I received an offer letter and accepted the terms, amd started work as Exemplary’s Vice President of Engineering at the San Francisco office on December 27th, 1999.

During that first week, Mr. Trafford made it quite clear that he was following Commerce One’s stock price closely, and was quite excited when the value of his holdings topped fifteen million dollars. When Commerce One’s price dropped later, he said to me and to other employees in my presence that he had arranged to sell ‘near the peak’ and that the sale itself was hung up in ‘details’. When I confronted him with these details in January or early February, he explained that he had a deal arranged wherein some investors agreed to buy his stock at a certain price, and another firm agreed to loan him money based on that guarantee of purchase, and with the drop in price the parties were reluctant to complete the transaction. He implied at this point that he had stock options rather than stock, but never made it clear to me exactly which he had. I pressed him for the contract for this unusual arrangement, but never saw such a document.

Through the first three weeks or so of January, I followed direction from Mr. Trafford and arranged to hire technical staff. Believing that Exemplary was well–funded, I went so far as to contact a friend from Denver, Colorado, Jeff Hunter, and ask him to join us as a Senior Software Engineer. During his phone interview, Mr. Trafford reiterated that working for Exemplary was an extremely low risk, because his personal funds from his extensive holdings in Commerce One had made him a multi–millionaire, and because he intended to personally cover any financial needs the company had. On the strength of this recommendation, Mr. Hunter moved out to San Francisco.

Shortly after I started employment with Exemplary, Robert Hansen arrived, having moved to San Francisco as well, and I interviewed Jack Lincoln. Mr. Hansen made it quite clear many times that Mr. Trafford had made similar guarantees based on personal holdings, though I was not witness to any such promises before Mr. Hansen arrived. Mr. Lincoln was given similar assurances in his interview as Mr. Hunter. Amy Millard also began working for us as a technical project manager; while I did not participate in her interview, I witnessed her being given similar assurances both before and afterwards.

By mid January it started to become clear to me that something was not right with the funding situation, but Mr. Trafford dodged any financial questions I had by stating that Linda James had control of the company’s books, and that he was having trouble getting Ms. James’ cooperation in writing checks in a timely fashion. Mr. Hansen expressed his frustration to myself and other employees that he had been promised relocation expenses, that Mr. Trafford had repeatedly promised to transfer funds into his account to cover those expenses (several times in my presence), and had repeatedly failed to do so for one reason or another. By the end of January it was clear that our financial status was nothing like what I’d been led to believe, though it was not clear to me at that time what was really happening. I started refusing to hire people unless they were told in their interviews that our funding situation was still up in the air. Mr. Trafford agreed, after some argument, though he still told people that we talked to that, funding issues aside, he would guarantee their time with his personal stock in Commerce One.

On February 1st, 2000, Mr. Trafford wrote out a set of paychecks to people, on an account with Union Bank of California, and then left for a several–day business trip in search of funds for Exemplary. Mine was for three thousand five hundred dollars. At this point I was being slightly paranoid about financial issues, and had never seen this particular account before, so I took the check to the local branch of Union Bank. I was told that the check was from an account they had no records for, that it looked legitimate, but that if it was legitimate it was written on an account long since closed. I also had some bit of tension as the tellers looked at the check and appeared to try to decide whether I was trying to pass a bad check knowingly. I spoke to my employees after this, trying to comfort them as best I could, since I had little to no information and all of them were quite upset at this turn of events. When I confronted Mr. Trafford with this information, I found out that he had written the checks on a long–closed account to try and stall people, and was in fact quite angry with people for being upset at him for writing those checks and then being entirely unavailable to discuss it. I told him that I thought that if he expressed this anger to other people, he would lose them all. When he did talk to people about the bad checks in my presence after our discussion, he did keep his anger in the background and apologized for having worried them all. He again reiterated that he was trying to get his issues with his stock resolved and stated that he would use that money to ‘keep us afloat’ until more long–term funding panned out, if we could just bear with him. I was in a position to take at least some risk, as long as my rather extensive bills were met, so I told Mr. Trafford that so long as I continued to get paid enough to pay my bills and in a timely fashion, and as long as no further checks bounced, I would stay and try to help keep things moving. At the same time I began trying to communicate with Ms. James and Jack Robinson, since they were my only other possibilities to speak with board members other than Mr. Trafford himself, and they were rarely in the office to see what sorts of things were going on.

At around this time the board reincorporated the company as Yomu. No employees ever received employment agreements of any sort with Yomu, [1] though everyone was reassured that Yomu would honor Exemplary’s debts. Mr. Trafford was made acting CEO of Yomu, and I had several conversations with him about his long–term desire to be CEO. He expressed in public that he wanted a replacement and that he did not feel up to the task, but in private with me he often said that he didn’t feel like anyone could run the company any better than he could and that he wanted a way to convince the board of directors to leave him in the CEO role indefinitely.

I spoke with Ms. James and Mr. Robinson about the document that was now Yomu’s business plan, and was told at that time that the business plan had some specific issues with it, that they had given Mr. Trafford those issues and that he had been working on revising it for some months. When I asked Mr. Trafford about the state of the business plan, he got quite upset and said that Ms. James and Mr. Robinson had been simply refusing to show it to enough potential investors, and this was the reason for all of our funding troubles. This inconsistency made me somewhat nervous, and I began asking further questions of Ms. James, Mr. Robinson, our VP of Sales and Marketing Steve Jacoby, our Director of Marketing Teresa Letlow, and Mr. Trafford. I got quite a lot of inconsistent answers from Mr. Trafford, and started speaking with the other parties involved about the answers I kept getting.

Around this same time, I started pointing out that I and other members of our staff could probably pick up consulting jobs relatively easily, and the amount of work we were doing on Yomu could be cut back and covered in our spare time until Yomu had more solid funding, and thus take a financial load off of Yomu’s meager cash supply. Mr. Trafford was quite adamant that this option was unacceptable and that anyone leaving for this sort of backup work would forfeit anything that Yomu owed them if he had any say in the matter. Various employees, including myself, repeatedly brought up the issue of side consulting work as financial situations got worse through the first few months of the year, with each response being more vehement than the last.

It also began to become clear to me that Mr. Trafford had been doing an excellent job of deceiving people about his technical capabilities, as I continued to work with him. He was quite capable within a narrow technical field, but lacked depth of experience and skill outside that field. Investors were charmed more than once by his initial image, but seemed disturbed by the lack of depth when they pressed for details, and I believe this deception on Mr. Trafford’s part played a material role in preventing Yomu from acquiring funding.

Mr. Trafford started to get somewhat more evasive about questions about his stock, making it clear that he believed it was his to do with as he would choose and that his previous statements would not be honored, including saying in my presence, “I’m not going to risk my safety net.” His explanations of why he didn’t have the money to deal with the company’s financial troubles got less believable, and I and other employees began to suspect that he was holding out, letting us suffer financial hardship so that he wouldn’t have to spend his own money on the company, no matter what he had promised.

Mr. Trafford was finally pressured into giving his stock information to Mr. Scott Hinz, since Mr. Hinz had experience extracting stock and stock option agreements from recalcitrant companies in his previous employment as a broker. Throughout, he continued to insist that he had a substantial sum of Commerce One stock. When I was told that the whole thing had been a lie, that he indeed had a small block of options but that he had let them expire, and that the stock certificate was a forgery, I was stunned. I had come to believe by that point that Mr. Trafford was regularly lying to all of us, but I had been so well deceived that the truth was still a total surprise to me.

After Mr. Trafford was arrested by the FBI, he came back to the office and apologized to all of the employees in the company and told us all that he would be resigning and forfeiting all ownership in Yomu, and that he would cooperate with us to give us any information we needed to try to get Yomu funded and running. However, over time his behavior varied; some days he was quite cooperative, and other days he threatened employees and insisted that he would refuse to give us information or badmouth us to industry organizations if we did not reinstate his ownership in Yomu or hire him as a consultant or other similar threats. We also discovered that many of the contracts that he had professed to have over the several months that I worked with him were nonexistent.

In summary, it is my opinion that Mr. Trafford’s behavior surrounding his claim that he had Commerce One stock was not an isolated event, but a pattern of deceptive behavior aimed at keeping his position as CEO of a company alive, regardless of the damage to other people it caused.

footnotes

Footnotes from The Morning After:

Although I graduated in 1998, Cornell and I almost immediately had a disagreement over the status of a foreign–language requirement. This was resolved in 2002, but a bureaucratic mix–up caused Cornell to reinstate me as a 2002 graduate, not a 1998 graduate. Whatever; my take on it is “at least we agree that I did, in fact, graduate.”

Footnotes from Ben’s Statement

The stock was never going to be issued and Ben most likely knew this. On the other hand, it’s easy to plead “well, Your Honor, I genuinely thought it was going to come through, maybe I was deluding myself, but...”
It’s been speculated, but not proven, that Ben was in the country illegally during most or all of the time he was working for Exemplary/Yomu.
At sentencing it was revealed Commerce One had no record of the paperwork being completed. Ben claimed that he’d sent in a check to purchase stock under the option agreement, but had no proof of delivery, no proof of sending, no cancelled check from his bank. He blamed this on his bank refusing to cooperate in his search for documentation. I think it would be fair to describe Judge Armstrong’s reaction as ‘extremely skeptical’.
One of the reasons Judge Armstrong was suspicious of Ben’s claims, I think, was how cavalier he was over tens of millions of dollars in stock options. It doesn’t make sense for someone who’s facing bankruptcy, as Ben was, to simply “assume [it will] arrive eventually”.
I believe it was established at some point that he was in the country illegally at this point, having returned on a tourist visa.
Mike and Mary Jones have not seen one dime of their investment repaid to them.
Given Ben’s repeated pledges to fund the company out of his own pocket with the proceeds of his Commerce One stock, the staff’s reluctance to close up shop is understandable. Also note that even though Ben knew the company was in dire straits in September — to the point of considering closing doors — he didn’t stop hiring people until October. Even then, the hiring freeze didn’t last very long; his first overtures to me were in early December 1999.
Jennifer Trafford was also, according to my recollection, in the country illegally on a tourist visa.
Remember, Commerce One had no record of him ever being issued stock, and Ben was unable to provide any evidence he’d ever submitted the paperwork. In my opinion, Ben wasn’t expecting to ever receive the Commerce One stock; he was just trying to milk the story to get enough cash to cover short–term expenses.
Paperwork detailing that he was eligible for those options, not that he’d ever exercised those options. Linda James probably believed, with some sensibility, that anyone who was eligible for those options would of course have made sure to exercise them in time.
Note how long the “hiring freeze” lasted; only about a month. I don’t believe this was a hiring freeze at all; it was just the amount of time it took him to find qualified employees.
If anything, his account of the espirit de corps of Exemplary/Yomu employees is an understatement. His claim of encouraging employees to seek outside employment was hotly contested, and refuted in both the letters to the court from myself and from Deb Hooker.
First he said the “restrictions” on his (nonexistent) shares would be released in December, then January … the existence of “restrictions” were, in my opinion, nothing more than a way for Ben to continue the swindle.
…which Ben knew didn’t exist.
Which, in fact, he was not owed due to him failing to complete the paperwork in a timely manner.
My recollection says late March 2000, but I may well be in error.
The question, though, is whether Mr. Grant considered them to be a formality, since Jack couldn’t cover the debt unless the agreement between Jack and Ben was binding!
Morrey’s financing was life–support, nothing more. He made heroic attempts to bring investors to the table, but eventually failed. He couldn’t fund us by himself, which is no slight on him.
This directly contradicts his statement that “I was informed by Melanie Wadman of Commerce One …” If he wasn’t talking to Commerce One directly before, how was he informed of anything by Melanie Wadman of Commerce One? And why wasn’t he talking to Commerce One directly before, over a matter of tens of millions of dollars?
Note his use of “my” stock. It has been fairly well established Ben never possessed any stock.
Mr. Doe contacted me on September 10, 2001, and requested I remove references to him. Given Mr. Doe was not involved in Ben’s crimes, I felt it only gentlemanly to accomodate his request.
I was informed by the Board of Directors that Ben had been removed from his position weeks before he publically “resigned”.
A meaningless offer, since the stock had zero valuation due to the company’s crushing debts.
He created no intellectual property during his time with Exemplary/Yomu. As such, ceding rights to IP was more of a public–relations gesture than an actual sacrifice.
I’ve seen $46,000 in unpaid wages vanish.

Footnotes from Deb’s statement

I actually did have an employment agreement with Yomu, although I think I was the only one.

Email me.