Cyberlink Technologies (CA, WA)
This spammer “specializes in web design, web marketing and building sites that will catch browser's attention to ensure relevant traffic and responses.”  Except spam is NOT a legal way to advertise your services. The first one came on 6/16/2003 and promised that they would not contact me again.  I replied to unsubscribe anyway. But of course they lie – new spams on 5/24/2004, 5/26/2004, and 6/9/2004.  False headers, invalid email addresses in the WhoIs lookups, their spams even admit that they scour the web looking for email addresses (not opt-in), and the 2004 spams don’t even include the physical address, as required by CAN-SPAM. Judgment for Dan, August 2004.  It took a little while, but I had the judgment domesticated in Washington State, and I hired a collection agency that eventually tracked and seized their money.  Back to Top


Why Weight Women’s Total Fitness, Inc.
Two spams in 2004 trying to sell fitness franchise schemes.  Seriously forged headers.  According to the IP addresses, one spam originated with IANA (Internet Assigned Numbers Authority), which is a record-keeper/registry.  The other spam apparently originated with the Department of Defense.  Uh huh.  I’m pretty sure the DOD has slightly more important things to do these days.  Why Weight didn’t respond to my demand letter, so I filed suit.  They then sent me a subpoena to get my hard drive and copies of the spams certified by Yahoo to be true.  The Judge denied their request for the hard drive, and, how am I supposed to provide copies of the spam certified by Yahoo to be true?  Why Weight should have subpoenaed Yahoo if they wanted that, not me.  During trial, Defendant took the position that I signed up to receive their UCE and then I forged the headers to insert those fake IP addresses.  Needless to say, the Judge didn’t believe their lies, and since CAN-SPAM does not pre-empt California law in the case of false headers, judgment for Dan, August 2004.  Defendant appealed, but then didn't show up for the appeal, so the Judge reaffirmed the original judgment in January 2005.  All Defendant did was increase the interest due me, plus attorney fees.

Oh, and it appears that WWWTF is in a bit of trouble with the State of California too.  Seems they were breaking various franchise laws, AND one of the founders conveniently neglected to mention a criminal history involving mail fraud.  Click here to read all about it.  Back to Top


Dee Perry (CA) and Y.E.S. Marketing and Distribution Systems, Inc. (IN)
According to the spam, “Our review of your online resume indicates that you are seeking work or an opportunity for advancement.  Your resume shows that you have the skills and experience needed for success within our company.  We are looking for an ambitious and dedicated individual who can meet our requirements.  This is a supervisory position that requires entrepreneurial skills and the ability to train others.  Should you be selected to join our team, we will provide you with the training and support needed for your success.   We are a growing international health and nutrition company with one of the most attractive compensation plans in our industry.”  Uh huh.  In truth, they weren’t offering me a job, they were trying to get me to buy their "kit."  It's a pyramid/multi-level-marketing scheme.

Dee Perry sent the 4 spams in 2003, as an agent for Y.E.S. (dba cashmailbox.com), which actually runs the pyramid scheme.  Y.E.S. claims that the fact that I posted my resume online means that Y.E.S. and its agents like Perry are allowed to send me commercial email.  Perry admitted during trial to finding my email on my resume posted on Careerbuilder.com.  When I followed the links in the spam and downloaded the “succeed.exe” e-book, it turns out I would have to send them $27 for “materials.”  So how exactly is that that they’re offering me a job?  They’re not, of course… they’re trying to solicit money from me.  And Careerbuilder.com’s terms & conditions of usage and house rules say no pyramid schemes, no MLM, no spam, and nothing that requires me to pay them any money at any time.  Judgment for Dan, April 2004.

Perry didn’t pay the judgment within 30 days.  We negotiated a settlement agreement in which he agreed to a payment schedule, but then he didn’t honor the agreement.  So I had the Sheriff of Lake County seize assets for the remainder due to me.  Back to Top


Referralware International d/b/a IMarketing International Inc.
Got 15 spams promoting these guys, sent by an affiliate.  Referralware is also into MLM schemes, and I would have to pay $39.97 for a 3-month membership.  As usual, the principal is responsible for the actions of the agents... why don’t any of these people realize that?  I sent a demand letter, it was ignored, so I filed suit.  Dean Strickler, CEO of Referralware, filed a motion with the Court to challenge venue (I sued in LA County, he’s in Orange County) and dismiss since he claims I named the wrong party – as usual, it’s the “my affiliates did it, not me” defense.  I filed a response, claiming that 1) Defendant did not file the motion in a timely manner; 2) California Code of Civil Procedure Sec. 395.5 says that a corporation can be sued where the obligation or liability arises… that is, where the spams were received, and the elements of B&P 17538.4 were felt, even if the spams were sent from somewhere else or the Defendant is located somewhere else; 3) California Civil Code Sec. 2338 states that the principal is responsible for the actions of the agent; and 4) Defendant claimed that I opted in, but the burden is on him to prove that, not on me to prove that I didn’t.  Defendant also claimed that the emails were CAN-SPAM compliant, but that’s irrelevant since CAN-SPAM took effect January 1, 2004, and my suit was for 2003 spams which were illegal under 2003 law.  The Court denied Defendant’s motion, and during trial, Defendant didn’t really have much defense beyond “Balsam opted in to the affiliate’s database,” which of course I denied.  Judgment for Dan, April 2004.  Back to Top


xx-toys.com / toys4adult.com
An "adult toys" spammer, from right here in L.A. County.  Yes, the spam was sent in 2004, but the Federal CAN-SPAM law (sec. 8) says that the Federal law supersedes state laws prohibiting spam except to the extent that state laws prohibit falsity or deception in any portion of the spam.  The new CA anti-spam law (B&P Sec. 17529.5) does prohibit false headers, and so CAN-SPAM doesn’t apply.  Judgment for Dan, April 2004. 

Defendant never showed for trial, and I got a default judgment.  Under CA law, Business & Professions Code Sec. 17538.5, anyone who takes out a private mailbox (like at The UPS Store, for example) by definition agrees that the operator of the store is the agent for service of process.  Not only can you serve papers there, but if you get a judgment, then the store operator must provide contact information for the person who opened the box.  That’s how I identified the Doe defendants.  Eventually, I made a purchase on Defendant’s website (using a 1-time Visa number), and then my own bank helped me follow the money trail to the defendant’s bank.  And then I sent the Sheriff in to seize assets.  Back to Top


Stamps.com
I received 22 spams from Stamps.com affiliates in 2003.  I left several messages with people in the Stamps.com legal department, which went unreturned.  I finally called and got someone, who claimed I never left a message, but said that if I sent him copies of the spams, he would forward everything over to the Affiliate department.  What particularly angered me is that most Internet merchants at least SAY “no spam” in their affiliate contracts, even though obviously the affiliates don’t abide by this.  But Stamps.com doesn’t even say that.  Perhaps they turn a blind eye to spamming since it might drive a little bit of business their way?  Click here to see their affiliate agreement, as posted on January 27, 2004.  Even though California realized by 1998 that spam was a problem, Stamps.com didn’t address this in their affiliate agreement until sometime AFTER January 27, 2004… which was also AFTER the Federal law took effect.  (Click here for the version as posted on March 8, 2004.)

Anyway, back in February, I requested compensation for damages, but I said that I would accept a lower amount in return for full information on the affiliates.  I didn’t hear back within two weeks, so I filed suit.  During the trial, Stamps.com’s primary defense was that my suit was frivolous because it was filed in 2004, and the Federal CAN-SPAM act preempts California law.  I pointed out that I was suing for 2003 spam under 2003 California law, and not even for the dozens of spams that I received in 2004, and that CAN-SPAM is not retroactive.  Stamps.com also presented “evidence” that I opted in to the website www.lcdoffers.com to receive commercial email, and told the Court that lcdoffers.com told them the date and IP address I was using when I opted in.  Except, oops!, I never opted in to that website and I traced the IP address in question to Cable & Wireless, which has NEVER been my ISP.  Busted!  Judgment for Dan, March 2004.  Back to Top


QB Easy
This one isn’t actually a spam suit, it’s junk-fax.  I’m not sure if QB Easy sent the fax themselves, or if they hired fax.com to do it.  QB Easy is legally a separate company, but there’s definitely a connection – Westlaw data shows that the President of QB Easy is “Eric Brenner,” and junkfax.org shows Eric Brenner is also associated with Impact Marketing, a fax.com spinoff.  Anyway, it doesn’t really matter if QB Easy or fax.com sent it, because the principal is still responsible for the actions of the agent, and junk-faxing is a violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. Sec. 227.  Defendant didn’t show for trial; $1,000 judgment for Dan, March 2004.  30 days passed and they didn’t pay, so I signed up for a seminar and sent them a check for $97, just so I could see where it was deposited.  Bank of America, and I got the account number.  Then I filed a writ with the Court, sent it to the Orange County Sheriff, and the Sheriff went in and seized assets.  It took three months, but I collected on my judgment.  Plus costs and interest.  Ha.

PS: My thanks to Ivan Shomer, Esq., who had his own judgment against QB Easy for junk-faxing and helped me with the paperwork.  I believe we're among the first people to actually receive any cash from any of the fax.com companies.  Back to Top


Challenger One and Camden New Media
Camden New Media sent email advertising for NewEnglandInks.com, which is owned by Challenger One.  Pre-trial, each Party denied the others’ claims, actions, and demands, but with no admission of liability by any Party, we settled this dispute in March 2004.  Back to Top


AMR Ventures
Three spams from affiliates of this California principal in 2003, I sent a letter, they ignored it, so I filed suit.  Five more spams after that.  They spam using the domain names cleancolons.com, dvdvibe.com, and shadysports.com.  Defendant showed for trial on February 24, 2004, but requested a continuance so they could review the AOL v. National Health Care Discount case, in which the Court again found that the principal is responsible for the spamming perpetrated by its “independent contractor” agents.  Defendant somehow tried to claim that they have "affiliates" which aren't really "agents", and so common law and the AOL case don’t apply, but the Judge didn't buy it.  Judgment for Dan, March 2004.  Back to Top


Raul Lopez Guerra and Zoan Communications dba ZoneMail
Two spams from Zoan Communications and Tanis Consulting, which are technically different companies, even though they share the same address and the same person is behind both – Raul Lopez Guerra.  Click here to see RLG’s Ryze.com page.  And here to read some lovely comments from some other folks about RLG… he has quite a reputation!

Anyway, the second spam followed an unsubscribe request/legal warning.  I sent a demand letter, no response, so I filed suit.  Guerra claimed in Court that he just operates an “email platform” and his clients upload their own email address lists, so it’s their fault, not his.  But, the spams say “Delivered by ZoanMail,” so he has at least some liability.  And, he had no explanation why his “15 system checks” let the second spam go through.  It wasn’t a big judgment, but nevertheless, judgment for Dan, March 2004. 

The Judge ordered that Lopez Guerra personally pay the judgment – as opposed to his companies – but despite several reminders, he never did.  It took me a while, but eventually I was able to find his bank account.  So I sent a writ to the Sheriff, and seized assets.  And because of all the costs involved, the whole thing ended up costing him (not me, since costs are recoverable) $200 more than it would have if he had just paid the judgment in the beginning. Back to Top


D.I.T. Export Import Company
Thirteen spams, and it’s not coming from affiliates.  I sent a warning letter and request for damages, no response, so I filed a lawsuit.  On February 3, in the Court building but before the actual trial, I negotiated a settlement.  No confidentiality provision.  I have "proof" of 13 spams, but the Defendant claims only one is his.  It's possible he's telling the truth... it's possible that 2 different ink spammers both use the same host, and it’s possible that other ink spammers have copied his website… including the address to which the consumer should send a check!  I laughed and said, So your competition is going to tell people to send money to you!  And he said he has a stack of uncashed checks that he can't match with any orders from his own website... and if we actually went to trial he would appeal ANY judgment and bring those checks back in.  (One wonders why he didn’t bring those checks in the first place, or why he hasn't RETURNED the checks to the senders if he can't match them with orders, but those are separate questions.)  Anyway, settlement in February 2004. Back to Top


IFilm Corp. and Zing Wireless
IFilm has a market research division that tests movie trailers. Ifilm hired Zing to find enough survey respondents to get a statistically valid sample. Zing collects these respondents, in part, through an affiliate program. A certain spammer signed up as an affiliate of Zing and actually sent the spam. But, liability flows uphill, and the Court found IFilm and Zing jointly liable for the spam... as always, principal is responsible for the actions of the agent. IFilm showed for trial, Zing did not show, even though they were properly served.  Judgment for Dan in January 2004. It’s a lot of fun stirring up dissension within affiliate programs… and affiliate programs in which the principal doesn’t enforce the “thou shalt not spam” terms & conditions are a large part of the spam problem.  Back to Top

 

Unitek Information Systems
Unitek Information Systems offers technical training to individuals, and contract technical employees to other companies. By their own admission, Unitek got my email from my resume posted on Dice.com, which is fine if they want to offer me a job working for them, but it’s a violation of Dice’s terms of service if they put my email address into their database and then send me UCE for their technical training seminars. Spam, unsubscribe, spam again. Their lawyer denied all liability and basically dared me to sue them. So I did. Defendant filed a Challenge to Venue and Request for Dismissal Motion, and my attorney, Timothy Walton, prepared a Response. The Judge denied Defendant’s motion, so this Alameda County spammer had to appear in Los Angeles County. During the trial, Defendant claimed that there was a business relationship since they had offered me work before, but that isn’t true. Defendant also claimed that their employees/contractors get free tech training, which might be true, but the spam that I got did not advertise free training, but rather, training I’d have to pay for. Judgment for Dan in December 2003, but more importantly, the Judge ruled that venue is proper where I live, where the effects of the spam were felt, where I was harassed and my privacy invaded... NOT where the Defendants are located and where the spam actually originated.

Defendant filed an appeal, then postponed the date to May 2004, and then – you’d think my filing a lawsuit would send a pretty clear message that I don’t want to receive their UCE – even after being sued, they sent me yet another spam, in March 2004. Who runs this database? They then claimed that the judgment is invalid since CAN-SPAM preempts state law, but CAN-SPAM isn’t retroactive; I sued for pre-2004 spam under existing CA law. Unitek also threatened to sue me for unfair business practices if I didn’t dismiss the case. Huh? Anyway, shortly before the trial de novo, they dismissed the appeal and paid on the original judgment. Back to Top


Pacific Herbal Sciences
Two spams, pointing to hghorder.com and hgh888.com. Although the domains are registered in China, those webpages have a “© Pacific Herbal Sciences Inc.” line on them. Or at least, they had that notice, which was later removed. Anyway, I sent a warning letter and request for damages, and the President sent me a letter giving the typical response of “my affiliates did it not me” – not that that relieves them of responsibility anyway – and that they shut down that affiliate. I wouldn’t have filed a suit, except then oops! another spam from that same affiliate! So I filed a lawsuit. Was it really an affiliate? Maybe, maybe not. But I think it’s interesting that these spams linked directly to those websites, without any of the usual tracking codes of the sort that would identify which affiliate drove a particular consumer to the website. Judgment for Dan in December 2003, which reaffirms that principals are responsible for the actions of their affiliates. Back to Top


Providian Financial
Yes, I had a “GetSmart” Visa card issued by Providian bank. No, I never said they could send me any additional commercial email. I had the card for a couple years before they started. Spam, spam, unsubscribe, confirm, spam, spam, spam. Also, it’s notable that nowhere in the account profile, when you log in, does it give you any way to set your email preferences, so you have to rely on the unsubscribe link in the spam, which doesn’t work. My attorney, Timothy Walton, got involved in this one, and we settled with Providian before actually filing a lawsuit in November 2003 for a small amount, but the important thing is, we made them reevaluate their email marketing strategy. Back to Top


ExpertCity
Expertcity publishes the GoToMyPC software. I got a spam from an "affiliate" of theirs, and decided to see whether common-law doctrine of agent-principal holds up in regard to spamming. California Civil Code §2338 says: "PRINCIPAL'S RESPONSIBILITY FOR AGENT'S NEGLIGENCE OR OMISSION. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." I sent a warning letter to the Defendants, which they only half responded to, and their attorney failed to return phone calls, so I sued.

Kudos to ExpertCity for cutting off the spammer and withholding commissions due them in response to my letter – they actually enforced the terms of the affiliate agreement – but I have to seriously question their attorney’s strategy of NOT telling me this before the trial! Not that this relieves them of liability for that one spam, but if they had convinced me earlier on that they took the spam problem seriously, I might have been willing to dismiss the case. But common law does hold the principal responsible for the actions of its agents, and the new CA anti-spam law specifically addresses this issue and holds marketers liable if they use spammers to advertise for them. Judgment for Dan in November 2003.

Unfortunately, you don't really create legal precedent in Small Claims, but I'm happy to report that by ruling in my favor, the Court held the principal responsible for the actions of the agent. Of course, all marketers who create affiliate programs include in the terms & conditions that the affiliate isn’t allowed to spam. But if marketers actually enforced the T&C and sued affiliate/spammers for breach of contract when they do spam and the principals get hit with judgments, it would sure cut down the spam problem. Marketers, take note! Back to Top


Road Angels
Eric Oster didn’t show for trial, and judgment for Dan in October 2003. But Defendant refused to pay. You’d think, for a relatively small judgment, that they would just pay and be done with me.  Maybe they thought if they clicked their heels three times it would make a judgment go away, but in fact, it jus ended up costing them collection fees and interest on top of the original judgment. Stupid, stupid spammer. I sent a letter demanding immediate payment along with another copy of the Judgment Debtor's Statement of Assets form, and they still didn’t pay me or return the form. So, I filed an Order to Appear for a Debtor’s Hearing. Defendant did show – probably a smart move since otherwise the Judge would have issued a bench warrant to arrest President Eric Oster and/or seize assets. Judge ordered him to pay an additional $40 in costs, and – under protest – Oster did finally write me a check.  Back to Top


Vintage 415
Settled out-of-court in September 2003.  No more spam since the settlement.  Back to Top

 

Janel World Trade Ltd. (NY, CA)
Settled out-of-court in November 2002. No more spam since the settlement.  Back to Top


Mosaic Data Solutions (IL)
Tons of spam, multiple unsubscribe attempts, and even multiple confirmations that I would no longer receive any spam.  This one was fun, because the actual spamming subsidiary is in IL, but I named the parent company and had them served in a CA office that had nothing to do with spamming.  So, I forced the spammer to spend over $2,200 flying from IL to CA for trial.  They tried counterclaiming against me for their travel expenses, but the judge completely threw that out, and judgment for Dan in September 2002.  Mosaic appealed the judgment, and then withdrew the appeal in December 2002, thereby accepting the judgment.  No more spam since the judgment.

I was interviewed by Ric Romero of ABC7 TV (Los Angeles) about my anti-spam work; the segment aired on July 29, 2003.  In the segment, the camera zoomed in tight on the judgment against Mosaic. Click here to see the segment.

In August 2003, Bill Silverstein of Los Angeles also successfully sued Mosaic.  I had prepared a notarized statement to help him, in which I declare that Mosaic was very aware of California law and that I believe Mosaic General Manager Larry Organ committed perjury.  Feel free to use this statement, dear Reader, if it helps you to sue them too.  Back to Top


Mindshare Design (CA) and WorldWinner.com (CA, MA)
Mindshare ignored multiple unsubscribe attempts and just transferred my name from list to list to list.  Specifically:

• I received a spam on Feb. 27, 2002 sent by Mindshare on behalf of WorldWinner.com.  I followed instructions to opt out the same day, and the next day I received a confirmation email with the subject line "We'll Miss You." 
• On Mar. 7, I received the second spam from Mindshare, on behalf of AllPreApproved.com.  I followed instructions to opt out for the second time the same day, and I received two confirmation emails with the subject line "We'll Miss You."
• On Mar. 12, I received the third spam from Mindshare, on behalf of WorldWinner.com.  I followed instructions to opt out for the third time the same day, and I received a confirmation email with the subject line "We'll Miss You."
• On Mar. 20, I received the fourth spam from Mindshare, on behalf of SportsInteraction.com.  I followed instructions to opt out for the fourth time the same day, and I received a confirmation email with the subject line "Removal Confirmation."
• On May 2, I received the fifth spam from Mindshare, on behalf of GuaranteedCredit.com.  I followed instructions to opt out for the fifth time the same day, and I received a confirmation email with the subject line "Unsubscribe successful."  That time finally worked.

Each and every spam ALSO violated the (then current) anti-spam law by failing to begin subject lines with "ADV:" and failure to include removal instructions as the first text in the body of the email, in the same font size as the majority of the text of the email.  Judgment for Dan (against WorldWinner.com) in July 2002.  Back to Top