been storing and tracking spam since the spring of 2002.So far, I have 50+ judgments
against spammers in Court, a few settlements for which I can name the
spammers, and many settlements for which I
can’t share details.And many more
cases are in various stages of development.
All of the entities referenced on this page sent me
spam (i.e., unsolicited commercial email") or advertised in spam sent to me, meaning I never gave them direct consent
as defined by California Bus. & Prof. Code § 17529.1(o).
For the trials below in 2002-2003 that say "Judgment for Dan," the Court found that the companies sent and/or advertised in spam that
violated Cal Bus. & Prof. Code § 17538.4. For the trials below since
2004 that say "Judgment for Dan," the Court found that the
companies sent and/or advertised in spam that violated Cal. Bus. & Prof.
Code § 17529.5 – the subsection that was not preempted by the
In California, you can sue anyone in Small Claims court, but you have to
serve them in California. Sometimes the affiliate spammer is outside of
California, but I can name and serve the principal in California who is
responsible for the actions of their affiliate. If the
spammer/principal is a "real" company, I can find them on the
Secretary of State's website. If the spammer/principal operates out of
a UPS Store (or other Commercial Mail Receiving Agency), that actually
simplifies things, because you can easily serve the CMRA as the spammer's
agent. Plus, in California, once you present the CMRA with a copy of a
judgment, the CMRA is required to turn over all information re: the spammer,
including last-known name, address, etc.
Cal. Bus. & Prof. Code § 17538.5.
Don’t want to end up on this list? It’s really
simple. Don’t send me spam!
And if your “affiliates” spam me, you’re still
responsible. Advertisers, control your affiliates!
2 0 1 2
VentureCorp. Inc. dba Paid-Surveys-At-Home.com
Unauthorized use of third party's domain names, misrepresented From Names, and
misleading Subject Lines... the whole trifecta! Judgment for Dan,
March 2012. Back to
2 0 1 0
Lumos Labs Inc. dba Lumosity.com
Use of third party's domain names without permission.
Judgment for Dan, August 2011. Back to
Patelco Credit Union
Misleading Subject Line. Judgment for Dan, August 2011. Back to
Relevant Ads Inc. dba LocalSplash.com
Misleading From Line and Subject Line. Defendant challenged venue, and
Judgment for Dan, June 2011. This one's particularly ironic
because Relevant Ads supposedly helps companies advertise online.
OnlineLabs Inc. dba OnlineSecurity.com, and Charles Balot
Misleading Subject Lines, and scraped my email address from court records.
Judgment for Dan, May 2011. Back to
FriendFinder California Inc. dba
Three cases heard together. Judgment for Dan, March 2011,
defendant appealed, Judgment for Dan again, August 2011. Back to
Oversee Advertising Solutions Inc. dba "Moniker Privacy
Yes, I lost the Tucows case in the Ninth Circuit. But there's a silver
lining. If I don't have any (third party) benefits under the ICANN
Registrar Accreditation Agreement, then I don't have any obligations either.
I no longer have to give proxy registration services the opportunity to
avoid liability just by identifying their licensee-customer spammers.
So I sued Moniker as the legal owner of the spamvertised domain names, and
Judgment for Dan, February, 2011.
Technically, it was a default judgment, because Oversee didn't show for
trial. Why? Because its attorney thought it was some kind of
"shake-down" and that I didn't provide any evidence along with the
complaint. I did exactly what the small claims rules say I have
to do. Oversee filed a motion to vacate, which was denied.
Various Inc. dba AdultFriendFinder.com #6 Judgment for Dan, March 2011. Back to
Various Inc. dba AdultFriendFinder.com #5 Judgment for Dan, November 2010, defendant appealed, Judgment for
Dan again, August 2011. Back to
2 0 1 0
SMS.ac Inc. dba
SMS tricks consumers into divulging their email account passwords based on
false claims that their friends recommended video clips and sent photos via
Fanbox.com. Misleading From Names and Subject Lines. SMS
challenged venue and lost. Judgment for Dan, October, 2010.
The Tomato Farm Marketing LLC
Deceptive From Name, misrepresenting the source of the spam, etc.
Judgment for Dan, June 2010.
Deniro Marketing LLC dba AmateurMatch.com #4
Fourth lawsuit against this porno/hookup-for-random-sex spammer.
Judgment for Dan, June 2010.
Deniro filed an appeal; Judgment for Dan again, August 2010. Back to
Deniro Marketing LLC dba AmateurMatch.net #3
Third lawsuit against this porno spammer, who has admitted that the women's
profiles on its site aren't even real. Deniro admitted that it
controls the domain name AmateurMatch.com, but falsely claimed that
it has nothing to do with AmateurMatch.net. I have plenty of evidence
that says otherwise. Judgment for Dan, April 2010.
Deniro filed an appeal; Judgment for Dan again, July 2010.
Balsam v. NameCheap
Well, this case wasn't technically Balsam v. NameCheap; it was Balsam v.
[various fake names], and I sent a subpoena to NameCheap for information on
domain name registrations. NameCheap failed to timely respond to the
subpoena, so the Court entered an
finding NameCheap in contempt of court and awarding me $500 plus $45 for
service of the subpoena.
NameCheap and its attorney ignored my repeated demands that they pay it...
until I got a writ and informed them that I would seize NameCheap.com and
have it sold at auction to satisfy the debt.
Thank you Ninth Circuit, for the recent Office Depot v. Zuccarini
holding, which says that I can do this. Five minutes after I
notified them I got the writ, the attorney called and said they'd FedEx a
check out that day. Back to
PC Mall Inc. dba Onsale.com and Ingenio Inc./YellowPages.com LLC dba
Unauthorized use of third party domain names, misrepresented From Names, no
opt-out links, no physical mailing addresses. PC Mall Inc. dba
Onsale.com – or perhaps its attorney
– could never get their act together, and Ingenio Inc./YellowPages.com LLC
dba Keen.com blew me off altogether.
But... Settled on the eve of trial, January 2010.
2 0 0 9
Deniro Marketing LLC dba AmateurMatch.com #2
I sued them once before and won. Gave them an opportunity to avoid
this litigation, but they ignored me. Judgment for Dan, August 2009. Deniro appealed.
At the trial de novo, in addition to use of the domain names hotmail.com
and google.com without permission, I introduced as evidence
terms & conditions (at page 9) and a
filed by Deniro itself (at para. 57-58) admitting that the profiles on the
website are fake... and therefore the subject line in the spam "Want to find
a fuck friend?" is also misleading. Judgment for Dan on appeal, November
Various Inc. dba AdultFriendFinder.com #3 & 4
Various Inc. used to be called Friendfinders Inc. I won my first trial
against Various. Won the second one too, but then lost on appeal on
the grounds of federal preemption. Fortunately for me, the U.S.
Supreme Court recently made a number of rulings rejecting federal preemption
and reinforcing the states' traditional rights to regulate false
advertising, defective products, and consumer protection. So I filed lawsuit #3... since I still received spam even after filing two
lawsuits. And then I received even more spam, so I filed lawsuit #4. How much more clear do I have to be that I don't want to
receive their hook-up-for-random-sex spams? Judgment for Dan in
both cases, July 2009. Various appealed, and brought in their
attorney. Judgment for Dan
on appeal in both cases, October 2009 (although the judge did lower the judgments
somewhat). Back to
(formerly InterNext Media Inc.) dba Scour.com
Five spams all on the same day, to three different email addresses...
strongly suggesting Scour.com is spamming to an opt-out list.
Fake sender name, misleading subject line, unauthorized use of Google's
gmail.com domain name. And, to top it off, no physical mailing
address and no means of opting out – clear federal violations. I sent
a letter to Joann McMahon, the registered agent, to the address on file with the Secretary
of State, but it came back to me refused. It's possible this is
because McMahon and her employer, Gilbert & Stern LLP, have invalid (old?)
address information on file with the Secretary of State. The law firm
can't even get the right address on its own website. McMahon claims she's not the
registered agent even though she's listed on the SOS records, and Daniel
claims McMahon doesn't work at the firm... even though she has a phone extension. Riiiiiiight. No matter, I
got them served anyway. Judgment for Dan, June 2009. Back to
925sale.com, Myliststart.com, Steven Rox, and Roxanna Pinsky
Three spams, one to each of three of my email addresses. I.e., the
spammer is sending to an opt-OUT list. Judgment for Dan against 1
April 2009. Back to
BulletProof Marketing Inc. and Michael
Rasmussen dba GetMoreBuyers.com
One spam in October 2008, containing several 3rd party domain names without
authorization, advertising BulletProof Marketing Inc./Michael Rasmussen's
"Get More Buyers" program (www.getmorebuyers.com). The affiliate/sender, Kirk Leddon, is also affiliated
with Mari Media Inc., and I have evidence strongly suggesting that Leddon
was spamming to an opt-out list.
BPM appears to sell videos and e-books, but according to defendants' own
website, the "Get More Buyers" system involves "automated profits [from] new
subscribers [and] new leads," "residual commissions," and earning
"$381,195.06 in 90 Days On Clickbank... With NO Product!" This is the
definition of a pyramid scheme or "endless chain" where a person earns money
merely by bringing new people into the chain, without actually selling any
products. In addition to the spam cause of action, I am also bringing a
cause of action for (several) violations of the Consumers Legal Remedies
Act. Judgment for Dan, March 2009.Back to
2 0 0 8
Mitchell Martinez, advertising for NoCashEver.com and Xziex.com
Mr. Martinez sent two spams to each of two email addresses in May 2008 advertising
pyramid schemes (NoCashEver.com) and multi-level marketing schemes (Xziez.com), with ambiguous/blank
subject lines and unauthorized use of third party domain names. He
admitted at trial that he bought my email addresses from someone and that I
never gave direct consent.
Judgment for Dan, December 2008. Back to
USA LLC (formerly known as Niutech LLC) dba "The Useful"
Niutech, operating out of various address in Delray Beach and Boynton Beach,
Florida, operated a bunch of domain names: SuperbRewards.com,
IncentiveRewardCenter.com, NationalSurveyPanel.com, EMarketResearchGroup.com,
YourSmartRewards.com, etc. Niutech rebranded itself as "The Useful" in
August 2005, and then in June 2006, merged into World Avenue USA LLC.
I received a lot of spam from Niutech or its affiliates in the last couple
years, but I had never
gotten around to suing them in superior court, and I couldn't sue them in
small claims because they're in Florida and under California small claims
rules, you have to serve in state. But ahhhh, Ad Tech. It's a big
spammer convention, and they flock to California from all across the country.
papers served on Tony Provenzano, a Vice President, right here in San Francisco.
Code of Civil Procedure § 416.10(a) authorizes service on a corporation by serving various
officers, including vice presidents.
World Avenue USA then submitted false documents to the court; claiming that Provenzano is an employee
and not an officer. Never mind the nametag he
was wearing at Ad Tech identifying himself as a VP, but on
his own webpage on LinkedIn.com, Provenzano
admits he's a VP.
The court correctly denied defendant's motion to quash service and set a new
trial date for August 31.
At the trial, the judge directed World Avenue USA to submit additional
documents showing that I had opted in to receive the spam, and to show that
the headers were not deceptive. Their Memorandum of Points and
Authorities was shaky at best, and the declaration that is supposed to be
"facts of which the declarant has personal knowledge" was so full of
argument and legal theory and incorrect facts of which the declarant
did not have personal knowledge that I actually had to make a motion
to strike the declaration.
Judgment for Dan,
World Avenue USA appealed and we had a trial de novo before a superior court
judge. Defendant and I were both represented by counsel. World
Avenue USA made the predictable spammer defenses of federal preemption,
immaterial falsity, and no agent-principal liability, plus several
ridiculous new defenses such as immunity under the Communications Decency
Act, immunity as an Internet Service Provider, and expired statute of
limitations. The Court focused on subject lines deceptively claiming
that recipients could get various products "free" even though they actually
had to spend significant amounts of money, and
I'm happy to report: Judgment - again - for Dan, May
Various Inc. dba MillionaireMate.com ("Various 1")
Various Inc. used to be called Friendfinders Inc. As in, Ferguson v.
Friendfinders Inc., 94 Cal. App. 4th 1255 (1st Dist. 2002), which is (to
my knowledge) the only appellate case on spam in California state courts.
I love this case. The court held that it doesn't matter if the spammer
doesn't know it's sending to California residents, and there's no dormant
commerce clause problem either because even though much spam is interstate,
California has traditional police powers to protect its residents.
There's also a great quote that it takes more effort to falsify
headers then to just send email with truthful headers.
Anyway, I sued Various Inc. for two spams with false & deceptive headers,
andJudgment for Dan, April 2008. Back to
Ultima Patch LLC and Products Group LLC
A frequent "spamvertiser"; I received spam advertising Ultima from
three different spammers.
for Dan, April 2008. Back to
Enterprises Inc., Buena Vista
Catalogue Co., Corinthian Colleges Inc., QuickApply Inc.
Five spams advertising these defendants, all sent by the same spammer, all with deceptive headers. All
but QuickApply challenged venue, I opposed, they lost. (The fact that
they challenged venue instead of
litigating on the merits just shows they don't take the problem seriously.)
(partially) for Dan, April 2008. Back to
2 0 0 7
Deniro Marketing LLC dba AmateurMatch.com #1
One spam advertising AmateurMatch.com, but massive amounts of fraud in the
headers... fake sender name, email address, and IP address; use of
third-party domain name without permission; misleading subject line; forged
date/time stamp. Trial
date: March 28.
Deniro challenged venue,
claiming it's located in Stockton.
citing various provisions of the Code of Civil Procedure and the Consumers
Legal Remedies Act and case authority.
And Deniro lost the trial on the merits too. Judgment for Dan,
June 2007. Back to
One spam advertising LetsTalk.com, fraud in the headers, and LetsTalk.com
ignored the letter I sent. Default judgment for Dan, May 2007.
2 0 0 6
Underlined PTY Ltd. and Zachary MacLeod and Mail Service Center
Tons of spam for the "Vibrating Cock Ring"; each spam comes from a different
(forged) email address, and no physical address as required in the
email itself. When you click through – each spam to a different domain
– you eventually get to a page where you can download a mail/fax order
form. Make that COULD download a mail/fax order form. That form
USED to have the physical mailing address, but the
spammer just removed the mail option and the actual address; now it's just
fax only. Possibly
in response to getting served with my lawsuit. Click
see the old and new order forms, with and without the physical address.
Judgment for Dan, May 2007.Back to
Bidz.com contracts with at least two different spammers. As usual,
deceptive headers. Judgment for Dan, August 2006. Back to Top
2 0 0 5
MetaReward (a division of Experian Consumer Direct)
The spam came from an affiliate of MetaReward, a division of Experian
Consumer Direct. The affiliate is not in California, but MetaReward
is. MetaReward failed to respond to my letter in a timely manner, and
when they did finally respond, they seem to be hung up on whether or not I
opted in (I didn't). The law says that sending spam with falsified
headers is illegal, period, regardless of opt-in.
During the initial hearing, the Judge initially seemed to believe that
Proposition 64, passed by California voters in November 2004 "to stop
frivolous lawsuits," eliminated my right to sue over spam with falsified
headers because I haven't suffered "actual damages." The
Judge directed me to submit a Memorandum of Points and Authorities to back up my
position. Actually, it was really just "Points" because there
is no published Authority on this subject yet.
Essentially, I argued that Prop 64 doesn't eliminate all lawsuits
under Business & Professions Code §17200 (unfair business practices) and
§17500 (false advertising) – only those in which no one has actually been
damaged. I stated that the legislature authorized a private right of
action and set liquidated damages for receiving spam (§17529.5) so that
Plaintiffs would not have to argue the amount of damage each and every time a
case is brought... and since nothing in Prop 64 makes any references to
weakening California's anti-spam law, then no California voters could have
voted to deny the rights of spam recipients to bring suit.
When we returned to Court a month later, the Judge allowed the case to
proceed on the merits, and judgment for Dan, April 2005. The
amount of the judgment is far less important than the fact that the Judge
determined that Business & Professions Code §17529.5 is not
affected by Prop 64. Back to Top
Fast Track Marketing and Michael Kurt
15 spams in 2004, and all have falsified headers. Judgment for Dan,
March 2005. Back to Top
Referralware International d/b/a IMarketing
Referralware continues to work with spammers, some of whom are using
falsified headers. Settled this case pre-trial, March 2005.
Back to Top
AMR never fully paid the judgment from the 2004 lawsuit (for 2003 spam) --
they paid the $1,000 judgment but not the $30 costs. Plus, I received
more spam in 2004 with falsified headers. Settled this case
pre-trial, February 2005. Back to Top
2 0 0 4
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
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
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
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
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
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
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
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
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
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
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
2 0 0 3
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
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,
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 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.
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
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
2 0 0 2
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
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
"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