United States of America v. Impulse Media Group Inc

Filing 27

RESPONSE, by Plaintiff United States of America, to 23 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 21# 2 Exhibit 22)(Hash, Lauren)

United States of America v. Impulse Media Group Inc

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U.S. Department Justice of Office of Consumer Litigation
LaurenHash,Esq. (T) [phone] (F) [phone] (E-Mail) [e-mail] Mailing Address P.O. Box386 Washington,D.C. 20044 OvemightDelivery 1331PennsylvaniaAve., N.W. Room950N Washington,D.C. 20004

August 18, 2006

Via Federal Express Robert S. Apgood CarpeLaw PLLC 2400 NW 80th Street #130 SeaRle, WA 98117-4449 Re: Dear Rob: Duringthe deposition of Seth Schernaerhornon August10, 2006, PlaintiffUnited States of Americaattempted to question Mr. Schemaerhornregarding Government Exhibit 1. The Defendant objected to the Govenmaent's of Government use Exhibit 1 because page two of Exhibit 1 was a truncated spreadsheet. Basedon the fact that the Defendantproduced Government Exhibit 1 to the Plaintiff in the incompleteform madPlaintiffhad requested a completeversion of the spreadsheetprior to the deposition, the parties agreed that the Plaintiff wouldpropoundwritten questions regarding the complete Exhibit whenit was producedby the Defendantand that Mr. Schermerhorn wouldanswerPlaintiff's questions regarding the Exhibit. Please find the questions for Mr. Schermerhorn the amended and version of Exhibit 1 containing a completeversion of the spreadsheet attached (nowlabeled Government Exhibit 31). United States v. Impulse MediaGroup., Case No. CV05-1285L

Sincerely,

Lauren Hash Trial Attorney Enclosures
United States' Reply to Defendant's MSJ Exhibit 21 CV 05-1285L Page 1 of 16

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, No. CV05-1285L Plaintiff,
V.

IMPULSEMEDIAGROUP, INC., a Washingtoncorporation, Defendant.

TO: FROM: DATED:

Seth Schermerhorn UNITED STATES OF AMERICA August 18, 2005

Pursuant to the agreement reached between Lauren Hash and Robert Apgoodon August 10, 2006, during the deposition of Seth Scherrnerhom,PlaintiffUnited States of Americahereby propoundsthe following questions upon Seth Schermerhom regarding the attached Government Exhibit 31. QUESTIONS What your company's is basis for stating that the affiliates listed in the chart on page two of Government Exhibit 31 were temainated as a result of spamproblems?
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Whatdocumentation you have supporting the assertion that the affiliates listed in the do chart on page two of Government Exhibit 31 were terminated as a result of spam problems? Wereany records made the temfination of the affiliates listed in the chart on pagetwo of of Goven~anent Exhibit 31? (a) If a record of the terminationof any of the affiliates listed in the chart on pagetwo GovermnentExhibit 3 lwas made: i) in what format was the record made? ii) was the record producedto the Government during discovery? iii) and if the record was producedto the Gover~maent during discovery what was the production number? iv) and if the record was not producedto the Government during discovery, when will it be produced? Wereany of the affiliates listed in the chart on page two of Government Exhibit 31 terminated as a result of infornaation provided to IMG the Government? by Who made decision to ternainate the affiliates listed in the chart on page twoof the GovermnenExhibit 31 ? t Who notified the affiliates listed in the chart on page two of Government Exhibit 31 that they had been terminated? What the date of termination of each of the affiliates listed in the chart on page two was of Government Exhibit 31 ?

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(a) If the date of termination is known, whatis the basis of your knowledge the date of termination for each affiliate listed in the chart on page two of Govermnent Exhibit 31? (b) If the date of termination is Imown, a record of the date of termination made? was (i) If a record of the date of termination wasmade,wherewasthe record of the date of the te~nination made? Which affiliates listed in the chart on page two of Government Exhibit 31 were

terminated as a result of notification by Swift Communications IMG to that the affiliate had generated spam complaints? a) If any affiliates listed in the chart on page two of Government Exhibit 31 were terminated as a result of notification by Swift Communications, there any was documentationregarding this notification from Swift Communications? i) If there wasany documentation regarding notification of terminated affiliates fiom Swift Communications,was the documentation produced to the Government during discovery? iii) and if the notification wasproducedto the Govenmaent during discovery what was the production number? iv) and if the notification wasnot producedto the Government during discovery whenwill it be produced? For each affiliate identified in responseto Question8: (a) Whatwere the circumstances of the notification by Swift Communications? (b) whoat IMG notified by Swift Communications the affiliate had generated was that spam complaints?
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(c) whenwasthe notification by Swift Communications IMG to that the affiliate had generated spam complaints made? (d) what steps did IMG take after being notified by Swift Con~nunications that the affiliate had generated spare complaints? (e) howlong after the notification by Swift Communications the affiliate had that generated spamcomplaints did IMG terminate the affiliate? I0. Upon temainating the affiliate account matador, did IMG take any steps to determine if the affiliate whooperated the account matadorhad any other IMG affiliate accounts? (a) If yes, did IMG shut down other accountsoperated by the sameaffiliate as the the matador account? (i) whenwere the other accounts operated by the sameaffiliate as the matador account terminated? 11. Upon terminating tl?e affiliate account dacash, did IMG take maysteps to determineif the affiliate whooperated the account dacashhad any other IMG affiliate accounts? (a) If yes, did IMG shut down other accountsoperated by the sameaffiliate as the the dacash account? (i) when were the other accounts operated by the sameaffiliate as the dacash account terminated? (b) Upon terminating the affiliate account dacash, did IMG terminate the affiliate account scgyaman ? 1 (i) If yes, whenwasthe accunnt sc9yamantterminated? (i) If no, is the account sc9yamanl currently active?
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Uponterminating the affiliate account scumbag,did IMG take any steps to determine if the affiliate whooperated the account scumbag any other IMG had affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the scumbagaccount? (i) whenwere the other accounts operated by the sameaffiliate as the scumbag account terminated? (b) Upon terminating the affiliate account scumbag, IMG did terminate the affiliate account cracker? (i) If yes, whenwasthe account cracker terminated? (i) If no, is the accountcracker currently active? 13. Upon terminating the affiliate account olegwn,did IMG take any steps to determineif the affiliate whooperated the account olegwnhad any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the olegwn account? (i) whenwere the other accounts operated by the sameaffiliate as the olegwn account terminated? 14. Uponterminating the affiliate account eum2004, IMG did take any steps to determine if the affiliate whooperated the account euro2004had any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the euro2004 account? (i) whenwere the other accountsoperated by the stone affiliate as the euro2004 account terminated?
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(b) Upon terminating the affiliate account euro2004,did IMG terminate the affiliate account sc9yaman1? (i) If yes, whenwasthe account sc9yamanlterminated? (i) If no, is the accountsc9yamanl currently active? 15. Uponterminating the affiliate account euro2005, did IMG take any steps to determine if the affiliate whooperated the account euro2005had any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the euro2005 account? (i) whenwere the other accounts operated by the sameaffiliate as the euro2005 account terminated? (b) Upon terminating the affiliate account euro2005,did IMG terminate the affiliate account scgyaman ? 1 (i) If yes, whenwas the account scgyamanlterminated? (i) If no, is the account sc9yamanl currently active? 16. Upon terminating the affiliate account spider, did IMG take any steps to determineif the affiliate whooperated the account spider had any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the spider account? (i) when werethe other accountsoperatedby the stone affiliate as the spider account terminated? (b) Upon terminating the affiliate account spider, did IMG terminate the affiliate account scgyaman ? 1
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(i) If yes, whenwas the account sc9yamanlterminated? (i) If no, is the accountscgyamanl currently active? 17. Uponterminating the affiliate account teddybear, did IMG take any steps to determineif the affiliate whooperated the account teddybear had any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the teddybear account? (i) whenwere the other accounts operated by the sameaffiliate as the teddybear account terminated? (b) Upon terminating the affiliate account teddybear, did 1MG terminate the affiliate account scgyaman ? 1 (i) If yes, whenwas the account sc9yamanlterminated? (i) If no, is the accountsc9yamanl currently active? 18. Upon terminating the affiliate account scorpion, did IMG take any steps to determine if the affiliate whooperated the account scorpion had any other IMG affiliate accounts? (a) If yes, did 1MG down other accounts operated by the sameaffiliate as the shut the scorpion account? (i) whenwere the other accounts operated by the sameaffiliate as the scorpion account terminated? (b) Upon terminating the affiliate account scorpion, did IMG terminate the affiliate account sc9yaman ? 1 (i) If yes, whenwas the account sc9ymnanlterminated? (i) If no, is the account sc9yamanl currently active?
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19.

Upon terminating the affiliate account montana,did 1MG take any steps to detemline if the affiliate whooperated the account matadorhad any other 1MG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the montana account? (i) whenwere the other accounts operated by the sanle affiliate as the montana account terminated?

20.

Uponterminating the affiliate the affiliate

account megapom, IMG did take any steps to determine if

whooperated the account megapom any other IMG had affiliate accounts?

(a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the megapomaccount? (i) whenwere the other accounts operated by the sameaffiliate as the megapom account terminated? (b) Upon temlinating the affiliate account megaporn, IMG did terminate the affiliate account rds 1979? (i) If yes, whenwasthe account terminated? (i) If no, is the accountrds 1979currently active? 21. Upon terminating the affiliate account cahek, did IMG take any steps to determineif the affiliate whooperated the account cahek had any other IMG affiliate accounts? (a) If yes, did IMG shut down other accounts operated by the sameaffiliate as the the cahek account? (i) when were the other accounts operated by the sameaffiliate as the cahek account terminated?
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mgrajales@f~c.gov, 09:58 AM3/17/2005, Impulse Media To: mgrajales@ftc,g_&~. From: Rob Apgood <~> Subject: Impulse Media Cc: Bcc: Attached: S:\Matters\SoulCash~FTC\TermlnatedAcccounts. pdf; S:~Matters\SoulCash\FTC~TermlnatedRevenue.pdf;

Michelle, Attachedare the ~ist of a~liates whowere terminatedas a resul~ of SPAM problems, accompanieby a spreadsheet d showingthe revenuegeneratedfrom those affiliates. ImpulseMedia currently has no affiliates compaigns, Regards, of whom is awarethat are conductingemail it

Robert S, Apgoo d

< ro~b(~carpelaw.com_> 206-624-2379

Printed for Robert Apgood<rob(~.carpelaw.com>
United States' Reply to Defendant's MSJ Exhibit 21 CV 05-1285L Page 10 of 16

t

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Net Gross SoulCashID $5,709.38 $5,999.28 dacash $3,204.87 $3,339.50 scumbag $5,960.32 $6,298.53 olegwn $614.96 $721.54 euro2004 NO REVENUE NO REVENUE euro2005 NO REVENUE NO REVENUE spider $637.76 $667.71 teddybear $1,008.37 scorpion $1,114.43 $319.24 $352.50 montana $571.51 $651.36 megaporn $4.05 $29.95 cahek $9,881.69 $10,616.54 shawinc

Affiliate Paid $8,121.27 $4,775.50 $9,761.83 $1,086.42

CompanyNet ($2,411.89) ($1,570.63) ($3,801.51) ($471.46)

$2,367.16 $2,057.00 $1,020.00 $2,035.00 $280.00 $24,781.34 TOTAL NET:

($1,729.40) ($1,048.63) ($700.76) ($1,463.49) ($275.95) ($14,899.65) ($32,355.89)

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Produced Subject to ER408

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PLLC

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CARPELAW
2400 NW 80th Street #130 Phone: [phone] carpelaw.com

Seattle, Washington 98117 Fax: [phone]

Robert S. Apgood [e-mail]

September 8, 2006 VIA ELECTRONIC MAIL AND U.S. MAIL Lauren Hash U.S. Department of Justice Consumer Litigation Division P.O. Box 386 Washington, D.C. 20044 Re: Exhibit 31 Questions Responses

Dear Ms. Hash: Attached hereto are Mr. Schermerhorn's responses to your questions posed to him regarding Exhibit 31. We apologize for the delay. When the questions were e-mailed to Mr. Schermerhorn, they were sent to an e-mail address that he no longer monitors due to the inordinate amount of spam e-mail that is sent to that address. Sincerely, CARPELAW PLLC

Robert S. Apgood Attachment

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1.) Personal knowledge. 2.) We don't maintain documents regarding terminations. 3.) No records were made. 4.) No 5.) Seth Schermerhorn 6.) To deter fraud we don't notify terminated affiliates. 7.) We don't track that info. 8.) None 9.) a. There was no notification from Swift Communications b. There was no notification from Swift Communications c. There was no notification from Swift Communications d. There was no notification from Swift Communications e. There was no notification from Swift Communications 10.) Yes a. I don't recall. i. There's no records kept for date of termination. 11.) Yes a. Yes. i. At the same time as the dacash account was cancelled. b. I assume so. i. I assume at the same time as the dacash account. i. NA 12.) Yes a. I don't recall. i. NA b. No i. NA i. Yes
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13.) Yes

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a. I don't recall i. I don't think there where any. 14.) No this account was terminated upon dacash being terminated. a. NA i. I assume at the same time as the dacash account. b. Yes i. At the same time as dacash I assume i. NA 15.) No this account was terminated upon dacash being terminated. a. NA i. I assume at the same time as the dacash account. b. Yes i. At the same time as dacash I assume i. NA 16.)No this account was terminated upon dacash being terminated. a. NA i. I assume at the same time as the dacash account. b. Yes i. At the same time as dacash I assume i. NA 17.)No this account was terminated upon dacash being terminated. a. NA i. I assume at the same time as the dacash account. b. Yes i. At the same time as dacash I assume i. NA 18.)No this account was terminated upon dacash being terminated. a. NA i. I assume at the same time as the dacash account. b. Yes i. At the same time as dacash I assume i. NA 19.) Yes a. I don't recall there being any other accounts to terminate. i. I don't recall 20.) Yes a. I don't recall there being any other accounts to terminate. i. I don't recall there being any other accounts to terminate. b. no

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i. NA i. yes 21.) Yes a. I don't recall there being any other accounts to terminate. i. I don't recall there being any other accounts to terminate.

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