United States of America v. Impulse Media Group Inc

Filing 30

DECLARATION of Seth Schermerhorn filed by Defendant Impulse Media Group Inc re 17 MOTION for Summary Judgment (Apgood, Robert)

United States of America v. Impulse Media Group Inc

Doc. 30

Case 2:05-cv-01285-RSL

Document 30

Filed 09/25/2006

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1. stated matters; 2. v. IMPULSE MEDIA GROUP, INC., a Washington corporation, Defendant. Plaintiff,

HON. ROBERT S. LASNIK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION UNITED STATES OF AMERICA, No. CV 05-1285L DECLARATION OF SETH SCHERMERHORN IN SUPPORT OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

I am at least eighteen years of age and could and would be able to testify to the herein

I am managing agent and sole shareholder of the Defendant, Impulse Media Group,

Inc. ("IMG") in the above-styled case and have personal knowledge of the matters herein; 3. 4. 5. I hold the title of "President" of the company; I am an officer of the corporation; I have read the United States' Motion For Summary Judgment ("MSJ") and know the

contents therein; 6. Plaintiff alleges that IMG is liable for the hundreds of email messages that its

affiliates sent in violation of the law. MSJ at 24:3-4. IMG had no knowledge of and did not give approval to its affiliates to promote IMG offerings through e-mail; 7. IMG pays commissions to affiliates who refer potential customers to IMG's Web sites
CARPELAW PLLC
2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

if, and only if, the potential customer subscribes to a IMG Web site;
DECLARATION OF SETH SCHERMERHORN - 1

Dockets.Justia.com

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8.

IMG does not pay, encourage, condone, or otherwise procure or induce affiliates of

IMG's SoulCash program to send e-mail that violates CAN-SPAM or the Adult Labeling Rule to promote IMG's websites; 9. Plaintiff has alleged that IMG provided affiliates with marketing and promotional

materials that could be used in e-mails to promote IMG Web sites. MSJ at 22:20-25. IMG has never provided affiliates with marketing and promotional materials with the intent that they be used in emails. Promotional materials were designed for use by SoulCash affiliates on Web sites only. The use of promotional materials in e-mails was neither intended, encouraged, nor condoned by IMG. Affiliates who utilize promotional materials in e-mail are in violation of the Affiliate Terms of Service, Paragraph 3.6, and are subject to summary termination as an affiliate; 10. Plaintiff has alleged that IMG provides technical support to SoulCash affiliates via

telephone, e-mail communications, and instant messenger. MSJ at 22:26 ­ 23:6. Technical support is not provided by IMG to SoulCash affiliates to induce affiliates to send e-mail on IMG's behalf. IMG never provided technical support to affiliates to instruct affiliates in the use of e-mail as a promotional device; 11. Plaintiff has alleged that IMG provides sales statistics to SoulCash affiliates to allow

the affiliates to monitor the results of their promotional efforts, including number of sales, number of clicks, referring URL information, and a list of the total dollar amount earned by the affiliate. MSJ at 23:3-5. Statistical data is not provided by IMG to SoulCash affiliates to induce affiliates to send e-mail on IMG's behalf. IMG has never provided statistical data to affiliates to allow affiliates to monitor the use of e-mail as a promotional device. Referring URL information provided to SoulCash affiliates relates solely to Internet Web sites, and not to the identification of e-mails; 12. Plaintiff alleges that IMG induced affiliates to bring subscribers to IMG's Web sites by

running bonus payouts called "Fat Fridays" and by giving affiliates gift certificates. MSJ at 23:13-17. IMG did run bonus payouts and gift certificate programs to induce affiliates to bring subscribers to IMG's Web sites. IMG did not run these programs to induce affiliates to send e-mail or to violate CAN-SPAM or the Adult Labeling Rule.
DECLARATION OF SETH SCHERMERHORN - 2 CARPELAW PLLC
2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

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13.

Plaintiff alleges that IMG paid affiliates for sending violative e-mail messages and

induced them to send violative e-mails through promises of payment and extensive affiliate support. MSJ at 24:1-5. IMG has never paid affiliates for sending violative e-mail messages. IMG has never induced affiliates to send violative e-mails through promises of payment and extensive affiliate support; 14. Plaintiff alleges that IMG is liable for the unlawful transmission of spam because it

intentionally paid and induced others to initiate violative e-mail messages on IMG's behalf. MSJ at 24:7-8. IMG has never intentionally paid and induced others to initiate violative e-mail messages on IMG's behalf; 15. Plaintiff alleges that IMG knew that some of its affiliates relied on unlawful spam as a

means to advertise IMG's Web sites. MSJ at 27:13-16. IMG did not know that some of its affiliates relied on unlawful spam as a means to advertise IMG's Web sites. In fact, IMG has and maintains a strict policy prohibiting the sending of spam, lawful or otherwise. Affiliates of SoulCash who utilize e-mail that violates CAN-SPAM or the Adult Labeling Rule to promote IMG's Web sites are in violation of the SoulCash Affiliate Terms of Service, Paragraph 2.3, and are subject to summary termination as an affiliate; 16. Plaintiff alleges that IMG does not deny that its affiliates operated in an environment

that was conducive to spamming. MSJ at 27:20-22. IMG denies that it maintains or supports an environment that has been or is conducive to spamming; 17. Plaintiff alleges that IMG did little to stop its affiliates from violating the law on its

behalf. MSJ at 27:18-19. IMG has not ever granted agency to any affiliate that would allow the affiliate to perform any act on IMG's behalf; 18. Plaintiff alleges that IMG claims that IMG has not provided specifics regarding the

identities of affiliates terminated for spamming. MSJ at 28:23 ­ 29:1. IMG has terminated 12 affiliates for spamming, and has recorded the reasons for those terminations in an document provided to the FTC prior to the institution of the lawsuit; 19. Plaintiff alleges that IMG's termination policies were more show than substance. MSJ
CARPELAW PLLC
2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

at 29:2-7. IMG has rigorously enforced its termination policies against affiliates who violate IMG's
DECLARATION OF SETH SCHERMERHORN - 3

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