United States of America v. Impulse Media Group Inc

Filing 31

DECLARATION of Robert S. Apgood filed by Defendant Impulse Media Group Inc re 17 MOTION for Summary Judgment (Attachments: # 1 Exhibit A - Plaintiff's Motion for Summary Judgment in another case# 2 Exhibit B - Himelfarb Declaration in another case# 3 Exhibit C - Exhibit N to Himelfarb Declaration# 4 Exhibit D - Statement of Facts for MSJ in another case# 5 Exhibit E - Vetter Declaration in another case# 6 Exhibit F - Bundy Declaration in another case# 7 Exhibit G - Defendant's Opposition to MSJ in another case# 8 Exhibit H - Defendant's MSJ in another case# 9 Exhibit I - Vivas Declaration in another case# 10 Exhibit J - Plaintiff's Response in Opoosition to MSJ in another case)(Apgood, Robert)

United States of America v. Impulse Media Group Inc

Doc. 31

Case 2:05-cv-01285-RSL

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Filed 09/25/2006

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DECLARATION OF ROBERT S. APGOOD IN SUPPORT OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 1

HON. ROBERT S. LASNIK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION UNITED STATES OF AMERICA, Plaintiff, v. IMPULSE MEDIA GROUP, INC., a Washington corporation, Defendant. 1. I am at least eighteen years of age and could and would be able to testify to the herein No. CV 05-1285L DECLARATION OF ROBERT S. APGOOD IN SUPPORT OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

stated matters from personal knowledge; 2. I am an attorney of record representing the Defendant, Impulse Media Group, Inc., in

the above-stated matter; 3. Attached hereto as Exhibit A, and by reference incorporated herein, is a true and correct

copy of pp. 6-8 of Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment As To Liability in the case of United States v. Cyberheat, Inc., Case No. 4:05-cv-0457, United States District Court for the District of Arizona ("Cyberheat Case") wherein Plaintiff offers into evidence a) the Declaration of David Vetter describing the Microsoft "Hotmail trap accounts" and wherein the Plaintiff states that Mr. Vetter avers Microsoft has never provided any consent to anyone to send e-mail messages to the Hotmail trap account addresses;
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Dockets.Justia.com

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4.

b)

the Declaration of Chad L. Bundy purporting to describe email in a database that Plaintiff alleges was created by Microsoft;

c)

the Declaration of Allyson Himelfarb detailing how, in Ms. Himelfarb's opinion, the emails violate CAN-SPAM and the Adult Labeling Rule; and

d)

the e-mail detailed in Ms. Himelfarb's Declaration at ¶ 37 is an e-mail sent to a Hotmail trap account;

Attached hereto as Exhibit B, and by reference incorporated herein, is a true and correct

copy of page 23 of the Himelfarb Declaration submitted in the Cyberheat Case wherein Ms. Himelfarb describes "Exhibit N" to her declaration, wherein she describes that the email was sent by an affiliate to Cyberheat, Inc. identified as "Cyberheat Affiliate 26377," and wherein she identifies as an exhibit the "source code" to that e-mail; 5. Attached hereto as Exhibit C, and by reference incorporated herein, is a true and correct

copy of the "source code" identified in Ms. Himelfarb's Declaration as her Exhibit "N," as having been sent by Cyberheat Affiliate 26377, and showing that the e-mail message was addressed to "[e-mail]"; 6. Attached hereto as Exhibit D, and by reference incorporated herein, is a true and correct

copy of page 17 of Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment as to Liability in the Cyberheat Case hwerein, at ¶ 78, Plaintiff argues that "Cyberheat affiliate 26377 sent one unsolicited commercial email to Microsoft's trap accounts" citing as a factual basis "Cyberheat affiliate 26377 section" (produced as Exhibit B, hereto); 7. Attached hereto as Exhibit E, and by reference incorporated herein, is a true and correct

copy of the Declaration of David Vetter described in ¶ 3(a), supra; 8. Attached hereto as Exhibit F, and by reference incorporated herein, is a true and correct

copy of the Declaration of Chad Bundy wherein, at ¶ 5, Mr. Bundy describes how he obtained copies of the e-mails he describes in his declaration "through Microsoft's vendor"; 9. Attached hereto as Exhibit G, and by reference incorporated herein, is a true and correct

copy of pp. 16-17 of the Declaration of Allison Vivas in Support of Defendant Response in Opposition to Plaintiff's Motion for Summary Judgment wherein she avers that the individual using the e-mail
DECLARATION OF ROBERT S. APGOOD IN SUPPORT OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 2 CARPELAW PLLC
2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)

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address "[e-mail]" (identified in ¶¶ 4-6, supra) gave prior affirmative consent to Cyberheat to receive commercial e-mail messages from Cyberheat; 10. Attached hereto as Exhibit H, and by reference incorporated herein, are true and correct

copies of pp. 3-11 of Defendant Cyberheat's Motion for Partial Summary Judgment wherein Defendant identifies (at 3:8-10) the e-mail messages offered in Plaintiff's Motion for Summary Judgment (collectively, the "Cyberheat E-Mails") as messages actually sent by Defendant Cyberheat. Of note, Defendant specifically identifies "Exhibit L" to the Declaration of Allison Vivas, which e-mail message is that very message described in ¶ 5, supra; 11. Attached hereto as Exhibit I, and by reference incorporated herein, is a true and correct

copy of pages 8-10 of the Declaration of Allison Vivas wherein, at ¶39, she enumerates all the e-mail messages sent by Cyberheat to "[e-mail]" (a "Hotmail trap account") as produced by Plaintiff to Defendant Cyberheat, and averring that the [e-mail] subscriber had provided prior affirmative consent to receive those e-mails; 12. Attached hereto as Exhibit J, and by reference incorporated herein, is a true and correct

copy of page 10 of Plaintiff's Response in Opposition to Defendant's Motion for Partial Summary Judgment wherein Plaintiff observes that the Cyberheat E-Mails consist of e-mails originated or transmitted directly by Cyberheat itself, and the Government agrees that the Cyberheat E-Mails (which include the e-mails sent to [e-mail] -- the "Hotmail trap account") do not violate the law." I declare under penalty of perjury of the laws of the United States of America that to the best of my knowledge, the foregoing is true and accurate. FURTHER YOUR DECLARANT SAYETH NAUGHT. DATED this 25th day of September 2006. ROBERT S. APGOOD

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DECLARATION OF ROBERT S. APGOOD IN SUPPORT OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 3

CARPELAW PLLC
2400 NW 80th Street #130 Seattle, Washington 98117 [phone] - [phone] (fax)