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)

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United States of America v. Impulse Media Group Inc Doc. 31 Att. 10 Case 2:05-cv-01285-RSL Document 31-11 Filed 09/25/2006 Page 1 of 2 EXHIBIT J Dockets.Justia.com Case 2:05-cv-01285-RSL Document 31-11 Filed 09/25/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. Argument Defendant's Motion for Partial Summary Judgment divides the emails it discusses into two categories. The first category consists of emails originated or transmitted directly by the Defendant itself. The second category consists of emails that were sent by Defendant's affiliates. As discussed below, the Government agrees that first category of email does not violate the law. However, because the Defendant procured the initiation of the second group of email through the undisputed use of its affiliate program, the Defendant must be held liable for those violative emails. A. The Emails Defendant Sent With Consent of the Recipient Pages 3-11 of Defendant's summary judgment memorandum discuss email that Defendant itself sent using its own computers. That section of Defendant's memorandum establishes primarily that the individuals who received these emails consented to do so, making the emails lawful. The Government has never contended otherwise. As a part of its Initial Disclosures, the United States provided hundreds of emails to the Defendant including the emails in this first group. In attachments A, B, and C to the United States' Response to the Defendant's First Set of Interrogatories Propounded to Plaintiff, the Government identified emails produced as a part of the Government's discovery to Defendant that were in violation of the Act and Rule. The Government did not identify in Attachments A, B, or C any of the sixty-seven emails originated or transmitted by the Defendant that are set forth in the Defendant's Motion for Partial Summary Judgment. The Government also did not seek summary judgment as to liability for these emails. Because the Defendant produced evidence of consent with respect to these emails, the Government has not, and does not, contend that this category of emails are violative. These emails have not been at issue in the case. Summary judgment as to this category of emails is unnecessary and inappropriate. Page 10 of 21

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