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 Att. 4

Case 2:05-cv-01285-RSL

Document 31-5

Filed 09/25/2006

Page 1 of 2

EXHIBIT D
Dockets.Justia.com

Case 2:05-cv-01285-RSL

Document 31-5

Filed 09/25/2006

Page 2 of 2

1 attached as Exhibit 24). 2

77. Cyberheat received eleven complaints regarding spam sent by affiliate 36828

3 from August 5, 2004, to December 5, 2004. (Response No. 8 to Document Request 4 spam@seekioemail, attached as Exhibit 14). 5

78. The evidence provided by Microsoft shows that Cyberheat affiliate 26377 sent

6 one unsolicited commercial email message to Microsoft's trap accounts on March 11, 2005. 7 The message bore hyperlinks that, when pressed, directed the viewer to the underlying 8 Cyberheat site being advertised. The email message contains sexually explicit material and 9 promotes the Cyberheat website bestmovies.com. The email message fails to include the 10 required label in the subject line or initially-viewable area of the message, contains 11 sexually-explicit material within the initially-viewable area of the message, and fails to 12 include a valid physical address for Cyberheat within the initially-viewable area of the 13 message. In addition, the message contains an opt-out mechanism that appears after the 14 sexually-explicit material rather than within the initially-viewable area. (Himelfarb 15 Declaration at Cyberheat affiliate 26377 section, attached as Exhibit 1). 16

79. Affiliate account 26377 is an active Cyberheat affiliate account. In responding

17 to discovery requests, Cyberheat produced records for all terminated affiliates and 18 Cyberheat did not produce a record for affiliate 26377. 19

80. The evidence provided by Microsoft shows that Cyberheat affiliate 38485 sent

20 four unsolicited commercial email message to Microsoft's trap accounts on May 18, 2006. 21 The email messages contain sexually explicit material and promote five Cyberheat 22 websites: gayasianxxx.com, gayblinddatesex.com, twinksforcash.com, gayebonyxxx.com, 23 and gayinteracialxxx.com. The messages bore hyperlinks that, when pressed, directed the 24 viewer to the underlying Cyberheat site being advertised. The email messages fail to 25 include the required label in the subject line or initially-viewable area of the message, 26 contain sexually-explicit material within the initially-viewable area of the message, and fail 27 to include a valid physical address for Cyberheat within the initially-viewable area of the 28 message. In addition, the messages contain an opt-out mechanism that appears after the Page 17 of 25