United States of America v. Impulse Media Group Inc

Filing 32

REPLY, filed by Plaintiff United States of America, TO RESPONSE to 17 MOTION for Summary Judgment (Attachments: # 1 Exhibit 24# 2 Exhibit 25# 3 Exhibit 26)(Hash, Lauren)

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 1 of 6

Seth Shiloh Schermerhorn
Page 58

August 10, 2006
Page 60

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Do you recognize the image in this exhibit? Yes. Is this image the property of IMG? Yes. MR. APGOOD: I'm going to object to use of this exhibit because the exhibit is incomplete and plaintiff violates the Federal Rules of Evidence in that it does not contain the source code which underlies the graphic representation of the exhibit. The government knows well the distinction between the underlying source code and the graphic representation of an exhibit, particularly in email, because it has previously provided sworn testimony making the distinction between the two in other cases regarding CAN-SPAM compliance. Q. Based on the exhibit in front of you, if you were the recipient of this email and you wanted to opt out from receiving further email messages from the sender, what would you do? MR. APGOOD: Objection, calls for speculation. A. It says "Click here to be removed" below the image, and I guess I would try and click there. Q. Is the text "Click here to be removed" located below the image in this email?
Page 59

Q. A. Q. A.

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messages from the sender, what would you do? MR. APGOOD: Objection, calls for speculation. Objection to the use of this exhibit as it is incomplete in that it does not provide with it the underlying source code for the email and instead all it shows is a graphic representation of the email. Therefore, any use of this is in violation of the Federal Rules of Evidence. MS. HASH: Would Counsel like to make a standing objection to the emails used by the government? MR. APGOOD: Yes. A. It says, "If you don't want to be a part of our program: Click Here," so I'd probably try and click the text that says "Click Here." Q. And the text you just referred to, "If you don't want to be a part of our program: Click Here," is that text located below the image in this email? A. Yes. Q. In your opinion, based on the exhibit in front of you, does this email comply with what you understand the CAN-SPAM Act and the adult labeling rule to require? MR. APGOOD: I would like to set forth a standing objection regarding any questions related to
Page 61

A. Yes. Q. And in your opinion does this email comply with what you understand the CAN-SPAM Act and adult labeling rule to require? MR. APGOOD: Objection, calls for speculation. Objection, calls for legal conclusion. The witness has not been qualified as an expert, and therefore, to provide expert testimony such as solicited by the government's question is improper. A. I forgot what the question was. MR. APGOOD: Madam reporter, please read back the question. (Reporter read back as requested.) A. No. Q. Handing you what's been previously marked government Exhibit-23, is Bootycakes.com a website owned by IMG? A. Yes. Q. Do you recognize the image in this exhibit? A. Yes. Q. Is this image the property of IMG? A. Yes. Q. Looking at the exhibit in front of you, Exhibit-23, if you were the recipient of this email, and you wanted to opt out from receiving further email
CV 05-1285L United States' Exhibit 26 Page 1 of 6

emails that deal with complying with the CAN-SPAM Act as seeking a legal conclusion by the witness. A. No, it doesn't. Q. Handing you what's been previously marked government Exhibit-24, is JizzLickers.com a website owned by IMG? A. Yes. Q. Do you recognize the content in this exhibit? A. Yes. Q. Specifically what do you recognize? A. It looks like a screen shot of JizzLickers.com. Q. To your knowledge is this email promoting an IMG website? MR. APGOOD: Objection, calls for speculation. A. Yeah, I mean, I would assume so. Q. Looking at Exhibit-24, if you were the recipient of this email and you wanted to opt out from receiving further email messages from the sender, what would you do? MR. APGOOD: Objection, calls for speculation. A. It says, "Click Here to remove your email

16 (Pages 58 to 61) www.seadep.com

SEATTLE DEPOSITION REPORTERS
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e5e0ea49-bbe4-4d20-be98-a0da77d95433

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 2 of 6

Seth Shiloh Schermerhorn
Page 62

August 10, 2006
Page 64

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address." I'd probably try and click that red text that's below the image that says "Click Here." Q. In the text it says, "Click Here to remove your email address." Is it located below the image in this email? A. Yes. Q. In your opinion does this email comply with what you understand the CAN-SPAM Act and adult labeling rule to require? A. No. Q. Handing you what's been previously marked government Exhibit-29, is MelodyHart.com a website owned by IMG? A. Yes. Q. And do you recognize the content in this exhibit? A. I recognize the image. Q. Is this email promoting an IMG website? A. I can't really tell without seeing the source code of the email, but most likely it is. Q. Looking at government Exhibit-29, if you were the recipient of this email and you wanted to opt out from receiving further email messages from the sender, what would you do? MR. APGOOD: Objection, calls for
Page 63

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regular basis to look for fraud and abuse. Do you recall that testimony? A. Yes. Q. You also gave some explanations and examples of that; is that correct? A. Yes. Q. How does review of the stats show how the terms of service are being violated? Let me be more specific. A. I got the question. Q. Okay. A. I mean in reviewing like the referring information where it's actually good referring information and you could see a website, you could see, like, you know, violations of marketing -- the usage of our marketing material. Q. Can you give me an example of how those usage rates would indicate that the terms of service are being violated. A. It would have to be something else that popped -- that made us -- drew attention to it, and then if we started researching affiliates referring traffic and their referring web pages, we could see like any misuse of -- like misleading the referred traffic by making false promises, which would fall
Page 65

speculation. A. There are no instructions for opting out that I can see. Q. In your opinion does this email comply with what you understand the CAN-SPAM Act and adult labeling rule to require? A. No. Q. What does IMG do to recruit new affiliates? A. Nothing currently. Q. Who at IMG has terminated an affiliate since January 1st, 2004? A. It would be me, if there were any terminated since then. Q. And does IMG monitor new affiliate sign-ups to make sure a terminated affiliate does not sign up to the program again? A. No. MR. APGOOD: Objection to the extent that the question implies that such a duty exists. MS. HASH: I don't have any further questions at this time. EXAMINATION BY MR. APGOOD: Q. Previously you provided testimony that IMG reviews the stats on a regular basis or somewhat
CV 05-1285L United States' Exhibit 26 Page 2 of 6

under the part of the terms of service that talks about the marketing material that they're authorized to use or not use. Q. Are these conclusions, then, inferences you draw based upon a number of different sources of information? A. Yes. Q. Is there anything in the statistics reporting that shows definitively that terms of service are being violated? A. No. Q. Previously you gave testimony that it's possible for an affiliate who had been terminated to resubscribe as a new affiliate; is that an accurate assessment of your testimony? A. Yes. Q. In doing so would they have to be providing totally different information than they previously provided to the account that was terminated? A. Yes, to an extent. Q. Would you consider that a fraudulent attempt to become an affiliate? A. Yes. Q. Previously you gave testimony that the affiliate database is searchable, but it's not

17 (Pages 62 to 65) www.seadep.com

SEATTLE DEPOSITION REPORTERS
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FAX: [phone]

e5e0ea49-bbe4-4d20-be98-a0da77d95433

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 3Page61 of 1 of

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CV 05-1285L United States' Exhibit 26 Page 3 of 6

10/8/2004

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 4 Page 1 of 1 of 6

From: To: Sent: Subject:

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CV 05-1285L United States' Exhibit 26 Page 4 of 6

2/25/2005

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 5 of 6

Page 1 of 2

From: To: Sent: Subject: Dude,

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CV 05-1285L United States' Exhibit 26 Page 5 of 6

GOVERNMENT EXHIBIT

12/2/2004

Case 2:05-cv-01285-RSL

Document 32-4

Filed 09/29/2006

Page 6Page 2 of 2 of 6

categoryhaveto take the examination. However, employer the cannot reject the applicantbecause information of aboutyourdisability revealed the medical by examination, unlessthe reasons rejection are job-related andnecessary the for for conducof the employer's t business.
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CV 05-1285L United States' Exhibit 26 Page 6 of 6

12/2/2004