Jon

Well, I caught wind of this a few days ago, but haven't reported on it until now because I just wanted to get verification first and make sure we didn't report on anything false.

Here's the news..

At AD:TECH SF last week, 8 ad networks were served with a small claims court suit of between $7500-$10k each on account for email spam. The suit is specifically for "violation of the California anti-spam laws". The person behind this is an actual lawyer too, which makes it seem fishy. More on that soon though.

The following networks were served:

Offerweb
AzoogleAds
Intermark/Copeac
ClickBooth/IntegraClick
AdDrive
The Useful
Admercial
Rextopia

The papers they were served with carries the following information:

The court date is set in California on June 18th 2007 at 1pm. Case #207-SCo4387 in Superior Court of California at the Santa Clara - Palo Alto Courthouse - 270 Grant Ave Palo Alto CA 94306.

Now here is where it gets interesting...

The person behind the suits name is James Wagner, who is a lawyer and apparently makes his living off of things like this. Meaning, the companies at fault here are probably not really at fault, it's just Mr. Wagner's way of making some quick cash by serving companies he knows of outside of the state who will not show up to court and just pay the amount set to make it go away. Personally, I think they should all show up, fight it, and then counter-sue this scumbag for trying to rip them off, but then again, he did make the amount small enough so that it would end up costing more than what he's asking for. The whole thing is fucked up if you ask me, and I feel bad for the companies being named in the suit. I don't think any of them are at fault, and I think someone should take this Wagner guy out and sue him for being a creep (although I don't think there's a law against that yet).

My best wishes and support for the companies named, and I hope that if any of them do choose to fight it, you have me on your side for sure. There's a big difference between doing something wrong, and being scammed to make it look like you did something wrong, and I just cannot stand for that.

I'll report back with anymore news on the topic. Meanwhile if Mr Wagner ever sees this post, hopefully he'll understand my frustration with people like him who make their living off of doing scammy things like this.

Kind of funny though.. I think this is the first email lawsuit brought up in years that didn't have Scott Richter tied to it! Just goes to show you, that Mr Wagner obviously doesn't have much backing to really take this to court and do damage and is just seeking a quick pay day from it, because Scott would definitely rip him a new asshole.

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sicmayhem

I've dealt with this guy before at a company I used to work for. He sued the company I worked for directly for violations of the CAN-SPAM act. My personal experience with him totally lead me to believe that he is in it for the money and nothing more. Its extortion at its worst. And I didn't work for some no name tiny affiliate company either. I worked for a large .com that I don't want to mention cause the issue has since been closed and I don't work for them anymore so I don't want to get a letter from their lawyers now for bringing it up again, or from Mr. Wagner. This guy is totally scum and I wish that there was a way to stop him from making money by extorting legitimate businesses.

Also so people can see his site it is Hypertouch&#174 Inc. -- Internet Services and Haptic Peripherals and Additional Hypertouch&#174 Legal Notices he used to have a page with email addresses on it that he created for the sole purpose of catching people that were harvesting email addresses, then when an offer would be sent to one of those email addresses he would go after not the affiliate but the company who's offer the affiliate was pushing.

I'm willing to discuss it a bit more if anyone is really curious about the details. Feel free to PM me.

Jon

You'd think a guy making his cash from suing people and getting them to settle quickly would give him enough cash to update his website so it doesn't look like it was made in 1995. Can't someone sue him for having an ugly site?!?!

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che1959

This guy needs the spam.........some people just deserve it......maybe it sounds like a project for my class....which student can send the most emails to this guy in a 2 hour class. Maybe a lesson for my students on mass emailing programs?

Sands

If my Prayers get answered he and his family drive off the Bay Area melted on ramp!

jelf

hm, I emailed him I am going to see what happens. Browse this Index of /legal/

Andrew

Sounds a lot like that gimp in California who goes around sueing small businesses because they aren't handicap accessible, or are in violation of some minor law (sometimes conflicting and uncompliable.)

Propellorhead

There is another unreputable person like this who who owns Beyond Systems. He sets up traps to catch mail and thus lives off of the perils of the CAN SPAM act. If you come across a company of the name of Beyond Systems watch out they are low lifves trying to make a quick buck. If you ask me they all should be incarcerated for bogging up the legal system with frivolous suits

Propellorhead

The following networks were served:

Offerweb
AzoogleAds
Intermark/Copeac
ClickBooth/IntegraClick
AdDrive
The Useful
Admercial
Rextopia

PS I know all of these companies and they are all reputable

Jon

No one is saying that they aren't reputable.. I think it's pretty obvious that we are all on the same page here for once in agreeing that the slimy person here is the guy suing these networks for a quick payout from them, and purposely set out to lure them into the suit. I just hope one of them ends up fighting him in court so it can drain his resources and damage him, then when it's over, counter-sue his ass and take him down for good.

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webonline

agree too many frivilous lawsuits

Andrew

I'm not sure if its fair to call this frivilous. Exploiting the legal system, yes, but thats business. You should be accountable for every fucking e-mail you send. These networks just pass the bill onto the affiliates who are mailing addresses scraped off the web.

Sands

Your implication is that there are Lawyers that don't make money ooff of such things.

How old are you?

duzins

Sounds like the moron judge on DC suing a drycleaning service for 67M. What a toad...

Jerry Rivers

They're fucked. This guy has a long history of shaking down companies over email: hypertouch - Google Search

He was the first "ISP" to sue under CAN-SPAM - sued Bobvilla.com over a newsletter send. The only reason he gets away with it is b/c some companies would rather pay him to go away then fight and weather the bad press. Kennedy Western bought him off when he sued them a year ago.

ChrisS

Damn you would think that a judge would see that he has a history of doing this shit.

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CPAPIMP

sounds like that guy in UT two years ago who sued 100 companies for $6,500 each, and about 60 of them settled just to shut him up.

I think a UT judge finally stopped him because they were frivolous, but he got his money, almost $400k worth.

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Joepublic

Hi folks,

I’m the guy who filed those two suits. I thought I would leave a comment. I am not an attorney, I am a graduate student in Mechanical Engineering working on Assistive Robotics for people with high-level spinal cord injuries. I am also the president of Hypertouch, Inc.

All of these ad networks were sued because they were advertising using illegal UCE, specifically spam with false ‘From:’ lines were sent under multiple domain names by a spammer with a penchant for registering hundreds of throw-away domain names, using fake names and addresses to conceal their identity. As an example, one domain was registered using the false name and address located in Los Angeles. I called up the business that is actually located at that address, which happens to be a restaurant. While I have not eaten there, they were very helpful on the phone, and they confirmed that the registration is fraudulent – they do not own the domain, they do not send out email advertisements, and they have never heard of the person. The US Postal Service’s website verifies the fraudulent nature of the dozens of addresses made up from all over the U.S. that were used to register this spammer’s domains. The spammer sends from a large pool of different IP addresses even though it violates the hosting ISP(s)’s AUP that explicitly forbid their activities.

The thing is, _none_ of the companies deny that this is spam sent by one of their affiliates. So I am not sure what exactly you are talking about when you write of "being scammed." If you use spammers that send illegal email, you'll likely make money but the law will hold you as well as the spammers who hit the send key accountable. Legitimate businesses don't use 800+ falsely registered domain names rotating through a different one every couple of days. eFax sends me advertisements for any number of different businesses, but it's always From: efax.com...

As for setting up filters to deal with this spammer, we already have advanced spam filters to try to deal with the flood of spam and this spammers email still gets through. You propose that one could manually setup a new rule for each email when it comes in — In the past six months they’ve used over 800 different throw-away domain names from over 800 different IP addresses using image based spam of random-hashed URLs. Everyone’s legitimate email, including legitimate email advertisements is hurt by this flood of illegal spam. Spam interrupts online communities and prevents new lines of communication from forming.

To this day, it has been impossible to identify the spammer who actually hit the “send” key. Uniformly, Ad networks that hire bad spammers refuse to identify them. When Congress legalized spam, it did so with a bargain to the country — spam was legalized but with the mandatory requirement of transparency and accountability. If one can’t identify the sender of a Commercial Email (solicited or not), it’s illegal, both under CAN-SPAM and California law. There is no legitimate reason to conceal the identity of the people who are hitting the send key for one’s emails. However, as I’ve been told by more than one an ad network this particular spammer brings in a lot of business. California law and the Federal CAN-SPAM Act hold the ad networks responsible for their spam, even if we can’t track down the actual person who hit send.

I have offered each of the current Defendants the option of settling via a donation to tax-deductible charity for relief efforts in Darfur with NO money to go to myself. In past years I’ve raise upwards of $70,000 for charity through donations of judgments, settlements, and/or directed donation by defendants.

I am passionate about fighting illegal UCE. The email address to which these spam were sent is my default university address, used by my University for communication with its students, faculty and staff. It is not an address I give out to anyone for any other use; this indicates that the spammer likely has an illicitly generated list of as many as 20,000+ addresses of the University community. A number of people at this University have filed dozens of cases for illegal spam in this small claims court over the past few years. We have prevailed in every case. Almost always, after actually appearing and losing in an court room in front of a judge, the defendants decide to clean up their act and put their ship in order.

While I am less optimistic about a change in behavior from a couple Defendants, AdDrive (SubscriberBase) and The Useful, which run those “‘Get a free laptop/ipod/plasmascreen” type promotions we all get spam for, I try to be hopeful for them as well and time will tell.

Joe

DorianWar

Personally, I am on Joe’s side after reading his post.

Next up...
Someone please sue Kanoogle, 7search, goclick, and all the other bastards the defraud PPC advertises every day.

Joepublic

Kind of funny you should say that. Actually, OptInRealBig was served at Ad:Tech along with ValueClick for spam with From lines claiming to be from a number of major retail stores. ValueClick had been sued by in the past by Wal-Mart for having Wal-Mart branded promotions...

I am not the Plaintiff in that one, another grad student is. So far the judge has denied two motions to dismiss filed by the Defendants.

springer

This whole thing just amazes me... almost beyond comprehension. Who would have thought, back in the old days, that so much could be made of so little? E-mail, "spam" or otherwise, is merely pixels on a computer screen. It has no substance. It only exists until someone deletes it. It causes no harm. I mean really... how tough is it to hit a delete button? I do it hundreds of times each day. I have NEVER been harmed by an unsolicited e-mail.

The only reason it's such an issue is because the governement, in their infinite wisdom, has seen fit to enact laws to try to regulate it. Thus, giving people like Joepublic an avenue to profit via the judicial system.

I pick up my mail at the Post Office each day. In the lobby, there is a trash can that overflows onto the floor with junk mail no one wants. That mail not only kills trees and contributes to the polution problem by filling up landfills but also consumes a huge amount of energy to produce and dispose of. It also wastes the time and resources of the postal service to deliver, although it's profitable for them.

If I bring my junk mail home to dispose of it, because I don't want the credit card applications lying in a public waste bin, I have to pay to have it hauled away.

No laws exist to regulate the amount of junk mail I get so no one sues.

There are signs and billboards dotting the landscape as well. Advertisements on bus benches, rolling billboards on trucks and bandit signs planted at every intersection. No one seems to mind these assaults on the landscape but they are more offensive to the senses than any e-mail I've ever received. I cannot simply delete them.

No laws exist to regulate how many advertising signs I have to look at, so no one sues.

I pay for satelite TV service, yet quite a few minutes out of every hour are wasted by commercial advertisements. I pay for that time. I also pay for cellular phone service and I get text message advertisements. I pay for the use of the minutes used for these incoming advertisements.

No laws exist to regulate how many TV commercials or text message ads I have to see, so no one sues.

I see people everywhere wearing clothing emblazoned with advertising. Either the makers logo or some other ad placed on the clothing. People pay for that clothing and wear it proudly. They're paying to promote a brand and, unless I walk with my head down, I'm forced to see it.

No laws exist regulating advertising on clothing so I have to look at it and no one sues.

I also pay for the government and the judicial system that allows people like Joepublic to profit from filing these "worseless" lawsuits. I'm not happy about that, either. I really wonder just who it was that lobbied so hard for these laws to make it possible for people to file lawssuits against e-mail advertisers?

My entire point is; we live in a capitalist society. Our lives are surrounded by and, in some cases, made possible by advertisements. So what's the big deal about getting an unsolicited e-mail? Hit the delete button and move on. Who really cares where they come from? If it's something someone's not interested in, they have a choice.

I don't care where an e-mail originates and I don't care if the sender tries to mask who it's from. I'm savvy enough to realize that if I see an e-mail that looks personal but is from someone not in my e-mail address list, it's likely an ad. I don't care to have the government or anyone else decide for me what I should see or what I shouldn't.

I can pick out the junk mail in my regular mailbox from a mile away. I'll bet some of it has fake return addresses and some of it even has no return address at all. There are no laws that require the senders to give me an way to opt out of getting their mail. I can sign up for the "do not call" list for telephone solicitors or sign up for a service that will cut down the amount of mailing lists I'm on but who really cares? I can hang up or toss the junk mail. I prefer making the choice myself.

Once again, no one sues.

Joe, please don't preach to me how you're going to make the Internet or the world wide web a better place. I don't buy it. It's not up to you to protect me or anyone else. You've found a way to profit from it, plain and simple. You're just fishing, by making these honey pot e-mail addresses and hoping someone will send an e-mail to one of them so you can sue.

Even if, as you say, you're not directly profiting from the lawsuits and are donating the proceeds to charity, it's still something that makes you feel like you have the power over someone else. I think it's a perversion of the judicial system. You don't like the way the alledged spammers earn their living and I'll bet they're just as unhappy about the way you make yours. I think you're even.

The Internet and the web are the modern version of the wild west and I like it just fine, just the way it is.

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Alcoholics go to meetings!

sicmayhem

I couldn't agree with you more.
And I know that joepublic doesn't just send to charity all of his legal winnings. This is his business model and he chooses to profit by his legal exploits and nothing anyone does can change that.

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mkrongel

This is a great response. I think ill file a lawsuit against the maker of the trucks that the post office uses to deliver mail since they are enabling the post office to "spam" my mailbox at home. Or maybe the paper companies who supply the paper to Capital one for all the credit card offers i get each week.

ep5794

Let's face it, the online marketing world is held to a different standard than the offline world. Granted they did create the DNC to curb telemarketing, but nothing has been done to curb direct mail. Maybe I'm just jaded having been in this industry for 7 1/2 years and my livelihood is online marketing. However, to me direct mail is more intrusive than email marketing. I can easily hit delete and get rid of my email, but I have to open up my direct mail to realize it's another solicitation. Yet I don't complain about my direct mail and just deal with it. Outsiders of this industry need to realize that the Internet isn't free. NOTHING is free...not even those free Macy's Gift Cards, iPods, Laptops, etc that i see all over.

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Joepublic

There are no US anti-spam laws that regulate the amount of spam you get. But as is the case with Junk snail mail, there are laws regulating how you can do it. There any number of laws regulating junk snail mail. (USPS Fraud - Prevention) It is illegal to send fraudulent snail mail. It is illegal to send fraudulent email.

But if an advertiser comes into your house and starts painting a billboard on your wall, you can sue or have him arrested. If an advertiser comes into your business and interferes with your customers by thrusting his sign in front of their faces, you can sue or have him arrested.

Not true, in California and in many other states, text messages ads _are_ illegal. Verizon in suing a bunch of folks for that.

Absolutely. Spam laws exist to make capitalism, to make commerce work better. It is not the wild west. Telemarketers cannot cold-call me a 2 am. Doesn't matter what they're selling, they just can't do it.

Spamming is _legal_ in the U.S. All you have to do is not lie, is to be transparent and accountable.

Because fraud, falsity and deception matter. There clearly is a substantial public interest in ensuring that "commercial electronic mail should not mislead recipients as to the source or content of such emails."

And you'd be wrong to do so and your suit would get tossed out. If Publishers Clearing House calls you at 3 am that would be illegal. If Publishers Clearing House calls you using a fake caller ID phone number, that would be illegal. Legitamate advertisers don't do that. There are good reasons telemarketing has regulations against that. You can hold both PCH and the telemarketer PCH hired accountable.

I am not suing the company who made or owns the webserver software (and licenses it out, per their EULA), e.g. Microsoft. I am not suing the company who provides the internet connectivity, e.g. Invision. I am not suing the company who provides the electricity to run everything, e.g. Con Edison.

I am suing the companies who are the ones using illegal spam to make a profit.

There are different regulations between the two because clearly online marketing manifest different effects than that offline marketing. For example, there is no prohibitions online on what times you can contact the user to advertise. But there is substantially little difference in cost to the sender between sending a dozen emails, and a million. If I send a million UCE, even at just 1 second per recipient "to just hit delete," I've just imposed seven man-weeks of labor on the economy. By prohibiting false and misleading headers, society is attempting to preserve the utility of email for everyone, consumers and marketers alike.

Your direct mail follows fundamentally different cost/reward/effects curves.

aeiouy

That is idiotic. I waste too much time and resources every day dealing with spam mail. Claiming it does no real harm or has no real cost, either means you don't know what you are talking about or you live in a bubble.




Clearly you don't value your time. Some of us put a high value on our own time, and messing with spam mail does nothing but waste it. There is no trade-off, there isno benefit. It is ONLY a negative thing.


Wrong again. The only reason it is an issue is because most people hate it.


Regular mail "spam" is controlled by the cost to create and deliver it. There is no such impedence to e-mail spam. Which means spammers can send unfettered by an real cost hinderance. It is not the same thing at all. You would not be so cavalier about your regular postal junk mail if it were essential free for people to send it to you.



Being able to access my e-mails is the lifeline of my businesses. The lifeline of my businesses are not roadside billboards. Spam mail directly interferes with my ability to run my businesses.

You either don't get it, or you are an e-mail spammer.

This has nothing to do with people's right to advertise. It has to do with people being able to infiltrate MY space with unsolicited advertisements. I did not ask them to contact me, I did not encourage them to contact me, I did not pay for a service that got them to contact me.

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springer

Wow alphabet boy, for valuing your time so much, you sure wasted an awful lot of it picking apart my post and calling me an idiot. Nice!

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ScottDaMan

Offline Spam, a gov agency profits USPS
Online Spam, gov agencies are bypassed...MUST CREATE LAWS!!....

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MyOwnDemon

This spam lawsuit is fucking pointless on every level. Bottom line: It's not going to solve anything. Laws will be made, and people will find loopholes in those laws, just like they always do.

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ep5794

That's why CAN Spam was put into affect.

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ep5794

Your direct mail follows fundamentally different cost/reward/effects curves.[/quote]


Okay, please explain these cost/reward/effects to the rest of us then.

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Idea Guy

You have a point there MyOwnDemon

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