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  1. #1
    Affiliate Manager ParadigmWilliam's Avatar
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    September 23rd, 2007
    Time limit to file lawsuit?
    I tried to do a search online but couldn't find an answer. Does anyone know if there is a time limit to file a lawsuit?

    It would be for non-payment/breach of contract for an affiliate against a network.

    Network does business in Colorado and I do business in Michigan.

    Also, does anyone have experience with this and care to share?
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  2. #2
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    January 22nd, 2007
    West Covina, CA
    DISCLAIMER - NOT legal advice, but a general discussion of the principles mentioned in the question.

    There are two different issues involved in your question.

    A) Venue - that is, where to sue. This can be an extremely complicated issue, but generally in such cases it really is a non issue, as merchant TOS and network agreements almost ALWAYS provide that any disputes are to be resolved pursuant to the laws of a particular state, generally the state when the network or merchant is located. Look at the agreement and that will undoubtedly tell you the jurisdiction in which you have to file your law suit.

    B) Time limitations.

    1) Statute of Limitations. A Statute of Limitations is a state law that imposes absolute time limits by which a lawsuit must be filed, depending on the type of underlying action, such as breach of contract, tort (injury cases), fraud, etc.

    You will need to check the specific state Statute of Limitations statutes for the state in which you need to bring your law suit. Generally, most state Statute of Limitations covering contract actions provide that suit must be brought within two years from the date of the breach for oral contracts, and within four years from the date of breach for written contracts. BUT THIS VARIES FROM ONE STATE TO ANOTHER. There can also be a considerable dispute as to what is the date of breach.

    2) The equitable doctrine of Laches. Laches is the principle that "He who sits on his rights loses them." That is, if you wait too long to exercise your rights, that is, to sue, even if suit is filed within the Statute of Limitations period, if the defendant has been prejudiced by the lapse of time, your case can be dismissed. Things that can constitute such prejudice to the defendant are death of witnesses, destruction of physical evidence including documents, etc.

    Bottom line - if you are going to sue, do it soon. Unless you fall within the jurisdictional limits of the Small Claims Court in the jurisdiction in which you must file your suit, you should hire an attorney to handle your case. Courts higher than small claims have many technical requirements including necessary documents, additional filing deadlines, discovery rules, and mandatory hearings that make it extremely difficult to handle a case without an attorney. As to fees, it is very likely that the agreement provides that the prevailing party can recover attorneys fees as part of the judgment, so it may be possible to find an attorney who will agree to accept the court-ordered fee upon conclusion of the case.

  3. #3
    Affiliate Manager ParadigmWilliam's Avatar
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    September 23rd, 2007
    Thanks for the feed back. The reason I ask is because I was on vacation a few months ago and ran into an attorney and we got talking about my problem and he said to sue them but do it yourself and he gave me some info. The reason is, its not to much (about $7,500) but after all the fees and hassle I could end up with nothing.

    Here's the problem, probably better suited for someone that knows affiliate marketing than my attorney I met on vacation.

    I ran a campaign for a CPA network that did extremely well, didn't violate any TOS. I just had a sudden increase in traffic, thus a sudden increase in leads/sales. Of course they called and I was talking with my AM trying to figure things out. Well it so happens that my site was referenced on a popular blog and then got spread around like wild fire.

    So a few days later the offer is pulled by the advertiser from the Network for large amounts of fraud. This fraud was from a large majority of other affiliates driving traffic through search engines that wasn't allowed. I assured the network that I wasn't running PPC.

    After a week I check under payments and see that a check was sent out. I wait a few days and never receive it. I call my AM and he tells me that I will not get paid because they are not getting paid. However I later learn that this CPA network was running the offer from another CPA network, so I called up that CPA network to find out what was going on since I already was partnered with them. I learn from that AM that the first CPA network did get paid something, but not everything. I go back to the first CPA network and inform them of this. Next thing I know my account is banned/closed and the CEO and my AM won't return my calls or emails.

    I did however get a hold of someone at the ecomxpo online at the CPA network and learned that my payment was not sent because of fraud. I asked if they could explain the fraud. Next thing I know, no answer back.

    That's it, haven't heard from them since.

    I do have, copies of emails and proof of each lead/sale with screen shots of my account showing that a check was sent out as well as the commission statistics.
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