Finally the FTC
and Can-SPAM laws pierce the merchant/affiliate relationship to make both parties responsible under the laws. Nor more cop-out... the affiliate did it ...will hopefully change merchant AM practices of recruiting spammers into their mass advertising fold to throw off the scent from the FTC
Diet Patch Spammers Settle With FTC
By Roy Mark
The bogus diet patch spammers settled with the Federal Trade Commission (FTC
) Thursday on charges they violated the CAN-SPAM Act and other federal laws.
Last year, Phoenix Avatar and its principals fought the charges, claiming they could not be held liable because the FTC
could not prove that they actually sent the spam.
Thursday's settlement bars the defendants from making false or misleading claims for their products or services and bars unsubstantiated health, efficacy or safety claims.
The settlement provides for a suspended judgment of $230,000, the total amount of diet patch sales. Instead, the defendants will pay $20,000. But, if the FTC
finds that Phoenix Avatar cooked its books, the entire $230,000 will be due.
In April 2004, the FTC
filed suit in U.S. District Court charging Daniel J. Lin, Mark M. Sadek, James Lin, Christopher M. Chung and their company with violating the CAN-SPAM Act and the FTC
Act by marketing bogus diet patches using massive amounts of illegal spam.
Although the FTC
won a temporary restraining order halting the unsubstantiated claims and freezing the defendants' assets pending trial, Phoenix Avatar appealed on the grounds that marketing affiliates, not Phoenix Avatar, sent the spam.
In July, U.S. District Court Judge James Holderman issued an order finding that CAN-SPAM liability "is not limited to those who physically cause spam to be transmitted, but also extends to those who 'procure the origination' of offending spam." The court held that the FTC
had amassed a "persuasive chain of evidence" connecting the defendants to violations of the CAN-SPAM Act and the FTC
The new settlement ends the litigation with a stipulated order for permanent injunction and final judgment. The final order bars the defendants from using false header information or not providing a mechanism by which consumers can opt out of further e-mail messages regardless of who sends out the e-mails.