California Attorney General and FTC Terminate Illegal Spam Operation

The Federal Trade Commission and California Attorney General Bill Lockyer have jointly announced that they have brought “a permanent halt to an operation that sent millions of spam messages that violated federal and state laws.”

According to the FTC release, the settlement “will bar future violations of the spam laws, will require the operators to monitor affiliates closely to assure that they are not violating state and federal laws, and requires that they give up approximately $475,000 in ill-gotten gains.”

In April 2005, the two agencies charged defendants with using third-party affiliates or “button pushers” to “send spam hawking mortgage loans and other products and services.”

The operation “used hyperlinks in the spam to refer consumers to Web sites operated by the defendants.”

The FTC reported that consumers forwarded over 1.8 million of the defendants’ e-mail messages to the agency. According to the FTC, those messages “demonstrated that the defendants were violating almost every provision of the CAN-SPAM Act.”

The FTC and California charged that the defendants e-mail:

·                         contained false or forged header information;

·                         included deceptive subject headings;

·                         failed to identify e-mail as advertisements or solicitations;

·                         failed to notify consumers they had a right to opt out of receiving more e-mail;

·                         failed to provide an opt-out mechanism;

·                         failed to include a valid physical postal address.

At the agencies’ request, “the court ordered a temporary halt to the illegal spamming, pending trial, and froze the defendants’ assets.”

The settlement announced today ends that litigation and bars future violations of the CAN-SPAM Act.

Specifically, “it prohibits the defendants from sending commercial e-mail that contains false or misleading headers; contains misleading subject headings; does not contain a valid physical postal address; and does not identify the message as an advertisement. It requires that they include an opt-out mechanism for consumers who do not wish to receive their messages in the future.”

The settlement requires that the defendants “establish an aggressive monitoring regime for any future affiliate program to assure that their affiliates are complying with the provisions of the CAN-SPAM Act and California law.”

In addition to reviewing, in advance, the subject line, text, and other particulars of the affiliates proposed campaign, the defendants are required to establish an opt-out mechanism for any e-mail campaign conducted on their behalf and requires that they ensure that all opt-out requests are honored.

The order also imposes a $2.4 million judgment – “representing the total of the defendants’ ill-gotten gains.”

Based on financial records provided by the defendants, “the judgment will be suspended upon payment of $385,000 in cash and approximately $90,000 from the sale of real property.”

Should the court find that the defendants misrepresented their financial situations; the entire $2.4 million will be due.

The settlement also contains certain bookkeeping and record keeping requirements to allow the agencies to monitor compliance.

The Commission vote to accept the proposed settlements with Optin Global, Inc., Vision Media Limited Corp., Qing Kuang “Rick” Yang, and Peonie Pui Ting Chen was 5-0.

This stipulated final order is for settlement purposes only and “does not constitute an admission by the defendants of a law violation.”

“A stipulated final order requires approval by the court and has the force of law when signed by the judge.”

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