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Case 2:05-cv-01285-RSL Document 2 Filed 08/29/2005 Page 1 of 14
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18 UNITED STATES DISTRICT COURT
19 WESTERNDISTRICT OF WASHINGTON
20
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22 UNITED STATES OF AMERICA,
23 No. CV05-1285L
24 Plaintiff,
25 AMENDED COMPLAINT FOR
26 V. CIVIL PENALTIES, PERMANENT
27 INJUNCTION, AND OTHER
28 IMPULSEMEDIA GROUP, INC., EQUITABLE RELIEF
29 a Washingtoncorporation,
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31 Defendant.
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Dockets.Justia.com
Case 2:05-cv-01285-RSL Document 2 Filed 08/29/2005 Page 2 of 14
4 the FTCAct, 15 U.S.C. §§ 45(a), 45(m)(1)(A),53(b), 56(a), and 57b, and under
6 ("CAN-SPAM"
or the "CAN-SPAM
Act"), 15 U.S.C. § 7706(a), to secure civil penalties,
7 permanentinjunction, and other equitable relief for Defendant’sviolations of Section 5(a) and
8 (d) of CAN-SPAM,
15 U.S.C. § 7704(a) and (d), and the FTC’sAdult Labeling Rule
16 DEFENDANT
1 resides in the WesternDistrict of Washingtonand transacts business within the District and
3 COMMERCE
9 Defendant’sbehalf.
1 sexually explicit conduct and that fail to include the phrase "SEXUALLY-EXPLICIT:
"in the
5 sexually explicit conductand that fail to include, in the initially viewablearea of the message,
12 paragraphs 11 through 13 have not given prior affirmative consent to receive such messages.
13 is:
8 §§ 7704(a)(5)(A)(ii) and(iii),
25 any material that depicts sexually explicit conduct (as that term is defined in
26 section 2256of title 18, United States Code), unless the depiction constitutes
27 a small and insignificant part of the whole, the remainderof which is not
28 primarily devoted to sexual matters.
29
30 25. The CAN-SPAM
Act and the Adult Labeling Rule both prohibit any person from
1 includes sexually oriented material and fails to include the phrase "SEXUALLY-EXPLICIT:
"
2 as the first nineteen(19) characters at the beginningof the subject line. 15 U.S.C.
5 that includes sexually oriented material place only the followinginformationwithin the
6 content of the messagethat is initially viewableby the recipient, whenthe messageis opened
7 by the recipient and absent any further action by the recipient ("initially viewablecontent"):
12 16 C.F.R.§ 316.4(a)(2)(ii);
2 communications
for no less than 30 days after the transmission of
6 316.4(a)(2)(v);
11 LabelingRule set forth in paragraphs25 and 26 do not apply if the recipient has given prior
14 [T]his Act shall be enforced by the [FTC]as if the violation of this Act were
15 an unfair or deceptive act or practice proscribed under section 18(a)(1)(B)
16 the [FTC Act] (15 U.S.C. § 57a(a)(1)(B)).
17
1 COUNT I
3 30. In numerous
insta~aces, including but not limited to the practices set forth in this
13 Defendant;
16 Defendant; or
21 16 C.F.R. § 316.4(a).
1 COUNTII
3 33. In numerousinstances, including but not limited to the practices set forth in this
11 COUNTIII
13 36. In numerousinstances, including but not limited to the practices set forth in this
20 38. Individuals and businesses throughout the United States have suffered, and
2 injunctive relief by this Court, Defendantis likely to continue to injure consumers,reap unjust
6 SPAM]
shall be enforced by the [FTC]as if the violation of this Act were an unfair or
7 deceptive act or practice proscribed under section 18(a)(1)(B) of the [FTCAct] (15
9 the CAN-SPAM
Act that are interpreted by the Adult Labeling Rule, shall be enforced as if
10 the violation were an unfair or deceptive act or practice proscribed under section 18(a)(1)(B)
11 of the FTCAct (15 U.S.C. § 57a(a)(1)(B)), that is, these provisions shall be enforcedas
13 of the FTCAct provides that "[w]henany rule under subsection (a)(1)(B) of [Section
17 Section 4 of the Federal Civil Penalties Inflation AdjustmentAct of 1990, 28 U.S.C. § 2461,
19 award monetarycivil penalties of not morethan $11,000 for each violation of CAN-SPAM,
3 41. Section 13(b) of the FTCAct, 15 U.S.C. § 53(b), empowersthis Court to grant
4 injunctive and other ancillary relief to prevent and remedyany violation of any provision of
8 WHEREFORE,
Plaintiff requests that this Court, as authorized by Sections 5(a),
14 of the CAN-SPAM
Act, including those sections of the CAN-SPAM
Act that are interpreted
17 Labeling Rule;