Does anyone think the damages will be collected?

[coyotejack]

I found this today at SpamHaus. This action occured yesterday Sept 22, 2005. I am posting it in it's entirety so since it is a court ruling it is lengthy:

Best parts are the permanent injunction against Initiating the transmission of a commercial electronic mail message, to any computer involved in interstate commerce or communication, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or misleading and the fact that the judge awarded the plaintiff Ten Million Seventy-Five Thousand Dollars

The numbers are the page numbers of the ruling. It is also interesting to note that the Plaintiff is Robert Braver of OK who has led the fight for years against USENET advertising in improper forums.

Ok Here it comes:

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ROBERT H. BRAVER, )

)

Plaintiff, ))

v. ) Case No.: CIV-05-210-T

)

NEWPORT INTERNET MARKETING )

CORPORATION, and )

ROBERT ALAN SOLOWAY, ))

Defendants. )

DEFAULT JUDGMENT AND PERMANENT INJUNCTION

STATEMENT OF FACTS

Pending before the Court is Plaintiff Robert H. Bravers (Braver) Motion for Default

Judgment.

Braver is an Internet services provider based in Norman, Oklahoma, and has brought this

action brought under the federal CAN-spam Act of 2003, 15 U.S.C. § 7701 et seq (CANSPAM

Act), Title 15, Oklahoma Statutes, §§ 776.1 776.4, (Oklahoma Fraudulent Use of

Electronic Mail Statute), and Title 15, Oklahoma Statutes, §§ 776.5 776.7, (Oklahoma

Unsolicited Commercial Electronic Mail Statute), alleging that the defendants have sent, caused

to be sent, or were responsible for sending numerous illegal e-mail messages through or to

Bravers e-mail servers.

Plaintiff served Defendants via Certified Mail, Restricted Delivery on January 25, 2005

pursuant to Title 12 O.S. § 2004©(2) as reflected in Exhibit C of Plaintiffs Objection, In

Part, to Defendants Motion to Withdraw and Extension of Time (Docket Entry No. 10).

Defendants removed the case to this Court, entered an appearance through counsel, and further

1

==========================================================

waived service of process as reflected in the Agreed Application for Extension of Time to Answer

or Otherwise Plead filed on February 23, 2005 (Docket Entry No. 4).

Plaintiff filed his Amended Complaint on March 7, 2005. On May 20, 2005, Defendants

counsel moved to withdraw and for an extension of time to answer or otherwise plead. By order

of the Court dated May 23, 2005, Defendants counsel were permitted to withdraw, and the

defendants were granted an additional extension until June 10, 2005 to answer or otherwise

plead. On June 10, 2005, defendants former counsel filed a Notice of Defendants to Proceed

Pro Se, however, defendant Soloway has not subsequently entered an appearance pro se.

Furthermore, pursuant to LCvR17.1, defendant Newport Internet Marketing Corporation may

not appear pro se.

The time for Defendants to file an answer or otherwise plead has not been further

extended and has long since lapsed. At the time of the filing of this Motion, no substitute

counsel has entered an appearance on behalf of the defendants, nor has any answer or other

responsive pleading been filed by the defendants. Plaintiffs counsel has represented that he has

not been contacted by the Defendants or new counsel purporting to represent the Defendants.

On June 13, 2005, Plaintiff moved for a Clerks entry of default pursuant to Rule 55(a)

and, again on September 12, 2005. On September 13, 2005, the Clerk entered Defendants

default.

On September 14, 2005, the Court entered an order setting this matter for hearing and

directed Defendants former counsel to immediately provide notice to Defendants.1 A hearing

was held on September 22, 2005, at which time Plaintiff appeared in person as well as with

_______

1 The Court file reflects Defendants former counsels actions to notify Defendants of the proceedings were

both prompt and exhaustive. Defendants former counsel utilized e-mail, facsimile and the postal service to provide

notice to his former clients. (Doc. No. 17.)

2

==========================================================

counsel. Despite being given notice of the date and time of the hearing, Defendants did not

appear.

Plaintiff moves for entry of default judgment against Defendants, based on Defendants

violations of the CAN-spam Act of 2003, the Oklahoma Fraudulent Use of Electronic Mail

Statute and the Oklahoma Unsolicited Commercial Electronic Mail Statute.

Venue is proper in this Court because Bravers server facilities are located in Cleveland

County, Oklahoma. See Amended Complaint, ¶6 (Docket Entry No. 7). A substantial part of the

events giving rise to the Bravers Complaint and the damages incurred by Braver occurred

within the Western District of Oklahoma. Id. ¶¶ 5,10. Bravers state law claims relate to acts

occurring in the state as a matter of law. See Title 15 O.S. § 776.3.

Civil Rule 55(a) provides, When the plaintiffs claim against a defendant is for a sum

certain or for a sum which can by computation be made certain, the clerk upon request of the

plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs

against the defendant, if the defendant has been defaulted for failure to appear and is not an

infant or incompetent person. In addition to the statutory damages provided by law, Braver

also seeks injunctive relief.

Defendants default concedes the truth of the factual allegations of the Amended

Complaint necessary to establish Defendants liability under the CAN-spam Act of 2003, the

Oklahoma Fraudulent Use of Electronic Mail Statute, and the Oklahoma Unsolicited

Commercial Electronic Mail Statute.

STATUTORY DAMAGES

3

==========================================================

As enumerated in the Bravers Affidavit and attached exhibits, Braver has demonstrated

the receipt of:

a. one or more of Defendants e-mails violating the Oklahoma Fraudulent Use of

Electronic Mail statute on 206 separate dates. Braver has elected to seek minimum

statutory damages of $25,000 per day in lieu of actual damages, for a total of

$5,150,000.00.

b. one or more of Defendants e-mails violating the Oklahoma Unsolicited Commercial

Electronic Mail statute on 197 separate and distinct dates. Braver has elected to seek

minimum statutory damages of $25,000 per day in lieu of actual damages, for a total

of $4,925,000.00.

Accordingly, Braver has demonstrated that he is entitled to statutory damages in the amount of

Ten Million Seventy-Five Thousand Dollars ($10,075,000.00).

PERMANENT INJUNCTION

The CAN-spam Act of 2003 entitles providers of Internet access service adversely

affected by a violation of 15 U.S.C. § 7704(a)(1), (, or (d), or a pattern or practice that violates

paragraph (2), (3), (4), or (5) of § 7704(a) of the Act to enjoin further violation by the defendant

or seek recovery of monetary damages. 15 U.S.C. § 7706(g)(1). Braver has elected to obtain a

permanent injunction against Defendants in lieu of damages with respect to the CAN-spam Act

claims.

The Court, having reviewed the record in this case and Bravers Affidavit, finds that

Braver is entitled to obtain a permanent injunction barring Defendants from further violations of

the CAN-spam Act as enumerated at 15 U.S.C. § 7706(g)(1).

CONCLUSION

For all of the foregoing reasons, the Court hereby GRANTS Bravers Motion for Default

Judgment as follows:

1. The Court ORDERS, ADJUDGES, and DECREES: That Defendants, their agents,

employees, affiliates, and any business entities and/or persons controlled directly or

indirectly by them or acting on their behalf or in concert with them, are hereby

permanently enjoined and restrained from:

4

==========================================================

a. Initiating the transmission of a commercial electronic mail message, to any

computer involved in interstate commerce or communication, or a transactional or

relationship message, that contains, or is accompanied by, header information that

is materially false or misleading;

b. Initiating the transmission of a commercial electronic mail message to a protected

computer with a subject heading that would be likely to mislead a recipient,

acting reasonably under the circumstances, about a material fact regarding the

contents or subject matter of the message (consistent with the criteria used in

enforcement of section 5 of the Federal Trade Commission Act);

c. Initiating the transmission of a commercial electronic mail message to a protected

computer without including a clear and conspicuous notice that that the message

is an advertisement or solicitation;

d. Initiating the transmission of a commercial electronic mail message to a protected

computer where the electronic mail address of the recipient was obtained using an

automated means from an Internet website or proprietary online service operated

by another person, such website or online service including, at the time such

address was obtained, a notice stating that the operator of such website or online

service will not give, sell, or otherwise transfer addresses maintained by such

website or online services to any other party for the purpose of initiating, or

enabling others to initiate, electronic mail messages; or

e. Relaying or retransmitting a commercial electronic mail message that is unlawful

under 15 U.S.C. 7704(a) from a protected computer or network accessed without

authorization.

5

==========================================================

2. It is further ORDERED, ADJUDGED, and DECREED: That the Plaintiff, Robert H.

Braver, should be and is awarded statutory damages in the amount of Ten Million

Seventy-Five Thousand Dollars ($10,075,000.00).

IT IS SO ORDERED this 22nd day of September, 2005.

RALPH G. THOMPSON

UNITED STATES DISTRICT JUDGE

6

If anyone wants the PDF of the ruling here is the link

Judgement against spammer

[coyotejack]

I forgot to mention, that Soloway did not even bother to show up for the ruling. Little coward. Hope they seize his Mercedes Benz

[Jeff G.]

Glad to hear it, but couldn't you have just posted the URL http://www.spamhaus.org/rokso/evidence.las...okso_id=ROK5656? Thanks!

[Jeff G.]

I don't know what Spamhaus used to textify that PDF, but I think the following (from Adobe Reader 7.0.0) reads better with respect to the apostrophes:

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ROBERT H. BRAVER, )

)

Plaintiff, ))

v. ) Case No.: CIV-05-210-T

)

NEWPORT INTERNET MARKETING )

CORPORATION, and )

ROBERT ALAN SOLOWAY, ))

Defendants. )

DEFAULT JUDGMENT AND PERMANENT INJUNCTION

STATEMENT OF FACTS

Pending before the Court is Plaintiff Robert H. Braver’s (Braver) Motion for Default

Judgment.

Braver is an Internet services provider based in Norman, Oklahoma, and has brought this

action brought under the federal CAN-spam Act of 2003, 15 U.S.C. § 7701 et seq (“CANSPAM

Act”), Title 15, Oklahoma Statutes, §§ 776.1 – 776.4, (“Oklahoma Fraudulent Use of

Electronic Mail Statute”), and Title 15, Oklahoma Statutes, §§ 776.5 – 776.7, (“Oklahoma

Unsolicited Commercial Electronic Mail Statute”), alleging that the defendants have sent, caused

to be sent, or were responsible for sending numerous illegal e-mail messages through or to

Braver’s e-mail servers.

Plaintiff served Defendants via Certified Mail, Restricted Delivery on January 25, 2005

pursuant to Title 12 O.S. § 2004©(2) as reflected in Exhibit “C” of Plaintiff’s Objection, In

Part, to Defendants’ Motion to Withdraw and Extension of Time (Docket Entry No. 10).

Defendants removed the case to this Court, entered an appearance through counsel, and further

1 The Court file reflects Defendants’ former counsel’s actions to notify Defendants of the proceedings were

both prompt and exhaustive. Defendants’ former counsel utilized e-mail, facsimile and the postal service to provide

notice to his former clients. (Doc. No. 17.)

2

waived service of process as reflected in the Agreed Application for Extension of Time to Answer

or Otherwise Plead filed on February 23, 2005 (Docket Entry No. 4).

Plaintiff filed his Amended Complaint on March 7, 2005. On May 20, 2005, Defendants’

counsel moved to withdraw and for an extension of time to answer or otherwise plead. By order

of the Court dated May 23, 2005, Defendants’ counsel were permitted to withdraw, and the

defendants were granted an additional extension until June 10, 2005 to answer or otherwise

plead. On June 10, 2005, defendants’ former counsel filed a “Notice of Defendants’ to Proceed

Pro Se,” however, defendant Soloway has not subsequently entered an appearance pro se.

Furthermore, pursuant to LCvR17.1, defendant Newport Internet Marketing Corporation may

not appear pro se.

The time for Defendants to file an answer or otherwise plead has not been further

extended and has long since lapsed. At the time of the filing of this Motion, no substitute

counsel has entered an appearance on behalf of the defendants, nor has any answer or other

responsive pleading been filed by the defendants. Plaintiff’s counsel has represented that he has

not been contacted by the Defendants or new counsel purporting to represent the Defendants.

On June 13, 2005, Plaintiff moved for a Clerk’s entry of default pursuant to Rule 55(a)

and, again on September 12, 2005. On September 13, 2005, the Clerk entered Defendants’

default.

On September 14, 2005, the Court entered an order setting this matter for hearing and

directed Defendants’ former counsel to immediately provide notice to Defendants.1 A hearing

was held on September 22, 2005, at which time Plaintiff appeared in person as well as with

3

counsel. Despite being given notice of the date and time of the hearing, Defendants did not

appear.

Plaintiff moves for entry of default judgment against Defendants, based on Defendants’

violations of the CAN-spam Act of 2003, the Oklahoma Fraudulent Use of Electronic Mail

Statute and the Oklahoma Unsolicited Commercial Electronic Mail Statute.

Venue is proper in this Court because Braver’s server facilities are located in Cleveland

County, Oklahoma. See Amended Complaint, ¶6 (Docket Entry No. 7). A substantial part of the

events giving rise to the Braver’s Complaint and the damages incurred by Braver occurred

within the Western District of Oklahoma. Id. ¶¶ 5,10. Braver’s state law claims relate to acts

occurring in the state as a matter of law. See Title 15 O.S. § 776.3.

Civil Rule 55(a) provides, “When the plaintiff’s claim against a defendant is for a sum

certain or for a sum which can by computation be made certain, the clerk upon request of the

plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs

against the defendant, if the defendant has been defaulted for failure to appear and is not an

infant or incompetent person.” In addition to the statutory damages provided by law, Braver

also seeks injunctive relief.

Defendants’ default concedes the truth of the factual allegations of the Amended

Complaint necessary to establish Defendants’ liability under the CAN-spam Act of 2003, the

Oklahoma Fraudulent Use of Electronic Mail Statute, and the Oklahoma Unsolicited

Commercial Electronic Mail Statute.

STATUTORY DAMAGES

4

As enumerated in the Braver’s Affidavit and attached exhibits, Braver has demonstrated

the receipt of:

a. one or more of Defendants’ e-mails violating the Oklahoma Fraudulent Use of

Electronic Mail statute on 206 separate dates. Braver has elected to seek minimum

statutory damages of $25,000 per day in lieu of actual damages, for a total of

$5,150,000.00.

b. one or more of Defendants’ e-mails violating the Oklahoma Unsolicited Commercial

Electronic Mail statute on 197 separate and distinct dates. Braver has elected to seek

minimum statutory damages of $25,000 per day in lieu of actual damages, for a total

of $4,925,000.00.

Accordingly, Braver has demonstrated that he is entitled to statutory damages in the amount of

Ten Million Seventy-Five Thousand Dollars ($10,075,000.00).

PERMANENT INJUNCTION

The CAN-spam Act of 2003 entitles providers of Internet access service adversely

affected by a violation of 15 U.S.C. § 7704(a)(1), (, or (d), or a pattern or practice that violates

paragraph (2), (3), (4), or (5) of § 7704(a) of the Act to enjoin further violation by the defendant

or seek recovery of monetary damages. 15 U.S.C. § 7706(g)(1). Braver has elected to obtain a

permanent injunction against Defendants in lieu of damages with respect to the CAN-spam Act

claims.

The Court, having reviewed the record in this case and Braver’s Affidavit, finds that

Braver is entitled to obtain a permanent injunction barring Defendants from further violations of

the CAN-spam Act as enumerated at 15 U.S.C. § 7706(g)(1).

CONCLUSION

For all of the foregoing reasons, the Court hereby GRANTS Braver’s Motion for Default

Judgment as follows:

1. The Court ORDERS, ADJUDGES, and DECREES: That Defendants, their agents,

employees, affiliates, and any business entities and/or persons controlled directly or

indirectly by them or acting on their behalf or in concert with them, are hereby

permanently enjoined and restrained from:

5

a. Initiating the transmission of a commercial electronic mail message, to any

computer involved in interstate commerce or communication, or a transactional or

relationship message, that contains, or is accompanied by, header information that

is materially false or misleading;

b. Initiating the transmission of a commercial electronic mail message to a protected

computer with a subject heading that would be likely to mislead a recipient,

acting reasonably under the circumstances, about a material fact regarding the

contents or subject matter of the message (consistent with the criteria used in

enforcement of section 5 of the Federal Trade Commission Act);

c. Initiating the transmission of a commercial electronic mail message to a protected

computer without including a clear and conspicuous notice that that the message

is an advertisement or solicitation;

d. Initiating the transmission of a commercial electronic mail message to a protected

computer where the electronic mail address of the recipient was obtained using an

automated means from an Internet website or proprietary online service operated

by another person, such website or online service including, at the time such

address was obtained, a notice stating that the operator of such website or online

service will not give, sell, or otherwise transfer addresses maintained by such

website or online services to any other party for the purpose of initiating, or

enabling others to initiate, electronic mail messages; or

e. Relaying or retransmitting a commercial electronic mail message that is unlawful

under 15 U.S.C. 7704(a) from a protected computer or network accessed without

authorization.

6

2. It is further ORDERED, ADJUDGED, and DECREED: That the Plaintiff, Robert H.

Braver, should be and is awarded statutory damages in the amount of Ten Million

Seventy-Five Thousand Dollars ($10,075,000.00).

IT IS SO ORDERED this 22nd day of September, 2005.