ZooBuh, Inc. v. Better Broadcasting, LLC…(CAN-SPAM)
Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Date published: Aug 21, 2017
Citation: Case No. 2:11-cv-00516 DN (D. Utah Aug. 21, 2017)
BACKGROUND
The main issues were whether Zoobuh had standing to sue, whether the defendants domain names were obtained fraudulently, and whether the opt-out notice in the spam was adequate.
Plaintiff, ZooBuh, Inc. (“ZooBuh”) was first formed in Utah in 2002 and incorporated in 2007. ZooBuh is an Internet access service which provides email, chat, and blogging services to approximately 35,000 customers worldwide. ZooBuh provides the service through its own equipment. Between February 18, 2011 and November 7, 2011, ZooBuh received at least 13,453 commercial emails sent and/or initiated by or on behalf of Better Broadcasting and/or Iono, its alter ego, in violation of various sections of the CAN-SPAM Act. On November 10, 2011, ZooBuh filed a First Amended Complaint against the Defendants seeking statutory damages and a permanent injunction. The Defendants failed to appear and answer the Complaint. This Court entered a default certificate against the Defendants on March 7, 2012. In support of ZooBuh’s claims and request for damages, the Court requested that ZooBuh submit supplemental briefing and evidence on the issues of standing, violations of the CAN-SPAM Act, and damages. Based on the pleadings and evidence presented to it, the Court finds: 1) that ZooBuh is a bona fide Internet access service who was, and is continually, adversely affected by its receipt of SPAM emails, and therefore qualifies for standing as a private plaintiff under the CAN-SPAM Declaration of F. Alan Fullmer (Fullmer Declaration) that the emails in question contain violations of 15 U.S.C. § 7704(a)(1)(A), 15 U.S.C. § 7704(a)(1)(C), and 15 U.S.C. § 7704(a)(5); 3) that the Defendants engaged in practices in violation of § 7704(b)(2); 4) that ZooBuh is awarded damages in the amount of $1,608,360 and a permanent injunction.
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