Zoobuh! Sues Alcuda Dating Network Over CAN-SPAM Violations

SALT LAKE CITY, Utah—Zoobuh!, a Utah-based company that provides email and other online services to kids and families, filed a lawsuit in federal court in Salt Lake City March 27, alleging that Alcuda Networks, a non-U.S. company that operates a slew of adult-oriented dating sites, including upforit, has sent thousands of unsolicited emails to its members in violation of the CAN-SPAM Act. Zoobuh! is seeking $4.5 million in damages, plus costs and attorneys' fees. According to the complaint, filed by Jordan K. Cameron for Durham, Jones & Pinegar, P.C., "Beginning in or around October 2012 and to the date of this Complaint, ZooBuh has received a total of approximately 20,000 electronic-mail messages ('email') sent and/or initiated by the Defendants collectively, which independently and collectively caused significant adverse effect to ZooBuh and which independently and collectively, contributed to an overall SPAM problem which the Court recognized in Better Broadcasting satisfied the second part of the standing test under CAN-SPAM for ZooBuh." It adds, "The emails from Defendants appear to be continuing on a daily basis," and states, "During the time frame of the emails in question, ZooBuh has experienced significant harm in the form of server spikes, server crashes, bandwidth spikes, memory exhaustion, and unrecoverable hardware failure, all of which are attributable to its receipt of SPAM email, including the emails in question." The complaint also alleges that "many of the subject headings used explicit and profane language inappropriate for the targeted recipients," and charged that "nearly 5,000 of the emails included sexually oriented material," including "exposed breasts, genitals and/or pubic area of persons, and/or actual or simulated sexual acts." By "targeted recipients," the plaintiff is referring to minors, and clarifies in the complaint, "Each of the emails was sent to minors under the age of 18 and contained advertisements for adult themed dating websites and in some cases, sexually oriented material." Specifically, the complaint identifies several sections of the CAN-SPAM Act of 2003, which in part lays out specific requirements for senders of sexually explicit email, that it alleges have been violated by Alcuda. 15 U.S.C. § 7704(a)(1), the first cause of action, "makes it unlawful to send email messages that contain, or are accompanied by, materially false or materially misleading Header Information." 15 U.S.C. § 7704(a)(1)(A), the second cause of action, "makes it unlawful to send email messages that contain, or are accompanied by, materially false or materially misleading Header Information." 15 U.S.C. § 7704(a)(2), the third cause of action, "makes it unlawful for any person to “initiate the transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message 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.” 15 U.S.C. §7704(d)(1)(A), the fourth cause of action, ”states that 'No person may initiate in or affecting interstate commerce the transmission, to a protected computer, of any commercial electronic mail message that includes sexually oriented material and . . . fail to include in subject heading for the electronic mail message the marks or notices prescribed by the Commission under this subsection...'" 15 U.S.C. §7704(d)(1)(B), the fifth cause of action, "states that 'No person may initiate in or affecting interstate commerce the transmission, to a protected computer, of any commercial electronic mail message that includes sexually oriented material and . . . fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only (i) to the extent required or authorized pursuant to paragraph (2), any such marks or notices; (ii) the information required to be included in the message pursuant to subsection (a)(5); and (iii) instructions on how to access, or a mechanism to access, the sexually oriented material.'" And 15 U.S.C §7706(g)(3)(C), the sixth cause of action, allows for aggravated damages. After adding up the alleged violations and multiplying them by the acceptable fines, the plaintiff arrived at $4,557,500 as the "total aggregate based damage amount," to which it then added attorney's fees and costs. AVN contacted Alcuda for comment but not did receive a reply by post-time. The Zoobuh! complaint is available here.