Affiliates can be liable for fraud

An article popped up on LinkedIn about a recent 2nd court of appeals ruling that I thought was interesting.
White Collar Crime.
Back in 2011, the FTC and the state of Connecticut filed suit against a company called LeanSpa and their affiliate marketer called LeadClick. LeanSpa sold various diet products through negative option marketing. LeadClick was the affiliate company they used to help drive traffic and customers to their websites.
LeadClick and their parent company was included in the suit because the FTC alleged that they were aware of and facilitated the false claims made by their affiliates. The case went to court and LeadClick lost. They appealed to the 2nd Circuit court. Last week the 2nd Circuit Court upheld the trial court’s finding of liability for LeadClick.
In its press release for the case, the FTC says:

the court ruled that LeadClick was responsible for the false claims made by affiliate marketers it recruited on behalf of LeanSpa, LLC, a company that sold acai berry and “colon cleanse” weight-loss products. According to the FTC’s complaint, LeanSpa used a “free trial” ploy to enroll consumers into its recurring purchase program that cost $79.99 a month and that was difficult to cancel.
LeadClick’s network lured consumers to LeanSpa’s online store through fake news websites designed to trick consumers into believing that independent news outlets and independent customers, rather than paid advertisers, had reviewed and endorsed LeanSpa’s products.

LeanSpa was owned by Boris Mizhen, and we briefly mentioned this lawsuit back when it was filed
More legal problems for Boris. The FTC’s assertion was that the affiliates were “under the control or influence of” Boris. While it’s taken years, the FTC has prevailed.
A lot of email marketers use affiliates. In my experience a lot of email marketers use affiliates as a way to insulate themselves and their reputation from certain activities, including spamming. This ruling tells us that affiliates are not protection from fraudulent activity. Nor are affiliates protected from the fraudulent activities of their customers.

Related Posts

Fraud, terms of service and email marketing

gavelHere at the Atkins house we’re still both recovering from the M3AAWG plague. I don’t know what it was that we shared during the conference, but it’s knocked many folks over. I don’t have a lot to blog about this afternoon so I was looking through some of my old blog posts to get at least some content up before I give up for the weekend.
I found an old post about permission (Permission: It May Not Be What You Think It Is). The post discusses where a woman sued Toyota over emails from an online marketing campaign. I’d totally forgotten about that blog post, so I started looking at what happened with the case.
In the original case Toyota created a social media campaign where people could opt their friends in to be the target of a prank.

Read More

The challenge of Gmail

A lot of my sales inquiries recently are about getting good inbox delivery at Gmail. I’ve mentioned before, I can usually tell when an ISP changes things because they suddenly become the subject of a great many phone calls.
In this case, Gmail seems to have turned up their engagement filters and is sending a lot more mail to the bulk folder. I have also noticed other people are blogging about Gmail delivery problems. Al eventually determined that it was mailings sent from other IPs that were degrading the delivery of his customer’s emails.
Gmail, more than the other major ISPs, seems to not be weighting IP reputation very heavily these days. They’re looking at domain reputation and they’re using all mentions of a domain in that reputation. A lot of senders, some of them spammers, segregate their email streams (acquisition, marketing, transactional) across IP addresses in order to stop poorly performing mails from harming delivery of other emails they’re sending. But Gmail’s current filtering scheme seems designed to focus on domain reputation and minimize the impact of IP reputation.
This is making the Gmail inbox tough to reach for a lot of mailers these days. Even in cases where the mailer isn’t hiring affiliates or actively partitioning mail, if a domain is seen frequently in spam then delivery for that whole domain is hurting. Signing with DKIM and publishing a DMARC record may help. But the reality right now is that there doesn’t seem to be a silver bullet into the Gmail inbox.

Read More

Internet fraud and private whois records

The Verge has a long article about Internet Marketing and how much fraud is perpetrated by people who label themselves Internet Marketers.
It was interesting, but I didn’t think it was necessarily relevant to email marketers until I saw this quote from Roberto Anguizola at the FTC Bureau of Consumer Protection.

Read More