U.S. Co-Defendant Forfeits More Than $800,000 and Faces Jail Time
At the request of the Federal Trade Commission, a federal judge has ordered the mastermind of a vast international spam network to pay $15.15 million in a default judgment for his role in what was identified by the anti-spam organization Spamhaus as the largest “spam gang” in the world. The spam gang deceptively marketed products such as male-enhancement pills, prescription drugs, and weight-loss pills. Ringleader Lance Atkinson, a New Zealand citizen and Australian resident, last December admitted his involvement in the spam network to New Zealand authorities and has already paid more than $80,000 (nearly $108,000 New Zealand dollars). Atkinson’s accomplice, U.S. resident Jody Smith, agreed to an order requiring him to turn over nearly all of his assets to the FTC, to settle FTC charges.
Atkinson and Smith recruited spammers from around the world, according to the FTC’s complaint filed last year. The spammers sent billions of e-mail messages directing consumers to Web sites operated by an affiliate program called “Affking,” according to the complaint. By using false header information to hide the origin of the messages, and by failing to provide an opt-out link or list a physical postal address, the defendants are alleged to have violated the CAN-SPAM Act of 2003.
The FTC charged that, using the “Canadian Healthcare” brand name and other labels, the defendants’ spam messages deceptively marketed a male-enhancement pill, prescription drugs, and a weight-loss pill in violation of federal law. They falsely claimed that the medications came from a U.S.-licensed pharmacy that dispenses FDA-approved generic versions of drugs such as Levitra, Avodart, Cialis, Propecia, Viagra, Lipitor, Celebrex, and Zoloft. In fact, the defendants do not operate a U.S.-licensed pharmacy, and the drugs they sold were shipped from India, had not been approved by the FDA, and were potentially unsafe.
The FTC also alleged that Atkinson and Smith made false claims about the security of consumers’ credit card information and other personal data consumers provided when they bought goods. In operating the online pharmacy, which was called “Target Pharmacy” and later “Canadian Healthcare,” the defendants’ Web site assured potential consumers that “TARGET PHARMACY treats your personal information (including credit card data) with the highest level of security.” The Web site went on to describe its encryption process, which supposedly involved “Secure Socket Layer (SSL) technology.” However, there was no indication that consumers’ information was encrypted using SSL technology.
A U.S. district court last fall ordered an asset freeze and a halt to the spam gang’s operation, which was responsible for sending potentially billions of illegal spam messages, and has accounted for more than three million complaints.
The court has since issued a default judgment against Atkinson, his company, and three companies affiliated with Smith. In addition to the $15.15 million that Atkinson and his company have been ordered to pay, the three companies affiliated with Smith are liable for $3.77 million. All five defendants are prohibited from making unlawful claims about male enhancement products, hoodia products, and any dietary supplement, food, drug, or service purported to provide health-related benefits; from misrepresenting that they can lawfully sell prescription drugs or pharmacy services over the Internet; from misrepresenting the data security measures they provide on their Web sites; and from violating the CAN-SPAM Act.
To settle FTC charges that he helped illegally send spam e-mails to millions of consumers as part of a campaign to peddle prescription drugs and supplements that were phony and potentially dangerous, Smith will turn over nearly all his assets. Under the terms of the settlement, Smith will pay approximately $212,000. He also will assign any rights he has to $91,000 frozen in the name of one of his co-defendants, and $547,000 that may be held for his benefit in an Israeli bank.
The settlement order also prohibits Smith from violating the CAN-SPAM Act and from making deceptive claims related to either the sale of prescription drugs or pharmacy services over the Internet or the security of Web sites that sell any product or service. Smith is required to substantiate any claims about the benefits or safety of any dietary supplement, food, or health-related service.
Smith pled guilty in August 2009 to the criminal charge of conspiracy to traffic counterfeit goods, and faces up to five years in prison. He is scheduled to be sentenced in December in U.S. District Court for the Eastern District of Missouri.
In a related development, New Zealand authorities announced earlier this month that Atkinson’s brother, Shane Atkinson, and another New Zealander will pay nearly $112,000 ($150,000 New Zealand dollars) collectively for sending spam e-mails as part of the scam.
The Commission vote authorizing the filing of a stipulated permanent injunction settling the case against defendant Jody Smith was 4-0. A $15.15 default judgment against Atkinson and his company, Inet Ventures Pty Ltd.; a $3.77 million default judgment against the remaining three corporate defendants, Tango Pay, Click Fusion, and Two Bucks Trading; and the stipulated permanent injunction against Smith were entered by the U.S. District Court for the Northern District of Illinois on November 4, 2009.
The FTC would like to thank the following groups for their collaboration in bringing this case: the New Zealand Department of Internal Affairs; the Australian Communications and Media Authority; the U.S. Food and Drug Administration’s Office of Generic Drugs and Division of Pharmaceutical Analysis; the Chicago-based National Association of Boards of Pharmacy; and Marshall Software (NZ) Ltd.
The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,700 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.
(Herbal Kings Settlement NR.wpd)
(FTC File No. X090001)
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