Case: Federal Trade Commission v Atkinson &amp; Ors , United States District Court for the Northern District of Illinois, Eastern Division, Case No. 08CV5666
Outcome: cited
Atkinson was the subject of proceedings in the United States: Federal Trade Commission v Atkinson &amp; Ors , United States District Court for the Northern District of Illinois, Eastern Division, Case No. 08CV5666. At para 6 of supplementary joint written submissions provided to the Court on the day of the hearing, the parties said this about the United States proceedings: United States judgment Paragraph 54 of the October submissions refers to proceedings on foot against Mr Atkinson in the United States, arising from the same conduct as is the subject of these proceedings. Default judgment has now been handed down in the United States proceedings, in the matter of Federal Trade Commission v Atkinson &amp; Ors , United States District Court for the Northern District of Illinois, Eastern Division, Case No. 08CV5666. An amount of US$15,151,029 was imposed jointly and severally upon Mr Atkinson and Inet Venture Pty Ltd, as equitable monetary relief for violations of the Federal Trade Commission Act ( FTC Act ) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ( CAN-SPAM Act ). As set out at paragraphs 37 and 53- 55 of the October submissions, s.24(2) of the Spam Act provides that a relevant consideration for the Court is: if the Court considers that it is appropriate to do so - whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct. The parties submit that the findings of the United States court are relevant and should be taken into account by the Court, but do not amount to prior findings of contraventions that pre-date the conduct the subject of these proceedings, as they arise from the same conduct, and accordingly are not an aggravating factor. As the penalties sought in the present proceedings are in respect only of such emails as are connected with Australia, the parties submit a penalty in the amount proposed remains appropriate. On 4 November 2009, default judgment in the United States case was entered against five of the six defendants in the proceeding, including Mr Atkinson. The proceeding, commenced by the Federal Trade Commission ("FTC"), alleged a range of contraventions of the Federal Trade Commission Act (the "FTC Act"), concerning contended deceptive practices in connection with the sale of certain purported herbal products and a pharmaceutical medication, some of which involved representations as to sexual enhancement. There seems to be some correlation between the products in issue and those the subject of these proceedings. In addition, the proceedings involved contended contraventions of the United States Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 (the "CAN-SPAM Act"). Various provisions of the CAN-SPAM Act were relied upon by the FTC in the proceedings. The essential contention was that Mr Atkinson and others had initiated the transmission of unsolicited computer email messages in contravention of the Act in respect of the sale and promotion of the above products. The Court found, on the face of the FTC material, that there had been contraventions of the CAN-SPAM Act, and that: (A) the total amount of consumer injury caused by Defendants Lance Thomas Atkinson and [Inet Ventures Pty Ltd, a corporate defendant of which Mr Atkinson was found to be the sole officer] for the sale of their Hoodia Products [herbal products] Male Enhancement Products, prescription drugs, and other products through illegal commercial email messages is $15,151,029. In those proceedings a range of findings were made in relation to the pleaded conduct and judgment was entered in favour of the FTC against Lance Thomas Atkinson and Inet Ventures Pty Ltd, jointly and severally, in the amount of $15,151,029 for violations of the FTC Act and the CAN-SPAM Act.