Re: Small Claims Session Docket No. 200508SC000261

Jonathan Kamens v. Benchmark Brands, Inc.

Claim by plaintiff

Summary of claim

Defendant repeatedly sent unsolicited commercial e-mail messages ("spam") to plaintiff between May 13, 2004 and October 11, 2005, despite repeated requests from plaintiff for the messages to cease.
Plaintiff finally notified defendant on March 25, 2005 that the receipt of any further spam from defendant would be billed as a service to the defendant at a rate of $1,000 per message.
Defendant was notified of these terms using multiple methods of communication directed at multiple addressees. Claims by defendant that they were unaware of the terms offered by plaintiff are not credible, and are irrelevant even if true, because defendant was adequately notified of the terms by plaintiff and could have remained ignorant of them only willfully and/or through negligence.
Both common law and precedent support plaintiff's assertion that defendant, through their actions, indicated acceptance of plaintiff's terms.
Plaintiff's e-mail address, server and Internet connection are his chattels. Plaintiff is entitled to restrict their usage and to define the terms under which they may be used by others.
After being notified that the receipt of further spam would be billed at a rate of $1,000 per message, defendant sent an additional 31 spam messages to plaintiff. Defendant therefore owes plaintiff fees for services rendered in the amount of $31,000.
For the sake of simplifying the process of collecting unpaid fees from defendant, plaintiff waives his right to collect $29,000 of the $31,000 owed by defendant, on condition that plaintiff's claim is adjudicated solely in small claims court.
Plaintiff asks the Court to award to plaintiff judgment in the amount of $2,000 in moneys owed plus $40 in filing fees.
Defendant has asked the Court to transfer plaintiff's claim to the regular civil court docket. Plaintiff respectfully asks the Court to effect such a transfer only as a last resort. Such a transfer would impose a high burden on plaintiff's ability to seek justice in this matter.

Matters in dispute

Did defendant receive plaintiff's notification of terms?

Defendant claims that it was not notified of plaintiff's terms and thus could not have accepted them.

In fact, there is ample evidence that defendant knew of defendant's terms:

These terms were sent to multiple e-mail addresses within defendant's Internet domains: customerservice@footsmart.com, privacy@footsmart.com, ggaltere@benchmarkbrands.com, amb@benchmarkbrands.com, information@benchmarkbrands.com. All of these e-mail addresses are published by defendant.
Mail to all of these e-mail addresses was delivered successfully, whereas mail to other, nonexistent e-mail addresses, e.g., info@benchmarkbrands.com, was "bounced" by defendant's mail server to plaintiff, this indicating that the e-mail addresses which did not bounce were valid.
These terms were sent via U.S. Mail in an invoice to defendant's "accounts payable" department and were not returned by the post office.
These terms were sent to defendant's Network Service Provider, Global Crossing, and it is unlikely that Global Crossing failed to pass on a spam complaint about one of its customers.
Defendant received the "Statement of small claim and notice of trial" sent by the Court in June or July 2005. Defendant Alan Beychok proved this by referring to the CAN-SPAM Act in his letter dated October 20. Plaintiff referred to the CAN-SPAM Act in his statement of claim but nowhere else, and defendant's October 20 letter mentioned plaintiff's reference to the Act. Defendant's counsel further proved this by referring to the text and docket number of the complaint in its response dated November 4.
Defendant finally responded to plaintiff's complaints after plaintiff published a public Weblog article about the situation and notified defendant about that article by e-mail. Defendant cannot convincingly argue that the October 11 e-mail messages from plaintiff notifying defendant about the article were received, while none of the previous messages were.

Did defendant accept plaintiff's terms?

Defendant claims that even if it knew of plaintiff's terms, it never accepted them, because the response plaintiff received from defendant's customer service mailbox was automated and therefore does not indicate that a person employed by defendant read and acknowledged receipt of plaintiff's terms, and because plaintiff did not acknowledge receipt of plaintiff's terms in any other way.

Defendant's claim that the response plaintiff received does not indicate that a human read and acknowledged his terms is specious. In fact, messages sent to customerservice@footsmart.com are read by people, and whether they write their responses by hand or use a prepared template is irrelevant. Plaintiff bases this assertion on the following facts:

The e-mail address customerservice@footsmart.com is advertised as an appropriate way to contact defendant for any purpose, not only for e-mail unsubscribe requests. It would be ridiculous to assert that an automated system could handle any customer service request of any sort without any human intervention. In short, for this address to do what it's supposed to do, there must be a human in the loop.
The four e-mail acknowledgments plaintiff received, each claiming that plaintiff would be unsubscribed from defendant's spam, had "Subject" lines that differed from each other and from the Subject lines of the e-mail from plaintiff to which they were responses One of the acknowledgments had the Subject "RE: Unsubscribe from Email", two had the Subject "RE: Other", and one had the Subject "RE: Marketing, Advertising, Promotions". This clearly indicates that a person reads incoming mail sent to customerservice@footsmart.com and assigns it into a particular category for processing, with the Subject lines of responses corresponding to the assigned categories.
The four e-mail acknowledgements plaintiff received, each claiming that plaintiff would be unsubscribed from defendant's spam, had slightly different contents. Three of them looked like this:

Click <http://www.footsmart.com/Default.aspx>

Thank you for your recent email request. Your name has been [removed from our catalog mailing list/email promotions list/rent list. You may still receive one or two more catalogs/emails before the removal goes in to effect.] Thank you in advance for your patience. Again, thank you for contacting Customer Service at FootSmart.com. Please let us know if we can offer further assistance.

<http://www.footsmart.com/images/spacer.gif>

The fourth looked like this:

Click <http://www.footsmart.com/Default.aspx>

Thank you for your recent email request. Your name has been removed from our email promotions list. You may still receive one or two more emails before the removal goes in to effect. Thank you in advance for your patience. Again, thank you for contacting Customer Service at FootSmart.com. Please let us know if we can offer further assistance.

<http://www.footsmart.com/images/spacer.gif>

A comparison of the two versions makes it clear that the people who send these responses are supposed to start with the template shown in the first response text above, and edit it appropriately as shown in the second response text text. Apparently, some of the people handling this incoming e-mail aren't aware that they're supposed to edit the template, but the existence of this template and the fact that it was edited in one of the responses proves that plaintiff's e-mail specifying his terms was read by an employee of the defendant.
The lag time between plaintiff's e-mailed complaints and the four e-mailed acknowledgments plaintiff received were not consistent. The four responses were sent 4.23, 1.27, 0.27 and 1.14 days after the complaints which prompted them. If these responses had been machine generated without any human intervention, they would all have been sent shortly after plaintiff's complaints, and the time between each complaint and its response would have been consistent.

Since it is clear that plaintiff's terms were read and responded to by an employee of the defendant, such acknowledgment can and should be treated as acceptance of those terms.

Defendant's claim that no contract could have been formed if defendant did not explicitly accept plaintiff's terms is not supported by common law or precedent. Common law supports the idea that contracts can be accepted through implicit action. Here are two examples of implicitly accepted terms for the use of goods or services:

A credit-card issuer sends a cardholder a letter indicating a change in the card's terms of use. The letter indicates that the change will become effective in 30 days unless the cardholder notifies the issuer in writing that he is rejecting the terms and stops using the card. By doing nothing at all, the cardholder accepts the new terms of use.
A passenger boards a train whose fare collection system is designed to collect fares upon exiting rather than upon entering the train. By riding the train, the passenger accepts upon himself the obligation to pay for the ride upon exiting. Failure to pay would constitute theft.

Here are three precedents in which courts upheld the enforceability of contract terms accepted implicitly:

ILan Systems v. Netscout, 2002 WL 15592 (D. Mass. 2002): Court held that the terms of a "clickwrap" license agreement offered by defendant's software were binding on plaintiff, even though plaintiff never explicitly told defendant that it accepted those terms.
Arizona Cartridge Remanufacturers Association v. Lexmark, U.S. District Court for the Ninth Circuit, August 30, 2005: Court held that an end user license agreement on a physical box can be binding on a consumer who signals his acceptance of the licensing agreement by opening the box.
Hill vs. Gateway 2000, U.S. District Court for the Seventh Circuit, January 6, 1997: Court held that contract terms shipped in the box with a product to the consumer are binding if the terms indicate that they are binding unless the consumer returns the product within 30 days, and the consumer fails to return the product within that time period.

Supporting details

Assertion of facts

Relevant excerpts from all email messages referred to in this statement are attached as Exhibit A.
Defendant was asked by plaintiff seven times to stop "spamming" defendant (5/13/2004, 8/24/2004, 3/4/2005 (twice), 3/10/2005, 3/11/2005, 3/25/2005) at the e-mail address "jik@kamens.brookline.ma.us". All requests to defendant to desist from spamming were made following the procedures provided by the defendant for submitting such requests. Five of the seven requests were acknowledged by defendant, who indicated (falsely) in each case that the spam would cease.
Plaintiff owns the e-mail address "jik@kamens.brookline.ma.us" and the computer server on which messages sent to that address are stored. Plaintiff pays the service fees for the Internet connection through which messages to "jik@kamens.brookline.ma.us" are transmitted to the server.
Defendant's network service provider, Global Crossing, was asked by plaintiff seven times (8/31/2004, 9/2/2004, 3/4/2005, 3/10/2005, 3/11/2005, 3/25/2005, 4/15/2005) to stop defendant from spamming plaintiff. All complaints were acknowledged promptly by Global Crossing; the responses read in part:

Your message will be read and acted on by a human, however due to the large volume of email we handle every day, we may not be able to respond to you individually. ...

Global Crossing has a user agreement and acceptable use policy which includes very tough anti-spamming and abuse provisions. The current version of our network acceptable use policy may be found on the web at http://www.globalcrossing.com/aup/

Plaintiff therefore assumes that defendant was contacted by Global Crossing about each complaint sent to Global Crossing by plaintiff.
The complaint from plaintiff to defendant sent March 25, 2005, read in part:

Please be advised that I have decided to continue to accept unsolicited bulk e-mail from FootSmart for a fee of $1,000 per message. Any reply to this message by FootSmart will constitute acceptance of these terms, at which point I will begin billing FootSmart for the messages they send me. Failure to remit payment promptly in response to these bills will result in legal action.

Let me be clear: IF FOOTSMART REPLIES IN ANY WAY TO THIS MESSAGE, THEN YOU ARE ACKNOWLEDGING THAT YOU HAVE RECEIVED IT AND THAT YOU AGREE TO PAY ME $1,000 FOR EVERY UNSOLICITED BULK E-MAIL MESSAGE YOU SEND ME. If you do not wish to agree to this, then don't reply to this message. Or, if you wish, you may reply to this message and at the same time STOP SPAMMING ME.
The March 25, 2005 complaint was sent to abuse@gblx.net, the address for submitting spam complaints to Global Crossing; to customerservice@footsmart.com, the address included in defendant's spam and provided on defendant's Web site for contacting defendant's customer service department; and to privacy@footsmart.com, the address provided on defendant's Web site for submitting complaints about violations of defendant's privacy policy (which includes defendant's promise to unsubscribe individuals upon request from further bulk email from defendant).
Between plaintiff's first request to be unsubscribed from defendant's spam (May 13, 2004) and March 25, 2005, defendant spammed plaintiff seven times.
Defendant spammed plaintiff again on April 15, 2005.
In response to the spam sent by defendant on April 15, 2005, defendant sent plaintiff on April 15 the invoice attached as Exhibit B via U.S. Mail.
This invoice was also sent on April 15 by e-mail to customerservice@footsmart.com (defendant's customer service address, previously mentioned); privacy@footsmart.com (defendant's privacy policy complaint address, previously mentioned); abuse@gblx.net (Global Crossing spam complaint address, previously mentioned); ggaltere@benchmarkbrands.com (Gavin Galtere, administrative, technical and zone contact for the "benchmarkbrands.com" and "footsmart.com" Internet domains); and amb@benchmarkbrands.com (Alan Beychok, CEO of Benchmark Brands).
Between April 15 and June 16, defendant spammed plaintiff six times (4/28/2005, 5/12/2005, 5/27/2005, 6/2/2005, 6/9/2005, 6/14/2005).
As of June 16, defendant had not remitted payment as demanded by the April 15 invoice, contacted plaintiff about the invoice, or stopped spamming plaintiff. Plaintiff therefore filed suit to recover the $1,000 owed as per the April 15 as well as an additional $1,000 as payment for the April 28 spam under the terms of service previously provided to the defendant.
Plaintiff failed to record the exact date on which the Court notified plaintiff (and thus defendant as well) by mail about the small claims suit, but it was certainly before July 21.
Between June 16 and July 21, defendant spammed plaintiff four times (6/21/2005, 7/1/2005, 7/5/2005, 7/14/2005).
On July 21, plaintiff requested a change in trial date. The change was granted, and plaintiff and defendant were informed of the change in notices sent by U.S. Mail on or about July 22.
Between July 22 and October 11, defendant spammed plaintiff twenty times (7/27/2005, 7/29/2005, 8/3/2005, 8/5/2005, 8/16/2005, 8/22/2005, 8/24/2005, 8/31/2005, 9/2/2005, 9/5/2005, 9/9/2005, 9/15/2005, 9/21/2005, 9/23/2005, 9/27/2005, 9/30/2005, 10/4/2005, 10/5/2005, 10/7/2005, 10/11/2005).
On October 11, plaintiff published an article on his public Internet Weblog synopsizing the facts asserted above. Plaintiff notified defendant of this Weblog entry through e-mail to privacy@footsmart.com (defendant's privacy policy complaint address, previously mentioned), information@benchmarkbrands.com (another e-mail address published on defendant's Web site), and ggaltere@benchmarkbrands.com (Gavin Galtere, previously mentioned).
No spam from defendant was received by plaintiff after October 11.
On October 20, plaintiff received by email a letter from defendant Alan Beychok, attached as Exhibit C, offering to settle plaintiff's suit for filing fees plus $100 in merchandise from defendant's Web site. This same letter was subsequently delivered by U.S. Mail, along with a check for $19 to cover filing fees (despite the fact that the filing fees were in fact $40).
On October 20, plaintiff sent the response attached as Exhibit D.
On October 24, plaintiff received by email a letter from defendant Alan Beychok, attached as Exhibit E. This same letter was subsequently delivered by U.S. Mail.
On November 7, plaintiff received defendant's answer to plaintiff's suit.

Assertion of law

As the owner of the e-mail address "jik@kamens.brookline.ma.us", the owner of the server on which e-mail to that address is stored, and the lessee of the Internet connection over which that e-mail travels, plaintiff has the legal right to limit the use of these resources.
The transmission of an electronic mail message uses the recipient's property, and the sender of the message benefits from that use.
Under both common law and precedent, a contract between two parties is formed when (a) party A specifies the terms under which party B may use and benefit from party A's property; (b) party B can decline those terms by not using or benefiting from party A's property; and (c) knowing those terms, party B chooses to use and benefit from party A's property.
A party cannot claim ignorance of the terms of use of a service to justify a claim of exemption from those terms, when the party was provided with adequate notification of the terms of use and remained ignorant only willfully and/or through negligence.
Continuing to send unsolicited bulk commercial e-mail to an e-mail address after the owner of that address has asked for the e-mail to cease constitutes a violation of the Federal "CAN-SPAM Act".
Said violation of the CAN-SPAM Act is treated as an unfair or deceptive act or practice proscribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
Continuing to send e-mail of any sort to an e-mail address after the owner of that address has demanded that the e-mail cease constitutes unauthorized access to computer resources.
Unauthorized access to computer resources constitutes computer trespass, a criminal offense, under M.G.L. § 266-120F and under Federal law (CompuServe v. Cyper Promotions, opinion issued by Judge James L. Graham in the U.S. District Court of Ohio, February 3, 1997).

Cause of action

Defendant used and benefited from plaintiff's property by transmitted commercial e-mail messages to the plaintiff's e-mail address.
Defendant knew or should have known before April 15, 2005 that plaintiff did not wish to receive any further commercial e-mail messages from defendant.
Defendant knew or should have known after April 15, 2005 that plaintiff only agreed to receive further commercial e-mail messages from defendant under specific terms, in particular, at a cost to the defendant of $1,000 per message received.
Defendant knew or should have known before July 21, 2005 that plaintiff did not wish to receive any further commercial e-mail messages from defendant.
By continuing to send commercial e-mail messages to defendant after plaintiff knew or should have known the terms under which plaintiff was willing to accept such messages, defendant accepted those terms and entered into a contract with plaintiff. As consideration, plaintiff allowed defendant to use and benefit from plaintiff's property.
Defendant has failed to honor terms of contract entered into with plaintiff.
Plaintiff asks the Court to affirm that defendant entered into binding contract with plaintiff and to order defendant to remit to plaintiff $2,000, plus $40 filing fees, as payment for two commercial e-mail messages transmitted to plaintiff by defendant under contract's terms.

Aggravating circumstances

Defendant was negligent and acted in bad faith by continuing to transmit commercial e-mail messages to defendant after being asked to stop multiple times through procedures provided by defendant.
Defendant was negligent and acted in bad faith by failing to put in place working processes for unsubscribing e-mail addresses from its commercial e-mail messages as required by the CAN-SPAM Act.
Defendant was negligent and acted in bad faith by failing to respond in any way to plaintiff's multiple requests for relief from defendant's commercial e-mail messages until plaintiff documented the situation in a public internet Weblog.
Defendant's actions in continuing to transmit commercial e-mail messages to defendant after being asked to stop constitute criminal violations of the Federal CAN-SPAM Act and Massachusetts law against computer trespass.

Response by plaintiff to answer of defendant

Plaintiff is in possession of the defendant's answer to plaintiff's claim, with a cover letter dated November 4, 2005. Defendant offers the following response to plaintiff's answer.

Defendant's answer states, "Benchmark Brands has no presence in the State of Massachusetts," presumably to lay the groundwork for disputing the jurisdiction of Massachusetts courts over this claim. Plaintiff asserts obvious jurisdiction by Massachusetts courts over this claim under M.G.L. § 223a-3.

Defendant nimbly erects and then demolishes the straw man that plaintiff's claim is based on the CAN-SPAM Act. Plaintiff acknowledges that the CAN-SPAM Act grants no individual cause of action. Plaintiff mentioned the CAN-SPAM in his statement of claim, and mentions it again here, only in the context of the assertion that defendant's wanton violation of the Act constitutes negligence and bad faith.

Defendant's reference to plaintiff's published Weblog article about his claim and assertion that the article "demonstrate[s] the impropriety of his claim" fails to mention that plaintiff attempted to contact the defendant privately to obtain relief from defendant's spam for almost a year and a half, and that plaintiff was able to obtain a response from defendant only by releasing a public article.

Defendant's claim that the acknowledgment received by plaintiff to his March 25, 2005 complaint was an "automated, computer-generated e-mail response" and thus does not represent an acceptance of terms is addressed in detail above.

Defendant asserts, "... even if a contract could arise in these far fetched circumstances, Mr. Kamens would nonetheless have an obligation to mitigate his damages, which he has failed to do." Plaintiff had no such obligation, because plaintiff's claim is not based on damages, but rather on a fee-for-service agreement whose terms were offered by plaintiff and accepted by defendant. In other words, plaintiff was and is perfectly willing to provide the offered service of accepting, storing and reading defendant's commercial e-mail messages for a fee of $1,000 per message.

Defendant asserts that since plaintiff could have easily instructed his e-mail filters to discard defendant's spam, plaintiff has no cause of action against defendant for continuing to accept it. The capabilities of plaintiff's e-mail filters are irrelevant to his claim. As noted above, plaintiff was and is perfectly willing to receive defendant's spam under the terms offered by plaintiff. Furthermore, even spam discarded by plaintiff's e-mail filters must first be transmitted to plaintiff's computer, stored there, and analyzed to determine whether it is spam, thus consuming plaintiff's network bandwidth, disk space, and processing resources. In short, defendant's spam would trespass on plaintiff's property even if it were filtered by plaintiff's e-mail filters.

Consider, by analogy, an unattended farm-stand with posted prices, a lock-box with a slot in the top, and a sign above the lock-box, "Please pay for what you take!" Taking produce from the farm-stand without paying for it would be theft. In fact, it would be theft even if there were no sign. Similarly, the fact that plaintiff's mail server accepts e-mail from anyone, so that plaintiff can commerce freely on the Internet, does not give defendant the right to transmit e-mail to that mail server against plaintiff's wishes, nor does plaintiff have any legal requirement to secure his mail server against e-mail from defendant.

Defendant accuses plaintiff of attempting to "set Benchmark Brands up." In fact, plaintiff simply offered to provide a service to defendant and defendant accepted that offer. As detailed above, plaintiff disputes defendant's claim of ignorance of the terms of service offered by plaintiff.

Defendant says, "Benchmark Brands does not distribute Spam email." This is a laughable claim, given that defendant has not disputed any of plaintiff's assertions, all plainly visible in the Weblog article attached to defendant's answer, about how many unsolicited commercial e-mail messages defendant sent to plaintiff, how many requests plaintiff made to defendant to stop sending them, and how many of those requests were ignored. Defendant's claim to the contrary, its conduct in this matter clearly constitutes spamming and is clearly a violation of the CAN-SPAM Act.

Plaintiff recognizes that this case is probably more complex than most cases heard as small claims, and thus transferring it to the regular trial docket might indeed be a reasonable course of action. However, such a transfer would place a hardship upon plaintiff and make it significantly more difficult for him to pursue his claim. Plaintiff therefore respectfully asks the Court to transfer the case to the regular trial docket only as a last resort.

Respectfully submitted,

Jonathan Kamens

Begin Exhibit A

From: FootSmart <footsmart@shopping.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: Walk Your Way To Better Health
Date: Tue, 11 May 2004 07:43:31 -0700 (PDT)
Reply-to: footsmart@shopping.footsmart.com
Received: from mh.footsmart.m0.net (mh.footsmart.m0.net [209.11.164.199])
	by jik.kamens.brookline.ma.us (8.12.11/8.12.11) with ESMTP id i4BEhbSc006152
	for <jik@kamens.brookline.ma.us>; Tue, 11 May 2004 10:43:37 -0400
Received: from shopping.footsmart.com (209.11.138.56)
  by mh.footsmart.m0.net with ESMTP; 11 May 2004 07:43:31 -0700
Message-ID: <13602460793.1084286611093@m0.net>
X-cid: 13602460793
X-pid: 369513

[commercial content elided]

To be removed from future online mailings, please unsubscribe by 
visiting the link below. 
http://shopping.footsmart.com/m/u/fot/f.asp?e=jik%40kamens.brookline.ma.us&mid=1204566883&cid=13602460793e=<DI_EMAIL/>&cid=<DI_CATALOG_ID/>

[unsubscribed through Web site 5/13/2004]

From: "FootSmart" <footsmart@footsmart.chtah.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Free Shipping on your Next Order!
Date: Tue, 24 Aug 2004 15:44:40 -0000
Reply-To: "FootSmart" <support-bz1uxj0awqkx86bh7pkajb0sy43m3z@footsmart.chtah.com>
Received: from mta103.cheetahmail.com (mta103.cheetahmail.com [216.15.189.37])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with SMTP id i7OFiJ2Q032554
	for <jik@kamens.brookline.ma.us>; Tue, 24 Aug 2004 11:44:19 -0400
Message-ID: <bz1uxj0awqkx86bh7pkajb0sy43m3z.68154869.4257@mta103.footsmart.chtah.com>
List-Unsubscribe: <mailto:rm-0bz1uxj0awqkx86bh7pkajb0sy43m3z@footsmart.chtah.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: customerservice@footsmart.com
Subject: [FootSmart: FootSmart - Free Shipping on your Next Order!]
Date: Tue, 24 Aug 2004 14:16:22 -0400

You spammed me on May 11.  I followed the instructions in your spam to
unsubscribe.  Nevertheless, as the attached message shows, you spammed
me again, over three months later.

Now, you need to do the following: REMOVE ME COMPLETELY FROM YOUR
CUSTOMER DATABASE.  REMOVE ALL PERSONAL INFORMATION ABOUT ME,
INCLUDING MY E-MAIL ADDRESS, FROM ANY AND ALL DATABASES THAT YOU
MAINTAIN.  I want it to be IMPOSSIBLE for you to ever spam me again,
because I DON'T WANT TO EXIST, as far as your databases are concerned.

Thank you.

  Jonathan Kamens

[attached spam message elided]

From: "FootSmart" <footsmart@footsmart.chtah.com>
To: jik@kamens.brookline.ma.us
Subject: Sandal Sale Ending Soon - Save up to 60%
Date: Thu, 26 Aug 2004 09:31:01 -0000
Received: from mta100.cheetahmail.com (mta100.cheetahmail.com [216.15.189.34])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with SMTP id i7Q9Ud3j011072
	for <jik@kamens.brookline.ma.us>; Thu, 26 Aug 2004 05:30:40 -0400
Message-ID: <bz17ts1awqkx86bhvy9zdb0sy43mq8.68154869.5909@mta100.footsmart.chtah.com>
List-Unsubscribe: <mailto:rm-0bz17ts1awqkx86bhvy9zdb0sy43mq8@footsmart.chtah.com>
Reply-To: "FootSmart" <support-bz17ts1awqkx86bhvy9zdb0sy43mq8@footsmart.chtah.com>

[commercial content elided]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: Pre-Labor Day Sandal Sale Extravaganza - Free Shipping
Date: Tue, 31 Aug 2004 09:13:43 -0000
Received: from mta303.e.footsmart.com (mta303.e.footsmart.com [206.132.204.204])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with SMTP id i7V9DKET012325
	for <jik@kamens.brookline.ma.us>; Tue, 31 Aug 2004 05:13:23 -0400
Message-ID: <bz0smrpawqkx86bh0gmfpb0sy43me0.68154869.3200@mta303.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bz0smrpawqkx86bh0gmfpb0sy43me0@e.footsmart.com>
Reply-To: "FootSmart" <support-bz0smrpawqkx86bh0gmfpb0sy43me0@e.footsmart.com>

[commecial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net
Subject: [FootSmart: Pre-Labor Day Sandal Sale Extravaganza - Free Shipping]
Date: Tue, 31 Aug 2004 07:20:26 -0400
Message-ID: <16692.24314.541515.388663@jik.kamens.brookline.ma.us>

I have been following the instructions in FootSmart's spam AND sending
them complaints about their spam for several months, and yet they
continue to spam me.  Their spam comes from your network.  Please do
something about it.

  Jonathan Kamens

[atached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: Pre-Labor Day Sandal Sale Extravaganza - Free Shipping])
Date: Tue, 31 Aug 2004 04:20:50 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with ESMTP id i7VBKl39026658
	for <jik@kamens.brookline.ma.us>; Tue, 31 Aug 2004 07:20:47 -0400
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 41EDA2A4D1; Tue, 31 Aug 2004 04:20:50 -0700 (MST)
References: <16692.24314.541515.388663@jik.kamens.brookline.ma.us>
In-Reply-To: <16692.24314.541515.388663@jik.kamens.brookline.ma.us>
Message-Id: <20040831112050.41EDA2A4D1@sec.phx.gblx.net>

Thank you for taking the time to contact Global Crossing's Abuse
Team concerning potential Internet abuse by one of our customers.

Your message will be read and acted on by a human, however due to the
large volume of email we handle every day, we may not be able to
respond to you individually.

In an effort to better serve you, the Global Crossing
Internet Security Team has divided our responsibilities into
several distinct groups.

If this is an urgent incident, such as a live attack, please
submit an incident report at

   https://security.gblx.net/incident.html

Please direct email as follows:

security@gblx.net
   Issues of Internet security such as malicious hacking, port scans,
   account compromises, etc.

abuse@gblx.net
   Abuse by Global Crossing users, including spam.

Please use the appropriate email address for proper processing.

Global Crossing has a user agreement and acceptable use policy
which includes very tough anti-spamming and abuse provisions.  The
current version of our network acceptable use policy may be found
on the web at http://www.globalcrossing.com/aup/

Once again, thank you for reporting potential Internet abuse issues.

Global Crossing Internet Security Team
abuse@gblx.net

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: Don't Forget: Free Shipping Ends in just 4 Days!
Date: Thu, 2 Sep 2004 11:29:53 -0000
Received: from mta303.e.footsmart.com (mta303.e.footsmart.com [206.132.204.204])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with SMTP id i82BTXR2019709
	for <jik@kamens.brookline.ma.us>; Thu, 2 Sep 2004 07:29:33 -0400
Message-ID: <bz0jfq4awqkx86bh0wur7b0sy43mxx.68154869.2658@mta303.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bz0jfq4awqkx86bh0wur7b0sy43mxx@e.footsmart.com>
Reply-To: "FootSmart" <support-bz0jfq4awqkx86bh0wur7b0sy43mxx@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net
Subject: [FootSmart: Don't Forget: Free Shipping Ends in just 4 Days!]
Date: Thu, 2 Sep 2004 07:46:37 -0400
Message-ID: <16695.2077.900417.992478@jik.kamens.brookline.ma.us>

More spam I've already asked them to stop sending me.

MAKE IT STOP.

[attached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: Don't Forget: Free Shipping Ends in just 4 Days!])
Date: Thu,  2 Sep 2004 04:47:31 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.1/8.13.1) with ESMTP id i82BlTt4020698
	for <jik@kamens.brookline.ma.us>; Thu, 2 Sep 2004 07:47:29 -0400
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id E361F2A4F6; Thu,  2 Sep 2004 04:47:31 -0700 (MST)
References: <16695.2077.900417.992478@jik.kamens.brookline.ma.us>
In-Reply-To: <16695.2077.900417.992478@jik.kamens.brookline.ma.us>
Message-Id: <20040902114731.E361F2A4F6@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Save $10 This Weekend Online
Date: Fri, 4 Mar 2005 05:11:40 -0000
Received: from mta303.e.footsmart.com (mta303.e.footsmart.com [206.132.204.204])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j245BbMa030104
	for <jik@kamens.brookline.ma.us>; Fri, 4 Mar 2005 00:11:37 -0500
Message-ID: <byhk8uyawqkx86bebybxab0sy43m9g.68154869.3737@mta303.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0byhk8uyawqkx86bebybxab0sy43m9g@e.footsmart.com>
Reply-To: "FootSmart" <support-byhk8uyawqkx86bebybxab0sy43m9g@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net, customerservice@footsmart.com
Subject: [FootSmart: FootSmart - Save $10 This Weekend Online]
Date: Fri, 4 Mar 2005 05:36:42 -0500
Message-ID: <16936.14906.688037.900586@jik.kamens.brookline.ma.us>

According to my records, I have complained to FootSmart and/or Global
Crossing about their spamming, or followed FootSmart's instructions
for how to unsubscribe from their spam, at least five times, on July
24, 2003, May 13, 2004, August 24, 2004, August 31, 2004, September 2,
2004.  As you can see from the attached message, FootSmart continues
to spam me.  As such, in addition to this complaint, I intend to file
a complaint with the better business bureau against FootSmart for
continuing to spam me.

Please make the spam stop, now and forever.

  Jonathan Kamens

[attached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: FootSmart - Save $10 This Weekend Online])
Date: Fri,  4 Mar 2005 03:39:30 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j24Ab1G4007006
	for <jik@kamens.brookline.ma.us>; Fri, 4 Mar 2005 05:37:02 -0500
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 7036829EA8; Fri,  4 Mar 2005 03:39:30 -0700 (MST)
References: <16936.14906.688037.900586@jik.kamens.brookline.ma.us>
In-Reply-To: <16936.14906.688037.900586@jik.kamens.brookline.ma.us>
Message-Id: <20050304103930.7036829EA8@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: privacy@footsmart.com
Subject: [Jonathan Kamens: [FootSmart: FootSmart - Save $10 This Weekend Online]]
Date: Fri, 4 Mar 2005 05:39:48 -0500
Message-ID: <16936.15092.33582.527856@jik.kamens.brookline.ma.us>

Perhaps you can do something about this violation of your company's
privacy policy.

[attached copy of 4 Mar 2005 05:36:42 message (shown above) elided]

From: <customerservice@footsmart.com>
To: <jik@kamens.brookline.ma.us>
Subject: RE: Unsubscribe from Email
Date: Tue, 8 Mar 2005 11:13:17 -0500
Received: from bench009.benchmarkbrands.com ([12.129.77.27])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j28GDNKL007249
	for <jik@kamens.brookline.ma.us>; Tue, 8 Mar 2005 11:13:24 -0500
Received: from benchweb001 ([10.20.20.51]) by bench009.benchmarkbrands.com with Microsoft SMTPSVC(6.0.3790.211);
	 Tue, 8 Mar 2005 11:13:16 -0500
thread-index: AcUj+b0tO/N0p22qSYK842aI4B5JJg==
Thread-Topic: Unsubscribe from Email
Message-ID: <006e01c523f9$bd2dee60$3314140a@benchweb001>

Click <http://www.footsmart.com/Default.aspx> 	

Thank you for your recent email request. Your name has been removed from
our email promotions list. You may still receive one or two more emails
before the removal goes in to effect. Thank you in advance for your
patience. Again, thank you for contacting Customer Service at
FootSmart.com. Please let us know if we can offer further assistance.

 <http://www.footsmart.com/images/spacer.gif> 	

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Find the Perfect Sandals to Fit Your Feet
Date: Thu, 10 Mar 2005 14:33:15 -0000
Received: from mta302.e.footsmart.com (mta302.e.footsmart.com [206.132.204.203])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j2AEWsuA006920
	for <jik@kamens.brookline.ma.us>; Thu, 10 Mar 2005 09:32:54 -0500
Message-ID: <byggx55awqkx86begfbspb0sy43m8w.68154869.551@mta302.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0byggx55awqkx86begfbspb0sy43m8w@e.footsmart.com>
Reply-To: "FootSmart" <support-byggx55awqkx86begfbspb0sy43m8w@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net, customerservice@footsmart.com, privacy@footsmart.com,
        dr@cbbb.bbb.org
Subject: [FootSmart: FootSmart - Find the Perfect Sandals to Fit Your Feet]
Date: Thu, 10 Mar 2005 11:18:16 -0500
Message-ID: <16944.29512.413182.989012@jik.kamens.brookline.ma.us>

Spam spam spam spam....

[attached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: FootSmart - Find the Perfect Sandals to Fit Your Feet])
Date: Thu, 10 Mar 2005 09:21:11 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2AGIbdk013575
	for <jik@kamens.brookline.ma.us>; Thu, 10 Mar 2005 11:18:38 -0500
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 34D6529EB0; Thu, 10 Mar 2005 09:21:11 -0700 (MST)
References: <16944.29512.413182.989012@jik.kamens.brookline.ma.us>
In-Reply-To: <16944.29512.413182.989012@jik.kamens.brookline.ma.us>
Message-Id: <20050310162111.34D6529EB0@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Free Shipping on All Our New Sandals
Date: Fri, 11 Mar 2005 16:18:03 -0000
Received: from mta302.e.footsmart.com (mta302.e.footsmart.com [206.132.204.203])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j2BGHgwe007162
	for <jik@kamens.brookline.ma.us>; Fri, 11 Mar 2005 11:17:42 -0500
Message-ID: <bygfzckawqkx86beb821tb0sy43mqq.68154869.2092@mta302.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bygfzckawqkx86beb821tb0sy43mqq@e.footsmart.com>
Reply-To: "FootSmart" <support-bygfzckawqkx86beb821tb0sy43mqq@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net, customerservice@footsmart.com, privacy@footsmart.com,
        dr@cbbb.bbb.org
Subject: [FootSmart: FootSmart - Free Shipping on All Our New Sandals]
Date: Fri, 11 Mar 2005 11:23:26 -0500
Message-ID: <16945.50686.712850.237327@jik.kamens.brookline.ma.us>

Spam spam spam spam....

[attached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: FootSmart - Free Shipping on All Our New Sandals])
Date: Fri, 11 Mar 2005 09:26:28 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2BGNsbn007488
	for <jik@kamens.brookline.ma.us>; Fri, 11 Mar 2005 11:23:54 -0500
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 8C86829EAB; Fri, 11 Mar 2005 09:26:28 -0700 (MST)
References: <16945.50686.712850.237327@jik.kamens.brookline.ma.us>
In-Reply-To: <16945.50686.712850.237327@jik.kamens.brookline.ma.us>
Message-Id: <20050311162628.8C86829EAB@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: <customerservice@footsmart.com>
To: <jik@kamens.brookline.ma.us>
Subject: RE: Other
Date: Fri, 11 Mar 2005 17:48:47 -0500
Received: from bench009.benchmarkbrands.com ([12.129.77.27])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2BMqUVZ002727
	for <jik@kamens.brookline.ma.us>; Fri, 11 Mar 2005 17:52:31 -0500
Received: from benchweb001 ([10.20.20.51]) by bench009.benchmarkbrands.com with Microsoft SMTPSVC(6.0.3790.211);
	 Fri, 11 Mar 2005 17:52:22 -0500
thread-index: AcUmjHwmTxIT16OIRPiKqWjmixytcA==
Thread-Topic: Other
Message-ID: <023001c5268c$7c269f30$3314140a@benchweb001>

Click <http://www.footsmart.com/Default.aspx> 	

Thank you for your recent email request. Your name has been [removed
from our catalog mailing list/email promotions list/rent list. You may
still receive one or two more catalogs/emails before the removal goes in
to effect.] Thank you in advance for your patience. Again, thank you for
contacting Customer Service at FootSmart.com. Please let us know if we
can offer further assistance.

 <http://www.footsmart.com/images/spacer.gif> 	

From: <customerservice@footsmart.com>
To: <jik@kamens.brookline.ma.us>
Subject: RE: Other
Date: Fri, 11 Mar 2005 17:49:11 -0500
Received: from bench009.benchmarkbrands.com ([12.129.77.27])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2BMqq0v002746
	for <jik@kamens.brookline.ma.us>; Fri, 11 Mar 2005 17:52:52 -0500
Received: from benchweb001 ([10.20.20.51]) by bench009.benchmarkbrands.com with Microsoft SMTPSVC(6.0.3790.211);
	 Fri, 11 Mar 2005 17:52:47 -0500
thread-index: AcUmjIrKVX/SAHNzSwadh6QTj3NB3A==
Thread-Topic: Other
Message-ID: <023601c5268c$8acced50$3314140a@benchweb001>

Click <http://www.footsmart.com/Default.aspx> 	

Thank you for your recent email request. Your name has been [removed
from our catalog mailing list/email promotions list/rent list. You may
still receive one or two more catalogs/emails before the removal goes in
to effect.] Thank you in advance for your patience. Again, thank you for
contacting Customer Service at FootSmart.com. Please let us know if we
can offer further assistance.

 <http://www.footsmart.com/images/spacer.gif> 	

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - SAVE 15% Online this Weekend
Date: Fri, 25 Mar 2005 15:04:52 -0000
Received: from mta302.e.footsmart.com (mta302.e.footsmart.com [206.132.204.203])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j2PF4YL4019448
	for <jik@kamens.brookline.ma.us>; Fri, 25 Mar 2005 10:04:35 -0500
Message-ID: <bybsqtsawqkx86bf4g3k0b0sy43mzb.68154869.686@mta302.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bybsqtsawqkx86bf4g3k0b0sy43mzb@e.footsmart.com>
MIME-Version: 1.0
Reply-To: "FootSmart" <support-bybsqtsawqkx86bf4g3k0b0sy43mzb@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: abuse@gblx.net, customerservice@footsmart.com, privacy@footsmart.com,
        dr@cbbb.bbb.org
Subject: [FootSmart: FootSmart - SAVE 15% Online this Weekend]
Date: Fri, 25 Mar 2005 10:10:09 -0500
Message-ID: <16964.10705.884288.351637@jik.kamens.brookline.ma.us>

FootSmart is still spamming me!  Amazing!  Astounding!  Outrageous!

Please be advised that I have decided to continue to accept
unsolicited bulk e-mail from FootSmart for a fee of $1,000 per
message.  Any reply to this message by FootSmart will constitute
acceptance of these terms, at which point I will begin billing
FootSmart for the messages they send me.  Failure to remit payment
promptly in response to these bills will result in legal action.

Let me be clear: IF FOOTSMART REPLIES IN ANY WAY TO THIS MESSAGE, THEN
YOU ARE ACKNOWLEDGING THAT YOU HAVE RECEIVED IT AND THAT YOU AGREE TO
PAY ME $1,000 FOR EVERY UNSOLICITED BULK E-MAIL MESSAGE YOU SEND ME.
If you do not wish to agree to this, then don't reply to this
message.  Or, if you wish, you may reply to this message and at the
same time STOP SPAMMING ME.

I hope I have made myself clear.

  Jonathan Kamens

[attached spam message elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  [FootSmart: FootSmart - SAVE 15% Online this Weekend])
Date: Fri, 25 Mar 2005 08:13:22 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2PFAcsv019790
	for <jik@kamens.brookline.ma.us>; Fri, 25 Mar 2005 10:10:40 -0500
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 0520A29EB0; Fri, 25 Mar 2005 08:13:22 -0700 (MST)
References: <16964.10705.884288.351637@jik.kamens.brookline.ma.us>
In-Reply-To: <16964.10705.884288.351637@jik.kamens.brookline.ma.us>
Message-Id: <20050325151322.0520A29EB0@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: <customerservice@footsmart.com>
To: <jik@kamens.brookline.ma.us>
Subject: RE: Marketing, Advertising, Promotions
Date: Sat, 26 Mar 2005 13:25:27 -0500
Received: from bench009.benchmarkbrands.com ([12.129.77.27])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j2QITAfh001860
	for <jik@kamens.brookline.ma.us>; Sat, 26 Mar 2005 13:29:10 -0500
Received: from benchweb001 ([10.20.20.51]) by bench009.benchmarkbrands.com with Microsoft SMTPSVC(6.0.3790.211);
	 Sat, 26 Mar 2005 13:29:02 -0500
thread-index: AcUyMS7t58tNfq51R5W5AEodklbCMw==
Thread-Topic: Marketing, Advertising, Promotions
Message-ID: <014801c53231$2eedcd50$3314140a@benchweb001>

Click <http://www.footsmart.com/Default.aspx> 	

Thank you for your recent email request. Your name has been [removed
from our catalog mailing list/email promotions list/rent list. You may
still receive one or two more catalogs/emails before the removal goes in
to effect.] Thank you in advance for your patience. Again, thank you for
contacting Customer Service at FootSmart.com. Please let us know if we
can offer further assistance.

 <http://www.footsmart.com/images/spacer.gif> 	

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - Little known benefits to keeping active
Date: Fri, 15 Apr 2005 09:03:36 -0000
Received: from mta302.e.footsmart.com (mta302.e.footsmart.com [206.132.204.203])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j3F93HbM010852
	for <jik@kamens.brookline.ma.us>; Fri, 15 Apr 2005 05:03:19 -0400
Message-ID: <bya3fabawqkx86bee7m3xb0sy43m4f.68154869.783@mta302.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bya3fabawqkx86bee7m3xb0sy43m4f@e.footsmart.com>
Reply-To: "FootSmart" <support-bya3fabawqkx86bee7m3xb0sy43m4f@e.footsmart.com>

[commercial content elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: customerservice@footsmart.com, privacy@footsmart.com,
        info@benchmarkbrands.com
Cc: abuse@gblx.net
Subject: Incessant spamming from FootSmart will result in legal action
Date: Fri, 15 Apr 2005 10:21:00 -0400
Message-ID: <16991.52684.458071.670653@jik.kamens.brookline.ma.us>
To: customerservice@footsmart.com, privacy@footsmart.com

FootSmart has been sending me unsolicited commercial e-mail (UCE) for
at least a year, most recently today, as shown in the first
attachment.  I have complained to FootSmart about this on at least
eight separate occasions.  I have been told several times that you
would stop sending me UCE, and yet it continues.

The last time you sent me UCE, I sent you a message indicating that I
would continue to accept it at a rate of $1,000 per message, and that
any response to my message would constitute acceptance of these terms;
see the second attachment.

You responded to my message indicating that you would stop sending me
UCE, thus acknowledging that you had received my message and
indicating your acceptance of the terms contained in it.  See the
third attachment.

I have thus sent you via U.S. Mail an invoice for $1,000, payable upon
receipt.  I have attached a copy of the invoice to this e-mail message
for your convenience.  Failure to remit full payment within 30 days
will result in legal action, i.e., I will sue you, and I will name
both Benchmark Brands and Alan Beychok as parties to the suit.

Please contact me if you have any questions.

[attached spam message elided]
[attached copy of 25 Mar 2005 10:10:09 message (shown above) elided]
[attachec copy of 26 Mar 2005 13:25:27 message (shown above) elided]
[attached invoice included as separate exhibit elided]

From: Global Crossing Internet Security Team <abuse@gblx.net>
To: jik@kamens.brookline.ma.us
Subject: Autoresponse from abuse@gblx.net (was:  Incessant spamming from FootSmart will result in legal action)
Date: Fri, 15 Apr 2005 07:24:34 -0700 (MST)
Received: from sec.phx.gblx.net (sec.phx.gblx.net [204.245.24.245])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with ESMTP id j3FELWLR017081
	for <jik@kamens.brookline.ma.us>; Fri, 15 Apr 2005 10:21:33 -0400
Received: by sec.phx.gblx.net (Postfix, from userid 1006)
	id 54E412A4BD; Fri, 15 Apr 2005 07:24:34 -0700 (MST)
References: <16991.52684.458071.670653@jik.kamens.brookline.ma.us>
In-Reply-To: <16991.52684.458071.670653@jik.kamens.brookline.ma.us>
Message-Id: <20050415142434.54E412A4BD@sec.phx.gblx.net>

[Global Crossing form letter, same as above, elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: postmaster@benchmarkbrands.com, ggaltere@benchmarkbrands.com,
        amb@benchmarkbrands.com
Subject: [postmaster@benchmarkbrands.com: Delivery Status Notification (Failure)]
Date: Fri, 15 Apr 2005 10:35:44 -0400
Message-ID: <16991.53568.626733.295918@jik.kamens.brookline.ma.us>
To: ggaltere@benchmarkbrands.com, amb@benchmarkbrands.com

This is an automatically generated Delivery Status Notification.

Delivery to the following recipients failed.

       info@benchmarkbrands.com

[attached copy of 15 Apr 2005 10:21:00 message (shown above) elides]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart  SAVE 15% - 2 Days Only!
Date: Thu, 28 Apr 2005 10:07:53 -0000
Received: from mta301.e.footsmart.com (mta301.e.footsmart.com [206.132.204.202])
	by jik.kamens.brookline.ma.us (8.13.3/8.13.3) with SMTP id j3SA7lNA032260
	for <jik@kamens.brookline.ma.us>; Thu, 28 Apr 2005 06:07:47 -0400
Message-ID: <bychjzxawqkx86bf62yw9b0sy43m1k.68154869.3286@mta301.e.footsmart.com>
List-Unsubscribe: <mailto:rm-0bychjzxawqkx86bf62yw9b0sy43m1k@e.footsmart.com>
Reply-To: "FootSmart" <support-bychjzxawqkx86bf62yw9b0sy43m1k@e.footsmart.com>

[commercial content elided]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - Walking Healthy and FREE Shipping
Date: Thu, 12 May 2005 09:40:05 -0000
Received: from mta301.e.footsmart.com (mta301.e.footsmart.com [206.132.204.202])
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Get a BIG $15 Savings this Weekend!
Date: Fri, 27 May 2005 19:07:10 -0000
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Status:  O

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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Get Free Shipping on Teva Sandals and More!
Date: Thu, 2 Jun 2005 09:44:31 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - How To Keep Your Feet Happy Away From Home
Date: Thu, 9 Jun 2005 09:59:51 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Great Gifts for Dad Plus A Free FedEx Upgrade!
Date: Tue, 14 Jun 2005 09:34:02 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Free Shipping on Your Next Order of $60 or more
Date: Tue, 21 Jun 2005 17:20:03 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Save 15% Today! July 4th Weekend Sale!
Date: Fri, 1 Jul 2005 13:34:11 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart -SAVE BIG With Our Heat of the Summer Sale!
Date: Tue, 5 Jul 2005 14:51:31 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - Can You Tell If You Suffer From Poor Circulation?
Date: Thu, 14 Jul 2005 18:22:21 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Shop the Best Sellers of the Season!
Date: Wed, 27 Jul 2005 09:10:00 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart  5 Days Only! Special Summer Savings!
Date: Fri, 29 Jul 2005 16:22:10 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart -The Search is Over, Find What You Need at FootSmart!
Date: Wed, 3 Aug 2005 15:12:25 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Save Big This Weekend Only!
Date: Fri, 5 Aug 2005 15:07:05 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Get Free Shipping & Save up to 60% Online
Date: Tue, 16 Aug 2005 16:19:03 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Save up to 60% & Get $5 Shipping
Date: Mon, 22 Aug 2005 14:24:39 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - New Markdowns on 150 Styles - Save up to 60%
Date: Wed, 24 Aug 2005 14:55:39 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Pre-Labor Day Weekend Sale- Shop Early & Save 20% Online
Date: Wed, 31 Aug 2005 10:22:21 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Labor Day Weekend Sale- Shop & Save 20% Online
Date: Fri, 2 Sep 2005 10:22:32 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Save 20% Now! Labor Day Sale Ends Today!
Date: Mon, 5 Sep 2005 10:13:16 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Save an Extra 15% on Your Favorite Birkenstocks!
Date: Fri, 9 Sep 2005 10:02:19 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - Solutions to Treat & Prevent Heel Pain Fast
Date: Thu, 15 Sep 2005 10:07:08 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Shop our Clearance & Save 20-60% Now!
Date: Wed, 21 Sep 2005 14:10:32 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Get Free Shipping & Shop Fall Sock Sale Now!
Date: Fri, 23 Sep 2005 10:08:32 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Get Free Shipping & Shop Fall 2 Catalog Early!
Date: Tue, 27 Sep 2005 14:30:31 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: Save $10 on Any Shoe Purchase - This Weekend Only!
Date: Fri, 30 Sep 2005 10:04:58 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: $4.95 Flat Shipping when you Shop Now!
Date: Tue, 4 Oct 2005 14:55:10 -0000
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[commercial content elided]

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Get Free Shipping & Shop Fall 2 Catalog!
Date: Wed, 5 Oct 2005 15:59:14 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart - Clearance Sale - Shop your Shoe Size!
Date: Fri, 7 Oct 2005 20:24:16 -0000
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From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart: New Fall Styles Just In - Shop Now!
Date: Tue, 11 Oct 2005 15:48:29 -0000
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From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: privacy@footsmart.com, information@benchmarkbrands.com
Subject: You've been spamming me for over a year.  Any plan to stop?
Date: Tue, 11 Oct 2005 13:34:27 -0400
Message-ID: <17227.63395.951901.957818@jik2.kamens.brookline.ma.us>

You've been spamming me for over a year.  Just out of curiosity, do
you plan on stopping any time soon?

You may find this article which I just posted interesting:

http://blog.kamens.brookline.ma.us/~jik/wordpress/?p=8

  Jonathan Kamens

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: ggaltere@benchmarkbrands.com
Subject: Can you help me put a stop to Benchmark Brands spam?
Date: Tue, 11 Oct 2005 13:39:50 -0400
Message-ID: <17227.63718.379574.858275@jik2.kamens.brookline.ma.us>

I found your address on an old Usenet posting.  Are you still at
Benchmark Brands?  Can you help me get your employer to stop spamming
me?  See this article for more information:

http://blog.kamens.brookline.ma.us/~jik/wordpress/?p=8

Thanks,

  Jonathan Kamens

From: "Betsy Deegan" <bdeegan@benchmarkbrands.com>
To: <jik@kamens.brookline.ma.us>
Subject: Benchmark Brands, Inc.
Date: Thu, 20 Oct 2005 15:18:52 -0400
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Message-ID: <1005120506A9AD46BC77B59045309E9306CED0@bench009.benchmarkbrands.com>
Thread-Topic: Benchmark Brands, Inc.
Thread-Index: AcXVqxuDalZjFIcSQomnt3kPuxAFUA==

[letter from Benchmark Brands attached elsewhere elided]

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: "Betsy Deegan" <bdeegan@benchmarkbrands.com>
Subject: Re: Benchmark Brands, Inc.
Date: Thu, 20 Oct 2005 16:18:28 -0400
Message-ID: <17239.64404.810256.898210@jik2.kamens.brookline.ma.us>
In-Reply-To: <1005120506A9AD46BC77B59045309E9306CED0@bench009.benchmarkbrands.com>
References: <1005120506A9AD46BC77B59045309E9306CED0@bench009.benchmarkbrands.com>

[letter to Benchmark Brands attached elsewhere elided]

From: "Betsy Deegan" <bdeegan@benchmarkbrands.com>
To: <jik@kamens.brookline.ma.us>
Subject: Benchmark Brands, Inc.
Date: Mon, 24 Oct 2005 16:39:39 -0400
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Message-ID: <1005120506A9AD46BC77B59045309E930BEC98@bench009.benchmarkbrands.com>
Thread-Topic: Benchmark Brands, Inc.
Thread-Index: AcXY2w32AlQpTSweRpKtzZKMZtEYaQ==

[letter from Benchmark Brands attached elsewhere elided]

End Exhibit A

Begin Exhibit B

INVOICE

From:

Jonathan Kamens

25 Foster Street
Brighton, MA 02135-2616
(617) 254-7904
jik@kamens.brookline.ma.us

To:

Benchmark Brands, Inc.
Attention: Accounts Payable
3295 River Exchange Drive, Suite 280
Norcross, GA 30092-4248
(800) 460-2987
info@benchmarkbrands.com

Date: April 15, 2005

Unsolicited commercial e-mail reception service, 1 message @ $1,000/message (see attached)	$1,000

Total due	$1,000

TERMS:

Payment due upon receipt.

Failure to remit full payment within 30 days will result in legal action.

From: Jonathan Kamens 
To: abuse@gblx.net, customerservice@footsmart.com, privacy@footsmart.com,
        dr@cbbb.bbb.org
Subject: [FootSmart: FootSmart - SAVE 15% Online this Weekend]
Date: Fri, 25 Mar 2005 10:10:09 -0500

FootSmart is still spamming me!  Amazing!  Astounding!  Outrageous!

Please be advised that I have decided to continue to accept
unsolicited bulk e-mail from FootSmart for a fee of $1,000 per
message.  Any reply to this message by FootSmart will constitute
acceptance of these terms, at which point I will begin billing
FootSmart for the messages they send me.  Failure to remit payment
promptly in response to these bills will result in legal action.

Let me be clear: IF FOOTSMART REPLIES IN ANY WAY TO THIS MESSAGE, THEN
YOU ARE ACKNOWLEDGING THAT YOU HAVE RECEIVED IT AND THAT YOU AGREE TO
PAY ME $1,000 FOR EVERY UNSOLICITED BULK E-MAIL MESSAGE YOU SEND ME.
If you do not wish to agree to this, then don't reply to this
message.  Or, if you wish, you may reply to this message and at the
same time STOP SPAMMING ME.

I hope I have made myself clear.

  Jonathan Kamens

From: <customerservice@footsmart.com>
To: <jik@kamens.brookline.ma.us>
Subject: RE: Marketing, Advertising, Promotions
Date: Sat, 26 Mar 2005 13:25:27 -0500

Thank you for your recent email request. Your name has been [removed from our catalog mailing list/email promotions list/rent list. You may still receive one or two more catalogs/emails before the removal goes in to effect.] Thank you in advance for your patience. Again, thank you for contacting Customer Service at FootSmart.com. Please let us know if we can offer further assistance.

From: "FootSmart" <footsmart@e.footsmart.com>
To: jik@kamens.brookline.ma.us
Subject: FootSmart Newsletter - Little known benefits to keeping active
Date: Fri, 15 Apr 2005 09:03:36 -0000

(Content of unsolicited commercial e-mail elided.)

End Exhibit B

Begin Exhibit C

End Exhibit C

Begin Exhibit D

From: Jonathan Kamens <jik@kamens.brookline.ma.us>
To: "Betsy Deegan" <bdeegan@benchmarkbrands.com>
Subject: Re: Benchmark Brands, Inc.
Date: Thu, 20 Oct 2005 16:18:28 -0400

Mr. Beychok,

Thank you for your letter. I'm pleased that you've finally responded, although I must admit to some disappointment that your response comes over a year after I first complained to your company and over six months after I first complained to you personally.

I am grateful to you for putting a stop to the spam I have been receiving, if indeed you have done so. I am also grateful for your offer to reimburse me for the filing fee on my small claims case. However, if you reread the offer I made in my blog entry, you will see that I have asked for more than what you've agreed to. I wrote:

Or, alternatively, Benchmark Brands could put a stop to this madness at any time simply by [1] apologizing, [2] stopping spamming me and everyone else they're spamming, [3] offering concrete proof that they've done so, and [4] reimbursing me for the filing fee on my small claims case.

Although you have fulfilled conditions [1] and [4] given above, you've not convinced me that you've done [2] or [3]. Although I appreciate your offer to compensate me for the time I've spent dealing with your spam, I'm not in this for the money. I'm trying to get you to stop spamming not just me, but others as well. This is why I did not simply tell my email filters to discard your spam.

Can you assure me that whatever caused your failure to unsubscribe me from your spam has been fixed, i.e., that your policies, procedures, and tools have been changed so that the same thing will not occur to others in the future? Can you provide me with some details of what was wrong and what was done to fix it, more than a vague reference to "internal miscommunication," to prove to me that the problem has been located and addressed? Are you sure enough that you've solved the problem that you're willing to agree, in writing, that if you spam me again, you will pay me $1,000? If you cannot do these things, then I'm afraid that I have no choice but to proceed with my suit.

Please note that I am not attempting to pursue private action under the CAN-SPAM act. I am pursuing action because I sent you email informing you that I would charge you $1,000 per message for any spam you subsequently sent me and indicating that any acknowledgment of my email would constitute acceptance of those terms. Someone from your organization acknowledged my email, and then you continued to spam me. I subsequently sent the same terms and conditions by U.S. Mail, and your company spammed me many times after receiving them. You were also notified about my complaint by the court after I filed my suit, made no attempt to contact me after that notification to resolve the matter, and spammed me many times after receiving that notification.

I'm sure you'll be able to send a great attorney to represent Benchmark Brands at the hearing, and I'm sure that he/she will be able to make all kinds of fancy arguments to the court about why my claim should be dismissed or transferred to regular court. However, it's hardly a "slam dunk" that your attorney will be successful, because procedural rules in small claims court are rather informal. Furthermore, I imagine that paying for several hours of a local attorney's time, or paying to fly one of your attorneys from your headquarters to Boston, will set you back at least a few hundred dollars.

What I'm asking you to do instead is the right thing to do, and it will cost you nothing if you actually do it. Simply put procedures in place (if you haven't already done so) to ensure that when people ask you to stop spamming them, you actually stop; provide some proof that you've done this; and put your money where your mouth is by agreeing to pay me if it turns out that you're wrong.

I hope that we can reach a mutually agreeable resolution to this matter. I look forward to your reply. In the meantime, I will hold onto your check, if/when it arrives, rather than cashing it.

Sincerely,

Jonathan Kamens

End Exhibit D

Begin Exhibit E

End Exhibit E