*Friendly E-Mail Takes Off Gloves in Spam Case

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The cat-and-mouse battle between Pete Wellborn, an Atlanta-based attorney, and Benchmark Print Supply, an Atlanta telesales firm frequently accused of conducting relentless spam campaigns, reached new heights recently when Wellborn obtained a permanent injunction prohibiting Benchmark and its owner, Sam Khuri, from a wide range of e-mail activities.


U.S. District Court for the Northern District of Georgia issued the permanent injunction last month on behalf of Wellborn's client, Friendly Email Inc., a California e-mail service. Benchmark and Khuri are prohibited from sending unsolicited commercial e-mail to any Internet users and from engaging in other "improper" e-mail activities, such as spoofing, or falsifying, the sender's address and cloaking, or hiding, the identity of the sender.


The ruling also requires Benchmark, a direct sales firm specializing in replacement toner cartridges, to abide by the stated terms of service for any current or future e-mail accounts it maintains.


The bitter, two-year battle between Wellborn and Khuri was originally waged over Benchmark's alleged spamming of BiblioTech Ltd., a London-based Internet service provider and a Wellborn client. According to Wellborn, the BiblioTech consent order reached in April required Benchmark to honor all opt-out requests, forbade spoofing and cloaking, and lowered the burden of proof against the firm.


Perhaps most importantly, the consent order allowed all Internet users to be "express third-party beneficiaries," meaning they could sue Benchmark if they deemed its e-mail actions a breach of the settlement terms. This set the stage for the next case, which flared up this summer, pitting Khuri against Wellborn and Friendly Email.


Friendly Email alleged that Benchmark sent bulk unsolicited commercial e-mails that were doctored to look as if they were sent by the e-mail firm. Friendly Email said it received 1,000 complaint e-mails over the two-day period when the alleged violations took place.


The e-mail provider originally asked that Benchmark be held liable for criminal penalties and civil damages. The permanent injunction does not address those issues, but if Benchmark violates the terms, the actions can revive the motion for criminal and civil contempt, Wellborn said.


"In other words, if he spams again, he could go to jail," said Wellborn, who also served as one of the lead counsels in Earthlink's seminal case against former "spam king" Sanford Wallace and Cyber Promotions.


Neither Khuri nor any other Benchmark Print Supply spokesman could be reached by deadline.


The relationship between Khuri and Wellborn, an attorney at Arnall Golden & Gregory LLP, is long and contentious. In the BiblioTech case, Wellborn and Khuri sparred for two years before reaching an out-of-court agreement, whereby BiblioTech agreed to drop all charges against Benchmark. In return, Benchmark agreed to pay an undisclosed sum to the ISP and to abide by a set of prohibited conduct guidelines regarding future e-mail marketing efforts.


At the time of that settlement, Khuri said he did not believe it would provide new ammunition for companies to sue him and denied that his e-mails violated the prohibited conduct clause. "We haven't been doing anything that's out of the agreement anyway," Khuri said, regarding why he agreed to settle.


Neither settlement, however, specifically forbids Benchmark from sending unsolicited e-mails as long as they are honest about the sender, they contain a valid unsubscribe function and Khuri honors remove requests.


On Oct. 9, three days after the Friendly Email injunction, Benchmark allegedly sent another round of "inappropriate" commercial e-mails, which Khuri attributed to a one-time computer glitch. Wellborn said he did not expect to file a follow-up complaint.
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