After deliberating for approximately three hours, the jury returned its verdict in favor of the defense —a ruling that came to the immense satisfaction attorney Rob Apgood, who represented Impulse in the case.
“I’m on cloud nine,” Apgood told XBIZ, adding that Impulse and its owner Seth Schermerhorn are to be commended for having the “fortitude to see this thing all the way through.”
“I’ve been saying all along that [the government] was wrong, and I’m glad that somebody stood up and said, ‘No — I’m not going to take this,’” Apgood said.
Apgood said that he was confident that the jury would rule in favor of the defense, but “you’re always a little nervous when it goes to the jury.”
In order to prevail in its case, Apgood explained, the government had to show that there was specific intent on the part of the defendants to induce affiliates to promote their sites via email in violation of the CAN-SPAM Act — a burden of proof that proved a bridge too far for the government, Apgood said.
“There simply was no evidence presented that supported that contention,” Apgood said.
At one time, Apgood served as counsel for Cyberheat in its CAN-SPAM case, an action which the company recently negotiated a settlement of with the FTC. Apgood was no longer representing Cyberheat at the time that case was settled.