Federal Trade Commission v. Cleverlink Trading Limited, et al

MOTION

N.D. Ill.November 1, 2006

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION __________________________________________ ) FEDERAL TRADE COMMISSION, ) ) Plaintiff, ) ) v. ) Case No. 05 C 2889 ) CLEVERLINK TRADING LIMITED, et al. ) Judge Virginia M. Kendall ) Defendants, ) ) OCEANIC TELECOMMUNICATIONS ) SERVICES, LLC and COLIN H. SHOLES, ) ) Relief Defendants. ) __________________________________________) RELIEF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO COUNT VI, PLAINTIFF’S REQUEST FOR DISGORGEMENT OF ILL-GOTTEN GAINS Relief Defendants OCEANIC TELECOMMUNICATIONS SERVICES, LLC and COLIN H. SHOLES, by their attorney, LORI E. IWAN, move for an order granting Summary Judgment as to Count VI, Plaintiff’s Request for Disgorgement of Ill-Gotten Gains because: (i) There is no evidence that the Relief Defendants had knowledge that Cleverlink was submitting credit card charges through Oceanic that were obtained by violating the CAN-SPAM or the Adult Labeling Act; (ii) there is no evidence that the Relief Defendants committed a violation of the CAN- SPAM or the Adult Labeling Act, and (iii) the Relief Defendants merely provided credit card services to Cleverlink making them immune from the provisions of the CAN-SPAM Act and the Adult Labeling Rule. In support of their motion and pursuant to L.R. 56.1(a), Relief Defendants submit a “Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment as to Count VI, and Motion for Summary Judgment as to Oceanic Case: 1:05-cv-02889 Document #: 162 Filed: 11/01/06 Page 1 of 3 PageID #:1440 Telecommunications Services LLC’s Compliance with the June 29, 2005 Stipulated Preliminary Injunction,” and a “Memorandum of Law in Support of Relief Defendants’ Motion for Summary Judgment as to Count VI, Plaintiff’s Request for Disgorgement of Ill-Gotten Gains.” WHEREFORE, Relief Defendants OCEANIC TELECOMMUNICATIONS SERVICES, LLC and COLIN H. SHOLES move for an order granting Summary Judgment in their favor and against the Plaintiff, FEDERAL TRADE COMMISSION, there being no genuine issue of material fact, and Relief Defendants being entitled to judgment as a matter of law. Respectfully submitted, /s/ Lori E. Iwan ________________________ By: Lori E. Iwan Lori E. Iwan Iwan Cray Huber Horstman & VanAusdal LLC 303 W. Madison Suite 2200 Chicago, IL 60606 Phone: 312.332.8450 Facsimile: 312.332.8451 Email: lei@iwancray.com 2 Case: 1:05-cv-02889 Document #: 162 Filed: 11/01/06 Page 2 of 3 PageID #:1441 CERTIFICATE OF SERVICE I hereby certify that on November 1, 2006, I caused to be served a true copy of the foregoing RELIEF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO COUNT VI, PLAINTIFF’S REQUEST FOR DISGORGEMENT OF ILL-GOTTEN GAINS via electronic service: Steven M. Wernikoff Jason K. Bowler Federal Trade Commission 55 East Monroe Street, Suite 1860 Chicago, Illinois 60603 Counsel for FTC /s/ Lori E. Iwan __________________________ Lori E. Iwan 3 Case: 1:05-cv-02889 Document #: 162 Filed: 11/01/06 Page 3 of 3 PageID #:1442