Kerber of WurldMedia Indicted Again

July 24, 2008 Filed under: Adware, Affiliate Marketing, Legal Issues — Kellie AFP @ 10:36 am

A grand jury has handed down another indictment against Gregory Kerber, former chief executive of WurldMedia. This time the indictment is for grand larceny in the third degree. The allegations are that Kerber transferred $30,000 from Buyersport to his personal account.

Kerber was indicted last year under separate charges related to the sale of WurldMedia to Roo. At that time I commented that hopefully a deeper look would be taken into the financial goings on at Buyersport. It would appear that has indeed happened, although not exactly along the lines I mentioned. On the other hand, all the details haven’t been made publicly yet.

While Kerber has settled the charges from last year, pleading guilty to one of the counts, his legal woes made not be over yet. is reporting that Kerber and his wife filed for Chapter 13 bankruptcy last month. that the Saratoga District Attorney’s office is working closely with the US Attorney’s Office in the exploration of a possible criminal case that falls outside of the Saratoga’s District Attorney’s office.

New CEO at

July 17, 2008 Filed under: Affiliate Marketing — Kellie AFP @ 9:34 am

A new CEO for, Kevin Johnson, has been announced replacing former CEO Alessandro Isolani. Alessandro also co-founded Ebates in 1998. Prior to Ebates, he was a DA in California.

Ebates has stirred much controversary over the years in affiliate marketing with the integration of the MoeMoneyMaker reminder software in their business model. While Ebates was pulled back from actively promoting MoeMoneyMaker for over a year now, Ebates remains controversial for some in the affiliate marketing community.

It is interesting Ebates has gone out of house for their new CEO and appears to reflect their strategic growth plans. Johnson’s background is in email marketing and SEO optimization. He also has experience in the loyalty marketplace, but it appears that his experience in direct marketing is where Ebates’ interests lie.

It will be interesting to see what changes and directions Ebates may take under Johnson’s leadership.

There were was no information regarding what role Alessandro may continue to have at Ebates.

Proposed Settlement In ValueClick/CJ Adware Class Action Lawsuit

July 6, 2008 Filed under: Adware, Affiliate Marketing, Legal Issues — Kellie AFP @ 6:21 pm

A proposed settlement has been reached and preliminarily approved in the class action lawsuits on behalf of publishers and advertisers against ValueClick/CJ. The cases centered on the presence of adware in CJ/BF and the impact on both publishers and advertisers. The two cases were consolidated earlier this year by the courts and the settlement covers both cases.

A court date of January 2009 has been set for a Fairness Hearing to determine if the settlement will have final approval by the court.

I’m posting two documents obtained through the courts which give detailed information regarding the settlement and the procedures which will follow.

[Propsed] Order Preliminarily Approving Settlement, Prelimanily Certifying Classes, And Providing For Notice 

Exhibit A: Agreement For Settlement Of Carrier And NAR Litigation

VCLK/CJ deny all allegations in both cases but agree to the following settlement (summarized):

1. $1 Million to be paid into a Common Settlement Fund. Both Advertisers and Publishers will be compensated from this fund. Thirty (30) percent of the fund will be allocated to Advertisers and seventy (70) percent to Publishers of the class. The first document linked above defines both classes and outlines how the fund will be dispersed.

2. An independent audit of CJ’s Network Quality practices and efforts related to detection, prevention and response to third parties using software to force or hijack clicks on CJ. The Auditor will submit a report and make recommendations on how CJ can improve and enhance Network Quality practices. The parties will then issue a statement to Class Members summarizing the measures to be implemented by CJ in response to the Audit and report.

3. CJ will begin tracking additional data/information and will implement enhancements of its primary investigative tools and automated software investigative tools. This additional data includes (quoted from the Settlement Agreement):

49. Tracking of Additional Data and Information: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will supplement its existing detection procedures and practices by implementing systems responsible for tracking the following categories of data and information:

A. Prior Publisher Investigations: CJ will design and implement fields and/or tables in its database that identify and record: 1) the number of instances on which any publisher has been assigned a “fraud role” or has been under investigation for the potential use of malicious software to “force” or “hijack” clicks; 2) the time period of each such investigation; 3) the CJ employee(s) responsible for conducting the investigation; and 4) the outcome of the investigation. CJ agrees to maintain such information for a period of no less than 3 years.

B. Termination/Deactivation Codes: CJ will design and implement detailed codes identifying the specific reason(s) that a particular publisher was deactivated or terminated from its network, including specific codes identifying whether a publisher was terminated for “forcing” or “hijacking” clicks using malicious software. CJ agrees to record and preserve such reason codes for each publisher deactivated or terminated from its network for a period of no less than 3 years following such deactivation or termination.

C. Software Testing: CJ will design and implement a database and/or table identifying all software that is manually tested or investigated by CJ to determine whether it is being utilized to “force” or “hijack” clicks, and for each such software application, will record in such database and/or table: 1) the particular software application tested; 2) the time, date and manner in which such software was tested; 3) any publishers determined to be using such software; and 4) the conclusions of the testing. CJ agrees to record and preserve such information for a period of no less than 3 years.

50. Primary Investigative Tools: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal, and dismisses the Action with prejudice, it will implement the following enhancements to its Network Quality procedures:

A. CJ will continue to circulate to all members of its Network Quality team a daily “hijack report” identifying all instances of two clicks for the same end user being dropped within five seconds of each other, and will assign a member of its Network Quality team to be principally responsible for reviewing daily “hijack” reports and for investigating instances of potential click “hijacking” based on such reports.

B. CJ will begin to circulate a weekly “high conversion report” to all members of its Network Quality team identifying all publishers with a lifetime conversion ratio greater than 30% and a percentage of “null” referring URLs greater than 50%, and will assign a member of its Network Quality team to be principally responsible for reviewing weekly “high conversion reports” and for investigating instances of potential “forced” clicks using malicious software based on such reports.

C. CJ will agree to consider in good faith implementing any additional investigative reports or tools recommended by the auditor to assist in its efforts to detect forced click and hijacking activity.

51. Automated Software Investigative Tool: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will implement an automated testing protocol utilizing a proprietary software tool designed to detect particular publishers’ use of known malicious software applications. The tool will run on a continuous basis, and the independent auditor will be permitted to evaluate the automated tool and to make recommendations concerning the design and implementation of the automated tool in his or her Report.

52. Preservation of Publisher Data During Publisher Investigations: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will implement an automated system for preserving all “click data” associated with a particular publisher during any period of time that such publisher is under investigation for the potential use of malicious software to “force” or “hijack” clicks on CJ’s network. Notwithstanding the foregoing, no failure to preserve such data during the pendency of any such investigation shall be admissible to establish liability or breach of any discovery obligation in any collateral litigation, and no inadvertent failure to preserve such data shall give rise to any claim for breach of this Settlement Agreement.

The agreements with regards to compliance efforts are more significant than the amount of dollars reached in the settlement, in my opinion. I am glad to see such issues addressed in the agreement.

More information regarding who is included in the classes, procedures for opting out of the settlement and mechanisms for opposing the settlement terms can be found in the documents linked at the beginning of this post.

More information regarding who is included in the classes, procedures for opting out of the settlement and mechanisms for opposing the settlement terms can be found in the documents linked at the beginning of this post.

Stupid Is As Stupid Does

February 12, 2008 Filed under: Affiliate Marketing, Misc — Kellie AFP @ 2:53 pm

When will some merchants learn? If you’re going to participate in public forums, it’s best to stick to the truth or it could come back to bite you in the butt. If you just have to lie, then at least make it a good lie.

There’s a thread over at ABW right now announcing Pets-Warehouse launch on Performics. In that thread, Bob Novak of Pets-Warehouse made the following post:


Bob was responding to some comments by a couple of affiliates regarding possible adware coming into his program moving from an exclusive SAS merchant to running on Performics as well.

The part of his post I’d like to comment on is:

“I had Kelly work with us a while back on suspicious activity.”

First of all it’s Kellie not Kelly. More importantly………….

AffiliateFairPlay has NEVER had any type of business relationship with Bob Novak nor

In case anyone is not unsure, I’ve never worked with Bob on any suspicious activity in his program. There has never been, nor do I doubt there will ever be, any association between myself and Bob.

I can’t even imagine how he came up with posting such or why. Except maybe that he got so caught up in his own spin that his head wound up his ass.

The extent to which I may have assisted Bob along these lines would have to be from the public information that I’ve posted over the years on ABW regarding “parasites” and adware. Of course that information is freely available to any merchant to educate themselves. It’s why I’ve posted there in the past. Maybe I found something in his program years ago and pointed it out in a thread??? That is something I’ve done on ABW numerous times over the years and I doubt I remember each incident. Certainly it wasn’t anything to stand out in my memory.  Either of the above certainly doesn’t warrant the implied relatlionship in Bob’s post.

I have never talked to Bob in person.
I’ve never emailed Bob.
I’ve never IM’ed Bob.
I’ve never talked to Bob on the phone.
In fact, my only contact with Bob has been to the extent he has periodically participated on ABW. I *do* recall slapping a temporary ban on him over at ABW when I was a moderator for his persistence disruption of any thread discussing another pet merchant by pimping his own program and bashing all other pet merchants.

To whatever degree affiliate’s may have a favorable perception of a program because they work together with AFP, this should not hold true for Pets-Warehouse, since no such relationship has ever existed. It’s nothing more than spin, and it’s bad spin at that.

I do have very open lines of communicatlion with both SAS and PFX. I expect those to continue. It has absolutely nothing to do with however. I’m sure Bob has indirectly benefited from my relationship with SAS. He may well receive some indirect benefit on PFX. But that holds true for all merchant’s on those networks and other networks as well.

Slap me silly, but it seems that if you are trying to boost affiliate’s confidence in the integrity of your program, maybe being honest and not lying about actions you’ve taken to keep your program “parasite-free” (aside from the fact anyone who really does understand the issues recognizes that parasite-free doesn’t exist) is a good way to begin.

But regardless of the marketing approach you take for your program, under no cicumstances try to use my reputation to spin affiliates. Even the merchants I really do work with don’t pull that crap. Every single one of them has honored the tight controls I put in place on how the relationship can be depicted. Controls I’ve put in place to protect against people like Bob.

But fear not, I do see hope on the horizon that maybe Bob will stop pulling this kind of nonsense. Afterall, I see he’s now using his real name over on ABW instead of Henri. ;)

Major Loyalty Affiliates Hit With Patent Infringement Lawsuit

January 31, 2008 Filed under: Affiliate Marketing, Legal Issues — Kellie AFP @ 9:47 pm

It seems that a lawsuit was filed in Texas Eastern District Court on January 23, 2007 by Source Inc. alleging patent infringement related to a “Centralized Consumer Cash Value Accumulation System for Multiple Merchants”. Translation: loyalty/rebate system. Source Inc is saying they have the patent of others doing loyalty/rebate systems are infringing on their patent.

Listed as defendants in the suit are:

Access Development Corporation, Inc.
Belcaro Group, Inc. (ShopAtHome)
Big Co-Op, Inc.
Intefral Technologies, Inc.
77BlueLLC (David Lewis)
Ebates, Inc.
Electronic Scrip Incorporated
The Ezshoppen Company, Inc. (Tim Storm) Holdings, LLC,
JellyFish, Inc. (recently purchased by M$)
Jet Set Joe Corporation
Little Grad, Inc.
MBC Direct, LLC
Mall Networks, Inc., Inc.
Mezl Media, Inc. (owned by ValueClick)
Mothers Work, Inc.
OC Rebates
Pinnacle Communications International, Inc.
Qdeals, Inc.
QuickRewards Network, Inc.
Simplicity Group, LLC Corporation
Tricordia, LLC
Tuition Fund, LLC, Inc.
Zions First National Bank
Alliance Card, Inc.
Family Network, Inc.
JPMorgan Chase & Co.
Golden Retriver Systems, LLC
Summit State Bank
Nietech Corporation
U.S. Bancorp
U.S. Bank

I’m sure many will recognize several of the thirty-eight defendents on that list. Source Inc may not be done with the list of defendents yet as there is mention of “similar programs whose identities are not yet known”.

Source Inc is also seeking an injunction against each defendent.

Ok, so patent cases are filed, won and lost every day. But “wow” was my initial reaction.

I’m not sure if they are naming any loyalty/rebate program which tracks across multiple merchants or just ones with certain technology or what.

I haven’t read through the patents yet, but this is certainly going to be interesting.

The SouthEast Texas Record (the content on this page may change. Scroll down to Source Inc vs Access Development Corp. et al)
US Patent Office Search Returns

What Became of ExactAdvertising?

January 28, 2008 Filed under: Adware, Affiliate Marketing, Legal Issues — Kellie AFP @ 1:13 pm

ExactAdvertisng…remember them? They were behind such lovely adware applications as BargainBuddy (contextual pop-up application like Zango), CashBackBuddy (rebate reminder software), ExactSearch (PPCSE toolbar) and Bullseye Network (BargainBuddy rebranded).

I’ve noticed in the last year or so that several of their adware applications have been dead in the water so to speak. Installation web sites owned by ExactAdvertising were still up and had downloads available, but the adware did not function when installed. I wondered what was going on. Did they decide to pull out of the adware business or was something else happening? (more…) and the FTC

December 7, 2007 Filed under: Adware, Affiliate Marketing, Legal Issues — Kellie AFP @ 12:23 pm

News of yet another settlement between a government agency related to adware. This time it’s AdultFriendFinder and the FTC. Maybe I need to start tagging these as “chickens coming home to roost.”

AdultFriendFinder and the FTC have reached a settlement over consumers being “pelted” with sexually explicit ads. The short story is the FTC says AdultFriendFinder delivered sexually explicit ads to it’s network of sites to consumers who weren’t looking for such and that’s against the federal law. AFF can’t do that anymore, either themselves or by their affiiates. From the FTC press release:

“Such ads were displayed to consumers who were searching online using terms such as “flowers,” “travel,” and “vacations.” In some cases, defendant’s sexually explicit ads were distributed using spyware and adware.” (more…)

Veterans Day Tribute

November 12, 2007 Filed under: General, Affiliate Marketing — Kellie AFP @ 8:43 am

November 11 is the technical Veterans Day. Today of course is the recognized Veterans Day. I came across this recently and thought it was fitting Veterans tribute, some what related to our industry. The performer Terry Kelly also wrote the lyrics and is based on a real life event.

To all those who have served their country your sacrifices are remembered and honored today and always.

Forced Clicks and Coupon Sites

October 30, 2007 Filed under: Affiliate Marketing — Kellie AFP @ 6:09 am

There’s been quite a bit of discussion over the last few months about forced clicks (or cookie stuffing) and coupon sites. It’s a feeling of deja vu. This was an issue “discussed” at length several years ago. The discussions were pretty heated then and seem to generating a bit of flurry once again. The amount of discussion happening now may be related to a couple of things. First, there are many new faces in Affiliate Marketing that weren’t here when all the discussion was happening three or so years ago. Second, a couple of high profile affiliates with a reputation for advocating fair industry practices were “outed” for using what some considered forced clicks on their coupon site. That’s pretty much tantamount to striking a match in a shed full of gun powder.

I’ve gotten quite a few emails, IMs, PMs, and twitters on the issue of coupon sites using forced clicks the last couple of months. The amount of discussion in the community isn’t always the same as how prevalent the practice is however. So I decided to do a little study determine if the degree of discussion is proportion to the degree of coupon sites using forced clicks today. Is the rate of incidents more, less or the same as in the past?

I did some testing over the last week and the results of my testing of the Prevalence of Forced Clicks on Coupon Sites can be found here. (more…)

ValueClick and Zango: Partnerships and Conflicts of Interest

October 16, 2007 Filed under: Adware, Affiliate Marketing — Kellie AFP @ 2:47 pm

Sometimes I find things in unexpected places and ways. This is one of those times. It also brings home the conflicts of interest that can arise within companies involved in different aspects of online advertising.

A friend sent a link over IM the other day for a news article they thought was amusing on the NYPost web site. I clicked through and noticed a pop-up ad being delivered. That wasn’t an unusal occurrence, especially for a content site. As I went to close out the pop-up window, I found an ad which I recognized for SpamBlockerUtility. This is a “free” software application to block spam owned by Zango and bundled with Zango when installed. (more…)

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