Defendant will pay nearly $500,000 to settle charges he caused $5.9 million in consumer injury with spam schemes involving anti-aging and weight-loss products.
Creaghan A. Harry is getting off easy. The accused spammer and perpetrator of fraud, based in Boca Raton, Fla., has agreed to settle charges brought against him by the Federal Trade Commission for $485,000, less than a tenth of the estimated $5.9 million consumer injury the FTC attributes to his sham anti-aging and weight-loss products.
Harry gets to keep the bulk of his $2.4 million estate thanks to Florida's homestead and asset-protection laws. Though the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, signed into law in April, includes homestead-protection limitations that might have enabled the FTC to seek more of Harry's assets, the agency decided in a 4-to-1 vote not to risk the almost half-million-dollar settlement for a potentially larger sum.
Steven Wernikoff, staff attorney for the FTC, notes in an E-mail message that the agency based its monetary judgment on the defendant's ability to pay. "The Florida homestead exemption protects a primary residence from most involuntary liens regardless of the circumstances," he writes. "Thus, Mr. Harry was left with some equity in his homestead. This exemption frustrates the ability of the commission to obtain maximum recovery for consumers."
The irony is that, according to court filings, the complex network of businesses Harry used to peddle his quack cures barely touched Florida. Allegedly, he paid a California company to manufacture "Supreme Formula HGH"--ostensibly a human growth hormone product that promotes weight loss during sleep and prevents biological aging--and paid a South Dakota company for customer order fulfillment and credit-card processing.
The FTC claims Harry had proceeds from the sale of his bogus health products wired to a bank account in Latvia, all the while concealing his identity using the name Greg Miller and various unregistered business located in Canada, Sweden, and Switzerland with names such as Scientific Life Nutrition and Rejuvenation Health Corp. Web sites that sold his products don't identify any business name and are registered to individuals in China, court documents note.
While the continued abundance of spam suggests that prosecuting spammers is a quixotic crusade, Wernikoff believes legal pressure helps. "We believe it does have a practical effect," he says, noting that technological countermeasures and education are also part of the solution.
Certainly the Can Spam Act of 2003 is helpful for prosecutors. The FTC charges the defendant with numerous violations of the law, including sending messages with false and misleading header information, failure to provide a valid opt-out mechanism, and routing messages through poorly secured third-party computers, or "open proxies."
But when thousands of people are paying $80 online for supposed hormones that prevent aging, increase memory, boost sexual potency, and erase cellulite, law and technology face a real challenge in compensating for lack of common sense.
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