Commission Junction Class Action Lawsuit

[Namebrander]

well guess who seems to have been caught screwing up commissions and possibly stealing them too?

Seemingly its good old cj - Theres now rumours (which may well prove sustantiated) that there is another cal - aside from the one detailed below- in the pipeline for publisher commissions being shaved - this will if undertaken be a separate class action lawsuit

Like many other ad publishers I often wonder about the correct tracking of ppa affiliate programs.


I received an email - two days back. This email is copied below

I logged into my Commission Junction account but there was no mention of what the email refers to- but thats not surprising

Well after digging a little deeper is seems that Commission Junction could really be up the creek without a paddle ! This is big news.

Seemingly it means that good old CJ have been cocking up commissions due to grossly outdated tracking methods, even more startlingly they may have also been defrauding publishers by manipulating traffic on a massive scale. It makes you wonder if that is the reason Ebay left to start their own network. I feel that this news is on a par with the registerfly debacle. Many ad publishers (myself included) have thought that CJ are guilty of massive commission shaving - READ FRAUD and THEFT - It seems that the class action lawsuit which is currently underway was initiated by ex CJ employees who wished to expose this mass fraud. The current lawsuit only related to commissions being hijacked. There may be much more to follow.



Settlement Recovery Center v. ValueClick settlement

RE: Important Legal Notice Regarding Commission Junction’s Affiliate Network

If you joined or were a member of the affiliate marketing networks operated by ValueClick, Inc., Commission Junction, Inc. and/or Be Free (collectively, “Defendants”), between April 20, 2003 and the present, you may be a class member in Settlement Recovery Center et al. v. ValueClick, Inc. et al., No. 2:07-cv-02638-FMC-CTx, a lawsuit which is pending in the Central District of California. The Settlement Notice informs you of the Court’s certification of a class for settlement purposes; the nature of the claims alleged; your right to participate in, or exclude yourself from, the class; a proposed settlement; and how you can claim an award of advertising credits under the settlement or object to the settlement.

The proposed settlement will resolve claims that Defendants failed to adequately monitor Commission Junction’s Network for the use by third parties of software that does not comply with Commission Junction’s (“CJ”) Publisher Code of Conduct and that is intended to steal or divert commissions from publishers on CJ’s network (“Non-compliant Software”), failed to adequately monitor or prevent third parties from engaging in the theft or “hijacking” of commissions from Advertisers and Publishers on CJ’s Network, and failed to make sufficient disclosures regarding the existence of Non-compliant Software and commission theft, resulting in losses to both advertisers and publishers on the CJ Network.

The proposed settlement will provide a monetary recovery to eligible class members. For class members that currently maintain an account on the CJ Network will receive payment through payments or credits deposited or applied to their CJ accounts; eligible class members that no longer have accounts on the Commission Junction Network will receive a check for an equal amount.

If you are a member of the class, your legal rights are affected by whether you act or do not act. You should review the Settlement Notice as soon as possible as there are several important deadlines that you must meet to take certain actions in connection with this proposed settlement. In particular, the deadline for filing an objection or excluding yourself from the proposed settlement is September 30, 2008. For further information, please refer to the Settlement Notice.

For a copy of the Settlement Notice, click on the link, or visit the case website at www.CJSettlement.com

 

[south]

Got the same email, had not found the chance to read up on it. Are you joining the class?

 

[Theo]

From a brief parsing of the letter, it appears that through lack of monitoring, CJ allowed third parties to hijack the traffic and divert it to other places. So I guess it's referring to malware etc. It doesn't say CJ stole or misquoted traffic stats.

 

[incka]

I think it refers to sites the put tiny iframes or images of tracking and then iframe those sites in larger sites - ie to 'steal' commissions from other affiliates by placing a sites cookie for every since affiliate program going even when it hasn't actually referred someone.

 

[Seraphim]

Next up... Google AdSense...

 

[Namebrander]

From a brief parsing of the letter, it appears that through lack of monitoring, CJ allowed third parties to hijack the traffic and divert it to other places. So I guess it's referring to malware etc. It doesn't say CJ stole or misquoted traffic stats.

I didnt explain myself fully so Ive edited my post.
Theres now rumours (which may well prove sustantiated) that there is another cal in the pipepline for publisher commissions being shaved - this will if undertaken be a separate class action lawsuit

the action I mentioned above may just be the thin end of the wedge

 

[NetworkMsia]

Next up... Google AdSense...

LOL! good one!

 

[cyberbulk]

... It makes you wonder if that is the reason Ebay left to start their own network.

Interestingly, I ran into this recently over at Shoemoney posted March 17th:

##########
eBay Affiliate Program FINALLY Drops the CJ Dead Weight

"When we won eBay’s developer of the year award for 2007 (last year) for AuctionAds at the eBay Live! / Developers conference we were given the opportunity to have lunch with President of eBay U.S. John Donahue. While at lunch he asked me and dillsmack several questions about AuctionAds and the eBay Affiliate program. Somewhere in the conversation he asked me what was the 1 biggest thing they could do to improve the affiliate program? My answer: Drop commission junction asap. He inquired more and I gave him reason after reason as to why CJ was a really bad partner for them. From our bad experiences in tracking, reporting, signingup (we have horror storries that I dont even want to say) basically lets just say it was very difficult to work with them.

Anyway today on eBay’s afflilate site:

Today eBay unveiled the eBay Partner Network, a new global affiliate program for publishers driving traffic to eBay. Officially launching on April 1st, 2008, the eBay Partner Network will be eBay’s new in-house affiliate network, designed to more fully align the programs across eBay’s global properties and give affiliates expanded access to revenue opportunities across its platforms.

Since 2001 eBay has enabled affiliates and Web site publishers to be paid for all traffic driven to eBay. With one of the most competitive payouts in the industry and one of the broadest and deepest product selections available to affiliates, the eBay Partner Network will continue to help eBay extend the reach of its platforms to the edges of the Web. The new in-house program will allow eBay to more closely align the program with the needs of its publishers and the eBay Community, and will eventually engage all of eBay’s assets to create one of the most robust affiliate networks in existence.

The washington post also has a big write-up on it here in which they talk to our friend Matt Ackley.

I think everyone who has been doing eBay affiliate stuff has seen this coming for a long time. I was still surprised to see it finally happen though. But honestly it was time. Good call eBay!"
##########

I joined immediately.

 

[msn]

It is a really lousy settlement - the pool only has $1 million in it, and a portion of that will be used to cover costs. Any costs not spent will be in part given back to CJ! I am owed a few thousand dollars by CJ from a while back, so I do not expect much.

 

[MobileDesigner]

my account was deactivated due to dormancy!?
Basically, we must agree that we dont join this class suit, then we can continue getting our money!?


// below is what i have to agree with to continue to use my account.
// if anyone has a similar situation, do post here.

Please check that you have read the Publisher Service Agreement. 
  
Our records indicate that your account has been deactivated. 

 If you feel that you have reached this message in error, try logging in again on the login page.
Your account has been deactivated within the system due to dormancy. Our records indicate that your account is eligible for reactivation. In order to continue using your Commission Junction publisher account, you must reactivate your account with the following form.  
"*" denotes required fields.  
Service Agreement 
  Read Through & Click Accept at the bottom of the document below  
 


 [COLOR="RoyalBlue"]Commission Junction Publisher Service Agreement

Introduction

This Publisher Service Agreement ("Agreement") is made by and agreed to between Commission Junction, Inc., a Delaware corporation, located at 530 East Montecito Street, Santa Barbara, CA 93103, USA ("CJ"), and you ("You"). As an application service provider, CJ facilitates "Performance Marketing Programs" by providing services ("Network Service") via the Internet. A "Performance Marketing Program" ("Program") is where a person, entity, affiliate or its agent, operating "Web site(s)" (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another's Web site or Web site content ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent) through an Internet connection ("Link") to a Web site or Web site content operated by another person or entity ("Advertiser") from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.

1. Participation in Programs.

2. Publisher Obligations to CJ.

3. CJ's Services.

(f) Dormant Accounts. If Publisher's Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at CJ's then-current rate shall be applied to Publisher's Account each calendar month that Publisher's Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
(g) Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to CJ in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.

4. Proprietary Rights.


5. Confidentiality.


6. Term, Termination, Deactivation and Notices.

(c) Termination or Deactivation by CJ. CJ may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertiser's Program, at any time in CJ's sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser's Program and/or termination of this Agreement, and may result in Chargeback of one or more Payouts. CJ may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) CJ determines You are diluting, tarnishing or blurring CJ's proprietary rights; (v) You begin proceedings to challenge CJ's proprietary rights; or (vi) a third party (including a CJ Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
(d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
(e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for CJ, via registered mail, return receipt requested or via an internationally recognized express mail carrier to Commission Junction, Inc., Attn: Legal Dept., 530 East Montecito Street, Santa Barbara, CA 93103 USA (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as CJ does not receive an error message regarding delivery of the email) or five (5) days after mailing).
(f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by CJ to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to CJ within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.

7. Representations, Warranties, Disclaimers and Limitations.
(a) Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. CJ may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party's, a CJ Advertiser's, or CJ's, proprietary rights; and (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by You and all of Your promotional methods. CJ may or may not review all content on Your Web site or used by You in Your promotional methods.
(d) Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render CJ liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF CJ UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY CJ UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT CJ SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CJ DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT CJ'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. CJ IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.

8. Publisher's Indemnification Obligations. 

9. Miscellaneous.
(a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
(b) Third Party Disputes. In the event of a third party claim against either: (a) CJ's intellectual property; or (b) against CJ's right to offer any service or good on CJ's Web site(s) or if, in CJ's opinion, such a claim is likely, CJ shall have the right, at its sole option and in its sole discretion, to (i) secure the right at CJ's expense to continue using the intellectual property or good or service; or (ii) at CJ's expense replace or modify the same to make it non-infringing or without misappropriation.
(c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
(d) Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. CJ controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
(e) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
(f) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
(g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by CJ (1) due to operation of law, or (2) to an entity that acquires substantially all of CJ's stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. CJ may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
(h) Marketing. Publisher agrees that CJ may identify it as a CJ Publisher in client lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein shall require Publisher's prior written consent.
(i) Tax Status and Obligations. 
(j) Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, CJ shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. [B]Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement. [/B]

 
[/COLOR]

 

[south]

my account was deactivated due to dormancy!?
Basically, we must agree that we dont join this class suit, then we can continue getting our money!?

Whoa! I better go check those hundreds of emails I never read

 

[FuseFX]

Your account becomes dormant if you don't make any commission for certain amount of time. If you have balance in your account, they deduct $10 from it to keep your account active -- yeah the dirty bastards I know.

@#2 -- I think you are already part of the class if you have made any commission between the dates specified above and they will automatically apply credit to your account.

But yea -- the reality is that every affiliate network shaves. My friend who runs the affiliate network Ads4Dough.com wrote network's side of opinion on his blog.

 

[HuntingMoon]

Not every affiliate network shaves.

 

[Biggie]

got my postcard notice today that i may be part of a class action suit involving CJ.

i got plenty of suits, but no class action one's