TRENTON, NJ – Naked Rhino Media (NR), the owner and operator of the XclusiveCash affiliate program, has filed a lawsuit against Too Much Media (TMM), maker of NATS affiliate tracking software, and TMM owner John Albright, alleging breach of contract and defamation.Alleging that the defendants “intentionally and recklessly issued a false and misleading statement on the largest most recognized online adult entertainment-related message board in the adult industry,” NR is seeking $5,000,000 plus costs and fees from TMM.
The lawsuit stems from an announcement made on the GoFuckYourself.com (GFY) adult webmaster forum, in which GFY user “PBucksJohn,” referred to in the lawsuit as “the known online moniker for Defendant ALBRIGHT,” reported that TMM had suspended the NATS account of NR, due to a “discrepancy” in rebill reporting.
The original post on GFY was worded as follows:
“This is a notification that Too Much Media, makers of NATS affiliate system, have been forced to temporarily suspend the NATS license belonging to N.R. Media, owners and operators of XclusiveCash.com
There was a discrepancy between the number of rebills reported to the NATS system from the rebills reported by CCBill. Upon attempting to rectify the situation with executives of N.R. media Too Much Media was met with full resistance and profanity as well as an abruptly terminated phone call.
At which point N.R. media agrees to fully repopulate the CCBill rebill data to represent the correct figures Too Much Media will reinstate the NATS license.
The suspension of the NATS license will not affect ongoing affiliate sales. It will only disable the administration area of NATS so that the program is rendered unusable until the situation is sorted out.”
No reply has been made by TMM in response to YNOT’s requests by phone and email today for comment on the case.
In a phone interview Friday, Albert Zakarian, the attorney representing NR in the lawsuit, expressed confidence to YNOT as to the case’s merits, saying that he felt he had in fact “over-pled” his client’s case in the complaint, delving into greater detail than was arguably required in the initial filing.
“In many defamation cases, the easy part is to show that a statement was made in public, and the hard part is to show actual harm,” Zakarian said. “In this case, people posting on the [GFY and other message board] threads demonstrate quite clearly the harm done here.”
Although the statement posted by “PBucksJohn” does not directly make use of the word “shave” or “shaving,” Zakarian argued that responses from other GFY users and those that commented on other adult industry message boards demonstrate that people understood that shaving was implied, and “TMM had to know that’s how people would read their announcement.”
With each new response posted in ostensible “support” of TMM, Zakarian said, “I was like ‘thank you for proving my point.’ Naked Rhino’s reputation has clearly been damaged, and the damage continues to mount as the threads live on.”
Zakarian also asserted that the breach of contract claim made in the lawsuit can be demonstrated, as well, despite the apparent lack of written contract between NR and TMM governing the use of the NATS software by NR.
“A court will enforce an oral or implied contract based on the actions of the parties involved,” Zakarian said. “The court will review evidence as to the intent and expectations, and rule accordingly.”
Zakarian could not say definitively that no written contract between NR and TMM exists, only that it is his understanding that both parties have said no written contract exists to the best of their recollection and that both parties have been unable to produce such a contract, if it does exist.
“If a written contract does show up, great,” Zakarian said, adding that the introduction of such a contract would only serve to clarify the situation, and “make our case that much stronger.”
YNOT has not yet determined whether TMM has retained counsel for the purpose of defending against NR’s claims, or who such counsel is, if so retained. YNOT also has not confirmed that TMM actually has been served with the complaint at this time.
