ASD Says Funds Seizure 'Disproportionate' To Offenses Alleged; Makes Constitutional Challenge
Monday, September 29, 2008
Breaking News . . .
AdSurfDaily Inc. has filed legal papers in U.S. District Court in Washington, D.C., saying the government's seizure of funds was constitutionally excessive . . .
"The Government has thus far been unwilling to agree to a court-monitored compliance plan that would allow ASD to continue doing business while this civil forfeiture litigation proceeds," ASD's lawyers said.
"In other words, the Government believes that all of the seized $53 million should be forfeited and that none of the funds should be returned now, pursuant to a compliance plan with a monitor and oversight measures. Under these circumstances, the Court should consider whether the Government's seizure is constitutionally excessive."
ASD filed the petition "to place the proportionality factor before the Court as a significant consideration in the emergency hearing," scheduled for tomorrow and Tuesday.
The hearing was scheduled to determine whether ASD's seized assets could be unfrozen and the company could return to business under court supervision.
Previously, the government argued that nothing was preventing ASD from going about the business of selling ads and the the seized funds should remain frozen because they might not be available for trial if released before the civil trial was conducted.
Today's arguments by ASD's attorneys assert ASD is entitled to relief, even if that relief is somewhere in the middle.
"The Government suggests that there is no legal basis to support the return of any seized funds and that . . . 983(f) does not authorize an 'immediate release' of property on the grounds that ASD is not a 'legitimate business. . . .
"The relief sought by ASD is not precluded by law," ASD's attorneys continued. "The relief is entirely consistent with law, reason, and due process, as already set forth in ASD's Emergency Motion. . . .
"Moreover, under []983(g), the court is obligated to compare the forfeiture to the 'gravity of the offense' giving rise to the forfeiture," the attorneys said. "The Government's seizure of more than $53 million in ASD's bank accounts is grossly disproportionate to the alleged offense and is therefore violative of the Excessive Fines Clause of the Eighth Amendment to the United States Constitution."
Setting The Stage For Members' Testimony About The Value Of ASD Advertising
In today's court filings, ASD's attorneys argued that the government has made sweeping assertions that the company intends to prove are untrue:
"The Government, for obvious tactical reasons, has broadly alleged that members were not
interested in the advertising benefits of ASD," the attorneys said.
"The Complaint alleges . . . that 'most of the so-called advertisers are not paying ASD for advertising services at all; instead they are paying ASD with the expectation that ASD will provide a full rebate and additional revenue.'
"As explained in ASD's Emergency Motion, the Affidavit and Verified Complaint filed by the
Government in this case is replete with misstatements, omissions, nebulous and conclusory
allegations and baseless hyperbole," the attorneys said.
"More importantly, the Government misrepresents the extent to which members were not interested in the advertising benefits and otherwise overstates the gravity of the alleged offense," the attorneys said.
"The Government hasn't alleged, and certainly cannot prove, that every single dollar of the amount seized is from a member not interested in promoting products or services on the internet," the attorneys continued.
"As we've pointed out, many members benefited from the advertising. We again point the Court to the 1,250 emails mentioned in [ASD expert witness] Mr. Gerry Nehra's declaration attached to ASD's Emergency Motion illustrating the bona fide nature of the business. To date, ASD has received more than 3,500 supportive e-mails from its members."
In conclusion, the attorneys asked Judge Rosemary Collyer to declare the full seizure excessive and to free up funds on Constitutional grounds.
"As established by Mr. Nehra's declaration and is will be further demonstrated at the hearing, ASD is a legitimate internet adverting company, and not an illegal Ponzi scheme. Thus, the Government's seizure and forfeiture demand -- of the full $53 million -- is grossly disproportionate to the alleged offense.
"The Court cannot permit this," the attorneys concluded. "Instead, it should order the return of a portion of the seized funds in an amount sufficient to eliminate the disproportionality."
Labels: Ad Surf Daily forfeiture, Ad Surf Daily motions, ASD Constitutionality, ASD legal filings
posted by Patrick Pretty @ 10:20 AM,
