Oral arguments in the Performance Marketing Association’s lawsuit were heard Wednesday (May 22nd) in Springfield, IL. If you are an Affiliate Marketer, you need to listen to this. The video can be found at the bottom of this post.
UPDATE: We won! This law was found invalid by the Illinois Supreme Court.
Here are some highlights
- The State barely gets 20 seconds into their argument before the Court challenges and points out a fatal flaw in their argument.
- At the 43 (43:47 to be specific) to 45 minute mark, I believe that the State attempts to make an argument that should immediately disqualify them. Listen to how the State describes that the pure presence of a “commission” as form of payment for a “referral” proves that Affiliates MUST be doing something MORE than linking from a website. Following that logic train, the State could also conclude that all Affiliate Marketers must also be from Mars and enjoy playing tennis. The argument is literally that the State can ANTICIPATE that an Affiliate is doing MORE than simply linking from a website due to the commission being the form of payment. This argument is so far-reaching and logically flawed that it is difficult to listen to. A law, written in the way that they wrote it, simply can’t ANTICIPATE actions and ASSUME that they must constitute some form of nexus. The law states only that a referral utilizing a website must take place… This is the moment where you will most realize the flaw in the State’s argument. If you want to hear this more eloquently explained, listen to the Performance Marketing Association’s argument at minute 23:50 – 25+.
- Listen carefully to minute 45:30 onward, as the State attempts what they word as their “best closing argument”. The State argues that “bringing the plaintiffs products to the attention of buyers and are presenting them with a means to order, pay for, and receive delivery of those products”. The problem, of course, with this argument is that is not at all what Affiliate Marketers do.
- At minute 21:24, counsel for the Performance Marketing Association begins his arguments, and I would recommend that everybody involved in our industry listen carefully to his approximate 20 minutes of oral argument. If you have not yet contributed to the Performance Marketing Association’s “Fairness Fund” – I encourage you to listen to our arguments in full and chip-in. If you have already chipped in, I encourage you to do it again. Listen to the arguments, listen to the quality of our representation, and please… help us out.