Surprised customers routinely demanded an end to auto-ship, and they wanted refunds. In late 2003, Warshak told his staff to remove the company's return shipping address from the label on its own products. "Let's make them call—work some deals," he said, telling call-center staff to convince unhappy customers to accept other "nutraceuticals" in lieu of cash refunds or credit.
“I have personally recommended this to men and I have received lots of great feedback regarding its long(er) term use. It’s a hydropump, so it works by using water when you’re in the shower or bathtub. To fully understand this, it’s important to know that the penis has three soft chambers, the corpora cavernosa (two large one’s on the top of the penis) and the Carpus Spongiosum (a smaller one on the bottom of the two). When these two fill with blood, you get an erection. What Bathmate or a penis pump can do is expand these chambers, thereby allowing more blood to fill in."
As for the government's negative spin on Berkeley's business practices — well, this was merely normal corporate behavior, went the defense argument. "Negotiating with customers to try to save sales, implementing strategies to recover credit card transactions that were declined, and continuously revising corporate polices regarding refund and guarantee programs—all of which the government sought to criminalize—are standard American business practices," wrote Warshak's lawyers.
Warshak appealed his 2008 conviction to the Sixth Circuit Court of Appeals, saying that "the issue of whether the government's secret ex parte [one-sided] acquisition of private e-mails without the consent of either the sender or recipient, without a showing of probable cause, without a warrant, and without limits on the scope of the privacy invasion authorized is one of grave importance in an age where e-mail communications have largely replaced letters as the universal means of written communication and have made substantial inroads on the use of the telephone."
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