Item
1. Business
Company
Overview
j2 Global
Communications, Inc. (“j2 Global”, “our”, “us” or “we”) is a Delaware
corporation founded in 1995. By leveraging the power of the Internet, we provide
outsourced, value-added messaging and communications services to individuals and
businesses throughout the world. We offer fax, voicemail, email and call
handling services and bundled suites of certain of these services. We market our
services principally under the brand names
eFax
®
,
eFax Corporate
®
,
Onebox
®
,
eVoice
®
and
Electric Mail
®
.
We
deliver many of our services through our global telephony/Internet Protocol
(“IP”) network, which spans more than 3,500 cities in 46 countries across six
continents. We have created this network, and continuously seek to expand it,
through negotiation with U.S. and foreign telecommunications and co-location
providers for telephone numbers (also referred to as Direct Inward Dial numbers
or “DIDs”), Internet bandwidth and co-location space for our equipment. We
maintain and seek to grow an inventory of telephone numbers to be assigned to
new customers. Most of these numbers are “local” (as opposed to toll-free),
which enables us to provide our paying subscribers telephone numbers with a
geographic identity. In addition to growing our business internally, we have
used acquisitions to grow our customer base, enhance our technology and acquire
skilled personnel.
Our core
services include fax, voicemail, email and call handling, as well as bundled
suites of certain of these services. These are business services that make our
customers more efficient, more mobile, more cost-effective and more secure than
traditional alternatives. We generate substantially all of our revenue from
subscribers that pay, subscription and usage fees. Subscription fees are
referred to as “fixed” revenues, while usage fees are referred to as “variable”
revenues. We also generate revenues from patent licensing and sales, advertising
and revenue share from our customers’ use of premium rate telephone numbers. Of
the 11.2 million telephone numbers deployed as of December 31, 2009,
approximately 1.3 million were serving paying subscribers, with the balance
deployed to free subscribers, including those with premium rate telephone
numbers. We operate in one reportable segment: value-added messaging and
communications services, which provides for the delivery of fax, voice and email
messages and communications via the telephone and/or Internet
networks.
During
the past three years, we have derived a substantial portion of our revenues from
our DID-based services, including
eFax, Onebox,
and
eVoice
. As a result, we
believe that paying DIDs and the revenues associated therewith are an important
metric for understanding our business. It has been and continues to be our
objective to increase the number of paying DIDs through a variety of
distribution channels and marketing arrangements and by enhancing our brand
awareness. In addition, we seek to increase revenues through a combination of
stimulating use by our customers of usage-based services and introducing new
services.
We market
our services to a broad spectrum of prospective customers including individuals,
small to medium-sized businesses and large enterprises and government
organizations. Our marketing efforts include enhancing brand awareness;
utilizing online advertising through Internet portals, Internet service
providers (“ISPs”), search engines and affiliate programs; and selling through
both a telesales and direct sales force. Currently, we have seven primary
methods by which we acquire paying subscribers: (i) selling direct through our
Websites, targeting primarily individuals; (ii) attracting direct paying
individual subscribers through various Internet portals, ISPs, search engines
and affiliate programs; (iii) promoting our solutions to small to mid-sized
businesses through our Websites targeting corporate, enterprise and governmental
customers; (iv) converting a portion of our free base of customers to a paid
solution; (v) selling our solutions to large enterprises and governmental
organizations through our direct sales force and tradeshows; (vi) attracting
international individual and business customers through our international
Websites and direct sales force; and (vii) offering additional services to our
existing customers. We continuously seek to extend the number of distribution
channels through which we acquire paying customers and improve the cost and
volume of customers obtained through our current channels.
In
addition to growing our business organically, we have used acquisitions to grow
our customer base, enhance our technology and acquire skilled personnel. During
2009, we completed the acquisition of the digital faxing business and certain
intellectual property of CallWave, Inc., a provider of Internet unified
communications solutions, and the email business of Quexion, LLC. During 2008,
we completed four acquisitions: (a) fax assets of Mediaburst Limited, a UK-based
provider of messaging services, (b) all of the outstanding shares of Phone
People Holdings Corporation, a U.S.-based provider of voice messaging services,
(c) assets of Mailwise, LLP, a U.S.-based provider of email services, and (d)
assets of Mijanda, Inc., a U.S.-based provider of fax and voice services. During
2007, we completed two acquisitions: (a) assets of YAC Limited, a provider of
messaging services primarily in the United Kingdom, and (b) the RapidFAX digital
fax business of Easylink Services International Corporation.
Through a
combination of internal technology development and acquisitions, we have built a
patent portfolio consisting of multiple U.S. and foreign patents and numerous
pending U.S. and foreign patent applications. We generate licensing revenues
from some of these patents. We intend to continue to invest in patents, to
aggressively protect our patent assets from unauthorized use and to continue to
generate patent licensing revenues from authorized users. For more information
on our patents and other intellectual property, please refer to the section
entitled Patents and Proprietary Rights contained in Item 1 of this Annual
Report on Form 10-K.
Our
Solutions
We
believe businesses and individuals are increasingly outsourcing their
communication and messaging needs. Their goal is to reduce or eliminate costs
while also enhancing the security of transmissions and user efficiency. Our core
eFax
solution enables
users to receive faxes into their email inboxes. Our core
eVoice
and
Onebox
solutions provide
customers a virtual receptionist with various available enhancements. These
services represent more efficient and less expensive solutions than many
existing alternatives, and provide for increased security, privacy and message
handling flexibility (e.g., the ability to store messages electronically and
forward them by simply forwarding an email).
We
currently offer integrated solutions designed to replace or augment individual
and corporate messaging and communication services. We tailor our solutions to
satisfy the differing needs of our customers. Our paid services allow a
subscriber to select a local telephone number from among more than 3,500 cities
around the world. Toll-free U.S. and Canadian telephone numbers are also
available, as are premium rate numbers in various countries in Western Europe.
In addition, our services enhance the ability of businesses to provide messaging
services to their remote workforces, increase their level of information
security and control and allocate costs more effectively.
We offer
the following services and solutions:
Fax
eFax
offers desktop faxing
services. Various tiers of service provide increasing levels of features and
functionality. Our
eFax
Plus
®
and
eFax Pro
TM
services allow a subscriber to choose either a toll-free telephone number that
covers both the U.S. and Canada or a local telephone number from among more than
3,500 cities worldwide. This service level enables subscribers to receive
inbound fax messages in their email inboxes, access these messages via a
full-featured Web-based email interface and send digital documents to any fax
number in the world directly from their desktops. This service offering is also
localized in many international currencies and the following languages,
including Chinese (Cantonese), Dutch, French, German, Italian, Polish,
Portuguese and Spanish, among others.
eFax Corporate
offers
capabilities similar to those offered by
eFax Plus
and
eFax Pro
, but with added
features and tools geared towards enterprises and their users. For example, we
provide our corporate customers a Web browser-based account administration
interface, which enables them to provision telephone numbers to employees, as
needed, without contacting our account representatives.
eFax Corporate
also offers
the option of enhanced security features, which are particularly attractive to
law firms and companies in regulated industries such as banking, brokerage and
healthcare.
eFax Developer
TM
offers high-volume, production fax solutions. Designed for quick and simple
integration with application environments,
eFax Developer
provides
inbound and outbound fax services through a secure XML interface. Enhanced
features such as bar-code recognition, dynamic retries and high speed
transmission are included and accessible 24/7/365. Robust fax capabilities can
easily be implemented through simple software development kits or through a
universal web post solution.
eFax Developer
provides the
scaling power of an outside fax service with the flexibility of an internal
server without requiring additional equipment, supplies or
expertise.
eFax Broadcast
TM
and
jBlast
®
offer
cost-effective solutions for high-volume outbound faxing. These services enable
users to send important documents simultaneously to hundreds or thousands of
recipients anywhere in the world. Customers do not need special computer
equipment, expensive fax boards or multiple phone lines. These services also
enable customers to accurately monitor the status of their faxes and update
their database of “Do Not Fax” names and undeliverable fax numbers.
We have
alternative desktop faxing solutions that are offered under a variety of brands
and pricing plans geared primarily toward the individual or small business
user. We also offer limited versions of certain services on a free
basis.
Voice
eVoice Receptionist
TM
and
Onebox
Receptionist
TM
are virtual PBX
solutions that provide small and medium-sized businesses on-demand voice
communications services, featuring a toll-free or local company telephone
number, a professionally-produced auto-attendant and menu tree. With these
services, a subscriber can assign departmental and individual extensions that
can connect to multiple U.S. or Canadian telephone numbers, including
traditional land-line telephones as well as mobile and IP networks, and can
enhance reachability through “find me/follow me” capabilities. These services
also include advanced integrated voicemail for each extension, effectively
unifying mobile, office and other separate voicemail services and improving
efficiency by delivering voicemails in both native audio format and as
transcribed text.
Onebox
®
is a full-featured
suite of unified communications services, including email, voicemail, fax and
“find me/follow me” capabilities.
Onebox Unified Messaging
provides the subscriber a unique toll-free or local number and enables him or
her to receive voicemail messages or faxes via email or access them by
telephone; to send, receive or reply to faxes or voicemail messages online or by
telephone; and to store faxes and email messages online.
Email
Electric Mail
®
is an
outsourced hosted email service that we offer to businesses.
Electric Mail
develops and
delivers email and related solutions that are hosted offsite and seamlessly
integrate into a customer’s existing email system. The services include
Electric WebMail
TM
, E-mmunity
TM
virus scanning,
SpamSMART
TM
SPAM
filtering, and
VaultSMART
TM
/
PolicySMART
TM
archiving which delivers a secure, scalable email archiving and customizable
compliance tools to correspond with a company’s retention policy.
Global
Network and Operations
We have
multiple physical Points of Presence (“POPs”) worldwide, a central data center
in Los Angeles and a remote disaster recovery facility. We connect our POPs to
our central data centers via redundant, and often times diverse, Virtual Private
Networks (“VPNs”) using the Internet. Our network is designed to deliver
value-added user applications, customer support, billing and a local presence
for our customers from among more than 3,500 cities in 46 countries on six
continents. Our network covers all major metropolitan areas in the U.S., U.K.
and Canada, and such other major cities as Berlin, Hong Kong, Madrid, Manila,
Mexico City, Milan, Paris, Rome, Singapore, Sydney, Taipei, Tokyo and Zurich.
For financial information about geographic areas, see Note 14 of the Notes to
Consolidated Financial Statements included elsewhere in this Annual Report on
Form 10-K.
We obtain
telephone numbers from various local carriers throughout the U.S. and
internationally. Our ability to continue to acquire additional telephone
numbers in desired locations in the future will depend on our relationships with
our local carriers, our ability to pay market prices for such telephone numbers,
our ability to secure telephone numbers from among growing number of alternate
providers and the regulatory environment. Please refer to the sections entitled
Government Regulation and Risk Factors contained in Item 1 and 1A, respectively,
of this Annual Report on Form 10-K.
Customer
Support Services
Our
Customer Service organization provides support to our customers through a
combination of online self-help, email messages, interactive chat sessions and
telephone calls. Our Internet-based online self-help tools enable customers to
resolve simple issues on their own, eliminating the need to speak or write to
our customer service representatives. We use internal personnel and contracted
third parties (on a dedicated personnel basis) to answer our customer emails and
telephone calls and to participate in interactive chat sessions.
We
provide email support seven days per week, 24 hours per day to all subscribers.
Paying subscribers have access to live-operator telephone support seven days per
week, 24 hours per day. Dedicated telephone support is provided for Corporate
customers 24 hours per day, seven days per week.
Competition
Competition
in the outsourced, value-added messaging and communications space is fierce and
continues to intensify. We face competition from, among others, fax-to-email
providers, broadcast fax companies, traditional fax machine or multi-function
printer companies, unified messaging/communications providers, telephone
companies, voicemail providers, companies offering PBX systems and outsourced
PBX solutions and email providers. We believe that the primary competitive
factors determining success in the market for value-added messaging and
communications services include financial strengths and stability, pricing,
reputation for reliability and security of service, intellectual property
ownership, effectiveness of customer support, service and software ease-of-use,
service scalability, customer messaging and branding, geographic coverage, scope
of services and local language sales, messaging and support.
Our most
popular solutions relate to faxing, including the ability to deliver faxes to
our customers via email and our outbound desktop faxing capabilities. These
solutions compete primarily against traditional fax machine manufacturers, which
are generally large and well established companies, providers of fax servers and
related software, such as Open Text Corporation as well as publicly traded and
privately-held application service providers, such as Premiere Global Services,
Inc. and Easylink Services International Corporation. Some of these companies
may have greater financial and other resources than we do. For more information
regarding the competition that we face, please refer to the section entitled
Risk Factors contained in Item 1A of this Annual Report on Form
10-K.
Patents
and Proprietary Rights
We regard
the protection of our intellectual property rights as important to our success.
We aggressively protect these rights by relying on a combination of patents,
trademarks, copyrights, trade dress and trade secret laws and by using the
domain name dispute resolution system. We also enter into confidentiality and
invention assignment agreements with employees and contractors, and
nondisclosure agreements with parties with whom we conduct business in order to
limit access to and disclosure of our proprietary information.
We have a
portfolio of multiple U.S. and foreign patents and have numerous pending U.S.
and foreign patent applications, all covering components of our technology and
in some cases technologies beyond those that we currently offer. Three of our
core U.S. patents have been reaffirmed through reexamination proceedings with
the United States Patent and Trademark Office. We seek patents for inventions
that contribute to our business and technology strategy. We have obtained patent
licenses for certain technologies where such licenses are necessary or
advantageous. Unless and until patents are issued on the pending applications,
no patent rights on those applications can be enforced.
Over the
past five years we have generated royalties from licensing certain of our
patents and have enforced these patents against companies using our patented
technology without our permission. We have pending patent infringement lawsuits
against several companies. In each case, we are seeking at least a reasonable
royalty for the infringement of the patent(s) in suit, a permanent injunction
against continued infringement and attorneys’ fees, interest and
costs.
We own
and use a number of trademarks in connection with our products and services,
including eFax and the eFax logo, eFax Corporate and the eFax Corporate logo,
eVoice and the eVoice logo, Onebox and the Onebox logo and Electric Mail and the
Electric Mail logo, among others. Many of these trademarks are registered in the
U.S. and other countries, and numerous trademark applications are pending in the
U.S. and several non-U.S. jurisdictions. We hold numerous Internet domain names,
including “efax.com”, “jconnect.com”, “fax.com”, “j2.com”, “j2global.com”,
“onebox.com”, “electricmail.com”, “efaxcorporate.com” and “evoice.com”, among
others. We have in place an active program to continue securing “eFax” and other
domain names in non-U.S. jurisdictions. We have filed to protect our rights
to the “eFax” and other names in certain alternative top-level domains such as
“.org”, “.net“, “.biz”, “.info” and “.us”, among others.
Like
other technology-based businesses, we face the risk that we will be unable to
protect our intellectual property and other proprietary rights, and the risk
that we will be found to have infringed the proprietary rights of others. For
more information regarding these risks, please refer to the section entitled
Risk Factors contained in Item 1A of this Annual Report on Form
10-K.
Government
Regulation
We are
subject to a number of foreign and domestic laws and regulations that affect
companies conducting business related to the Internet and telecommunications,
including, among others, those addressing privacy, data protection, indecency,
obscenity, defamation, libel, pricing, taxation, telephone numbers, advertising,
intellectual property and technological convergence. We face risks from proposed
legislation or new interpretations of existing legislation that could occur in
the future, and as Internet services and telecommunications services converge or
the services we offer expand, we may face increased domestic or foreign
regulation in areas such as delivery of broadband services, inter-carrier
compensation and continued regulation of competition.
Some of
our service providers are subject to regulation by the U.S. Federal
Communications Commission (“FCC”), state public utility commissions and foreign
governmental authorities. However, as an Internet messaging services provider,
we generally are not subject to direct regulation by any governmental agency in
the U.S., other than regulations applicable to businesses generally. This is not
the case in some international locations.
Continued
regulation arising from telephone number administration may also make it more
difficult for us to obtain necessary numbering resources. For example, several
years ago the FCC conditionally granted requests by California and Connecticut
to adopt special area codes for unified messaging. Although neither State has
implemented such area codes, if they or other states do so our ability to
compete in those states could be adversely affected. Similar regulation has
occurred internationally (e.g., Germany prohibits issuing a local telephone
number to anyone without a physical presence in the area) and may continue to be
enacted in additional locations in the future. As a user of toll-free
numbers and an organization that requests such numbers from the national numbers
database, we are subject to the FCC's rules regarding warehousing,
hoarding, and porting of toll-free numbers. Failure to comply with
such rules could result in substantial fines and penalties.
In
addition, Congress and the FCC are reviewing legislation and regulations related
to the Universal Service Fund (“USF”), which subsidizes the U.S.
telecommunications system. Congress and the FCC are considering altering the
formula by which entities contribute to the USF. If adopted, one proposal to
implement a flat-fee per phone number methodology could alter or eliminate the
provision of our non-paid (free advertising-supported) services and could cause
us to raise the price of our paid services. Other changes to the USF may also
increase our costs and impact our operations.
The FCC
is authorized to take enforcement action against companies that send so-called
“junk faxes” and has held numerous fax broadcasters liable for violating the
Telephone Consumer Protection Act of 1991 (“TCPA”), the Junk Fax Prevention Act
of 2005 (“Junk Fax Act”) and related FCC rules. Entities that merely transmit
facsimile messages on behalf of others may face FCC inquiry and enforcement,
civil litigation or private causes of action if they have a high degree of
involvement in transmitting junk faxes or have actual notice of illegal junk fax
transmissions and failed to take steps to prevent such transmissions. We take
significant steps to ensure that our services are not used to transmit
unsolicited faxes on a large scale and we do not believe that we have a high
degree of involvement or notice of the use of our service to broadcast junk
faxes. We are currently involved in litigation involving alleged violations of
the TCPA with Protus IP Solutions, Inc. For more information about this lawsuit,
see Item 3 of this Annual Report on Form 10-K entitled Legal
Proceedings.
We are
subject to a range of federal, state and foreign laws regarding privacy,
protection of user data, data breaches, and retention of certain data elements.
Any failure on our part to comply with these laws may subject us to significant
liabilities. Complying with these varying requirements could cause us to incur
additional costs and change our business practices. We also face risks due to
potential Internet neutrality laws and regulations as to the services and sites
that users can access through their broadband service providers.
Future
developments in laws that govern online activities might inhibit the growth of
the Internet, impose taxes, mandate costly technical requirements, create
uncertainty in the market or otherwise have an adverse effect on the Internet.
These developments could, in turn, have a material adverse effect on our
business, prospects, financial condition and results of operations.
Seasonality
and Backlog
Our
subscriber revenues are impacted by the number of effective business days in a
given period. We experience no material backlog in sales orders or the
provisioning of customer orders. We traditionally experience lower than average
usage and customer sign-ups in the fourth quarter.
Research
and Development
The
markets for our services are evolving rapidly, requiring ongoing expenditures
for research and development and timely introduction of new services and service
enhancements. Our future success will depend, in part, on our ability to enhance
our current services, to respond effectively to technological changes, to sell
additional services to our existing customer base and to introduce new services
and technologies that address the increasingly sophisticated needs of our
customers.
We devote
significant resources to develop new services and service enhancements. Our
research, development and engineering expenditures were $11.7 million, $12.0
million and $11.8 million for the fiscal years ended December 31, 2009, 2008 and
2007, respectively. For more information regarding the technological risks that
we face, please refer to the section entitled Risk Factors contained in Item 1A
of this Annual Report on Form 10-K.
Employees
As of
December 31, 2009, we had approximately 400 employees, the majority of whom are
in the U.S.
Our
future success will depend, in part, on our ability to continue to attract,
retain and motivate highly qualified technical, marketing and management
personnel. Our employees are not represented by any collective bargaining unit
or agreement. We have never experienced a work stoppage. We believe our
relationship with our employees is good.
Web
Availability of Reports
Our
corporate information Website is www.j2global.com. The information on our
Website is not part of this Annual Report on Form 10-K. However, on the Investor
Relations portion of this Website the public can access free of charge our
annual, quarterly and current reports, changes in the stock ownership of our
directors and executive officers and other documents filed with the Securities
and Exchange Commission (“SEC”) as soon as reasonably practicable after the
filing dates. Further, the SEC maintains an Internet site that contains reports,
proxy and information statements and other information regarding our filings at
www.sec.gov.
Item
1A. Risk Factors
Before
deciding to invest in j2 Global or to maintain or increase your investment, you
should carefully consider the risks described below in addition to the other
cautionary statements and risks described elsewhere in this Annual Report on
Form 10-K and our other filings with the SEC, including our subsequent reports
on Forms 10-Q and 8-K. The risks and uncertainties described below are not the
only ones we face. Additional risks and uncertainties not presently known to us
or that we currently deem immaterial also may affect our business. If any of
these known or unknown risks or uncertainties actually occurs, our business,
prospects, financial condition, operating results and cash flows could be
materially adversely affected. In that event, the market price of our common
stock will likely decline and you may lose part or all of your
investment.
Risks
Related To Our Business
Weakness
in the financial markets and in the economy as a whole has adversely affected
and may continue to adversely affect segments of our customers, which has
resulted and may continue to result in decreased usage levels, customer
acquisitions and customer retention rates and, in turn, could lead to a decrease
in our revenues or rate of revenue growth.
Certain
segments of our customers - those whose business activity is tied to the health
of the credit markets and the broader economy, such as banks, brokerage firms
and those in the real estate industry - have been and may continue to be
adversely affected by the current weakness in the credit markets and in the
broader mortgage market and the general economy. To the extent our customers’
businesses have been adversely affected by these economic factors and their
usage levels of our services decline, we experienced and may continue to
experience a decrease in our average usage per subscriber and, therefore, a
decrease in our average variable revenue per subscriber. In addition,
continued weakness in the economy has adversely affected and may continue to
adversely affect our customer retention rates and the number of our new customer
acquisitions. These factors have adversely impacted, and may continue to
adversely impact, our revenues and profitability.
Increased
numbers of credit and debit card declines as a result of decreased availability
of credit and/or a weak economy which continues to experience heightened levels
of unemployment could lead to a decrease in our revenues or rate of revenue
growth.
A
significant number of our paid subscribers pay for their services through credit
and debit cards. Weakness in certain segments of the credit markets and in
the U.S. and global economies, which continue to experience heightened levels of
unemployment, has resulted in and may continue to result in increased numbers of
rejected credit and debit card payments. We believe this has resulted in and may
continue to result in increased customer cancellations and decreased customer
signups. This also has required and may continue to require us to increase
our reserves for doubtful accounts and write-offs of accounts
receivables. The foregoing may adversely impact our revenues and
profitability.
Our
financial results may be adversely impacted by higher-than-expected tax rates or
exposure to additional tax liabilities.
We are a
U.S.-based multinational company subject to tax in multiple U.S. and foreign tax
jurisdictions. Our provision for income taxes is based on a jurisdictional mix
of earnings, statutory rates and enacted tax rules, including transfer pricing.
Significant judgment is required in determining our provision for income taxes
and in evaluating our tax positions on a worldwide basis. It is possible that
these positions may be challenged or we may find tax-beneficial intercompany
transactions to be uneconomical, either of which may have a significant impact
on our effective tax rate.
A number
of factors affect our income tax rate and the combined effect of these factors
could result in an increase in our effective income tax rate. An increase in
future effective income tax rates would adversely affect net income in future
periods. We operate in different countries that have different income tax rates.
Effective tax rates could be adversely affected by earnings being lower than
anticipated in countries having lower statutory rates and higher than
anticipated in countries having higher statutory rates, by changes in the
valuation of deferred tax assets or liabilities or by changes in tax laws or
interpretations thereof.
A
substantial portion of our cash and investments are invested outside of the U.S.
We may be subject to incremental taxes upon repatriation of such funds to the
U.S.
We may be
subject to examination of our tax returns by the U.S. Internal Revenue Service
and other domestic and foreign tax authorities. We are currently under audit by
the Internal Revenue Service for tax years 2004 through 2008. In addition, we
are under audit by the California Franchise Tax Board for tax years 2005 through
2007 and by the Illinois Department of Revenue for 2005 and 2006. We are also
under audit by various other states for non-income related taxes. We
regularly assess the likelihood of adverse outcomes resulting from these
examinations to determine the adequacy of our income and other tax-related
reserves and expense. If our reserves are not sufficient to cover these
contingencies, such inadequacy could materially adversely affect our business,
prospects, financial condition, operating results and cash flows.
Our
growth will depend on our ability to develop our brands and market new brands,
and these efforts may be costly.
We
believe that continuing to strengthen our current brands and effectively launch
new brands will be critical to achieving widespread acceptance of our services,
and will require continued focus on active marketing efforts. The demand for and
cost of online and traditional advertising have been increasing and may continue
to increase. Accordingly, we may need to spend increasing amounts of money on,
and devote greater resources to, advertising, marketing and other efforts to
create and maintain brand loyalty among users. In addition, we are supporting an
increasing number of brands, each of which requires its own resources. Brand
promotion activities may not yield increased revenues, and even if they do, any
increased revenues may not offset the expenses incurred in building our brands.
If we fail to promote and maintain our brands, or if we incur substantial
expense in an unsuccessful attempt to promote and maintain our brands, our
business could be harmed.
If
our trademarks are not adequately protected or we are unable to protect our
domain names, our reputation and brand could be adversely affected.
Our
success depends, in part, on our ability to protect our trademarks. We rely on
some brands that use the letter “e” before a word, such as “eFax” and “eVoice”.
Some regulators and competitors have taken the view that the “e” is descriptive.
Others have claimed that these brands are generic when applied to the products
and services we offer. If we are unable to secure and protect trademark rights
to these or other brands, the value of these brands may be diminished,
competitors may be able to more effectively mimic our service and methods of
operations, the perception of our business and service to subscribers and
potential subscribers may become confused in the marketplace and our ability to
attract subscribers may be adversely affected.
We
currently hold various domain names relating to our brands, both in the U.S. and
internationally, including efax.com and various other international extensions,
evoice.com, fax.com, onebox.com and others. The acquisition and maintenance of
domain names generally are regulated by governmental agencies and their
designees. The regulation of domain names in the U.S. may change. Governing
bodies may establish additional top-level domains, appoint additional domain
name registrars or modify the requirements for holding domain names. As a
result, we may be unable to acquire or maintain relevant domain names in the
U.S. Furthermore, the relationship between regulations governing domain names
and laws protecting trademarks and similar proprietary rights in the U.S. is
unclear. Similarly, international rules governing the acquisition and
maintenance of domain names in foreign jurisdictions are sometimes different
from U.S. rules, and we may not be able to obtain all of our domains
internationally. As a result of these factors, we may be unable to prevent third
parties from acquiring domain names that are similar to, infringe upon or
otherwise decrease the value of our trademarks and other proprietary rights. In
addition, failure to protect our domain names domestically or internationally
could adversely affect our reputation and brands, and make it more difficult for
users to find our Websites and our services.
We
may be subject to risks from international operations.
As we
continue to expand our business operations in countries outside the U.S., our
future results could be materially adversely affected by a variety of
uncontrollable and changing factors including, among others, foreign currency
exchange rates; political or social unrest or economic instability in a specific
country or region; trade protection measures and other regulatory requirements
which may affect our ability to provide our services; difficulties in staffing
and managing international operations; and adverse tax consequences, including
imposition of withholding or other taxes on payments by subsidiaries and
affiliates. Any or all of these factors could have a material adverse impact on
our future business, prospects, financial condition, operating results and cash
flows.
We have
only limited experience in marketing and operating our services in certain
international markets. Moreover, we have in some cases experienced and expect to
continue to experience in some cases higher costs as a percentage of revenues in
connection with establishing and providing services in international markets
versus the U.S. In addition, certain international markets may be slower than
the U.S. in adopting the Internet and/or outsourced messaging and communications
solutions and so our operations in international markets may not develop at a
rate that supports our level of investments.
We
rely heavily on the revenue generated by our fax services.
Currently,
a substantial portion of the overall traffic on our network is fax related. Our
success is therefore dependent upon the continued use of fax as a messaging
medium and/or our ability to diversify our service offerings and derive more
revenue from other services, such as voice, email and unified messaging
solutions. If the demand for fax as a messaging medium decreases, and we are
unable to replace lost revenues from decreased usage of our fax services with a
proportional increase in our customer base or with revenues from our other
services, our business, financial condition, operating results and cash flows
could be materially and adversely affected.
We
believe that one of the attractions to fax versus alternatives, such as email,
is that fax signatures are a generally accepted method of executing contracts.
There are on-going efforts by governmental and non-governmental entities, many
of which possess greater resources than we do, to create a universally accepted
method for electronically signing documents. Widespread adoption of so-called
“digital signatures” could reduce demand for our fax services and, as a result,
could have a material adverse effect on our business, prospects, financial
condition, operating results and cash flows.
If
we experience excessive fraudulent activity or cannot meet evolving credit card
company merchant standards, we could incur substantial costs and lose the right
to accept credit cards for payment and our subscriber base could decrease
significantly.
A
significant number of our paid subscribers authorize us to bill their credit
card accounts directly for all service fees charged by us. If people use our
services using stolen credit cards, we could incur substantial third party
vendor costs for which we may not be reimbursed. We also incur losses
from claims that the customer did not authorize the credit card transaction to
purchase our service. If the numbers of unauthorized credit card transactions
become excessive, we could be assessed substantial fines for excess chargebacks
and we could lose the right to accept credit cards for payment. In addition,
credit card companies may change the merchant standards required to utilize
their services from time to time. If we are unable to meet these new standards,
we could be unable to accept credit cards. Substantial losses due to fraud or
our inability to accept credit card payments, which could cause our paid
subscriber base to significantly decrease, could have a material adverse effect
on our business, prospects, financial condition, operating results and cash
flows.
Our
business and users may be subject to sales tax and other
taxes.
The
application of indirect taxes (such as sales and use tax, value added tax
(“VAT”), goods and services tax, business tax and gross receipt tax) to
e-commerce businesses such as j2 Global and our users is a complex and evolving
issue. Many of the fundamental statutes and regulations that impose these taxes
were established before the growth of the Internet and e-commerce. In many
cases, it is not clear how existing statutes apply to the Internet or
e-commerce. In addition, some jurisdictions have implemented laws specifically
addressing the Internet or some aspect of e-commerce and several other proposals
have been made at the U.S. federal, state and local level that would impose
additional taxes on the sale of goods and services through the Internet. These
proposals, if adopted, could substantially impair the growth of e-commerce,
hamper our ability to retain and attract new customers and diminish our ability
to derive financial benefit from our activities. In November 2007, the
U.S. federal government enacted legislation extending the moratorium on
states and other local authorities imposing access or discriminatory taxes on
the Internet through November 2014. This moratorium does not prohibit federal,
state or local authorities from collecting taxes on our income or from
collecting taxes that are due under existing tax rules. The application of
existing, new or future laws could have adverse effects on our business,
prospects and operating results. There have been, and will continue to be,
substantial ongoing costs associated with complying with the various indirect
tax requirements in the numerous markets in which we conduct or will conduct
business.
A
system failure or security breach could delay or interrupt service to our
customers, harm our reputation or subject us to significant
liability.
Our
operations are dependent on our ability to protect our network from interruption
by damage from fire, earthquake, power loss, telecommunications failure,
unauthorized entry, computer viruses or other events beyond our control. There
can be no assurance that our existing and planned precautions of backup systems,
regular data backups, security protocols and other procedures will be adequate
to prevent significant damage, system failure or data loss. Also, despite the
implementation of security measures, our infrastructure may be vulnerable to
computer viruses, hackers or similar disruptive problems caused by our
subscribers, employees or other Internet users who attempt to invade public and
private data networks. Currently, a significant number of our users authorize us
to bill their credit or debit card accounts directly for all transaction fees
charged by us. We rely on encryption and authentication technology to effect
secure transmission of confidential information, including customer credit and
debit card numbers. Advances in computer capabilities, new discoveries in the
field of cryptography or other developments may result in a compromise or breach
of the technology used by us to protect transaction data. Any system
failure or security breach that causes interruptions or data loss in our
operations or in the computer systems of our customers or leads to the
misappropriation of our or our customers’ confidential information could result
in significant liability to us, cause considerable harm to us and our reputation
and deter current and potential customers from using our services. Any of these
events could have a material adverse effect on our business, prospects,
financial condition, operating results and cash flows.
Our
business is dependent on a small number of telecommunications carriers in each
region and our inability to maintain agreements at attractive rates with such
carriers may negatively impact our business.
Our
business substantially depends on the capacity, affordability, reliability and
security of our telecommunications networks. Only a small number of carriers in
each region, and in some cases only one carrier, offer the telephone number and
network services
we
require. Certain of our telecommunications services are provided pursuant to
short-term agreements that the providers can terminate or elect not to renew. As
a result, any or all of our current carriers could discontinue providing us with
service at rates acceptable to us, or at all, and we may not be able to obtain
adequate replacements, which could materially and adversely affect our business,
prospects, financial condition, operating results and cash flows.
The
successful operation of our business depends upon the supply of critical
elements and marketing relationships from other companies.
We depend
upon third parties for several critical elements of our business, including
various technology, infrastructure, customer service and marketing components.
We rely on private third-party providers for our Internet and telephony
connections and for co-location of a significant portion of our communications
servers. Any disruption in the services provided by any of these suppliers, or
any failure by them to handle current or higher volumes of activity, could have
a material adverse effect on our business, prospects, financial condition,
operating results and cash flows. To obtain new customers, we have marketing
agreements with operators of leading search engines and Websites. These
arrangements typically are not exclusive and do not extend over a significant
period of time. Failure to continue these relationships on terms that are
acceptable to us or to continue to create additional relationships could have a
material adverse effect on our business, prospects, financial condition,
operating results and cash flows.
Inadequate
intellectual property protections could prevent us from enforcing or defending
our proprietary technology.
Our
success depends in part upon our proprietary technology. We rely on a
combination of patents, trademarks, trade secrets, copyrights and contractual
restrictions to protect our proprietary technology. However, these measures
provide only limited protection, and we may not be able to detect unauthorized
use or take appropriate steps to enforce our intellectual property rights,
particularly in foreign countries where the laws may not protect our proprietary
rights as fully as in the U.S. While we have been issued a number of patents and
other patent applications are currently pending, there can be no assurance that
any of these patents will not be challenged, invalidated or circumvented, or
that any rights granted under these patents will in fact provide competitive
advantages to us.
In
addition, effective protection of patents, copyrights, trademarks, trade secrets
and other intellectual property may be unavailable or limited in some foreign
countries. As a result, we may not be able to effectively prevent competitors in
these regions from infringing our intellectual property rights, which could
reduce our competitive advantage and ability to compete in those regions and
negatively impact our business.
Companies
in the messaging industry have experienced substantial litigation regarding
intellectual property. Currently, we have pending patent infringement lawsuits,
both offensive and defensive, against several companies in this industry. This
or any other litigation to enforce our intellectual property rights may be
expensive and time-consuming, could divert management resources and may not be
adequate to protect our business.
We
may be found to have infringed the intellectual property rights of others, which
could expose us to substantial damages or restrict our operations.
We have
been and expect to continue to be subject to claims and legal proceedings that
we have infringed the intellectual property rights of others. The ready
availability of damages, royalties and the potential for injunctive relief has
increased the costs associated with the litigation and settlement of patent
infringement claims. In addition, we may be required to indemnify our resellers
and users for similar claims made against them. Any claims against us, whether
or not meritorious, could require us to spend significant time and money in
litigation, pay damages, develop new intellectual property or acquire licenses
to intellectual property that is the subject of the infringement claims. These
licenses, if required, may not be available at all or have acceptable terms. As
a result, intellectual property claims against us could have a material adverse
effect on our business, prospects, financial condition, operating results and
cash flows.
We
may be engaged in legal proceedings that could cause us to incur unforeseen
expenses and could occupy a significant amount of our management’s time and
attention.
From time
to time we are subject to litigation or claims, including in the areas of patent
infringement and anti-trust, that could negatively affect our business
operations and financial condition. Such disputes could cause us to incur
unforeseen expenses, occupy a significant amount of our management’s time and
attention and negatively affect our business operations and financial condition.
We are unable to predict the outcome of our currently pending cases. Some or all
of the amount we may be required to pay to defend or to satisfy a judgment or
settlement of any or all of these proceedings may not be covered by insurance.
Under indemnification agreements we have entered into with our current and
former officers and directors, we are required to indemnify them, and advance
expenses to them, in connection with their participation in proceedings arising
out of their service to us. These payments may be material. For a more detailed
description of the lawsuits in which we are involved, see Item 3. Legal
Proceedings.
The
markets in which we operate are highly competitive and our competitors may have
greater resources to commit to growth, superior technologies, cheaper pricing or
more effective marketing strategies.
For
information regarding our competition, and the risks arising out of the
competitive environment in which we operate, see the section entitled
Competition contained in Item 1 of this Annual Report on Form 10-K. In addition,
some of our competitors include major companies with much greater resources and
significantly larger subscriber bases than we have. Some of these competitors
offer their services at lower prices than we do. These companies may be able to
develop and expand their communications and network infrastructures more
quickly, adapt more swiftly to new or emerging technologies and changes in
customer requirements, take advantage of acquisition and other opportunities
more readily and devote greater resources to the marketing and sale of their
products and services than we can. There can be no assurance that additional
competitors will not enter markets that we are currently serving and plan to
serve or that we will be able to compete effectively. Competitive pressures may
reduce our revenue, operating profits or both.
Our
business is highly dependent on our billing systems.
A
significant part of our revenues depends on prompt and accurate billing
processes. Customer billing is a highly complex process, and our billing systems
must efficiently interface with third-party systems, such as those of credit
card processing companies. Our ability to accurately and efficiently bill our
subscribers is dependent on the successful operation of our billing systems and
the third-party systems upon which we rely, such as our credit card processor,
and our ability to provide these third parties the information required to
process transactions. In addition, our ability to offer new paid services or
alternative-billing plans is dependent on our ability to customize our billing
systems. We are in the process of upgrading our current billing systems to meet
the needs of our growing subscriber base. Any failures or errors in our billing
systems or procedures or resulting from any upgrades to our billing systems or
procedures could impair our ability to properly bill our current customers or
attract and service new customers, and thereby could materially and adversely
affect our business and financial results.
Future
acquisitions could result in dilution, operating difficulties and other harmful
consequences.
We may
acquire or invest in additional businesses, products, services and technologies
that complement or augment our service offerings and customer base. We cannot
assure you that we will successfully identify suitable acquisition candidates,
integrate disparate technologies and corporate cultures and manage a
geographically dispersed company. Acquisitions could divert attention from other
business concerns and could expose us to unforeseen liabilities. In addition, we
may lose key employees while integrating any new companies. We may pay for some
acquisitions by issuing additional common stock, which would dilute current
stockholders. We may also use cash to make acquisitions. We will be required to
review goodwill and other intangible assets for impairment in connection with
past and future acquisitions, which may materially increase operating expenses
if an impairment issue is identified.
Our
success depends on our retention of our executive officers, senior management
and our ability to hire and retain key personnel.
Our
success depends on the skills, experience and performance of executive officers,
senior management and other key personnel. The loss of the services of one or
more of our executive officers, senior managers or other key employees could
have a material adverse effect on our business, prospects, financial condition,
operating results and cash flows. Our future success also depends on our
continuing ability to attract, integrate and retain highly qualified technical,
sales and managerial personnel. Competition for these people is intense, and
there can be no assurance that we can retain our key employees or that we can
attract, assimilate or retain other highly qualified technical, sales and
managerial personnel in the future.
As
we continue to grow our international operations, adverse currency fluctuations
and foreign exchange controls could have a material adverse effect on our
balance sheet and results of operations.
As we
expand our international operations, we could be exposed to significant risks of
currency fluctuations. In some countries outside the U.S., we already offer our
services in the applicable local currency, including but not limited to the
Canadian Dollar, the Euro and the British Pound Sterling. As a result,
fluctuations in foreign currency exchange rates affect the results of our
operations, which in turn may materially adversely affect reported earnings and
the comparability of period-to-period results of operations. Changes in currency
exchange rates may also affect the relative prices at which we and foreign
competitors sell our services in the same market. In addition, changes in the
value of the relevant currencies may affect the cost of certain items required
in our operations. Furthermore, we may become subject to exchange control
regulations, which might restrict or prohibit our conversion of other currencies
into U.S. Dollars. We cannot assure you that future exchange rate movements will
not have a material adverse effect on our future business, prospects, financial
condition, operating results and cash flows. To date, we have not entered into
foreign currency hedging transactions to control or minimize these
risks.
We
are exposed to risk if we cannot maintain or adhere to our internal controls and
procedures.
We have
established and continue to maintain, assess and update our internal controls
and procedures regarding our business operations and financial reporting. Our
internal controls and procedures are designed to provide reasonable assurances
regarding our business operations and financial reporting. However, because
of the inherent limitations in this process, internal controls and procedures
may not prevent or detect all errors or misstatements. To the extent our
internal controls are inadequate or not adhered to by our employees, our
business, financial condition and operating results could be materially
adversely affected.
If we are
not able to maintain internal controls and procedures in a timely manner, or
without adequate compliance, we may be unable to accurately report our financial
results or prevent fraud and may be subject to sanctions or investigations by
regulatory authorities such as the SEC or NASDAQ. Any such action or restatement
of prior-period financial results could harm our business or investors’
confidence in j2 Global, and could cause our stock price to fall.
Risks
Related To Our Industry
Our
services may become subject to burdensome telecommunications regulation, which
could increase our costs or restrict our service offerings.
We
believe that our services are “information services” under the
Telecommunications Act of 1996 and related precedent and therefore would not
currently be subject to U.S. telecommunications services regulation. We provide
our services through data transmissions over public telephone lines and other
facilities provided by carriers. These transmissions are subject to foreign and
domestic laws and regulation by the FCC, state public utility commissions and
foreign governmental authorities. These regulations affect the availability of
telephone numbers, the prices we pay for transmission services, the competition
we face from telecommunications service providers and other aspects of our
market. However, as messaging and communications services converge and as the
services we offer expand, we may become subject to FCC or other regulatory
agency regulation. Changes in the regulatory environment could decrease our
revenues, increase our costs and restrict our service offerings. In many of our
international locations, we are subject to regulation by the governmental
authority.
In the
U.S., Congress and the FCC regulations subsidize portions of the
telecommunications system out of the USF. Congress and the FCC are reviewing the
way it collects USF payments from telecommunications carriers. Among the
proposed changes being considered is imposing a flat fee per telephone number,
which could have a material adverse effect on the provision of our non-paid
services and could cause us to raise the price of our paid service.
In August
2005, the FCC reclassified wireline broadband Internet access services (i.e.,
DSL) as information services, thereby allowing telephone companies to offer
their lines to competing providers for what they decide is a “fair value” rather
than at “low rates.” The decision enables incumbent local exchange carriers to
charge higher rates for underlying broadband transmission service to competitive
local exchange carriers that service some of our lines in various states. This
could have an indirect impact on our profitability and operations.
The TCPA
and FCC rules implementing the TCPA, as amended by the Junk Fax Act, prohibit
sending unsolicited facsimile advertisements to telephone fax machines. The FCC
may take enforcement action against companies that send “junk faxes” and
individuals also may have a private cause of action. Although entities that
merely transmit facsimile messages on behalf of others are not liable for
compliance with the prohibition on faxing unsolicited advertisements, the
exemption from liability does not apply to fax transmitters that have a high
degree of involvement or actual notice of an illegal use and have failed to take
steps to prevent such transmissions. We take significant steps to ensure that
our services are not used to transmit unsolicited faxes on a large scale, and we
do not believe that we have a high degree of involvement or notice of the use of
our service to broadcast junk faxes. However, because fax transmitters do not
enjoy an absolute exemption from liability under the TCPA and related FCC rules,
we could face FCC inquiry and enforcement or civil litigation, or private causes
of action, if someone uses our service for such impermissible purposes. If this
were to occur and we were to be held liable for someone’s use of our service for
transmitting unsolicited faxes, the financial penalties could cause a material
adverse effect on our operations. We are currently involved in litigation
involving alleged violations of the TCPA with Protus IP Solutions, Inc. For more
information about this lawsuit, see Item 3 of this Annual Report on Form 10-K
entitled Legal Proceedings.
Also in
the U.S., the Communications Assistance to Law Enforcement Act (“CALEA”)
requires telecommunications carriers to be capable of performing wiretaps and
recording other call identifying information. In September 2005, the FCC
released an order defining telecommunications carriers that are subject to CALEA
obligations as facilities-based broadband Internet access providers and
Voice-over-Internet-Protocol (“VoIP”) providers that interconnect with the
public switched telephone network. As a result of this definition, we do not
believe that j2 Global is subject to CALEA. However, if the category of service
providers to which CALEA applies broadens to also include information services,
that change may impact our operations.
In
addition, for calls placed to certain of our European telephone numbers we
receive revenue share payments from the local telecommunications
carrier. The per minute rates applicable to these "calling party pays"
telephone numbers is subject to foreign laws and regulations. A
reduction in the permitted per minute rates would reduce our revenues
and could cause us to restrict our service offerings.
For more
information regarding telecommunications regulation that may affect our
business, please see Item 1 of this Annual Report on Form 10-K entitled
Government Regulation.
Our
business could suffer if we cannot obtain or retain telephone numbers, are
prohibited from obtaining local numbers or are limited to distributing local
numbers to only certain customers.
Our
future success depends on our ability to procure large quantities of local
telephone numbers in the U.S. and foreign countries in desirable locations at a
reasonable cost and offer our services to our prospective customers without
restrictions. Our ability to procure and distribute telephone numbers depends on
factors such as applicable regulations, the practices of telecommunications
carriers that provide telephone numbers, the cost of these telephone numbers and
the level of demand for new telephone numbers. In addition, although we are the
customer of record for all of our U.S. telephone numbers, from time to time,
certain U.S. telephone carriers illegally inhibit our ability to port numbers or
illegally port our telephone numbers away from us to other carriers
.
Also, in some foreign
jurisdictions, under certain circumstances, our customers are permitted to port
their telephone numbers to another carrier. These factors could lead to
increased cancellations by our customers and loss of our telephone number
inventory. These factors may have a material adverse effect on our business,
prospects, financial condition, operating results, cash flows and growth in or
entry into foreign or domestic markets.
For
example, several years ago the FCC conditionally granted petitions by
Connecticut and California to adopt specialized “unified messaging” area codes,
but neither state has adopted such a code. Adoption of a specialized area code
within a state or nation could harm our ability to complete in that state or
nation if materially affecting our ability to acquire telephone numbers for our
operations or making our services less attractive due to unavailability of
telephone numbers with a local geographic identity.
In
addition, future growth in our subscriber base, together with growth in the
subscriber bases of providers of other fax and/or voicemail to email and unified
messaging services, has increased and may continue to increase the demand for
large quantities of telephone numbers, which could lead to insufficient capacity
and our inability to acquire sufficient telephone numbers to accommodate our
future growth. For more information regarding telecommunications regulation that
may affect our ability to obtain telephone numbers, please see Item 1 of this
Annual Report on Form 10-K entitled Government Regulation.
The
value-added messaging and communications services industry is undergoing rapid
technological changes and we may not be able to keep up.
The
value-added messaging and communications services industry is subject to rapid
and significant technological change. We cannot predict the effect of
technological changes on our business. We expect that new services and
technologies will emerge in the markets in which we compete. These new services
and technologies may be superior to the services and technologies that we use or
these new services may render our services and technologies obsolete. Our future
success will depend, in part, on our ability to anticipate and adapt to
technological changes and evolving industry standards. We may be unable to
obtain access to new technologies on acceptable terms or at all, and may
therefore be unable to offer services in a competitive manner. Any of the
foregoing risks could have a material adverse effect on our business, prospects,
financial condition, operating results and cash flows.
We
are subject to regulations relating to data privacy, security and
retention.
Many U.S.
states and foreign jurisdictions have passed laws in the area of data privacy,
security and retention. The costs of compliance with these laws may increase in
the future as a result of laws that conflict from country to country, changes in
those laws, changes in the interpretations or interpretations that are not
consistent with our current data protection practices. This could reduce demand
for our services, increase the cost of doing business as a result of litigation
costs, increase service or delivery costs or otherwise harm our business.
Failure to comply with these and other international data privacy, security and
retention laws could subject us to lawsuits, fines, criminal penalties,
statutory damages, adverse publicity and other losses that could harm our
business. Further, any failure by us to protect our users’ privacy and data
could result in a loss of user confidence in our services and ultimately in a
loss of users, which could adversely affect our business.
New
and existing regulations could harm our business.
We are
subject to the same foreign and domestic laws as other companies conducting
business on and off the Internet. There are relatively few laws specifically
directed towards online services. However, due to the increasing use of the
Internet and online services, laws relating to the Internet (such as user
privacy, freedom of expression, pricing, fraud, content and quality of products
and
services,
taxation, advertising, intellectual property rights and information security)
are being debated around the world. It is not clear how existing laws governing
issues such as property ownership, copyrights and other intellectual property
issues, taxation, libel and defamation, obscenity and personal privacy apply to
online businesses because many of these laws were adopted prior to the advent of
the Internet and related technologies and, as a result, do not contemplate or
address the related issues. Enactment of new laws and regulations, or the
interpretation of existing laws and regulations in a way that is adverse to us,
could have a material adverse effect on our business, prospects, financial
condition, operating results and cash flows.
The
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
(the “CAN-SPAM Act”), which allows for penalties that run into the millions of
dollars, requires commercial emails to include identifying information from the
sender and a mechanism for the receiver to opt out of receiving future emails.
We believe that our email practices comply with the requirements of the CAN-SPAM
Act. If we were ever found to be in violation of the CAN-SPAM Act, that could
have a material adverse effect on our business, financial condition, operating
results and cash flows.
In
addition, because our services are accessible worldwide and we continue to
expand our international activities, foreign jurisdictions may claim that we are
required to comply with their laws. Non-U.S. laws regulating Internet companies
may give different rights to consumers, content owners and users than comparable
U.S. laws. Compliance may be more costly or may require us to change our
business practices or restrict our service offerings relative to those in the
U.S. Our failure to comply with foreign laws could subject us to penalties
ranging from criminal prosecution to bans on our services.
Increased
cost of email transmissions could have a material adverse effect on our
business.
We rely
on email for the delivery of our fax and voicemail messages. In addition, we
derive some advertising revenues through the delivery of email messages to our
free subscribers and we regularly communicate with our subscribers via email. We
also offer email services through Electric Mail. If regulations or other changes
in the industry lead to a charge associated with the sending or receiving of
email messages, the cost of providing our services would increase and, if
significant, could materially adversely affect our business, prospects,
financial condition, operating results and cash flows.
Risks
Related To Our Stock
In
order to sustain our growth, we must continue to attract new paid subscribers at
a greater rate and with at least an equal amount of revenues per subscriber than
we lose existing paid subscribers.
We may
not be able to continue to grow or even sustain our current base of paid
customers on a quarterly or annual basis. Our future success depends heavily on
the continued growth of our paid user base. In order to sustain our growth we
must continuously obtain an increasing number of paid users to replace the users
who cancel their service. In addition, these new users must provide revenue
levels per subscriber that are greater than or equal to the levels of our
current customers or the customers they are replacing. We must also retain our
existing customers while continuing to attract new ones at desirable costs. We
cannot be certain that our continuous efforts to offer high quality services at
attractive prices will be sufficient to retain our customer base or attract new
customers at rates sufficient to offset customers who cancel their service. In
addition, we believe that competition from companies providing similar or
alternative services has caused, and may continue to cause, some of our
customers or prospective customers to sign up with or to switch to our
competitors’ services. Moreover, we have experienced, and may continue to
experience, an overall reduction in our average revenue per subscriber due to a
combination of a shift in the mix of products sold and reduced usage from
customers. These factors may adversely affect our customer retention rates, the
number of our new customer acquisitions, our average revenue per subscriber
and/or subscriber usage levels. Any combination of a decline in our rate of new
customer sign-ups, decline in usage rates of our customers, decline in average
revenue per subscriber, decline in customer retention rates or decline in the
size of our overall customer base may result in a decrease in our revenues,
which could have a material adverse effect on our business, prospects, financial
condition, operating results and cash flows.
Future
sales of our common stock may negatively affect our stock price.
As of
February 16, 2010, substantially all of our outstanding shares of common stock
were available for resale, subject to volume and manner of sale limitations
applicable to affiliates under SEC Rule 144. Sales of a substantial number of
shares of common stock in the public market or the perception of such sales
could cause the market price of our common stock to decline. These sales also
might make it more difficult for us to sell equity securities in the future at a
price that we think is appropriate, or at all.
Anti-takeover
provisions could negatively impact our stockholders.
Provisions
of Delaware law and of our certificate of incorporation and bylaws could make it
more difficult for a third party to
acquire
control of us. For example, we are subject to Section 203 of the Delaware
General Corporation Law, which would make it more difficult for another party to
acquire us without the approval of our board of directors. Additionally, our
certificate of incorporation authorizes our board of directors to issue
preferred stock without requiring any stockholder approval, and preferred stock
could be issued as a defensive measure in response to a takeover proposal. These
provisions could make it more difficult for a third party to acquire us even if
an acquisition might be in the best interest of our stockholders.
Our
stock price may be volatile or may decline.
Our stock
price and trading volumes have been volatile and we expect that this volatility
will continue in the future due to factors, such as:
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Assessments
of the size of our subscriber base and our average revenue per subscriber,
and comparisons of our results in these and other areas versus prior
performance and that of our
competitors;
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Variations
between our actual results and investor
expectations;
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Regulatory
or competitive developments affecting our
markets;
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Investor
perceptions of us and comparable public
companies;
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Conditions
and trends in the communications, messaging and Internet-related
industries;
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Announcements
of technological innovations and
acquisitions;
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Introduction
of new services by us or our
competitors;
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Developments
with respect to intellectual property
rights;
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Conditions
and trends in the Internet and other technology
industries;
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Rumors,
gossip or speculation published on public chat or bulletin
boards;
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General
market conditions; and
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Geopolitical
events such as war, threat of war or terrorist
actions.
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In
addition, the stock market has from time to time experienced significant price
and volume fluctuations that have affected the market prices for the common
stocks of technology and other companies, particularly communications and
Internet companies. These broad market fluctuations have previously resulted in
a material decline in the market price of our common stock. In the past,
following periods of volatility in the market price of a particular company’s
securities, securities class action litigation has often been brought against
that company. We may become involved in this type of litigation in the future.
Litigation is often expensive and diverts management’s attention and resources,
which could have a material adverse effect on our business, prospects, financial
condition, operating results and cash flows.
Item
3. Legal Proceedings
Overview
of Legal Proceedings Against Us
From time
to time, we are involved in litigation and other disputes or regulatory
inquiries that arise in the ordinary course of our business. Many of these
actions involve or are filed in response to patent actions filed by us against
others. The number and significance of these disputes and inquiries has
increased as our business has expanded and j2 Global has grown. Any claims or
regulatory actions against us, whether meritorious or not, could be
time-consuming, result in costly litigation, require significant management time
and result in diversion of significant operational resources.
As part
of our continuing effort to prevent the unauthorized use of our intellectual
property, we have initiated litigation against the following companies, among
others, for infringing our patents relating to Internet fax and other messaging
technologies: Open Text Corporation and its Captaris business (“Open Text”),
Integrated Global Concepts, Inc. (“IGC”), Venali, Inc. (“Venali”), Protus IP
Solutions, Inc. (“Protus”), EasyLink Services International Corp. (“EasyLink”)
and Packetel, Inc. (“Packetel”). In January 2010 we settled our
patent infringement suit against Comodo Group, Ltd. Three of the
patents at issue in some of these lawsuits have been reaffirmed through
reexamination proceedings with the United States Patent and Trademark
Office.
Open
Text, Venali, Protus, EasyLink and Packetel have each filed counterclaims
against us, including seeking declaratory judgments of non-infringement,
invalidity and unenforceability of our patents. Open Text and Protus have also
asserted counterclaims purporting to allege antitrust violations of Section 2 of
the Sherman Act and California’s Business and Professions Code §§ 16720 and
17200. Open Text and Protus are seeking dismissal of our patent
infringement claims, damages, including treble and punitive damages, injunctions
against further violations, and attorneys’ fees and costs. All of
these cases are being litigated in the United States District Court for the
Central District of California before the same judge, who has indicated that the
cases will be handled in a coordinated fashion. Discovery in all of
these cases is underway. Trial is currently scheduled to begin March
1, 2011. We are also pursuing claims against Protus in Canada based
on Canadian patents and Protus has asserted similar anti-competition claims
against us in response.
In July
2005, one of our affiliates filed a separate case against Venali in the United
States District Court for the Central District of California, asserting
infringement of several other U.S. patents. Venali filed various counterclaims
against us and our affiliate on December 27, 2006, which included antitrust
counterclaims related in substantial part to the patent infringement claims by
our affiliate against Venali. On May 11, 2007, the court entered a claim
construction order regarding the disputed terms of the patents-in-suit. On
August 12, 2008, the court granted Venali’s motion for summary judgment of
non-infringement. On November 3, 2008, the court granted our summary
judgment motion on Venali’s remaining counterclaims, which alleged antitrust
violations based on our enforcement of our patents. We appealed the
non-infringement ruling in the case to the United States Court of
Appeals for the Federal Circuit. On January 22, 2010, the Federal Circuit
issued a decision affirming the District Court’s grant of summary judgment of
non-infringement. Venali did not appeal the dismissal of its
antitrust counterclaims.
On May
12, 2003, we filed an application to register the eFax mark on the United States
Patent and Trademark Office (“USPTO”) Principal Register, which the USPTO
approved and published for opposition. In July 2005, Protus filed an
opposition proceeding before the USPTO Trademark Trial and Appeal Board seeking
to prevent such registration. In the opposition proceeding, Protus
claims that the mark is generic or merely descriptive and not entitled to
registration. On September 1, 2005, we responded to Protus’ Notice of
Opposition. The parties are engaged in discovery. Trial
before the Trademark Trial and Appeal Board is set to conclude on September 15,
2010.
In
January 2006, we filed a complaint in the United States District Court for the
Central District of California against Protus asserting causes of action for
violation of the Federal Telephone Consumer Protection Act, trespass to
chattels, and unfair business practices as a result of Protus sending “junk
faxes” to us and our customers. We are seeking statutory and treble damages,
attorneys’ fees, interest and costs, as well as a permanent injunction against
Protus continuing its junk fax sending practices. In September 2007, Protus
filed a counterclaim against us asserting the same causes of action as those
asserted against it, as well as claims for false advertising, trade libel,
tortious interference with prospective economic advantage and defamation. Protus
is seeking, among other things, general and special damages, treble damages,
punitive damages, attorneys’ fees, interest and costs, as well as a permanent
injunction against us sending any more junk faxes. The parties are engaged in
discovery. Trial is currently set for January 18, 2011.
On
September 15, 2006, one of our affiliates filed a patent infringement suit
against IGC in the United States District Court for the Northern District
of Georgia. On May 13, 2008, IGC filed counterclaims alleging
violations of Section 2 of the Sherman Act and breach of contract. IGC is
seeking damages, including treble and punitive damages, an injunction against
further violations, divestiture of certain assets, attorneys’ fees and costs. On
June 13, 2008, we moved to dismiss the amended counterclaims, and on August 28,
2008, we moved to stay the action pending the appeal in the 2005 case against
Venali, described above, which involves the same patents and claims at issue in
the IGC action. On February 18, 2009, the Court granted our motion to stay the
case pending the conclusion of the Venali appeal. On January 29,
2010, we gave the Court notice of the Federal Circuit’s decision in the Venali
appeal, thereby lifting the stay. No further proceedings have
occurred thus far.
On
December 12, 2006, Venali filed suit against us in the United States District
Court for the Southern District of Florida, alleging infringement of U.S. Patent
Number 7,114,004 (the “ ’004 Patent”). Venali is seeking damages in the
amount of lost profits or a reasonable royalty, a permanent injunction against
continued infringement, treble damages, attorneys’ fees, interest and costs. On
March 6, 2007, we filed an answer to the complaint denying liability. On May 17,
2007, we filed a request with the USPTO for reexamination of the ’004 Patent,
which request was granted on July 27, 2007. On August 20, 2007, the court
granted our motion to stay the action pending the reexamination. On
October 1, 2009, the USPTO issued a Notice of Intent to Issue a Reexamination
Certificate confirming the claims of the ’004 Patent. On December 1,
2009, the Court lifted the stay. Discovery is ongoing in this
case. Trial is currently scheduled to begin March 14,
2011.
On May 9,
2007, Bear Creek Technologies, Inc. (“Bear Creek”) filed suit against us in the
United States District Court for the Eastern District of Texas, alleging
infringement of U.S. Patent Number 6,985,494 (the “ ‘494 patent”). Bear
Creek is seeking damages in at least the amount of a reasonable royalty, a
permanent injunction against continued infringement, treble damages, attorneys’
fees, interest and costs. On June 29, 2007, we filed an answer to the complaint
denying liability, asserting affirmative defenses and asserting counterclaims of
non-infringement and invalidity. On September 21, 2007, Bear Creek filed its
reply to our counterclaims, denying each one. On February 11, 2008 we filed a
request for reexamination of the ‘494 patent with the USPTO. On February 28,
2008, the Court stayed the case during the pendency of the reexamination
proceedings. On April 18, 2008, the USPTO granted the reexamination
request. On February 12, 2009, the USPTO finally rejected the reexamined
claims, and Bear Creek failed to file a response within the prescribed
timeframe. On June 16, 2009, the USPTO issued a right to appeal the
examiner’s rejection. Bear Creek filed its appeal on September 16,
2009. We filed our response to Bear Creek’s appeal on October 14,
2009 and are awaiting an answer from the USPTO examiner. On
September 10, 2009, the Court “Administratively Closed” the case pending
resolution of the reexamination proceeding.
In
November 2008, we and one of our affiliates filed a lawsuit against Zilker
Ventures, LLC and Choosewhat.com, LLC (collectively, “Zilker”) in the United
States District Court for the Central District of California alleging
infringement of our eFax trademark and for false advertising in violation of §
43(a) of the Lanham Act and California’s Business and Professions Code §17200 et
seq. The lawsuit sought an accounting for Zilker’s profits, our lost profits,
attorney fees, interest and costs, as well as a permanent injunction against
Zilker’s trademark infringement and false advertising activities. On
December 23, 2008, Zilker filed a counterclaim seeking a declaration that our
eFax trademark is generic or merely descriptive and not entitled to trademark
protection or registration and that Zilker’s use of the eFax mark was a fair
use. Zilker sought to recover attorney fees and costs in addition to declaratory
relief. On September 14, 2009, Zilker filed a motion for summary
judgment that it did not infringe our eFax mark, did not engage in false
advertising, and on its claim for a declaration that our eFax mark is generic or
merely descriptive. On November 4, 2009, the Court denied the
motion. On November 13, 2009, the case was dismissed pursuant to a
settlement agreement.
We do not
believe, based on current knowledge, that any of the foregoing legal proceedings
or claims is likely to have a material adverse effect on our consolidated
financial position, results of operations or cash flows. However, depending on
the amount and the timing, an unfavorable resolution of some or all of these
matters could materially affect our consolidated financial position, results of
operations or cash flows in a particular period. We have not accrued for a loss
contingency relating to these legal proceedings because unfavorable outcomes are
not considered by management to be probable or reasonably
estimable.