Complaint

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON, SEATTLE

MARK FERGUSON, a married
individual, d/b/a WHEW.COM,
Plaintiff

v.

ACTIVE RESPONSE GROUP, an
New York company;
THE BRADFORD EXCHANGE,
LTD., an Illinois corporation;
QUINSTREET, INC., a California
corporation;
VISION CARE HOLDINGS, LLC., a
Florida Limited Liability Company;
NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants,

PARTIES, JURISDICTION, VENUE
1. Plaintiff MARK FERGUSON d/b/a "WHEW.COM", (hereinafter "FERGUSON") is a married individual residing in Pierce County, Washington.

2. On information and belief, Plaintiff alleges) that Defendant ACTIVE RESPONSE GROUP, ("ARG") is a corporation, with its principal places of business in the state New York, doing business as Oridian, Inc., tendollars.com, SavingsResults.com,
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Milesource.com, rewardsparade.com, myinsiderdeals.com, mygiftcardsource.com, consumergiftgroup.coln, nationalgiftgroup.cor, bizcustomersupport.com, MyGiftcardSource, LTDB Promotions, SilverNGold, Dealhighway, ConsumerValueDirect, SmartBrands, BargainSpot, SavingsAvalanche, Deal-zone, Couponandgifts, AskVinegarJoe, TVNewsDaily, AsmileADay, TensionBusters, YourDailySmile, YourSelfDaily, Yourtime Daily, CelebRecipes, EverydayFoodRecipes, FreeHouseholdProducts, SilverScreenSaver, MyFreeBeautyProducts, MyInsiderDeals, SampleOnUs, SweepstakesEveryday, PackageFromHeaven, SampleForYou, SurveysOnUs, GetTheLookOnUs, IsYourPriceRight, holidayfoodrecipes, AnyTimeSavings, Available Savings,ConsumerSurveyPolls, DailyRewardsWorld, DealsYouNeed, Education-programs-online.info, FreshDealsToday, IntelligentShoppers, MyBestDealsToday, OnlineSavingsCentral, TheSavingsList, YourBargainGrabber, YourFavoriteDeals, SurveysAndSurveys, MorningSurveys, YourSurveyNow, MyPersonalBargains, OfferGoldMine, DealsJustForYou, SmartDealsPlease, SavingsResults, SpecialOffers4You, NationalGiftCenter, YourAmazingSurvey, LetTheDealsBegin, ForSureDeals, ConvenientOffers, Deals21rbox, theWOWrewards, TryOurDeals, FindYourDealsOnline, TheDealsList, SelectYourDeals, Redcosmos, Greystarrysky, Goldgeyser, Bicyclebear, Vastgreenfields, ippohelper, householdsavingsclub.com';

3. On information and belief, Plaintiff alleges' that Defendant THE BRADFORD EXCHANGE, LTD., ("BRADFORD EXCHANGE") is a corporation, with its principal places of business in the state of ILLINOIS, doing business as `THE BRADFORD GROUP, collectablestoday.com;

4. On information and belief, Plaintiff alleges that Defendant QUINSTREET, INC., ("QUINSTREET") is a corporation, with its principal places of business in the state of CALIFORNIA, doing business as `directdishsatellitetv.info, bounce.saltlakefoundation.com, sundleride.com, pryedto.com, qabob.com, EZPROCREDIT.COM, dicerope.com, ritanel.com, snogfire.com, terrawrld.net, mx30.livingtimewise.com, mx40.mosterredfast.com, mx38.lostgreenmonkey.com,
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CONTENTHARNESS.COM, mx45.nurotransmitertimes.com, bounce.dediscipleswon.com, thelocalshangout.com, applicationsacceleration.com, myperformancemanagement.net, mx54.redgrasstree.com, rnx23.greenmouthpie.com, mx50.orangelittlehand.com, mx5.bookltd13.info, arrivefriendly.com, foggymomingair.com, betacorpinc.com, companyencryption.com, takingbackcontrol.net, integratorplans.com, daybeamz.com, uncompromisingactions.com, bleekmart.com, mx106.mydailyfree.net, peakmount.com, missouri-accident-lawyers 1. info, startovers.com, kenfaft.com, rubbermatter.com, ownership-now.com, h liadvancedsystems.com, weblawz.com";

5. On information and belief, Plaintiff alleges that Defendant VISION CARE HOLDINGS, LLC (VISION CARE) is al Limited Liability Company, with its principal places of business in the state of Florida, doing business as `visioncareholdings.com';

6. On information and belief, Plaintiff alleges that Defendant NAUTILUS, INC. (NAUTILUS) is a corporation, with its principal places of business in the state of Washington, doing business as `Nautilus, Inc., nautilus.com, bowflex.com', The Nautilus Group, Inc., expressedguarantee.com, outletstorez.com, ordinarydating.com, videotadz.com, hdecisionz.com, highsalez.com, highsalez.com, haloadz.com, opackpremium.com, over-buys.com, hous lideasservices.com, hwabestproducts.com, origretail.com, inistock.com, onataserviceslimited.com, htainfo.com, stationaryprocess.com, olsik.com, iproductgroup.com, intgproblemsolvingcorp.com, thrdevelopz.com, openservicegroups.com, interactivefactorz.com, wholesalemarketz.com';

Jurisdiction and Venue

7. Jurisdiction is proper pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1332 (diversity).

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8. This Court has supplemental jurisdiction of state law claims pursuant to U.S.C. §1367.

9. Venue is proper pursuant to 28 U.S.C. §1391.

General Allegations

10. From at least January 2000 through June of 2007 Plaintiff FERGUSON provided and enabled email forwarding for multiple users on a computer server that provides email forwarding to wherever Plaintiff's clients needed, and domain registration and updating as Plaintiff's clients needed, site construction, hosting and maintenance as Plaintiffs clients needed.

11. At all relevant times herein FERGUSON was an "internet access service" ("IAS") as defined under 15 USC 7702(11) and 47 USC 231(e)(4), and an "interactive computer service" ("ICS") under RCW 19.190.010(8).

12. The email accounts hosted and served by Plaintiff IAS/ICS include email accounts owned by third-party customers of Plaintiffs' IAS/ICS, and also include email accounts owned by Plaintiff. The email addresses pertinent to the claims herein, and at which the emails alleged to be unlawful herein include: washington_resident@whew.com; admin@whew.com; abuse@whew.com; collectively the "Email Addresses" and/or "Recipient Address" and individually and generically an "Email Address"

13. At all times material hereto, for the Email Addresses and each of them, the information that at each of the Recipient Addresses belonged to Washington residents was and is available upon request from the registrant of the Whew.com domain, Ferguson being a Washington resident and Whew.com being registered with a Washington address.

14. During the time period of approximately October 2006 through present, Plaintiffs received at the Email Addresses numerous electronic-mail messages sent and/or initiated by or on behalf of Defendants. (collectively the "Emails" or individually and generically as an "Email").

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15. The Emails, and each of them, were received by Plaintiff and/or by Recipient Addresses provided by Plaintiff at the Whew.com domain.

16. Each of the Emails intentionally misrepresents and or obscures any and all information that could be used in identifyi g the point of origin or the transmission path thereof, contains header information that is materially false or materially misleading, fails to include, or contain a valid physical address in the body of the email or contains up to three addresses none of which identify the sender clearly and or conspicuously, fails to adequately identify the Emails as a commercial solicitation, each domain entered into the email intentionally uses a falsely registered or cloaked domain, each domain and or Emails fails to accurately identify the actual sender of the Emails in the "From" name line and or Return Path" and or body; and/or was sent to and received at the Recipient Addresses subsequent to notice provided to Defendants to cease and desist sending unsolicited, unwanted, unlawful, and harassing Email.

17. Defendants initiated the transmission of the Emails, and each of them. In the alternative, Defendants conspired or otherwise acted in collusion with another or other, or assisted another or others to transmit the Emails, and each of them.

18. At all times material hereto, Defendants knew or had reason to know that the Recipient Addresses, and each of them, were and are held by a Washington resident.

FIRST CAUSE OF ACTION CAN-SPAM ACT
15 U.S.C. §7701 et seq.

19. On the basis of the facts set forth hereinabove, Defendants initiated the transmission of the Emails, and each of them, to a protected computer in violation of 15 U.S.C. §7704(a), causing damage to Plaintiff FERGUSON as the provider of the Internet access service receiving each such Email, and entitling Plaintiff to statutory damages of $100.00 per each such Email, as provided in 15 U.S.C. §7706 (g) (3).

20. Defendants did willfully and knowingly so act in violation of the provisions of 15 U.S.C. §7701 et seq.

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SECOND CAUSE OF ACTION - CEMA
RCW 19.190.0 1.0 -.070

21. On the basis of the facts set forth hereinabove, Defendants initiated, conspired with another to initiate, or assisted the transmission of the Emails, and each of them, in violation of RCW 19.190.020, causing damage to Plaintiff FERGUSON as the interactive computer service receiving each such Email in the amount of $1,000 for each such Email, as provided in RCW 19.1190.040 (2).

THIRD CAUSE OF ACTION - CONSUMER PROTECTION ACT
Ch. 19.86 RCW

22. On the basis of the facts set forth hereinabove, Defendants initiated the Emails, and each of them, in violation of RCW 19.190.030 and Chapter 19.86 RCW, causing damage to Plaintiff FERGUSON as the interactive computer service receiving each such Email in the amount of $1,000 for each such Email, as provided in RCW 19.190.040 (2).

REQUEST FOR RELIEF

Plaintiff respectfully requests the following relief:

1. Entry of a Judgment against the Defendants injthe amount of $1,100 per Email, plus such other and further damages as may be proved at trial, plus treble damages to the extent permitted by Chapter 19.86 RCW and to the extent permitted by 15 U.S.C. §7706 (g) (3) (C), plus prejudgment and post-judgment interest at the highest rate permitted by law, plus cost of suit and reasonable attorney fees plursuant to Chapter 19.86 RCW and 15 U.S.C. §7706 (g) (4);

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2. Entry of a permanent injunction against the Defendants prohibiting the Defendants from sending or causing to be sent electronic mail messages of any kind or nature to the Email Addresses using the Whew.com domain.

3. Such other and further relief as the Court deems just and equitable in the premises.

RESPECTFULLY SUBMITTED this 25th day of July, 2007.

i.JUSTICE LAW, P.C.
DOUGLAS E. MCKINLEY, J
Attorney at Law

/S/ Robert J. Siegel
Robert J. Siegel, WSBA #17312
Attorney for Plaintiffs

/S/ Douglas E. McKinley, Jr.
Douglas E. McKinley, Jr., WSBA#20806
Attorney for Plaintiffs

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VERIFICATION

I, Mark Ferguson, Plaintiff in the above-entitled action state and swear under penalty of perjury under the laws of the State of Washington, that I have read the Complaint,and am familiar with the contents thereof, and believe same to be true and accurate.

Signed this 25th day of July, 2007, at Tacoma, Washington.

Attorney Appearances

These are the attorneys present in the case.

STIPULATION Dismissing Vision Care Holding

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON, SEATTLE

MARK FERGUSON, a married
individual, d/b/a WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, a New
York corporation;
THE BRADFORD EXCHANGE,
LTD., an Illinois corporation;
QUINSTREET, INC., a California
corporation;
VISION CARE HOLDINGS, LLC., a
Florida Limited Liability Company;
NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants,

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL OF DEFENDANT:
VISION CARE HOLDINGS, LLC.

STIPULATION

COME NOW Plaintiff Mark Ferguson d/b/a Whew.com, and Defendant Vision Care Holdings, LLC., through their respective counsel of record, and stipulate that this action be dismissed, with prejudice, as to all claims asserted herein against Vision Care Holdings, Inc.. Each party will bear its own attorneys’ fees and costs.

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DATED: Oct. 22, 2007

i.Justice Law, P.C.

/s/ Robert J. Siegel
Robert J. Siegel (WSBA #17312)
Attorneys for Plaintiffs

DATED: Oct. 22, 2007

McNAUL EBEL NAWROT & HELGREN PLLC

By : /s/ Leslie J. Hagin
Leslie J. Hagin, WSBA No. 29186
Attorneys for Defendant Vision Care Holdings,
Inc.

ANSWER Active Response Group

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Mark Ferguson, a married individual, d/b/a
WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, a New York
company; THE BRADFORD EXCHANGE,
LTD., an Illinois corporation; QUINSTREET,
INC., a California corporation; VISION CARE
HOLDINGS, LLC, a Florida limited liability
company, NAUTILUS, INC., a Washington
corporation; and JOHN DOES, 1-CC,
Defendants.

DEFENDANT ACTIVE RESPONSE GROUP, INC.'S ANSWER TO THE COMPLAINT
Active Response Group, Inc. ( ARG ), through counsel, for its Answer to the Complaint in this action, responds as follows:

1. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 1 and therefore denies the allegations.

2. ARG admits it is a corporation with its principal places of business in New York state, that it previously used Oridian, Inc. under a license agreement, and that it owns
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rewardsparade.com and householdsavingsclub.com. ARG denies the remaining allegations stated in paragraph 2.

3. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 3 and therefore denies the allegations.

4. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 4 and therefore denies the allegations.

5. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 5 and therefore denies the allegations.

6. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 6 and therefore denies the allegations.

7. Paragraph 7 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 7 are factual, ARG denies the allegations.

8. Paragraph 8 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 8 are factual, ARG denies the allegations.

9. Paragraph 9 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 9 are factual, ARG denies the allegations.

10. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 10 and therefore denies the allegations.

11. Paragraph 11 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 11 are factual, ARG lacks sufficient information to form a belief as to the truth of the allegations and therefore denies the allegations.

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12. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 12 and therefore denies the allegations.

13. ARG admits that the WhoIs database lists the registrant of whew.com as an individual named Mark Ferguson, with an address listed in Washington State. ARG lacks sufficient information to form a belief as to the truth of the remaining allegations stated in paragraph 13 and therefore denies the allegations.

14. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 14 and therefore denies the allegations.

15. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 15 and therefore denies the allegations.

16. ARG denies that it received notice to cease and desist sending allegedly unsolicited, unwanted, unlawful, and harassing email. ARG lacks sufficient information to form a belief as to the truth of the remaining allegations stated in paragraph 16 and therefore denies the allegations.

17. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 17 and therefore denies the allegations.

18. ARG lacks sufficient information to form a belief as to the truth of the allegations stated in paragraph 18 against defendants other than ARG and therefore denies the allegations. ARG denies the remaining allegations stated in paragraph 18.

19. Paragraph 19 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 19 are factual, ARG lacks sufficient information to form a belief as to the truth of the allegations as they relate to defendants
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other than ARG and therefore denies the allegations. ARG denies the remaining allegations stated in paragraph 19.

20. Paragraph 20 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 20 are factual, ARG lacks sufficient information to form a belief as to the truth of the allegations as they relate to defendants other than ARG and therefore denies the allegations. ARG denies the remaining allegations stated in paragraph 20.

21. Paragraph 21 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 21 are factual, ARG lacks sufficient information to form a belief as to the truth of the allegations and therefore denies the allegations.

22. Paragraph 22 states legal conclusions to which no response is required. Insofar as the allegations stated in paragraph 22 are factual, ARG lacks sufficient information to form a belief as to the truth of the allegations and therefore denies the allegations.

23. The remaining section of the Complaint, Request for Relief, states requests for relief, not factual allegations, and therefore does not require a response. Insofar as this section makes factual allegations, ARG denies the allegations.

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DEFENSES

24. Failure to state a claim. Plaintiff has failed to state a claim upon which relief can be granted.

25. Acts of third parties. Plaintiff's damages, if any, were caused in whole or in part by the conduct of third parties, for which ARG bears no responsibility.

PRAYER FOR RELIEF

WHEREFORE, ARG asks that the Court:

26. Dismiss all claims against ARG stated in the Complaint with prejudice;

27. Award ARG its reasonable costs, including attorneys fees, incurred in defending against the allegations in the Complaint; and

28. Award such other and further relief as the Court may deem just and equitable under the circumstances.

DATED this 28th day of September, 2007.

Davis Wright Tremaine LLP

Attorneys for Active Response Group, Inc.

By s/ Ambika K. Doran
Ambika K. Doran
WSBA # 38237
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
Telephone: (206) 757-8030
Fax: (206) 757-7030

Thomas R. Burke (admitted pro hac vice)
Davis Wright Tremaine LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone: (415) 276-6500
Fax: (415) 276-6599

ANSWER Nautilus, Inc.

In Texas state courts, this answer would possibly be striken as our Supreme Court has stated that prophylactic defenses and objections are wasteful of judicial resources. But, there's no need to fear! The prophylactic defense is here! (with apologies to Underdog). What? You don't see that here?

Well, look almost to the end. Yeah, there at paragraph 27. To my knowledge, only causes of action for defamation are subject to a one year statute of limitation. Paragraph 14 of the Complaint pretty well limits the email subject to the complaint to the period from October 2006 to the present. That's a single year, boys and girls.

But, hey, they're just getting started in this thing and probably misread the Complaint and thought he was suing for email going back to January 2000 (when that was stated as the time he became an "internet access service" with standing to sue under the statutes) since that is mentioned in paragraph 11.

Also, I'm not entirely sure how "waiver" and "estoppel" work into this. Maybe they're going to claim that Ferguson deserves to get spam because he doesn't complain in a timely manner?

======================================
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARK FERGUSON, a married individual,
d/b/a WHEW.COM,
Plaintiff,

vs.

ACTIVE RESPONSE GROUP, a New York
company; THE BRADFORD EXCHANGE,
LTD., an Illinois corporation; QUINSTREET,
INC., a California corporation; VISION CARE
HOLDINGS, LLC, a Florida Limited Liability
Company; NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendant.

NAUTILUS’S ANSWER AND AFFIRMATIVE DEFENSES

Nautilus, Inc. (“Nautilus”), by and through its undersigned attorneys, hereby answers plaintiff’s complaint as follows:

PARTIES, JURISDICTION, VENUE

1. Answering paragraph 1 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations regarding who he does business as, his marital status, and his place of residence, and on that basis denies the same.

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2. Answering paragraph 2 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.

3. Answering paragraph 3 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.

4. Answering paragraph 4 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.

5. Answering paragraph 5 of the complaint, the paragraph contains no allegations against or about Nautilus and therefore no answer is required.

6. Answering paragraph 6 of the complaint, Nautilus admits that it is a corporation, that its principal place of business is in Washington, and that it does business as Nautilus, Inc. Nautilus denies the remaining allegations of paragraph 6.

Jurisdiction and Venue

7. Answering paragraph 7 of the complaint, Nautilus admits that jurisdiction is proper under 28 U.S.C. §1331, but denies that jurisdiction is proper under 28 U.S.C. § 1332.

8. Answering paragraph 8 of the complaint, Nautilus admits that supplemental jurisdiction is proper under 28 U.S.C. § 1367.

9. Answering paragraph 9 of the complaint, Nautilus admits that venue is proper under 28 U.S.C. § 1391.

General Allegations

10. Answering paragraph 10 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

11. Answering paragraph 11 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

12. Answering paragraph 12 of the complaint, Nautilus lacks knowledge or
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information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

13. Answering paragraph 13 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

14. Answering paragraph 14 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

15. Answering paragraph 15 of the complaint, Nautilus lacks knowledge or information sufficient to form a belief as to the truth of plaintiff’s allegations and therefore denies the same.

16. Answering paragraph 16 of the complaint, Nautilus denies the allegations contained therein.

17. Answering paragraph 17 of the complaint, Nautilus denies the allegations contained therein.

18. Answering paragraph 18 of the complaint, Nautilus denies the allegations contained therein.

First Cause of Action – Can-Spam Act

19. Answering paragraph 19 of the complaint, Nautilus denies the allegations contained therein.

20. Answering paragraph 20 of the complaint, Nautilus denies the allegations contained therein.

Second Cause of Action – CEMA

21. Answering paragraph 21 of the complaint, Nautilus denies the allegations contained therein.

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Third Cause of Action – Consumer Protection Act

22. Answering paragraph 22 of the complaint, Nautilus denies the allegations contained therein.

Affirmative Defenses

23. Plaintiff has failed to state a claim upon which relief can be granted.

24. Plaintiff’s claims and damages are the result of one or more intervening and/or superseding cause(s).

25. Plaintiff’s claims are barred because they were caused in whole or in part by the fault of another entity and/or a nonparty pursuant to RCW 4.22.070(1).

26. Plaintiff’s claims are barred by the doctrines of waiver and estoppel.

27. Plaintiff’s claims are barred by applicable statutes of limitation.

28. Nautilus expressly reserves the right to plead further answers, affirmative defenses or counterclaims, cross-claims or third-party claims, as investigation and/or discovery may warrant.

Prayer for Relief

WHEREFORE, Nautilus prays for the following relief:

1. That plaintiff’s complaint be dismissed with prejudice and without costs and reasonable attorneys’ fees;

2. That all costs incurred herein by defendant plus reasonable attorneys’ fees be taxed against plaintiff as permitted by law; and

3. For such other and further relief as the Court deems just and appropriate.

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DATED this 20th day of August, 2007.
GARVEY SCHUBERT BARER
By s/ Justin E. Dolan
Justin E. Dolan, WSBA #33000
Attorneys for Defendant Nautilus, Inc.
Eighteenth Floor
1191 Second Avenue
Seattle, Washington 98101-2939
Phone: (206) 464-3939
Fax: (206) 464-0125

ANSWER of The Bradford Exchange

Here's the Bradford Exchange's Answer to the lawsuit.

The affirmative defenses are interesting. Most of the affirmative defenses are prophylactic in nature (they're there just in case, because failure to assert a defense is a waiver of the defense). Here, in Texas, those don't carry much weight because, by and large, not only must you assert the defense, you must actually pursue the defense.

What Bradford is really banking on is Affirmative Defense #11: "Plaintiff lacks standing to assert the claims alleged in his Complaint." This is the same defense that sunk James Gordon in Gordon v. Virtumundo.

Also present are defenses about the doctrine of "unclean hands" (which is a legal way of saying that Ferguson is a scoundrel and unethical litigant), "estoppel" (which is a legal way of saying that Ferguson is two-faced, although what I suspect that they're trying to do is use estoppel to sneak in the Gordon decision as something that prevents Ferguson from asserting his claim), and laches (which is a legal way of saying "WAAAAH! Mean Mark Ferguson is ambushing us!").

A semi-interesting defense is #10. It basically says that "if we did it, we didn't mean to."

==============================
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARK FERGUSON, a married individual
d/b/a WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, a New
York company; THE BRADFORD
EXCHANGE, LTD., an Illinois
corporation, QUINSTREET, INC., a
California corporation; VISION CARE
HOLDINGS, LLC, a Florida limited
liability company; NAUTILUS, INC., a
Washington corporation; and JOHN
DOES, I-CC,
Defendants.

DEFENDANT THE BRADFORD EXCHANGE, LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT

Defendant THE BRADFORD EXCHANGE, LTD (“Bradford Exchange”) answers

Plaintiff’s Complaint and asserts affirmative defenses as follows:

I. ANSWER
1. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 1 of Plaintiff’s Complaint and on that basis DENIES those allegations.

2. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 2 of Plaintiff’s Complaint
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and on that basis DENIES those allegations.

3. Bradford Exchange ADMITS that it is a corporation with its principal place of business in Illinois. Bradford Exchange DENIES all remaining allegations in Paragraph 3 of Plaintiff’s Complaint.

4. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 4 of Plaintiff’s Complaint and on that basis DENIES those allegations.

5. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 5 of Plaintiff’s Complaint and on that basis DENIES those allegations.

6. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 6 of Plaintiff’s Complaint and on that basis DENIES those allegations.

7. Paragraph 7 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statutes cited in Paragraph 7 of Plaintiff’s Complaint speak for themselves. Plaintiff’s interpretation of those statutes is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 7 of Plaintiff’s Complaint.

8. Paragraph 8 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statute cited in Paragraph 8 of Plaintiff’s Complaint speaks for itself. Plaintiff’s interpretation of that statute is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 8 of Plaintiff’s Complaint.

9. Paragraph 9 of Plaintiff’s Complaint is a legal conclusion to which no response is necessary and the statute cited in Paragraph 9 of Plaintiff’s Complaint speaks for itself. Plaintiff’s interpretation of that statute is not a factual allegation which must be admitted or denied. Bradford Exchange DENIES all remaining allegations in Paragraph 9
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of Plaintiff’s Complaint.

10. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 10 of Plaintiff’s Complaint and on that basis DENIES those allegations.

11. Bradford Exchange DENIES all allegations in Paragraph 11 of Plaintiff’s Complaint.

12. Bradford Exchange DENIES all allegations in Paragraph 12 of Plaintiff’s Complaint.

13. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the allegations in Paragraph 13 of Plaintiff’s Complaint and on that basis DENIES those allegations.

14. To the extent that the allegations in Paragraph 14 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 14 of Plaintiff’s Complaint and on the basis DENIES those allegations.

15. To the extent that the allegations in Paragraph 15 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 15 of Plaintiff’s Complaint and on the basis DENIES those allegations.

16. To the extent that the allegations in Paragraph 16 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 16 of Plaintiff’s Complaint and on the basis DENIES those allegations.

17. To the extent that the allegations in Paragraph 17 of Plaintiff’s Complaint
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refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 17 of Plaintiff’s Complaint and on the basis DENIES those allegations.

18. To the extent that the allegations in Paragraph 18 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 18 of Plaintiff’s Complaint and on the basis DENIES those allegations.

19. To the extent that the allegations in Paragraph 19 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 19 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 19 of Plaintiff’s Complaint and on the basis DENIES those allegations.

20. To the extent that the allegations in Paragraph 20 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 20 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 20 of Plaintiff’s Complaint and on the basis DENIES those allegations.

21. To the extent that the allegations in Paragraph 21 of Plaintiff’s Complaint refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 21 of Plaintiff’s Complaint also contains legal assertions to which no response is necessary. Bradford Exchange is without knowledge and information sufficient to form a belief as to the veracity of the remaining allegations in Paragraph 21 of Plaintiff’s Complaint and on the basis DENIES those allegations.

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22. To the extent that the allegations in Paragraph 22 of Plaintiff’s Complaint
refer to Bradford Exchange, Bradford Exchange DENIES those allegations. Paragraph 22
of Plaintiff’s Complaint also contains legal assertions to which no response is necessary.
Bradford Exchange is without knowledge and information sufficient to form a belief as to
the veracity of the remaining allegations in Paragraph 22 of Plaintiff’s Complaint and on
the basis DENIES those allegations.

II. AFFIRMATIVE DEFENSES

Without admitting any allegations in Plaintiff’s Complaint, Bradford Exchange asserts the following affirmative defenses:

1. Plaintiff is barred from obtaining any relief sought in his Complaint because Plaintiff’s Complaint fails to state any claim upon which relief may be granted.

2. Plaintiff is barred from obtaining any relief because Plaintiff failed to mitigate his alleged damages, if any.

3. Plaintiff is barred from obtaining any relief because Plaintiff subscribed to receive commercial emails on which Plaintiff bases his Complaint.

4. Plaintiff is barred from obtaining any relief sought in his Complaint under the doctrine of unclean hands as a result of his own conduct.

5. Plaintiff waived his claims.

6. Plaintiff’s claims are barred by the doctrine of estoppel.

7. Plaintiff’s claims are barred by the doctrine of laches.

8. The damages alleged in Plaintiff’s Complaint, if any, were not caused by Bradford Exchange, but were caused by one or more third parties whose activities were not approved, ratified, or controlled by Bradford Exchange.

9. Plaintiff has failed to join one or more necessary and indispensable parties.

10. To the extent any action by Bradford Exchange violates the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. (“CAN-SPAM”), Bradford Exchange acted without actual
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knowledge, or knowledge fairly implied on the basis of objective circumstances, of the act or omission that constitutes the violation.

11. Plaintiff lacks standing to assert the claims alleged in his Complaint.

12. Plaintiffs claims under Washington’s Commercial Electronic Marketing Act, WASH. REV. CODE § 19.190.010 et seq., are preempted by CAN-SPAM.

III. PRAYER FOR RELIEF

WHEREFORE, Defendant BRADFORD EXCHANGE, LTD. respectfully requests that the Court enter judgment against Plaintiff and in favor of Bradford Exchange as follows:

1. Judgment Dismissing Plaintiff’s Claims. That the Court enter judgment dismissing Plaintiff’s claims against Bradford Exchange alleged in the Complaint and denying Plaintiff’s requested relief.

2. Attorneys’ Fees and Costs. That the Court award Bradford Exchange its reasonable attorneys’ fees and costs incurred in defending this lawsuit.

3. Other Equitable Relief. That the Court grant such other and further relief to Bradford Exchange as the Court shall deem just and equitable.

DATED this 14th day of November, 2007.

Respectfully Submitted,

NEWMAN & NEWMAN,
ATTORNEYS AT LAW, LLP

BY:
Derek A. Newman, WSBA No. 26967
Derek Linke, WSBA No. 38314
Attorneys for Defendant
THE BRADFORD EXCHANGE, LTD

ANSWER Quinstreet

Would you like to know what keeps me going at this? What makes a lawsuit interesting enough to me to track? What keeps me looking at lawsuits and turning PDF documents into text for your reading pleasure. Sheer incompetence.

No, I don't mean that I'm incompetent. I mean when an attorney pulls a REAL boner. The glaring kind of mistake that turns an ordinary lawsuit into a train wreck waiting to happen. The kind of thing that you can get so distracted about that by the end of the lawsuit you're on the horn to your malpractice carrier, because failure to notify constitutes a waiver of coverage.

There's one here. In this document. It's the kind of mistake that I hear spammers make all of the time, but never thought I'd see in an actual legal defense under CAN-SPAM.

"What mistake is that?" you ask. Quinstreet's 6th Affirmative Defense. It's a beaut. They are claiming, as an affirmative defense, under the CAN-SPAM Act, that the Plaintiff failed to opt-out of their mailings.

The CAN-SPAM Act provides for no defenses, affirmative or otherwise, in its text. The only thing that it provides is for a reduction in damages if the mailer tried really, really hard to comply with the Act.

It is entirely possible that this lawsuit may serve to teach email senders that the mere provision of an opt-out method is not a magical Get Out Of Lawsuit Free card. Yes, it's important, but you can't claim "I would have let him opt-out if he had only asked" as a defense against all of the other things mandated in the statute.

==============================
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARK FERGUSON, a married individual,
d/b/a WHEW. COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, an New York
company; THE BRADFORD EXCHANGE,
LTD., an Illinois corporation; QUINSTREET,
INC., a California corporation; VISION CARE
HOLDINGS, LLC., a Florida Limited Liability
Company; NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants.

QUINSTREET, INC.'S ANSWER TO COMPLAINT

COMES NOW defendant QUINSTREET, INC. and in answer to plaintiffs Complaint for Penalties and Damages herein, admits, denies, and alleges as follows:

1. Defendant admits the allegations of Paragraphs 1, 8, and 9.

2. Defendant admits that it is a corporation with its principal place of business in the State of California. Defendant denies the remaining allegations of Paragraph 4 of the Complaint.

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3. Defendant admits that jurisdiction in the above Court is proper under Federal question jurisdiction. Defendant denies that the Court has diversity jurisdiction.

4. Defendant has insufficient information to admit or deny the allegations of Paragraphs 2,3,5,6, 10, 11, 12, 13, 14, and 15 of the Complaint and therefore, on the basis of such lack of information and belief, denies all of the allegations of said Paragraphs.

5. Defendant denies each and every allegation contained in Paragraphs 16, 17, 18, 19, 20, 21, and 22 of the Complaint.

6. Further answering said Complaint, defendant denies that plaintiff is entitled to any damages, penalties, statutory damages, general damages, special damages, attorney fees, interest, injunctive relief, or any other relief as a result of any act, conduct, or omission on the part of this defendant.

7. AS AND FOR A FIRST AFFIRMTIVE DEFENSE, this answering defendant alleges that plaintiff lacks standing to assert the claims herein.

8. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff s Complaint and each cause of action contained therein fails to state a claim for relief.

9. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff intercepted one or more of the subject e-mails that were not intended to be sent to or received by plaintiff.

10. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff was not the intended recipient or addressee of one or more of the subject e-mails.

11. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff expressly or impliedly consented to receipt of one or more of the subject e-mails.

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12. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, this answering defendant alleges, on information and belief, that plaintiff waived any right to relief and/or consented to the alleged damage or harm by failing or refusing to notify the sender of the allegedly unlawful e-mails by failing or refusing to "opt out."

13. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs Complaint and each cause of action therein is barred by the Doctrine of Unclean Hands as a result of plaintiffs own wrongful conduct.

14. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, this answering defendant alleges that RCW 19.190.010-.1 10 and/or RCW 19.86.010-.170 are preempted by the "CAN SPAM Act of2003" and, accordingly, plaintiffs Second and Third Causes of Action are not legally cognizable.

15. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff has no private remedy against defendant and that any claimed violation of law may only be enforced by the Federal Trade Commission and/or the Washington Attorney General.

16. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, this answering defendant alleges pursuant to RCW 4.22.070(1) that any alleged damages were caused in whole or in part by the fault of another entity and/or a nonparty.

17. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff s Complaint and each cause of action contained therein is bared in whole or in part by one or more statutes of limitations including, but not limited to, RCW 4.16.130 and RCW 19.86.120.

-4-
WHEREFORE, this answering defendant prays for judgment against plaintiff as follows:

1. That plaintiff s Complaint be dismissed and judgment entered in favor of defendant QUINSTREET, INC.;

2. That defendant be awarded reasonable attorney's fees against plaintiff;

3. That defendant be awarded its costs of suit; and

4. For such other further relief as the court deems just and proper.

DATED this 26th day of September, 2007.

s/Todd R. Sorensen

John A. Knox, WSBA #12707
Todd R. Sorensen, WSBA #35403
WILLIAMS, KASTNER & GIBBS PLLC
601 Union Street, Suite 4100
Seattle, WA 98101-2380
Telephone: (206) 628-6600
Fax: (206) 628-6611

Stephan A. Barber (California SBN 70070)
(pro hac vice)
ROPERS, MAJESKI, KOHN & BENTLEY
80 North First Street
San Jose, CA 95113
Telephone: (408) 287-6262
Facsimile: (408) 918-4501
Attorneys for Defendant Quinstreet, Inc.

Stipulation Extending Deadline for Expert Disclosures

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARK FERGUSON, a married individual,
d/b/a/ WHEW.COM,
Plaintiffs,

v.

ACTIVE RESPONSE GROUP, a New York
company; THE BRADFORD EXCHANGE,
LTD., an Illinois corporation; QUINSTREET,
INC., a California corporation; VISION CARE
HOLDINGS, LLC, a Florida limited liability
company; NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants.

SECOND CORRECTED STIPULATION TO EXTEND DEADLINE FOR DISCLOSURE OF EXPERT TESTIMONY UNDER FED. R. CIV. P. 26(a)(2)

The parties hereby stipulate to an extension of the March 19, 2008 deadline for disclosure of expert testimony under Fed. R. Civ. P. 26(a)(2) to April 15, 2008. The parties are working diligently to resolve this dispute to avoid the expenses of further litigation and believe such efforts may be successful. To clarify any ambiguity in the stipulated order earlier signed by this Court, the parties present this second corrected stipulation to clarify that this extension of the expert disclosure deadline shall apply to all parties in the above-captioned litigation.

DATED: March 18, 2008

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Attorneys for Plaintiff Mark Ferguson, d/b/a
WHEW.COM
By _/s/ Robert Seigel____________________
Robert J. Siegel, WSBA # 17312
Douglas E. McKinley, Jr., WSBA # 20806
1325 Fourth Avenue, Suite 940
Seattle, WA 98101-2501
Tel: (206) 304-5400
Fax: (206) 624-0717
Email: [redacted]
Email: [redacted]

Davis Wright Tremaine LLP
Attorneys for Defendant Active Response
Group, Inc.
By __/s/ Ambika K. Doran_______________
Ambika K. Doran, WSBA # 38237
Thomas R. Burke (admitted pro hac vice)
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
Telephone: (206) 757-8030
Fax: (206) 757-7030
E-mail: [redacted]
E-mail: [redacted]

William Kastner & Gibbs PLLC
Attorneys for Defendant Quinstreet, Inc.
By /s/ Todd R. Sorensen__________
Todd R. Sorensen, WSBA #35403
John A. Knox, WSBA #12707
601 Union St., Suite 4100
Seattle, WA 98101-2380
Telephone: (206) 628-6600
Fax: (206) 628-6611
E-mail: [redacted]
E-mail: [redacted]

Stephan A. Barber (pro hac vice)
Ropers, Majeski, Kohn & Bentley
80 North First Street
San Jose, CA 95113
Telephone: (408) 287-6262
Fax: (408) 918-4501
E-mail: [redacted]

-3-
ORDER

Based upon the Stipulation of the parties, it is hereby ORDERED, ADJUDGED AND DECREED that the deadline for all parties to disclose expert testimony pursuant to Fed. R. Civ. P. 26(a)(2) is extended to April 15, 2008.

DATED this 18th day of March, 2008.

/s/
ROBERT J. BRYAN
United States District Judge

Stipulation Dismissing Nautilus, Inc.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA

MARK FERGUSON, a married
individual, d/b/a WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, an
New York company;
THE BRADFORD EXCHANGE,
LTD., an Illinois corporation;
QUINSTREET, INC., a California
corporation;
VISION CARE HOLDINGS, LLC., a
Florida Limited Liability Company;
NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants,

STIPULATION

COME NOW Plaintiff Mark Ferguson d/b/a Whew.com, and Defendant Nautilus, Inc. through their respective counsel of record, and stipulate that this action be dismissed, with prejudice, as to all claims asserted herein between the parties hereto. Each party will bear its own attorneys’ fees and costs.

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DATED: February, 11, 2008

i.Justice Law, P.C.
/s/ Robert J. Siegel
Robert J. Siegel (WSBA #17312)
Attorneys for Plaintiff

DATED: February, 11, 2008

Garvey Schubert Barer
By: /s/ Justin E. Dolan
Justin E. Dolan (WSBA No. 33000)
Attorneys for Defendant Nautilus, Inc.

-3-
ORDER

IT IS HEREBY ORDERED that this action is dismissed with prejudice as to all claims asserted herein between Plantiff and Defendant Nautilus, Inc., both sides to bear their own costs and fees.

Dated this 12th day of February 2008.

ROBERT J. BRYAN
United States District Judge

Stipulation Dismissing The Bradford Exchange LTD

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA

MARK FERGUSON, a married
individual, d/b/a WHEW.COM,
Plaintiff,

v.

ACTIVE RESPONSE GROUP, an
New York company;
THE BRADFORD EXCHANGE,
LTD., an Illinois corporation;
QUINSTREET, INC., a California
corporation;
VISION CARE HOLDINGS, LLC., a
Florida Limited Liability Company;
NAUTILUS, INC., a Washington
corporation; and JOHN DOES, I-CC,
Defendants,

STIPULATION

COME NOW Plaintiff Mark Ferguson d/b/a Whew.com and Defendant The Bradford Exchange, LTD., through their respective undersigned counsel of record, and stipulate that this action be dismissed, with prejudice, as to all claims asserted herein against Defendant The Bradford Exchange, LTD. Each party will bear its own attorneys’ fees and costs.

-2-
DATED: February, 4, 2008

i.Justice Law, P.C.
/s/ Robert J. Siegel
Robert J. Siegel (WSBA #17312)
Attorneys for Plaintiff

DATED: February, 4, 2008

Newman & Newman, Attorneys at Law, LLP
By: /s/ Derek Linke
Derek A. Newman (WSBA # 26967)
Derek Linke (WSBA #38314)
Attorneys for Defendant The Bradford Exchange, LTD.

ORDER

IT IS HEREBY ORDERED that this action is dismissed with prejudice as to all claims asserted herein by Plaintiff against Defendant The Bradford Exchange, LTD. Each party shall bear its own costs and fees.

DATED this 6th day of February, 2008.

/s/
ROBERT J. BRYAN
United States District Judge