Complaint

Of all of the pathetic lawsuits I've seen....

Well, this one's got it all.

Deferring a connection is tarpitting and is a denial of service attack. Not delivering mail is a denial of service attack. Using a spam filter is not legal (or maybe it's just that it's not kosher -- we'll have to find a rabbi to rule on that one). Not telling a sender how to evade filters is fraudulent. A sender's inability to design a system that can cope with sending more email while waiting for deferred messages to timeout and retry is a denial of service attack caused by the receiver. e360Insight has even tossed in a First Amendment claim and I was pretty sure that we moved past that by 1999. And finally, having a whitelist or a feedback loop that you don't let everyone have is a violation of fair trade rules.

It's stunning. It really is. I'm not entirely sure how you get to be this dense, but I suspect that it's a painstaking (and probably painful) process involving frontal lobotomies and maybe electroshock treatments.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

COMPLAINT

NOW COMES, Plaintiff, e360Insight, LLC, by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, L.L.C., and for its Complaint against Defendant Comcast Corporation, states as follows:

PARTIES

1. e360Insight, LLC (hereafter “e360”) is an Illinois limited liability corporation located in Wheeling, Illinois. e360 is an internet marketing company.

2. Comcast Corporation (hereafter “Comcast”) is a Pennsylvania corporation principally located in Philadelphia Pennsylvania. Comcast is an internet service provider.

JURISDICTION

3. Jurisdiction is proper and based on 28 USC § 1332 as the parties are citizens of and principally located in separate states and the amount in controversy exceeds seventy-five thousand dollars. Jurisdiction is also proper based on 28 USC § 1331 as this action arises under 18 USC § 1030, The Computer Fraud and Abuse Act.

FACTS
4. e360 is an email marketing company whose business practices have, at all times relevant to the allegations in this Complaint, complied with, and continue to comply, with all
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federal and state requirements, laws and standards pertaining to the sending of commercial email, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 USC § 7701 (“CAN-SPAM”).

5. e360 delivers its messages to its customers at addresses provided by said customers. The customers thus require e360 to use Internet Service Providers (“ISPs”), such as Comcast. At all times relevant to the claims asserted in this Complaint, e360 has complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by Comcast.

6. e360 has at all times relevant to the claims asserted in this Complaint, complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by Comcast.

7. e360 is hired by and partners with companies that wish to market their products or services using the internet. This marketing is targeted to persons “opting in” to a list whereby they agree to accept email announcements and/or advertisements. These persons sign up at websites owned by e360 or at websites owned by e360’s marketing partners. e360 then may attempt to verify the desire to receive emails utilizing a “double opt-in” process, which involves sending a confirmatory email allowing the customer to affirm or terminate its decision to receive marketing emails. Those customers who affirm their interest in receiving email messages are included in subsequent email messages until they unsubscribe at a later date or until e360 receives bounce information (showing the email account in question is closed) from Comcast.

8. e360 provides the consumer the ability to “opt-out” of receiving emails in every email sent and promptly complies with every request made by a consumer.

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9. e360 does not engage in “spamming,” which is essentially the digital equivalent of sending junk mail that is not requested. e360 only sends email messages to persons who first sign up or opt-in and provide their email address to e360 or to one of e360’s marketing partners. e360 employs a variety of permission processes that it controls and that its marketing partners use to obtain permission from and provide notice to the consumer that received the email.

10. e360 has been approved by ReturnPath, a leading provider of reputation monitoring services to the ISP community, including Microsoft/Hotmail. In an independent audit of e360’s mailing practices, ReturnPath approved e360 for the SenderScore Certification Program, which is Return Path’s highest level of certification among legitimate email marketers.

11. Comcast is an internet service provider (“ISP”) that provides email service to its customers and who has agreed to act as an intermediary in delivering and receiving emails on behalf of its customers.

12. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services, attached and incorporated into this Complaint as Exhibit A.

13. At all relevant times, e360 has complied with Comcast’s Acceptable Use and Abuse Policies.

14. At all relevant times, and commencing as early as 2005, Comcast regularly blocked emails e360 has repeatedly attempted to send to emails to Comcast customers (who have signed up to receive such emails,) including some of who have double-confirmed their wish to receive the emails. Such blocking by Comcast interferes with e360’s ability to do business and interferes with e360’s business relationship with its customers who use Comcast.

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15. All instances where Comcast has blocked e360 email addresses are too voluminous to mention in this complaint. As a recent example, Comcast blocked virtually all of e360’s email messages on August 23, 2007. e360 attempted to send email messages to its customers, including those who have “double-confirmed” their interest in receiving e360’s email messages. e360 used IP address 63.210.103.209 to connect to Comcast’s mail servers. e360 received the following error message from Comcast for all of the messages e360 attempted to send.

“550 5.2.0 63.210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net ->
BL004 Blocked for spam. Please see
http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18628”

By following the link provided in the Comcast error message, e360 was directed to the following information on Comcast’s website:

“Mail to Comcast is rejected and is returned with an error message containing the code BL004. What does this mean?

Our filters have determined that email from your mail server has been sent in patterns which are characteristic of spam. In an effort to protect subscribers, your mail server has been blocked from sending email to the Comcast network. Mail servers are typically shared by many users so it may be the case that another party using your mail server has sent spam, even if you have not.”

16. e360 cannot reasonably ascertain how its messages may have been sent “in patterns which are characteristic of spam.” Comcast refuses to provide e360 with any information as to how e360 could modify its email messages to avoid triggering the block of its rightfully sent email messages or the delivery of this error message.

17. e360 has on numerous occasions contacted Comcast in attempts to get Comcast to allow e360’s email to get through to its customers. Comcast has refused to allow such emails.

18. At all relevant times, and possibly commencing as early as 2005, Comcast has regularly held or severely and significantly delayed emails e360 has attempted to send to
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Comcast customers who have signed up to receive such emails, and refused to release such emails, a practice commonly known as “tar-pitting” and is type of “denial of service attack” on e360’s mail servers. Comcast regularly transmits bogus response data in an attempt to lock up e360’s connections in order to slow or incapacitate e360’s mail servers. e360’s sending mail servers track and report average response time for each recipient domain. The average response time is defined as the time it takes for the recipient domain to process a message; to receive the message and to acknowledge receipt. As recently as December 11, 2007, e360 recorded an average response time of 18,433 seconds or 5.1 hours to process a single email message. During this time, Comcast’s mail servers transmit bogus response information to keep the connective active and to erode e360’s system capacity. In doing so, Comcast has interfered with e360’s ability to send email, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360’s servers.

19. At all times relevant hereto, and commencing as early as 2005, Comcast has regularly blocked emails e360 has attempted to send to Comcast customers who have signed up to receive such emails, some of who have double-confirmed that they wish to receive the emails on the grounds that such emails contain specific words or phrases, such as “free”. Such arbitrary censorship by Comcast violates e360’s First Amendment rights and is an unacceptable infringement of e360’s commercial speech based on content.

20. Comcast uses multiple email filters, including third-party companies and internal blacklists, to filter and block emails. Comcast uses Spamhaus SBL/XBL/ZEN, a London based self-appointed internet “watch dog” company to monitor and screen emails on its systems. Comcast’s use of the Spamhaus blacklists is documented on Comcast’s website (http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18627). Spamhaus
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mistakenly listed e360 as a spammer on its ROKSO list, SBL blocklist and Zen blocklist despite being repeatedly told of its error. Spamhuas has since removed e360 from its lists per a Court Order but occasionally violates the Order. On March 5, 2007, e360 notified Comcast that Comcast’s use of the Spamhaus blacklist was improperly blocking e360’s email messages and was improperly interfering with e360’s legitimate business. e360 provided copies of the judgment and permanent injunction against Spamhaus from United States District Court case number 06 C 3958. Notification was sent to Comcast legal counsel via FedEx tracking number 798120681231. e360 did not receive a response from Comcast. Attached and incorporated into this Complaint as Exhibit B is a copy of the March 5, 2007 letter.

21. Comcast has blocked and continues to block emails sent by e360 to its customers based on the Spamhaus listing above even after being told of the error. As of the date of this filing, the most recent incidence of improper blocking by Comcast via the Spamhaus blacklist was December 9, 2007.

22. Comcast has blocked and continues to block emails sent by e360 to its customers based on other third-party and internal blacklists and other software filters supplied by third parties. Some of the known blocking technologies used by Comcast include MAPS by TrendMicro and Brightmail by Symantec.

23. Comcast has engaged in ‘denial-of-service’ attacks on e360’s network and computer system by consuming, destroying, altering or withholding emails sent by e360 to its customers. Such attacks overwhelm and disable e360’s network and prevent them from sending or receiving emails from e360’s consumers in an attempt to halt e360’s business.

24. Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by
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Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active. As an email marketer, e360 relies on bounce information from Comcast’s mail servers to determine whether e360’s customer email addresses are still active and deliverable. e360 has information and reason to believe Comcast is intentionally transmitting fraudulent bounce information to e360 in an attempt to discourage e360 from sending additional email messages. By transmitting fraudulent bounce information, Comcast is effectively destroying e360’s proprietary assets and the value contained in e360’s opt-in database of email addresses. Such statements are made on information and belief as only Comcast has access to and knowledge of the accounts it has and will not allow e360’s emails to be delivered regardless of account activity.

COUNT I
(Tortious Interference with Prospective Economic Advantage)

25. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

26. Under Illinois law, “the tort of interference with prospective economic advantage has four elements: (1) plaintiff must have a reasonable expectancy of a valid business relationship with a third party; (2) defendant must know of the prospective business relationship; (3) defendant must intentionally interfere with the prospective business relationship such that the prospective business relationship never materializes; and (4) the interference must damage the plaintiff. Lynch Ford, Inc. v. Ford Motor Co., 957 F. Supp. 142, 145-146 (N.D.Ill 1997).

27. e360 only sends emails to consumers who: a) purchase goods and services from its proprietary company owned website; or b) sign-up to receive emails either through e360 or through one of its marketing partners. As such, e360 only sends emails to individuals who have done business with e360 or who have expressed an interest in doing business with e360 or its
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marketing partners. Thus, e360 has a reasonable expectation of valid business relationship with the consumers it emails.

28. Comcast, an internet service provider, has agreed to act and is compensated for acting as an intermediary in delivering the email sent by and to its customers. Comcast has no right to interfere in the business relationship between e360 and its clients or potential clients.

29. Comcast has knowledge of the e360’s prospective business relationships with Comcast users. Indeed, Comcast has been notified numerous times by e360 of e360’s attempts to contact e360’s customers and potential customers.

30. Comcast has intentionally interfered with e360’s prospective business relationships by blocking the emails e360 has sent or tried to send to its customers. Despite being notified on numerous occasions by e360 of such interference, Comcast has refused to stop interfering in e360’s prospective business relationships.

31. Comcast’s ‘denial of service’ attacks interfere with e360’s ability to send emails to any of its clients or potential clients thereby interfering with e360’s business relationship with its clients. Such attacks cause significant damage to e360 by preventing it from communicating with its clients or potential clients.

32. Comcast blocking e360’s emails to its clients and potential clients interferes with e360’s prospective business relationships with its clients and potential clients such that those relationships never materialize.

33. Comcast’s refusal to allow e360 to communicate with any its clients and potential clients interferes with e360’s business relationship with its clients and potential clients.

34. Comcast’s interference with e360’s business relationships causes e360 significant damage. e360 estimates the damage to exceed $4.5 million per year from 2005 through 2007.

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35. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $9,000,000.00;

(b) Injunctive relief requiring Comcast to stop interfering with e360’s prospective business relationship and stop blocking e360’s emails sent to its customers and potential customers;

(c) Punitive damages to be determined; and

(d) Any other relief as the Court deems just and proper.

COUNT II
(Violation of Computer Fraud and Abuse Act)

36. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

37. The Computer Fraud and Abuse Act (hereafter “Act”) prohibits anyone from: (i)“knowingly caus[ing] the transmission of a program, information, code, or command, as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer....or...(iii)intentionally access[ing] a protected computer without authorization, and as a result of such conduct, causes damage. 18 U.S.C. § 1030(a)(5)(A)(i) and (iii).

38. The Act also requires that the “loss to 1 or more persons during any 1-year period...aggregating at least $5,000 in value.” 18 U.S.C. § 1030(a)(5)(B)(i).

39. Under the Act, any person who suffers damage or loss by reason of a violation of the Act may obtain compensatory damages, economic damages and injunctive relief. 18 U.S.C. § 1030(g).

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40. Comcast intentionally and knowingly engaged in denial of service attacks upon e360’s system by slowing process times of its emails by hours. Such delay slowed and all but stopped e360’s systems from being able to function. This intentional damage to e360 prevented e360 from being able to do business and cost e360 in terms of lost business along with excessive wear and tear on e360’s systems and incremental infrastructure costs to overcome the system load created by Comcast’s denial of service attacks.

41. e360 relies on Comcast to provide accurate and truthful information regarding the deliverability of mail and the activity status of email addresses of Comcast customers on e360’s emailing list. In fact, e360 has no other resource available to it to obtain this accurate information and thus requires Comcast’s cooperation in providing reliable, accurate information.

42. Comcast frequently transmits false bounce information to e360’s mail servers. When Comcast transmits false information on the status of an email account, e360’s removes the address from its mailing and updates its database to reflect that the email is no longer valid.

43. When Comcast provides false information regarding an email account to e360 and causes e360 to remove an active email address from its database, Comcast’s actions have directly resulted in the destruction of e360’s proprietary data and asset, its database.

44. e360 estimates that such denial of service attacks upon its systems have cost it five hundred ninety-one thousand two hundred ($591,200.00) dollars.

45. e360 estimates that Comcast false bounce information and destruction of its email database has caused it $2,498,924.00 dollars.

46. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

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WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $3,090,124.00;

(b) Injunctive relief requiring Comcast to stop denial of service attacks upon e360’s systems and prevent Comcast from transmitting fraudulent bounce information to e360’s email servers;

(c) Punitive damages to be determined;

(d) Substantial attorney fees and costs to be determined; and

(e) Any other relief as the Court deems just and proper.

COUNT III
(Violation of First Amendment Rights)

47. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

48. Commercial speech is entitled to First Amendment protection as long as it concerns lawful activity and it not misleading. Virginia Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). “Indeed, we recognized that a “particular consumer’s interest in the free flow of commercial information...may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Id. at 763.

49. It is also recognized that commercial communication “that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” Edenfield v. Fane, 507 U.S. 761, 767 (1993).

50. e360 has the right to send commercial emails to its consumers and consumers who have asked or agreed to receive its emails. e360’s emails concern only lawful activity and are not misleading.

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51. Comcast’s arbitrary and capricious use of its network to systematically deny e360 the ability to send commercial emails to its customers and consumers who have asked to or agreed to receive such emails is a violation of e360’s First Amendment rights.

52. Comcast’s actions have caused significant damage to e360’s ability to communicate and do business with its customers. Specifically, since e360 is an email marketer, e360 has no other way to communicate to its customers who subscribe to or have their email through Comcast. This loss of communication in the marketplace harms not only e360 but also all of its customers.

53. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $500,000.00;

(b) Injunctive relief requiring Comcast to allow e360 the ability to communicate with its customers;

(c) Punitive damages to be determined; and

(d) Any other relief as the Court deems just and proper.

COUNT IV
(Unfair Competition and Business Practices)

54. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

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55. In Illinois, it is unlawful for any business to use unfair methods of competition and business practices, including but not limited to the use or employment of any false pretense, false promise or misrepresentation, in the conduct of trade or business. 815 ILCS 505/2.

56. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services. Implicit in these policies is the understanding that if one complies with the Comcast’s policies, the mail sent will be delivered.

57. Although e360 has complied with Comcast’s polices at all times, Comcast has refused to comply with their own policies and deliver the mail sent by e360.

58. At the same time that Comcast is blocking e360’s email messages that are compliant with Comcast’s polices, Comcast is allowing other email marketers with substantially similar business practices as those employed by e360 to send email messages to Comcast’s customers.

59. Comcast’s refusal to deliver email sent by e360 while allowing its competitors to freely transmit email puts e360 at a disadvantage and creates an un-level playing field on which e360 must compete.

60. Upon information and belief, Comcast has made agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast’s Acceptable Use policy. Based on these agreements, Comcast has applied its policies with certain email marketers in a way that is materially different than Comcast’s application of its policies to e360’s email messages. Such statement is made upon information and belief because only Comcast can verify with whom they have agreements with to allow mail to be sent to their customers.

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61. Comcast’s refusal to create a fair playing field for legitimate email marketers to compete has caused serious damage to e360’s business and damaged its reputation.

62. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $9,000,000.00;

(b) Injunctive relief requiring Comcast to allow e360 the ability to communicate with its customers;

(c) Punitive damages to be determined; and

(d) Any other relief as the Court deems just and proper.

Respectfully submitted,

e360Insight, LLC.,

By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
complaint.pdf	06/28/09 1:05 pm	236.21 KB

MOTION for Expedited Discovery

e360Insight can't wait for Comcast to file its answer in this case to start discovery. You'll find this set of proposed discovery chock full of hardee-har-har goodness. I'll let you put your favorites in the comments.

For those of you who want to know what I think: I think that there's not much here that we won't find Comcast object to as being over-broad, burdensome, and in violation of one or more privileges. But, nice try there, Dave. No one can say that you're not paying your attorneys enough.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

MOTION FOR EXPEDITED DICOVERY

NOW COMES, Plaintiff, e360Insight, LLC ("e360"), by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, and for its Motion for Expedited discovery pursuant to Fed. R. Civ. P. 26(d), states as follows:

1. e360 filed its Complaint for injunctive relief and damages on January 15, 2008.

2. e360 has also filed a Motion for Preliminary Injunction contemporaneously with the filing of this Motion.

3. Defendant was served with a copy of the Complaint on January 30, 2008.

4. e360 wishes to serve written discovery immediately, including requests for production of documents, interrogatories and requests for admission. (Copies of the discovery e360 wishes to serve are attached to this motion as Exhibit A.)

5. Pursuant to Fed. R. Civ. P. 26(d), this Court can order expedited discovery in advance of the conference required by Fed. R. Civ. P. 26(f).

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6. As detailed in the Complaint, Defendant is, among other things, tortiously interfering with e360's business, transmitting inaccurate response data in an attempt to significantly delay e360's connections in order to slow or incapacitate e360's mail servers and violating e360's First Amendment rights.

7. Defendant continues to engage in this tortious conduct by blocking e360's attempts to deliver e-mail to its customers who utilize Comcast as an Internet Service Provider.

8. Defendant continues to transmit inaccurate response data in an attempt to significantly delay e360's connections in order to slow or incapacitate e360's mail servers.

9. e360 has demanded that Defendant cease and desist from its harmful conduct and notified e360 of the harmful consequences that e360 is experiencing directly resulting from Defendant's conduct.

10. Given Defendant's continued tortious conduct, which has not decreased despite e360's demands to cease and desist, e360 believes that there are additional occurrences of Defendant's wrongdoing that are substantial and significant.

11. e360 needs to ascertains as quickly as possible the full extent of Defendant's transgressions so that it can assess and attempt to mitigate the damage that is being caused.

12. e360 needs the requested discovery to identify why Defendant is blocking its email so that e360 can present as clear a picture of all of Defendant's wrongdoings (tortuously interfering with e360's business and violating e360's First Amendment rights) to the court at the time of the hearing on e360's motion for preliminary injunction.

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WHEREFORE, Plaintiff, e3601nsight, LLC, respectfully requests that this Court enter an Order granting it leave to immediately serve on Defendant, Comcast Corp., requests for production of documents, interrogatories and requests for admissions.

Respectfully submitted,

E360Insight, LLC.,
By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois
60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing Motion for Expedited Discovery was served upon the attorneys listed below electronically through CM/ECF on February 21, 2008.

Douglas N. Masters dmasters@loeb.com Joseph L Kish jkish@synergylawgroup.com,nmcdonald@synergylawgroup.com Carla Elizabeth Buterman cbuterman@butermanlaw.com
Nathan John Hole nhole@loeb.com,ahill@loeb.com,chicagopto@loeb.com, vmelero@loeb.com

/s/ Joseph L. Kish
One of Their Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, L.L.C.
730 West Randolph, 6`f' Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

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GROUP EXHIBIT
A
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT

Plaintiff, e360lnsight, LLC ("e360"), by and through its attorneys, by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, pursuant to Federal Rules of Civil Procedure 26 and 33, propounds the following Interrogatories to Defendant Comcast Corporation, (Defendant), to be answered within 30 days of the date of the attached certificate of Service.

Definitions

A.The term "you" or "your" means Defendant, Comcast Corporation, and any of its predecessors, successors, subsidiaries, current and former employees, partners, agents, attorneys, representatives, and all other persons acting in concert with or on behalf of Defendant, Comcast Corporation.

B.The term "person" or "persons" means a natural person or an entity, any business entity, corporation, partnership, joint venture, firm, trust, group, association, sole proprietorship, any other business entity or any federal, state or local government agency or governmental body.

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C.The term "document" or "documents" as used herein means the original and any identical or non-identical copy, regardless of origin or location, of all written, typewritten, printed, handwritten, computer, recorded or graphic material of any kind or character, including, but not limited to, computer files, drafts, letters, correspondence, telegrams, memoranda, records, tapes, transcripts, programs, photographs, tape recordings, charts, graphs, indexes, minutes, contracts, leases, agreements, handwritten notes, notations of conversations or conferences, interoffice communications, periodicals, bills, schedules, price sheets, time cards, work records, bulletins, circulars, pamphlets, studies, notices, summaries, papers, reports, books, teletype messages, facsimile messages, emails, invoices, worksheets, computer printouts, data sheets, data processing tapes, cards, or disks, interoffice communications, forms insurance policies, vouchers, expense account reports, recordings and transcripts thereof, and any other writings, recordings or information stored in computer memory, however produced or reproduced which are now or have ever been in your possession, custody or control or in the possession, custody or control of any of your agents, officers, employees, representatives, or attorneys, and any other document and tangible item subject to discovery under Fed, R. Civ. P. 26.

D.The term "communication" or "communications" means any and all inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, electronic mail (e-mail), letters, notes, memoranda, telegraphs, advertisements, and any and all other forms of verbal exchange, whether oral, written, or electronically transmitted, or any summaries, paraphrases or records of any of the foregoing.

E.The term "identify" (with respect to natural persons) means to set forth the person's (i) full name, (ii) present or last known business or residence address, (iii) present or last known place of employment and position, and (iv) telephone number. Once a person has
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been identified in accordance with this subparagraph, only the name of that person needs to be listed in response to subsequent discovery requesting the identification of that person.

F.The term "identify" (with respect to business organizations) means to set forth (i) the full name of the organization, (ii) its address, (iii) the form of the organization (e.g. corporation, partnership, etc.), and (iv) the state under whose laws such organization was formed.

G.The term "identify" (with respect to communications) means to set forth (i) the types, manner, or means of the communication (i.e., by letter, telephone call, e-mail, interview, meeting, etc.), (ii) the date of the communication, (iii) the place of the communication, (iv) the general subject matter(s) of the communication, (v) sender(s) and recipient(s) of the communication, and (vi) each document that embodies, relates to or refers to the communication.

H.The term "identify" (with respect to documents) means to set forth (i) the type of document (ii) its date, (iii) its general subject matter(s), (iv) each author, signatory, addressee, and recipient thereof, (v) its custodian, and (vi) its present or last known location.

I. The term "relate" or "relating to" means to refer, pertain, concern, describe, establish, demonstrate, evidence, or bear or touch on.

J.As used in these requests, the singular includes the plural, and the plural includes the singular; the masculine, feminine or neuter pronouns include each other; the disjunctive "or" and the conjunctive "and" include each other; and each of the functional words "each", "every", "any", and "all" shall include all of the other functional words, as necessary to bring within the scope of this request any documents that might otherwise be construed to be outside the scope.

K.These interrogatories seek information concerning the time period of January 1, 2005 to the present unless otherwise specified.

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L.As used in these requests, "customers" of Defendant shall mean all individuals who maintain or maintained an e-mail account with Comcast and who were the intended recipients of e-mail sent by Plaintiff that was blocked by Defendant from being delivered.

Instructions

M.In responding to these interrogatories, furnish all information in Defendant's possession, custody or control and in the possession, custody or control of Defendant's members, managers, employees, agents, attorneys, representatives, and any other persons acting on Defendant's behalf, and not merely such matter as is in Defendant's possession.

N.These interrogatories are to be deemed continuing. Defendant is requested to provide, by way of supplementary responses, such additional information and documentation as may hereafter be obtained by Defendant, or any person on Defendant's behalf, that will augment, supplement or otherwise modify the answers now given to the following requests.

O.If any of these requests cannot be responded to in full, answer to the extent possible, specifying the reasons for Defendant's inability to answer to the remainder and stating what information you do have concerning the unanswered portion.

Privileged Matter
You are requested to identify and list all documents or responses called for by these interrogatories but withheld from production on the grounds of attorney-client privilege, work product privilege, or on any other basis, and to specify in writing the grounds for your withholding such documents. All such documents shall be segregated, and retained by your counsel pending a ruling by the Court on the claimed privilege. Each document shall be identified by:
(1) Author and recipient(s), including titles of such persons;

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(2) Date of document;

(3) Number of pages, attachments, and appendices;

(4) A general description of the nature and subject matter of the document;

(5) Subject matter and nature of privilege claimed;

(6) Present custodian; and

(7) Reason the document was not produced.

Material Lost Or Destroyed
If any responses to these interrogatories are incomplete because have been lost, discarded or destroyed, the materials so lost, discarded or destroyed shall be identified as completely as possible, including identification as set forth above under "Privileged Matter" and the following information: date of disposal or loss, person authorizing the disposal, persons having knowledge of the disposal or loss, and person disposing of the document.

Interrogatories

1. Identify all communication between and among Defendant and any third-party regarding Plaintiff.

2. Identify all communication between and Defendant and any third-party concerning this litigation.

3. Identify all communication between Defendant on the one hand and Plaintiff on the other.

4. Identify all communication between Defendant on the one hand and intended recipients of e-mail sent by Plaintiff to customers of Defendant on the other concerning this litigation.

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5. Identify all communication between Defendant on the one hand and intended recipients of e-mail sent by Plaintiff to customers of Defendant on the other concerning the subject e-mail.

6. Identify all sources used by Defendant in its determination to block e-mail sent by Plaintiff to customers of Defendant.

7. Identify the person or persons involved in the decision to block e-mail sent by Plaintiff to customers of Defendant.

8. Identify all persons with knowledge of the messages sent to Plaintiff in response to Plaintiff's attempt to transmit e-mail to customers of Defendant.

9. Identify all persons with knowledge of the e-mail filters used by Defendant to screen incoming e-mail messages.

10. Identify all communications between and among Defendant and any other entities regarding the blocking of e-mail sent by Plaintiff to customers of Defendant.

11. Identify the policies or procedures that you believe are applicable to the decision to block e-mail sent by Plaintiff to customers of Defendant.

12. Identify all email marketing companies that are not regularly blocked from sending email to Comcast's mail servers and why these entities are materially different from Plaintiff.

13. Identify all entities that provide financial compensation to Comcast in any form, including payment, advertising services, barter of services, press services or any other form of compensation to Comcast for delivering email messages to Comcast subscribers.

14. State the basis for your decision to block e-mail sent by Plaintiff to customers of Defendant.

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15. Identify the policies or procedures that you believe are applicable to the decision to transmit inaccurate response data to Plaintiffs computer servers in response to email sent by Plaintiff to its customers who utilize Defendant as an ISP.

16. State the basis for your decision to transmit inaccurate response data to Plaintiffs computer servers in response to email sent by Plaintiff to its customers who utilize Defendant as an ISP.

17. Identify the policies or procedures that you believe are applicable to the decision to hold or severely and significantly delay email Plaintiff has attempted to send to its customers who utilized Defendant as an ISP who have signed up to receive such emails, and the decision by Defendant to refuse to release such emails through its system.

18. State the basis for your decision to hold or severely and significantly delay email Plaintiff has attempted to send to its customers who utilized Defendant as an ISP who have signed up to receive such emails, and the decision by Defendant to refuse to release such emails through its system.

Respectfully submitted, e3601nsight, LLC.,
By:
/s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

PLAINTIFFS' FIRST SET OF REOUESTS TO PRODUCE

Plaintiff, e3601nsight, LLC ("e360"), by and through its attorneys, by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, pursuant to Federal Rules of Civil Procedure 26 and 34, propounds the following Requests to Produce to Defendant Comcast Corporation, (Defendant), to be answered within 30 days of the date of the attached Certificate of Service.

Definitions

A. The term "you" or "your" means Defendant, Comcast Corporation, and any of its predecessors, successors, subsidiaries, current and former employees, partners, agents, attorneys, representatives, and all other persons acting in concert with or on behalf of Defendant, Comcast Corporation.

B. The term "person" or "persons" means a natural person or an entity, any business entity, corporation, partnership, joint venture, firm, trust, group, association, sole proprietorship, any other business entity or any federal, state or local government agency or governmental body.

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C. The term "document" or "documents" as used herein means the original and any identical or non-identical copy, regardless of origin or location, of all written, typewritten, printed, handwritten, computer, recorded or graphic material of any kind or character, including, but not limited to, computer files, drafts, letters, correspondence, telegrams, memoranda, records, tapes, transcripts, programs, photographs, tape recordings, charts, graphs, indexes, minutes, contracts, leases, agreements, handwritten notes, notations of conversations or conferences, interoffice communications, periodicals, bills, schedules, price sheets, time cards, work records, bulletins, circulars, pamphlets, studies, notices, summaries, papers, reports, books, teletype messages, facsimile messages, emails, invoices, worksheets, computer printouts, data sheets, data processing tapes, cards, or disks, interoffice communications, forms insurance policies, vouchers, expense account reports, recordings and transcripts thereof, and any other writings, recordings or information stored in computer memory, however produced or reproduced which are now or have ever been in your possession, custody or control or in the possession, custody or control of any of your agents, officers, employees, representatives, or attorneys, and any other document and tangible item subject to discovery under Fed, R. Civ. P. 26.

D. The term "communication" or "communications" means any and all inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, electronic mail (e-mail), letters, notes, memoranda, telegraphs, advertisements, and any and all other forms of verbal exchange, whether oral, written, or electronically transmitted, or any summaries, paraphrases or records of any of the foregoing.

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E. The term "identify" (with respect to natural persons) means to set forth the person's (i) full name, (ii) present or last known business or residence address, (iii) present or last known place of employment and position, and (iv) telephone number. Once a person has been identified in accordance with this subparagraph, only the name of that person needs to be listed in response to subsequent discovery requesting the identification of that person.

F. The term "identify" (with respect to business organizations) means to set forth (i) the full name of the organization, (ii) its address, (iii) the form of the organization (e.g. corporation, partnership, etc.), and (iv) the state under whose laws such organization was formed.

G. The term "identify" (with respect to communications) means to set forth (i) the types, manner, or means of the communication (i.e., by letter, telephone call, e-mail, interview, meeting, etc.), (ii) the date of the communication, (iii) the place of the communication, (iv) the general subject matter(s) of the communication, (v) sender(s) and recipient(s) of the communication, and (vi) each document that embodies, relates to or refers to the communication.

H. The term "identify" (with respect to documents) means to set forth (i) the type of document (ii) its date, (iii) its general subject matter(s), (iv) each author, signatory, addressee, and recipient thereof, (v) its custodian, and (vi) its present or last known location.

I. The term "relate" or "relating to" means to refer, pertain, concern, describe, establish, demonstrate, evidence, or bear or touch on.

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J. As used in these requests, the singular includes the plural, and the plural includes the singular; the masculine, feminine or neuter pronouns include each other; the disjunctive "or" and the conjunctive "and" include each other; and each of the functional words "each", "every", "any", and "all" shall include all of the other functional words, as necessary to bring within the scope of this request any documents that might otherwise be construed to be outside the scope.

K.These interrogatories seek information concerning the time period of January 1, 2005 to the present unless otherwise specified.

L.As used in these requests, "customers" of Defendant shall mean all individuals who maintain or maintained an e-mail account with Comcast and who were the intended recipients of e-mail sent by Plaintiff that was blocked by Defendant from being delivered.

M.As used in these requests, "White List" shall mean any and all documents that memorialize or otherwise reference an agreement by Defendant to allow the delivery of e-mail sent by third-parties to individuals who utilize Defendant as an ISP.

Instructions

N. In responding to these requests, furnish all information in Defendant's possession, custody or control and in the possession, custody or control of Defendant's members, managers, employees, agents, attorneys, representatives, and any other persons acting on Defendant's behalf, and not merely such matter as is in Defendant's possession.

O. These requests are to be deemed continuing. Defendant is requested to provide, by way of supplementary responses, such additional information and documentation as may hereafter be obtained by Defendant, or any person on Defendant's behalf, that will
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augment, supplement or otherwise modify the answers now given to the following requests.

P. If any of these requests cannot be responded to in full, answer to the extent possible, specifying the reasons for Defendant's inability to answer to the remainder and stating what information you do have concerning the unanswered portion.

Privileged Matter

You are requested to identify and list all documents called for by this request but withheld from production on the grounds of attorney-client privilege, work product privilege, or on any other basis, and to specify in writing the grounds for your withholding such documents. All such documents shall be segregated, and retained by your counsel pending a ruling by the Court on the claimed privilege. Each document shall be identified by:

Author and recipient(s), including titles of such persons;
Date of document;
Number of pages, attachments, and appendices;
A general description of the nature and subject matter of the document;
Subject matter and nature of privilege claimed;
Present custodian; and
Reason the document was not produced.

Material Lost Or Destroyed

If any documents requested herein have been lost, discarded or destroyed, the documents so lost, discarded or destroyed shall be identified as completely as possible, including identification as set forth above under "Privileged Matter" and the following information: date of disposal or
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loss, person authorizing the disposal, persons having knowledge of the disposal or loss, and person disposing of the document.

Documents Requested

1. All documents relating to the e-mail filters, blacklists and blocking technologies utilized by Defendant.

2. All documents referred to by you in your answers to Plaintiff's Interrogatories.

3. All documents related to any content filtering systems utilized by Defendant.

4. All documents relating to any third-party sources used in connection with Defendant's decision to block e-mail sent by Plaintiff.

5. All documents relating to your communications with any person about Plaintiff.

6. All documents relating to your communications with Plaintiff.

7. All documents relating to why you placed blocked e-mail sent by Plaintiff to your customers.

8. All documents relating communications you had with anyone discussing why you placed blocked e-mail from Plaintiff.

9. All documents relating communications you had with anyone discussing why you placed blocked e-mail sent by Plaintiff.

10. All documents relating to Plaintiff violating Defendant's Acceptable Use Policy.

11. All documents relating to Plaintiff violating Defendant's Terms of Service agreements.

12. All documents relating to any communications Defendant had with Spamhaus, Spamhaus Technology, Spamhaus volunteers, other businesses relating to Plaintiff.

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13. All documents relating to any communications Defendant had with Spamhaus, Spamhaus Technology, Spamhaus volunteers, other businesses concerning this litigation.

14. All documents relating to following error message from Comcast for all of the messages e360 attempted to send:
"550 5.2.0 63.210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net -> BL004 Blocked for spam. Please see http://www.comcast.net/help/fag/index.isp?faq=SecurityMail_Policy18628"

15. All documents relating to the integration of Brightmail technology into the Comcast network and all documents describing the features and functions contained in the Brightmail application that are used to identify, score, block and/or filter inbound email messages.

16. All documents relating to the integration of MAPS technology by TrendMicro into the Comcast network and all documents describing the features and functions contained in the MAPS application that are used to identify, score, block and/or filter inbound email messages.

17. All documents relating to any agreements to allow the delivery of e-mail by other entities (entities that are "White Listed") that deliver email messages to individuals who utilize Comcast as an ISP.

18. All documents relating to any written or verbal agreements between Comcast and any email marketing companies, including email service providers (ESPs) that related to the delivery of email messages to Comcast's network.

19. All documents related to complaint rates, bounce rates, trap hits, message volume sent and any other metrics used by Comcast to determine whether an email message should be blocked or filtered from its intended recipient.

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20. All documents related to complaints received by Comcast regarding e360.

21. All documents, including but not limited to logs created or used by email administrators, related to blocked email messages.

Respectfully submitted,

e360Insight, LLC.,

By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

-21-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

PLAINTIFFS' FIRST SET OF REQUESTS TO ADMIT

Plaintiff, e360Insight, LLC ("e360"), by and through its attorneys, Carla E. Guterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, pursuant to Federal Rules of Civil Procedure 26 and 36, propounds the following Requests to Admit to Defendant Comcast Corporation, (Defendant), to be answered within 30 days of the date of the attached certificate of Service.

Request to Admit

1. Plaintiff has not violated Defendant's Acceptable Use Policy.

2. Plaintiff has not violated Defendant's Terms of Service agreements.

3. Defendant is an internet service provider ("ISP") that provides email service to its customers and Defendant has agreed to act as an intermediary in delivering and receiving emails on behalf of its customers.

4. Commencing as early as 2005, Defendant blocked emails e-mail messages e360 repeatedly attempted to send to Comcast customers.

5. Defendant refuses to provide e360 with any information as to how e360 could modify its email messages to avoid triggering the block of its rightfully sent email messages.

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6. Plaintiff has contacted Defendant in attempts to get Defendant to allow Plaintiff's email to get through to parties utilizing Comcast as an ISP.

7. Defendant has transmitted inaccurate response data to Plaintiffs computer servers.

8. Defendant has blocked e-mail sent by Plaintiff to e-mail accounts of Defendant's customers.

9. Defendant uses multiple email filters, including third-party companies and internal blacklists, to filter and block emails.

10. On March 5, 2007, Plaintiff notified Defendant that Defendant's use of the Spamhaus blacklist was improperly blocking Plaintiff's email messages and was improperly interfering with Plaintiffs legitimate business.

11. Defendant has blocked and continues to block emails sent by Plaintiff to its customers based on information obtained from Spamhaus.

12. Defendant has blocked and continues to block emails sent by Plaintiff to its customers based on other third-party and internal blacklists and other software filters supplied by third-parties.

13. Use of the software filters includes blocking e-mail based on the content of the e-mail sent.

14. Defendant has transmitted inaccurate bounce information to Plaintiffs mail server.

15. Defendant has knowledge of the Plaintiffs prospective business relationships with Comcast users.

16. Defendant intentionally and knowingly slowed its processing time of when contacted by e360 computers in and effort to send e-mail.

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17. Defendant knows that entities sending e-mail to Defendant's customers rely on Defendant to provide accurate and truthful information regarding the deliverability of mail and the activity status of email addresses of Defendant's customers.

18. Plaintiff has the right to send commercial emails to its consumers and consumers who have asked or agreed to receive its email.

19. Defendant informs third-parties that if the third-party adheres to Defendant's Acceptable Use Policy, Abuse Policy and Agreement for Services the e-mail from the third-party to Defendant's customers will be delivered.

20. Defendant has entered into agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast's Acceptable Use policy.

Respectfully submitted,
e360Insight, LLC.,
By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

MOTION for Preliminary Injunction

Remember when I said "This will be the sad saga of this short lawsuit filed by a little company that can't seem to deliver its email without the assistance of the federal judiciary"?

Well, here it is! This is the official request by e360Insight to have the federal judiciary "make the Bad Man let me send my email!"

The two attachments are not included in the OCR version, but are in the PDF file. One is an extremely conclusory affidavit by Linhardt wherein he vigorously protests that what he sends isn't spam and that Comcast is generally mean and evil for prosecuting a Denial of Service attack against him by "consuming, destroying, altering, or withholding" e360's email. He also claims to be following Comcast's Terms of Service agreement (except, apparently, for the arbitration clause) which is attached as the second exhibit.

=======================================
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

MOTION FOR PRELIMINARY INJUNCTION

NOW COMES, Plaintiff, e360lnsight, LLC ("e360"), by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, and for its Motion for a Preliminary Injunction pursuant to Fed. R. Civ. P. 65 against Defendant, Comcast Corp. ("Comcast"), states as follows:

INTRODUCTION

e360, an internet marketing company seeks a preliminary injunction against Comcast, an internet service provided ("ISP") to enjoin Comcast from wrongfully and repeatedly blocking email sent by e360 to e360's customers, who have requested to receive e-mail from e360, from violating e360's first amendment rights by blocking e-mail based on the content of the e-mail, from transmitting inaccurate response data in an attempt to significantly delay e360's connections in order to virtually incapacitate e360's computer mail servers and from transmitting inaccurate bounce data regarding the status of e-mail accounts managed by Comcast. Comcast's activity has already caused e360 to lose substantial and significant business.

Despite e360 informing Comcast that e360 was only sending e-mail to customers who have requested that e360 send them e-mail and despite informing Comcast of the damage its
-2-
actions caused (and continues to cause) e360, Comcast continues its refusal to allow the delivery of e-mail sent to the customers of e360 who receive e-mail through their own e-mail accounts with Comcast. Further, Comcast has continued to transmit inaccurate response data to e360's computers that are trying to send such e-mail. Finally, Comcast has continued to transmit inaccurate bounce data regarding the status of e-mail accounts managed by Comcast. Comcast should be preliminarily enjoined from (1) arbitrarily blocking all e-mails sent by e360 to e360's customers who have e-mail accounts with Comcast; (2) violating e360's free speech rights by censoring e360's e-mail based on the content of the e-mail; (3) transmitting inaccurate bounce data; and (4) engaging in denial of service attacks on 360's computers.

FACTUAL BACKGROUND

1. e360 is an e-mail marketing company whose business practices have, at all times relevant to the allegations in the Complaint, complied with, and continue to comply, with all federal and state requirements, laws and standards pertaining to the sending of commercial e-mail, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 USC § 7701 (CAN-SPAM). (See Affidavit of David Linhardt attached hereto as Exhibit A).

2. e360 delivers its messages to its customers at addresses provided by said customers. Id. The customers thus require e360 to use Internet Service Providers ("ISP") to deliver the requested e-mail. Id.

3. Comcast is an ISP that provides e-mail service to its customers and who has agreed to act as an intermediary in delivering and receiving e-mail on behalf of its customers.

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4. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services, attached and incorporated into this Motion as Exhibit B.

5. At all relevant times, e360 has complied with Comcast's Acceptable Use and Abuse Policies. (See Exhibit A).

6. e360 is hired by and partners with companies that wish to market their products or services using the internet. Id. This marketing is targeted to persons "opting in" to a list whereby they agree to accept e-mail announcements and/or advertisements. Id. These persons sign up at websites owned by e360 or at websites owned by e360's marketing partners. Id. e360 regularly attempts to verify the desire by such customers to receive e-mails utilizing a "double opt-in" process, which involves sending a confirmatory e-mail allowing the customer to affirm or terminate its decision to receive marketing e-mail. (See Exhibit A). Those customers who affirm their interest in receiving e-mail messages are included in subsequent e-mail messages until they unsubscribe at a later date or until e360 receives information showing the e-mail account in question is closed. Id.

7. e360 provides the consumer the ability to "opt-out" of receiving e-mail in every email sent and promptly complies with every request made by a consumer. Id.

8. e360 does not engage in "spamming.". e360 only sends e-mail messages to persons who first sign up or opt-in and provide their e-mail address to e360 or to one of e360's marketing partners. Id. e360 employs a variety of permission processes that it controls and that its marketing partners use to obtain permission from and provide notice to the consumer that received the e-mail. Id.

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9. At all relevant times, and commencing as early as 2005, Comcast regularly blocked e-mail e360 attempted to send to Comcast customers (who had signed up to receive such e-mail) including some of who have double-confirmed their wish to receive the e-mail. (See Exhibit A). The blocking of these messages by Comcast interferes with e360's ability to do business and interferes with e360's business relationship with its customers who use Comcast. Id.

10. All instances where Comcast has blocked e360 e-mail addresses are too voluminous to mention in this complaint. As a recent example, Comcast blocked virtually all of e360's e-mail messages on August 23, 2007. e360 attempted to send e-mail messages to its customers, including those who have "double-confirmed" their interest in receiving e360's email messages. e360 used ip address 63.210.103.209 to connect to Comcast's mail servers. e360 received the following error message from Comcast for all of the messages e360 attempted to send. "550 5.2.0 63.210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net -> BL004 Blocked for spam. Please see http://www.comcast.net/helpMq/index.jsv?faq=SecurityMail_Policy18628"

By following the link provided in the Comcast error message, e360 was directed to the following information on Comcast's website:

"Mail to Comcast is rejected and is returned with an error message containing the code BL004. What does this mean? Our filters have determined that e-mail from your mail server has been sent in patterns which are characteristic of spam. In an effort to protect subscribers, your mail server has been blocked from sending email to the Comcast network. Mail servers are typically shared by many users so
-5-
it may be the case that another party using your mail server has sent spam, even if you have not."

11. e360 cannot reasonably ascertain how its messages may have been sent "in patterns which are characteristic of spam." Comcast refuses to provide e360 with any information as to how e360 could modify its e-mail messages to avoid triggering the block of its rightfully sent e-mail messages or the delivery of this error message. (See Exhibit A).

12. e360 has on numerous occasions contacted Comcast in attempts to get Comcast to allow e360's e-mail to get through to its customers. Id.

13. At all relevant times, and possibly commencing as early as 2005, Comcast has regularly held or severely and significantly delayed e-mail e360 has attempted to send to its customers who utIllzed Comcast as an ISP who have signed up to receive such e-mails, and Comcast has refused to release such e-mails through its system, a practice commonly known as "tar-pitting" and is type of "denial of service attack" on e360's mail servers. Id. Comcast regularly transmits inaccurate response data in an attempt to significantly delay e360's connections in order to slow or incapacitate e360's mail servers. Id. e360's sending mail servers track and report average response time for each recipient domain. The average response time is defined as the time it takes for the recipient domain to process a message; to receive the message and to acknowledge receipt. As recently as December 11, 2007, e360 recorded an average response time of 18,433 seconds or 5.1 hours to process a single e-mail message to a customer using Comcast's e-mail service. Id. (A typical e-mail message sent to a recipient where the ISP is not engaged in a denial of service attack is delivered in less than 2-5 seconds). Id. During this time, Comcast's mail servers transmit inaccurate response information to keep the connection active and to erode e360's system capacity. In doing so, Comcast has interfered with e360's
-6-
ability to send e-mail, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360's servers. (See Exhibit A).

14. At all times relevant hereto, and commencing as early as 2005, Comcast has regularly blocked e-mail e360 has attempted to send to its customers who utIllze Comcast as an ISP and who have signed up to receive such e-mail, including customers who have double confirmed their wish to receive e-mail solely on the grounds that such e-mail contains specific words or phrases, such as "free". Id. Such arbitrary censorship by Comcast violates e360's First Amendment rights and is an unacceptable infringement of e360's commercial speech based on content.

15. Comcast has blocked and continues to block e-mail sent by e360 to its customers based on third-party and internal blacklists and other software filters supplied by third-parties. Some of the known blocking technologies used by Comcast include Spamhaus, MAPS by TrendMicro and Brightmail by Symantec.

16. Comcast has engaged in `denial-of-service' attacks on e360's network and computer system by consuming, destroying, altering or withholding e-mail sent by e360 to its customers. Id. Such attacks overwhelm and disable e360's network and prevent it from sending e-mail to or receiving e-mail from e360's consumers in an attempt to halt e360's business. Id.

17. Comcast has transmitted inaccurate information to e360's mail servers specific to e-mail addresses contained on e360's opt-in marketing list. Id. The responses sent by Comcast mail servers to e360 are inaccurate because they contain information indicating that the e-mail address is invalid and not active. As an e-mail marketer, e360 relies on the information from Comcast's mail servers to determine whether e360's customer e-mail addresses are still active and deliverable. Id. e360 has information and reason to believe Comcast is intentionally
-7-
transmitting inaccurate bounce information to e360 in an attempt to discourage e360 from sending additional e-mail messages. (See Exhibit A). By transmitting inaccurate bounce information, Comcast is effectively destroying e360's proprietary assets and the value contained in e360's opt-in database of e-mail addresses. Id.

ARGUMENT

I Legal Standards Applicable to Preliminary Injunctions

Because this action is based on diversity jurisdiction, the Court must apply the substantive law of Illinois. Assn Ben. Servs. v. Caremark Rx, Inc., 493 F.3d 841, 849; 2007 U. S. App. LEXIS 16750 * 16 (7th Cir. 2007).

Preliminary injunctions are interlocutory remedies. Interlocutory injunctions are intended to provide immediate but durational relief prior to the final adjudication of a controversy on the merits. Hartlein v. Ill. Power Co., 151 Ill.2d 142, 601 N.E.2d 720, 176 Ill.Dec. 22 (1992). The purpose of an interlocutory injunction is to preserve the status quo . Hartlein v. Ill. Power Co,, 151 Il1.2d 142, 601 N.E.2d 720, 176 Ill.Dec. 22 (1992); Citizens Utilities Co. of Ill. v. O'Connor, 116 Ill.App.3d 369, 451 N.E.2d 946, 71 Ill.Dec. 792 (2nd Dist. 1983). "Status quo" is defined as the "last, actual, peaceable, uncontested status which preceded the pending controversy." Postma v. Jack Brown Buick, Inc., 157 Ill.2d 391, 626 N.E.2d 199, 202, 193 I1l.Dec. 166 (1993).

Another expressed purpose of an interlocutory injunction is the prevention of a threatened wrong or further perpetration of injury until the merits of the case can be decided. People v. Kerr-McGee Chem. Corp., 142 Ill.App.3d 1104, 492 N.E.2d 1003, 97 H.Dec. 344 (2nd Dist. 1986). The prevention of the dissipation or destruction of property is an additional ground cited for the issuance of an interlocutory injunction. In re Marriage of Joerger, 221 Ill.App.3d 400, 581 N.E.2d 1219, 163 Ill.Dec. 796 (4th Dist. 1991). See also Save the Prairie Socy. v. Greene Dev. Group, Inc., 323 I1l.App.3d 862, 752 N.E.2d 523, 256 Ill.Dec. 643 (1st Dist. 2001).

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Illinois courts consider four factors before an injunction will be granted: (1) that the plaintiff possesses a clearly ascertained right in need of protection; (2) that the plaintiff will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for the plaintiffs injury; and (4) that the plaintiff is likely to be successful on the merits of its action. People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 781 N.E.2d 223, 269 Ill. Dec. 426 (2002); Callis, Papa, Jackstadt & Halloran, P. C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365, 748 N.E.2d 153, 254 Ill. Dec. 707 (2001).

II Comcast's' Conduct Meets The Legal Standard For Granting A Preliminary Injunction.

A. Plaintiffs Rights in Need of Protection.

The standard for establishing a sufficient legal right requires only that the party seeking relief raise a fair question as to the existence of the right claimed. Baal v. McDonald's Corp., 97 Ill. App. 3d 495, 500, 422 N.E. 2d 1166, 1171, 52 Ill. Dec. 957 (1st Dist. 1981); In re Marriage of Estelle Weber, 182 Ill. App. 3d 212, 219, 537 N.E. 2d 1024, 1029, 130 Ill. Dec. 695 (1st Dist. 1989). The right to conduct a business may be sufficient to warrant the issuance of an injunction. Conti. Cablevision of Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 606 N.E.2d 587, 179 Ill. Dec. 755 (1st Dist. 1992); Morrison Metalweld Process Corp. v. Valent, 97 Ill. App. 3d 373, 422 N.E. 2d 1034, 52 Ill. Dec. 825 (1st Dist. 1981). Moreover, threatened interests in business goodwill are valid business interests in need of protection. Wilson v. Wilson, 217 Ill. App. 3d 844, 577 N.E.2d 1323, 160Ill. Dec. 752 (1st Dist. 1991) (citing U-Haul Co. of C. Ill. v. Hindahl, 90 Ill. App. 3d 572, 577 (3rd Dist. 1980).

Here, e360 has clearly established legal rights that need protecting under the circumstances brought on by Comcast's conduct. e360 has lost its right to conduct its business as a result of Comcast's unilateral decision to (1) block e-mail sent by e360 to e360's customers

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who happen to use Comcast as their ISP and e-mail host based on various criteria; including (2) impermissibly blocking e-mail based on content in direct violation of e360's constitutional right of free speech.; (3) transmitting inaccurate response data in an attempt to significantly delay e360's connections in order to virtually incapacitate e360's computer mail servers; and, (4) transmitting inaccurate bounce data regarding the status of e-mail accounts managed by Comcast.

This is not a case where an injunction is being sought "on a mere suspicion of an intended wrong, or upon speculation or conjecture, or because there is a mere possibility or apprehension on part of the plaintiff that some illegal act will be done." See Callis v. Norfolk, 195 Ill. 2d 356, 366, 748 N.E. 2d 153, 159, 254 Ill. Dec. 707 (2001); Smith Oil Corp. v. Viking Chem. Corp., 127 Ill. App. 3d 423, 468 N.E. 2d 797, 82 Ill. Dec. 250 (2nd Dist. 1984). Here, improper acts have already occurred and continue to occur. There is no reason to suspect that additional improper acts will not occur in the future absent this Court enjoining Comcast's actions.

B. Plaintiff Will Suffer Irreparable Harm

Under Illinois law, "an injury is `irreparable' when it is of such a nature that the injured party cannot be adequately compensated or when damages cannot be measured by any pecuniary standard." Falcon Ltd. v. Corr's Natl. Bevs., h7C, 165 Ill. App. 3d 815, 821, 520 N.E.2d 831, 117 Ill. Dec. 480 (1st Dist. 1987) "Irreparable harm" does not necessarily mean injury that is beyond repair. "Irreparable harm" can also mean harm of a continuing nature. Lucas v. Peters, 318 I l1.App.3d 1, 741 N.E.2d 313, 251 Ill.Dec. 719 (1st Dist. 2000). Here, Comcast's continued improper conduct will cause significant injury to e360, not only in loss of business due to its inability to deliver commercial e-mail, but also to its reputation of having a highly accurate and

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valid list of e-mail recipients that have opted in to receive commercial e-mail messages. This is harm that is clearly irreparable.

To put a monetary value on the investment of time in building e360 is incalculable. Injury to goodwill and reputation contributes to a loss of competitive position, which ultimately results in the loss of future customers and revenues. Goodwill and reputation are intangible and incapable of being measured. Wilson v. Wilson, 217 Ill. App. 3d 844, 577 N.E. 2d 1323, 160 Ill. Dec. 752 (1st Dist. 1991); A-Tech Computer Servs., Inc. v. Wayne Soo Hoo, 254 Ill. App. 3d 392, 627 N.E. 2d 21, 193 Ill. Dec. 862 (1st Dist. 1991). Courts have held that even if immediate damages could be calculated, injury to reputation, goodwill and potential loss is incapable of adequate compensation. U-Haul Co. of C Ill. v. Hindahl, 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 45 Ill. Dec. 854 (3rd Dist. 1980). The amount of damage is manifested as a loss of customers, goodwill and future profits. These are so variable in nature that damages are hard to assess with any degree of accuracy. A-Tech Computer Services, Inc., 254 Ill. App. 3d at 401.

Moreover, "a showing of irreparable injury is related to the proof of a legitimate business interest. Once a protectible interest has been established, injury to plaintiff will presumably follow if that interest is not protected." Donald McElroy, Inc. v. Delaney, 72 Ill. App. 3d 285, 294, 389 N.E.2d 1300, 27Ill. Dec. 892 (1st Dist. 1979).

Irreparable harm would occur absent an injunction because nothing could be done to restore the status quo should the Comcast be allowed to continue to draw into question the quality of e360's e-mail list.

C. There is No Adequate Remedy at Law
An adequate remedy at law is a remedy that is clear and complete and that would provide the same practical and efficient resolution as an injunction would provide. Tainalunis v. Georgetown 134 Ill.Dec. 223 (4th Dist. 1989). Money
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damages may not be an adequate remedy if the potential loss of future revenues is incapable of adequate computation or damages are difficult to quantify at the time of hearing. Eagle Books, Inc. v. Jones, 130 I1l.App.3d 407, 474 N.E.2d 444, 85 Il1.Dec. 716 (4th Dist.), cert. denied, 106 S.Ct. 249 (1985).

In this case, it is impossible to calculate the damages associated with the damaged reputation with e360's current business partners and future prospects or the value of e360's very existence. Money damages here cannot adequately compensate e360 for the wrongful destruction of an otherwise viable business whose goodwill can never be recaptured. Nor can e360's reputation be adequately remedied by monetary damages.

Courts have held that even if immediate damages could be calculated, injury to reputation, goodwill and potential loss is incapable of adequate compensation. U-Haul Co. of C. Ill. v. Hindahl, 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 45 Ill. Dec. 854 (3rd Dist. 1980). The amount of damage is manifested as a loss of customers, goodwill and future profits. These are so variable in nature that damages are hard to assess with any degree of accuracy. A-Tech Computer Services, Inc., 254 Ill. App. 3d at 401.

D. Plaintiff is Likely to Succeed on the Merits

To establish a likelihood of success on the merits, a party "is not required to make out a case which will in all events warrant relief at a final hearing." All Seasons Excavating Co. v. Bluthardt, 229 Ill. App. 3d 22, 26, 593 N.E. 2d 679, 682, 170 Ill. Dec. 790 (1st Dist. 1992); Tie Sys ,Inc. v. Telcom Midwest, Inc., 203 I11.App.3d 142, 560 N.E.2d 1080, 148 Ill.Dec. 483 (1st Dist. 1990). Rather, a party needs only raise a "fair question as to the existence of the rights claimed, [and] lead the court to believe that it will probably be entitled to the relief sought if the proof sustains the obligations." Buzz Barton & Assocs, Inc. v. Giannone, 108 Il1.2d 373, 382,
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483 N.E.2d 1271, 1275 91 Ill. Dec. 636 (1985); Keefe-Shea Jt. Venture v. Evanston, 332 Ill. App. 3d 163, 174, 773 N.E. 2d 1155, 1164, 266Ill. Dec. 85 (1st Dist. 2002).

Here Comcast's blocking of e360's e-mail and Comcast's continued transmission of inaccurate response data clearly gives rise to viable claims for tortious interference with prospective economic advantage; violation of computer fraud and abuse act; violation of e360's right to free speech; and, unfair competition and business practices. e360 has clearly raised a fair question as to the existence of the rights it claims -- an interest in the viabIllty of the business of e360 as a going concern. e360 has also presented a fair question that it will likely succeed on the merits, given the nature of Comcast's conduct, Comcast's refusal to cease its blocking of e360's e-mail, Comcast's refusal to follow the rules it promulgates and the direct and dire consequences this conduct undeniably has had on e360's ability to conduct its business.

Comcast's behavior threatens the very existence of e360 and is systematically decreasing the value of e360's e-mail database. e360 has no other alternative than to pursue the protection of its rights through injunctive relief.

E. The Equities Balance In Plaintiffs' Favor

In addition to consideration of the above criteria, a fifth factor frequently considered by courts is that the benefits of granting the injunction outweigh the possible harm that defendant might suffer as a result. Limestone Dev. Corp. v. Village of Lemont, 284 Ill.App.3d 848, 672 N.E.2d 763, 219 I11.Dec. 910 (1st Dist. 1996); Gold v. ZiComnnn. Co., 196 Ill.App.3d 425, 553 N.E.2d 404, 142 Il1.Dec. 890 (1st Dist. 1989).

Under the circumstances of this case, the benefit of granting an injunction clearly outweighs any possible harm to Comcast. While the harm to e360 resulting from Comcast's conduct is undeniable, it is difficult to imagine what harm might possibly befall Comcast should it be required to permit the transmission of e-mail from e360 to individuals who have already
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requested that they receive said e-mail. Comcast suffers no material harm whatsoever as a result of this Court granting the preliminary injunction e360 seeks.

CONCLUSION

e360 cannot await a trial to obtain the permanent injunction it seeks in this matter. By then, Comcast could succeed in putting e360 out of business or, at a minimum, destroying its reputation to the point that it can never recover. e360 has clearly established all of the elements necessary to obtain a preliminary injunction and have further established that Comcast will suffer no material harm by the injunction issuing and pending through the remainder of this litigation.

WHEREFORE, Plaintiff, e3601nsight, LLC, respectfully requests that this Court enter an Order granting this motion and entering an order:

a. Requiring Comcast to allow the transmission of e-mail from e360 to Comcast customers;

b. requiring Comcast to cease and desist from the transmission of bogus response data; and

c. granting any further relief the court deems just and appropriate.

Respectfully submitted,
e360Insight, LLC.,
By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
MotPrelimInj.pdf	06/28/09 1:05 pm	2.63 MB

Motion for Judgment on the Pleadings

This suit was destined to be quick. Thus, the theme for this filing and it's supporting memorandum is: "e360Insight's Case Constitutes an EPIC FAIL".

This is Comcast's Motion for Judgment on the Pleadings. That means that Comcast feels that discovery is completely unnecessary because the suit is frivolous and so they're asking the judge to not waste any more time, look at the existing pleadings, and just go ahead and rule, before discovery even gets started.

If Comcast wins this one, look for them to possibly file for sanctions and for e360 to pay their attorneys' fees and costs.

===================================
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

COMCAST CORPORATION’S MOTION FOR JUDGMENT ON THE PLEADINGS

Pursuant to Fed. R. Civ. P. 12(c), Comcast Corporation (“Comcast”) respectfully moves the Court for entry of judgment in Comcast’s favor on each of Plaintiff’s causes of action. Judgment is appropriate here since Comcast is immune from each of Plaintiff’s claims under the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230, and various state law statutes immunizing actions of e-mail service providers taken to filter or block spam and other objectionable e-mails.

In addition, Plaintiff has failed to state any claim on which relief can be granted. Plaintiff’s first cause of action, for tortious interference with prospective economic advantage, fails as a matter of law because Plaintiff’s pleadings do not establish any cognizable relationship with which Comcast improperly interfered.

Plaintiff’s second cause of action, for violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(5)(A)(i) and (iii) fails because Plaintiff has failed to allege that Comcast improperly accessed any of its computers with respect to the allegedly damaging activities of which Plaintiff complains.

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Plaintiff’s third cause of action, for violation of Plaintiff’s First Amendment rights, fails because Plaintiff has not and cannot allege that Comcast is a state actor, that its action constitute state action, or that it is acting under color of state law.

Plaintiff’s fourth and final cause of action, for unfair competition and business practices under the Illinois Consumer Fraud Act, 815 ILCS 505/2, fails because Plaintiff has not identified any deceptive trade practice or practice that can be deemed unfair as defined under the law, which requires an action that offends public policy, that is immoral, unethical, oppressive, or unscrupulous, or that causes substantial injury to consumers. Moreover, Plaintiff is not a consumer and thus, to maintain a claim under the ICFA, must demonstrate a nexus between Comcast’s complained-of behavior and harm to consumers. Plaintiff does not identify any consumer harm, and clearly seeks to recover for alleged harm to itself, which is not proper under the ICFA.

For the foregoing reasons and those set forth in Comcast’s Memorandum in Support of its Motion for Judgment on the Pleadings, Comcast respectfully requests that the Court enter judgment in its favor.

Dated: March 4, 2008

Respectfully submitted,

LOEB & LOEB LLP

/s/ Douglas N. Masters
Douglas N. Masters (6199010)
Nathan J. Hole (6283099)
321 N Clark Street, Suite 2300
Chicago, IL 60610
Phone: (312) 464-3144
Fax: (312) 464-3111
[Email address redacted]
Attorneys for Defendant
Comcast Corporation

Attachment	Date	Size
MotJudgmentPleadings.pdf	06/28/09 1:05 pm	33.26 KB

Comcast's ANSWER and Affirmative Defenses

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

COMCAST’S ANSWER AND AFFIRMATIVE DEFENSES

Defendant, Comcast Corporation (“Comcast”), answers the complaint of Plaintiff, e360insight, LLC (“e360”), as follows:

1. e360insight, LLC (hereafter “e360”) is an Illinois limited liability corporation located in Wheeling, Illinois. e360 is an internet marketing company.

ANSWER: Comcast admits that e360 is an Illinois limited liability corporation located in Wheeling, Illinois. Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 1, and therefore denies these allegations.

2. Comcast Corporation (hereafter “Comcast”) is a Pennsylvania corporation principally located in Philadelphia Pennsylvania. Comcast is an internet service provider.

ANSWER: Comcast admits that it is a Pennsylvania corporation with a principal place of business in Philadelphia, Pennsylvania. Comcast admits that, by and through its subsidiaries, is an internet service provider (“Comcast’s ISP Services”).

3. Jurisdiction is proper and based on 28 USC § 1332 as the parties are citizens of and principally located in separate states and the amount in controversy exceeds seventy-five
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thousand dollars. Jurisdiction is also proper based on 28 USC § 1331 as this action arises under 18 USC § 1030, The Computer Fraud and Abuse Act.

ANSWER: Comcast admits that the dispute involves citizens of different states. Comcast is without knowledge or information sufficient to form a belief as to e360’s allegations as to the amount in controversy with respect to its claims, and therefore denies those allegations. Comcast admits that e360 has made allegations arising under 18 USC § 1030, the Computer Fraud and Abuse Act.

4. e360 is an email marketing company whose business practices have, at all times relevant to the allegations in this Complaint, complied with, and continue to comply, with all federal and state requirements, laws and standards pertaining to the sending of commercial email, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 USC § 7701 (“CAN-SPAM”).

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 4, and therefore denies these allegations.

5. e360 delivers its messages to its customers at addresses provided by said customers. The customers thus require e360 to use Internet Service Providers (“ISPs”), such as Comcast. At all times relevant to the claims asserted in this Complaint, e360 has complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by Comcast.

ANSWER: Because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are readily identifiable as coming from e360, Comcast is without knowledge or information sufficient to
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form a belief as to the truth of the allegations of this paragraph 5, and therefore denies these allegations.

6. e360 has at all times relevant to the claims asserted in this Complaint, complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by Comcast.

ANSWER: Because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are identifiable as coming from e360, Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 6, and therefore denies these allegations.

7. e360 is hired by and partners with companies that wish to market their products or services using the internet. This marketing is targeted to persons “opting in” to a list whereby they agree to accept email announcements and/or advertisements. These persons sign up at websites owned by e360 or at websites owned by e360’s marketing partners. e360 then may attempt to verify the desire to receive emails utilizing a “double opt-in” process, which involves sending a confirmatory email allowing the customer to affirm or terminate its decision to receive marketing emails. Those customers who affirm their interest in receiving email messages are included in subsequent email messages until they unsubscribe at a later date or until e360 receives bounce information (showing the email account in question is closed) from Comcast.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to truth of the allegations of this paragraph 7, and therefore denies these allegations.

8. e360 provides the consumer the ability to “opt-out” of receiving emails in every email sent and promptly complies with every request made by a consumer.

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ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 8, and therefore denies these allegations.

9. e360 does not engage in “spamming,” which is essentially the digital equivalent of sending junk mail that is not requested. e360 only sends email messages to persons who first sign up or opt-in and provide their email address to e360 or to one of e360’s marketing partners. e360 employs a variety of permission processes that it controls and that its marketing partners use to obtain permission from and provide notice to the consumer that received the email.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 9, and therefore denies these allegations.

10. e360 has been approved by ReturnPath, a leading provider of reputation monitoring services to the ISP community, including Microsoft/Hotmail. In an independent audit of e360’s mailing practices, ReturnPath approved e360 for the SenderScore Certification Program, which is Return Path’s highest level of certification among legitimate email marketers.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 10, and therefore denies these allegations.

11. Comcast is an internet service provider (“ISP”) that provides email service to its customers and who has agreed to act as an intermediary in delivering and receiving emails on behalf of its customers.

ANSWER: Comcast admits that, by and through its subsidiaries, it provides ISP and e-mail services to its subscribers, but denies e360’s characterization of its obligations to subscribers. CH40480.7

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12. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services, attached and incorporated into this Complaint as Exhibit A.

ANSWER: Comcast admits its subscribers and the public may access the current Comcast Acceptable Use Policy for High-Speed Internet Services, the Comcast Agreement for Residential Services, and a link to Report Abuse at www.comcast.net/terms/, but denies the allegations of this paragraph 12, as the documents available on the website speak for themselves.

13. At all relevant times, e360 has complied with Comcast’s Acceptable Use and Abuse Policies.

ANSWER: Because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are readily identifiable as coming from e360, Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 13, and therefore denies these allegations.

14. At all relevant times, and commencing as early as 2005, Comcast regularly blocked emails e360 has repeatedly attempted to send to emails [sic] to Comcast customers (who have signed up to receive such emails,) including some of who have double-confirmed their wish to receive the emails. Such blocking by Comcast interferes with e360’s ability to do business and interferes with e360’s business relationship with its customers who use Comcast.

ANSWER: Comcast admits that some of e360’s emails directed to subscribers of Comcast’s ISP Services have been filtered out by a highly proprietary and confidential filtering technology operated in accordance with industry standards (“Comcast’s Filtering System”), but
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is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph 14, and therefore denies these allegations.

15. All instances where Comcast has blocked e360 email addresses are too voluminous to mention in this complaint. As a recent example, Comcast blocked virtually all of e360’s email messages on August 23, 2007. e360 attempted to send email messages to its customers, including those who have “double-confirmed” their interest in receiving e360’s email messages. e360 used IP address 63.210.103.209 to connect to Comcast’s mail servers. e360 received the following error message from Comcast for all of the messages e360 attempted to send.

“550 5.2.0 63 .210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net -> BL004 Blocked for spam. Please see http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18628”

By following the link provided in the Comcast error message, e360 was directed to the following information on Comcast’s website:

“Mail to Comcast is rejected and is returned with an error message containing the code BL004. What does this mean? Our filters have determined that email from your mail server has been sent in patterns which are characteristic of spam. In an effort to protect subscribers, your mail server has been blocked from sending email to the Comcast network. Mail servers are typically shared by many users so it may be the case that another party using your mail server has sent spam, even if you have not.”

ANSWER: Comcast admits that some e-mails of e360’s directed to subscribers of Comcast’s ISP Services have been filtered out by Comcast’s Filtering System, but because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are readily identifiable as coming from e360, it is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph 15, and therefore denies these allegations.

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16. e360 cannot reasonably ascertain how its messages may have been sent “in patterns which are characteristic of spam.” Comcast refuses to provide e360 with any information as to how e360 could modify its email messages to avoid triggering the block of its rightfully sent email messages or the delivery of this error message.

ANSWER: Comcast admits that it has refused to provide e360 with highly proprietary, confidential and sensitive information relating to Comcast’s Filtering System, but denies the remaining allegations of this paragraph 16.

17. e360 has on numerous occasions contacted Comcast in attempts to get Comcast to allow e360’s email to get through to its customers. Comcast has refused to allow such emails.

ANSWER: Comcast admits that e360 has contacted Comcast, or one of its subsidiaries, regarding its emails, but denies the remaining allegations of this paragraph 17.

18. At all relevant times, and possibly commencing as early as 2005, Comcast has regularly held or severely and significantly delayed emails e360 has attempted to send to Comcast customers who have signed up to receive such emails, and refused to release such emails, a practice commonly known as “tar-pitting” and is [a] type of “denial of service attack” on e360’s mail servers. Comcast regularly transmits bogus response data in an attempt to lock up e360’s connections in order to slow or incapacitate e360’s mail servers. e360’s sending mail servers track and report average response time for each recipient domain. The average response time is defined as the time it takes for the recipient domain to process a message; to receive the message and to acknowledge receipt. As recently as December 11, 2007, e360 recorded an average response time of 18,433 seconds or 5.1 hours to process a single email message. During this time, Comcast’s mail servers transmit bogus response information to keep the connective active and to erode e360’s system capacity. In doing so, Comcast has interfered with e360’s
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ability to send email, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360’s servers.

ANSWER: Comcast denies that it, or any of its subsidiaries, have engaged in “tar-pitting” or “denial-of-service attacks.” Because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are readily identifiable as coming from e360, Comcast is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph 18, and therefore denies the allegations.

19. At all times relevant hereto, and commencing as early as 2005, Comcast has regularly blocked emails e360 has attempted to send to Comcast customers who have signed up to receive such emails, some of who have double-confirmed that they wish to receive the emails on the grounds that such emails contain specific words or phrases, such as “free”. Such arbitrary censorship by Comcast violates e360’s First Amendment rights and is an unacceptable infringement of e360’s commercial speech based on content.

ANSWER: Comcast admits that some e-mails e360 has attempted to send to subscribers of Comcast’s ISP Services have been filtered out by Comcast’s Filtering Technology. Comcast is without knowledge or information sufficient to form a belief as to whether such subscribers have consented to receiving e-mails from e360, and therefore denies these allegations. Comcast denies the remaining allegations of paragraph 19.

20. Comcast uses multiple email filters, including third-party companies and internal blacklists, to filter and block emails. Comcast uses Spamhaus SBL/XBL/ZEN, a London based self-appointed internet “watch dog” company to monitor and screen emails on its systems. Comcast’s use of the Spamhaus blacklists is documented on Comcast’s website
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(http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18627). Spamhaus mistakenly listed e360 as a spammer on its ROKSO list, SBL blocklist and Zen blocklist despite being repeatedly told of its error. Spamhaus has since removed e360 from its lists per a Court Order but occasionally violates the Order. On March 5, 2007, e360 notified Comcast that Comcast’s use of the Spamhaus blacklist was improperly blocking e360’s email messages and was improperly interfering with e360’s legitimate business. e360 provided copies of the judgment and permanent injunction against Spamhaus from United States District Court case number 06 C 3958. Notification was sent to Comcast legal counsel via FedEx tracking number 798120681231. e360 did not receive a response from Comcast. Attached and incorporated into this Complaint as Exhibit B is a copy of the March 5, 2007 letter.

ANSWER: Comcast admits that Comcast’s ISP Services use email filters to filter emails and admits that such services have used lists obtained from Spamhaus for such purposes. Comcast admits that on March 5, 2007, e360 notified Comcast, or one if its subsidiaries, that it believed Spamhaus had mistakenly listed e360 as a spammer on its block lists and sent a copy of a default judgment against Spamhaus (which has since been vacated) from United States District Court case number 06 C 3958. Comcast is without knowledge or information sufficient to form a belief as to the remaining allegations of this paragraph 20, and therefore denies these allegations.

21. Comcast has blocked and continues to block emails sent by e360 to its customers based on the Spamhaus listing above even after being told of the error. As of the date of this filing, the most recent incidence of improper blocking by Comcast via the Spamhaus blacklist was December 9, 2007.

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ANSWER: Comcast admits that some emails sent by e360 to subscribers of Comcast’s ISP Services have been filtered out by Comcast’s Filtering System. Because Comcast believes that e360 is responsible for sending hundreds of thousands of commercial e-mails to Comcast’s subscribers, not all of which are readily identifiable as coming from e360, Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph 21, and therefore denies these allegations.

22. Comcast has blocked and continues to block emails sent by e360 to its customers based on third-party and internal blacklists and other software filters supplied by third-parties. Some of the known blocking technologies used by Comcast include MAPS by TrendMicro and Brightmail by Symantec.

ANSWER: Comcast admits that some emails sent by e360 to subscribers of Comcast’s ISP Services have been filtered out by Comcast’s Filtering Technology. Comcast admits that Comcast’s ISP Services have used filtering technologies including MAPS by TrendMicro and Brightmail by Symantec.

23. Comcast has engaged in ‘denial-of-service’ attacks on e360’s network and computer system by consuming, destroying, altering or withholding emails sent by e360 to its customers. Such attacks overwhelm and disable e360’s network and prevent them from sending or receiving emails from e360’s consumers in an attempt to halt e360’s business.

ANSWER: Comcast denies that Comcast’s ISP Services have engaged in ‘denial-of-service’ attacks as set forth in paragraph 23. Comcast is without knowledge or information sufficient to form a belief as to truth of the remaining allegations of paragraph 23, and therefore denies these allegations.

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24. Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active. As an email marketer, e360 relies on bounce information from Comcast’s mail servers to determine whether e360’s customer email addresses are still active and deliverable. e360 has information and reason to believe Comcast is intentionally transmitting fraudulent bounce information to e360 in an attempt to discourage e360 from sending additional email messages. By transmitting fraudulent bounce information, Comcast is effectively destroying e360’s proprietary assets and the value contained in e360’s opt-in database of email addresses. Such statements are made on information and belief as only Comcast has access to and knowledge of the accounts it has and will not allow e360’s emails to be delivered regardless of account activity.

ANSWER: Comcast denies the allegations of paragraph 24.

COUNT I (Tortious Interference with Prospective Economic Advantage)

25. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

ANSWER: Comcast realleges its answers to the allegations in paragraphs 1 to 24 as though fully set forth herein.

26. Under Illinois law, “the tort of interference with prospective economic advantage has four elements: (1) plaintiff must have a reasonable expectancy of a valid business relationship with a third party; (2) defendant must know of the prospective business relationship;
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(3) defendant must intentionally interfere with the prospective business relationship such that the prospective business relationship never materializes; and (4) the interference must damage the plaintiff. Lynch Ford, Inc. v. Ford Motor Co., 957 F. Supp. 142, 145-146 (N.D.Ill 1997).

ANSWER: Comcast admits that paragraph 26 contains an accurate quote from Lynch Ford, Inc. v. Ford Motor Co., 957 F.Supp. 142, 145-146 (N.D.Ill. 1997).

27. e360 only sends emails to consumers who: a) purchase goods and services from its proprietary company owned website; or b) sign-up to receive emails either through e360 or through one of its marketing partners. As such, e360 only sends emails to individuals who have done business with e360 or who have expressed an interest in doing business with e360 or its marketing partners. Thus, e360 has a reasonable expectation of valid business relationship with the consumers it emails.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 27, and therefore denies these allegations.

28. Comcast, an internet service provider, has agreed to act and is compensated for acting as an intermediary in delivering the email sent by and to its customers. Comcast has no right to interfere in the business relationship between e360 and its clients or potential clients.

ANSWER: Comcast admits that, by and through its subsidiaries, it provides ISP services which involve, inter alia, providing subscribers with e-mail addresses and access to e-mail, but denies the remaining allegations of this paragraph 28.

29. Comcast has knowledge of the [sic] e360’s prospective business relationships with Comcast users. Indeed, Comcast has been notified numerous times by e360 of e360’s attempts to contact e360’s customers and potential customers.

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ANSWER: Comcast admits that e360 has contacted Comcast, or one of its subsidiaries, regarding its attempt to email Comcast’s subscribers. Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph 29, and therefore denies these allegations.

30. Comcast has intentionally interfered with e360’s prospective business relationships by blocking the emails e360 has sent or tried to send to its customers. Despite being notified on numerous occasions by e360 of such interference, Comcast has refused to stop interfering in e360’s prospective business relationships.

ANSWER: Comcast admits that some emails sent by e360 to subscribers of Comcast’s ISP Services have been filtered out by Comcast’s Filtering Technology and that e360 has contacted Comcast, or one of its subsidiaries, regarding its attempt to email subscribers, but denies the remaining allegations of this paragraph 30.

31. Comcast’s ‘denial of service’ attacks interfere with e360’s ability to send emails to any of its clients or potential clients thereby interfering with e360’s business relationship with its clients. Such attacks cause significant damage to e360 by preventing it from communicating with its clients or potential clients.

ANSWER: Comcast denies that it, or any of its subsidiaries, have engaged in ‘denial of service’ attacks as set forth in this paragraph 31. Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph 31, and therefore denies these allegations.

32. Comcast blocking e360’s emails to its clients and potential clients interferes with e360’s prospective business relationships with its clients and potential clients such that those relationships never materialize.

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ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 32, and therefore denies these allegations.

33. Comcast’s refusal to allow e360 to communicate with any [sic] its clients and potential clients interferes with e360’s business relationship with its clients and potential clients.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to truth of the allegations of this paragraph 33, and therefore denies these allegations.

34. Comcast’s interference with e360’s business relationships causes e360 significant damage. e360 estimates the damage to exceed $4.5 million per year from 2005 through 2007.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to truth of the allegations of this paragraph 34, and therefore denies these allegations.

35. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

ANSWER: Comcast denies the allegations of paragraph 35.

COUNT II (Violation of Computer Fraud and Abuse Act)

36. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

ANSWER: Comcast realleges its answers to the allegations in paragraphs 1 to 24 as though fully set forth herein.

37. The Computer Fraud and Abuse Act (hereafter “Act”) prohibits anyone from: (i)”knowingly caus[ing] the transmission of a program, information, code, or command, as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected
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computer….or…(iii)intentionally access[ing] a protected computer without authorization, and as a result of such conduct, causes damage. 18 U.S.C. § 1030(a)(5)(A)(i) and (iii).

ANSWER: Comcast admits that this paragraph 37 quotes prohibitions contained in the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(A)(i) and (iii).

38. The Act also requires that the “loss to 1 or more persons during any 1-year period…aggregating at least $5,000 in value.” 18 U.S.C. § 1030(a)(5)(B)(i).

ANSWER: Comcast admits that this paragraph 38 is an excerpted quote from the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(B)(i).

39. Under the Act, any person who suffers damage or loss by reason of a violation of the Act may obtain compensatory damages, economic damages and injunctive relief. 18 U.S.C. § 1030(g).

ANSWER: Comcast admits that 18 U.S.C. § 1030(g) provides that one who suffers damage or loss from a violation of the Consumer Fraud and Abuse Act may recover certain damages, including compensatory, economic, or injunctive relief, but denies the allegations of this paragraph 39 as the statute speaks for itself.

40. Comcast intentionally and knowingly engaged in denial of service attacks upon e360’s system by slowing process times of its emails by hours. Such delay slowed and all but stopped e360’s systems from being able to function. This intentional damage to e360 prevented e360 from being able to do business and cost e360 in terms of lost business along with excessive wear and tear on e360’s systems and incremental infrastructure costs to overcome the system load created by Comcast’s denial of service attacks.

ANSWER: Comcast denies the allegations of paragraph 40.

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41. e360 relies on Comcast to provide accurate and truthful information regarding the deliverability of mail and the activity status of email addresses of Comcast customers on e360’s emailing list. In fact, e360 has no other resource available to it to obtain this accurate information and thus requires Comcast’s cooperation in providing reliable, accurate information.

ANSWER: Comcast is without information or knowledge sufficient to form a belief as to truth of the allegations of paragraph 41, and therefore denies these allegations.

42. Comcast frequently transmits false bounce information to e360’s mail servers. When Comcast transmits false information on the status of an email account, e360’s removes the address from its mailing and updates its database to reflect that the email is no longer valid.

ANSWER: Comcast denies that Comcast’s ISP Services transmit false bounce information to e360’s mail servers. Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 42, and therefore denies these allegations.

43. When Comcast provides false information regarding an email account to e360 and causes e360 to remove an active email address from its database, Comcast’s actions have directly resulted in the destruction of e360’s proprietary data and asset, its database.

ANSWER: Comcast denies that Comcast’s ISP Services provide false information to e360. Comcast is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 43, and therefore denies these allegations.

44. e360 estimates that such denial of service attacks upon its systems have cost it five hundred ninety-one thousand two hundred ($591,200.00) dollars.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 44, and therefore denies these allegations.

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45. e360 estimates that Comcast false bounce information and destruction of its email database has caused it $2,498,924.00 dollars.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 45, and therefore denies these allegations.

46. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

ANSWER: Comcast denies the allegations of paragraph 46.

COUNT III (Violation of First Amendment Rights)

47. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

ANSWER: Comcast realleges its answers to the allegations in paragraphs 1 to 24 as though fully set forth herein.

48. Commercial speech is entitled to First Amendment protection as long as it concerns lawful activity and it not misleading. Virginia Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). “Indeed, we recognized that a “particular consumer’s interest in the free flow of commercial information…may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Id. at 763.

ANSWER: Comcast admits that the court in Virginia Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) held that commercial speech is entitled to some First Amendment protection and that the court made the statements quoted in this paragraph 48.

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49. It is also recognized that commercial communication “that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” Edenfield v. Fane, 507 U.S. 761, 767 (1993).

ANSWER: Comcast admits that this paragraph 49 contains an accurate quote from Edenfield v. Fane, 507 U.S. 761, 767 (1993).

50. e360 has the right to send commercial emails to its consumers and consumers who have asked or agreed to receive its emails. e360’s emails concern only lawful activity and are not misleading.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 50, and therefore denies these allegations.

51. Comcast’s arbitrary and capricious use of its network to systematically deny e360 the ability to send commercial emails to its customers and consumers who have asked to or agreed to receive such emails is a violation of e360’s First Amendment rights.

ANSWER: Comcast denies the allegations of paragraph 51.

52. Comcast’s actions have caused significant damage to e360’s ability to communicate and do business with its customers. Specifically, since e360 is an email marketer, e360 has no other way to communicate to its customers who subscribe to or have their email through Comcast. This loss of communication in the marketplace harms not only e360 but also all of its customers.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 52, and therefore denies these allegations.

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53. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

ANSWER: Comcast denies the allegations of paragraph 53.

COUNT IV (Unfair Competition and Business Practices)

54. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

ANSWER: Comcast realleges its answers to the allegations in paragraphs 1 to 24 as though fully set forth herein.

55. In Illinois, it is unlawful for any business to use unfair methods of competition and business practices, including but not limited to the use or employment of any false pretense, false promise or misrepresentation, in the conduct of trade or business. 815 ILCS 505/2.

ANSWER: Comcast denies e360’s characterization of the provisions of the Illinois Consumer Fraud Act, 815 ILCS 505/2, in that the statute speaks for itself.

56. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services. Implicit in these policies is the understanding that if one complies with the Comcast’s policies, the mail sent will be delivered.

ANSWER: Comcast admits that the Comcast Acceptable Use Policy for High-Speed Internet Services, the Comcast Agreement for Residential Services, and a link to Report Abuse are provided on its website at www.comcast.net/terms/ for subscribers of Comcast’s ISP Services. Comcast is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph 56, and therefore denies these allegations.

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57. Although e360 has complied with Comcast’s polices at all times, Comcast has refused to comply with their own policies and deliver the mail sent by e360.

ANSWER: Comcast denies the allegations of paragraph 57.

58. At the same time that Comcast is blocking e360’s email messages that are compliant with Comcast’s polices, Comcast is allowing other email marketers with substantially similar business practices as those employed by e360 to send email messages to Comcast’s customers.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 58, and therefore denies these allegations.

59. Comcast’s refusal to deliver email sent by e360 while allowing its competitors to freely transmit email puts e360 at a disadvantage and creates an un-level playing field on which e360 must compete.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as the truth of the allegations set forth in this paragraph 59, and therefore denies these allegations.

60. Upon information and belief, Comcast has made agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast’s Acceptable Use policy. Based on these agreements, Comcast has applied its policies with certain email marketers in a way that is materially different than Comcast’s application of its policies to e360’s email messages. Such statement is made upon information and belief because only Comcast can verify with whom they have agreements with to allow mail to be sent to their customers.

ANSWER: Comcast denies the allegations of this paragraph 60.

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61. Comcast’s refusal to create a fair playing field for legitimate email marketers to compete has caused serious damage to e360’s business and damaged its reputation.

ANSWER: Comcast is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph 61, and therefore denies these allegations.

62. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

ANSWER: Comcast denies the allegations of paragraph 62.

AFFIRMATIVE DEFENSES

63. As a complete and affirmative defense to Counts I, II, and IV, Comcast alleges that it is immune from liability in accordance with 47 U.S.C. § 230, the Communications Decency Act.

64. As a complete and affirmative defense to Counts I, II, and IV, Comcast alleges that it is immune from liability in accordance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 et. seq. (the “CAN-SPAM Act”).

65. As a complete and affirmative defense to Counts I, II, and IV, Comcast alleges that it is immune from liability in accordance with the anti-spam laws of the various states, including the Illinois Electronic Mail Act, 815 ILCS 511/10(g) and the Pennsylvania Unsolicited Telecommunications Advertisement Act, 73 PS § 2250 et. seq.

66. As a complete and affirmative defense to Counts I to IV, Comcast alleges that e360 comes to court with unclean hands based on the fact that it has, among other things, violated the CAN-SPAM Act, violated the Computer Fraud and Abuse Act, 18 U.S.C. §
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1030(a)(5)(A)(i) and (iii), violated the Illinois Consumer Fraud and Deceptive Business Practices Act, 805 ILCS 505/2, violated anti-spam laws of the various states, including the Illinois Electronic Mail Act, 815 ILCS 511/10 and the Pennsylvania Telecommunications Advertisement Act, 73 PS § 2250 et. seq., sent Comcast subscribers fraudulent and misleading e-mails, including e-mails advertising counterfeit or unauthorized goods, and made fraudulent statements about its services to Comcast and in its pleadings in this case.

67. As a complete and affirmative defense to Counts I to IV, Comcast alleges that e360 has unreasonably delayed in bringing these claims to the detriment of Comcast, and therefore these claims are barred by the doctrine of laches.

68. As a complete and affirmative defense to Counts I to IV, Comcast alleges that e360 has failed to mitigate its damages, if any.

69. As a complete and affirmative defense to Counts II to IV, Comcast alleges that e360’s claims are barred by the applicable statutes of limitations.

PRAYER FOR RELIEF ON COMPLAINT

WHEREFORE, Comcast prays for judgment with respect to e360’s complaint as follows:

70. Judgment be entered in favor of Comcast on each and every cause of action.

71. Comcast be awarded its attorneys’ fees and costs.

72. The Court declare that e360 has unclean hands because (i) it violated the CAN-SPAM Act, the Computer Fraud and Abuse Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, the anti-spam laws of the various states including Illinois and Pennsylvania; (ii) it has sent Comcast ISP Services subscribers fraudulent and misleading e-
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mails, and (iii) it has made fraudulent statements about its services to Comcast and in its pleadings in this case.

73. Comcast be awarded such other and further relief as may be just or equitable.

Date: March 4, 2008

Respectfully submitted,

LOEB & LOEB LLP

By:__/s/ Douglas N. Masters_________________
Douglas N. Masters
Nathan J. Hole
321 North Clark St., Ste. 2300
Chicago, IL 60606
Telephone: (312) 464-3100
Fax: (312) 464-3111
[email address redacted]
Attorneys for Defendant,
Comcast Corporation

Attachment	Date	Size
Answer.pdf	06/28/09 1:05 pm	136.88 KB

MOTION for Leave to File

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

MOTION FOR LEAVE TO AMEND PLEADINGS TO ADD COUNTERCLAIM AND THIRD-PARTY COMPLAINT

In accordance with Rule 15(a) of the Federal Rules of Civil Procedure, Comcast Corporation (“Comcast”) moves for leave to amend its pleading to file the attached Counterclaim and Third-Party Complaint against Plaintiff-Counterdefendant, e360insight, LLC (“e360”), and Third-Party Defendants David Linhardt, Maverick Direct Marketing Solutions, Inc., Bargain Depot Enterprises, LLC, Northshore Hosting Company, LLC, Ravinia Hosting Company, LLC, Northgate Internet Services, LLC, and John Does 1-50 (collectively referred to as the “Third- Party Defendants”).

On January 15, 2008, e360 filed suit against Comcast alleging various state and federal law claims arising out of Comcast’s practice of filtering out some of e360’s commercial e-mails sent to Comcast’s subscribers. e360 subsequently moved for a preliminary injunction and expedited discovery on February 21, 2008. Comcast filed an answer to e360’s complaint on March 4, 2008, denying the salient allegations of the complaint, and asserting several affirmative defenses. On that same day, Comcast filed a Motion for Judgment on the Pleadings.

Comcast now seeks leave to amend its pleadings to file the attached Counterclaim and Third-Party Complaint. Each of these claims arises from the same conduct underlying e360’s
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complaint – the sending of massive amounts of unsolicited commercial e-mails to comcast.net subscribers. Through a variety of coordinated unlawful and fraudulent activities, e360 and Third-Party Defendants facilitate the ongoing e-mailing of spam to Comcast’s subscribers. In furtherance of these activities, e360 and Third-Party Defendants seek to circumvent Comcast’'s proprietary filtering technologies designed to protect subscribers from receiving such unwanted spam e-mails. e360’s and Third-Party Defendant’s actions violate federal and state law enacted to prevent the sending of spam (Counts I and II – CAN-SPAM Act; Count III – Illinois Electronic Mail Act); and federal and common law that protect Comcast’s computers and related hardware and software from abusive e-mailing practices (Count IV – Computer Fraud and Abuse Act; Count V – Trespass to Channels). The pleading also alleges that e360 and Third-Party Defendants have been unjustly enriched (Count VI); and that they have abused the Court’s process through litigation tactics employed for improper purposes (Count VI).

Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading by leave of court and that “leave [to amend] shall be freely given when justice so requires.” Absent “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment,” a request to amend should be permitted. See Ferguson v. Roberts, 11 F.3d 696, 706 (7th Cir. 1993) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

This motion is being brought promptly; discovery has not yet commenced. Furthermore, granting this motion is in the interest of justice, as Comcast alleges meritorious claims arising from e360’s and the Third-Party Defendants’ widespread spam activities, activities that offend public policy and the law.

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WHEREFORE, Comcast respectfully requests leave to amend its pleadings to file the attached Counterclaim and Third-Party Complaint.

Dated: March 18, 2008

Respectfully submitted,

LOEB & LOEB LLP
/s/ Douglas N. Masters
Douglas N. Masters
Nathan J. Hole
321 N Clark Street, Suite 2300
Chicago, IL 60610
Phone: (312) 464-3144
Fax: (312) 464-3111
[redacted]
Attorneys for Defendant
Comcast Corporation

Counterclaim and Third Party Complaint

The bar for this was pretty low, and so, to no one's surprise, it was granted. Thus, we have a repeat document. The Counterclaim and 3rd Party Complaint is no longer a proposed document. Comcast is now officially counter-suing e360Insight as well as David Linhardt and all of the socks in his drawers.

===============================
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

COMCAST CORPORATION,
Counterclaimant,

v.

E360INSIGHT, LLC,
Counterdefendant,
DAVID LINHARDT,
MAVERICK DIRECT MARKETING
SOLUTIONS, INC.,
BARGAIN DEPOT ENTERPRISES, LLC,
d/b/a bargaindepot.net and
bargainshoppecorp.com,
NORTHSHORE HOSTING COMPANY, LLC
d/b/a ROCKY MOUNTAIN INTERNET
SERVICES, LLC and BAY CITY HOSTING,
LLC,
RAVINIA HOSTING COMPANY, LLC,
NORTHGATE INTERNET SERVICES, LLC,
JOHN DOES 1-50,
Third-Party Defendants.

COUNTERCLAIM AND THIRD-PARTY COMPLAINT

Comcast Corporation (“Comcast”) brings this counterclaim and third-party complaint against e360insight, LLC, David Linhardt, Maverick Direct Marketing Solutions, Inc., Bargain
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Depot Enterprises, LLC, Northshore Hosting Company, LLC, Ravinia Hosting Company, LLC, Northgate Internet Services, LLC, and John Does 1-50 (collectively, the “Defendants”).

I. NATURE OF THE ACTION

1. Defendants operate a business designed to facilitate the e-mail marketing of products and services through, among other things, the sending of unwanted, unauthorized, unlawful and/or otherwise objectionable commercial e-mail messages (generally referred to as spam”).

2. Internet service providers (“ISPs”), such as Comcast, with the assistance of others, filter e-mail messages to prevent spam from reaching consumers. It is essential to the operation of its ISP services that Comcast utilize the tools at its disposal, tools sanctioned by federal and state law, to protect its subscribers from receiving spam. About 90% of all e-mail sent to Comcast’s subscribers is spam. Comcast filters about 500,000,000 spam e-mails per day.

3. Spammers, on the other hand, try to mask their identities, the origins of their emails, and the nature of their services in order to deliver spam to consumers and to remain profitable. Defendants here utilize a variety of illegal and fraudulent activities to pursue their objectives, and have undertaken various efforts to obscure the nature, scope, and participants in their activities. Indeed, the filing of this action and pursuit of a preliminary injunction and expedited discovery are part of Defendants’ attempts to pressure and harass those who protect consumers from Defendants’ objectionable e-mails.

4. Comcast brings this counterclaim and third-party complaint to prevent Defendants’ ongoing assault on Comcast’s business and to hold Defendant liable for its unlawful acts.

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II. JURISDICTION

5. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1332. The amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. The Court also has federal question jurisdiction over the claims arising under the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 15 U.S.C. § 7701 (“CAN-SPAM”) and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), jurisdiction being conferred in accordance with 28 U.S.C. §§ 1331 and 1338(a).

III. PARTIES

6. Counterclaimant, Comcast, is a Pennsylvania corporation with a principal place of business located at One Comcast Center, Philadelphia, Pennsylvania 19103.

7. Counterdefendant, e360insight, LLC (“e360”), is an Illinois limited liability company with a principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090.

8. Third-party Defendant, David Linhardt (“Linhardt”), is an individual residing at 500 Sumac Road, Highland Park, Illinois 60035. On information and belief, Linhardt is the president and founder of e360, the majority and only shareholder of Maverick, the owner of Ravinia Hosting, the president of Northshore Hosting (as these entities are defined below), and directs and controls the complained of activities of each of the named Defendants.

9. Third-party Defendant, Maverick Direct Marketing Solutions, Inc. (“Maverick”), is an Illinois corporation with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. On information and belief, Maverick wholly owns e360, Bargain Depot and Northshore Hosting.

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10. Third-party Defendant, Bargain Depot Enterprises, LLC (“Bargain Depot”), d/b/a bargaindepot.net and bargainshoppecorp.com, is an Illinois limited liability company with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. On information and belief, Bargain Depot is a division of e360 and is wholly owned by Maverick.

11. Third-party Defendant, Northshore Hosting Company, LLC d/b/a Rocky Mountain Internet Services, LLC and Bay City Hosting, LLC (“Northshore Hosting”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090, or another location in Illinois, and it is wholly owned by Maverick.

12. Third-party Defendant, Ravinia Hosting Company, LLC (“Ravinia Hosting”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600 Northgate Pkwy., Ste. A. Wheeling, Illinois 60090, or another location in Illinois, and it is owned and controlled by Linhardt.

13. Third-party Defendant, Northgate Internet Services, LLC (“Northgate”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090, or another location in Illinois, and it is an affiliate of e360.

14. Third-party Defendants, John Does 1-50, are companies or individuals with unknown identities and addresses that are business partners or affiliates of the other Defendants or provide services or assistance to, or facilitate the complained of activities of, the Defendants.

IV. FACTUAL BACKGROUND
A. Comcast’s Cable and Internet Services.

15. Comcast, by or through its subsidiaries, is one of the leading cable and internet service providers in the country with over thirteen million high-speed internet subscribers.

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16. Consumers subscribe to Comcast High-Speed Internet services, in part, because of the stability, security and reliability of its network. Comcast’s network remains secure and reliable in part because the system is maintained by filtering out spam and preventing it from reaching subscribers’ inboxes. Comcast, using a proprietary and highly confidential system in accordance with industry standards, filters and otherwise limits spam from reaching subscribers’ inboxes (“Comcast’s Filtering System”).

17. Comcast’s Filtering System is a continually evolving system that relies on a variety of resources to determine whether an incoming e-mail is spam. These resources include third-party software, lists generated by anti-spam organizations, subscriber complaints, the sender’s reputation, and other highly proprietary and confidential systems and methods.

18. If an e-mail is filtered out by Comcast’s Filtering System, the sender receives an error message with a code and links to follow for instructions on why the e-mail was filtered out and how to address the issue that caused the e-mail to be filtered out.

B. Defendants’ Unlawful Activities.

19. Defendants market products and services using spam directed at hundreds of thousands, if not millions, of consumers, including Comcast’s subscribers.

20. On information and belief, Maverick wholly owns e360, Bargain Depot, and Northshore, and directs and controls the sending of hundreds of thousands, if not millions, of spam e-mails by Defendants.

21. On information and belief, Bargain Depot, among other things, provides knockoff, counterfeit or otherwise unauthorized goods marketed through mass e-mails sent by Defendants.

22. On information and belief, Northshore Hosting, Ravinia Hosting, Northgate, and John Does 1-50 (“Third-Party Marketers”) are in the business of registering domain names and
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IP addresses and sending spam on behalf of Defendants. On information and belief, the Third-Party Marketers also register IP and domain name addresses in their own name, often with private registry services, for the purposes of masking the true identity of the owners of the IP addresses and domain names, and the true parties responsible for sending spam.

C. Defendants’ Email Practices.

23. Defendants, acting together, have engaged in a concerted scheme to send millions of unsolicited commercial e-mails for their own commercial benefit, including to many thousands of Comcast subscribers.

24. Defendants have used numerous domain names and IP addresses to conceal their identities and scheme and to facilitate the sending of the unsolicited e-mails.

25. On information and belief, some of Defendants’ commercial e-mails contain misleading or false header or subject line information.

26. On information and belief, some of Defendants’ commercial e-mails advertise, promote, and sell counterfeit or unauthorized goods supplied by Bargain Depot.

27. On information and belief, some of Defendants’ commercial e-mails advertise free” promotions when the goods or services are not, in fact, free.

28. On information and belief, not all of the intended recipients of Defendants’ commercial e-mails have opted in to receive such e-mail messages.

29. On information and belief, Defendants fabricate opt-in records of intended e-mail recipients.

30. On information and belief, Defendants have attempted to send hundreds of thousands, if not millions, of spam e-mails to Comcast’s subscribers since as early as 2005, including e-mails advertising Bargain Depot’s counterfeit or unauthorized goods.
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31. Comcast’s Filtering Technology has filtered out spam sent by Defendants to Comcast’s subscribers. On information and belief, Comcast’s Filtering Technology has filtered out Defendant’s spam since as early as 2005.

32. On information and belief, when Defendants’ commercial e-mails have been filtered out by Comcast’s Filtering Technology, Defendants have received an error message and link to follow to learn why their e-mails were filtered out and how to revise their e-mail practices so that Defendants’ e-mails may reach the intended Comcast subscribers.

33. To facilitate the business of the Defendants, Linhardt has made fraudulent misrepresentations to Comcast about the commercial e-mails sent by or through Defendants to Comcast’s subscribers.

34. For example, on January 6, 2006, Linhardt telephoned Comcast and falsely and fraudulently represented to a Comcast employee that all of the intended recipients of e360’s email messages have opted-in to receive such messages. Additionally, on March 4, 2007, Linhardt sent a letter to Arthur J. Block of Comcast making the following fraudulent representations: “All of the individuals requesting emails from us have signed up with us through web sites operated by us or by our partners. Our customers have all been through an opt-in process that exceeds all requirements in the provisions of CAN-SPAM.” The letter went on to notify Comcast of a default judgment obtained in this Court against a United Kingdom-based anti-spam operation, seeking to use that default judgment to coerce Comcast into allowing Defendants’ unsolicited e-mails through Comcast’s Filtering Technology. A copy of the letter is attached hereto as Exhibit A.

35. After e360 commenced this litigation, Comcast offered to work with e360 to review e360’s e-mail practices in order to evaluate the e-mails to Comcast’s subscribers and the
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reasons they have been filtered out. e360 refused the offer, asserting that it would learn how to circumvent Comcast’s Filtering System through discovery.

D. Defendants’ Abuse Of The Legal Process To Circumvent Anti-Spam Initiatives.

36. Spamhaus Project (“Spamhaus”), a non-profit Internet watchdog group located in the United Kingdom, generates and maintains the Register of Known Spam Operations (“ROKSO”) which is a collation of information and evidence on known professional spam operations that have been terminated by a minimum of three ISPs for spam offenses. Spamhaus also offers the Spamhaus Block List (“SBL”), which is a database of IP addresses that have been identified as the source of spam.

37. ISPs, such as Comcast, rely on the ROKSO and/or SBL lists as part of the process of filtering e-mails.

38. As early as 2006, e360 discovered that it was listed on the ROKSO and/or SBL lists and, as a result, numerous ISPs were blocking Defendants’ spam.

39. On June 21, 2006, e360 and Linhardt sued Spamhaus in the Circuit Court of Cook County, Skokie, Illinois, asserting claims arising from Spamhaus’ listing of e360 on its ROKSO and/or SBL lists. On information and belief, e360 and Linhardt sued Spamhaus in Illinois knowing that the Illinois courts did not have jurisdiction over Spamhaus for the improper purpose of undermining Spamhaus’ ability to engage in legitimate and lawful anti-spam activities.

40. Spamhaus did not contest the action. As a result, the Northern District of Illinois (upon removal of the case) granted a default judgment and entered an order drafted by e360 requiring Spamhaus to “not take any action to cause email sent by [e360] or their affiliates, subsidiaries, or related companies ... to be blocked, delayed, altered or interrupted in any way ...
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unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiff’s have violated relevant United States law” (the “Court Order”).

41. After the Court Order was entered, Defendants’ began marketing a new service called “IP Protection Services” to unrelated third-party e-mail marketers whose e-mail marketing messages were blocked by various ISPs, so that Spamhaus would be required to de-list those marketers from its lists.

42. The IP Protection Service entails modifying the third-party marketers’ IP addresses to appear as if they are e360’s IP addresses, or providing the third-party internet marketers access to e360’s servers for use in sending mass e-mail marketing messages through e360’s servers that have been de-listed with Spamhaus pursuant to the Court Order. e360 describes how it plans to use the Court Order to mislead Spamhaus:
“
As you know, the American Registry of Internet Numbers (ARIN) assigns all IP address in the U.S. ARIN maintains a registry of all IP addresses on www.arin.net which acts as a kind of phone book for the Internet. When Spamhaus investigates the originating IP address for an email message, they rely heavily on the information provided by ARIN. E360’s IP Identity Management Solution effectively modifies the ARIN listing for your existing ip addresses and points them to one of our legally-protected entities. The result is immediate protection against Spamhaus listings as provided by the federal injunction. This solution protects against future listings, and also forces Spamhaus to remove any existing SBL listings.” [Emphasis Supplied]

Attached as Exhibit B are marketing materials issued by e360 advertising the IP Protection Service.

43. Once the third-party e-mail marketer enrolls in the IP Protection Services, Defendants use the Court Order to request that Spamhaus de-list the third-party marketers’ IP addresses from the ROKSO and/or SBL lists on the basis that the third party is now an “affiliate” of e360 within the meaning of the Court Order.

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44. On information and belief, some third-party internet marketers who have enrolled in the IP Protection Service are purveyors of dpam.

45. On information and belief, a purpose of the IP Protection Services is to launder third-party spam that would otherwise be blocked through e360’s de-listed IP addresses and servers.

46. For example, e360 entered into an agreement with Virtumundo, Inc. (“Virtumundo”) on June 6, 2007, to provide the IP Protection Service. Attached hereto as Exhibit C is a copy of the Services Agreement entered into between e360 and Virtumundo.

47. On information and belief, Virtumundo sends spam.

48. After entering into the Services Agreement with Virtumundo, e360 demanded that Spamhaus de-list Virtumundo’s IP addresses from the ROKSO and/or SBL lists on the basis that Virtumundo is now an “affiliate” of e360 within the meaning of the Court Order.

49. e360 and Linhardt have filed and threatened to file lawsuits in the Illinois courts against parties who call e360 and/or Linhardt a “spammer” or block e360’s e-mails. e360 and Linhardt routinely file, drop, and re-file these actions against the same parties. For example, e360 and Linhardt sued Mark Ferguson for defamation in the U.S. District Court for the Northern District of Illinois in March 2007; voluntarily dismissed it without prejudice in May 2007; filed a similar lawsuit against Mark Ferguson in Circuit Court of Cook County, Illinois, later in May 2007, dismissed it without prejudice in August 2007; and then refiled an action against Mark Ferguson in U.S. District Court for the Northern District of Illinois in January 2008.

50. On information and belief, these litigation tactics are pursued for the improper purpose of undermining Spamhaus’ ability to engage in legitimate and lawful anti-spam
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activities and to disrupt the ability of ISPs, such as Comcast, to rely on anti-spam data generated by Spamhaus and other anti-spam entities.

COUNT I
VIOLATION OF THE CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING ACT (“CAN-SPAM”) OF 2003 – 15 U.S.C. § 7704(a)(1)

51. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

52. Defendants regularly initiate the transmission of e-mails to Comcast subscribers and other consumers that contain false and misleading information about the origin of the e-mail, the author of the e-mail, and the IP address of the sender of the e-mail in violation of 15 U.S.C. § 7704(a)(1).

53. Defendants regularly send e-mail messages that include originating e-mail addresses, domain names, and IP addresses that were obtained by means of false or fraudulent pretenses or representations that are materially misleading in violation of 15 U.S.C. § 7704(a)(1).

54. Defendants have sent hundreds of thousands, if not millions, of e-mail messages in violation of 15 U.S.C. § 7704(a)(1) and, therefore, Comcast is entitled to statutory damages of $100 for each violation in accordance with 15 U.S.C. § 7706(g)(A)(i).

55. Each of these violations of this section was committed willingly and knowingly and, accordingly, Comcast is entitled to aggravated damages under 15 U.S.C. § 7706(g)(3)(C)(i).

COUNT II
VIOLATION OF CAN-SPAM – 15 U.S.C. § 7704(a)(2)

56. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

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57. Defendants knowingly send and/or attempt to send to Comcast subscribers and other consumers e-mails that contain subject headings that mislead the recipient, including, but not limited to statements regarding “free” consumer merchandise and the origin of designer or luxury goods, in violation of 15 U.S.C. § 7704(a).

58. Defendants have sent hundreds of thousands, if not millions, of e-mail messages that violate § 7704(a) and, therefore, Comcast is entitled to statutory damages of $25 for each violation of this section in accordance with 15 U.S.C. § 7706(g)(A)(ii).

59. Each violation of this section has been committed willingly and knowingly and, accordingly, Comcast is entitled to aggravated damages under § 7706(g)(3)(C)(i).

COUNT III
VIOLATION OF ILLINOIS ELECTRONIC MAIL ACT – 815 ILCS 511/10

60. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

61. Defendants send and attempt to send to Comcast subscribers and other consumers e-mails that contain false or misleading information in the subject line, in violation of Illinois Electronic Mail Act, 805 ILCS 511/10(a)(ii), and the laws of various states.

62. Defendants have sent hundreds of thousands, if not millions, of e-mail messages violating the laws of various states, including 805 ILCS 511/10(a)(ii), and, therefore, Comcast is at least entitled to statutory damages of the lesser of $10 per e-mail message or $25,000 per day, in accordance with 805 ILCS 511/10(d).

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COUNT IV
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT – 18 U.S.C. § 1030(a)(5)

63. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

64. Computers used by Comcast in its role as an ISP constitute “protected computers” under the Computer Fraud and Abuse Act.

65. Defendants have knowingly bombarded Comcast’s network and servers with hundreds of thousands, if not millions, of e-mails, causing Comcast’s network to operate more slowly, and reducing the service provided to Comcast’s subscribers, in violation of 18 U.S.C. §§ 1030(a)(5) and 1030(g).

66. The damages suffered by Comcast as a result of e360’s conduct include the impairment of the integrity and/or availability of data, programs, systems, and/or information on Comcast’s protected computers. Comcast’s damages aggregate at least $5,000 in value in the year preceding the date of filing of this counterclaim and third-party complaint.

COUNT V
TRESPASS TO CHATTELS

67. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

68. The computers, servers, and networks that support Comcast’s ISP services are the personal property of Comcast.

69. Defendants have intentionally and repeatedly obtained access to, and made use of, Comcast'’s computers, servers, and networks for their own economic benefit.

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70. Even after knowledge that e-mails were blocked by Comcast’s Filtering System, Defendants continued to bombard Comcast’s servers and networks with massive amounts of emails. This practice of repeatedly transmitting e-mail messages through Comcast’s network and servers constitutes a wrongful exercise of dominion over Comcast’s network and services in denial of Comcast’s rights to that property. Such wrongful exercise of dominion over Comcast’'s network and servers has deprived Comcast and its subscribers of the legitimate use of the network and servers.

71. Under the common law of the various states, including the State of Illinois, Defendants’ conduct constitutes trespass to Comcast’s chattels.

COUNT VI
UNJUST ENRICHMENT

72. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

73. By transmitting spam through Comcast’s servers and networks and to Comcast’s subscribers, Defendants have knowingly obtained, conferred, or retained economic benefits acquired at Comcast’s expense. This knowing acquisition of these benefits has occurred under circumstances that render it inequitable for Defendants to retain the benefits.

74. As a result of the Defendants’ unjust enrichment, Defendants should be ordered to compensate Comcast for the value of the wrongfully obtained benefits and ordered to disgorge all profits derived from the sending of unsolicited commercial e-mails to Comcast’s subscribers.

A constructive trust should also be imposed in favor of Comcast on all monies received by Defendants and on all profits generated by the Defendants’ illegal activities as a result of sending
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Spam, and on all real property, motor vehicles, and other personal property purchased with monies received by Defendants as a result of their illegal activities.

COUNT VII
ABUSE OF PROCESS

75. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

76. On information and belief, e360 knew when it filed the complaint in this action that Comcast is immune from Plaintiff’s claims under the Communications Decency Act, CANSPAM, and the laws of the various states including Illinois and Pennsylvania, and that Comcast is not a state actor subject to liability under the First Amendment.

77. On information and belief, e360 is pursuing this meritless legal attack for the improper purposes of: a) learning how to circumvent the lawful Comcast Filtering System; b) obtaining discovery, the purpose of which is to undermine the viability of filtering systems used by ISPs, including Comcast’s Filtering Systems, and to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

78. Based on the allegations of the Complaint, e360 knew of its claims as early as 2005, three years prior to the commencement of this litigation. e360’s Motion for Expedited Discovery is not proper in the regular prosecution of this proceeding. The discovery sought is not needed in an expedited manner, and the scope of the discovery evidences e360’s improper motivation to learn how to circumvent Comcast’s Filtering System.

79. e360’s misuse of the Court Order in the Spamhaus matter is an attempt to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

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80. e360’s threats to sue, and the multitude of suits already brought (and routinely dropped and re-filed) in Illinois, against those who have identified e360 and Linhardt, as a “spammer” or blocked Defendants’ commercial e-mails, have been pursued for the improper purpose of undermining the ability of Spamhaus and ISPs, such as Comcast, from legally identifying and filtering out spam.

81. As a result of e360’s abuse of process, Comcast has incurred significant expenses and damages, including but not limited to its attorneys’ fees and costs.

V. PRAYER FOR RELIEF

WHEREFORE, Comcast requests entry of judgment in its favor and against the Defendants as follows:

1. A preliminary and permanent injunction enjoining Defendants, their officers, agents, servants, employees, attorneys, and any persons or entities in active concert or participation with any of them, from:

a. directly or indirectly sending unsolicited or unauthorized commercial emails, including but not limited to any such e-mails that reference or use in any way Comcast’s property, computers, domains, servers, networks, or users;

b. directly or indirectly circumventing Comcast’s Filtering System for the purposes of sending commercial e-mails to Comcast’s subscribers;

c. directly or indirectly sending any commercial e-mail messages, whether or not lawful, unless and until each Defendant has certified to the Court and Comcast, and confirmed the certification at periodic intervals, that it and all their affiliates and business partners comply with the best practices set forth by the Messaging Anti-Abuse Working Group (“MAAWG”) Sender Best Communications Practices, attached hereto as Exhibit D, or such other practices as this Court may deem appropriate to order; and

d. directly or indirectly profiting from any of the acts prohibited by paragraphs 1(a), (b) and (c).

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2. Within ten (10) days of entry of any injunctive order, Defendants be required to file and serve an affidavit detailing the form and manner in which each has complied with the terms of the injunction;

3. An award of statutory, compensatory, and aggravated damages to Comcast;

4. Disgorgement of the Defendants’ profits and imposition of a constructive trust on all moneys received and all profits generated by Defendants’ illegal activities;

5. An award of Comcast’s attorneys’ fees and costs; and

6. An award of such other and further relief as may be just or equitable.

Date: March 18, 2008

Respectfully submitted,

LOEB & LOEB LLP

By: ___/s/ Douglas N. Masters___________________
Douglas N. Masters
Nathan J. Hole
321 North Clark St., Ste. 2300
Chicago, IL 60606
Telephone: (312) 464-3100
Fax: (312) 464-3111
E-mail: [redacted]
Attorneys for Counterclaimant,
Comcast Corporation

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DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38(b), Comcast respectfully demands a trial by jury of all issues in its counterclaim and third-party complaint that are triable by a jury.

Date: March 18, 2008

Respectfully submitted,

LOEB & LOEB LLP

By: ___/s/ Douglas N. Masters___________________

Douglas N. Masters
Nathan J. Hole
321 North Clark St., Ste. 2300
Chicago, IL 60606
Telephone: (312) 464-3100
Fax: (312) 464-3111
E-mail: [redacted]
Attorneys for Counterclaimant,
Comcast Corporation

Attachment	Date	Size
Counterclaim.pdf	03/20/08 12:01 am	74.58 KB
CounterclaimExhA.pdf	03/20/08 12:01 am	901.21 KB
CounterclaimExhB.pdf	03/20/08 12:02 am	774.73 KB
CounterclaimExhC.pdf	03/20/08 12:03 am	2.37 MB
CounterclaimExhD.pdf	03/20/08 12:05 am	5 MB

Reassignment of case

This case has been reassigned to Judge David H. Coar because Judge Zagel has a conflict of interest.

Attachment	Date	Size
Reassignment.pdf	09/16/08 3:03 pm	39.37 KB

MOTION to Vacate All Prior Orders

Everyone has pretty much seen this one coming. E360Insight is asking the new judge to vacate all prior rulings in the case because of a conflict of interest.

In Ken Magill's article on this, he quotes Linhardt as saying "According to my attorney, Zagel said he should vacate all of the rulings but even that would be a conflict." Oddly enough, that statement is no where to be found in this motion.

This motion cites 28 U.S.C. Sec. 455, and Davis v. Xerox, 811 F.2d 1293 (9th Cir. 1987), for the proposition that all rulings should be vacated. And, indeed, that case does say, "Where the express statutory standard has been violated and a judge has sat whom Congress had disqualified from sitting, the disqualified judge's rulings are, on appeal, to be vacated."

Judge Zagel's financial reports are available for 2006 and 2005. Both reference Comcast holdings at the lowest valuation levels available and state that no money or dividends have been received.

I don't know what Judge Coar will rule on this one. Even though Davis would seem to stand for the proposition that all of Judge Zagel's rulings should be vacated, it's worth noting that the case also seems to stand for the proposition that where a judge forgot about those holdings that the rulings may stand:

In such retrospective applications we find wisdom in the observation of the Fifth Circuit interpreting Section 455(a): "Because of the harsh consequences that can result, knowledge of facts should not lightly be imputed to a judge." Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796 at 803 (5th Cir.1986). We are unwilling to presume that because the judge once knew, he could not have forgotten. The right course under Sec. 455(b) as under Sec. 455(a) is to proceed on a case by case basis, determining the existence of disqualifying knowledge at the time the judge sat, in the way that a state of mind is normally determined, from inspection of all the circumstances. If a reasonable person would conclude from all the circumstances that the judge did not have knowledge at the time he sat, his rulings stand. If the circumstances are such that a reasonable person would conclude that the judge had not forgotten but continued to know, his rulings must be vacated. The rule protects against abuse by a party who knows of or suspects a minor financial interest of which the judge is not aware, and who quietly awaits the outcome of the trial before raising the point. On the other hand, where the financial interest is substantial or appears to have had the potential of affecting the judge's rulings, the interest will be one that reasonable persons would conclude the judge was aware of, whatever his pretense of ignorance. The judge's rulings will then be invalidated.

From all indications, it would appear that Judge Zagel forgot about his Comcast holdings, which came to him, not from intentional action on his part, but by inheritance. E360Insight certainly raises nothing in this motion to suggest that Judge Zagel was aware of his holdings, they seem to be standing for the notion that it's enough to just presume knowledge. So, they may have a fairly problematic position given the caselaw that they are citing in support of their motion.

It should be an interesting hearing.
===========================================
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.
________________________________________
COMCAST CORPORATION,
Counterclaimant,

v.

E360INSIGHT, LLC,
Counterdefendant,

DAVID LINHARDT,
MAVERICK DIRECT MARKETING
SOLUTIONS, INC.,
BARGAIN DEPOT ENTERPRISES, LLC,
d/b/a bargaindepot.net and
bargainshoppecorp.com,
NORTHSHORE HOSTING COMPANY, LLC d/b/a ROCKY MOUNTAIN INTERNET
SERVICES, LLC and BAY CITY HOSTING,
LLC,
RAVINIA HOSTING COMPANY, LLC,
NORTHGATE INTERNET SERVICES, LLC,
JOHN DOES 1-50,
Third-Party Defendants.

PLAINTIFF’S, COUNTER-DEFENDANT’S AND THIRD-PARTY DEFENDANTS’

MOTION TO VACATE ALL PRIOR ORDERS PURSUANT TO F.R.C.P. 60(b)(6)

NOW COMES, Plaintiff, e360Insight, LLC (“e360”) and Third-Party Defendants David Linhardt (“Mr. Linhardt”), Maverick Direct Marketing Solutions, Inc. (“Maverick”), Bargain - 1 -
Depot Enterprises, LLC (“BDE”), Northshore Hosting Company, LLC (“Northshore”), Ravinia Hosting Company, LLC (“Ravinia”) and Northgate Internet Services, LLC (“Northgate”) (collectively, including Mr. Linhardt, “Counter-Defendants”) and by and through their attorneys, the Law Office of Carla E. Buterman and Synergy Law Group, L.L.C., and in support of the motion to vacate all prior orders pursuant to Federal Rule of Civil Procedure 60(b)(6) state as follows:

1. e360 commenced this action against Comcast Corporation (“Comcast”) on January 15, 2008. At that time, e360 filed a Disclosure Statement identifying the parties that would be involved in the suit.

2. On April 10, 2008, Judge Zagel granted Comcast’s Motion for Judgment on the Pleadings and dismissed e360’s complaint in its entirety. (See ECF Docket Entry No. 43, Memorandum Opinion and Order dated April 10, 2008).

3. On April 30, 2008, Judge Zagel denied e360’s Motion to Reconsider, stating that Plaintiff had not added anything new but simply attempted to clarify its prior pleadings. (See ECF Docket Entry No. 53 dated April 30, 2008). e360’s Motion to Reconsider pointed out that the Court failed to take Plaintiff’s well-pled facts as true for the purpose of deciding Comcast’s Motion for Judgment on the Pleadings. (See ECF Docket Entry No. 51 dated April 24, 2008). Further, the Motion to Reconsider pointed out that the Court improperly relied on its own factual determinations, without the parties presenting any evidence to support such determinations, when deciding to dismiss e360’s complaint in its entirety. Id.

4. On July 2, 2008, Judge Zagel denied e360’s Motion to Dismiss Comcast’s counterclaims. (See ECF Docket Entry No. 61, Memorandum Opinion and Order dated July 2, 2008.)

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5. On September 5, 2008, Judge Zagel voluntarily recused himself, stating that “I have a financial interest in the defenant [sic] corporation to this action.” (See ECF Docket Entry No. 65, Transfer of Case to the Executive Committee for a Reassignment dated September 5, 2008.)

I. The Court’s Violation of § 455(a) Justifies Vacatur Pursuant to F.R.C.P. 60(b)(6)—Judge Zagel’s Financial Interest in Comcast Casts Doubt as to his Impartiality.

6. The United States Code requires “[a]ny justice, judge, or magistrate judge of the United States [to] disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Vactaur of prior rulings, pursuant to Federal Rule of Civil Procedure 60(b)(6), is a proper remedy for a violation of § 455(a). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 848 (1988).

7. Impartiality can be reasonably questioned where a Judge has a financial interest in one of the parties even if the Judge does not have knowledge of the financial interest. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 851-52 (1988) (finding a vacatur of a final judgment appropriate even where the judge did not have actual knowledge of his financial interest in a party to a case at the time of trial but where a reasonable observer would expect that the judge would have known of his personal interest given the facts and circumstances of the case).

8. Thus, regardless of whether Judge Zagel knew of his financial interest in Comcast, Judge Zagel’s failure to disqualify himself from this case is grounds for vacating the Orders entered and rulings made by him because a reasonable observer would expect him to realize his interest after receiving the Disclosure Statement clearly identifying Comcast as a party to the proceeding.

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II. The Court’s Violation of § 455(b)(4) Justifies Vacatur Pursuant to F.R.C.P. 60(b)(6)—After Receiving the Disclosure Statement Judge Zagel Should Have Known of His Financial Interest in Comcast.

9. Furthermore, a judge must disqualify himself if “he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceedings.” 28 U.S.C. § 455(b)(4); see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 851-52 (1988) (pointing out that §455(b)(4) “requires disqualification no matter how insubstantial the financial interest and regardless of whether or not the interest actually creates an appearance of impropriety.”)

10. If at the time a judge was hearing a case he or she had knowledge, within the meaning of 28 U.S.C. § 455, of a reason for his or her disqualification then all his or her rulings must be vacated. Davis v. Xerox, 811 F.2d 1293, 1296 (9th Cir. 1987).

11. While it is not entirely clear whether Judge Zagel knew of his financial interest in Comcast before e360 filed its complaint or whether Judge Zagel became aware of his financial interest later in the case, for the purposes of resolving this Motion for Vacatur (and absent a statement to the contrary), the Court should err on the side of concluding Judge Zagel knew of his financial interest in Comcast after receiving the Disclosure Statement.

12. Because Judge Zagel had a financial interest in Comcast, he had a statutory duty to disqualify himself upon his initial review of the Disclosure Statement presented at the time the case was filed.

13. Judge Zagel, however, did not disqualify himself at that time; rather, he disqualified himself after he had already issued several rulings. (See ECF Docket Entry Nos. 43 (Order granting Comcast’s Motion for Judgment on the Pleadings); 53 (Order denying e360’s
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Motion to Reconsider); and 61 (Order denying e360’s Motion to Dismiss Comcast’s counterclaims)).

14. A vacatur has been found appropriate where a judge learned about his financial interest after making two non-final orders. Brown v. Burlington N. R.R. Co., No. 95C3474 (N.D. Ill. Apr. 11, 1996). In this unpublished opinion, Illinois District Judge Shadur disqualified himself under 28 U.S.C. § 455(b)(4) and vacated the two non-final orders when he learned that his wife held stock in the Defendant corporation.

15. This case presents an even more compelling reason to vacate the prior rulings than found in either Brown or Liljeberg in light of the fact e360’s complaint was dismissed in its entirety and the Court denied its Motion for Reconsideration. Here, vacatur of the prior rulings is appropriate and indeed necessary to accomplish justice. See Liljeberg, 486 U.S. at 863 (applying Federal Rule of Civil Procedure 60(b)(6) to relieve a party of a final judgment in order to accomplish justice and stating that “[w]e must continuously bear in mind that to perform its highest function in the best way justice must satisfy the appearance of justice”) (internal quotations omitted).

16. In light of the above, Plaintiff, Counter-Defendant and Third Party Defendants respectfully request all prior rulings in this case be vacated pursuant to Federal Rule of Civil Procedure 60(b)(6) because of Judge Zagel’s violation of U.S.C. § 455(a), or alternatively U.S.C. § 455(b).
Specifically the following rulings should be vacated:

a. Judge Zagel’s April 10, 2008, Memorandum Opinion and Order granting Comcast’s Motion for Judgment on the Pleadings and dismissing e360’s complaint as a whole (ECF Docket Entry No. 43);

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b. Judge Zagel’s April 30, 2008, Order denying e360’s Motion to Reconsider (ECF Docket Entry No. 53); and

c. Judge Zagel’s July 2, 2008, Memorandum Opinion and Order denying e360’s Motion to Dismiss Comcast’s counterclaims (ECF Docket Entry No. 61).

WHEREFORE, Plaintiff, Counter-Defendant and Third-Party Defendants respectfully request that this Court enter an Order vacating all prior judgments entered by Judge Zagel without prejudice and any other relief this Court deems just and appropriate.

Respectfully submitted,

Plaintiff, Counter-Defendants and Third-Party Defendants

By: /s/ Bartly J. Loethen
One of their Attorneys

Bartly J. Loethen (6225484)
Joseph L. Kish (6197916)
Shaina A. Moss (6283585)
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
MotVacate.pdf	10/09/08 7:40 pm	51.46 KB

Review of Judge Zagel's Orders

After denying e360's attempt to reboot this case, Judge Zagel decided to review all of the non-routine matters (in other words, substantive rulings). The following is his decision concerning the merits of e360's request to get a mulligan: "Having reviewed each of these rulings, the court finds no compelling reason to revisit them. None of the rulings is a close enough call to justify vacatur or additional briefing, and so they will stand."

===========================
This case was transferred to this court after Judge Zagel recused himself. The plaintiff, e360 Insight, LLC, filed a motion to vacate all of Judge Zagel’s rulings, which this court denied on November 19, 2008.

On its own motion, this court then reviewed Judge Zagel’s rulings on all non-routine matters, reserving the possibility of additional briefing or vacatur if any of Judge Zagel’s rulings were close calls.

This court has reviewed (1) the dismissal of e360’s complaint (R. 43); (2) the denial of the motion for reconsideration of that ruling (R. 53); and (3) the denial of the motion to dismiss Comcast’s counterclaims (R. 61). The following is a summary of that review.

e360, an e-mail marketing service, initiated this lawsuit based on Comcast’s refusal to deliver e360’s e-mails to Comcast subscribers, despite e360’s assertion that the e-mails are not spam and that the company complies with Comcast’s terms of use. e360 pursued four avenues for relief: (1) a claim under Illinois law for tortious interference with prospective economic advantage; (2) a claim under the Computer Fraud and Abuse Act, 18 U.S.C. §1030(a)(5), premised on what e360 described as Comcast’s “denial of service attacks” and transmission of false “bounce” information; (3) a claim that Comcast is muzzling e360 in violation of its First Amendment rights; and (4) a claim of unfair competition and business practices under Illinois law.

Judge Zagel granted Comcast’s motion for judgment on the pleadings, see Fed. R. Civ. P. 12(c),
because, under the Communications Decency Act of 1996, Comcast’s good-faith efforts to filter spam protect it from civil liability. See 47 U.S.C. § 230(c). He noted that courts have interpreted spam to be “objectionable” material under the Act, and that if a provider subjectively, and in good faith, deems material
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to be spam, the provider may block the material without risking civil liability. Although e360 had alleged a lack of good faith based on Comcast’s purportedly different treatment of other mass-marketers, Judge Zagel concluded that this allegation was not enough to raise a plausible claim for relief. In the alternative, Judge Zagel ruled that e360 had failed to state a claim under each of the laws it invoked. e360 then filed a motion for reconsideration, which was denied.

In the meantime, Comcast filed counterclaims against e360 and third-party defendants David Linhardt, Maverick Direct Marketing Solutions, Inc., Bargain Depot Enterprises, LLC, Northshore Hosting Company, LLC, Ravinia Hosting Company, LLC, Northgate Internet Services, LLC, and as many as 50 unnamed individual defendants, alleging that they were sending (or attempting to send) spam to Comcast subscribers, bombarding Comcast’s servers with spam, sending false or misleading advertising, selling counterfeit goods, making fraudulent representations to Comcast, filing frivolous lawsuits, and using deception to circumvent Comcast’s spam-filtration efforts. Comcast brought these counterclaims under the CAN-SPAM Act, 15 U.S.C. § 7704(a)(1)&(2), the Computer Fraud & Abuse Act, 18 U.S.C. § 1030(a)(5), and the Illinois Electronic Mail Act, 815 ILCS 511/10, along with counterclaims of trespass to chattels, unjust enrichment, and abuse of process.

e360 and the third-party defendants filed a motion to dismiss each of the counterclaims. Judge Zagel dismissed the unjust enrichment claim without prejudice, but otherwise denied the motion. He explained that Comcast had adequately alleged that each of the named defendants played a role in the spamming scheme, and that Linhardt was properly named as an individual defendant because he was alleged to have acted as the owner of a corporation and to have personally made misrepresentations and directed lawsuit abuse. Judge Zagel rejected e360's argument that Comcast’s claims under the CAN-SPAM Act and the Illinois Electronic Mail Act were subject to Rule 9(b)’s pleading requirements because the claims involved misrepresentations, not fraud, and he allowed them to proceed “based on information and belief” because Comcast alleged that the third-party defendants concealed many of their tactics to avoid detection. He also explained that the CFAA claim (based on e360 sending massive volumes of e-mails to Comcast’s servers), was not obviously time-barred given e360’s own allegations that it had sent e-mails to Comcast subscribers within the last two years. As for the trespass to chattels claim, Judge Zagel concluded that Comcast had alleged more than nominal damage to its servers based on the bombardment of e-mails from e360. And, finally, Judge Zagel allowed the abuse-of-process claim to proceed because Comcast had alleged use of the legal system for an improper purpose and that, in at least one case, such misuse occurred after process had been served.

Having reviewed each of these rulings, the court finds no compelling reason to revisit them. Cf. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 868-69 & n.16 (1988) (concluding that fairness required revisiting debatable rulings when they were made by a judge who should have recused himself); Russell v. Lane, 890 F.2d 947, 949 (7th Cir. 1989) (same). None of the rulings is a close enough call to justify vacatur or additional briefing, and so they will stand.

Attachment	Date	Size
ReviewZagelRulings.pdf	12/19/08 3:42 pm	19.44 KB

Scheduling Order

Here's the scheduling order for the case. It's not difficult to comply with from a time standpoint, but he's also indicating that he will be hard-nosed about the time-line: "This schedule will not be altered/amended."

====================

MINUTE entry before the Honorable David H. Coar:

Rule 16(b) Scheduling Conference held on 12/16/2008. Counterdefendant and Third-Party Defendants' answer to the counterclaim and third party complaint shall be made on or before 1/20/2009. Discovery shall commence on 1/27/2009. All disclosures required by Rule 26(a)(1) shall be made on or before 2/2/2009. Any amendments to pleadings or actions to join other parties shall be filed on or before 5/4/2009. Fact Discovery is ordered closed on 8/31/2009. The parties shall disclose expert testimony pursuant to Rule 26(a)(2) on or before 9/30/2009. The parties may depose the other side' s expert at any time prior to 10/31/2009. The parties shall disclose any rebuttal expert pursuant to Rule 26(a)(2)( c) at any time prior to 11/30/2009. The parties may depose the opposing party's rebuttal expert by 12/20/2009. The cutoff for all discovery shall be 1/1/2010 Discovery materials are not to be filed with the Court pursuant to N.D. Ill. Local Rule 26.3 (discovery "shall not be filed with the court"). Dispositive motions with supporting memoranda due by 9/15/2009 (all motions are to be filed in accordance to and noticed for presentment for a date certain pursuant to Local Rule 5.3(b)). Final Pretrial Order due by 1/26/2010. Final Pretrial Conference set for 2/5/2010 at 10:30 AM. Jury Trial set for 2/22/2010 at 10:00 AM. This schedule will not be altered/amended. The parties are directed to review this Court's standing orders. Copies are available in chambers or through the Court's web page. Mailed notice (pm, ) Modified on 12/16/2008 (pm, ). (Entered: 12/16/2008)

Answer to Counter Claims and Third Party Claims

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC,
Plaintiff, v.
COMCAST CORPORATION,
Defendant.
________________________________________

COMCAST CORPORATION,
Counterclaimant, v.
E360INSIGHT, LLC,
Counterdefendant, and
DAVID LINHARDT; MAVERICK DIRECT MARKETING SOLUTIONS, INC.; BARGAIN DEPOT ENTERPRISES, LLC, d/b/a bargaindepot.net and bargainshoppecorp.com; NORTHSHORE HOSTING COMPANY, LLC d/b/a ROCKY MOUNTAIN INTERNET SERVICES, LLC and BAY CITY HOSTING, LLC; RAVINIA HOSTING COMPANY, LLC; NORTHGATE INTERNET SERVICES, LLC, and JOHN DOES 1-50,
Third-Party Defendants.

ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM AND THIRD-PARTY COMPLAINT

e360Insight (Counter-Defendant) and David Linhardt, Maverick Direct Marketing Solutions, Inc., Bargain Depot Enterprises, LLC, Northshore Hosting Company, LLC, Ravinia Hosting Company, LLC, Northgate Internet Services, LLC, (Third-Party Defendants) state for their Answer to Counter-Plaintiff’s Counterclaim and Third Party Complaint as follows:

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I. NATURE OF THE ACTION

1. Defendants operate a business designed to facilitate the e-mail marketing of products and services through, among other things, the sending of unwanted, unauthorized, unlawful and/or otherwise objectionable commercial e-mail messages (generally referred to as “spam”).

ANSWER: Denied.

2. Internet service providers (“ISPs”), such as Comcast, with the assistance of others, filter e-mail messages to prevent spam from reaching consumers. It is essential to the operation of its ISP services that Comcast utilize the tools at its disposal, tools sanctioned by federal and state law, to protect its subscribers from receiving spam. About 90% of all e-mail sent to Comcast’s subscribers is spam. Comcast filters about 500,000,000 spam e-mails per day.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

3. Spammers, on the other hand, try to mask their identities, the origins of their emails, and the nature of their services in order to deliver spam to consumers and to remain profitable. Defendants here utilize a variety of illegal and fraudulent activities to pursue their objectives, and have undertaken various efforts to obscure the nature, scope, and participants in their activities. Indeed, the filing of this action and pursuit of a preliminary injunction and expedited discovery are part of Defendants’ attempts to pressure and harass those who protect consumers from Defendants’ objectionable e-mails.

ANSWER: Denied.

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4. Comcast brings this counterclaim and Third-Party complaint to prevent Defendants’ ongoing assault on Comcast’s business and to hold Defendant liable for its unlawful acts.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

II. JURISDICTION

5. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1332. The amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. The Court also has federal question jurisdiction over the claims arising under the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 15 U.S.C. § 7701 (“CAN-SPAM”) and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), jurisdiction being conferred in accordance with 28 U.S.C. §§ 1331 and 1338(a).

ANSWER: Admit.

III. PARTIES

6. Counterclaimant, Comcast, is a Pennsylvania corporation with a principal place of business located at One Comcast Center, Philadelphia, Pennsylvania 19103.

ANSWER: Admit.

7. Counterdefendant, e360insight, LLC (“e360”), is an Illinois limited liability company with a principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090.

ANSWER: Admit.

8. Third-Party Defendant, David Linhardt (“Linhardt”), is an individual residing at 500 Sumac Road, Highland Park, Illinois 60035. On information and belief, Linhardt is the president and founder of e360, the majority and only shareholder of Maverick, the owner of Ravinia
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Hosting, the president of Northshore Hosting (as these entities are defined below), and directs and controls the complained of activities of each of the named Defendants.

ANSWER: Defendant Linhardt denies that he is the owner of Ravinia Hosting. Counter-Defendant and Third-Party Defendants admit the remaining allegations of this paragraph.

9. Third-Party Defendant, Maverick Direct Marketing Solutions, Inc. (“Maverick”), is an Illinois corporation with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. On information and belief, Maverick wholly owns e360, Bargain Depot and Northshore Hosting.

ANSWER: Counter-Defendants and Third-Party Defendants admit only that Maverick is the single member of e360, Bargain Depot Enterprises, LLC and Northshore Hosting, LLC.

10. Third-Party Defendant, Bargain Depot Enterprises, LLC (“Bargain Depot”), d/b/a bargaindepot.net and bargainshoppecorp.com, is an Illinois limited liability company with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. On information and belief, Bargain Depot is a division of e360 and is wholly owned by Maverick.

ANSWER: Counter-Defendants and Third-Party Defendants admit only that Third-Party Defendant, Bargain Depot Enterprises, LLC (“Bargain Depot”), d/b/a bargaindepot.net and bargainshoppecorp.com, is an Illinois limited liability company with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. The remaining allegations of this paragraph are denied.

11. Third-Party Defendant, Northshore Hosting Company, LLC d/b/a Rocky Mountain Internet Services, LLC and Bay City Hosting, LLC (“Northshore Hosting”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600
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Northgate Pkwy., Ste. A, Wheeling, Illinois 60090, or another location in Illinois, and it is wholly owned by Maverick.

ANSWER: Counter-Defendants and Third-Party Defendants admit only that Third-Party Defendant, Northshore Hosting Company, LLC d/b/a Rocky Mountain Internet Services, LLC and Bay City Hosting, LLC (“Northshore Hosting”), is a Delaware limited liability company with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. Maverick is the sole member of these companies.

12. Third-Party Defendant, Ravinia Hosting Company, LLC (“Ravinia Hosting”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600 Northgate Pkwy., Ste. A. Wheeling, Illinois 60090, or another location in Illinois, and it is owned and controlled by Linhardt.

ANSWER: Counter-Defendants and Third-Party Defendants admit only that Third-Party Defendant, Ravinia Hosting Company, is a Delaware limited liability company with its principal place of business at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090. Maverick is the sole member of Ravinia Hosting Company.

13. Third-Party Defendant, Northgate Internet Services, LLC (“Northgate”), is a Delaware limited liability company. On information and belief, its principal place of business is at 600 Northgate Pkwy., Ste. A, Wheeling, Illinois 60090, or another location in Illinois, and it is an affiliate of e360.

ANSWER: Admit.

14. Third-Party Defendants, John Does 1-50, are companies or individuals with unknown identities and addresses that are business partners or affiliates of the other Defendants or provide services or assistance to, or facilitate the complained of activities of, the Defendants.

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ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

IV. FACTUAL BACKGROUND

A. Comcast’s Cable and Internet Services.
15. Comcast, by or through its subsidiaries, is one of the leading cable and internet service providers in the country with over thirteen million high-speed internet subscribers.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

16. Consumers subscribe to Comcast High-Speed Internet services, in part, because of the stability, security and reliability of its network. Comcast’s network remains secure and reliable in part because the system is maintained by filtering out spam and preventing it from reaching subscribers’ inboxes. Comcast, using a proprietary and highly confidential system in accordance with industry standards, filters and otherwise limits spam from reaching subscribers’ inboxes (“Comcast’s Filtering System”).

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

17. Comcast’s Filtering System is a continually evolving system that relies on a variety of resources to determine whether an incoming e-mail is spam. These resources include Third-Party software, lists generated by anti-spam organizations, subscriber complaints, the sender’s reputation, and other highly proprietary and confidential systems and methods.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

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18. If an e-mail is filtered out by Comcast’s Filtering System, the sender receives an error message with a code and links to follow for instructions on why the e-mail was filtered out and how to address the issue that caused the e-mail to be filtered out.

ANSWER: Denied.

B. Defendants’ Unlawful Activities.
19. Defendants market products and services using spam directed at hundreds of thousands, if not millions, of consumers, including Comcast’s subscribers.

ANSWER: Denied.

20. On information and belief, Maverick wholly owns e360, Bargain Depot, and Northshore, and directs and controls the sending of hundreds of thousands, if not millions, of spam e-mails by Defendants.

ANSWER: Denied.

21. On information and belief, Bargain Depot, among other things, provides knockoff, counterfeit or otherwise unauthorized goods marketed through mass e-mails sent by Defendants.

ANSWER: Denied.

22. On information and belief, Northshore Hosting, Ravinia Hosting, Northgate, and John Does 1-50 (“Third-Party Marketers”) are in the business of registering domain names and IP addresses and sending spam on behalf of Defendants. On information and belief, the Third-Party Marketers also register IP and domain name addresses in their own name, often with private registry services, for the purposes of masking the true identity of the owners of the IP addresses and domain names, and the true parties responsible for sending spam.

ANSWER: Denied.

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C. Defendants’ Email Practices.
23. Defendants, acting together, have engaged in a concerted scheme to send millions of unsolicited commercial e-mails for their own commercial benefit, including to many thousands of Comcast subscribers.

ANSWER: Denied.

24. Defendants have used numerous domain names and IP addresses to conceal their identities and scheme and to facilitate the sending of the unsolicited e-mails.

ANSWER: Denied.

25. On information and belief, some of Defendants’ commercial e-mails contain misleading or false header or subject line information.

ANSWER: Denied.

26. On information and belief, some of Defendants’ commercial e-mails advertise, promote, and sell counterfeit or unauthorized goods supplied by Bargain Depot.

ANSWER: Denied.

27. On information and belief, some of Defendants’ commercial e-mails advertise “free” promotions when the goods or services are not, in fact, free.

ANSWER: Denied.

28. On information and belief, not all of the intended recipients of Defendants’ commercial e-mails have opted in to receive such e-mail messages.

ANSWER: Denied.

29. On information and belief, Defendants fabricate opt-in records of intended e-mail recipients.

ANSWER: Denied.

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30. On information and belief, Defendants have attempted to send hundreds of thousands, if not millions, of spam e-mails to Comcast’s subscribers since as early as 2005, including e-mails advertising Bargain Depot’s counterfeit or unauthorized goods.

ANSWER: Denied.

31. Comcast’s Filtering Technology has filtered out spam sent by Defendants to Comcast’s subscribers. On information and belief, Comcast’s Filtering Technology has filtered out Defendant’s spam since as early as 2005.

ANSWER: Counter-Defendant and Third-Party Defendants deny that they sent any “spam” to Comcast’s subscribers.

32. On information and belief, when Defendants’ commercial e-mails have been filtered out by Comcast’s Filtering Technology, Defendants have received an error message and link to follow to learn why their e-mails were filtered out and how to revise their e-mail practices so that Defendants’ e-mails may reach the intended Comcast subscribers.

ANSWER: Denied.

33. To facilitate the business of the Defendants, Linhardt has made fraudulent misrepresentations to Comcast about the commercial e-mails sent by or through Defendants to Comcast’s subscribers.

ANSWER: Denied.

34. For example, on January 6, 2006, Linhardt telephoned Comcast and falsely and fraudulently represented to a Comcast employee that all of the intended recipients of e360’s email messages have opted-in to receive such messages. Additionally, on March 4, 2007, Linhardt sent a letter to Arthur J. Block of Comcast making the following fraudulent representations: “All of the individuals requesting emails from us have signed up with us through
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web sites operated by us or by our partners. Our customers have all been through an opt-in process that exceeds all requirements in the provisions of CAN-SPAM.” The letter went on to notify Comcast of a default judgment obtained in this Court against a United Kingdom-based anti-spam operation, seeking to use that default judgment to coerce Comcast into allowing Defendants’ unsolicited e-mails through Comcast’s Filtering Technology. A copy of the letter is attached hereto as Exhibit A.

ANSWER: Denied.

35. After e360 commenced this litigation, Comcast offered to work with e360 to review e360’s e-mail practices in order to evaluate the e-mails to Comcast’s subscribers and the reasons they have been filtered out. e360 refused the offer, asserting that it would learn how to circumvent Comcast’s Filtering System through discovery.

ANSWER: Denied.

D. Defendants’ Abuse Of The Legal Process To Circumvent Anti-Spam Initiatives.
36. Spamhaus Project (“Spamhaus”), a non-profit Internet watchdog group located in the United Kingdom, generates and maintains the Register of Known Spam Operations (‘ROKSO”) which is a collation of information and evidence on known professional spam operations that have been terminated by a minimum of three ISPs for spam offenses. Spamhaus also offers the Spamhaus Block List (“SBL”), which is a database of IP addresses that have been identified as the source of spam.

ANSWER: Admit.

37. ISPs, such as Comcast, rely on the ROKSO and/or SBL lists as part of the process of filtering e-mails.

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ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

38. As early as 2006, e360 discovered that it was listed on the ROKSO and/or SBL lists and, as a result, numerous ISPs were blocking Defendants’ spam.
ANSWER: e360 admits only that it was unjustifiably listed on the ROKSO and SBL lists as early as November 2003. e360 denies the remaining allegations of this paragraph.

39. On June 21, 2006, e360 and Linhardt sued Spamhaus in the Circuit Court of Cook County, Skokie, Illinois, asserting claims arising from Spamhaus’ listing of e360 on its ROKSO and/or SBL lists. On information and belief, e360 and Linhardt sued Spamhaus in Illinois knowing that the Illinois courts did not have jurisdiction over Spamhaus for the improper purpose of undermining Spamhaus’ ability to engage in legitimate and lawful anti-spam activities.

ANSWER: e360 and Linhardt admit only that they initiated a lawsuit against Spamhaus for the illegal interference by Spamhaus with e360’s business. e360 and Linhardt deny the remaining allegations of this paragraph.

40. Spamhaus did not contest the action. As a result, the Northern District of Illinois (upon removal of the case) granted a default judgment and entered an order drafted by e360 requiring Spamhaus to “not take any action to cause email sent by [e360] or their affiliates, subsidiaries, or related companies … to be blocked, delayed, altered or interrupted in any way … unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiff’s have violated relevant United States law” (the “Court Order”).

ANSWER: Denied.

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41. After the Court Order was entered, Defendants’ began marketing a new service called “IP Protection Services” to unrelated Third-Party e-mail marketers whose e-mail marketing messages were blocked by various ISPs, so that Spamhaus would be required to de-list those marketers from its lists.

ANSWER: e360 admits that it marketed a service for entities. Defendants deny the remaining allegations contained in this paragraph.

42. The IP Protection Service entails modifying the Third-Party marketers’ IP addresses to appear as if they are e360’s IP addresses, or providing the Third-Party internet marketers access to e360’s servers for use in sending mass e-mail marketing messages through e360’s servers that have been de-listed with Spamhaus pursuant to the Court Order. e360 describes how it plans to use the Court Order to mislead Spamhaus:

“As you know, the American Registry of Internet Numbers (ARIN) assigns all IP address in the U.S. ARIN maintains a registry of all IP addresses on www.arin.net which acts as a kind of phone book for the Internet. When Spamhaus investigates the originating IP address for an email message, they rely heavily on the information provided by ARIN. E360’s IP Identity Management Solution effectively modifies the ARIN listing for your existing ip addresses and points them to one of our legally protected entities. The result is immediate protection against Spamhaus listings as provided by the federal injunction. This solution protects against future listings, and also forces Spamhaus to remove any existing SBL listings.” [Emphasis Supplied]

Attached as Exhibit B are marketing materials issued by e360 advertising the IP Protection Service.

ANSWER: Denied.

43. Once the Third-Party e-mail marketer enrolls in the IP Protection Services, Defendants use the Court Order to request that Spamhaus de-list the Third-Party marketers’ IP addresses from the ROKSO and/or SBL lists on the basis that the third party is now an “affiliate” of e360 within the meaning of the Court Order.

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ANSWER: Denied.

44. On information and belief, some Third-Party internet marketers who have enrolled in the IP Protection Service are purveyors of dpam. (sic)

ANSWER: Denied.

45. On information and belief, a purpose of the IP Protection Services is to launder Third-Party spam that would otherwise be blocked through e360’s de-listed IP addresses and servers.

ANSWER: Denied.

46. For example, e360 entered into an agreement with Virtumundo, Inc. (“Virtumundo”) on June 6, 2007, to provide the IP Protection Service. Attached hereto as Exhibit C is a copy of the Services Agreement entered into between e360 and Virtumundo.

ANSWER: e360 admits only that it entered into an agreement with Virtumundo but that agreement was terminated by Virtumundo prior to implementation.

47. On information and belief, Virtumundo sends spam.

ANSWER: On information and belief, Counter-Defendant and Third-Party Defendants deny the allegation contained in this paragraph.

48. After entering into the Services Agreement with Virtumundo, e360 demanded that Spamhaus de-list Virtumundo’s IP addresses from the ROKSO and/or SBL lists on the basis that Virtumundo is now an “affiliate” of e360 within the meaning of the Court Order.

ANSWER: Denied.

49. e360 and Linhardt have filed and threatened to file lawsuits in the Illinois courts against parties who call e360 and/or Linhardt a “spammer” or block e360’s e-mails. e360 and Linhardt routinely file, drop, and re-file these actions against the same parties. For example, e360 and Linhardt sued Mark Ferguson for defamation in the U.S. District Court for the Northern
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District of Illinois in March 2007; voluntarily dismissed it without prejudice in May 2007; filed a similar lawsuit against Mark Ferguson in Circuit Court of Cook County, Illinois, later in May 2007, dismissed it without prejudice in August 2007; and then refiled an action against Mark Ferguson in U.S. District Court for the Northern District of Illinois in January 2008.

ANSWER: e360 and Linhardt admit only that they filed an action against Mark Ferguson based on Mr. Ferguson’s tortious actions. To the extent the allegations contained in this paragraph are inconsistent with the foregoing, they are denied.

50. On information and belief, these litigation tactics are pursued for the improper purpose of undermining Spamhaus’ ability to engage in legitimate and lawful anti-spam activities and to disrupt the ability of ISPs, such as Comcast, to rely on anti-spam data generated by Spamhaus and other anti-spam entities.

ANSWER: Denied.

COUNT I
VIOLATION OF THE CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING ACT (“CAN-SPAM”) OF 2003 – 15 U.S.C. § 7704(a)(1)
51. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

52. Defendants regularly initiate the transmission of e-mails to Comcast subscribers and other consumers that contain false and misleading information about the origin of the e-mail, the author of the e-mail, and the IP address of the sender of the e-mail in violation of 15 U.S.C. §7704(a)(1).

ANSWER: Denied.

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53. Defendants regularly send e-mail messages that include originating e-mail addresses, domain names, and IP addresses that were obtained by means of false or fraudulent pretenses or representations that are materially misleading in violation of 15 U.S.C. § 7704(a)(1).

ANSWER: Denied.

54. Defendants have sent hundreds of thousands, if not millions, of e-mail messages in violation of 15 U.S.C. § 7704(a)(1) and, therefore, Comcast is entitled to statutory damages of $100 for each violation in accordance with 15 U.S.C. § 7706(g)(A)(i).

ANSWER: Denied.

55. Each of these violations of this section was committed willingly and knowingly and, accordingly, Comcast is entitled to aggravated damages under 15 U.S.C. § 7706(g)(3)(C)(i).

ANSWER: Denied.

COUNT II
VIOLATION OF CAN-SPAM – 15 U.S.C. § 7704(a)(2)
56. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

57. Defendants knowingly send and/or attempt to send to Comcast subscribers and other consumers e-mails that contain subject headings that mislead the recipient, including, but not limited to statements regarding “free” consumer merchandise and the origin of designer or luxury goods, in violation of 15 U.S.C. § 7704(a).

ANSWER: Denied.

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58. Defendants have sent hundreds of thousands, if not millions, of e-mail messages that violate § 7704(a) and, therefore, Comcast is entitled to statutory damages of $25 for each violation of this section in accordance with 15 U.S.C. § 7706(g)(A)(ii).

ANSWER: Denied.

59. Each violation of this section has been committed willingly and knowingly and, accordingly, Comcast is entitled to aggravated damages under § 7706(g)(3)(C)(i).

ANSWER: Denied.

COUNT III
VIOLATION OF ILLINOIS ELECTRONIC MAIL ACT – 815 ILCS 511/10
60. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

61. Defendants send and attempt to send to Comcast subscribers and other consumers e-mails that contain false or misleading information in the subject line, in violation of Illinois Electronic Mail Act, 805 ILCS 511/10(a)(ii), and the laws of various states.

ANSWER: Denied.

62. Defendants have sent hundreds of thousands, if not millions, of e-mail messages violating the laws of various states, including 805 ILCS 511/10(a)(ii), and, therefore, Comcast is at least entitled to statutory damages of the lesser of $10 per e-mail message or $25,000 per day, in accordance with 805 ILCS 511/10(d).

ANSWER: Denied.

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COUNT IV
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT – 18 U.S.C. § 1030(a)(5)

63. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

64. Computers used by Comcast in its role as an ISP constitute “protected computers” under the Computer Fraud and Abuse Act.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

65. Defendants have knowingly bombarded Comcast’s network and servers with hundreds of thousands, if not millions, of e-mails, causing Comcast’s network to operate more slowly, and reducing the service provided to Comcast’s subscribers, in violation of 18 U.S.C. §§1030(a)(5) and 1030(g).

ANSWER: Denied.

66. The damages suffered by Comcast as a result of e360’s conduct include the impairment of the integrity and/or availability of data, programs, systems, and/or information on Comcast’s protected computers. Comcast’s damages aggregate at least $5,000 in value in the year preceding the date of filing of this counterclaim and Third-Party complaint.

ANSWER: Denied.

COUNT V
TRESPASS TO CHATTELS
67. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

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ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

68. The computers, servers, and networks that support Comcast’s ISP services are the personal property of Comcast.

ANSWER: Counter-Defendant and Third-Party Defendants have insufficient information to admit or deny the allegations contained in this paragraph and therefore deny the same.

69. Defendants have intentionally and repeatedly obtained access to, and made use of, Comcast’s computers, servers, and networks for their own economic benefit.

ANSWER: Denied.

70. Even after knowledge that e-mails were blocked by Comcast’s Filtering System, Defendants continued to bombard Comcast’s servers and networks with massive amounts of emails. This practice of repeatedly transmitting e-mail messages through Comcast’s network and servers constitutes a wrongful exercise of dominion over Comcast’s network and services in denial of Comcast’s rights to that property. Such wrongful exercise of dominion over Comcast’s network and servers has deprived Comcast and its subscribers of the legitimate use of the network and servers.

ANSWER: Denied.

71. Under the common law of the various states, including the State of Illinois, Defendants’ conduct constitutes trespass to Comcast’s chattels.

ANSWER: Denied.

COUNT VI
UNJUST ENRICHMENT
Count VI of Counter-Claimant’s Complaint was previously dismissed.

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COUNT VII
ABUSE OF PROCESS

75. Comcast re-alleges and incorporates by reference each of the allegations contained in paragraphs 1 through 50.

ANSWER: Counter-Defendant and Third-Party Defendants restate and incorporate their answers to paragraphs 1 through 50 as though fully set forth in this paragraph.

76. On information and belief, e360 knew when it filed the complaint in this action that Comcast is immune from Plaintiff’s claims under the Communications Decency Act, CAN-SPAM, and the laws of the various states including Illinois and Pennsylvania, and that Comcast is not a state actor subject to liability under the First Amendment.

ANSWER: Denied.

77. On information and belief, e360 is pursuing this meritless legal attack for the improper purposes of: a) learning how to circumvent the lawful Comcast Filtering System; b) obtaining discovery, the purpose of which is to undermine the viability of filtering systems used by ISPs, including Comcast’s Filtering Systems, and to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

ANSWER: Denied.

78. Based on the allegations of the Complaint, e360 knew of its claims as early as 2005, three years prior to the commencement of this litigation. e360’s Motion for Expedited Discovery is not proper in the regular prosecution of this proceeding. The discovery sought is not needed in an expedited manner, and the scope of the discovery evidences e360’s improper motivation to learn how to circumvent Comcast’s Filtering System.

ANSWER: Denied.

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79. e360’s misuse of the Court Order in the Spamhaus matter is an attempt to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

ANSWER: Denied.

80. e360’s threats to sue, and the multitude of suits already brought (and routinely dropped and re-filed) in Illinois, against those who have identified e360 and Linhardt, as a “spammer” or blocked Defendants’ commercial e-mails, have been pursued for the improper purpose of undermining the ability of Spamhaus and ISPs, such as Comcast, from legally identifying and filtering out spam.

ANSWER: Denied.

81. As a result of e360’s abuse of process, Comcast has incurred significant expenses and damages, including but not limited to its attorneys’ fees and costs.

ANSWER: Denied.

AFFIRMATIVE DEFENSES

FIRST DEFENSE
Counter-Plaintiff’s claims in whole or in part fail to state a claim against Counter-Defendants and Third Party Defendants upon which the relief sought could be granted.

SECOND DEFENSE
Counter-Plaintiff’s claims in whole or in part are barred by the doctrine of unclean hands.

THIRD DEFENSE
Counter-Plaintiff’s claims in whole or in part are barred by the doctrine of waiver.

FOURTH DEFENSE
Counter-Plaintiff’s claims in whole or in part are barred by the doctrine of laches.

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FIFTH DEFENSE
Counter-Plaintiff’s claims in whole or in part are barred because Counter-Plaintiff failed to mitigate its damages.

SIXTH DEFENSE
Counter-Plaintiff’s claims are barred because Counter-Plaintiff’s subscribers requested the commercial e-mail sent by Counter-Defendant and Third-Party Defendants.

PLAINTIFFS, COUNTER-DEFENDANT AND THIRD-PARTY DEFENDANTS
By: /s/ Bartly J. Loethen
One of their Attorneys

Bartly J. Loethen (6225484)
Joseph L. Kish (6197916)
Shaina A. Moss (6283585)
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
CounterclaimAnswer.pdf	02/06/09 3:21 pm	98.72 KB