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

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

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.

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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