On June 21, 2006, David Linhardt and his company, e360insight.com, sued the Spamhaus Project, and its parent organization, The Spamhaus Project, Ltd., in the Chancery Courts of Illinois. The case was subsequently moved to federal district court where Spamhaus abandoned its defenses and e360insight was awarded $11,000,000 in damages.
This case was appealed to the 7th Circuit Court of Appeals. The 7th Circuit affirmed the default judgment but reversed and remanded for further hearings on the issue of damages.
This case started out in the Chancery Court of Cook County Illinois. These are the documents from that portion of the case.
Here is the Original Complaint in e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is the First Amended Complaint in the Cook County, IL, Chancery Court portion of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is the Motion for Expedited Discovery in the state court part of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is the Motion for a Preliminary Injunction in the state court part of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is David Linhardt's affidavit in support of the Motion for a Preliminary Injunction in the state court part of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is the Motion for Temporary Restraining Order in e360insight LLC, et al. v. The Spamhaus Project LLC, et al. with all attached exhibits.
Here is David Linhardt's affidavit in support of the Motion for a Temporary Restraining Order in the state court part of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
Here is the Order on e360insight LLC's Motion for Temporary Restraining Order in the state court portion of e360insight LLC, et al. v. The Spamhaus Project LLC, et al.
This case has been removed to the federal courts. These are the documents associated with this portion of the case.
This is the notice of removal that moved the case from the state courts into the federal courts.
This is the file cover sheet that briefly describes the case.
These are the attorney appearance notices for the parties.
These are the notices of appearance for the attorneys involved for Spamhaus.
Spamhaus' current attorneys are:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS- EASTERN DIVISION
e360 INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
an Individual,
Plaintiff,
v.
THE SPAMHAUS PROJECT, a company
limited by guarantee and organized under the
laws of England, a/k/a THE SPAMHAUS
PROJECT, LTD.,
Defendant.
Case No.: 06-C-3958
Judge: Kocoras
NOTICE OF MOTION
TO: Joseph L. Kish, Esq.
SNERGY LAW GROUP, L.L.C.
730 W. Randolph, 6th Floor
Chicago, IL 60661
PLEASE TAKE NOTICE that on August 23, 2006, at 9:30 a.m., or as soon thereafter as
counsel may be heard, I shall appear before the Honorable Judge Kocoras, or any judge sitting in
her stead in Courtroom 2541 in the Dirksen Federal Building, 219 South Dearborn Street,
Chicago, Illinois, 60604, and shall then and there present Defendant’s Motion to Withdraw as
Counsel, a copy of which is attached hereto and herewith served upon you.
Respectfully submitted,
HINSHAW & CULBERTSON LLP
By: /s/Andrew B. Cripe
Andrew B. Cripe
Andrew B. Cripe
Evan D. Brown
Hinshaw & Culbertson LLP
222 N. LaSalle, Suite 300
Chicago, IL 60601 / Firm No.: 90384
CERTIFICATE OF SERVICE
I, being first duly sworn on oath, depose and state that I filed via electronic mail the
foregoing Notice to counsel noted above on August 21, 2006.
/s/ Andrew B. Cripe
Andrew B. Cripe
These are the notices of appearance for e360insight LLC, and David Linhardt.
Current attorneys are:
of the Synergy Law Group
NOTE: Kristen M. Lehner and Daniel J Peters have withdrawn as attorneys in this case.
This is a fairly routine motion. Basically, Kristen Lehner has moved on to greener pastures or something. So, since she's not an attorney with the Synergy Law Group anymore, she's moving to withdraw as an attorney in this case.
===========================================
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFFS
NOW COMES Kristen M. Lehner (“Movant”) and for her Motion to Withdraw as Counsel for Plaintiffs states as follows:
1. Synergy Law Group, L.L.C. represents Plaintiffs in this case.
2. Movant, formerly an attorney with Synergy Law Group, L.L.C., filed her appearance on behalf of Plaintiffs on August 8, 2006.
3. Movant is no longer an attorney with Synergy Law Group, L.L.C.
4. Synergy Law Group, L.L.C. continues to represent Plaintiffs through Synergy Law Group, L.L.C.’s attorneys Bartly J. Loethen, Joseph L. Kish, and Daniel J. Peters.
5. Permitting Movant to withdraw as counsel for Plaintiffs will not jeopardize Plaintiffs’ case or otherwise negatively impact their legal representation in this case, nor will it result in any delay or other circumstances causing prejudice to any other party.
WHEREFORE, Kristen M. Lehner respectfully requests that she hereby be granted leave to withdraw her appearance on behalf of Plaintiffs E360Insight, LLC and David Linhardt.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
On behalf of Kristen Lehner
Bartly J. Loethen
Joseph L. Kish
Daniel J. Peters
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Motion to Withdraw as Counsel for Plaintiffs was served upon the attorneys listed below electronically through CM/ECF on May 4, 2007.
Carrie A Fino cfino@jenner.com Stephen M Geissler sgeissler@jenner.com, Joseph L Kish jkish@synergylawgroup.com Daniel J. Peters dpeters@synergylawgroup.com Craig Christopher Martin cmartin@jenner.com, docketing@jenner.com Matthew M. Neumeier mneumeier@jenner.com
And I hereby certify that I have mailed by the United States Postal Service the document to the following non CM/ECF participants:
Bartly J. Loethen
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Daniel J. Peters
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
06C3958 e360 Insight et al vs. The Spamhaus Project
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge or Magistrate Judge if Other than Assigned Judge
Charles P. Kocoras Sitting Judge
CASE NUMBER 06 C 3958 DATE 5/10/2007
CASE TITLE e360 Insight et al vs. The Spamhaus Project
DOCKET ENTRY TEXT
Kristen Lehner’s motion [88] to withdraw as counsel for plaintiffs is granted. Hearing on said motion, set for 5/10/2007, is stricken.
Docketing to mail notices.
Courtroom Deputy
Initials:
SCT
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFFS
NOW COMES Daniel J. Peters (“Movant”) and for his Uncontested Motion to Withdraw as Counsel for Plaintiffs states as follows:
1. Synergy Law Group, L.L.C. represents Plaintiffs in this case.
2. Movant filed his appearance on behalf of Plaintiffs on February 14, 2007.
3. Movant seeks to withdraw his appearance.
4. Synergy Law Group, L.L.C. continues to represent Plaintiffs through Synergy Law Group, L.L.C.’s attorneys Joseph L. Kish and Bartly J. Loethen.
5. Permitting Movant to withdraw as counsel for Plaintiffs will not jeopardize Plaintiffs’ case or otherwise negatively impact their legal representation in this case, nor will it result in any delay or other circumstances causing prejudice to any other party.
6. Counsel for Defendants indicated that they do not contest this Motion.
-2-
WHEREFORE, Daniel J. Peters respectfully requests that he hereby be granted leave to withdraw his appearance on behalf of Plaintiffs E360Insight, LLC and David Linhardt.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Daniel J. Peters
One of Their Attorneys
Bartly J. Loethen (6225484)
Joseph L. Kish (6197916)
Daniel J. Peters (6272859)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
This is the Original Answer of Spamhaus in e360insight, LLC, et al. v. The Spamhaus Project, LLC, et al.
====================================
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
e360 INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
an individual,
Plaintiffs,
v.
THE SPAMHAUS PROJECT, a company limited
by guarantee and organized under the laws of
England, a/k/a THE SPAMHAUS PROJECT, LTD.
Defendant.
ANSWER OF THE SPAMHAUS PROJECT, LTD.
Defendant The Spamhaus Project, Ltd. ("Spamhaus" or "Defendant"), with express reservation of its jurisdiction-related defenses, answers the Complaint For Injunctive Relief And Damages of Plaintiffs e360Insight, LLC ("e360") and David Linhardt ("Linhardt") (collectively "Plaintiffs") and in support thereof states as follows:
1. Denied.
2. Defendant lacks information or knowledge sufficient to form a belief as to truth of the allegations of Paragraph 2 of Plaintiffs' Complaint and therefore denies same.
3. Defendant lacks information or knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 3 of Plaintiffs' Complaint and therefore denies same.
4. Defendant admits the allegations set forth in the first sentence of Paragraph 4 of the Complaint, as well as the citation that immediately follows that sentence. Defendant denies all remaining allegations set forth in Paragraph 4.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Denied.
11. Defendant denies that it has engaged in any wrongful acts. Defendant lacks information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 11 of Plaintiffs' Complaint and therefore denies same.
12. Defendant admits that ISPs seek to eliminate unwanted "spam" e-mails. Defendant denies all remaining allegations of Paragraph 12 of Plaintiffs' Complaint.
13. Defendant admits that it maintains the "ROKSO" list. Regarding the remaining allegations of Paragraph 13, Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document.
14. Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document.
15. Denied.
16. Denied.
17. Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document.
18. Denied.
19. Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document. Defendant denies the remaining allegations of Paragraph 19.
20. Denied.
21. Denied.
22. Denied.
23. Denied.
24. Denied.
25. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
26. Denied.
27. Denied.
28. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 28 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
29. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
30. Defendant lacks information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 29 of Plaintiffs' Complaint and therefore denies same.
31. Denied.
32. Denied.
33. Denied.
34. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 34 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
35. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
36. Defendant lacks information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 36 of Plaintiffs' Complaint and therefore denies same.
37. Denied.
38. Denied.
39. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 39 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
40. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
41. Insofar as Paragraph 41 calls for a legal conclusion, Defendant lacks information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 41 of Plaintiffs' Complaint and therefore denies same.
42. Insofar as Paragraph 42 calls for a legal conclusion, Defendant lacks information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 41 of Plaintiffs' Complaint and therefore denies same.
43. Defendant denies that it has made any wrongful or actionable statements whatsoever in relation to Plaintiffs. In relation to the remaining allegations of Paragraph 43, Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document.
44. Denied.
45. Denied.
46. Denied.
47. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 47 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
48. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
49. Defendant denies that it has made any wrongful or actionable statements whatsoever in relation to Plaintiffs. In relation to the remaining allegations of Paragraph 49, Defendant shows that the referenced document (its web site) speaks for itself, and, accordingly, admits those allegations to the extent they are consistent with that document and denies those allegations to the extent they are inconsistent with that document.
50. Denied.
51. Denied.
52. Denied.
53. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 53 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
54. Defendant incorporates by reference all separately enumerated defenses set forth herein, including its responses to Paragraphs 1-24 of Plaintiffs' Complaint.
55. Denied.
56. Denied.
57. Denied.
58. Denied.
Ad Damnum Clause
Responding to the unnumbered ad damnum clause immediately following Paragraph 58 of Plaintiffs' Complaint, Defendant denies that it is liable under any theory for any equitable or financial relief or damages whatsoever to Plaintiffs and deny any additional allegations contained therein.
AFFIRMATIVE DEFENSES
Defendant Spamhaus, for its affirmative defenses, states as follows:
First Defense
This Court lacks personal jurisdiction over Defendant.
Second Defense
Plaintiffs lack standing to assert the claims set forth in Plaintiffs' Complaint and to demand the relief demanded in Plaintiffs' Complaint.
Third Defense
Venue is improper.
Fourth Defense
Plaintiffs' Complaint fails to state a claim upon which relief may be granted.
Fifth Defense
The Plaintiffs' claims fail for insufficient service of process.
Sixth Defense
The process attempted to be served by Plaintiffs is insufficient.
Seventh Defense
Plaintiffs' claims sounding in defamation are barred by the defense of truth.
Eighth Defense
No act, omission, or statement by the Defendant caused or contributed to the injuries or damages for which Plaintiffs seeks recovery.
Ninth Defense
At all relevant times, Defendant acted reasonably, in good faith, with the appropriate skill, prudence, and diligence, and in a commercially reasonable manner.
Tenth Defense
Plaintiffs' Complaint is barred in whole or in part by reason of the equitable defense of unclean hands.
Eleventh Defense
Plaintiffs' Complaint is barred in whole or in part by the equitable doctrine of estoppel.
Twelfth Defense
Plaintiffs' Complaint is barred by the First Amendment to the United States Constitution
Thirteenth Defense
Plaintiffs' claims are time-barred by the applicable statutes of limitation.
Fourteenth Defense
Any allegations of Plaintiffs' Complaint not expressly admitted above are hereby denied.
PRAYER FOR RELIEF
WHEREFORE, the Defendant prays for judgment as follows:
(a) That judgment be entered on Plaintiffs' Complaint in favor of the Defendant and that Plaintiffs take nothing (either in the form of legal or equitable relief) by way of that Complaint;
(b) That the Defendant be awarded its costs of suit;
(c) That the Defendant be awarded its reasonable attorneys' fees; and
(d) That this Court grant such other and further relief as it deems just and proper.
Respectfully submitted this 21st day of July, 2006,
HINSHAW & CULBERTSON LLP
Andrew B. Cripe ARDC No. 6242727
Hinshaw & Culbertson LLP
222 N LaSalle Street
Suite 300
Chicago, IL 60601-1081
Tel: (312) 704-3000
Fax: (312) 704-3001
Of Counsel
(Pro hac vice application to be filed ASAP) Paul F. Wellborn III
Georgia Bar No. 746720
Kelly O. Wallace
Georgia Bar No. 734166
Jamie P. Woodard
Georgia Bar No. 775792
WELLBORN & WALLACE, LLC
1175 Peachtree St. NE
100 Colony Square, Suite 300
Atlanta, Georgia 30309-3450
Phone: (404) 815-9595
Fax:: (404) 815-9957
Counsel for The Spamhaus Project
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 2.5
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Friday, August 11, 2006:
MINUTE entry before Judge Charles P. Kocoras : Status hearing set for 8/23/2006 at 09:30 AM. At the initial hearing, parties to report on the following: 1. Possibility of settlement. 2. If no possibility of settlement exists, the nature and length of discovery necessary to prepare the case for resolution. Plaintiff is directed to advise all other parties of the Court's action herein. Lead counsel for each party is required to attend the initial hearing.Mailed notice(sct, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
PLAINTIFF’S MOTION FOR RULE TO SHOW CAUSE FOR
FAILURE TO COMPLY WITH COURT ORDERED DISCOVERY
Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this court issue a rule to show cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), should not be held in contempt for failure to comply with discovery requests pursuant to the Circuit Court of Cook County in an Order dated July 20, 2006. In support of this motion Plaintiffs state:
1. On July 20, 2006 the Honorable Phillip Bronstein, Judge of the Circuit Court of Cook County, issued a Temporary Restraining Order (TRO) against Defendant. (A true and correct copy of this Order is attached to this Motion as Exhibit A.)
2. As part of the July 20, 2006 TRO, Judge Bronstein Ordered that Plaintiff was given leave to serve expedited discovery against Defendant, specifically request for production of documents and interrogatories. (True and correct copies of the requests for documents and interrogatories are attached as Exhibit B.)
3. On July 21, 2006 Defendant filed an Answer in the Circuit Court and also removed the matter to this Court pursuant to 28 U.S.C. § 1441.
4. On July 24, 2006 Defendant removed the references to Plaintiffs e360Insight LLC and David Linhardt from its website.
5. Defendant’s responses to the discovery served by Plaintiffs were due on or before August 17, 2006.
6. On August 17, 2006 counsel for Defendant, Evan Brown, of Hinshaw & Culbertson, LLP, informed Plaintiffs’ counsel that: 1) He and his firm were withdrawing from representing Defendant because Defendant was releasing the Hinshaw & Culbertson firm and, to his knowledge, Defendant did not intend to obtain new counsel; 2) Defendant was seeking to withdraw its Answer to the Amended Complaint filed in the Circuit Court before Defendant removed this matter to this Court; and 3) Defendant would not be providing responses to the discovery propounded by Plaintiffs.
7. Also on August 17, 2006 Defendant placed e360 on its website in contravention of the Circuit Court’s TRO. (True and correct copies of the Spamhaus webpages containing references to e360 are attached as Exhibit C.)
8. Plaintiffs respectfully request that a Rule to Show Cause be issued against Defendant for its failure to provide responses to the expedited discovery allowed by the Circuit Court. Defendant is flagrantly disregarding the TRO. This fact, combined with the representations from Mr. Brown, that Defendant was releasing its counsel, withdrawing its answer, and was not providing answers to the discovery, and the placement of additional postings on Defendant’s website of references to e360 demonstrates Defendant’s flagrant disregard for the laws of the United States, Defendant’s total disregard for this Court’s authority and Defendant’s bad faith.
9. A motion to compel would be futile given the circumstances created by Defendant’s actions, and should not be a precursor to Plaintiff bringing this Motion.
10. Plaintiffs’ counsel has complied with the provisions of Local Rule 37.2 through a telephone call occurring on August 17, 2006 at approximately 10:30 am occurring between Bartley J. Loethen on behalf of Plaintiffs, and Evan Brown on behalf of Defendant. A good faith attempt was made by Plaintiff’s counsel to resolve the differences stated in this motion, but Defendant’s counsel stated they were instructed to take no further action, thus an accord could not be reached.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Kristen M. Lehner
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
=================================
CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2006 I electronically filed the foregoing document with the Clerk of the United States District Court for the Northern Division of Illinois using the CM/ECF system which will send notification of such filing to the following:
Evan D. Brown [ebrown@hinshawlaw.com]
Andrew B. Cripe [acripe@hinshawlaw.com]
Joseph L. Kish [jkish@synergylawgroup.com]
Kristen M. Lehner [klehner@synergylawgroup.com]
And I hereby certify that I have mailed by the United States Postal Service the document to the following non CM/ECF participants: (no manual recipients).
________/s/ Kristen M. Lehner__________
Kristen M. Lehner
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
PLAINTIFF’S MOTION FOR RULE TO SHOW CAUSE FOR
DEFANDANT’ VIOLATION OF TEMPORARY RESTRAINING ORDER
Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this court issue a rule to show cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), should not be held in contempt for its failure to comply with the July 20, 2006 Temporary Restraining Order (TRO) entered by the Circuit Court of Cook County. In support of this motion Plaintiffs state:
1. On July 20, 2006 the Honorable Phillip Bronstein, Judge of the Circuit Court of Cook County, issued a Temporary Restraining Order (TRO) against Defendant. (A true and correct copy of this Order is attached to this Motion as Exhibit A.)
2. On July 21, 2006 Defendant filed an Answer in the Circuit Court and also removed the matter to this Court pursuant to 28 U.S.C. § 1441.
3. On July 24, 2006 Defendant removed the then existing references to Plaintiffs e360Insight LLC and David Linhardt from its website.
4. On August 17, 2006 counsel for Defendant, Evan Brown, of Hinshaw & Culbertson, LLP, informed Plaintiffs’ counsel that: 1) He and his firm were withdrawing from representing Defendant because Defendant was releasing the Hinshaw & Culbertson firm and, to his knowledge, Defendant did not intend to obtain new counsel; 2) Defendant was seeking to withdraw its Answer to the Amended Complaint filed in the Circuit Court before Defendant removed this matter to this Court; and 3) Defendant would not be providing responses to the discovery propounded by Plaintiffs.
5. Also on August 17, 18 and 19, 2006 Defendant placed new references to Plaintiffs, specifically “E360 Insight”; E360Insight: Ravinia Hosting Company LLC”; “E360 Insight / e360data.com”; “e360Insight:bargaindepot.net / bargainshoppecorp.com”; “Discount Accessories aka e360data.com”; “Northgate Internet Services aka e360data.com”; and “E360 Insight / e360data.com: home base” on the Spamhaus website in contravention of the Circuit Court’s TRO.
6. Plaintiffs respectfully request that a Rule to Show Cause be issued against Defendant for its failure to comply with TRO, specifically by Defendant’s listing of e360 on the following Spamhaus webpages:
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL26394
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45581
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45582
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45583
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45584
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45585
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45586
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45587
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45648
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45649
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45651
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45652
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45685
(True and correct copies of these pages are attached to the accompanying Affidavit of David Linhardt as Exhibit B. See also ¶23 to the Linhardt Affidavit)
7. The TRO requires that defendant remove all listings for plaintiffs from Spamhaus’ website. In addition, any future postings for e360 must be done in compliance with Spamhaus criteria.
8. As evidenced from the accompanying Affidavit Of David Linhardt, Spamhaus could not have complied with its own criteria for listing e360 by virtue of the listings. Because e360 is not engaged in any illegal activity, violating an ISP’s Acceptable Use Policy, Terms Of Service, or other ISP policies or procedures, or has been removed from any - -let alone three ISPs - - there is no legitimate reason for Defendant to list e360Insight or any of the other companies owned by David Linhardt on the Spamhaus website.
9. The webpages referenced in paragraph 23 are false in the following specific ways. SBL45581, SBL45582, SBL45583, SBL 45584, SBL45648 and SBL45649 are all used to send messages to those “opting in” to receive messages from a partner of e360 or one of the other listed entities. All of these listings comply with CAN-SPAM, and none of these listings have ever been associated with Brian Haberstroh or Atriks.
10. SBL45585, SBL45586, and SBL45587 were never used or controlled by Mr. Linhardt or any of his companies and were instead registered in error to Discount Accessories by the ISP. There is no possible way these Internet addresses were blocked due to e360 (or another entity owned by Mr. Linhardt) sending email messages, as Mr. Linhardt has never had the ability to send email from such Internet addresses.
11. SBL45651 is a listing the contains only names that are “double confirmed” such that the user has elected, by clicking a link for a second time to provide an additional affirmative consent to receive the message. Thus, these listings conform to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, they conform to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. None of these listings have ever been associated with Brian Haberstroh or Atriks.
12. SBL45652 is for an IP address that e360 has not owned or controlled since at least July 24, 2006.Thus, the listing referenced could not have arisen as is indicated in the listing of August 18, 2006 as alleged by Defendant
13. SBL45685 references the static IP address for Mr. Linhardt’s personal cable modem located at his house. It is not used for transmitting any messages pertaining to e360 business except internally and no bulk email has ever been sent from this address. Thus, this listings conforms to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, it conforms to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. This IP address has never been associated with Brian Haberstroh or Atriks.
14. SBL26394 conforms to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, it conforms to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website.
15. The webpages referenced in Exhibit C to the Linhardt Affidavit are all false because they connote that Discount Accessories aka e360 is engaged in activity that is illegal, violates ISP’s Acceptable Use Policy, Terms Of Service, and other policies or procedures. Plaintiffs do not engage in any such activity nor do any of the companies that they are affiliated with.
16. The webpages referenced in Exhibit C to the Linhardt Affidavit also connote that Plaintiffs and the companies that they are affiliated with are “spammers”, which they are not. As Mr. Linhardt avers in his accompanying Affidavit: “In my professional experience, there is nothing more damaging to an Internet marketing business than to be labeled a ‘spammer’”. (See Linhardt Affidavit at ¶ 18.)
17. The false listings and negative connotations arising therefore are jeopardizing Plaintiffs’ data lines, their relationship with our ISPs, and their ability to earn revenue from legitimate business activity.
18. Defendant’s new listings of e360 on the Spamhaus website are clearly part of Defendant’s overall disregard for the Laws of the United States and this Court’s enforcement of those laws, which includes withdrawing its present counsel, without replacing counsel, withdrawing its answer and failing to respond to written discovery, ordered by the Circuit Court to be expedited as part of its TRO.
19. Defendant’s failure to respond to the written discovery is the subject of a separate Motion for Rule to Show Cause, which is being noticed to be heard by this Court concurrently with this Motion.
20. By this Motion, Plaintiffs e360 and David Linhardt respectfully request that the Court issue a Rule to Show Cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), should not be held in contempt for its failure to comply with the July 20, 2006 Temporary Restraining Order (TRO) entered by the Circuit Court of Cook County.
21. The Court should also Order Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., to immediately remove any and all references to Discount Accessories aka e360data.com, e360Insight LLC, e360 in any other iteration, David Linhardt and any company owned by David Linhardt.
22. The Court should also sanction Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., in a manner deemed appropriate by the Court for Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.’s failure to abide by the terms of the Circuit Court’s TRO issued on July 20, 2006.
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23. Plaintiffs respectfully submit that all forms of sanctions should be considered, including monetary sanctions, issue sanctions and terminating sanctions, for Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.’s continuing violations and abusive conduct.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Kristen M. Lehner
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
=================================
CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2006 I electronically filed the foregoing document with the Clerk of the United States District Court for the Northern Division of Illinois using the CM/ECF system which will send notification of such filing to the following:
Evan D. Brown [ebrown@hinshawlaw.com]
Andrew B. Cripe [acripe@hinshawlaw.com]
Joseph L. Kish [jkish@synergylawgroup.com]
Kristen M. Lehner [klehner@synergylawgroup.com]
And I hereby certify that I have mailed by the United States Postal Service the document to the following non CM/ECF participants: (no manual recipients).
________/s/ Kristen M. Lehner__________
Kristen M. Lehner
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge Charles P. Kocoras Sitting Judge if Other
than Assigned Judge
CASE NUMBER 06 C 3958 DATE 8/23/2006
CASE
TITLE
e360 Insight, LLC et al vs. The Spamhaus Project
DOCKET ENTRY TEXT
Status and motion hearing held on 8/23/2006. Defendant’s oral motion for leave to withdraw its answer to the complaint is granted. Defendant’s motion [13] to withdraw the appearance of Evan Brown and Andrew Cripe as counsel for defendant is granted. Plaintiff’s oral motion entry of default against defendant is granted. As discussed in open court, the Court converts the current Temporary Restraining Order to a Preliminary Injunction.
Docketing to mail notices.
00:10
Courtroom Deputy
Initials:
SCT
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT AND ORDER FOR PERMANENT INJUNCTION
Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this court enter a judgment and issue a permanent injunction against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), resulting from Defendant’s default on August 23, 2006. In support of this motion, Plaintiffs state:
1. On July 20, 2006 the Honorable Phillip Bronstein, Judge of the Circuit Court of Cook County, issued a Temporary Restraining Order against Defendant. Judge Bronstein also ordered that discovery be expedited, and Plaintiffs served written discovery on Defendant on this same day.
2. On July 21, 2006 Defendant filed an Answer in the Circuit Court and also removed the matter to this Court pursuant to 28 U.S.C. § 1441.
3. On July 24, 2006 Defendant removed the then existing references to Plaintiffs e360Insight LLC and David Linhardt from its website.
4. On August 17, 2006 counsel for Defendant, Evan Brown, of Hinshaw & Culbertson, LLP, informed Plaintiffs’ counsel that: 1) He and his firm were withdrawing from representing Defendant because Defendant was releasing the Hinshaw & Culbertson firm and, to his knowledge, Defendant did not intend to obtain new counsel; 2) Defendant was seeking to withdraw its Answer to the Amended Complaint filed in the Circuit Court before Defendant removed this matter to this Court; and 3) Defendant would not be providing responses to the discovery propounded by Plaintiffs.
5. On August 17, 18 and 19, 2006 Defendant placed new references to Plaintiffs, specifically “E360 Insight”; E360Insight: Ravinia Hosting Company LLC”; “E360 Insight / e360data.com”; “e360Insight:bargaindepot.net / bargainshoppecorp.com”; “Discount Accessories aka e360data.com”; “Northgate Internet Services aka e360data.com”; and “E360 Insight / e360data.com: home base” on the Spamhaus website in contravention of the Circuit Court’s TRO by Defendant’s listing of e360 on the following Spamhaus webpages:
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL26394
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45581
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45582
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45583
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45584
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45585
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45586
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45587
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45648
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45649
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45651
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45652
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45685.
6. On August 23, 2006 this matter was before the Court for status and for presentment of Plaintiffs’ Motions for Rules to Show Cause pertaining to Defendant’s violation of the Temporary Restraining Order, and Defendant’s failure to respond to Court Ordered discovery. Counsel for both parties appeared at this hearing.
7. At this hearing Defendant’s oral motion for leave to withdraw its answer to the complaint was granted. Defendant’s motion [docket entry Document 13] to withdraw the appearance of Evan Brown and Andrew Cripe as counsel for Defendant was also granted. Plaintiffs’ oral motion for entry of default against Defendant was also granted. Finally, the Court converted the then current Temporary Restraining Order to a Preliminary Injunction. (See docket entry Document 19.)
8. Plaintiff respectfully requests that judgment pursuant to Federal Rule of Civil Procedure 55 be entered against Defendant in the amount of $26,715,000.00 in damages and $40,695.55 in court costs and fees. The damages amount is supported by the facts contained in the accompanying affidavit of David Linhardt and also includes Plaintiffs’ request for punitive damages, which Plaintiffs respectfully submit should be an amount sufficient to punish Defendant for its past intentional and malicious conduct and deter Defendant from engaging in the same conduct in the future, $15,000,000.00. The fees and costs are supported by the facts contained in the accompanying affidavit of Bartly J. Loethen, counsel for plaintiffs.
9. Plaintiffs also respectfully request that the Court enter a Permanent Injunction requiring the following:
a. Defendant Spamhaus shall not ever take any action to cause email sent by Plaintiff e360 Insight, Plaintiff David Linhardt, or any affiliates, subsidiaries, or related companies owned or controlled by e360 Insight or Linhardt (collectively the “Plaintiff Parties”) to be blocked, delayed, altered, or interrupted in any way (including, without limitation, by listing Plaintiff Parties on Defendant’s website on the ROKSO list, within an SBL listing on Defendant’s website, using blacklisting technology in concert or conjunction with others, or taking any other action to cause any such interference) unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiff Parties have violated CAN-SPAM or other relevant provisions of US law. Such clear and convincing evidence may only be shown after providing Plaintiff Parties an opportunity to review any alleged offending email, including a review of the email header and content (in its entirety), and providing Plaintiff Parties an opportunity to show the offending email was not sent in violation of US law to the satisfaction of a reasonable person. If such clear and convincing evidence is shown, then (and only then) may Spamhaus list the IP address (and only the IP address) from which the offending email was sent on its website. Spamhaus shall not list entire networks or ranges of IP addresses owned or operated by Plaintiffs simply because they are registered in the Plaintiff’s name or physical address without meeting the clear and convincing standard for the ip address in question.
b. Defendant Spamhaus shall also, within 5 business days of the date hereof, post on its website at both the main home page and at the ROKSO jump page, a message of 1 inch by 1 inch, the text of which is to be reasonably approved by Plaintiffs, and which, generally, indicates Plaintiffs were erroneously listed on the website as spammers, and that Plaintiffs are not spammers. Defendant Spamhaus shall leave such message on its site for a period of six months.
c. Defendant Spamhaus shall not contact (and shall not cause others to so contact) any customers or suppliers of the Plaintiff Parties in efforts to cause said customers or suppliers to cease doing business with Plaintiff Parties, nor shall Spamhaus contact (or cause others to so contact) customers or suppliers of Plaintiff Parties and allege or assert that Plaintiff Parties are “Internet Spammers” or other like term.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Kristen M. Lehner
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
=================================
CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2006 I electronically filed the foregoing document with the Clerk of the United States District Court for the Northern Division of Illinois using the CM/ECF system which will send notification of such filing to the following:
Evan D. Brown [ebrown@hinshawlaw.com]
Andrew B. Cripe [acripe@hinshawlaw.com]
Joseph L. Kish [jkish@synergylawgroup.com]
Kristen M. Lehner [klehner@synergylawgroup.com]
And I hereby certify that I have sent by Federal Express via International Priority the document to the following non CM/ECF participants: The Spamhaus Project, aka The Spamhaus Project Ltd. .
And I hereby certify that I have caused to be hand delivered the document to the following non CM/ECF participants: The Spamhaus Project, aka The Spamhaus Project Ltd.
________/s/ Kristen M. Lehner__________
Kristen M. Lehner
This is David Linhardt's affidavit in support of e360insight LLC's Motion for Default Judgment.
===============================
STATE OF ILLINOIS
COUNTY OF COOK
AFFIDAVIT OF DAVID LINHARDT I, David Linhardt, under oath states as follows:
1. I am the President of e360Insight, LLC (e360). I am 36 years old and competent to testify. I have personal knowledge of the matters stated in this affidavit and can and will truthfully testify as to those matters.
2. e360 is an email based marketing company whose business practices have, at all times, complied with federal and state requirements and standards pertaining to the sending of commercial email, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 (CAN-SPAM).
3. e360 uses Internet Service Providers (ISPs) to facilitate its marketing efforts on behalf of its business partners. At all times relevant to this case, e360 has complied with all Accepted Use Policies and Terms Of Service agreements stated by the ISPs.
4. e360 does not engage in "spamming". The internet marketing in which e360 engages employs a variety of permission processes that e360 controls, and that its marketing partners use, to obtain permission and consent from, and provide notice to, the consumers that receive the email messages.
5. Before December 2003, e360 had never been removed from any ISP for violating its Authorized Use Policy, Terms of Service, or any other policies and procedures.
6. Spamhaus acts as a blacklisting agent for ISPs, who purchase Spamhaus' blocking technology in order to police their Accepted Use Policies and Terms of Use Agreements for compliance. ISPs do this so they can assure their customers that they will not be inundated by unwanted email solicitations and messages.
7. One of the automated lists that Spamhaus generates is the ROKSO list.
8. Spamhaus notes on its website: "ROKSO is a "3 strikes" register. We don't list inadvertent spammers or newbie marketing departments spamming 'by mistake'. To get to 3 strikes (i.e.: 3 terminations for spam offences such as emailing spam, hosting spammers, selling spamware) requires a very determined spam outfit. Being thrown off an ISP takes a lot of doing, nobody is thrown off an ISP without having been given ample warnings and chances to stop violating the ISPs Terms of Service. Being thrown off ISPs *twice * for the spam offences means the spmnmer is determined, knows the consequences, and has actually signed up to a new ISP with the specific intention of breaking the ISPs Terms of Service. Being thrown off *three* ISPs for spam offences means the spmnmer is a committed hard-line spam operation which regards ISPs as simply throwaway resources." Id.
9. On its website, Spamhaus promotes the efficacy of the ROSKO list by noting that it includes only serious offenders: "ROKSO is a register of known hard-line professional spam operations (bulk emailers and "spam gangs') that have been thrown off Internet Service Providers 3 times or more for spamming or spam-related offenses. As the ROKSO database collates information and evidence on each gang, it's an invaluable tool for ISP Abuse Desks to vet prospective customers. For the legal departments of ISPs who are looking for the information linking the spam they get to the spammers sending it. Global Law Enforcement Agencies also use the data to help track down and bring to justice spammers who are violating any number of laws when spamming." See http://www.spamhaus.org/faq/answers.lasso?section=ROKSO%20FAQ. Thus, by placing e360 and Linhardt on the ROKSO, even erroneously, Spamhaus can justify its heavy-handed tactics to third parties by telling them that they are dealing with a "hard-line" professional spam operation. As Spamhaus notes: "No ISP with any sense will allow ROKSO spammers on their network." See http://www.spamhaus.org/rokso/about.html.
10. In December 2003, Spamhaus listed me and e360 on the ROKSO list.
11. Neither I nor e360 had ever been terminated from, or "thrown off of' any ISPs for violating any Acceptable Use Policy, Terms Of Service, or any other policy or procedure prior to the ROKSO listing.
12. I immediately brought Spamhaus' error to its attention. I made numerous additional attempts to have my and e360's names removed from the ROKSO list by communicating the problem directly to Spamhaus. Spamhaus refused and continued to keep me and e360 on the ROKSO list.
13. In addition to placing me and e360 on the ROKSO list, and refusing to remove me and e360 from it, Spamhaus continued to directly cause damage to e360 and me by coercing and intimidating e360's business partners by conveying that continued involvement with e360 and me by such parties would have dire consequences for the partner's ability to continue engaging in e-commerce on the internet.
14. Spamhaus facilitates these threats by labeling the partner a spammer solely due to its association with e360 and me. Spamhaus then indiscriminately blocks all of the partner's e-mail from being sent regardless of its content. This action effectively puts partner out of business and prevents their customers from receiving important and legitimate email from the partner. Only when an e360 partner would terminate its agreement(s) with e360 and me would Spamhaus release the block.
15. Based on the circumstances stated above, e360 and I obtained a Temporary Restraining Order on July 20, 2006.
16. Defendant removed the then occurring references to e360 and me from the Spamhaus website on July 24, 2006.
17. Defendant subsequently removed the litigation to the Northern District of Illinois and answered the complaint.
18. On August 17, 18 and 19, 2006 Defendant placed new references to Plaintiffs, specifically "E360 Insight"; ` E360Insight: Ravinia Hosting Company LLC"; "E360Insight/e360data.com"; "e360lnsight:bargaindepot.net/bargainshoppecorp.com' ; "Discount Accessories aka e360data.com"; "Northgate Internet Services aka e360data.com"; and "E360 Insight/e360data.com: home base" on the Spamhaus website. These references are located on the Spamhaus website at the following internet addresses:
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL26394
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45581
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45582
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45583
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45584
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45585
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45586
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45587
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45648
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45649
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45651
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45652
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45685
(True and correct copies of these pages are attached to this affidavit as Exhibit C.)
19. Discount Accessories, a sister company of e360 and a company owned by me was also listed as new Spamhaus blacklist references, which listings include references to me personally.
20. Ravinia Hosting Company, LLC a sister company of e360 and a company owned by me was also listed as new Spamhaus blacklist references, which listings include references to me personally.
21. Bargaindepot.net/Bargainshoppecorp.com, a division of e360 was also listed as new Spamhaus blacklist references, which listings include references to me personally.
22. The webpages referenced in paragraph 23 are all false because they connote that e360 and I are engaged in activity that is illegal, violates ISP's Acceptable Use Policy, Terms Of Service, and other policies or procedures. e360, Discount Accessories, and I do not engage in any such activity.
23. The webpages referenced in paragraph 18 connote that e360 and I are "Spammers", which we are not.
24. The webpages referenced in paragraph 18 are also false in the following specific ways:
SBL45581, SBL45582, SBL45583, SBL 45584, SBL45648 and SBL45649 are all used to send messages to those "opting-in" to receive messages from a partner of e360 or one of the other listed entities. All of these listings comply with CAN-SPAM, none are unsolicited, and none of these listings have ever been associated with Brian Haberstroh or Atriks.
25. The webpages referenced in paragraph 18 are also false in the following specific ways:
The ISP sending domains listed in SBL 45585, SBL 45586, and SBL 45587 were never used or controlled by me and were instead registered in error to Discount Accessories by the ISP. There is no possible way these Internet addresses were blocked due to e360 (or another listed entity owned by me) sending email messages, as I have never had the ability to send email from such Internet addresses.
26. The webpages referenced in paragraph 18 are also false in the following specific ways:
SBL45651 is a listing that only has names which are "double confirmed," such that the user has elected, by clicking a link for a second time to provide an additional affirmative consent, to receive the message. Thus, these listings conform to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, they conform to Spamhaus' own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. None of these listings have ever been associated with Brian Haberstroh or Atriks.
27. The webpages referenced in paragraph 18 are also false in the following specific ways:
SBL45652 is for an IP address that e360 has not owned or controlled since at least July 24, 2006. Thus the listing referenced could not have arisen as is indicated in the listing of August 18, 2006, as is alleged by Defendant.
28. The webpages referenced in paragraph 18 are also false in the following specific ways:
SBL45685 references the static IP address for my personal cable modem located at my house. It is not used for transmitting any messages pertaining to e360 business except internally and no bulk email has ever been sent from this address. Thus, this listings conforms to not only CAN SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, it conforms to Spamhaus' own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. This IP address has never been associated with Brian Haberstroh or Atriks.
29. The webpages referenced in paragraph 18 are also false in the following specific ways:
SBL26394 conforms to CAN-SPAM as well as all ISP Acceptable Use policy, Terms Of Service and other policies and procedures.
30. The false listings and negative connotations arising therein have caused our sending of commercial email messages to cease. Thus we are unable to realize revenue from our business. Further, such listings are jeopardizing our data lines, our relationship with our ISPs, and our ability to earn revenue from legitimate business activity.
31. e360 and I have suffered disastrous consequences as a direct result of being placed on the Spamhaus lists and being subjected to Spamhaus' tactics. e360 generates revenue based on the volume of emails it sends to people on its client lists who have opted-in (that is, requested or agreed to receive the emails). e360 cannot generate this revenue when Spamhaus blocks e360 from sending the messages.
32. e360 and I also have had active and pending contracts cancelled as a result of Spamhaus' conduct. Contracts that have been cancelled include SmartBargains, Vendare Media, and OptinBig. I have calculated the loss of revenue from having these active and pending contracts cancelled as a result of Spamhaus' conduct to be $2,465,000.00.
33. e360 and I also have lost numerous opportunities to obtain future work as a result of Spamhaus' conduct. Lost business opportunities include Net Blue, Cogent, Habeas, Yipes. I have determined that the lost value of the business as a result of the inability to monetize the revenue potential from the company and in the lost enterprise value to be at least $9,250,000.
34. The calculation of lost enterprise value results from the following consideration:
businesses operating proprietary opt-in email marketing lists are valued at twice the annual revenue of the business. Similarly, most email marketing companies with opt-in lists are valued at somewhere between $0.25 and $0.50 per active unique opt-in email address. For most of our competition, these valuations are roughly equivalent. Due to our trouble in sending from our list due to the Spamhaus listings, our revenue is roughly $1,000,000 per year, thus the valuation based upon revenue is $2,000,000; despite the fact that we have 45 million unique opt-in email addresses, which would equate to a valuation in a range of $11,250,000 to $22,500,000, thus a reduced valuation due to the inability to monetize our opt-in list of at least $9,250,000.
35. Over and above financial losses stated above, e360 and my reputation in the business community has suffered significantly and continues to suffer, all as a direct consequence of Spamhaus' wrongful acts. In my professional experience, there is nothing more damaging to an Internet marketing business than to be labeled a "spammer". I believe my and e360's reputation in the Internet marketing industry has been damaged in an amount equal to at least $9,250,000, as is detailed above.
36. The fact that e360 and Linhardt remain on the ROKSO list, and remain on the SBL list, make it increasingly difficult and, in some cases, impossible to purchase bandwidth from ISPs, without which e360 simply ceases to be able to operate.
37. I further believe that e360 and I should be awarded punitive damages as well, in the amount of $15,000,000.00 given Defendant's intentional conduct, disregard for my and e360's rights and the laws of the United States. Defendant knew as early as December of 2003 that they had wrongfully listed e360 and me. Rather than taking any corrective measures, Defendant not only continued posting the incorrect listings of e360 and me, it posted additional listings of e360 and me, none of which were posted in compliance with Defendant's own guidelines, United States laws or any foreign law.
38. After the filing of the litigation in this matter and after the entry of the temporary restraining order against Spamhaus, Defendant removed the improper listings temporarily, but rather than provide discovery materials and comply with the rule of United States law, Spamhaus chose to enter new listings, all of which (as detailed above) are false in complete disregard for the orders of United States courts.
39. Defendant called e360 and me "spammers" even though Defendant knew that e360 and I complied with all recognized laws as well as the policies and procedures of the ISPs that e360 and I were involved with and were never accused of violating any Acceptable Use Policy, Terms Of Service, or any other policy or procedure prior to the wrongful ROKSO listing.
40. In addition to the damages sought above, I seek a permanent injunction in order to stop Defendant's wrongful, intentional and malicious conduct from continuing in the future. Defendant has previously disregarded the Temporary Restraining Order so I fear that it might do so in the future.
41. If Defendant does not obey the orders for injunctive relief, the only way to force them to cease the offending action would be to cause a registry of Internet domain names to require the domain name of Defendant (www.spamhaus.org) to be turned over to a third party to ensure compliance with the court's order.
Futher Affiant Sayeth Naught.
________________________________
David Linhardt
Signed and Sworn to before me on
this 30th day of August 2006
________________________________
Notary Public
My commission expires on 2/16/09.
OFFICIAL SEAL
KATHLEEN M SMITH
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES: 2/16/09
STATE OF ILLINOIS
COUNTY OF COOK
AFFIDAVIT OF BARTLY J. LOETHEN
I, Bartly J. Loethen, under oath states as follows:
1. I am a partner with the law firm of Synergy Law Group, L.L.C. which serves as counsel to Plaintiffs e3601nsight, LLC and David Linhardt in this case.
2. Attached to this affidavit are true and correct copies of the invoices reflecting the work performed by Synergy Law Group, L.L.C. through the month of July, 2006 pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
3. In addition to the bills I and the attorneys referenced below have performed work on this matter in the month of August, 2006, for which bills have not yet been generated. Based on my review of written time sheets, I estimate that Plaintiffs will incur $11,602.50 in attorneys fees and costs for the month of August.
4. My standard billing rate is $275.00 per hour. I devoted 9.3 hours to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
5. I was assisted in this case by Joseph L. Kish, a Litigation Partner at Synergy Law Group, L.L.C. Mr. Kish's standard billing rate is $275.00. He devoted 69.9 hours to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
6. I was also assisted in this case by an Associate Attorney at Synergy Law Group, L.L.C. Kristen Lehner. Ms. Lehner's standard billing rate is $175.00 per hour. She devoted 21.2 hours to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
7. I was also assisted in this case by a Research Clerk at Synergy Law Group, L.L.C. Claire Weinstein. Ms. Weinstein's standard billing rate is $85.00 per hour. She devoted 8.7 hours to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
8. I was also assisted in this case by a Paralegal at Synergy Law Group, L.L.C. Curtis Hill. Ms. Hill's standard billing rate is $75.00 per hour. He devoted 11.9 hours to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.
9. In addition, the invoices reflect that reasonable necessary costs incurred by Synergy Law Group LLC on behalf of Plaintiffs e360lnsight, LLC and David Linhardt total $1971.05. These costs include filing and process service fees, transportation for court appearances and mailings to the United Kingdom, where Defendant The Spamhaus Project, aka The Spamhaus Project Ltd. is located.
10. The total attorneys fees, costs and expenses incurred by Synergy Law Group, L.L.C. related to the matters pertaining to obtaining a Temporary Restraining Order and Preliminary Injunction, and obtaining and enforcing the judgment against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd. in this case equals $40,695.55.
Further Affiant Sayeth Naught.
Bartly J. Loethen
Signed and Sworn to before me on
30th day of August 2006
(Seal)
My commission expires 2/16/09
OFFICIAL SEAL
KATHLEEN M SMITH
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES:2/16/09
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
E360INSIGHT, LLC,
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
Plaintiffs,
v.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
PROPOSED ORDER
This matter coming before the Court upon Plaintiffs’ motion for judgment on the default of Defendant, all Parties given due notice, and the Court being fully advised in the premises; THIS COURT FINDS THAT:
As a result of the default of Defendant, and upon showing of harm to Plaintiffs, Plaintiffs are entitled to relief sought in their complaint for monetary and equitable relief and for costs incident to the case, specifically
1. Defendant has wrongfully placed Plaintiffs on its blacklist of companies who have sent “spam” email.
2. Defendant has tortiously interfered with Plaintiffs contracts with its suppliers and customers.
3. Defendant has tortiously interfered with Plaintiffs prospective economic advantage by blocking email Plaintiffs have a right to send.
4. Defendant has defamed Plaintiffs by publishing false statements about Plaintiffs on its website.
5. Plaintiff is entitled to punitive damages as a result of the reckless and intentional actions of Defendant.
IT IS ORDERED:
For all of the foregoing reasons, the Court grants Plaintiffs e360Insight, LLC and David Linhardt’s Motion For Default Judgment And Order For Permanent Injunction as follows:
A. Defendant Spamhaus shall not ever take any action to cause email sent by Plaintiff e360 Insight, Plaintiff David Linhardt, or any affiliates, subsidiaries, or related companies owned or controlled by e360 Insight or Linhardt (collectively the “Plaintiff Parties”) to be blocked, delayed, altered, or interrupted in any way (including, without limitation, by listing Plaintiff Parties on Defendant’s website on the ROKSO list, within an SBL listing on Defendant’s website, using blacklisting technology in concert or conjunction with others, or taking any other action to cause any such interference) unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiff Parties have violated CAN-SPAM or other relevant provisions of US law. Such clear and convincing evidence may only be shown after providing Plaintiff Parties an opportunity to review any alleged offending email, including a review of the email header and content (in its entirety), and providing Plaintiff Parties an opportunity to show the offending email was not sent in violation of US law to the satisfaction of a reasonable person. If such clear and convincing evidence is shown, then (and only then) may Spamhaus list the Internet Provider (IP) address, and only the IP address, from which the offending email was sent on its website. Spamhaus shall not list entire networks or ranges of IP addresses owned or operated by Plaintiffs simply because they are registered in the Plaintiff’s name or physical address without meeting the clear and convincing standard for the IP address in question.
B. Defendant Spamhaus shall also, within 5 business days of the date hereof, post on its website at both the main home page and at the ROKSO jump page, a message of 1 inch by 1 inch, the text of which is to be reasonably approved by Plaintiffs, and which, generally, indicates Plaintiffs were erroneously listed on the website as spammers, and that Plaintiffs are not spammers. Defendant Spamhaus shall leave such message on its site for a period of six months.
C. Defendant Spamhaus shall not contact (and shall not cause others to so contact) any customers or suppliers of the Plaintiff Parties in efforts to cause said customers or suppliers to cease doing business with Plaintiff Parties, nor shall Spamhaus contact (or cause others to so contact) customers or suppliers of Plaintiff Parties and allege or assert that Plaintiff Parties are “Internet Spammers” or other like term.
D. Defendant is ordered to pay Plaintiffs Two Million Four Hundred Sixty Five Thousand Dollars ($2,465,000) for lost business as a result of the tortious interference with Plaintiffs’ contracts.
E. Defendant is ordered to pay Plaintiffs and additional Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000) for lost revenue resulting from the interference with Plaintiffs’ prospective economic advantage due to Defendant’s blocking revenue producing email messages to consumers seeking those messages, and for Defendant’s defamation of Plaintiffs.
F. Defendant is ordered to pay Plaintiffs Fifteen Million Dollars ($15,000,000) as punitive damages as a result of Defendant’s intentional and reckless actions toward Plaintiffs.
G. Defendant is ordered to pay Plaintiffs Forty Thousand Six Hundred Ninety Five Dollars and Fifty Five Cents ($40,695.55) for legal fees and other costs incident to this action.
ENTERED: September ___, 2006
_____________________________________
CHARLES P. KOCORAS
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 2.5
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, September 12, 2006:
MINUTE entry before Judge Charles P. Kocoras :Motion hearing held on 9/12/2006. Plaintiff's motion [20] for default judgment and order for permanent injunction is taken under advisement. Mailed notice(sct, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
United States District Court
Northern District of Illinois
Eastern Division
e360 Insight, LLC et al JUDGMENT IN A CIVIL CASE
v. Case Number: 06 C 3958
The Spamhaus Project
IT IS HEREBY ORDERED AND ADJUDGED that default judgment is entered in favor of the plaintiffs and against defendant for compensatory damages totaling $11,715,000.00, and $1,971.05 in litigation costs.
The Court enters a permanent injunction as follows:
1. Spamhaus shall not take any action to cause email sent by Plaintiffs or their affiliates, subsidiaries, or related companies owned or controlled by Plaintiffs to be blocked, delayed, altered, or interrupted in any way (including, without limitation, by listing Plaintiffs on Spamhaus’s ROKSO list, within an SBL listing on Spamhaus’s website, using blacklisting technology in concert or conjunction with others, or taking any other action to cause any such interference) unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiffs have violated relevant United States law. Such clear and convincing evidence may only be shown after proving Plaintiffs with an opportunity to review any alleged offending email, including a review of the email header and content (in its entirety), and providing Plaintiffs with an opportunity to show the offending email was not sent in violation of United States law to the satisfaction of a reasonable person. If such clear and convincing evidence is shown, then and only then may Spamhaus list the Internet Protocol (IP) address, and only the IP address, from which the offending email was sent on its website.
2. Spamhaus shall not list entire networks or ranges of IP addresses owned or operated by Plaintiffs simply because they are registered in the Plaintiffs’ names or physical addresses without meeting the clear and convincing standard for the IP address in question.
3. Spamhaus shall post, within five business days of the date of this order, on its website at both the main home page and at the ROKSO jump page, a message of 1 inch by 1 inch, the text of which is to be reasonably approved by Plaintiffs, and which, generally, indicates that Plaintiffs were erroneously listed on the website as spammers and that Plaintiffs are not spammers.
Defendant Spamhaus shall leave such message on its site for a period of six months.
4. Spamhaus shall not contact or cause others to contact any customers or suppliers of the Plaintiffs in efforts to cause said customers or suppliers to cease doing business with Plaintiffs.
5. Spamhaus shall not contact or cause others to contact any customers or suppliers of Plaintiffs and allege or assert that Plaintiffs are spammers or other like term.
Michael W. Dobbins, Clerk of Court
Date: September 13, 2006 ________________________________
/s/ Stephen C. Tokoph, Deputy Clerk
This is the Notice of Appeal to the 7th Circuit Court of Appeals in e360insight, LLC. v. The Spamhaus Project, Ltd..
General Docket
US Court of Appeals for the Seventh Circuit
Court of Appeals Docket #: 06-3779 Filed: 10/16/06
Nsuit: 3380 Oth Per Property Damage-FedQue
e360 Insight, et al v. The Spamhaus Project
Appeal from: United States District Court
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Lower court information:
District: 0752-1 : 06 C 3958
Ordering Judge: Charles P. Kocoras, Judge
Court Reporter: Joene Hanhardt, Court Reporter
Date Filed: 7/21/06
Date order/judgment: 9/13/06
Date NOA filed: 10/13/06
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Fee status: paid
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Prior cases:
None
Current cases:
Lead Member Start End
Consolidated:
06- 3779 06- 4169 11/30/06
Docket as of May 17, 2007 11:01 pm Page 1
06-3779 e360 Insight, et al v. The Spamhaus Project
E360 INSIGHT, an Illinois Bartly J. Loethen
Limited Liability Company 314/454-0015
Plaintiff - Appellee Sixth Floor
[COR LD NTC ret]
SYNERGY LAW GROUP
730 W. Randolph Street
Chicago, IL 60661
DAVID LINHARDT Bartly J. Loethen
Plaintiff - Appellee (See above)
[COR LD NTC ret]
v.
THE SPAMHAUS PROJECT, a Matthew M. Neumeier
Company Limited by Guarantee FAX 312/264-0361
and Organized Under the Laws 312/846-5640
of England also known as THE Suite 3400
SPAMHAUS PROJECT, LIMITED [COR LD NTC ret]
Defendant - Appellant HOWREY, SIMON, ARNOLD & WHITE
321 N. Clark Street
Chicago, IL 60611-4714
USA
Docket as of May 17, 2007 11:01 pm Page 2
06-3779 e360 Insight, et al v. The Spamhaus Project
e360 INSIGHT, an Illinois Limited
Liability Company and DAVID LINHARDT,
Plaintiffs - Appellees
v.
THE SPAMHAUS PROJECT, a Company Limited by Guarantee and
Organized Under the Laws of England also known as THE
SPAMHAUS PROJECT, LIMITED,
Defendant - Appellant
Docket as of May 17, 2007 11:01 pm Page 3
06-3779 e360 Insight, et al v. The Spamhaus Project
10/16/06 Private civil case docketed. [06-3779] [2036150-1]
Transcript information sheet due 10/26/06. Appellant's
brief due 11/27/06 for The Spamhaus Project. Docketing
Statement due 10/20/06. (amyd) [06-3779]
10/16/06 [06-3779] ROA from No. Dist. of Il., E. Div. due 11/3/06.
(amyd) [06-3779]
10/17/06 Filed Seventh Circuit Transcript Information Sheet by
Matthew M. Neumeier for Appellant The Spamhaus Project.
[06-3779] [2036150-1] (kell) [06-3779]
10/20/06 Filed Appellant The Spamhaus Project docketing statement.
[06-3779] [2037931-1] (josh) [06-3779]
10/23/06 Filed Seventh Circuit Transcript Information Sheet by
Carrie A. Fino for Appellant The Spamhaus Project.
[06-3779] [2036150-1] (juli) [06-3779]
10/23/06 ORDER: IT IS ORDERED that defendant-appellant file a
supplemental statement of jurisdiction listing the
citizenship of all members of plaintiff e360 Insight, LLC.
The statement is due on or before October 30, 2006.
[2036150-1] DW [06-3779] (See order for further details)
Statement due 10/30/06 for The Spamhaus Project. (juli)
[06-3779]
10/31/06 Disclosure Statements filed by Matthew M. Neumeier (lead
counsel), Carrie A. Fino, Stephen M. Geissler and Craig C.
Martin for Appellant The Spamhaus Project. [06-3779]
[2036150-1] (juli) [06-3779]
11/2/06 ORDER: The court, on its own motion, orders attorney
Matthew M. Neumeier to show cause for his failure to
respond to the court s order of October 23, 2006. Attorney
Neumeier shall file his response on or before November 9,
2006. Counsel is advised that failure to respond may result
in monetary or disciplinary sanctions. [2036150-1] DW
[06-3779] Response to showcause due 11/9/06 for Matthew M.
Neumeier. (juli) [06-3779]
11/3/06 ORDER: Pursuant to Circuit Rule 33, briefing will proceed
as follows: [2036150-1] SCO [06-3779] Appellant's brief due
12/22/06 for The Spamhaus Project. Appellee's brief due
1/22/07 for David Linhardt, for e360 Insight. Appellant's
reply brief due 2/5/07 for The Spamhaus Project. (juli)
[06-3779]
11/6/06 Filed response to order to showcause by Matthew M. Neumeier
for Appellant The Spamhaus Project. [06-3779] [2043342-1]
(hudk) [06-3779]
11/6/06 Filed Appellant The Spamhaus Project supplemental statement
of jurisdiction. [06-3779] [2036150-1] (amyd)
Docket as of May 17, 2007 11:01 pm Page 4
06-3779 e360 Insight, et al v. The Spamhaus Project
[06-3779]
11/9/06 ORDER re: RESPONSE TO SHOW CAUSE ORDER DATED NOVEMBER 2,
2006 filed by defendant-appellant on November 6, 2006, IT
IS ORDERED that the Rule to Show Cause is DISCHARGED.
[2043342-1] DW [06-3779] (juli) [06-3779]
11/15/06 Original record on appeal filed. Contents of record: 1 vol.
pleadings. [06-3779] [2045920-1] (bria) [06-3779]
11/28/06 Supplemental record on appeal filed. Contents of record: 4
vol. transcripts. [06-3779] [2049139-1] (dave)
[06-3779]
12/4/06 Filed motion by Appellant The Spamhaus Project in 06-3779,
Appellant The Spamhaus Project in 06-4169 to consolidate
cases. [2051670-1] [06-3779, 06-4169] (juli)
[06-3779 06-4169]
12/5/06 ORDER: The court orders these appeals CONSOLIDATED for
purposes of briefing and disposition. The briefing schedule
is as follows: [2051160-1] DW [06-3779, 06-4169]
Appellant's brief due 1/9/07 for The Spamhaus Project in
06-3779, for The Spamhaus Project in 06-4169. Appellee's
brief due 2/8/07 for David Linhardt in 06-3779, for e360
Insight in 06-3779, for David Linhardt in 06-4169, for e360
Insight in 06-4169. Appellant's reply brief due 2/22/07 for
The Spamhaus Project in 06-3779, for The Spamhaus Project
in 06-4169. (juli) [06-3779 06-4169]
12/5/06 ORDER: IT IS ORDERED that appellant file a supplemental
statement of jurisdiction indicating the state in which
Maverick Direct Marketing Solutions, Inc. has its principal
place of business. The statement is due on or before
December 12, 2006. (See order for further detail.) DW
[06-4169] [2036150-1] Appellant's statement or declaration
shall be filed on or before 12/12/06 for The Spamhaus
Project. (juli) [06-4169]
12/6/06 ORDER issued DENYING motion to consolidate cases as moot.
These appeals were consolidated on December 5, 2006.
[2051670-1] DW [06-3779, 06-4169] (juli) [06-3779 06-4169]
12/12/06 ORDER: Pursuant to Circuit Rule 33, the briefing schedule
is modified as follows: [2051160-1] SCO [06-3779, 06-4169]
Appellant's brief due 1/23/07 for The Spamhaus Project in
06-3779, for The Spamhaus Project in 06-4169. Appellee's
brief due 2/22/07 for David Linhardt in 06-3779, for e360
Insight in 06-3779, for David Linhardt in 06-4169, for e360
Insight in 06-4169. Appellant's reply brief due 3/8/07 for
The Spamhaus Project in 06-3779, for The Spamhaus Project
in 06-4169. (juli) [06-3779 06-4169]
Docket as of May 17, 2007 11:01 pm Page 5
06-3779 e360 Insight, et al v. The Spamhaus Project
12/12/06 Filed Seventh Circuit Transcript Information Sheet by
Matthew M. Neumeier for Appellant The Spamhaus Project in
06-4169. [06-4169] [2036150-1] (juli) [06-4169]
12/12/06 Supplemental Statement of Jurisdiction filed by Appellant
The Spamhaus Project in 06-4169. [06-4169] [2055197-1]
(juli) [06-4169]
12/13/06 Disclosure Statement filed by Bartly J. Loethen (as lead
counsel) and Joseph L. Kish for Appellee David Linhardt,
Appellee e360 Insight in 06-3779. [06-3779] [2051160-1]
(juli) [06-3779]
12/13/06 Disclosure Statement filed by Stephen M. Geissler for
Appellant The Spamhaus Project in 06-4169. [06-4169]
[2036150-1] (juli) [06-4169]
1/8/07 ORDER: Pursuant to Circuit Rule 33, briefing will proceed
as follows: [2051160-1] SCO [06-3779, 06-4169] Appellant's
brief due 2/21/07 for The Spamhaus Project in 06-3779, for
The Spamhaus Project in 06-4169. Appellee's brief due
3/23/07 for David Linhardt in 06-3779, for e360 Insight in
06-3779, for David Linhardt in 06-4169, for e360 Insight in
06-4169. Appellant's reply brief due 4/6/07 for The
Spamhaus Project in 06-3779, for The Spamhaus Project in
06-4169. (fern) [06-3779 06-4169]
2/21/07 Filed 15c appellant's brief by The Spamhaus Project in
06-3779, The Spamhaus Project in 06-4169. Disk filed.
[06-3779, 06-4169] [0-0] (josh) [06-3779 06-4169]
2/21/07 Filed 10c appendix by Appellant The Spamhaus Project in
06-3779, Appellant The Spamhaus Project in 06-4169.
[06-3779, 06-4169] [2077110-1] (josh) [06-3779 06-4169]
2/28/07 Filed motion by Apexix AG; Beyond Security, Inc.'
Brandenburg Internet Working; Bright Wings, Inc.;
Changeip.com; Coalition against Unsolicited Commerical
Email (CAUCE) - US; Datran Media Corp.; EMAILLABS; Michael
Geist; Habeas, Inc.; Internet Law Group. PLLC; INNOVYX,
Inc.; Internet Tools, Inc.; Institute for SPAM and Internet
Public Policy (ISIPP); Chris Lewis; John Levine; Mailshell
Inc.; MV Communications, Inc.; Return Path, Inc.; Secure
Computing Corp.; Snertsoft; Spin S.R.L.; SURBL; Talbix,
Inc.; Unspam Technologies, Inc.; Paul Vixie; Webmail.us,
Inc.; Whizardries, Inc.; and Derek Wyatt; for leave to file
their amicus brief in support of defendant-appellant
Reverseal. [2079754-1] 15c amicus curiae tendered. [0-0]
[06-3779, 06-4169] (kell) [06-3779 06-4169]
Docket as of May 17, 2007 11:01 pm Page 6
06-3779 e360 Insight, et al v. The Spamhaus Project
3/5/07 ORDER re: Motion to file amicus curiae brief in support of
appellant and reversal. GMM [06-3779, 06-4169] Matthew B.
Prince, counsel for the potential amici curiae, file a
supplemental statement on or before March 8, 2007 hat
explains whether the John Marshall Law School has
authorized him to use its name in connection with this
litigation. (hard) [06-3779 06-4169]
3/8/07 Filed Notice-Only in 06-3779, Notice-Only in 06-4169
statement of counsel for the amici curiae in support of
defendant-appellant in response to March 5th order.
[06-3779, 06-4169] [2051160-1] (kell) [06-3779 06-4169]
3/9/07 Filed motion by Appellee e360 Insight in 06-3779, Appellee
David Linhardt in 06-3779, Appellee e360 Insight in
06-4169, Appellee David Linhardt in 06-4169 to strike
amicus curiae brief. [2082846-1] [06-3779, 06-4169] (hard)
[06-3779 06-4169]
3/12/07 ORDER issued GRANTING motion to file amicus brief.
[2079754-1] The clerk of this court shall file INSTANTER the
tendered copies of the amicus curiae brief and distribute a
copy of this order and the brief to the members of the
assigned merits panel. The motion to strike the brief of the
amicus curiae is DENIED. [2082846-1] The clerk of this court
is directed to file instanter the tendered copies of the
amicus curiae brief. [2051160-1] GMM [06-3779, 06-4169]
(hard) [06-3779 06-4169]
3/12/07 THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE.
The following are those parties to this cause as reflected
on the District Court docket, yet are not reflected on the
Appellate docket/caption for administrative purposes:
AMICUS CURIAE: BRANDENBURG INTERNET WORKING; BRIGHT WINGS,
INC.; CHANGEIP.CO; COALITION AGAINST UNSOLICITED COMMERCIAL
EMAIL (CAUCE)- US; DATRAN MEDIA CORP.; EMAILLABS; MICHAEL
GEIST; HABEAS, INC.; INTERNET LAW GROUP, PLLC INNOVYX, INC.;
INTERNET TOOLS, INC.; THE INSTITUTE FOR SPAM AND INTERNET
PUBLIC POLICY (ISIPP); CHRIS LEWIS; JOHN LEVINE; MAILSHELL
INC.; MV COMMUNICATIONS, INC.; RETURN PATH, INC.; SECURE
COMPUTING CORP.; SNERTSOFT; SPIN, S.R.L.; SURBL; TALKBIZ,
INC.; UNSPAM TECHNOLOGIES, INC.; PAUL VIXIE; WEBMAIL. US,
INC.; WHIZARDRIES, INC.; AND DEREK WYATT, MP. [06-3779,
06-4169] [2051160-1] (hard) [06-3779 06-4169]
3/12/07 Filed 15c amicus brief by Amicus Curiae Apexis AG in
06-3779, Amicus Curiae Beyond Security Inc in 06-3779, per
order. Disk filed. [06-3779, 06-4169] [0-0] (odea)
[06-3779 06-4169]
3/23/07 Filed 15c appellee's brief by e360 Insight in 06-3779,
David Linhardt in 06-3779, e360 Insight in 06-4169, David
Linhardt in 06-4169. Disk filed. [06-3779, 06-4169] [0-0]
(andb) [06-3779 06-4169]
Docket as of May 17, 2007 11:01 pm Page 7
06-3779 e360 Insight, et al v. The Spamhaus Project
3/23/07 Filed 10c appendix vols. I & II by Appellee e360 Insight in
06-3779, Appellee David Linhardt in 06-3779, Appellee e360
Insight 06-4169, Appellee David Linhardt in 06-4169.
[06-3779, 06-4169] [2087161-1] (andb) [06-3779 06-4169]
4/6/07 Filed 15c appellant's reply brief by The Spamhaus Project
in 06-3779, The Spamhaus Project in 06-4169. Disk filed.
[06-3779, 06-4169] [0-0] (odea) [06-3779 06-4169]
4/25/07 ORDER: Argument set for Wednesday, June 6, 2007 at 9:30
a.m. Each side limited to 20 minutes. [06-3779, 06-4169]
[2097101-1] (josh) [06-3779 06-4169]
5/7/07 Filed motion by Appellant The Spamhaus Project in 06-3779,
Appellant The Spamhaus Project in 06-4169 to reschedule
oral argument. [2101154-1] [06-3779, 06-4169] (josh)
[06-3779 06-4169]
5/7/07 Disclosure Statement filed by Matthew M. Neumeier for
Appellant The Spamhaus Project in 06-3779, Matthew M.
Neumeier for Appellant The Spamhaus Project in 06-4169.
[06-3779, 06-4169] [2051160-1] (hard) [06-3779 06-4169]
5/9/07 ORDER issued DENYING motion to reschedule oral argument.
[2101154-1] CF [06-3779, 06-4169] (andb) [06-3779 06-4169]
5/16/07 Disclosure Statement filed by Matthew B. Prince for Amicus
Curiae Beyond Security Inc, Amicus Curiae Apexis AG in
06-3779, Matthew B. Prince for Notice-Only in 06-4169.
[06-3779, 06-4169] [2051160-1] (kell) [06-3779 06-4169]
Docket as of May 17, 2007 11:01 pm Page 8
This is Spamhaus' Docketing Statement.
This is the Transcript Information Sheet associated with the appeal.
This is the transmittal of the long record to the 7th Circuit.
Nos. 06-3779 and 06-4169
_______________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_______________________________________________
THE SPAMHAUS PROJECT, a company limited by guarantee and organized under the laws of England, a/k/a THE SPAMHAUS PROJECT, LTD.,
Defendant-Appellant,
vs.
e360 INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT, an individual,
Plaintiff-Appellees.
_______________________________________________
Appeal from the United States District Court
for the Northern District of Illinois,
District Court No. 06 C 3958
The Honorable Charles P. Kocoras, District Judge
________________________________________________
BRIEF OF DEFENDANT-APPELLANT
THE SPAMHAUS PROJECT
________________________________________________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Ave.
Chicago, IL 60611
(312) 222-9350
February 21, 2007
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 06-3779
Short Caption: e360 Insight, LLC et al. v. The Spamhaus Project
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3):
The Spamhaus Project
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Jenner & Block LLP - Chicago, IL (expected to appear); Wellborn & Wallaco, LLC - Atlanta, GA (appeared in the past); Hinshaw & Culbertson, LLP - Chicago, IL (appeared in the past).
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None
Attorney’s Signature: s/Matthew M. Neumeier Date: 10-26-06
Attorney’s Printed Name: Matthew M. Neumeier
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No _____
Address: Jenner & Block LLP
330 N. Wabash Ave., Chicago, IL 60611
Phone Number: (312) 923-2749 Fax Number: (312) 840-7749
E-Mail Address: mneumeier@jenner.com
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 06-3779
Short Caption: e360 Insight, LLC et al. v. The Spamhaus Project
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3):
The Spamhaus Project
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Jenner & Block LLP - Chicago, IL (expected to appear); Wellborn & Wallaco, LLC - Atlanta, GA (appeared in the past); Hinshaw & Culbertson, LLP - Chicago, IL (appeared in the past).
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None
Attorney’s Signature: s/Craig C. Martin Date: 10-26-06
Attorney’s Printed Name: Craig C. Martin
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes _____ No X
Address: Jenner & Block LLP
330 N. Wabash Ave., Chicago, IL 60611
Phone Number: (312) 923-2776 Fax Number: (312) 840-7776
E-Mail Address: cmartin@jenner.com
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 06-3779
Short Caption: e360 Insight, LLC et al. v. The Spamhaus Project
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3):
The Spamhaus Project
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Jenner & Block LLP - Chicago, IL (expected to appear); Wellborn & Wallaco, LLC - Atlanta, GA (appeared in the past); Hinshaw & Culbertson, LLP - Chicago, IL (appeared in the past).
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None
Attorney’s Signature: s/Carrie A. Fino Date: 10-24-06
Attorney’s Printed Name: Carrie A. Fino
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No X
Address: Jenner & Block LLP
330 N. Wabash Ave., Chicago, IL 60611
Phone Number: (312) 840-7290 Fax Number: (312) 840-7390
E-Mail Address: cfino@jenner.com
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 06-3779
Short Caption: e360 Insight, LLC et al. v. The Spamhaus Project
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3):
The Spamhaus Project
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Jenner & Block LLP - Chicago, IL (expected to appear); Wellborn & Wallaco, LLC - Atlanta, GA (appeared in the past); Hinshaw & Culbertson, LLP - Chicago, IL (appeared in the past).
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) List any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None
Attorney’s Signature: s/Stephen M. Geissler Date: 10-24-06
Attorney’s Printed Name: Stephen M. Geissler
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No X
Address: Jenner & Block LLP
330 N. Wabash Ave., Chicago, IL 60611
Phone Number: (312) 923-2620 Fax Number: (312) 923-2720
E-Mail Address: sgeissler@jenner.com
i
TABLE OF CONTENTS
CIRCUIT RULE 26.1 DISCLOSURE STATEMENTS
TABLE OF CONTENTS.....................................................................................i
TABLE OF AUTHORITIES...............................................................................iv
JURISDICTIONAL STATEMENT.......................................................................1
ISSUES PRESENTED......................................................................................2
STATEMENT OF THE CASE............................................................................3
STATEMENT OF FACTS..................................................................................5
SUMMARY OF ARGUMENT.............................................................................9
STANDARD OF REVIEW...............................................................................10
ARGUMENT..................................................................................................10
I. The Entry of Default Judgment Must Be Reversed Because the District Court Failed to Find that Service of Process was Properly Effected on Spamhaus and that Failure Violates International and United States Law...........................................................................................................11
A. Prior to entering the default judgment, the district court violated international and United States law by failing to consider whether service of process was properly effected on Spamhaus.....................11
1. The District Court Failed to Consider Spamhaus’ Threshold Argument That Service Was Not Proper......................................11
2. Under International and United States Law, the District Court’s Entry of Default, Prior to Making Findings on Service of Process, Was Improper.................................................................14
i. Under the Hague Convention, the Entry of Default Judgment Was Improper.......................................................14
ii. The District Court Improperly Entered Default Judgment without First Determining Whether the Motion for Default Judgment was Properly Served............................15
B. The Default Judgment is Void and Must Be Vacated Because the District Court Lacks Personal Jurisdiction Over Spamhaus...........17
ii
1. The Entry of Default Judgment is Void and Must be Vacated Because the District Court Entered Default Judgment Without Inquiring into or Determining Whether it had Personal Jurisdiction over Spamhaus.........................................17
2. The Jurisdictional Statements in e360’s Complaint are Insufficient to Confer Personal Jurisdiction over Spamhaus and the Default Judgment is Therefore Void and Should be Vacated...................................................................................................20
C. The District Court’s Entry of Default Judgment Must Be Vacated Because the Claims are Insufficient to State a Claim for which Relief can be Granted, a Hearing on Damages was not Held, and the Damages were Awarded Without Sufficient Evidentiary Support..............................................................................................................................26
1. e360’s Allegations Are Insufficient To State A Claim For Relief........................................................................................................27
2. The District Court Abused Its Discretion When It Entered Default Judgment Against Spamhaus Without Holding A Hearing On the Damages Amount................................................28
3. The District Court Abused Its Discretion By Entering a Damages Judgment Against Spamhaus Without Sufficient Evidentiary Support...........................................................................31
4. The District Court Abused Its Discretion By Failing To Enter Findings Of Fact In Support Of The Damages Amount Awarded In The Default Judgment...............................................32
D. Reversing the District Court’s Default Judgment Conforms With the Seventh Circuit’s Preference for Cases to be Tried on the Merits, and Would Allow Spamhaus the Opportunity to Present Its Meritorious Defenses.....................................................................................33
II. The District Court’s Injunction Must be Vacated Because the District Court Failed to Apply the Traditional Test Required for Injunctive Relief, Neglected its Duties under Federal Rule of Civil Procedure 65, and Issued an Injunction that Violates the First Amendment.................................35
A. The District Court erred in not applying the traditional four-part test prior to granting injunctive relief......................................................37
iii
B. The District Court erred because the injunctive relief issued does not comport with the requirements under Federal Rule of Civil Procedure 65.....................................................................................................39
C. The Permanent Injunction Issued by the District Court Violates the First Amendment and Must be Reversed................................................42
1. The Injunction Constitutes an Impermissible Prior Restraint and is Facially Invalid........................................................................43
2. The Injunction Amounts to Impermissible Compelled Speech...................................................................................................................44
3. The Injunction is Impermissibly Broad.......................................46
III. The District Court Erred in Denying Spamhaus’ Motion to Vacate Default Judgment under Federal Rule of Civil Procedure 60(b).........................48
A. The District Court Abused its Discretion by Refusing to Vacate the Default Judgment and Ruling Without Allowing Spamhaus an Opportunity to Present Evidence to Support its Rule 60(b)(4) Motion that the Default Judgment was Void for Lack of Personal Jurisdiction.......................................................................................................48
CONCLUSION...............................................................................................52
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE-STYLE REQUIREMENTS.......54
CIRCUIT RULE 30(d) CERTIFICATION...........................................................55
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 31(e).........................56
CERTIFICATE OF SERVICE..........................................................................57
iv
TABLE OF AUTHORITIES
CASES
Adam v. Saenger, 303 U.S. 59 (1938)...................................................49
Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir. 2001).....................30
Alexander v. United States, 509 U.S. 544 (1993)...................................43
Anilina Fabrique de Colorants v. Aakash Chemicals & Dyestuffs, Inc., 856 F.2d 873 (7th Cir. 1988)...................................................17
Atiyeh v. Capps, 449 U.S. 1312 (1981).................................................40
Audio Enterprise, Inc. v. B & W Loudspeakers, 957 F.2d 406 (7th Cir.1992).................................................................................16
Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398 (7th Cir. 1986)..............17
Board of Trustees v. Elite Erectors, Inc., 64 F.Supp.2d 839 (S.D. Ind. 1999)........................................................................48, 49
Berthold Types Ltd. v. European Mikrograf Corp., 102 F.Supp.2d 928 (N.D. Ill. 2000)..........................................................................21
Black v. Lane, 22 F.3d 1395 (7th Cir. 1994)...................................23, 27
Bombliss v. Cornelson, 355 Ill.App.3d 1107, 824 N.E.2d 1175 [291 Ill. Dec. 925] (2005).........................................................................21
Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005)......................14
Burger King v. Rudzewicz, 471 U.S. 462 (1985)....................................25
Carroll v. President and Com'rs of Princess Anne, 393 U.S. 175 (1968).............................................................................................46
Chicago Board of Ed. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003)................................................................................40
Chicago & North Western Trans. Co. v. Railway Labor Exec. Associate, 908 F.2d 144 (7th Cir. 1990)..........................................40
Chung v. Tarom, S.A., 990 F.Supp. 581 (N.D. Ill. 1998).........................14
v
Club Assistance Program, Inc. v. Zukerman, 594 F.Supp. 341 (N.D. Ill. 1984)................................................................................23
Cripps v. Life Insurance Co. of N. America, 980 F.2d 1261 (9th Cir. 1992)................................................................................27
Dearborn National Casualty Co. v. Consumers Petroleum Co., 164 F.2d 332 (7th Cir. 1947)..................................................................32
Dennis Garberg & Associates, Inc. v. Pack-Tech International Corp., 115 F.3d 767 (10th Cir. 1997).........................................................19
Doe v. Xudong, No. 04-C-4097, 2005 U.S.Dist. LEXIS 33377 , (N.D. Ill. Dec. 15, 2005).............................................................18, 19
Dormeyer Co. v. M.J.Sales & Distributing Co., 461 F.2d 40 (7th Cir. 1972)................................................................................33
Dresser Industrial, Inc., Waukesha Engine Division v. Gradall Co., 965 F.2d 1442 (7th Cir. 1992)...................................................