Support the Site
Affidavit of Mark Ferguson in Support of the Motion to Dismiss
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
E360INSIGHT, LLC, an Illinois Limited
MARK JAMES FERGUSON, an individual,
I Mark James Ferguson declare and state:
1. My name is Mark James Ferguson and I am a Defendant in this action. I make this declaration in support of Defendant’s Motion to Dismiss. The facts set out below are known to me personally and if called on I could testify to those facts under oath.
2. I am not now nor have I ever been a resident of Illinois.
3. I do not now nor have I ever owned, used or possessed any property, real or imagined in Illinois, I do not now nor have I ever paid taxes in Illinois, I do not now nor have I ever held or maintained a bank account with an Illinois state bank or a bank located within Illinois.
4. I am not now nor have I ever registered to vote in Illinois.
5. I am not now nor have I ever been employed in Illinois or to the best of my recollection ever done business with a company, business, individual or other entity located within Illinois.
6. I do not now nor have I ever had a telephone listing, address listing or postal listing in Illinois.
7. I have never made an appearance in any court for any action under any circumstances within the state of Illinois.
8. I do not now nor have I ever attempted to distribute information to any business, company, individual or other entity within the state of Illinois.
9. Each spam sent by Plaintiff’s violated the Can Spam Statute and Washington State Law.
10. Whew.com is properly registered to Defendant and the registration information reflects the place of ownership as 3831 S Fawcett Avenue, Tacoma, WA 98418 and is publicly available to any individual or entity that has access to the Internet.
11. Defendant has been active in the anti-spam community since 1996 and has nine years of experience with reading headers in both Usenet postings and email. This experience makes it easy for the Defendant to identify the sender of email and the posters of Usenet. It is with this extensive experience in both Usenet and Email tracking that the Defendant can make a positive identification of the emails the Plaintiffs did send and the postings  Plaintiff Linhardt made while representing e360 to NANAE. Some of these postings are relevant to this action and are included within this declaration for the Court’s information.
12. Defendant posted to NANAE on January 19, 2007 using the same email address Plaintiff was currently abusing with spam making it known to all the spam was not welcome [Exhibit, 4].
13. Plaintiffs on January 19, 2007 posted in response to defendant’s displeasure acknowledging that his spam was in fact unwanted unwelcome and harassing to the Defendant. [Exhibit, 5]
14. Plaintiffs’ spams continued and increased in frequency and volume almost 150% for the next forty-two  days. [Exhibit, 6]
15. Plaintiff makes claim in two separate posts to the Usenet made through Google’s Usenet tools that Defendant signed up to receive his newsletters. Plaintiffs falsely stated the Defendant signed up using an affiliate or associated website whose domain is 123freetravel.com on March 4, 2007. [Exhibit, 7]
16. Under the Federal can spam act plaintiff would have 10 days grace period to remove defendant's e-mail address from all lists. Plaintiff continued to send his unwelcome unwanted and harassing spam until February 23, 2007. The spam volume increased and frequency and quantity as stated above from 1.125 each day to 1.64 a day or an increase of almost 150%.
(4) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION-
(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;
17. Washington Law the state I reside in a very specific in that it requires unsolicited commercial e-mail to have accurate and true header information and not be deceitful as rule of law RCW19.19020. Further it requires the onus on the sender to check the residency of the recipient.
§ 19.190.020. Unsolicited or misleading electronic mail -- Prohibition
(1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:
(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject line.
18. Each spam from Plaintiff was from a domain that had hidden and obfuscated domain registration information or the address, telephone and other information not belonging to the Plaintiffs. [Exhibit, 8]
19. IP space and IP allocation information was registered to companies not identified as being owned by the Plaintiffs making it almost impossible to identify the actual sender of the spam. [Exhibit, 9]
20. Each spam contained a mailing address registered to the domain that was not reflected in the domain registration. Addresses had two or more domains or entities registered as the removal address and domains had two or more addresses for removal. [Exhibit, 10] Defendant found this confusing and so no option for email removal was available to him.
I declare under penalty or perjury under the laws of the United States of America that all statements made in this declaration are true and accurate and that this declaration was executed on August 25, 2007.
Mark James Ferguson
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