Mickey Chandler's SpamSuite

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON, SEATTLE

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

v.

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

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

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

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

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

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

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

Jurisdiction and Venue

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

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

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

General Allegations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

REQUEST FOR RELIEF

Plaintiff respectfully requests the following relief:

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

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

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

RESPECTFULLY SUBMITTED this 25th day of July, 2007.

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

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

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

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VERIFICATION

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

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

Attachment	Date	Size
Complaint.pdf	06/28/09 1:05 pm	233.6 KB