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IN COURTOF COMMON PLEAS
FRANKLIN COUNTY

JOHN W. FE'RRON,
Plaintiff,

vs

E360INSIGHT LLC.
And
DAVID LINHARDT
Defendants.

COMPLAINT FOR MONEY DAMAGES, DECLARATORY
JUDGMENT AND INJUNCTIVE RELIEF
JURY DEMAND ENDORSED HEREON
NOW COMIES PLAINTIFF JOHN W. FERRON, by and through his undersigned counsel, and makes the fiillowing allegations and claims against DEFENDANTS e360INSIGHT, I.LC and DAVID LINHARDT.

The Parties

I. PLAINTIFF JOHN W. FERRON ("Plaintiff") is a person who has his principal place of business at 580 N. Fourth Street, Suite 450, Columbus, Franklin County. Ohio. At all times relevant hereto, Plaintiff has been a "consumer" as defined in R.C. §1345.01(0).

2. Upon information and belief. DEFENDAN'' E360INSIGHT LLC ("Defendant e360'), is an Illinois limited liability company having its principal place of business at
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600 Northgate Parkway, Suite A, Wheeling. Illinois 60090. Defendant e360 is not properly registered with the Ohio Secretary of State to do business in Ohio; nor is its fictitious name property registered with the Ohio Secretary of State.

3. Upon information and belief. DEFENDANT DAVID LINHARDT ("Defendant Linhardt"), is a living person and individual, resides in Illinois, has as his principal place of business 600 Northgale Parkway, Suite A, Wheeling, Illinois 60090. and, at times relevant hereto, has been the President of Defendant e360.

4. At all times relevant hereto. each Defendant has been a "supplier" as defined in R.C. §1345.01(C).

Jurisdiction and. Venue

5. This Court has jurisdiction user the parties and the claims asserted herein because Defendants transmitted many email messages to Plaintiff in Ohio.

6. Venue is proper because all or a substantial part of the events giving rise to the claims herein occurred within Franklin County, Ohio, including Plaintiffs receipt of many of Defendants' cmail rtti'',ages to Plaintill: Also, Plaintiff has suffered injuries to his rights in Franklin County. Ohio.

The Claims

7. Prior to the date of the events giving rise to Plaintiit's claims, the following court determinations were available for public inspection and on file in the office of the Ohio Attorney General in its Public Inspection File (hereafter "PIF"):

(a) Slate ex rel. Fisher v. Cheeseman, Franklin C.P. 9ICVHI0-8592, OAG PIF# 1288 (Oct. 25. 1991); and

(b) Sucre ex rel. Petro v Pristine Secure Services, Stark C.P. 2005CVU0602.
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OAG PIF# 2376 (July 5, 2005); and

(c) State, ex rel. Brown v. Gem Collectors International, Ltd, Franklin CP No. 81 CV-09-4788, OAG PIF# 499 (April 6, 1983); and

(d) State ex rel. Celebrezze v. Lloyd's Sports Car Body Shop, Franklin C.P. 82CV063184, OAG Plf # 5 (May 26, 1983); and

(e) State ex rel. Brown v. Bud Fletcher Used Cars. Inc., Hamilton C.P. A 8201791, OAG PIF# 228 (April 27,1982); and

(f) State ex rel. Celchrezze v. National Church Publications, Richland County C.P. 85 548 C. OAG PlF4 698 (Dec. 30. 1987); and

(g) Smith v. Discount Auto Sales. Lorain C.P. 97CV 120022, OAG P117# 1735 (March 19, 1998);

(h) Hoard v. 4. U.L.. Inc.. Stark C.P. 1998' C V 02039. OAG PIF# 1801 (Dec. 9, 1999);

(i) State ex rel. Celebreeze v. Firestone, Franklin C.P. 84CV105745. OAG PIF# 270 (March 8, 1985);

(j) State ex rel. Celebreeze v. Mroue. Montgomery C.P. 84-925, OAG PIF# 510 (April 27, 1984); and

(k) any other PIP cases that are otherwise applicable to the claims and or issues at involved in this action.

8. Prior to the date of the events giving rise to Plaintafrs claims, Ohio Administrative Code Sections 109:4-3-03, 109:4-3-04 and 109:4-3-06 were adopted pursuant to R.C. § 1345.05(3)(2).

9. Defendants' acts complained of herein, which constitute violations of the Ohio
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Consumer Sales Practices Act, R.C. § 1345.01. et.seq.; are subject to: (a) all court determinations that were on file in the Office of the Ohio Attorney General in its Public Inspection File as of the date of the acts of Defendant complained of herein, including, but not limited to, the PIF court determinations referenced above in Paragraph 7; and (b) all rules adopted under R.C. Section 1345.05 (B)(2) prior to the date of the acts or practices of Defendant complained of herein, including Ohio Administrative Code Sections 109:4-3-03, 109:4-3-04 and §109.4-3-06.

10. Plaintiff has Internet email accounts that are maintained by Internet service providers located within Ohio. Plaintiff regularly accesses and reads the email messages that he receives at his email addresses in Ohio.

11. Upon inihrntation and belief; between May 1, 2006 and the present date Defendants transmitted or caused to be transmitted many email messages that passed through the servers of Plaintiff's Internet service providers and were forwarded to Plaintiff's Internet email accounts, as Defendants had intended. Each of these email messages is a"consumer transaction'' as defined in R.C. Section 1345.01(A). The quantity of email messages is voluminous and for that reason, they are not attached hereto.

12. As to each email message described in Paragraph 11, above:

(a) Plaintiff is the "recipient" as defined in R.C. §2307.64(A)(11);

(b) Each email message is an "electronic mail advertisement" as defined in R.C. §2307.64(A)(4); and

(c) Neither Defendant has had with the Plaintiff. at any time relevant hereto, a "pre-existing business relationship" as defined in R.C.2307.64(A)(9).

13. As to each email message described in Paragraph 11, above:

(a) Defendant has not. at any time relevant hereto had a "pre-existing
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business or personal relationship" with Plaintiff; as contemplated by R.C. §2307.64(B)(3)(a); and

(b) Plaintiff has not "consented or agreed as a condition of service", as contemplated by R.C. §2307.64(13)(3)(b), to receive Defendants' email messages.

14. Upon information and belief, in many of the email messages Defendants sent ocaused to be sent to Plaintiff, Defendants offered for sale at deeply discounted prices various consumer goods manufactured by world renowned designers such as Dooney & Bourke Stars, Brighton, Gucci, Michael Kours. Prada, Louis Vuitton. Ray Ban, Maui Jim and Killer Loop to name a few. However, upon information and belief: Defendants actually substitute, provide, sell. and/or deliver unlawfully manufactured, non-licensed imitations or "knockoff's," of such world renowned designer consumer goods. Upon information and belief, Defendants did not intend to provide, sell and/or deliver the coffered world renowned designers goods in accordance with their email solicitations.

15. Upon information and belief, in regard to many of the email messages Defendants hove sent or caused to N. sent to Plaintiff, Defendants knowingly committed one or more unfair and/or deceptive acts or practices in violation of R.C. §I345_ 12(A) by:

(a) using the word "free" in a consumer transaction and falling to set forth clearly and consptcuuusfy at the outset of the coffer all of the terms. conditions and obligations upon which receipt and retention of the "free" goody or services are contingent;

(b) using the word "free" in a consumer transaction and failing to print all terms, conditions, and obligations of the offer in a type size half as large
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the word "free;"

(c) using the word "Tree" in a consumer transaction and failing to print all terms, conditions, and obligations of the offer in close proximity with the oiler of "free" goods or services:

(d) engaging in improper bait advertising by making representations in email advertisements that would create n the mind of a reasonable consumer a false impression as to the grade, quality, quantity, make, model, year, price, value, size, color, utility, origin or any other material aspect of the offered goods or services in such a manner that, upon subsequent disclosure or discovery of the facts, the consumer may be induced to purchase goods or services other than those offered:

(e) failing to register with the Ohio Secretary of State prior to doing business in Ohio: and/or

(f) failing to register a fictitious business name with the Ohio Secretary of State prior to doing business in Ohio under such fictitious name.

16. Upon information and belief, between May 1, 2006 and the present date, Defendant; knowingly, willfully and intentionally transmitted or caused to be transmitted ti Plaintiff many email messages that materially falsity the header information in such email rnesaages in a manner that is prohibited by Section 1037(a)(3) of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM"). 15 U.S.C. 7701. el seq.

17. Upon rnfomiaiion and belief between May 1, 2006 and the present date, Defendants knowingly, willfully and intentionally transmitted or caused to he transmitted multiple email messages to Plaintiff from a combination of more than two different domain
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names where, in registering such domain names, Defendants knowingly, willfully, and intentionally used information that materially falsifies the identity of the actual registrant of the domain names in a manner that is prohibited by Section 1037(a)(4) of CAN-SPAM.

18. By this Complaint. Plaintiff also seeks this Court's declaration that:

(a) it is an unfair and/or deceptive act or practice in violation of R.C. §1345.12(A) for a supplier to transmit or cause to be transmitted to a consumer an email message that does not comply with the requirements of the Ohio Electronic Mail Advertisement Act (" EMAA"). K.C. 2307.63. et seq., specifically R.C. §2307.64(13)(1);

(b) it is an unfair and/or deceptive act or practice in violation of P. C. §1345.02(A) for a supplier to transmit or cause to be transnitted to a consumer an email message that materially falsifies the header information in the email message in a manner that is prohibited by Section 1037 (a)(3) of CAN-SPAM; and

(c) it is an unfair and/or deceptive act or practice in violation of R.C. §1345.02(A) for a supplier to transmit or cause to be transmitted to, a consumer multiple email messages from a combination of more than two different domains names where, in registering such domain names, the supplier uses information that materially falsifies the identity of the actual registrant of the domain names in a manner that is prohibited by Section 1037(a)(4) of CAN-SPAM.
FIRST CAUSE OF ACTION
(VIOLATIONS OF THE OHIO CONSUMER SALES PRACTICES ACT. R.C. §1345.02(A))

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19. Plaintiff hereby incorporates, as if Fully rewritten herein, all of the foregoing paragraphs.

20. Each of the email messagcs that Defendants transmitted to Plaintiff constitutes one or more unfair and/or deceptive sales practices and/or acts in violation of R.C. §1345.02(A).

21. Defendants' violations were "knowingly" committed, as Defendants knew they were engaging in the acts and practices described in the preceding paragraphs.

22. The acts and practices of Defendants described in the preceding paragraphs are acts and practices that have previously been declared to be unfair and/or deceptive acts or practices in violation of the CSPA by Ohio courts in judgments that were filed in Public Inl'omtation File of the Office of the Ohio Attorney General prior to the acts and practices of Defendant complained of herein.

23. Because Defendants knowingly committed the acts or practices which constitute violations of R.C. § 1345.02(A), Plaintiff is entitled to: (a) an award of statutory darnages against each Defendant in the amount of three times Pluintif"s actual damages or $200, whichever is greater. for each violation of K.C. §1345.02(Ai; and (bi an award of Plaintiff"s reasonable attorney's fees and costs against each Defendant pursuant to R.C.1345.09(F).

SECOND CAUSE OF ACTION
(DECLARATORY JUDGMENT PURSUANT TO THE OHIO CONSUMER SALES PRACTICES ACT, R.C. §1345.419(D), AND §R.C. 2721.03)

24. Plaintiff hereby incorporates, as if fully rewritten herein, all of the foregoing paragraphs

25. Plaintiff respectfully submits that, under the circumstances presented in this case. he is entitlcd to the Court's entry of declaratory judgment in his favor pursuant to R.C.
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§1345.09(D) and R.C. §2721.03, including this Court's declaration that it is an unfair and deceptive act and practice, and a violation of R.C. §1345.02(A), For a "supplier'' to transmit an email message to a "consumer" in Ohio that constitutes a "consumer transaction" where the email message

(a) uses the word "free" and fails to set forth clearly and conspicuously at the outset of the offer all of the terms, conditions and obligations upon which receipt and retention of the "free" goods or services are contingent;

(b) uses the word "free" and fails to print all terns, conditions. and obligations of the offer in a type size not less than half as large as the word "free;"

(c) uses the word " free:" and fails to print all terms, conditions, and obligations of the otter in close proximity with the offer of 'free'' goods or services;

(d) makes representations that would create in the mind of a reasonable consumer, a false impression as to the grade, quality, quantity, make, model, year, price, value, size, color, utility, origin or any other rnaterial aspect of' the offered goods or services in such a manner that, upon subsequent disclosure or discovery of the facts, the consumer may he induced to purchase goods or services other than those offered;

(e) is sent by a supplier that has failed to register with the Ohio Secretary of State prior to doing business in Ohio;

(f) is sent by a supplier that has failed to register a fictitious business name with with Ohio Secretary of State prior to doing business in Ohio under
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such fictitious name; and/or

(g) fails to comply with the requirements of R.C. §2307.64(B)(1).

26. Plaintiff respectfully submits that, under the circumstances presented in this case he also is entitled to the Court`s entry of declaratory judgment in his favor pursuant to R.C. §1345.09(D) and R.C. §2721.03, including this Court's declaration that it is an unfair and deceptive act and practice, and a violation of R.C. y 1345.02(A), fix a "supplier" to transmit or cause to be transmitted to a "consumer" in Ohio

(a) an email message that materially falsifies the header information in the email message in it manner that is prohibited by Section 1037 (a)(3) of CAN-SPAM; and/or

(b) multiple email messages from a combination of more than two different domains names where, in registering such domain names, the supplier uses information that materially falsifies the identity of the actual registrant of the domain names in a manner that is prohibited by Section 1037(a)(4) of CAN-SPAM.

PRAYER FOR RELIEF

WHEREFORE. Plaintiff hereby prays for the following relief against Defendants, jointly and severally, as to his foregoing claims:

A. An award of stututory damages against Defendants in the atttount of three times Plaintiffs actual damages or $200, whichever is greater, for each of Defendants acts that constinnes a violation of R.C. §1345.02(A);

B. An award of Plaintiffs reasonable attorneys fees and costs. as allowed pursuant to R.C.: §1345.09(F).

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C. Declaratory judgment pursuant to R.C. §1345.09(D) and R.C. 2721.[illegible] against Defendants in Plaintiff's favor, as requested above;

D. A permanent injunction prohibiting Defendants from transmitting any more email messages to any consumer in Ohio in violation of R.C. §1345.02(A), including Plaintiff;

E. Pre- and post-judgment interest on all damages awarded; and

F. All other such relief, legal and equitable, as permitted by law.

Respectfully Submitted,

Attachment	Date	Size
Complaint.pdf	01/03/08 6:13 pm	233.57 KB