SpamSuite.com

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.

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, and KELLY CHIEN, an individual,
Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF AND FOR DAMAGES Plaintiffs, e360lnsight, LLC (e360) and David Linhardt (Linhardt) (collectively "Plaintiffs"), by and through their attorneys, Synergy Law Group, LLC, for their Complaint against Defendants, Mark James Ferguson, Susan Wilson a.k.a. Susan Gunn, and Kelly Chien, (collectively "Defendants"), state as follows:

NATURE OF THIS ACTION
1. This is an action by e360, an internet marketing company, and Linhardt, its President, for damages against Defendants, each of whom have repeatedly made defamatory statements by referring to Plaintiffs as "spammers" and causing Plaintiffs to be listed as "spammers" in publicly accessible internet websites. Defendants' activity has resulted in Plaintiffs' e-mail being blocked from the intended recipients causing Plaintiffs to incur substantial lost profits. The statements made by the Defendants constitute
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defamation and the resulting blocking of Plaintiffs' e-mails constitutes tortious interference with prospective economic advantage. Further, certain Defendants have actively and without justification interfered with existing contracts between Plaintiffs and third parties.

PARTIES

2. e360 is an Illinois Limited Liability Company located in Wheeling, Illinois, with its principal offices located at 600 Northgate Parkway, Suite A.

3. David Linhardt is an individual who resides in Highland Park, IL 60035 and is a citizen of Illinois.

4. Mark James Ferguson ("Ferguson") is an individual who resides at [redacted] and is a citizen of Washington.

5. Susan Wilson, a.k.a. Susan Gunn ("Wilson") is an individual who resides at [redacted] and is a citizen of California.

6. Kelly Chien ("Chien") is an individual who resides at [redacted] and is a citizen of New York.

7. Collectively, Ferguson, Wilson and Chien will be referred to in this Complaint as "Defendants".

JURISDICTION AND VENUE

8. This Court has jurisdiction over this action pursuant to 28 USCS § 1332. Plaintiffs are both citizens of Illinois and Defendants are citizens of States other than Illinois. e360 is an Illinois limited liability corporation whose sole member, Maverick
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Direct Marketing Solutions, Inc. is an Illinois corporation with its principal place of business in Illinois. Dave Linhardt is the sole shareholder of Maverick. Plaintiffs seek in excess of $75,000 in damages from each Defendant. Thus diversity of the parties is satisfied.

9. Jurisdiction is proper pursuant to 28 USCS § 1391(a) because a substantial part of the events giving rise to the claim occurred in this judicial district.

FACTS COMMON TO ALL COUNTS

10. e360 is an e-mail based marketing company whose business practices have, at all times relevant to the allegations in this complaint, complied with, and continue to comply with all federal and state requirements and standards pertaining to the sending of commercial e-mail, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 (CAN-SPAM).

11. e360 uses ISPs to facilitate its marketing efforts on behalf of its business partners, and at all times relevant to the claims asserted in this complaint, e360 has complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by the ISPs.

12. e360 is hired by and partners with companies that wish to market their products or services using the internet. This marketing campaign is targeted to persons "opting in" to a list whereby they agree to accept e-mail announcements. These persons sign up at websites owned by e360 or its business partners, some of which are then verified through a "double opt-in" process.

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13. e360 does not engage in "spamming", which is essentially the digital equivalent of sending junk mail that is neither asked for nor wanted. Unlike anyone engaged 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 e-mail messages.

14. e360 has valid contracts with various third-parties to send e-mail on behalf of the third-parties.

15. Defendants are aware that e360 is in the business of sending e-mail and that Plaintiffs contract with third-parties to send e-mail on their behalf.

16. Defendants' repeated postings on internet websites that Plaintiffs are spammers has caused Plaintiffs to be blacklisted and have their e-mails blocked as spam.

17. Defendants intentionally post that Plaintiffs are spammers with the intent that Plaintiffs' e-mails will be blocked as spam, causing Plaintiffs' clients to cease business with Plaintiffs.

18. Defendants intentionally post information about e360's Internet infrastructure including, but not limited to, ip addresses, dns servers, whois domain information, bandwidth providers, hosting providers and e360's customers. On information and belief, these postings are made for the sole purpose of encouraging other email systems administrators to block inbound messages from e360.

19. Plaintiffs have lost clients and business opportunities as a result of Defendants' postings that Plaintiffs are spammers which resulted in Plaintiffs being blacklisted and prevented Plaintiffs from sending e-mails.

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20. Plaintiffs have suffered damages as a result of Defendants' tortious interference with their prospective business opportunities.

COUNT I
Defamation
(Against Ferguson and Wilson)

21. Plaintiffs incorporate paragraphs 1 through 20 above as set forth fully in Count I.

22. Ferguson repeatedly referred to Plaintiffs as spammers through various online postings that can be accessed in the state of Illinois via the internet.

23. Specifically, on January 19, 2007 Ferguson posted on a usenet message board referred to as NANAE, which stands for news.admin.net-abuse.email, a statement that e360, and through it, Linhardt, is a spammer. (See January 19, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 1.)

24. On January 20, 2007 Ferguson posted on NANAE a message whose subject line read "e360lnsight are spammers and I can now sue them" and which indicated again that e360, and through it, Linhardt, was sending spam. (See January 20, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 2.)

25. On February 7, 2007 Ferguson again posted on NANAE a message which indicated that e360, and through it, Linhardt, was sending spam. (See February 7, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 3.)

26. On February 8, 2007 Ferguson posted on NANAE two separate messages which indicated again that e360, and through it, Linhardt, was sending spam. (See February 8, 2007 postings attached to and incorporated into this Complaint by reference as Exhibits 4 and 5.)

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27. On June 30, 2007 Ferguson posted on NANAE that e360, and through it Linhardt, violated CAN-SPAM and Washington state law by sending Spam. (See June 30, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 6.)

28. On January 24, 2007 Wilson posted on NANAE a message which indicated that e360, and through it, Linhardt, was sending spam. This message also contained the statement that e360, and through it, Linhardt, would "list wash" a recipient's address, a practice that clearly implied that e360 was engaged in illegal activity. Wilson's message also contained a statement that indicated that e360, and through it, Linhardt, was the subject of a "major police cyber crime investigation." (See January 24, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 6.)

29. Wilson has admitted to being a Spamhaus volunteer, referring to her work for an international email blacklisting organization that operates at www.spamhaus.org. On information and belief, Wilson has generated SBL and ROSKSO listings on spamhaus.org for the expressed purpose of blocking e360's email. In addition, Wilson knowingly created these listings so that they could be downloaded and used by other blacklist organizations including surbl.org, spamcop.net, sorbs.net, spew.org, returnpath.net. Wilson knowingly created these listings so that they could be downloaded and used by ISPs in Illinois, including Yahoo.com, Google.com, American Online, Comcast.net, AT&T, and RoadRunner/TimeWarner cable.

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30. All of the statements giving rise to this defamation claim against Defendants were in fact false. Defendants knew that their statements were false, or had no reason to believe that their statements were true.

31. All of the statements giving rise to this defamation claim against Defendants were published to third parties. None of the publications were privileged.

32. Plaintiffs believe that there are other defamatory publications by Defendants that remain to be discovered. Plaintiffs will seek leave to include any subsequently discovered publications of libel or slander as additional grounds for alleging the claims asserted in this count for Defamation.

33. Defendant's references to Plaintiffs as spammers constitute defamation because they impute that e360, and through it, Linhardt, committed criminal acts, or are unable to perform their services ably or with integrity, thus prejudicing Plaintiffs reputation and in their employment.

34. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

35. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's defamatory statements concerning Plaintiffs, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

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COUNT II
Tortious Interference With A Prospective Business Advantage
(Against All Defendants)

36. Plaintiffs incorporate paragraphs 1 through 35 above as set forth fully in Count II.

37. Defendants have forwarded numerous e-mails received from Plaintiffs or Plaintiffs affiliates to e-mail blocking entities and to ISPs with the intent to have Plaintiffs' e-mail blocked as spam. Moreover, in addition to the NANAE postings referred to above, Defendant Chien on June 2, 2005 referred to Plaintiffs as spammers. Defendants know that email blocking sites monitor NANAE and see that Plaintiffs are being accused of illegal spamming and other untoward behavior. On information and belief, one or more defendants intentionally forwarded postings to email blocking sites.

38. Defendants are aware that Plaintiffs are in the business of marketing through the use of e-mail and that Plaintiffs contract with third parties to send e-mail.

39. Defendants acted with the intention of having e-mail sent by Plaintiffs blocked and thus interfered with Plaintiffs business and prospective business opportunities.

40. Plaintiffs have lost business and business opportunities as a result of Defendants sending of e-mails received from Plaintiffs to e-mail blocking entities and the resulting blocking of Plaintiffs e-mails.

41. Plaintiffs lost business has resulted in substantial lost income to Plaintiffs.

42. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

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43. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's intentional interference with Plaintiffs' prospective economic advantage, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

COUNT III
Tortious Interference With A Contract
(Against All Defendants)

44. Plaintiffs incorporate paragraphs I through 43 above as set forth fully in Count III.

45. Plaintiffs have contracts with third party Internet Service Providers (ISPs) to provide the necessary bandwidth to send their e-mails.

46. Defendants, at all times relevant to this Complaint, knew that Plaintiffs have contracts with third party ISPs to provide bandwidth to Plaintiffs.

47. Defendants directly contacted the third party ISPs providing bandwidth to Plaintiffs and claimed that Plaintiffs are spammers, with the intention that those service providers would cease to provide bandwidth to Plaintiffs, which in turn made it impossible for Plaintiffs to conduct their business.

48. Certain third party ISPs have terminated their contracts with Plaintiffs to provide bandwidth to Plaintiffs as a result of Defendants' intentional interference with Plaintiffs' contracts.

49. Plaintiffs have suffered damages as a result of their third party service providers terminating their contracts with Plaintiffs.

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50. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

51. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's intentional interference with Plaintiffs' contracts, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

JURY DEMAND

52. In addition to the relief sought in this Complaint, Plaintiffs respectfully request a jury trial.

Respectfully submitted,
E360Insight, LLC. and David Linhardt

By:
/s/ Joseph L. Kish
One of Their Attorneys
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