Original Complaint

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

E360INSIGHT, LLC, an Illinois Limited Liabililty Company, and DAVID LINHARDT, an individual,
Plaintiffs,

v.

MARK JAMES FERGUSON, an individual, SUSAN WILSON A.K.A. SUSAN GUNN, an individual; KELLY CHIEN, an individual, UNKNOWN PERSON A.K.A. FUDO, an individual, UNKNOWN PERSON A.K.A. MOREL Y DOTES, an individual and TIM SKIRVIN, an individual
Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF AND FOR DAMAGES

Plaintiffs, e360msight, 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, Kelly Chien, Unknown Person a.k.a. Fudo, Unknown Person a.k.a. Morety Dotes and Tim Skirvin, (collectively "Defendants"), state as follows:

NATURE OF THE ACTION
1. This is an action by e360, all internet marketing company. and Linhardt, its President for a preliminary and permanent injunction, as well as damages, against Defendants who have repeatedly made defamatory statements by referring to Plaintiffs as "spammers" and causing Plaintiffs to be listed as "spammers" resulting in their e-mail being blocked from the intended recipients and therefore costing Plaintiffs lost profits. The statements made by the Defendants constitute defamation per se and the resulting blocking Plaintiffs' e-mails constitutes tortious interference with a prospective economic advantage. Further, certain Defendants have actively and without justification interfered with existing contracts between Plaintiffs and third parties. This lawsuit seeks to enjoin that behavior and compensate Plaintiffs for the damage that Defendants have caused them.

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 at [redacted] 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 ("Susan") 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. Unknown Person a.k.a. Fudo ("Fudo") is believed to be a citizen of the United States and residing or working in the State of Washington making him a citizen of Washington.

8. Unknown Person a.k.a. Morely Dotes ("Dotes") is believed to be a citizen of the United States and residing or working in the State of Oregon making him a citizen of Oregon.

9. Tim Skirvin ("Skivin") is an individual who is a citizen of Plano, TX.

JURISDICTION AND VENUE

10. This Court has jurisdiction over this action pursuant to 28 USCS § 1332. The Plaintiffs are citizens of Illinois and on information and belief the Defendants are citizens of States other than Illinois and thus diversity of the parties is satisfied.

11. 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.

12. Plaintiffs seek in excess of $75,000 in damages.

FACTS COMMON TO ALL COUNTS

13. 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).

14. 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.

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

16. 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.

17. Plaintiffs have valid contracts with various third-parties to send e-mail on behalf of the third-parties.

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

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

20. 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.

21. Plaintiffs have lost clients and business opportunities as a result of Defendants' postings that Plaintiffs are spammers which resulted in Plaintiffs being b1acklisted and prevented Plaintiffs from sending e-mails.

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

Count I
Defamation Per Se Against Ferguson, Susan, Fudo, Skirvin and Chien

23-45. Plaintiffs restate and reallege paragraphs 1 through 22 above as paragraphs 23-45 of Count I.

46. Ferguson, Susan, Fudo, Skirvin and Chien have repeatedly referred to Plaintiffs as spammers through various online postings that can be accessed in the state of Illinois via the internet.

47. Ferguson, Susan, Fudo, Skirvin and Chien's references to Plaintiffs as spammers constitutes defamation per se because it is a violation of Federal law to send spam e-mail messages.

48. Ferguson, Susan, Fudo, Skirvin and Chien should be enjoined from making any further defamatory postings concerning the Plaintiffs.

WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against Ferguson, Susan, Fudo, Skirvin, and Chien and to award Plaintiffs an amount in excess of $75,000 to compensate Plaintiffs for Ferguson, Susan, Fudo, Skirvin and Chien's defamatory statements concerning Plaintiffs, an award of punitive damages for the defamatory statements and for injunctive relief barring Ferguson, Susan, Fudo, Skirvin and Chien from posting or otherwise putting on the internet that Plaintiffs are spammers and for any other relief that this Court deems just.

Count II
Tortious Interference With A Prospective Business Advantage
Against All Defendants

49-71. Plaintiffs restate and reallege paragraphs 1 through 22 above as paragraphs 49- 71 of Count II.

72. Defendants have forwarded e-mails received from Plaintiffs or Plaintiffs affiliates to e-mail blocking entities with the intent to have Plaintiffs' e-mail blocked as spam.

73. 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.

74. Defendants sent e-mails received from Plaintiffs to e-mail blocking entities with the intention of having e-mail sent by Plaintiffs blocked and thus interfered with Plaintiffs business and prospective business opportunities.

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

76. Plaintiffs lost business has resulted in lost income to Plaintiffs.

WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against all Defendants and to award Plaintiffs an amount in excess $75,000 to compensate Plaintiffs for Defendants' intentional interference with Plaintiffs' prospective economic advantage, punitive damages for Defendants' willful conduct and for any other relief that this Court deems just.

Count III
Tortious Interference With A Contract. Against Ferguson and Susan

77-99. Plaintiffs restate and reallege paragraphs 1 through 22 above as paragraphs 77-99 of Count III.

100. Plaintiffs have contracts with third parties to provide the necessary bandwidth to send their e-mails.

101. Ferguson and Susan know that Plaintiffs have contracts with third parties to provide bandwidth to Plaintiffs.

102. Ferguson and Susan have directly contacted the service providers providing bandwidth to Plaintiffs alleging that Plaintiffs are spammers with the intention that those scrvice providers would cease to provide bandwidth to Plaintiffs.

103. Certain third party service providers have terminated their contracts to provide bandwidth to Plaintiffs as a result of Ferguson and Susan's intentional interference with Plaintiffs' contracts.

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

WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against Ferguson and Susan and to award Plaintiffs an amount in excess of $75,000 to compensate Plaintiffs for Ferguson and Susan's intentional interference with Plaintiffs' contracts, punitive damages for the willful conduct of Ferguson and Susan and for any other relief that this Court deems just.

Plaintiffs request a jury trial.

Respectfully submitted,

E360Insight, LLC, and David Linhardt

By:__________________________
One of Their Attorneys

Bartly J. Loethen
Daniel J. Peters
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: [redacted]
Facsimile: [redacted]

Civil Cover Sheet

This is the Civil Cover Sheet in e360insight LLC., et al. v. Ferguson, et al.

Attorney Appearances

These are the attorney appearances for the parties.

Scheduling Order

Name of Assigned Judge or Magistrate Judge Amy J. St. Eve
Sitting Judge if Other than Assigned Judge
CASE NUMBER 07 C 1305
DATE 3/26/2007
CASE TITLE E360Insight, LLC vs. Mark James Ferguson, et al

Joint Status Report due by 4/18/2007. Initial Status hearing set for 4/23/2007 at 08:45 AM. in Courtroom
1241.
O[ For further details see text below.] Notices mailed by Judicial staff.
STATEMENT

INITIAL STATUS REPORT

This case has been assigned to the calendar of Judge Amy J. St. Eve. The parties are directed to meet pursuant to Federal Rule of Civil Procedure 26(f) and conduct a planning meeting. At least 3 business days prior to the initial status in this case, please file a joint initial status report (with a courtesy copy to Chambers in Room 1260), containing the following information:
1. The Nature of the Case
A. Identify the attorneys of record for each party, including the lead trial attorney.
B. State the basis for federal jurisdiction.
C. Describe the nature of the claims asserted in the complaint and any counterclaims.
D. State the major legal and factual issues in the case.
E. Describe the relief sought by the plaintiff(s).
2. Pending Motions and Case Plan
A. Identify All Pending Motions
B. Submit a proposal for a discovery plan, including the following information:
A. The type of discovery needed;
B. A date for Rule 26(a)(1) disclosures;
C. A fact discovery completion date;
D. An expert discovery completion date, including dates for the delivery of expert reports;
E. A date for the filing of dispositive motions; and
F. A date for the filing of a final pretrial order.
C. With respect to trial, indicate the following:
A. Whether a jury trial is requested;
B. The probable length of trial; and
C. When the case will be ready for trial.
3. Consent to Proceed Before a Magistrate Judge
C Indicate whether the parties consent unanimously to proceed before a Magistrate Judge.
4. Status of Settlement Discussions
A. Indicate whether any settlement discussions have occurred;
B. Describe the status of any settlement discussions; and
C. Whether the parties request a settlement conference.

Docket Entry

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
E360Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:07−cv−01305
Honorable Amy J. St. Eve
Mark James Ferguson, et al.
Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Monday, April 23, 2007:

MINUTE entry before Judge Amy J. St. Eve :Case set for status, parties not present. Counsel for Plaintiff called to indicate a voluntary dismissal will be filed. Mailed notice(tmh, )

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.

Post Game Wrap Up

Well, they say that all good things must come to an end. And so it is with this incredibly stupid case. Except that it's not over. Where the Spamhaus case got removed to federal court, Linhardt is dismissing this one in order to refile it in state court thus making everything old new again. Don't worry, we're going to try to follow that one, too.

But now it's time for the post-game wrap-up for this part of the program. We're going to try to figure out what happened and why. And, even better, all we have to work with is the Original Complaint.

To start with, I have to admit that I'm not quite sure what Linhardt's point was in filing this case. Maybe he wanted to play the part of the crying little kid who screams "Mommy, make the mean kids stop picking on me!"

While I'm sure that was a big part of it, let's go back and see what the tea leaves in the cup tell us now that it's, well, not so much drunk as evaporated.

So, let's start with the First Count. This portion of the lawsuit is for "defamation per se". In order to understand "defamation per se", you first need to understand the elements involved in defamation. Defamation is defined as:

1. an intentionally false communication
2. that is communicated to another without privilege
3. that causes damage to the Plaintiff's reputation.

There is also a special class of defamation called "defamation per se". Defamation per se deals with the third element by saying that the damage to reputation is so obvious and egregious that the Plaintiff doesn't need to prove that the statement harmed his reputation. So, I can see where Linhardt would think that being called a spammer on a usenet newsgroup dedicated to stopping spam would be defamatory per se (unless, of course, e360Insight is sending mail to people who have not requested it).

The only problem is that Linhardt claims that it is because it is a violation of federal law to spam, and it is not. Mainly, all that the CAN-SPAM Act prohibits is (1) false or misleading information, and (2) mailing after a request to stop. It, most assuredly, does not prohibit spamming.

I'm guessing (based on paragraphs 72 through 76 of the Original Complaint and a brand-new Ken Magill article) that he might even have thought that his getting listed by various blocklists (like Spamhaus) were caused by usenet. And, as it turns out this bit is what the lawsuit is really all about. It looks like he thinks that he can concoct jurisdiction in the Spamhaus case by showing that [HORROR OF HORRORS] Spamhaus gets some of its information from people in the United States. Imagine that! People in the United States not only use Spamhaus's lists, but they sometimes will give information to Spamhaus as well. But, I don't see how having a group of random posters to a usenet newsgroup send information to Spamhaus helps his case, and really the place to find this stuff out is in discovery in the Spamhaus case.

It's Count 3 that makes me think he's just being juvenile. Based upon complaints sent to his service providers, his practices were looked into and he had his service terminated. Oh, boo-hoo!

Motion to Dismiss

In a lawsuit, there is nothing sweeter for a defendant that what you see here: A Motion to Dismiss. Well, ok, there would be a Motion to Dismiss with Prejudice (meaning that the case cannot be refiled).

Anyway, it appears that Mr. Linhardt has decided to move this over to state court (which I think we'll gratuitously call Ferguson II). So, he's dismissing this one.

=====================================
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, KELLY CHIEN, an individual,
UNKNOWN PERSON A.K.A. FUDO, an
individual, UNKNOWN PERSON A.K.A.
MORELY DOTES, an individual and TIM
SKIRVIN, an individual

Defendants.

PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL

NOW COMES the Plaintiffs in the above-captioned matter, e360Insight, LLC and
David Linhardt, by and through their attorneys, pursuant to F.R.C.P. 41(a), moves this
Honorable Court for entry of an order voluntarily dismissing their claim filed against
Defendants.

Respectfully submitted,

E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters
One of Their Attorneys

Bartly J. Loethen
Daniel J. Peters
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Attachment	Date	Size
MotionDismiss.pdf	06/28/09 1:05 pm	6.06 KB

Docket Entry Dismissing Case

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division

E360Insight, LLC, et al.

Plaintiff,

v.

Mark James Ferguson, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, May 8, 2007:

MINUTE entry before Judge Amy J. St. Eve : MOTION by Plaintiff E360Insight, LLC to dismiss voluntarily [8] is granted, pursuant to F.R.C.P. 41(a), this case is voluntarily dismissed. Civil case terminated. Mailed notice(tmh, )

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.

Attachment	Date	Size
MotionDismissOrder.pdf	06/28/09 1:05 pm	4.16 KB