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.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
PLAINTIFF’S MOTION FOR RULE TO SHOW CAUSE FOR
DEFANDANT’ VIOLATION OF TEMPORARY RESTRAINING ORDER
Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this court issue a rule to show cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), should not be held in contempt for its failure to comply with the July 20, 2006 Temporary Restraining Order (TRO) entered by the Circuit Court of Cook County. In support of this motion Plaintiffs state:
1. On July 20, 2006 the Honorable Phillip Bronstein, Judge of the Circuit Court of Cook County, issued a Temporary Restraining Order (TRO) against Defendant. (A true and correct copy of this Order is attached to this Motion as Exhibit A.)
2. On July 21, 2006 Defendant filed an Answer in the Circuit Court and also removed the matter to this Court pursuant to 28 U.S.C. § 1441.
3. On July 24, 2006 Defendant removed the then existing references to Plaintiffs e360Insight LLC and David Linhardt from its website.
4. On August 17, 2006 counsel for Defendant, Evan Brown, of Hinshaw & Culbertson, LLP, informed Plaintiffs’ counsel that: 1) He and his firm were withdrawing from representing Defendant because Defendant was releasing the Hinshaw & Culbertson firm and, to his knowledge, Defendant did not intend to obtain new counsel; 2) Defendant was seeking to withdraw its Answer to the Amended Complaint filed in the Circuit Court before Defendant removed this matter to this Court; and 3) Defendant would not be providing responses to the discovery propounded by Plaintiffs.
5. Also on August 17, 18 and 19, 2006 Defendant placed new references to Plaintiffs, specifically “E360 Insight”; E360Insight: Ravinia Hosting Company LLC”; “E360 Insight / e360data.com”; “e360Insight:bargaindepot.net / bargainshoppecorp.com”; “Discount Accessories aka e360data.com”; “Northgate Internet Services aka e360data.com”; and “E360 Insight / e360data.com: home base” on the Spamhaus website in contravention of the Circuit Court’s TRO.
6. Plaintiffs respectfully request that a Rule to Show Cause be issued against Defendant for its failure to comply with TRO, specifically by Defendant’s listing of e360 on the following Spamhaus webpages:
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL26394
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45581
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45582
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45583
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45584
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45585
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45586
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45587
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45648
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45649
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45651
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45652
http://www.spamhaus.org/sbl/sbl.lasso?query=SBL45685
(True and correct copies of these pages are attached to the accompanying Affidavit of David Linhardt as Exhibit B. See also ¶23 to the Linhardt Affidavit)
7. The TRO requires that defendant remove all listings for plaintiffs from Spamhaus’ website. In addition, any future postings for e360 must be done in compliance with Spamhaus criteria.
8. As evidenced from the accompanying Affidavit Of David Linhardt, Spamhaus could not have complied with its own criteria for listing e360 by virtue of the listings. Because e360 is not engaged in any illegal activity, violating an ISP’s Acceptable Use Policy, Terms Of Service, or other ISP policies or procedures, or has been removed from any - -let alone three ISPs - - there is no legitimate reason for Defendant to list e360Insight or any of the other companies owned by David Linhardt on the Spamhaus website.
9. The webpages referenced in paragraph 23 are false in the following specific ways. SBL45581, SBL45582, SBL45583, SBL 45584, SBL45648 and SBL45649 are all used to send messages to those “opting in” to receive messages from a partner of e360 or one of the other listed entities. All of these listings comply with CAN-SPAM, and none of these listings have ever been associated with Brian Haberstroh or Atriks.
10. SBL45585, SBL45586, and SBL45587 were never used or controlled by Mr. Linhardt or any of his companies and were instead registered in error to Discount Accessories by the ISP. There is no possible way these Internet addresses were blocked due to e360 (or another entity owned by Mr. Linhardt) sending email messages, as Mr. Linhardt has never had the ability to send email from such Internet addresses.
11. SBL45651 is a listing the contains only names that are “double confirmed” such that the user has elected, by clicking a link for a second time to provide an additional affirmative consent to receive the message. Thus, these listings conform to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, they conform to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. None of these listings have ever been associated with Brian Haberstroh or Atriks.
12. SBL45652 is for an IP address that e360 has not owned or controlled since at least July 24, 2006.Thus, the listing referenced could not have arisen as is indicated in the listing of August 18, 2006 as alleged by Defendant
13. SBL45685 references the static IP address for Mr. Linhardt’s personal cable modem located at his house. It is not used for transmitting any messages pertaining to e360 business except internally and no bulk email has ever been sent from this address. Thus, this listings conforms to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, it conforms to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website. This IP address has never been associated with Brian Haberstroh or Atriks.
14. SBL26394 conforms to not only CAN-SPAM as well as all ISP Acceptable Use Policy, Terms Of Service and other policies and procedures, it conforms to Spamhaus’ own guidelines for what are acceptable email transmissions that are exempt form listing on the Spamhaus website.
15. The webpages referenced in Exhibit C to the Linhardt Affidavit are all false because they connote that Discount Accessories aka e360 is engaged in activity that is illegal, violates ISP’s Acceptable Use Policy, Terms Of Service, and other policies or procedures. Plaintiffs do not engage in any such activity nor do any of the companies that they are affiliated with.
16. The webpages referenced in Exhibit C to the Linhardt Affidavit also connote that Plaintiffs and the companies that they are affiliated with are “spammers”, which they are not. As Mr. Linhardt avers in his accompanying Affidavit: “In my professional experience, there is nothing more damaging to an Internet marketing business than to be labeled a ‘spammer’”. (See Linhardt Affidavit at ¶ 18.)
17. The false listings and negative connotations arising therefore are jeopardizing Plaintiffs’ data lines, their relationship with our ISPs, and their ability to earn revenue from legitimate business activity.
18. Defendant’s new listings of e360 on the Spamhaus website are clearly part of Defendant’s overall disregard for the Laws of the United States and this Court’s enforcement of those laws, which includes withdrawing its present counsel, without replacing counsel, withdrawing its answer and failing to respond to written discovery, ordered by the Circuit Court to be expedited as part of its TRO.
19. Defendant’s failure to respond to the written discovery is the subject of a separate Motion for Rule to Show Cause, which is being noticed to be heard by this Court concurrently with this Motion.
20. By this Motion, Plaintiffs e360 and David Linhardt respectfully request that the Court issue a Rule to Show Cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), should not be held in contempt for its failure to comply with the July 20, 2006 Temporary Restraining Order (TRO) entered by the Circuit Court of Cook County.
21. The Court should also Order Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., to immediately remove any and all references to Discount Accessories aka e360data.com, e360Insight LLC, e360 in any other iteration, David Linhardt and any company owned by David Linhardt.
22. The Court should also sanction Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., in a manner deemed appropriate by the Court for Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.’s failure to abide by the terms of the Circuit Court’s TRO issued on July 20, 2006.
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23. Plaintiffs respectfully submit that all forms of sanctions should be considered, including monetary sanctions, issue sanctions and terminating sanctions, for Defendant The Spamhaus Project, aka The Spamhaus Project Ltd.’s continuing violations and abusive conduct.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Kristen M. Lehner
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
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CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2006 I electronically filed the foregoing document with the Clerk of the United States District Court for the Northern Division of Illinois using the CM/ECF system which will send notification of such filing to the following:
Evan D. Brown [ebrown@hinshawlaw.com]
Andrew B. Cripe [acripe@hinshawlaw.com]
Joseph L. Kish [jkish@synergylawgroup.com]
Kristen M. Lehner [klehner@synergylawgroup.com]
And I hereby certify that I have mailed by the United States Postal Service the document to the following non CM/ECF participants: (no manual recipients).
________/s/ Kristen M. Lehner__________
Kristen M. Lehner