Complaint

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
-2-
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.
-3-
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
-4-
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
-5-
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
-6-
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
-7-
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))

-8-
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.
-9-
§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
-10-
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).

-11-
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	06/28/09 1:04 pm	233.57 KB

Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. FERRON,
Plaintiff,

vs.

e360Insight, L.L.C., el al.,
Defendants,

MOTION OF DEFENDANTS TO DISMISS COMPLAINT

NOW COME DEFENDANTS, e360lnsight, LLC and David Linhardt, by and through counsel, and, pursuant to Fed. R. Civ. Proc. 12(b)(2) move this Court to dismiss Plaintiff's Complaint against them. The reasons for this Motion are set forth in the accompanying Memorandum in Support.

-2-
MEMORANDUM IN SUPPORT
I. INTRODUCTION

Plaintiff's Complaint names as defendants both a foreign limited liability company and its President, individually. Pursuant to the complaint, Linhardt is an owner and officer of Defendant e.3601nsight, LLC. e360lnsight, LLC, is an Illinois limited liability company. Linhardt is a resident of the State of Illinois. Pursuant to Ohio's long-ann statute, R.C. 2307382 and Fed. R. Civ. Proc. 12(B)(2), the Court lacks personal jurisdiction over either of the defendants. As such, Plaintiff's Complaint against them must be dismissed.

II. FACTS

Pursuant to Plaintiff's Complaint, Plaintiff received numerous emails allegedly sent by defendants, offering deeply discounted prices for various consumer goods and then providing knock-offs of those items and using the word "free" in a consumer transaction and failing to set forth all of the terms and conditions of the offer in type size half as large as the word, "free." (Complaint, at para. 14-15). The complaint alleges that both the company and Linhardt are suppliers and that both caused to be transmitted the large quantity of emails.

Plaintiff resides in Ohio. Defendant e3601nsight, LLC, is an Illinois limited liability company with its principal place of business in Illinois (see Affidavit of Dave Linhardt, attached hereto). E360Insight has no offices in Ohio (Linhardt Affidavit, at 2). Any contacts with Ohio by e3601nsight are fortuitous and are insufficient to establish minimum contacts under Ohio's long-arm statute. Linhardt is an individual who resides in Illinois (Linhardt Aff., at 4), Linhardt does not own any businesses, conduct any business, or own any real estate in Ohio (Linhardt Aff., at 4).

-3-
III LAW AND ARGUMENT

A. Standard of Review

An appellate court reviews a district court's dismissal for lack of personal jurisdiction de novo. The burden of establishing jurisdiction generally lies with the Plaintiff. American Greetings Corp. v.. Cohn, 839 F. 2d, 1164, 1168 (6th' Cir. 1988). When. jurisdiction is challenged, the plaintiff may not rely solely on the pleadings in the case; rather, he must show by affidavit or other documentary evidence specific facts establishing personal jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6t" Cir. 1991). Jurisdiction may be either general or specific. Bird v. Parsons, 289 F.3d 865, 87.3 (6"' Cir. 2002). General jurisdiction exists over a defendant when his or its "contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal .jurisdiction over the defendant even if the action is unrelated to the defendant's contacts with the state." Id. (citing Third Nat '1 Bank in Nashville v, WEDGE Group, Inc.., 882 F.2d 1087, 1089 (6"' Cir. 1989)). Specific .jurisdiction exists if the defendant's contacts are related to the case at hand. Here, neither general nor specific, jurisdiction exists and Plaintiff will not be able to meet his burden of proof to establish personal jurisdiction over either defendant.

B. Neither General Nor Specific Jurisdiction Exists.

There is a two-step analysis to determine personal jurisdiction under the laws of Ohio. First, whether the state's long-arm statute and the applicable civil rule confer personal; Jurisdiction; and second, whether granting jurisdiction under the statute and rule would deprive the defendant of the right to due process of law pursuant to the U.S. Constitution. Oasis Corp. v. Judd, 132 F.Supp.2d 612 (S.D. Ohio 2001).
Section 2307.382 of the Ohio Revised Code, provides, in pertinent part:

-4-
(A) A court may exercise personal,jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;

(C) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.

The Sixth Circuit has recognized that Ohio's long-arm statute does not reach the full limits of the federal constitution. Bird, supra, 289 F.3d, at 871.

In the instant case, the complaint against defendants is based upon the Ohio Consumer Sales Practices Act (Revised Code section 1.345.02) and Revised Code Section 2307.64 - a state statute which governs electronic advertisements. While the complaint claims that Defendants sent him numerous emails offering products at discounted prices or advertised them as free in violation of the Ohio Consumer Sales Practices Act, noticeably absent from Plaintiff's complaint is any allegation that Plaintiff entered into any business transactions with Defendants. Moreover, there is no basis under either statute to include David Linhardt as a defendant in the action.

In order for a website or internet activity to create personal jurisdiction, it must satisfy the three-prong test established by the Sixth Circuit in Southern Machine Co. v Mohasco Industries, Inc,, 401 F.2d 374, 381 (6th Cir. 1968). That test is, as follows: (1) whether the website constitutes purposeful availment, (2) whether it is the basis of the cause of action against the defendant, and (3) whether jurisdiction over, the defendant is reasonable.. "The operation of an internet website can constitute the purposeful availment of the privilege of acting in a forum state.. , if the website is interactive to a degree that reveals specifically intended interaction with
-5-
residents of the state." Bird, supra, at 874. There is no allegation that the Defendant, E360Insight's website is interactive, at all, or that its website is specific to interact with residents of the State of Ohio. While Plaintiff's internet service provider's are in Ohio and Plaintiff is a resident of Ohio, Plaintiff can access his email or Defendant's website from anywhere in the country; if not the world. As such, whether Defendant reads his email or accesses the internet while sitting at home in Ohio, on vacation in Florida, on business in New York, or anywhere else is simply irrelevant, The relevant issue is whether Defendants intended to specifically interact with residents of Ohio. The answer is "no." (Lirihardt Aff, at 5). Most email addresses do not divulge the location of the email addressee. For instance, Plaintiff's email address jferron@ferronlaw.com provides no indication where his email address may be. There is, therefore, no revelation that contact with residents of the State of Ohio is intended by Defendants. As such, neither the first nor third prong of Southern Machine is met in the instant case.

C. Personal Jurisdiction Not Consistent With Due Process

If authority exists under Ohio's long-arm statute to exercise jurisdiction over Defendants, which it does not, the Court must also consider whether the jurisdiction granted under the longarm statute is consistent with "traditional notions of fair play and substantial justice." International Shoe Co. v Washington, 326 U.S. 310, 316 (1945). In order to meet the International Shoe standard, defendant must have engaged in "continuous and systematic" conduct in the forum state. Id See also, Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 6th Cir. 1996). Even if Plaintiff received numerous email messages from Defendant's website, hailing Defendants into Court in Ohio is not reasonable and offends the notions of fair play and substantial justice, This is because the email addresses to which communications are
-6-
sent are automatically sent via internet (interstate commerce), with no specific intent to send advertisements to Ohio residents. When the defendant's alleged contact with the forum state occurs via the internet, the plaintiff faces an initial hurdle in showing where this internet conduct took place for .jurisdictional purposes. The Sixth Circuit holds that the operation of a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction, even where the website enables the defendant to do business with residents of the forum state, because such activity does not approximate physical presence within the state's borders. The Cadle Company v. Schlichtntann, 123 Fed. Appx. 675, 677. Similarly, the automated emails merely present an opportunity to do business with persons in every state, and, in fact, in different countries; and should not and does not constitute physical presence within the State of Ohio, As is averred by Mr, Linhardt, any contact with Ohio is merely fortuitous and unintended (Linhardt Aff., at 5).

D. Personal Jurisdiction Over Linhardt Does Not Exist.
Even if this Court determines that personal jurisdiction exists over defendant E:360Insight, LLC, there is no personal jurisdiction over David Linhardt and the claims against him must be dismissed. Analyzing jurisdiction relative to Linhardt, there is no allegation or evidence that Linhardt himself transacted business in Ohio, personally caused the Plaintiff injury in Ohio, or any other element listed in Ohio's long-arm statute. In fact, the affidavit of Linhardt reflects that Linhardt does not live, work, transact business, or own real estate in Ohio. He is a resident of Illinois. Based upon Southern Machine, supra, there is no basis to assert personal jurisdiction over Linhardt.

Even if personal jurisdiction exists over Linhardt, which it does not, Plaintiff cannot establish that Linhardt is a supplier under Section 1345.02 of the Revised Code, as alleged by
-7-
Plaintiff. Nor has Plaintiff alleged in his complaint facts sufficient to pierce the corporate veil of E360Insight, LLC and include Linhardt as a Defendant. Without either of these bases, the claims against Linhardt personally must be dismissed.

Revised Code section 1345.01 defines a supplier as:

(C) "Supplier" means a seller, lessor, assignor, franchisor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not the person deals directly with the consumer. If the consumer transaction is in connection with a residential mortgage, "supplier" does not include an assignee or purchaser of the loan for value, except as otherwise provided in section 1.345.091 of the Revised Code. For purposes of this division, in a consumer transaction in connection with a residential mortgage, "seller" means a loan officer, mortgage broker, or nonbank mortgage lender.

Other than the bare assertion that defendants are suppliers, there is no allegation that Linhardt sent or caused to be sent, on behalf of himself or E360Insight, any communication to Plaintiff.

Even if E360Insight, LLC, is a supplier, which it is not, its member and officer is not necessarily a supplier for purposes of the statute. Nor is a member or officer of a business entity personally liable for the acts of such entity. Thus, assuming personal jurisdiction over E3601nsight exists, and assuming further that E360Insight is a supplier, Plaintiff's complaint still fails to allege facts sufficient to include Lifflhardt personally.

Generally, corporate officers and shareholders are not liable for the debts of their entities. See, eg. Presser, Piercing the Corporate Veil (1991) 1-4. A shareholder or officer of a corporation may be personally liable for violations of the Ohio Consumer Sales Practices Act but only if the Plaintiff can meet the elements necessary to pierce the corporate veil. State ex. Rel. Fisher v. Warren Star Theater, 84 Ohio App.3d 435, 44.3 (Ohio Ct. App_ 1992). In the instant case, the elements to pierce the corporate veil are not present and have not been alleged in Plaintiff's Complaint.

-8-
In the Sixth Circuit, the corporate form may be disregarded and individual shareholders held liable for corporate misdeeds when (1) control over the corporation by those to be held liable is so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (.3) injury or unjust loss resulted to the plaintiff from such control and wrong. Belvedere Condominium Unit Owners' Association v. R.E. Roark Companies, Inc,, 67 Ohio St. 3d 274, 289 (1993).

Here, Plaintiff has not alleged any of the three Belvedere elements and, as such, there is simply no basis for piercing the corporate veil of E360Insight, LLC, to reach Linhardt. There has been no allegation and certainly no evidence presented that E.360Insight is controlled by Linhardt such that the entity has no separate mind, will, or existence of its own, Plaintiff has not made sufficient allegations to warrant piercing the corporate veil, As such, Linhardt is an improper party defendant.

IV. CONCLUSION

For the foregoing reasons, Plaintiff's Complaint Against Defendants must be dismissed.

Respectfully Submitted,
S/Karen S. Hockstad
Karen S. Hockstad (0061.308)
Hockstad Law Office, Ltd.
5003 Horizons Drive, Suite 200 Columbus, Ohio 43220
(614) 360-1048 (telephone) (614) 451-3156 (facsimile)

Lead Attorney to Be Noticed on Behalf of
Defendants E.360Insight, LLC and David Linhardt

Attachment	Date	Size
MotDismissJurisdiction.pdf	06/28/09 1:04 pm	332.96 KB
MotDismissJurisdictionLinhardtAff.pdf	06/28/09 1:04 pm	23.67 KB

Answer

Having lost their Motion to Dismiss, Linhardt and e360 have filed their Answer.

In a fun little read, they claim that "marketing is not solicitation" (paragraph 34), a lack of knowledge as to what they were doing (paragraph 46), and a lack of due process (paragraph 48).

Also, Karen Hockstad appears to have joined Shumaker, Loop & Kendrick, LLP where she is a partner in the corporate, tax, and litigation practice groups.

======================================
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. FERRON
Plaintiff

vs.

E360Insight, LLC, et al.,
Defendants.

ANSWER OF DEFENDANTS TO PLAINTIFF’S COMPLAINT

NOW COME DEFENDANTS, E360INSIGHT, LLC, AND DAVID LINHARDT, by and through counsel, and answer Plaintiff’s complaint, as follows:

1. Defendants admit that John W. Ferron is a person with his principal place of business in Columbus, Ohio, but denies that Plaintiff is a “consumer” for purposes of this litigation.

2. Defendants admit that E360Insight, LLC is an Illinois limited liability company but deny the remaining allegations in paragraph 2 of Plaintiff’s complaint.

3. Defendants admit the allegations set forth in paragraph 3 of Plaintiff’s complaint.

4. Defendants deny the allegations set forth in paragraph 4 of Plaintiff’s complaint.

5. Defendants admit the allegations set forth in paragraph 5 of Plaintiff’s complaint.

6. Defendants deny the allegations set forth in paragraph 6 of Plaintiff’s complaint.

7. Defendants are without information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 7 of Plaintiff’s complaint, and therefore, deny same.

-2-
8. Defendants admit the allegations set forth in paragraph 8 of Plaintiff’s complaint.

9. Defendants deny the allegations set forth in paragraph 9 of Plaintiff’s complaint.

10. Defendants admit the allegations set forth in paragraph 10 of Plaintiff’s complaint.

11. Defendants deny the allegations set forth in paragraph 11 of Plaintiff’s complaint.

12. Defendants deny the allegations set forth in paragraph 12 of Plaintiff’s complaint.

13. Defendants deny the allegations set forth in paragraph 13 of Plaintiff’s complaint.

14. Defendants deny the allegations set forth in paragraph 14 of Plaintiff’s complaint.

15. Defendants deny the allegations set forth in paragraph 15 of Plaintiff’s complaint.

16. Defendants deny the allegations set forth in paragraph 16 of Plaintiff’s complaint.

17. Defendants deny the allegations set forth in paragraph 17 of Plaintiff’s complaint.

18. Defendants deny the allegations set forth in paragraph 18 of Plaintiff’s complaint.

19. Defendants incorporate the preceding paragraphs as if fully restated herein.

20. Defendants deny the allegations set forth in paragraph 20 of Plaintiff’s complaint.

21. Defendants deny the allegations set forth in paragraph 21 of Plaintiff’s complaint.

22. Defendants deny the allegations set forth in paragraph 22 of Plaintiff’s complaint.

23. Defendants deny the allegations set forth in paragraph 23 of Plaintiff’s complaint.

24. Defendants incorporate the preceding paragraphs as if fully restated herein.

25. Defendants deny the allegations set forth in paragraph 25 of Plaintiff’s complaint.

26. Defendants deny the allegations set forth in paragraph 26 of Plaintiff’s complaint.

AFFIRMATIVE DEFENSES
27. Defendants incorporate the preceding paragraphs as if fully restated herein.

28. Plaintiff is not a consumer for purposes of the CSPA.

-3-
29. Defendants are exempt from application of the CSPA as a publisher or disseminator of electronic mail.

30. The Emails at issue were not made for purposes that are primarily personal, family or household.

31. There was no consumer transaction.

32. There was no consumer transaction with an individual.

33. The Electronic Mail Advertising Act, R.C. 2307.64(B) is preempted by the Controlling the Assault of Non-Solicited and Pornography Marketing Act (2003).

34. The emails at issue constitute mass marketing and are therefore, not solicitations.

35. :Neither Defendant is a supplier.

36. Defendants did not commit any alleged or deceptive act or practice.

37. Defendants are not “senders” as that term is defined by CAN-SPAM.

38. Plaintiff has failed to mitigate his damages.

39. Plaintiff has solicited the emails alleged to be received.

40. There is a pre-existing relationship between Plaintiff and the email advertisers.

41. Public policy bars multiple recoveries for the same act or practice.

42. Plaintiff cannot stack damages.

43. Plaintiff’s complaint fails to state a claim upon which relief may be granted.

44. Plaintiff’s claims are barred by the equitable doctrines of estoppel and unclean hands.

45. In any event, Plaintiff is not entitled to attorney’s fees as his is a pro se Plaintiff.

46. Defendants did not act knowingly.

47. Plaintiff’s claims are pre-empted by the dormant Commerce Cause.

-4-
48. Plaintiff’s claims are barred by the Due Process Clause.

49. Plaintiff’s claims are frivolous and in violation of Fed. R. Civ. Proc. 11 and Revised Code 2323.51.

50. Defendants reserve the right to add or supplement these affirmative defenses.

WHEREFORE, having fully answered Plaintiff’s complaint, Defendants pray that this Court will dismiss Plaintiff’s complaint, and award them costs and fees associated with defending this action.

Respectfully submitted,

SHUMAKER, LOOP & KENDRICK, LLP

/s/Karen S. Hockstad
Karen S. Hockstad (0061308)
41 South High Street, Suite 2400
Columbus, OH 43215
Telephone (614) 628-4427
Fax: (614) 463-1108
[redacted]
Lead Attorney for Defendants

Attachment	Date	Size
Answer.pdf	10/20/08 1:54 pm	20.32 KB

MOTION for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. FERRON
Plaintiff,

vs.

E360Insight, LLC, et al.,
Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants hereby move the Court for an Order granting Summary Judgment in their favor as to all allegations set forth in the Complaint pursuant to Fed. R. Civ. Proc. 56(C). The bases for Defendants’ Motion are set forth in the Memorandum in Support attached hereto.

Respectfully submitted,

SHUMAKER, LOOP & KENDRICK, LLP

/s/Karen S. Hockstad____________
Karen S. Hockstad (0061308)
41 South High Street, Suite 2400
Columbus, OH 43215
Telephone (614) 628-4427
Fax: (614) 463-1108
[redacted]
Lead Attorney for Defendants

-2-
MEMORANDUM IN SUPPORT

I. INTRODUCTION

In this action, Plaintiff seeks to recover over Three Million Dollars in statutory damages under the Ohio Consumer Sales Practices Act (“CSPA”) and the Electronic Mail Advertising Act (“EMAA”) based on the mere receipt of various mass marketing emails that Plaintiff and his law firm actively solicited for the purpose of filing this lawsuit and inflating Plaintiff’s potential damages. Plaintiff, John W. Ferron, is an attorney practicing law in Columbus Ohio who has, over the past several years, brought many lawsuits in State and Federal Court on his own behalf and on behalf of others pursuant to the CSPA. A list of his CSPA lawsuits is attached hereto as Exhibit A.

Courts in Ohio have sternly criticized Plaintiff’s pattern of filing these frivolous consumer protection lawsuits and unabashed practice of soliciting the very transactions complained of in those cases. Last year, an Ohio appellate court sanctioned Plaintiff in an action asserting claims under the CSPA, chastised Plaintiff and his stand-in client for “purposely” engaging in the credit card transactions giving rise to the CSPA claims in that case, and cited as “particularly disturbing” the fact that Plaintiff, “an attorney, licensed to practice in this state and sworn as an Officer of the Court, would facilitate this type of exploitative litigation to the detriment of the defendant, the court system, and the practice of law in general.” Burdge v. Supervalu Holdings, Inc., 2007 Ohio 1318 (Ohio App. 1st Dist. 2007) (attached). This year, a Delaware Court held that Plaintiff and his firm “have based their practice upon seeking out and prosecuting potential violations of Ohio Consumer Sales Practices Act. This is evidenced by the fact that a significant number of the cases relied upon by the Plaintiff were cases in which the
-3-
Plaintiff was either the movant or counsel representing the movant in a CSPA case.” See Exhibit B, attached hereto, at 14-15.

As Ohio courts have recognized, Plaintiff’s frivolous tactics are wholly at odds with the purposes and requirements of the Ohio Consumer Sales Practices Act. Plaintiff should not be rewarded for his bad faith conduct in this case. Adding to this frivolity is the fact that neither Defendant provides the services or goods advertised in any email, never created any of the emails, and was not the sender of the emails in question. Defendants are exempt from liability under both the CSPA and EMAA, and federal law further preempts the EMAA.

II. STATEMENT OF FACTS

A. Procedural History

In December, 2007, Plaintiff Ferron sued Defendants in Franklin County Common Pleas Court for the alleged receipt of emails sent to him. The case was removed and recently, the Court denied Defendants’ Motion to Dismiss based on personal jurisdiction (doc. 36). The Complaint alleges violations of R.C. 1345.02(A) by, using the word “free” in email advertisements, among other things. Plaintiff also seeks declaratory relief that Defendants failed to comply with the requirements of R.C. 2307.64(B)(1), better known as the EMAA.

B. The Emails at Issue

Plaintiff produced a diskette to Defendants during jurisdictional discovery containing approximately 882 emails that he claims were received by him and which he claims were sent by or on behalf of Defendants. David Linhardt reviewed each and every email contained on the diskette (Linhardt Aff., at 3). Every email produced was sent to the email address jferron@ferronlaw.com. (Linhardt Aff., at 4). Plaintiff claims that each email contains several violations of the CSPA. He requests this Court to award him damages of $200 for each
-4-
violation of each and every email he claims was sent to him by or on behalf of Defendants. Yet, analysis of the emails by Mr. Linhardt reflects that of the 882 emails submitted during discovery, only 37 contained the word “free” and only 68 more contained the word “complimentary.” Plaintiff only opened 66 messages and clicked on the hyperlink only 16 times. (See Exhibit C). This is significant because without clicking on a hyperlink, Plaintiff cannot verify to where the hyperlink directed him. Where the hyperlink directs him reflects the real sender of the email (Linhardt Aff., at 5). Moreover, Defendants have all contact information for Plaintiff in their data base, including Plaintiff’s IP address (Linhardt Aff., at 6; see Exhibit D). This is concrete evidence that Plaintiff made a request to be put on a “subscriber” list for at least one of the Defendants’ clients (Linhardt Aff., at 6).

Further, Linhardt’s review of the emails reflects that neither e360Insight, LLC, nor Linhardt were the “sender” of any email messages submitted by Plaintiff. (Linhardt Aff., at 8). Linhardt relies on the generally accepted definition of “sender” as defined in the ‘‘Controlling the Assault of Non- Solicited Pornography and Marketing Act of 2003,’’ better known as “CAN-SPAM.” In paragraph (16)(A), CAN-SPAM states that the term “sender,” when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message.” (emphasis added). The products or services promoted in the email messages are not products or services provided by either defendant. (Linhardt Aff., at 7). Neither defendant has ever sent email messages to any of Plaintiff’s email addresses promoting either defendants’ products or services. (Linhardt Aff., at 7,8). E360 is a publisher and list manager of third-party lists. (Linhardt Aff.,, at 8) It provides advertising services to its clients and is similar to a newspaper or magazine publisher. (Linhardt Aff., at 8). E360’s advertisers pay to send their advertisement
-5-
to e360’s managed list to promote their products and services. (Linhardt Aff., at 8). There is no basis for finding Linhardt to be a sender either as he has not sent emails for his own benefit to anyone, including defendant. (Linhardt Aff., at 7).

III. LAW AND ARGUMENT

A. Standard of Review

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). “A dispute over a material fact is not considered ‘genuine’ unless a reasonable jury could return a verdict for the nonmoving party.” Shamaeizadeh v. Cunigan, 338 F.3d 535, 544 (6th Cir. 2003).

As set forth below, Defendants are entitled to judgment in their favor as a matter of law.

B. Defendants are Exempt from the CSPA

In Plaintiff’s First and Second Causes of Action, Plaintiff alleges violations of the CSPA arguing that the defendants committed “unfair and deceptive acts or practices” pursuant to Ohio Rev. Code §1345.02(A) and further defined by Ohio Admin. Code §§109:4-3-04 and 109:4-3-06. (doc. 3, at 15). Plaintiff claims that the defendants violated the CSPA by creating or sending email advertisements that improperly use the word “free” or improperly refer to a “prize.”

-6-
However, Ohio Rev. Code §1345.12 provides an exemption for publishers and/or disseminators so long as they are without knowledge that the published information violates the CSPA. R.C. §1345.12 provides an exemption for “[a]ny publisher, broadcaster, printer or other person engaged in the dissemination of information…insofar as the information or matter has been disseminated or reproduced on behalf of others without knowledge that it violated sections 1345.01 to 1345.13 of the Revised Code…”

Defendant e360Insight, LLC, is a publisher. Like a newspaper or magazine, e360Insight collects opt-in subscriptions from individuals who wish to receive email messages. (Linhardt Aff., at 8). E360Insight then sells advertising services to companies who wish to promote their products and services (Linhardt Aff., at 8). E360Insight is simply the middle-man or conduit between a defined audience of opt-in members and the advertisers who are lawfully promoting their products and services. (Linhardt Aff., at 8). E360Insight’s publications consist of a series of free email newsletters sent to its subscribers upon their request, until the subscriber cancels the subscription through a simple one-click removal mechanism. E360Insight does not generate the message content contained in the advertising message. (Linhardt Aff., at 8-11). It obtains the advertising content from its advertisers similar to a newspaper or magazine. (Linhardt Aff., at 8-11).

Neither E360Insight, LLC nor David Linhardt meet the definition of “sender” as defined by CAN-SPAM, either. CAN-SPAM defines the SENDER of a commercial email message as follows.

“(16) SENDER.—
(A) IN GENERAL.-... the term ‘‘sender’’, when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message. This definition was reaffirmed and clarified by the FTC in their recently adopted Definitions and Implementation Under the CAN-SPAM
Act.
-7-
(16 CFR Part 316 [Project No. R411008] RIN 3084-AA96.)(emphasis added). None of the email messages provided by Plaintiff contain links that resolve to e360insight.com or to websites owned by e360Insight (Linhardt Aff., at 10). e360Insight does provide email messaging services for it’s clients, but never to promote its own products or services (Linhardt Aff., at 8). Further, Dave Linhardt has not sent any commercial email messages of any kind on behalf of himself (Linhardt Aff., at 8-11). Dave Linhardt has not sent any commercial email messages at any time that promote products of services that he provides as an individual (Linhardt Aff., at 8-11).

Attached is the Affidavit of David Linhardt which confirms that both he and E360Insight, LLC are merely disseminators and/or publishers exempt pursuant to R.C. §1345.12 and further, that he was unaware of any email advertisement which violated sections 1345.01 to 1345.13 of the Ohio Revised Code. E360Insight, LLC, did nothing more than disseminate information on behalf of others and, in fact, that was E360Insight’s business (Linhardt Aff., at 8). As a publisher or disseminator, with no knowledge that any email advertisement violated the CSPA, defendants are entitled to exemption from the CSPA. Moreover, the CAN-SPAM definition of sender should pre-empt state statutes on this issue.

C. Defendants Are Entitled to Judgment as a Matter of Law Under the CSPA

1. Plaintiff is Not a “Consumer”

Even if Defendants are not exempt as publishers and or disseminators, Plaintiff’s claims should be dismissed because Plaintiff is not a “consumer” protected by the CSPA. Consumer law "has its own internal coherence, based upon assumptions about how consumers and producers act in the marketplace. It recognizes that most of the terms in the typical consumer contract are not individually negotiated, and are often offered on a 'take-it-or-leave-it' basis. It accepts the notion that consumers will often not understand terms drafted by producers or, if they
-8-
do understand them, they do not understand the risks that they present. Finally, it understands that consumers will frequently transact under a 'veil of ignorance' which will often require the mandatory disclosure of information by the producer or retailer to the consumer." (Anderson’s Ohio Consumer Law Manual, § 1.1, pp. 2-3). The CSPA was enacted “as a protective measure to ensure that information and bargaining disparities did not permit deceptive or unconscionable practices to prevail in the marketplace." Id., § 3.3, pp. 64-65. Such disparities are notably absent here.

The CSPA exists to protect consumers, and Plaintiff’s role in that system is to represent injured parties, not to represent (disingenuously) that he is an injured party. The legal framework was not established to give attorneys like Plaintiff a new business model (professional plaintiff) or profit center (extorting businesses with the threat of statutory damages & attorneys fees). Consistent with the policies underlying Ohio’s consumer laws, only a “consumer” within the meaning of the Consumer CSPA can assert a private cause of action under the CSPA. See O.R.C. § 1345.09.

In turn, the CSPA defines a “consumer” as “a person who engages in a commercial transaction with a supplier.” O.R.C. § 1345.01(D)(emphasis added). “Consumer transaction” is defined in the CSPA as “a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things.” O.R.C. § 1345.01(A). (emphasis added). Here, Plaintiff signed up to receive email advertisements from Defendants’ clients. He used those emails – not for household or personal use, but to file lawsuit after lawsuit raking in hundreds of thousands of dollars for he and his law firm. This Plaintiff is not a consumer, and the emails sent to him were not consumer transactions. Plaintiff’s claims
-9-
under the CSPA must be dismissed because Plaintiff cannot establish – as he must – that he is a “consumer” who has engaged in a “consumer transaction” within the meaning of the CSPA, for each of the reasons set forth below.

(a) The Emails Were Not Made For “Purposes That Are Primarily Personal, Family, or Household”

The emails at issue here do not give rise to a “consumer transaction” because Plaintiff’s overriding purpose in soliciting, receiving and reviewing the emails was not “for purposes that are primarily personal, family, or household.” See O.R.C. § 1345.01(A). It is necessary to consider the plaintiff’s primary purpose in connection with an alleged transaction, rather than the generic nature of the goods or services at issue. See., e.g. Lesco v. Toyota of Bedford, Inc., 2005 Ohio 6724, (attached); see also Anderson’s Ohio Consumer Law Manual, Section 3.3, p. 58 ("The wording of the Ohio statute, unlike that of statutes from some other states, indicates that the court should look to the actual use by the individual, rather than the typical use of the goods or services in deciding whether there is a consumer transaction.").

Here, dispositive evidence establishes that Plaintiff’s primary purpose in soliciting and reviewing the emails in question was to manufacture grounds for a lawsuit and generate statutory “damages”– an unabashedly commercial purpose that falls squarely outside the ambit of the CSPA. Indeed, Plaintiff is a sophisticated attorney with a longstanding pattern of filing baseless consumer protection lawsuits based on contrived and pre-meditated “transactions” like those at issue here. During the past five years alone, Plaintiff Ferron has filed a multitude of separate cases asserting claims under the CSPA..

Plaintiff and his law firm have been severely criticized by courts in Ohio for their practice of deliberately engaging in transactions for the sole purpose of filing lawsuits and inflating potential damages. In 2007, the First District imposed sanctions against Ferron &
-10-
Associates when affirming the dismissal of various claims asserted under the CSPA, finding that the plaintiff “did not present any reasonable question for review on this appeal and his attorney had no good ground to support the filing of the appeal, much less the complaint.” Burdge v. Supervalu Holdings, Inc., 2007 WL 865483 (Ohio App. 1st Dist. 2007).

In awarding sanctions against Plaintiff’s firm, the court in Supervalu Holdings noted: “We are offended by the contrived nature of this frivolous action, which has wasted much time, paper, and other resources to the prejudice of legitimate disputes between parties, especially those involving the consumer protection laws of Ohio.” Id. (emphasis supplied). In particular, the court chastised the plaintiff’s “calculated behavior in returning to the offending establishment 12 times,” concluding that “[t]he facts as pleaded in the complaint in this and the other cases indicate that Burdge purposely made purchases at stores that were printing his expiration date on his receipt in order to recoup statutory damages totaling at least $12,800. Burdge’s . . .actions demonstrate that he attempted to reap a profit from this activity.” Id. .

Judge Hendon’s concurring opinion in Supervalu Holdings is particularly instructive on the question of Plaintiff’s “purpose” with respect to the challenged emails:

Without question, the nature of this lawsuit is one contrived to “ambush” the defendant
under the color of the Ohio Consumer Sales Practices Act, which seeks to protect Ohio’s
consumers from injury due to unfair practices by unscrupulous businesses. In this case,
Burdge cannot claim that he was injured in any way, lest why would he return to the
“offending” retailer multiple times over a short period of time? The only conclusion is
that he was building his claim, with an eye toward statutory damages. A truly
reasonable consumer would avoid repeated transactions with a retailer believed to be
actually violating the law!

What is particularly disturbing about the contrived nature of this frivolous action . . . is
that . . . an attorney, licensed to practice in this state and sworn as an Officer of the
Court, would facilitate this type of exploitive litigation to the detriment of the
defendant, the court system, and the practice of law in general.

-11-
As in Supervalu and the numerous other cases in which Plaintiff has filed CSPA claims, the emails at issue here plainly were sought out for the primary purpose of filing a lawsuit and increasing potential statutory damages. Earlier this year, Judge Krueger of the Delaware County Common Pleas Court awarded sanctions to Video Professor, Inc, due to Plaintiff’s frivolous conduct in yet another CSPA case. See, Ferron v. Video Professor, Inc. (Del. Cty. Ohio) (2008) (Exhibit B), wherein the Court specifically found that Plaintiff’s commercial law practice concentrates on seeking out and prosecuting CSPA claims. Exhibit A is further evidence of this. Such calculated conduct is inimical to the purposes of the Consumer Sales Practice Act and conclusively establishes that Plaintiff is not a “consumer” who received the emails in question for purposes that are “primarily personal, household or family.” Instead, Plaintiff’s conduct with respect to these emails (as in numerous other frivolous consumer protection cases filed by Plaintiff and his firm) makes crystal clear that the sole purpose of the emails from Plaintiff’s perspective was to file this lawsuit and claim millions in statutory “damages.” Because Plaintiff’s purpose with respect to the challenged emails was purely commercial, he cannot establish that these emails constitute a “consumer transaction” under the CSPA.

(b) The Alleged Email Transactions Were Not With An “Individual”

Likewise, Plaintiff cannot establish that the alleged email transactions were made with an “individual” within the meaning of the CSPA. It is well-settled that a transaction with a business or professional entity is not a “consumer transaction” under the CSPA, which extends solely to transactions with “an individual”. Plaintiff Ferron is well aware of this requirement because three separate courts have dismissed CSPA claims filed by his law firm (including in a case in which Ferron & Associates was itself the plaintiff) because the transactions at issue were directed to a law firm which is not an “individual” within the meaning of the CSPA. See Ferron
-12-
& Assoc., LPA v. U.S. Four, Inc., 2005 Ohio 6963, Yavitch & Palmer Co., L.P.A. v. U.S. Four, Inc., 2006 Ohio 4780 (Ohio App. 10th Dist. 2006); Culbreath v. Golding Enter., LLC, 2006 Ohio 2606 (Ohio App. 10th Dist. 2006).1 Plaintiff apparently hopes to circumvent this requirement by filing the lawsuit in his own name, rather than in the name of his law firm. This calculated decision in no way changes the fact that the “transactions” in this case were orchestrated by Plaintiff in his professional capacity, for the benefit of his law firm. In fact, each email produced by Plaintiff in this case was sent to jferron@ferronlaw.com. (Linhardt Aff., at 4). The asserted transactions were for all practical purposes made with a law firm – not an “individual” – and therefore do not constitute “consumer transactions” under the CSPA. To hold otherwise would permit Plaintiff and his law firm to frustrate the purposes of the CSPA.

[1 Here, each and every email produced by Plaintiff shows that his law firm email account was used to solicit the emails. (Linhardt Aff., at 4).]

(c) The Emails Are Not “Transactions” Because They Are Entirely One-Sided

Plaintiff cannot establish that the emails at issue in this case are “transactions” because these emails were entirely one-sided. As Ohio courts have recognized, a “consumer transaction” by definition requires some bilateral conduct by the parties to the alleged transaction, and does not encompass a purely one-sided action . See, e.g. Riley v. Supervalue Holdings, Inc., 2005 Ohio 6996 ( Hamilton Cty. 2006) (attached); see also Dawson v. Blockbuster, Inc., 2006 Ohio 1240 (Cuyahoga Cty. 2006) (attached).

Here, the evidence establishes that the Plaintiff in this case clicked on less than two percent of the hyperlinks in all of the emails. (Linhardt Aff., at 5). Because Plaintiff has not taken any action whatsoever with respect to the vast majority of emails at issue in this case, these emails cannot constitute a “consumer transaction” within the meaning of the CSPA.

(d) The Emails Constitute Mass Marketing Which Does Not Constitute a “Solicitation”

-13-
The emails at issue in this case are part of a national “mass marketing” campaign which does not constitute a “consumer transaction” within the meaning of the CSPA. (Linhardt Aff., at 9). As was recently held in Eisenberg v. Anheuser-Busch, Inc., 2006 U.S. Dist. LEXIS 4058 (N.D. Ohio 2006), “[m]ass advertising and marketing efforts do not rise to the level of personal solicitation and do not constitute a ‘consumer transaction’ for purposes of the CSPA” because they “do not create the same risk of undue pressure or intimidation as do acts of direct solicitation, and they are not as intrusive.” As in Eisenberg, Defendants’ clients’ mass marketing campaign created no “undue pressure or intimidation,” and required “no immediate response or reaction.” Like other mass market media — but unlike more direct forms of personal solicitation such as telephone or in person solicitations — emails can be easily ignored (and apparently were ignored by the Plaintiff in this case). Accordingly, the emails do not constitute a “solicitation” under the CSPA.

For the foregoing reasons, Plaintiff’s claims under the CSPA must fail as he is not a consumer and the emails are not consumer transactions.

2. Defendants did not “Commit” the Alleged Deceptive Practices At Issue

Revised Code Section 1345.02 imposes liability only upon a supplier that “commits an unfair or deceptive act or practice.” O.R.C. § 1345.02(A) (emphasis supplied) In order to establish that defendants “committed” the allegedly deceptive email marketing practices at issue here, Plaintiff must prove, at a minimum, that defendants were responsible for the content of the emails at issue, as well as the transmission of those emails to the Plaintiff. See, e.g. Sauvey v. Brondes Ford, 2003 Ohio App. LEXIS 2791 (attached). The emails at issue in this case were not created by or sent for the benefit of either Linhardt or E360Insight, LLC (Linhardt Aff., at 10).
-14-
As such, there is no evidence that these Defendants “committed” the allegedly deceptive practices complained of here.

For the foregoing reasons, Plaintiff’s claims under the CSPA must fail because Defendants did not commit acts or practices violative of the CSPA.

C. E360 Cannot Be Liable Under the EMAA

Likewise, Defendants are not liable under the Electronic Mail Advertising Act, R.C. §
2307.64(B)(1), better known as the EMAA. The EMAA provides:
“a person that transmits or causes to be transmitted to a recipient an electronic mail
advertisement shall clearly and conspicuously provide to the recipient, within the
body of the electronic mail advertisement … [t]he person’s name and complete
residence or business address and the electronic mail address of the person
transmitting the electronic mail advertisement …” Under the EMAA, a
“‘[r]ecipient’ means a person who receives an electronic mail advertisement at … [a]
receiving address ordinarily accessed from a computer located within the state.”
Ohio Rev. Code § 2307.64(A)(10)(b).

Plaintiff’s complaint alleges that “[m]any of the email messages that Defendants have sent or caused to be sent to Plaintiff fail to include in the body of the message a clear and conspicuous recitation of the sender’s truthful name and complete residence or business address and electronic mail address of the person transmitting the electronic mail advertisement.” E360 does nothing more than maintain a database for its clients who direct E360 as to which ads to run on its list serve (Linhardt Aff., at 11). Thus, E360 has no obligation to provide its name and address in any email Plaintiff received. The only entity that must do so is the person that transmits the email. Based upon the clear language in the statute, defendants are not the senders or transmitters. This is further bolstered by the preemptive effect of CAN-SPAM has on the definition of “Sender.” See Argument, supra.

-15-
D. The EMAA is Pre-empted by CAN-SPAM

Even if the EMAA were applicable, it is preempted by CAN-SPAM. The preemption provision of CAN-SPAM provides:

This chapter supersedes any statute, regulation, or rule of a State or
political subdivision of a State that expressly regulates the use of electronic
mail to send commercial messages, except to the extent that any such statute,
regulation, or rule prohibits falsity or deception in any portion of a
commercial electronic mail message or information attached thereto.
15 U.S.C. 7707(b)(1).

The CAN-SPAM Act was designed to strike a balance between permitting a legitimate and efficient means of commercial advertising and the need to curb its abuse. Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006). It was also designed to create a national standard for email advertisements. Id. For preemption not to exist, the email advertisement in question requires a showing of intentional and misleading falsity. Id. Because neither defendant in this case created any of the email advertisements (Linhardt Aff., at 10) and because Linhardt did not know that any content or format in which any email was sent violated the CSPA or the EMAA (Linhardt Aff., at 10), Plaintiff cannot prove intentional or misleading falsity in this case. See, e.g. Ferron v. Echostar Sattellite, LLC, et. al. (Case No. 2:06-cv-00453), Opinion and Order dated September 24, 2008 (doc. 295)(Watson, J.)(attached).

Further, all of the emails in question fail to meet the requirements set forth in R.C. §2307.64(B)(1). Each email submitted contains a valid physical address and working unsubscribe links (Linhardt Aff., at 12). Furthermore, Plaintiff did consent or has agreed to as a condition of service to received the electronic email advertisements” by voluntarily signing up to receive the email messages. Because defendants have the correct contact information from Plaintiff in the database it manages, including his IP address, Ferron must have signed up to
-16-
receive emails from some of defendant e360’s clients (Linhardt Aff., at 6,13, 15). This further evidences Mr. Ferron’s consent to receive the emails at issue.

E. Plaintiff’s Claims are Barred By His Own Bad Faith Actions

The Cause of Action at issue here does not arise from activities of Defendants, but instead arises out of the unilateral actions of the Plaintiff. Plaintiff has authorized Defendants’ clients to send him emails – in other words – they are not unsolicited. In order for Plaintiff to be on any electronic mail list, he must have registered with one of Defendants’ clients authorizing them to send electronic mail to Plaintiff. (Linhardt Aff., at 6, 13,15). Referring to Exhibit D it is evident that Mr. Ferron registered with at least one of those clients. Upon request to be removed, Linhardt contacted the client to obtain the registration information for Mr. Ferron’s email addresses. (Linhardt Aff., at 15). The information contained in Exhibit D was not information maintained on its email list or even known by Linhardt prior to obtaining the information from its client (Linhardt Aff., at 6,15). However, the information in Exhibit D reflects an IP address belonging to Mr. Ferron’s computer, a correct email address, and a correct home address for Mr. Ferron. There is no technology which would allow for Defendants or clients of e360Insight to obtain all of that information without Mr. Ferron providing it to the client while registering to receive promotional emails (Linhardt Aff., at 13). Therefore, Mr. Ferron actually solicited the emails in this case, barring application of the CSPA or the EMAA to such emails.

F. Plaintiff is Not Entitled To Multiple Recoveries For The Same Practice

Even if Plaintiff could somehow establish that his claims are legitimate consumer claims for which he is entitled to damages, (and for the reasons described above, he cannot), he can recover statutory damages of $200 for each allegedly deceptive “practice.” Revised Code Section 1345.02 precludes deceptive “acts or practices”. (emphasis supplied) Likewise, Section
-17-
1345.09 allows a consumer to collect statutory damages in an amount of $200 “where the violation was an act or practice declared to be deceptive.” (emphasis added) Here, Plaintiff is challenging Defendants’ mass email marketing practice, not individual “acts.”

Significantly, Plaintiff has not attempted to establish “deception” on an email-by-email basis , instead alleging blanket assertions about all 882 emails. (doc. 1, at ¶¶16 and 17). Thus, it would be improper to permit Plaintiff to recover statutory damages on a per email (or per “act”) basis, given that Plaintiff’s claims against Defendants challenge broad “practices” not individual acts. Likewise, Plaintiff’s contention that he somehow can recover statutory damages for multiple violations for each of the 882 emails at issue in this case should be squarely rejected. Ohio courts repeatedly have held that when a single act or transaction results in multiple violations, recovery is limited to $200 in statutory damages. See, e.g., Eckman v. Columbia Oldsmobile, Inc. 65 Ohio App. 3d 719 (Ohio App. 1st Dist. 1989); Couto v. Gibson, 1992 Ohio App. LEXIS 756 (Ohio App. 4th Dist. 1992); Ferrari v. Howard, 2002 Ohio 3539 (Ohio App. 8th Dist. 2002). Because each of the alleged violations of the CSPA asserted by Plaintiff arise from the same emails, Plaintiff at most can recover actual or statutory damages with respect to each allegedly deceptive practice and not with respect to each alleged violation arising from the same practice.

-18-
IV. CONCLUSION

Based upon the foregoing, Defendants request this Court to Grant Summary Judgment in their Favor. Defendants also seek an award of attorney’s fees and costs in defending this action under Civil Rule 11 and R.C.§2323.51.

Respectfully submitted,

SHUMAKER, LOOP & KENDRICK, LLP

/s/Karen S. Hockstad___________________
Karen S. Hockstad (0061308)
41 South High Street, Suite 2400
Columbus, OH 43215
Telephone (614) 628-4427
Fax: (614) 463-1108
[redacted]
Lead Attorney for Defendants

Attachment	Date	Size
MSJ.pdf	10/24/08 2:29 pm	67.79 KB
MSJExhA.pdf	10/24/08 2:30 pm	441.71 KB
MSJExhB.pdf	10/24/08 2:30 pm	763.5 KB
MSJExhC.pdf	10/24/08 2:38 pm	13.91 KB
MSJExhD.pdf	10/24/08 2:38 pm	32.49 KB
MSJExhE.pdf	10/24/08 2:40 pm	4.78 MB
MSJLinhardtAff.pdf	10/24/08 2:37 pm	211.6 KB

Status Report of the Parties Regarding Settlement

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. FERRON,
Plaintiff,

vs.

E360Insight, LLC, et al.,
Defendants.

STATUS REPORT OF THE PARTIES REGARDING SETTLEMENT

Now come the parties to this action, by and through their respective undersigned counsel, to provide a status report pursuant to the Magistrate Judge’s Order appearing as Doc. # 43.

On November 19, 2008, the parties executed a Settlement Agreement which will be filed under seal with this Court. The parties intend for this Court to retain jurisdiction to enforce the terms and conditions of the Settlement Agreement. The parties request the Court to issue any orders necessary for it to retain jurisdiction to enforce the terms of the settlement, or otherwise notify the parties of any need to file a joint motion and agreed entry seeking the same.

After the filing of the Settlement Agreement with the Court, this action will be dismissed with prejudice pursuant to the parties’ settlement, with reference to this Court’s retention of jurisdiction to enforce the Settlement Agreement.

Attachment	Date	Size
StatusReportSettlement.pdf	12/02/08 1:17 pm	10.63 KB