Complaint

Of all of the pathetic lawsuits I've seen....

Well, this one's got it all.

Deferring a connection is tarpitting and is a denial of service attack. Not delivering mail is a denial of service attack. Using a spam filter is not legal (or maybe it's just that it's not kosher -- we'll have to find a rabbi to rule on that one). Not telling a sender how to evade filters is fraudulent. A sender's inability to design a system that can cope with sending more email while waiting for deferred messages to timeout and retry is a denial of service attack caused by the receiver. e360Insight has even tossed in a First Amendment claim and I was pretty sure that we moved past that by 1999. And finally, having a whitelist or a feedback loop that you don't let everyone have is a violation of fair trade rules.

It's stunning. It really is. I'm not entirely sure how you get to be this dense, but I suspect that it's a painstaking (and probably painful) process involving frontal lobotomies and maybe electroshock treatments.

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

E360INSIGHT, LLC,
Plaintiff,

COMCAST CORPORATION,
Defendant.

COMPLAINT

NOW COMES, Plaintiff, e360Insight, LLC, by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, L.L.C., and for its Complaint against Defendant Comcast Corporation, states as follows:

PARTIES

1. e360Insight, LLC (hereafter “e360”) is an Illinois limited liability corporation located in Wheeling, Illinois. e360 is an internet marketing company.

2. Comcast Corporation (hereafter “Comcast”) is a Pennsylvania corporation principally located in Philadelphia Pennsylvania. Comcast is an internet service provider.

JURISDICTION

3. Jurisdiction is proper and based on 28 USC § 1332 as the parties are citizens of and principally located in separate states and the amount in controversy exceeds seventy-five thousand dollars. Jurisdiction is also proper based on 28 USC § 1331 as this action arises under 18 USC § 1030, The Computer Fraud and Abuse Act.

FACTS
4. e360 is an email marketing company whose business practices have, at all times relevant to the allegations in this Complaint, complied with, and continue to comply, with all
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federal and state requirements, laws and standards pertaining to the sending of commercial email, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 USC § 7701 (“CAN-SPAM”).

5. e360 delivers its messages to its customers at addresses provided by said customers. The customers thus require e360 to use Internet Service Providers (“ISPs”), such as Comcast. 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 Comcast.

6. e360 has at all times relevant to the claims asserted in this Complaint, complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by Comcast.

7. 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 email announcements and/or advertisements. These persons sign up at websites owned by e360 or at websites owned by e360’s marketing partners. e360 then may attempt to verify the desire to receive emails utilizing a “double opt-in” process, which involves sending a confirmatory email allowing the customer to affirm or terminate its decision to receive marketing emails. Those customers who affirm their interest in receiving email messages are included in subsequent email messages until they unsubscribe at a later date or until e360 receives bounce information (showing the email account in question is closed) from Comcast.

8. e360 provides the consumer the ability to “opt-out” of receiving emails in every email sent and promptly complies with every request made by a consumer.

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9. e360 does not engage in “spamming,” which is essentially the digital equivalent of sending junk mail that is not requested. e360 only sends email messages to persons who first sign up or opt-in and provide their email address to e360 or to one of e360’s marketing partners. e360 employs a variety of permission processes that it controls and that its marketing partners use to obtain permission from and provide notice to the consumer that received the email.

10. e360 has been approved by ReturnPath, a leading provider of reputation monitoring services to the ISP community, including Microsoft/Hotmail. In an independent audit of e360’s mailing practices, ReturnPath approved e360 for the SenderScore Certification Program, which is Return Path’s highest level of certification among legitimate email marketers.

11. Comcast is an internet service provider (“ISP”) that provides email service to its customers and who has agreed to act as an intermediary in delivering and receiving emails on behalf of its customers.

12. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services, attached and incorporated into this Complaint as Exhibit A.

13. At all relevant times, e360 has complied with Comcast’s Acceptable Use and Abuse Policies.

14. At all relevant times, and commencing as early as 2005, Comcast regularly blocked emails e360 has repeatedly attempted to send to emails to Comcast customers (who have signed up to receive such emails,) including some of who have double-confirmed their wish to receive the emails. Such blocking by Comcast interferes with e360’s ability to do business and interferes with e360’s business relationship with its customers who use Comcast.

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15. All instances where Comcast has blocked e360 email addresses are too voluminous to mention in this complaint. As a recent example, Comcast blocked virtually all of e360’s email messages on August 23, 2007. e360 attempted to send email messages to its customers, including those who have “double-confirmed” their interest in receiving e360’s email messages. e360 used IP address 63.210.103.209 to connect to Comcast’s mail servers. e360 received the following error message from Comcast for all of the messages e360 attempted to send.

“550 5.2.0 63.210.103.209 blocked by ldap:ou=rblmx,dc=comcast,dc=net ->
BL004 Blocked for spam. Please see
http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18628”

By following the link provided in the Comcast error message, e360 was directed to the following information on Comcast’s website:

“Mail to Comcast is rejected and is returned with an error message containing the code BL004. What does this mean?

Our filters have determined that email from your mail server has been sent in patterns which are characteristic of spam. In an effort to protect subscribers, your mail server has been blocked from sending email to the Comcast network. Mail servers are typically shared by many users so it may be the case that another party using your mail server has sent spam, even if you have not.”

16. e360 cannot reasonably ascertain how its messages may have been sent “in patterns which are characteristic of spam.” Comcast refuses to provide e360 with any information as to how e360 could modify its email messages to avoid triggering the block of its rightfully sent email messages or the delivery of this error message.

17. e360 has on numerous occasions contacted Comcast in attempts to get Comcast to allow e360’s email to get through to its customers. Comcast has refused to allow such emails.

18. At all relevant times, and possibly commencing as early as 2005, Comcast has regularly held or severely and significantly delayed emails e360 has attempted to send to
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Comcast customers who have signed up to receive such emails, and refused to release such emails, a practice commonly known as “tar-pitting” and is type of “denial of service attack” on e360’s mail servers. Comcast regularly transmits bogus response data in an attempt to lock up e360’s connections in order to slow or incapacitate e360’s mail servers. e360’s sending mail servers track and report average response time for each recipient domain. The average response time is defined as the time it takes for the recipient domain to process a message; to receive the message and to acknowledge receipt. As recently as December 11, 2007, e360 recorded an average response time of 18,433 seconds or 5.1 hours to process a single email message. During this time, Comcast’s mail servers transmit bogus response information to keep the connective active and to erode e360’s system capacity. In doing so, Comcast has interfered with e360’s ability to send email, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360’s servers.

19. At all times relevant hereto, and commencing as early as 2005, Comcast has regularly blocked emails e360 has attempted to send to Comcast customers who have signed up to receive such emails, some of who have double-confirmed that they wish to receive the emails on the grounds that such emails contain specific words or phrases, such as “free”. Such arbitrary censorship by Comcast violates e360’s First Amendment rights and is an unacceptable infringement of e360’s commercial speech based on content.

20. Comcast uses multiple email filters, including third-party companies and internal blacklists, to filter and block emails. Comcast uses Spamhaus SBL/XBL/ZEN, a London based self-appointed internet “watch dog” company to monitor and screen emails on its systems. Comcast’s use of the Spamhaus blacklists is documented on Comcast’s website (http://www.comcast.net/help/faq/index.jsp?faq=SecurityMail_Policy18627). Spamhaus
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mistakenly listed e360 as a spammer on its ROKSO list, SBL blocklist and Zen blocklist despite being repeatedly told of its error. Spamhuas has since removed e360 from its lists per a Court Order but occasionally violates the Order. On March 5, 2007, e360 notified Comcast that Comcast’s use of the Spamhaus blacklist was improperly blocking e360’s email messages and was improperly interfering with e360’s legitimate business. e360 provided copies of the judgment and permanent injunction against Spamhaus from United States District Court case number 06 C 3958. Notification was sent to Comcast legal counsel via FedEx tracking number 798120681231. e360 did not receive a response from Comcast. Attached and incorporated into this Complaint as Exhibit B is a copy of the March 5, 2007 letter.

21. Comcast has blocked and continues to block emails sent by e360 to its customers based on the Spamhaus listing above even after being told of the error. As of the date of this filing, the most recent incidence of improper blocking by Comcast via the Spamhaus blacklist was December 9, 2007.

22. Comcast has blocked and continues to block emails sent by e360 to its customers based on other third-party and internal blacklists and other software filters supplied by third parties. Some of the known blocking technologies used by Comcast include MAPS by TrendMicro and Brightmail by Symantec.

23. Comcast has engaged in ‘denial-of-service’ attacks on e360’s network and computer system by consuming, destroying, altering or withholding emails sent by e360 to its customers. Such attacks overwhelm and disable e360’s network and prevent them from sending or receiving emails from e360’s consumers in an attempt to halt e360’s business.

24. Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by
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Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active. As an email marketer, e360 relies on bounce information from Comcast’s mail servers to determine whether e360’s customer email addresses are still active and deliverable. e360 has information and reason to believe Comcast is intentionally transmitting fraudulent bounce information to e360 in an attempt to discourage e360 from sending additional email messages. By transmitting fraudulent bounce information, Comcast is effectively destroying e360’s proprietary assets and the value contained in e360’s opt-in database of email addresses. Such statements are made on information and belief as only Comcast has access to and knowledge of the accounts it has and will not allow e360’s emails to be delivered regardless of account activity.

COUNT I
(Tortious Interference with Prospective Economic Advantage)

25. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

26. Under Illinois law, “the tort of interference with prospective economic advantage has four elements: (1) plaintiff must have a reasonable expectancy of a valid business relationship with a third party; (2) defendant must know of the prospective business relationship; (3) defendant must intentionally interfere with the prospective business relationship such that the prospective business relationship never materializes; and (4) the interference must damage the plaintiff. Lynch Ford, Inc. v. Ford Motor Co., 957 F. Supp. 142, 145-146 (N.D.Ill 1997).

27. e360 only sends emails to consumers who: a) purchase goods and services from its proprietary company owned website; or b) sign-up to receive emails either through e360 or through one of its marketing partners. As such, e360 only sends emails to individuals who have done business with e360 or who have expressed an interest in doing business with e360 or its
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marketing partners. Thus, e360 has a reasonable expectation of valid business relationship with the consumers it emails.

28. Comcast, an internet service provider, has agreed to act and is compensated for acting as an intermediary in delivering the email sent by and to its customers. Comcast has no right to interfere in the business relationship between e360 and its clients or potential clients.

29. Comcast has knowledge of the e360’s prospective business relationships with Comcast users. Indeed, Comcast has been notified numerous times by e360 of e360’s attempts to contact e360’s customers and potential customers.

30. Comcast has intentionally interfered with e360’s prospective business relationships by blocking the emails e360 has sent or tried to send to its customers. Despite being notified on numerous occasions by e360 of such interference, Comcast has refused to stop interfering in e360’s prospective business relationships.

31. Comcast’s ‘denial of service’ attacks interfere with e360’s ability to send emails to any of its clients or potential clients thereby interfering with e360’s business relationship with its clients. Such attacks cause significant damage to e360 by preventing it from communicating with its clients or potential clients.

32. Comcast blocking e360’s emails to its clients and potential clients interferes with e360’s prospective business relationships with its clients and potential clients such that those relationships never materialize.

33. Comcast’s refusal to allow e360 to communicate with any its clients and potential clients interferes with e360’s business relationship with its clients and potential clients.

34. Comcast’s interference with e360’s business relationships causes e360 significant damage. e360 estimates the damage to exceed $4.5 million per year from 2005 through 2007.

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35. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $9,000,000.00;

(b) Injunctive relief requiring Comcast to stop interfering with e360’s prospective business relationship and stop blocking e360’s emails sent to its customers and potential customers;

(d) Any other relief as the Court deems just and proper.

COUNT II
(Violation of Computer Fraud and Abuse Act)

36. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

37. The Computer Fraud and Abuse Act (hereafter “Act”) prohibits anyone from: (i)“knowingly caus[ing] the transmission of a program, information, code, or command, as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer....or...(iii)intentionally access[ing] a protected computer without authorization, and as a result of such conduct, causes damage. 18 U.S.C. § 1030(a)(5)(A)(i) and (iii).

38. The Act also requires that the “loss to 1 or more persons during any 1-year period...aggregating at least $5,000 in value.” 18 U.S.C. § 1030(a)(5)(B)(i).

39. Under the Act, any person who suffers damage or loss by reason of a violation of the Act may obtain compensatory damages, economic damages and injunctive relief. 18 U.S.C. § 1030(g).

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40. Comcast intentionally and knowingly engaged in denial of service attacks upon e360’s system by slowing process times of its emails by hours. Such delay slowed and all but stopped e360’s systems from being able to function. This intentional damage to e360 prevented e360 from being able to do business and cost e360 in terms of lost business along with excessive wear and tear on e360’s systems and incremental infrastructure costs to overcome the system load created by Comcast’s denial of service attacks.

41. e360 relies on Comcast to provide accurate and truthful information regarding the deliverability of mail and the activity status of email addresses of Comcast customers on e360’s emailing list. In fact, e360 has no other resource available to it to obtain this accurate information and thus requires Comcast’s cooperation in providing reliable, accurate information.

42. Comcast frequently transmits false bounce information to e360’s mail servers. When Comcast transmits false information on the status of an email account, e360’s removes the address from its mailing and updates its database to reflect that the email is no longer valid.

43. When Comcast provides false information regarding an email account to e360 and causes e360 to remove an active email address from its database, Comcast’s actions have directly resulted in the destruction of e360’s proprietary data and asset, its database.

44. e360 estimates that such denial of service attacks upon its systems have cost it five hundred ninety-one thousand two hundred ($591,200.00) dollars.

45. e360 estimates that Comcast false bounce information and destruction of its email database has caused it $2,498,924.00 dollars.

46. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

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WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $3,090,124.00;

(b) Injunctive relief requiring Comcast to stop denial of service attacks upon e360’s systems and prevent Comcast from transmitting fraudulent bounce information to e360’s email servers;

(d) Substantial attorney fees and costs to be determined; and

(e) Any other relief as the Court deems just and proper.

COUNT III
(Violation of First Amendment Rights)

47. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

48. Commercial speech is entitled to First Amendment protection as long as it concerns lawful activity and it not misleading. Virginia Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). “Indeed, we recognized that a “particular consumer’s interest in the free flow of commercial information...may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Id. at 763.

49. It is also recognized that commercial communication “that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” Edenfield v. Fane, 507 U.S. 761, 767 (1993).

50. e360 has the right to send commercial emails to its consumers and consumers who have asked or agreed to receive its emails. e360’s emails concern only lawful activity and are not misleading.

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51. Comcast’s arbitrary and capricious use of its network to systematically deny e360 the ability to send commercial emails to its customers and consumers who have asked to or agreed to receive such emails is a violation of e360’s First Amendment rights.

52. Comcast’s actions have caused significant damage to e360’s ability to communicate and do business with its customers. Specifically, since e360 is an email marketer, e360 has no other way to communicate to its customers who subscribe to or have their email through Comcast. This loss of communication in the marketplace harms not only e360 but also all of its customers.

53. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $500,000.00;

(b) Injunctive relief requiring Comcast to allow e360 the ability to communicate with its customers;

(d) Any other relief as the Court deems just and proper.

COUNT IV
(Unfair Competition and Business Practices)

54. Plaintiff re-alleges and incorporates by reference each of the allegations set forth in paragraphs 1 to 24 as if fully stated herein.

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55. In Illinois, it is unlawful for any business to use unfair methods of competition and business practices, including but not limited to the use or employment of any false pretense, false promise or misrepresentation, in the conduct of trade or business. 815 ILCS 505/2.

56. Comcast provides to its customers and the public on its website Acceptable Use Policy, Abuse Policy and Agreement for Services. Implicit in these policies is the understanding that if one complies with the Comcast’s policies, the mail sent will be delivered.

57. Although e360 has complied with Comcast’s polices at all times, Comcast has refused to comply with their own policies and deliver the mail sent by e360.

58. At the same time that Comcast is blocking e360’s email messages that are compliant with Comcast’s polices, Comcast is allowing other email marketers with substantially similar business practices as those employed by e360 to send email messages to Comcast’s customers.

59. Comcast’s refusal to deliver email sent by e360 while allowing its competitors to freely transmit email puts e360 at a disadvantage and creates an un-level playing field on which e360 must compete.

60. Upon information and belief, Comcast has made agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast’s Acceptable Use policy. Based on these agreements, Comcast has applied its policies with certain email marketers in a way that is materially different than Comcast’s application of its policies to e360’s email messages. Such statement is made upon information and belief because only Comcast can verify with whom they have agreements with to allow mail to be sent to their customers.

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61. Comcast’s refusal to create a fair playing field for legitimate email marketers to compete has caused serious damage to e360’s business and damaged its reputation.

62. The acts complained of were and continue to be done willfully or with such gross negligence as indicate Comcast’s reckless disregard of e360’s rights. e360 is therefore entitled to punitive damages from Comcast.

WHEREFORE, Plaintiff, e360Insight LLC, requests that this Court enter a judgment in its favor and against Comcast as follows:

(a) Compensatory damages in the amount of $9,000,000.00;

(b) Injunctive relief requiring Comcast to allow e360 the ability to communicate with its customers;

(d) Any other relief as the Court deems just and proper.

Respectfully submitted,

e360Insight, LLC.,

By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Carla E. Buterman (6281101)
Law Office of Carla E. Buterman
555 Skokie Blvd., Ste 500
Northbrook, IL 60062
Telephone: (847) 480-1020
Facsimile: (847) 480-5879

Attachment	Date	Size
complaint.pdf	06/28/09 1:05 pm	236.21 KB