Complaint

You'll need to grab the PDF file to get all of the information here. There are two exhibits attached to the filing which I didn't OCR.

On page 11 (Page 1 of Exhibit A to the Data License Agreement), you will find what e360 bought a license to: "approximately 40,000,000 records."

Also on page 11, you will find two, almost identical sentences that will probably sink this case for e360: "Data records approved for use in Email prospecting shall be coded 'I'" and "Data records approved for this use shall be coded 'I.'"
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IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
___ DIVISION

e360INSIGHT, LLC
Plaintiff

vs.

CHOICEPOINT PRECISION MARKETING, LLC
DEFENDANT

COMPLAINT

Plaintiff, e360Insight, LLC ("e360"), for its Complaint against Defendant, ChoicePoint Precision Marketing, LLC ("ChoicePoint"), states:

I. PARTIES, JURISDICTION, AND VENUE.

1. e360 is an Illinois corporation that had its principal office at 500 Sumac Rd., Highland Park, IL 60035.

2. ChoicePoint is a Georgia limited liability company with one of its principal offices at 1000 Alderman Drive, Alpharetta, GA 30005, and it may be served by delivering process to Corporation Service Company, 300 Spring Building, Suite 900, 300 S. Spring Street, Little Rock, AR 72201. ChoicePoint was formerly a corporation but converted into a limited liability company.

3. This is an action for breach of contract. This Court has jurisdiction of the parties and subject matter pursuant to Ark. Code Ann. § 16-13-201. Venue is proper in this Court pursuant to the forum selection clause contained in the Data License Agreement, which is attached hereto as Exhibit A and incorporated herein.

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H. FACTS.

4. On or about May 28, 2003, ChoicePoint and e360 entered into a Data License Agreement (the "Agreement," a copy of which is attached hereto as Exhibit A and incorporated herein). Under the Agreement, ChoicePoint granted to e360 a license to use data from ChoicePoint's database composed of names, addresses and email addresses of people who opted to receive third party commercial advertising messages (sometimes, the "Data") for purpose of transmitting email campaigns for e360's customers. See Ex. A.

5. In addition, under the Agreement, the parties expressly and unambiguously agreed "to indemnify and hold the other party harmless from and against all direct costs, losses, damages, liabilities and expenses, including reasonable attorneys' fees, attributable to any claim made by a third party arising out of either party's breach of any of the representations or warranties provided herein[.]" Ex. A, ¶ 14(a) (emphasis added).

6. Further, under the Agreement, ChoicePoint warranted that the Data it sold to e360 was from "records of persons who have opted to receive third party commercial email advertising messages[.]" Ex. A, ¶ 12(a)(iii). Moreover, ChoicePoint warranted that "the execution, delivery and performance by CP of this Agreement will not violate any law, statute or other governmental regulation[.]" Agreement, ¶ 12(a)(ii).

7. Sometime thereafter, e360 used the Data to transmit email campaigns for e360's customers. After these email campaigns began, e360 was sued by John Ferron in the Court of Common Pleas of Franklin County, Ohio, Case No. 07 CVH 09 12775, and Mr. Silverstein in the U.S. District Court, Central District of California, Case No. 07 2835 CAS (VBKx). Mr. Ferguson drafted a complaint for filing in Washington Court. The matter was settled before

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Ferguson filed the complaint. These three (3) complainants alleged, inter alia, that they never consented to receive third-party email messages.

8. So, when ChoicePoint provided these persons' information to e360, ChoicePoint violated ¶ 12(a)(iii) of the Agreement. Had ChoicePoint refrained from breaching this part of the Agreement, e360 would have never received the complainants' email addresses. As such, no email would have been sent to these complainants, and their lawsuits would have never been filed. Thus, but for ChoicePoint's breach of the Agreement and negligence, e360 would have never been sued in the first place.

9. In her September 10, 2008, letter, Ms. Meredith Sidewater on behalf of ChoicePoint declined to indemnify e360 for the expenses and damages incurred by e360 in the three (3) disputes. See Letter attached hereto as Exhibit B. She claimed four (4) of the six (6) emails at issue in the disputes were "Optin Status of O," which she contended means that the records were approved only for direct mail and not email.

10. If Ms. Sidewater's assertion is true, this assertion constitutes an admission of violation of the CAN-SPAM Act of 2003, which provides that if a recipient requests not to receive commercial email, then it is unlawful for the sender to release, sell, or transfier such person's email address to a third party. Thus, ChoicePoint admits that it breached ¶ 12(a)(ii) of the Agreement. But for this breach, e360 would not have sent any emails to the complainants and would not have been sued.

11. Moreover, the Agreement does not contain any provision providing that records marked as "O" are for direct mail only and not email. To the contrary, the Agreement expressly provides that ChoicePoint warranted that the Data provided to e360 was from "records of persons who have opted to receive third party commercial email advertising messages[." Ex. A,
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¶ 12(a)(iii) (emphasis added). So, ChoicePoint was obligated to provide email addresses under the Agreement, not direct "snail" mail addresses.

12. As a result of ChoicePoint's breach of the Agreement, e360 has incurred legal expenses and paid for settlements in three (3) matters in the total sum of at least $352,743.00. All three (3) matters have been settled at this time.

III. CAUSE OF ACTION.

Breach of Contract.

13. e360 realleges and incorporates herein all preceding allegations and exhibits in and to this Complaint.

14. ChoicePoint and e360 entered into a contract, the Agreement, that required ChoicePoint to provide to e360 Data from "records of persons who have opted to receive third party commercial email advertising messages[.]" Ex. A, ¶ 12(a)(iii).

15. In addition, the Agreement requires ChoicePoint "to indemnify and hold the other party harmless from and against all direct costs, losses, damages, liabilities and expenses, including reasonable attorneys' fees, attributable to any claim made by a third party arising out of either party's breach of any of the representations or warranties provided herein[.]" Ex. A, ¶ 14 (a) (emphasis added).

16. ChoicePoint failed to provide e360 Data from records of persons who had opted to receive third party commercial email advertising messages. In addition, ChoicePoint failed to indemnify and hold e360 harmless from and against all direct costs, losses, damages, liabilities and expenses, including reasonable attorneys' fees, attributable to the claims arising out of ChoicePoint's breach of any of the representations or warranties provided in the Agreement

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17. e360 did what the Agreement required or was excused from performance by ChoicePoint's first breach of the Agreement. As a result of ChoicePoint's breach of the Agreement, e360 has incurred legal expenses and paid for settlements in three (3) matters in the total sum of at least $352,743.00, plus pre- and post-judgment interest accruing at the highest legal rate and, attorney's fees and expenses, pursuant to the terms of the Agreement and Ark. Code Ann. § 16-22-308.

WHEREFORE, Plaintiff, e360lnsight, LLC, prays for judgment against Defendant, ChoicePoint Precision Marketing, LLC, in the sum of at least $352,743.00, plus pre-judgment interest accruing at the highest legal rate, plus attorney's fees and expenses, pursuant to the terms of the Agreement and Ark. Code Ann. § 16-22-308, with the total accruing post-judgment interest at the highest legal rate, and for all other just and proper relief to which e360lnsight, LLC is entitled.

Respectfully submitted,

NISWANGER LAW FIRM PLC
45 Innwood Circle, Suite 110
Little Rock, AR 72211
Phone (501) 223-2888 Fax (501) 421-3651
www.niswangerlawfirm.com

By..
Stephen B. Niswanger, #96012
Alexander Cale Block, #2007149
Attorneys for e360lnsight, LLC

Attachment	Date	Size
Complaint.pdf	03/05/09 12:38 pm	739.72 KB

Answer

IN THE UNITED STATES DISTRICT COUR EASTERN DISTRICT OF ARKANSA WESTERN DIVISION

e360INSIGHT, LLC
PLAINTIFF

vs.
CHOICEPOINT PRECISION MARKETING LLC
DEFENDANT

ANSWER TO COMPLAINT

Defendant, Choicepoint Precision Marketing LLC ("Choicepoint"), by its attorneys, Mitchell, Williams, Sclig, Gates & Woodyard, P.L.L.C., for its Answer to Plaintiff, e360lnsight, LLC's ("e360"), Complaint, states as follows:

1. Choicepoint admits that e360 is an Illinois limited liability company with its principal office located at 500 Sumac Road, Highland Park, Illinois 60035.

2. Choicepoint admits that it is a Georgia limited liability company with its principal office located at 1000 Alderman Drive, Alphareta, Georgia 30005. Choicepoint further admits that its agent for service of process is Corporation Service Company, 300 Spring Building, Suite 900. 300 S. Spring Street, Little Rock, Arkansas 72201. Choicepoint further admits that it formerly was a corporation but converted into a limited liability company.

3. Choicepoint admits that a copy of the Data License Agreement is attached to e360's Complaint as Exhibit "A". Choicepoint affirmatively asserts that the Data License ,'\,grcemcnl speaks for itself. Choicepoint further affirmatively asserts that pursuant to the forum selection clause contained in the Data License Agreement, the parties have submitted to the jurisdiction and venue of the United States District Courts for the Eastern District of Arkansas. "]'his Court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 1332(a), and this case

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has been property removed from the Circuit Court of Pulaski County pursuant to 28 U.S.C. § 1441 (a). Choicepoint denies the remaining allegations in paragraph 3 of c360's Complaint.

4. Choicepoint admits that a copy of the Data License Agreement is attached to 660's Complaint as Exhibit "A". e360 attempts to paraphrase the terms of the Data License Agreement. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint admits the allegations in paragraph 4 to the extent they are consistent with the Data License Agreement and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 4 of e360's Complaint.

5. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint admits the allegations in paragraph 5 to the extent they are consistent with the Data License Agreement and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 5 of e360's Complaint.

6. e360 attempts to paraphrase the terms of the Data License Agreement. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint admits the allegations in paragraph 6 to the extent they are consistent with the Data License Agreement and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 6 of e360's Complaint.

7. Choicepoint denies the allegations in paragraph 7 of e360's Complaint. Choicepoint affirmatively asserts that the lawsuit filed by John Ferron in the Court of Common Pleas of Franklin County, Ohio, Case No. 07 CVH 09 12775, the lawsuit filed by Mr. Silverstein in the U.S. District Court, Central District of California, Case No. 07 2835 CAS, and the complaint drafted by Mr. Ferguson for filing in Washington Court, all speak for themselves. Choicepoint further affirmatively asserts that pursuant to the Data License Agreement, it is not
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required to indemnify e360 for the activities of e360, as alleged by Mr. Ferron, Mr. Silverstein, and/or Mr. Ferguson.

8. Choicepoint denies the allegations in paragraph 8 of e360's Complaint. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint also affirmatively asserts that the lawsuit filed by John Ferron in the Court of Common Pleas of Franklin County, Ohio, Case No. 07 CVH 09 12775, the lawsuit filed by Mr. Silverstein in the U.S. District Court, Central District of California, Case No. 07 2835 CAS, and the complaint drafted by Mr. Ferguson for filing in Washington Court, all speak for themselves. Choicepoint further affirmatively asserts that pursuant to the Data License Agreement, it is not required to indemnify e360 for the activities of e360, as alleged by Mr. Ferron, Mr. Silverstein, and/or Mr. Ferguson.

9. Choicepoint admits that a copy of Meredith Sidewater's letter is attached to e360's Complaint as Exhibit "B". e360 attempts to paraphrase the contents of Meredith Sidewate,r's letter. Choicepoint affirmatively asserts that Meredith Sidewater's letter speaks for itself. Choicepoint admits the allegations in paragraph 9 to the extent they are consistent with Meredith Sidewater's letter, and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 9 of e360's Complaint.

10. e360 attempts to paraphrase the CAN-SPAM Act of 2003. Choicepoint affirmatively asserts that the CAN-SPAM Act of 2003 speaks for itself. Choicepoint denies the remaining allegations in paragraph 10 of e360's Complaint.

11. e360 attempts to paraphrase the terms of the Data License Agreement. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint denies the allegations in paragraph 11 of e360's Complaint.

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12. Choicepoint denies the allegations in paragraph 12 of e360's Complaint.

13. Choicepoint restates and incorporates herein its responses to the allegations set forth in paragraphs 1 through 12, as if stated herein word for word.

14. e360 attempts to paraphrase the terms of the Data License Agreement. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint admits the allegations in paragraph 14 to the extent they are consistent with the Data License Agreement and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 14 of e360's Complaint.

15. Choicepoint affirmatively asserts that the Data License Agreement speaks for itself. Choicepoint admits the allegations in paragraph 15 to the extent they are consistent with the Data License Agreement and denies those that are inconsistent. Choicepoint denies any and all remaining allegations in paragraph 15 of e360's Complaint.

16. Choicepoint denies the allegations in paragraph 16 of e360's Complaint. Choicepoint affirmatively asserts that e360 failed to give Choicepoint prompt notice of the Silverstein lawsuit filed against e360, as required by the Data License Agreement, and therefore, Choicepoint's indemnification obligation, if any existed, was waived.

17. Choicepoint denies the allegations in paragraph 17 of e360's Complaint.

18. Responding to e360's "Wherefore" paragraph, Choicepoint denies that e360 is entitled to the relief it seeks.

19. Choicepoint denies any and all allegations not specifically admitted herein.

AFFIRMATIVE DEFENSES

20. Choicepoint pleads affirmatively pursuant to Fed. R. Civ. P. 12 (b)(6) that e360 has failed to state a claim upon which relief can be granted.

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21. Choicepoint pleads affirmatively pursuant to Fed. R. Civ. P. 8(c) the defenses of statute of limitations, estoppel, laches, set-off, and waiver.

WHEREFORE, Choicepoint prays that e360's Complaint be dismissed with prejudice, for its costs herein expended, including reasonable attorneys' fees, and for all other proper relief to which it may be entitled.

Respectfully submitted,
MITCHELL, WILLIAMS, SELIG
GATES & WOODYARD, P.L.L.C.
5414 Pinnacle Point Drive, Suite 500
Rogers, AR 72758
(479),164-5650

Marshall S. Ney, Ark. Bar No. 91108
Jenny T. Garrett, Ark. Bar No. 2008034

Attachment	Date	Size
Answer.pdf	03/05/09 1:15 pm	197.6 KB