SpamSuite.com

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

JAMES S. GORDON, Jr., a married
individual, d/b/a ‘GORDONWORKS.COM';
OMNI INNOVATIONS, LLC., a
Washington limited liability company,
Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware
corporation d/b/a
ADNOWLEDGEMAIL.COM;
ADKNOWLEDGE, INC., a Delaware
corporation, d/b/a
ADKNOWLEDGEMAIL.COM; SCOTT
LYNN, an individual; and JOHN DOES,
1-X,
Defendants.

DECLARATION OF MICHAEL FITZGERALD IN SUPPORT OF DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

I, Michael Fitzgerald, do declare and testify as follows:

1. I am over the age of eighteen (18) years, competent to testify to the matters stated herein, and make this declaration from personal knowledge of those matters.

2. I am currently a resident of the State of Missouri.

3. Adknowledge, Inc. (“Adknowledge”) is organized under the laws of the
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State of Delaware and has its principal place of business in the State of Missouri.

4. I am currently the General Manager of email operations for Adknowledge (my formal title is General Manager, List Management). As such, I am knowledgeable about the business practices, methods and manner of operation at issue in this lawsuit.

5. We have processes and procedures in place to ensure that recipients of commercial email sent by us or with our assistance have opted-in to receive commercial email and have not unsubscribed or opted out of receiving such email.

6. Every commercial email sent by us or with our assistance in the normal course of business has the physical mailing address of the sender as well as an unsubscribe link on which the recipient may click to be unsubscribed.

7. The email domain “@gordonworks.com” has been suppressed since 2006, since about the time we became aware of the lawsuit filed by Gordonworks against Adknowledge. This means that Adknowledge would not send commercial email to any recipient whose email address ended in “@gordonworks.com,” even if they opted-in and requested that we send them email.

8. However, we have no way of knowing whether James Gordon opted-in to receive email through a different email address, with a different domain name. Our systems are automated and designed to accept the email addresses provided to them, unless we manually direct them to suppress a particular email address or domain.

9. I have reviewed Exhibits B, C and D to the Declaration of James S. Gordon, Jr. executed on July 2, 2007 and declare that they were not sent by Adknowledge. Exhibit B states on its face it was sent by “Charter Communications.” Exhibit C reflects domains – aberystwyth.com; begignantcause.com – that are unknown to me and not used by Adknowledge. Exhibit D does make reference to faye@gordonworks.com and adknowledgemail.com, but reflects dates in December 2005 and January 2006; our records reflect that Faye Gordon opted in to the Adknowledge email network on or about September 27, 2003 and did not unsubscribe from the network.
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Rather she was suppressed in or around February 2006, when we learned of the lawsuit filed by James Gordon. Finally, Exhibit "D" also clearly reflects that the email was not successfully sent to or received by Adknowledge (page 1 of 3 states "Hi. This is the qmail-send program.... I'm afraid I wasn't able to deliver your message....").

I certify and declare under the penalty of perjury under the laws of the State of Washington and the United States that to my knowledge the foregoing is true and correct.

Executed on this 6th day of July, 2007.

Michael Fitzgerald

Attachment	Date	Size
MotFeesCostsReplyFitzgeraldDec.pdf	08/08/07 11:01 pm	35.57 KB