SpamSuite.com

Remember when I said "This will be the sad saga of this short lawsuit filed by a little company that can't seem to deliver its email without the assistance of the federal judiciary"?

Well, here it is! This is the official request by e360Insight to have the federal judiciary "make the Bad Man let me send my email!"

The two attachments are not included in the OCR version, but are in the PDF file. One is an extremely conclusory affidavit by Linhardt wherein he vigorously protests that what he sends isn't spam and that Comcast is generally mean and evil for prosecuting a Denial of Service attack against him by "consuming, destroying, altering, or withholding" e360's email. He also claims to be following Comcast's Terms of Service agreement (except, apparently, for the arbitration clause) which is attached as the second exhibit.

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

E360INSIGHT, LLC,
Plaintiff,

v.

COMCAST CORPORATION,
Defendant.

MOTION FOR PRELIMINARY INJUNCTION

NOW COMES, Plaintiff, e360lnsight, LLC ("e360"), by and through its attorneys, Carla E. Buterman of the Law Office of Carla E. Buterman and Joseph L. Kish of Synergy Law Group, LLC, and for its Motion for a Preliminary Injunction pursuant to Fed. R. Civ. P. 65 against Defendant, Comcast Corp. ("Comcast"), states as follows:

INTRODUCTION

e360, an internet marketing company seeks a preliminary injunction against Comcast, an internet service provided ("ISP") to enjoin Comcast from wrongfully and repeatedly blocking email sent by e360 to e360's customers, who have requested to receive e-mail from e360, from violating e360's first amendment rights by blocking e-mail based on the content of the e-mail, from transmitting inaccurate response data in an attempt to significantly delay e360's connections in order to virtually incapacitate e360's computer mail servers and from transmitting inaccurate bounce data regarding the status of e-mail accounts managed by Comcast. Comcast's activity has already caused e360 to lose substantial and significant business.

Despite e360 informing Comcast that e360 was only sending e-mail to customers who have requested that e360 send them e-mail and despite informing Comcast of the damage its
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actions caused (and continues to cause) e360, Comcast continues its refusal to allow the delivery of e-mail sent to the customers of e360 who receive e-mail through their own e-mail accounts with Comcast. Further, Comcast has continued to transmit inaccurate response data to e360's computers that are trying to send such e-mail. Finally, Comcast has continued to transmit inaccurate bounce data regarding the status of e-mail accounts managed by Comcast. Comcast should be preliminarily enjoined from (1) arbitrarily blocking all e-mails sent by e360 to e360's customers who have e-mail accounts with Comcast; (2) violating e360's free speech rights by censoring e360's e-mail based on the content of the e-mail; (3) transmitting inaccurate bounce data; and (4) engaging in denial of service attacks on 360's computers.

FACTUAL BACKGROUND

1. e360 is an e-mail marketing company whose business practices have, at all times relevant to the allegations in the Complaint, complied with, and continue to comply, with all federal and state requirements, laws and standards pertaining to the sending of commercial e-mail, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 USC § 7701 (CAN-SPAM). (See Affidavit of David Linhardt attached hereto as Exhibit A).

2. e360 delivers its messages to its customers at addresses provided by said customers. Id. The customers thus require e360 to use Internet Service Providers ("ISP") to deliver the requested e-mail. Id.

3. Comcast is an ISP that provides e-mail service to its customers and who has agreed to act as an intermediary in delivering and receiving e-mail on behalf of its customers.

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4. 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 Motion as Exhibit B.

5. At all relevant times, e360 has complied with Comcast's Acceptable Use and Abuse Policies. (See Exhibit A).

6. e360 is hired by and partners with companies that wish to market their products or services using the internet. Id. This marketing is targeted to persons "opting in" to a list whereby they agree to accept e-mail announcements and/or advertisements. Id. These persons sign up at websites owned by e360 or at websites owned by e360's marketing partners. Id. e360 regularly attempts to verify the desire by such customers to receive e-mails utilizing a "double opt-in" process, which involves sending a confirmatory e-mail allowing the customer to affirm or terminate its decision to receive marketing e-mail. (See Exhibit A). Those customers who affirm their interest in receiving e-mail messages are included in subsequent e-mail messages until they unsubscribe at a later date or until e360 receives information showing the e-mail account in question is closed. Id.

7. e360 provides the consumer the ability to "opt-out" of receiving e-mail in every email sent and promptly complies with every request made by a consumer. Id.

8. e360 does not engage in "spamming.". e360 only sends e-mail messages to persons who first sign up or opt-in and provide their e-mail address to e360 or to one of e360's marketing partners. Id. 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 e-mail. Id.

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9. At all relevant times, and commencing as early as 2005, Comcast regularly blocked e-mail e360 attempted to send to Comcast customers (who had signed up to receive such e-mail) including some of who have double-confirmed their wish to receive the e-mail. (See Exhibit A). The blocking of these messages by Comcast interferes with e360's ability to do business and interferes with e360's business relationship with its customers who use Comcast. Id.

10. All instances where Comcast has blocked e360 e-mail addresses are too voluminous to mention in this complaint. As a recent example, Comcast blocked virtually all of e360's e-mail messages on August 23, 2007. e360 attempted to send e-mail 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/helpMq/index.jsv?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 e-mail 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
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it may be the case that another party using your mail server has sent spam, even if you have not."

11. 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 e-mail messages to avoid triggering the block of its rightfully sent e-mail messages or the delivery of this error message. (See Exhibit A).

12. e360 has on numerous occasions contacted Comcast in attempts to get Comcast to allow e360's e-mail to get through to its customers. Id.

13. At all relevant times, and possibly commencing as early as 2005, Comcast has regularly held or severely and significantly delayed e-mail e360 has attempted to send to its customers who utIllzed Comcast as an ISP who have signed up to receive such e-mails, and Comcast has refused to release such e-mails through its system, a practice commonly known as "tar-pitting" and is type of "denial of service attack" on e360's mail servers. Id. Comcast regularly transmits inaccurate response data in an attempt to significantly delay e360's connections in order to slow or incapacitate e360's mail servers. Id. 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 e-mail message to a customer using Comcast's e-mail service. Id. (A typical e-mail message sent to a recipient where the ISP is not engaged in a denial of service attack is delivered in less than 2-5 seconds). Id. During this time, Comcast's mail servers transmit inaccurate response information to keep the connection active and to erode e360's system capacity. In doing so, Comcast has interfered with e360's
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ability to send e-mail, not just to Comcast customers who are also e360 customers, but to all e360 customers by shutting down e360's servers. (See Exhibit A).

14. At all times relevant hereto, and commencing as early as 2005, Comcast has regularly blocked e-mail e360 has attempted to send to its customers who utIllze Comcast as an ISP and who have signed up to receive such e-mail, including customers who have double confirmed their wish to receive e-mail solely on the grounds that such e-mail contains specific words or phrases, such as "free". Id. Such arbitrary censorship by Comcast violates e360's First Amendment rights and is an unacceptable infringement of e360's commercial speech based on content.

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

16. Comcast has engaged in `denial-of-service' attacks on e360's network and computer system by consuming, destroying, altering or withholding e-mail sent by e360 to its customers. Id. Such attacks overwhelm and disable e360's network and prevent it from sending e-mail to or receiving e-mail from e360's consumers in an attempt to halt e360's business. Id.

17. Comcast has transmitted inaccurate information to e360's mail servers specific to e-mail addresses contained on e360's opt-in marketing list. Id. The responses sent by Comcast mail servers to e360 are inaccurate because they contain information indicating that the e-mail address is invalid and not active. As an e-mail marketer, e360 relies on the information from Comcast's mail servers to determine whether e360's customer e-mail addresses are still active and deliverable. Id. e360 has information and reason to believe Comcast is intentionally
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transmitting inaccurate bounce information to e360 in an attempt to discourage e360 from sending additional e-mail messages. (See Exhibit A). By transmitting inaccurate bounce information, Comcast is effectively destroying e360's proprietary assets and the value contained in e360's opt-in database of e-mail addresses. Id.

ARGUMENT

I Legal Standards Applicable to Preliminary Injunctions

Because this action is based on diversity jurisdiction, the Court must apply the substantive law of Illinois. Assn Ben. Servs. v. Caremark Rx, Inc., 493 F.3d 841, 849; 2007 U. S. App. LEXIS 16750 * 16 (7th Cir. 2007).

Preliminary injunctions are interlocutory remedies. Interlocutory injunctions are intended to provide immediate but durational relief prior to the final adjudication of a controversy on the merits. Hartlein v. Ill. Power Co., 151 Ill.2d 142, 601 N.E.2d 720, 176 Ill.Dec. 22 (1992). The purpose of an interlocutory injunction is to preserve the status quo . Hartlein v. Ill. Power Co,, 151 Il1.2d 142, 601 N.E.2d 720, 176 Ill.Dec. 22 (1992); Citizens Utilities Co. of Ill. v. O'Connor, 116 Ill.App.3d 369, 451 N.E.2d 946, 71 Ill.Dec. 792 (2nd Dist. 1983). "Status quo" is defined as the "last, actual, peaceable, uncontested status which preceded the pending controversy." Postma v. Jack Brown Buick, Inc., 157 Ill.2d 391, 626 N.E.2d 199, 202, 193 I1l.Dec. 166 (1993).

Another expressed purpose of an interlocutory injunction is the prevention of a threatened wrong or further perpetration of injury until the merits of the case can be decided. People v. Kerr-McGee Chem. Corp., 142 Ill.App.3d 1104, 492 N.E.2d 1003, 97 H.Dec. 344 (2nd Dist. 1986). The prevention of the dissipation or destruction of property is an additional ground cited for the issuance of an interlocutory injunction. In re Marriage of Joerger, 221 Ill.App.3d 400, 581 N.E.2d 1219, 163 Ill.Dec. 796 (4th Dist. 1991). See also Save the Prairie Socy. v. Greene Dev. Group, Inc., 323 I1l.App.3d 862, 752 N.E.2d 523, 256 Ill.Dec. 643 (1st Dist. 2001).

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Illinois courts consider four factors before an injunction will be granted: (1) that the plaintiff possesses a clearly ascertained right in need of protection; (2) that the plaintiff will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for the plaintiffs injury; and (4) that the plaintiff is likely to be successful on the merits of its action. People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 781 N.E.2d 223, 269 Ill. Dec. 426 (2002); Callis, Papa, Jackstadt & Halloran, P. C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365, 748 N.E.2d 153, 254 Ill. Dec. 707 (2001).

II Comcast's' Conduct Meets The Legal Standard For Granting A Preliminary Injunction.

A. Plaintiffs Rights in Need of Protection.

The standard for establishing a sufficient legal right requires only that the party seeking relief raise a fair question as to the existence of the right claimed. Baal v. McDonald's Corp., 97 Ill. App. 3d 495, 500, 422 N.E. 2d 1166, 1171, 52 Ill. Dec. 957 (1st Dist. 1981); In re Marriage of Estelle Weber, 182 Ill. App. 3d 212, 219, 537 N.E. 2d 1024, 1029, 130 Ill. Dec. 695 (1st Dist. 1989). The right to conduct a business may be sufficient to warrant the issuance of an injunction. Conti. Cablevision of Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 606 N.E.2d 587, 179 Ill. Dec. 755 (1st Dist. 1992); Morrison Metalweld Process Corp. v. Valent, 97 Ill. App. 3d 373, 422 N.E. 2d 1034, 52 Ill. Dec. 825 (1st Dist. 1981). Moreover, threatened interests in business goodwill are valid business interests in need of protection. Wilson v. Wilson, 217 Ill. App. 3d 844, 577 N.E.2d 1323, 160Ill. Dec. 752 (1st Dist. 1991) (citing U-Haul Co. of C. Ill. v. Hindahl, 90 Ill. App. 3d 572, 577 (3rd Dist. 1980).

Here, e360 has clearly established legal rights that need protecting under the circumstances brought on by Comcast's conduct. e360 has lost its right to conduct its business as a result of Comcast's unilateral decision to (1) block e-mail sent by e360 to e360's customers

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who happen to use Comcast as their ISP and e-mail host based on various criteria; including (2) impermissibly blocking e-mail based on content in direct violation of e360's constitutional right of free speech.; (3) transmitting inaccurate response data in an attempt to significantly delay e360's connections in order to virtually incapacitate e360's computer mail servers; and, (4) transmitting inaccurate bounce data regarding the status of e-mail accounts managed by Comcast.

This is not a case where an injunction is being sought "on a mere suspicion of an intended wrong, or upon speculation or conjecture, or because there is a mere possibility or apprehension on part of the plaintiff that some illegal act will be done." See Callis v. Norfolk, 195 Ill. 2d 356, 366, 748 N.E. 2d 153, 159, 254 Ill. Dec. 707 (2001); Smith Oil Corp. v. Viking Chem. Corp., 127 Ill. App. 3d 423, 468 N.E. 2d 797, 82 Ill. Dec. 250 (2nd Dist. 1984). Here, improper acts have already occurred and continue to occur. There is no reason to suspect that additional improper acts will not occur in the future absent this Court enjoining Comcast's actions.

B. Plaintiff Will Suffer Irreparable Harm

Under Illinois law, "an injury is `irreparable' when it is of such a nature that the injured party cannot be adequately compensated or when damages cannot be measured by any pecuniary standard." Falcon Ltd. v. Corr's Natl. Bevs., h7C, 165 Ill. App. 3d 815, 821, 520 N.E.2d 831, 117 Ill. Dec. 480 (1st Dist. 1987) "Irreparable harm" does not necessarily mean injury that is beyond repair. "Irreparable harm" can also mean harm of a continuing nature. Lucas v. Peters, 318 I l1.App.3d 1, 741 N.E.2d 313, 251 Ill.Dec. 719 (1st Dist. 2000). Here, Comcast's continued improper conduct will cause significant injury to e360, not only in loss of business due to its inability to deliver commercial e-mail, but also to its reputation of having a highly accurate and

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valid list of e-mail recipients that have opted in to receive commercial e-mail messages. This is harm that is clearly irreparable.

To put a monetary value on the investment of time in building e360 is incalculable. Injury to goodwill and reputation contributes to a loss of competitive position, which ultimately results in the loss of future customers and revenues. Goodwill and reputation are intangible and incapable of being measured. Wilson v. Wilson, 217 Ill. App. 3d 844, 577 N.E. 2d 1323, 160 Ill. Dec. 752 (1st Dist. 1991); A-Tech Computer Servs., Inc. v. Wayne Soo Hoo, 254 Ill. App. 3d 392, 627 N.E. 2d 21, 193 Ill. Dec. 862 (1st Dist. 1991). Courts have held that even if immediate damages could be calculated, injury to reputation, goodwill and potential loss is incapable of adequate compensation. U-Haul Co. of C Ill. v. Hindahl, 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 45 Ill. Dec. 854 (3rd Dist. 1980). The amount of damage is manifested as a loss of customers, goodwill and future profits. These are so variable in nature that damages are hard to assess with any degree of accuracy. A-Tech Computer Services, Inc., 254 Ill. App. 3d at 401.

Moreover, "a showing of irreparable injury is related to the proof of a legitimate business interest. Once a protectible interest has been established, injury to plaintiff will presumably follow if that interest is not protected." Donald McElroy, Inc. v. Delaney, 72 Ill. App. 3d 285, 294, 389 N.E.2d 1300, 27Ill. Dec. 892 (1st Dist. 1979).

Irreparable harm would occur absent an injunction because nothing could be done to restore the status quo should the Comcast be allowed to continue to draw into question the quality of e360's e-mail list.

C. There is No Adequate Remedy at Law
An adequate remedy at law is a remedy that is clear and complete and that would provide the same practical and efficient resolution as an injunction would provide. Tainalunis v. Georgetown 134 Ill.Dec. 223 (4th Dist. 1989). Money
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damages may not be an adequate remedy if the potential loss of future revenues is incapable of adequate computation or damages are difficult to quantify at the time of hearing. Eagle Books, Inc. v. Jones, 130 I1l.App.3d 407, 474 N.E.2d 444, 85 Il1.Dec. 716 (4th Dist.), cert. denied, 106 S.Ct. 249 (1985).

In this case, it is impossible to calculate the damages associated with the damaged reputation with e360's current business partners and future prospects or the value of e360's very existence. Money damages here cannot adequately compensate e360 for the wrongful destruction of an otherwise viable business whose goodwill can never be recaptured. Nor can e360's reputation be adequately remedied by monetary damages.

Courts have held that even if immediate damages could be calculated, injury to reputation, goodwill and potential loss is incapable of adequate compensation. U-Haul Co. of C. Ill. v. Hindahl, 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 45 Ill. Dec. 854 (3rd Dist. 1980). The amount of damage is manifested as a loss of customers, goodwill and future profits. These are so variable in nature that damages are hard to assess with any degree of accuracy. A-Tech Computer Services, Inc., 254 Ill. App. 3d at 401.

D. Plaintiff is Likely to Succeed on the Merits

To establish a likelihood of success on the merits, a party "is not required to make out a case which will in all events warrant relief at a final hearing." All Seasons Excavating Co. v. Bluthardt, 229 Ill. App. 3d 22, 26, 593 N.E. 2d 679, 682, 170 Ill. Dec. 790 (1st Dist. 1992); Tie Sys ,Inc. v. Telcom Midwest, Inc., 203 I11.App.3d 142, 560 N.E.2d 1080, 148 Ill.Dec. 483 (1st Dist. 1990). Rather, a party needs only raise a "fair question as to the existence of the rights claimed, [and] lead the court to believe that it will probably be entitled to the relief sought if the proof sustains the obligations." Buzz Barton & Assocs, Inc. v. Giannone, 108 Il1.2d 373, 382,
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483 N.E.2d 1271, 1275 91 Ill. Dec. 636 (1985); Keefe-Shea Jt. Venture v. Evanston, 332 Ill. App. 3d 163, 174, 773 N.E. 2d 1155, 1164, 266Ill. Dec. 85 (1st Dist. 2002).

Here Comcast's blocking of e360's e-mail and Comcast's continued transmission of inaccurate response data clearly gives rise to viable claims for tortious interference with prospective economic advantage; violation of computer fraud and abuse act; violation of e360's right to free speech; and, unfair competition and business practices. e360 has clearly raised a fair question as to the existence of the rights it claims -- an interest in the viabIllty of the business of e360 as a going concern. e360 has also presented a fair question that it will likely succeed on the merits, given the nature of Comcast's conduct, Comcast's refusal to cease its blocking of e360's e-mail, Comcast's refusal to follow the rules it promulgates and the direct and dire consequences this conduct undeniably has had on e360's ability to conduct its business.

Comcast's behavior threatens the very existence of e360 and is systematically decreasing the value of e360's e-mail database. e360 has no other alternative than to pursue the protection of its rights through injunctive relief.

E. The Equities Balance In Plaintiffs' Favor

In addition to consideration of the above criteria, a fifth factor frequently considered by courts is that the benefits of granting the injunction outweigh the possible harm that defendant might suffer as a result. Limestone Dev. Corp. v. Village of Lemont, 284 Ill.App.3d 848, 672 N.E.2d 763, 219 I11.Dec. 910 (1st Dist. 1996); Gold v. ZiComnnn. Co., 196 Ill.App.3d 425, 553 N.E.2d 404, 142 Il1.Dec. 890 (1st Dist. 1989).

Under the circumstances of this case, the benefit of granting an injunction clearly outweighs any possible harm to Comcast. While the harm to e360 resulting from Comcast's conduct is undeniable, it is difficult to imagine what harm might possibly befall Comcast should it be required to permit the transmission of e-mail from e360 to individuals who have already
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requested that they receive said e-mail. Comcast suffers no material harm whatsoever as a result of this Court granting the preliminary injunction e360 seeks.

CONCLUSION

e360 cannot await a trial to obtain the permanent injunction it seeks in this matter. By then, Comcast could succeed in putting e360 out of business or, at a minimum, destroying its reputation to the point that it can never recover. e360 has clearly established all of the elements necessary to obtain a preliminary injunction and have further established that Comcast will suffer no material harm by the injunction issuing and pending through the remainder of this litigation.

WHEREFORE, Plaintiff, e3601nsight, LLC, respectfully requests that this Court enter an Order granting this motion and entering an order:

a. Requiring Comcast to allow the transmission of e-mail from e360 to Comcast customers;

b. requiring Comcast to cease and desist from the transmission of bogus response data; and

c. granting any further relief the court deems just and appropriate.

Respectfully submitted,
e360Insight, LLC.,
By: /s/ Joseph L. Kish
One of Its Attorneys
Joseph L. Kish (6197916)
Synergy Law Group, LLC
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
MotPrelimInj.pdf	02/25/08 6:48 pm	2.63 MB