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Filed D.C. Superior Court 09 Jun 15 P12:41 Clerk of Court

IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division

CYBERLAW P.C.

 

1200

G St NW Suite 800

Washington, DC 20005

 

Plaintiff

v.

Case No. 2009 CA 003615 B

THELAW.NET CORPORATION

6640

Lusk Blvd. Suite A205

San Diego, CA 92121

Jury Trial Demand

MARK WHITNEY

6640

Lusk Blvd. Suite A205

San Diego, CA 92121

DOES 1-20

 

Defendants

COMPLAINT

Plaintiff, CyberLaw P.C., through counsel, Eric Menhart, files this suit against

Defendants TheLaw.Net, Mark Whitney and Does 1-20 and states as follows:

Introduction

1. This action arises from the transmission of one or more commercial electronic mail

messages (hereinafter, “email”) to Plaintiff in violation of the District of Columbia Spam

Deterrence Act of 2008. See D.C. Code §28-5001 et seq.

Jurisdiction and Venue

2. This Court has jurisdiction over this Complaint pursuant to D.C. Code § 11-921(a)(6).

3. Defendants are subject to jurisdiction in this Court pursuant to D.C. Code § 13-

423(a)(1) because the defendants transact business in the District of Columbia

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4.

Defendants are subject to jurisdiction in this Court pursuant to D.C. Code § 13-

423(a)(2) because they contracts to supply services in the District of Columbia.

5. Defendants are subject to jurisdiction in this Court pursuant to D.C. Code § 13-

423(a)(3) because they have caused tortuous injury in the District of Columbia by an act or

omission in the District of Columbia.

6. Because many of the acts described in Plaintiffs’ complaint occurred within

Washington, DC, venue is appropriate in this Court.

Parties

7. Plaintiff CyberLaw PC is a Maryland professional corporation with its principal place

of business in Washington, DC.

8. On information and belief, Defendant TheLaw.Net is a California corporation with its

principal place of business in San Diego, CA that regularly conducts business in Washington,

DC.

9. On information and belief, Defendant Mark Whitney is a individual residing in San

Diego, that regularly conducts business in Washington, DC.

10. Defendants Does 1-20 are persons, organizations, and/or corporations who, along with

the other Defendants, initiated, conspired in the initiation, or assisted in the transmission of the

emails at issue, but are currently unknown to Plaintiff. Plaintiff will file an amended complaint

once the identities of these Defendants are ascertained in discovery.

The Spam Deterrence Act of 2008 (SDA)

11. In order to prohibit a person or entity from transmitting commercial electronic mail

with false identifying information or false or misleading subject line information the D.C.

2

Council passed the Spam Deterrence Act of 2008. The SDA was codified as D.C. Code §28-

5001 et seq.

12. The SDA provides that “A person or entity shall not (1) Transmit, or assist in the

transmission of, a commercial electronic mail message that: (A) Falsely identifies electronic mail

transmission information, including header information, or other routing information; or (B)

Contains false or misleading information in the subject line.” See D.C. Code §28-5002(a)

13. The SDA further provides that “Any person or entity who receives an electronic mail

message that violates a provision of this chapter

may seek recovery for any damages

sustained and the costs of suit. See D.C. Code §28-5003(a)(1).

14. Specifically, “a person, other than an electronic mail service provider, shall also

recover attorneys' fees and costs, and may recover, in addition to actual damages, liquidated

damages of $500 for each commercial electronic mail message transmitted in violation of this

chapter or $50,000 per day, whichever is less.” See D.C. Code §28-5003(a)(2).

Factual Background

15. TheLaw.Net is in the business of providing legal research services to law firms and

attorneys.

16. TheLaw.Net regularly advertises its services to potential customers via unsolicited

commercial e-mail.

17. On or about October 16, 2008, Defendants sent an unsolicited e-mail advertising legal

research services to Plaintiff at the e-mail address contact@cyberlawonline.com.

18. The domain name “cyberlawonline.com” is owned by the Plaintiff, as demonstrated by

the WHOIS record associated with the domain name. See Plaintiff Exhibit #1.

3

19. WHOIS is a free, publicly available database available on the Internet. Any person that

wishes to ascertain the identity of a domain name owner may do so by running a free search. As

shown in Plaintiff Exhibit 1, the administrative contact for the domain name

“cyberlawonline.com” is Eric Menhart, an attorney for the Plaintiff law firm.

20. The WHOIS record shown in Plaintiff Exhibit 1 plainly demonstrates that any e-mail

address associated with the domain name “cyberlawonline.com” would be an “electronic mail

address held by a resident of the District of Columbia” as described in §28-5002(b)(2).

21. The WHOIS record shown in Plaintiff Exhibit 1 also plainly demonstrates that the

domain name “cyberlawonline.com” is “a domain name registered to a resident of the District of

Columbia” as described in §28-5002(b)(4).

22. Shortly after receiving the October 16, 2008 e-mail from TheLaw.Net, Plaintiff

contacted Defendant at e-mail address “mwhitney@thelaw.net,” which Defendants provided in

the text of each of their emails. Plaintiff politely asked that the Defendants remove all e-mail

addresses associated with the domain names cyberlaw.pro, cyberlawonline.com and

ericmenhart.com, which were all domains owned by Plaintiff. See Plaintiff Exhibit #2.

23. Despite having absolutely no obligation under the SDA to ask Defendants to remove

from their marketing lists e-mail addresses associated with the domain names at issue, Plaintiff

did so in a good faith effort to give Defendants a reasonable opportunity to avoid liability under

the SDA and similar statutes.

24. Despite Plaintiff’s request that the Defendants cease sending commercial e-mail

messages to Plaintiff, Defendants continued to e-mail Plaintiff over a period of approximately

seven months. A spreadsheet listing all of the e-mails sent by Defendants for which Plaintiff has

records is attached. See Plaintiff Exhibit #3.

4

25. Defendants sent no less than forty nine (49) messages to Plaintiff in violation of the

SDA, according to Plaintiff’s records.

26. On information and belief, Plaintiff alleges that Defendants sent even more messages

to Plaintiff. Defendants would have records of each message and are on notice to retain such

records.

27. All of the e-mails sent by Defendants to Plaintiff contained “false or misleading

information in the subject line” as contemplated by the SDA. See §28-5002(a)(1)(B).

28. For example, several e-mails sent by Defendants to Plaintiff had the subject line “Ten

Lawyers Leaping,” yet the body of the e-mail message was a solicitation for legal research

services. See Plaintiff Exhibit #3.

29. Other examples of misleading subject lines were “A MURDER IN MICHIGAN” and

“JOE THE LAWYER?” In each case, the body of the e-mail was a solicitation for legal research

services. See Plaintiff Exhibit #3.

30. Defendants’ emails also falsely identified electronic mail transmission information,

including header information or other routing information, in violation of the SDA. See D.C.

Code §28-5002(a)(1)(A).

31. Defendants appear to have a poor record of compliance with accuracy in their

messages and requests to be removed from their lists. For example, one third party individual

posted the following on his blog:

“An Open Letter to TheLaw.net I get that companies need to market and advertise. However, I don't get spam. I especially do not get spam when I just asked to be taken off of their list on Monday and sent a letter to their president. So, now, here is my letter to him. Maybe some public humiliation and shame will get them to stop spamming people. (Nope, it is not just me. Others have contacted me about them as well.)”

5

See “An Open Letter to TheLaw.net” available at

http://www.thepracticeblog.com/2008/06/an-open-letter.html (last visited May 11, 2009).

32. A poster on the site for the Wisconsin Law Journal website, located at

http://www.wislawjournal.com, also speaks to Defendants penchant for mass email campaigns:

“You’ve probably heard of TheLaw.net because they’ve spammed you, as they have for both Koshollek and me. I talked to the company’s owner, Mark Whitney, about that, who says he has no plans to stop because frankly, it’s working.”

See “Four legal research companies offer mid-priced options” available at

http://www.wislawjournal.com/article.cfm/2008/09/08/Four-legal-research-companies-offer-

midpriced-options (last visited May 11, 2009).

33. Other consumers have had similar complaints about falsity in e-mail messages from

Defendants. For example, in a post entitled “Spam from TheLaw.Net” one consumer laments:

“Is anyone else getting lots of SPAM from The Law.Net? They hit me at least once a week. They are continually changing their Email addresses so that I can't successfully block them. It's getting very annoying. First I was getting Email from Mark Whitney -- multiple variations of the name. Now I'm getting Email from the Postmaster. This business tactic is not endearing me to this company. And I doubt that direct contact with them will solve the problem.”

See “Spam from TheLaw.Net” available at http://listproc.ucdavis.edu/archives/law-lib/law-

lib.log0308/0422.html (last visited May 11, 2009).

Allegations

34. Defendant caused misleading e-mail solicitations to be transmitted to e-mail addresses

owned by Plaintiff on numerous occasions in violation of the SDA.

35. Defendants’ e-mails to Plaintiff were commercial in nature, promoting

the commercial availability of legal research services plans, as well as related products and

services.

6

36. Defendants personally directed, participated in and ratified the actions alleged herein.

37. Defendant and its agents planned, executed, contracted for, directed, managed and

ratified the solicitations described herein.

38. The solicitations alleged herein were done negligently, carelessly, and without regard

for the rights of the recipients to which they were directed.

39. In the alternative, Plaintiff alleges that the solicitations alleged herein were made in a

knowing and willful manner, and were not accidental.

40. Some portions of Defendant’s conduct in participating in, authorizing or ratifying the

solicitations were knowing and willful, and some were negligent.

41. The solicitations consumed Plaintiff’s productive business time.

42. Defendants and any related entities acted as agents for each other, and participated in,

collaborated in, facilitated and ratified all procedures related to the transmissions.

43. All persons and entities who participated in any aspect of the transmissions were

acting as agents of Defendant.

Count I: Violation of Spam Deterrence Act

44. Defendants are in violation of the District of Columbia Spam Deterrence Act of 2008

for transmitting e-mails with false or misleading header information or subject lines. See D.C.

Code §28-5001 et seq.

45. The e-mails at issue contained falsely identified electronic mail transmission

information, including header information, or other routing information in violation of D.C.

Code §28-5002(a)(1)(A).

46. The e-mails at issue contained false or misleading subject lines, in violation of D.C.

Code §28-5002(a)(1)(B).

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Count II: Violation of Consumer Protection Act

47. Defendants are liable under the District of Columbia Consumer Protection Act for their

actions. See D.C. Code § 28-3904.

48. Defendants misrepresented as to a material fact which has a tendency to mislead and

failed to state a material fact when such failure tends to mislead in violation of D.C. Code § 28-

3904.

Prayer for Relief

49. Plaintiff seeks the greater of actual damages or statutory damages, as the evidence at

trial may demonstrate. Plaintiff seeks the following relief:

50. Judgment, pursuant to D.C. Code §28-5003(a), against all Defendants jointly and

severally of $500 per e-mail message, in an aggregate amount of not less than $24,500; and

51. Treble the amount of all damages, pursuant to D.C. Code § 28-3905(k)(1)(A);

52. Costs of the action, pursuant to D.C. Code §28-5003(a)(1) and D.C. Code § 28-

3905(k)(1)(B); and

53. Attorney’s fees, pursuant to D.C. Code §28-5003(a)(2) and D.C. Code § 28-

3905(k)(1)(B); and

54. Pre-judgment and post-judgment interest;

55. Injunctive relief, precluding Defendants from similar actions in the future; and

56. Such further relief as this Court may deem just and proper.

Jury Trial Demand

Plaintiff respectfully demands a trial by jury with respect to each claim in this Complaint.

8

Respectfully submitted,

Respectfully submitted, Eric J. Menhart (Bar ID: 975896) CyberLaw P.C. 1200 G. Street N.W. Suite 800

Eric J. Menhart (Bar ID: 975896) CyberLaw P.C. 1200 G. Street N.W. Suite 800 Washington, D.C. 20005 Phone: 202-904-2818 Fax: 202-403-3436

9

Dated: June 8, 2009

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Registrant:

Eric Menhart PO Box 57192 Washington, District of Columbia 20037 United States

Registered through: GoDaddy.com, Inc. (http://www.godaddy.com) Domain Name: CYBERLAWONLINE.COM Created on: 18-Apr-07 Expires on: 15-Jul-17 Last Updated on: 17-Apr-08

Administrative Contact:

Menhart, Eric webmonarch@yahoo.com PO Box 57192 Washington, District of Columbia 20037 United States (202) 558-2062

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Menhart, Eric webmonarch@yahoo.com PO Box 57192 Washington, District of Columbia 20037 United States (202) 558-2062

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Plaintiff Exhibit #1

Eric Menhart

From:

CyberLaw.Pro [contact@cyberlaw.pro]

Sent:

Thursday, October 16, 2008 7:23 PM

To:

'mwhitney@thelaw.net'

Subject:

Marketing

MARK WHITNEY TheLaw.net Corporation San Diego - Chicago, USA Toll Free: 1.877.4.LAWNET www.thelaw.net mwhitney@thelaw.net

I've removed my addresses from your lists now several times. Please note, that none of the following domains should receive mail from you again:

Ericmenhart.com

Cyberlawonline.com

Cyberlaw.pro

Kindly clear your lists of any addresses at those domains immediately.

I'm confident my wishes will be respected.

Thank you.

Eric Menhart

Plaintiff Exhibit #2

Message No.

Date Received

Subject Line

1

10/20/2008

Recession-Proof Your Legal Research!

2

10/22/2008

LEGAL RESEARCH POWER USER SECRETS!

3

10/27/2008

JOE THE LAWYER?

4

10/30/2008

JOE THE LAWYER?

5

11/10/2008

Make The Transition

6

11/17/2008

Make The Transition

7

11/20/2008

Make The Transition

8

11/24/2008

TheLaw.net Gobbles Up Subscribers!

9

12/1/2008

Search Nationally In 2009!

10

12/4/2008

Search Nationally In 2009!

11

12/9/2008

Ten Lawyers Leaping!

12

12/12/2008

Ten Lawyers Leaping!

13

12/16/2008

Ten Lawyers Leaping!

14

1/5/2009

Search Nationally In 2009!

15

1/7/2009

Stop Wasting Time With Westlaw!

16

1/12/2009

Stop Wasting Time With Westlaw!

17

1/15/2009

Your Westlaw Bailout Plan! $48/month!

18

1/21/2009

Your Westlaw Bailout Plan! $48/month!

19

1/26/2009

Your Westlaw Bailout Plan! $48/month!

20

1/29/2009

What you're missing with Westlaw

21

2/2/2009

America's Most Intuitive Legal Research Application!

22

2/5/2009

America's Most Intuitive Legal Research Application!

23

2/9/2009

Why you love Google & hate legal research.

24

2/11/2009

Why you love Google & hate legal research.

25

2/16/2009

Why you love Google & hate legal research.

26

2/20/2009

Take The West Challenge!

27

2/24/2009

42 /5 1983 & "strip search" & "honor student"

28

2/272009

42 /5 1983 & "strip search" & "honor student"

29

3/4/2009

451 U.S. 527 & 42 /5 1983 & "excessive force" & police

30

3/6/2009

451 U.S. 527 & 42 /5 1983 & "excessive force" & police

31

3/9/2009

for official use only site:defenselink.mil

32

3/12/2009

for official use only site:defenselink.mil

33

3/16/2009

West Attorney Editors v. Advanced Boolean Logic

34

3/18/2009

Supercharge Your Westlaw Results!

35

3/23/2009

A MURDER IN MICHIGAN

36

3/26/2009

Say Goodbye To 'Stumble Over' Research!

37

3/30/2009

Say Goodbye To 'Stumble Over' Research!

38

4/2/2009

11 /5 547 & "preferential transfer" & 11 /5 548 & "fraudulent transfer"

39

4/6/2009

11 /5 547 & "preferential transfer" & 11 /5 548 & "fraudulent transfer"

40

4/9/2009

11 /5 547 & "preferential transfer" & 11 /5 548 & "fraudulent transfer"

41

4/15/2009

foreclosure sale & "equitable lien"

42

4/18/2009

foreclosure sale & "equitable lien"

43

4/21/2009

inequitable division & "community assets"

44

4/24/2009

inequitable division & "community assets"

45

4/28/2009

Know Your Top Ten Most Relevant Opinions

46

5/6/2009

Know Your Top Ten Most Relevant Opinions

47

5/11/2009

Scalia Tackles Sharpie Sniffing!

48

5/18/2009

Scalia Tackles Sharpie Sniffing!

49

5/20/2008

'Alice In Westlawland'

Plaintiff Exhibit #3