AOL v. Forrest Dayton, et al.

Nature Of America Online’s Claims

1. On information and belief, Defendants Forrest Dayton, Power Promo, First Reply (hereinafter "Dayton"), and unknown distributors and sales agents working on their behalf (hereinafter "John Does 1-100"), have bombarded America Online, Inc. ("AOL") and its members with billions of deceptive, unsolicited, and unwanted electronic mail ("e-mail") messages, or are vicariously liable for such conduct. (Hereinafter, all Defendants, including the John Does 1-100, are collectively referred to as "Defendants.") Defendants’ junk e-mail has resulted in hundreds of thousands of member complaints and co-opted AOL’s valuable computer and staff resources for uses inconsistent with and inimical to those intended by AOL. In addition to sending bulk e-mail, Dayton is the creator of two black-market software programs called "Stealth Mass Mailer" and "E-Mail Pro" that enable their users to harvest the e-mail addresses of AOL members and transmit massive amounts of deceptively-labeled junk e-mail. Stealth Mass Mailer incorporates specific "stealth technology" designed to evade AOL’s electronic filters. Stealth Mass Mailer’s "stealth technology" has no legitimate purpose. All Defendants market and distribute these programs.

2. Defendants’ indiscriminate mass mailings and marketing and distribution of Stealth Mass Mailer and E-Mail Pro have caused and continue to cause serious and irreparable injury to AOL. By their actions, Defendants have violated the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.), the Virginia Computer Crimes Act (Va. Code Ann. § 18.2-152.2 et seq.), the Lanham Act (15 U.S.C. § 1051 et seq.), and have trespassed upon AOL’s personal property, defrauded AOL, violated Washington state law banning the transmission of false or unauthorized e-mail, unjustly enriched themselves at AOL’s expense, and negligently injured AOL in violation of Virginia common law. On information and belief, Defendants have also conspired with one another and others to engage in unlawful conduct.

3. By this action, AOL seeks an injunction to prevent further unlawful conduct, compensatory and punitive damages, restitution, attorneys’ fees and costs of suit, and a constructive trust on all moneys received by Defendants as a result of their unlawful actions.

Plaintiff America Online, Inc.

4. AOL is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 22000 AOL Way, Dulles, Virginia 20166. AOL provides a proprietary, content-based online service. AOL owns and maintains computers and other devices that enable its members to obtain various services, including access to the Internet. Its central computer system, which includes specialized computers (called "servers") that process e-mail messages, is located in Reston, Virginia. E-mail sent to and from AOL members is processed through and stored on these computers. AOL’s computers in Virginia likewise provide the functionality for, and maintain the content of, the AOL service provided throughout the United States and abroad.

5. AOL has registered the domain name "aol.com" with the InterNIC. This domain name is used extensively in interstate commerce and is recognized worldwide as a source identifier of AOL’s online services.

Defendants Forrest Dayton, Power Promo, and First Reply

6. On information and belief, Forrest Dayton is a resident of Georgia residing at 2930 Carrollton Court, Marietta, Georgia 30066. Dayton conducts his bulk e-mailing activities under his own name as well as the names "First Reply" and "Power Promo." On information and belief, First Reply and Power Promo are sole proprietorships, and are not incorporated.

7. On information and belief, Dayton operates and transacts business using, among others, the e-mail account "dayton@onramp.net" and the Internet domain name "firstreply.com."

Defendants John Does 1-100

8. John Does 1-100 are distributors and resellers of Stealth Mass Mailer and E-Mail Pro whose identities are currently unknown to AOL. On information and belief, John Does 1-100 advertise these computer programs on the Internet and through bulk e-mail and have sold numerous copies of these two black market bulk e-mailing programs. On information and belief, John Does 1-100 have also conspired with Dayton and others to act in ways that have caused substantial injury to AOL.

Jurisdiction and Venue

9. This action arises out of, among other things, Defendants’ violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.) and the Lanham Act (15 U.S.C. § 1051 et seq.). This Court has subject matter jurisdiction of this action based on 28 U.S.C. §§ 1331, 1332 and 1338, and has supplemental jurisdiction of plaintiff AOL’s state law claims based on 28 U.S.C. § 1367.

10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and this Court has personal jurisdiction over Defendants because Defendants have caused tortious injury in this Eastern District of Virginia, and because a substantial part of the events giving rise to AOL’s claims, together with a substantial part of the property that is the subject of AOL’s claims, are situated in this judicial district.

11. On information and belief, Defendants have transmitted or caused to be transmitted junk e-mail to AOL’s computers and computer system, and gained other unauthorized access to AOL’s computers and computer system, which are physically present in this district.

The Internet

12. Defendants committed the acts complained of herein primarily through their use of the electronic messaging capabilities of the Internet. The Internet is a complex "network of networks" that interconnects innumerable smaller groups of linked computers. The networks that constitute the Internet are connected in a manner that permits any computer on the Internet to communicate with any other computer on the Internet.

13. The Internet makes it possible for a user rapidly to exchange e-mail with other Internet users in the United States and abroad. E-mail can be sent virtually instantaneously from one individual to another, or from an individual user to a large group of addressees. The Internet’s e-mail functionality makes it possible for a sender easily to transmit tens and even hundreds of thousands of copies of a single message almost instantaneously.

14. The InterNIC, a consortium run by the National Science Foundation, is responsible for assigning the unique addresses used by computers to communicate through the Internet. These unique addresses are referred to as Internet Protocol ("IP") addresses. Like the unique street addresses and telephone numbers used by individuals and businesses for their mail and telephone communications, IP addresses ensure orderly communications between computer networks on the Internet. An IP address is comprised of 4 sets of numbers (ranging from 0 to 255) separated by periods, in the following format: 209.84.148.9.

15. The InterNIC also assigns common names called "domains" to individuals, businesses, and organizations using the Internet. Domain names function as convenient shorthand for users of the Internet, giving Internet users the option of using readily understandable names to identify themselves and their communications, rather than cumbersome twelve-digit IP addresses. Businesses, for example, are typically assigned domain names with the suffix ".com" (pronounced "dot com") (e.g., "aol.com"), while educational and governmental organizations usually are assigned ".edu" and ".gov" domain names (e.g., "topuniversity.edu" and "federalagency.gov"). Each domain name corresponds to a unique IP address. The InterNIC maintains the directories that allow computers connected to the Internet to find the appropriate IP address for a particular domain name requested by a user.

16. An e-mail address consists of a name corresponding to the individual user’s account name (the "user name") and the name of the domain within which the user’s account is located, separated by the "@" (pronounced "at") symbol (e.g., "dayton@onramp.net" used by Forrest Dayton).

17. E-mail messages contain "headers," generated by the sender’s ISP, that are designed to identify the sender’s return e-mail address, the message’s "subject," and other information related to the transmission of the e-mail message (such as the date, time, and routing information). AOL’s system is configured such that these "headers" are excerpted at the beginning of each message and appear in full text at the conclusion of the message.

18. A sender who wishes to conceal his true identity and e-mail address can falsify the header information in his e-mail transmissions or manipulate the information that appears in the electronic header by using a "stealth" software program, such as Stealth Mass Mailer designed by Dayton.

19. The World Wide Web (the "Web") allows Internet users to visit "Web sites" using a communications interface—a "Web browser"—that enables the user to view the text and/or pictorial contents of each Web site. Web sites bear unique domain names that enable Internet users to direct their browsers to the computer hosting the desired Web site. For example, an Internet user wishing to visit the AOL Web site at the "aol.com" domain would enter the Web address for this domain—"http://www.aol.com."

20. A significant feature contributing to the popularity of the Internet is its ability to "link" Web sites directly into e-mail messages. Messages may be embedded with "hypertext links" to Web sites, which allow a user to access the Web site contained in the hypertext link simply by double-clicking on the link contained within the e-mail message. Web sites may in turn be embedded with hypertext links to other Web sites, making it possible for an Internet user quickly to move from an e-mail message onto the Web and then between Web sites by simply clicking a computer mouse.

Junk E-Mail

21. Unlike traditional junk mail sent through the U.S. Postal Service where the costs of delivery are paid for through the purchase of stamps, solicited bulk e-mail which can be sent (for a price) to a proprietary list of "opt-in" recipients, or pop-up banners on Web pages which can be purchased (for a price), it costs virtually nothing to advertise through a junk e-mail message, regardless of the number of recipients, because the costs of storing, sorting, and delivering junk e-mail are borne involuntarily by the recipients’ ISPs. In fact, one reason bulk e-mailers engage in the practice is because the medium permits them to shift their marketing costs onto others.

22. Bulk e-mailers also engage in the practice because it allows them to conceal their identity and thereby avoid accountability to the consumer. The relative anonymity, achieved through fraudulent means, has made junk e-mailing an irresistibly tempting marketing method for disreputable entrepreneurs like Defendants who market products whose sole purpose is to send deceptive bulk e-mail.

23. Because it is time-consuming, annoying, a tool for fraud, and a parasitic advertising technique whose costs are foisted upon the recipients, the practice of unsolicited bulk e-mailing is widely condemned in the Internet community and prohibited by most ISPs, including AOL. AOL’s Terms of Service specifically prohibit AOL members from using their AOL accounts to harvest AOL member e-mail addresses or to send unsolicited bulk e-mail, and expressly reserve AOL’s right to block unsolicited bulk e-mail sent to its members from the Internet. In addition, AOL’s Unsolicited Bulk E-mail Policy prohibits both AOL members and non-members from sending bulk e-mail to AOL or its members.

24. On information and belief, Dayton maintains or has maintained memberships with AOL, which memberships have been used to transmit junk e-mail and collect or "harvest" members’ e-mail addresses.

25. AOL’s e-mail system was created solely for the benefit of AOL members, who pay prescribed fees and who agree to adhere to AOL’s Terms of Service. The e-mail system is operated through dedicated servers that store and route e-mail messages between AOL’s members. AOL permits its members to use the "aol.com" domain name, which when combined with a unique user name, gives each member a distinctive e-mail address from which to exchange e-mail with Internet users (e.g., "member96@aol.com").

26. Every e-mail message that is sent through the Internet to an AOL e-mail address is first received and sorted by AOL’s e-mail servers located in Reston, Virginia. The AOL e-mail system has a finite capacity designed to accommodate the demands imposed by AOL’s members. AOL’s computers and computer system are not designed to accommodate, and are vulnerable to disruption by, indiscriminate mass mailings of unsolicited e-mail like those sent by Defendants. AOL has been forced to spend tens of millions of dollars for new equipment to process mass e-mailings like Defendants’ and thousands of hours of staff time to address member complaints about unsolicited e-mail. The repeated transmission of massive batches of unsolicited e-mail messages by Defendants and other junk e-mailers degrades the performance of AOL’s computers and computer system, forcing AOL to divert computer processing resources away from the handling of authorized e-mail for AOL members. The aggregation of time required to process these bulk e-mail transmissions slows the "delivery" of all e-mail to AOL members, and has at times resulted in significant delays in members’ receipt of their e-mail from the Internet.

27. The transmission of unsolicited bulk e-mail by Defendants and other junk e-mailers also results in a substantial quantity of e-mail sent to invalid e-mail addresses, which causes additional harm to the performance of AOL’s computers and computer system. For each message that contains undeliverable recipients, AOL’s computers must attempt to transmit a message back to the originating site of the e-mail message to inform it of the delivery failure. Attempts to send such "bounce" messages back to the sender’s computers consume considerable processing resources within AOL’s computers and computer system.

28. AOL has undertaken various technical efforts to filter bulk e-mail and give its members control over the e-mail they receive. These methods, however, rely on truthful e-mailing practices to be successful. When senders, such as Defendants, falsify information concerning the source of their e-mail messages, move from one ISP to another or from one e-mail account to another, and use software that conceals their identity, AOL’s ability to detect and filter bulk e-mail is significantly hampered.

29. The practice of sending junk e-mail through AOL’s computers and computer system has the effect of unfairly shifting to AOL and its members the costs of transmitting these promotional messages. It is AOL, rather than the junk e-mailer, that pays the costs of the additional computer and staff resources that must be devoted to the processing of the massive batches of e-mail that junk e-mailers transmit through AOL’s computers and computer system. AOL members also pay for these unwanted bulk messages in time and effort wasted in opening, reading, and discarding the messages.

30. Junk e-mailers’ activities have especially adverse consequences for those AOL members who pay for their access to AOL’s online services and e-mail capability in increments of time. Time spent by such a member accessing, reviewing, and discarding junk e-mail messages is paid for by the member according to the member’s hourly billing rates. These AOL members thus end up paying twice for the activities of junk e-mailers, through the increased costs and delays in AOL’s operations occasioned by the processing of mass quantities of e-mail, and through increased monthly billings for their connection time with AOL.

31. All AOL members are forced to wade through the barrage of junk e-mail messages, most of which are unwanted. As a result, nearly all members dislike junk e-mail. In fact, the receipt of junk e-mail is the number one complaint voiced by AOL members about its e-mail system. AOL receives more than two hundred thousand such complaints per day. The costs of member dissatisfaction ultimately are borne by AOL, in lost business and harm to its reputation and goodwill.

Defendants’ Junk E-Mailing Practices

32. Dayton is a prolific spammer. On information and belief, Dayton transmits between 75 and 105 million bulk e-mail messages per month. On information and belief, John Does 1-100 send additional unknown quantities. All of this e-mail is sent nearly free of charge to Defendants, but imposes significant costs on AOL and its members.

33. Defendants employ numerous deceptive practices to mask their identities and the source and quantity of their transmissions, and thereby evade AOL’s electronic filtering mechanisms. For example, Defendants intentionally forge the headers in the electronic return addresses of their messages to conceal the domains from which they operate and transmit their e-mail. The purpose and effect of these practices is to prevent AOL from using technical means to block the unsolicited e-mail messages before they are delivered. On information and belief, Defendants also use other techniques currently unknown to AOL.

34. On information and belief, Defendants use AOL member accounts to harvest AOL member addresses, and send bulk e-mail to other AOL members. This activity exceeds authorized access to AOL’s computer facilities and contravenes AOL’s Terms of Service.

35. Defendants’ transmission of unsolicited bulk e-mail advertising various products and services to AOL members has damaged, and continues each day to damage, AOL’s business, its goodwill, and its relationship with its members.

Defendants’ Bulk E-Mail Software Programs

36. On information and belief, Dayton, with the assistance of unknown third parties, created Stealth Mass Mailer and E-Mail Pro. Stealth Mass Mailer was intentionally designed to enable its users to transmit e-mail messages in large quantities using "stealth technology." "Stealth technology" enables a user to falsify or obscure the source and transmission path of the e-mail message, transmit large numbers of e-mails in numerous small bundles, and engage in other techniques intended to evade AOL’s and other ISPs’ electronic blocking filters, and generally evade detection. E-Mail Pro is a software program used to collect and manage lists of e-mail addresses, including addresses of AOL members. Stealth Mass Mailer and E-Mail Pro are not sold through traditional retail outlets, but are sold only through the Internet. The Defendants sell, distribute and market these programs directly and through a chain of distributors to thousands of persons who have used these programs to transmit bulk e-mail messages to AOL members.

COUNT I
VIOLATIONS OF THE
COMPUTER FRAUD AND ABUSE ACT
(ALL DEFENDANTS)

37. AOL repeats and realleges the allegations of paragraphs 1 through 36 of the Complaint.

38. In connection with its provision of online and Internet computer services to its members, who are citizens of the Commonwealth of Virginia and other states, AOL maintains computers and a computer system that are "protected computers" as the term is defined in 18 U.S.C. § 1030(e)(2)(B) because they are used in interstate commerce and communication.

39. AOL’s Terms of Service specifically prohibit AOL members from using their AOL accounts to harvest or collect the e-mail addresses of other AOL members or send bulk e-mail to other members. AOL’s Unsolicited Bulk E-mail Policy prohibits both AOL members and non-members from sending bulk e-mail to AOL or its members.

40. On information and belief, Defendants maintain or have maintained AOL memberships that have been used by Defendants to harvest or collect the e-mail addresses of other AOL members and to send bulk e-mail to other AOL members.

41. On information and belief, Defendants have also transmitted to AOL’s protected computer facilities billions of junk e-mail messages without valid authorization and in contravention of AOL’s express policies. On each occasion on which Defendants transmitted batches of unsolicited e-mail messages, Defendants knew that the transmission of these e-mail messages would impair the operation of AOL’s protected computer facilities and AOL’s provision of e-mail services to its members.

42. In transmitting batches of bulk e-mail messages, Defendants knowingly falsified portions of the Internet "header" information, and engaged in other deceptive practices, for the purpose of attempting to conceal from AOL and its members the actual domain and IP address which served as the point of origin of the transmission.

43. On information and belief, Defendants knowingly and intentionally caused the transmission of information to, and accessed, AOL’s protected computer facilities, or are vicariously liable for such acts, and as a result caused damage, or recklessly caused damage in violation of 18 U.S.C. § 1030(a).

44. The damages suffered by AOL as a result of Defendants’ conduct include the impairment of the integrity and/or availability of data, programs, systems, and/or information in AOL’s protected computer facilities, and aggregate to at least $5,000 in value in the year preceding the date of filing of this Complaint.

45. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing unlawful acts. AOL’s remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COUNT II
DILUTION OF INTEREST IN TRADE/SERVICE MARKS
(ALL DEFENDANTS)

46. AOL repeats and realleges the allegations of paragraphs 1 through 45 of the Complaint.

47. In connection with its provision of online and Internet services, AOL has registered and used extensively in interstate commerce the registered mark "AOL," which identifies its Internet and online services and which qualifies as a "famous" mark within the meaning of 15 U.S.C. § 1125(c)(1).

48. Dayton has knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the registered mark "AOL" after this mark became famous in interstate commerce, in connection with Dayton’s sale, offering for sale, and distribution of Dayton’s products and services. On information and belief, John Does 1-100 have also knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the registered mark "AOL" after this mark became famous in interstate commerce, in connection with their sale, offering for sale, and distribution of products and services.

49. The Defendants’ intentional and unauthorized use of the "AOL" mark in connection with unsolicited messages is likely to dilute AOL’s interest in the registered "AOL" mark, in violation of the Lanham Act, 15 U.S.C. § 1125(c)(1), by linking the "AOL" mark to the transmission of unsolicited bulk e-mail, a practice which is widely condemned by the Internet community and which AOL does not maintain, tolerate, or condone.

COUNT III
FALSE DESIGNATION OF ORIGIN
(ALL DEFENDANTS)

50. AOL repeats and realleges the allegations of paragraphs 1 through 49 of the Complaint.

51. Dayton has, and on information and belief John Does 1-100 have, engaged in acts of unfair competition by falsely and without authorization using AOL’s domain name "aol.com," or a slight variation thereof, in the electronic headers of unsolicited e-mail messages in connection with the sale, offering for sale, and distribution in interstate commerce of bulk e-mailing software and other products and services, or are vicariously liable for such acts. Defendants’ use of "aol.com" amounts to a false representation that AOL is the point of origin of unsolicited, unwanted e-mail messages, in violation of the Lanham Act, 15 U.S.C. § 1125(a).

52. Particularly because "aol.com" incorporates and bears AOL’s registered trademark and service mark, Defendants’ misappropriation of AOL’s domain name is likely to cause confusion and to deceive AOL members and others into the erroneous belief that AOL is connected to, affiliated with, approves of, or condones Defendants’ junk e-mail, causing serious and irreparable damage to AOL in the form of lost goodwill and business reputation.

53. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing acts. AOL’s remedy at law is inadequate to compensate it for the ongoing injuries caused by such acts.

COUNT IV
VIOLATIONS OF THE VIRGINIA
COMPUTER CRIMES ACT
(ALL DEFENDANTS)

54. AOL repeats and realleges the allegations of paragraphs 1 through 53 of the Complaint.

55. In connection with the provision of online and Internet computer services to its members who are citizens of the Commonwealth of Virginia and other States, AOL maintains in the Commonwealth of Virginia computers and a computer system that are "property" within the meaning of Va. Code Ann. § 18.2-152.2.

56. On information and belief, Defendants have repeatedly transmitted, without authorization, batches of unsolicited commercial e-mail messages to AOL’s computers and computer system in the Commonwealth of Virginia, or are vicariously liable for such acts.

57. In transmitting these batches of unsolicited commercial e-mail messages, Defendants have employed deceptive tactics for the purpose of attempting to conceal the source of these e-mails from AOL and its members.

58. On information and belief, Defendants have obtained access to, and used AOL’s computers and computer system without authority and with the intent to, obtain the use of AOL’s property and services by false pretenses, in violation of Va. Code Ann. § 18.2-152.3, or are vicariously liable for such acts.

59. On information and belief, Defendants have willfully used AOL’s computer or computer network, with intent to obtain computer services without authority, in violation of Va. Code Ann. § 18.2-152.6, or are vicariously liable for such acts.

60. The foregoing acts by Defendants have caused injury to AOL, AOL’s computers, and computer system, and to AOL’s business relations, reputation and goodwill.

61. Defendants threaten to continue to engage in the unlawful acts complained of herein, and unless restrained and enjoined will continue to do so, impairing the services provided to AOL members and causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing unlawful acts. AOL’s remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COUNT V
VIOLATION OF WASHINGTON STATE’S
UNSOLICITED COMMERCIAL ELECTRONIC MAIL ACT
(ALL DEFENDANTS)

62. AOL repeats and realleges the allegations of paragraphs 1 through 61 of the Complaint.

63. AOL maintains computer facilities that provide and enable computer access by multiple users to its computer servers and provide access to the Internet and thereby qualifies as an "Interactive computer service" as that term is defined by the Washington State Unsolicited Commercial Electronic Mail Act (the "Act").

64. Defendants have initiated the transmission of numerous commercial electronic mail messages to numerous electronic mail addresses belonging to AOL members that the Defendants knew, or had reason to know, were held by Washington residents.

65. The commercial electronic mail messages sent by Defendants used a third party’s Internet domain name without permission of the third party, misrepresented information identifying the point of origin or transmission path of the commercial electronic mail message, and/or contained false or misleading information in the subject line.

66. Defendants transmitted these commercial electronic mail messages after the effective date of the Act.

67. Defendants’ actions constitute numerous violations of the Act and, as provided by the Act, are also unfair and deceptive acts in trade or commerce and an unfair method of competition in violation of 19.86 RCW (1997), the Washington Consumer Protection Act.

68. By virtue of Defendants’ violations of the Act and 19.86 RCW (1997), AOL is entitled to liquidated damages in the amount provided by the Act, and/or any other remedies provided by 19.86 RCW (1997), including reasonable attorneys’ fees.

69. Defendants threaten to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL.

COUNT VI
TRESPASS TO CHATTELS UNDER THE COMMON LAW
(ALL DEFENDANTS)

70. AOL repeats and realleges the allegations of paragraphs 1 through 69 of the Complaint.

71. The computers and computer system that constitute AOL’s e-mail system are the personal property of AOL.

72. On information and belief, Defendants have intentionally and repeatedly obtained unauthorized access to, and made unauthorized use of, AOL’s computers and computer system to transmit unsolicited commercial e-mail to AOL members, for Defendants’ own economic benefit, or are vicariously liable for such acts. On information and belief, Defendants accessed and used AOL’s computers and computer systems knowing that such access and use was unauthorized by AOL.

73. Through their practice and pattern of repeatedly transmitting unsolicited commercial e-mail in high volume through AOL’s computers and computer system, Defendants have wrongfully exercised dominion over AOL’s computers and computer system in denial of AOL’s rights to that property. Defendants’ wrongful exercise of dominion over AOL’s computers and computer system has deprived AOL and its customers of the legitimate and intended use of this commercially valuable system.

74. Under the common law, Defendants’ conduct constitutes trespass to AOL’s chattels.

75. As a result of Defendants’ trespass to AOL’s chattels, AOL has suffered and will continue to suffer irreparable injury, loss of reputation and pecuniary damages. AOL’s damages include not only pecuniary injury, but the loss of its customers and the loss of the goodwill of its existing customers. Unless enjoined by this Court, Defendants will continue these acts of trespass, thereby causing AOL continuing and irreparable damage.

76. Defendants’ acts of trespass have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in an amount sufficient to punish Defendants and deter Defendants and others from engaging in similar conduct.

77. AOL repeats and realleges the allegations of paragraphs 1 through 76 of the Complaint.

78. Defendants have engaged in fraud by making false representations in e-mail messages and by knowingly and intentionally designing, marketing and distributing software bulk e-mailing programs (Stealth Mass Mailer and E-Mail Pro) that allow others to make false representations.

79. Defendants’ misrepresentations and the misrepresentations accomplished through the use of Stealth Mass Mailer and E-Mail Pro are material because they cause AOL to deliver e-mail messages that AOL has prohibited from its computer system and that AOL would not otherwise process.

80. Defendants’ material misrepresentations and the material misrepresentations accomplished through the use of Stealth Mass Mailer and E-Mail Pro have been made intentionally and knowingly and with the intent to mislead AOL in order to obtain services to which the makers were not entitled.

81. AOL relied on the material misrepresentations of Defendants and the material misrepresentations accomplished through the use of Stealth Mass Mailer and E-Mail Pro by processing bulk e-mail messages that damaged AOL.

82. The material misrepresentations of Defendants and the users of Stealth Mass Mailer and E-Mail Pro are the proximate cause of extensive damage to AOL.

83. On information and belief, Defendants’ acts have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in amount sufficient to punish Defendants and deter Defendants and others from engaging in similar conduct.

84. Defendants threaten to continue to engage in the unlawful acts complained of herein, and unless restrained and enjoined will continue to do so, impairing the services provided to AOL members and causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing unlawful acts. AOL’s remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COUNT VIII
UNJUST ENRICHMENT
AND THE IMPOSITION OF A CONSTRUCTIVE TRUST IN FAVOR OF AOL
(ALL DEFENDANTS)

85. AOL repeats and realleges the allegations of paragraphs 1 through 84 of the Complaint.

86. By transmitting the Defendants’ bulk e-mail messages to AOL members, AOL has conferred a benefit on the Defendants, with knowledge on the part of the Defendants of the conferring of the benefit. The Defendants have accepted or retained the benefit in circumstances that render it inequitable for the Defendants to retain the benefit without paying for its value.

87. As a result of Defendants’ unjust enrichment, Defendants should be ordered to compensate AOL for the value of the services unwillingly provided by AOL, and ordered to disgorge all profits derived from their bulk e-mailing activities. A constructive trust should also be imposed in favor of AOL on all moneys received by the Defendants as a result of their bulk e-mail activities and on all real property, motor vehicles, and other personal property purchased with moneys received by Defendants as a result of their bulk e-mail activities.

COUNT IX
NEGLIGENCE
(ALL DEFENDANTS)

88. AOL repeats and realleges the allegations of paragraphs 1 through 87 of the Complaint.

89. Defendants had a duty to exercise reasonable care in the manufacture, design, sale, and/or distribution of Stealth Mass Mailer and E-Mail Pro.

90. Defendants breached that duty by designing and distributing bulk e-mailing products with stealth features whose sole purpose is to evade AOL’s filtering mechanisms and thereby bombard AOL members with bulk e-mail in contravention of AOL’s policies and property rights.

91. As a proximate result of Defendants’ conduct, Stealth Mass Mailer and E-Mail Pro were purchased and used to inflict tremendous injury upon AOL, which injury was a foreseeable result of Defendants’ conduct.

92. As a result of Defendants’ negligence, AOL has suffered and will continue to suffer irreparable injury, loss of reputation, customers, and goodwill, and pecuniary damages. Unless enjoined by this Court, the Defendants will continue to engage in their negligent conduct, thereby causing AOL continuing and irreparable damage.

COUNT X
COMMON LAW CONSPIRACY
(ALL DEFENDANTS)

93. AOL repeats and realleges the allegations of paragraphs 1 through 92 of the Complaint.

94. On information and belief, Defendants have conspired amongst themselves and with unknown third parties to sell, distribute and market Stealth Mass Mailer and E-Mail Pro and to send unauthorized junk e-mail to and through AOL’s computers and computer system to AOL members, thereby violating each and every cause of action described above.

95. The effectuation of these conspiracies has damaged AOL and its protected computer systems by impairing the integrity and/or availability of data, programs, systems, and/or information, and has damaged AOL’s business relations, reputation, and goodwill among its members, and has conferred a benefit on Defendants.

96. On information and belief, Defendants’ acts of conspiracy have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in amount sufficient to punish Defendants and deter Defendants and others from engaging in similar conduct.

By: ________________________________
LATHAM & WATKINS
Everett C. Johnson, Jr.
Richard P. Bress
Jon L. Praed (VSB #40678)
Matthew R. Lewis
Abid R. Qureshi (VSB #41814)
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
(202) 637-2200
AMERICA ONLINE, INC.
Randall Boe (VSB #27951)
Charles D. Curran
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-3750