VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX

AMERICA ONLINE, INCORPORATED,
Plaintiff,

v.

GREATDEALS.NET
Serve: Mr. Stephen Martindale 2285 Chestnut Burr Court Reston, VA 20191-2256,

MARTINDALE EMPOWERMENT CORP.
Serve: Mr. Stephen Martindale 2285 Chestnut Burr Court Reston, VA 20191-2256,

GREAT DEALS
Serve: Mr. Stephen Martindale 2285 Chestnut Burr Court Reston, VA 20191-2256,

And

STEPHEN MARTINDALE
2285 Chestnut Burr Court Reston, VA 20191-2256,
Defendants.

IN CHANCERY NO

NATURE OF THE ACTION

1. Defendants have repeatedly bombarded America Online, Incorporated ("AOL") and its customers ("members") by sending them millions of unsolicited and unwanted electronic ("e-mail") messages, flooding AOL’s computer systems and its members’ mailboxes with advertisements for a computer buying club and computer hardware that encourage recipients to view Defendants’ website. This junk e-mail clogs AOL’s e-mail system and – as evidenced by tens of thousands of complaints – irritates and annoys AOL’s members. By sending their junk e-mail advertisements through AOL, Defendants have shifted the costs of advertising to AOL and its members.

2. Defendants have ignored AOL’s demands that they stop transmitting unwanted and unsolicited junk e-mail through AOL’s computers and computer networks. Indeed, they have persisted in using deceptive mailing practices to evade AOL’s filters and prevent AOL from blocking their messages by technical means.

3. Defendants’ indiscriminate mass mailings and deceptive practices cause serious and irreparable injury to AOL by impairing the functioning of AOL’s e-mail system and harming AOL’s business reputation and goodwill among its members. Defendants’ conduct violates 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.), Washington State’s Unsolicited Commercial Electronic Mail Act, and constitutes a trespass upon AOL’s personal property in violation of Virginia common law. Defendants have been unjustly enriched by their unauthorized use of AOL’s property and services.

4. AOL has tried for months to stop Defendants’ misappropriation of its computers and computer networks by demanding that Defendants desist from using the AOL network to disseminate their junk e-mail, as well as through technical means, but its attempts at self-help have proved unsuccessful. By this action, AOL seeks an injunction to prevent further unlawful conduct, and compensatory and punitive damages. AOL also asks that a constructive trust be imposed in favor of AOL on all monies received by Defendants as a result of their bulk e-mail activities.

THE PARTIES

5. 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 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.

6. On information and belief, Defendant Stephen Martindale is a citizen of Virginia whose place of residence is 2285 Chestnut Burr Court, Reston, Virginia 20191-2256, but who operates several businesses at 12030 Sunrise Valley Drive, Reston, Virginia 22091. On information and belief, he operates and transacts business, or has operated and transacted business, from the InterNIC-registered Internet domain "greatdeals.net" and opens and maintains accounts at various Internet Service Providers ("ISPs") through which he sends unsolicited bulk e-mail to AOL and its members.

7. On information and belief, Defendant Great Deals is a d/b/a designation for Stephen Martindale, with its principal place of business at 2285 Chestnut Burr Court, Reston, Virginia 20191-2256. On information and belief, Great Deals operates and transacts business, or has operated and transacted business, from the InterNIC-registered Internet domain "greatdeals.net" and opens and maintains accounts at various ISPs through which it sends unsolicited bulk e-mail to AOL and its members.

8. On information and belief, Defendant Martindale Empowerment Corp. is a Virginia corporation, with its principal place of business at 12030 Sunrise Valley Drive, Reston, Virginia 22091. On information and belief, Defendant Stephen Martindale is the President and owner of Martindale Empowerment Corp. On information and belief, Martindale Empowerment Corp. operates and transacts business, or has operated and transacted business, from the InterNIC-registered Internet domain "greatdeals.net" and opens and maintains accounts at various ISPs through which it sends unsolicited bulk e-mail to AOL and its members.

9. On information and belief, Defendant Greatdeals.net is a d/b/a designation for Martindale Empowerment Corp., with its principal place of business at 12030 Sunrise Valley Drive, Reston, Virginia 22091. On information and belief, Greatdeals.net operates and transacts business, or has operated and transacted business, from the InterNIC-registered Internet domain "greatdeals.net" and opens and maintains accounts at various ISPs through which it sends unsolicited bulk e-mail to AOL and its members.

10. On information and belief, Defendants Stephen Martindale, Greatdeals.net, Great Deals, and Martindale Empowerment Corp. jointly operate and transact business from the aforementioned domain and various ISP accounts, acting in concert with one another and with third party contractors and/or agents unknown to Plaintiff AOL to send unsolicited bulk e-mail to AOL and its members.

JURISDICTION AND VENUE

11. This action is a civil case in chancery seeking an injunction against Defendants’ unlawful practices and compensatory and punitive damages. This court has jurisdiction of this action pursuant to Va. Code Ann. § 17.1-513 and § 8.01-620.

12. Venue is preferred in this County as provided by Va. Code Ann. § 8.01-261(15)(c) because Plaintiff seeks the award of an injunction against acts being done in this County. Venue is permissible in this County pursuant to Va. Code Ann. § 8.01-262(4) because Defendants have caused tortious injury in this County and Plaintiff’s causes of action arose in this County, pursuant to Va. Code Ann. § 8.01-262(1) because Defendants reside or have their principal places of business in this County, and pursuant to Va. Code Ann. § 18.2-152.10.

FACTS

THE INTERNET

13. Defendants committed the acts complained of herein 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. All of the networks comprising the Internet are connected in a manner that permits any computer on the Internet to communicate with any other computer on the Internet.

14. The Internet makes it possible for a user rapidly to exchange electronic messages – 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 addresses. 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.

15. The InterNIC, a consortium funded 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 telephone numbers used by individuals and businesses for their telephone communications, IP addresses ensure orderly communications between computer networks on the Internet. An IP address consists of 4 sets of up to 3 numbers in the following format: 123.123.123.123.

16. The InterNIC also assigns "domain" names 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 proper names to identify themselves and their communications, rather than cumbersome twelve-digit IP addresses. Businesses are typically assigned domain names with the ".com" designation (e.g., "aol.com"), while educational and governmental organizations usually are assigned ".edu" and ".gov" domain names (e.g., "topuniversity.edu" and "federalagency.gov"). Because each domain name corresponds to a unique IP address, the InterNIC performs the important task of maintaining the directories that allow computers connected to the Internet to find the appropriate IP address for a particular domain requested by a user.

17. An e-mail address consists of a name corresponding to the individual user’s account (the "user name") and the name of the domain within which the user’s account is located, separated by the "@" symbol (e.g., "jdoe@company.com").

18. 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.

19. 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 Web site operated at the "Greatdeals.net" domain advertised by Defendants in their promotional messages would enter the Web address "http://www.greatdeals.net."

20. An e-mail message sent across the Internet can be embedded with a "hypertext link" that allows the recipient to be "transported" directly to a Web site with a single click of a computer mouse. Defendants’ e-mails contain a hypertext link to the Web address "http://www.greatdeals.net."

21. E-mail messages contain "headers," generated by the sender's ISP, which 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.

22. 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 used in the electronic header. Various "stealth" software programs, designed for and marketed to the senders of junk e-mail, facilitate the falsification of e-mail header information in mass mailings.

JUNK E-MAIL

23. It costs virtually nothing to transmit an e-mail message, regardless of the number of recipients. Considerable resources are expended by the ISP, such as AOL, at the receiving end, however, storing, sorting, and delivering the e-mail.

24. Although the sender of junk mail sent through the postal system must pay the costs of advertising through the publishing of materials and the costs of delivery through the purchase of envelopes and postage, there are no such costs to the sender of e-mail on the Internet. Instead, the costs of storing, sorting, and delivering junk e-mail are borne – involuntarily – by the recipient’s ISP, and ultimately by the recipients themselves. When computer and staff resources are consumed by massive batches of junk e-mail, the delivery of legitimate, authorized e-mail is often impaired.

25. Bulk e-mailers engage in this practice precisely because the medium permits them to shift their marketing costs onto the recipients’ ISPs, such as AOL. The ability to send junk e-mail from "throw away" Internet accounts or with falsified headers, and thereby avoid accountability to the consumer, has made junk e-mailing a tempting marketing method for disreputable would-be entrepreneurs peddling dubious products and services.

26. The practice of unsolicited bulk e-mailing is widely condemned in the Internet community. AOL’s Terms of Service specifically prohibit AOL members from using their AOL accounts to send unsolicited bulk e-mail, and expressly reserve AOL’s right to block unsolicited e-mail sent to its members from the Internet. Further, AOL’s Unsolicited Bulk E-Mail Policy expressly precludes the use of AOL’s computers and computer network for the transmission from the Internet to AOL members of unsolicited bulk e-mail and e-mail with deceptive addressing or that otherwise utilizes techniques to obscure the source of the e-mail.

DEFENDANTS’ JUNK E-MAILING PRACTICES

27. On information and belief, Defendants have obtained vast mailing lists of AOL members’ e-mail addresses and transmitted – at virtually no cost to Defendants – massive quantities of unsolicited e-mail messages across the Internet through AOL’s computers and computer networks to AOL members.

28. Defendants’ e-mails regularly advertise the GreatDeals.net Computer Buying Club and computer hardware and solicit recipients to go to the GreatDeals.net website

29. 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, instead of transmitting e-mails from one consistent domain and using one consistent user name, Defendants transmit e-mails from numerous, constantly varying domains and employ randomly generated user names, making it appear as though their messages come from a number of different sources rather than one particular (traceable) account.

30. Defendants also 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.

31. After receiving thousands of member complaints, AOL, in a letter dated March 10, 1998, informed Defendants that the sending of unsolicited bulk e-mail through the AOL Network that uses deceptive addressing is unauthorized use of the AOL Network and may be unlawful. Defendants, however, failed to respond to AOL’s letter and have continued sending junk mail to AOL. Indeed, subsequent to AOL’s notice to Defendants, AOL received many thousands of additional complaints from members who have received Defendants’ junk e-mail.

DEFENDANTS’ UNSOLICITED JUNK E-MAIL CAUSES SUBSTANTIAL HARM TO AOL’S COMPUTER SYSTEMS AND BUSINESS REPUTATION

32. 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").

33. Any e-mail that is sent through the Internet to an AOL address is first received and sorted by AOL’s mail servers. The AOL mail system has a finite capacity designed to accommodate the demands imposed by AOL’s members. The system is not designed to accommodate, and it is vulnerable to disruption by, indiscriminate mass mailings from Defendants and other senders of unsolicited bulk e-mail. AOL has been forced to devote thousands of hours of staff time to address member complaints about unsolicited e-mail and millions of dollars for new equipment to process these mass mailings.

34. Defendants’ repeated transmission of batches of tens of thousands of unsolicited e-mail messages also degrades the performance of AOL’s mail system, forcing AOL to divert computer processing resources away from the handling of authorized e-mail for AOL members. The aggregation of processing time required to process Defendants’ and others’ 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.

35. Defendants’ transmission of unsolicited bulk e-mail also results in a substantial quantity of mail sent to invalid e-mail addresses, which causes additional harm to the performance of AOL’s mail systems. 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 Defendants’ computers consume considerable processing resources within AOL’s e-mail systems.

36. AOL has undertaken various technical efforts to permit its members to opt out of receiving messages from domains and IP addresses that are or have been the subject of member complaints regarding unsolicited bulk e-mail. These methods, however, rely on truthful e-mailing practices to be successful. When senders, such as Defendants, mail from multiple and varying domains, employ random and varying user names, relay their messages through the servers of innocent third parties, or falsify the headers on their e-mails to indicate that their messages are from domains that AOL does not filter, AOL's computers and computer system cannot detect and filter the e-mail.

37. Defendants’ practice of sending unsolicited commercial e-mail through AOL’s mail system has the effect of unfairly shifting to AOL and its members the costs of transmitting Defendants’ promotional messages, as well as the costs of advertising Defendants’ products. It is AOL, rather than Defendants, that pays the costs of the additional computer and staff resources that must be devoted to the processing of the batches of e-mail that Defendants have transmitted through AOL’s computer systems. AOL members also pay for these unwanted bulk messages in time and effort wasted in opening, reading, and discarding the messages.

38. Through their practice of sending unsolicited bulk e-mail through AOL’s computers to AOL’s members, Defendants have obtained advertising on the AOL service at no cost to themselves. However, advertising on AOL is a service that AOL only provides by contract to businesses that remunerate AOL for this service. Defendants have shifted their advertising costs to AOL and have advertised on AOL without AOL’s authorization and without remunerating AOL for this benefit, as all legitimate businesses do.

39. Defendants’ activities have particularly 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 Defendants’ 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 Defendants’ activities, 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. The costs of member dissatisfaction ultimately are borne by AOL, in lost business and harm to its reputation and goodwill.

40. The transmission of unsolicited bulk e-mail messages, like those sent by Defendants, is a practice widely condemned in the Internet community. The receipt of unsolicited, unwanted e-mail is one of the principal complaints voiced by AOL members. AOL receives more than one hundred thousand such complaints per day, and it has received tens of thousands of e-mails from its members complaining about Defendants’ unsolicited bulk mailings. Examples of complaints from AOL members about Defendants’ unsolicited e-mail, and attaching Defendants’ e-mails, are attached hereto at Exhibit A.

41. Defendants’ transmission of unsolicited commercial e-mail to AOL has damaged, and continues each day to damage, AOL’s business reputation and goodwill, and its relationship with its members. Indeed, AOL has received tens of thousands of member complaints about Defendants’ junk e-mail. Moreover, Defendants’ evasion of the blocking tools used by AOL to prevent the receipt of unsolicited commercial e-mail is likely to foster the erroneous impression amongst AOL members that AOL has authorized, endorsed, or otherwise approved of Defendants’ transmission of unsolicited promotional messages.

COUNT I
VIOLATIONS OF THE COMPUTER FRAUD AND ABUSE ACT
18 U.S.C. § 1030

42. AOL repeats and realleges the allegations of paragraphs 1 through 41 of the Bill of Complaint.

43. 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 that term is defined in 18 U.S.C. § 1030(e)(2)(B) because they are used in interstate commerce and communication.

44. Through their use of AOL’s computers to send AOL and its members millions of unauthorized and unsolicited junk e-mail, Defendants have knowingly caused the transmission of information causing damage to AOL’s protected computers, in violation of 18 U.S.C. § 1030(a)(5)(A).

45. Further, through their use of AOL’s computers, Defendants have intentionally accessed AOL’s computers for their own purposes and without authorization, in violation of 18 U.S.C. § 1030(a)(5)(B) and (C), and causing damage or loss to AOL aggregating at least $5,000 in value during a one-year period preceding the filing of this Bill of Complaint.

46. 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.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Granting permanent injunctive relief against Defendants and all persons acting in concert or participating with them, enjoining them from:

(1) Sending, transmitting, or otherwise facilitating the transmission of, any unsolicited electronic mail to AOL or its members;

(2) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, which mail bears any reference to or hypertext link to any Web domain registered to or used by the Defendants, or any product or service sold or marketed by the Defendants;

(3) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, bearing any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

(4) Acquiring, transferring, or compiling AOL member addresses for use in transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted e-mail by AOL and its members;

b. Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants’ violation of the Computer Fraud and Abuse Act;

c. Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

d. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

COUNT II
VIOLATIONS OF THE VIRGINIA
COMPUTER CRIMES ACT
(Va. Code Ann. § 18.2-152.2 et seq.)

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

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

49. Without authority, Defendants have repeatedly transmitted batches of tens of thousands of unsolicited commercial e-mail messages to AOL’s computers and computer networks in the Commonwealth of Virginia.

50. In transmitting these batches of tens of thousands of unsolicited commercial e-mail messages, Defendants have knowingly falsified portions of the Internet "header" information on their e-mail messages and employed other deceptive mailing practices for the purpose of attempting to conceal from AOL and its members the quantity of e-mail being sent and the source of the transmission.

51. Without authority, Defendants have obtained access to and used AOL’s computers and computer networks 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.

52. Without authority, Defendants have obtained access to and willfully used AOL’s computers and computer networks with the intent to obtain AOL’s computer services, in violation of Va. Code Ann. §§ 18.2-152.6.

53. Additionally, on information and belief Defendants have knowingly falsified portions of the Internet "header" information on their unsolicited commercial e-mail messages for the purpose of preventing AOL’s computers from transmitting "bounce" messages for invalid addresses back to the computers that Defendants use to transmit their e-mail.

54. The foregoing acts of Defendants have caused injury to AOL, AOL’s computers, and computer networks, and to AOL’s business relations, reputation, and goodwill.

55. Unless restrained and enjoined, Defendants threaten to continue to engage in the unlawful transmissions complained of herein, impairing the services provided to AOL members and causing AOL irreparable damage. Because of Defendants’ pattern and practice of using numerous and varying domain names and IP addresses from which to carry out their unlawful transmissions, AOL otherwise will be obliged to maintain multiple actions concerning the activities of these Defendants. 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, therefore, inadequate to compensate for the injuries threatened.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Granting permanent injunctive relief against Defendants and all persons acting in concert or participating with them, enjoining them from:

(1) Sending, transmitting, or otherwise facilitating the transmission of, any unsolicited electronic mail to AOL or its members;

(2) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, which mail bears any reference to or hypertext link to any Web domain registered to or used by the Defendants, or any product or service sold or marketed by the Defendants;

(3) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, bearing any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

(4) Acquiring, transferring, or compiling AOL member addresses for use in transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted e-mail by AOL and its members;

b. Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants’ violation of the Virginia Computer Crimes Act;

c. Awarding AOL its costs in prosecuting this action; and

d. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

COUNT III
TRESPASS TO CHATTELS UNDER
THE COMMON LAW OF VIRGINIA

56. AOL repeats and realleges the allegations of paragraphs 1 through 55 of the Bill of Complaint.

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

58. Without authorization, Defendants have intentionally and repeatedly obtained access to, and made use of, AOL’s computer equipment and e-mail system to transmit unsolicited commercial e-mail to AOL members for Defendants’ own economic benefit.

59. Through their repeated transmission of unsolicited commercial e-mail in high volume to AOL’s computer equipment and e-mail system, Defendants have wrongfully exercised dominion over AOL’s computers and e-mail system in derogation of AOL’s rights to that property. Defendants’ wrongful exercise of dominion over AOL’s computer equipment has impaired the operation and worth of AOL’s commercially valuable e-mail system.

60. Defendants’ conduct constitutes a trespass upon AOL’s chattels in violation of Virginia common law.

61. As a result of Defendants’ trespass upon AOL’s computers and computer networks, 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 the good will of its existing members. Unless enjoined by this Court, Defendants will continue these acts of trespass, causing AOL continuing and irreparable damage.

62. 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.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Granting permanent injunctive relief against Defendants and all persons acting in concert or participating with them, enjoining them from:

(1) Sending, transmitting, or otherwise facilitating the transmission of, any unsolicited electronic mail to AOL or its members;

(2) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, which mail bears any reference to or hypertext link to any Web domain registered to or used by the Defendants, or any product or service sold or marketed by the Defendants;

(3) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, bearing any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

(4) Acquiring, transferring, or compiling AOL member addresses for use in transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted e-mail by AOL and its members;

b. Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants’ acts of trespass to chattels under Virginia common law;

c. Awarding AOL punitive damages against Defendants, jointly and severally, in an amount sufficient to punish and deter these Defendants and others from similar malicious, oppressive, and fraudulent conduct in the future;

d. Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

e. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

COUNT IV
VIOLATION OF WASHINGTON STATE’S
UNSOLICITED COMMERCIAL ELECTRONIC MAIL ACT

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

64. 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").

65. 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.

66. On information and belief, the commercial electronic mail messages sent by Defendants used a third party’s Internet domain name without permission of the third party. Defendants’ e-mail messages misrepresented information identifying the point of origin or transmission path of the commercial electronic mail message.

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

68. 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.

69. 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 attorney’s fees.

70. 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.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Granting permanent injunctive relief against Defendants and all persons acting in concert or participating with them, enjoining them from:

(1) Sending, transmitting, or otherwise facilitating the transmission of, any unsolicited electronic mail to AOL or its members;

(2) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, which mail bears any reference to or hypertext link to any Web domain registered to or used by the Defendants, or any product or service sold or marketed by the Defendants;

(3) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, bearing any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

(4) Acquiring, transferring, or compiling AOL member addresses for use in transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted e-mail by AOL and its members;

b. Awarding AOL damages as provided by Washington State’s Unsolicited Commercial Electronic Mail Act;

c. Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

d. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

COUNT V
COMMON LAW CONSPIRACY TO COMMIT TRESPASS TO CHATTELS AND VIOLATE FEDERAL AND STATE STATUTES

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

72. On information and belief, Defendants have conspired and combined with third parties, including but not limited to designers and purchasers of the e-mail address lists and the information on how to engage in bulk e-mailings that escape AOL’s filters, to send unauthorized bulk e-mail to and through AOL’s proprietary computers to AOL members -- wrongfully exercising dominion over AOL’s computers and impairing the operation and worth of AOL’s commercially valuable system – and thereby to commit trespass to chattels under Virginia common law.

73. On information and belief, Defendants have conspired and combined with third parties to transmit unsolicited commercial e-mail messages to and through AOL’s computers and computer networks located in the Commonwealth of Virginia employing false pretenses for the purpose of concealing from AOL the actual source and quantity of messages sent, and thereby obtaining access to and use of AOL’s computers and computer networks with the intent to obtain property and computer services, in violation of the Virginia Computer Crimes Act.

74. On information and belief, Defendants have conspired and combined with third parties to transmit unsolicited commercial e-mail messages to and through AOL’s protected computers and computer networks located in the Commonwealth of Virginia employing false pretenses for the purpose of concealing from AOL the actual source and quantity of messages sent, and thereby intentionally obtaining access to and use of AOL’s computers and computer networks and causing damage, in violation of 18 U.S.C. § 1030.

75. On information and belief, Defendants have conspired and combined with third parties to transmit unsolicited commercial e-mail messages to and through AOL’s computers and computer networks to AOL members that Defendants knew or had reason to know were Washington residents, employing false pretenses for the purpose of concealing the actual source and quantity of messages sent, in violation of Washington State’s Unsolicited Commercial Electronic Mail Act.

76. The effectuation of these conspiracies through the transmission by Defendants of unauthorized bulk e-mail to AOL and through AOL’s e-mail system to its members 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 good will among its members.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Granting permanent injunctive relief against Defendants and all persons acting in concert or participating with them, enjoining them from:

(1) Sending, transmitting, or otherwise facilitating the transmission of, any unsolicited electronic mail to AOL or its members;

(2) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, which mail bears any reference to or hypertext link to any Web domain registered to or used by the Defendants, or any product or service sold or marketed by the Defendants;

(3) Sending, transmitting, or otherwise facilitating the transmission of, any electronic mail to or through AOL’s proprietary computer network or to AOL members, bearing any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin; and

(4) Acquiring, transferring, or compiling AOL member addresses for use in transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted e-mail by AOL and its members;

b. Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants’ acts of civil conspiracy under Virginia common law;

c. Awarding AOL punitive damages against Defendants, jointly and severally, in an amount sufficient to punish and deter these Defendants and others from similar malicious, oppressive, and fraudulent conduct in the future;

d. Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

e. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

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

78. Defendants have, without authorization and through deceptive means that hide the source of their e-mail, used AOL’s computers and computer systems to distribute their bulk advertisements, transferring to AOL the costs of Defendants’ marketing. By involuntarily transmitting the Defendants’ bulk e-mail to AOL members, AOL has conferred a benefit on the Defendants. The Defendants have obtained and retained the benefit in circumstances that render it inequitable for the Defendants to retain the benefit without paying for its value.

79. As a result of Defendants’ unjust enrichment, a constructive trust should be imposed in favor of AOL on all monies received by the Defendants as a result of their bulk e-mail activities.

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants Greatdeals.net, Great Deals, Martindale Empowerment Corp., and Stephen Martindale:

a. Imposing a constructive trust in favor of AOL on all monies received by the Defendants as a result of their bulk e-mail activities;

b. Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

c. Granting AOL such other or further relief as to equity may seem just and the nature of the case may require.

Respectfully submitted,

By:_____________________________
AKIN, GUMP, STRAUSS, HAUER
& FELD, L.L.P.

Anthony T. Pierce
Va. Bar No. 27862
Shari L. Fleishman
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, DC 20036
Phone: (202) 887-4000
Attorneys for Plaintiff
America Online, Incorporated
Of Counsel
Randall J. Boe (VSB# 27951)
Charles D. Curran
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1428
Dated: December 18, 1998

DEMAND FOR JURY TRIAL

Plaintiff America Online, Incorporated ("AOL") demands a trial by jury on all claims asserted in Plaintiff's Bill of Complaint.

Respectfully submitted,

By:_____________________________
AKIN, GUMP, STRAUSS, HAUER
& FELD, L.L.P.

Anthony T. Pierce
Va. Bar No. 27862
Shari L. Fleishman
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, DC 20036
Phone: (202) 887-4000
Attorneys for Plaintiff
America Online, Incorporated
Of Counsel
Randall J. Boe (VSB# 27951)
Charles D. Curran
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1428