UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

AMERICA ONLINE, INC.
Plaintiff,

v.

NATIONAL HEALTH CARE DISCOUNT, INCORPORATED;
Defendant.

CIVIL ACTION NO. _____________

AMERICA ONLINE’S COMPLAINT FOR VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT; THE LANHAM ACT; THE IOWA AND VIRGINIA COMPUTER CRIMES ACTS; THE WASHINGTON UNSOLICITED COMMERCIAL ELECTRONIC MAIL ACT; AND OTHER ACTS IN VIOLATION OF THE COMMON LAW

NATURE OF PLAINTIFF'S CLAIMS

1. Defendant has initiated and sponsored a systematic program of bombarding America Online, Inc. ("AOL") and its members with tens of thousands of deceptive, unsolicited, and unwanted Internet electronic mail ("e-mail") messages advertising its "dental and optical plan". Despite demands by AOL that it cease the intentional use of such unwanted and unsolicited junk e-mail as a means of promoting its business, Defendant has refused to stop these junk mass e-mailings. Further its agents have persisted in using deceptive techniques designed to frustrate AOL's ability to detect and filter Defendant’s junk e-mail messages. Defendant’s junk e-mail clogs AOL's computers and computer system, co-opting valuable computer and staff resources needed to deliver authorized Internet e-mails. Defendant’s junk e-mail also annoys and harasses AOL members who receive such unwanted promotions.

2. Defendant's 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. Defendant has violated the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Lanham Act (15 U.S.C. 1125(a)), the Computer Crimes Acts of the State of Iowa (Ch. 716A, Iowa Code) and the Commonwealth of Virginia (Va. Code Ann. §§ 18.2-152.2 et. seq.), and the Washing ton State Unsolicited Commercial Electronic Mail Act (House File 2752, passed March 25, 1998), and have converted and trespassed upon AOL's chattels and conspired with third parties to engage in unlawful conduct in violation of common law.

3. AOL has demanded that Defendant stop its mass junk mailings and has tried to stop Defendant's misappropriation of its computers and computer system through technical means, but its attempts at self-help have proven unsuccessful. By this action, AOL seeks an injunction to prevent further unlawful conduct, as well as compensatory and punitive damages. AOL also asks that a constructive trust be imposed in favor of AOL on all monies received by Defendant as a result of its bulk e-mail activities.

THE PARTIES

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 ("AOL members") to obtain various services, including access to the Internet. AOL's central computer systems, which include specialized computers (called "servers") that process electronic messages, are located in the Commonwealth of 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 used as a trademark and a service mark the initials "AOL," in various forms and styles, continuously in commerce to identify its products and services since October 1989. This mark has been registered as a trademark upon the Principal Register of the United States Patent and Trademark Office ("PTO"), as United States Registration No. 1,984,337, registered July 2, 1996. The mark has been registered as a service mark upon the Principle Register of the PTO as United States Registration No. 1,977,731, registered June 4, 1996. Copies of these registrations are attached as Exhibit A hereto.

6. AOL has invested substantial resources to promote and protect the AOL trademark and service mark in connection with the interstate and worldwide sale of its products and services.

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

8. Defendant National Health Care Discount, Incorporated is a corporation organized and existing under the laws of the State of Iowa with its principal place of business in the State of Kansas. Its registered office for the State of Iowa is in Sioux City, Iowa.

9. Defendant offers and sells dental and optical discount service plans, and as part of its business engages various persons and companies to promote its services. These persons and companies act as agents of Defendant and in active concert with Defendant to sell its services by means which include those described in this Complaint.

JURISDICTION AND VENUE

10. This action arises out of, among other things, Defendant's violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Lanham Act, 15 U.S.C. §§ 1051 et seq. The court has jurisdiction of this action based on 15 U.S.C. § 1121(a) and 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. The amount in controversy exceeds the sum or value of $75,000, exclusive of interest or costs.

11. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391, because Defendant resides in this judicial district within the definition of 28 U.S.C. § 1391(c).

THE INTERNET

12. Defendant committed the acts complained of herein through its 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.

13. 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 simultaneously to transmit tens and even hundreds of thousands of copies of a single message.

14. 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 addresses. Like the unique street addresses or 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 up to 3 numbers in the following format: 123.123.123.123.

15. 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 name requested by a user.

16. E-mail addresses used on the Internet incorporate domain names. An e-mail address consists of a name corresponding to the individual user's account name and the name of the domain within which the user's account is located, separated by the "@" symbol (e.g. "jdoe@company.com").

17. E-mail messages contain "headers," generated by the sender's Internet Service Provider (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.

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 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

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

20. Although the sender of junk mail sent through the postal system must pay the costs of delivery through the purchase of stamps, there are no stamps on the Internet. Instead, the costs of storing, sorting, and delivering junk e-mail are borne -- involuntarily -- by the recipient's ISP, and ultimately 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.

21. Entities that utilize bulk e-mailers engage in the 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 an irresistibly tempting marketing method for disreputable would-be entrepreneurs peddling get-rich schemes and dubious products and services.

22. 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. In addition, AOL's Terms of Service and E-Mail Policy prohibit members from harvesting or collecting the e-mail addresses of other AOL members. Moreover, AOL’s Unsolicited Bulk E-Mail Policy expressly prohibits the use of AOL’s computer facilities for the transmission of unsolicited e-mail by non-members through the Internet to AOL members.

DEFENDANT’S UNSOLICITED JUNK E-MAILING PRACTICES CAUSE SUBSTANTIAL HARM TO AOL'S COMPUTER SYSTEMS AND BUSINESS REPUTATION

23. 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").

24. 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. AOL's computers and computer system are not designed to accommodate, and are vulnerable to disruption by, Defendant's and others' indiscriminate mass mailings of unsolicited e-mail. AOL has been forced to devote thousands of hours of staff time to address member complaints about this unsolicited e-mail and millions of dollars for new equipment to process the mass mailings.

25. The repeated transmission of massive batches of unsolicited e-mail messages by Defendant and other junk e-mailers also 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.

26. The transmission of unsolicited bulk e-mail by Defendant and other junk e-mailers also results in a substantial quantity of 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.

27. 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 Defendant, mail or when senders permit, direct or induce their agents to do so 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 (e.g., "msn.com" or "aol.com"), or when such senders permit, direct or induce their agents to use such practices, AOL's computers and computer system cannot detect and filter the e-mail.

28. The practice of sending unsolicited commercial 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.

29. Junk e-mailers' 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 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. The costs of member dissatisfaction ultimately are borne by AOL, in lost business and harm to its reputation and goodwill.

30. The receipt of unsolicited, unwanted e-mail is the number one complaint voiced by AOL members about the Internet e-mail system. AOL receives approximately up to one hundred thousand such complaints per day.

31. Defendant has engaged one or more agents to promote its business by means of e-mail. The identity and extent of all of these agents is not known to AOL, but it is known that Defendant’s services are promoted and sold by the means described herein. The actions of Defendant’s agents described herein are the acts of Defendant, and are directed, induced or permitted by the Defendant. Allegations against "Defendant" in this Complaint refer collectively to acts committed by the Defendant directly and to acts for which the Defendant is responsible that are committed by the Defendant through its agents.

32. Defendant’s agents have obtained vast mailing lists of AOL members' e-mail addresses and repeatedly transmitted, at virtually no cost to them, tens of millions of messages -- and up to hundreds of thousands of messages per hour -- across the Internet through AOL's computers and computer networks to AOL's members.

33. Defendant's promotional e-mails solicit interest in a supposed "dental-optical plan". A copy of an example of such a message is attached as Exhibit B hereto.

34. The e-mails in question invite the recipient to "click here" within the message "for more information." If this is done, the recipient computer is placed in contact with a computer server which requests personal information to be entered and transmitted. Exhibit C is a copy of a screen which requests such information. If such information is submitted, the e-mail recipient is directly contacted by Defendant with a sales call, and promotional materials identifying Defendant may be sent. A copy of such promotional materials is attached as Exhibit D.

35. The true identity of the persons creating and transmitting the e-mail is not disclosed in the e-mail, and is actively concealed by various strategies. Defendant’s identity as the service provider being promoted is disclosed for the first time in the direct solicitations made to persons who respond to the e-mail solicitation.

36. The sole purpose of the e-mail messages at issue is to promote the sales of the services of Defendant. Such e-mail messages are sent on behalf of Defendant and with its specific authorization and consent. Defendant is fully aware of the e-mail program conducted on its behalf by its agents.

37. After receiving tens of thousands of member complaints, AOL, by letters dated July 1, 1998, and August 13, 1998, copies of which are attached as Exhibits E and F, notified Defendant it was prohibited from any further use of AOL's proprietary marks, computers and computer network. Defendant responded that it would instruct its "e-mailers" not to use AOL’s marks, but has persisted in causing the transmission of massive batches of unsolicited messages to AOL and its members, see e.g. Exhibit G.

38. Defendant’s transmission of unsolicited bulk e-mail to AOL has damaged, and continues each day to damage, AOL’s business, its goodwill, and its relationship with its members. AOL’s valuable trademark and service mark and associated goodwill are diluted and damaged by their wrongful association with junk e-mail and junk e-mailers like Defendant.

FALSE AND DECEPTIVE E-MAIL PRACTICES

39. Defendant has engaged in deceitful practices to frustrate AOL's and its members' ability to filter Defendant's junk mailings. Defendant’s agents have employed shifting combinations of random user names, domains, and IP addresses from which to transmit their promotional messages for the purpose and with the effect of evading AOL's technical means of identifying incoming junk mail and blocking the messages before they are delivered.

40. Defendant has also engaged in a practice of falsifying the "reply to" addresses and other apparent sender data in order to hinder the recipients from using the e-mail system's reply feature to transmit back complaints and requests to cease junk mailings. For example, fictitious screen names such as "firstinsight1232@usa.net" are listed in the "reply to" line, as in Exhibit B. If an AOL member who received this message clicked the "reply" box on his or her screen in an attempt to register complaints with Defendant or to demand that Defendant cease bulk mailings, AOL's computer resources would be wasted in fruitless attempts to "deliver" the replies to the fake "reply to" addresses.

41. Defendant also has engaged in a practice of falsifying the "to" addresses and other apparent header data, including the use in such false information of the mark "AOL," or deceptively similar designations such as "aoi" or "A01." Defendant’s infringement upon AOL’s marks not only violates AOL’s rights in such marks, but the use of such marks in connection with Defendant’s efforts to evade the filtering tools used by AOL to prevent unsolicited commercial e-mail fosters the erroneous impression amongst AOL members that AOL has authorized, endorses, or otherwise approves of Defendant’s transmission of unsolicited commercial e-mail messages.

42. Defendant also appends a fictitious block to its e-mail, which appears to be a "header," that provides false and misleading information about the source and routing of the e-mail message. Defendant also includes a blank screen after this false "header." The apparent purpose of this strategy is to conceal the actual header information which follows the blank page from recipients.

43. The citations of Defendant by and through its agents constitute willful and wanton disregard for the rights of others.

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

44. AOL repeats and realleges the allegations of paragraphs 1 through 43 of the complaint.

45. In connection with the provision of online and Internet services to its members, AOL owns and maintains one or more "protected computers" as defined in 18 U.S.C. § 1030(e)(2)(8) through which e-mail transmissions are received, stored and disseminated in interstate and/or foreign commerce or communication ("AOL's protected computer facilities").

46. Defendant has repeatedly transmitted to AOL's protected computer facilities a vast number of unsolicited commercial e-mail messages -- in batches of tens and hundreds of thousands -- without authorization. On each occasion on which Defendant transmitted these batches of unsolicited commercial e-mail messages, Defendant knew that the bulk mailings would impair the operation of AOL's protected computer facilities and AOL's ability to provide quality e-mail services to its members.

47. Defendant has engaged in deceptive practices for the purpose of attempting to conceal from AOL the actual quantity of junk mail being transmitted, thereby frustrating AOL's efforts to protect its e-mail system from injury and shield its members from unwanted mailings.

48. Defendant knowingly and intentionally caused the transmission of information to, and accessed, AOL's protected computer facilities without authorization, and as a result of such conduct, caused damage, or recklessly caused damage in violation of 18 U.S.C. § 1030 (a)(5).

49. The damages suffered by AOL as a result of Defendant's 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 $5,000.00 in value in the year preceding the date of filing of this complaint.

50. Defendant threatens to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for such continuing acts. Moreover, AOL's members remain at risk of continued impairment of the services provided them by AOL. AOL's remedy at law is inadequate to compensate for the injuries threatened.

COUNT II
DILUTION OF INTEREST IN SERVICE MARKS
(15 U.S.C. 1125(c)(1))

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

52. In connection with its provision of online and Internet services, AOL has registered and used extensively in interstate commerce the Registered Marks, which identify its Internet and online services and which qualify as "famous" marks within the meaning of 15 U.S.C. § 1125(c)(1).

53. Defendant has knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the Registered Marks after these marks became famous in interstate commerce, in connection with Defendant’s sale, offering for sale, and distribution of Defendant’s services.

54. Defendant’s intentional and unauthorized use of the Registered Marks in connection with its unsolicited messages is likely to dilute AOL’s interest in its Registered Marks by linking the Registered Marks 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, in violation of 15 U.S.C. § 1125(c)(1).

COUNT III
VIOLATIONS OF THE VIRGINIA AND IOWA
COMPUTER CRIMES ACTS
(VA. CODE ANNOTATED § 18.2-152.1, ET. SEQ.)
(Iowa Code, Ch. 716A)

55. AOL repeats and realleges the allegations of paragraphs 1 through 54 of the complaint.

56. In connection with the provision of online and Internet computer services to its members who are citizens of Iowa, Virginia and other states, AOL maintains computers and computer networks as defined in § 716A.1, Iowa Code, and which are "property" within the meaning of Va. Code Ann. § 18.2-152.2.

57. Without authority, Defendant has repeatedly transmitted batches of tens and hundreds of thousands of unsolicited commercial e-mail messages to and through AOL's computers and computer networks which are physically located in the Commonwealth of Virginia.

58. In transmitting these batches of tens and hundreds of thousands of unsolicited commercial e-mail messages, Defendant knowingly used deceptive practices for the purpose of attempting to conceal from AOL the actual quantity of junk mail being sent and the sender of the transmission.

59. Defendant has obtained access to and used AOL's computers and computer networks without authority, without compensation to AOL, and with knowledge of the injury to AOL’s systems caused thereby.

60. Such acts constitute unauthorized access, computer damage and computer theft in violation of Ch. 716A., Iowa Code, and also constitute the use of AOL’s property in Virginia in violation of Va. Code Ann. § 18.2-152.3.

61. The foregoing acts of Defendant has caused injury to AOL, its computers and computer networks, and to AOL's business relations, reputation and goodwill.

62. Defendant threatens to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, causing AOL irreparable damage. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for such continuing acts. Moreover, AOL's members remain at risk of continued impairment of the services provided them by AOL. AOL's remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COUNT IV
VIOLATION OF THE WASHINGTON
UNSOLICITED COMMERCIAL ELECTRONIC MAIL ACT
ALL DEFENDANTS

63. AOL repeats and realleges the allegations of paragraphs 1 through 62 of the 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"), copy attached as Exhibit H.

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

66. The commercial electronic mail messages sent by Defendant 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.

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

68. Defendant’s 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 Defendant’s 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. Defendant threatens to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL.

COUNT V
CONVERSION OR TRESPASS TO CHATTELS
UNDER THE COMMON LAW

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

72. The computers, computer networks, and computer services that comprise AOL's e-mail system are the personal property of AOL.

73. Without valid authorization, Defendant has intentionally and repeatedly obtained access to, and made use of, AOL's proprietary computer equipment and e-mail system to transmit unsolicited commercial e-mail to AOL members for Defendant's own economic benefit.

74. Through their practice and pattern of repeatedly transmitting unsolicited commercial e-mail in high volume through AOL's proprietary computer equipment and e-mail system, Defendant has wrongfully exercised dominion over AOL's computers and e-mail system in denial of AOL's rights to that property. Defendant's wrongful exercise of dominion over AOL's proprietary computer equipment and e-mail system has deprived AOL and its members of the legitimate use of this commercially valuable system.

75. Under the common law, Defendant's conduct constitutes trespass to AOL's chattels, or, alternatively, conversion of AOL's chattels.

76. As a result of Defendant's trespass to, or conversion of, AOL's chattels, AOL has suffered and will continue to suffer irreparable injury, loss of reputation and goodwill, loss of its customers, and pecuniary damages.

77. Defendant's acts of trespass and/or conversion have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in amount sufficient to punish Defendant and deter Defendant and others from engaging in similar conduct.

COUNT VI
CONSPIRACY

78. AOL repeats and realleges the allegations of paragraphs 1 through 77 of the complaint.

79. On information and belief, Defendant has conspired and combined with third parties, including but not limited to its agents described, to send unauthorized bulk e-mails to and through AOL's proprietary computers to AOL members, wrongfully exercising dominion over AOL's proprietary computers and depriving AOL and its members of the legitimate use of this commercially valuable system, and thereby committing trespass to or conversion of chattels under Iowa common law.

80. On information and belief, Defendant has conspired and combined with third parties to transmit unauthorized bulk e-mail messages to AOL's protected computers, which the conspirators knew would impair the operation of AOL's protected computer facilities, and to engage in deceptive practices for the purpose of concealing from AOL the actual quantity of junk mail being transmitted in order to frustrate AOL's efforts to protect its e-mail system from injury, in violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.

81. On information and belief, Defendant has 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, using false pretenses for the purpose of concealing from AOL the actual quantity of messages sent, and obtaining access to and use of AOL's computers and computer networks with the intent to obtain property and computer services in violation of Ch. 716A., Iowa Code and Va. Code Ann. § 18.2-152.2, et seq.

82. On information and belief, Defendant has conspired and combined with third parties to transmit numerous unsolicited commercial e-mail messages to numerous electronic mail addresses belong to AOL members that Defendant knew, or had reason to know, were held by Washington residents, and has further sent commercial mail messages which misidentified the point of origin and transmission path by, among other things, using the domain names of third parties without permission of those third parties of in violation of the Washington State Unsolicited Commercial Electronic Mail Act.

83. The effectuation of these conspiracies through the transmission by Defendant's and its co-conspirators 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.

COUNT VII
UNJUST ENRICHMENT AND IMPOSITION OF A
CONSTRUCTIVE TRUST IN FAVOR OF AOL
UNDER COMMON LAW

84. AOL repeats and realleges the allegations of paragraphs 1 through 83 of the Complaint.

85. By transmitting the Defendant's bulk e-mail message to AOL members, AOL has conferred a benefit on the Defendant, with knowledge on the part of the Defendant of the conferring of the benefit. The Defendant has accepted or retained the benefit in circumstances that render it inequitable for the Defendant to retain the benefit without paying for its value.

86. As a result of Defendant's unjust enrichment, a constructive trust should be imposed in favor of AOL on all monies received by the Defendant as a result of its bulk e-mail activities.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendant as follows:

A. Awarding AOL compensatory and statutory damages from Defendant, in an amount to be proven at trial, caused by Defendant's violation of the Computer Fraud and Abuse Act, the Lanham Act, the Iowa and Virginia Computer Crime Statutes, the Washington Unsolicited Commercial Electronic Mail Act, and Defendant's acts of conversion and trespass to chattels in violation of Iowa common law measured alternatively by the damage done to AOL or the profits wrongfully generated by Defendant, whichever is greater;

B. Awarding AOL punitive damages against Defendant in an amount sufficient to punish and deter Defendant and others from similar malicious, oppressive, and fraudulent conduct in the future; and

C. Granting preliminary and permanent injunctive relief against Defendant, and its agents, and all persons acting in concert or participating with them, enjoining them from:

(i) Sending, transmitting, directing, aiding, conspiring with others, or otherwise facilitating the transmission of, any unsolicited electronic mail message, or any electronic communication of any kind, to AOL or its members without prior written authorization;

(ii) Using, or directing, aiding, or conspiring with others to use, or otherwise facilitating the unauthorized use of AOL's computers or proprietary computer networks in any manner in connection with the transmission or transfer of any form of electronic information across the Internet;

(iii) Sending, transmitting, directing, aiding, conspiring with others, or otherwise facilitating the transmission of, any electronic mail message, or any electronic communication of any kind, to or through AOL's proprietary computer networks or to AOL members, which message or communication bears any reference to or hypertext link to any Web domain registered to or used by the Defendant, or any product or service sold or marketed by the Defendant;

(iv) Sending, transmitting, directing, aiding, conspiring with others, or otherwise facilitating the transmission of, any electronic mail message, or any electronic communication of any kind, to or through AOL's proprietary computer network or to AOL members, which message or communication bears any false, fraudulent, anonymous, inactive, deceptive or invalid header information, or containing the domain "aol.com" or deceptively similar names, or otherwise uses any other artifice, scheme or method of transmission that would prevent or impede the automatic return of undeliverable electronic mail to its original and true point of origin;

(v) Causing their electronic mail, web sites or messages to bear any AOL-registered trade or service mark or other symbol or representation falsely indicating or tending to cause the belief that AOL has endorsed their products or services, that AOL is affiliated in any way with the Defendants, or that any mail or message from them originated from, was in any way transmitted through or by, AOL or any of its members or with the authorization of AOL or any of its members; and

(vi) Obtaining or using membership with AOL.

(vii) Acquiring, transferring, compiling or using, or directing, aiding, or conspiring with others to acquire, transfer, compile or use, AOL member addresses for the purpose of transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted mail by AOL and its members;

D. Awarding AOL and its attorneys its costs and attorneys' fees in prosecuting this action; and

E. Granting AOL such other or additional relief as this court deems just and proper under the circumstances.

Dated ________________________, 1998.