Typhoon v. Kentech Enterprises Complaint

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

TYPHOON, INC., a Japanese Corporation,
Plaintiff,

vs.

KENTECH ENTERPRISES, a California Business
Entity, PAGING AMERICA, a California Business
Entity, KENNETH TECHAK an Individual, AND
ROBERT WHITTAKER an Individual,
Defendants.

Case No. CV

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE
RELIEF AND DAMAGES FOR:

1. ELECTRONIC COMMUNICATIONS PRIVACY ACT;
2. FEDERAL FALSE DESIGNATION OF ORIGIN AND FALSE DESCRIPTION;
3. MISAPPROPRIATION;
4. MISAPPROPRIATION OF NAME AND IDENTITY
5. TRESPASS TO CHATTEL;
6. CALIFORNIA STATUTORY LIBEL;
7. UNJUST ENRICHMENT;
8. CALIFORNIA STATUTORY UNFAIR COMPETITION

Plaintiff Typhoon, Inc., for its Complaint against Defendants, alleges and avers as follows:

SUBJECT MATTER JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction over the federal claims for relief alleged herein pursuant to 18 U.S.C. section 2707 (Electronic Communications Privacy Act), 15 U.S.C. section 1121(a) (Lanham Act), 28 U.S.C. section 1338 (trademark disputes arising under Acts of Congress and unfair competition claims joined with such trademark disputes), and 28 U.S.C. section 1331 (federal question).

2. This Court has supplemental jurisdiction over the claims for relief alleged herein, arising under the statutory and common law of the State of California, pursuant to 28 U.S.C. section 1367(a), in that all such claims and the federal claims arise from a common nucleus of operative fact.

3. Furthermore, this Court has original jurisdiction under 28 U.S.C. section 1332, in that it is a civil action between citizens of different countries in which the matter in controversy exceeds, exclusive of costs and interest, seventy-five thousand dollars.

4. Venue in this district is proper under 28 U.S.C. sections 1391(a) and (b) because Defendants are subject to personal jurisdiction in this district at the time the action is commenced, and a substantial part of the events giving rise to the claims herein occurred in this district.

PARTIES

5. Plaintiff Typhoon, Inc. ("Typhoon") is a corporation organized under the laws of Japan, which maintains its primary place of business in Tokyo, Japan.

6. Typhoon believes, and on that basis avers, that Defendant Kenneth Techak is an individual residing in this judicial district.

7. Typhoon believes, and on that basis avers, that Defendant Kentech Enterprises ("Kentech") is the fictitious name of a business entity organized under the laws of California owned and operated by Kenneth Techak. Kentech is located and has its principal place of business in this judicial district.

8. Typhoon believes, and on that basis avers, that Defendant Robert Whittaker is an individual residing in this judicial district.

9. Typhoon believes, and on that basis avers, that Defendant Paging America is the fictitious name of a business entity organized under the laws of California and owned and operated by Robert Whittaker. Paging America is located and has its principal place of business in this judicial district.

10. Typhoon believes, and on that basis avers, that Defendant Kenneth Techak is an employee or agent of Paging America.

NATURE OF THE ACTION

11. Plaintiff Typhoon, Inc. brings this action to put an end to the theft of its services and the defamation and misappropriation of its business name caused by Defendants' conduct.

12. "Spam" is a term that has come to describe mass, unsolicited, commercial electronic mail ("e-mail"). The Wall Street Journal recently reported that spam may be compared to the more traditional "junk mail" we all receive in our postal boxes. Jared Sandberg, Recipe for Halting Spread of "Spam" is Proving Elusive, Wall Street Journal, June 13, 1997. At the recent Federal Trade Commission hearings on spam e-mail, a lawyer for America On-Line, Inc. ("AOL"), said that as many as 30% of the 15 million Internet e-mail messages sent to AOL account holders daily are "spam." Rajiv Chandrasekaran, FTC Vows to Crack Down on Fraudulent E-Mail, Washington Post, June 13, 1997, Financial, G03. Compared to traditional "junk mail," however, the authors of spam e-mail often seek to hide their identity, falsify return e-mail addresses, make improper use of other companies' equipment to send spam, and make false or fraudulent claims in the spam e-mail advertisements. This is due partly to the exceptionally low cost and easy commencement of a spam e-mail operation. FTC Commissioner Christine
Varney stated, after the recent FTC hearings on this issue, that "regulators would go after commercial e-mail messages that display a false return address." Id.

13. Defendants used Typhoon's Internet e-mail system without Typhoon's authorization to send thousands of spam messages to Internet users. Typhoon's business name was associated with the spam e-mail by Defendants' intentional falsification of electronic return addresses listing Typhoon as the Internet Service Provider from which the spam messages
originated.

14. As a result of Defendants conduct, Typhoon suffered damage to its reputation and business name, and lost time and money sorting through returned e-mail, dealing with irate third parties, and installing and testing protective software.

15. Defendants' repeated actions have caused damage and threaten to continue causing damage to Typhoon. Federal and California law provide for injunctive, compensatory and punitive remedies against such conduct.

DEFINITIONS

16. The Internet is a giant "network of networks" which interconnects innumerable smaller groups of linked computers. All the networks comprising the Internet are connected in a manner which permits any computer on the Internet to communicate with any other computer on the Internet.

17. An Internet Service Provider is a commercial entity offering dial-up telephone access (or higher speed connections) to a computer or computer network linked to the Internet for a monthly or hourly fee. Some Internet Service Providers -- like AOL -- offer their subscribers online services within their own proprietary computer networks in addition to Internet access
and most provide access to e-mail.

18. Internet Service Providers maintain computerized records of access to their equipment. Such records are called "log files." A server is a computer or device on a network that manages network resources. Servers are often dedicated, meaning that they perform no other tasks besides their server tasks. A "mail server" is a computer that is dedicated to handling e-mail
storage and transmission. Mail servers are sometimes called SMTP servers, referring to the Internet method of transferring mailcalled "simple mail transfer protocol."

19. E-mail consists of electronic messages sent from one computer user to another over the Internet. Just like conventional mail, e-mail messages contain a destination address and a return address. The return address tells the recipient the source of the message. In some instances, an address in the text of the message may allow the reader to "reply to" another e-mail address.
This need not necessarily match the return address.

20. E-mail is a method of communication on the Internet where an Internet user can address and transmit a message to one or more other people with access to the Internet. E-mail is not routed through a central control point, and can take many and varying paths to the recipients. Unlike postal mail, simple e-mail generally is not "sealed" or secure, and can be accessed or viewed on intermediate computers between the sender and recipient. An e-mail message is routed back along the path the message traversed if its destination address is found to be invalid (such as if an account has been deactivated or the e-mail
address changed). This is called being "bounced back."

21. An e-mail address consists of two components, the account holder's name, and the domain name. A typical e-mail address might look like "jdoe@company.com." The portion of the address before the "@" is the account holder's name and specifies a specific customer or individual that is within that Internet domain. The portion of the address after the "@" is the
domain name. This typically indicates that the e-mail was sent from the computer registered to the specified domain name. The final three letter suffix on the domain portion signifies whether the domain is a for-profit business ("com"), not-for profit organization ("org"), educational institution ("edu"), Internet Service Provider ("net"), government agency ("gov") or a military
address ("mil"). Domain names may also end in a two letter country code (such as "jp" for Japan).

22. The InterNIC is a joint venture of the National Science Foundation, Network Solutions, Inc., and American Telephone & Telegraph ("AT&T"). Network Solutions, Inc. is the private corporation in charge of domain name registration in the United States and works under a grant of authority from the National Science Foundation. Other nations have established national domain name registration corporations. The InterNIC operates a site on the World Wide Web in which the ownership and registration of Internet address and domain names can be reviewed.

HISTORY OF TYPHOON'S MARK AND INTERNET SERVICES

23. Typhoon's name is a business asset which it has used since the early development of the World Wide Web in 1994. Typhoon is an Internet Service Provider offering Internet access to its subscribers and other services, including e-mail.

24. Typhoon registered its domain name, "typhoon.co.jp", under the authority of the Japan Network Information Center in November, 1994. Typhoon began advertising its services in the "Tokyo Journal" in December, 1994, and then on the Internet in April, 1995.

25. Typhoon began using its mark and domain name in commerce on December 25, 1995. Typhoon's domain name on the Internet is "typhoon.co.jp."

THE MARCH 27, 1997 INCIDENT

26. According to Typhoon's log files, on March 27, 1997, an unauthorized intruder accessed Typhoon's mail server 648 times to send approximately 13,000 spam messages to Internet users that subscribed to the Internet through AOL. This was traced to an individual Internet access account with Earthlink Network, Inc. ("Earthlink"). Earthlink is an Internet Service
Provider based in Los Angeles, California. Over 30 of these spam messages were "bounced back" to Typhoon as undeliverable.

27. Typhoon's mail server, upon receiving the "bounced back" e-mail, then attempted to return the messages to their designated return address, "kentech@prosteps.com". However, that "return address" was invalid, so the computer sent the messages to Nelson Fung, Typhoon's director of technology and account administrator.

28. The spam messages that "bounced back" to Mr. Fung all contained advertisements for pagers and paging services offered by Defendant Paging America and listed Defendants Kentech and Kenneth Techak as sales agents.

29. The messages said that "Paging America is giving away FREE 'Seiko Message Watches' with built in pager, or Motorola Pronto Flex Pager (your choice of colors) and much, much more!" However, the advertisements set forth the condition that the Seiko Message Watches and Motorola Pagers must be "activated" for a "one-time setup/activation fee" of $59.00 or $29.00, respectively, to get them for free. The messages then stated that the customers could purchase "2 months paging air-time (pre-paid)" for $19.90 to make use of the activation. The ordering instructions told the customers to "call 'Paging America' at: 1-(800) 442-5525 from 8 a.m. to 5 p.m. PST and give them ID#20334."

30. Typhoon is informed and believes and avers on that basis that ID#20334 is the commission identification number used by Paging America to credit sales to Mr. Kenneth Techak's account. The spam messages included a closing, "Sincerely, Ken & Cindy KENTECH $uccess $ystems," and contained the identification, "ID#20334 kentech@prosteps.com Voc: (909)485-6788".

31. The spam messages also contained the following instructions on how a person could become a Paging America sales representative: "To receive more information on how to become a Paging America Representative call our 24 hour fax-on-demand (fod) and 3 minute Hot Line at: (904) 654-7727, Ext. 3398 (please follow all voice prompts) and learn how you too, can earn commissions down nine levels deep and make an awesome residual monthly income! Make sure you put my name and ID# on the agreement forms!"

THE MARCH 28, 1997 INCIDENT

32. On March 28, 1997, an unauthorized intruder accessed Typhoon's mail server 1,172 times to send approximately 24,000 spam messages. Again, the advertisements were for pagers and paging services from Kentech and Paging America.

33. In response to these attacks on Typhoon's system, in early April, 1997, Mr. Fung installed spam filtering software on Typhoon's computers. The commercially developed software was designed to block all in-coming electronic messages not directed to Typhoon users from passing through Typhoon's mail server.

34. The Internet was designed to be a relatively open system so that messages could travel efficiently and quickly through multiple paths and so that Internet Service Providers and communication service providers could rely on each other's systems in case of high Internet traffic. Defendants' spam e-mail forced Typhoon to install filtering software. Such actions affect the entire Internet community. At the FTC hearings on spam e-mail, AOL attorney Jill Lesser testified about the affect on the Internet community of installing filtering equipment and making mail servers more secure:

[W]hen AOL has to harden -- it's called hardening the system -- or other services have to harden their systems so that their service cannot be used for relaying [e-mail], it is sort of a fundamental change in the Internet. Because
where you say, Okay, fraudulent behavior is now governing the way the system, built on open standards, is working.

Federal Trade Commission: Public Workshop on Consumer Information Privacy, Session Three, Consumer Online Privacy, Vol. 3 (June 12, 1997), pp. 115-16 (statement of Jill A. Lesser, Deputy Director, Law and Public Policy, America On-Line, Inc.). www.ftc.gov/bcp/privacy2/index.html.

35. Since the software installation last April, Typhoon has logged over 5,000 blocked attempts to direct messages through Typhoon's mail server.

THE MAY 18, 1997 INCIDENT

36. Typhoon is informed and believes, and on that basis avers, that on May 18, 1997, Kenneth Techak, on behalf of Kentech and Paging America, sent or caused to be sent thousands of spam messages from an Earthlink account to Internet users by breaking into the mail server of another Internet Service Provider that did not yet have spam filtering software. However, all the spam messages had the false return address, "8948576@typhoon.co.jp." No such account exists on Typhoon's system.

37. This fraudulent return address implied that the spam messages originated from a user of Typhoon's Internet services. As a result, Typhoon received complaints from Internet users who received the spam messages and thought a Typhoon user was the sender.

38. Approximately 2,000 of the spam messages were "bounced back" to the falsely appropriated return addresses to Typhoon's mail server and were then forwarded to Typhoon's administrative account because the falsified Internet address "8948576@typhoon.co.jp" did not exist.

39. This set of returned spam messages also contained advertisements soliciting business for Kentech and Paging America with the "reply-to" address: "cindy@surf-city-usa.com". The domain name, "surf-city-usa.com," is registered to Kentech according to the InterNIC database. Typhoon is informed and believes, and on that basis avers, that Cindy Techak is the wife
of Kenneth Techak.

40. After the first spam incident in March, Typhoon spent seven days researching, installing, and testing spam filtering software. Typhoon had to disable and shut down one-third of its computer servers that are the core of its business to do this. These actions were undertaken at substantial expense to Typhoon and caused a disruption in Typhoon's services.

41. Typhoon spent three days sorting the bounced spam messages from among other legitimate messages contained in Typhoon's administrative account. These actions were undertaken at great expense to Typhoon and caused a disruption in Typhoon's services.

First Claim for Relief:
Electronic Communications Privacy Act
(18 U.S.C. § 2701)

42. Typhoon repeats and realleges the allegations of paragraphs 1-41 as though fully set forth herein.

43. Typhoon owns one or more computers through which electronic communication services are provided to subscribers for a fee (the "Typhoon computer facilities").

44. On several occasions, Defendants intentionally and without Typhoon's authorization obtained access to Typhoon's computer facilities to transmit thousands of unsolicited, commercial e-mail messages (spam) to Internet users in violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2701. Such unauthorized access prevented authorized access to
Typhoon's electronic communications facilities and e-mail messages in storage on Typhoon's computer facilities. Defendants'acts were done knowingly and with the specific intent of obtaining access to Typhoon's computer facility so that they could distribute their promotional materials for profit.

45. Defendants intentional and unauthorized access to Typhoon's computer facility has proximately caused damage to Typhoon and to its computer facility in an amount to be proven at trial.

46. Defendants' unauthorized access to Typhoon's computer facilities threatens Typhoon with irreparable injury for which there is no adequate remedy at law. 18 U.S.C. Section 2707(b)(i) provides that plaintiff may seek preliminary or permanent injunctive relief as necessary. Defendants' repeated unauthorized access constitutes a continuing harm which cannot be
redressed after trial.

Second Claim for Relief:
False Designation of Origin and False Description
(15 U.S.C. § 1125(a))

47. Typhoon repeats and realleges the allegations of the paragraphs 1-41 as though fully set forth herein.

48. Defendants have engaged in acts of unfair competition through the use of false designations of origin in their spam e-mail messages. Specifically, Defendants have falsely and without authorization used Typhoon's domain name in the electronic return addresses of their spam messages. Because Typhoon's domain name incorporates, reproduces, and bears Typhoon's service mark, Defendants have caused their messages to bear false representation that Typhoon is the point of origin of their spam messages.

49. Defendants have disseminated spam messages bearing these false designations of origin in connection with the sale of goods and services in interstate commerce, in violation of section 43(a) of the Lanham Act, 15 U.S.C. section 1125(a).

50. Defendants' conduct is likely to create confusion among members of the public inducing them to believe, contrary to fact, that Typhoon approves or condones Defendants' use of Typhoon's services and Defendants' spamming practices or that Typhoon is affiliated, connected or associated with Defendant's commercial activities.

51. Defendants' false designations of origin have caused Typhoon damages in the form of lost goodwill and lost business reputation in an amount to be proven at trial. This is an extraordinary case and such damages should be trebled.

52. Defendants acts of unfair competition and false designation of origin continue to harm Typhoon's goodwill and business reputation and confuse the public. As a result, the value of Typhoon's goodwill and business reputation will be irreparably damaged. Because the amount of these damages cannot be readily ascertained, Typhoon lacks an adequate remedy at law.

Third Claim for Relief:
Misappropriation

53. Typhoon repeats and realleges the allegations of paragraphs 1-41 as though fully set forth herein.

54. This claim arises under the common law of the State of California. Defendants have misappropriated Typhoon's computer services.

55. Typhoon has made a substantial investment of time, effort, and money into becoming an Internet Service Provider, and developing communications computer facilities.

56. As a result of Defendants' misappropriation of Typhoon's computer services and service mark (i.e., Typhoon's domain name), Typhoon has suffered damages, and Defendants have earned profits, in an amount to be proven at trial.

57. Defendants acted with oppression, fraud, and/or malice and Typhoon is entitled to punitive damages for the sake of example and by way of punishing Defendants.

58. Defendants acts of misappropriation continue to cause damage to Typhoon and Defendants continue to earn profits. As a result, the value of Typhoon's business, reputation, and substantial goodwill will be irreparably damaged. Because the amount of these damages cannot be readily ascertained, plaintiff lacks an adequate remedy at law.

Fourth Claim For Relief:
Misappropriation of Name and Identity

59. Typhoon repeats and realleges the allegation of paragraphs 1-41 as though fully set forth herein.

60. This claim arises under the common law of the State of California.

61. Defendants knowingly used Typhoon's name and identity by placing a false return address on certain e-mail messages and by using Typhoon's e-mail servers to send certain other spam e-mail messages, thereby appending Typhoon's name and address to the spam e-mails and causing them to appear as if originating from Typhoon.

62. This appropriation of Typhoon's name was manifested in a commercial advertisement for Paging America's services and products that listed Kentech and Kenneth Techak's sales commission identification and company name. Thus, the appropriation was to Defendants commercial advantage because such appropriation redirected the returned, or "bounced back" and undeliverable, e-mail messages from Defendants to Typhoon. Typhoon then had to sort through and dispose of the "bounced back" messages, rather than Defendants. The appropriation of Typhoon's name also redirected the complaints and hostility of the affected Internet users from Defendants to Typhoon.

63. Furthermore, the misappropriation of Typhoon's name was done without its consent. The spam e-mail messages contained Typhoon's name in the return address and/or e-mail identification without its consent.

64. Typhoon was injured as a result of the misappropriation. Defendants were able to shift the costs of the returned e-mail and user hostility from themselves to Typhoon.

65. Defendants misappropriation of Typhoon's name and identity continues to damage Typhoon. The continuance of the actions constitute a continuing harm which cannot be redressed after trial.

Fifth Claim for Relief:
Trespass to Chattel

66. Typhoon repeats and realleges the allegations of paragraphs 1-41 as though fully set forth herein.

67. This claim arises under the common law of the State of California. Defendants have intentionally engaged in acts of trespass to Typhoon's personal property.

68. The computer network, equipment, and software that comprise Typhoon's e-mail system and Internet service system were the personal property of Typhoon at the time of the trespass.

69. Without Typhoon's authorization, Defendants intentionally used Typhoon's e-mail system and services for their own commercial benefit. Due to the volume of spam messages Defendants caused to be sent through Typhoon's system, Defendants substantially interfered with the rights of Typhoon and its subscribers to use the e-mail system and services.

70. As a proximate result of the trespass to Typhoon's e-mail and Internet service systems, Typhoon has been damaged in an amount to be proven at trial.

71. Defendants acted with oppression, fraud, and/or malice. Therefore, Typhoon is entitled to punitive damages for the sake of example and by way of punishing Defendants.

72. Defendants acts of trespass continue to damage Typhoon. The misappropriation is likely to recur from the pattern of Defendant's spam e-mail activities. The continuance of the actions constitute a continuing harm which cannot be redressed after
trial.

Sixth Claim for Relief:
California Statutory Libel
(California Civil Code § 45)

73. Typhoon repeats and realleges the allegations of paragraphs 1-41 as though fully set forth herein.

74. Defendants disseminated, and thereby electronically published, thousands of spam messages falsely displaying Typhoon's domain name in the return addresses. Defendants' electronic publications imputed that Typhoon supports or condones spamming practices. Such false publications are in violation of California Civil Code section 45.

75. The electronic publications were so understood by the Internet community because Typhoon received complaints about the spam messages from Internet users. The association of Typhoon with the e-mail publications clearly exposed Typhoon to contempt, caused Typhoon's business to be shunned or avoided and has a tendency to injure Typhoon in its business.

76. The return addresses of the electronic publications were false as they pertained to Typhoon.

77. An electronic mail message constitutes a writing, printing, or other fixed representation to the eye under California Civil Code section 45.

78. As a proximate result of Defendants' electronic publications, Typhoon has suffered damage in an amount to be proven at trial.

79. Defendants' electronic publications were made with malice, hatred, and ill will toward Typhoon and the desire to injure Typhoon, as indicated by the spam incident that occurred in response to Typhoon's installation of spam filtering software. Typhoon seeks punitive damages in an amount to be proven at trial.

Seventh Claim for Relief:
Unjust Enrichment

80. Typhoon repeats and realleges the allegations of paragraphs 1-41 paragraphs as though fully set forth herein.

81. This claim arises under the common law of the State of California. Defendants have used Typhoon's e-mail system without authorization to facilitate their sending of thousands of spam messages to Internet users. Defendants have derived considerable economic benefit from their conduct in terms of profits from sales and in terms of savings from shifting the costs of
their promotional campaign to Typhoon and its subscribers.

82. Defendants have paid no compensation to Typhoon for their use of its e-mail system. Further, the costs generated by Defendants' mass mailings and the damage and preventative actions necessitated by them are borne by Typhoon and its subscribers, not by Defendants. By using Typhoon's Internet service for its spam, Defendants avoided the inconvenience of having to deal with returned e-mails and customer's enraged by Defendants spamming practice. As a result, Defendants have been unjustly enriched at Typhoon's expense.

83. Defendants must disgorge all profits earned from the unauthorized use of Typhoon's computer facilities and false designation of Typhoon's return e-mail address.

Eighth Claim for Relief:
California Statutory Unfair Competition
(California Business & Professions Code §§ 17200 et seq.)

84. Typhoon repeats and realleges the allegations of paragraphs 1-41 as though fully set forth herein.

85. Defendants have engaged in unlawful, unfair or fraudulent business practices or acts. Defendants sent spam e-mail messages to Internet users with falsified return addresses. Defendants have gained unauthorized access to Typhoon's e-mail servers and falsified the return address on certain spam in order to avoid e-mail messages that are undeliverable from "bouncing back" to Defendants, to avoid negative or hostile responses from end-users who received the spam, and to hide the identity of themselves and their true Internet Service Provider. Defendants' false designations of origin were likely to create confusion among members of the public inducing them to believe, contrary to fact, that Typhoon approved or condoned or was otherwise
affiliated with Defendants' spamming practices.

86. By these acts, Defendants have engaged in unfair competition in violation of California Business & Professions Code sections 17200 et seq.

87. Defendants' false return e-mail addresses and computer facility intrusions have caused Typhoon injury, including but not limited to, loss of goodwill and business reputation, with the amount of damages to be proven at trial.

88. Defendants have engaged in and propose to engage in unfair competition that should be enjoined by this court pursuant to California Business & Professional Code Section 17203.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Typhoon, Inc. requests entry of judgment in its favor and against Defendants Kentech Enterprises, Paging America, Kenneth Techak, and Robert Whittaker as follows:

1. That during the pendency of this action and permanently thereafter, Defendants and each of them and their agents, employees or commission-based sales representatives be enjoined directly or indirectly from:

a. Sending or causing to be sent any e-mail that contains Typhoon's name, domain name, or IP address, in whole or in part;

b. Sending any e-mail through Typhoon's e-mail services.

2. Awarding damages in an amount to be proven at trial caused by Defendants' violation of the Electronic Communications Privacy Act, violation of the Lanham Act, misappropriation, and trespass to chattels, unjust enrichment, unfair competition, libel, and misappropriation of identity.

3. Awarding Typhoon punitive damages to be assessed against Defendants in an amount sufficient to punish and deter them and others from similar malicious, oppressive, and fraudulent acts in the future.

4. Requiring Defendants to disgorge all profits they earned and any other unjust enrichment that they received from their unlawful conduct complained of herein.

5. Awarding Typhoon its costs and attorneys' fees in prosecuting this action.

6. Granting such other relief as may be just and proper under the circumstances.

________ __, 1997

ROBERT S. SCHWARTZ
ANDREW S. MANSFIELD
JAMES P. JENAL
O'MELVENY & MYERS LLP

by _____________________
ANDREW S. MANSFIELD

Attorneys for Plaintiff
Typhoon, Inc.