Typhoon v. Kentech Enterprises Consent Order

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, CINDY TECHAK, an
Individual, MARGARET WINTER, an Individual and
ROBERT WINTER an Individual,
Defendants.

Case No. CV 97-6270 JSL (AIJx)

CONSENT JUDGMENT AND PERMANENT
INJUNCTION AGAINST KENTECH
ENTERPRISES, KENNETH TECHAK AND CINDY
TECHAK

This Consent Judgment and Permanent Injunction is consented to by defendants Kenneth Techak, Cindy Techak, and Kentech Enterprises with reference to the following facts:

On March 27, March 28 and May 18, 1997, plaintiff Typhoon, Inc. suffered damages as the result of a mass, commercial, unsolicited e-mail campaign (known as "spam"). The e-mail was sent to numerous Internet users through the Internet gateway and computer equipment of Typhoon, Inc. and falsely and without permission displayed Typhoon's return e-mail address, domain name and trademark. Paging America, whom Kenneth Techak was employed by, and Kenneth and Cindy Techak were responsible for these incidents. In addition, the spam e-mails contained an address by which the recipient could respond to the advertisement, "cindy@surf-city-usa.com," an address registered to Kentech Enterprises, a business owned solely by Kenneth Techak. Other of the spam e-mail was signed Ken and Cindy at Kentech Success Systems and contained Kenneth Techak's Paging America sales identification number. As a result of the spam e-mail messages, Typhoon was defamed, suffered misappropriation of its name and identity, misappropriation of its trademark, was trespassed against, had its services stolen, and was required to spend substantial time and money sorting through e-mail messages that could not be delivered and installing filtering software to prevent further unauthorized access to its computer facilities.

This Court, having been advised by their subscribed consents below, that Kenneth Techak, Cindy Techak and Kentech Enterprises consent to the entry of judgment against them and in favor of plaintiff and upon review of the pleadings and other materials on file with this Court and concluding that this is a proper cause for granting a permanent injunction and good cause appearing therefore:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff shall have judgment against defendants Kenneth Techak, Cindy Techak and Kentech Enterprises in the following amounts and manner of payment. Kenneth Techak shall pay plaintiff a total of twenty-five hundred dollars ($2,500) as follows: on or before October 5, 1997, one thousand dollars
($1,000); thereafter, commencing on November 5, 1997 and continuing through April 5, 1998, two hundred fifty dollars ($250) per month, on or before the fifth day of each month. Notwithstanding the previous sentence, Kenneth Techak shall have the option to pay the entire amount remaining in one lump sum at any time. All amounts to be paid by certified cashier's check, made payable to Typhoon, Inc., and addressed to Andrew Mansfield, Esq., O'Melveny & Myers LLP, 400 South Hope Street, Los Angeles, CA 90071.

AND FURTHER ORDERED, ADJUDGED, AND DECREED that on not less than ten days notice, Kenneth Techak shall appear at the offices of plaintiff's counsel and give truthful, accurate and complete answers to questions asked by plaintiff's counsel before a court reporter authorized to administer oaths. This deposition examination may include any questions relevant to the subject matter of the complaint filed in this action, or questions which might lead, or might have led, to the discovery of admissible evidence.

AND FURTHER ORDERED, ADJUDGED, AND DECREED that Kenneth Techak shall cooperate with plaintiff in the pursuit of existing or potential claims arising from the spam e-mail incidents described above, including but not limited to claims against Paging America, Margaret Winter and Robert Winter.

AND FURTHER ORDERED, ADJUDGED, AND DECREED that Kenneth Techak, Cindy Techak and Kentech Enterprises and all natural or legal persons acting on their behalf, or in concert with any of them, shall be permanently enjoined from the date of this judgment from attempting to do, or causing to be done, directly or indirectly, by any means, method, or device whatsoever, or by any person or persons whomsoever, the following acts:

Sending any e-mail or electronic communication through Typhoon's computer facilities or e-mail gateway without authorization, or indicating in any manner that an e-mail originated or was authored by Typhoon, Inc. or an account holder at Typhoon, Inc. when such is not the case, or placing the word Typhoon in any return e-mail address on any e-mail sent out, or caused to be sent out, by Kenneth Techak, Cindy Techak or Kentech Enterprises.

AND FURTHER ORDERED, ADJUDGED, AND DECREED that the clerk of this Court shall forthwith enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure and Central District of California Local Rule 14.10.

DATED: September ___, 1997

Hon. J. Spencer Letts
United States District Judge