Web Systems v. Cyber Promotions Complaint

WEB SYSTEMS CORPORATION

vs.

CYBER PROMOTIONS, INC., AND
SANFORD WALLACE

97-30156

PLAINTIFFS' ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY AND PERMANENT INJUNCTION

TO THE HONORABLE JUDGE OF THIS COURT:

Plaintiff, WEB SYSTEMS CORPORATION, files this Original Petition and Application for Temporary Restraining Order and Temporary and Permanent Injunction, and would respectfully show as follows:

I. PARTIES.

1. Plaintiff, Web Systems Corporation is a Texas Corporation that is located in Harris County, Texas. Its principal place of business is in Harris County, Texas.

2. Defendant Cyber Promotions, Inc. is a non-resident corporation that has engaged in business in the State of Texas. It has not registered to do business in Texas, it does not maintain a regular place of business in this state, and it has not designated an agent for service of process in Texas. It may be served with process by serving the Secretary of State pursuant to Texas Civil Practice & Remedies Code. §17.044 or by serving any officer at 8001 Castor Avenue, Philadelphia, PA 19152 or otherwise as allowed by applicable law.

3. Defendant, Sanford Wallace is, upon information and belief, a resident of the State of Pennsylvania. He may be served with process at the same address listed above for Cyber Promotions or any other place that he may be found, or otherwise may be served in any manner allowed by applicable law.

II. THE CLASS

4. Plaintiff also brings this case as a class action on behalf of all Internet users other than Defendants, their attorneys, and those who have given Defendants express permission to use their domain on Internet address. On information and belief, plaintiff is not the only victim of the practices complained about herein and, in addition, defendants, if not restrained, can be
expected to victimize other class-members in the future. All of the requirements of Rule 42 of the Texas Rules of Civil Procedure have been met as the class is so numerous that joinder is impossible, the class seeks only declaratory and injunctive relief, the claims of the plaintiff are typical (indeed identical) to claims of the class members to determine the illegality of
defendants' actions and to be free from wrongful interference with their domains in the manner sought to be restrained herein, the plaintiff and its counsel will adequately represent the class, there are common issues of law and fact presented, and the class action vehicle is clearly superior in all respects to having each class member seek a separate determination of illegality and having each file suit, or suffer damages, if and when defendants choose to prey on them. All requirements of Rule 42 are met and the class seeks an injunction as sought by the named plaintiff on the same legal theories and seeks the same declaration of rights as sought by the named plaintiff.

III. JURISDICTION AND VENUE.

5. This Court has personal jurisdiction over Defendants because they have done business in the State of Texas by, inter alia, 1) committing one or more torts in whole and in part in this state, including but not limited to tortious acts which were intended to cause and did cause injury to Texas residents and to property located in Texas, and 2) soliciting residents of Texas for a commercial transaction via e-mail messages with false return addresses transmitted via computers located in Texas. This Court has subject matter jurisdiction over this lawsuit because the Plaintiffs seek injunctive relief.

6. Venue is proper in Harris County, Texas, under §15.002(a)(1), Tex. Civ. Prac. & Rem. Code, because a substantial part of the events and omissions giving rise to this claim occurred in Harris County. Venue is also proper under §15.002(a)(4) and § 15.017, Tex. Civ. Prac. & Rem. Code, because Harris County is the county in which the Plaintiffs resided at the time of the accrual of the cause of action.

IV. FACTS.

A. Introduction and Summary

7. The Plaintiffs bring this lawsuit to remedy the damage inflicted by the Defendants' wrongful "spamming" of the Internet, and for an injunction to stop such actions in the future.

8. On information and belief, Defendants sent or caused to be sent unsolicited mass junk mailings (also known as "spam") over the Internet to many thousands, perhaps millions, of people. In its spam, Defendant, Cyber Promotions used a false electronic return addresses to disguise the junk mailings' origins. The false return addresses that were used were owned by
Plaintiff.

9. Because many thousands of the Internet addresses that defendants have spammed or caused to be spammed were not valid addresses, thousands upon thousands of copies of the junk mail were "returned" to plaintiff via the computers of its server. This massive, unwanted delivery of Defendants' garbage to the Plaintiffs' doorstep inflicted substantial harm, including
substantial service disruptions, lost access to communications, lost time, lost income and lost opportunities.

10. In effect, Defendants deliberately dumped tons of its electronic garbage and pollution on the Plaintiff. They also deliberately used the Plaintiffs' computing resources, rather than Cyber Promotions', to deal with the natural consequences of the decision to use the highly controversial practice of spamming the Internet.

11. While this lawsuit does not challenge the legality of the controversial practice of sending properly addressed mass mailings over the Internet, the Defendants' deliberate decision to use false return address information was wrongful and illegal, and was a common law nuisance, trespass, and conversion, as well as a violation of the Texas Wrongful Access by Computer
statute. The Plaintiff brings this lawsuit individually and on behalf of the class of similarly situated persons, to redress the harm caused by the Defendants' illegal electronic dumping, and to put a stop to such dumping in the future.

B. Cyber Promotions "Spams" the Internet using False Return Addresses.

12. Defendants have sent or caused to be sent over the Internet mass mailings of many thousands, perhaps millions, of identical electronic mail messages. This Internet mass mailing, commonly known as a "spam," was entirely unsolicited by the recipients.

13. The electronic junk mail for which Defendants are responsible purported to offer valuable information to recipients. True and correct copies of examples of the "spam" and related transmittal information may be found within Exhibit A.

14. The process by which Defendant sent or caused to be sent Internet spam was also fraudulent, as it falsely identified Plaintiff's domain as the sender and directly caused substantial injury to the Plaintiffs. Defendants intentionally and deliberately used false "return path" information in the electronic routing information or "header" of its junk mailing. Instead of using true information correctly identifying the source of the message, Defendants used or caused to be used false information and Internet addresses. Defendants used, fraudulently and without authorization, business @webs.com for its Internet spam. Plaintiff did not give explicit, implicit or effective consent for the use of its address in this manner, or for the resulting use by the Defendants of
plaintiff's respective computers, computer networks and computer systems. The effect of using false return address information was several-fold.

15. First, by using false information in the return path, Defendants disguised the true origin of the "spam," and deflected to Plaintiff the anger that results from unsolicited Internet junk mailing. As a result, Plaintiff, has now been publicly associated with the ethically dubious practice of flooding the Internet with junk mail. Hot responses, and threats to sue, by recipients of the junk
mail were directed to plaintiff, as is shown by some of the documentation in Exhibit A hereto. In addition, using the false return path information caused an association between the questionable "service" offered by Defendants and the valid services offered by the Plaintiff through webs.com.

16. Further, the use of false return path information caused all of the "bounced" electronic mail to be routed to the plaintiff's domain, rather than to defendants' Internet account. In any Internet mass mailing, there may be many incorrect, bad, or obsolete addresses. When the message was sent to these incorrect addresses, the various computers routing Internet e-mail
messages, some of which are believed to be located in Texas, automatically generated return messages and sent them to plaintiff's domain. By using the false header information, Defendants effectively dumped garbage and pollution onto the Plaintiff's property, including computer disks and telecommunications transmission lines located in Texas. Defendants also used, or caused usage without the Plaintiffs' consent, of Plaintiff's computer systems and computer resources. As a result of this dumping of garbage, and the receipt of messages, sometimes threatening litigation, plaintiff's computer systems were tied up and plaintiff was not able to receive messages from customers and potential customers. Plaintiff received complaints from its Internet service
provider and had to spend substantial time getting its own mail-server back on line. Defendants' actions interfered with Plaintiff's existing and potential business relationships with actual or possible customers.

C. The Plaintiffs Bear the Costs and Suffer the Damages of Defendants' Fraudulent "Spam."

17. Plaintiff at all relevant times was the registered owner of the Internet domain name webs.com. That domain name at all relevant times was hosted and administered by an Internet service provider.

18. Plaintiff used the Internet domain webs.com as the Internet "location" for its business of providing Internet users with valuable services, including the design of websites. Plaintiff published a World Wide Web page located at www.webs.com and received electronic messages addressed to that site. At least some of the computers containing the computer discs, software
and other resources necessary to maintain, operate and run Plaintiff's Internet location are physically located in Texas. They regularly received electronic messages addressed to plaintiff's domain from people inquiring about its services, including persons who were, or became, customers. This sort of business use of an Internet website is commonly done and reasonably could be foreseen by the Defendants.

19. When Defendants sent or caused to be sent out the fraudulently addressed messages using the plaintiff's domain name, this automatically resulted in all of the "garbage" generated by the spam to be returned, not to Cyber Promotions, but instead to Plaintiff. As a result, Plaintiff's electronic mail account has been flooded with electronic messages, the vast majority of which were the garbage generated by Cyber Promotions. Other messages were sent to plaintiff by outraged recipients of the spam accusing plaintiff of having generated the spam. This included electronic hate mail and threats to sue if Plaintiff did not stop sending the spam. Plaintiff lost meaningful access to its electronic mail account, likely lost electronic messages that would have
resulted in new customers or business advantage, and lost significant time in dealing with the problems caused by the Defendants' action. In addition, the value of the plaintiff's domain name, a valuable asset, may have been reduced due to its association with the vilified practice of spamming the Internet.

20. Plaintiffs have attempted to get defendants to stop their wrongful acts. For example in May, it is understood that a representative of plaintiff telephoned a representative of Cyber Promotions who listened to Plaintiff's complaint and request that the practice cease and promised to pass the information on to Mr. Sanford. Yet, the defendants continued their wrongful acts. Most recently, plaintiff caused its counsel to send an appropriate letter demanding that defendants communicate that they would cease and desist. No reply was received. (A copy of the letter is included in Exhibit B hereto along with fax transmissions.) Accordingly, it may be fairly presumed that defendants will continue to act in their wrongful fashion unless restrained by the Court. Further, Defendants' disregard for the law and rights of others is well known on the Internet. On information and belief, as the information in Exhibit C reveals, at least three Internet providers have had to sue to prevent improper activities by defendants. Without the aid of this court, there is every reason to believe that defendants will continue to abuse plaintiff and impinge upon its rights in the future.

21. The Defendants have used other false electronic return addresses other than Plaintiff's and upon information and belief, unless enjoined the Defendants will continue to use the Plaintiffs' return address in sending bulk electronic mail messages, and/or will continue to fraudulently use electronic mail addresses that are not their own and/or will continue to abuse members of the
Plaintiff class.

V. CAUSES OF ACTION.

A. Nuisance.

22. Plaintiff incorporates herein the allegations in Paragraphs 1-21, above.

23. The Defendants' actions, as alleged above, constitute a private and a public nuisance by threatening the right of the Plaintiff to enjoy the full use of his property.

24. The Defendants intentionally and deliberately used false electronic return addresses on mass Internet mailings, knowing that the mass mailings would generate electronic garbage and pollution and knowing that, because a false return address was used, the pollution and the garbage produced by Defendants' actions would be delivered to someone else's personal property,
such as the plaintiff.

25. The Defendants' actions were unreasonable, and were committed intentionally or negligently in violation of a legal duty owed to the Plaintiff specifically and to the community at large, and caused the Plaintiff substantial harm, harm of a type that an ordinary person would regard as significant.

26. The Defendants' deceptive use of an Internet domain name that was owned by, registered to, and managed by the Plaintiff was intentional, reckless, grossly negligent or at the very least negligent. The Defendants owed a legal duty not to send mass Internet mailings while using any false electronic return addresses. The Defendants owed a further legal duty not to send mass Internet mailings while using the electronic return address of the Plaintiff, or of any Internet domain name for which the Defendants did not receive prior permission from the owner and administrator of that domain name. The Defendants breached these duties, and thereby proximately caused the Plaintiff substantial harm.

B. Nuisance Per Se.

27. Plaintiffs incorporate herein the allegations in Paragraphs 1-26, above.

28. The Defendants' actions, as set forth above, constitute nuisance per se. In particular, the Defendants' actions in sending mass Internet mailings while using false electronic return addresses on their messages is an action that is a nuisance at all times and under any circumstances. The Defendants' conduct is unreasonable as a matter of law, and is therefore a nuisance per se.

C. Trespass to Personal Property.

29. Plaintiff incorporates herein the allegations in Paragraphs 1-28, above.

30. The Defendants' actions, as set forth above, constitute trespass. The Defendants intentionally and knowingly, through their use of a false electronic return address in their mass Internet mailings, caused a substantial interference with the Plaintiffs' enjoyment and use of their personal property, which was the proximate cause of harm to Plaintiff.

D. Conversion.

31. Plaintiff incorporate herein the allegations in Paragraphs 1-30, above.

32. The Defendants' actions, as set forth above, constitute conversion. The Defendants, through the intentional and deliberate use of a false electronic return address on their mass Internet mailings, and through their deliberate use of Plaintiff's domain as one of those false electronic return addresses, took, exercised dominion over, and intermeddled with the Plaintiff's property to the exclusion of the Plaintiff in a way that was inconsistent with the Plaintiff's rights, wrongfully and without consent or legal justification.

E. Negligence.

33. Plaintiff incorporates herein the allegations in Paragraphs 1-41, above.

34. The Defendants' actions, as set forth above, constitute negligence. The Defendants owed a legal duty not to send mass Internet mailings while using any false electronic return addresses. The Defendants owed a further legal duty not to send mass Internet mailings while using the electronic return address of the Plaintiff, or any Internet domain name for which the Defendants
did not receive prior permission from the owner and administrator of that domain name. The Defendants breached these duties and thereby proximately caused the Plaintiffs damages.

F. Harmful Access by Computer, Chapter 143, Texas Civil Practice & Remedies Code.

35. Plaintiffs incorporate herein the allegations in Paragraphs 1-34, above.

36. The Defendants' actions, as set forth above, constitute a harmful access by computer, as prohibited by Section 33.02(a), Tex. Penal Code. As set forth above, the Defendants knowingly accessed a computer, computer network and/or computer system without the effective consent of the owner(s), and thereby proximately caused the Plaintiffs' injury. The Plaintiffs bring this civil action pursuant to Chapter 143, Tex. Civ. Prac. & Rem. Code for an injunction and attorney' s fees.

G. Declaratory Judgement

37. Plaintiff incorporates herein the allegations in paragraphs 1-36 above. Plaintiff seeks a declaration pursuant to Tex. Civ. Prac. & Rem. Code §37.001 et seq. that Defendants' practices of using false Internet designations as described above are illegal and recovery of attorneys fees pursuant to such statute.

H. Temporary and Permanent Injunction.

38. Plaintiffs incorporate herein the allegations in Paragraphs 1-37, above.

39. Plaintiffs ask that this Court, without or without further notice to defendants, enter a temporary restraining order and, thereafter a temporary injunction pending final trial on the merits enjoining the Defendants from sending any Internet electronic mail or other electronic communication incorporating or referring to the domain name webs.com in any way, and from sendingany Internet electronic mail or other communication incorporating in any return address any domain name without the express written permission of the owner of that domain name or from in any way acting so as to cause any communication to be sent that purports to be sent by or that will cause mail or replies to any Internet domain that is not owned by Defendants unless
Defendants have obtained permission to do so from the domain's owner. Request is made that the restraining order prevent defendants from doing any and all of the following: (a) identifying an Internet domain or mail box as the sender of any communication or E-mail unless the owner of that domain or mailbox has given express written permission, (b) causing any person who has not given express permission to so use his, her or its name to be shown as the sender or any e-mail or Internet communication, (c) causing any e-mail requesting commercial goods or services (including deletion from any mailing list or the service of preventing inclusion in any mass e-mailing) to be sent by third parties to any Internet domain or address that is not owned by one of them and whose owners are not seeking to provide such goods or services without express writtenpermission of the owner, (d) causing undelivered e-mail to be returned or sent to the Internet domain of anyone other than the sender of that e-mail without the express written permission of the owner of such domain, and (e) sending or causing to be sent any e-mail or other communication to the domain webs.com.

40. A temporary injunction is appropriate and necessary to preserve the status quo. Upon information and belief, the Defendants have continued and or will continue to send mass unsolicited Internet mailings advertising their "service." Upon information and belief, the Defendants will continue to send unsolicited mass Internet mailings with false return addresses causing havoc to Internet Service Providers and Internet users, including the members of Plaintiff's class members enjoined by the Court.

41. The Plaintiff asks this court to enter, upon a final hearing, a permanent injunction enjoining Defendants from sending any Internet electronic mail or other electronic communication incorporating or referring to the domain name of plaintiff or any other person in any way, and from sending any Internet electronic mail or other communication incorporating in any return address
any domain name without the express permission of the owner of that domain name.

42. In addition, the Defendants' actions have forced Plaintiff to retain the undersigned law firm of Greenberg, Peden, Siegmyer & Oshman, P.C. to represent it in this action. Plaintiff seeks its reasonable attorney's fees pursuant to Texas common law and pursuant to Section 143.002, Tex. Civ. Prac. & Rem. Code. and the Tex. Declaratory Judgment Act.

43. Plaintiff reserves the right to amend to seek damages at a later date in accordance with the Texas Rules of Civil Procedure. At present, plaintiff seeks only equitable relief under Texas law (no federal claims being asserted) and attorneys' fees.

PRAYER FOR RELIEF.

WHEREFORE, Plaintiff respectfully requests that Defendants be cited to appear and answer, that this Court exercise jurisdiction over the Defendants and the subject matter of this case, enter a Temporary Restraining Order and Temporary Injunction as requested above, certify a class as requested above, and, after final hearing enter a Permanent Injunction as requested above, and enter a judgment awarding the Plaintiff attorney's fees, costs, and such further relief at law and equity to which the Plaintiff may be entitled. The maximum amount of attorneys' fees, interest, costs and other monetary relief presently
sought hereunder does not exceed $74,500.

Respectfully submitted,

GREENBERG, PEDEN
SIEGMYER & OSHMAN, P.C.

By::____________________________
DAVID E. SHARP
State Bar No. 18115700
12 Greenway Plaza, 10th Floor
Houston, Texas 77046
(713) 627-2720
(713) 627-7057 (FAX)