Quicken Loans Incorporated v. Epic Media Group, Incorporated et al

Filing 1

COMPLAINT filed by Quicken Loans Incorporated against Azoogle.com, Incorporated, Azoogleads US, Incorporated, Azoogleads.com, Incorporated, Epic Media Group, Incorporated. Plaintiff requests summons issued. Receipt No: 0645-2930486 - Fee: $ 350. County of 1st Plaintiff: Wayne, Michigan - County Where Action Arose: Wayne, Michigan - County of 1st Defendant: Out of State. [Previously dismissed case: No] (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1a - Agreement (pp 1-6), # 3 Exhibit 1b - Agreement (pp 7-13), # 4 Exhibit 2a - First Amended Complaint (pp 1-41), # 5 Exhibit 2b - First Amended Complaint (pp 42-73), # 6 Exhibit 3 - 5 June 2008 letter, # 7 Exhibit 4 - 19 March 2009 Order, # 8 Exhibit 5 - 23 April 2009 Order, # 9 Exhibit 6 - 9 July 2010 Memorandum Opinion, # 10 Exhibit 7 - 16 August 2010 letter) (Lavigne, Joseph)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
QUICKEN LOANS INC.,
a Michigan Corporation,
Plaintiff,
Case No. 2:11-cv-___________
v.
EPIC MEDIA GROUP, INC., a Delaware
corporation, f/k/a AZOOGLE.COM, INC., a
Delaware Corporation, and AZOOGLEADS
US, INC., a Delaware corporation, both d/b/a
AZOOGLEADS.COM, INC., jointly and
severally,
Defendants.
LAW OFFICES OF JOSEPH A. LAVIGNE
Joseph A. Lavigne (P50966)
Eric J. Wejroch (P67019)
Attorneys for Plaintiff
31700 West Thirteen Mile Road, Suite 96
Farmington Hills, Michigan 48334
[phone] - voice
[phone] - fax
[e-mail]
[e-mail]

COMPLAINT
The Plaintiff, through its counsel, in support of its Complaint states the following:

Parties, Venue and Jurisdiction
1.

Plaintiff Quicken Loans Inc. (“Quicken Loans”) is a Michigan corporation with

its principal place of business in Detroit, Michigan.

COMPLAINT
PAGE 1 OF 8

2.

Defendant Epic Media Group, Inc. (“Epic”) is a Delaware corporation with its

principal place of business in New York City, New York.
3.

Defendant Azoogle.com, Inc. (“Azoogle.com”) is a Delaware corporation with its

principal place of business in New York City, New York.
4.

Defendant AzoogleAds US, Inc., (“AzoogleAds”) is a Delaware corporation with

its principal place of business in New York City, New York.
5.

Defendants Epic, Azoogle.com and AzoogleAds both conducted and/or do

conduct business as AzoogleAds.com, Inc. (all collectively, “Azoogle”).
6.

Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 because Quicken

Loans is a citizen of Michigan, all Azoogle Defendants are citizens of Delaware, and the amount
in controversy exceeds $75,000, exclusive of interest, costs and attorneys fees.
7.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a) because:
a.

The contract between Plaintiff and Defendant specifies that suit should be

brought in a Michigan court;
b.

The breach of contract occurred in whole or in part in the Eastern District

of Michigan and venue is proper pursuant to 28 U.S.C. § 1391(a)(2);
c.

The Defendants are subject to general personal jurisdiction in the Eastern

District of Michigan pursuant to M.C.L. § 600.711(3);
d.

The Defendants are subject to limited personal jurisdiction in the Eastern

District of Michigan pursuant to M.C.L. § 600.715(1);
e.

The Defendants are subject to limited personal jurisdiction in the Eastern

District of Michigan pursuant to M.C.L. § 600.715(5);

COMPLAINT
PAGE 2 OF 8

Factual Allegations
8.

On or about 1 August 2005, Azoogle and Quicken Loans entered into a Media

Agreement (“the Agreement”).1
9.

Paragraph 7 of the Agreement contains Azoogle’s representation and warranties

that “it has obtained any and all requisite consent from the consumers to pass their information
on to [Quicken Loans] as a Qualified Submission under [the Agreement].”
10.

Paragraph 8 of the Agreement contains defined filtering criteria which limited

“Qualified Submissions” to certain conditions, including that “the submission must come from a
bona fide Visitor to the on [sic] [Azoogle’s] web sites who has expressed a legitimate interest in
applying for or inquiring about a mortgage loan.”
11.

Paragraph 11 of the Agreement contains an indemnification clause, wherein

Azoogle agreed to “defend, indemnify and hold [Quicken Loans] harmless against all third party
claims, suits, costs, fees (including but not limited to reasonable attorney fees) … incurred,
alleged, claimed or sustained by third parties, that arise from or relate to:
(a)
a violation of applicable law asserted against [Quicken Loans] to
the extend [sic] caused, in part or in whole, by the acts or omissions of [Azoogle]
in the course of its performance of [the Agreement] (including; but not limited to,
laws pertaining to privacy rights); [and]
(b)
a breach of [the Agreement]….
12.

By the terms of paragraph 13C of the Agreement, “[i]f any action at law or equity

is necessary to enforce or interpret the terms of [the Agreement], the prevailing party shall be
entitled to an award of their attorney costs and fees incurred.”
13.

In April 2008, as a result of information submitted to Quicken Loans by Azoogle

pursuant to the Agreement, Quicken Loans was named as a defendant in a suit in California (“the
California Lawsuit”).2
1

See Exhibit 1.
COMPLAINT
PAGE 3 OF 8

14.

The plaintiff in the California Lawsuit alleged, inter alia, that Quicken Loans

“had a meeting of the minds with” and “acted to effectuate their agreement” and “contracted for
the sending of commercial e-mail advertisements” Azoogle in the execution of violations of the
CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 and 18 U.S.C. § 1037, and unlawful activities
relating to commercial email advertisement. California Business and Professions Code, Division
7, Part 3, Chapter 1, Article 1.8, § 17529, et seq.
15.

The plaintiff in the California Lawsuit alleged a violation of law against Quicken

Loans caused by the acts or omissions of Azoogle in the course of its performance of the
Agreement.
16.

On 5 June 2008, Quicken Loans sought indemnification from Azoogle under the

terms of paragraph 11 of the Agreement.3
17.

On 19 March 2009, the Court granted Azoogle and Quicken Loans’ motion to

dismiss but permitted Hypertouch leave to amend its complaint.4
18.

In lieu of amending its complaint, Hypertouch opted to permit the case to be

dismissed, which was memorialized by an order entered 23 April 2009,5 and to instead take an
appeal.
19.

On 9 July 2010 the District Court’s order of dismissal was affirmed by the United

States Court of Appeals for the Ninth Circuit.6

2

See Hypertouch, Inc vs. Azoogle, Inc, Intuit, Inc., Quicken Loans Inc., Rock Holdings, Inc., and Does 130, filed in the Los Angeles County Superior Court in case number SC-097839, removed to the United States
District Court for the Central District of California in case number 08-cv-03739, and transferred to the United States
District Court for the Northern District of California in case number 08-cv-04970. Hypertouch’s First Amended
Complaint in that matter is attached as Exhibit 2. The quoted passages are from paragraphs 30-32 of the First
Amended Complaint.
3
See Exhibit 3 (Letter from Andrew Lusk to Jeff Botnick, VP for AzoogleAds.com, Inc.).
4
See Exhibit 4 (Order dated 19 March 2009).
5
See Exhibit 5 (Order dated 23 April 2009).
6
See Exhibit 6 (Memorandum Opinion dated 9 July 2010).
COMPLAINT
PAGE 4 OF 8

20.

On 16 August 2010, Quicken Loans again requested that Azoogle honor its

indemnity obligations under paragraph 11 of the Agreement and demanded indemnification for
$90,364 in legal fees and costs incurred defending the California Lawsuit.7
21.

To date Azoogle has refused and unlawfully failed to indemnify Quicken Loans

as required by the Agreement.
22.

In addition to the fees incurred through the date of the 16 August 2010 indemnity

demand, Quicken Loans has continued to incur legal fees and costs arising from the California
Lawsuit, which costs continue to accrue.

COUNT I – BREACH OF WARRANTY

23.

Paragraphs 1-22 are incorporated as if more fully restated here.

24.

The Agreement is a valid and enforceable contract between Quicken Loans and

Azoogle.
25.

Under the terms of the Agreement, Azoogle warranted that the leads passed on to

Quicken Loans would meet certain criteria.
26.

The actions of Defendant described above constituted a breach of warranty.

27.

As a result of Azoogle’s breach of warranty, Quicken Loans incurred costs and

attorney fees in the California Lawsuit in the amount of $90,364, plus continuing costs and
attorneys fees in California, plus costs and attorneys fees in this litigation.
28.

This action being necessary to enforce the terms of the warranties in the

Agreement, Plaintiff is entitled to an award of attorney costs and fees associated with this action.

7

See Exhibit 7 (Letter from Andrew Lusk to David Graf, General Counsel and Sr. Vice President of Epic
Advertising).
COMPLAINT
PAGE 5 OF 8

WHEREFORE, the Plaintiff requests that this Honorable Court enter a judgment in its
favor and against Defendants, and award damages against the Defendants in whatever amount
the Plaintiff is found to be entitled in excess of $75,000, and that is sufficient to compensate the
Plaintiff for its actual, consequential, and incidental losses sustained as a result of the
Defendant’s breach of warranty; plus interest, costs, and attorneys fees.

COUNT II – BREACH OF CONTRACT

29.

Paragraphs 1-28 are incorporated as if more fully restated here.

30.

The Agreement is a valid and enforceable contract between Quicken Loans and

Azoogle.
31.

Under the terms of the Agreement, Azoogle agreed to provide to Quicken Loans

“Qualified Submissions” which met certain criteria.
32.

The actions of Defendants described above constituted a breach of contract.

33.

As a result of Azoogle’s breach of contract, Quicken Loans incurred costs and

attorney fees in the California Lawsuit in the amount of $90,364, plus continuing costs and
attorneys fees in California, plus costs and attorneys fees in this litigation.
34.

This action being necessary to enforce the terms of the Agreement, Plaintiff is

entitled to an award of attorney costs and fees associated with this action.
WHEREFORE, the Plaintiff requests that this Honorable Court enter a judgment in its
favor and against Defendant, and award damages against the Defendant in whatever amount the
Plaintiff is found to be entitled in excess of $75,000, and that is sufficient to compensate the
Plaintiff for its actual, consequential, and incidental losses sustained as a result of the
Defendant’s breach of contract; plus interest, costs, and attorneys fees.
COMPLAINT
PAGE 6 OF 8

COUNT III – BREACH OF INDEMNITY
35.

Paragraphs 1-34 are incorporated as if more fully restated here.

36.

The Agreement is a valid and enforceable contract between Quicken Loans and

Azoogle.
37.

Under the terms of the Agreement, Azoogle agreed to defend, indemnify and hold

Quicken Loans harmless against all third party claims, suits, costs, fees (including but not limited
to reasonable attorney fees) … incurred, alleged, claimed or sustained by third parties, that arise
from or relate to a violation of applicable law asserted against Quicken Loans to the extent
caused, in part or in whole, by the acts or omissions of Azoogle in the course of its performance
of the Agreement and a breach of the Agreement
38.

The actions of Defendant described above constituted a breach of indemnity.

39.

As a result of Azoogle’s breach of indemnity, Quicken Loans wrongfully incurred

costs and attorney fees in the California Lawsuit in the amount of $90,364, plus continuing costs
and attorneys fees in California, plus costs and attorneys fees in this litigation.
40.

This action being necessary to enforce the terms of the Agreement, Plaintiff is

entitled to an award of attorney costs and fees associated with this action.
WHEREFORE, the Plaintiff requests that this Honorable Court enter a judgment in its
favor and against Defendant, and award damages against the Defendant in whatever amount the
Plaintiff is found to be entitled in excess of $75,000, and that is sufficient to compensate the
Plaintiff for its actual, consequential, and incidental losses sustained as a result of the
Defendant’s breach of contract; plus interest, costs, and attorneys fees.

COMPLAINT
PAGE 7 OF 8

Respectfully submitted,
/s/ Joseph A. Lavigne
LAW OFFICES OF JOSEPH A. LAVIGNE
Joseph A. Lavigne (P50966)
Eric J. Wejroch (P67019)
31700 West Thirteen Mile Road, Suite 96
Farmington Hills, Michigan 48334-2166
[phone]
[e-mail]
[e-mail]
Dated: 12 April 2011

COMPLAINT
PAGE 8 OF 8