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)

EXHIBIT 6

FILED
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

JUL 09 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

HYPERTOUCH, INC., a California
corporation,

No. 09-15943
D.C. No. 3:08-cv-04970-MMC

Plaintiff - Appellant,
MEMORANDUM *

v.
AZOOGLE.COM, INC., a Delaware
corporation, DBA Epic Advertising, Inc.;
QUICKEN LOANS, INC., a Michigan
corporation; SUBSCRIBERBASE, INC., a
South Carolina corporation, DBA
Addrive.com, DBA Consumer Research
Corporation, Inc., DBA Free Slide, Inc.,
DBA Subsriberbase Holdings, Inc.,
Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted April 13, 2010
San Francisco, California

*

This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District
Judge.**
Plaintiff-appellant Hypertouch, Inc. (“Hypertouch”) is an internet service
provider that filed this action pursuant to California Business and Professions Code
§ 17529.5(a) against defendants-appellants Azoogle.com, Inc. and Subscriberbase,
Inc., commercial e-mail advertisers, and defendant-appellant Quicken Loans, Inc.
(collectively “Azoogle”), a company that hired Azoogle.com to transmit its
commercial e-mail advertisements.
The complaint alleges that Azoogle has directed over 380,000 misleading email advertisements that have resulted in financial injury to Hypertouch.
Hypertouch seeks statutory and actual damages for each of the close to half a
million alleged advertisements, but its complaint refers in general terms only to
eleven examples.
The district court ruled that Hypertouch had failed to comply with the
heightened pleading provisions of Federal Rule of Civil Procedure 9(b) relating to
complaints alleging fraud. Hypertouch declined to make any amendment, elected
to take a dismissal, and filed this appeal.

**

The Honorable James Maxwell Moody, Senior United States District
Judge for the District of Arkansas, sitting by designation.
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We agree with the district court that the causes of action as pled sound in
fraud. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.
2003). Not only does the California statute speak in terms of commercial e-mail
advertisements that contain “falsified,” “misrepresented,” “forged,” or misleading
information, see Cal. Bus. & Prof. Code § 17529.5(a)(2)-(3), terms common to
fraud allegations, but Hypertouch’s own complaint repeatedly describes the
advertisements and their content as “fraudulent.” It cannot circumvent the
requirements of the Federal Rules of Civil Procedure by arguing that it did not
plead all of the allegations sufficiently to set forth a claim of fraud. See Kearns v.
Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Vess, 317 F.3d at 1103-04,
1106-07. We express no opinion as to the degree of particularity required for a
statutory claim of this nature, but the allegations of this complaint were pled with
no degree of particularity.
We also agree with the district court that Hypertouch’s claims for liquidated
damages under California Business and Professions Code § 17529.5(b)(1)(B)(ii)
were subject to California Code of Civil Procedure § 340(a)’s one-year statute of
limitations. An award of liquidated damages under § 17529.5(b)(1)(B)(ii) has no
relation to the amount of damages actually suffered by the plaintiff or to the
defendant’s culpability in causing those damages, and liquidated damages may be
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awarded in addition to actual damages. Such an award is therefore a “penalty”
within the meaning of § 340(a). See Murphy v. Kenneth Cole Prods., Inc., 155
P.3d 284, 290 (Cal. 2007).
The judgment of the district court is AFFIRMED. Azoogle’s request for
judicial notice is denied.

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