Gordon v. Impulse Marketing Group Inc

Filing 214

DECLARATION by Peter Glantz in Opposition re 167 MOTION to Dismiss, 155 MOTION to Dismiss, 158 MOTION to Dismiss, 161 MOTION to Dismiss, 177 MOTION to Dismiss, 164 MOTION to Dismiss Regarding all Third Party Defendants filed by Impulse Marketing Group Inc. (Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 214

Case 2:04-cv-05125-FVS

Document 214

Filed 11/23/2005

Liebler,

Ivey,

Conner,

Berry

&

St.

Hilaire

By:
1141 N. P.O. Box

FloydE.Ivey
Edison, Suite C 6125

Kennewick,

Washington

99336

Local

Counsel

for

Defendant/Third-Party

Plaintiff

Impulse

Marketing

Group,

Inc.

Klein,

Zelman,

Rothermel

&

Dichter,

L.L.P.

By:

Sean

A.

Moynihan

&

Peter

J.

Glantz

485

Madison

Avenue

New

York,

New

York

10022

Telephone

Number

(212)

935-6020

Facsimile

Number

(212)

753-8101

Attorneys

for

Defendant/Third-Party

Plaintiff

Impulse

Marketing

Group,

Inc.

IN

THE

UNITED

STATES

DISTRICT

COURT

FOR

THE

EASTERN

DISTRICT

OF

WASHINGTON

ATRICHLAND

JAMES

S.

GORDON,

JR.,

)

Plaintiff,

)

)

No.

CV-O4-5125-FVS

vs.
IMPULSE MARKETING GROUP, INC.,

)
)

)

Defendant,

)

)

IMPULSE

MARKETING

GROUP,

INIC.,

)

)

Third-Party

Plaintiff,

)

vs.
BONNIE GORDON, JAMES S. GORDON, III, JONATHAN GORDON, JAMILA GORDON,

)
) )

ROBERT

PRITCHETT,

EMILY

ABBEY,

and

)

LEW

REED,

)

)

Third-Partv Defendants.
DECLARATION OF PETER J. GLANTZ IN OPPOSITION

)
TO THIRD PARTY

DEFENDANTS'

MOTION

TO

DISMISS

IMPULSE

MARKETING

GROUP,

INC.'S

THIRD

PARTY

AMENDED

COMPLAINT

Peter

J.

Glantz,

being

duly

sworn,

deposes

and

says,

upon

information

and

belief:

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I.

My name is PeterJ. Glantz and I am an associatewith the law firm of

Klein, Zelman,Rothermel& Dichter L.L.P., counselfor Impulse Marketing Group, Inc. ("Impulse"). 2. I submit this declaration in opposition to the motion of third party

defendantsBonnie Gordon, JamesS. Gordon, III, JonathanGordon, Jamila Gordon, RobertPritchettand Emily Abbey ("Third Party Defendants") dismissImpulse'sThird to Party Amended Complaint pursuantto Federal Rule of Civil Procedure 12(b)(6) or, alternatively,9(b) (the "Motion"). Procedural History 3. In 2003, Plaintiff JamesGordon("Gordon" or "Plaintiff') filed a lawsuit

against CommonwealthMarketing Group, Inc. ("CMG") (the "Related Action") for allegedviolations ofRCW 19.190et seq. 4. On November23, 2004, Plaintiff filed the instantlawsuit againstImpulse

(the "Instant Action") on similar grounds.l 5. Plaintiff and his attorney have filed multiple actions against various

defendants using similar, if not identical,theoriesof recoveryin eachaction. 6. On or about January 21, 2005, Impulse moved to dismiss the Instant

Action, asa matterof law, pursuant Rule 12(b)( to 6). 7. This Court deniedImpulse's motion to dismissGordon's complaint on or

about July 11, 2005 and did not requirePlaintiff to pleadhis Complaint with specificity pursuant Rule 9(b). to

1Plaintiff is neithera victim, nor an intendedprotectedparty under RCW 19.190et seq. Instead,Plaintiff systematically fabricated claims against legitimate businesseswith the intent to coerce economic

settlements.
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8.

Accordingly, Impulse did not have an opportunity, until recently, to begin

its examination of the voluminous e-mails at issue in the Instant Action. 9. On September 7, 2005, Impulse filed a Third Party Amended Complaint

against each of the Third Party Defendants arising out of Third Party Defendants' wrongful and fraudulent conduct in connection with Plaintiff's fabricated against Impulse in the Instant Action. 10. Third Party Defendants have failed to interpose a timely Answer to the claims false and

Third Party Amended Complaint. 11. Instead, pro se Third Party Defendants now, after the time respond to the

Third Party Amended Complaint has long since expired, move to dismiss the Third Party Amended Complaint arguing that: (1) no factual basis exists for Impulse's Third Party Amended Complaint; and (2) even if one assumes the truth of all of Impulse's factual allegations contained in its Third Party Amended Complaint, Impulse still fails to state claims upon which relief can be granted. Introduction 12. Impulse is a permission-based on-line marketing company that collects

personally identifiable information from individuals who sign up to receive free products and/or services at websites run by Impulse and/or its marketing partners. (Second Am. Compl. '1.) 13. In reciprocal consideration for receiving free products and/or services

from an Impulse-related website, Impulse requires that individuals using its websites agree to submit to Impulse accurate personal subscriber information ("Registration Information" or "Subscriber Profile"). (Second Am. Compl. '2.)

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14.

By submitting their Subscriber Profile to Impulse, individuals explicitly

grant Impulse the right to use their Subscriber Profile for, inter alia, transferring the Subscriber Profile to third parties for marketing purposes. (Second Am. Compl. ~3.) 15. Impulse derives substantial revenue from the licensing and/or use of

accurate Subscriber Profiles. This quid pro quo is the fundamental business model of online marketing. (Second Am. Compl. ~4.) 16. An accurate and truthful Subscriber Profile for the products and/or

services located at the applicable Impulse-related website is therefore of utmost significance to Impulse. Any failure of an individual to provide Impulse with an accurate and truthful Subscriber Profile, in violation of the applicable website Terms and

Conditions, adversely impacts Impulse's business revenue because an inaccurate Subscriber Profile in the open market is considered a bad lead for other third party marketing companies. (Second Am. Compl. ~~5-6.) 17. Licensing or using inaccurate Subscriber Profiles damages Impulse'si

reputation and negatively impacts Impulse's relationships with its third party marketing! partners. Third Party Defendants are complicit in a premeditated and systematic effort to cause harm to Impulse by: (a) providing Impulse with false and/or inaccurate Subscriber Profiles at various Impulse-related websites; (b) conspiring with Plaintiff to provide Impulse with false and/or inaccurate Subscriber Profiles; (c) conspiring with Plaintiff to have Mr. Gordon claim to be said third parties when in fact, the individual certifying their identity and accuracy of their Subscriber Profile was in fact someone else, to wit, Plaintiff; (d) repeatedly soliciting, unsubscribing and then repeatedly re-soliciting email from Impulse and/or its marketing partners in a scheme to fabricate and exacerbate

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claims against Impulse based upon their subjective belief that Impulse violated RCW 19.190 et seq.; (e) failing to give Impulse the benefit of the bargain, particularly after Third Party Defendants received free products and/or services from the applicable Impulse-related website while Impulse received inaccurate, untruthful, or otherwise incomplete Subscriber Profiles in return; (f) having specific intent to drive email messagesto the "gordonworks.com" domain (the "Domain") which emails Third Party Defendants subjectively believed violated RCW 19.190 et seq., solely for the purposes of causing Impulse pecuniary and reputational harm while deliberately attempting to fabricate and exacerbate legal claims; and (g) interfering with existing agreements between Impulse and its third party marketing partners. (Second Am. Compl. ~7.) 18. Third Party Defendants' actions were undertaken in deliberate bad faith

and there was no legitimate reason for Third Party Defendants to engage in such a premeditated and systematic schemeto causeharm to Impulse. Questions of Fact That Preclude Dismissal Under 12(b)( 6) 19. In addition to the explicit and exhaustive factual allegations contained in

Impulse's Third Party Amended Complaint Plaintiffs declaration dated August 15,2005 in support of Plaintiffs "Gordon Declaration") Motion to Dismiss Impulse's Amended Counterclaims (the contains several admissions that implicate Third Party

Defendants. The Gordon Declaration asserts,under penalties of perjury, that: .Gordon created numerous e-mail addressesby fictitiously using the names of his friends and family members that he identified as witnesses in his Initial Disclosures in the Related Action (the "Gordon Initial Disclosures"). ~ Exhibit "A" ~3, that was previously annexed to the Declaration of James Bodie, dated September 23, 2005, for a copy of the Gordon Initial Disclosures in the Related Action2 (the "Bodie Declaration");
2 This Court has already taken judicial notice of the Related Action in its Order Denying Defendant's Motion To Dismiss,datedJuly 11,2005.

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.Although the e-mail addresses relatedto Gordon's family members,all of the email addresses were purportedly "created and maintained" by Gordon, and emails sentto any of thosee-mail addresses were "received" by Gordonhimself. ~ Exhibit " A" previously annexedto the Bodie Declaration'7 (emphasis added);and .Gordon "used" certain e-mail addresses that belongedto his family and other witnesses.~ Exhibit "A" previouslyannexed the Bodie Declaration to '9. 20. By contrast,the GordonInitial Disclosurein the RelatedAction revealsa

factual inconsistency. Specifically, the Gordon Initial Disclosures state that Robert Pritchettand Emily Abbey, ratherthan Gordonhimself, receivedcommerciale-mail. ~ Exhibit "A" previouslyannexed the Bodie Declaration 2-7 (emphasis to " added). 21. As the GordonInitial Disclosures were subjectto Rule 11 requiring, at the

time of the disclosure,reasonableinquiry and evidentiary support, the contradictory representations the GordonDeclarationandthe GordonInitial Disclosures in raisetriable issuesof fact in the Third Partyaction. Suchquestions include: .Whether or not Third Party Defendants,and not Gordon himself, receivedthe commerciale-mail messages issuein the InstantAction; at .Whether Third PartyDefendants providedImpulse, and/orits marketingpartners, with untruthful and inaccurateSubscriber Profiles in violation of the terms of the applicableImpulse-related site Termsand Conditionsand PrivacyPolicy; and web ,;", , .Whether \; ...misrepresent Third Party Defendants directed or conspired with Plaintiff to their identitiesto Impulseand/orits marketingpartners.

~'t"",'C" 'ct.'"

.Whether Third Party Defendants derive pecuniary benefit from permitting Plaintiff to misusetheir Subscriber Profiles.

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Contribution and Indemnification 22. Initially, Third Party Defendantsadmit that Impulse properly plead a

cause action for contributionandindemnification. of 23. Notwithstanding the foregoing, Third Party Defendants maintain that

because Impulse's pleading does not include an admissionthat the e-mails in question violated RCW 19.190, it fails to state a claim upon which relief can be granted. Apparently, Third Party DefendantsmisinterpretImpulse's Third Party causeof action against them for contribution and indemnification because under Washington law, contribution distributes loss among parties by requiring eachto pay his proportionate share,while indemnity shifts the entire loss from one party who has beencompelledto pay damages the shoulders another to of who shouldbear it instead. 24. As this Court recalls,Plaintiff suedDefendant/ThirdPartyPlaintiff on the

theory that he received email messages that allegedly violated RCW 19.190 et seq. Impulsehasasserted factual allegationsagainstThird Party Defendantsthat demonstrate that in the event Defendant/ThirdParty Plaintiff is found to be in any way liable to Plaintiff, which liability Defendant/Third Party Plaintiff wholly denies, then will Defendant/Third Party Plaintiff demandsjudgment over and against, Third Party Defendants, indemnityand contributionfor the full amountsof said liability because: for (a) Third Party Defendantsspecificallyintendedto drive email messages the Domain to which emails they subjectively believed violated RCW 19.190 et seq.; and (b) Third Party Defendants repeatedlysolicited, unsubscribedand then repeatedlyre-solicited email from Impulse and/orits marketingpartnerswith the sole intentionto fabricateand

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exacerbate claims against Impulse based upon their subjective belief that Impulse violated RCW 19.190 et seq. (First Am. Compl. ~~1-6.; SecondAm. Compl. ~~17-20.) 25. Such improper and inequitable conduct violates conscience, good faith and

other equitable principles. 26. 27. Further, such impermissible behavior raises a question of fact. Accordingly, the Motion to dismiss Impulse's contribution and

indemnification causeof action pursuant to Rule 12(b)(6) should be denied in its entirety. Fraud and Deceit 28. With respect to Impulse's Third Party Amended Complaint, Impulse has

alleged sufficient facts tending to show all of the above-mentioned elements of a prima facie fraud and deceit cause of action. 29. Specifically, Impulse alleges facts tending to show that Third Party

Defendants are complicit in a premeditated and systematic effort to cause harm to Impulse by: (a) knowingly providing Impulse with false Subscriber Profiles at various Impulse-related websites; (b) directing and conspiring with Plaintiff to provide Impulse with false and/or inaccurate Subscriber Profiles; (c) falsely claiming to be said third parties when in fact, the individual certifying their identity and accuracy of their Subscriber Profile was in fact someone else, to wit, Plaintiff; (d) having specific intent to fraudulently drive email messagesto the Domain which emails they subjectively believed violated RCW 19.190 et seq. solely for the purpose of causing Impulse pecuniary and reputational harm while deliberately attempting to fabricate and exacerbate legal claims; (e) fraudulently interfering with existing agreements between Impulse and its third party marketing partners; and (t) repeatedly soliciting, unsubscribing and then repeatedly re-

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soliciting email from Impulse and/orits marketingpartnersin an effort to fabricateand exacerbateclaims against Impulse based upon their subjective belief that Impulse violated RCW 19.190et seq. (Second Am. Compl. ~~22-30.) 30. This conductwas deliberateand deceitful and at the time such conduct

occurred,Third Party Defendantsknew that this conductwas deceitful. (SecondAm. Compl. ~28.) 31. Third Party Defendantsfraudulentconductwas for their own benefit and

to Impulse'sdetriment.(Second Am. Compl. ~29.) 32. Third Party Defendants deceitful actions were undertakento induce

Impulse and/orits marketingpartnersto incur excessivebusinessoperationalcostsand associated expenditureswith running its businessand to fabricateand exacerbate legal claims againstImpulse basedupon their subjectivebelief that Impulse violated RCW 19.190et seq. (SecondAm. Compl. ~30.) 33. Thereis no legitimatereasonfor Third PartyDefendants be complicit in to

sucha premeditated and systematiceffort to fraudulentlycauseharm to Impulse. Third PartyDefendants'actionswere undertaken deliberate faith. in bad 34. Impulse respectfully refers the Court to its Second Cause of Action

containedin its Third-PartyAmendedComplaint at paragraphs through 14 that details 8 the elements fraud and deceit.3 Suchallegationsdemonstrate Impulse sufficiently of that pled all of the elements requiredto sustain fraud and deceitcause action. its of 35. Specifically, Impulse alleges, inter alia, that Third Party Defendants

misrepresented their identity and SubscriberProfile to Impulse, and/or its marketing
3To the extentthat Impulsefailed to properlyallegea valid fraud and deceitcauseof action againstThird Party Defendants, Impulsehas soughtleaveto amendits Third Party Complaint for a secondtime prior to Third party Defendants'filing and servinga responsive pleading.

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partners, by permitting Third Party Defendants to use their Subscriber Profile in an untruthful and inaccurate manner. Among other allegations, Impulse alleges facts that create a question of fact as to the identity of the recipient of the commercial e-mail at issue. (First Am. Compl. "8-14.); (Second Am. Compl. '22-30.) 36. As stated above, any intentional failure of an individual to provide Registration Information significantly impacts

Impulse with accurate and truthful

Impulse's business revenue becauseinaccurate and untruthful Registration Information in the open market is considered a bad lead for other third party marketing companies. An accurate and truthful individual Subscriber Profile of the utmost significance to Impulse as it derives substantial revenue from such accurate and truthful Registration Information. Fraud and Deceit Under Rule 9(b) 37. Third Party Defendants contend that this Court should, alternatively,

require that Impulse plead its fraud and deceit causesof action with particularity pursuant to Rule 9(b). 38. Third Party Defendants argue that Impulse should specifically allege and

identify the content of any and all representations made by Third Party Defendants that Impulse alleges were fraudulent. 39. However, Impulse's third-party cause of action for fraud and deceit

provides sufficient specificity and particularity to comply with Rule 9(b). (First Am. Compl. "15-26.) (Second Am. Compl. "31-41.) 40. For example, throughout the month of September2003, and on numerous

other dates to be provided after the completion of discovery, Third Party Defendants directed, permitted, or conspired with Plaintiff, for their own pecuniary benefit, to

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provide Impulse with an inaccurate untruthful Subscriber and Profiles at variouswebsites that are specifiedin the Third Party AmendedComplaint. (First Am. Compl. "15-21.);4 (Second Am. Compl. '31-41.) 41. Third Party Defendantswere further complicit in a premeditatedand

systematiceffort to causeharm to Impulse by repeatedlysoliciting, unsubscribingand thenrepeatedly re-soliciting email from Impulseand/orits marketingpartnersin an effort to fabricate and exacerbate claims againstImpulse basedupon a subjectivebelief that Impulseviolated RCW 19.190et seq.(Second Am. Compl. '37.) 42. Based upon the specific allegations contained in Impulse's fraud and

deceitthird party cause action,Impulsehascompliedwith Rule 9(b). of Tortious Interference With BusinessRelationships 43. Third Party Defendants maintainthat Impulsedid not sufficiently allege a

causeof action for tortious interference with a business relationship. 44. Impulse has sufficiently alleged all of the elements for its tortious

interferencewith a businessrelationshipcauseof action againstThird Party Defendants. Specifically,Impulsealleges,inter alia, that Third PartyDefendants knowledgeof a had valid contractualrelationshipbetweenImpulse and/orits marketingpartners. (First Am. Compl."30-33); (Second Am. Compl.'45.). 45. Such knowledge is imputed to Third Party Defendant upon their

4 In light of the fact that Impulse only recentlyreceivedthe emails at issue in the InstantAction, Impulse acknowledgesthat some of the allegations contained in its Third Party Amended Complaint require clarification. For example,any and all allegationsproviding that Third Party Defendantsmisrepresented their identity to Impulseas themselves was due to a scrivenererror. To clarify theseallegations,Impulse has soughtleaveto amendits Third Party Complaint. In truth, the allegationscontainedin the Third Party Amended Complaintdemonstrate that the Third Party Defendantsdirected, permitted, or conspiredwith Plaintiff, for their own benefit, to provide Impulse with inaccurateand untruthful SubscriberProfiles at specifiedwebsitesand InternetProtocolAddresses throughoutSeptember 2003. The ability to allege even more details and specific allegationsis hamperedby the amount of time and resourcesthat it will take Impulseto reviewthousands emailmessages. of

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acceptanceof the applicable Impulse-related Privacy Policy and Terms and Conditions. 46. Impulse further maintains that Third Party Defendants: (a) submitted their

Subscriber Profile to Impulse and/or its third party marketing partners; (b) certified that their Subscriber Profiles were accurate and truthful pursuant to the applicable Impulserelated Terms and Conditions; and (c) entered into a Privacy Policy that permitted Impulse and/or its marketing partners to share the applicable participant's Subscriber Profile with contractually-bound third party marketers. (First Am. Compl. ~~28-35.); (Second Am. Compl. ~~8-14 and ~~43-51.) 47. Accordingly, any denial by Third Party Defendants as to whether or not

they had knowledge of Impulse's contractual business relationships is, at most, untrue, and, at least, for determination by a jury. 48. Third Party Defendants' failure to provide Impulse with accurate and

truthful Subscriber Profiles, in violation of the applicable website Terms and Conditions, damaged Impulse's reputation with its third party business partners and negatively impacted Impulse's business revenue because the Third Party Defendants' Subscriber Profiles in the open market were considered bad leads for other third party marketing companies. (First Am. Compl. ~~28-35.); (Second Am. Compl. ~~8-14 and ~~43-5l.) 49. Due to Third Party Defendants' untruthful and inaccurate representations

and Subscriber Profiles, as well as Third Party Defendants' other improper actions, such as conspiring with Plaintiff to have Mr. Gordon claim to be said third parties when in fact, the individual certifying their identity and accuracy of their Subscriber Profile was in fact someone else, Impulse is likely to sustain and has sustained a loss of business relationships with its on-line marketing business partners. (First Am. Compl. ~~28-35.);

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(Second Am. Compl. ~~8-14 and ~~43-51.) 50. Third Party Defendants' conduct in knowingly providing Impulse with

untruthful and inaccurate Subscriber Profiles have caused a loss of contractual business relationships with Impulse's on-line marketing business partners. (First Am. Compl. ~~28-35.); (Second Am. Compl. ~~8-14 and ~~43-51.) 51. Based on the foregoing, Impulse has sufficiently alleged facts tending to

show that: (a) there was a valid contractual relationship or business expectancy in existence; (b) Third Party Defendants had knowledge of the relationship or expectancy; (c) Third Party Defendants intentionally interfered with Impulse's contractual

relationships thereby inducing or causing a breach or termination of the contractual relationship between Impulse and its third party marketing partners; and (d) Impulse suffered damages as a result of Third Party Defendants' conduct. (First Am. Compl. '~28-35.); (Second Am. Compl. ~~8-14 and ~~43-51.) Breach of Contract 52. Third Party Defendants directly and/or by conspiring with Plaintiff: (a)

accepted and consented to receive permission-based marketing services by contractually agreeing to the Impulse-related website Terms and Conditions as well as the applicable website Privacy Policy; and (b) contractually representedand certified to Impulse and/or its third party marketing partners that their Subscriber Profiles provided to Impulse and/or its marketing partners, were true and accurate. (First Am. Compl. ~~37-46.); (Second Am. Compl. ~~8-14 and 53-65.) 53. Impulse is a permission-based on-line marketing company that collects

personally identifiable information from individuals who sign up to receive free products

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and/or services at websites run by Impulse and/or its marketing partners. (First Am. Compl. ~~37-46.); (Second Am. Compl.~~8-14and 53-65.) 54. In reciprocal considerationfor receiving free products and/or services

from an Impulse-relatedweb site, Impulse requires that individuals using its websites agreeto submit to Impulse accurateSubscriber Profiles. (First Am. Compl. ~~37-46.); (Second Am. Compl.~~8-14and 53-65.) 55. By submitting their Subscriber Profile to Impulse, individuals explicitly

grant Impulse the right to use their SubscriberProfile for, inter alia, transferring the Subscriber Profile to third parties for marketingpurposes.(First Am. Compl. ~~37-46.); (Second Am. Compl.~~8-14and 53-65.) 56. Impulse derives substantialrevenue from the licensing and/or use of

accurateSubscriber Profiles. This quid pro quo is the fundamental business model of online marketing. (First Am. Compl.~~37-46.); (Second Am. Compl.~~8-14and 53-65.) 57. An accurate and truthful SubscriberProfile for the products and/or

services located at the applicable Impulse-relatedwebsite is therefore of utmost significanceto Impulse.(First Am. Compl.~~37-46.); (Second Am. Compl. ~~8-14) 58. Any failure of an individual to provide Impulse with an accurateand

truthful Subscriber Profile, in violation of the applicablewebsite Terttls and Conditions, adversely impactsImpulse'sbusiness revenue because inaccurateSubscriber an Profile in the open market is considereda bad lead for other third party marketing companies. Licensing or using inaccurate SubscriberProfiles damagesImpulse's reputation and negativelyimpactsImpulse's relationshipswith its third party marketingpartners.(First Am. Compl. ~~37-46.); (Second Am. Compl. ~~8-14.)

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59.

Third Party Defendants argue that there was never a meeting of the minds

if, as Impulse contends, Third Party Defendants never intended to confer the benefit of the bargain and intended to lie. Such an argument is simply a red herring. 60. Using Third Party Defendants' rationale, the element of mutual assent for

the formation of a contract would be a subjective standard. However, the mutual assent necessary to form a contract cannot be based upon subjective intent, but rather must be founded upon an objective manifestation of mutual intent on the essential terms of the

promIse.
61. That is, would a reasonable person under the circumstances believe that The fact that Third Party

there was a meeting of the minds between the parties.

Defendants were lying to Impulse from the very beginning of the formation of a contract is irrelevant. 62. In the case at bar, Impulse was reasonable is assuming that it and Third

Party Defendants entered into an agreement. As such, Third-Party Defendants argument that a contract was never formed is entirely specious.

Third Party Defendants' Contractual Duties
63. Under the applicable Impulse-related website Terms and Conditions and

Privacy Policy Third Party Defendants had a duty to: (a) accept the commercial email in a proper manner without negating the benefit conferred upon Third Party Defendants by Impulse; (b) accurately represent and certify that their Subscriber Profiles provided to

Impulse, or its marketing partners, were true and accurate; and (c) conspire with Plaintiff to have Mr. Gordon claim to be said third parties when in fact, the individual certifying

their identity and accuracy of their Subscriber Profile was in fact someone else. (First

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Am. Compl.~~37-46.); (SecondAm. Compl. ~~53-65.) Third Party Defendants' Breach Of Their Contractual Duty 64. Third Party Defendantsbreachedtheir contractual duty by: (a) being

complicit in a premeditated systematiceffort to causehann to Impulse by providing and Impulse with knowingly false and/orinaccurateSubscriber Profiles at various Impulserelatedwebsites;(b) falsely claiming to be said third parties when in fact, the individual certifying their identity and accuracy their Subscriber of Profile was in fact someone else, to wit, Plaintiff; (c) failing to give Impulsethe benefit of the bargain,particularly where Third Party Defendantsreceived free products and/or services from the applicable Impulse-relatedwebsite while Impulse received inaccurate,untruthful, or otherwise incomplete SubscriberProfiles in return; (d) having the specific intent to drive email messageto the Domainwhich emailsthey subjectivelybelievedviolated RCW 19.190et s seq. solely for the purposeof causingImpulsepecuniaryand/orreputationalhann and to fabricate and exacerbatelegal claims against Impulse; (e) interfering with existing agreementsbetween Impulse and its third party marketing partners; (t) repeatedly soliciting, unsubscribing and then repeatedly re-soliciting email from Impulse and/orits marketingpartnersin an effort to fabricateand exacerbate claims againstImpulsebased upon their subjectivebelief that Impulseviolated RCW 19.190et seq.(First Am. Compl. '~37-46.); (Second Am. Compl. ~~8-14 ~~53-65.) and Causationand Damages 65. Impulse has performedall of the obligations on its part to be performed

under the contractual agreementbetweenthe parties. (First Am. Compl. ~~37-46.); (Second Am. Compl. ~~53-65.)

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66.

As a proximate result of the breachof the agreement,including those

expresscommunications, solicitationsand inaccurateand untruthful Subscriber Profiles submittedto Impulse by Third Party Defendants, personallyor as a userof the Domain, Impulse has sustainedmonetarydamages, the amountto be determinedat trial. (First in Am. Compl. ~~37-46.); (Second Am. Compl. ~~53-65.) 67. Impulse has alleged facts sufficient to supporta prima facie breachof

contractcauseof action. (First Am. Compl.~~37-46.); (Second Am. Compl. ~53-65.) 68. Further, in light of the fact that this Court is required to take the

allegations contained in Impulse's Third-Party Amended Complaint for breach of contractastrue and construedin the light mostfavorableto Impulsewhile giving Impulse the benefitof everyinferencethat reasonably may be drawn,the Motion baseduponRule 12(b)(6)shouldbe denied. Injunctive Relief ".~
J i;'

c,

69.

Third Party Defendants contendthat: (a) there is no statutoryor common

: .,'

law prohibition againstsoliciting commerciale-mail, evenif it is done with the intent to suethe sender;and (b) the mere act of requesting e-mailsis perfectly legal conducteven if the personrequestinge-mails intendsto suethe sender. Suchan argumentis patently false and an implied admissionby Third Party Defendantsthat their conductviolated consciencegood faith and otherequitableprinciples. , 70. Third Party Defendants'handsare uncleandue to Third Party Defendants

deliberate,predatory,bad faith actions. Impulsehas sufferedand will continueto suffer irreparable damages unlessImpulseis grantedinjunctive relief. 71. There is no legitimate reasonfor Third Party Defendantsto repeatedly

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solicit, unsubscribe and then repeatedly re-solicit email from Impulse and/or its marketing partners in an effort to fabricate and exacerbate claims against Impulse based upon their subjective belief that Impulse violated RCW 19.190 et seq. (First Am. Compl. ~~48-52.); (Second Am. Compl. ~~66-73.) 72. Damage to Impulse's good will and reputation are difficult to calculate. If

Impulse is unable to stop Third Party Defendants' conduct and further schemes by Third Party Defendants, Impulse will suffer irreparable damages. For this harm and damage, Impulse has no adequate remedy at law. These damages are continuing, and to a large degree will be incalculable because it is extremely difficult to compute damages for lost of business relationship, to its reputation and good will. (First Am. Complj ~48-52.); (Second Am. Compl. ~~66-73.) 73. Further, Third-Party Defendants failed to address how Impulse failed to ~
! ,

allege facts tending to show a prima facie request for injunctive relief. Motion based upon Rule § 12(b)( 6) should be denied.

such, the

WHEREFORE, Impulse requests that: (a) Third Party Defendants' Motion to Dismiss Impulse's Third Party Amended Complaint be denied in its entirety; land (b) the Court grant such other and further relief that the Court considers proper. Dated this 23rd day of November, 2005. Sworn and subscribed before me this

2..)/c!

of No ember, 2005.

JOSHUA ROSE D.
Notary Public, State of New York No. 02RO6051188
Qualified Commission in New Expires York County ~ 11/20/20~

{OOO74679;1}

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