Gordon v. Virtumundo Inc et al

Filing 138

DECLARATION of Michael Fitzgerald filed by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn re 127 MOTION for Attorney Fees and Costs (Newman, Derek)

Gordon v. Virtumundo Inc et al

Doc. 138

Case 2:06-cv-00204-JCC

Document 138

Filed 07/06/2007

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FITZGERALD DECL. IN SUPPORT OF DEFS' MOTION FOR FEES [NO. CV06-0204JCC] - Page 1

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JAMES S. GORDON, Jr., a married individual, d/b/a `GORDONWORKS.COM'; OMNI INNOVATIONS, LLC., a Washington limited liability company, Plaintiffs, v. VIRTUMUNDO, INC, a Delaware corporation d/b/a ADNOWLEDGEMAIL.COM; ADKNOWLEDGE, INC., a Delaware corporation, d/b/a ADKNOWLEDGEMAIL.COM; SCOTT LYNN, an individual; and JOHN DOES, 1-X, Defendants. NO. CV06-0204JCC DECLARATION OF MICHAEL FITZGERALD IN SUPPORT OF DEFENDANTS' MOTION FOR ATTORNEYS' FEES AND COSTS NOTE ON MOTION CALENDAR: July 6, 2007

I, Michael Fitzgerald, do declare and testify as follows:

1.

I am over the age of eighteen (18) years, competent to testify to the matters

stated herein, and make this declaration from personal knowledge of those matters. 2. 3. I am currently a resident of the State of Missouri. Adknowledge, Inc. ("Adknowledge") is organized under the laws of the

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Dockets.Justia.com

Case 2:06-cv-00204-JCC

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State of Delaware and has its principal place of business in the State of Missouri. 4. I am currently the General Manager of email operations for Adknowledge

(my formal title is General Manager, List Management). As such, I am knowledgeable about the business practices, methods and manner of operation at issue in this lawsuit. 5. We have processes and procedures in place to ensure that recipients of

commercial email sent by us or with our assistance have opted-in to receive commercial email and have not unsubscribed or opted out of receiving such email. 6. Every commercial email sent by us or with our assistance in the normal

course of business has the physical mailing address of the sender as well as an unsubscribe link on which the recipient may click to be unsubscribed. 7. The email domain "@gordonworks.com" has been suppressed since 2006,

since about the time we became aware of the lawsuit filed by Gordonworks against Adknowledge. This means that Adknowledge would not send commercial email to any recipient whose email address ended in "@gordonworks.com," even if they opted-in and requested that we send them email. 8. However, we have no way of knowing whether James Gordon opted-in to

receive email through a different email address, with a different domain name. Our systems are automated and designed to accept the email addresses provided to them, unless we manually direct them to suppress a particular email address or domain. 9. I have reviewed Exhibits B, C and D to the Declaration of James S.

Gordon, Jr. executed on July 2, 2007 and declare that they were not sent by Adknowledge. Exhibit B states on its face it was sent by "Charter Communications." Exhibit C reflects domains ­ aberystwyth.com; begignantcause.com ­ that are unknown to me and not used by Adknowledge. Exhibit D does make reference to [e-mail] and adknowledgemail.com, but reflects dates in December 2005 and January 2006; our records reflect that Faye Gordon opted in to the Adknowledge email network on or about September 27, 2003 and did not unsubscribe from the network.

FITZGERALD DECL. IN SUPPORT OF DEFS' MOTION FOR FEES [NO. CV06-0204JCC] - Page 2

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Case 2:06-cv-00204-JCC

Document 138

Filed 07/06/2007

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