Gordon v. Virtumundo Inc et al

Filing 39

DECLARATION of Michael R. Geroe filed by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn re 38 MOTION for Bond for An Undertaking Pursuant to 15 U.S.C. Section 7706 (g)(4) (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Newman, Derek)

Gordon v. Virtumundo Inc et al

Doc. 39

Case 2:06-cv-00204-JCC

Document 39

Filed 11/02/2006

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G E RO E DECL. RE DEFS.' MOT. FOR AN UNDERTAKING - 1 ( C V 0 6 -0 2 0 4 J C C )

T h e Honorable John C. Coughenour

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF WASHINGTON A T SEATTLE J A M E S S. GORDON, Jr., a married in d iv id u a l, d/b/a `G O R D O N W O R K S .C O M '; OMNI IN N O V A T IO N S , LLC., a Washington lim ite d liability company, P l a i n t if f s , v. V IR T U M U N D O , INC, a Delaware c o rp o ra tio n d/b/a A D N O W L E D G E M A I L .C O M ; A D K N O W L E D G E , INC., a Delaware c o rp o ra tio n , d/b/a A D K N O W L E D G E M A I L .C O M ; SCOTT L Y N N , an individual; and JOHN DOES, 1 -X , D e f e n d a n ts . I, Michael R. Geroe, swear under penalty of perjury under the laws of the United S ta te s of America to the following: 1. I am General Counsel and an Officer of Defendant Adknowledge, Inc. N O T E ON MOTION CALENDAR: N o v e m b e r 17, 2006 N o . CV06-0204JCC D E C L A R A T I O N OF MICHAEL R. G E R O E IN SUPPORT OF D E F E N D A N T S ' MOTION FOR AN U N D E R T A K IN G

(" A d k n o w led g e " ), am over age 18, and competent to be a witness. I am making this D e c la ra tio n based on facts within my own personal knowledge.

NEWMAN & NEWMAN, A T T O R N E Y S AT LAW, LLP

5 0 5 Fifth Ave. S., Ste. 610 S ea ttle , Washington 98104 (2 0 6 ) 274-2800

Dockets.Justia.com

Case 2:06-cv-00204-JCC

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A D K N O W L E D G E EMAILS 2. T h e Las Vegas Weddings Email. I reviewed the Adknowledge Rewards

e m a il promoting Las Vegas weddings, attached as Exhibit G to the Declaration of Roger T o w n s e n d filed in support of Defendants' Motion for an Undertaking in the abovere f e re n c e d lawsuit (the "Las Vegas Weddings Email"). The Las Vegas Weddings Email re f le c ts that it originated from an email address at the domain name, < a d k n o w le d g e m a il.c o m > . 3. A d k n o w le d g e is the registrant of the domain name,

< a d k n o w le d g e m a il.c o m > . Attached hereto as Exhibit A is a WHOIS record reflecting that Adknowledge is the registrant of <adknowledgemail.com>. The WHOIS record in c lu d e s the name and correct mailing address of Adknowledge as "Adknowledge" lo c a t e d at 4600 Madison, Kansas City, MO 64112. Adknowledge has permission to use th a t domain name to identify itself as the sender of messages from the < a d k n o w le d g e m a il.c o m > domain. 4. A d d itio n a lly, Adknowledge is the registrant of two other domain names

c o n ta in e d in the Las Vegas Weddings Email's transmission path, <ak-networks.com> and < a d k n o w n e t.c o m > . Attached hereto as Exhibits B and C are the WHOIS records re f le c tin g that Adknowledge is the registrant of <ak-networks.com> and < a d k n o w n e t.c o m > . As the registrant of those domain names Adknowledge has p e rm is s io n to access those domain names for purposes of routing email and they do not m is le a d as to transmission path. 5. T h e Las Vegas Weddings Email also contains a link for a recipient to

u n s u b s c rib e from future Adknowledge Rewards emails. I reviewed Exhibit H to the D e c la ra tio n of Roger Townsend and recognize this as the Adknowledge unsubscribe w e b p a g e. When a user types an email address into the Adknowledge unsubscribe w e b p a g e and then clicks on the "Unsubscribe" link, that email address is blocked from r e c e iv i n g future emails from Adknowledge Rewards.
5 0 5 Fifth Ave. S., Ste. 610 S ea ttle , Washington 98104 (2 0 6 ) 274-2800

G E RO E DECL. RE DEFS.' MOT. FOR AN UNDERTAKING - 2 ( C V 0 6 -0 2 0 4 J C C )

NEWMAN & NEWMAN, A T T O R N E Y S AT LAW, LLP

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6.

T h e Las Vegas Weddings Email contains Adknowledge's physical postal

a d d re ss in Kansas City, Missouri. 7. F in ally, the Las Vegas Weddings Email was created and transmitted as part

o f a specific campaign promoting Las Vegas tourism. The "from" line which identifies A d k n o w led g e and "Las Vegas Weddings" as the sender is not misleading as it accurately id e n tif ie s the campaign for which the message was sent. 8. L if e Insurance Email. I reviewed the Adknowledge Rewards email

promoting life insurance, attached as Exhibit I to the Declaration of Roger Townsend f ile d in support of Defendants' Motion for an Undertaking in the above-referenced la w s u it (the "Life Insurance Email"). Like the Las Vegas Weddings Email, the Life In s u ra n c e Email reflects that it originated from an email address at the domain name, < a d k n o w le d g e m a il.c o m > . 9. T h e Life Insurance Email also contains a link for a user to unsubscribe from

f u tu re Adknowledge Rewards emails. I reviewed Exhibit J to the Declaration of Roger T o w n s e n d and recognize this as the Adknowledge unsubscribe webpage. When a user typ e s an email address into the Adknowledge unsubscribe webpage and then clicks on the " U n s u b s c rib e " link, that email address is blocked from receiving future Adknowledge R e w a r d s emails. 10. T h e Life Insurance Email contains Adknowledge's physical postal address

lo c a ted in Kansas City, Missouri. 11. F in a lly, the Life Insurance Email was created and transmitted as part of a

sp e c if ic ad campaign promoting life insurance products. The "from" line accurately id e n tif ie s Adknowledge and "LifeInsuranceNow" as the campaign for which the message w a s sent. 12. S a n Diego Tourism Email. I reviewed the Adknowledge Rewards email

p ro m o tin g "San Diego Tourism," attached as Exhibit K to the Declaration of Roger T o w n s e n d filed in support of Defendants' Motion for an Undertaking in the above5 0 5 Fifth Ave. S., Ste. 610 S ea ttle , Washington 98104 (2 0 6 ) 274-2800

G E RO E DECL. RE DEFS.' MOT. FOR AN UNDERTAKING - 3 ( C V 0 6 -0 2 0 4 J C C )

NEWMAN & NEWMAN, A T T O R N E Y S AT LAW, LLP

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re f ere n c ed lawsuit (the "San Diego Tourism Email"). Like the Las Vegas Weddings E m a il and the Life Insurance Email, the San Diego Tourism Email reflects that it o rig in a te d from an email address at the domain name, <adknowledgemail.com>. A d k n o w le d g e has permission to use that domain name to identify itself as the sender of th e message. 13. A d d itio n ally, all but one of the domain names in the transmission path are

a lso <adknowledgemail.com>. Adknowledge has permission to access those domain n a m e s for purposes of routing email and they do not mislead as to origination. 14. T h e San Diego Tourism Email also contains a link for the user to

u n s u b s c rib e from future emails from Adknowledge Rewards. I reviewed Exhibit L to the D e c la ra tio n of Roger Townsend and recognize this as the Adknowledge unsubscribe w e b p a g e. When a user types an email address into the Adknowledge unsubscribe w e b p a g e and then clicks on the "Unsubscribe" link, that email address is blocked from r e c e iv i n g future emails from Adknowledge Rewards. 15. T h e San Diego Tourism Email contains Adknowledge's valid physical

p o sta l address located in Kansas City, Missouri. 16. F in a lly, San Diego Tourism Email was created and transmitted as part of a

s p e c if ic promotion for hotels in and travel arrangements to San Diego. The "from" line a c cu ra te ly identifies Adknowledge and "San Diego Tourism" as the ad campaign for w h ich the message was sent. P L A IN T I F F S ' IP ADDRESS AND OPT-IN INFORMATION 17. A tta c h ed hereto as Exhibit D is a true and correct copy of an Excel

s p re a d sh e e t which accurately reflects information obtained, stored and maintained in the n o rm a l course of business in the Adknowledge central database. Exhibit D was created b y filtering information related to users with email addresses at the domain name, < g o rd o n w o rk s .c o m > . 18. E x h ib it D is significant for two reasons. First, the Exhibit indicates that the
5 0 5 Fifth Ave. S., Ste. 610 S ea ttle , Washington 98104 (2 0 6 ) 274-2800

G E RO E DECL. RE DEFS.' MOT. FOR AN UNDERTAKING - 4 ( C V 0 6 -0 2 0 4 J C C )

NEWMAN & NEWMAN, A T T O R N E Y S AT LAW, LLP

Case 2:06-cv-00204-JCC

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