Omni Innovations LLC et al v. Smartbargains.com LP et al

Filing 24

Omni Innovations LLC et al v. Smartbargains.com LP et al

Doc. 24

Case 2:06-cv-01129-JCC

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Filed 10/01/2007

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THE HON. JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON, SEATTLE OMNI INNOVATIONS, LLC, a Washington limited liability company; and JAMES S. GORDON JR. Plaintiffs, v. SMARTBARGAINS.COM, LP, a Delaware Limited Partnership; Defendant. 1. I, James S. Gordon, Jr., am the Plaintiff in the above captioned lawsuit. I am over the age of 18, of sound mind, and am otherwise competent to testify. 2. I am the owner of the domain name Gordonworks.com, which I registered on or about May 1998. 3. 4. I am also the owner of Omni Innovations, LLC. I have been plagued by spam for well over eight years. Over time, my spam problem has grown more and more severe, and has now spiraled out of control, consuming more and
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No. CV 06-1129 JCC DECLARATION OF JAMES S. GORDON, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

DECLARATION OF JAMES S. GORDON, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Dockets.Justia.com

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more of my time and resources. From late 1998 to late 2003, I fought spam by deleting, complaining, reporting, and filtering spam. My first lawsuit against a spammer was filed a full five years after the inception of this persistent spam problem, i.e. December 2003. And to this point all my efforts to curtail the onslaught of spam have all failed. I have been substantially adversely impacted by the continued onslaught of spam. Attached is a true and correct copy of a letter to my congressman concerning my first major battle with a spammer in 1999. "EXHIBIT A" 5. In January and February 2005, I purchased a new business computer along with a second business computer to help with the increased load of spam. In May 2005, my monthly service fee increased from approximately $40/month to about $65/month. In November 2006, this fee increased to about $180/month ­ in Feb 2007 to $220/month. All to handle the increased burden of managing spam. "EXHIBIT B-C" 6. I was forced to add "staff" by way of engaging the Assisted Server Support team at Godaddy for a monthly fee of $99. The alternative is to pay $75/hour for independent IT services. 7. It has been necessary to purchase numerous forensic tools, anti-virus tools, anti-spyware tools, and spam filtering tools over the last four years. I have spent approximately $2000.00 on these tools and services. 8. The large volume of spam received caused a displacement of over 25 Gigabytes of hard disk storage space on two computers. 9. I lost the use of my laptop as its hard drive was "overrun" with spam necessitating the purchases of the two computers in 5, above.

DECLARATION OF JAMES S. GORDON, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

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10.

On a personal level, time dealing with spam is time away from my family. This loss of productivity is about 14 hours per week.

11.

My wife, three adult children, and two friends are currently being sued by a spammer who found their names on a witness list.

12.

I have suffered a significant loss of time spent on more productive pursuits, such as my Ph.D. program which was initially a three year program. After years of dealing with the spam problem, I will finish in a little more than five years. Product development efforts in my business have also been hampered, and slowed significantly.

13.

I have suffered a loss of control of my intellectual/personal property, (domains) to spammers, and a loss of privacy and loss of peace of mind to enjoy my domain and the unfettered use of the internet.

14.

I have been "joe-jobbed" by spammers whereby spammers subvert my domains by "stealing" my identity, which makes it appear that my domains are sending spam. In excess of 14,000 emails have been sent by fraudulent sources claiming to be Plaintiff ­ so far this year. As a result of this subterfuge, my domains are being blocked from sending legitimate email communications (non-commercial).

15.

I have been subjected to dictionary attacks wherein a spammer uses automated means to guess at possible names and sends spam to these newly created names at gordonworks.com, thereby again increasing the volume of spam received and resulting consequences.

16.

Spammers have sold my personal profile for profit to other spammers. Apparently, the buying and selling of personal profiles is a prime means of remuneration for online marketers. Each email address one owns must be de-listed from the hundreds or

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DECLARATION OF JAMES S. GORDON, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

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thousands of "host names" owned and controlled by each spammer. And once this is accomplished, spammers and their affiliates create new host names to spam from ­ making successful de-listing virtually impossible. Global de-listing is not available from the majority of spammers and from spammer domains not yet created. 17. I receive 20-100 viruses/malware emails each week. This number has been as high as 500-600 per week. This has resulted in seven server crashes that necessitated the purchases of new hard drives or computers since January 2005 (through Sept. 2007). These crashes resulted from malware infections of my computers. These infections have also caused the loss of business data including tax and banking files. 18. I have also been forced to expend considerable time and labor dealing with client spam problems presented to me by my customers, including malware removal, recovered/replaced hard drives, installed virus and adware programs, etc. Because my customers cannot find the spammers who are sending the emails, they ask me to do the forensics for them. 19. I have been forced to change Internet Service Providers four times since 2000 as none were able to help me to effectively curb the spam. 20. I have sent approximately 14,000 separate and distinct complaints to my ISPs, spammers' network service providers, Richland and Kennewick Police Depts., Federal Trade Commission, Securities and Exchange Commission, Washington State Attorney General's Office, and four state and federal legislators. 21. I have spent time and labor writing, locating, and mailing dozens of certified cease and desist letters to spammers.

DECLARATION OF JAMES S. GORDON, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

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THE GORDON GROUP
James S. Gordon, President 1419 Jadwin Avenue Richland, WA 99352

------------------------Telephone/Fax [phone] email: [e-mail] http://www.gordonworks.com August 26, 1999 Tri-Cities Office 2715 St. Andrews Loop, Suite D Pasco, WA 99301 The Honorable Doc Hastings: I'm a small business entrepreneur having an on-line Health & Nutrition business. The genesis of my Internet "problems" was in January 1999 when I decided to unsubscribe from three online newsletters. My on-line business was picking up and I didn't have time to spend reading the many emails that I was being sent (8-10/day). I tried, unsuccessfully, to unsubscribe from early February 1999 to Mid-March 1999. The daily emails kept on coming. In early April 1999, I asked my Internet Service Provider (ISP) to help me put a stop to the emails...nothing changed...the emails kept on coming. I then asked my new Internet Presence Provider (IPP) to help me...nothing changed...the emails kept on coming. In June 1999, I asked a private attorney to send the "spammer" a "cease and desist" letter...nothing changed...the emails kept on coming. In July 1999 (actully June 1999), I asked the Washington State Attorney General's Office in Kennewick, WA for help. They sent a letter to the "spammer"...nothing changed...the emails are still coming in-but at an accelerated pace. Yesterday, I received a computer "virus" from the "spammer"... the emails keep on coming. I have been in contact with the FBI as my business ad page was being "hacked". They say that they can not help as the US Attorney has a "threshold" amount of damages that a business must sustain to be able to receive help ($15,000)...we calculate our losses in excess of $20,000 (roughly 15% of annual revenues) due to the hacking. Further, they said there is nothing that they could do about the spamming, either. The agents that I talked to acknowledged that a crime had been committed-but stated they did not have the resources... Where does a small business go when their lawyer, AG, and FBI can not provide relief? Thanks for listening! Regards,

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Washington, D.C. Office 1323 Longworth House Office Building Washington, DC 20515-4704 [phone] Fax: [phone] Tri-Cities Office 2715 St. Andrews Loop, Suite D Pasco, WA 99301 [phone] Fax: [phone]

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PageXHIB9 B E 8 of IT

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EXHIBIT C