Case 2:04-cv-02219-JCC Document 27 Filed 11/02/2005 Page 1 of 24

Honorable John C. Coughenour

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MICROSOFT CORPORATION, a
Washington corporation,

Plaintiff,

v.
KEVIN HERTZ, a California resident,
MATT OLSON, a Washington resident,
ALONZO VILLANUEVA, a/k/a Jason
Anderson, a Texas resident,
MIKE WISSING, SHARI WISSING, and the
MARITAL COMMUNITY COMPOSED
OF MIKE AND SHARING WISSING,
Iowa residents,
AMAF JARKASI, a New Jersey resident,
JOHN E. ROGERS, a Washington resident,
ROBERT KALFAYAN, a Quebec, Canada
resident,
JIRAYR KALFAYAN, a Quebec, Canada
resident,
CARL BRANDON SCHUSTER, a Florida
resident,

No. CV04-2219C

SECOND AMENDED COMPLAINT
FOR DAMAGES AND INJUNCTIVE
RELIEF

SECOND AMENDED COMPLAINT FOR
DAMAGES AND INJUNCTIVE RELIEF -1 PRESTON GATES & ELLIS LLP

Case 2:04-cv-02219-JCC Document 27

SCOTT HOLLAND and THE MARITAL
COMMUNITY COMPOSED OF SCOTT
HOLLAND AND JANE DOE
HOLLAND, Washington residents,

MICHAEL DELASSIO, a New York
resident,

JAGIR SINGH, an Iowa resident,

JEREMY THOMPSON, a Florida resident,

KEN a/k/a MATT PRESSLEY, a North
Carolina and Arizona resident,

SCOTT SANDERS, a British Columbia,
Canada, and Illinois resident,

ANTHONY ROY, a Quebec, Canada
resident,

DENNIS a/k/a URIAH CAMPBELL, a
Wyoming resident,

XUNQI a/k/a PETER HUANG, a Toronto,
Ontario, Canada resident,

JASON CATALDO, a Florida and
Pennsylvania resident,

JEROME PELLETIER, a Quebec, Canada
resident.

MICHAEL TURNBILL, a Kentucky
resident,

DON ABADIE, a California resident,

MARK NEWMAN,

MARLON PHILLIPS, a Missouri resident,

LISA EDWARDS, a Nova Scotia, Canada,
resident,

ALEX NAZEPOUR, a California resident,

IGOR SHAPOSHNIKOV, a New York
resident,

MARIUS STRANDER,
ANDREW WIETLISPACH, a Texas and

Illinois resident,
“TIM VAN BULCK,” a New York resident,
LEONEL RUAS,
MY NEW HOSTING, and its principals,

JOHN DOES 36-37,
MATTHEW LEE, a Windsor, Ontario,

Canada resident,
EVERETT BYRD, a Florida resident,
BLACK MOUNTAIN GROUP, a Delaware

Limited Liability Company, and its
principals, MELIH BASAR and
ARDESHIR AKHAVAN, California
residents,

“HEAD HONCHO,” a Florida resident, and
JOHN DOES 44 - 50 d/b/a Myauctionbiz.biz
Defendants.

Plaintiff Microsoft Corporation (“Microsoft”) brings this action
against the defendants
set forth below.

I. JURISDICTION AND VENUE
1. This is an action for violation of the CAN-SPAM Act of 2003 (15
U.S.C.
§7701 et seq.), the Washington Commercial Electronic Mail Act (RCW Ch.
19.190), the
Washington Consumer Protection Act, and other state and federal causes
of action. Microsoft
seeks damages and injunctive relief to remedy defendants’ unauthorized
use of Microsoft’s
computers and computer systems to send millions of misleading and
deceptive unsolicited
commercial e-mail messages, or “spam,” in violation of federal and
state law and Microsoft’s
policies.
SECOND AMENDED COMPLAINT FOR
DAMAGES AND INJUNCTIVE RELIEF -3 PRESTON GATES & ELLIS LLP

Case 2:04-cv-02219-JCC Document 27 Filed 11/02/2005 Page 4 of 24

2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §
1331 and
28 U.S.C. § 1338(a). The Court has supplemental jurisdiction over the
state law claims
pursuant to 28 U.S.C. § 1367.
3. The Court has personal jurisdiction over the Defendants, who have
engaged in
business activities in and directed to Washington, have committed a
tortious act within the
state, have used personal property in the state, and have otherwise
purposefully availed
themselves of the opportunity to conduct commercial activities in this
forum.
4. Venue is proper in the Western District of Washington pursuant to
28 U.S.C.
§ 1391(b), because substantial part of the events or omissions giving
rise to the claims pled
herein occurred in the District.
II. THE PARTIES
5. Plaintiff Microsoft is a Washington corporation with its principal
place of
business in Redmond, Washington.
6. Defendant Kevin Hertz (“Hertz”) is a California resident. In
addition to the
other illegal actions alleged herein, Hertz is responsible for
administering e-mail marketing
“affiliate” programs through which affiliates sent commercial e-mail
in violation of federal
and state law. The affiliates promoted Hertz’s Myauctionbiz.biz
product and others through
the use of deceptive and misleading, commercial e-mail. The affiliates
also sent deceptive
and misleading commercial e-mail promoting other affiliate programs
and other goods and
services.
7. Defendant Matt Olson is a Washington resident, who was assigned
affiliate
identification number 523, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes, and on that basis alleges,
that Olson also is
responsible for illegal commercial e-mail promoting others’ affiliate
programs or products or
services.
8. Defendant Alonzo Villanueva, a/k/a Jason Anderson, is a Texas
resident, who
was assigned affiliate identification number 6206, and possibly
others, in the affiliate
programs administered by Hertz. Microsoft is informed and believes,
and on that basis
alleges that Villanueva also is responsible for illegal commercial
e-mail promoting others’
affiliate programs or products or services. Villanueva uses the alias
“Jason Anderson,”
among others.
9. Defendants Mike and Shari Wissing, and the marital community
composed
thereof (collectively, “the Wissings”), are Iowa residents, who were
assigned affiliate
identification number 4925, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes, and on that basis alleges
that the Wissings also are
responsible for illegal commercial e-mail promoting others’ affiliate
programs or products or
services. The Wissings use the alias “Dave Smith,” among others.
10. Defendant Amaf Jarkasi is a New Jersey resident, who was assigned
affiliate
identification number 864, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Jarkasi also is
responsible for illegal commercial e-mail promoting others’ affiliate
programs or products or
services.
11. Defendant John E. Rogers is a Washington resident, who was
assigned the
affiliate identification number 574, and possibly others, in the
affiliate programs administered
by Hertz. Microsoft is informed and believes and on that basis alleges
that Rogers also is
responsible for illegal commercial e-mail promoting others’ affiliate
programs or products or
services.
12. Defendants Robert and Jirayr Kalfayan (collectively, “the
Kalfayans”) are
residents of Montreal, Quebec, Canada, who were assigned the affiliate
identification
numbers 8162 and 8262, and possibly others, in the affiliate programs
administered by Hertz.
Microsoft is informed and believes and on that basis alleges that the
Kalfayans also are
responsible for illegal commercial e-mail promoting others’ affiliate
programs or products or
services, including but not limited to the affiliate program
“RealGoodOffers,” in which they
were assigned affiliate identification number 101025 and the affiliate
program “Vimax-
Offers” in which they were assigned affiliate identification number
111213.
13. Defendant Carl Brandon Schuster is a resident of Florida, who was
assigned
affiliate identification numbers 4906, 4910, 6768, 6770, and possibly
others, in the affiliate
programs administered by Hertz. Microsoft is informed and believes and
on that basis alleges
that Schuster also is responsible for illegal commercial e-mail
promoting others’ affiliate
programs or products or services.
14. Defendants Scott Holland and the marital community composed of
Scott
Holland and Jane Doe Holland (collectively, “the Hollands”) are a
residents of Washington,
who were assigned affiliate identification numbers 430 and 431, and
possibly others, in the
affiliate programs administered by Hertz. Microsoft is informed and
believes and on that
basis alleges that the Hollands are responsible for illegal e-mail
promoting others’ affiliate
programs or products or services. The Hollands also have used the
alias “Kiryah
Blackhawk.”
15. Defendant Michael DeLassio is a resident of New York, who was
assigned
affiliate identification number 4753, and possibly others, in the
affiliate programs
administered by Hertz. Microsoft is informed and believes and on that
basis alleges that
DeLassio is responsible for illegal e-mail promoting others’ affiliate
programs or products or
services.
16. Defendant Jagir Singh is a resident of Iowa, who was assigned
affiliate
identification number 4586, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Singh also is
responsible for illegal e-mail promoting others’ affiliate programs or
products or services.
Singh has used the alias “Harry Potter” among others.
17. Defendant Jeremy Thompson is a Florida resident, who was assigned
affiliate
identification numbers 409 and 5129, and possibly others, in the
affiliate programs
administered by Hertz. Microsoft is informed and believes and on that
basis alleges that
Thompson also is responsible for illegal e-mail promoting others’
affiliate programs or
products or services.
18. Defendant Ken a/k/a “Matt” Pressley is a North Carolina resident
and
Microsoft is informed and believes, and on that basis alleges, that
Pressley also maintains a
residence in Arizona. Pressley was assigned affiliate identification
number 5429, and
possibly others, in the affiliate programs administered by Hertz.
Microsoft is informed and
believes and on that basis alleges that Pressley also is responsible
for illegal e-mail promoting
others’ affiliate programs or products or services.
19. Defendant Scott Sanders is a resident of Surrey, British Columbia,
Canada, and
Microsoft is informed and believes, and on that basis alleges, that
Sanders maintains a
residence in Illinois. Sanders was assigned affiliate identification
numbers 618 and 5371, and
possibly others, in the affiliate programs administered by Hertz.
Microsoft is informed and
believes and on that basis alleges that Sanders also is responsible
for illegal e-mail promoting
others’ affiliate programs or products or services.
20. Defendant Anthony Roy is a resident of Quebec, Canada, who was
assigned
affiliate identification number 5152, and possibly others, in the
affiliate programs
administered by Hertz. Microsoft is informed and believes and on that
basis alleges that Roy
also is responsible for illegal e-mail promoting others’ affiliate
programs or products or
services.
21. Defendant Dennis a/k/a Uriah Campbell is a Wyoming resident, who
was
assigned affiliate number 5714, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Campbell also is
responsible for illegal e-mail promoting others’ affiliate programs or
products or services.
22. Defendant Xunqi a/k/a Peter Huang is a Toronto, Ontario, Canada,
resident
who was assigned the affiliate identification numbers 689, 5932, and
5983, and possibly
others, in the affiliate programs administered by Hertz. Microsoft is
informed and believes
and on that basis alleges that Huang also is responsible for illegal
e-mail promoting others’
affiliate progr ams or products or services.
23. Defendant Jason Cataldo is a Florida resident who also maintains a
residence
in Pennsylvania. Cataldo was assigned affiliate identification number
5259, and possibly
others, in the affiliate programs administered by Hertz. Microsoft is
informed and believes
and on that basis alleges that Cataldo also is responsible for illegal
e-mail promoting others’
affiliate programs or products or services.
24. Defendant Jerome Pelletier is a resident of Montreal, Quebec,
Canada, who
was assigned affiliate identification number 4941, and possibly
others, in the affiliate
programs administered by Hertz. Microsoft is informed and believes and
on that basis alleges
that Pelletier also is responsible for illegal e-mail promoting
others’ affiliate programs or
products or services.
25. Defendant Michael Turnbill is a resident of Kentucky, who was
assigned
affiliate identification numbers 5054, 5055, and 6024, and possibly
others, in the affiliate
programs administered by Hertz. Microsoft is informed and believes and
on that basis alleges
that Turnbill is responsible for illegal e-mail promoting others’
affiliate programs or products
or services.
26. Defendant Don Abadie is a California resident who was assigned
affiliate
identification number 4903, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Abadie also is
responsible for illegal e-mail promoting others’ affiliate programs or
products or services.
27. Microsoft is informed and believes that defendant Mark Newman is a
U.S.
resident. His address presently is unknown. Newman was assigned
affiliate identification
number 4944, and possibly others, in the affiliate programs
administered by Hertz. Microsoft
is informed and believes and on that basis alleges that Newman also is
responsible for illegal
e-mail promoting others’ affiliate programs or products or services.
28. Defendant Marlon Phillips is a Missouri resident, who was assigned
affiliate
identification number 386, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Phillips also is
responsible for illegal e-mail promoting others’ affiliate programs or
products or services.
29. Defendant Lisa Edwards is a resident of Hubbards, Nova Scotia,
Canada. She
was assigned affiliate identification numbers 522 and 8405, and
possibly others, in the
affiliate programs administered by Hertz. Microsoft is informed and
believes and on that
basis alleges that Edwards also is responsible for additional illegal
e-mail promoting others’
affiliate programs or products or services.
30. Microsoft is informed and believes, and on that basis alleges,
that defendant
Alex Nazepour is a resident of California. Nazepour was assigned the
affiliate identification
number 8190, and possibly others, in the affiliate programs
administered by Hertz. Microsoft
is informed and believes and on that basis alleges that Nazepour also
is responsible for
additional illegal e-mail promoting others’ affiliate programs or
products or services,
including but not limited to the affiliate program “Vimax-Offers.”
31. Defendant Igor Shaposhnikov is a resident of New York, who was
assigned the
affiliate identification numbers 4924 and 5846, and possibly others,
in the affiliate programs
administered by Hertz. Microsoft is informed and believes and on that
basis alleges that
Shaposhnikov also is responsible for additional illegal e-mail
promoting others’ affiliate
programs or products or services. Shaposhnikov uses the alias Eric
Slap, among others.
32. Microsoft is informed and believes that defendant Marius Strander
is a U.S.
resident. His address presently is unknown. Strander was assigned
affiliate identification
number 650, and possibly others, in the affiliate programs
administered by Hertz. Microsoft
is informed and believes and on that basis alleges that Strander also
is responsible for
additional illegal e-mail promoting others’ affiliate programs or
products or services.
33. Defendant Andrew Wietlispach is a resident of Texas who also
maintains a
residence in Illinois. Wietlispach was assigned affiliate
identification number 5048, and
possibly others, in the affiliate programs administered by Hertz.
Microsoft is informed and
believes and on that basis alleges that Wietlispach also is
responsible for additional illegal
e-mail promoting others’ affiliate programs or products or services.
34. Microsoft is informed and believes that defendant “Tim Van Bulck”
is a
resident of New York. His address presently is unknown. Van Bulck was
assigned affiliate
identification number 681, and possibly others, in the affiliate
programs administered by
Hertz. Microsoft is informed and believes and on that basis alleges
that Van Bulck also is
responsible for additional illegal e-mail promoting others’ affiliate
programs or products or
services.
35. Microsoft is informed and believes that defendant Leonel Ruas is a
U.S.
resident. His address presently is unknown. Ruas was assigned
affiliate identification
number 372, and possibly others, in the in the affiliate programs
administered by Hertz.
Microsoft is informed and believes and on that basis alleges that Ruas
also is responsible for
additional illegal e-mail promoting others’ affiliate programs or
products or services.
36. Microsoft is informed and believes that defendant My New Hosting
is a U.S.
entity and its principals, John Does 36-37 are U.S. residents. The
addresses and places of
residence of My New Hosting and its principals presently are unknown.
My New Hosting
and its principals were assigned the affiliate identification number
375, and possibly others, in
the affiliate programs administered by Hertz. Microsoft is informed
and believes and on that
basis alleges that My New Hosting and its principals are responsible
for additional illegal
e-mail promoting others’ affiliate programs or products or services.
37. Defendant Matthew Lee is a resident of Windsor, Ontario, Canda.
Lee was
assigned affiliate identification number 642, and possibly others, in
the affiliate programs
administered by Hertz. Microsoft is informed and believes and on that
basis alleges that Lee
is responsible for additional illegal e-mail promoting others’
affiliate programs or products or
services.
38. Microsoft is informed and believes that defendant Everett Byrd is
a resident of
Florida. Byrd was assigned affiliate identification number 4610, and
possibly others, in the
affiliate programs administered by Hertz. Microsoft is informed and
believes and on that
basis alleges that Byrd is responsible for additional illegal e-mail
promoting others’ affiliate
programs or products or services.
39. Defendants Black Mountain Group, LLC, is a Delaware LLC, and its
principals Melih Basar and Ardeshir Akhavan, are residents of
California. Black Mountain
Group and its principals were assigned affiliate identification number
393, and possibly
others, in the affiliate programs administered by Hertz. Microsoft is
informed and believes
and on that basis alleges that Black Mountain Group and its principals
are responsible for
additional illegal e-mail promoting others’ affiliate programs or
products or services.
40. Microsoft is informed and believes, and on that basis alleges,
that Defendant
“Head Honcho” is a Florida resident, who was assigned the affiliate
identification number
4895, and possibly others, in the affiliate programs administered by
Hertz. Microsoft is
informed and believes and on that basis alleges that Head Honcho is
responsible for additional
illegal e-mail promoting others’ affiliate programs or products or
services.
41. Microsoft is unaware of the true names and capacities of
defendants sued
herein as DOES 44-50 and, therefore, sues these defendants by such
fictitious names.
Microsoft will amend this complaint to allege their true names and
capacities when
ascertained. Microsoft is informed and believes and therefore alleges
that each of the
fictitiously named defendants is responsible in some manner for the
occurrences herein
alleged, and that Microsoft’s injuries as herein alleged were
proximately caused by such
defendants.
42. Microsoft is informed and believes and on that basis alleges that
each of the
named and unnamed defendants is responsible in some manner for the
occurrences herein
alleged, and that Microsoft’s injuries as herein alleged were
proximately caused by such
defendants.
43. Microsoft is informed and believes and on that basis alleges that
the actions
alleged herein to have been undertaken by the defendants were
undertaken by each defendant
individually, were actions that each defendant caused to occur, were
actions that each
defendant authorized, controlled, directed, or had the ability to
authorize, control or direct,
and/or were actions each defendant assisted, participated in, or
otherwise encouraged, and are
actions for which each defendant is liable. Each defendant aided and
abetted the actions of
the defendants set forth below, in that each defendant had knowledge
of those actions,
provided assistance and benefited from those actions, in whole or in
part. Each of the
defendants was the agent of each of the remaining defendants, and in
doing the things
hereinafter alleged, was acting within the course and scope of such
agency and with the
permission and consent of other defendants. Each of the defendants
knew, or consciously
avoided knowing, that other defendants had or would engage in a
pattern or practice that
violated the CAN-SPAM Act of 2003.

[...]

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--
Spamhaus Block List (SBL) http://www.spamhaus.org/sbl
Register Of Known Spammers http://www.spamhaus.org/rokso
Responsible ISP AUPs http://www.spamhaus.org/aups.html
Closed-loop Mailing http://www.spamhaus.org/mailinglists.html