NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 1

(CV06-0204JCC)

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 ROGER

TOWNSEND IN SUPPORT OF

DEFENDANTS’ MOTION FOR AN

UNDERTAKING

NOTE ON MOTION CALENDAR:

November 17, 2006

I, Roger Townsend, swear under penalty of perjury under the laws of the United

States of America to the following:

1. I am counsel of record for defendants Virtumundo, Inc. (“Virtumundo”) and

Adknowledge, Inc. (“Adknowledge”), am over age 18, and competent to be a witness. I

am making this Declaration based on facts within my own personal knowledge.

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 1 of 7

Gordon v. Virtumundo Inc et al Doc. 41

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 2

(CV06-0204JCC)

VIRTUMUNDO EMAILS

2. The Scooters Unlimited Email. Attached hereto as Exhibit A is a true and

accurate copy of an email produced by plaintiffs James Gordon and Omni Innovations,

LLC (together, “Plaintiffs” or “Gordon”) in discovery in this lawsuit. Exhibit A identifies

itself as being from “Scooters Unlimited” at an email address in the Virtumundo domain

<vmadmin.com> and is dated June 20, 2004.

3. The Scooters Unlimited Email Unsubscribe Link. On October 27, 2006, I

clicked on the unsubscribe link located in the footer of the Scooters Unlimited Email. 

After clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage

located at the Virtumundo domain, <virtumundo.com>. Attached hereto as Exhibit B is a

printout of the Unsubscribe webpage. 

4. The Premier Bank Email. Attached hereto as Exhibit C is a true and

accurate copy of an email produced by Plaintiffs in discovery in this lawsuit. Exhibit C

identifies itself as being from “First Premier Bank” at an email address in the Virtumundo

domain <vmadmin.com> and is dated June 8, 2004. 

5. The Premier Bank Email Unsubscribe Link. On October 27, 2006, I clicked

on the unsubscribe link located in the footer of the First Premier Bank Email. After

clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage located at

the Virtumundo domain, <virtumundo.com>. Attached hereto as Exhibit D is a printout

of the Unsubscribe webpage. 

6. The University of Phoenix Email. Attached hereto as Exhibit E is a copy of

an email advertisement sent to a recipient at plaintiff Gordon’s domain, 

<gordonworks.com> by defendant Virtumundo. Virtumundo obtained this email through

discovery from Plaintiffs. Exhibit E identifies itself as being from “University of Phoenix

Online” at an email address in the Virtumundo domain <vmadmin.com> and is dated

June 14, 2004. 

7. The University of Phoenix Email Unsubscribe Link. On October 27, 2006,

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 2 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 3

(CV06-0204JCC)

I clicked on the unsubscribe link located in the footer of the University of Phoenix Email. 

After clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage

located at the Virtumundo domain, <virtumundo.com>. Attached hereto as Exhibit F is a

printout of the Unsubscribe webpage. 

ADKNOWLEDGE EMAILS

8. The Las Vegas Weddings Email. Attached hereto as Exhibit G is a true and

accurate copy of an email produced by Plaintiffs in discovery in this lawsuit. Exhibit G

identifies itself as being from “Las Vegas Weddings” at an email address in the

Adknowledge domain <adknowledgemail.com> and is dated October 16, 2005. 

9. The Las Vegas Weddings Unsubscribe Link. On October 27, 2006, I

clicked on the unsubscribe link located in the footer of the Las Vegas Weddings Email. 

After clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage

located at the Adknowledge domain, <adknowledge.com>. Attached hereto as Exhibit H

is a printout of the Unsubscribe webpage. 

10. The Life Insurance Email. Attached hereto as Exhibit I is a true and

accurate copy of an email produced by Plaintiffs in discovery in this lawsuit. Exhibit I

identifies itself as being from “Life Insurance” at an email address in the Adknowledge

domain <adknowledgemail.com> and is dated February 5, 2006. 

11. The Life Insurance Email Unsubscribe Link. On October 27, 2006, I

clicked on the unsubscribe link located in the footer of the Las Vegas Weddings Email. 

After clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage

located at the Adknowledge domain, <adknowledge.com>. Attached hereto as Exhibit J

is a printout of the Unsubscribe webpage. 

12. The San Diego Tourism Email. Attached hereto as Exhibit K is a true and

accurate copy of an email produced by Plaintiffs in discovery in this lawsuit. Exhibit K

identifies itself as being from “Visit Sunny San Diego” at an email address in the

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 3 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 4

(CV06-0204JCC)

Adknowledge domain <adknowledgemail.com> and is dated January 13, 2006. 

13. The San Diego Tourism Email Unsubscribe Link. On October 27, 2006, I

clicked on the unsubscribe link located in the footer of the San Diego Tourism Email. 

After clicking on the unsubscribe link, I was hyperlinked to an Unsubscribe webpage

located at the Adknowledge domain, <adknowledge.com>. Attached hereto as Exhibit L

is a printout of the Unsubscribe webpage. 

CAN-SPAM LEGISLATIVE HISTORY

14. Attached hereto as Exhibit M is a true and accurate copy of an excerpt from

the Congressional Record of extended remarks during the passage of the CAN-SPAM Act

of 2003. 150 CONG. REC. E72 (daily ed. Jan. 28, 2004) (statement of Rep. Tauzin).

15. Attached hereto as Exhibit N is a true and accurate copy of the Report of

the Committee on Commerce, Science, and Transportation on S.877. REPORT OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION on S.877, S. Rep. No. 102,

108th Cong., 1st Sess. 2-3 (2003).

VERIZON BROADBAND TERMS OF SERVICE

16. Attached hereto as Exhibit O is a true and accurate copy of the Terms of

Service for broadband Internet access from the internet service provider, Verizon

Communications, Inc. (“Verizon”).

17. I have reviewed the declarations of the representatives of Adknowledge and

Virtumundo filed in support of this Motion for an Undertaking. Based upon those

declaration, I understand that the IP addresses that users from email accounts located

<@gordonworks.com> have consented to receive emails from computers located at the IP

addresses at <4.5.74.214> and <4.5.88.163>.

18. Attached hereto as Exhibit V is a Reverse IP look up for the IP address

<4.5.74.214>.

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 4 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 5

(CV06-0204JCC)

19. The Reverse IP look ups indicate that the IP address <4.5.74.214> is

associated with Internet access provided via a Verizon DSL line.

WHOIS INTERNET ADDRESS INFORMATION

20. WHOIS records are publicly available through websites and domain name

registrars. According to the Internet Corporation for Assigned Names and Numbers

(“ICANN”), "The purpose of the gTLD Whois service is to provide information sufficient

to contact a responsible party for a particular gTLD domain name who can resolve, or

reliably pass on data to a party who can resolve, issues related to the configuration of the

records associated with the domain name within a DNS nameserver." (See

http://gnso.icann.org/issues/whois-privacy/). 

21. Access to the WHOIS database is available through every Internet Registrar

(e.g., <www.enom.com>, <www.godaddy.com> and <www.netsol.com>) and many other

independent Internet websites (e.g., <www.domaintools.com> and <www.dnsstuff.com>)

22. Attached hereto as Exhibit P is a true and accurate WHOIS record

reflecting that Linkz Internet Services is the registrant of <msdsa.com>. The WHOIS

record includes the address of Linkz Internet Services and identifies the Registrant as

Linkz Internet Services.

23. Attached hereto as Exhibit Q is a true and accurate WHOIS record

reflecting that WKI Data is the registrant of <prefersend.com>. The WHOIS record

includes the address of WKI Data and identifies the Registrant as WKI Data.

24. Attached hereto as Exhibit R is a true and accurate WHOIS record

reflecting that NOLDC, Inc. is the registrant of <ew01.com>. The WHOIS record

includes the address of NOLDC, Inc. and identifies the Registrant as NOLDC, Inc. 

PLAINTIFFS’ RESPONSE TO INTERROGATORIES

25. Attached hereto as Exhibit S is a true and accurate copy of Plaintiff

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 5 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 6

(CV06-0204JCC)

Gordon’s Response to Interrogatory No. 15.

26. Attached hereto as Exhibit T is a true and accurate copy of Plaintiff Omni

Innovations, LLC’s Response to Interrogatory No. 15.

27. Attached hereto as Exhibit U is a true and accurate copy of Plaintiff Omni’s

Response to Interrogatory No. 22.

AMOUNT OF UNDERTAKING

28. The Motion requests an undertaking amount of $350,000.00 based upon

anticipated attorneys’ fees and costs in this litigation. This amount is conservative as

compared to actual anticipated expenses. Plaintiffs have produced tens of thousands of

emails (at one point claiming 17,000 emails), each of which must be logged and analyzed

for compliance with CAN-SPAM. Plaintiffs have refused to identify any specific theory

of liability. As a result, each email must be analyzed for each potential violation of

CAN-SPAM.

29. Furthermore, this lawsuit will likely require an expert witness to testify

regarding compliance with CAN-SPAM, transmission paths of emails and best practices

for sending compliant emails. This expert will need to analyze each aspect of CANSPAM because plaintiffs have broadly alleged violations of the Act. 

30. Defendants anticipate that there will be approximately ten depositions taken

in defense of this matter. There are three named defendants, each of which will need to

be deposed. The Fed. R. Civ. P. 30(b)(6) representatives of the corporate defendants’

may be several different people. The defendants are located in Missouri and Kansas,

which will increase costs and expenses as compared to a deposition in this forum. 

31. Additionally, there are two named plaintiffs and the plaintiff has

subpoenaed a third party witness, Joel Hodgell, all of whom will need to be deposed. 

Accordingly, ten depositions is likely a conservative number.

32. Finally, if this case goes to trial, it will be before a jury and will likely be a

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 6 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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TOWNSEND DECL. RE 

DEFS.’ MOT. FOR AN UNDERTAKING - 7

(CV06-0204JCC)

lengthy trial. Plaintiffs have claimed violations of up to 17,000 emails, each of which

will need to be presented to the jury to determine whether they are, amongst other things,

false and misleading. 

33. Based upon the foregoing and the experience of this law firm, attorneys’

fees and costs are likely to substantially exceed $350,000.00.

DATED this 2nd day of November, 2006, at Seattle, Washington

_________________________________

Roger M. Townsend

Case 2:06-cv-00204-JCC Document 41 Filed 11/02/2006 Page 7 of 7