NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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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. I am currently a resident of the State of Missouri.

3. Adknowledge, Inc. (“Adknowledge”) is organized under the laws of the 

Case 2:06-cv-00204-JCC Document 138 Filed 07/06/2007 Page 1 of 3

Gordon v. Virtumundo Inc et al Doc. 138

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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FITZGERALD DECL. IN SUPPORT OF

DEFS' MOTION FOR FEES

[NO. CV06-0204JCC] - Page 2

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

faye@gordonworks.com 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. 

Case 2:06-cv-00204-JCC Document 138 Filed 07/06/2007 Page 2 of 3
Case 2:06-cv-00204-JCC Document 138 Filed 07/06/2007 Page 3 of 3