UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PETER HALL and )
BIG BAD PRODUCTIONS, INC., )
)
Plaintiffs, ) CASE NO.
)
v. )
)
EARTHLINK NETWORK, INC., )
)
Defendant )
COMPLAINT
Preliminary Statement
This complaint is based upon a knowing and intentional breach of a contract between the
Plaintiffs, Peter Hall and Big Bad Productions, Inc., and the Defendant, EARTHLINK NETWORK,
INC., whereby the Defendant unilaterally abrogated its subscriber agreement to provide electronic
communications service on the Internet to Mr. Hall and Big Bad Productions; and libel committed
against the Plaintiffs, in that the Defendant falsely and publicly accused Mr. Hall and Big Bad
Productions of misusing and abusing the Internet as a medium of electronic communication. In
furtherance of these acts of breach of contract and libel, the Defendant violated the Electronic
Communications Privacy Act, in that it intentionally and without authorization intercepted electronic
mail directed to the Plaintiffs by third parties; and committed related torts resulting in the Plaintiffs
suffering similar harms.
Jurisdiction and Venue
1. This Court has original jurisdiction over the Electronic Communications Privacy Act claim
within this Complaint pursuant to 28 U.S.C. 1331, and 18 U.S.C. 2520(a) and 2707(a).
2. This court has: (a) original jurisdiction over the remaining claims within this Complaint,
which arise under the laws of the State of New York, pursuant to diversity jurisdiction under 28
U.S.C. 1332(a)(1), in that the Plaintiffs and Defendants are citizens of different states and the
amount in controversy exceeds seventy-five thousand dollars ($75,000); and (b) supplemental
jurisdiction over such remaining claims, pursuant to 28 U.S.C. 1367(a), in that all claims within
this Complaint are so related that they comprise one case, and all claims arise from the same
operative facts.
Parties
3. Big Bad Productions, Inc., ("Big Bad Productions"), is a New York corporation with its
principal offices located in New York, New York; at all times pertinent to this Complaint, Big Bad
Productions was organized for commercial purposes, including:
To engage in the business of a film production company,
including but not limited to performing any other activity in the
entertainment industry whatsoever in connection with the foregoing
or which is calculated, directly or indirectly, to promote the interests
of the Corporation or which shall be conducive to or expedient for the
protection or benefit of the Corporation . . . .
4. Mr. Hall, is a resident and citizen of the United States, and is both (a) self-employed as a
writer and consultant in the entertainment industry, doing business as PCH Productions; and (b)
employed as president of Big Bad Productions. At all times pertinent to this Complaint, Peter Hall
was the sole shareholder, officer, and employee of Big Bad Productions.
5. EarthLink Network, Inc., ("EarthLink") is a California corporation with its principal
offices located in Pasadena, California, and doing business in New York.
Definitions
6. At all times pertinent to this Complaint, the following terms had the following meanings,
as these terms applied to EarthLink:
a) "Electronic Communication" meant any transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole or in part by a wire radio, electromagnetic,
photoelectric or photooptical system that affects interstate or foreign commerce;
b) "Electronic Communications System" meant any electromagnetic, photooptical or
photoelectronic facilities for the transmission of electronic communications, and any computer
facilities or related electronic equipment for the electronic storage of such communications;
c) "Electronic Communications Service" meant any service which provides to users thereof
the ability to send or receive electronic communications; and
d) "Intercept" meant the acquisition of the contents of any electronic communication through
the use of any electronic, mechanical, or other device;
e) "Internet" meant a collection of computer and telecommunication networks which are
interconnected, and through which electronic communications can be transmitted from computer to
computer and network to network;
f) "Electronic Mail," or "Email," meant an electronic communication transmitted from one
person using a computer to another such person by means of the Internet;
g) "Internet Service Provider" meant a business which utilized an electronic communications
system to provide access to, and use of the facilities available on, the Internet to individuals,
businesses, and other entities on a commercial basis, such services including electronic
communications services, including electronic mail;
h) "Web page" meant an electronic display of text and graphic information maintained on an
electronic communications system and which could be accessed and viewed by persons using the
Internet; and
i) "Newsgroup" meant an electronic display of text information pertaining to one or more
particular topics published on an electronic communications system and which could be accessed
by, or transmitted to, persons using the Internet who subscribe or otherwise have access to such
electronic display; and
7. At all times pertinent to this Complaint, EarthLink was an Internet Service Provider,
providing electronic communications services both within and outside New York State.
The Electronic Communications Privacy Act
8. At all times pertinent to this Complaint, the Electronic Communications Privacy Act
("ECPA"), 18 U.S.C. 2510 et seq., was in full force and effect, and governed the acquisition and
disclosure of electronic communications transmitted by electronic communications services,
including Internet Service Providers.
9. At all times pertinent to this Complaint, subject to specific exceptions, the ECPA
prohibited the acquisition or disclosure of the contents of any electronic communication between two
parties without the consent of one or both of the parties to that communication. 18 U.S.C. 2511.
10. At all times pertinent to this Complaint, the ECPA applied to EarthLink as an Internet
Service Provider.
Electronic Mail and the Internet
11. At all times pertinent to this Complaint, electronic mail transmitted on the Internet
consisted primarily of two parts:
(a) the "header," which consisted of information necessary for the computing devices
maintaining the Internet to identify the person who had sent the email; the computer and network
from which the email had been sent; the person to whom the email was sent; and the computer or
network to which the email needed to be transmitted in order to reach the person to whom the email
was sent; and
(a) the "message," also referred to as the content of the email, which contained the
information which the sender of the email wished to convey to the person designated to receive the
email.
12. At all times pertinent to this Complaint, an Internet Service Provider had the capability
to return email, with the content unread and the email itself undelivered, to the person who had sent
that email, accompanying such returned email with a notice indicating that it was not possible for
the service provider to deliver the email to the person designated to receive it.
13. At all times pertinent to this Complaint:
(a) "spam" referred to electronic communications transmitted over the Internet, to persons
at their Internet addresses, without the prior authorization, request, or
permission of the users of such addresses to transmit such communication
to them; and,
(b) the term "spamming" referred to the practice of transmitting spam to large numbers of
persons, often for a commercial or financial purpose, such as advertising.
14. At all times pertinent to this Complaint, spamming was considered by both Internet
Service Providers and users of such services as undesirable and harmful to the Internet, and
detrimental to the full use and enjoyment of the Internet.
The Contract Between the Plaintiffs and EarthLink
15. In or about July 1996, Peter Hall, acting on his own behalf, and as an agent for and in
furtherance of the business goals and purposes of Big Bad Productions and PCH Productions,
entered into a contract with EarthLink for the purpose of obtaining electronic communications
services over the Internet from EarthLink ("the EarthLink subscriber agreement"); at all times
pertinent to this Complaint, Peter Hall paid a monthly user's fee to EarthLink for these services, and
this contract remained in full force and effect.
16. Pursuant to the EarthLink subscriber agreement, Peter Hall and Big Bad Productions were
assigned an electronic mail address of "lot99@earthlink.net" by EarthLink. Through Mr. Hall's
subsequent use of this address, and through advertisement and contacts generated by him in
furtherance of the business goals and purposes of Big Bad Productions and PCH Productions, the
commercial community in which Peter Hall conducted business came to know the address
"lot99@earthlink.net" as referring to Peter Hall, Big Bad Productions, and PCH Productions; and
to equate this address with Peter Hall and these business entities.
17. At all times pertinent to this Complaint, Peter Hall transmitted and received both personal
and business electronic mail, and email on behalf of Big Bad Productions,
over the Internet, through
the services provided by EarthLink and using the address "lot99@earthlink.net."
18. At all times pertinent to this Complaint, the EarthLink subscriber agreement also
provided for EarthLink to make available its electronic communications system for Peter Hall and
Big Bad Productions to design and post a public Web page on the Internet.
COUNT ONE
The Breach of Contract
19. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen of this Complaint, and further charge:
A. Plaintiffs' Reliance on the EarthLink Subscriber Agreement
20. During the period 1992 to 1997, Mr. Hall and Big Bad Productions engaged in writing,
producing, filming, editing, and marketing a commercial film known as "Delinquent" ("the film").
Mr. Hall and Big Bad Productions spent approximately three hundred thousand dollars ($300,000)
for the purpose of, and in furtherance of, such production, filming, editing, and marketing.
21. Delinquent was scheduled for its commercial premieres on September 12, 1997, in both
Los Angeles and New York City (the "L.A. and New York premieres"). Subsequent engagements
for the film, and the revenue generated from such engagements, depended substantially upon the
number of customers and film industry professionals attending the L.A. and New York premieres.
22. On or about August 13, 1997, the Chicago Underground Film Festival was scheduled
to take place in Chicago, Illinois. The Chicago Underground Film Festival provided an opportunity
for Peter Hall and Big Bad Productions to market Delinquent; to raise the profile of Peter Hall and
Big Bad Productions within the Chicago and national film and media communities; to make
arrangements for Delinquent's eventual Chicago premiere; and to insure that adequate numbers of
customers and film industry professionals would attend the L.A. and New York premieres of
Delinquent on September 12, 1997, insuring the film's commercial success.
23. At all times pertinent to this Complaint, Mr. Hall and Big Bad Productions intended to
use electronic communications services provided by EarthLink, specifically email, to directly contact
influential persons in the film industry and media community in order to inform them of the film's
L.A. and New York premieres; to persuade them to attend these premieres; and to otherwise
publicize these presentations. Peter Hall and Big Bad Productions intended to conduct a substantial
portion of such marketing prior to and in time for the Chicago Underground Film Festival.
24. At all times pertinent to this Complaint, Mr. Hall and Big Bad Productions intended to
use electronic communications services provided by EarthLink to design and publish, through the
Internet, a Web page promoting Delinquent in time for the Chicago Underground Film Festival, and
to advertise and market this film immediately thereafter.
B. The Breach by EarthLink
25. On or about August 5, 1997, EarthLink knowingly and intentionally terminated
electronic communications service for Mr. Hall and Big Bad Productions, including:
(a) all email service to and from the Plaintiffs, that is, EarthLink refused to transmit email
messages send by third parties to the Plaintiffs at their email address, and refused to permit Mr. Hall
to access EarthLink's electronic communications service for the purpose of either transmitting email
to or receiving email from such third parties;
(b) the ability for Mr. Hall to design and publish a Web page on the Internet.
26. EarthLink took the above described action of terminating the Plaintiffs' electronic
communications service without providing Mr. Hall or Big Bad Productions with prior notice of such
termination, the reason for such termination, or the opportunity to contest such termination.
27. Beginning on August 6, 1997, and continuing until August 8, 1997, EarthLink rebuffed
Mr. Hall's repeated attempts by telephone to: (a) learn why EarthLink had terminated Plaintiffs'
electronic communications service; (b) learn what activity EarthLink accused him of having done
which resulted in EarthLink's termination of such service; (c) explain to EarthLink that he did not
abuse, and did not have the technical ability to abuse, his use of EarthLink's electronic
communications service; and (d) explain that continued interruption of his email service would have
significant and adverse financial repercussions to himself and to his business. The only information
provided to Mr. Hall by EarthLink in support of that company's abrogation of its subscriber
agreement was that Mr. Hall was accused of making multiple mailings, that is, using his EarthLink
account to engage in spamming.
28. On or about August 6, 1997, Mr. Hall sent, by Express U.S. Mail, a letter to Harris
Schwartz ("Mr. Schwartz"), head of Abuse Control for EarthLink (the "August 6th letter"). In this
letter, Mr. Hall explicitly informed Mr. Schwartz that he was using his email for:
[S]erious business purposes and that [EarthLink's] action of closing
my account, refusing even to tell me what I am accused of having
done, declining to respond to me quickly to my very desperate need
to stay in touch with the world as we launch my movie, etc. seems
likely to cause significant damage to the national launch of my film.
29. As a consequence of the above described termination of the Plaintiffs' electronic
communications service, Mr. Hall and Big Bad Productions could not (a) adequately advertise
Delinquent in time for the Chicago Underground Film Festival; and (b) respond to inquiries
regarding Delinquent and the L.A. and New York premieres of Delinquent; and (c) otherwise
adequately market this film
30. As a direct result of false accusations made by EarthLink against the Plaintiffs, both
public and private, Mr. Hall was under the compelling belief that an unknown person was falsely
masquerading on the Internet as Peter Hall, and was, through such masquerade, damaging the
reputation of Peter Hall, Big Bad Productions, and the film Delinquent; and that he urgently needed
to clear his name and the name of Big Bad Productions with EarthLink, the film and media
industries, and the public at large, in order to preserve the financial viability of his business
enterprises and the film. For these reasons, Mr. Hall could not and did not attend the Chicago
Underground Film Festival, and instead remained in New York for the purpose of expending time
and effort to rectify EarthLink's false accusations against him.
31. As a consequence of the necessity for Mr. Hall to remain in New York during the
Chicago Underground Film Festival, and the necessity for Mr. Hall to expend time and effort to
rectify EarthLink's false accusations against him, Mr. Hall: (a) could not personally promote, at the
Chicago Underground Film Festival, the L.A. and New York premieres of Delinquent to influential
persons in the film industry and media community; and (b) could not design and publish on the
Internet a Web page promoting Delinquent in time for this festival, or to adequately advertise and
market this film through the use of such Web page prior to the L.A. and New York premieres.
32. A direct result of the above described inadequate advertising and marketing, the L.A. and
New York premieres of Delinquent did not receive the attendance by film industry professionals that
they otherwise would have received; and Delinquent did not receive the amount or scope of publicity
which this film should have and would have received around the nation.
33. As a consequence of Delinquent's failure to receive the above described national
publicity, the opportunity for Peter Hall and Big Bad Productions to distribute this film were
diminished and harmed, with the film being shown to fewer customers and in fewer movie houses
than it otherwise would have been shown, and Peter Hall and Big Bad Productions suffered
financially from this fact.
34. As a further consequence of the above described termination of the Plaintiffs' electronic
communications service, Peter Hall and Big Bad Productions failed to receive email containing
career and financial opportunities within sufficient time for the Plaintiffs to take advantage of such
opportunities.
35. As a further consequence of the above described termination of the Plaintiffs' electronic
communications service, Peter Hall, on behalf of himself and Big Bad Productions, was forced to
conduct business communications and transactions using long distance telephone service in place
of the electronic communications service EarthLink was contractually obligated to provide to them,
thereby forcing Mr. Hall to incur telephone toll charges he otherwise would not have incurred.
36. As a further consequence of the above described termination of the Plaintiffs' electronic
communications service, Peter Hall, on behalf of himself and Big Bad Productions, was forced to:
(a) obtain electronic communications services from a new Internet Service Provider; (b) change the
Plaintiffs' email address; (c) publicize this change of email address; and (d) purchase new stationary
and business cards containing the new email address. Mr. Hall incurred expenses for each of these
activities.
The Claim
37. Commencing on or about August 5, 1997, and continuing until the date of this
Complaint, Defendant EarthLink Network, Inc., breached the above described contract between
itself and Peter Hall and Big Bad Productions, by terminating the electronic communications services
the Defendant was obligated to provide to the Plaintiffs under the EarthLink subscriber agreement,
such services including the transmission and delivery of email.
38. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad Productions, suffered actual damages.
COUNT TWO
Libel
39. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen, and paragraphs twenty through thirty-six of this Complaint, and
further charge:
40. On August 6, 1997, Harris Schwartz, acting on behalf of EarthLink, posted "EarthLink's
Net Abuse Report for Wednesday, August 6, 1997" (the "Net Abuse Report"), on the Internet, on
three separate public newsgroups, these newsgroups being: (a) news.admin.net-abuse.email; (b)
news.admin.net-abuse.misc; and (c) news.admin.net-abuse.bulletins.
41. EarthLink's Net Abuse Report identified and accused Peter Hall and Big Bad Productions,
using the Plaintiffs' public email address on EarthLink's electronic communication service, "lot99,"
of abusing the Internet, engaging in spamming, and violating his subscriber agreement with
EarthLink. Specifically, the posted Net Abuse Report stated the following (bold in original):
The following EarthLink subscribers have been reported for Network
or USENET abuse. Appropriate action has been taken against these
entities in accordance with the Subscriber Agreement and AUP
(Acceptable Use Policy) :
.
.
.
The subscribers listed below have been reported to EarthLink and
no further reports are necessary regarding them, at this time.
Thanks for your patience, as we continue to make every effort to
rid the world of Spam.
Users:
1. lot99
2. decrawford
3. icupromo
4. brisher
5. tracy3
6. gulfco
7. seantran
8. kinayt
9. abracadabra
10. jimweb
.
.
.
**To date, between May, 1996 and present, EarthLink has caught and
taken action against 1133 spammers.
The Claim
42. On or about August 6, 1997, Defendant EarthLink Network, Inc.,
intentionally published
the above described Net Abuse Report, which report defamed the Plaintiffs, Peter Hall and Big Bad
Productions, in that it falsely identified and accused the Plaintiffs of abusing the Internet, engaging
in spamming, and violating their subscriber agreement with EarthLink.
43. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad Productions, suffered actual damages.
44. Beginning on or about August 6, and continuing until on or after August 11, 1997, the
actions of Defendant EarthLink, in both publishing and failing to retract the above described Net
Abuse Report defaming Mr. Hall and Big Bad Productions, constituted willful and reckless
defamation; and Plaintiffs demand punitive damages from the Defendant.
COUNT THREE
Intentional Breach of the Covenant of Good Faith and Fair Dealing
45. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen, paragraphs twenty through thirty-six, and paragraphs forty and
forty-one of this Complaint, and further charge:
46. Beginning in or about July 1996, and continuing until August 1997, EarthLink had a
contractual relationship with Peter Hall and Big Bad Productions, which relationship required
EarthLink to deal fairly and in good faith with the Plaintiffs in all matters pertaining to its subscriber
agreement with them.
47. During August 1997, EarthLink took the following actions against Mr. Hall and Big Bad
Productions:
a) On Tuesday, August 5, EarthLink terminated the Plaintiffs' electronic communications
service. At no time did any representative, supervisor, employee, or officer of EarthLink give notice
to the Plaintiffs prior to terminating this service; nor an opportunity to the Plaintiffs to demonstrate
that he had not engaged in any activity justifying the termination of such service.
b) On Wednesday, August 6, EarthLink posted the Plaintiffs' email address on three Internet
newsgroups, publicly and falsely accusing Mr. Hall and Big Bad Productions, under the name
"lot99@earthlink.net," of committing network or USENET abuse and spamming on the Internet. At
no time did any representative, supervisor, employee, or officer of EarthLink give any opportunity
to the Plaintiffs, before posting its false accusations, to demonstrate that they had not engaged in
network or USENET abuse and spamming on the Internet, or otherwise violated their EarthLink
subscriber agreement, and that their electronic communications service should be restored.
c) On August 6, in response to a telephone inquiry about this terminated service made by Mr.
Hall to EarthLink's customer support telephone line, an EarthLink representative named "Richy"
informed Mr. Hall that the Plaintiffs' account had been closed because Mr. Hall had violated his
subscriber agreement, and Richy accused Mr. Hall of making multiple, unsolicited mailings, that is,
spamming, from his EarthLink account, by accessing and using another Internet Service Provider's
facilities. An EarthLink supervisor named Louis Gomez further explained that EarthLink's "Abuse"
Department had ordered the Plaintiffs' account closed as of Tuesday, August 5; that it was
impossible for Mr. Hall to speak with anyone at EarthLink with authority over this matter; that it was
impossible for Mr. Hall to send a facsimile to the persons at EarthLink who had closed his account;
and that, should Mr. Hall write a letter to EarthLink, it was unlikely that the letter would be
answered quickly. At no time did "Richy," Louis Gomez, or any other representative, supervisor,
employee, or officer of EarthLink listen to or investigate Mr. Hall's protestations that he had not
illegally accessed another Internet Service Provider's facilities, engaged in spamming, or otherwise
violated his EarthLink subscriber agreement, and that the Plaintiffs' electronic communications
service should be restored.
d) On August 6, Mr. Hall made additional telephone calls to EarthLink, and was informed
by EarthLink representative Jennifer Squier that the individual who had closed his account was
Harris Schwartz, head of EarthLink's Abuse Control. Ms. Squier then accused Mr. Hall of wasting
an hour of the company's time through his insistent calling. At no time did Jennifer Squier or any
other representative, supervisor, employee, or officer of EarthLink listen to or investigate Mr. Hall's
protestations that he had not illegally accessed another Internet Service Provider's facilities, engaged
in spamming, or otherwise violated his EarthLink subscriber agreement, and that the Plaintiffs'
electronic communications service should be restored.
e) On August 6, subsequent to the above described conversation with Jennifer Squier, Mr.
Hall sent, by Express U.S. Mail, the August 6th letter to Mr. Schwartz. In this letter, Mr. Hall
explicitly informed Mr. Schwartz that (i) he never sent out a "multiple mailing of ANY kind, which
[EarthLink's] records will show"; (ii) he could "NOT possibly have achieved whatever it is you
accuse me of, short of hitting the wrong keys in the wee hours of the morning"; and (iii) he was
using his email for serious business purposes, and that EarthLink's action of closing his account
would likely to cause significant financial harm to Mr. Hall and to the promotion of his film. At no
time did Harris Schwartz or any other representative, supervisor, employee, or officer of EarthLink
respond to or investigate Mr. Hall's protestations contained in this letter that he had not illegally
accessed another Internet Service Provider's facilities, engaged in spamming, or otherwise violated
his EarthLink subscriber agreement, and that the Plaintiffs' electronic communications service should
be restored.
f) On Thursday, August 7, as a result of the intervention of hotWIRED, a commercial news
service operating on the Internet, Mr. Schwartz agreed to accept a telephone call from Mr. Hall.
During this conversation, Mr. Hall attempted to explain that he had not engaged in spamming from
his EarthLink account, and that he was not technologically knowledgeable enough to engage in such
spamming. Mr. Schwartz refused to acknowledge the possibility that Mr. Hall was being truthful,
instead insisting that the spamming activity had "been tracked" to Mr. Hall's EarthLink account, and
threatened Mr. Hall with criminal action by stating that this was "an FBI level problem." At no time
did Harris Schwartz or any other representative, supervisor, employee, or officer of EarthLink listen
to or investigate Mr. Hall's protestations that he had not illegally accessed another Internet Service
Provider's facilities, engaged in spamming, or otherwise violated his EarthLink subscriber
agreement, and that Plaintiffs' electronic communications service should be restored.
g) On Friday, August 8, EarthLink sent by facsimile to Mr. Hall a form waiver of Mr. Hall's
privacy rights in the information upon which EarthLink based its
accusation that Mr. Hall had
engaged in spamming, for the purpose of permitting EarthLink to disclose such information to
hotWIRED; however, while agreeing to disclose the information to hotWIRED, EarthLink refused
to disclose this same information to Mr. Hall. At no time did any representative, supervisor,
employee, or officer of EarthLink agree or offer to provide any information to Mr. Hall which would
permit him to understand the accusations against him, and to demonstrate that he had not illegally
accessed another Internet Service Provider's facilities, engaged in spamming, or otherwise violated
his EarthLink subscriber agreement, and that the Plaintiffs' electronic communications service should
be restored.
48. Peter Hall and Big Bad Productions are informed and believe, and based upon such
information and belief allege, that EarthLink contends the following: that EarthLink had received
erroneous information that Mr. Hall had abused the electronic communications service provided by
EarthLink, in that EarthLink had been erroneously informed that Mr. Hall had used his electronic
communications service to engage in spamming upon the Internet. Upon this basis, the obligation
of good faith and fair dealing required, at the minimum, that: (a) the Defendant EarthLink notify and
inform Mr. Hall of the information provided to EarthLink, (b) the Defendant give an opportunity to
Mr. Hall to explain why such information was erroneous prior to taking any adverse action with
regard to the Plaintiffs' electronic communications service under the EarthLink subscriber
agreement; and (c) the Defendant listen to and investigate Mr. Hall's explanations as to why the
Plaintiffs' service under the EarthLink subscriber agreement was wrongfully terminated.
The Claim
49. Beginning on August 5, 1997, and at all times from these dates until the date of the filing
of this Complaint, Defendant EarthLink engaged in a scheme and course of conduct which amounted
to dishonesty-in-fact, and a violation of the Defendant's legal obligation of good faith and fair
dealing with regard to Peter Hall and Big Bad Productions, all for the purpose of avoiding its duty
and obligation to insure that the information falsely accusing Mr. Hall and Big Bad Productions of
engaging in network or USENET abuse and spamming on the Internet was accurate, complete, and
justified terminating EarthLink's obligation to provide electronic communications service to the
Plaintiffs under the terms of its subscriber agreement with the Plaintiffs.
50. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad productions, suffered actual damages.
COUNT FOUR
The ECPA Violation
51. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen, paragraphs twenty through thirty-six, and paragraphs forty-six
through forty-eight of this Complaint, and further charge:
52. After terminating the electronic communications services of Peter Hall and Big Bad
Productions, and abrogating its subscriber agreement with the Plaintiffs to provide them with such
services, EarthLink, commencing on or about August 5, 1997, and continuing until an unknown date
in or after June 1998, continued to accept email directed by third parties to Peter Hall and Big Bad
productions at the address of "lot99@earthlink.net."
53. At no time during the above described period did EarthLink return email, addressed in
the aforesaid manner to Mr. Hall and Big Bad Productions, to the persons who had initially sent that
email; nor, during this period, did EarthLink send a notice to such persons indicating that it was not
possible for EarthLink to deliver current or future email to the Plaintiffs. In this manner and by this
means, EarthLink lulled and induced persons to send electronic communications to the Plaintiffs
through EarthLink, which EarthLink had no intention to then deliver to the Plaintiffs.
54. At all times during the above described period, EarthLink intentionally acquired the
content of electronic communications which had been directed to the Plaintiffs, while no longer
having the right or authority to receive and accept such communications. Such acquisition was
accomplished by EarthLink through its use of computers and other electronic devices which were
part of, and utilized in, EarthLink's electronic communications system; and such acquisition
consisted of EarthLink receiving, and keeping without delivering, messages contained in email
directed to Peter Hall and Big Bad Productions at the address of "lot99@earthlink.net."
The Claim
55. Beginning on August 5, 1997, and continuing until an unknown date in or after June
1998, Defendant EarthLink Network, Inc., intentionally intercepted electronic communications
directed to Peter Hall and Big Bad Productions, that is, in the manner and means described above,
EarthLink acquired the messages within email directed to Peter Hall and Big Bad Productions, while
at all pertinent times denying delivery of such messages to the Plaintiffs; in violation of 18 U.S.C.
2511(1)(a) and 2520.
56. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad Productions, suffered actual damages
COUNT FIVE
Tort: Negligent Appropriation of Electronic Communications
57. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen, paragraphs twenty through thirty-six, paragraphs forty-six through
forty-eight, and paragraphs fifty-two through fifty-three of this Complaint, and further charge:
58. At all times pertinent to this Complaint, EarthLink, as a public Internet Service Provider,
holding itself out to the public as a provider of electronic communications services, including email,
owed a duty to Peter Hall and Big Bad Productions, as subscribers and then as former subscribers
to EarthLink, to either: (a) forward the Plaintiffs' electronic mail to their email new address; or (b)
notify third parties who directed email to the Plaintiffs at their EarthLink address
"lot99@earthlink.net" that such mail was undeliverable by EarthLink, and to return such email to
such third parties.
59. Beginning on or about August 5, 1997, and continuing until an unknown date in or after
June 1998, EarthLink, through negligence, failed to fulfill its above described duty to Mr. Hall and
Big Bad Productions.
60. As a direct and proximate result of the above described negligent acts and omissions,
beginning on or about August 5, 1997, and continuing until an unknown date in or after June 1998,
EarthLink appropriated the email sent to Mr. Hall and Big Bad Productions by third parties, at the
email address "lot99@earthlink.net," which email rightfully belonged to the Plaintiffs.
61. At all times pertinent to this Complaint, Mr. Hall and Big Bad Productions suffered the
following damage as a result of the above described conduct of EarthLink, in addition to those
damages described in paragraph 36 of this Complaint:
a) Mr. Hall lost personal and professional email directed to him by friends and associates,
and Big Bad Productions lost email directed to it by professionals and the public;
b) Mr. Hall and Big Bad Productions lost the opportunities to respond, and did not respond,
to the aforesaid lost email, not having received such email, thus damaging and losing personal
relationships;
c) Mr. Hall lost the control and privacy interest he personally had in such lost email, in that
EarthLink retained control over such email; and,
d) Mr. Hall suffered personal anger, anguish, and humiliation through the loss of the
aforesaid email and the control exerted over such email by EarthLink.
The Claim
62. Beginning on or about August 5, 1997, and continuing until an unknown date in or after
July 1998, Defendant EarthLink, through negligence, breached the above described duty which it
owed to Peter Hall and Big Bad Productions, thereby appropriating the Plaintiffs' electronic
communications.
63. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad Productions, suffered actual damages
COUNT SIX
Tort: Intentional Interference with Electronic Communication
64. The Plaintiffs reallege and incorporate by reference the allegations contained in
paragraphs one through eighteen, paragraphs twenty through thirty-six, paragraphs forty-six through
forty-eight, paragraphs fifty-two through fifty-four, and paragraphs fifty-eight through sixty-one of
this Complaint, and further charge:
65. At all times pertinent to this Complaint, Peter Hall and Big Bad Productions had a right
to the access and receipt of email addressed to them and transmitted to them on public electronic
communications services; or to have such email returned to any third party sender of such
communications with notice of such email being undeliverable to the address used.
The Claim
66. August 5, 1997, and continuing until the date of the filing of this Complaint, Defendant
EarthLink, intentionally interfered with and appropriated, in the manner and means described above,
electronic communications sent by third parties to, and belonging to, Peter Hall and Big Bad
Productions.
67. As a result of the conduct of the Defendant, as described in this Count, the Plaintiffs,
Peter Hall and Big Bad Productions, suffered actual damages.
COUNT SEVEN
Prima Facie Tort
68. The Plaintiffs reallege and incorporate by reference the allegation contained in paragraphs
one through eighteen, paragraphs twenty through thirty-six, paragraphs forty-six through forty-eight,
paragraphs fifty-two through fifty-four, and paragraphs fifty-eight through sixty-one of this
Complaint, and further charge:
69. As of Monday, August 11, 1997, EarthLink had actual knowledge that Mr. Hall had not
engaged in spamming, not illegally accessed another Internet Service Provider's facilities, nor
otherwise violated his EarthLink subscriber agreement. Such actual knowledge was supplied to
EarthLink by UUNET Technologies, Inc.
70. On August 11, 1997, Mr. Hall instructed EarthLink to reopen his EarthLink account, for
the purpose of enabling Mr. Hall and Big Bad Productions to receive email; EarthLink failed to do
this; thereafter, the Plaintiffs never again received email on an EarthLink account.
71. On Tuesday, August 12, 1997, Mr. Hall and Big Bad Productions received approximately
sixteen email messages, at a new email address, "Delinquent1@mindspring.com," which Mr. Hall
had opened with a different Internet Service Provider; these sixteen email messages were electronic
communications which EarthLink had withheld from the Plaintiffs during the period August 5 to
August 12, 1997. Thereafter, EarthLink failed to forward any additional email directed by third
parties to Mr. Hall or Big Bad productions at their EarthLink address of "lot99@earthlink.net."
72. In the event that the ECPA, and the torts described in Counts five and six of this
Complaint, do not apply to the above described conduct of EarthLink in acquiring electronic
communications directed to Mr. Hall and Big Bad Productions at the email address of
"lot99@earthlink.net" in the manner and means so described, then such conduct constituted a prima
facie tort in that, commencing on or about August 11, 1997, such conduct:
a) was without excuse or justification;
b) was intentional on the part of EarthLink;
c) constituted a series of acts which would otherwise be lawful; and
d) caused Mr. Hall and Big Bad Productions specific damages.
The Claim
73. Beginning in or about August 11, 1997, and continuing until an unknown date in or after
June 1998, Defendant EarthLink, in the manner and means described above, resulting in the above
specified harm, such acts being without excuse or justification; and as the result of which Mr. Hall
and Big Bad Productions suffered actual harm.
Request for Relief
The Plaintiffs, Peter Hall and Big Bad Productions, hereby demands and seeks that judgment
be entered in favor of themselves, and against Defendant EarthLink Network, Inc., as follows:
A. For Count One (Breach of Contract):
1. For direct and consequential damages, including financial loss incurred by Peter Hall and
Big Bad Productions; toll charges incurred through the use of long distance telephone calls as a
substitute for electronic communications service; expenses incurred in obtaining new electronic
communications service and ordering new business stationary and cards with a new email address;
damage to Mr. Hall's career and career opportunities and Big Bad Production's business
opportunities; and Mr. Hall's mental anguish and humiliation; in the amount of one million dollars
($1,000,000);
2. For interest on the above damages, from the date on which the damages were incurred;
3. For all reasonable costs and expenses incurred by Mr. Hall and Big Bad Productions in
relation to this civil action, plus all reasonable attorney's fees and costs; and
4. For such other and further relief as the Court deems just and equitable.
B. Count Two (Libel):
1. For direct and consequential damages, including financial loss incurred by Peter Hall and
Big Bad Productions; expenses incurred in obtaining new electronic communications service and
ordering new business stationary and cards with a new email address; damage to Mr. Hall's career
and career opportunities and Big Bad Production's business opportunities; and Mr. Hall's mental
anguish and humiliation; in the amount of one million dollars ($1,000,000);
2. For interest on the above damages, from the date on which the damages were incurred;
3. For all reasonable costs and expenses incurred by Mr. Hall and Big Bad Productions in
relation to this civil action, plus all reasonable attorney's fees and
costs; and
4. For punitive damages.
5. For such other and further relief as the Court deems just and equitable.
C. For Count Three (Breach of Duty of Good Faith):
1. For direct and consequential damages, including financial loss incurred by Peter Hall and
Big Bad Productions; toll charges incurred through the use of long distance telephone calls as a
substitute for electronic communications service; expenses incurred in obtaining new electronic
communications service and ordering new business stationary and cards with a new email address;
damage to Mr. Hall's career and career opportunities and Big Bad Production's business
opportunities; and Mr. Hall's mental anguish and humiliation; in the amount of one million dollars
($1,000,000);
2. For interest on the above damages, from the date on which the damages were incurred;
3. For all reasonable costs and expenses incurred by Mr. Hall and Big Bad Productions in
relation to this civil action, plus all reasonable attorney's fees and costs;
4. For punitive damages; and
5. For such other and further relief as the Court deems just and equitable.
D. For Count Four (ECPA):
1. For direct and consequential damages, including financial loss incurred by Peter Hall and
Big Bad Productions, damage to Mr. Hall's career and career opportunities and Big Bad Production's
business opportunities; and Mr. Hall's mental anguish and humiliation, in the amount of one million
dollars ($1,000,000); pursuant to 18 U.S.C. 2520 (b)(2) and 2520 (c)(2)(A);
2. For statutory damages, in the amount of one hundred dollars ($100) for each day of the
violation described in this Count, or for ten thousand dollars ($10,000), which ever is greater,
pursuant to 18 U.S.C. 2520 (b)(2) and 2520 (c)(2)(B);
3. For interest on the above damages, from the date on which the damages were incurred;
4. For all reasonable costs and expenses incurred by Mr. Hall and Big Bad Productions in
relation to this civil action, plus all reasonable attorney's fees and costs, pursuant to 18 U.S.C. 2520
(b)(3); and
5. For punitive damages.
6. For such other and further relief as the Court deems just and equitable; pursuant to 18
U.S.C. 2520 (b)(1).
E. For Counts Five, Six, and Seven (Tortious Interference with and Appropriation of Email):
1. For direct and consequential damages, including financial loss incurred by Peter Hall and
Big Bad Productions; toll charges incurred through the use of long distance telephone calls as a
substitute for electronic communications service; expenses incurred in obtaining new electronic
communications service and ordering new business stationary and cards with a new email address;
damage to Mr. Hall's career and career opportunities and Big Bad Production's business
opportunities; and Mr. Hall's mental anguish and humiliation; in the amount of one million dollars
($1,000,000);
2. For special damages, resulting from undelivered personal and business email, in the
amount of one million dollars ($1,000,000);
3. For interest on the above damages, from the date on which the damages were incurred;
4. For all reasonable costs and expenses incurred by Mr. Hall and Big Bad Productions in
relation to this civil action, plus all reasonable attorney's fees and costs;
5. For punitive damages (Counts Six and Seven only); and
6. For such other and further relief as the Court deems just and equitable.
Demand for Jury Trial
Plaintiffs hereby demand that this matter be tried before a jury.
Respectfully submitted,
By: _______________________
ANDREW GROSSO
(AG 1592)
2300 N Street, N.W., Suite 600
Washington, D.C. 20037
Telephone: (202) 663-9041
Facsimile: (202) 663-9042
By: _______________________
NICHOLAS J. DAMADEO
(ND 6752)
14 Loft Road
Smithtown, New York 11787
Telephone: (516) 382-7900
Facsimile: (516) 382-7953
Attorneys for Peter Hall and
Dated _____________ Big Bad Productions, Inc.