UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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1 Case:-cv-00-EDL Document Filed0// Page of 0 0 Derek Newman, State Bar No. 0 derek@newmanlaw.com John Du Wors, State Bar No. duwors@newmanlaw.com NEWMAN DU WORS LLP 0 Third Avenue, Suite 00 Seattle, WA 0 Telephone: (0) -00 Facsimile: (0) -0 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Davison Design & Development Inc., a Pennsylvania corporation, XL Marketing Corp., a Delaware corporation, Spire Vision Holdings, Inc., a Delaware corporation, ProAdvertisers, LLC, a Delaware Limited Liability Company, Prime Advertisers, LLC, and MediActivate, LLC, Nevada Limited Liability Companies, and ConnectionCentrals, a Delaware Series Limited Liability Company, Plaintiffs, v. Catherine Riley, an individual, Defendant. No. CV--0-EDL SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT Davison Design & Development Inc., XL Marketing Corp., Spire Vision Holdings, Inc., ProAdvertisers, LLC, Prime Advertisers, LLC, MediActivate, LLC, and ConnectionCentrals (collectively, Plaintiffs ) hereby allege for their complaint against Catherine Riley ( Riley or Defendant ) upon personal information as to Plaintiffs own activities, and upon information and belief as to the activities of others, as follows:

& Development Inc., a Pennsylvania corporation, XL Marketing Corp., a Delaware corporation, Spire Vision Holdings, Inc.

2 Case:-cv-00-EDL Document Filed0// Page of 0 0 I. NATURE OF THE CASE Davison Design & Development Inc. ( Plaintiff Davison ) offers marketing and product development services to inventors and aspiring inventors. XL Marketing Corp., Spire Vision Holdings, Inc., and the remainder of the Plaintiffs (the Spire Vision Plaintiffs ) run an internet marketing business. Catherine Riley is an individual who sent a demand letter to Plaintiffs demanding payment of over $,000 in damages for alleged violations of California s Business and Professions Code. The basis of Riley s claims is that she received and continues to receive s from Plaintiffs that do not comply with California state and federal spam laws. Plaintiffs contend that they have not sent or advertised in, and do not send or advertise in, that violates state or federal spam law. Plaintiffs ask this court for a declaratory judgment that there is neither a legal nor factual basis for Riley s claims. II. JURISDICTION AND VENUE. This Court has original subject matter jurisdiction over this action pursuant to U.S.C., U.S.C. (a)(), and U.S.C. 0. The parties are diverse, and more than $,000 is in controversy. III. PARTIES. Plaintiff Davison Design & Development is a Pennsylvania corporation that offers marketing and product development services to inventors and aspiring inventors.. Plaintiff XL Marketing Corp. is a Delaware corporation engaged in the business of internet marketing. XL Marketing Corp. wholly owns a range of subsidiaries, each focused on a particular area of internet marketing.. Plaintiff Spire Vision Holdings, Inc., is a Delaware corporation and a wholly-owned subsidiary of XL Marketing Corp.. Plaintiff ProAdvertisers, LLC is a Delaware Limited Liability Company and a wholly-owned subsidiary of Spire Vision Holdings, Inc.. Plaintiff MediActivate, LLC is a Nevada Limited Liability Company and a wholly-owned subsidiary of Spire Vision Holdings, Inc.

, and the remainder of the Plaintiffs (the Spire Vision Plaintiffs ) run an internet marketing business.

3 Case:-cv-00-EDL Document Filed0// Page of 0 0. Plaintiff Prime Advertisers, LLC is a Nevada Limited Liability Company and a wholly-owned subsidiary of Spire Vision Holdings, Inc.. Plaintiff ConnectionCentrals, is a Delaware Series Limited Liability Company and a wholly-owned subsidiary of ProAdvertisers, LLC.. Defendant Riley is an individual and resident of California. IV. FACTS 0. Defendant Riley is an individual who owns multiple personal addresses. Defendant Riley is not an Internet Service Provider (ISP).. Between August, 00 and April, 0, Defendant Riley visited various websites, including <claimfreerewards.com> and <winyourcruise.com>. On those websites, Defendant entered her address in order to access the site and/or participate in promotional offers. Each website displayed a message indicating that by entering her address, Riley agreed to receive advertising s. Each website provided a means to opt out of advertising s.. Riley knowingly agreed and provided her direct consent to receive advertising s.. Riley never opted out of receiving advertising s.. The Spire Vision Plaintiffs create and/or distribute internet advertisements. Some of the Spire Vision Plaintiffs internet advertisements are distributed through s. The Spire Vision Plaintiffs advertising s are permission-based, and the Spire Vision Plaintiffs do not send s to persons who have not agreed to receive them. The Spire Vision Plaintiffs obtain addresses from affiliates, and have strict guidelines regarding direct consent.. The Spire Vision Plaintiffs accept advertisements from advertising clients, and tailor marketing campaigns to suit advertisers products or services. provision.. Each sent by the Spire Vision Plaintiffs includes an opt out. Plaintiff Davison is an advertising client of the Spire Vision Plaintiffs.

FACTS 0. Defendant Riley is an individual who owns multiple personal email addresses. Defendant Riley is not an Internet Service Provider (ISP).

4 Case:-cv-00-EDL Document Filed0// Page of 0 0. The Spire Vision Plaintiffs distributed a series of s for Plaintiff Davison and other clients (the Allegedly Offending s ) by sending the s to a list of owners who had directly consented to receive promotional s and had not revoked that consent.. The Allegedly Offending s each contain a subject line that accurately describes the contents of the message. 0. The Allegedly Offending s each contain an opt out provision, through which a recipient can choose to receive no further promotional s. information.. The Allegedly Offending s each contain accurate header. The Allegedly Offending s each clearly indicate that the is a marketing . advertiser.. The Allegedly Offending s each contain the postal address of the. Defendant did not opt out of receiving the Allegedly Offending s or otherwise revoke her consent to receive advertising s.. Defendant has not been adversely affected by receiving the Allegedly Offending s.. All of the Allegedly Offending s comply with California state and federal spam laws. The Spire Vision Plaintiffs have a rigorous series of spam compliance policies, and ensure that advertising s they send do not violate the law.. In March-May, 0, Defendant sent Plaintiffs a series of letters demanding money because she received the Allegedly Offending s. Defendant s letters claim that she is entitled to at least $,000 in statutory damages, and threaten litigation if she is not paid. FIRST CAUSE OF ACTION DECLARATORY JUDGMENT Cal. Bus. & Prof. Code.. Plaintiffs incorporate all prior allegations as if fully set forth herein.

consented to receive promotional emails and had not revoked that consent.. The Allegedly Offending Emails each contain a subject line that accurately describes the contents of the email message. 0.

5 Case:-cv-00-EDL Document Filed0// Page of 0 0. The Allegedly Offending s do not contain and are not accompanied by a third-party's domain name without the permission of the third party. 0. The Allegedly Offending s do not contain and are not accompanied by falsified, misrepresented, or forged header information.. The Allegedly Offending s do not have subject lines that would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.... The Allegedly Offending s do not violate Cal. Bus. & Prof. Code. Defendant has not suffered any damages as a result of Plaintiffs actions.. Defendant s claims are pre-empted by federal law because they are not based on traditional common law theories of falsity or deceit.... Defendant is not entitled to relief pursuant to Cal. Bus. & Prof. Code V. RELIEF REQUESTED WHEREFORE, Plaintiffs request that the Court enter judgment against Defendant Riley as follows:. That the Court enter a Declaratory Judgment that Plaintiffs have not violated California s Business and Professions Code... That the Court award Plaintiffs their costs and attorneys fees.. That the Court grant such other, further, and different relief as the Court deems proper under the circumstances. RESPECTFULLY SUBMITTED this th day of January, 0. NEWMAN DU WORS LLP John Du Wors California State Bar No. Attorneys for Plaintiffs

subject matter of the message.... The Allegedly Offending Emails do not violate Cal. Bus. & Prof. Code. Defendant has not suffered any damages as a result of Plaintiffs actions.

6 Case:-cv-00-EDL Document Filed0// Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on January, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Daniel Balsam Law Ofcs Daniel Balsam Geary Blvd # San Francisco, CA legal@danbalsam.com Timothy James Walton Law Offices of Timothy Walton Soquel Drive, Suite 0 Aptos, CA 00 ecf.cand@netatty.com I certify under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct and that this certificate was executed on January, 0, at Selma, Texas. Arlyne Sorrells

legal@danbalsam.com Timothy James Walton Law Offices of Timothy Walton Soquel Drive, Suite 0 Aptos, CA 00 Email: ecf.cand@netatty.

Case4:15-cv-04219-DMR Document1 Filed09/16/15 Page1 of 11

Case4:15-cv-04219-DMR Document1 Filed09/16/15 Page1 of 11 Case:-cv-0-DMR Document Filed0// Page of MICHAEL G. RHODES () (rhodesmg@cooley.com) California Street, th Floor San Francisco, CA Telephone: Facsimile: BRENDAN J. HUGHES (pro hac vice to be filed) (bhughes@cooley.com)