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[ICANN-EU] Re: Attn. Louis Touton to:Re: Regland
- To: Joe Baptista <baptista@pccf.net>
- Subject: [ICANN-EU] Re: Attn. Louis Touton to:Re: Regland
- From: Jeff Williams <jwkckid1@ix.netcom.com>
- Date: Fri, 03 Nov 2000 23:37:23 -0800
- CC: DOMAIN-POLICY@LISTS.NETSOL.COM, Louis Touton <touton@icann.org>, icann board address <icann-board@icann.org>, ICANN-EU <icann-europe@fitug.de>
- Comment: This message comes from the icann-europe mailing list.
- Organization: INEGroup Spokesman
- References: <Pine.LNX.4.21.0011032156160.3304-100000@proxy.pccf.net>
- Sender: owner-icann-europe@fitug.de
Joe and all,
If you will notice, ICANN and Louis Touton is not counter suing, which
is fairly common if the one being sued has a strong counter case. Curious
that. I think Louis Touton is squirming.
What do you bet that Louis Touton and ICANN attempt to seek an
out of court settlement. I hope that RegLand doesn't fall for that...
Joe Baptista wrote:
> But seriously - Touton's a screamer. One expects him to be a lady - but a
> screamer. Oy vey.
>
> regards
> joe
>
> On Fri, 3 Nov 2000, Jeff Williams wrote:
>
> > Joe and all,
> >
> > Of course ICANN and Touton claim this legal action is "Frivolous".
> > But of course they would make this claim! ROFLMAO. We will see
> > if a judge here in Texas will agree with his claim. My guess is that
> > such a claim by Louis Touton will not stand. I hope Louis has
> > retained a good trial atty. And I hope for his sake it isn't Joe Simms!
> >
> > For Louis: Louis, we here in Texas have had enough of your nonsense.
> > Look forward to more of this sort of action in the near future...
> >
> > Joe Baptista wrote:
> >
> > > Touton really comes off as a hitler type. According to regland he does
> > > alot of screaming during the course of business - i wonder if he bites
> > > rugs too? strange boy.
> > >
> > > If you have any questions, Please contact Regland, Inc. at
> > > 210-495-9800
> > > CAUSE NO. __________________
> > >
> > > REGLAND, INC. § IN
> > > THE DISTRICT COURT
> > >
> > > §
> > > Plaintiff, §
> > >
> > > §
> > > VS.
> > > §
> > >
> > > § OF BEXAR COUNTY, TEXAS
> > > INTERNET CORPORATION FOR §
> > > ASSIGNED NAMES AND NUMBERS §
> > > A/K/A ICANN AND LOUIS TOUTON, §
> > > INDIVIDUALLY, §
> > >
> > > §
> > > Defendants.
> > > § ______ JUDICIAL DISTRICT
> > >
> > > PLAINTIFF'S ORIGINAL PETITION
> > >
> > > TO THE HONORABLE JUDGE OF SAID COURT:
> > >
> > > COMES NOW REGLAND, INC., Plaintiff in the above-numbered and styled
> > > cause, complaining of the Internet Corporation for Assigned Names and
> > > Numbers a/k/a ICANN and Louis Touton, individually, and for cause of
> > > action respectfully would show the following:
> > >
> > > I.
> > >
> > > DISCOVERY CONTROL PLAN
> > >
> > > 1.1 Plaintiff designates this case, under Texas Rule of Civil
> > > Procedure 190.3, to be governed by a Level 2 Discovery Control Plan.
> > >
> > > II.
> > >
> > > PARTIES AND SERVICE
> > >
> > > 2.1 Plaintiff RegLand, Inc. ("RegLand" or "Plaintiff") is a
> > > corporation organized under the laws of the State of Texas.
> > >
> > > 2.2 Defendant Internet Corporation for Assigned Names and
> > > Numbers a/k/a ICANN ("ICANN") is a nonprofit corporation organized
> > > under the California Nonprofit Public Benefit Corporation Law, which
> > > may be served with process by delivering a copy of the citation
> > > together with this Plaintiff's Original Petition, upon its registered
> > > agent, CT Corporation System, 818 West Seventh St., Los Angeles, CA.
> > > 90017.
> > >
> > > 2.3 Defendant Louis Touton ("Touton") is an individual resident
> > > of the State of California, who may be served with process by
> > > delivering a copy of the citation together with this Plaintiff's
> > > Original Petition, upon him at his place of business located at 4676
> > > Admiralty Way #330, Marina Del Rey CA. 90292, or wherever he may be
> > > found.
> > >
> > > III.
> > >
> > > VENUE AND JURISDICTION
> > >
> > > 3.1 Venue is proper in Bexar County, Texas, because Bexar County
> > > is where all or a substantial part of the events or omissions giving
> > > rise to the claim occurred and/or plaintiff resided in Bexar County,
> > > Texas, at the time of the accrual of the cause of action.
> > >
> > > 3.2 Jurisdiction is proper in this Court because the amount in
> > > controversy is within the jurisdictional limits of this Court.
> > >
> > > IV.
> > >
> > > FACTUAL BACKGROUND
> > >
> > > 4.1 ICANN is a technical coordination body for the Internet.
> > > ICANN was created in October 1998 by a coalition of the Internet's
> > > business, technical, academic, and user communities. The purpose
> > > behind the creation of ICANN was for it to assume responsibility for a
> > > set of functions previously performed under U.S. government contract
> > > by IANA and other groups. Specifically, ICANN is to coordinate the
> > > assignment of the following identifiers that must be globally unique
> > > for the Internet to function: Internet domain names; IP address
> > > numbers; protocol parameter and port numbers. In addition, ICANN is
> > > supposed to coordinate the stable operation of the Internet's root
> > > server system. ICANN has no other authority or purpose. ICANN's
> > > Memorandum of Understanding with the U.S. Department of Commerce
> > > specifically states that it shall not act unjustifiably or arbitrarily
> > > to injure particular persons or entities or particular categories of
> > > persons or entities.
> > >
> > > 4.2 When founded, ICANN was purportedly dedicated to preserving
> > > the operational stability of the Internet; to promoting competition;
> > > to achieving broad representation of global Internet communities; and
> > > to developing policy through private-sector, bottom-up,
> > > consensus-based means. Regrettably, ICANN has become an instrument by
> > > which a few individuals attempt to impose their will upon the very
> > > communities they were supposed to serve. One of those individuals is
> > > Touton.
> > >
> > > 4.3 Touton is Vice-President, Secretary, and General Counsel of
> > > ICANN. Although neither ICANN's Articles of Incorporation or its
> > > By-Laws impute any policy-making authority upon Touton, due to his
> > > position, he wields considerable power and influence over the Internet
> > > community. Touton is subjectively aware of this power and influence,
> > > which he uses to the detriment of those who defy him or his own view
> > > of what the Internet is or should be.
> > >
> > > 4.4 ICANN recently announced that it was considering the
> > > adoption of a variety of new generic top-level domain names ("New
> > > gTLDs"). New gTLDs were needed for the simple reason that domain
> > > names using the existing gTLDs were running out; that is, most of the
> > > common words and word combinations were no longer available. In
> > > approximately August 2000, therefore, ICANN began the process for
> > > identifying which of various proposed New gTLDs would become
> > > officially available for use in registering domain names. The process
> > > envisioned an expensive application procedure for the accreditation of
> > > Registries and Registrars. ICANN was to control the entire process
> > > and collect the exorbitant fees.
> > >
> > > 4.5 Plaintiff is a start-up Internet corporation with a website
> > > located at the domain name www.regland.com The founders of RegLand
> > > envisioned, and then created, a means by which individuals who wanted
> > > the best possible chance at obtaining domain names incorporating the
> > > New gTLDs would be able to have RegLand "stand in line" for them. The
> > > system created by RegLand was premised on technology, namely, the
> > > creation of a database of RegLand's customers which, pursuant to
> > > contracts with Registrars, would be processed as soon as ICANN
> > > announced that a New gTLD was available for registration. By contrast
> > > to the exorbitant fees charged by ICANN, RegLand charged its customers
> > > a nominal $20 for the privilege of entering a potential domain name
> > > into RegLand's database and taking advantage of RegLand's contractual
> > > relationships with Registrars.
> > >
> > > 4.6 RegLand's site makes abundantly clear that there are no
> > > guaranties or warranties with respect to the service offered by
> > > RegLand. Indeed, every customer who purchased those services was
> > > required to "click-through" a contract which set forth (i) that none
> > > of the proposed New gTLDs might become available, (ii) that, if a New
> > > gTLD became available, there was no guaranty that RegLand's proposed
> > > system would result in registration, and (iii) that the entire
> > > relationship between RegLand and its customers was at the customer's
> > > risk. In addition, when large orders were placed with RegLand, a
> > > member of its support staff would personally telephone the customer
> > > and reiterate the speculative nature of the situation.
> > >
> > > 4.7 On or about August 12, 2000, Scott Harris, of RegLand, met
> > > with Joseph Kibur at the main offices of NetNation, Inc. and Domain
> > > People, Inc. in Vancouver, Canada. Mr. Kibur is one of the founders
> > > of, and a major stockholder in, NetNation, Inc. Domain People, Inc.,
> > > a subsidiary of NetNation, Inc., is an ICANN accredited registrar.
> > > During the course of their meeting, the fact that ICANN had announced
> > > that it was exploring the introduction of New gTLDs into the root
> > > servers was discussed. Mr. Kibur and Mr. Harris agreed that a service
> > > to assist in the registration of domain names incorporating the New
> > > gTLDs, would not only be profitable, but also helpful to the general
> > > public. Mr. Kibur agreed that such a service, if it were started by
> > > Mr. Harris, would be able to market to the customers of Domain People,
> > > Inc. and such a service would also be allowed to use Domain People,
> > > Inc. to process registrations when the New gTLDs were introduced by
> > > ICANN.
> > >
> > > 4.8 Upon his return to San Antonio, Mr. Harris and Mr. Rick
> > > Hernandez founded RegLand for the purpose of implementing the idea
> > > discussed with Mr. Kibur. Mr. Kibur left on an extended vacation to
> > > Ethiopia, Africa, but before leaving instructed Julia Dean, Domain
> > > People's business development manager, to complete a contract between
> > > Domain People, Inc. and RegLand. Ms. Dean was excited about the
> > > possibilities of a contractual relationship with Regland because it
> > > would bring in both additional revenue as well as additional new
> > > customers to Domain People. In early September, 2000, after
> > > finalizing the details of the contract between Domain People and
> > > Regland, Ms. Dean felt it would be prudent to contact ICANN to get
> > > verification that the contract with Regland would not violate any
> > > policies of, or Domain People's agreement with, ICANN. Ms. Dean
> > > contacted Mr. Touton and during the course of this conversation, Mr.
> > > Touton informed Ms. Dean that ICANN was strongly against the type of
> > > service to be offered by RegLand, and implied that a contract with
> > > Regland would jeopardize Domain People's ability to register names in
> > > the New gTLDs and even its accreditation. After reporting to the
> > > officers of Domain People the details of the conversation between Ms.
> > > Dean and Mr. Touton, Domain People's CEO, Ashley Sinclair, decided
> > > that, because of Mr. Touton's comments, it was too risky to enter into
> > > a contract with Regland. On or about September 14, 2000, Ms. Dean
> > > contacted Mr. Harris and notified him that Domain People was backing
> > > out of their proposed contract altogether because they were fearful of
> > > ICANN and Mr. Touton.
> > >
> > > 4.9 The Defendants interference with RegLand's business did not
> > > stop with Domain People. Indeed, shortly after RegLand launched its
> > > website, it learned from potential customers that ICANN was advising
> > > people that the RegLand service was a "fraud," a "scam," and was
> > > simply designed to take $20 from as many people as possible. RegLand
> > > confirmed this by telephoning ICANN and hearing for itself these
> > > statements made by an employee of ICANN.
> > >
> > > 4.10 In addition, RegLand learned from other Registrars with whom
> > > RegLand had prospective contractual relationships with that Touton was
> > > advising Registrars that affiliation with RegLand would have a
> > > negative impact on such Registrar's application and accreditation with
> > > ICANN. These comments by Touton had the effect of icing the potential
> > > market for RegLand with Registrars.
> > >
> > > 4.11 In the face of this information, RegLand's founders and its
> > > attorney contacted Touton to demand that ICANN and Touton immediately
> > > cease and desist from disparaging RegLand and from interfering with
> > > RegLand's prospective contracts and business relationships. In the
> > > course of a 3-hour conference call with Touton, RegLand learned that
> > > Touton was aware that ICANN employees were disparaging RegLand, that
> > > Touton himself approved of this wrongful conduct, and that Touton
> > > intended to do nothing to stop the disparagement and defamation.
> > > However, Touton did state that he was aware of no ICANN policy or
> > > procedure that was being violated by RegLand, or which would be
> > > violated by any Registrar who entered into a contractual relationship
> > > with RegLand, and Touton stated that he would never advise a Registrar
> > > otherwise. Finally, Touton suggested changes to the RegLand site
> > > which he deemed necessary to make the website meet with his approval.
> > > In recognition of Touton's power and influence, RegLand made all the
> > > changes suggested by Touton, even though they were not necessary for
> > > any other reason.
> > >
> > > 4.12 In the course of developing its business, RegLand had
> > > identified Register.com as a potential partner. As a result, RegLand
> > > contacted Register.com and began negotiating a contract by which
> > > Register.com would serve as one of the Registrars through which
> > > RegLand's database of domain names with New gTLDs would be processed.
> > > In addition, RegLand became an affiliate of Register.com and displayed
> > > Register.com's logo on the RegLand site. On or about September 27,
> > > 2000, RegLand received a cease and desist letter from outside counsel
> > > for Register.com demanding that RegLand remove the Register.com logo
> > > from its website. RegLand complied. RegLand's counsel contacted
> > > Register.com's counsel to learn why the cease and desist letter was
> > > sent. RegLand's counsel was told that Touton had contacted
> > > Register.com's counsel "screaming" at him and demanding to know why
> > > Register.com was on RegLand's website. It was this conversation that
> > > precipitated RegLand's cease and desist letter to ICANN and Touton.
> > > Moreover, RegLand shortly thereafter received a communication directly
> > > from Register.com declining to meet with RegLand, although a
> > > communication just hours earlier had stated Register.com's interest in
> > > having a meeting to discuss a contractual relationship.
> > >
> > > 4.13 At approximately the same time, ICANN posted on its site a
> > > "warning" to visitors suggesting that taking advantage of the services
> > > of businesses such as RegLand was inappropriate because no one was
> > > "authorized" to pre-register domain names with the New gTLDs. This
> > > statement was false and deceptive because it implied that
> > > authorization from ICANN was necessary, when, in fact, no such
> > > authorization is needed -- or even available. Upon information and
> > > belief, the "warning" was not the result of the considered reflection
> > > of the board of ICANN, but was instead the result of Touton's personal
> > > decision to interfere with RegLand's business.
> > >
> > > 4.14 In the meantime, RegLand had begun negotiating a contract
> > > with Bulkregister.com, the second largest Registrar in the world.
> > > These negotiations proceeded to the point where execution of a
> > > contract was a reasonable probability. Had the contract been
> > > executed, it would have resulted in hundreds of thousands of dollars
> > > in revenue and profit to RegLand. However, at the last minute, after
> > > the essential terms of the contract were agreed upon, but before the
> > > contract could be executed, Bulkregister.com refused to consummate the
> > > deal. Bulkregister.com's stated reason was the wrongful intimidation
> > > and defamatory statements by Touton and ICANN and its fear that
> > > affiliation with RegLand would have a negative impact on its
> > > applications pending before ICANN.
> > >
> > > 4.15 Upon information and belief, ICANN considered RegLand's
> > > situation at a recent meeting of its board of directors. At the
> > > meeting, the board acknowledged that neither Touton nor ICANN has
> > > authority to make statements regarding RegLand's services. However,
> > > in conscious disregard of the rights of RegLand, ICANN has failed and
> > > refused to remove the false and deceptive warning on its website, and
> > > has failed and refused to issue an apology to RegLand.
> > >
> > > V.
> > >
> > > FIRST CAUSE OF ACTION - DEFAMATION
> > >
> > > 5.1 RegLand restates and incorporates by reference the factual
> > > allegations in paragraphs 4.1 to 4.15 above as if fully set forth
> > > herein.
> > >
> > > 5.2 ICANN and Touton made false, defamatory statements of and
> > > concerning RegLand, with knowledge that such statements were false or
> > > with reckless disregard as to the truth of such statements.
> > >
> > > 5.3 ICANN and Touton's defamation of RegLand has proximately
> > > caused actual damages to be suffered by RegLand, for which actual
> > > damages RegLand hereby sues.
> > >
> > > 5.4 ICANN and Touton's defamatory statements were made with
> > > malice and, therefore, it is appropriate for RegLand to recover
> > > exemplary damages in addition to its actual damages, for which
> > > exemplary damages RegLand hereby sues.
> > >
> > > VI.
> > >
> > > SECOND CAUSE OF ACTION - BUSINESS DISPARAGEMENT
> > >
> > > 6.1 RegLand restates and incorporates by reference the factual
> > > allegations in paragraphs 4.1 to 4.15 above as if fully set forth
> > > herein.
> > >
> > > 6.2 ICANN and Touton made false and disparaging statements of
> > > and concerning the services of RegLand, with knowledge that such
> > > statements were false or with reckless disregard as to the truth of
> > > such statements.
> > >
> > > 6.3 ICANN and Touton's business disparagement of RegLand has
> > > proximately caused actual damages to be suffered by RegLand, for which
> > > actual damages RegLand hereby sues.
> > >
> > > 6.4 ICANN and Touton's business disparagement was with malice
> > > and, therefore, it is appropriate for RegLand to recover exemplary
> > > damages in addition to its actual damages, for which exemplary damages
> > > RegLand hereby sues.
> > >
> > > VII.
> > >
> > > THIRD CAUSE OF ACTION - TORTIOUS INTERFERENCE
> > >
> > > 7.1 RegLand restates and incorporates by reference the factual
> > > allegations in paragraphs 4.1 to 4.15 above as if fully set forth
> > > herein.
> > >
> > > 7.2 ICANN and Touton's conduct interfered with prospective
> > > contracts and prospective business relations between RegLand and
> > > various Registrars, and between RegLand and its customers and
> > > potential customers.
> > >
> > > 7.3 ICANN and Touton's tortious interference has proximately
> > > caused actual damages to be suffered by RegLand, for which actual
> > > damages RegLand hereby sues.
> > >
> > > 7.4 ICANN and Touton's tortious interference was committed with
> > > malice and, therefore, it is appropriate for RegLand to recover
> > > exemplary damages in addition to its actual damages, for which
> > > exemplary damages RegLand hereby sues.
> > >
> > > VIII.
> > >
> > > JURY DEMAND
> > >
> > > Plaintiff demands a trial by jury.
> > >
> > > WHEREFORE, PREMISES CONSIDERED, REGLAND, INC., plaintiff herein, prays
> > > that the defendants be cited to appear and answer herein, and that
> > > upon final hearing the Court award judgment in favor of Plaintiff and
> > > against Defendants, jointly and severally, for actual damages,
> > > exemplary damages, pre-judgment interest and post-judgment interest,
> > > together with such other and further relief, both general and special,
> > > at law and in equity, to which Plaintiff may show itself justly
> > > entitled.
> > >
> > > Respectfully submitted,
> > >
> > > JACKSON WALKER L.L.P.
> > >
> > > 901 Main Street, Suite 6000
> > >
> > > Dallas, Texas 75201
> > >
> > > (214) 953-6000
> > >
> > > (214) 953-5822 (fax)
> > >
> > > By:___________________________
> > >
> > > Alan N. Greenspan
> > >
> > > State Bar No. 08402975
> > >
> > > OF COUNSEL
> > >
> > > Cynthia L. Beverage
> > >
> > > State Bar No. 00787076
> > >
> > > Jackson Walker L.L.P.
> > >
> > > 112 E. Pecan St., Suite 2100
> > >
> > > San Antonio, Texas 78205
> > >
> > > (210) 978-7700
> > >
> > > (210) 978-7790 (fax)
> >
> --
> Joe Baptista
>
> http://www.dot.god/
> dot.GOD Hostmaster
> +1 (805) 753-8697
Regards,
--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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Address: 5 East Kirkwood Blvd. Grapevine Texas 75208