IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING

INNOVATIVE ACCESS, INC., Plaintiff, v. JORDAN XAVIER RAND, doing business as XAVIER ENTERPRISES Defendant.

NO. 02-2-14328-8SEA AMENDED COMPLAINT FOR INJUNCTIVE AND ADDITIONAL RELIEF UNDER THE UNFAIR BUSINESS PRACTICES--CONSUMER PROTECTION ACT AND THE UNSOLICITED ELECTRONIC MAIL ACT

COMES NOW, plaintiff, Innovative Access, Inc., an interactive computer service as defined by RCW 19.190.010, by and through its vice-president Ben Livingston and legal counsel Charlie Commereé, and brings this action against defendant named herein. Plaintiff alleges the following on information and belief:

I. JURISDICTION AND VENUE

1.1. Plaintiff Innovative Access, Inc. is located in King County, Washington.

1.2. Defendant Jordan Xavier Rand is a resident of Manitou Springs, Colorado.

1.3. The court has jurisdiction over defendant Jordan Xavier Rand under the Washington Long Arm Statute, RCW 4.28.185 (a) and (b), because Defendant sent 53 unsolicited e-mails to Plaintiff in violation of RCW 19.86.

1.4. Defendant XAVIER ENTERPRISES is a foreign corporation doing business in Washington. Defendant's principal place of business is Manitou Springs, Colorado.

1.5. The court has jurisdiction over Defendant XAVIER ENTERPRISES under the Washington Long Arm Statute, RCW 4.28.185.

II. DEFENDANT

2.1. Defendant Jordan Xavier Rand is the sole proprietor of Xavier Enterprises. Xavier Enterprises' principal place of business is located in Manitou Springs, Colorado 80829.

2.2. Defendant Jordan Xavier Rand, doing business as Xavier Enterprises, conducts business in Washington through unsolicited commercial electronic mail transmitted over the Internet to Washington residents.

III. NATURE OF TRADE OR COMMERCE

3.1. Defendant sent unsolicited electronic mail messages to Plaintiff. A copy of a typical unsolicited electronic mail message received by Plaintiff is appended as Exhibit A.

3.2. Defendant knows or has reason to know that Plaintiff is located in Washington State.

3.3. Defendant is in competition with others in the State of Washington engaged in similar business.

IV. FIRST CAUSE OF ACTION

4.1. Plaintiff realleges Paragraphs 3.1 through 3.4 and incorporates them herein as if set forth in full.

4.2. RCW 19.190.030(1)(a) states that one may not misrepresent the transmission path of a commercial electronic mail message. Pursuant to RCW 19.190.030(2), a violation of RCW 19.190.030(1)(a) constitutes a per se violation of the Consumer Protection Act, RCW 19.86.

4.3. Since September 29, 2002, Plaintiff has received fifty-three unsolicited electronic mail messages advertising Defendant's goods. The fifty-three messages were all sent to nonexistent accounts on our server. Our mail server sent an error notice to the sender of the message as identified by the RETURN-PATH line. All fifty-three of these error notices were bounced back by the receiving mail server stating that the recipient - as defined in the RETURN-PATH line in the original message - did not exist.

4.4. The time it took for our mail server to accept a message, send the error notice, and receive an error notice back is generally under thirty seconds. It is almost certain that the RETURN-PATH was invalid at the time the message was received.

4.5. On three separate occasions, Plaintiff phoned Defendant, warning Defendant that he was violating Washington State law and requesting all illegal e-mailing to cease.

V. PRAYER FOR RELIEF

5.1. WHEREFORE, plaintiff, INNOVATIVE ACCESS, INC., prays for relief as follows:

5.2. That the Court adjudge and decree that defendant has engaged in the conduct complained of herein.

5.3. That the Court adjudge and decree that the conduct complained of in Paragraph 4.3 constitutes a violation of the Unsolicited Electronic Mail Act, Chapter 19.190 RCW, and pursuant to RCW 19.190.030(2) constitutes per se violations of the Consumer Protection Act, Chapter 19.86 RCW.

5.4. That the Court adjudge and decree that the conduct complained of in Paragraph 4.3 constitutes unfair or deceptive acts or practices and unfair methods of competition in violation of the Consumer Protection Act, Chapter 19.86 RCW.

5.5. That the Court issue a permanent injunction enjoining and restraining Defendant and his representatives, successors, assigns, officers, agents, servants, employees, and all other persons acting or claiming to act for, on behalf of, or in active concert or participation with defendant from continuing or engaging in the unlawful conduct complained of herein.

5.6. That the Court assess civil penalties, pursuant to 19.190.040(2), of one thousand dollars ($1,000) per violation against defendant for each and every violation of RCW 19.86.020 caused by the conduct complained of herein for a total of $53,000.

5.7. That the Court make such orders pursuant to RCW 19.86.080 as it deems appropriate to provide for restitution to consumers of money or property acquired by defendant as a result of the conduct complained of herein.

5.8. That the Court make such orders pursuant to RCW 19.86.080 to provide that plaintiff, Innovative Access, Inc., have and recover from defendant the costs of this action, including reasonable attorney's fees.

5.9. That the Court order such other relief as it may deem just and proper to fully and effectively dissipate the effects of the conduct complained of herein, or which may otherwise seem proper to the Court.

DATED this 2nd day of May, 2002.

[signed]
BEN LIVINGSTON
Vice President
Innovative Access, Inc.