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)