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)
