1. Representative Plaintiff Hypertouch is a California corporation with its principal place of business in Redwood City, California.
2. Plaintiffs are informed and believe and thereon allege that Defendant, Link It Software Corporation, was, at all times relevant hereto, a corporation duly organized and recognized under the laws of the State of California. The violations of law alleged in this Complaint have been and are being carried out within San Mateo County and elsewhere throughout the State of California.
3. Plaintiffs are ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 100, inclusive, and therefore sue those Defendants by such fictitious names.
4. Each Defendant named in this Complaint is in some manner responsible for the wrongs and damages as alleged below, and in so acting was functioning, at least at times, as the agent, servant, partner and/or employee of the Defendants, and in doing and/or not doing the actions mentioned below was acting within the course and scope of his or her authority as such agent, servant, partner and/or employee with the permission and consent of the other Defendants. Further, all acts herein alleged were approved of and ratified by each and every other Defendant.

5. Plaintiffs complain on behalf of themselves, and all electronic mail service providers as defined under Business & Professions Code Section 17538.45(a)(3) whose equipment was used to send and/or receive unsolicited electronic messages advertising Defendants' products and services. The products and services advertised by the unsolicited electronic messages: software packages EZ Maintenance and Job Master, distributorships for said software packages, offers of consumer "bad Credit" file "replacement," and offers to provide bulk email services. Recipients of these electronic messages did not request any information from any of the Defendants. Plaintiffs have never had any relationship with Defendants, outside of this lawsuit and/or have policies prohibiting or restricting the use of its services or equipment for the initiation of unsolicited electronic mail advertisements. Such members of the class are readily ascertainable, but are so numerous as to make joinder impracticable. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The claims of the representative parties are typical of the claims of the class. The representative parties will fairly and adequately protect the interest of the class. Absent a class action, the Defendants will continue to perpetuate these wrongs and will retain the benefits of their wrongdoing.
6. Beginning at an exact date unknown to Plaintiffs, but at least since October 15, 2001, Defendants have sent unsolicited advertising by means of Internet email to the email addresses of persons in San Mateo County and elsewhere in California with whom Defendants had no existing business or personal relationship, and who had neither requested nor consented to receive commercial email from Defendants. California residents have received those unsolicited email advertisements via an electronic service provider's equipment located in California.
7. Defendants failed to label the subject line of their unsolicited email advertising with the characters "ADV:".
8. Plaintiffs gave actual notice to the Defendants of their policy of not permitting unsolicited electronic mail advertising, and that their electronic mail advertisements would use or cause to be used their electronic mail service providers' equipment located in California. Despite said actual notice, Defendants initiated their unsolicited electronic mail advertisements.
9. All members of the class were directly damaged Defendants' email advertising because of the increased load on Electronic Mail Service Providers' equipment.
10. All members of the class spent time and resources handling Defendants' email advertising.
11. Email advertising causes physical damage to the recipients' computers and the email service providers' computers in that every time the recipient of email advertising deletes the message, the computer allocates the space where the message resided as a space that can be written over by other data. When new data is allocated over several different spaces because it is too large for the space where the single email resided on the hard drive, the data is said to be "fragmented." Leaving the data fragmented decreases the computer's performance and causes wear on the parts. The user can run utilities that will "defragment" the hard drive, but repeated defragmentation of the hard drive also causes decreased performance and wear on the parts. It is also typically not advisable or even simply not possible to run such utilities while the disk is in use, requiring all use of the machine to be suspended and the machine to be brought off line while the utility is run.

12. Plaintiffs hereby incorporate by reference paragraphs 1 through 11, inclusive, as if the same were fully set forth herein.
13. Plaintiffs allege the Defendants sent unsolicited electronic messages initiated from and/or delivered with electronic mail service providers' equipment in violation of California Business and Professions Code section 17538.45.
14. Defendants continued to advertise in this unlawful manner even after Plaintiff Hypertouch informed them of their illegal activity. Plaintiffs believe that Defendants will continue to advertise in this wrongful and unlawful fashion unless otherwise enjoined by this Court. This Court has jurisdiction to issue a permanent injunction because restraint is necessary to prevent a multiplicity of judicial proceedings.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as hereinafter set forth.

15. Plaintiffs hereby incorporate by reference Paragraphs 1 to 14, inclusive, as if the same were fully set forth herein.
16. Plaintiffs own or owned computer hardware and software capable of receiving Internet email.
17. Beginning at an exact time unknown to Plaintiffs, but at least since October, 15, 2001, Defendants, and each of them, without Plaintiffs' consent, took possession of Plaintiffs' equipment by sending Internet email.
18. Defendants' possession and control of Plaintiffs' equipment continued for the duration of time required to receive and read Defendants' commercial advertisements.
19. During the period of time Defendants controlled Plaintiffs' equipment, Plaintiffs' equipment were required to devote resources to processing Defendants' directives.
20. Plaintiffs are informed and believe and thereon allege that Defendants' wrongful conduct, unless and until enjoined by Order of the Court, will cause great and irreparable injury to Plaintiffs by preventing Plaintiffs' use and enjoyment of personal property.
21. Plaintiffs have no adequate remedy for the injuries being suffered in that Plaintiffs will be forced to institute a multiplicity of lawsuits to obtain adequate compensation for continuing tortuous Internet email transmissions.
22. Defendants are engaging in conduct which in the aggregate causes harm to Plaintiffs' computers through loss of disk use after increased defragmentation.
23. Plaintiffs suffered damages in an amount according to proof at trial.
24. Punitive damages are appropriate to deter Defendant's conduct and to deter others from engaging in such conduct in that the Defendants' conduct was malicious, fraudulent and oppressive.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as hereinafter set forth.

25. Plaintiffs hereby incorporate by reference Paragraphs 1 to 24, inclusive, as if the same were fully set forth herein.
26. Plaintiffs complain on behalf of the general public.
27. Defendants' transmissions of Internet email advertisements were unfair as violations of California Business & Professions Code Sections 17538.4 and 17538.45.
28. Defendants' Internet email transmissions were misleading advertising and members of the public were likely to be deceived.
29. Plaintiffs seek relief as prayed herein.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as hereinafter set forth.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as follows:

1. For statutory damages in the amount of $50.00 per email;
2. For general damages in an amount to be determined according to proof at trial;
3. For special damages in an amount to be determined according to proof at trial;
4. For actual damages in an amount to be determined according to proof at trial;
5. For punitive damages in an amount to be determined according to proof at trial;
6. For disgorgement of profits derived from wrongful conduct;
7. For restitution of lost profits;
8. For attorneys' fees;
9. For the costs of suit herein incurred;
10. For an order of this Court enjoining Defendants, and each of them, and their agents, servants and employees and all persons acting under, in concert with, or for them from transmitting to Electronic mail service providers with equipment in California and to California residents by email any unlawful commercial advertisement forever after; and
11. For such other and further relief as the Court may deem just and proper.