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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

DIRECTORY ASSISTANTS, INC. Case No: 2:11-mc-00096-FJM Plaintiff, vs. DOES 1–10, Defendants. DECLARATION OF DAVID S. GINGRAS IN SUPPORT OF NON-PARTY XCENTRIC VENTURES, LLC’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL

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I, David S. Gingras declare as follows: 1. My name is David Gingras. I am a United States citizen, a resident of the
if

State of Arizona, am over the age of 18 years, and

called to testify in court or other

proceeding I could and would give the following testimony which is based upon my own personal knowledge unless otherwise stated. 2. I am an attorney licensed to practice law in the States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and California and I am admitted to practice and in good standing with the United States District Court for the District of Arizona and the United States District Court for the Northern, Central, and Eastern Districts of California. 3. I am counsel for non-party XCENTRIC VENTURES, LLC (“Xcentric”) in

this matter and I have represented Xcentric since the inception of this matter.
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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

4.

In addition to my litigation practice, I also act as Xcentric’s general counsel

and in that capacity I typically review all incoming subpoenas and determine (based on consultation with Xcentric’s principal) how Xcentric will respond. 5. Xcentric believes that the First Amendment right to anonymous speech is

extremely important. Xcentric also believes (based on lengthy prior experience) that would-be plaintiffs may sometimes falsely claim to be victims of defamation or other torts, and may send subpoenas to Xcentric seeking to unmask an anonymous author when, in fact, the underlying statements are entirely truthful and accurate. As Xcentric’s general counsel, I have personally seen this happen on numerous occasions. For this reason, Xcentric is very concerned about protecting the site’s users, ensuring that subpoenas are based only on legitimate claims, are not misused, and that anonymous authors are exposed only when appropriate. 6. At the same time, Xcentric understands that some people may abuse their

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rights and may misuse the Ripoff Report website by posting inaccurate, exaggerated, or false information. As such, Xcentric understands that some subpoenas are well-grounded and appropriate and in such cases, Xcentric has no opposition to complying with a subpoena without objection. 7. With these competing interests in mind, any time Xcentric receives a new

subpoena, it is generally my job to review the subpoena and to determine how to respond. When performing this review, I try to determine whether the party serving the subpoena could satisfy the three-prong test set forth in Mobilisa v. Doe. Where it is extremely clear that the plaintiff could satisfy Mobilisa, Xcentric’s policy is generally to ask the plaintiff to provide notice to the author. If the author does not object or respond, then Xcentric will comply with the subpoena without objection. 8. On the other hand, if is clear that the plaintiff could not satisfy Mobilisa, or

in cases where serious doubts exist (usually because the statements at issue are old and therefore beyond the statute of limitations, of where the report contains nothing more than the author’s non-actionable opinion), Xcentric generally will object to the subpoena and 2
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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

will not produce the author’s contact information unless the plaintiff obtains an order as contemplated by Mobilisa. 9. Although this current matter involves a subpoena issued to Xcentric by DAI

on May 24, 2011, this is not the first subpoena DAI has served on Xcentric. Rather, several months earlier on November 8, 2010 I received a subpoena from DAI, a copy of which is attached hereto as Exhibit A. This first subpoena was actually preceded by several lengthy emails sent to me by DAI’s President, David Ford, in February, March and April 2010. 10. The first DAI subpoena requested information about the authors of two

reports on the Ripoff Report website—Report #423058 (submitted February 11, 2009) and Report #535061 (submitted December 7, 2009), as well as the identity of individuals who posted some comments in response to these reports. A copy of Report #423058 is attached hereto as Exhibit B, and Report #535061 is attached hereto as Exhibit C. Other than minor variations in the titles, these two reports were essentially identical. 11. When I reviewed the first DAI subpoena, my initial evaluation was that any

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action based on the two reports would be extremely weak at best. This conclusion was based on the fact that although the report used some strong language like “scam artists”, overall the report appeared to contain little more than the author’s opinions about DAI. If the subpoena had been based solely on these two reports, Xcentric probably would have objected to it. 12. However, upon reviewing the matter further, I determined that one of the

authors had also submitted a comment to one of the reports using the name “Allison Babel”. A copy of this comment is attached hereto as Exhibit D. 13. In my earlier email exchange with DAI’s President, I learned that “Allison

Babel” was the name of a DAI employee, but Ms. Babel apparently denied having any involvement in the creation of this post. Mr. Ford was very upset about this, and he suggested that because the author of the comment used Ms. Babel’s name, this was equivalent to “identity theft”. Mr. Ford further implied that by “allowing” this “crime” to 3
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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

occur, Xcentric itself may have broken the law and could be exposed to liability. Specifically, in one of his emails to me, Mr. Ford stated: “Allison could go to the FBI right now and make an identity theft claim and, if we were one of the people that wanted to sue your client, we would have one hell of a good claim. The crime aspect is the type of thing that gets people excited. It also prevents protection under the CDA. I don’t know what your client can do to protect against it.” 14. Although I believed that Mr. Ford’s allegations of “identity theft” were

groundless, I subsequently reviewed the author information for Reports #423058 and Report #535061 and I determined that the same person who used the name “Allison Babel” when making the comment reflected in Exhibit D had also submitted Report #535061 (which, again, was merely a copy of Report #423058). 15. Based on these facts, although I continued to have doubts as to the viability

of DAI’s claims arising from these two reports, I determined that Xcentric would not make a Mobilisa-based objection at that time. Instead, we would provide notice of the subpoena to each affected author asking them for their position. After several weeks passed without any response or objection from the authors, Xcentric complied with the first subpoena from DAI on November 30, 2010. See Exhibit E. 16. I heard nothing further from DAI until June 13, 2011 when Ripoff Report’s

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editor, Ed Magedson, forwarded me a copy of another subpoena from DAI dated May 24, 2011. Even though I had previously exchanged correspondence with DAI’s counsel when dealing with the first subpoena several months earlier, DAI’s counsel did not send the second subpoena directly to me nor was the subpoena ever personally served on Xcentric. Rather it was forwarded to me for the first time by Mr. Magedson on June 13, 2011, and I promptly objected to it that same day. 17. In my experience representing Xcentric for more than six years, it is

extremely unusual to receive multiple subpoenas like this from the same party. Having reviewed and responded to dozens and dozens of subpoenas on behalf of Xcentric, I could not recall any previous instance where the plaintiff subpoenaed Xcentric for author 4
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information, received the requested information, and then came back a second time months later requesting more information with a second subpoena. Although I already had serious doubts about the first subpoena from DAI, the second subpoena caused me to become even more concerned, and as a result I decided to investigate the matter further. 18. As part of my investigation, I reviewed the report on which DAI’s second

subpoena was based—Report #716261, a copy of which is attached hereto as Exhibit F. Upon reviewing this report, I concluded that it appeared to be even less actionable than the first two reports, specifically it appeared to contain no factual assertions of any kind— it was nothing more than non-actionable expressions of opinion. This caused me to wonder: what types of claims DAI was asserting based on this report? 19. To answer that question, I logged into the Connecticut district court’s

PACER site and obtained a copy of DAI’s Complaint in Case No. 11-cv-801-MRK which I determined to be the second Connecticut action filed by DAI from which the second subpoena was issued. I understand that a copy of DAI’s Complaint in that action is attached as Exhibit 4 to DAI’s Motion to Compel. 20. Upon reviewing DAI’s Complaint, I was immediately struck by the type of

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claims DAI had asserted—specifically, the Complaint did not include any cause of action for defamation. Rather, the only claims asserted were: 1.) tortious interference with contractual relationships; and 2.) tortious interference with business expectancies. 21. The fact that DAI’s Complaint only included tortious interference claims

and did not include any cause of action for defamation was a substantial “red flag”. This is so because in my experience, when a plaintiff alleges that a post on the Ripoff Report website is factually false, the first cause of action presented is typically always the same—defamation. The fact that DAI did not present any claim for defamation suggested to me that either: 1.) DAI knew the report was true; or 2.) DAI knew the report was nothing more than a non-actionable expression of the author’s opinions. Whatever the case was, my review of DAI’s Complaint caused me to conclude that it was highly unlikely that DAI’s claims in the second lawsuit were legitimate. 5
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22.

Finally, when investigating the merits of DAI’s second subpoena, I felt it

was important to determine the status of the first lawsuit DAI brought (i.e. the case from which the first subpoena to Xcentric was issued). Because Xcentric did not object to that first subpoena, and because the statements at issue in both matters were so similar, I wanted to know whether DAI had made any effort to ascertain whether the defendants it identified in the first action were responsible for posting the report on which DAI’s second subpoena was based—Report #716261. 23. To answer this question, I again logged into PACER and reviewed the Upon

Connecticut district court’s docket in the first case (Case No. 10-cv-548).

reviewing the docket, I learned that on May 10, 2011, DAI filed a Motion for Leave to Amend (Doc. #16), a copy of which is attached hereto as Exhibit G. In this motion, DAI informed the court as follows: DAI has been the victim of numerous false and misleading statements that have been posted on various websites, including RipOffReport.com, InsiderPages.com, JudysBook.com, and others, that provide opportunities for members of the public to comment upon their experiences with businesses. DAI filed this lawsuit naming a John Doe defendant in an effort to identify the person or persons making the false statements on the internet. Through various subpoenas, DAI has identified several individual and corporate entities that made or participated in making the false statements on the internet. DAI now asks the Court for leave to amend its complaint to add those individuals and entities to this case. Exhibit G at 2 (emphasis added). 24. I also noted that attached to DAI’s Motion for Leave to Amend was a

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proposed First Amended Complaint (also included in Exhibit G attached hereto) which listed numerous defendants including: LK Jordan & Associates, Matt Opel, Fry Bros. Heating & Air Conditioning, Co., Woolbright Spine & Rehab, Inc., and Jordan Aigen. 25. Because it was clear that DAI had already identified numerous defendants

who it accused of posting false statement about DAI on various websites, this caused me to question whether or not DAI’s second subpoena to Xcentric was really necessary, 6
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given that there were already known defendants who may have had knowledge on this issue. I considered that question to be extremely important under Mobilisa’s third prong which suggests that disclosure of an anonymous author’s identity may be inappropriate where “the anonymous speaker [is] a non-party witness along with a number of known witnesses with the same information.” Mobilisa, 217 Ariz. at 111. 26. 27. Based on these concerns, Xcentric objected to DAI’s second subpoena. Following that objection, I had multiple telephone and email

communications with DAI’s local counsel, Krystal Aspey, and later with DAI’s Connecticut counsel, Brett Boskiewicz, regarding this matter. 28. During one specific conversation on July 22, 2011, I informed Ms. Aspey of

my serious concerns as to the validity of DAI’s second subpoena. Despite this, in an effort to find an acceptable resolution, I told Ms. Aspey that I would retrieve the author information requested by the second subpoena and compare that to the information which Xcentric had already produced in response to the first subpoena to determine if the information matched. If the information did match, then I believed that Xcentric might be willing to produce this information without objection since it would not prejudice the author in any way (because DAI already had that author’s identity). 29. After speaking to Ms. Aspey, I obtained and compared the author’s

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information for Report #716261 and I determined that it did not match any of the information Xcentric had previously provided to DAI. 30. Based on this new information, later that same day I sent a lengthy email to

Ms. Aspey which explained my concerns about DAI’s second subpoena. A copy of my email to Ms. Aspey is attached hereto as Exhibit H. In my email to Ms. Aspey, I specifically informed her that based on the information available to me, it did not appear that DAI could satisfy Mobilisa’s second or third prongs: [A]s explained in Mobilisa, in order to obtain the author’s information your client would need to establish a prime facie claim sufficient to withstand a hypothetical Motion for Summary Judgment. Because the only claims here are for tortious interference, my view is that in order to satisfy your client’s 7
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burden under Mobilisa, you would need to offer proof sufficient to raise a triable issue of fact as to each and every element of that claim. Although I am not familiar with Connecticut law in that area, I assume that like Arizona there must be a showing of actual interference/damages; i.e., there must be proof that an existing customer of DAI terminated its contract and that the post at issue was the actual and proximate cause of the loss. This is a pretty substantial burden which I think requires evidence of real, concrete loss. Exhibit H. 31. As I explained to Ms. Aspey in my July 22 email, if DAI was able to

demonstrate the existence of a valid prima facie claim of tortious interference, then Xcentric may be willing to reconsider its position and respond to DAI’s second subpoena without objection. Despite this, Ms. Aspey never provided me with any information that addressed these issues or which resolved my concerns. 32. After my initial conversation with Ms. Aspey, I had another telephone During this

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conversation with DAI’s Connecticut counsel, Brett Boskiewicz.

conversation, Mr. Boskiewicz attempted to address my concern regarding Mobilisa’s third prong; i.e., why did DAI really need Xcentric’s response to the second subpoena when it had already identified numerous defendants in the first Connecticut proceeding? 33. Mr. Boskiewicz explained that although DAI had, in fact, identified several

defendants using the information provided by Xcentric, the first Connecticut proceeding was “stalled” due to the fact that the Court had not yet granted DAI’s Motion for Leave to Amend, and therefore DAI could not yet move forward with that case. 34. As I had explained in my email to Ms. Aspey, I responded to Mr.

Boskiewicz that this simply did not make any sense to me. As a frequent litigator in federal court, I am aware that pursuant to Fed. R. Civ. P. 15(a), a party is entitled to amend their pleading once as a matter of course without leave of court when (as here) no responsive pleadings have been filed. Because no responsive pleadings were filed in DAI’s first lawsuit, I asked Mr. Boskiewicz why he simply couldn’t amend his Complaint without leave of court, serve the newly-named defendants, and then perform discovery to 8
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determine if those defendants were also responsible for Report #716261. 35. Mr. Boskiewicz gave a vague response which I do not fully recall (it had

something to do with the assigned judge), but in any event it did not resolve my concerns. As such, I informed Mr. Boskiewicz that if DAI pursued discovery from the known defendants and asked them whether they were responsible for Report #716261, assuming they denied any involvement (and assuming that DAI could provide evidence sufficient to establish a valid prima facie tortious interference claim), this would likely affect Xcentric’s decision whether to continue objecting to DAI’s second subpoena. 36. Rather than addressing my concerns, I heard nothing further from either Mr.

Boskiewicz or Ms. Aspey. Thereafter, DAI brought the current Motion to Compel on August 24, 2011.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED ON: September 29, 2010.

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David S. Gingras

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

CERTIFICATE OF SERVICE

I hereby certify that on September 29, 2011 I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: C. Bradley Vynalek Krystal M. Aspey Quarels & Brady, LLP Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391 Attorney for Plaintiff

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And a courtesy copy of the foregoing delivered to: Honorable Frederick J. Martone U.S. District Judge

/s/David S. Gingras

DECLARATION OF DAVID S. GINGRAS CASE NO.: 2:11-MC-00096-FJM

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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David Gingras
From: Sent: To: Subject: Lisa, Attached is our response to your subpoena. Sorry about the file quality, but this is the way this information was supplied to me. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ David@RipoffReport.com David Gingras [david@ripoffreport.com] Tuesday, November 30, 2010 3:25 PM 'Vooys, Lisa' RE: Subpoena

Attachments: Signed Declaration of Justin Crossman - Directory Assistants.pdf

PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 248-3196 From: Vooys, Lisa [mailto:lvooys@RC.com] Sent: Tuesday, November 30, 2010 12:35 PM To: 'david@ripoffreport.com' Subject: RE: Subpoena David: Thank you very much for your response.  Please feel free to mail, email or fax the information to my attention when it is complete.  My contact information is below. I just sent a fax as well just to be sure I reached someone.  Please feel free to discard. Thank you, Lisa

Lisa M. Vooys, RP
Paralegal Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Direct 860-541-2727 | Fax 860-275-8299 lvooys@rc.com | www.rc.com Contact Card

Boston P ro v i de nc e H a rt f o rd N e w Lo n do n S t a m f o r d N e w Y o rk A l ba n y W h i t e P l ai n s S a r as ot a

9/27/2011

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From: David Gingras [mailto:david@ripoffreport.com] Sent: Tuesday, November 30, 2010 2:32 PM To: Vooys, Lisa Subject: FW: Subpoena Lisa, We are still processing your subpoena but will have a response to it by the end of the day. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ David@RipoffReport.com

PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 248-3196

From: Vooys, Lisa [mailto:lvooys@RC.com] Sent: Tuesday, November 30, 2010 12:21 PM To: 'Editor@ripoffreport.com'; 'legal@ripoffreport.com' Subject: Subpoena To Whom it May Concern: On November 8, 2010 we served a subpoena, via fax, in the matter of Directory Assistants, Inc. v. John Doe.  We were expecting compliance or on before today.  Can you please provide a status of that subpoena request or let me know who I should contact to obtain a status? Thank you!

Lisa M. Vooys, RP
Paralegal Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Direct 860-541-2727 | Fax 860-275-8299 lvooys@rc.com | www.rc.com Contact Card
Boston P ro v i de nc e H a rt f o rd N e w Lo n do n S t a m f o r d N e w Y o rk A l ba n y W h i t e P l ai n s S a r as ot a

9/27/2011

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Exhibit F

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Exhibit G

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DIRECTORY ASSISTANTS, INC. Plaintiff, v. JOHN DOE, Defendant. : : : : : : : : :

Civil Action No. 3:10cv548 (CFD)

MAY 10, 2011

MOTION FOR LEAVE TO AMEND COMPLAINT Directory Assistants, Inc. (“DAI”) hereby moves for leave to amend its complaint to name the defendants previously identified as “John Doe” in this lawsuit. Fed. R. Civ. P. 15 sets out the procedure to amend a pleading: A party may amend its pleading once as a matter of course within . . . 21 days after serving it, or . . . 21 days after service of a responsive pleading or 21 days after service of a motion [to dismiss], whichever is earlier. . . . In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. "The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith." AEP Energy Services Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699 (2d Cir. 2010). “An amendment should normally be permitted, and a refusal to grant leave without justification is inconsistent with the spirit of the Federal Rules.” Vigilant Ins. Co. v. Servco Oil, Inc., 2010 U.S. Dist. LEXIS 67490, *5 (D. Conn. Jul. 6, 2010) (citing Rachman Bag Co. v. Liberty Mut. Ins., 46 F.3d 230, 234 (2d Cir. 1995)).

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DAI has been the victim of numerous false and misleading statements that have been posted on various websites, including RipOffReport.com, InsiderPages.com, JudysBook.com, and others, that provide opportunities for members of the public to comment upon their experiences with businesses. DAI filed this lawsuit naming a John Doe defendant in an effort to identify the person or persons making the false statements on the internet. Through various subpoenas, DAI has identified several individual and corporate entities that made or participated in making the false statements on the internet. DAI now asks the Court for leave to amend its complaint to add those individuals and entities to this case. The proposed amended complaint is attached. WHEREFORE, Directory Assistants, Inc. respectfully requests that this Court grant this motion and grant it leave to amend its complaint, in the form attached, so that it may serve the newly-identified defendants and bring them before this Court. PLAINTIFF, DIRECTORY ASSISTANTS, INC.

By: /S/ Brett Boskiewicz Frank F. Coulom, Jr. (ct05230) Brett Boskiewicz (ct25632) Robinson & Cole LLP 280 Trumbull Street Hartford, Connecticut 06103 Tel: (860) 275-8200 Fax: (860) 275-8299 E-mail: fcoulom@rc.com bboskiewicz@rc.com

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CERTIFICATION

I hereby certify that the Defendant has not appeared and has not been served because his or her true identity remains unknown to Directory Assistants. I further certify I will provide a copy of this motion and the documents filed in support thereof to anyone who contacts me to request them.

/S/ Brett Boskiewicz Brett Boskiewicz

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DIRECTORY ASSISTANTS, INC. Plaintiff, v. LK JORDAN & ASSOCIATES; MATT OPEL; FRY BROS. HEATING & AIR CONDITIONING, CO.; WOOLBRIGHT SPINE & REHAB, INC., JORDAN AIGEN; JOHN DOE #1, and JOHN DOE #2. Defendants. : : : : : : : : : : : : : :

Civil Action No. 3:10cv548 (CFD)

JURY TRIAL DEMANDED

AMENDED COMPLAINT The plaintiff, Directory Assistants, Inc. (“Directory Assistants”), by its attorneys, alleges the following upon personal knowledge and, after due investigation, upon information and belief as to matters not within personal knowledge.

JURISDICTION AND VENUE 1. This Court has jurisdiction over the claims in this case pursuant to 28

U.S.C. § 1332 because the parties are citizens of different states and the matter in controversy exceeds $75,000 exclusive of interest and costs. 2. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c)

because Directory Assistants conducts business in this district, the activity about which Directory Assistants complains has taken place and is continuing to take place in this district, and Directory Assistants has suffered injury in this district.

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THE PARTIES 3. Directory Assistants is a corporation organized and existing under the

laws of the State of Connecticut with its principal place of business located at 500 Winding Brook Drive in Glastonbury, Connecticut. 4. The defendant LK Jordan & Associates (“LKJ”) is a corporation organized

under the laws of the State of Texas and has a principal place of business located at 321 Texan Trail, Suite 100, Corpus Christi, Texas 78411. 5. The defendant Matt Opel (“Opel”) is an individual and resident of the State

of Texas with a last known address of 3412 Denver Ave, Corpus Christi, Texas 78411. Opel was an employee of LKJ from September 2007 until April 2009. 6. The defendant Fry Bros. Heating & Air Conditioning Co. (“Fry Bros.”) is a

corporation organized under the laws of the State of Ohio and has a principal place of business located at 1909 Tremainsville Road, Toldeo, Ohio 43613. 7. The defendant Woolbright Spine & Rehab, Inc. (“Woolbright”) is a

corporation organized under the laws of the State of Florida and has a principal place of business located at 2309 W. Woolbright Road, Suite #5, Boynton Beach, Florida 33426. 8. The defendant Jordan Aigen (“Aigen”) is an individual and resident of the

State of Florida with a last know address of 720 Sapodilla Avenue, #404, West Palm Beach, Florida 33401. Aigen is an officer and/or director of the defendant Woolbright. 9. Upon information and belief, the defendant John Doe #1 is an individual

or corporation located in the State of Colorado.

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10.

Upon information and belief, the defendant John Doe #2 is an individual

or corporation located in the State of Colorado.

FACTUAL BACKGROUND I. Directory Assistants’ Business 11. Directory Assistants is an advertising consulting agency specializing in

helping businesses advertise more efficiently and economically in yellow page directories. 12. Directory Assistants is a customer-oriented business that counts among

its thousands of satisfied customers large and small businesses in numerous industries in virtually every state across the United States. 13. client. 14. Under its written consulting agreement, Directory Assistants agrees to Directory Assistants enters into a written consulting agreement with each

provide advice regarding a client’s yellow page directory advertising and educate advertisers how to reduce costs. 15. In exchange, the client agrees that, if the client saves money on its yellow

page directory advertising, the client will pay Directory Assistants a contingency fee calculated using a method that is chosen by the client at the time of entering into the contract. 16. Directory Assistants’ written consulting agreement also addresses the

circumstance where a client has pre-existing, independent plans to change its yellow page directory advertising. Under the written consulting agreement, if a client provides

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notice of any specific pre-existing plan to reduce costs prior to hiring Directory Assistants, then Directory Assistants is not entitled to any portion of those savings. The client’s pre-existing, independent savings plans must be disclosed prior to contracting and before Directory Assistants delivers its cost saving strategies. 17. Directory Assistants also provides other services relating to yellow page

directory advertising, including dealing directly with yellow page directory companies and their sales personnel on behalf of Directory Assistants’ clients.

II.

Defendant’s False And Misleading Postings A. 18. Defendants’ Posting on YellowPages.com AT&T is a yellow page publisher that provides advice to advertisers on

developing yellow page advertising strategies. 19. 20. As such, AT&T is a competitor of Directory Assistants, Inc. AT&T, through its website http://www.yellowpages.com

(“YellowPages.com”), provides businesses with profile pages including reviews of local businesses. 21. Upon information and belief, on or about January 26, 2009, the defendant

Opel and/or another employee of LKJ, using the alias “Steven55,” posted a message regarding Directory Assistants on YellowPages.com. 22. Upon information and belief, at the time of this posting, YellowPages.com

contained separate pages for each business listed in AT&T’s yellow pages directory. 23. At the time of this posting, YellowPages.com contained a page regarding

Directory Assistants (the “Directory Assistants Page on YellowPages.com”).

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24.

The Directory Assistants Page on YellowPages.com contained Directory

Assistant’s name, business address and telephone number. 25. The Directory Assistants Page on YellowPages.com also contained a

space titled “User Reviews” in which members of the public could post messages. 26. The public could access the Directory Assistants Page on

YellowPages.com by searching for “Directory Assistants” in the “Find” box at the top of the main page of YellowPages.com. 27. The public could also access the Directory Assistants Page on

YellowPages.com through internet search engines by searching for “Directory Assistants.” 28. Upon information and belief, prior to January 26, 2009, there were no

posted messages in the “User Reviews” section of the Directory Assistants Page on YellowPages.com. 29. On or about January 26, 2009, Opel and/or another employee of LKJ

posted the following message in the “User Reviews” section of the Directory Assistants Page on YellowPages.com: Directory Assistants Inc. Scam They promised to help save money with AT&T Yellow Pages. There advice consisted of reducing our ads on AT&T Yellow Pages (which we were planning on doing anyway). They said they could get the same ad cheaper (They couldn’t). If I promised to save you money on groceries and looked at your bill then said eat only bread you would save money too. There contract says no risk only pay us if you save money. We did not follow their advice but ended up spending more because we switched programs and went more online at YellowPages.com and less on print.

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We actually spent more money with AT&T but they took us to court because we reduced our print ad size. They have a 1 hour meeting and then 2 years later say you owe them thousands of dollars (50% of your savings even if you spend more in other areas but reduce the ones your currently in.) In my opinion this is a scam that could cost $40,000! B. 30. Defendant’s Posting on YP.com Upon information and belief, since about July 23, 2009, the web site

http://www.yp.com (“YP.com”) has been a “mirrored” site of YellowPages.com, meaning that information from one site is copied to the other site such that the two sites contains substantially identical content. 31. Like YellowPages.com, YP.com contained a page regarding Directory

Assistants (the “Directory Assistants Page on YP.com”). 32. The Directory Assistants Page on YP.com included Directory Assistants’

name, its business address, its local telephone number, and its toll-free telephone number. 33. The Directory Assistants Page on YP.com also included a space titled

“Reviews” where members of the public could post messages. 34. The public could access the Directory Assistants Page on YP.com by

searching for “Directory Assistants” in the “Business Name or Category” box at the top of the main page of YP.com. 35. The public could also access the Directory Assistants Page on YP.com

through internet search engines by searching for “Directory Assistants.” 36. Upon information and belief, on or about July 23 2009, the message

posted by Opel and/or another employee of LKJ using the alias “Steven55” on

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YellowPages.com quoted above in Paragraph 27 appeared verbatim in the “Reviews” section of the Directory Assistants Page on YP.com.

C. 37.

The First Posting on RipOffReport.com On or about February 11, 2009, Opel and/or another employee of LKJ

posted a message regarding Directory Assistants on the web site http://www.ripoffreport.com (“RipOffReport.com”). 38. Upon information and belief, prior to February 11, 2009, there were no

messages regarding Directory Assistants on RipOffReport.com. 39. Upon information and belief, in posting his message on or about

February 11, 2009, Defendant created a “Report,” which RipOffReport.com categorized as Report #423058 and which existed as a separate page on RipOffReport.com (the “Report 423058 Page”). 40. The public could access the Report 423058 Page by searching for

“Directory Assistants” in the “Search Company” box at the top of the main page of RipOffReport.com. 41. The public could also access the Report 423058 Page through internet

search engines by searching for “Directory Assistants.” 42. The Report 423058 Page contained Directory Assistant’s name, business

address and telephone number. 43. The Report 423058 Page included the following headline:

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Report: Directory Assistants Inc “Michael Cody” 44. The Report 423058 Page included a subheading reading as follows: Directory Assistants Inc. “Michael Cody” “A Yellowpage Consultant Scam Artist” They provide no real service at very high cost and court cases. Glastonbury Connecticut 45. Michael Cody is, and at all pertinent times has been, the Vice President of

Directory Assistants. 46. The Report 423058 Page then included this message that, upon

information and belief, was posted by Opel and/or another employee of LKJ (the “First Posting on RipOffReport.com”): Business to business scam that can cost $$$Thousands. They give no real advice and will not help negotiate with AT&T Reps like they said they would. They promised to help save money with AT&T Yellow Pages. There advice consisted of reducing our ads on AT&T Yellow Pages (which we were planning on doing anyway). They claimed they could get the same ad cheaper (They couldn’t). If I promised to save you money on groceries and looked at your bill then said eat only bread you would save money too. There contract says no risk only pay us if you save money. We did not follow their advice but ended up spending more because we switched programs and went more online at YellowPages.com and less on print. We actually spent more money with AT&T but they took us to court because we reduced our print ad size. They have a 1 hour meeting and then 2 years later say you owe them thousands of dollars (50% of your savings even if you spend more in other areas but reduce the ones your currently in.) In my opinion this is a scam that could cost $40,000! Steven Dallas, Texas U.S.A.

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D.

Directory Assistants’ Customers Report the First Posting on RipOffReport.com to Directory Assistants Upon information and belief, the First Posting on RipOffReport.com

47.

remained the only posting on RipOffReport.com regarding Directory Assistants for nearly ten months. 48. In or about September 2009, Directory Assistants’ prospective and

existing customers brought the First Posting on RipOffReport.com to Directory Assistants’ attention. 49. These customers reported that yellow page directory sales

representatives had warned them not to do business with Directory Assistants and referred them to the First Posting on RipOffReport.com as purported evidence of Directory Assistants’ business practices. 50. Yellow page directory sales representatives are typically paid

commissions based upon advertising sales, and they therefore have a financial interest in steering advertisers away from Directory Assistants’ services.

E. 51.

Directory Assistants’ Rebuttal to the First Posting on RipOffReport.com After learning about the First Posting on RipOffReport.com, Directory

Assistants posted a rebuttal through its General Manager, Carl Staggers. 52. On or about November 4, 2009, Directory Assistants, through Mr.

Staggers, posted the following message on the Report 423058 Page on RipOffReport.com:

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In this day and age of electronic communication it seems anyone can say anything without accountability. Many times information is out there that has no company name or specific person associated with it. I find this alarming from a standpoint that good and honest people who work at legitimate companies may be harmed. My name is Carl Staggers and I have been the General Manager of DAI since 2002. I left a 30 year career in a different industry to join this firm. The decision to join this company was based on a service I received that helped me tremendously and one that firmly I believe in. I am proud to say we have some of the hardest working and most honest people I have ever been associated with. We are not a company that just started up but have been working with clients for over 20 years. I am proud to say we will have our first two people retiring next year after over 17 years of service. I question anonymous and unverifiable postings, with the author hiding behind a cloak of secrecy. I am concerned that yellow page sales people have tried place and use these anonymous and false postings to compete unfairly against us. I know if I had a concern, I would contact the company. Or if I had a legitimate concern, I would have my contact information right there for everyone to see. That is what legitimate organizations such as the BBB require of its complainants. When someone does not do that, it renders the postings suspect. I ask only this. If anyone has a real concern or problem, please contact me @ cstaggers at yellowpagehelp dot com. We are here to help you. We have nothing to hide. If you make an unverifiable posting without attempting to contact us, I am going to assume you work for a yellow page publisher and are using a very unethical tactic to prevent clients from saving money. We have been saving customers’ money on their yellow pages for years. This would not be the first tactic used by yellow page publishers to try and keep advertisers from working with us in order to maintain higher yellow page spending and it will not likely be the last.

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53.

Although Mr. Staggers posted his e-mail address and offer to help

“anyone” with a “real concern or problem,” in the six months since his posting, Mr. Staggers has not received any complaints from Opel and/or any employee of LKJ or anyone else making similar allegations. 54. With respect to Mr. Staggers’ reference to the Better Business Bureau,

Directory Assistants has a grade of “A-“ from the Better Business Bureau and has received only one complaint through the Better Business Bureau in the past thirty-six months, which complaint Directory Assistants resolved to the customer’s satisfaction.

F. 55.

The Second Posting on RipOffReport.com After Directory Assistants posted its response to the First Posting on

RipOffReport.com through Mr. Staggers, on or about December 7, 2009, a second posting was made on RipOffReport.com. 56. The defendant Woolbright and/or the defendant Aigen created a new

“Report,” which RipOffReport.com categorized as Report #535061 and which the public would view on a separate page on RipOffReport.com that did not contain Mr. Staggers’s statement (the “Report 535061 Page”). 57. The public could access the Report 535061 Page by searching for

“Directory Assistants” in the “Search Company” box at the top of the main page of RipOffReport.com. 58. The public could also access the Report 535061 Page through internet

search engines by searching for “Directory Assistants.” 59. The Report 535061 Page contained Directory Assistant’s name, business

address and telephone number.

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60.

The Report 535061 Page included the following headline: Report: David Ford – Michael Cody – Carl Staggers – Alison Babel – Peggy Ahern

61.

The Report 535061 Page included a subheading reading as follows: David Ford – Michael Cody – Carl Staggers – Alison Babel – Peggy Ahern Directory Assistants Inc. – Directory Assistants Inc “Yellowpage Consultant Scam Artists” They provide no real service at very high cost and court cases. Glastonbury Connecticut Glastonbury, Connecticut

62.

David Ford is, and at all pertinent times has been, the President of

Directory Assistants. 63. Alison Babel and Peggy Ahern are, and at all pertinent times have been,

employees of Directory Assistants. 64. The Report 535061 Page then included this message that, upon

information and belief, was posted by Woolbright and/or Aigen (the “Second Posting on RipOffReport.com”): Business to business scam that can cost $$$Thousands. They give no real advice and will not help negotiate with AT&T Reps like they said they would. They promised to help save money with AT&T Yellow Pages. There advice consisted of reducing our ads on AT&T Yellow Pages. They claimed they could get the same ad cheaper (They couldn’t). If I promised to save you money on groceries and looked at your bill then said eat only bread you would save money too. There contract says no risk only pay us if you save money. We did not follow their advice but ended up spending more because we switched programs and went more online at YellowPages.com and less on print. We actually spent more money with AT&T but they took us to court because we felt their way of practice was unreasonable. They have a 1 hour meeting and then later say you owe them thousands of dollars (50% of your savings even if you spend more in other

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areas but reduce the ones your currently in.) In my opinion this is a scam that could cost $40,000! 65. Woolbright and/or Aigen made this Second Posting on RipOffReport.com

using the alias “Alison Babel,” which, as noted, is the name of one of Directory Assistants’ employees. 66. The real Alison Babel is not responsible for the Second Posting on

RipOffReport.com.

G. 67.

The Third Posting on RipOffReport.com On or about December 14, 2009, Woolbright and/or Aigen posted a

message on the Report 423058 Page of RipOffReport.com responding to Mr. Staggers’ posting of November 4, 2009 (the “Third Posting on RipOffReport.com”). 68. The Third Posting on RipOffReport.com stated: Carl, All of what you have said could be expected of you who works for a company like the one that you do. How could you not defend yourselves after such a blow like Steve wrote about Directory Assistants Inc. But how do you explain all the lawsuits that you have been involved in over the years in such a short amount of time? Some of these suits can be viewed online at [URL redacted by RipOffReport.com] and under party name type in “Directory Assistants Inc”. Seven suits in just the past 3 years that have all found themselves in the FEDERAL COURT system? Thanks but no thanks. Also, didn’t your company have to change it’s name from Yellow Page Consultans Inc to whatever you are calling yourselves these days? What happened there? Anyone can pay to be a part of the Better Business Bureau which will drastically decrease the chances of anyone filing a legitimate claim against you. But I am sure you know all of this already. Why didn’t Michael Cody, the person named in this report file a rebuttle? How could all this bad stuff happen to such a good group of people?

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Websites like these can be bad I guess but can also be good. Just like you say your company is good but this ripoff report website is bad. I guess it’s just a matter of opinion. I bet Steve from Texas wishes someone wrote on this website about Michael Cody and your company before he signed up. If what you say is true and you offer someone who advertises in the yellow pages an actual good service ,then you should have nothing to worry about and what should you care about what people say about a company as reputible as yours? But people should know the truth. 69. Like the Second Posting on RipOffReport.com, the Third Posting on

RipOffReport.com used the alias “Alison Babel.” 70. The real Alison Babel is not responsible for Defendant’s Third Posting on

RipOffReport.com.

H. 71.

The Fourth Posting on RipOffReport.com On or about February 22, 2009, John Doe #1 posted a message on the

Report 423058 Page of RipOffReport.com (the “Fourth Posting on RipOffReport.com”). 72. The Fourth Posting on RipOffReport.com included the following

“Consumer Comment”: NO risk . . . except the risk of losing your money to scammers 73. The Fourth Posting on RipOffReport.com read as follow: They promised to help save money with AT&T Yellow Pages. There advice consisted of reducing our ads on AT&T pages. They claimed they could get the same ad cheaper (They couldn’t). If I promised to save you money on groceries and looked at your bill then said eat only bread you would save money too. There contract says no risk only pay us if you save money. We did not follow their advice but ended up spending more because we switched programs and went more online at

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YellowPages.com and less on print. We actually spent more money with AT&T but they took us to court because we felt their way of practice was unreasonable. They have a 3 hour meeting and then later say you owe them thousands of dollars (50% of your savings even if you spend more in other areas but reduce the ones your currently in.) In my opinion this is a scam that could cost 40,000! I. 74. The Fifth Posting on RipOffReport.com Also on or about February 22, 2009, John Doe #2 posted a message on

the Report 535061 Page of RipOffReport.com (the “Fifth Posting on RipOffReport.com”). 75. Bond. 76. Comment”: Scam that adds up fast 77. The Fifth Posting on RipOffReport.com read: Big Business scam that can cost Thousands or even million. They give no genuine advice and will not help negotiate with phone company Reps like they said they would. Anyone who has been scammed should contact their local district attorney right away. J. 78. The First Posting on InsiderPages.com On or about February 2, 2010, Fry Bros. posted a message regarding The Fifth Posting on RipOffReport.com included the following “Consumer The Fifth Posting on RipOffReport.com used the alias “Bond…James

Directory Assistants on the web site http://www.insiderpages.com (“InsiderPages.com”). 79. Upon information and belief, prior to February 2, 2010, there were no

messages regarding Directory Assistants on InsiderPages.com.

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80.

Upon information and belief, in posting his message on or about

February 2, 2010 (the “First Posting on InsiderPages.com”), Fry Bros. created a separate page regarding Directory Assistants on InsiderPages.com (the “Directory Assistants Page on InsiderPages.com”). 81. The public could access the Directory Assistants Page on

InsiderPages.com by searching for “Directory Assistants” in the “Find” box at the top of the main page of InsiderPages.com. 82. The public could also access the Directory Assistants Page on

InsiderPages.com through internet search engines by searching for “Directory Assistants.” 83. The Directory Assistants Page on InsiderPages.com contained Directory

Assistants’ name, business address and telephone number. 84. The First Posting on InsiderPages.com was titled “Keep Away From

These Guys.” 85. The First Posting on InsiderPages.com read as follows: What a mistake using these guys. Funny how you’re not able to contact any of the other reviews. They have a history of rip offs on businesses. Keep away from them 86. “Daniel H.” 87. InsiderPages.com identified the First Posting on InsiderPages.com as Fry Bros. made his First Posting on InsiderPages.com using the alias

coming from a person using the email address “dan@access-ohio.net.” 88. Fry Bros.’s President is Daniel H. Rice.

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89.

Upon learning of the First Posting on InsiderPages.com, Directory

Assistants contacted InsiderPages.com. 90. InsiderPages.com removed the First Posting to InsiderPages.com

pursuant to its Terms and Conditions of Use.

K. 91.

The Second Posting on InsiderPages.com Shortly thereafter, Woolbright and Aigen posted a message regarding

Directory Assistants on InsiderPages.com (the “Second Posting on InsiderPages.com”). 92. The Second Posting on InsiderPages.com was titled “Directory Assistants

Inc is a Scam.” 93. The Second Posting on InsiderPages.com read as follows: Business to business scam that can cost $$$Thousands. They give no real advice and will not help negotiate with AT&T Reps like they said they would. They promised to help save money with AT&T Yellow Pages. There advice consisted of reducing our ads on AT&T Yellow Pages (which we were planning on doing anyway). They claimed they could get the same ad cheaper (They couldn’t). If I promised to save you money on groceries and looked at your bill then said eat only bread you would save money too. There contract says no risk only pay us if you save money. We did not follow their advice but ended up spending more because we switched programs and went more online at YellowPages.com and less on print. We actually spent more money with AT&T but they took us to court because we reduced our print ad size. They have a 1 hour meeting and then 2 years later say you owe them thousands of dollars (50% of your savings even if you spend more in other areas but reduce the ones your currently in.) In my opinion this is a scam that could cost $40,000!

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Check out Ripoff Report dot com for other posts about this company. And doesnt it seem odd that half of these positive reviews were done all on the same day and the others withing days of those and how all the reviews seem to have the same tone in their writing. Thats because the company owners are the ones that are probably writing these reveiws. Just one persons opinion. 94. Woolbright and/or Aigen made this post on InsiderPages.com using the

alias “David F.” 95. 96. As noted, David Ford is the President of Directory Assistants. The real David Ford is not responsible for Defendant’s post on

InsiderPages.com.

IV.

The Effects of Defendants’ Postings on Directory Assistants 97. The false and misleading statements that the defendants have published

about Directory Assistants on the web sites YellowPages.com, YP.com, RipOffReport.com and InsiderPages.com have adversely affected Directory Assistants’ business. 98. Directory Assistants’ existing customers have questioned Directory

Assistants about the defendants’ statements and have expressed reservations about continuing to do business with Directory Assistants based upon the defendants’ statements. 99. Directory Assistants’ prospective customers have similarly questioned

Directory Assistants about the defendants’ statements and have expressed reservations about entering into a business relationship with Directory Assistants based upon Defendant’s statements.

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100.

Based upon these communications from existing and prospective

customers, Directory Assistants alleges upon information and belief that it has lost business as a result of the defendants’ false and misleading statements. 101. Additionally, Directory Assistants’ officers and employees have spent time

and money addressing these inquiries, investigating the defendants’ statements, and communicating with YellowPages.com, YP.com, RipOffReport.com and InsiderPages.com. 102. Although YellowPages.com, YP.com, and InsiderPages.com have

removed the false and misleading statements that Defendant posted on those sites, Directory Assistants continues to suffer harm as a result of the false and misleading statements Defendant has posted on RipOffReport.com because RipOffReport.com refuses to remove Defendant’s postings. 103. Moreover, Directory Assistants is seeking injunctive relief to prevent

further harm given the defendants’ demonstrated intent to find new places to post false and misleading statements regarding Directory Assistants each time one of the postings is removed by a content provider or receives a response from Directory Assistants.

FIRST CLAIM FOR RELIEF Tortious Interference With Contractual Relationships 104. Directory Assistants hereby repeats and realleges each and every

allegation set forth in paragraphs 1 through 103 of this Complaint. 105. At all times pertinent to this Complaint, Directory Assistants has

maintained contractual relationships with numerous customers across the United States.

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106.

Upon information and belief, the defendants were aware of one or more of

these contractual relationships. 107. Upon information and belief, the defendants posted false and misleading

statements regarding Directory Assistants and its employees on the World Wide Web with the intent to interfere with one or more of Directory Assistants’ existing contractual relationships. 108. The defendants’ interference was tortious because it involved fraud,

misrepresentation, molestation and/or malice. 109. damages. 110. Upon information and belief, the defendants acted with reckless disregard The defendants’ conduct has caused Directory Assistants to suffer actual

to the rights of Directory Assistants and/or the defendants’ conduct was willful, wanton and/or malicious.

SECOND CLAIM FOR RELIEF Tortious Interference With Business Expectancies 111. Directory Assistants hereby repeats and realleges each and every

allegation set forth in paragraphs 1 through 110 of this Complaint. 112. At all times pertinent to this Complaint, Directory Assistants has

maintained non-contractual business relationships with numerous former customers and prospective customers across the United States. 113. At all times pertinent to this Complaint, Directory Assistants has had a

reasonable prospect of entering into future contractual or otherwise profitable business relationships with these entities.

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114.

Upon information and belief, the defendants were aware of one or more of

these non-contractual business relationships and/or the prospect that DAI will enter into future contractual profitable business relationships. 115. Upon information and belief, the defendants posted false and misleading

statements regarding Directory Assistants and its employees on the World Wide Web with the intent to interfere with one or more of Directory Assistants’ non-contractual business relationships and/or the prospect that DAI will enter into future contractual profitable business relationships. 116. The defendants’ interference was tortious because it involved fraud,

misrepresentation, and/or malice. 117. damages. 118. Upon information and belief, Defendant acted with reckless disregard to The defendants’ conduct has caused Directory Assistants to suffer actual

the rights of Directory Assistants and/or the defendants’ conduct was willful, wanton and/or malicious.

THIRD CLAIM FOR RELIEF Permanent Injunction 119. Directory Assistants hereby repeats and realleges each and every

allegation set forth in paragraphs 1 through 118 of this Complaint. 120. As a result of the actions and misrepresentations by the defendants as set

forth herein, Directory Assistants is entitled to permanent injunctive relief in the form of an order prohibiting the defendants from making further false or misleading statements regarding Directory Assistants and its officers and employees.

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121.

As a result of the actions and misrepresentations by the defendants as set

forth herein, Directory Assistants is entitled to permanent injunctive relief in the form of an order prohibiting the defendants from making further statements regarding Directory Assistants under an alias. 122. Directory Assistants is likely to suffer irreparable harm in the future without

this injunctive relief. 123. Directory Assistants has no adequate remedy at law to compensate for

the irreparable harm it is likely to suffer if permanent injunctive relief is not entered in this case.

PRAYER FOR RELIEF WHEREFORE, Directory Assistants prays that this Court enter judgment in its favor on each and every claim for relief set forth above and award it relief including, but not limited to, the following: 1. Monetary damages including, but not limited to, nominal damages,

general damages, special damages and actual damages; 2. 3. 4. 5. 6. Punitive damages pursuant to Connecticut common law; Permanent injunctive relief; Attorneys’ fees and litigation costs pursuant to Connecticut common law; Interest; and Such other and further relief, in equity and in law, as the Court, in its

discretion, may deem appropriate.

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DEMAND FOR JURY TRIAL Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands trial by jury in this action of all issues triable by jury in this matter.

PLAINTIFF, DIRECTORY ASSISTANTS, INC.

By: _______________________ Frank F. Coulom, Jr. (ct05230) Brett J. Boskiewicz (ct25632) Robinson & Cole LLP 280 Trumbull Street Hartford, Connecticut 06103 Tel: (860) 275-8200 Fax: (860) 275-8299 E-mail: fcoulom@rc.com bboskiewicz@rc.com

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Exhibit H

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Case 2:11-mc-00096-FJM Document 9-1 Filed 09/29/11 Page 64 of 66
David Gingras
From: Sent: To: Subject: David Gingras [david@ripoffreport.com] Friday, July 22, 2011 2:22 PM 'Aspey, Krystal M.' RE: Directory Assistants - Report #716261 [QBLLP-ACTIVE.FID33368219]

Attachments: Signed Declaration of Justin Crossman - Directory Assistants.pdf; DAI v. DOE - Motion for Leave to Amend.pdf Krystal, OK – luckily my tech person was able to respond to me quickly, so I have reviewed the author info for the new post and compared it with the info we provided to you guys last time. For ease of reference, attached is the info from the last subpoena….this is the stuff we already provided to your client. Obviously I can’t tell you exactly what the new information is, but here’s what I can say about it. First, we have a name, a city/state (no street address), two phone numbers, an email address, and an IP address. None of the information provided matches any of the info from the prior subpoena. In other words, the names are different, email address is different, IP address is different, etc. Second, the email address provided by the author is NOT a generic/free account like Gmail or Hotmail. The domain is from an ISP (like cox.net, etc., though can tell you Cox isn’t the actual company), and interestingly, I ran an IP WHOIS search to see if the ISP associated with the author’s IP address matched the domain of the author’s email address. The answer I found was – YES, the author’s IP address was issued by the same ISP as the author’s email address, so this is a strong indicia that we’re not dealing with someone who is trying to hide their identity. However, I generally like to be thorough, so I also ran a similar search to determine the ISP which was associated with the IP addresses we provided to your client in response to the first subpoena. Again, the results were interesting – many (though not all) of the IPs listed in the first production were issued by the same ISPs as the new author. What does that mean? Well, it suggests to me that it is possible that the author of the report which is the subject of the new subpoena might be one of the same people who wrote the reports that were the subject of the first subpoena. At the very least, it shows that the author(s) were using the same internet service provider. Of course, standing alone that’s not remotely sufficient in my mind to establish that we’re dealing with the same person. Obviously, in Arizona Cox is one of the largest ISPs, and so many people have Cox as their internet provider. This doesn’t mean there’s any connection between two reports that originated from a Cox-issued IP address. The same is true here. The ISP associated with the new author is a very large company which surely has millions of subscribers, and because that’s the only connection I can see, that means I’m not convinced that we’re dealing with the same person. Also, this causes me to be even more interested in the disposition of the original information we provided last time – if that information was NOT useful in locating the author, then I’m not sure why the new information would be any more helpful. Alternatively, if the info we previously provided DID lead to one or more real people, then in my mind it’s essential to know what steps your client has made to use available discovery tools in that prior litigation to ascertain whether the previously-identified authors were also responsible for the new report. On that note, I took the liberty of reviewing the docket from the original case that DAI filed in Connecticut, and I see that on May 10, 2011, your client filed a Motion for Leave to Amend which states that DAI has already identified several people/entities which it alleges were involved in making the posts. However, I’m confused by this pleading for several reasons. First, since no answer or responsive pleading was ever served in the case, I don’t understand why DAI simply couldn’t have amended its pleading as a matter of right to name the new defendants. I find this odd, but perhaps it’s not really that important. On the other hand, having reviewed the proposed FAC attached to the Motion for Leave, I was immediately concerned by one point – the only substantive claims presented are for tortious interference; there is no defamation claim. In my view, this is a massive red flag – if the posts are really false, then why not include a claim for defamation? In my experience from other cases, the answer is that the plaintiff may know that the posts are true, in which case a defamation claim would obviously fail, or the posts contain statements of opinion which are nonactionable. Whatever the case may be here, as explained in Mobilisa, in order to obtain the author’s information your client would need to establish a prime facie claim sufficient to withstand a hypothetical Motion for Summary Judgment. Because the only claims here are for tortious interference, my view is that in order to satisfy your client’s burden under Mobilisa, you would need to offer proof sufficient to raise a triable issue of fact as to each and every element of that claim. Although I am not familiar with Connecticut law in that area, I assume that like Arizona there must be a showing of actual interference/damages; i.e., there must be proof that an existing customer of DAI terminated its contract and that the post at issue was the actual and proximate cause of the loss. This is a pretty substantial burden which I think requires evidence of real, concrete loss. In sum, based on my review of this matter, I’m not currently willing to change our position. As stated before, in my view the most recent posting appears to be entirely the author’s opinion which is entitled to First Amendment protection. Furthermore, now that I am aware that your client is NOT pursing a defamation claim, but rather only a tortious interference claim, I would also object on the basis that I have seen no evidence that would support a finding that your client could survive summary judgment as to that claim. Finally, as I explained to you before, I believe that Mobilisa’s third prong would weigh against the release of the author information sought by the 2nd subpoena absent a showing that your client has exhausted the other discovery options available to it in the pending case in Connecticut. If you have any questions, please let me know. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ David@RipoffReport.com

PO BOX 310, Tempe, AZ 85280 Fax: (480) 248-3196

9/28/2011

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Case 2:11-mc-00096-FJM Document 9-1 Filed 09/29/11 Page 65 of 66

From: Aspey, Krystal M. [mailto:Krystal.Aspey@quarles.com] Sent: Friday, July 22, 2011 10:59 AM To: david@ripoffreport.com Subject: Directory Assistants - Report #716261 [QBLLP-ACTIVE.FID33368219]

David­ Thank you for taking the time to speak with me today. I look forward to hearing back from you regarding any potential relationship between the poster of Report #716261 and the poster of the reports previously subpoenaed by my client.

Krystal M. Aspey Attorney Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391
P: (602) 229-5507 F: (602) 417-2968 Krystal.Aspey@quarles.com

This electronic mail transmission and any attachments are confidential and may be privileged.

9/28/2011

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Case 2:11-mc-00096-FJM Document 9-1 Filed 09/29/11 Page 66 of 66
They should be read or retained only by the intended recipient. If you have received this transmission in error, please notify the sender immediately and delete the transmission from your system. In addition, in order to comply with Treasury Circular 230, we are required to inform you that unless we have specifically stated to the contrary in writing, any advice we provide in this email or any attachment concerning federal tax issues or submissions is not intended or written to be used, and cannot be used, to avoid federal tax penalties.

9/28/2011