Plaintiff Hypertouch, Inc. ("Hypertouch") brings this action seeking damages and injunctive relief against ValueClick, Inc. ("ValueClick"), E-Babylon, Inc. ("E-Babylon"), Hi-Speed Media, Inc. ("Hi- Speed"), VC E-Commerce Solutions, Inc. ("VCES"), WebClients, Inc. ("WebClients"), Think Partnership, Inc. a/k/a Kowabunga!, Inc. d/b/a PrimaryAds.com, Inc. ("PrimaryAds"), and Does 1-30 for violation of California Business & Professions Code §§ 17529.5 and 17200 et seq., and alleges as follows:

1. Hypertouch is a California-based Internet Service Provider, or "ISP."
2. As an ISP, Hypertouch receives and delivers thousands of e-mails each day to its individual and business subscribers, as well as offering a variety of other services, including the hosting of websites.
3. Hypertouch is an electronic mail service provider, that is, it is an intermediary in sending and receiving electronic mail and provides to end users of this electronic mail service the ability to send or receive electronic mail.
4. Hypertouch® is a registered federal trademark (#2328650 and #2367595) for computer services, first used in commerce in 1998.
5. Hypertouch owns and operates mail servers, web servers, and DNS (Domain Name Service) servers that are connected to and accessed over the Internet.
6. In addition to legitimate e-mail, Hypertouch's mail servers receive, each day, thousands of unwanted and unsolicited commercial e-mails. Such unsolicited commercial e-mail is known by various names, including "UCE" or "spam" and accounts for over 95% of messages sent to Hypertouch's mail servers.
7. Spam is the Internet analog to junkmail and telemarketing, but sent postage due or as if a collect call.
8. Congress, in the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the "CAN-SPAM" Act), moved to regulate unsolicited commercial e-mail. While Congress legalized spam, it demanded transparency and accountability: thus, federal law and the laws of 34 States, prohibit spam that contains false or misleading information.
9. In CAN-SPAM, Congress made comprehensive legislative findings on the burdens posed by spam (15 U.S.C. § 7701(a)):
   1. "The convenience and efficiency of electronic mail are threatened by the extremely rapid growth in the volume of unsolicited commercial electronic mail. Unsolicited commercial electronic mail is currently estimated to account for over half of all electronic mail traffic, up from an estimated 7 percent in 2001, and the volume continues to rise. Most of these messages are fraudulent or deceptive in one or more respects."
   2. "The receipt of unsolicited commercial electronic mail may result in costs to recipients who cannot refuse to accept such mail and who incur costs for the storage of such mail, or for the time spent accessing, reviewing, and discarding such mail, or for both."
   3. "The receipt of a large number of unwanted messages also decreases the convenience of electronic mail and creates a risk that wanted electronic mail messages, both commercial and noncommercial, will be lost, overlooked, or discarded amidst the larger volume of unwanted messages, thus reducing the reliability and usefulness of electronic mail to the recipient."
   4. "The growth in unsolicited commercial electronic mail imposes significant monetary costs on providers of Internet access services, businesses, and educational and nonprofit institutions that carry and receive such mail, as there is a finite volume of mail that such providers, businesses, and institutions can handle without further investment in infrastructure."
   5. "Many senders of unsolicited commercial electronic mail purposefully disguise the source of such mail."
   6. "Many senders of unsolicited commercial electronic mail purposefully include misleading information in the messages' subject lines in order to induce the recipients to view the messages."
10. Likewise, the California Legislature in enacting that state's anti-spam law, California Business & Professions Code §§ 17529 et seq., found that (§ 17529(a)-(m)):
    1. "Roughly 40 percent of all e-mail traffic in the United States is comprised of unsolicited commercial e-mail advertisements (hereafter spam) and industry experts predict that by the end of 2003 half of all e-mail traffic will be comprised of spam."
    2. "The increase in spam is not only an annoyance but is also an increasing drain on corporate budgets and possibly a threat to the continued usefulness of the most successful tool of the computer age."
    3. "Complaints from irate business and home-computer users regarding spam have skyrocketed, and polls have reported that 74 percent of respondents favor making mass spamming illegal and only 12 percent are opposed, and that 80 percent of respondents consider spam very annoying."
    4. "According to Ferris Research Inc., a San Francisco consulting group, spam will cost United States organizations more than ten billion dollars ($10,000,000,000) this year, including lost productivity and the additional equipment, software, and manpower needed to combat the problem. California is 12 percent of the United States population with an emphasis on technology business, and it is therefore estimated that spam costs California organizations well over 1.2 billion dollars ($1,200,000,000)."
    5. "Like junk faxes, spam imposes a cost on users, using up valuable storage space in e-mail inboxes, as well as costly computer band width, and on networks and the computer servers that power them, and discourages people from using e-mail."
    6. "Spam filters have not proven effective."
    7. "Like traditional paper "junk" mail, spam can be annoying and waste time, but it also causes many additional problems because it is easy and inexpensive to create, but difficult and costly to eliminate."
    8. "The "cost shifting" from deceptive spammers to Internet business and e-mail users has been likened to sending junk mail with postage due or making telemarketing calls to someone's pay-per-minute cellular phone."
    9. "Many spammers have become so adept at masking their tracks that they are rarely found, and are so technologically sophisticated that they can adjust their systems to counter special filters and other barriers against spam and can even electronically commandeer unprotected computers, turning them into spam-launching weapons of mass production."
    10. "There is a need to regulate the advertisers who use spam, as well as the actual spammers, because the actual spammers can be difficult to track down due to some return addresses that show up on the display as "unknown" and many others being obvious fakes and they are often located offshore."
    11. "The true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements."
    12. "In addition, spam is responsible for virus proliferation that can cause tremendous damage both to individual computers and to business systems."
    13. "Because of the above problems, it is necessary that spam be prohibited . . . ."
11. In an April 2003 report entitled, False Claims in Spam, "the Federal Trade Commission (FTC) found that 66 percent of all spam contains some kind of false, fraudulent, or misleading information, either in the e-mail's routing information, its subject line, or the body of its message." S. Rep. No. 108-102 ("CAN-SPAM Act of 2003"), at 2. The FTC found that "one-third of all spam contains a fraudulent return e-mail address that is included in the routing information (known as the 'header') of the e-mail message." Id. at 3. In the Senate Report, Congress also found that falsified headers "not only trick ISP's increasingly sophisticated filters," but "lure consumers into mistakenly opening messages from what appears to be people they know." Id. In addition, Congress found that senders use false or misleading subject lines to "trick the recipient into thinking that the e-mail sender has a personal or business relationship with the recipient." Id. at 4.

12. Plaintiff Hypertouch is a California corporation, with its principal place of business in Menlo Park, California. Hypertouch is developing next generation haptic peripherals. None of Hypertouch's peripherals that are in development have been released to market and so are currently protected trade secrets. Hypertouch also provides Internet services and consulting.
13. On information and belief, Defendant ValueClick is a Delaware corporation with its principal place of business at 30699 Russell Ranch Road, Westlake Village, CA 91361. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant ValueClick has conducted business in, and under the laws of, the State of California. ValueClick directs, formulates and controls the practices of, and shares common officership with the subsidiaries named herein.
14. On information and belief, Defendant E-Babylon is a Delaware corporation with its principal place of business at 30699 Russell Ranch Road, Westlake Village, CA 91361. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant E-Babylon has conducted business in, and under the laws of, the State of California. E-Babylon is a wholly-owned subsidiary of ValueClick.
15. On information and belief, Defendant Hi-Speed is a Delaware corporation with its principal place of business at 30699 Russell Ranch Road, Westlake Village, CA 91361. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant Hi-Speed has conducted business in, and under the laws of, the State of California. Hi-Speed is a wholly-owned subsidiary of ValueClick.
16. On information and belief, Defendant VCES is a Delaware corporation with its principal place of business at 30699 Russell Ranch Road, Westlake Village, CA 91361. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant VCES has conducted business in, and under the laws of, the State of California. VCES is a wholly-owned subsidiary of ValueClick.
17. On information and belief, Defendant WebClients is a Pennsylvania corporation, with its principal place of business at 2201 North Front Street, Harrisburg, PA 17110. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant WebClients has conducted business in, and under the laws of, the State of California. WebClients is a wholly-owned subsidiary of ValueClick. WebClients is believed to have more than a dozen wholly-owned subsidiaries through which WebClients pursues its Internet marketing activities.
18. On information and belief, Defendant PrimaryAds is a Nevada corporation with its principal place of business at 15550 Lightwave Drive, 3rd Floor, Clearwater, Florida 33760. Hypertouch is further informed and believes that, at all times mentioned herein, Defendant PrimaryAds has conducted business in, and under the laws of, the State of California and is an affiliate of ValueClick.
19. Does 1-30 are persons to be identified. Plaintiff is unaware of the true names and capacities of these defendants and therefore sues by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities once ascertained. Hypertouch is informed and believes and therefore alleges that each of the fictitiously-named defendants is responsible in some manner for the occurrences herein alleged, and that Hypertouch's injuries as herein alleged were proximately caused by such defendants. These fictitiously-named defendants, along with ValueClick, E-Babylon, Hi-Speed, VCES, WebClients and PrimaryAds, are herein referred to collectively as "Defendants."
20. Plaintiff is informed and believes that Defendants conspired to commit the acts described herein, or alternatively, aided and abetted others in the performance of the wrongful acts hereinafter alleged. All Defendants (including Does 1-30) authorized, participated in, acquiesced to, consented to and/or were the agents of another defendant in the acts alleged, and initiated, conspired, assisted, participated in, or otherwise encouraged the conduct alleged in furtherance of one or more conspiracies to initiate the e-mails. The transmissions of the e-mails identified herein were actions that each of the Defendants authorized, controlled, directed, or had the ability to authorize, control or direct, and were actions for which each of the Defendants is liable.

21. Hypertouch is an "electronic mail service provider" as defined in California Business & Professions Code § 17529.1(h). Hypertouch provides and enables access to the Internet for multiple users.
22. Hypertouch owns and operates interactive computer services that enable its customers to, among other things, access the Internet, access Hypertouch-hosted Internet services and exchange e-mail. Hypertouch owns and maintains computers and other equipment, including specialized computers or "servers" that process e-mail messages and otherwise support its e-mail services. Hypertouch maintains the e-mail-related equipment in the County of San Mateo, California.
23. Each of Hypertouch's servers provides one or more services that enable users to access content over the Internet. Hypertouch's clients could not access their e-mail without Hypertouch's services. No user anywhere on the Internet can send e-mail to Hypertouch's clients nor view the web pages of Hypertouch's clients without accessing the servers provided by Hypertouch and using the services those servers provide.
24. All e-mail messages relevant to this litigation were sent to e-mail addresses ordinarily accessed from computers located in this state.
25. Spam is by far Hypertouch's biggest customer service issue. Hypertouch has suffered injury and lost money from its high spam load that includes the Defendants' spam. This harm and cost includes:
    1. Decreased mail server and DNS server responsiveness;
    2. Multiple mail server and DNS server crashes;
    3. Mail server hardware and software replacements and upgrades to handle the increased e-mail load;
    4. Increased network bandwidth utilization;
    5. Supplemental server, software and business broadband line purchases to handle the increased e-mail load.
26. On information and belief, Defendants and/or their agents transmitted or caused the transmission of commercial e-mail advertisements from California and to e-mail addresses in California and other states.
27. On information and belief, Defendants and/or their agents arrange with other companies to have commercial e-mail advertisements sent to e-mail addresses both in California and other states.
28. On information and belief, Defendants and/or their agents continue to advertise in, send, direct, assist, encourage, conspire in, procure, initiate, participate in and/or facilitate the sending of tens or hundreds of thousands of e-mails at a time to e-mail addresses both in California and other states advertising various goods and services.
29. On information and belief, Defendants and/or their agents paid others based on the number of people who "clicked-through" the links in those commercial e-mail advertisements and thereby were directed to Defendants' or third-party advertiser's website and/or numbers of people who make a purchase, participate in a "incentive" program or otherwise become a customer.
30. On information and belief, Defendants and/or their agents tracked the results of the transmissions and all related sales and services, in part so that the bulk e-mailer whose e-mail lured the recipient to click through to the advertiser site could be paid accordingly. This tracking generated records that identify the participants in these activities, and the related times, dates, quantities and payment amounts.
31. On information and belief, Defendants and/or their agents advertised in commercial e-mail advertisements sent via intermediary and/or third-party computers and networks that were located in California to e-mail addresses both in California and other states.
32. Defendants and/or their agents advertised in and sent commercial e-mail advertisements to Hypertouch in California.
33. Defendants have engaged in unlawful, unfair or fraudulent business acts or practices and unfair, deceptive, untrue or misleading advertising and other acts prohibited by California law.
34. Between April 2, 2004 and the present, Hypertouch received over 45,000 of the Defendants' e-mails. (Attached as Exhibits 1-9 are true and correct sample copies of Defendants' e-mail received by Plaintiff.)
35. Plaintiff alleges that the e-mails received by Hypertouch contained or were accompanied by a third-party's domain name without the permission of the third party.
36. Plaintiff alleges that the e-mails received by Hypertouch contained or were accompanied by falsified, misrepresented and/or forged header information.
37. Plaintiff alleges that the e-mails received by Hypertouch had subject lines designed to and which would be likely to mislead a recipient regarding the contents or subject matter of the message.
38. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing false, misrepresented and/or forged header information. This includes, for example, that the e-mail arrived at the Hypertouch servers containing or accompanied by false information concerning the identities of the computers sending the e-mails. When an e-mail arrives, the transmitting computer sends a "HELO," which is a parameter typically showing the computer's name and/or IP address so as to identify to the recipient computer who is sending the e-mail and where it came from. In the case of these e-mails, the identities of the transmitting computers given in the HELO did not match the IP addresses of the transmitting computers. That is, the identities, provided by the Defendant and/or its agents, of the computers delivering mail to Plaintiff's mail servers do not match the IP addresses of the contacting computers, but these e-mails are recognizable as Defendants' because the content in the e-mails advertises the Defendant brand, such as "RewardsGateway," or because clicking on the link in the e-mail leads to a Defendant site, such as vcmedia.com/websponsors.com.
    1. For example in Exhibit 1, the sender used a computer at IP address 70.103.249.215 but that machine identified itself as "wkst-249-215.latescience.com" which is a false, non-existent domain name.
    2. In another example, in Exhibit 2 advertising WebClients' eSolutionsMedia.net, the sender used a computer at IP address 204.13.20.10, but that machine identified itself as "mailpool.jriad.info," which the bulk e-mailer's own DNS server confirmed resided at a completely different IP address. This false identification was designed to mask the identity of the sender of the e-mails and to make it more difficult, if not impossible, to find or contact the sender. Furthermore, the domain name jriad.info used by the sender was falsely and fraudulently registered. This e-mail was sent by the "Ralsky spam gang." At the time, Alan Ralsky was widely acknowledged as the most notorious spammer in the world, for years ranked in the number one position of the Spamhaus Project's ROKSO Top Ten List. The members of the Ralsky spam gang were indicted by the Department of Justice on January 3, 2008. Statement of the Department of Justice, Alan Ralsky, Ten Others, Indicted in International Illegal Spamming and Stock Fraud Scheme, available at http://www.usdoj.gov/criminal/cybercrime/ralskyIndict.htm. The 41-count indictment for "a wide-ranging international fraud scheme involving the illegal use of bulk commercial e-mailing, or 'spamming'" was announced in a statement from the Department of Justice which commented: "The flood of illegal spam continues to wreak havoc on the online marketplace and has become a global criminal enterprise. It clogs consumers' e-mail boxes with scams and unwanted messages and imposes significant costs on our society. This indictment reflects the commitment of the Department of Justice to prosecuting these spamming organizations wherever they may operate." The notorious behavior of the Ralsky gang was well known over the last five years to companies involved in the e-mail marketing field.
    3. In a third, fourth and fifth example, in Exhibits 3-5, the connecting machines' IP addresses were 72.11.147.51, 72.11.146.45 and 72.11.146.39, but those machines identified themselves falsely and used falsely and fraudulently-registered domains: endogenter.com, cgwcorps.com and celestialcom.com respectively. (See Exhibit 11.)
    4. In a sixth example, the sender used a computer at IP address 209.200.226.168, but that machine identified itself as "ds00343.lunarpages.com," which the bulk e-mailer's own DNS server for lunarpages.com confirmed was a non-existent subdomain of lunarpages.com, i.e., a false fully-qualified domain name (FQDN). This e-mail was sent to an e-mail address Plaintiff created to be used only for official court-related communications in other spam matters. This e-mail's "From:" line uses a Gmail.com email address, in violation of Google's Gmail Program Policies and Terms of Use whose terms prohibit its services from being used to "facilitate unsolicited commercial email ("spam")."
39. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing false, misrepresented and/or forged header information because the e-mails contained one or more fictitious, false and/or misleading names in the "From:" lines of the message headers. Defendants and/or their agents attempted to mislead recipients by using different fictitious people's names in the "From:" lines of the message headers.
40. For example, on March 11, 2005, Defendants and/or their agents sent over 800 electronic messages purporting to be from 800 different people, with each message's "From:" line containing a unique full first and last name. The false names were designed by Defendant and/or its agents to mislead the recipients of the messages and to bypass spam filters. In another example, on April 15, 2005, the Defendants and/or their agents sent 600 messages each with a From: line using a different quoted name consisting of 6-11 random characters, e.g., "xactly" or "nocaneel."
41. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing false, misrepresented and/or forged header information because the senders used false domain names in the sender addresses. Different e-mails sent with different domain names were designed by Defendants and/or their agents to mislead the recipients of the messages, mask the identity of the true sender of the e-mail, and to deceive recipients and spam filters into not blocking the messages. (See Exhibits 1-9).
42. The Federal Trade Commission in its December 2005 report to Congress, identified sending e-mails with many domain names and IP addresses as a deceptive means of avoiding ISPs' spam filters. See Effectiveness and Enforcement of the CAN-SPAM Act: A Federal Trade Commission Report to Congress, at A-3 & n.74 (December 2005). By using multiple domain names and IP addresses, Defendants were able to disguise the actual source of the e-mail, and to trick ISPs by "spreading out" the total volume of e-mail, thus reducing the volume sent from each domain name and IP address, and thus preventing spam filters which react to large volumes of e-mail from a single source.
43. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing false, misrepresented and/or forged header information because the e-mails included domain names which were registered to false, non-existent entities, as well as entities using false addresses and/or false telephone numbers. Over 200 illegal e-mails were sent by a single spammer under multiple domain names who registered hundreds of throw-away domain names and used fake names, addresses and/or proxy services in the registration record (a.k.a. the "Whois data") for the domain to conceal its identity. As an example, a few of this spammer's domains were registered using the false name and address of "Ted Hoffmann" at 4336 Degnan Blvd in Los Angeles, an address which in reality belongs to a restaurant called Euphoria 360 (formerly known as Augustine's Restaurant). Other domains by this spammer were registered with the address of a day care center in Alabama, a chiropractor's office in Phoenix, a restaurant in Philadelphia, and an office on the "fourth floor" of what turns out to be just a three story building in Miami. The U.S. Postal Service's website verifies the false nature of the dozens of addresses from all over the U.S. that were used to register this spammer's domains. See for example Exhibit 7, where the sender's throw-away domain name, dutchendor.org, was falsely and fraudulently registered via Domains by Proxy, Inc., whose terms prohibit its domains from being used in spam. In addition see for example Exhibit 9 where the spammer used a "From" line of "TheSimpsonsMovie" to send spam with an URL which redirected to WebClients.
44. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing a reply address that was not and/or could not be functional because the return address was connected with an invalid domain name or non-working account. (See, e.g., Exhibit 2, 8.)
45. Plaintiff alleges that it received commercial e-mail advertisements sent by Defendants and/or their agents containing false, misrepresented and/or forged information in the subject lines. This includes, for example, stating that the e-mail recipient had won a "Free" Gift. The subject lines were designed by Defendants and/or their agents to deceive or attempt to deceive the recipient, and were likely to mislead a recipient.
46. On May 16, 2007 ValueClick received a letter from the Federal Trade Commission ("FTC") stating that the FTC was conducting an inquiry to determine whether the ValueClick's lead generation activities violated either the Federal Trade Commission Act or the CAN-SPAM Act.
47. Shortly after the receipt of this letter, the Defendants began to register a number of their domain names through an anonymous "private registration" service. (See, e.g., Exhibit 12). While those web properties are advertised by Defendants in their spam (e.g., Exhibits 1, 3, 4), the Defendants' ownership and connection to the spam has been concealed. The list of Defendants' domains with hidden ownership has grown to include: Consumerpromotioncenter.com, Consumerrewardzone.com, Myfreegiftzone.com, Promotions-Gateway.com, and RewardsGateway.com. Subsequent to the private registration of these domains, ValueClick and the FTC signed a stipulated Settlement which stated that only "This [$2,900,000] Civil Penalty arises from the past practices of Hi-Speed Media, Inc., and not any other subsidiary of ValueClick."
48. However, Hypertouch is informed and believes that most of ValueClick's other subsidiaries also advertised via and benefit from illegal spam, as can be seen by the exhibits. Furthermore, the Defendants' pattern and practice of using illegal spam continues on through the present, despite the stipulated settlement which included injunctive relief.
49. Contacting ValueClick directly to request that it cease sending e-mail was ineffective (e.g., a complaint sent March 20, 2007 never engendered a reply.)
50. Although the Federal CAN-SPAM Act requires all commercial e-mail to have an opt-out mechanism, neither it, nor California law, make it a requirement for end users to opt-out. To the contrary, major ISPs such as Microsoft, Earthlink, AT&T, Yahoo, Comcast, Verizon, Charter, NetZero, and Qwest, warn against attempting to "opt out" of spam because providing one's e-mail address to spammers often subjects the recipient to more e-mail. Indeed, for example, some of the Ralsky spam referenced above was sent to e-mail addresses submitted to the opt-out links of other spam. (See Exhibit 10.)
51. These e-mails have harmed and continue to harm Hypertouch by interfering with Hypertouch's business operations, requiring the application of time, money and technological resources to handle the spam. Among the adverse affects to Hypertouch that high spam loads have caused are decreased server response and crashes, higher bandwidth utilization, forced upgrades of expensive hardware and software, frustration of subscribers, and loss of staff time. To the extent Defendants' thousands of e-mails consume disk space, drain the processing power of Hypertouch's computer equipment, and stress Hypertouch's network infrastructure, those resources are not available to serve subscribers or perform other tasks. Spam is Hypertouch's subscribers' number one complaint.

52. Plaintiff hereby repeats and re-alleges paragraphs 1 through 51 set forth above as if fully set forth herein.
53. Under California Business & Professions Code § 17529.5(a), it is "unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address" where that e-mail advertisement "contains or is accompanied by a third-party's domain name without the permission of the third party," "contains or is accompanied by falsified, misrepresented, or forged header information," or "has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message."
54. Defendants and/or their agents sent and advertised in commercial e-mail advertisements sent from California and received by Hypertouch in California at e-mail addresses normally accessed from computers in the state.
55. Between at least April 2, 2004 and the present, inclusive, ValueClick and/or its agents, including but not limited to the other Defendants herein, sent or caused to be sent at least 45,000 false and/or deceptive commercial e-mail advertisements to Plaintiff's servers in violation of California Business & Professions Code § 17529.5(a)(1), (2) and/or (3).
56. The e-mail advertisements received from Defendants and/or their agents contained or were accompanied by a third-party's domain name without the permission of the third party. For the reasons stated herein, these e-mails violated California Business & Professions Code § 17529.5(a)(1).
57. The e-mail advertisements received from Defendants and/or their agents contained and/or were accompanied by falsified, misrepresented, or forged header information. For the reasons stated herein, these e-mails violated California Business & Professions Code § 17529.5(a)(2).
58. The e-mail advertisements received from Defendants and/or their agents contained subject lines that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. For the reasons stated herein, these e-mails violated California Business & Professions Code § 17529.5(a)(3).
59. Defendants conspired with others to send the unlawful commercial e-mail advertisements.
60. Each e-mail is a separate violation.
61. As a proximate result of the unlawful actions of Defendants and/or their agents, Plaintiff suffered damages and is entitled to damages under California Business & Professions Code § 17529.5(b)(1)(B) of $1,000 per e-mail, Hypertouch's actual damages, and its attorneys' fees.

62. Plaintiff hereby repeats and re-alleges paragraphs 1 through 61 set forth above as if fully set forth herein.
63. Hypertouch is forced to pay monthly for a second additional broadband Internet connection in order to handle the increased spam load its servers are receiving, including the Defendants' spam, and as such may seek injunctive relief under California Business & Professions Code § 17204.
64. Defendants have engaged in unlawful, unfair or fraudulent business acts or practices and unfair, deceptive, untrue or misleading advertising and other acts prohibited by California Business & Professions Code §§ 17200 et seq.
65. Hypertouch asserts a claim against Defendants for injunctive relief and restitution under the California Business & Professions Code §§ 17200 et seq.

WHEREFORE, Hypertouch respectfully requests that this Court enter judgment against Defendants, including damages awarded jointly and severally in an amount to be proven but substantially in excess of this court's subject matter jurisdiction, exclusive of interest and costs:

1. Awarding Hypertouch damages, including statutory damages under California Business & Professions Code § 17529.5(b)(1)(B) of $1,000 per e-mail and Hypertouch's actual damages;
2. Awarding Hypertouch its attorneys' fees and costs as provided under California Business & Professions Code § 17529.5(b)(2);
3. Awarding Hypertouch restitution for Defendants' violation of California Business & Professions Code §§ 17200 et seq.;
4. Damages for civil conspiracy for the unlawful sending of commercial e-mail advertisements;
5. Enjoining temporarily and permanently Defendants, their officers, agents, representatives, servants, employees, attorneys, successors, assignees, and all others in active concert or participation with Defendants, from initiating, conspiring, or assisting in the sending of false or misleading commercial e-mail under California Business & Professions Code § 17203 and the inherent equitable powers of this court; and
6. Awarding such other relief as this Court considers just and proper.