real news project dba whowhatwhy v. dickert complaint.pdf
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8/9/2019 Real News Project dba WhoWhatWhy v. Dickert complaint.pdf
1/18
JUDGE RAM
CIVIL COVER
SHEET
J S J JSDW
REV. 4/5014
The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filing and service of
pleadings orother papers as required by law, except as provided bylocal rules ofcourt. This form, approved by the
JudicialConference ofthe UnitedStates inSeptember 1974, is required foruse ofthe ClerkofCourt forthe purpose of
initiating the civildo cket sheet.
PLAINTIFFS DEFENDANTS
REAL NEWS PROJECT,
INC.
d/b/aWHOWHATWHY.COM, a
not-for-profit
SANFORD DICKERT, RAWLINGS
ATLANTIC INCORPORATED
and JOH
corporation,
DOES
1-10.
ATTORN
O W N W . v
TTORNEYS
(FIRM
NAME^ ADDRESS,
AND
TELEPHONE
NUMBER
EATON & VAN WINKLE LLP
3
PARK
AVENIUE,
16th FLOOR
NEW
YORK, NY
10016
15
cJ
v
CAUSE OF
ACTION
CITE THE U.S . CIVIL STATUTE UNDER WHICH
YOU
ARE FILING
AND
WRITE ABRIEF STATEMENT OF CAUSE
(DO
NOT
CITE
JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Has
this action, case,
or proceeding, or one
essentially
the
same been
previously
filed in SDNY at
any time?
NrQ'esEuudge Previously
Assigned
If yes,
was this
case
Vol.
f j Invol. Dismissed. No
Yes
f j If
yes,
give date. &Case
No.
IS THIS N INTERN TION L RBITR TION
C SE No LJ YeS
\_\
J W 1 f\ ^ J
PLACEAN[x]INONE
BOX ONLY
TORTS
NATURE
OF
SUIT
PERSONALINJURY
FORFEITURE/PENALTY
[ ]367 HEALTHCARE/
PH RM CEUTIC L PERSONAL , , 625 DRUGRELATED
INJURY PRODUCT LI BILITY SEIZURE 0F PROPERTY
[ ]365 PERSONAL INJURY
PRODUCT LIABILITY
[ ]368ASBESTOS PERSONAL
INJURY PRODUCT
LIABILITY
PERSONALPROPERTY
[ ]370 OTHER FRAUD
[ ]371 TRUTH INLENDING
CONTRAC1
r
PERSONALINJURY
I 1110
INSURANCE
[ ]310 AIRPLANE
[
1120
MARINE
[ ]315 AIRPLANE PRODUCT
I 1130
MILLER
AC T
LIABILITY
[ ]140
NEGOTIABLE
[ ]320 ASSAULT, LIBEL
INSTRUMENT
SLANDER
[ ]150
RECOVERY OF
[ ]330 FEDERAL
OVERPAYMENT
EMPLOYERS
ENFORCEMENT
LIABILITY
OF JUDGMENT
[ ]340 MARINE
[ 1151
MEDICARE
AC T
[ ]345 MARINEPRODUCT
[ 1152
RECOVERY OF
LIABILITY
DEFAULTED
[ ]350 MOTOR VEHICLE
STUDENT LOANS
[ ]355 MOTOR VEHICLE
XCLVETERANS )
PRODUCT LIABILITY
I
1153
RECOVERY OF
[ ]360 OTHER PERSONAL
OVERPAYMENT
INJURY
OF VETERANS
[ 1362 PERSONAL INJURY-
BENEFITS
MED
MALPRACTICE
[]160
STOCKHOLDERS
SUITS
[J190
OTHER
CONTRACT
[ J195
CONTRACT
PRODUCT
ACTIONS
UNDER
STATUTES
LIABILITY
[ ]196 FRANCHISE
CIVIL
RIGHTS
[ ]440 OTHERCIVILRIGHTS
REAL
PROPERTY
Non-Prisoner)
[ ]441 VOTING
[ ]210
LAND
[ J442 EMPLOYMENT
CONDEMNATION
[ ]443 HOUSING/
[
]220
FORECLOSURE
ACCOMMODATIONS
[ ]230
RENT
LEASE
[ ]445 AMERICANSWITH
EJECTMENT
DISABILITIES -
[
]240
TORTS
TO LAND
EMPLOYMENT
[
1245
TORT PRODUCT
[ ]446 AMERICANS WITH
LIABILITY
DISABILITIES -OTHER
[
]290
ALL OTHER
REAL PROPERTY
[ ]448 EDUCATION
[ ]380 OTHER PERSONAL
PROPERTY DAMAGE
[ ]385 PROPERTY DAMAGE
PRODUCT LIABILITY
PRISONER PETITIONS
[ ]463 ALIEN DETAINEE
[ ]510 MOTIONS TO
VACATE SENTENCE
2 8 U SC 2255
[ ]530 HABEAS CORPUS
[ ]535 DEATH PENALTY
[ 1540 MANDAMUS OTHER
PRISONER CIVIL RIGHTS
[ ]550 CIVIL RIGHTS
[ ]555 PRISON CONDITION
156 0 CIVIL DETAINEE
21 USC 881
1690 OTHER
LABOR
[ ]710 FAIR LABOR
STANDARDS
AC T
[ ]720 LABOR/MGMT
RELATIONS
[ ]740 RAILWAY LABOR ACT
[ ] 751 FAMILYMEDICAL
LEAVE ACT
FMLA)
[ ]790 OTHER LABOR
LITIGATION
[ ]791 EMPLRET INC
SECURITY AC T
IMMIGRATION
[ ]462 NATURALIZATION
APPLICATION
[ I465 OTHER IMMIGR TION
ACTIONS
CONDITIONS OF CONFINEMENT
ACTIONSUNDER STATUTES
BANKRUPTCY
[ ]422 APPEAL
28 US C 15 8
[ ]423 WITHDRAWAL
28
US C
15 7
PROPERTY
RIGHTS
[ ]820 COPYRIGHTS
[ ] 830 PATENT
fc]840 TRADEMARK
SOCIAL SECURITY
[ )861 HIA 1395ff)
[ ]862 BLACK LUNG 923)
]863 DIWC/DIWW 405 g))
[ ]864 SSID TITLE XVI
[ ]865 RSI 405 g))
FEDERAL
TA X
SUITS
[ 1870
TAXES
.S. Plaintiffor
Defendant
[ ]871 IRS-THIRD PARTY
26
US C
7609
OTHER
STATUTES
f 1375 FALSE CLA IMS
J400 ST TE
REAPPORTIONM
[ ]410 ANTITRUST
[ ]430 BANKS BANKIN
[ ]450 COMMERCE
[ ]460 DEPORTATION
[ )470 RACKETEER INFL
ENCED
CORRU
ORGANIZATION
RICO)
[ ]480 CONSUMERCRE
[ ]490 CABLE/SATELLI
[ ]850 SECURITIES/
COMMODITIES/
EXCHANGE
]890 OTHER STATUTO
ACTIONS
1
891
AGRICULTURAL
]893 ENVIRONMENTA
MATTERS
]895 FREEDOM OF
INFORMATION A
] 896 ARBITRATION
] 899 ADMINISTRATIVE
PROCEDURE ACT/RE
APPEAL OF AGENCY
[ ]950 CONSTITUTION
STATE STATUTES
Checkifdemanded in complaint:
CHECK
IF
THIS
IS ACLASS
ACTION
n0 YOUCLAJM THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN
S.D.N.Y
UNDER
F R C P .
23 IF
SO,
STATE:
DEMAND
50,000.000
OTHER
INJUNCTION
JUDGE DOCKET NUMBER
Check
YES onlyifdemandedincomplaint
JURY DEMAND: EYES
LNO
NOTE: Youmust also submitat the timeof filing the Statement ofRelatedness form (Form
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8/9/2019 Real News Project dba WhoWhatWhy v. Dickert complaint.pdf
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PLACEANx INONEBOX ONLY ORIGIN
S 1 Original O 2 Removed from D 3 Remanded Q 4 Reinstated or D 5 Transferred from 6 Multidistrict 7Appeal to Di
Proceeding
State Court from Reopened (Specify District) Litigation Judge from
a.
all parties
represented
q^^
I | b. At leastone
party is
pr o
se .
PLACE AN x INONE BOXONLY BASIS OF
JURISDICTION
IFDIVERSITY, INDICATE
1
U.S.
PLAINTIFF
Q 2
U.S. DEFENDANT
3
FEDERAL
QUESTION
[x]4
DIVERSITY
CITIZENSHIP
BELOW
(U.S. NOT A PARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY
CASES
ONLY)
(Place an [X] in one box for Plaintiffand one box for Defendant)
Jf^F
DEF
CITIZEN
OF THIS STATE
f[>0i Jfc1
CITIZEN
OR SUBJECT
OF
A
\_y J - ^ FOREIGN COUNTRY
CITIZEN OF ANOTHER STATE []2\
[x]
2\
INCORPORATED or
PRINCIPAL PLACE []4[]4 FOREIGN NATION
\ J OF BUSINESS
IN
THIS STATE
PLAINTIFF(S) ADDRESS(ES) ANDCOUNTY(IES)
Real News Project
d/b/a WhoWhatWhy.com
P.O.
Box 1103
New York, N.Y.
102706-1103
Magistrate J
Judgment
PTF DEF
PTF
DE
[ ] 3 [ ] 3 INCORPORATEDand PRINCIPAL PLACE [ ] 5 [ ]
OF BUSINESS IN ANOTHER STATE
[ ] 6 [1 6
DEFENDANT(S) ADDRESS(ES) ANDCOUNTY(IES)
Sanford Dickert
2688
N.McMullen Booth
Road # 1311
Clearwater, FL 33761-4050
RawlingsAtlantic, Inc., 4613
N.
University Drive 440, Coral Springs, FL33067
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE
THAT,
ATTHIS
TIME,
I HAVE BEENUNABLE, WITH
REASONABLE
DILIGENCE, TO ASCERTAIN
RESILIENCE ADDRESSES
OF
THE FOLLOWING DEFENDANTS:
Check one: THIS ACTION SHOULD
BE
ASSIGNED TO: WHITE PLAINS \ \ MANHATTAN
(DONOTcheck either box ifthis a PRISONER PETITION/PRISONER
CIVIL
RIGHTS
COMPLAINT.)
DATE
\l
WJjfJk
SIGNATURE OF
ATTORNEY
OF RECORD
ADMITTED TO
PRACTICE
IN
THIS DISTRICT
^^QP
M
YE S
DATE ADMITTED Mo.April Yr. 1997
)
RECEIPT # Attorney Bar Code #
AR3530
Magistrate Judge is to be des ignated by the Clerk of the Court.
Magistrate Judge
Ruby J. Krajick, Clerk of Court by.
Deputy Clerk, DATED.
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
is so
Designated.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Real News Project, Inc. d/b/a WhoWhatWhy.com
Plaintiff,
-against-
Sanford Dickert, Rawlings Atlantic Incorporated
And Joh n
Does
1-10.
Defendants .
X
x
xf
*_Civjt^ W qj
-v.{
COMPL A I N T
(Jury Tria l
Demanded)
JUDGE RAMOS
C ;
- J
PlaintiffReal News Project, Inc., d/b/a WhoWhatWhy.com,
by
its attorneys EATON &
VAN WINKLE LLP, for its Complaint against Defendants, Sanford Dickert and Rawlings
Atlantic Incorporated, alleges as follows:
P A R T I E S
1. PlaintiffReal News Project, Inc. d/b/a WhoWhatWhy.com is a not-for-profit corporation,
incorporated under the laws
of
the State
of
New York, with its mailing address at P.O.
Box 1103
New
York, N.Y. 102706-1103. The purpose
of
Real News Project, Inc. is to
engage in investigative reporting and news gathering and publish its findings online in
order to inform and educate the public about the activities of
key
actors in American
society, including the government, for-profit-corporations and other powerful people and
entities. WhoWhatWhy is the operating unit
of
Real News Project, Inc., its web domain
is
www.WhoWhatWhy.com
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2. Defendant Sanford Dickert is and was at all times mentioned herein a natural person
residing in the State of Florida at 2688 N. McMullen Booth Road
1311
Clearwater, FL
33761-4050 and London, England.
3. Defendant Rawlings Atlantic Incorporated is a Florida corporation with its principal
business address at 4613 N. University Drive 440, Coral Springs, FL 33067.
4. John Does 1-10 are other individuals or entities who have participated in the
misappropriation of Plaintiffs property, trademark and web domain.
JURISDICTION
AND VENUE
5. The Plaintiff is a New York not-for-profit corporation with its principal office in the State
of
New York. The Defendants are, respectively, a natural person with a domicile in the
State
of
Florida. The amount in controversy exceeds $75,000, exclusive
of
interest and
costs. This Court has jurisdiction pursuant to 28 U.S.C. 1332.
6. This Court also has jurisdiction of the subjectmatter of this action pursuant to 28 U.S.C.
1331, 28 U.S.C. 1367(a) and 28 U.S.C. 1337(a) because Plaintiffs have claims
against Defendants under the Anticybersquatting Consumer Protection Act, 15 U.S.C.
1125(d), as well as additional claims against Defendants under federal law for Trademark
Infringement (Section 43[a]
of
the LanhamAct [15 U.S.C. 1125[d] ]) and Trademark
Dilution (Trademark Dilution Revision Act
of
2006 [H.R. 683]).
FACTS
PRELIMINARY STATEMENTURGENT INJUNCT IVE REL IEF
IS
NEEDED
TO
PREVENT CONT INUED DEFAMAT ION
7. A cyber thiefwith no contract and no equityhas maliciously and pretextually shut down
an invaluable news source. He has, for all intents and purposes, burned down the
equivalent
of
a public television station, or The New York Times, eliminating all its
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content and effectively locking out its contributors, viewers and relationships with other
news media. The urgency
of
recovering the website immediately is clear.
8. PlaintiffReal News Project, Inc. d/b/a WhoWhatWhy.com (alternatively referred to
hereafter as RNP, WhoWhatWhy, or WhoWhatWhy.com ) is a not-for-profit
corporation, formed under the laws
of
the State ofNew York on January 27, 2006. The
stated purpose
of
RNP is to engage in investigative reporting and news gathering and
publish its findings online in order to inform and educate the public about the activities
of
key actors in American society, including the government, for-profit-corporations and
other powerful people and entities. That purpose is carried out through RNP's website,
WhoWhatWhy.com which publishes news articles, many
of
which are subsequently re
printed or used as a basis
of
news stories
by
other online, print and broadcast media.
9. WhoWhatWhy.com seeks to uncover and report information about current events that is
unavailable from the mainstream media yet is crucial to a well informed citizenry in a
democracy. As a not-for-profit company, WhoWhatWhy relies heavily on donations
from donors composed of its reader-base. Accordingly, increased dissemination of its
website and articles is likely to increase WhoWhatWhy's exposure and, likewise, add to
it s
donor base.
10. WhoWhatWhy.com was recently poised for a drastic increase in exposure, and a likely
corresponding increase in its donor base, as a result
of
its investigative reporting on the
Boston Marathon Bombing trial. WhoWhatWhy.com has been a leading source
of
information regarding the Boston Marathon Bombing trial. It has broken major stories,
and its coverage has been picked up by the mainstream media, including the Boston
Globe.
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11. In the midst
of
this tremendous opportunity for WhoWhatWhy.com, Sanford Dickert, a
former volunteer for the website, who provided technical web-related services, has
misappropriated its domain name and hijacked the website. Mr. Dickert's seizure
of
the
website is pure extortion/conversion. He is demanding payment of funds that are not due,
and were never due as Mr. Dickert acted on
a
pro
bono
basis based
on
his understanding
and acknowledgment ofRNP's status as a not-for-profit corporation with very limited
funds. Even if he
had
a legit imate dispute as to whether
he
is owed money ~ and he does
notMr. Dickert's theft of Plaintiffs intellectual property is a criminal act.
12. As a result ofMr. Dickert's extortion, the website is no longer accessible to the public,
opportunities for growth have
been
lost and existing donors have withdrawn and/or
considering withdrawing their donations and commitments due to the unavailability of
content from the WhoWhatWhy.com.
13. WhoWhatWhy.com has been irreparably harmed. Such irreparable
harm
will continue,
and could be fatal to WhoWhatWhy.com, unless immediate injunctive relief is granted.
H I S TORY
OF RELAT ION SH IP BETWEEN
R NP A ND
MR . D IC K ER T
14. Sanford Dickert began performing website development work for Real New Project, Inc.,
a 501 (c) 3 not-for-profit company (d/b/a WhoWhatWhy) in 2011. Before agreeing to
perform website development work for RNP, Mr. Dickert acknowledged and agreed that
he was a volunteer but hoped that, in the event of a major increase in funding, he might
receive compensation for his
work
at
some time
in
the
future.
RNP's
founder, Russ
Baker, agreed that this was a desirable scenario, but made it c lear that he could make no
promises
of
payment until and unless the financial situation
of
the organization changed
dramatically. Accordingly, Mr. Baker advised Mr. Dickert that if guaranteed payment
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was a precondition, then WhoWhatWhy would not engage his services. As a result, Mr.
Dickert agreed to perform website development work for WhoWhatWhy on a volunteer
basis.
15. In May, 2011, Mr. Dickert, still stating that he understood that WhoWhatWhy might not
be able to
make
payment imminently, or even ever, unless financial circumstances
changed dramatically, submitted a pro forma invoice for $25,000, with payment to be
made to Defendant Rawlings Atlantic Incorporated, a company controlled by Mr.
Dickert. The invoice included a stipulation that WhoWhatWhy would only be expected
to pay at such time as it was capitalized at over $500,000. The invoice was also a
unilateral affair: there was no prior agreement, independent assessment, or justification
for the amount spent. Mr. Dickert 's own words in the cover letter to this invoice
reflected that actual payment terms were still a preliminary benchmark. As he said: I
do not
expect this
to be
paid
until after
you have
some major liquidity event -
whether that
be a
major
influx of funding
or you get acquired or what
have
you. It is
for my measuring stick.
16. Several years passed in which Mr. Dickert continued to sporadically, and unevenly,
provide tech services to WhoWhatWhy, typically during periods when he indicated that
he had free time, no looming deadlines, or no paying clients at the moment. During
these three years, the work waspro bono. There was no agreement to pay nor did Mr.
Dickert ever submit even a 'measuring stick' invoice to cover future consideration for
this work.
17. By 2013, WhoWhatWhy founder, Russ Baker, was becoming concerned that the quality
ofMr. Dickert's work and his availability were becoming erratic. Mr. Dickert was
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sometimes difficult, and he usually helped WhoWhatWhy only when it fit into his
schedule or, in some cases, when there was a dire emergency. He also did not seem to
know how to do a lot the things he was attempting, and it seemed that he was using his
experience at WhoWhatWhy to sharpen his skill set by attempting to do things that may
have
been
outside ofhis range of expertise.
18. For a time, WhoWhatWhy was comfortable with Mr. Dickert's shortcomings, as he was
working on a volunteer basis and not much more could be expected
of
him. However,
because Mr. Baker was growing concerned that Mr. Dickert's undependability could
impact the stability ofWhoWhatWhy, Mr. Baker began looking for a ChiefTechnology
Officer. Because of a lack
of
funding, any candidate for this position had to act on a
volunteer basis.
19. Mr. Baker's search for an appropriate
Chief
Technology Officer who would act as a
volunteer led him to Ron Brannon, a former CTO
of
Morgan Stanley. Mr. Baker asked
Mr. Dickert to work cooperatively with Mr. Brannon. However, Mr. Dickert quickly
dismissed Mr. Brannon as a suit who was not a real technology person. Mr. Baker
asked the two
of
them to work closely together, but as a result
of
Mr. Dickert's
patronizing attitude toward Mr. Brannon the situation did not work out and Mr. Brannon,
who was acting as a volunteer, reduced his role.
MR.
D ICKERT S REORGAN IZAT ION
OF
WHOWHATWHY S WEB DOMAIN
20. By early 2014, on the advice
of
Ron Brannon, and after numerous problems with
WhoWhatWhy's hosting company, landl.com, WhoWhatWhy decided to move its
hosting to servers at GoDaddy. The purpose
of
the transfer was solely to improve service
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levels such as uptime and website speed. Mr. Dickert volunteered to handle the
transition, although Mr. Brannon had also been willing to do so.
21. In a March 7,2014 e-mail to Mr. Baker concerning transfer
of
the hosting services, Mr.
Dickert stated I can
move
it to GoDaddy, if necessary-I already have a GoDaddy
account set up-just need a credit card. On his instructions, WhoWhatWhy paid
GoDaddy directly for the first year ofhosting services. It was
WhoWhatWhy's
natural
expectation that
by
paying for these services, the hosting account would be owned by
WhoWhatWhy.
22. After WhoWhatWhy paid for the required hosting services, Mr. Dickert retained his role
as the primary account administrator, which effectively gave
him
total control of the
account. As part
of
this role, essentially all e-mails from GoDaddy regarding the account
including URL transfer notices were sent only to Mr. Dickert's e-mail address. However,
e-mails that WhoWhatWhy did have accees to showed Russ
Baker's
name on the
a c c o u n t .
23. On or about April 25, 2014, in the midst ofongoing work to transfer the site to GoDaddy,
Mr. Dickert claimed to have discovered that landl did not have the abili ty to fine tune
the Domain Name Server ( DNS ) associated with WhoWhatWhy's internet domain,
requested an immediate transfer of the registrar
of
record from landl to GoDaddy.
Changing the Registrar to GoDaddy would allow Mr. Dickert to take advantage of
GoDaddy's more sophisticated DNS control capabilities but leave the ownership
of
the
URL with WhoWhatWhy. WhoWhatWhy staffapproved the transfer to GoDaddy,
believing they were simply changing the Registrar for technical purposes, per Mr.
Dickert's instructions. Indeed, a GoDaddy email to WhoWhatWhy with the instructions
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on how to expedite the transfer states GoDaddy received a request on April 26, 2014 for
us to become the new registrar of record . At no time was there a discussion regarding
change of ownership. WhoWhatWhy was simply trusting Mr. Dickert, who was their
website technical expert, in following his recommendations on what was required to
change website hosting companies. The transfer
of
the URL, to GoDaddy as registrar,
occurred as planned on
May
4, 2014.
24. By making himself account administrator, in his capacity as website technical adviser
to WhoWhatWhy, Mr. Dickert gave
himself
the ability to misappropriate
WhoWhatWhy's web domain. Although at the time, it was unimaginable to
WhoWhatWhy that Mr. Dickert would do so, in order to hijack WhoWhatWhy.com with
extortionate demands for payments which were not and never to this day due to Mr.
Dickert.
MR.
D I CKER T S R ENEWED
DEMAND S FOR PAYMENT AND
MISAPPROPRIAT ION OF
WHOWHATWHY . COM
25.0n May
30, 2014, Mr. Dickert submitted a draft contract to Mr.
Baker
to cover
both
past and future services. The charge listed in the contract for all past services was
$30,000. While the terms were not fully consistent with prior submissions by Mr.
Dickert, it made clear that the intent remained essentially the same: payment would not
occur until some unknown point in the future when WhoWhatWhy was strongly
capitalized. No terms or conditions relating to the use ofWhoWhatWhy.com as
collateral
were
ment ioned .
26.In June, 2014, WhoWhatWhy brought in a new executive, Steve Havas, whose
responsibilities included reviewing and overseeing tech operations. Mr. Havas quickly
identified that Mr. Dickert was communicating an expectation regarding compensation
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for past work that had
not
been agreed upon. Specifically, although the work from 2011
through 2013 was pro bono, some ofMr. Dickert's communications suggested that he
contended that he had a firm commitment for payment in the future - although he
acknowledged that no such payment would become due in the absence
of a
major
liquidity event. In addition, Mr. Havas also concluded that Mr. Dickert's estimate of the
future labor required to manage the website, as listed in the draft contract, was
significantly higher than what WhoWhatWhy should pay.
27. In addition, Mr. Dickert had recommended immediate technical changes to the
WhoWhatWhy website that Mr. Havas believed were expensive and unnecessary. These
disagreements as to how to proceed with technical aspects
of
the website and how to best
resolve the disagreement over compensation for past work ultimately led to a mutual
agreement to cease the ongoing relationship between Mr. Dickert and WhoWhatWhy.
28. In addition, Mr. Dickert had recommended immediate technical changes to the
WhoWhatWhy website that Mr. Havas believed were expensive and unnecessary. The verbal
and written communication about both this issue and how to best resolve the disagreement over
compensation for past work ultimately led to a mutual agreement to cease the ongoing
relationship.
29. Regarding compensation, Mr. Baker and Mr. Havas asked that there be some discussion of
appropriate compensation amounts prior to any formalized agreement. Mr. Dickert demurred and
further stated, in a phone call with Mr. Havas on July 16, 2014, that he intended to retain control
of the GoDaddy account and URL
until a contractwas signed
for the amount he maintained was
owed. This was the first time that Mr. Dickert had informed anyone representing
WhoWhatWhy.com ofhis intent to misappropriate WhoWhatWhy's own property to gain
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leverage in negotiations to obtain payment for the volunteer work that Mr. Dickert had done over
the years.
30.On July 16, 2014, WhoWhatWhy, anxious to resolve these issues and move forward with its
core activities, agreed to capitulate to Mr. Dickert's extortion and pay him the requested sum of
$35,000, on the condition that Mr. Dickert first returned control of the GoDaddy account and the
WhoWhatWhy domain.
31. Mr. Dickert did not respond until July 21, 2014, when he submitted a draft resolution
agreement to replace the invoices and adding in multiple new terms not discussed in the
invoices. The most important
of
these was a clause stating that he would not return control of
WhoWhatWhy.com to WhoWhatWhy until after his receipt
of
payment for $35,000.
32. Remarkably, and also on July 21, 2014, the registrant for the WhoWhatWhy.com
URL
was
changed to Mr. Dickert's
own
corporate entity, Rawlings Atlantic, and the registrar of record
was changed from GoDaddy to another entity, Joker.com. Mr. Dickert was able to initiate this
transfer without either the consent or knowledge ofWhoWhatWhy, by using his authority as the
account administrator. As the account administrator, all email notices from GoDaddy, including
notices associated with this domain transfer, went only to his email address. WhoWhatWhy
remained in the dark. No notice
of
the intent to change the registrant was ever received
by
WhoWhatWhy, and it never granted permission for the change.
33.After WhoWhatWhy refused to capitulate to further extortionate demands from Mr. Dickert,
negotiations reached an impasse.
On Sunday
January 11, 2015,
the
site
went down
from
noon
on
Sunday to approximately noon on
Monday
January 12, 2015, when it was restored. When
WhoWhatWhy's technical administrator, James Huang contacted Mr. Dickert about the outage,
he claimed to know nothing about it.
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34.However, the site went down again on the evening ofMonday, January 12, 2015. This time,
the hacker was unambiguously Mr. Dickert. Since Monday night, January 12, 2015, he has
blocked all access to the site for WhoWhatWhy, and for the public, and defaced it with a shifting
series
of
defamatory statements about Mr. Baker and WhoWhatWhy, and demands for payment.
These demands for payment and accusations
of
non-payment make it clear that Mr. Dickert has
wrongfully seized control ofwww.WhoWhatWhy.com .
35. The damage to WhoWhatWhy, a nonprofit news organization, has been incalculable and
severe. The website has lost virtually all of its traffic and is unable to reach its audience and the
substantial numbers
of
new readers that have been coming to the site recently.
36. Mr. Dickert has timed his act ofCyber-Theft at the very moment when WhoWhatWhy.com
was surging. The WhoWhatWhy news team are the leaders in coverage and investigation
of
the
Boston Marathon Bombing, and are in the midst ofhighly admired trial reportage. In fact,
Boston Magazine's current issue features a long profile
of
Mr. Baker and ofWhoWhatWhy.
Boston.com, the website of the Boston Globe, recently wrote about WhoWhatWhy.
WhoWhatWhy's traffic had been taking offuntil the website was hijacked by Mr. Dickert.
Although Saturdays usually have light traffic, the Saturday before the website was shut us down
was, upon information and belief, the heaviest traffic the website ever had for a Saturday, and
was one of its
best
days overall.
37. The false and defamatory statements which Mr. Dickert has now posted BALANCE
OVERDUE on the website have caused further damage. Statements that Mr. Baker does not pay
his bills are blatantly false. Meanwhile, WhoWhatWhy.com is receiving emails from readers
who find Mr. Baker's personal email address onlineasking if it is true that WHOWHATWHY
doesnot treat people fairly.
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38. All
of
this is highly destructive for WhoWhatWhy. Although it has activated another site
it owns, www.whowhatwhy.org , it will take months for to educate people that it exists. The new
site is getting virtually no traffic. Search engine results almost exclusively point to WWW.com,
more than 100 sites link into the .com, and there are hundreds of articles out there
with the
.com url.
39. In short, the only people who will know
how
to reach WhoWhatWhy are the relatively small
number who subscribe to its newslettersand who read
them
carefully. Traffic at the .org is a
fraction
of
what it was at the .com. This has cause donors to withdraw and/or are considering
withdrawal of their commitments to the enterprise.
40. Mr. Dickert continues to manipulate the website. Earlier today, January 16, 2015, he
changed the website to give access to the face
of
the website to visitors
if
they click-off the
defamatory message falsely stating that there are past due payments. Once the website is
accessed it contains only the face page
of
outdated content. The content is not only outdated,
it is actually unavailable, as there is no active url and the articles cannot
be
accessed. This most
recent change to the website by Mr. Dickert, causes further harm to WhoWhatWhy as it creates
the false impression that the website is outdated and non-functional due to pending payment
problems.
41. The situation is extremely urgent. WhoWhatWhy needs its domain back, and it needs control
of
its site back. Not only is WhoWhatWhy.com losing web traffic, it is losing valuable donors
and the opportunity to increase its exposure and influence through the impact
of
its
groundbreaking coverage
of
the Boston Marathon Bombing trial.
If
immediate injunctive relief
is not granted, WhoWhatWhy.commay be entirely destroyed.
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C O U N T O N E F O R P ER M A N E NT IN JU N CT IV E RELIEF
DEFAMATION/CONVERSION
42. Plaintiffrepeats and realleges the allegations set forth in paragraphs 1-41 as if fully set
fo rth herein .
43. Injunctive relief enjoining and restraining Defendant, Dickert, from interfering with
Plaintiffs control and ownership of the website www.WhoWhatWhy,com is necessary to
prevent Defendant's wrongful interference with the charitable purpose
of
Plaintiff, a Not-
For-Profit corporation registered in
New
York.
44. The wrongful interference with the activities
of
a Not-For-Profit corporation cannot be
compensated by mere money damages. Accordingly, a permanent injunction is
warranted and necessary.
COUNT TWO FOR
VIOLATION
OF THE ANTICYBERSQUATTING CONSUMER
PROTECTION ACT. 15 U.S.C. 1125(d)
45. Plaintiffrepeats and realleges the allegations set forth in paragraphs 1-44 as
if
fully set forth
herein.
46. Defendants have engaged in violations
of
the Anticybersquatting Consumer Protection Act, 15
U.S.C. 1125(d) through their misappropriation and theft of
Plaintiff
s website and web domain
name and their misuse and misappropriation
of
Plaintiffs trademarks.
COUNT THREE
FOR
INTERFERENCE WITH
CONTRACT AND
INTERFERENCE WITH
PROSPECTIVE BUSINESS
RELATIONS
47. Plaintiff repeats and realleges the allegations set forth in paragraphs 1-46 as
if
fully set forth
herein.
48. Defendants' malicious and criminal activities have interfered with and prevented Plaintiff from
conducting its business.
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49. Defendants have caused donors
of
Plaintiff, a non-profit corporation, to terminate and/or
consider termination of their obligations and commitments to contribute money to Plaintiffby
destroying Plaintiffs business and removing its website.
50. Defendants have prevented and interfered with
Plaintiffs
acquisition
of
new donors by taking
down
Plaintiffs
website at a t ime when
Plaintiffs
business act ivi ties would otherwise be
thriving as a result
of
its groundbreaking coverage
of
the Boston Marathon Bomber Trial.
COUNT
FOUR
FOR DEFAMATION/LIBEL
51. Plaintiff repeats and realleges the allegations set forth in paragraphs 1-50 as
if
fully set
fo rth here in.
52. Defendants have engaged in the false and malicious publication ofdefamatory statements
concerning Plaintiff and its founder, Russ Baker.
53. These false and malicious statements were made with malice and published on Plaintiffs
website after Defendants misappropriated Plaintiffs domain
name
and blocked its access
to
i ts
own
websi te .
54. Defendants' malice is comprised of ill will, scienter and deliberate falsification
concerning Plaintiffs business dealings.
55. Defendants' statements were designed to require and induce others to refrain from
dealing with Plaintiff and to otherwise deprive Plaintiffofprospective economic
advantage.
56. Defendants' statements have had their desired effect, and have, in fact, induced others to
refrain from dealing with Plaintiff and have otherwise deprived Plaintiffofprospective
economic advantage.
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COUNT
FIVE
FOR TRADEMARK INFRINGEMENT
57. Plaintiff repeats and realleges the allegations set forth in paragraphs 1-56as if fully set
fo rth here in.
58. Plaintiffhas a legally valid and protectable trademark, WHOWHATWHY.
59 .
Plaintiff
owns
th e
trademark.
60. Defendants' use and misuse of the trademark by misappropriatingPlaintiffs website,
blockingcontent on Plaintiffs website and publishing defamatory statements on
Plaintiffs website constitutes trademark infringement/destruction
of
its trademark in
violation
of
15U.S.C. 1125(a)and Defendants' misappropriation
of
Plaintiffs
trademark has resulted in a likelihoodof confusion as to the source and ownership of the
t rademark.
WHEREFORE, Plaintiff demands judgment against Defendants,jointly and severally, as
follows:
A.Injunctive relief, restraining Defendants from interfering with Plaint iffs trademark,
web domain, website and property and compelling Defendants to transfer and return control
of
the subject GoDaddy account and the WhoWhatWhy domain to Plaintiff;
B. Compensatory damages in an amount to be determined at trial but which is in no event
less than $5,000,000;
C. Punitive damages in an amount to be determined at trial but which is in no event less
than
$50,000,000;
D. Plaintiffs costsand disbursements incurredlitigatingthis action, includingreasonable
legal fees,
together with suchotherand further reliefas the Courtmaydeemjust and
proper.
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JURY DEMAND
Pursuant to Rule 38 of the Federal Rules
of
Civil Procedure, Plaintiffdemands a trial by
jury in this action of all issues so triable.
Dated: New
York, NewYork
January
16,
2015
EATON &VAN
WINKLE
LLP
B Y :
MaXim HN^aldbaum
(MW4615)
Michael
A.
Lacher. (ML8229)
Adam
J.
Rader (AR3530)
3Park Avenue,
16th Floor
New York, New York 10016
(212) 779-9910
Attorneys for Plaintiff
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