united states district court for the northern...
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22256722.8 1
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPRINT NEXTEL CORPORATION and SPRINT COMMUNICATIONS COMPANY, L.P.,
Plaintiffs, v.
ACE WHOLESALE, INC., JASON FLOAREA, ERIC MANDREGER, DOMINICK LANORE, TONY ARCHIE, JOSE GENEL, BARNEY GUNN, COPATRADE, INC., and MOSHE ALEZRA
Defendants. ______________________________________
§§§§§ CASE NO.: ____________ §§ JURY TRIAL DEMANDED§§§§§§§
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
Plaintiffs, Sprint Nextel Corporation and Sprint Communications Company,
L.P. (collectively “Sprint” or “Plaintiffs”), hereby file this Complaint for Damages
and Injunctive Relief and sue Defendants, Ace Wholesale, Inc., Jason Floarea, Eric
Mandreger, Dominick LaNore, Tony Archie, Jose Genel, Barney Gunn,
CopaTrade, Inc., and Moshe Alezra (collectively, “Defendants”), and state as
follows:
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INTRODUCTION AND BACKGROUND
1. This is an action for damages and injunctive relief arising out of
Defendants’ participation in a conspiracy to willfully infringe Sprint’s rights
related to its specially-manufactured wireless telephones designed for use on
Sprint’s wireless service, including specifically, but not limited to, the iPhone 4
and iPhone 4S (collectively, “Sprint Phones” or “Phones”).
2. As set forth in greater detail below, Defendants are engaged in, and
knowingly facilitate and encourage others to engage in, unlawful business practices
involving the unauthorized and deceptive bulk purchase and resale overseas of
Sprint Phones, theft of Sprint’s subsidy investment in the Phones, unlawful access
of Sprint’s protected computer systems and wireless network, trafficking of
Sprint’s protected and confidential computer passwords, and willfully infringing
Sprint’s trademarks (collectively, the “Bulk Handset Trafficking Scheme” or the
“Scheme”).
3. Defendants perpetrate their Bulk Handset Trafficking Scheme by
acquiring large quantities of Sprint Phones from Sprint and/or Sprint authorized
dealers, and by soliciting others to purchase Sprint Phones in large quantities for
the benefit of Defendants. Defendants acquire the Sprint Phones with the
knowledge and intent that the Phones will not be used on the Sprint wireless
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network (as required by the Sprint contracts). Instead, the Phones are trafficked
and the vast majority are ultimately resold as new overseas where the Phones are
not subsidized by wireless carriers (as they are in the United States) and where the
Phones are not as readily available.
4. Defendants acquire the Sprint Phones with the knowledge and intent
that the Phones will be computer-hacked by Defendants and their co-conspirators.
The purpose of this hacking, known as “unlocking,” is to disable software installed
in the Phones by the manufacturers at the request and expense of Sprint, which
enables the activation of the Sprint Phones exclusively on Sprint’s wireless system.
The purpose of the software is to allow Sprint to offer the Phones at a discount to
the consumer while protecting Sprint’s subsidy investment in the Phones. The
illegally unlocked Phones are trafficked and resold as new by Defendants, at a
premium, under the Sprint trademarks – in violation of federal trademark laws
under 15 U.S.C. § 1125.
5. In addition to violating the terms of Sprint’s contracts and constituting
various torts, Defendants’ Bulk Handset Trafficking Scheme is a classic example
of unfair competition under Georgia law because the scheme is predicated on the
unauthorized exploitation of Sprint’s subsidy investment in its Phones and the
Sprint trademark and goodwill. By reselling the Phones in foreign countries where
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wireless providers do not subsidize mobile phones, Defendants are able to sell the
Phones at below-market prices (which are substantially higher than in the United
States) and keep the Sprint subsidy for themselves. Defendants exploit Sprint’s
subsidy investment in the Phones without incurring any of the costs themselves,
thereby unjustly enriching themselves at Sprint’s expense.
6. The Bulk Handset Trafficking Scheme also violates several provisions
of the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Defendants and
their co-conspirators make misrepresentations in order to induce Sprint to activate
Phones purchased by the Defendants on Sprint’s wireless telecommunications
network, thereby providing Defendants unauthorized access to Sprint’s protected
computer networks. And, by bulk purchasing and selling Sprint Phones,
Defendants are illegally: (a) trafficking in the confidential codes contained in the
Phones that allow access to Sprint’s protected computer networks, and (b)
facilitating the improper access of Sprint’s telecommunications network.
7. In an effort to prevent the Bulk Handset Trafficking Scheme, among
other things, Sprint and its authorized dealers have implemented policies limiting
the number of Sprint Phones an individual may purchase on a daily basis.
Defendants and their co-conspirators, through their Bulk Handset Trafficking
Scheme, have taken steps to circumvent these policies by, among other things,
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employing large numbers of “Runners” to make multiple purchases of Sprint
Phones on behalf of Defendants.
8. Defendants’ conduct, together with that of currently unknown civil
and criminal co-conspirators, is causing Sprint to suffer millions of dollars in
losses and is causing immediate and irreparable injury to Sprint.
9. All conditions precedent to filing this action have been performed,
waived or excused.
10. Sprint has retained the undersigned attorneys to represent it in this
action and has agreed to pay its attorneys a reasonable fee for their services.
PARTIES, JURISDICTION, AND VENUE
11. This is an action for damages in excess of $75,000.00, exclusive of
interest, costs, and attorneys’ fees.
12. Sprint Nextel Corporation is a Kansas corporation, with its principal
place of business in Overland Park, Kansas.
13. Sprint Communications Company, L.P. is a Delaware limited
partnership, with its principal place of business in Overland Park, Kansas.
14. Defendant Ace Wholesale, Inc. is a Michigan corporation with its
principal place of business in Troy, Michigan.
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15. Defendant Jason Floarea is an individual residing in Michigan, is the
principal of Ace Wholesale, Inc., and facilitated the conduct of Ace Wholesale,
Inc. described herein.
16. Defendant Eric Mandreger is an individual residing in Michigan, is
the sales manager for Ace Wholesale, Inc.’s operation in Taylor, Michigan, and
facilitated certain conduct of Ace Wholesale, Inc. described herein.
17. Defendant Dominick LaNore is an individual residing in Michigan, is
the office manager for Ace Wholesale, Inc.’s operation in Taylor, Michigan, and
facilitated certain conduct of Ace Wholesale, Inc. described herein.
18. Defendant Tony Archie is an individual residing in Georgia, is the
office manager for Ace Wholesale, Inc.’s operation in Atlanta, Georgia, and
facilitated certain conduct of Ace Wholesale, Inc. described herein.
19. Defendant Jose Genel is an individual residing in Illinois, is the office
manager for Ace Wholesale, Inc.’s operation in Chicago, Illinois, and facilitated
certain conduct of Ace Wholesale, Inc. described herein.
20. Defendant Barney (“Spook”) Gunn is an individual residing in
Georgia, who serves as a Runner for Ace Wholesale, Inc.’s operation in Atlanta,
Georgia, and facilitated certain conduct of Ace Wholesale, Inc. described herein.
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21. Defendant CopaTrade, Inc. is a Georgia corporation with its principal
place of business in Atlanta, Georgia.
22. Defendant Moshe (“John”) Alezra is an individual residing in
Georgia, is the chief executive officer and registered agent of CopaTrade, Inc., and
facilitated the conduct of CopaTrade, Inc. described herein.
23. Jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1331,
1332, and 1338 because Sprint’s claims for violation of the United States
Trademark Act, Title 15 of the United States Code and the Computer Fraud and
Abuse Act, 18 U.S.C. § 1030, et seq. arise under federal law and because diversity
exists between the parties and the amount in controversy exceeds $75,000
exclusive of costs, fees, and interest. This Court has supplemental jurisdiction
pursuant to 28 U.S.C. § 1367 over Sprint’s state law claims because those claims
are so related to the federal claims that they form part of the same case or
controversy.
24. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the
Defendants either reside in this district or a substantial part of the events or
omissions giving rise to the claims occurred in this judicial district.
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SPRINT’S BUSINESS MODEL
25. Sprint Nextel Corporation and its affiliates offer a comprehensive
range of wireless and wireline communications services, bringing the freedom of
mobility to consumers, businesses and government users. Sprint currently serves
more than 56 million customers, and is widely recognized for developing,
engineering and deploying innovative technologies, including the first wireless 4G
service from a national carrier in the United States. The Sprint companies and
affiliates highly value the outstanding business reputation they have worked hard
to develop.
26. Sprint’s wireless program enables Sprint customers to choose from a
variety of monthly voice and data plans for use on cutting edge devices on the
Sprint wireless network. In addition to being available through Sprint online and
in its stores, Sprint Phones and wireless service are sold through authorized Sprint
dealers around the country.
27. Sprint’s business model is based upon Sprint’s ability to deliver an
affordable product to its consumers. Therefore, Sprint subsidizes its customers’
acquisition of the Sprint Phones by selling its Phones for substantially less than the
Phones cost Sprint. Sprint recoups this subsidy through profits earned on the sale
of Sprint monthly service, which is required to make and receive calls and text
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messages on, and transmit data through, the Sprint Phones. Sprint is able to offer
its Phones to customers at reduced prices only if the Phones are used as intended
on the Sprint wireless network.
28. Sprint has made a significant investment for its customers in the
smartphone market. Indeed, The Wall Street Journal reported in early November
2011 that Sprint had agreed to buy 30.5 million iPhones over the next four years,
paying $20 billion for the bundle.
29. Manufacturers that produce wireless phones for Sprint install
proprietary software, requested and paid for by Sprint, into the Sprint Phones.
Among other things, this software prevents Sprint Phones from being used outside
the Sprint network.
30. In the wireless telecommunications industry, there are two main
competing network technologies worldwide: Global System for Mobile
Communications (“GSM”) and Code Division Multiple Access (“CDMA”). The
Sprint wireless network is based on the CDMA platform, which is also used by
other wireless providers throughout the world. Other wireless carriers in the
United States and around the world use the GSM technology. CDMA and GSM
technologies are not interoperable, meaning phones with CDMA technology will
not operate on GSM networks and vice-versa.
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31. The Apple iPhone 4S sold by Sprint is a “world phone,” meaning that
it supports both CDMA and GSM technologies. Prior to November 11, 2011, the
iPhone 4S Phones that were made specifically for Sprint were locked to the CDMA
Sprint wireless network, but they did not come locked to any particular GSM
platform. Sprint customers could purchase SIM cards when traveling
internationally to enable their iPhone 4S handsets to operate on GSM networks in
foreign countries. Defendants’ Bulk Handset Trafficking Scheme exploits this
feature and profits by reselling Sprint iPhones for use on GSM networks in foreign
countries. On November 11, 2011, Sprint began locking the iPhone SIM to
Sprint’s network, but Defendants’ trafficking has continued unabated.
SPRINT’S TRADEMARK RIGHTS
32. Sprint Communications Company L.P. owns federal trademark
registrations for the standard character and stylized Sprint® marks and licenses the
right to use said marks to Sprint Nextel Corporation (collectively, the “Sprint
Marks”).1 The stylized Sprint mark is depicted below:
1 True and correct copies of the certificates of registration issued by the United States Patent and Trademark Office are attached hereto as Composite Exhibit A.
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33. Sprint uses the Sprint Marks on and in connection with its
telecommunications products and services.
34. As a result of the high quality of Sprint’s products, services, sales,
promotion and advertising thereof, the Sprint Marks have become an intrinsic and
essential part of the valuable goodwill and property of Sprint. The Sprint Marks
are well known and established to customers and the trade as symbols identifying
and distinguishing Sprint’s products and services, and signifying distinctive
products and services of high quality, and provide actual notice that the Phones are
intended for use solely within Sprint’s wireless system. Only Sprint and its
authorized, affiliated agents are permitted to use the Sprint Marks. The Sprint
Marks are valid, distinctive, protectable, famous, have acquired secondary
meaning, and are associated exclusively with Sprint Communications and its
licensee Sprint Nextel.
TERMS AND CONDITIONS REGARDING
THE USE OF SPRINT PHONES
35. Sprint Phones are sold subject to terms and conditions (“Terms and
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Conditions”) which conspicuously restrict and limit the sale and use of the Phones.
A copy of the Terms and Conditions is attached hereto as Exhibit B. These Terms
and Conditions are set forth in printed inserts that are included with the purchase of
every Sprint Phone. The Terms and Conditions constitute a valid and binding
contract.
36. Limitations set out in the Terms and Conditions are intended to
restrict the use of Sprint Phones to Sprint’s wireless network. Among other things,
the Terms and Conditions: (a) require that the customer pay his/her monthly
service charges and other related fees; (b) require the customer to pay an Early
Termination Fee (“ETF”) for each line of service that is terminated before the
contract term is concluded; (c) indicate that the Phone is designed to be activated
on the Sprint CDMA network; (d) prohibit resale of Sprint Phones and related
products and services; and (e) prohibit using the Phones for a purpose that could
damage or adversely affect Sprint. p
DEFENDANTS’ MISCONDUCT
37. Sprint has discovered that, although large quantities of its Phones are
being purchased throughout the United States, a significant number of these
Phones are not being activated for use on the Sprint network.
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38. Instead, entities and individuals such as Defendants and their co-
conspirators are purchasing and fraudulently reselling Sprint Phones in bulk
quantities. The Phones are purchased, either directly by Defendants or through
their co-conspirators, and then shipped overseas and sold for substantial profits,
where they can be used on other wireless carriers’ networks. Other times, the
Phones are taken out of their original packaging, all accessories, warranties, and
manuals are removed, and the Phones are shipped overseas and sold. Defendants
undertake these actions for profit, not for the sole purpose of lawfully connecting
to the Sprint wireless network.
39. Once a Sprint Phone is shipped overseas and becomes operable on
other wireless networks, Sprint no longer has a revenue source to recoup the
invested subsidy on that Phone.
40. Defendants are knowingly and willfully engaged in an enterprise that
traffics in and resells Sprint Phones. Defendants have purchased and sold large
quantities of Sprint Phones through various co-conspirators. While the complete
extent of Defendants’ activities in the Bulk Handset Trafficking Scheme is not yet
known, Defendants are actively involved in several integral components of the
conspiracy. Some of those components are discussed below.
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41. As early as November 2011, Defendant Ace Wholesale placed
numerous advertisements on various websites seeking to buy and sell Sprint
iPhones and other cellular telephones in mass quantity. Copies of some of these
advertisements (and more recent advertisements) are attached hereto as Exhibit C.
42. On November 22, 2011, a private investigator from Sprint contacted
Eric Mandreger with Ace Wholesale, and inquired about selling Sprint iPhone 4S
models. Eric advised he is always looking to buy iPhones, and that money is no
object. He stated that Ace Wholesale deals with wholesalers and also has a retail
location. Eric indicated that he had made previous large purchases of Sprint
iPhone 4S handsets.
43. On Tuesday, November 29, 2011, Sprint’s investigator traveled to the
Ace Wholesale retail location in Taylor, Michigan. The building is a small office
area with a larger office area behind bulletproof glass, and a secure rotating drawer
to pass items through to the employees. Sprint’s investigator spoke with the office
manager, Dominick Lanore, who explained that Ace buys any type of new cell
phones and electronics, and they try to avoid buying used phones. Sprint’s
investigator asked Dominick about Sprint phones, and he responded they currently
pay $430 for Sprint iPhone 4S models.
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44. Sprint’s investigators visited another Ace Wholesale facility located at
100 E. Big Beaver Road, Suite 905, Troy, Michigan. When asked if they buy
Sprint iPhones, the Ace employee indicated that they do but only in large volume
at this particular location (which she indicated was the “headquarters” for Ace
Wholesale). The employee directed the Sprint investigator to sell smaller
quantities of Sprint Phones at the Taylor, Michigan location.
45. On November 30, 2011 Sprint’s investigator visited the Taylor,
Michigan location of Ace Wholesale. The investigator asked the Ace Wholesale
employee whether he wanted to purchase a Sprint iPhone 4S. The employee
indicated that he would pay for $425 for the phone, and the parties consummated
that transaction.
46. On December 7, 2011, Sprint’s investigator conducted surveillance
outside the Ace Wholesale store in Taylor, Michigan. Over the course of the day,
67 different vehicles visited the store, most carried into the store one or multiple
phone boxes, plastics bags, or cardboard boxes containing cellular telephones.
Several photographs detailing this surveillance are attached hereto as Exhibit D.
47. On January 24, 2012, Sprint’s investigator again visited Ace
Wholesale, and spoke with an employee named “Adam” who advised that they are
currently paying $360 for the Sprint Blackberry Bold 9930.
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48. On January 26, 2012, Sprint’s investigator again visited Ace
Wholesale, this time carrying a Sprint iPhone 4S (16 GB). The investigator again
spoke with “Adam,” who confirmed Ace’s willingness to purchase the phone for
$420.
49. Most recently, on June 22, 2012, Sprint’s investigators traveled to the
Ace Wholesale store located at 3350 Chamblee Tucker Road, Atlanta, Georgia
30341.
50. During this visit, Sprint’s investigators spoke with Defendant, Barney
(“Spook”) Gunn, a Runner for Ace Wholesale, outside the store location. Barney
told Sprint’s investigators that obtaining and selling phones is his job, and that he
can make up to $3,000 per week buying and selling phones.
51. After speaking with Barney, Sprint’s investigators proceeded inside
the store and sold a Sprint iPhone 4S for $440 to the store manager, Tony Archie.
After the transaction was completed, Tony encouraged Sprint’s investigators to
return to sell more phones and to “tell everyone” about Ace Wholesale.
52. During the investigation, Sprint’s investigators also identified a retail
location for Ace Wholesale, Inc. in Chicago, Illinois. Through subsequent calls to
this store location, Sprint’s investigators confirmed that Ace Wholesale purchases
Sprint iPhone handsets at this location as well.
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53. On Thursday, July 19, 2012, Sprint’s investigators visited the Ace
Wholesale store located at 3942 W. Devon Avenue, Chicago, Illinois 60712.
54. During this visit, the investigators spoke with the office manager,
Defendant Jose Genel, and offered to sell a Sprint iPhone 4S for $450. Genel
stated he would pay $440 for the phone, and the parties consummated the
transaction.
55. During the investigators’ visit to the Ace Wholesale store in Chicago,
Jose Genel informed Sprint’s investigators that he buys all high end smartphones,
including Sprint Phones, and that he sends out weekly text messages regarding the
phones he is seeking to purchase and the price he will pay.
56. Defendant Jason Floarea is the principal of Ace Wholesale, and
previously worked at Wholesale Express, Inc., another company involved in the
global conspiracy to traffic in Sprint Phones. Sprint has already received a
judgment against Wholesale Express, a copy of which is attached as Exhibit E.
57. On June 18, 2012, Defendant, CopaTrade, Inc., was identified through
an advertisement on www.thewirelessbuzz.com offering Sprint iPhones for sale.
58. The next day, June 19, 2012, Sprint’s investigators contacted
CopaTrade by calling the number on the Wireless Buzz advertisement, and spoke
with a man who identified himself as “John” regarding purchasing a Sprint iPhone.
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John, who has been subsequently identified as Defendant, Moshe Alezra, advised
the investigators that he had several Sprint iPhones for sale, however, he only had
four (4) iPhones with “clean ESN” available to purchase, and he would sell the
investigators one Sprint iPhone 4S for $515.
59. The investigators agreed to purchase the Sprint iPhone 4S for $515,
and paid $538 for the iPhone, which included the costs for shipping.
60. On Monday, June 25, 2012, Sprint’s investigators received the iPhone
4S in the mail. The iPhone was delivered in a repackaged box that did not contain
any serial numbers, and the manual that came with the iPhone was for an iPhone 4,
not the iPhone 4S.
61. At present, CopaTrade, Inc. is still advertising on the Wireless Buzz
offering Sprint Phones for sale.
62. Defendant, Moshe Alezra, is the principal of CopaTrade, Inc., and
facilitated the conduct of CopaTrade, Inc. described above.
SUBSTANTIAL HARM CAUSED BY DEFENDANTS’ MISCONDUCT
63. Defendants’ actions substantially harm Sprint by depriving Sprint of
the opportunity to recoup its subsidies on the sale of its Sprint Phones and to earn
profits by providing wireless service to legitimate Sprint consumers. Indeed, the
iPhones being trafficked by Defendants are especially problematic for Sprint. As
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noted above, the iPhones is an iconic product, especially for Sprint. Sprint
invested a significant amount of effort and time in securing rights to sell the
iPhone, and has staked a significant amount of its business on the iPhone brand.
See, e.g. Exhibit F attached hereto (recent newspaper articles discussing the
iPhone). Thus, Sprint’s request for relief in this case is an urgent business issue.
64. The conduct of Defendants, their unknown co-conspirators, and others
who engage in the unlawful bulk purchasing and sale of Sprint Phones has also
resulted in shortages of available Sprint Phones, thereby substantially harming
Sprint and its relationship with dealers and consumers because Sprint is not able to
supply dealers with sufficient handsets to satisfy the demand from legitimate
consumers. The availability of iPhones for use on the Sprint network has become
particularly problematic since the October 2011 launch of the popular Apple
iPhone 4S. At least partially as a result of Defendants’ conduct, consumers have
not had a sufficient supply of iPhone 4S phones available for use on the Sprint
network. As a result, Sprint has lost, and continues to lose, potential customers to
wireless competitors.
65. In addition, removing the Phones from the original packaging and
altering the Phones irreparably harms Sprint because it deprives Sprint of the
means to control the quality of its product.
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66. Moreover, the process of unlocking and reselling a Sprint Phone voids
the manufacturer’s warranty on the device. In addition, the unlocked repackaged
Sprint Phones are sold without the original manufacturer’s warranty
documentation. Both consumers and Sprint are harmed when a Sprint Phone that
has been altered or sold by Defendants or their co-conspirators is submitted for
warranty repair. Because the warranty is voided on unlocked Phones or Phones
sold without warranty documentation, consumers who purchase Sprint Phones
from Defendants or their co-conspirators are unable to obtain warranty service in
the event they experience problems with their Phones. As a result, Sprint’s
reputation suffers further.
67. In addition, Defendants’ improper and unauthorized resale of Sprint
Phones for use on other networks but still bearing the Sprint Marks may result in
calls by confused consumers to Sprint’s customer relations department. Sprint
incurs substantial costs associated with such calls and its reputation is further
damaged because Sprint may be unable to assist those consumers because
Defendants’ actions voided the warranties and because Sprint sold the Phones for
use on another provider’s network.
68. Defendants’ conduct has also resulted in the dilution of the Sprint
Marks, substantial harm to Sprint’s business reputation and goodwill and a greater
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likelihood of confusion, mistake, and deception as to the source of origin of Sprint
products unlawfully sold by the Defendant and as to the relationship between
Sprint and Defendants.
CIVIL PROCEEDINGS IN OTHER FEDERAL COURTS
69. Federal courts have recognized that conduct similar to Defendants’
conduct is unlawful.
70. In addition to Sprint, T-Mobile USA, Inc. (“T-Mobile”), TracFone
Wireless, Inc. (“TracFone”), Nokia Corporation (“Nokia”), and AT&T Mobility
LLC (“AT&T”) have each filed multiple lawsuits in numerous federal courts
across the country against other defendants similarly engaged in the practice of
defrauding legitimate consumers by bulk purchasing wireless telephones and
reselling them for profit.
71. Sprint, T-Mobile, AT&T, TracFone, and Nokia, have obtained Final
Judgments and Permanent Injunctions in these cases, examples of which are
attached hereto as Composite Exhibit G. A defendant who failed to abide by an
injunction issued by the United States District Court for the Southern District of
Texas pled guilty to criminal contempt, and has been sentenced to serve 57 months
in prison. Copies of the Memorandum Opinion and Order of Contempt,
Application for Criminal Contempt, the Order finding cause to believe the
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defendant is guilty of criminal contempt, and Judgment of Criminal Contempt are
attached hereto as Composite Exhibit H.
COUNT ONE
BREACH OF CONTRACT
72. Sprint reasserts the allegations set forth above as though fully set forth
herein.
73. By purchasing Sprint Phones, Defendants acknowledged and agreed
to the Terms and Conditions included with each Sprint Phone.
74. By inducing or causing Runners and others to purchase Sprint Phones
on Defendants’ behalf and for Defendants’ benefit, Defendants acknowledged and
agreed to the Terms and Conditions included with each Sprint Phone.
75. The Terms and Conditions constitute a valid binding contract between
Sprint and Defendants.
76. Sprint has performed or tendered performance in full compliance with
the Terms and Conditions.
77. Defendants have breached the Terms and Conditions by, inter alia: (a)
failing to pay for the monthly service charges; (b) failing to pay the ETF fees; (c)
failing to activate the Phones on the Sprint wireless network; (d) reselling the
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Sprint Phones and related products and services; and (e) using the Phones for a
purpose that could damage or adversely affect Sprint.
78. Sprint has suffered damages as a result of Defendants’ breach of the
Terms and Conditions.
COUNT TWO
UNFAIR COMPETITION O.C.G.A. § 23-2-55
79. Sprint reasserts the allegations set forth above as though fully set forth
herein.
80. Defendants’ conduct in purchasing and/or inducing others to purchase
Sprint Phones and reselling and/or assisting others to resell the Phones overseas for
activation on other wireless networks constitute unfair methods of competition,
unconscionable acts or practices, and/or unfair or deceptive acts or practices in
violation of O.C.G.A. § 23-2-55.
81. Defendants’ conduct in selling, inducing others to sell, and/or
assisting others to sell Sprint Phones for the purpose of being resold, which
undermines Sprint’s subsidy program, constitutes unfair methods of competition,
unconscionable acts or practices, and/or unfair or deceptive acts or practices in
violation of Georgia law.
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82. Defendants’ conduct complained of herein was intentional, malicious,
and willful, and has caused substantial harm to Sprint.
83. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ unfair competition.
COUNT THREE
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS AND PROSPECTIVE ADVANTAGE
84. Sprint reasserts the allegations set forth above as though fully set forth
herein.
85. A business relationship, and an expectancy of business relationships,
exists between Sprint and authorized dealers of Sprint Phones.
86. A business relationship, and an expectancy of business relationships,
exists between Sprint and the purchasers and prospective purchasers of its Sprint
Phones and wireless service.
87. There is a high probability of future economic benefit to Sprint as a
result of these current and prospective business relationships.
88. Defendants have knowledge of and have intentionally and
unjustifiably interfered with, and/or have knowingly facilitated a conspiracy to
interfere with, these current and prospective business relationships between Sprint,
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authorized dealers who sell Sprint products, and legitimate Sprint customers or
prospective customers.
89. Specifically, but without limitation, Defendants knew that Sprint has
business relationships, and an expectancy of business relationships, with legitimate
consumers of Sprint Phones and wireless service. Defendants interfered with these
relationships by engaging in their Bulk Handset Trafficking Scheme and causing,
at least in part, Sprint to have an insufficient supply of Sprint Phones available to
meet legitimate consumer demand. Defendants also interfered with the contractual
relationships that existed between Sprint and Runners or other purchasers by
inducing the Runners or other purchasers to breach their contracts with Sprint.
90. Defendants also knew that Sprint has business relationships with
dealers of Sprint Phones to provide said dealers with sufficient quantities of Sprint
Phones for their legitimate consumers’ use exclusively on Sprint’s wireless
network. Defendants’ Bulk Handset Trafficking Scheme has resulted in substantial
numbers of Sprint Phones that are never activated on Sprint service and has further
caused shortages of available Sprint Phones, thereby substantially harming Sprint
and its relationship with dealers because Sprint is unable to supply dealers with
sufficient Phones to satisfy the demands from legitimate consumers.
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91. Defendants are intentionally interfering with Sprint’s business
relationships and prospective advantages through improper means and in violation
of the law.
92. Defendants engaged in the acts of interference set forth herein with a
conscious desire to prevent the relationships from occurring or continuing, or
Defendants knew that the interference was certain or substantially certain to occur
as a result of their conduct.
93. Sprint has been proximately damaged and continues to be damaged as
a result of Defendants’ interference.
94. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ tortious interference.
COUNT FOUR
CIVIL CONSPIRACY
95. Sprint reasserts the allegations set forth above as though fully set forth
herein.
96. An agreement and conspiracy existed and continues to exist between
and among the Defendants and other co-conspirators to unlawfully bulk purchase,
traffic, and resell Sprint Phones, which results in breach of contract, unfair
competition, tortious interference with business relationships and prospective
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advantage, unjust enrichment, and violation of the federal Computer Fraud and
Abuse Act, among other things.
97. Each Defendant knowingly agreed to engage, and did engage, in one
or more overt acts in pursuit of the conspiracy as set forth with more particularity
in this Complaint.
98. Sprint has been proximately damaged by the conspiracy and
Defendants’ actions in furtherance thereof.
99. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ conspiracy.
COUNT FIVE
UNJUST ENRICHMENT
100. Sprint reasserts the allegations set forth above as though fully set forth
herein.
101. By bulk purchasing the Sprint Phones at less than the manufacturer
cost of the Phones for use on wireless networks other than Sprint’s network,
Defendants have obtained benefits from Sprint which have caused significant harm
to Sprint and led to significant financial gain to Defendants through their resale of
the bulk purchased Sprint Phones.
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102. Defendants have acquired the benefits voluntarily and with full
knowledge of the benefits.
103. Defendants have retained the benefits under such circumstances that
make it unjust and inequitable for Defendants to retain the benefits without paying
Sprint the value of the benefits Defendants acquired.
104. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ unjust enrichment.
COUNT SIX
CONSPIRACY TO INDUCE BREACH OF CONTRACT
105. Sprint reasserts the allegations set forth above as though fully set forth
herein.
106. Defendants solicit Runners and others (collectively, “Purchasers”) to
purchase Sprint Phones in bulk for the benefit of Defendants.
107. Defendants’ active solicitation of Purchasers includes instructing
Purchasers to enter into valid contracts with Sprint for the provision of wireless
service and subsidized Phones in accordance with the Terms and Conditions.
108. Defendants’ active solicitation of Purchasers also includes instructing
and inducing Purchasers to breach their contracts with Sprint by inter alia: (a)
failing to pay for the monthly service charges; (b) failing to pay the ETF fees; (c)
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failing to activate the Phones on the Sprint wireless network; (d) reselling the
Sprint Phones and related products and services; and (e) using the Phones for a
purpose that could damage or adversely affect Sprint.
109. Defendants have knowledge of the contracts between Sprint and
Purchasers, and intended to, and in fact did, and continue to, induce Purchasers to
breach their contracts with Sprint.
110. The breach of the contracts is proximately caused by Defendants’
misconduct.
111. Sprint suffered and continues to suffer damages as a result of the
breach of the contracts induced by Defendants.
112. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ conspiracy to induce breach of the contracts.
COUNT SEVEN
COMMON LAW FRAUD
113. Sprint reasserts the allegations set forth above as though fully set forth
herein.
114. As part of their Bulk Handset Trafficking Scheme, Defendants
regularly and systematically misrepresent to Sprint that the Phones are being
purchased for a legitimate purpose, that the Phones would be used by Defendants
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or other legitimate consumers on Sprint’s wireless network, and that they will pay
their monthly service charges and ETF, and otherwise perform in accordance with
the Terms and Conditions.
115. When Defendants or their co-conspirators purchase Sprint Phones as
part of their Bulk Handset Trafficking Scheme, they do not intend to use the
Phones for a legitimate purpose or to activate them on Sprint’s wireless network,
nor do they intend to pay their monthly service charges or ETF, or otherwise
perform in accordance with the Terms and Conditions.
116. Defendants know that they are required to activate the Sprint Phones
on the Sprint wireless network, pay the monthly service charges and ETF, and
otherwise comply with the Terms and Conditions.
117. Defendants intended for Sprint to rely on their misrepresentations to
allow Defendants to purchase the Phones for improper purposes.
118. Sprint’s reliance on Defendants’ misrepresentations was reasonable
under the circumstances.
119. Sprint has been damaged and continues to suffer damages as a result
of Defendants’ actions.
120. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ fraud.
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COUNT EIGHT
FRAUDULENT MISREPRESENTATION
121. Sprint reasserts the allegations set forth above as though fully set forth
herein.
122. As part of their Scheme, Defendants regularly and systematically
misrepresent to Sprint that the Phones are being purchased for a legitimate purpose
and would be used by Defendants or other legitimate consumers on Sprint’s
wireless network.
123. When Defendants or their co-conspirators purchase a Sprint Phone,
they do not intend to activate or use the Phone on the Sprint wireless network.
124. Defendants knew that they were required to activate the Sprint Phones
on the Sprint wireless network.
125. Defendants intended for Sprint to rely on these misrepresentations to
allow Defendants to purchase the Phones for improper purposes.
126. Sprint’s reliance on Defendants’ misrepresentations was reasonable
under the circumstances.
127. Sprint has been damaged and continues to suffer damages as a result
of Defendants’ actions.
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128. There is no adequate remedy at law to fully compensate Sprint for the
harm caused by Defendants’ fraudulent misrepresentations.
COUNT NINE
TRAFFICKING IN COMPUTER PASSWORDS 18 U.S.C. § 1030(a)(6)
129. Sprint reasserts the allegations set forth above as though fully set forth
herein.
130. The Sprint Phones that are trafficked by Defendants are loaded with
confidential codes that access: (a) Sprint’s national telecommunications computer
network to make and receive wireless voice calls and to transmit data, and (b)
Sprint’s computer billing network (collectively, the “protected computer
networks”). In other words, the Phones act as a gateway to Sprint’s protected
computer networks. Sprint protects access to these protected computer networks
through, among other things, the confidential codes contained in the Phones.
131. Through their Bulk Handset Trafficking Scheme, Defendants are
knowingly and with the intent to defraud Sprint trafficking in the confidential codes
contained in the Phones.
132. Defendants’ transfer of the Phones and confidential codes to others
constitutes “trafficking” of the codes as defined in 18 U.S.C. § 1029 in that the codes
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were transferred, or otherwise disposed of, to others, or Defendants obtained control
of the codes with intent to transfer or dispose of them.
133. Defendants’ trafficking of the Phones substantially affects interstate
commerce and communication in that the codes contained in the Phones are
trafficked over the internet, throughout the United States, and around the world, and
Sprint’s protected computer networks are used in and affect interstate commerce and
communication, and provide wireless communications services pursuant to licenses
issued by the Federal Communications Commission.
134. Defendants’ trafficking of Sprint’s codes has caused and will continue to
cause Sprint to suffer injury, with “damages” and “losses” – as those terms are
defined in Sections 1030(e)(8) and 1030(e)(11), respectively -- substantially in excess
of $5,000 over a one-year period.
135. With respect to loss, Sprint has lost subsidy investments and spent
well in excess of $5,000 investigating and assessing the possible impairment to the
integrity of its protected computer networks, taking action to counteract
Defendants’ theft, and conducting a damage assessment regarding Defendants’
collection and dissemination of Sprint Phones and codes, as well as tracking down
fraudulently sold Phones.
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136. With respect to damage, by infiltrating the Sprint computer and
telecommunications network and collecting and disseminating the illegally
activated Phones and codes, Defendants have substantially impaired the integrity
of Sprint’s protected computer networks in an amount in excess of $5,000.
Moreover, Defendants’ actions have deprived Sprint of the means to control the
quality of its product and service.
137. Defendants’ activities constitute trafficking in computer passwords in
violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(6).
138. Defendants’ conduct is intentional, malicious and willful.
139. Pursuant to 18 U.S.C. § 1030(g), Sprint is entitled to maintain this
civil action against Defendants to obtain compensatory damages and injunctive and
other equitable relief because of the reasons identified above, and because , and
because Defendants’ conduct involves at least one of the factors identified in 18
U.S.C § 1030(c)(4)(A)(i), including the factor set forth in subclause (I): the loss to
Sprint and its customers as a result of Defendants’ conduct during any one year
period aggregated at least $5,000 in value.
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COUNT TEN
UNAUTHORIZED ACCESS 18 U.S.C. § 1030(a)(5)(C)
140. Sprint reasserts the allegations set forth above as though fully set forth
herein.
141. The Sprint Phones that are purchased by the Defendants and their co-
conspirators pursuant to their Bulk Handset Trafficking Scheme are loaded with
codes that access: (a) Sprint’s national telecommunications computer network to
make and receive wireless voice calls and to transmit data, and (b) Sprint’s
computer billing network (collectively, the “protected computer networks”).
142. By purchasing the Phones, Defendants necessarily access the Sprint
protected computer networks because the Phones are connected to those networks
when purchased from Sprint.
143. Defendants purchase the Phones by misrepresenting to Sprint that the
Phones are being purchased for a legitimate purpose for use by legitimate
consumers on Sprint’s computer networks, when in fact, they are not. Because
Defendants are purchasing the Phones for illegitimate reasons, Defendants’ access
of Sprint’s protected computer networks is not authorized in any way.
144. Moreover, when Defendants purchase a Sprint Phone from Runners or
other purchasers, Defendants carefully examine the Phone, turn it on, and perform
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various tests to confirm that the Phone had been activated on Sprint’s wireless
network and that the various electronic code numbers and access numbers loaded
on the Phone are correct. This too constitutes unauthorized access of Sprint’s
protected computer networks.
145. By trafficking in activated Sprint Phones, the Defendants are also
knowingly, intentionally, and with the intent to defraud, facilitating the
unauthorized access of Sprint’s protected computer networks.
146. Defendants’ conduct also exceeds authorized access, as defined by
Section 1030(e)(6) of the Computer Fraud and Abuse Act, in that Defendants (or
their co-conspirators) were initially permitted to access Sprint’s protected
computer networks when they originally purchased the Phones from Sprint, but by
purchasing the Phones solely to resell them without paying the monthly service
charges and ETF fees, Defendants’ access of Sprint’s protected computer networks
exceeds authorized access.
147. Defendants’ access of Sprint’s protected computer systems allows
them to improperly steal Sprint’s subsidy investment in its Phones.
148. Sprint’s protected computer systems are “protected computers” as that
term is defined in Section 1030(e)(2)(B) of the Computer Fraud and Abuse Act
because they are used in interstate commerce and communications.
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149. Defendants’ activities substantially affect interstate commerce and
communication in that the Phones are trafficked over the internet, throughout the
United States, and around the world, and Sprint’s computer system and
telecommunications network are used in and affect interstate commerce and
communication, and provide wireless communications services pursuant to licenses
issued by the Federal Communications Commission.
150. Defendants’ unauthorized access of Sprint’s protected computer
systems has caused and will continue to cause Sprint to suffer injury, with
“damages” and “losses” – as those terms are defined in Sections 1030(e)(8) and
1030(e)(11), respectively -- substantially in excess of $5,000 over a one-year
period.
151. With respect to loss, Sprint has lost subsidy investments in the
trafficked Phones and spent well in excess of $5,000 investigating and assessing
the possible impairment to the integrity of its protected computer systems, taking
action to counteract Defendants’ theft, and conducting a damage assessment
regarding Defendants’ collection and dissemination of Sprint Phones, as well as
tracking down fraudulently sold Phones.
152. With respect to damage, by infiltrating the Sprint computers systems
and collecting and disseminating the illegally trafficked Phones, Defendants have
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substantially impaired the integrity of Sprint’s systems in an amount in excess of
$5,000. Moreover, Defendants’ actions have deprived Sprint of the means to
control the quality of its product and service, and have stolen Sprint’s subsidy
investment in its Phones.
153. Defendants’ activities constitute unauthorized access in violation of
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(C).
154. Defendants’ conduct is intentional, malicious and willful.
155. Pursuant to 18 U.S.C. § 1030(g), Sprint is entitled to maintain this
civil action against Defendants to obtain compensatory damages and injunctive and
other equitable relief because of the reasons identified above, and because
Defendants’ conduct involves at least one of the factors identified in 18 U.S.C §
1030(c)(4)(A)(i), including the factor set forth in subclause (I): the loss to Sprint
and its customers as a result of Defendants’ conduct during any one year period
aggregated at least $5,000 in value.
COUNT ELEVEN
UNAUTHORIZED ACCESS WITH INTENT TO DEFRAUD 18 U.S.C. § 1030(a)(4)
156. Sprint reasserts the allegations set forth above as though fully set forth
herein.
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157. The Sprint Phones that are purchased by the Defendants are loaded
with codes that access: (a) Sprint’s national telecommunications computer network
to make and receive wireless voice calls and to transmit data, and (b) Sprint’s
computer billing network (collectively, the “protected computer networks”).
158. By purchasing the Phones, Defendants necessarily access the Sprint
protected computer networks because the Phones are connected to those networks
when purchased from Sprint.
159. Defendants purchase the Phones by misrepresenting to Sprint that the
Phones are being purchased for a legitimate purpose for use by legitimate
consumers on Sprint’s computer networks when in fact, they are not. Because
Defendants are purchasing the Phones for illegitimate reasons, Defendants’ access
of Sprint’s protected computer networks is not authorized in any way.
160. Moreover, when Defendants purchase a Sprint Phone from Runners or
other purchasers, Defendants carefully examine the Phone, turn it on, and perform
various tests to confirm that the Phone had been activated on Sprint’s wireless
network and that the various electronic code numbers and access numbers loaded
on the Phone are correct. This too constitutes unauthorized access of Sprint’s
protected computer networks.
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161. By trafficking in activated Sprint Phones, the Defendants are also
knowingly, intentionally, and with the intent to defraud, facilitating the
unauthorized access of Sprint’s protected computer networks.
162. Defendants’ conduct also exceeds authorized access, as defined by
Section 1030(e)(6) of the Computer Fraud and Abuse Act, in that Defendants (or
their co-conspirators) were initially permitted to access Sprint’s protected
computer networks when they originally purchased the Phones from Sprint, but by
purchasing the Phones solely to resell them without paying the monthly service
charges and ETF fees, Defendants’ access of Sprint’s protected computer networks
exceeds authorized access.
163. Defendants’ access of Sprint’s protected computer systems allows
them to improperly steal Sprint’s subsidy investment in its Phones.
164. Sprint’s protected computer systems are “protected computers” as that
term is defined in Section 1030(e)(2)(B) of the Computer Fraud and Abuse Act
because they are used in interstate commerce and communications.
165. Defendants’ activities substantially affect interstate commerce and
communication in that the Phones are trafficked over the internet, throughout the
United States, and around the world, and Sprint’s computer system and
telecommunications network are used in and affect interstate commerce and
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communication, and provide wireless telecommunications service pursuant to
licenses issued by the Federal Communications Commission.
166. Defendants’ unauthorized access of Sprint’s protected computer
systems has caused and will continue to cause Sprint to suffer injury, with
“damages” and “losses” – as those terms are defined in Sections 1030(e)(8) and
1030(e)(11), respectively -- substantially in excess of $5,000 over a one-year
period.
167. With respect to loss, Sprint has lost subsidy investments in the
trafficked Phones and spent well in excess of $5,000 investigating and assessing
the possible impairment to the integrity of its protected computer systems, taking
action to counteract Defendants’ theft, and conducting a damage assessment
regarding Defendants’ collection and dissemination of Sprint Phones, as well as
tracking down fraudulently sold Phones.
168. With respect to damage, by infiltrating the Sprint computers systems
and collecting and disseminating the illegally trafficked Phones, Defendants have
substantially impaired the integrity of Sprint’s systems in an amount in excess of
$5,000. Moreover, Defendants’ actions have deprived Sprint of the means to
control the quality of its product and service, and have stolen Sprint’s subsidy
investment in its Phones.
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169. Defendants’ activities constitute unauthorized access in violation of
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(4).
170. Defendants’ conduct is intentional, fraudulent, malicious and willful.
171. Pursuant to 18 U.S.C. § 1030(g), Sprint is entitled to maintain this
civil action against Defendants to obtain compensatory damages and injunctive and
other equitable relief because of the reasons identified above, and because , and
because Defendants’ conduct involves at least one of the factors identified in 18
U.S.C § 1030(c)(4)(A)(i), including the factor set forth in subclause (I): the loss to
Sprint and its customers as a result of Defendants’ conduct during any one year
period aggregated is at least $5,000 in value.
COUNT TWELVE
FEDERAL TRADEMARK INFRINGEMENT 15 U.S.C. 1114 [§32(1) of the Lanham Act]
172. Sprint Communications reasserts and incorporates the factual
allegations set forth above as though fully set forth herein.
173. Defendants’ and/or their co-conspirators’ aforementioned conduct
constitutes use of certain federally registered Sprint Marks without authorization in
connection with their conspiracy to sell and offer for sale unlocked, counterfeit
Sprint Phones, which downstream customers will discover have been altered from
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their original state and do not include the warranties, accessories, manuals and
related items that constitute part of the Sprint Phone package.
174. Defendants’ and/or their co-conspirators’ use of certain federally
registered Sprint Marks in connection with the sale of Sprint Phones has caused,
and will further cause, a likelihood of confusion, mistake and deception as to the
source of origin of Defendants’ infringing products, and the relationship between
Sprint Communications and Defendants.
175. Defendants’ and/or their co-conspirators’ unauthorized use of certain
federally registered Sprint Marks is likely to continue in the future, all to the great
and irreparable damage to the business, reputation and goodwill of Sprint
Communications.
176. Defendants’ and/or their co-conspirators’ use of certain federally
registered Sprint Marks in connection with the unlocked, counterfeit Sprint
Phones, which do not include warranties, manuals, accessories and related items
made part of the Sprint Phone package, constitutes a misappropriation of Sprint
Communications’ distinguishing and identifying federally registered trademarks
that were created as a result of significant effort and expense by Sprint
Communications over a long period of time. Defendants’ and/or their co-
conspirators’ use of certain federally registered Sprint Marks evokes an immediate,
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favorable impression or association and constitutes a false representation that the
products and business of Defendants have some connection, association or
affiliation with Sprint Communications, and is likely to mislead the trade and
public into believing that Defendants’ products and services originate from, are
affiliated with, or are sponsored, authorized, approved or sanctioned by Sprint
Communications.
177. Defendants, in committing the foregoing acts in commerce, have
damaged, and will continue to damage, Sprint Communications and the reputation
and goodwill of Sprint Communications, and have been unjustly enriched and will
continue to unjustly enrich themselves at the expense of Sprint Communications.
Sprint Communications is without an adequate remedy at law to redress such acts,
and will be irreparably damaged unless Defendants are enjoined from committing
and continuing to commit such acts.
178. Defendants’ aforesaid acts constitute willful infringement of Sprint
Communications’ aforementioned federally registered trademarks in violation of
15 U.S.C. §1114.
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COUNT THIRTEEN
FEDERAL COMMON LAW TRADEMARK INFRINGEMENT AND FALSE ADVERTISING
15 U.S.C. § 1125 (a)(1)(A) and (B) [§43(a) of the Lanham Act]
179. Sprint reasserts the allegations set forth above as though fully set forth
herein.
180. Defendants’ and/or their co-conspirators’ aforementioned conduct
constitutes use of the Sprint Marks without authorization in connection with their
conspiracy to sell and offer for sale unlocked, counterfeit Sprint Phones, which
downstream customers will discover have been altered from their original state and
do not include the warranties, accessories, manuals and related items that constitute
part of the Sprint Phone package.
181. Defendants’ and/or their co-conspirators’ use of the Sprint Marks in
connection with the sale of unlocked, counterfeit Sprint Phones has caused, and
will further cause, a likelihood of confusion, mistake and deception as to the source
of origin of Defendants’ counterfeit products, and the relationship between Sprint
and Defendants.
182. Defendants’ and/or their co-conspirators’ unauthorized use of the
Sprint Marks is likely to continue in the future, all to the great and irreparable
damage to the business, reputation, and goodwill of Sprint.
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183. Defendants’ and/or their co-conspirators’ use of the Sprint Marks in
connection with the unlocked, counterfeit Sprint Phones, which do not include
warranties, manuals, accessories and related items made part of the Sprint Phone
package, constitutes a misappropriation of the distinguishing and identifying Sprint
Marks that was created as a result of significant effort and expense. Defendants’
and/or their co-conspirators’ use of the Sprint Marks evokes an immediate,
favorable impression or association and constitutes a false representation that the
products and business of Defendants have some connection, association or
affiliation with Sprint, and thus constitutes false designation of origin and is likely
to mislead the trade and public into believing that Defendants’ products and
services originate from, are affiliated with, or are sponsored, authorized, approved
or sanctioned by Sprint.
184. Defendants, in committing the foregoing acts in commerce, have
damaged, and will continue to damage, Sprint and the reputation and goodwill of
Sprint, and have been unjustly enriched and will continue to unjustly enrich
themselves at the expense of Sprint. Sprint is without an adequate remedy at law
to redress such acts, and will be irreparably damaged unless Defendants are
enjoined from committing and continuing to commit such acts.
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185. Defendants’ use of the Sprint Marks in commercial advertising or
promotion misrepresents the nature, characteristics, and/or qualities of their
infringing products.
186. Defendants’ activities constitute false designation of origin, false
descriptions and representations, and false advertising in commerce in violation of
§ 43(a) of the Lanham Act, 15 U.S.C. §1125(a)(1)(A) and (B).
187. Sprint is entitled to appropriate relief as prayed for hereinafter,
including preliminary and permanent injunctive relief.
188. Defendants knew or should have known that Sprint Communications
is the owner and Sprint Nextel is a licensee of the Sprint Marks and that
Defendants had no legal right to use the Sprint Marks on their infringing products.
Defendants are engaged in and continue to engage in the alleged activities
knowingly, willfully and deliberately, so as to justify the assessment of exemplary
damages and an award of Plaintiffs’ lost profits, Defendants’ profits, and Plaintiffs’
attorneys’ fees.
COUNT FOURTEEN
CONTRIBUTORY TRADEMARK INFRINGEMENT
189. Sprint reasserts the allegations set forth above as though fully set forth
herein.
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190. By misappropriating and using the Sprint Marks, Defendants
knowingly aided and enabled distributors and/or sellers of its products to market
them to members of the general public in a way that infringes the Sprint Marks by
placing in the hands of distributors and/or sellers an instrument of consumer
deception.
191. Defendants’ unlawful, unauthorized, and unlicensed sale of the
unlocked Sprint Phones has contributed to the creation of express and implied
misrepresentations that the Sprint Phones, as sold by Defendants, were created,
authorized or approved by Sprint, and include warranties.
192. Upon information and belief, Defendants’ conduct leads to post-sale
confusion by causing consumers who purchase Sprint Phones altered by
Defendants to believe that they are purchasing handsets approved by Sprint and
containing original warranties.
193. Defendants’ conduct constitutes contributory infringement in violation
of the Trademark Act. Defendants’ conduct is intentional, malicious and willful.
COUNT FIFTEEN
DECEPTIVE TRADE PRACTICES O.C.G.A. § 10-1-372 et seq.
194. Sprint reasserts and incorporates the allegations set forth above as
though fully set forth herein.
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195. Defendants have and are engaged in acts or practices in violation of the
prohibition against deceptive trade practices found at O.C.G.A. § 10-1-372 et seq.
196. Defendants have used and are using the Sprint Marks in connection with
the above-described unlawful activities, including, but not limited to, the Bulk
Handset Trafficking Scheme in such a manner as to misrepresent the source,
sponsorship, approval, and/or certification of their products and services. The use of
the Sprint Marks by Defendants creates an unreasonable risk that present and potential
consumers and subscribers may falsely conclude that there exists some affiliation,
connection, or association between and among Sprint and Defendants.
197. Defendants’ acts have damaged, impaired, and diluted that part of
Sprint’s goodwill symbolized by the Sprint Marks. The nature, probable tendency,
and effect of Defendants’ use of these marks in the manner alleged are to enable
Defendants to deceive the public.
198. Defendants’ use of the Sprint Marks in the manner alleged constitutes
deceptive trade practices of a type prohibited by O.C.G.A. § 10-1-372 et seq.
199. Defendants had actual knowledge of Sprint’s rights at the time they
decided to use the Sprint Marks in connection with their fraudulent scheme. Thus,
Defendants actions were willful and deliberate.
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200. Defendants’ unfair business practices are of a recurring nature and
harmful to the consumers and the public at large, as well as to Sprint. These
practices constitute unlawful, unfair, fraudulent, and deceptive business practices,
and unfair, deceptive, untrue, and misleading advertising.
201. As a result of Defendants’ acts, Sprint has suffered and continues to
suffer and incur irreparable injury, loss of reputation, and pecuniary damages to be
proved at trial, in excess of the jurisdictional amount-in-controversy requirements of
this Court. Unless enjoined by this Court, Defendants will continue these acts,
thereby causing Sprint further immediate and irreparable damage.
COUNT SIXTEEN
GEORGIA COMPUTER SYSTEMS PROTECTION ACTO.C.G.A. §16-9-93(a), (b), and (e)
202. Sprint reasserts and incorporates the allegations set forth in the
Paragraphs above as though fully set forth herein.
203. The Sprint Phones that are purchased by the Defendants are loaded
with codes that access: (a) Sprint’s national telecommunications computer network
to make and receive wireless voice calls and to transmit data, and (b) Sprint’s
computer billing network (collectively, the “protected computer networks”).
Case 1:12-cv-02902-JEC Document 1 Filed 08/21/12 Page 50 of 54
22256722.8 51
204. By purchasing the Phones, Defendants necessarily access the Sprint
protected computer networks because the Phones are connected to those networks
when purchased from Sprint.
205. Defendants purchase the Phones by misrepresenting to Sprint that the
Phones are being purchased for a legitimate purpose for use by legitimate
consumers on Sprint’s computer networks when in fact, they are not. Because
Defendants are purchasing the Phones for illegitimate reasons, Defendants’ access
of Sprint’s protected computer networks is not authorized in any way.
206. Moreover, when Defendants purchase a Sprint Phone from Runners or
other purchasers, Defendants carefully examine the Phone, turn it on, and perform
various tests to confirm that the Phone had been activated on Sprint’s wireless
network and that the various electronic code numbers and access numbers loaded
on the Phone are correct. This too constitutes unauthorized access of Sprint’s
protected computer networks.
207. By trafficking in activated Sprint Phones, the Defendants are also
knowingly, intentionally, and with the intent to defraud, facilitating the
unauthorized access of Sprint’s protected computer networks.
208. Defendants’ conduct also exceeds authorized access, as defined by
Section 1030(e)(6) of the Computer Fraud and Abuse Act, in that Defendants (or
Case 1:12-cv-02902-JEC Document 1 Filed 08/21/12 Page 51 of 54
22256722.8 52
their co-conspirators) were initially permitted to access Sprint’s protected
computer networks when they originally purchased the Phones from Sprint, but by
purchasing the Phones solely to resell them without paying the monthly service
charges and ETF fees, Defendants’ access of Sprint’s protected computer networks
exceeds authorized access.
209. Defendants’ access of Sprint’s protected computer systems allows
them to improperly steal Sprint’s subsidy investment in its Phones.
210. Defendants’ activities constitute unauthorized computer access
resulting in damage in violation of Georgia’s Computer Systems Protection Act,
O.C.G.A. § 16-9-93(a), (b), and (e)
211. Defendants’ conduct is intentional, malicious and willful.
212. As a result of the foregoing, Sprint has been damaged. Sprint is
entitled to appropriate relief as requested hereinafter, including injunctive relief,
compensatory and punitive damages, and attorney’s fees.
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all triable issues.
WHEREFORE, Plaintiffs, Sprint Nextel Corporation and Sprint
Communications Company, L.P., respectfully request that this Court enter final
Case 1:12-cv-02902-JEC Document 1 Filed 08/21/12 Page 52 of 54
22256722.8 53
judgment and permanent injunctive relief in favor of Plaintiffs and against
Defendants, as follows:
(a) awarding Plaintiffs their compensatory, consequential, statutory
and special damages including, without limitation, its lost profits,
Defendants’ profits, loss of goodwill and damage to its reputation,
as well as exemplary damages, together with pre and post
judgment interest, as provided by law;
(b) awarding Plaintiffs their reasonable attorneys’ fees and costs
associated with this action;
(c) granting permanent injunctive relief in favor of Plaintiffs and
against Defendants enjoining Defendants from engaging in the
unlawful practices described in this Complaint; and
(d) requiring Defendants, pursuant to the Lanham Act, to deliver to
Plaintiffs their entire inventory of phones and products bearing or
infringing the Sprint Marks or a confusingly similar copy thereof;
and
(e) granting such further relief as this Court deems just and proper.
Case 1:12-cv-02902-JEC Document 1 Filed 08/21/12 Page 53 of 54
22256722.8 54
Submitted this 21st day of August, 2012.
/s/ Gail Podolsky Gail Podolsky Georgia Bar No. 142021 Email: [email protected] CARLTON FIELDS, P.A. One Atlantic Center 1201 West Peachtree Street, Suite 3000 Atlanta, GA 30309 Tel: 404-815-3400 Fax: 404-815-3415
James B. Baldinger Florida Bar No. 869899 Email: [email protected] Stacey K. Sutton Florida Bar No. 289530 Email: [email protected] M. Derek Harris Georgia Bar No. 332804 Email: [email protected] CARLTON FIELDS P.A. CityPlace Tower 525 Okeechobee Boulevard, Suite 1200 West Palm Beach, FL 33401-6350
Attorneys for Sprint Nextel Corporation and Sprint Communications Company, L.P.
Case 1:12-cv-02902-JEC Document 1 Filed 08/21/12 Page 54 of 54
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EXHIBIT C
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CL > chicago craigslist > all for sale / wanted
all chicago city of chicago north chicagoland west chicagoland south chicagoland northwest indiana northwest suburbs
sort by most recent best match low price high price
Found: 13 Displaying: 1 - 13
Jul 17 - ACEINC BUYING THEM ALL - $999 (BEATING ALL COMPETITION ) cell phones - by owner pic
Jul 17 - Buying all KInds of New Smartphones - $99999 (Paying high Call now at 847-983-8138) cell phones - by owner pic
Jul 17 - ACEINC SMARTPHONE FOR CASH - $99999 (WE BUY WE BUY FOR CASH ) cell phones - by owner pic
Jul 17 - Ace Incorporated Will Give YOU Cash Today!!!!!************************ - (Lincolnwood, IL)electronics - by owner pic
Jul 16 - TOP PAYOUT 4 SAMSUNG-BLCKBERRY-HTC - (DEVON&PULASKI) cell phones - by dealer pic
Jul 15 - ACE INC SAFEST LOCATION IN TOWN!! BRING US ALL YOUR SMARTPHONES! - (DEVON AND PULASKI) cell phones - by owner pic
Jul 14 - *Ace* Will Buy Your SmartPhone For Top Dollar!!!!!!!****************** - (Pulaski and Devon)cell phones - by owner pic
Jul 14 - ****Offering The Best Prices Ace Will Take Care of YOU!!!!!*********** - (Lincolnwood, IL)cell phones - by owner pic
Jul 14 - *******Ace Inc. Will Buy *YOUR* SmartPhone in Any Condition!!!!!!!!!!! - (North Chicago)cell phones - by owner pic
Jul 14 - Top Payouts for all iphone 4s 16GB !! call us now~$$ - (devon and pulaski) cell phones - by owner pic
Jul 14 - BUYING HTC AMAZE 4G !! PAYING CASH ALL DAY EVERYDAY!! - $9000 (DEVON AND PULASKI)antiques - by dealer pic
Jul 12 - >>>>>>>>>>>Ace Incorporated Buying Your New and - (Lincolnwood, IL) cell phones - by dealer pic
Jul 11 - ACE INC. GUARANTEED BEATING AU'S PRICES - (Lincolnwood) cell phones - by dealer pic
sort by most recent best match low price high price
Found: 13 Displaying: 1 - 13
Wed, 18 Jul 08:32:15 [ help ] [ post ]
all for sale: by-owner | by-dealer | bothsearchfor:
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Case 1:12-cv-02902-JEC Document 1-3 Filed 08/21/12 Page 21 of 21
EXHIBIT D
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EXHIBIT E
Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 1 of 8
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SPRINT NEXTEL CORPORATION,
Plaintiff, v.
IBUY EXPRESS INC., WHOLESALE EXPRESS, INC., ATHIR ORAHA PATTO, NADINE MAWFEK PATTO, KOSAI SALIM SHAMOON, TROY PATRICK HAGGARD, JOSHUA MICHAEL HAGGARD, TAREK HASSAN BAZZI, and WILLIAM LOUIS JOHNSON,
Defendants. ______________________________________
§§§§§ CASE NO.: 2:11-cv-15431-DPH-RSW §§§§§§§§§§
FINAL JUDGMENT AND PERMANENT INJUNCTION
Plaintiff Sprint Nextel Corporation (“Sprint Nextel”), brought the above-captioned
lawsuit against, inter alia, Defendants Wholesale Express, Inc., Kosai Salim Shamoon, and
Tarek Hassan Bazzi (“Defendants”), alleging that Defendants are engaged in an unlawful
enterprise involving the unauthorized and deceptive bulk purchase and resale overseas of
specially-manufactured wireless telephones under the Sprint, Sprint Nextel, Boost Mobile,
payLo, Assurance Wireless, and Virgin Mobile brands, as well as other specially-manufactured
wireless telephones designed for use on Sprint’s wireless service, including the Apple iPhone
(collectively, “Sprint Nextel Phones” or “Sprint Nextel Handsets” or “Phones” or “Handsets”),
the theft of Sprint’s subsidy investment in the Phones, the unlawful access of Sprint’s protected
computer systems and wireless network, the trafficking of Sprint’s protected and confidential
computer passwords, the willful infringement of Sprint’s trademarks, and insurance fraud
(collectively, the “Bulk Handset Trafficking Scheme” or the “Scheme”).
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 1 of 7 Pg ID 672Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 2 of 8
Defendants and their co-conspirators perpetrate the Bulk Handset Trafficking Scheme by
acquiring large quantities of Sprint Nextel Phones from Sprint Nextel and/or Sprint Nextel
authorized dealers, and by soliciting others to purchase Sprint Nextel Phones in large quantities
for the benefit of Defendants. Defendants and their co-conspirators acquire the Sprint Nextel
Phones with the knowledge and intent that the Phones will not be used on the Sprint Nextel
wireless network (as required by the Sprint Nextel contracts); instead, the Phones are trafficked
and the vast majority are resold as new overseas where the Phones are not subsidized by wireless
carriers (as they are in the United States) and where the Phones are not as readily available. In
some cases, Defendants and their co-conspirators acquire the Sprint Nextel Phones with the
knowledge and intent that the Phones will be computer-hacked. The purpose of this hacking,
known as “unlocking,” is to disable software installed in the Phones by the manufacturers at the
request and expense of Sprint Nextel, which enables the activation of the Sprint Nextel Phones
exclusively on Sprint’s wireless system. The purpose of the software is to allow Sprint Nextel to
offer the Phones at a discount to the consumer while protecting Sprint’s subsidy investment in
the Phone. The illegally unlocked Phones are trafficked and resold as new by Defendants and
their co-conspirators, at a premium, under the Sprint trademarks.
Sprint Nextel Phones are sold subject to terms and conditions (“Terms and Conditions”)
which conspicuously restrict and limit the sale and use of the Phones. These Terms and
Conditions are set forth in printed inserts that are packaged with each Phones and are posted on
the Sprint-Nextel website. The Terms and Conditions and language on the packaging constitute
a valid binding contract. Pursuant to the Terms and Conditions, purchasers of Sprint Nextel
Phones agree, among other things: (a) to pay the monthly service charges and other related fees;
(b) to pay an Early Termination Fee (“ETF”) for each line of service that is terminated before the
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 2 of 7 Pg ID 673Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 3 of 8
contract term is concluded; (c) to activate the Sprint Nextel Phones on the Sprint Nextel CDMA
network; (d) not to resell the Sprint Nextel Phones and related products and services; and (e) not
to use the Phones for a purpose that could damage or adversely affect Sprint Nextel.
As a result of Defendants’ involvement in the Bulk Handset Trafficking Scheme, Sprint
Nextel has asserted claims against Defendants for breach of contract, common law unfair
competition, tortious interference with business relationships, civil conspiracy, unjust
enrichment, conspiracy to induce breach of contract, common law fraud, fraudulent
misrepresentation, violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.,
federal trademark infringement and false advertising under 15 U.S.C. § 1125(a)(1)(A) and (B),
and contributory trademark infringement. Based on the respective positions advocated by the
parties, and having reviewed the Complaint and file and being otherwise duly and fully advised
in the premises, it is hereby
ORDERED, ADJUDGED and DECREED that:
1. This Court has jurisdiction over all the parties and all of the claims set forth in
Sprint Nextel’s Complaint.
2. The Court finds that Sprint Nextel has the right to use and enforce rights in the
standard character mark Sprint and the stylized Sprint Mark (collectively, the “Sprint Nextel
Marks”), as depicted below:
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 3 of 7 Pg ID 674Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 4 of 8
Sprint Nextel uses the Sprint Nextel Marks on and in connection with its telecommunications
products and services. The Sprint Nextel Marks are valid, distinctive, protectable, famous, have
acquired secondary meaning, and are associated exclusively with Sprint Nextel.
3. The Court finds that the Terms and Conditions and the language in and on the
packaging constitute a valid and binding contract enforceable against Defendants. The Court
finds that (a) failing to pay for monthly service charges; (b) failing to pay ETF fees; (c) failing to
activate the Phones on the Sprint wireless network; (d) reselling the Sprint Nextel Phones and
related products and services; and (e) using the Phones for a purpose that could damage or
adversely affect Sprint, constitute independent breaches of contract for which Sprint Nextel is
entitled to relief.
4. The Court finds that the conduct set forth in the Complaint constitutes violations
of 15 U.S.C. § 1125(a)(1)(A) and (B) (federal trademark infringement and false advertising).
The Court further finds that the conduct also constitutes contributory trademark infringement,
common law unfair competition, tortious interference with business relationships, civil
conspiracy, unjust enrichment, conspiracy to induce breach of contract, common law fraud,
fraudulent misrepresentation, and violations of the Computer Fraud and Abuse Act, 18 U.S.C. §
1030 et seq., and has caused substantial and irreparable harm to Sprint Nextel, and will continue
to cause substantial and irreparable harm to Sprint Nextel unless enjoined.
5. Sprint Nextel has suffered damages, including loss of goodwill and damage to its
reputation, as a result of Defendants’ conduct. On review and consideration of all relevant
factors, Sprint Nextel is entitled to damages and injunctive relief on the claims as set forth in the
Complaint.
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 4 of 7 Pg ID 675Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 5 of 8
6. Final judgment is hereby entered against Defendant Wholesale Express, Inc., and
in favor of the Plaintiff Sprint Nextel, on all of the claims set forth in Sprint Nextel’s Complaint
in the principal amount of Five Million Dollars and Zero Cents ($5,000,000.00 (U.S.)) and
against Kosai Salim Shamoon and Tarek Hassan Bazzi, jointly and severally, in the principal
amount of Two Million Dollars and Zero Cents ($2,000,000.00 (U.S.)), which shall bear interest
at the legal rate, for which let execution issue forthwith.
7. Defendants and all of their past and present officers, directors, successors,
assigns, parents, subsidiaries, affiliates, related companies, predecessors-in-interest, companies,
agents, employees, heirs, personal representatives, beneficiaries, relatives, and all other persons
or entities acting or purporting to act for them or on their behalf, including but not limited to any
corporation, partnership, proprietorship or entity of any type that is in any way affiliated or
associated with Defendants or Defendants’ representatives, agents, assigns, parent entities,
employees, independent contractors, associates, servants, affiliated entities, and any and all
persons and entities in active concert and participation with Defendants who receive notice of
this Order, shall be and hereby are PERMANENTLY ENJOINED from:
a. purchasing, selling, unlocking, reflashing, altering, advertising, soliciting
and/or shipping, directly or indirectly, any Sprint Nextel Phones;
b. unlocking of any Sprint Nextel Phone;
c. supplying Sprint Nextel Phones to or facilitating or in any way assisting
other persons or entities who Defendants know or should know are
engaged in the purchase or sale of Sprint Nextel Phones or hacking,
altering, erasing, tampering with, deleting or otherwise disabling the
software installed in Sprint Nextel Phones;
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 5 of 7 Pg ID 676Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 6 of 8
d. engaging in any of the conduct described in the Complaint as the “Bulk
Handset Trafficking Scheme;” and
e. supplying Sprint Nextel Phones to or facilitating or in any way assisting
other persons or entities who Defendants know or should know are
engaged in any of the acts prohibited under this Permanent Injunction,
including, without limitation, the buying and/or selling of Sprint Nextel
Phones; and
f. knowingly using the Sprint Nextel Marks or any other trademark, service
mark, trade name and/or trade dress owned or used by Sprint Nextel now
or in the future, or that is likely to cause confusion with Sprint Nextel’s
Marks, without Sprint Nextel’s prior written authorization.
8. The purchase, sale or shipment of any Sprint Nextel Phones without Sprint
Nextel’s prior written consent within and/or outside of the continental United States is and shall
be deemed a presumptive violation of this permanent injunction.
9. The address of Defendant Wholesale Express, Inc. is 32969 Hamilton Court #101,
Farmington Hills, Michigan 48334.
10. The address of Defendant Kosai Salim Shamoon is 5830 Hartford Way, Brighton,
Michigan 48116.
11. The address of Defendant Tarek Hassan Bazzi is 44461 White Pine Cir W,
Northville, MI 48168.
12. The address of Plaintiff Sprint Nextel is 6200 Sprint Pkwy, Overland Park,
Kansas 66251.
13. Defendants waive their right of appeal from the entry of this Final Judgment.
2:11-cv-15431-DPH-RSW Doc # 39 Filed 03/13/12 Pg 6 of 7 Pg ID 677Case 1:12-cv-02902-JEC Document 1-5 Filed 08/21/12 Page 7 of 8
14. The Court retains jurisdiction over this matter and the parties to this action in
order to enforce any violation of the terms of this Permanent Injunction by a finding of contempt
and an order for payment of compensatory damages to Sprint Nextel in an amount of $5,000 for
each Sprint Nextel Handset that a Defendant is found to have purchased, sold or unlocked in
violation of this Injunction. The Court finds that these amounts are compensatory and will serve
to compensate Sprint Nextel for its losses in the event Defendants violate the terms of this Order.
15. The Court hereby finds, pursuant to Fed. R. Civ. P. 54(b), that there is no just
reason for delay and orders that Judgment shall be entered against Defendants as set forth herein.
16. The case shall remain open with respect to the other Defendants, namely iBuy
Express, Inc., Athir Oraha Patto, Nadine Mawfek Patto, Troy Patrick Haggard, and Joshua
Michael Haggard.
DONE AND ORDERED this 13th day of March, 2012.
S/DENISE PAGE HOOD UNITED STATES DISTRICT JUDGE
Copies furnished to:
All Counsel of Record and pro se parties
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EXHIBIT H
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JS44 (Rev. 04/12 NDGA) CIVIL COVER SHEET The JS44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)
I. (a) PLAINTIFF(S) DEFENDANT(S)
(b) COUNTY OF RESIDENCE OF FIRST LISTED COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF DEFENDANT (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED
(c) ATTORNEYS (FIRM NAME, ADDRESS, TELEPHONE NUMBER, AND ATTORNEYS (IF KNOWN)
E-MAIL ADDRESS)
II. BASIS OF JURISDICTION III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN “X” IN ONE BOX ONLY) (PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)
PLF DEF PLF DEF
1 U.S. GOVERNMENT 3 FEDERAL QUESTION 1 1 CITIZEN OF THIS STATE 4 4 INCORPORATED OR PRINCIPAL PLAINTIFF (U.S. GOVERNMENT NOT A PARTY) PLACE OF BUSINESS IN THIS STATE
2 U.S. GOVERNMENT 4 DIVERSITY 2 2 CITIZEN OF ANOTHER 5 5 INCORPORATED AND PRINCIPAL DEFENDANT (INDICATE CITIZENSHIP OF PARTIES STATE PLACE OF BUSINESS IN ANOTHER
IN ITEM III) STATE3 3 CITIZEN OR SUBJECT OF
` A FOREIGN COUNTRY 6 6 FOREIGN NATION
IV. ORIGIN (PLACE AN “X “IN ONE BOX ONLY)
TRANSFERRED FROM APPEAL TO DISTRICT JUDGE 1 ORIGINAL 2 REMOVED FROM 3 REMANDED FROM 4 REINSTATED OR 5 ANOTHER DISTRICT 6 MULTIDISTRICT 7 FROM MAGISTRATE JUDGE PROCEEDING STATE COURT APPELLATE COURT REOPENED (Specify District) LITIGATION JUDGMENT
V. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE - DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
(IF COMPLEX, CHECK REASON BELOW)
1. Unusually large number of parties. 6. Problems locating or preserving evidence
2. Unusually large number of claims or defenses. 7. Pending parallel investigations or actions by government.
3. Factual issues are exceptionally complex 8. Multiple use of experts.
4. Greater than normal volume of evidence. 9. Need for discovery outside United States boundaries.
5. Extended discovery period is needed. 10. Existence of highly technical issues and proof.
CONTINUED ON REVERSEFOR OFFICE USE ONLY RECEIPT # AMOUNT $ APPLYING IFP MAG. JUDGE (IFP)
JUDGE MAG. JUDGE NATURE OF SUIT CAUSE OF ACTION (Referral)
Case 1:12-cv-02902-JEC Document 1-9 Filed 08/21/12 Page 1 of 2
SPRINT NEXTEL CORPORATION and SPRINTCOMMUNICATIONS COMPANY, L.P.
COPATRADE, INC., ACE WHOLESALE, INC., JASONFLOAREA, ERIC MANDREGER, DOMINICK LANORE,TONY ARCHIE, JOSE GENEL, BARNEY GUNN, andMOSHE ALEZRA
Johnson DeKalb
Gail Podolsky, Esq.Carlton Fields, P.A.1201 West Peachtree Street, Suite 3000Atlanta, Georgia 30309(404) [email protected]
Plaintiffs' claims under the Lanham (Trademark) Act, 15 U.S.C. § 1051, et. seq , and the Computer Fraud and Abuse Act, 18 U.S.C.§ 1030, provide this Court with original jurisdiction
VI. NATURE OF SUIT (PLACE AN “X” IN ONE BOX ONLY)
CONTRACT - "0" MONTHS DISCOVERY TRACK’150 RECOVERY OF OVERPAYMENT & ENFORCEMENT OF JUDGMENT
152 RECOVERY OF DEFAULTED STUDENT LOANS (Excl. Veterans)
153 RECOVERY OF OVERPAYMENT OF VETERAN'S BENEFITS
CONTRACT - "4" MONTHS DISCOVERY TRACK110 INSURANCE
120 MARINE 130 MILLER ACT 140 NEGOTIABLE INSTRUMENT 151 MEDICARE ACT 160 STOCKHOLDERS' SUITS 190 OTHER CONTRACT 195 CONTRACT PRODUCT LIABILITY 196 FRANCHISE
REAL PROPERTY - "4" MONTHS DISCOVERYTRACK
210 LAND CONDEMNATION 220 FORECLOSURE 230 RENT LEASE & EJECTMENT 240 TORTS TO LAND 245 TORT PRODUCT LIABILITY 290 ALL OTHER REAL PROPERTY
TORTS - PERSONAL INJURY - "4" MONTHSDISCOVERY TRACK
310 AIRPLANE 315 AIRPLANE PRODUCT LIABILITY 320 ASSAULT, LIBEL & SLANDER 330 FEDERAL EMPLOYERS' LIABILITY 340 MARINE 345 MARINE PRODUCT LIABILITY 350 MOTOR VEHICLE 355 MOTOR VEHICLE PRODUCT LIABILITY 360 OTHER PERSONAL INJURY
362 PERSONAL INJURY - MEDICAL MALPRACTICE
365 PERSONAL INJURY - PRODUCT LIABILITY 367 PERSONAL INJURY - HEALTH CARE/
PHARMACEUTICAL PRODUCT LIABILITY368 ASBESTOS PERSONAL INJURY PRODUCT
LIABILITY
TORTS - PERSONAL PROPERTY - "4" MONTHSDISCOVERY TRACK
370 OTHER FRAUD371 TRUTH IN LENDING380 OTHER PERSONAL PROPERTY DAMAGE 385 PROPERTY DAMAGE PRODUCT LIABILITY
BANKRUPTCY - "0" MONTHS DISCOVERY TRACK422 APPEAL 28 USC 158
423 WITHDRAWAL 28 USC 157
CIVIL RIGHTS - "4" MONTHS DISCOVERY TRACK441 VOTING
442 EMPLOYMENT 443 HOUSING/ ACCOMMODATIONS 444 WELFARE 440 OTHER CIVIL RIGHTS 445 AMERICANS with DISABILITIES - Employment 446 AMERICANS with DISABILITIES - Other
448 EDUCATION
IMMIGRATION - "0" MONTHS DISCOVERY TRACK462 NATURALIZATION APPLICATION463 HABEAS CORPUS- Alien Detainee465 OTHER IMMIGRATION ACTIONS
PRISONER PETITIONS - "0" MONTHS DISCOVERYTRACK
510 MOTIONS TO VACATE SENTENCE530 HABEAS CORPUS535 HABEAS CORPUS DEATH PENALTY540 MANDAMUS & OTHER550 CIVIL RIGHTS - Filed Pro se555 PRISON CONDITION(S) - Filed Pro se560 CIVIL DETAINEE: CONDITIONS OF CONFINEMENT
PRISONER PETITIONS - "4" MONTHS DISCOVERYTRACK
550 CIVIL RIGHTS - Filed by Counsel555 PRISON CONDITION(S) - Filed by Counsel
FORFEITURE/PENALTY - "4" MONTHS DISCOVERYTRACK
625 DRUG RELATED SEIZURE OF PROPERTY 21 USC 881690 OTHER
LABOR - "4" MONTHS DISCOVERY TRACK710 FAIR LABOR STANDARDS ACT720 LABOR/MGMT. RELATIONS740 RAILWAY LABOR ACT751 FAMILY and MEDICAL LEAVE ACT790 OTHER LABOR LITIGATION791 EMPL. RET. INC. SECURITY ACT
PROPERTY RIGHTS - "4" MONTHS DISCOVERYTRACK
820 COPYRIGHTS840 TRADEMARK
PROPERTY RIGHTS - "8" MONTHS DISCOVERYTRACK
830 PATENT
SOCIAL SECURITY - "0" MONTHS DISCOVERYTRACK
861 HIA (1395ff)862 BLACK LUNG (923)863 DIWC (405(g))863 DIWW (405(g))864 SSID TITLE XVI865 RSI (405(g))
FEDERAL TAX SUITS - "4" MONTHS DISCOVERYTRACK
870 TAXES (U.S. Plaintiff or Defendant)871 IRS - THIRD PARTY 26 USC 7609
OTHER STATUTES - "4" MONTHS DISCOVERYTRACK
375 FALSE CLAIMS ACT400 STATE REAPPORTIONMENT430 BANKS AND BANKING450 COMMERCE/ICC RATES/ETC.460 DEPORTATION470 RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS480 CONSUMER CREDIT490 CABLE/SATELLITE TV891 AGRICULTURAL ACTS893 ENVIRONMENTAL MATTERS895 FREEDOM OF INFORMATION ACT950 CONSTITUTIONALITY OF STATE STATUTES890 OTHER STATUTORY ACTIONS899 ADMINISTRATIVE PROCEDURES ACT /
REVIEW OR APPEAL OF AGENCY DECISION
OTHER STATUTES - "8" MONTHS DISCOVERYTRACK
410 ANTITRUST850 SECURITIES / COMMODITIES / EXCHANGE
OTHER STATUTES - “0" MONTHS DISCOVERYTRACK 896 ARBITRATION (Confirm / Vacate / Order / Modify)
* PLEASE NOTE DISCOVERY TRACK FOR EACH CASE TYPE. SEE LOCAL RULE 26.3
VII. REQUESTED IN COMPLAINT: CHECK IF CLASS ACTION UNDER F.R.Civ.P. 23 DEMAND $_____________________________ JURY DEMAND YES NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT) VIII. RELATED/REFILED CASE(S) IF ANY JUDGE_______________________________ DOCKET NO._______________________ CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (CHECK APPROPRIATE BOX)
1. PROPERTY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.2. SAME ISSUE OF FACT OR ARISES OUT OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.3. VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.4. APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.5. REPETITIVE CASES FILED BY PRO SE LITIGANTS.6. COMPANION OR RELATED CASE TO CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED STYLE OF OTHER CASE(S)):
7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO. , WHICH WASDISMISSED. This case IS IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.
SIGNATURE OF ATTORNEY OF RECORD DATE
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/s/ Gail Podolsky 08/21/2012