Real News Project dba WhoWhatWhy v. Dickert complaint.pdf

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


2/18

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.


3/18

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

{00038814.DOC; }


4/18

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

{00038814.DOC; } 2


5/18

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.

{00038814.DOC; } 3


6/18

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

{0OO38814.DOC; }

4


7/18

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

{00038814.DOC;1}

5


8/18

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

{00038814.DOC; }


9/18

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

{00038814.DOC; } 7


10/18

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

{00038814.DOC; } 8


11/18

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

{00038814.DOC; } 9


12/18

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.

{00038814.DOC; }

10


13/18

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.

{00038814.DOC; } 11


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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.

{00038814.DOC; } 12


15/18

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.

{00038814.DOC; } 13


16/18

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.

{00038814.DOC; }

14


17/18

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.

{00038814.DOC; }

15


18/18

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

Real News Project dba WhoWhatWhy v. Dickert complaint.pdf

Documents

Transcript of Real News Project dba WhoWhatWhy v. Dickert complaint.pdf