[Note: In this online copy of my legal complaint, I have deleted the name of a Cyber Access employee and replaced it with "S____" to protect her privacy. -- Ron N.] COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. MIDDLESEX SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 97-02699 ) RONALD NEWMAN, ) ) Plaintiff, ) ) v. ) VERIFIED COMPLAINT ) CYBER ACCESS INTERNET ) COMMUNICATIONS, INC. and ) PEREGRIN M. PETTY-SCHROEPPEL, ) ) Defendants. ) ) Nature of Action 1. This action is brought by the Plaintiff, Ronald Newman ("Mr. Newman"), against the Defendants, Cyber Access Internet Communications, Inc. ("Cyber Access") and Peregrin M. Petty-Schroeppel ("Mr. Petty-Schroeppel"), for injunctive relief to recover Mr. Newman's private electronic files and to establish Internet "pointers" and to recover money damages resulting from the Defendants' breach of their Internet Service Provider contract with Mr. Newman, interference with this contract, conversion of Mr. Newman's files, invasion of Mr. Newman's privacy (M.G.L. c. 214, §1B) and violation of the Electronic Communications Privacy Act (18 U.S.C. §§2701-2710). The Parties 2. The Plaintiff, Ronald Newman, is an individual residing at 18 Day Street #310, Somerville, Middlesex County, Massachusetts. 3. The Defendant, Cyber Access Internet Communications, Inc., on information and belief is a Massachusetts corporation with a usual place of business at 2000 Massachusetts Avenue #4, Cambridge, Middlesex County, Massachusetts. 4. The Defendant, Peregrin M. Petty-Schroeppel, on information and belief is an individual residing at 54 Dartmouth Street, Medford, Middlesex County, Massachusetts. Jurisdiction and Venue 6. This Court has jurisdiction over the above-captioned parties pursuant to M.G.L. c. 223A, § 2 as all the aforementioned parties are located within the Commonwealth. Venue in this Court is proper as all parties reside or are located in this County. Factual Background 7. Approximately two years ago, Mr. Newman entered into an agreement with Cyber Access whereby Cyber Access agreed to provide Mr. Newman a package of Internet access services, including world-wide-web access, file transfer protocol (ftp), e-mail and on-line storage of files including web pages, in exchange for monthly payments of $24.95. 8. Mr. Newman made regular use of Cyber Access' services and made his monthly payments as they became due. 9. Between Friday, May 9, 1997 and Wednesday, May 14, 1997, Cyber Access was disconnected from the rest of the Internet. Mr. Newman was informed by Cyber Access on May 9 that service would be restored within a half hour. Service was not restored as promised. Mr. Newman's repeated calls to Cyber Access went unanswered and Mr. Newman found nobody present when he visited Cyber Access' offices in person. 10. Frustrated by his inability to contact anyone at Cyber Access, Mr. Newman visited a public-access Internet terminal at Harvard University's Science Center and posted the following message to the public Usenet newsgroup ne.internet.services on Sunday, May 11, 1997: From: Name.Withheld@cybercom.net Newsgroups: ne.internet.services Subject: What happened to cybercom.net? Date: 11 May 1997 16:09:19 -0700 Organization: ISP Watch - Boston Message-ID: <515jiv$d26@drn.zippo.com> Does anyone know why cybercom.net has disappeared from the Internet? It hasn't been connected to MCI since some time Friday afternoon. If anyone lives in the Porter Square area, could you try visiting them tomorrow at 2000 Mass. Ave. #4 in Cambridge, and see what's going on? Please post a report to this newsgroup. On Wednesday, May 14, 1997, Cyber Access restored access, albeit slow and intermittent, to the Internet. 11. On Thursday, May 15, 1997, Cyber Access knowingly, willfully, recklessly and maliciously terminated Mr. Newman's account by, among other things, disabling Mr. Newman's username and password and removing Mr. Newman's files from Cyber Access' server. 12. Mr. Newman's files included a famous web page entitled "The Church of Scientology vs. The Net," "The Good Net-Keeping Seal" specification web page, various Perl scripts, Mr. Newman's resume and personal photograph and various other files which he had saved, including e-mail from a prior Internet account. Mr. Newman also had several e-mail messages which were received on his Cyber Access account, but which he had not yet read. The deleted web pages are very well known in the Internet community. 13. Many other web sites exist with hypertext links to Mr. Newman's web pages and these other web sites rely on the maintenance of Mr. Newman's web pages. 14. On Friday, May 16, 1997, Mr. Newman spoke with "S____" and "Augustine," two Cyber Access employees, at Cyber Access' office. S____ began to restore Mr. Newman's access and files until Augustine demanded that she stop stating that Mr. Newman's account had been terminated and the files removed because he posted the above-quoted Usenet message. 15. Augustine also stated that Mr. Newman's files on Cyber Access' server were not his property and would not be restored under any circumstances. 16. S____ ultimately agreed to restore the files. Although the files were restored at approximately 4:00 p.m. on Friday afternoon, they were again removed from the server by 5:30 p.m. Friday evening. Mr. Newman was not able to retrieve his files during this short time. 17. Thereafter, Mr. Newman's telephone calls to Cyber Access were again not returned. He did, however, receive an e-mail from S____ stating that someone had deleted not only Mr. Newman's account and files, but also his files "in its original location." Mr. Newman hand delivered a letter demanding return of his files to Mr. Petty-Schroeppel at his home on Saturday, May 17, 1997 and at Cyber Access' office on Monday, May 19, 1997. Cyber Access and Mr. Petty-Schroeppel have failed and refused to respond to these demands. 18. On Tuesday, May 20, 1997, Mr. Newman, through his attorneys sent a M.G.L. c. 93A demand letter to Mr. Petty-Schroeppel and Cyber Access, via facsimile (confirmed), certified mail and e-mail, which included a demand that they immediate return his private files and create "pointers" which automatically transfer anybody who attempts to access one of Mr. Newman's web pages or to send Mr. Newman an e-mail to Mr. Newman's new locations for his web pages and e-mail, by the end of business on Thursday, May 22, 1997. 19. Mr. Petty-Schroeppel and Cyber Access have knowingly, willfully, recklessly and maliciously failed and refused to comply with Mr. Newman's demands. 20. As a result of these acts, Mr. Newman has been injured in that he did not receive the services for which he opened an account with Cyber Access, he has been forced to open a new Internet account, he has been deprived of access to important private files, he has been prevented from receiving his e-mail messages and he has suffered damage to his reputation and public relationships due to Cyber Access' and Mr. Petty-Schroeppel's deletion of his web pages which prevents others from viewing them and also interferes with other web sites which have created hypertext links to his web pages. 21. On information and belief, Mr. Petty-Schroeppel exerts pervasive control over Cyber Access. 22. Mr. Newman reasonably fears that without immediate injunctive relief, (1) his files will not be returned and may be permanently destroyed, including possibly by way of automatic electronic file back-ups which could over-write the files, and (2) that the pointers will not be created. This would cause Mr. Newman immediate and irreparable injury, loss and damage. Count I - Breach of Contract 23. Paragraphs 1 through 22 are incorporated herein and made a part hereof. 24. In breach of its contractual obligations to Mr. Newman, Cyber Access has failed to provide the Internet access services for which it contracted to provide. 25. As a result of the foregoing, Cyber Access and Mr. Petty-Schroeppel as its alter-ego are liable and obligated to pay to Mr. Newman for the damages he has incurred as a result of the same, as well as interest and costs. Count II - Interference With Contractual or Advantageous Relationship 26. Paragraphs 1 through 25 are incorporated herein and made a part hereof. 27. Mr. Newman and Cyber Access entered into a contractual relationship as described above. 28. Mr. Petty-Schroeppel knew of Mr. Newman's contractual relationship with Cyber Access. 29. Mr. Petty-Schroeppel interfered with Mr. Newman's contractual relationship with Cyber Access through improper motive or means. 30. As a result of the foregoing, Mr. Petty-Schroeppel is obligated to pay to Mr. Newman for the damages he has incurred as a result of the same, as well as interest and costs. Count III - Conversion 31 Paragraphs 1 through 30 are incorporated herein and made a part hereof. 32. Cyber Access and Mr. Petty-Schroeppel are exercising dominion and control over personal property of Mr. Newman, namely his electronic files stored on Cyber Access' server (the "Property"). 33. Mr. Newman has a right to possession of the Property and demanded that possession of the same be transferred from Cyber Access to Mr. Newman. 34. Cyber Access and Mr. Petty-Schroeppel have refused and otherwise failed to transfer possession of the Property to Mr. Newman. 35. As a direct and proximate result of such conduct by the Cyber Access and Mr. Petty-Schroeppel, Mr. Newman has sustained and continues to sustain substantial injury for which Cyber Access and Mr. Petty-Schroeppel are liable. Count IV - Violation of Right of Privacy (M.G.L. c. 214, §1B) 36. Paragraphs 1 through 35 are incorporated herein and made a part hereof. 37. Cyber Access' and Mr. Petty-Schroeppel's conduct constitutes an unreasonable, substantial and serious interference with Mr. Newman's privacy rights by preventing Mr. Newman's access to his private files. 38. As a direct and proximate result of such conduct by the Cyber Access and Mr. Petty-Schroeppel, Mr. Newman has sustained and continues to sustain substantial injury for which Cyber Access and Mr. Petty-Schroeppel are liable. Count V - Violation of the Electronic Communications Privacy Act ( 18 U.S.C. §§ 2701-2710) 39. Paragraphs 1 through 38 are incorporated herein and made a part hereof. 40. Cyber Access and Mr. Petty-Schroeppel have exceeded their authority to access Mr. Newman's private files. 41. Cyber Access and Mr. Petty-Schroeppel thereby altered and prevented Mr. Newman's access to his electronics files while they were in electronic storage. 42. As a direct and proximate result of such conduct by the Cyber Access and Mr. Petty-Schroeppel, Mr. Newman has sustained and continues to sustain substantial injury for which Cyber Access and Mr. Petty-Schroeppel are liable, together with costs, interest, statutory and punitive damages and attorneys fees. Prayers for Relief WHEREFORE, Mr. Newman respectfully prays that this Court: 1. Issue a Temporary Restraining Order requiring Cyber Access and Mr. Petty-Schroeppel to immediately (1) turn over to Mr. Newman his private electronic files in a form through which Mr. Newman can utilize the same and (2) establish "pointers" which automatically transfer anybody who attempts to access one of Mr. Newman's web pages or to send Mr. Newman an e-mail to Mr. Newman's new locations for his web pages and e-mail; 2. Order a Short Order of Notice; 3. Enter a Preliminary Injunction requiring Cyber Access and Mr. Petty-Schroeppel to immediately (1) turn over to Mr. Newman his private electronic files in a form through which Mr. Newman can utilize the same and (2) establish "pointers" which automatically transfer anybody who attempts to access one of Mr. Newman's web pages or to send Mr. Newman an e-mail to Mr. Newman's new locations for his web pages and e-mail; 4. Enter a Permanent Injunction requiring Cyber Access and Mr. Petty-Schroeppel to (1) turn over to Mr. Newman his private electronic files in a form through which Mr. Newman can utilize the same and (2) establish "pointers" which automatically transfer anybody who attempts to access one of Mr. Newman's web pages or to send Mr. Newman an e-mail to Mr. Newman's new locations for his web pages and e-mail; 5. Enter judgment in favor of Mr. Newman and against Cyber Access under Counts I, II, IV and V for the amount of damages incurred by Mr. Newman, together with costs, interest, statutory and punitive damages and attorneys' fees; 6. Enter judgment in favor of Mr. Newman and against Mr. Petty-Schroeppel under Counts I through V for the amount of damages incurred by Mr. Newman, together with costs, interest, statutory and punitive damages and attorneys' fees; 7. Award such further relief as this Court may deem just and appropriate. Ronald Newman, By its attorneys, Dated: May 23, 1997 _____________________________ Jerry Cohen, Esq. BBO # 089400 John W. Maconga, Esq. BBO # 581714 PERKINS, SMITH & COHEN, LLP One Beacon Street Boston, Massachusetts 02108 (617) 854-4000 VERIFICATION I, Ronald Newman, hereby depose and say that I have reviewed the foregoing Verified Complaint and that the allegations set forth therein are true to the best of my knowledge, information, and belief. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 23rd DAY OF May, 1997. Ronald Newman