IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
AT KANSAS CITY
VIRTUMUNDO, INC.
4600 Madison,
Suite 500,
Kansas City, Missouri
64112
Plaintiff, CASE
NO. _______________
v.
DIVISION
_______________
MINDSET INTERACTIVE, INC.
5 Corp Park,
Suite 160,
Irvine, California
92606
SERVE:
----
Registered Agent
Veronica M. Gray
4400 MacArthur
Boulevard
Suite 900
Newport Beach,
California 92660
And
INURV, INC.
P.O. Box 1223,
210 North Central
Avenue #210,
Glendale, California 91203
SERVE:
----
Registered Agent
Georgi Kara Yacoubian
1443 Rockglen Avenue
#4
Glendale, California
91205
Defendants.
PETITION FOR DAMAGES
Plaintiff Virtumundo, Inc. (Virtumundo) submits this Petition for Damages against defendants Mindset Interactive, Inc. (Mindset) and Inurv, Inc., (Inurv) (collectively “Defendants”) and makes the following allegations and claims:
FACTS COMMON TO ALL COUNTS
1. Virtumundo, Inc. is a Kansas corporation with its principal place of business in Jackson County, Missouri.
2. Mindset Interactive, Inc. is a Nevada corporation with its principal place of business in Irvine, California. Mindset can be served through its registered agent as listed above.
3. Inurv, Inc. is a California corporation with its principal place of business in Glendale, California. Inurv can be served through its registered agent as listed above.
4. Virtumundo is a permission-based marketing company and maintains a database of individuals who have consented to receive email offers from third parties. Virtumundo has established procedures to prevent individuals from receiving unwanted email, and to prevent internet service providers from receiving complaints about unwanted email from their subscribers. Among other things, these procedures include the sending of introductory email messages to individuals whose email addresses are included in data purchase transactions. These introductory messages state that Virtumundo will begin providing promotional offers to the individuals unless they decide they would prefer not to receive them, in which case the messages include a conspicuous and simple instructions for individuals to elect not to receive such offers. These procedures comply with industry standards.
5. In compliance with Virtumundo’s strict privacy procedures and practices, Virtumundo acquires data from third parties who represent, warrant, and promise to Virtumundo, among other things, (1) that the data was collected voluntarily from individuals on websites, (2) that the seller has a right, under any applicable privacy statements, to transfer the data to Virtumundo, and (3) that Virtumundo has the right upon acquisition of the data to send promotional offers to the individuals.
6. On December 19, 2001, Virtumundo and Mindset entered into a contract (the Mindset Contract) whereby Mindset agreed to sell certain data to Virtumundo (the Mindset Data). The Mindset Contract was formed in Jackson County, Missouri.
7. On February 5, 2002, Virtumundo and Inurv entered into a contract (the Inurv Contract) whereby Inurv agreed to sell certain data to Virtumundo (the Inurv Data). The Inurv Contract was formed in Jackson County, Missouri.
8. Mindset expressly agreed in the Mindset Contract that Mindset would be subject to personal jurisdiction in the Circuit Court of Jackson County for the purpose of any litigation arising from the Mindset Contract. In addition, Mindset is subject to jurisdiction in this Court under Mo. Rev. Stat. § 506.500(1), (2) and (3), as Mindset transacted business within Missouri, made a contract in Missouri, and committed torts within Missouri, as described herein.
9. Inurv expressly agreed in the Inurv Contract that Inurv would be subject to personal jurisdiction in the Circuit Court of Jackson County for the purpose of any litigation arising from the Inurv Contract. In addition, Inurv is subject to jurisdiction in this Court under Mo. Rev. Stat. § 506.500(1), (2) and (3), as Inurv transacted business within Missouri, made a contract in Missouri, and committed torts within Missouri, as described herein.
10. Venue is proper pursuant to Mo. Rev. Stat. § 508.040 as Virtumundo operates its business in Jackson County, and the claims and damages at issue in this suit arose in Jackson County, Missouri. In addition, Inurv expressly agreed in the Inurv Contract that venue was proper in Jackson County, Missouri, and Mindset expressly agreed in the Mindset Contract that venue was proper in Jackson County, Missouri.
11. The Mindset Contract expressly called for the Mindset Data to be of a specified quantity and quality, and to have been obtained from a specific source disclosed by Mindset as part of the Mindset Contract. In addition, Mindset warranted and represented that it had the right to sell the Mindset Data to Virtumundo, and that Virtumundo would have the right to utilize the Mindset Data in its business operations, including the right to provide promotional offers to the individuals listed in the Mindset Data.
12. In accordance with Virtumundo’s strict privacy practices, Virtumundo reviewed Mindset’s posted privacy policy on Mindset’s website as represented and warranted by Mindset in the Mindset Contract and, in reliance on Mindset’s representations and warranties that all Mindset Data was collected in accordance with this privacy policy, determined that Mindset gave proper notices to the public that the data collected can be transferred to third parties for marketing purposes.
13. The Inurv Contract expressly called for the Inurv Data to be of a specified quantity and quality, and to have been obtained from specific sources disclosed by Inurv as part of the Inurv Contract. In addition, Inurv warranted and represented that it had the right to sell the Inurv Data to Virtumundo, and that Virtumundo would have the right to utilize the Inurv Data in its business operations, including the right to provide promotional offers to the individuals listed in the Inurv Data.
14. In accordance with Virtumundo’s strict privacy practices, Virtumundo reviewed Inurv’s posted privacy policy and the posted privacy policies belonging to the other data collectors as represented and warranted by Inurv in the Inurv Contract and, in reliance on Inurv’s representations and warranties that all Inurv Data was collected in accordance with these privacy policies, determined that Inurv and the other data collectors gave proper notices to the public that the data collected can be transferred to third parties for marketing purposes.
15. When Virtumundo began using the Inurv Data and the Mindset Data to contact individuals, Virtumundo, internet service providers, and anti-spam organizations immediately received a substantial number of complaints from those individuals, based on assertions that Virtumundo did not have the right to contact individuals listed in the Inurv Data and the Mindset Data. The number of complaints generated by the introductory messages sent to the individuals listed in the Mindset Data and the Inurv Data were substantially higher than from introductory emails sent to legitimate, permission-based data lists.
16. As a direct result of using the Inurv Data in reliance on Inurv’s representations and the Mindset Data in reliance on Mindset’s representations, Virtumundo has been notified by organizations that monitor email communications that Virtumundo would be publicly listed as an offender in that industry, i.e., as what is commonly referred to as a “spammer.”
17. Internet service providers (ISPs) have interrupted and blocked Virtumundo’s email messages based on the increased complaint levels and other issues related to Virtumundo’s use of the Inurv Data and the Mindset Data.
18. ISPs also monitor the organizations which have threatened to list Virtumundo on their spam “black lists.” ISPs often remove black-listed organizations’ ability to send email messages across those ISPs’ systems, and block emails sent from listed organizations that are intended to reach individuals. Defendants’ supply of faulty or tainted Inurv Data and Mindset Data thus threatens to eliminate Virtumundo’s ability to transact its internet-based business operations.
19. Virtumundo has stopped using the faulty or tainted Inurv Data and Mindset Data.
20. Virtumundo has lost existing and prospective advertising contracts due to its reliance upon and use of the Inurv Data and Mindset Data.
21. Virtumundo’s reputation in the permission-based marketing industry has been diminished by the faulty or tainted Inurv Data and Mindset Data.
22. Virtumundo has been unable to complete negotiations for additional bandwidth supply – a necessary component of its internet business -- due to its reliance upon and use of the Inurv Data and Mindset Data.
COUNT I
BREACH OF CONTRACT AGAINST MINDSET
23. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
24. Virtumundo and Mindset entered into the Mindset Contract on December 19, 2001, and both organizations had the corporate authority to do so.
25. The Mindset Contract obligated Mindset to deliver the Mindset Data to Virtumundo in a specified quantity and with specific content. Additionally, the Mindset Contract obligated Mindset to obtain the Mindset Data from a specific source listed in the Mindset Contract, and to have particular transferable rights to use the Mindset Data which Virtumundo would acquire.
26. The Mindset Contract obligated Mindset to only transfer Mindset Data that was collected from individuals by Mindset in compliance with its posted privacy policies, which policies state it had the right to transfer the Mindset Data to Virtumundo and that third parties can provide promotional offers to the individuals.
27. Mindset did not meet its obligations to only deliver Mindset Data collected from sources specified in the Mindset Contract. Additionally, Mindset did not have or transfer to Virtumundo the required rights to use the Mindset Data.
28. These failures by Mindset to meet its contractual obligations constituted material breaches of the Mindset Contract.
29. Virtumundo is and has been prepared at all times to meet its obligations under the Mindset Contract.
30. Because of Mindset’s breach of its obligations under the Mindset Contract, Virtumundo has incurred damages and will continue to incur damages in the future, including without limit:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Mindset Contract.
31. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Mindset’s breach of the Mindset Contract, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial but not less than $50,000.00. As additional and alternative relief, Virtumundo requests that the Court rescind the Mindset Contract.
COUNT II
BREACH OF WARRANTIES AND REPRESENTATIONS AGAINST MINDSET
32. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
33. In the Mindset Contract, Mindset made specific warranties and representations regarding the origin, nature and title of the Mindset Data it sold to Virtumundo.
34. The Mindset Data
was not as Mindset warranted, in that it did not originate from the source
which Mindset warranted and represented, it did not consist of the content [?]which
Mindset warranted and represented, and Mindset did not have title to all of the
Mindset Data as Mindset warranted and represented to Virtumundo.
35. Mindset was aware, or should have been aware, that Virtumundo reasonably relied upon Mindset’s warranties and representations regarding the Mindset Data in its decision to purchase the Mindset Data from Mindset, and in its decision to utilize the Mindset Data in Virtumundo’s business operations.
36. Virtumundo’s reliance on Mindset’s warranties and representations was reasonable, and Virtumundo had no information at the time of the Mindset Data purchase or use indicating that the Mindset Data was other than Mindset warranted and represented in the Mindset Contract.
37. Mindset’s breach of its warranties and representations has caused and will in the future cause Virtumundo damage, including without limitation:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Mindset Contract.
38. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Mindset’s breach of its warranties and representations, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial but not less than $50,000.00. As additional and alternative relief, Virtumundo requests that the Court rescind the Mindset Contract.
COUNT III
FRAUD/INTENTIONAL MISRPRESENTATION AGAINST MINDSET
39. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
40. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that Mindset had collected the Mindset Data from voluntary submissions by individuals onto a specific Mindset-owned website.
41. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that each individual whose information appeared in the Mindset Data had the opportunity to review and agree to the privacy policy of Mindset before submitting their personal information to Mindset.
42. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that each individual whose information appeared in the Mindset Data had agreed that Mindset had the right to disseminate the information, and that Mindset or its assigns had the right to electronically contact the individual.
43. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that each record in the Mindset Data represented information from a living person.
44. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that Mindset had the right to sell each element of the Mindset Data to Virtumundo.
45. Before and at the time that the Mindset Contract was formed, Mindset represented to Virtumundo that Virtumundo was acquiring good title to the Mindset Data and that Virtumundo also acquired the right to utilize the Mindset Data in its business operations, including through contact with or promotional offers sent to the individuals whose information was included in the Mindset Data.
46. Before and at the time that the Mindset Contract was formed, Mindset made each of the above representations to Virtumundo with the intent that Virtumundo would rely upon these representations.
47. Each of these representations was material to Virtumundo’s decision to enter into the Mindset Contract and to purchase and use the Mindset Data.
48. Virtumundo reasonably relied upon each of the above representations.
49. Each of the above representations was false.
50. Before and at the time that the Mindset Contract was formed, Mindset knew or should have known that each of the above representations was false.
51. Virtumundo’s reliance on these false and material representations caused Virtumundo to incur damages, which have accrued and continue to accrue, including but not limited to:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Mindset Contract.
52. Mindset’s misrepresentations were intentional, malicious, in reckless disregard of Virtumundo’s rights and interests, and outrageous, entitling Virtumundo to recover punitive damages.
53. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Mindset’s fraud and intentional misrepresentation, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial. As additional and alternative relief, Virtumundo requests that the Court rescind the Mindset Contract. Further, Virtumundo respectfully requests that the Court award Virtumundo punitive damages in an amount calculated to punish Mindset for its outrageous and intentional harm of Virtumundo, and to deter other similarly situated individuals and entities from practicing similar conduct.
COUNT IV
NEGLIGENT MISREPRESENTATION AGAINST MINDSET
54. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
55. Mindset supplied information to Virtumundo in the course of Mindset’s business and as part of the transaction for the Mindset Data with Virtumundo regarding the quantity, quality, nature and source of the Mindset Data.
56. Mindset failed to exercise reasonable care in determining the actual facts regarding the Mindset Data and the represented aspects of the Mindset Data, and as a result of that lack of care the representations were false.
57. Mindset intentionally supplied the information and made the representations to Virtumundo regarding the Mindset Data to provide Virtumundo with guidance regarding the transaction for the Mindset Data.
58. Virtumundo reasonably relied on Mindset’s representations regarding the Mindset Data.
59. As a direct and proximate result of the Virtumundo’s reliance on Mindset’s false representations, Virtumundo has incurred damages and will continue to incur damages, including without limitation:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Mindset Contract.
60. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Mindset’s negligent misrepresentations, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial.
COUNT V
CONTRACTUAL INDEMNIFICATION AGAINST MINDSET
61. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
62. The Mindset Contract obligates Mindset to indemnify Virtumundo for all damages, costs and expenses Virtumundo incurs arising from the Mindset Contract and as a result, inter alia, of Mindset’s breaches, wrongful conduct, misrepresentations, or omissions. Mindset’s indemnity obligations include Virtumundo’s attorney’s fees.
63. Each of the damages, costs, expenses and fees described in this Petition in whole or in part arose as a direct result of Mindset’s conduct, intentional or negligent, relating to the Mindset Contract.
64. Virtumundo respectfully requests that the Court award Virtumundo judgment on its claim for contractual indemnity, and fair and reasonable damages covering each of the Virtumundo’s injuries, liabilities, costs, expenses, and attorneys’ fees, past and continuing, in an amount to be proven at trial but not less than $50,000.00.
COUNT VI
BREACH OF CONTRACT AGAINST INURV
65. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
66. Virtumundo and Inurv entered into the Inurv Contract on February 5, 2002, and both organizations had the corporate authority to do so.
67. The Inurv Contract obligated Inurv to deliver the Inurv Data to Virtumundo in a specified quantity and with specific content. Additionally, the Inurv Contract obligated Inurv to obtain the Inurv Data from specific sources listed in the Inurv Contract, and to have particular transferable rights to use the Inurv Data which Virtumundo would acquire.
68. The Inurv Contract obligated Inurv to only transfer Inurv Data that was collected from individuals in compliance with all applicable privacy policies.
69. Inurv did not meet its obligations to deliver the Inurv Data in the form or quantity called for, and Inurv did not have or transfer to Virtumundo the required rights to use the Inurv Data. Inurv did not obtain the Inurv Data from the required sources.
70. These failures by Inurv to meet its contractual obligations constituted material breaches of the Inurv Contract.
71. Virtumundo is and has been prepared at all times to meet its obligations under the Inurv Contract.
72. Because of Inurv’s breach of its obligations under the Inurv Contract, Virtumundo has incurred damages and will continue to incur damages in the future, including without limit:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Inurv Contract.
73. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Inurv’s breach of the Inurv Contract, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial but not less than $50,000.00. As additional and alternative relief, Virtumundo requests that the Court rescind the Inurv Contract.
COUNT VII
BREACH OF WARRANTIES AND REPRESENTATIONS AGAINST INURV
74. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
75. In the Inurv Contract, Inurv made specific warranties and representations regarding the origin, nature and title of the Inurv Data it sold to Virtumundo.
76. The Inurv Data was not as Inurv warranted, in that it did not originate in the manner in which Inurv warranted and represented, it did not consist of the content which Inurv warranted and represented, and Inurv did not have the right of title in the Inurv Data that Inurv warranted and represented to Virtumundo.
77. Inurv was aware, or should have been aware, that Virtumundo reasonably relied upon Inurv’s warranties and representations regarding the Inurv Data in its decision to purchase the Inurv Data from Inurv, and in its decision to utilize the Inurv Data in Virtumundo’s business operations.
78. Virtumundo’s reliance on Inurv’s warranties and representations was reasonable, and Virtumundo had no information at the time of the Inurv Data purchase or use indicating that the Inurv Data was other than Inurv warranted and represented in the Inurv Contract.
79. Inurv’s breach of its warranties and representations has caused and will in the future cause Virtumundo damage, including without limitation:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Inurv Contract.
80. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Inurv’s breach of its warranties and representations, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial but not less than $50,000.00. As additional and alternative relief, Virtumundo requests that the Court rescind the Inurv Contract.
COUNT VIII
NEGLIGENT MISREPRESENTATION AGAINST INURV
81. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
82. Inurv supplied information to Virtumundo in the course of Inurv’s business and as part of the transaction for the Inurv Data with Virtumundo regarding the quantity, quality, nature and source of the Inurv Data.
83. Inurv failed to exercise reasonable care in determining the actual facts regarding the Inurv Data and the represented aspects of the Inurv Data, and as a result of that lack of care the representations were false.
84. Inurv intentionally supplied the information and made the representations to Virtumundo regarding the Inurv Data to provide Virtumundo with guidance regarding the transaction for the Inurv Data.
85. Virtumundo reasonably relied on Inurv’s representations regarding the Inurv Data.
86. As a direct and proximate result of the Virtumundo’s reliance on Inurv’s false representations, Virtumundo has incurred damages and will continue to incur damages, including without limitation:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Inurv Contract.
87. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Inurv’s negligent misrepresentations, and award Virtumundo fair and reasonable damages covering each of the above injuries, past and continuing, in an amount to be proven at trial.
COUNT IX
CONTRACTUAL INDEMNIFICATION AGAINST INURV
88. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
89. The Inurv Contract obligates Inurv to indemnify Virtumundo for all damages, costs and expenses Virtumundo incurs arising from the Inurv Contract and as a result, inter alia, of Inurv’s breaches, wrongful conduct, misrepresentations, or omissions. Inurv’s indemnity obligations include Virtumundo’s attorney’s fees.
90. Each of the damages, costs, expenses and fees described in this Petition in whole or in part arose as a direct result of Inurv’s conduct, intentional or negligent, relating to the Inurv Contract.
91. Virtumundo respectfully requests that the Court award Virtumundo judgment on its claim for contractual indemnity, and fair and reasonable damages covering each of the Virtumundo’s injuries, liabilities, costs, expenses, and attorneys’ fees, past and continuing, in an amount to be proven at trial but not less than $50,000.00.
COUNT X
NEGLIGENCE AGAINST MINDSET AND INURV
92. Virtumundo incorporates by reference Paragraphs 1 through 22 inclusive.
93. Mindset had a duty to Virtumundo to act as a reasonable person in similar circumstances would act to ensure that the Mindset Data would not cause commercial disruptions, reputational damage, or other harm because of its origin, nature or title.
94. Inurv had a duty to Virtumundo to act as a reasonable person in similar circumstances would act to ensure that the Inurv Data would not cause commercial disruptions, reputational damage, or other harm because of its origin, nature or title.
95. Mindset breached its duty, including without limitation by:
A. Failing to ensure that the Mindset Data was collected from the specified source;
B. Failing to ensure that Mindset had the required rights in the Mindset Data to allow Virtumundo, through acquisition of those rights, to contact or send promotional offers to the individuals or organizations whose information was included in the Mindset Data;
C. Failing to ensure that Mindset had the right to sell the Mindset Data;
D. Failing to ensure that Mindset had title in the Mindset Data;
E. Failing to ensure that each individual whose information was included in the Mindset Data had given Mindset permission to use and transfer the Mindset Data;
F. Failing to ensure that each individual whose information was included in the Mindset Data had been provided with the Mindset privacy policy and the opportunity to opt out or unsubscribe from Mindset’s contacts, and those of any subsequent purchaser of the Mindset Data such as Virtumundo; and
G. Failing to ensure that each individual listed in the Mindset Data was an actual, living person. .
96. Inurv breached its duty, including without limitation by:
A. Failing to ensure that the Inurv Data was collected from the specified source;
B. Failing to ensure that Inurv had the required rights in the Inurv Data to allow Virtumundo, through acquisition of those rights, to contact or send promotional offers to the individuals or organizations whose information was included in the Inurv Data;
C. Failing to ensure that Inurv had the right to sell the Inurv Data;
D. Failing to ensure that Inurv had title in the Inurv Data;
E. Failing to ensure that each individual whose information was included in the Inurv Data had given Inurv permission to use and transfer the Inurv Data;
F. Failing to ensure that each individual whose information was included in the Inurv Data had been provided with the Inurv privacy policy and the opportunity to opt out or unsubscribe from Inurv’s contacts, and those of any subsequent purchaser of the Inurv Data such as Virtumundo; and
G. Failing to ensure that each individual listed in the Inurv Data was an actual, living person.
97. Defendants’ breaches of their respective duties of care were a proximate and legal cause of Virtumundo’s past and continuing damages.
98. Defendants’ negligence has caused and will in the future cause Virtumundo damage, including without limitation:
A. Diminution of Virtumundo’s reputation and associated value of goodwill;
B. Disruption of Virtumundo’s business operations;
C. Increased costs of business operations;
D. Lost profits;
E. Loss of prospective economic advantages;
F. Loss of productivity; and
G. Costs, expenses and attorneys fees arising from enforcement of the Mindset Contract and Inurv Contract.
99. Virtumundo respectfully requests that the Court enter judgment for Virtumundo for Defendants’ negligence, and award Virtumundo fair and reasonable damages from Mindset and Inurv, jointly and severally, covering each of the above injuries, past and continuing, in an amount to be proven at trial.
WHEREFORE, Virtumundo respectfully requests that the Court:
A. Enter judgment for Virtumundo and against Mindset severally on Counts I-V, including the award of punitive damages for Count III;
B. Enter judgment for Virtumundo and against Inurv severally on Counts VI-IX;
C. Enter judgment for Virtumundo and against Inurv and Mindset jointly and severally on Count X;
D. Award to Virtumundo its fair and reasonable damages incurred and to be incurred, in addition to its costs, expenses, and attorneys’ fees;
E. Rescind the Inurv Contract;
F. Rescind the Mindset Contract; and
G. Award to Virtumundo such other relief as the Court deems just.
Respectfully submitted,
MORRISON & HECKER LLP
__________________________
Mark E. Johnson 25649
Alexander B. Robb 46425
2600 Grand Avenue
Kansas City, Missouri 64108
(816) 691-2600
(816) 474-4208 (fax)
Attorneys for Plaintiff
Virtumundo, Inc.
377465